928 F.2d 994
59 USLW 2590
GUARANTY FINANCIAL SERVICES, INC., and Guaranty Federal
Savings Bank, Plaintiffs-Appellees,
v.
T. Timothy RYAN, Director, Office of Thrift Supervision, in
his official capacity and as successor in interest to the
Federal Home Loan Bank Board, and Federal Deposit Insurance
Corporation in its own capacity and as successor in interest
to the Federal Savings and Loan Insurance Corporation,
Defendants-Appellants.
No. 90-8773.
United States Court of Appeals,
Eleventh Circuit.
March 25, 1991.
Frank L. Butler, III, Asst. U.S. Atty., Macon, Ga., Jacob Lewis, Washington, D.C., for Dept. of Justice.
Aaron B. Kahn, Office of Thrift Supervision, Washington, D.C., for F.D.I.C.
F. Lane Heard, III, Williams & Connolly, Washington, D.C., Tracy Greer, Roy N. Cowart, Cowart & Varner, Warner-Robins, Ga., for plaintiffs-appellees.
Edward M. Selfe, Birmingham, Ala., William L. Gardner, Morgan, Lewis & Bockius, Washington, D.C., for amicus curiae, Secor Bank.
Appeal from the United States District Court for the Middle District of Georgia.
Before COX and BIRCH, Circuit Judges, and GIBSON, Senior Circuit Judge.
COX, Circuit Judge:
This case is an appeal by the Office of Thrift Supervision (OTS) and the Federal Deposit Insurance Corporation (FDIC) of a preliminary injunction that, among other things, prevents the agencies from excluding an intangible asset called supervisory goodwill from the regulatory capital computation for Guaranty Federal Savings Bank. Because we hold that the district court mistakenly concluded that the plaintiffs had a substantial likelihood of success on the merits, we reverse.
I. BACKGROUND
Houston Federal Savings and Loan Association (Houston Federal) was a mutual savings and loan association based in Warner Robins, Georgia. It received a federal charter in 1981. In 1985, a new officer at Houston Federal discovered a series of questionable consumer loans that were expected to generate substantial losses. In 1986 Houston Federal reported a negative net worth.
In 1987 Houston Federal and Guaranty Financial Services, Inc. (Guaranty Financial) submitted an application to the Federal Home Loan Bank Board (the Bank Board) for approval of what is called a supervisory conversion. The application proposed that Houston Federal be converted to a stock association and merged into Guaranty Federal Savings Bank (Guaranty Federal), a federal stock savings bank, and that Guaranty Federal simultaneously be acquired by Guaranty Financial. Guaranty Financial was a holding company that would hold all the stock of Guaranty Federal and contribute $1 million in capital by purchasing Guaranty Federal common stock. Houston Federal's directors would own one-third of the stock of Guaranty Financial.
In December 1987, the Federal Savings and Loan Insurance Corporation (FSLIC) and the Bank Board approved the application subject to certain conditions. In January 1988, Guaranty Financial and the FSLIC entered into a written agreement entitled "Regulatory Capital Maintenance/Dividend Agreement" (the Capital Maintenance Agreement). This Agreement referred to and had attached to it a letter in which the FSLIC and the Bank Board agreed to grant Guaranty five forbearances, one of which related to accounting requirements concerning what is called "supervisory goodwill." The letter stated that "[f]or purposes of reporting to the Board, the value of any intangible asset resulting from the application of push-down accounting in accounting for the purchase, may be amortized by Guaranty Federal over a period not to exceed (25) years by the straight line method." The parties agree that this provision allowed amortization of supervisory goodwill over a twenty-five year period.
In mergers and acquisitions using the purchase method of accounting, when the purchase is being recorded using push-down accounting (a method by which the acquisition of a subsidiary is shown on the books of the subsidiary), the book value of the acquired thrift's assets and liabilities are adjusted to fair market value at the time of the acquisition. To the extent that fair market value of the acquired liabilities is more than the fair market value of the acquired assets, that difference is recorded as goodwill--an intangible asset that may be amortized over a period of years. The goodwill created in connection with mergers and acquisitions supervised by the FSLIC and the Bank Board is known as supervisory goodwill.
Following the supervisory conversion, Guaranty Federal had a negative tangible net worth. This was anticipated by the FSLIC and the Bank Board. Only by treating supervisory goodwill as capital for regulatory purposes could Guaranty Federal have been deemed a solvent institution. Treating this supervisory goodwill as capital, its net worth immediately after the conversion was more than $1 million.
In August 1989, Congress enacted the Financial Institutions Reform, Recovery and Enforcement Act (FIRREA), Pub.L. No. 101-73, 103 Stat. 183 (1989) (codified in scattered sections of 12 U.S.C.A.), making significant changes in the regulation of federally chartered and insured savings and loan institutions. Among other things, FIRREA abolished the FSLIC, transferring its functions to other agencies, and abolished the Bank Board, replacing it with the Office of Thrift Supervision (OTS), an office within the Department of the Treasury.
Section 301, Sec. 5(t)(3)(A) of FIRREA set in motion the events that led to this lawsuit. It provides that the use of supervisory goodwill in calculating core capital must be completely phased out by January 1, 1995. 12 U.S.C.A. Sec. 1464(t)(3)(A) (Supp.1990). Moreover, during that phase-out period goodwill must be amortized over no more than twenty years; in other words, the thrift must remove at least one-twentieth of its supervisory goodwill from its capital base and charge it against its profits each year. Id. Sec. 1464(t)(9)(B). The OTS, as the agency charged with enforcing the statute, interpreted these requirements as applying to all thrifts not specifically exempted by FIRREA. The OTS thus determined to enforce the new requirements even against institutions, such as Guaranty Federal, that had obtained capital and accounting forbearances pursuant to supervisory conversion agreements, since FIRREA makes no explicit exception for thrifts with such agreements. Thrift Bulletin 38-2 (Jan. 9, 1990), see R.1-6 (exhibit F).
Unable to include goodwill as capital for purposes of reporting to the OTS, Guaranty Federal was not able to meet its minimum capital requirements. As of December 1989, Guaranty Federal had approximately $2.7 million in unamortized supervisory goodwill on its books. The bank submitted a capital enhancement plan in January 1990, and a revised plan in February. Pending review of the plan, the OTS prohibited Guaranty Federal from growing beyond net interest credited, making capital distributions, or acting inconsistently with any other operational restrictions dictated by the OTS. See 12 C.F.R. Sec. 567.10(a)(3) (1990). Without approving or disapproving the plan, the OTS advised the Guaranty Federal Board of Directors in March 1990 that "Guaranty Federal is deemed to be insolvent" and directed that "Guaranty Federal may not increase its liabilities or make any new loans or investments without the prior written approval of the District Director." In June 1990 the OTS informed Guaranty Federal that it was preparing to send a "consent to merge" letter calling upon the bank to authorize the OTS to sell or merge the bank. This lawsuit followed.
II. PROCEEDINGS IN THE DISTRICT COURT
Guaranty Federal and Guaranty Financial (hereafter referred to collectively as "Guaranty" except where indicated otherwise) responded to the position taken by the OTS by filing in the district court in July 1990 an action for a declaratory judgment and injunctive relief. The complaint alleged, among other things, that the refusal of the defendant agencies to honor the agreement made by their predecessor agencies to allow Guaranty to treat supervisory goodwill as capital constituted a breach of contract and a taking of property without due process and just compensation, was barred by principles of estoppel, and in any event violated FIRREA.
Following a hearing on Guaranty's application for a preliminary injunction, the district court concluded that there was a substantial likelihood that Guaranty would prevail on the merits on its contract and estoppel claims. The court found that the forbearance agreement was an integral part of the conversion agreement and that the $1 million investment made by the plaintiffs would not have been made in the absence of the forbearance agreement. The court assumed that the forbearance agreement was a contract that created rights, duties and obligations protected by the savings provision found in Section 401(g) of FIRREA. Finding that the other requisites for injunctive relief had also been met, the district court entered a preliminary injunction prohibiting the OTS and the FDIC "from requiring that plaintiffs execute a consent to merge agreement and from excluding the amortization of supervisory goodwill from any and all determinations of the plaintiff institution's capitalization as set out in the forbearance agreement." Guaranty Fin. Servs. v. Director, Office of Thrift Supervision, 742 F.Supp. 1159, 1163 (M.D.Ga.1990).
III. PRELIMINARY INJUNCTION
In order to grant a preliminary injunction, a district court must find the following:
(1) a substantial likelihood that plaintiff will prevail on the merits, (2) a substantial threat that plaintiff will suffer irreparable injury if the injunction is not granted, (3) that the threatened injury to plaintiff outweighs the threatened harm the injunction may do to the defendant, and (4) that granting the preliminary injunction will not disserve the public interest.
United States v. Lambert, 695 F.2d 536, 539 (11th Cir.1983) (quoting Canal Auth. v. Callaway, 489 F.2d 567, 572 (5th Cir.1974)).
We review the district court's decision to grant the preliminary injunction for abuse of discretion, but if the court misapplied the law in making its decision we do not defer to its legal analysis. Tally-Ho, Inc. v. Coast Community College Dist., 889 F.2d 1018, 1020 (11th Cir.1989); E. Remy Martin & Co. v. Shaw-Ross Int'l Imports, 756 F.2d 1525, 1529 (11th Cir.1985). See also United States v. Jefferson County, 720 F.2d 1511, 1520 n. 21 (11th Cir.1983) ("where a preliminary injunction has been granted based on an error of law even as to one of the four prerequisites, the injunction must fall because the movant has not met his burden of persuasion on all four counts") (emphasis omitted).
IV. DISCUSSION
Guaranty successfully argued to the district court that it had made a contract with the Bank Board and the FSLIC that gave it the right to treat supervisory goodwill as regulatory capital for twenty-five years, and because Section 401(g) of FIRREA provides that the abolition of the Bank Board and the FSLIC "shall not affect the validity of any right, duty or obligation of the United States, the Federal Home Loan Bank Board, or any other person," 12 U.S.C.A. Sec. 1437 note (Supp.1990), the OTS has breached the contract by applying its new regulations to Guaranty. Guaranty contends that it contracted with the agencies to contribute $1,000,000 and save a failing thrift, thus relieving the government and the taxpayers of the necessity of liquidating it and further depleting an already insolvent insurance fund. In return, the agencies committed themselves to allow Guaranty to treat the supervisory goodwill created by the conversion as regulatory capital for twenty-five years so that Guaranty would have sufficient time to revive the ailing thrift and make a profit.
This contract, according to Guaranty, was embodied in five separate documents, which it calls the "conversion agreement": the letter from the agencies approving the conversion, the forbearance letter, the tax certification letter (attesting that Houston Federal was legitimately insolvent), the subscription agreement (providing that Guaranty Federal would buy all the stock of the new institution for $1,000,000), and the Capital Maintenance Agreement (providing among other things that the investors would maintain the new institution's capital at levels required by regulations).
The agencies, on the other hand, argue that the forbearance letter represents a voluntary, revocable decision by the government not to exercise regulatory authority. They contend that the letter confers on Guaranty no binding right to any specific treatment of supervisory goodwill. The agencies point out that several provisions in the Capital Maintenance Agreement specifically warn Guaranty that the regulations underlying the agreement may be changed, resulting in a change in Guaranty's obligations.
While the parties in this case expend considerable energy arguing whether the conversion agreement documents constitute a contract, we need not struggle with the issue. Article VI(B) of the Capital Maintenance Agreement provides, "This Agreement shall be deemed a contract made under and governed by Federal law." We assume without deciding that the agencies did indeed make a contract with Guaranty.
A. Contract Interpretation
Assuming, however, that a contract was made, we must still determine what the contract means. We must decide if Guaranty's contract with the agencies prevents the agencies from enforcing FIRREA's new capital standards against Guaranty.
In interpreting the contract we steer by two stars: (1) general principles of contractual interpretation, and (2) a special rule of construction applicable when a contract purports to bind the sovereign. Both courses lead us to the same destination: Guaranty's contract with the agencies allows the agencies to change the regulations, even if those changes adversely affect Guaranty.
Several parts of the Agreement that Guaranty signed warn that the regulatory scheme may be changed to Guaranty's detriment. Article I(D) of the Agreement provides, " 'Regulatory Capital' means regulatory capital defined in accordance with 12 C.F.R. Sec. 561.13 or any successor regulation thereto " (emphasis added). Article I(E) provides that " 'Regulatory Capital Requirement' means the Institution's Regulatory capital requirement at a given time computed in accordance with 12 C.F.R. Sec. 563.13(b), or any successor regulation thereto * " (emphasis added). The asterisk directs the reader to a note at the bottom of the page that reads, "See Exhibit A, FHLBB forbearance letter, dated December 29, 1987." Finally, Article VI(D) provides that "All references to regulations of the Board or the FSLIC used in this Agreement shall include any successor regulation thereto, it being expressly understood that subsequent amendments to such regulations may be made and that such amendments may increase or decrease the Acquiror's obligation under this Agreement " (emphasis added).
Most of Guaranty's argument is bottomed on a provision in the forbearance letter incorporated into the agreement by the asterisk in Article I(E). The letter begins, "In connection with the approval to convert from a federally chartered mutual savings and loan association to a federally chartered stock savings bank ... the following forbearances are hereby granted." The third forbearance concerns the treatment of supervisory goodwill: "For purposes of reporting to the Board, the value of any intangible asset resulting from the application of push-down accounting in accounting for the purchase may be amortized by Guaranty Federal for a period not to exceed (25) years by the straight-line method."
Guaranty argues that this provision confers upon it an irrevocable right to treat supervisory goodwill as regulatory capital for twenty-five years. Absent an explicit congressional abrogation of this contractual right, it contends, the agencies may not withdraw from Guaranty its bargained-for accounting privilege.
Guaranty's interpretation of the forbearance provision is in direct conflict with the contract provisions that expressly provide that regulations may be changed. Article VI(D) unmistakably warns Guaranty that its obligations under the contract may be increased by subsequent regulation.
Under general principles of contractual interpretation, "a contract should be construed so as to give effect to all the contract's provisions. Similarly, if two clauses of a contract appear to be in conflict, the preferred interpretation is the one that gives a 'harmonious interpretation' to the clauses." Johnson Controls, Inc. v. City of Cedar Rapids, 713 F.2d 370, 374 (8th Cir.1983) (citation and footnote omitted; cases cited).
We interpret the forbearance provision to mean that the agencies would allow Guaranty to treat supervisory goodwill as regulatory capital so long as the regulatory remained as it was when the contract was signed. The agencies, in other words, granted Guaranty an exception to the rules of the game, and promised that the exception would be valid so long as the rules stayed the same. But the agencies, at the same time they made that promise, also unambiguously warned Guaranty that the rules might later change to Guaranty's detriment. By signing the contract, Guaranty took that chance, in effect wagering the chance that the rules would be changed against the potential return if they were not. This interpretation, unlike Guaranty's, harmonizes the various provisions of the contract instead of placing them in conflict, and is therefore preferable to Guaranty's reading. "[A]n interpretation that gives a reasonable meaning to all parts of the contract will be preferred to one that leaves portions meaningless; nor should any provision be construed as being in conflict with another unless no other reasonable interpretation is possible." United States v. Johnson Controls, Inc., 713 F.2d 1541, 1555 (Fed.Cir.1983); see also Heryford v. Davis, 102 U.S. 235, 245, 26 L.Ed. 160 (1880) ("This part of the contract is to be construed with the other provisions so that if possible, or so far as is possible, they may all harmonize").
Furthermore, our construction of this contract is supported by the Supreme Court's decision in Bowen v. Public Agencies Opposed to Social Security Entrapment, 477 U.S. 41, 106 S.Ct. 2390, 91 L.Ed.2d 35 (1986). In that case the state of California and employees of its agencies sued to block implementation of an amendment to the Social Security Act that revoked a state's prior right to withdraw its participation in the social security system once it had voluntarily joined. The state contended that the agreement by which it joined conferred upon it the right to withdraw under certain conditions, and that right constituted a property right that could not be revoked by the United States without the payment of just compensation. Id. at 49, 106 S.Ct. at 2395.
The Supreme Court disagreed, holding that the district court's opinion blocking implementation of the amendment "heeded none of [the] Court's often-repeated admonitions that contracts should be construed, if possible, to avoid foreclosing exercise of sovereign authority." Id. at 52-53, 106 S.Ct. at 2397. The Court found it significant that Section 1104 of the Social Security Act reserves to Congress the "right to alter, amend or repeal any provision" of the Act: "The State accepted the Agreement under an Act that contained the language of reservation. That language expressly notified the State that Congress retained the power to amend the law under which the Agreement was executed and by amending that law to alter the Agreement itself." Id. at 54, 106 S.Ct. at 2397-98.
Like the Social Security Act in Bowen, the contract we interpret here contains express language of reservation. Just as California had express notice that "Congress retained the power to amend the law under which the Agreement was executed and by amending that law to alter the Agreement itself," Bowen, 477 U.S. at 54, 106 S.Ct. at 2397-98, Article VI(D) of the capital maintenance agreement (as well as Articles I(D) and (E)) gave Guaranty express notice that the regulatory scheme could change and therefore alter Guaranty's obligations under the Agreement. In fact, in Bowen the Supreme Court thought it proper to require California to look outside the language of its agreement, to the underlying Social Security Act, for the state's warning that its obligations under the agreement might change. Guaranty's warning is even more open, unambiguously expressed in the agreement it signed.
We are further guided in our interpretation by the context in which this contractual dispute arises. According to the Supreme Court, its admonitions against construing a contract to deprive the sovereign of authority "take on added force when the arrangement pursuant to which the Government is claimed to have surrendered a sovereign power is one that serves to implement a comprehensive social welfare program affecting millions of individuals throughout our Nation." Bowen, 477 U.S. at 53, 106 S.Ct. at 2397. The structure and purpose of federal regulation of the savings and loan industry is just such a program. Like many of our social welfare programs, extensive federal regulation of savings and loan institutions was born of the Great Depression, which "spurred the reformation of the thrift industry into a federally-conceived and assisted system to provide citizens with affordable housing funds." H.R.Rep. No. 54, 101st Cong., 1st Sess., pt. 1, at 292 (1989), reprinted in 1989 U.S.Code Cong. & Admin.News 86, 88. Contracts related to such programs should not lightly be construed to deprive the sovereign of the ability to work changes in those programs when it sees fit.
In deciding whether the contract between Guaranty and the agencies confers upon Guaranty a fixed right to treat supervisory goodwill as regulatory capital or a revocable one, therefore, we apply "the rule of construction laid down by the Supreme Court, that one who wishes to obtain a contractual right against the sovereign that is immune from the effect of future changes in law must make sure that the contract confers such a right in unmistakable terms." Western Fuels-Utah v. Lujan, 895 F.2d 780, 789 (D.C.Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 47, 112 L.Ed.2d 24 (1990); accord Great Lakes Higher Educ. Corp. v. Cavazos, 911 F.2d 10, 16 & n. 13 (7th Cir.1990); Education Assistance Corp. v. Cavazos, 902 F.2d 617, 629 (8th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 246, 112 L.Ed.2d 205 (1990). Applying this rule of construction, we conclude that the contract between Guaranty and the agencies did not give Guaranty an unmistakable right to treat supervisory goodwill as regulatory capital for twenty-five years. Rather, we interpret the contract to mean that Guaranty had the right to treat its goodwill as regulatory capital and amortize it over a twenty-five year period for so long as the statutes and regulations governing the area remained as they were when the agreement was signed.
B. Statutory Interpretation
We have concluded that the contract between Guaranty and the agencies reserved to Congress and the agencies the right to change the regulatory scheme in a way that changes Guaranty's obligations. We must now address Guaranty's argument that Congress has not abrogated Guaranty's rights under the Agreement, irrespective of their right to do so.
The OTS, acting pursuant to statutory mandate, has promulgated regulations under FIRREA. The OTS's regulation on the phase-out of supervisory goodwill is merely a copy of the schedule in Section 301, Sec. 5(t)(3)(A) of FIRREA. 12 C.F.R. Sec. 567.5(a) (Supp.1990). However, the OTS's interpretation of that regulation adds something not clearly spelled out on the face of the statute. The OTS interprets FIRREA to require that all thrifts adhere to the phase-out schedule in Section 301, Sec. 5(t)(3)(A), even those such as Guaranty that have capital or accounting forbearances relating to supervisory goodwill. See Thrift Bulletin 38-2 (Jan. 9, 1990).
Guaranty contends that the OTS may not enforce such an interpretation because FIRREA includes a savings provision, Section 401(g), that clearly protects "any right, duty or obligation" enforceable by or against the Bank Board. 12 U.S.C.A. Sec. 1437 note (Supp.1990). According to Guaranty, this savings provision demonstrates the congressional intent that capital or accounting forbearance agreements not be abrogated. Because Congress intended that Section 401(g) protect those contracts, Guaranty argues, the OTS cannot promulgate regulations that abrogate those contracts.
The Supreme Court has explained clearly the process by which we review administrative constructions of statutes:
When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.
Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984) (footnotes omitted). In a footnote the Court explains that to uphold an agency interpretation a reviewing court need not conclude that the agency's interpretation was the only one possible, or even the one the court might have chosen. Id. at 843 n. 11, 104 S.Ct. at 2782 n. 11.
Following the Supreme Court's method, therefore, we must first determine whether "Congress has ... directly addressed the precise question at issue," Id. at 843, 104 S.Ct. at 2782--whether the supervisory goodwill phase-out abrogates even contractual forbearances, or whether such agreements are saved by Section 401(g). If Congress provides a clear answer, we enforce it; if it does not, "the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id.
The first step in statutory construction is to look at the words of the statute. Section 301, Sec. 5(t)(3)(A) of FIRREA specifically addresses the treatment of supervisory goodwill. The section reads as follows:
(3) Transition rule
(A) Certain qualifying supervisory goodwill included in calculating core
capital
Notwithstanding paragraph (9)(A), an eligible savings association may include
qualifying supervisory goodwill in calculating core capital. The amount of
qualifying supervisory goodwill that may be included may not exceed the
applicable percentage of total assets set forth in the following table:
For the following period: The applicable
percentage
is:
Prior to January 1, 1992 ............................. 1.500 percent
January 1, 1992December 31, 1992 .................... 1.000 percent
January 1, 1993December 31, 1993 .................... 0.750 percent
January 1, 1994December 31, 1994 .................... 0.375 percent
Thereafter ............................................... 0 percent