388 F.2d 609
Edmund J. MURPHY, Charles A. Nolan, Jr., Dominick J. Eadicicco and James F. Connell, Jr., Plaintiffs-Appellees,
v.
COLONIAL FEDERAL SAVINGS AND LOAN ASSOCIATION, Curtis E. Neumann, Louis Corread, Frederick S. Forde, Charles De Nisco and Joseph Conti, Defendants-Appellants.
No. 185.
Docket 31738.
United States Court of Appeals Second Circuit.
Argued October 26, 1967.
Decided December 11, 1967.
Daniel McNamara, Brooklyn, N.Y., for defendants-appellants.
Marshall G. Kaplan, Brooklyn, N.Y., for plaintiffs-appellees.
Before FRIENDLY, KAUFMAN and ANDERSON, Circuit Judges.
FRIENDLY, Circuit Judge:
The complaint in this action in the District Court for the Eastern District of New York, petitioning for a declaratory judgment and appropriate further relief, 28 U.S.C. §§ 2201, 2202 centers around management's refusal to provide a dissident group with a list of persons eligible to vote for directorships in a federal savings and loan association. The plaintiffs allege that they are "shareholder-depositors" in the defendant, Colonial Federal Savings and Loan Association; that each of them was nominated for director on January 7, 1966; that a demand was made upon the association for a list of persons eligible to vote at the annual meeting on January 19; that the demand was ignored, a motion for adjournment was denied, and the directors proposed by the management were elected and certified. The Association moved to dismiss for lack of federal jurisdiction and failure to state a claim on which relief could be granted; plaintiffs then amended their complaint to add the directors elected at the meeting as defendants and in other respects not here material. Chief Judge Zavatt denied the motion to dismiss but stayed the action pending an application by plaintiffs to the Federal Home Loan Bank Board for an administrative determination pursuant to 12 U. S.C. § 1464(d) (2) (A).
On January 16, 1967, the Home Loan Bank Board adopted a resolution denying the application. A letter from its Assistant Secretary approved by the Board explained this on the highly technical — we are tempted to say hypertechnical — ground that although plaintiffs' right to inspect the list had been judicially established in a case pending in the New York courts at the time of the election and finally determined a month thereafter, Murphy v. Colonial Federal Savings and Loan Ass'n, 17 N.Y.2d 593, 268 N.Y.S.2d 348, 215 N.E.2d 525 (1966); see also Ochs v. Washington Heights Federal Savings and Loan Ass'n, 17 N.Y.2d 82, 268 N.Y.S.2d 294, 215 N. E.2d 485 (1966), the gravamen of their petition to the Board was not that "a right to inspect was sought or denied" but that "a demand was made for a list and was denied," see fn. 2 infra. Nothing daunted, plaintiffs moved for summary judgment. Judge Dooling granted the motion, holding that the complaint raised a question arising under the laws of the United States, 28 U.S.C. § 1331; that the election was unfair because of the denial of plaintiffs' right to be informed of the electorate; and that the negative action of the Home Loan Bank Board did not bar judicial relief. Properly taking note of the problem of jurisdictional amount which apparently had not been raised by anyone, he thought that "perhaps, it sufficiently appears since the matter in controversy is the right to participate effectively in the governance of the Association. Cf. Wahyou v. Central Valley National Bank, 9th Cir. 1966, 361 F.2d 755."
12 U.S.C. § 1464(a) authorizes the Federal Home Loan Bank Board to provide for the organization and operation of federal savings and loan associations "under such rules and regulations as it may prescribe." The Board's regulations, 12 C.F.R. § 544.1(4), provide that members may vote in person or by proxy. Question naturally arises whether a member desiring to enlist the aid of others in an election is entitled to find out who they are. Such an issue, which requires a fleshing out of the Board's regulations, is one of federal law. Cf. Illinois Steel Co. v. B. & O. R.R., 320 U.S. 508, 510, 64 S.Ct. 322, 88 L.Ed. 259 (1944); Federal Reserve Bank etc. v. Atlanta Trust Co., 91 F.2d 283, 285, 117 A.L.R. 1160 (5 Cir. 1937); Durnin v. Allentown Federal Savings and Loan Ass'n, 218 F.Supp. 716 (E.D.Pa.1963). This would become readily apparent if the common law of the state where the association operated denied members a right of inspection; Congress could hardly have intended that the rights of members of federal savings and loan associations to fair elections should vary with quirks of local law.
Appellants are mistaken in contending that federal jurisdiction is forbidden by 28 U.S.C. § 1349 providing that:
"The district courts shall not have jurisdiction of any civil action by or against any corporation upon the ground that it was incorporated by or under an Act of Congress, unless the United States is the owner of more than one-half of its capital stock."
Although on a strictly literal approach, any controversy concerning the interpretation of a federal statute or regulation governing the internal affairs of a federal corporation could be said to be grounded upon federal incorporation, such cases were not at all the "mischief and defect" at which the statute, § 12 of the Judges' Bill of 1925, 43 Stat. 936, 941, was aimed. The purpose rather was to stem "the flood of litigation to which the federal courts were * * * subjected" as a result of the decision in Pacific Railroad Removal Cases, 115 U.S. 1, 5 S.Ct. 1113, 29 L.Ed. 319 (1885), that every action by or against a federal corporation presented a federal question, see Hart & Wechsler, The Federal Courts and the Federal System, pp. 730, 752 (1953), by generalizing the earlier legislation, 38 Stat. 803 (1915), which had prohibited railway corporations from resorting to the federal courts because of a federal charter. As Mr. Justice Van Devanter explained to the Senate Judiciary Committee, the bill extended "the railroad section so as to cover any kind of Federal corporation. If there happens to be some other ground for taking the case into a federal court, it can go there. But federal incorporation alone is not enough." Frankfurter & Landis, The Business of the Supreme Court, 272-273, fn. 55 (1927). It is immaterial that the state courts also may deal with the internal affairs of federal savings and loan associations, as the New York courts did in the cases cited above; when they do this, they are nonetheless applying federal law. See Local 174, Teamsters etc. v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962).
Since the district court was plainly right in holding that an election of directors in which the opposition is deprived of any reasonable opportunity to ascertain the names and addresses of electors known to the management was unfair under federal law, we pass to appellants' contention that the Home Loan Bank Board's resolution denying the petition precluded judicial relief.
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388 F.2d 609
Edmund J. MURPHY, Charles A. Nolan, Jr., Dominick J. Eadicicco and James F. Connell, Jr., Plaintiffs-Appellees,
v.
COLONIAL FEDERAL SAVINGS AND LOAN ASSOCIATION, Curtis E. Neumann, Louis Corread, Frederick S. Forde, Charles De Nisco and Joseph Conti, Defendants-Appellants.
No. 185.
Docket 31738.
United States Court of Appeals Second Circuit.
Argued October 26, 1967.
Decided December 11, 1967.
Daniel McNamara, Brooklyn, N.Y., for defendants-appellants.
Marshall G. Kaplan, Brooklyn, N.Y., for plaintiffs-appellees.
Before FRIENDLY, KAUFMAN and ANDERSON, Circuit Judges.
FRIENDLY, Circuit Judge:
The complaint in this action in the District Court for the Eastern District of New York, petitioning for a declaratory judgment and appropriate further relief, 28 U.S.C. §§ 2201, 2202 centers around management's refusal to provide a dissident group with a list of persons eligible to vote for directorships in a federal savings and loan association. The plaintiffs allege that they are "shareholder-depositors" in the defendant, Colonial Federal Savings and Loan Association; that each of them was nominated for director on January 7, 1966; that a demand was made upon the association for a list of persons eligible to vote at the annual meeting on January 19; that the demand was ignored, a motion for adjournment was denied, and the directors proposed by the management were elected and certified. The Association moved to dismiss for lack of federal jurisdiction and failure to state a claim on which relief could be granted; plaintiffs then amended their complaint to add the directors elected at the meeting as defendants and in other respects not here material. Chief Judge Zavatt denied the motion to dismiss but stayed the action pending an application by plaintiffs to the Federal Home Loan Bank Board for an administrative determination pursuant to 12 U. S.C. § 1464(d) (2) (A).
On January 16, 1967, the Home Loan Bank Board adopted a resolution denying the application. A letter from its Assistant Secretary approved by the Board explained this on the highly technical — we are tempted to say hypertechnical — ground that although plaintiffs' right to inspect the list had been judicially established in a case pending in the New York courts at the time of the election and finally determined a month thereafter, Murphy v. Colonial Federal Savings and Loan Ass'n, 17 N.Y.2d 593, 268 N.Y.S.2d 348, 215 N.E.2d 525 (1966); see also Ochs v. Washington Heights Federal Savings and Loan Ass'n, 17 N.Y.2d 82, 268 N.Y.S.2d 294, 215 N. E.2d 485 (1966), the gravamen of their petition to the Board was not that "a right to inspect was sought or denied" but that "a demand was made for a list and was denied," see fn. 2 infra. Nothing daunted, plaintiffs moved for summary judgment. Judge Dooling granted the motion, holding that the complaint raised a question arising under the laws of the United States, 28 U.S.C. § 1331; that the election was unfair because of the denial of plaintiffs' right to be informed of the electorate; and that the negative action of the Home Loan Bank Board did not bar judicial relief. Properly taking note of the problem of jurisdictional amount which apparently had not been raised by anyone, he thought that "perhaps, it sufficiently appears since the matter in controversy is the right to participate effectively in the governance of the Association. Cf. Wahyou v. Central Valley National Bank, 9th Cir. 1966, 361 F.2d 755."
12 U.S.C. § 1464(a) authorizes the Federal Home Loan Bank Board to provide for the organization and operation of federal savings and loan associations "under such rules and regulations as it may prescribe." The Board's regulations, 12 C.F.R. § 544.1(4), provide that members may vote in person or by proxy. Question naturally arises whether a member desiring to enlist the aid of others in an election is entitled to find out who they are. Such an issue, which requires a fleshing out of the Board's regulations, is one of federal law. Cf. Illinois Steel Co. v. B. & O. R.R., 320 U.S. 508, 510, 64 S.Ct. 322, 88 L.Ed. 259 (1944); Federal Reserve Bank etc. v. Atlanta Trust Co., 91 F.2d 283, 285, 117 A.L.R. 1160 (5 Cir. 1937); Durnin v. Allentown Federal Savings and Loan Ass'n, 218 F.Supp. 716 (E.D.Pa.1963). This would become readily apparent if the common law of the state where the association operated denied members a right of inspection; Congress could hardly have intended that the rights of members of federal savings and loan associations to fair elections should vary with quirks of local law.
Appellants are mistaken in contending that federal jurisdiction is forbidden by 28 U.S.C. § 1349 providing that:
"The district courts shall not have jurisdiction of any civil action by or against any corporation upon the ground that it was incorporated by or under an Act of Congress, unless the United States is the owner of more than one-half of its capital stock."
Although on a strictly literal approach, any controversy concerning the interpretation of a federal statute or regulation governing the internal affairs of a federal corporation could be said to be grounded upon federal incorporation, such cases were not at all the "mischief and defect" at which the statute, § 12 of the Judges' Bill of 1925, 43 Stat. 936, 941, was aimed. The purpose rather was to stem "the flood of litigation to which the federal courts were * * * subjected" as a result of the decision in Pacific Railroad Removal Cases, 115 U.S. 1, 5 S.Ct. 1113, 29 L.Ed. 319 (1885), that every action by or against a federal corporation presented a federal question, see Hart & Wechsler, The Federal Courts and the Federal System, pp. 730, 752 (1953), by generalizing the earlier legislation, 38 Stat. 803 (1915), which had prohibited railway corporations from resorting to the federal courts because of a federal charter. As Mr. Justice Van Devanter explained to the Senate Judiciary Committee, the bill extended "the railroad section so as to cover any kind of Federal corporation. If there happens to be some other ground for taking the case into a federal court, it can go there. But federal incorporation alone is not enough." Frankfurter & Landis, The Business of the Supreme Court, 272-273, fn. 55 (1927). It is immaterial that the state courts also may deal with the internal affairs of federal savings and loan associations, as the New York courts did in the cases cited above; when they do this, they are nonetheless applying federal law. See Local 174, Teamsters etc. v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962).
Since the district court was plainly right in holding that an election of directors in which the opposition is deprived of any reasonable opportunity to ascertain the names and addresses of electors known to the management was unfair under federal law, we pass to appellants' contention that the Home Loan Bank Board's resolution denying the petition precluded judicial relief. Chief Judge Zavatt properly stayed the action pending application to the Board under 12 U.S.C. § 1464(d) (2) (A), when he found that this recently enacted provision authorized the agency to issue a notice of charges both in the case of the election, compare Reich v. Webb, 336 F.2d 153 (9 Cir. 1964), and in that of the refusal to allow inspection of a membership list. Far East Conference v. United States, 342 U.S. 570, 574-575, 72 S.Ct. 492, 96 L. Ed. 576 (1952). But this section permits the Board to use its discretion in deciding whether or not to act on an application for relief, and does not suggest that its refusal to issue a notice of charges would prevent a complainant from seeking judicial relief that would be otherwise obtainable. The argument that the plaintiffs are barred thus must rest on a construction of two other parts of § 1464 also enacted in 1966. Section 1464(d) (7) (B), quoted in the margin, provides for review of the Board's cease and desist orders in the courts of appeals, but is silent as to review of the Board's refusal to institute a proceeding, and § 1464(d) (8) states that "except as otherwise provided in this subsection no court shall have jurisdiction to affect by injunction or otherwise the issuance or enforcement of any notice or order under this subsection, or to review, modify, suspend, terminate, or set aside any such notice or order." Although both provisions regulate judicial review only when the Board has issued a cease and desist order, Colonial's argument would require us to infer from this statutory framework a congressional intention to preclude citizens from exercising their ordinary judicial remedies. The impropriety of any such construction appears a fortiori from decisions that provision for review of certain types of federal administrative action does not without more prevent review of other types under the general equity jurisdiction of the district courts. Stark v. Wickard, 321 U.S. 288, 307-308, 64 S.Ct. 559, 88 L.Ed. 733 (1944); Toilet Goods Ass'n v. Gardner, 360 F.2d 677, 683-684 (2 Cir. 1966), aff'd 387 U.S. 167, 87 S.Ct. 1526, 18 L.Ed.2d 704 (1967), and Abbott Laboratories v. Gardner, 387 U.S. 136, 139-141, 87 S.Ct. 1507, 18 L.Ed. 2d 681 (1967); cf. Fahey v. Mallonee, 332 U.S. 245, 256, 67 S.Ct. 1552, 91 L.Ed. 2030 (1947). Moreover, a consideration of the legislative history of the Financial Institutions Supervisory Act, of which the amendments were a part, demonstrates that the proposed interpretation would be inconsistent with the reasons for enactment of the statute. That history makes Congress' central concern clear — "The Federal supervisory agencies in varying degrees have been seriously handicapped in their efforts to prevent irresponsible and undesirable practices by deficiencies in the statutory remedies. Experience has often demonstrated that the remedies now available to the Federal supervisory agencies are not only too drastic for use in many cases, but are also too cumbersome to bring about prompt correction and promptness is very often vitally important." Sen.Rep. No. 1482, 89th Cong., 2d Sess. (1966), 3 U.S.Code Cong. & Ad.News, pp. 3532, 3537 (1966). With the need for speed in view, Congress carefully limited the occasions on which judicial control of administrative action was procurable, see also 12 U.S.C. § 1464(d) (3) (B). Its effort to create an effective system of sanctions would be hampered rather than forwarded by reading these provisions to paralyze the judiciary when the agency has refused to act.
The question of jurisdictional amount is more difficult than the judge thought. For reasons indicated in the margin, if 28 U.S.C. § 1331 were the only source of federal jurisdiction, we should be obliged to remand for further findings, as we did in Wolff v. Selective Service Local Board No. 16, 372 F.2d 817, 826 (2 Cir. 1967), whether the requisite monetary interest could be shown. However, 28 U.S.C. § 1337, which does not require a monetary minimum in "any proceeding arising under any Act of Congress regulating commerce," provides an alternative source of jurisdiction. As stated in Professor Bunn's influential book on Jurisdiction and Practice of the Courts of the United States 71-72 (1949), although when "the words were used in 1911 `acts regulating commerce' pretty clearly meant `The Act to Regulate Commerce,'" the phrase had come to mean "all acts whose constitutional basis is the commerce clause." See Imm v. Union Railroad Co., 289 F.2d 858 (3d Cir. 1961) (Goodrich, J.), citing many decisions of the past several decades, see 289 F.2d at 860 fn. 3. Commentators have unanimously approved this liberal construction, since the amount involved is normally of little relevance to the desirability of federal jurisdiction in federal question cases. See ALI Study of the Division of Jurisdiction Between State and Federal Courts 200-203 (4th tent. draft 1966); Wright, Federal Courts 92 (1963); Friedenthal, New Limitations on Federal Jurisdiction, 11 Stan.L.Rev. 213, 217-218 (1959); Wechsler, Federal Jurisdiction and the Revision of the Judicial Code, 13 Law and Contemporary Problems 216, 225-26 (1948). The broad construction that had been given § 1337 was inferentially approved by the 1958 Congress that raised the jurisdictional amount in federal question and diversity cases to $10,000 — "While this bill applies the $10,000 minimum limitation to cases involving Federal questions, its effect will be greater on diversity cases since many of the so-called Federal question cases will be exempt from its provisions. This is for the reason that Federal courts are expressly given original jurisdiction without limitation as to the amount claimed in a great many areas of Federal law. * * * When all of these types of cases are eliminated, the only significant categories of `Federal question' cases subject to the jurisdictional amount are suits under the Jones Act and suits contesting the constitutionality of State statutes. In both of these types of cases the amount claimed usually exceeds $10,000." S.Rep. No. 1830, 85th Cong., 2d Sess., 2 U.S.Code Cong & Ad.News 3099, 3103 (1958).
It is true that federal regulation of finance is not grounded in the commerce power alone. As Chief Justice Hughes explained in Norman v. B. & O. R.R., 294 U.S. 240, 303, 55 S.Ct. 407, 414, 79 L.Ed. 885 (1935):
The broad and comprehensive national authority over the subjects of revenue, finance and currency is derived from the aggregate of the powers granted to the Congress, embracing the powers to lay and collect taxes, to borrow money, to regulate commerce with foreign nations and among the several states, to coin money, regulate the value thereof, and of foreign coin, and fix the standards of weights and measures, and the added express power "to make all laws which shall be necessary and proper for carrying into execution" the other enumerated powers.
See also McCulloch v. State of Maryland, 17 U.S. (4 Wheat.) 316, 406, 4 L.Ed. 579 (1819). But to found jurisdiction upon § 1337, it is not requisite that the commerce clause be the exclusive source of Federal power; it suffices that it be a significant one. And whether or not a distinction between §§ 1331 and 1337 is called for when the federal law invoked as a basis for jurisdiction is wholly non-statutory save in the sense that the authority for its creation lies in the Constitution, a treaty, or act of Congress — a point ventilated but not decided in T. B. Harms Co. v. Eliscu, 339 F.2d 823, 828 (2 Cir.), cert. denied, 381 U.S. 915, 85 S.Ct. 1534, 14 L.Ed.2d 435 (1965), and McFaddin Express, Inc. v. Adley Corp., 346 F.2d 424, 427 (2 Cir. 1965), cert. denied, 382 U.S. 1026, 86 S.Ct. 643, 15 L.Ed.2d 539 (1966) — here the federal law asserted as the basis for jurisdiction is a regulation adopted by a government agency under authority of an "Act of Congress."
The judgment is affirmed.