The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BANK OF LOUISIANA, ET AL., CIVIL ACTION
v. NO. 20-1697
FEDERAL DEPOSIT INSURANCE CORPORATION SECTION “F”
ORDER AND REASONS
“If at first you don’t succeed, Try, try again.”1
In a renewed quest to avail themselves of this Court’s subject
matter jurisdiction, that’s precisely what the plaintiffs have
done here. Unfortunately for them, their repackaged allegations
and inapposite Supreme Court developments notwithstanding, their
present attempt fares no better than those of yesteryear.
In recognition of that reality, the defendant has dutifully
brought another motion to dismiss under Federal Rule of Civil
Procedure 12(b)(1). For the reasons that follow, the motion is
GRANTED.
1 THOMAS H. PALMER, THE TEACHER’S MANUAL (1840).
1
Background
The plaintiffs are the Bank of Louisiana and three individuals
involved in the Bank’s operations. In the instant complaint, the
plaintiffs make two demands for relief: first, they urge the Court
to vacate an April 21, 2020 order of the FDIC Board requiring the
Bank to cease and desist from a variety of questionable practices
and to pay a civil penalty of $500,000; and second, they urge the
Court to award them some $72,000,000 in a jury trial concerning an
alleged enforcement “vendetta” on the part of the FDIC.
The defendant (the FDIC) moves to dismiss for lack of subject
matter jurisdiction. In its motion, it reacquaints the Court with
its 2017 decision at a prior juncture of the parties’ enforcement
feud. See Bank of La. v. FDIC, 2017 WL 3849340 (E.D. La. Jan. 13,
2017). There, the Court dismissed the plaintiffs’ similarly themed
action for lack of subject matter jurisdiction because Congress
had clearly limited the federal district courts’ jurisdiction over
claims such as the plaintiffs’. The Fifth Circuit affirmed that
decision and the Supreme Court denied certiorari. See Bank of La.
v. FDIC, 919 F.3d 916 (5th Cir. 2019), cert. denied, 140 S. Ct.
227 (2019).
2
I.
The statutory regime applicable now is the same that applied
then. See 12 U.S.C. § 1818. That regime provides “a detailed
framework for [the FDIC’s] regulatory enforcement and for orderly
review of the various stages of enforcement.” Groos Nat’l Bank v.
Comptroller of Currency, 573 F.2d 889, 895 (5th Cir. 1978). In
2017, this Court determined that that regime precluded it from
entertaining the plaintiffs’ stand-alone2 allegations of various
constitutional violations arising from FDIC enforcement
proceedings that are also – at least in part - at issue in this
case. The Court did so because those allegations were so
intertwined with the Fifth Circuit’s congressionally mandated
review of an FDIC enforcement proceeding as to foreclose this
Court’s consideration of them under Section 1818’s “comprehensive
system of judicial review.” See Rhoades v. Casey, 196 F.3d 592,
597 (5th Cir. 1999).
2 The Bank separately petitioned the Fifth Circuit for review
of the FDIC Board’s “final order penalizing the Bank.” Bank of
La., 919 F.3d at 919. It has also done so this time around. The
plaintiffs’ direct appeals for Fifth Circuit review of the FDIC’s
enforcement proceedings are unquestionably proper under 12 U.S.C.
§ 1818(h)(2) and are not at issue here.
3
II.
In the time since, the FDIC has continued to aggressively
regulate the Bank, and the federal courts have continued to conduct
their affairs. Following this Court’s dismissal of the plaintiffs’
earlier action, the Supreme Court decided Perry v. Merit Systems
Protection Board. 137 S. Ct. 1975 (2017). The plaintiffs base
their opposition to the FDIC’s present motion to dismiss entirely
on that decision.
Perry concerned
the proper forum for judicial review when a federal
employee complains of a serious adverse employment
action taken against him, one falling within the compass
of the Civil Service Reform Act of 1978 (CSRA), 5 U.S.C.
§ 1101 et seq., and attributes the action, in whole or
in part, to bias based on race, gender, age, or
disability, in violation of federal antidiscrimination
laws.
Id. at 1979. Observing the possibility that their complaint may
also present a similar “mixed case” (i.e., one where the plaintiff
complains of both an adverse administrative or regulatory action
and separate constitutional or statutory violations), the
plaintiffs urge the Court to extend Perry’s presumptively helpful
reasoning into the unrelated statutory domain of Section 1818.
While this argument is novel and even intriguing, it
misapprehends the Court’s role. This is a federal case, not a law
review symposium. The Court is bound to apply the law, not invent
4
it. While the judicial review scheme applicable in Perry is
conceivably analogous to that of Section 1818, Perry does not
mention Section 1818 a single time. Thus, Perry is inapposite to
the present case, and despite the plaintiffs’ invitation to do so,
the Court may not make apple juice out of oranges.
In 2017, this Court applied statutes and precedents that do
have direct bearing on this dispute, and the Fifth Circuit affirmed
its determination that it lacked subject matter jurisdiction. The
plaintiffs’ injection of new age discrimination and due process
issues into a reframed complaint does not alter the jurisdictional
analysis mandated by Section 1818, Free Enterprise Fund, and
Thunder Basin. See Bank of La., 919 F.3d at 923.3 The Fifth
Circuit thoroughly discussed and applied that analysis in the first
iteration of this case, see id. at 923–30, and the circumstances
here do not warrant this Court’s departure from the binding
determinations there.4
3 For the avoidance of doubt, the Court incorporates by
reference the pertinent reasoning in its 2017 opinion and the Fifth
Circuit’s affirmance.
4 In subsequent review of a separate FDIC proceeding against
the Bank, the Fifth Circuit reaffirmed this holding. See Bank of
La. v. FDIC, 807 F. App’x 360 (5th Cir. 2020) (per curiam) (“Under
the applicable statute, courts of appeals have exclusive
jurisdiction over final orders issued by the FDIC Board. In fact,
we have already so held in an earlier case involving these same
parties. There, we stated that § 1818 ‘displays Congress’ intent
5
* * *
“As a court of limited jurisdiction, a federal court must
affirmatively ascertain subject-matter jurisdiction before
adjudicating a suit. A district court should dismiss where it
appears certain that the plaintiff cannot prove a plausible set of
facts that establish subject-matter jurisdiction.” Id. at 922.
Such is the case here. The alleged victims of serious
constitutional and discriminatory abuses by the FDIC, the
plaintiffs seek review of - and compensation for - adverse actions
by the FDIC. However, as previously observed by this Court and
the Fifth Circuit, Congress has made a constitutional choice to
assign review of those claims to the federal courts of appeals.
Contrary to the plaintiffs’ suggestion, the potentially
“mixed” nature of the plaintiffs’ claims in this case do not
foreclose meaningful judicial review of the FDIC’s actions by the
Fifth Circuit. The legal status of ALJ McNeil and the potential
improprieties of the FDIC’s basing a slew of enforcement actions
on age discrimination and a “vicious [personal] vendetta” may well
to preclude district court jurisdiction over claims against the
FDIC arising out of enforcement proceedings.’” (citations
omitted)).
6
be interesting to the Fifth Circuit in the course of its review,°®
but those issues are not this Court’s to consider.
Accordingly, IT IS ORDERED: that the defendant’s motion to
dismiss is GRANTED. The plaintiffs’ claims against the FDIC are
hereby DISMISSED without prejudice to the plaintiffs’ ability to
pursue them in the Fifth Circuit.
New Orleans, Louisiana, October 14, 2020
MARTIN L. C.\ FELDMAN
UNITED STATES DISTRICT JUDGE
See Bank of La., 2017 WL 3849340, at *6 n.7 (“The Fifth
Circuit has the authority to thoroughly consider the types of
constitutional claims raised by the plaintiffs. The manner in
which the record is built may vary .. . from that of the district
court. This, however, does not compel a finding that the
plaintiffs’ claims would evade appropriate consideration and
review.”).