Federal Deposit Insurance v. Henderson

940 F.2d 465
CourtCourt of Appeals for the Ninth Circuit
DecidedJuly 29, 1991
DocketNo. 90-35499
StatusPublished
Cited by1 cases

This text of 940 F.2d 465 (Federal Deposit Insurance v. Henderson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Federal Deposit Insurance v. Henderson, 940 F.2d 465 (9th Cir. 1991).

Opinion

WIGGINS, Circuit Judge:

Thomas Wood appeals the district court’s order granting Thomas Oldfield’s motion for summary judgment on Wood’s § 1983 equal protection and due process claims. Wood argues on appeal that genuine issues of material fact exist as to each claim, making summary judgment inappropriate. The district court had jurisdiction under 12 U.S.C. § 1819(b)(2) and 28 U.S.C. § 1331. We have jurisdiction over this timely appeal under 28 U.S.C. § 1291, and we affirm.

BACKGROUND

Thomas Wood was the President and CEO of Liberty Bank, a single-branch, minority-owned bank located in Seattle, from August 1984 until December 1987. Thomas Oldfield is the Supervisor of Banking for the State of Washington, a position he has held since November 1985. Wood, who is black, alleges that Oldfield’s actions toward Wood and Liberty violated his rights to equal protection and due process. We recount the facts in some detail.

Liberty was chartered in 1968. In July 1984, the month before Wood took office, an examination by the Federal Reserve Bank (“FRB”) indicated that Liberty was in fair condition; while the level of primary capital to total assets was adequate and “compare[d] favorably with the peer group,” the total amount of classified assets had more than doubled since the previous examination.1 The report stated that “[mjanagement must take all necessary steps to reverse the decline in asset quality and ensure that extensions of credit are supported by adequate credit information and proper documentation.”

Though the precise timing is not exactly clear, Wood determined early in his tenure that the Bank’s position would be greatly improved if it could accomplish two things: (1) Wood and the Board wanted to open a downtown branch, in the hope of attracting more sizeable deposits and more favorable lending opportunities than its current low-income neighborhood could provide; and (2) they hoped to inject substantial capital into the Bank through a stock recapitalization plan. Both moves required the approval of the state Supervisor of Banking.2 Neither request had been approved by the time Oldfield was appointed Supervisor in November 1985.

In June 1985, the FRB conducted another examination of Liberty. That report began by stating that “the overall condition of the bank has deteriorated and is now considered to be unsatisfactory.” Classified assets totalled $1,524,000, or fully 100% of the Bank’s capital funds. The FRB examiners concluded that:

[t]he unsatisfactory condition of the bank is a direct result of inadequate leadership and supervision by the Board of Directors and senior management, both past and present. Management must redirect its priorities and take more aggressive corrective action to improve the condition of the bank if long-term goals of expansion and service to the community are to be met.

The report further noted that the poor loan portfolio was “a direct result of unsound [468]*468lending practices and inadequate supervision of the lending area by management, both past and present,” and concluded that the regulators would “need to meet with the board of directors to discuss the implementation of formal supervisory action.”

In response to the Bank’s declining status, Acting Supervisor of Banking Malm-berg (Oldfield’s predecessor) and officials from the FRB in San Francisco decided to adopt a coordinated regulatory approach to Liberty. The resulting Written Agreement, the terms of which were largely negotiated before Oldfield assumed office, was signed on December 17,1985 by Wood, Oldfield and the Vice-President of the FRB of San Francisco. The Agreement was an aggressive, action-oriented plan designed to improve Liberty’s loan evaluation and monitoring procedures, to place limits on the type and amount of loans it could make, and to institute management reforms. The ten members of Liberty’s Board of Director’s also signed the Agreement.

The record does not indicate that Oldfield denied Liberty’s application to open a downtown branch on any particular occasion; apparently, the application, while never approved, was pending for the remainder of Wood’s tenure at the Bank. Under state law, a bank with paid-in capital of $200,000 may, with the approval of the Supervisor, open a new branch office. Wash.Rev.Code § 30.40.020. The Supervisor’s approval is expressly made to depend upon the ability of the proposed location to support the new office. It was Oldfield’s contention that, while Liberty had the requisite funds, and while downtown Seattle surely could support a branch office, Liberty should not be allowed to open a new office until it had adequately addressed the concerns that the recent examinations had revealed, concerns that the tripartite Agreement addressed. By contrast, Wood contends that Oldfield’s refusal to permit Liberty to open the branch office was motivated by racial animus; Wood alleges that Oldfield once asked him who would bank with Liberty downtown — “After all, you’re a minority bank.”3

In October 1986, the FRB released the results of yet another examination of Liberty.4 Again finding that the overall condition of the Bank was unsatisfactory, the report urged the directorate “to redirect its priorities away from expansion and concentrate its efforts toward restoring the bank to a satisfactory condition.” As of September 1986, classified assets had climbed to 193% of the Bank’s total capital. The report also noted that the Bank was in noncompliance with portions of the Written Agreement, mentioning especially that loans were being made in excess of the established limits and without proper documentation.

As Oldfield became increasingly concerned about the Bank’s condition, he instructed State Bank Examiner John Burke, who was in charge of monitoring Liberty, to pay particularly close attention to Wood’s actions. At one point in April 1987, Oldfield, noting that Liberty had “too many problems and poor management response,” told Burke to “keep on Tom Wood’s back ... Write down all conversations.” In June 1987, Burke arranged to conduct another examination of Liberty, this one in conjunction with the FDIC. Again, there is no report in the record, but an Assistant Supervisor of Banking wrote in July 1987 that the examination indicated that “[t]he condition of the bank is precarious at best. If the problem loans, liquidity, and funds management deteriorate further, the bank could fail.”

For several years, but especially during 1987, Wood, aware that the new branch application depended largely upon the Bank’s need for capital infusion, worked to implement a stock recapitalization plan. On October 21, 1987, the Shamania Investment Company sent a letter to Wood, Andrew Branch and Jerome Crawford commit[469]*469ting to lend the three men $1,450,000. On October 27, Wood, Branch and Crawford sent a packet to Mary Faulk, the Director of Washington state’s Department of General Administration (of which the Department of Banking is a part) containing Change of Ownership papers, offering to purchase $870,000 in Liberty stock, and a Branch Application.

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