# Independent Bankers Ass'n v. Board of Governors of Federal Reserve System > Court of Appeals for the D.C. Circuit · July 31, 1975 · 516 F.2d 1206 URL: https://www.frixlaw.com/law-library/cases/7838279 ## Case - **Full name:** INDEPENDENT BANKERS ASSOCIATION OF GEORGIA v. BOARD OF GOVERNORS OF the FEDERAL RESERVE SYSTEM, Citizens and Southern Holding Company, Intervenor - **Court:** Court of Appeals for the D.C. Circuit - **Decided:** July 31, 1975 - **Citations:** 516 F.2d 1206; 31 A.L.R. Fed. 489; 170 U.S. App. D.C. 278; 1975 U.S. App. LEXIS 13397 - **Precedential status:** Published - **Opinion:** Concurrence by Robb - **Judges:** Key, Robb, Robinson, Wil, Wilkey - **Cited by:** 55 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7838279 ## How later opinions describe it (automated extraction) - noting that adjudicatory hearing procedures are used in individual cases where the outcome is dependent on the resolution of particular “adjudicative facts” - recognizing the time-honored distinction between rulemaking and adjudication ## Opinion text ROBB, Circuit Judge (concurring): I concur in the result. To avoid any misunderstanding of my concurrence I add a few words. In my opinion subsection 4(c)(8) of the Bank Holding Company Act, 12 U.S.C. § 1843 (c)(8), does not require a formal hearing in every case in which one is requested by an interested party. I think a hearing is required only when material facts are in dispute. Moreover I believe that a mere allegation of material facts in dispute is not enough to make a hearing necessary; the allegation must have some support in the record. As the majority seems to recognize, the purpose of the 1970 amendment was to eliminate the necessity for a hearing on every application under the section, even in the absence of any contest. This being so I cannot believe that Congress intended to require an adjudicatory hearing in a case where the facts are not in dispute and the only issue is one of law. In such a case there is no contest on the facts and a hearing on factual issues would be useless. And if the facts are undisputed a mere request for a hearing cannot create a “contest” requiring a hearing. In other words I think section 4(c)(8) should not be construed to require a hearing “that will be empty sound and show, signifying nothing.” Citizens for Allegan County, Inc. v. FPC, 134 U.S. App.D.C. 229, 232, 414 F.2d 1125, 1128 (1969). The distinction I have in mind is well illustrated by American Bancorporation, Inc. v. Board of Governors of Federal Reserve System, 509 F.2d 29 (8th Cir. 1974), cited by the majority. In that case the Board, against the recommendation of the Federal Reserve Bank of Minneapolis, gave permission to an applicant to take over a corporation engaged in providing financial advice, primarily in bonding matters, to state and local governments. The Board made its decision without the benefit of an evidentiary hearing in spite of the existence of *300 several unresolved factual issues, including the substantial question whether the applicant bank’s interest in maximizing investment in it by governments would conflict with its duty in operating the corporation to provide sound advice to its government clients. On review of the Board’s action, the court held: We do not suggest by this opinion that any list of unanswered factual issues will unlock the door to a trial-type hearing. Congress by the 1970 amendment to the Bank Holding Company Act intended to reduce the volume of formal hearings in a burgeoning field in an effort not to overtax the supervisory capabilities of the Board. Informal supervision has characterized regulation in the banking industry and should be encouraged. In this case, however, the acquisition of Evensen by Banco would move bank holding companies into an uncharted field, and the public interest will best be served by exposing all of its implications and potential • conflicts to an adversary examination. 509 F.2d at 39 [emphasis added, citations omitted]. In this case the Board denied the petitioner’s request for a hearing upon the ground that the issues raised by the objections “were such that a hearing thereon would serve no useful purpose.” 38 Fed.Reg. 24932 (1973); R. 431. In its brief in this court the Board again argues that the “issues are not the kind that an adjudicatory hearing could help resolve.” 1 (Br., p. 33) The majority considers the argument and rejects it. The majority finds that the case presents questions of fact which the Association was entitled to explore through discovery and cross examination in an adversary hearing. I suspect that counsel for the Association are overly optimistic about their ability to develop, by discovery and cross examination, that C & S Mortgage will operate illegally. By way of filings with the Board, C & S has already made extensive disclosure of its operations. The only other existing indication of how C & S Mortgage will be operated' is the proposal submitted by C & S Holding, and that proposal is legal in all respects. Witnesses for C & S Holding and C & S National can hardly be expected to admit on cross examination that in operating C & S Mortgage they intend to deviate from legality. Whether C & S Mortgage will be a branch of C & S National under federal law seems to be a question of law that cannot be answered until C & S Mortgage comes into existence and begins to operate. Allegations that C & S National’s operations have violated the Sherman Act and have been anti-competitive in violation of the Clayton Act are answered by the decision of the Supreme Court in United States v. Citizens and Southern National Bank, et al., 422 U.S. 86 , 95 S.Ct. 2099 , 45 L.Ed.2d 41 (1975). In short, it seems likely to me that a hearing will prove to be a water haul for the Association, resulting only in a reaffirmance of the Board’s position. Notwithstanding what has been said I must acknowledge that as indicated by the majority the questions raised by the application and the opposition are in certain respects intricate and subtle. I cannot say with assurance that a hearing would fail to illuminate the correct answers to those questions. On this basis I concur in the result reached by the majority. . The Board does not argue, as the majority avers, that the Association waived its procedural rights under section 4(c)(8) by not making a timely request for a hearing. That argument is made by the intervenor C & S Holding (Br. for Intervenor C & S at 42-44). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7838279. Public record. Not legal advice.