First National Bank v. Board of Governors

509 F.2d 1004
CourtCourt of Appeals for the Eighth Circuit
DecidedJanuary 22, 1975
DocketNo. 74-1312
StatusPublished
Cited by10 cases

This text of 509 F.2d 1004 (First National Bank v. Board of Governors) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
First National Bank v. Board of Governors, 509 F.2d 1004 (8th Cir. 1975).

Opinion

STEPHENSON, Circuit Judge.

In this appeal the petitioner banks1 seek review of an order of the Board of Governors of the Federal Reserve System (Board) approving the application of respondent-intervenor Mark Twain Bancshares, Inc. (Bancshares) for prior approval of its acquisition of 80.5% of respondent-intervenor Mark Twain O’Fallon Bank (O’Fallon Bank) pursuant to section 3 of the Bank Holding Company Act of 1956, 12 U.S.C. § 1842(a) (1970).2 We hold that the petitioners’ failure to present to the Board the objections they now raise requires us to dismiss their appeal for lack of subject matter jurisdiction.

The facts are not disputed. In October, 1973, Bancshares applied to the Board for prior approval of its acquisition of 80.5% of the voting shares of the proposed O’Fallon Bank. In accordance with regulations, notice of this application was printed in the Federal Register and public comment was invited. See 12 C.F.R. § 262.3(g) (1973). During the entire pendency of the Bancshares’ application before the Board, including the four and one-half month comment period, petitioners did not object or ask to be heard.

However, prior to the Bancshares’ application to the Board, petitioners had challenged the validity of the charter issued to O’Fallon Bank in state administrative and judicial proceedings. As a result, before any action was taken on the Bancshares’ application, the Board staff made inquiries concerning the status of the state litigation and acquired specific information regarding the substantive issues of state law involved in that action. It was learned that a state appellate court hearing would not be held on those issues until late 1974. On [1006]*1006April 17, 1974, having all these facts before it, the Board approved the Bancshares application for acquisition of the O’Fallon Bank voting shares.

Six days after this application had been approved, petitioners made their initial contact with the Board. At that time petitioners sought a Board hearing on a state law issue which the Board rejected as having been untimely raised. Petitioners next sought to stay the Board’s approval order pending the outcome of the state litigation, but that motion was denied. On April 30, 1974, the petition to review was filed in this court.

In this appeal Bancshares and O’Fallon Bank have been allowed to intervene as respondents. They, along with the Board, contend that this court is without jurisdiction to hear this appeal. The court also has before it the substantive issues of whether O’Fallon Bank’s allegedly defective incorporation can provide a basis for reversal of a Board order and whether Bancshares acquired O’Fallon Bank voting shares in violation of 12 U.S.C. § 1842. Neither of these issues was raised before the Board.

On the issue of jurisdiction, respondents contend that the doctrine of exhaustion of administrative remedies requires that this appeal be dismissed. We agree and hold that because petitioners did not present their objections to the Bancshares application to the Board, they have not properly exhausted their administrative remedies as required by the Supreme Court in Whitney National Bank v. Bank of New Orleans and Trust Co., 379 U.S. 411, 85 S.Ct. 551, 13 L.Ed.2d 386 (1965); nor are they entitled to a review as “aggrieved parties” under sections 9 and 105 of the Bank Holding Company Act, 12 U.S.C. §§ 1848 and 1850.1 *3

In Whitney National Bank, supra, the Supreme Court examined the statutory grievance procedure under the Bank Holding Company Act of 1956 and held that all issues arising under that Act must be presented to the Federal Reserve Board prior to any judicial review. 379 U.S. at 419^120, 85 S.Ct. 551. The Court specifically found that “[o]pponents of the opening of a new bank by a bank holding company must first attack the arrangement before the Board, subject only to review by the Courts of Appeal.” Id. 379 U.S. at 422, 85 S.Ct. at 558 (emphasis added). The doctrine of exhaustion of administrative remedies was applicable, according to the Court, because of the “specific statutory scheme for obtaining review” contained in the Act. “A rejection of that doctrine would result in unnecessary duplication ■ and conflicting litigation.” Id.

We hold that the language in Whitney National Bank requiring the initial presentation of issues before the Board con[1007]*1007trols the instant case. Petitioners admit that they have not formally raised before the Board either of the substantive issues asserted here. Instead they argue that Whitney National Bank does not require exhaustion of remedies but merely makes clear the fact that Board findings may only be attacked in the courts of appeals. While we admit that the specific facts upon which Whitney National Bank was decided differ from those in the instant case, the Court’s extensive discussion of review procedures and exhaustion under the Bank Holding Company Act is fully applicable here.

In addition, the interpretation we have given to the language in Whitney National Bank is entirely consistent with the Court’s general attitude toward the doctrine of exhaustion of administrative remedies. The underlying principle of this doctrine, as expressed in United States v. Tucker Truck Lines, Inc., 344 U.S. 33, 37, 73 S.Ct. 67, 69, 97 L.Ed. 54 (1952), is that “[s]imple fairness to those who are engaged in the tasks of administration, and to litigants, requires as a general rule that courts should not topple over administrative decisions unless the administrative body not only erred but has erred against objection made at the time appropriate under its practice.” See generally 3 K. Davis, Administrative Law Treatise, §§ 20.01 — .09 (1958 and 1970 Supp.). To allow the bypass of agency expertise would be inefficient and would undermine Congressional intent. Far East Conference v. United States, 342 U.S. 570, 574-575, 72 S.Ct. 492, 96 L.Ed. 576 (1952). See also McGee v. United States, 402 U.S. 479, 484, 91 S.Ct. 1565, 29 L.Ed.2d 47 (1971); McKart v. United States, 395 U.S. 185, 194-195, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969). Thus we are not willing to accept petitioner’s contention that the Court in Whitney National Bank did not intend to require exhaustion of remedies under the Bank Holding Company Act.

We similarly reject petitioner’s suggestion that the Board’s alleged “actual notice” of their objection to the Bancshares application constituted sufficient presentation of issues for exhaustion purposes.

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