holding that Comptroller’s determination that municipal bond insurance falls within the scope of the incidental powers clause is rational under the NBA
How later courts described this case
- holding that Comptroller’s determination that municipal bond insurance falls within the scope of the incidental powers clause is rational under the NBA
- finding that municipal bond insurance was actually “standby credit” and therefore permissible.
- municipal bond insurance distinguished from other types of insurance based on the absence of actuarial computations in determining risk
- sale of municipal bond insurance by national bank subsidiary falls within incidental powers because it is essentially a credit product
Written by the judges who cited it.
The opinion
ON PETITIONS FOR REHEARING
Opinion PER CURIAM.
PER CURIAM:
On August 23, 1988, this panel issued its decision (see page 278) (“Initial Decision”). On October 24, 1988, the panel granted the petitions for rehearing filed by appellees (the Comptroller of the Currency, the United States, and Citibank) on two questions:
1. Was it appropriate for this court to address the Comptroller of the Currency’s interpretation of the Bank Holding Company Act?
2. Did Citibank’s acquisition of the American Municipal Bond Assurance Corporation require the prior approval of the Federal Reserve Board under section 4(c)(8) of the Bank Holding Company Act, 12 U.S.C. § 1843 (c)(8)?
The factual and procedural background of this case is fully set forth in the Initial Decision. In brief, the American Insurance Association (“AIA”) challenges the concurrence by the Comptroller of the Currency (“Comptroller”) in the proposed acquisition of a municipal bond insurance subsidiary (American Municipal Bond Assurance Corporation) (“AMBAC”)) by a chartered national bank (Citibank, N.A.) which is, in turn, the wholly-owned subsidiary of a bank holding company (Citicorp). AIA argued that the Comptroller’s action violated provisions of both the National Bank Act (“NBA”), 12 U.S.C. §§ 21 et seq., and the Bank Holding Company Act (“BHCA”), 12 U.S.C. §§ 1841-50 . The district court concluded that the Comptroller’s actions were based on a reasonable interpretation of the NBA, and that as the Comptroller had relied on the General Reserve Board’s (“Board”) own interpretation of the BHCA, the court could not declare his action arbitrary or capricious. American Ins. Ass’n v. Clarke, 656 F.Supp. 404 (D.D.C.1987). Accordingly, the court entered summary judgment for the Comptroller, and the AIA appealed.
In Part II.B. of our Initial Decision, we held that the Comptroller had properly found that Citibank’s acquisition of AM-BAC was authorized under the NBA. In Part II.C., however, we ruled that the Comptroller had erred in construing the BHCA as permitting the establishment of the municipal bond insurance subsidiary.
On reviewing the supplemental briefs submitted by the parties, we now conclude that it was inappropriate for us to have reached the latter question. Although the Comptroller concluded, inter alia, that section 4(c)(8) of the BHCA, 12 U.S.C. § 1843 (c)(8), did not prohibit Citibank’s acquisition of AMBAC, that finding was not essential to his determination that the acquisition was permitted by the NBA. Furthermore, because the Comptroller’s jurisdiction arises under the NBA rather than the BHCA, his interpretation of the latter statute is without precedential effect and will not prevent the AIA from petitioning the Board for a ruling on the propriety of the acquisition. Indeed, Congress has granted the Board initial jurisdiction to conduct an administrative hearing to decide BHCA issues, 12 U.S.C. § 1842 (b), and has provided for direct judicial review of Board decisions in a court of appeals. Id. § 1848.
*288 We recognize that the Comptroller and the Board have overlapping jurisdiction in certain situations. For example, in Whitney National Bank v. Bank of New Orleans & Trust Co., 379 U.S. 411 , 85 S.Ct. 551 , 13 L.Ed.2d 386 (1965), the Comptroller preliminarily approved a national bank’s proposal to open a new bank as part of a complex holding company transaction that was subject to the Board’s final approval under the BHCA, which was granted. Competitor banks sought to enjoin the Comptroller from issuing a certificate chartering the new bank, claiming that a state law enacted after the Board’s approval nullified the Board’s action. The Supreme Court dismissed the suit against the Comptroller in the district court as improper because the Board had exclusive jurisdiction in the first instance to determine the merits of a BHCA challenge with judicial review only in a court of appeals. Id. at 419-23 , 85 S.Ct. at 556-59 . The Court noted, however, that “there may be exceptional circumstances under which equity may stay the hand of the Comptroller in issuing a certificate to a new bank.” Id. at 426 n. 7, 85 S.Ct. at 560 n. 7 (emphasis added).
While declining to decide the precise scope of Whitney, we conclude that the facts of this case do not present the “exceptional circumstances” that would warrant our reaching the merits of the AIA’s contention that the challenged acquisition is prohibited by the BHCA. Accordingly, we affirm Part II.B. of our Initial Decision and vacate Part II.C.
So ordered.