# Petition for Writ of Certiorari — Steinbrink v. Independent Insurance Insurance Agents Agents of America (Nos. 92-507, 92-484) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0352%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1992 ## Text F” 92-50% | FILED — SEP 18 1992 Ne. [ OFFICE OF THE CLERK In the Supreme Court of the Untied States OCTOBER TERM, 1992 STEPHEN L. STEINBRINK, ACTING COMPTROLLER . OF THE CURRENCY, ET AL., PETITIONERS v. INDEPENDENT INSURANCE AGENTS OF AMERICA, INC., ET AL. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT KENNETH W. STARR Solicitor General STUART M. GERSON Assistant Attorney General JOHN G. ROBERTs, JR. Deputy Solicitor General CHRISTOPHER J. WRIGHT Assistant to the Solicitor General - ROBERT V. ZENER JACOB M. LEWIS Attorneys Department of Justice Washington, D.C. 20530 (202) 514-2217 i eet el — —_-- QUESTION PRESENTED Whether 12 U.S.C. 92, which authorizes national banks “located and doing business” in places of 5,000 or fewer inhabitants to act as the agent for “any fire, life or other insurance company,” was repealed in 1918. (1) Il PARTIES TO THE PROCEEDING The petitioners are Stephen L. Steinbrink, Acting Comptroller of the Currency (substituted as a party pursuant to Rule 35.3); the Office of the Comptroller of the Currency; and the United States. The respondents are the Independent Insurance Agents of America, Inc.; the Independent Insurance Agents of Oregon; the National Association of Cas- ualty and Surety Agents; the National Association of Life Underwriters; the National Association of Professional Insurance Agents; the National Associa- tion of Surety and Bond Producers; the Oregon As- sociation of Life Underwriters; and the Oregon Pro- fessional Insurance Agents, Inc. By virtue of Rule 12.4, the United States National Bank of Oregon, an intervenor-defendant below, is also a party in this Court. We understand that it plans to file a petition for a writ of certiorari seeking review of the judgment of the court of appeals. TABLE OF CONTENTS Page EEE SE ELL 1 Jurisdiction |. cases 2 i eousssnuuncocces 2 a ES care 2 Reasons for granting the petition 0.0... aE ia . EE 22 EES I la EN ESTEE ES OT cass!) ee I oo innstiideincnscctoccs Ditiiaddidmiibeeadnssnsnetanees ilieieniiagie 43a Appendix D EE LSS TS TD 74a LEE EE TABLE OF AUTHORITIES Cases: American Land Title Ass'n Vv. Clarke, 968 F.2d 150 (1992), petition for cert. pending 8, 9, 10, 15, 25 Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 887 (1984) . 18 Commissioner V. First Security Bank of. Utah, N.A., 405 U.S. 394 (1972) .......................7, 9, 10, 21 Commissioner Vv. Morris Trust, 367 F.2d 794 (4th Cir. 1966) . 11, 21 Ewing V. Burnet, 36 US. ql Pet.) 41 (1837) 13-14 First National Bank of Lamarque v. Smith, 610 F.2d 1258 (1980) | 11, 21 INS v. National Center for Immigrants’ Rights, Tne., 112 8. Ct. 551 (1991) . 13 Independent Bankers Ass'n V. Heimann, 613 F.2d ys (D.C. Cir. 1979), cert. denied, 449 U.S. 823 (1980) . |, + Independent Ins. Agents of Am., Inc. Vv. Board of Govs., 835 F.2d 1452 (D.C. Cir. 1987) ........... 21 (IIT) IV Cases—Continued : Page Owensboro National Bank v. Moore, Civ. Action No. 91-3 (E.D. Ky. Aug. 4, 1992) ....................... 9 Saron V. Georgia Ass'n of Indep. Ins. Agents, 399 F.2d 1010 (5th Cir. 1968) ........ piensa abana 10 Statutes : Bank Holding Company Act, 12 U.S.C. 1843(c) EES SE ae riser ween ee 19 Competitive Equality Banking Act of 1987, Pub. L. No. 100-86, 2801 (b) (5), 101 Stat. 583 . 18 Federal Reserve Act of 1913, ch. 6, § 13, 38 Stat. AER | 2, 4, 11, 16, 17 Federal Reserve Act Amendments of 1916, ch. IN TID coisinscpnisisanccipnincteiiidinsehehiel detiietatereiinac uses 2,4 $9 Stat. 752 ........ ile tas ale eee oe : 4,11 39 Stat. 752-753 _...... ipeaclesiicedaiacaiiabinal aac aaa 12 39 Stat. 753 _........ hone ee Garn-St Germain Depesitery ‘fastitutions Act of 1982, Pub. L. No. 97-320, § 403(b), 96 Stat. STERN eee ener OE I PRIS 18 National Bank Act (Act of Feb. 25, 1863), ch. 58, § 42, 12 Stat. 677 13 War Finance Corporation Act of 1918, ch. 45, § 20, 40 Stat. 545 2.5 Rev. Stat. § 5202 3 U.S.C. Stat. Ann. § 5202 (T.H. Flood & Co. STII sso chisselsdacticadinen ateiciiaiead desiteedeepiaeaamaiaeemanmaiaias 9US. Comp. Stat. Ann. $9764 (West 1916) 12 U.S.C. 24 : | 12 U.S.C. 92 28 U.S.C. 1391 (e) Miscellaneous: 53 Cong. Rec. (1916) : p. 10,998 p. 11,115 p. 13,069 p. 13,354 8,5, 6, 11, 12, 18, 15, 16, 17. 18 Miscellaneous—Continued: Federal Res. Bd.: The Federal Reserve Act As Amended SEE Seer meer een ee ee Ree The Federal Reserve Act As Amended EATS EERO Re ES Be Financial Institutions Act of 1957: Hearings on S. 1451 and H.R. 7026 Before the H. Comm. on Banking and Currency, 85th Cong., 2d Sess. ASR BS ERTS ate > CPR Se H.R. Rep. No. 481, 64th Cong., Ist Sess. (1916) . S. Doc. No. 216, 66th Cong., 2d Sess. (1920) . S. Doc. No. 412, 64th Cong., Ist Sess. (1917) . i ESRC a aon Aen enn ea § 13, 38 Stat. 263-264... (Ee ar a A Page 16 17 Iu the Supreme Court of the United States OCTOBER TERM, 1992 No. STEPHEN L. STEINBRINK, ACTING COMPTROLLER OF THE CURRENCY, ET AL., PETITIONERS Vv. INDEPENDENT INSURANC® AGENTS OF AMERICA, INC., ET AL. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT The Solicitor General, on behalf of the Acting Comptroller of the Currency, the Office of the Comp- troller of the Currency, and the United States, peti- tions for a writ of certiorari to review the judgment of the United States Court of Appeals for the District of Columbia Circuit in this case. OPINIONS BELOW The statements filed with the order denying the sug- gestions for rehearing en bane (App., infra, 34a- 42a) are reported at 965 F.2d 1077. The opinion of the court of appeals (App., infra, 1la-33a) is reported at 955 F.2d 731. The opinion of the dis- trict court (App., infra, 43a-73a) is reported at 736 F. Supp. 1162. The approval letter of the (1) » a Comptroller of the Currency (App., infra, 74a-79a) is unreported. JURISDICTION The judgment of the court of appeals was entered on February 7, 1992. A petition for rehearing was denied on May 22, 1992. On August 7, 1992, the Chief Justice extended the time for filing a petition for a writ of certiorari to and including September 19, 1992. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). ‘STATUTES INVOLVED Section 13 of the Federal Reserve Act of 1913, ch. 6, 38 Stat. 263; the Federal Reserve Act Amend- ments of 1916, ch. 461, 39 Stat. 752; and Section 20 of the War Finance Corporation Act of 1918, ch. 45, 40 Stat. 512, are reproduced at App., infra, 80a-94a. STATEMENT 1. In 1984, the United States National Bank of Oregon, which is headquartered in Portland, sought approval from the Comptroller of the Currency to sell insurance as an agent through a subsidiary lo- cated in a branch bank in Banks, Oregon, a town of 489 persons. The Comptroller approved the Board’s application, relying on a provision of federal law formerly codified at 12 U.S.C. 92 which authorizes a national bank “located and doing business in any place the population of which does not exceed five thousand inhabitants” to act as an agent for “any fire, life or other insurance company.” The Comp- troller determined that, under Section 92, the Bank’s subsidiary could sell a full range of insurance prod- 3 ucts to existing and potential customers in Oregon and other States in which the subsidiary is author- ized to engage in the insurance business. See App., infra, 79a. Respondents—various trade associations represent- ing insurance agents—challenged the Comptroller’s decision in the United States District Court for the District of Columbia. The insurance agents argued that Section 92 placed geographic restrictions on sales of insurance by banks in small towns such that the Bank’s branch in Banks, Oregon, should be lim- ited to sales of insurance in that community. The district court first noted that Section 92 no longer appears in the United States Code.' App., infra, 44a-45a n.2. The court assumed, however—on the basis of the fact that “Congress, other courts, and the Comptroller have presumed its continuing valid- ity” —that the statute “exists in proprio vigore.” Ibid. at 45a. The court went on to conclude that the Comptroller’s interpretation of Section 92 was “ra- tional and consistent with the statute” (App., infra, 70a-71la), and accordingly upheld the Comptroller’s decision authorizing the Bank’s subsidiary “to offer insurance to customers residing outside Banks, Ore- gon” (id. at 73a). 2. Concluding that Section 92 had been repealed in 1918, a divided court of appeals reversed and re- manded with instructions to enter judgment for the insurance agents. App., infra, 20a. The court ob- ' Section 92 appeared in the editions of the United States Code issued in 1926, 1928, 1934, 1940, and 1946. It has not appeared in any subsequent edition of the United States Code. In its place, there is a notation by the codifiers that the provi- sion was omitted in the 1918 amendment of Section 5202 of the Revised Statutes. 4 served that it had asked for further briefing on the issue of Section 92’s continued existence, in response to which the parties had “agreed that section 92 re- mains in effect.” App., infra, 4a. Nevertheless, the court concluded, given that the underlying contro- versy revolved around the interpretation of a statute that had been omitted from the United States Code, that it had a duty to inquire into the statute’s exist- ence. Id. at 6a. In performing this inquiry, the court engaged in a detailed analysis of three laws enacted in 1913, 1916, and 1918, with a particular focus on the quota- tion marks appearing in the 1916 Act. The court first examined Section 13 of the Federal Reserve Act, which had been enacted in 1913. Ch. 6, § 13, 38 Stat. 251, 263-264, reprinted App., infra, 80a-82a. In the midst of paragraphs setting out the “powers of federal reserve banks” (the title of Section 13), Con- gress in 1913 included a paragraph that commenced “TsJection fifty-two hundred and two of the Revised Statutes of the United States is hereby amended so as to read as follows,” and went on to list five types of liabilities that a national bank may incur in “an amount exceeding the amount of its capital stock.” The court next examined the 1916 amendment to the Federal Reserve Act, which, among other things, amended Section 13. See ch. 461, 39 Stat 752, 753 (1916), reprinted App., infra, 83a-93a. The 1916 amendment of Section 13 commenced by pro- viding “[t]hat section thirteen be, and is hereby amended to read as follows,” followed by a colon and opening quotation marks. The 1916 amendment went on to reprint Section 13 as it had been enacted in 1913, with certain changes. Each paragraph began with opening quotation marks, and no closing quota- a] tion marks appeared until the end of the sixth para- graph, which immediately preceded the paragraph beginning Section 5202 of the Revised Statutes “is hereby amended to read as follows.” That latter para- graph was reprinted in the 1916 amendment without any change in wording from 1913; however, opening quotation marks were added after the paragraph’s introductory phrase. The next paragraph, which pro- vided for regulation of the discounting of bills of exchange and acceptances authorized by the Federal Reserve Act, was amended substantively in 1916, and opening quotation marks were placed before that para- graph as well. The following paragraph, which was new in 1916 and was later codified at 12 U.S.C. 92, granted national banks in small towns the power to act as insurance agents. That paragraph (henceforth “Section 92”) also began with quotation marks. No closing quotation marks appeared until the end of the paragraph following Section 92. On account of the placement of the quotation marks, the court of ap- peals concluded that, “on its face, the 1916 amend- ments had the effect. of placing section 92 within section 5202 of the Revised Statutes.” App., infra, Ya. That is, the court concluded that the first six paragraphs (all of the paragraphs up to the first closing quotation marks), were part of Section 13, while the next four paragraphs (up to the second closing quotation marks) were part of Rev. Stat. $ 5202. The court then turned to the 1918 War Finance Corporation Act, ch. 45, § 20, 40 Stat. 512, reprinted App., infra, 94a. In Section 20 of the 1918 Act, Congress specified that “Section fifty-two hundred and two of the Revised Statutes of the United States is hereby amended so as to read as follows,” and then 6 listed the five types of liabilities national banks may incur in excess of their indebtedness as listed by the Federal Reserve Act of 1913, and added a sixth type: “Liabilities incurred under the provisions of the War Finance Corporation Act.” The 1918 Act did not restate any of the three paragraphs from the 1916 Act that had followed the paragraph of that Act commencing “[s]ection fifty-two hundred and two of the Revised Statutes of the United States is hereby amended so as to read as follows.” Because the War finance Corporation Act did not set out those three paragraphs (which included Section 92), the court concluded that they had been repealed in 1918. App., infra, Ya-10a. The court of appeals acknowledged that “the place- ment of section 92 in section 5202 of the Revised Statutes [by the 1916 Act] might well have been a mistake.” App., infra, 19a. In that connection, the court noted that when Congress had itself ex- amined the question in 1958, “an impressive array of witnesses” had testified that Congress did not in- tend to place Section 92 in Section 5202 of the Re- vised Statutes in 1916. App., infra, lla. But the court dismissed the intentions of the 1916 Congress as “essentially irrelevant,” on the ground that what mattered were the actions of the 1918 Congress. App., infra, 12a. In that regard, the court found it “fair to assume” that members of the 1918 Congress “would have sought out a current text of section 5202 to work from, and not relied on institutional memories of what the text was, or should have been.” /bid. Since two “privately published services” placed Section 92 in Section 5202 of the Revised Statutes (9 USS. Comp. Stat. Ann. § 9764 (West 1916); 3 U.S. Stat. Ann. § 5202 (T.H. Flood & Co. 1916)), and (in the 7 court’s view) the quotation marks in the 1916 Act confirmed that conclusion, the court ‘“assume[d] the 65th Congress understood section 92 to be part of section 5202, and that its exclusion from the amended section 5202 signaled its repeal.” App., infra, 13a. The court gave no weight to Section 92’s subsequent treatment by Congress and the administrative agen- cies charged with administering the federal banking laws. The court acknowledged that Congress in 1982 had purported to amend Section 92, and that the Comptroller has continued to treat the provision as valid, but dismissed their views as “irrelevant” and “immaterial” to the issue of whether Section 92 had been repealed in 1918. App., infra, 15a. Similarly, the court dismissed the various judicial decisions since Section 92’s omission from the Code that have relied upon Section 92—including Commissioner vy. First Security Bank of Utah, N.A., 405 U.S. 394 (1972)— on the ground that in each of those cases the court “presumed” that Section 92 remains valid. /d. at 16a. The court also eschewed the power to “rectify Con- gress’s apparent error.” App., infra, 14a. It dis- tinguished numerous cases in which courts had dis- regarded erroneous statutory punctuation on the ground that each involved an error that “distorted the meaning of a statute,” but did not lead to repeal of the statute. Jbid. Judge Silberman, dissenting, would have upheld the Comptroller’s decision as embodying a reasonable interpretation of Section 92, without reaching the question of whether the provision remains good law. Conceding that his position “might be thought coun- terintuitive” (App., infra, 27a), Judge Silberman 8 believed that the court had no duty to reach the issue of the statute’s existence, which appellants had “carefully, deliberately and thoughtfully waived” (id. at 5la). 3. The Comptroller and the Bank filed timely peti- tions for rehearing with suggestions for rehearing en banc, which were denied. Judge Silberman (this time joined by two colleagues) again dissented on the ground that the panel should not have decided whether Section 92 had been repealed. In addition, Judge Silberman observed that the government had made ‘‘a forceful argument that the panel * * * de- cided the matter incorrectly.” /d. at 40a. He added that “the panel’s opinion * * * created legal uncer- tainty concerning the sale of insurance by banks located and doing business in small towns (which has been the settled practice for most of this century).” Id. at 40a-41la. REASONS FOR GRANTING THE PETITION Subsequent to the D.C. Circuit’s decision in this case, the Second Circuit held in American Land Title Ass’n vy. Clarke, 968 F.2d 150 (1992), petition for cert. pending, that 12 U.S.C. 92 was not repealed in 1918. In reaching that conclusion, the Second Circuit specifically disagreed with the decision in this case (968 F.2d at 152), and review is war- ranted by this Court to resolve the express conflict. Whether Section 92 was repealed is an issue of sub- * Judge Sentelle, joined by the panel majority, filed a state- ment concurring in the denial! of rehearing en banc. App., infra, 35a-37a. Judge Randolph filed a separate statement expressing his view that “denials of rehearing en banc are best followed by silence.” Jd. at 42a. 9 stantial importance to national banks in small towns, which for three-quarters of a century have relied upon that provision to engage in insurance agency activi- ties. Moreover, as the Second Circuit’s decision in American Land Title Ass’n v. Clarke and this Court’s decision in Commissioner v. First Security Bank of Utah, N.A., 405 U.S. 394 (1972), illustrate, whether Section 92 is good law may affect how courts resolve a number of other issues concerning national banks. Accordingly, this Court should determine whether Section 92 was repealed.* A. The D.C. Circuit’s decision conflicts squarely with the Second Circuit’s decision in American Land Title Ass’n v. Clarke, in which the court held, “[c¢]on- trary to the view of the D.C. Circuit,” that the omis- sion of Section 92 from the 1918 War Finance Cor- poration Act was “inadvertent” and did not “effect[ ] a repeal of section 92.” 968 F.2d at 152. Accord Owensboro National Bank vy. Moore, Civ. Action No. 91-3 (E.D. Ky. Aug. 4, 1992), slip op. 15-16. In concluding that Section 92 remains in existence, the Second Circuit emphasized that “no mention of the insurance powers of national banks exists in the leg- ’ We do not seek review to determine whether the D.C. Circuit erred by reaching the issue of Section 92’s existence when the parties agreed that it had not been repealed. What- ever the merits of that dispute, it is not a jurisdictional ques- tion, so this Court would not be required to decide whether the court of appeals should have reached the issue if certiorari is granted. Since the uncertainty created by the court’s hold- ing that Section 92 was repealed would not be removed by the reversal of that judgment on the basis that the court should not have reached the issue, in our view this Court should focus exclusively in this case on whether Section 92 was repealed. 10 islative history” of the 1918 War Finance Corpora- tion Act, and observed that “if it actually was Con- vress’ intent to effect such a permanent change to an unrelated area of law,” it would “expect some clue to this intent to appear somewhere in the legislative history.” 968 F.2d at 154. Moreover, “it would be wholly incongruous,” the court stated, “for Congress to repeal a provision regarding the totally unrelated matter of insurance agency powers in an emergency measure directed at winning the war,” and it was “highly unlikely” that Congress’s intent to encourage national banks to support the operations of the War Finance Corporation “would just happen to coincide with an intent to repeal provisions regarding na- tional banks’ insurance agency powers.” bid. Apart from the express conflict with American Land Title, the decision below is also in tension with those decisions, among them this Court’s decision in Commissioner vy. First Security Bank of Utah, where the assumption that Section 92 exists influenced the decision. See 405 U.S. at 401-405.‘ See also Saxon v. Georgia Ass'n of Indep. Ins. Agents, 399 F.2d 1010, 1012-1016 (5th Cir. 1968) (relying on Section 92 to *In Commissioner v. First Security Bank of Utah, the Court noted that ‘[t]he revisers of the United States Code have omitted [Section 92] from recent editions of the Code,” but added that “the Comptroller of the Currency considers § 92 to be effective.” 405 U.S. at 401 n.12. The Court then relied on Section 92 in concluding that income from the sale of insurance could not be attributed to banks in places with more than 5,000 inhabitants, since Section 92 impliedly bars such banks from engaging in the insurance business. The Court concluded that “fairness requires the tax to fall on the party that actually receives the premiums rather than on the party that cannot.” 405 U.S. at 405. ll conclude that national banks cannot sell broad forms of insurance as agent); Commissioner v. Morris Trust, 367 F.2d 794, 795 n.3 (4th Cir. 1966) (noting Comptroller’s views that Section 92 had not been repealed). In First National Bank of Lamarque v. Smith, 610 F.2d 1258, 1262 n.6 (1980), the Fifth Circuit stated that “further discussion of the issue fof Section 92’s existence] seems moot.” The D.C. Cireuit’s decision in this case makes the issue a live controversy on which the courts are divided. B. The decision below is also in error, although we reach that conclusion by a different route from that taken by the Second Circuit. In our view, analysis of the text of the 1916 Act, as opposed to its punctua- tion, shows that Section 92 was not placed in Section 5202 of the Revised Statutes in 1916. Thus, Section 92 was not affected at all—much less repealed—when Rev. Stat. § 5202 was amended in 1918. 1. As the court below correctly discerned, analysis of the quotation marks in isolation suggests that in 1916 Section 92 and its companion paragraphs were to be placed in Rev. Stat. § 5202. However, the text of the 1916 Act suggests a different structure. The para- graph preceding Section 92 in the 1916 Act refers to the Federal Reserve Board’s authority to regulate the “discount and rediscount and the purchase and sale by any Federal reserve bank,” of, among other things, “acceptances authorized by this Act.” 39 Stat. 753 (emphasis added). The reference to “this Act” must mean the Federal Reserve Act, not Rev. Stat. § 5202, since the discount and rediscount author- ity was granted by the second and third paragraphs of Section 13 of the Federal Reserve Act, and not by Rev. Stat. § 5202. See 39 Stat. 752; 38 Stat. 263-264. By referring to “this Act,” the paragraph preceding Section 92 follows the same usage as the second and 12 sixth paragraph preceding Rev. Stat. § 5202 in the 1916 Act, and those paragraphs were indisputably part of the Federal Reserve Act rather than Rev. Stat. $5202. See 39 Stat. 752-753. Thus, the use of the term “this Act” suggests that, despite the place- ment of the quotation marks, the 1916 Act did not place the paragraph preceding Section 92 in Rev. Stat. $ 5202.° The text of the paragraph beginning Rev. Stat. $ 5202 is “amended so as to read as follows” also sup- ports the conclusion that it was only that paragraph that related to Rev. Stat. § 5202 because that para- graph refers to the “Federal reserve Act” rather than this Act.” See 39 Stat. 753. The reference to the Fed- eral Reserve Act by its full title is not surprising, since a reader of Rev. Stat. $ 5202 would otherwise have no way of knowing to which Act the provision referred. The usage makes the inference to be drawn from the term “this Act” in the paragraph preceding Section 92 even stronger, since it suggests that Congress in 1916 distinguished between statutory provisions tha: were not to be placed in the Federal Reserve Act (and thus would have to refer to that Act by its full title) and provisions that remained part of the Federal Re- * The paragraph preceding Section 92 (which provided for regulation of the discounting of bills of exchange and accept- ances authorized by the Federal Reserve Act) had been en- acted in 1913 and was amended substantively in 1916: in both 1913 and 1916, it followed the paragraph amending Rev. Stat. § 5202. Since the 1913 Act contained no quotation marks, it was entirely clear at that time that the paragraph was part of the Federal Reserve Act, not Rev. Stat. § 5202, Under the court of appeals’ analysis, however. the quotation marks moved that paragraph from Section 13 to Rev. Stat. § 5202 in 1916, and it was then repealed in 1918 along with Section 92 and the paragraph following Section 92. 13 serve Act, which could intelligibly refer to the Fed- eral Reserve Act as “this Act.” * In short, the text of the paragraph preceding Sec- tion 92 shows that it was not placed in Rev. Stat. $5202. If the paragraph preceding Section 92 was not placed in Rev. Stat. § 5202, then there is no rea- son to think that any of the paragraphs that followed it, including the paragraph later codified as Section 92, were placed in Rev. Stat. § 5202.’ 2. As a general matter, there is no reason to assume that the quotation marks should override the structure assumed by a statute’s text. As this Court long ago recognized, “[p]unctuation is the most falli- ble standard by which to interpret a writing.” Ewing ®* The insurance agents have suggested that the reference to “this Act” in the paragraph preceding Section 92 could be read to refer to “Federal reserve Act” in the paragraph relat- ing to Rev. Stat. § 5202. But the paragraph preceding Section 92 should have said “that Act” if it was to be placed in Rev. Stat. § 5202 and the reference was intended to mean “Federal reserve Act.” 7 The title of the 1916 Act, which “can aid in resolving an ambiguity in the legislation’s text” (INS v. National Center for Immiaqrants’ Rights, Inc., 112 8. Ct. 551, 556 (1991) (cita- tions omitted)), is inconsistent with the conclusion that the 1916 Act amended Rev. Stat. § 5202 by adding Section 92 and its companion paragraphs. That title, “An Act To amend certain sections of the Act entitled ‘Federal Reserve Act,’ ap- proved December twenty-third, nineteen hundred and thir- teen,” nowhere suggests that the statute was adding matter to Rev. Stat. § 5202. The substance of the 1916 amendments also indicates that Section 92 was not placed in Rev. Stat. § 5202. Section 5202, originally enacted in 1863 as part of the National Bank Act (see Act of Feb. 25, 1863, ch. 58, § 42, 12 Stat. 677), had always dealt with limits on the indebted- ness of national banks. By contrast, Section 92 had nothing to do with limits on indebtedness. Nor do Section 92’s com- panion paragraphs. 14 v. Burnet, 36 U.S. (11 Pet.) 41, 54 (1837). In this case, moreover, there is strong evidence that Congress did not intend the quotation marks in the 1916 Act to have any interpretive effect. Indeed, it appears that the statute’s drafters did not intend to employ quotation marks at all. The committee bill, which contained Section 92’s companion paragraphs but not Section 92 (which was added by amendment), used quotation marks, but in- consistently.” During the debates, after Section 92 was added, Senator Brandegee drew attention to the com- mittee’s use of quotation marks, and asked Senator Owen, the Chairman of the Committee on Banking and Currency, whether he thought that “the amended sec- tions ought to be left in quotation marks, so that they will appear in that way in the Federal reserve act?” 53 Cong. Ree. 11,155 (1916). Owen agreed that although quotation marks had been used in the committee re- port, he did “not think they should be used”: in- stead, he thought that they “should be omitted.” /bid. Brandegee thereupon suggested “that in the reprint to be made of the bill the quotation marks be omitted,” to which Owen replied: “I accept that amendment.” Ibid. The amendment was then adopted by the Sen- ate without objection. Jhbid. *In the committee bill, opening quotation marks appeared after the provision stating that Section 13 was “amended to read as follows,” and closing quotation marks did not appear until after the puragraph regarding the regulation of dis- counting of bills of exchange and acceptances authorized by the Federal Reserve Act (the paragraph preceeding Section 92 in the bill as enacted). H.R. Rep. No. 481, 64th Cong., Ist Sess. 1-3 (1916) ; 53 Cong. Rec. 10,998 (1916). The final paragraph, concerning foreign acceptances (which was printed in italics in the committee bill because it was to be added to existing law), had no quotation marks at all. /bid. 15 It is difficult to know precisely at what point, and by whom, the quotation marks were reinserted.’ What is clear is that the Act’s drafters did not intend for the quotation marks to have any significance in interpreting the statute. There is thus no reason to conclude that the quotation marks should control over the evidence in the text of the 1916 Act that Section 92 was not placed in Rev. Stat. § 5202. 3. If Section 92 was not placed in Rev. Stat. § 5202, then there is no basis for an argument that it was re- pealed in 1918 by Section 20 of the War Finance Cor- poration Act. The 1918 Act amended Rev. Stat. § 5202 to provide for a sixth type of indebtedness that a na- tional bank could assume in excess of the amount of its capital steck: “[]]iabilities incurred under the provi- sions of the War Finance Corporation Act.” There is no evidence that Congress affirmatively intended to repeal Section 92 and its companion paragraphs in 1918. To the contrary, as the Second Circuit em- phasized, Congress said not a word about deleting those provisions. 968 F.2d at 154. In this case, the D.C. Circuit acknowledged that deleting Section 92 was “‘unrelated” to the 1918 Act's * Materials obtained from the National Archives indicate that before publication in the Congressional Record, the Sen- ate Conference Report did not contain any quotation marks, and although the House Conference Report had such marks inserted by hand, they do not conform to the marks as they appear in the enrolled Act. The Senate and House Conference Reports, as they were printed in the Congressional Record, do contain the quotation marks as they appear in the Statutes at Large. 53 Cong. Rec. 13,069 (1916) (Senate Conf. Rep.) ; 53 Cong. Rec. 13,354 (1916) (House Conf. Rep.). The en- rolled Act, which has been examined in the National Archives, also ecentains the quotation marks as they appear in the Statutes at Large. 16 war financing goals, but assumed that the 1918 Con- gress understood Section 92 to be part of Rev. Stat. $5202 because of the “facially unambiguous lan- guage” of the 1916 Act and the fact that two “pri- vately published services” placed Section 92 in Rev. Stat. § 5202. App., infra, 13a, citing 9 U.S. Comp. Stat. Ann. $9764 (West 1916); 3 U.S. Stat. Ann. § 5202 (T.H. Flood & Co. 1916). However, as shown above, the 1916 Act does not unambiguously show Section 92 to be part of Rev. Stat. § 5202. Indeed, in- sofar as resort is made to the text of the Act rather than its punctuation, the Act places Section 92 in Section 13 of the Federal Reserve Act. And it should be beyond dispute that the views of the editors of pri- vately published services are not controlling. Moreover, if it is “fair to assume” (as the D.C. Circuit did) that in drafting the 1918 Act interested members of Congress “would have sought out a cur- rent text of section 5202 to work from” apart from the Statutes at Large (App., infra, 12a), it seems unlikely that the drafters would have turned to pri- vate services. The most easily accessible compilation of the federal banking laws would have been that prepared by the Comptroller and published by the Senate Committee on Banking and Currency. That compilation showed Section 92 and its companion pro- visions as part of Rev. Stat. § 5202 and as part of Section 13 of the Federal Reserve Act. S. Doc. No. 412, 64th Cong., Ist Sess. 83-84 (1917) (Rev. Stat. § 5202); id. at 136-137 (Section 13). A compilation of the Federal Reserve Act prepared by the Federal Reserve Board in 1917 also placed Section 92 and its companion paragraphs in Section 13 of the Federal Reserve Act, although it reproduced the confusing punctuation of the Statutes At Large. Federal Res. Bd., The Federal Reserve Act As Amended 30 (1917). 17 Thus, even if the drafters of the 1918 Act had not looked at the language of the 1916 Act, they might reasonably have assumed on the basis of the compila- tions that Section 92 would continue in existence how- ever Rev. Stat. $5202 was amended. Indeed, the post-1918 compilations of the Senate Committee and the Federal Reserve Board continued to show Section 92 as part of Section 13 of the Federal Reserve Act. S. Doc. No. 216, 66th Cong., 2d Sess. 146 (1920). Accord Federal Res. Bd., The Federal Reserve Act As Amended 30 (1919).”° 4. Thus, neither the agencies charged with admin- istering the banking laws nor the congressional com- mittees that oversaw their administration thought that Section 92 had been repealed in 1918. Moreover, the original compilers of the U.S. Code agreed with that conclusion and placed Section 92 in the initial Code in 1926 and in all subsequent versions until 1952. 1° The 1918 Act may be interpreted as supplying closing quotation marks that were missing in the 1916 Act. That is, there would be no basis for arguing that Section 92 was repealed in 1918 if closing quotation marks had appeared in the 1916 amendments following the paragraph beginning Rev. Stat. § 5202 is “amended so as to read as follows” and ending by providing that a national bank may assume in- debtedness in excess of the value of its capital stock in con- nection, fifth, with “[l]liabilities incurred under the provisions of the Federal reserve Act.” See App., infra, 86a. The 1918 Act added a sixth provision to Rev. Stat. § 5202 (authorizing excess indebtedness in connection with liabilities assumed under the 1918 Act), and it ended with closing quotation marks. If that sixth provision, including its closing quotation marks, is inserted after the fifth provision in the 1916 Act, it is clear that Section 92 and its companion paragraphs were not part of Rev. Stat. § 5202. 18 While the codifiers changed their view of the effect of the 1918 amendment (34 years after the amend- ment), neither Congress nor the Comptroller have changed their views. To the contrary, Congress has twice in recent years enacted legislation which has assumed Section 92’s existence. See Garn-St Ger- main Depository Institutions Act of 1982, Pub. L. No. 97-320, § 403(b), 1510-1511 (amending “[t]he Act of September 7, 1916 (12 U.S.C. 92; 39 Stat. 753)” by “striking out” Section 92 authorization of real estate loan brokerage activity); Competitive Equality Banking Act of 1987, Pub. L. No. 100-86, §$ 201(b) (5), 101 Stat. 583 (imposing a one-year moratorium on the expansion of national bank in- surance agency activities “pursuant to the Act of September 7, 1916 (12 U.S.C. 92)”). The Comp- troller, who is charged with implementing and _in- terpreting Section 92, has consistently taken the position that the section was not part of Rev. Stat. $5202 and was not repealed in 1918. See, e.g., Fi- nancial Institutions Act of 1957: Hearings on S. 1451 and H.R. 7026 before the H. Comm. on Banking and Currency, 85th Cong., 2d Sess. 1036 (1958) (letter from Comptroller Gidney to House Banking Chairman Spence). While an administrative agency cannot revive a re- pealed statute, the texts of the relevant statutes in this case, fairly read, do not support the conclusion that Section 92 was repealed. At the least, there is ambiguity. The Comptroller’s permissible construc- tion of the 1916 and 1918 Acts, which follows the text rather than the punctuation, should therefore control. See generally Chevron U.S.A. Inc. vy. Natural Re- sources Defense Council, Inc., 467 U.S. 837, 843 (1984). 19 C. The court of appeals’ error—and the conflict between its decision and that of the Second Circuit in American Land Title—is also of sufficient impor- tance to warrant plenary review by this Court. Na- tional banks located and doing business in small towns have for three-quarters of a century relied on the Comptroller’s view that Section 92 is in effect and permits them to sell a broad range of insurance prod- ucts.'' The decision of the D.C. Circuit (where venue against the Comptroller is always proper, see 28 U.S.C. 1391(e)) does violence to the settled expecta- tions of those banks that currently sell insurance un- der Section 92 and other banks that may rely on that authority in the future.” 11 The Office of the Comptroller, which has continued to update the information available to it regarding the insur- ance activities of national banks, estimates that at the present time between 90 and 100 national banks engage in a general insurance agency business. The American Bankers Associa- tion and the Oregon Bankers Association estimated before the court of appeals that some 160 national banks exercised their authority under Section 92 to sell insurance products. Supp. Br. of Amici Curiae in Support of Petition for Rehear- ing at 1. (The government similarly advised the court of appeals in its rehearing petition (at footnote 1) that “[a]l- though efforts to ascertain how many national banks are currently acting as agents for insurance companies are on- going, preliminary results put the number at well over 100.’’) Whatever the exact figure, it is clear that a significant num- ber of national banks currently engage in activities authorized by Section 92. 12—n their opposition to rehearing, the insurance agents argued (at pp. 5-6) that the issue of Section 92’s existence is of limited importance because a parallel provision of the Bank Holding Company Act, 12 U.S.C. 1843(c) (8) (C) (i), permits bank holding companies to sell insurance through 20 In addition, the issue of Section 92’s existence has ramiiications that extend beyond the question of whether small town national banks may engage in a general insurance agency business, because courts have regularly looked to Section 92 in resolving other banking issues. For example, the ultimate issue in American Land Title is whether national banks lo- cated in places with more than 5,000 inhabitants may sell title insurance pursuant to their authority to exercise ‘all such incidental powers as shall be neces- sary to carry on the business of banking.” 12 U.S.C. 24 (Seventh). The Second Circuit held that Section 92, by authorizing insurance agency activities only by those national banks located and doing business in places of with 5,000 or fewer inhabitants, impliedly bars national banks located and doing business in larger places from engaging in the title insurance agency business. 968 F.2d at 157." subsidiaries in towns with 5,000 or fewer inhabitants. But a bank would not have to form a holding company to sell insurance if Section 92 remains on the books. 8 It is the Comptroller’s position, supported by Independent Bankers Ass'n V. Heimann, 613 F.2d 1164 (D.C. Cir. 1979), cert. denied, 449 U.S. 823 (1980), among other cases, that Section 92 does not constitute a limitation on activities (such as the sale of title insurance) that fall within the incidental powers of national banks, and thus that the Second Circuit’s judgment in American Land Title—although not its conclu- sion that Section 92 exists—is in error. On September 4, 1992, Justice Thomas granted the Solicitor General’s request for an additional 30 days to consider whether to file a petition for a writ of certiorari to review the American Land Title decision. The Solicitor General has since determined that the government will file a petition for a writ of certiorari in that related case. On September 17, 1992, the Chase Man- 21 Similarly, in Commissioner v. First Security Bank of Utah, this Court overturned a determination by the Commisioner of Internal Revenue attributing to certain banks in large cities income derived from the sale of insurance policies received by affiliates. On the basis of the assumption that Section 92 bars such banks “from receiving insurance-related income” (405 U.S. at 402), the Court concluded “that fairness requires the tax to fall on the party that actually re- ceives the premiums rather than on the party that cannot” (id. at 405). See also id. at 414 n.1 (de- scribing Section 92 as “the dispositive factor’ in the Court’s analysis) (Marshall, J., dissenting) ; id. at 419 (noting “the Court’s repetitive emphasis on the missing § 92”) (Blackmun, J., dissenting). A number of courts of appeals have likewise drawn key inferences from the fact of Section 92’s existence. See, e.g., Independent Ins. Agents of Am., Inc. v. Board of Govs., 835 F.2d 1452, 1456 n.8 (D.C. Cir. 1987) ; Independent Bankers Ass’n vy. Heimann, 613 F.2d 1164, 1170 (D.C. Cir. 1979), cert. denied, 449 U.S. 823 (1980); Commissioner v. Morris Trust, 367 F.2d 794, 795 n.3 (4th Cir. 1966); First National Bank of Lamarque Vv. Smith, 610 F.2d 1258, 1261 n.6 (5th Cir. 1980). : In light of the conflict in the circuits and the re- curring nature of the question presented, this Court should decide whether Section 92 was repealed in 1918. hattan Bank, N.A., the intervenor-defendant in American Land Title, filed its own petition for a writ of certiorari seek- ing review of the Second Circuit’s decision. See The Chase Manhattan Bank, N.A. Vv. American Land Title Ass'n, peti- tion for cert. pending. 22 CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. KENNETH W. STARR Solicitor General STUART M. GERSON - Assistant Attorney General JOHN G. ROBERTs, JR. Deputy Solicitor General CHRISTOPHER J. WRIGHT Assistant to the Solicitor General ROBERT V. ZENER JACOB M. LEwIs 2 Attorneys SEPTEMBER 1992 APPENDIX A UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT Nos. 90-5209, 90-5214 INDEPENDENT INSURANCE AGENTS OF AMERICA, INC., ET AL., APPELLANTS v. ROBERT L. CLARKE, Comptroller of the Currency, ET AL. NATIONAL ASSOCIATION OF LIFE UNDERWRITERS, ET AL. APPELLANTS Vv. RoBERT L. CLARKE, ET AL. Argued March 1, 1991 Decided Feb. 7, 1992 As Amended Feb. 25, 1992 Before SILBERMAN, BUCKLEY and HENDER- SON, Circuit Judges. (la) 2a Opinion for the court filed by Circuit Judge BUCKLEY. Dissenting opinion filed by Circuit Judge SILBER- MAN. BUCKLEY, Circuit Judge: Appellants challenge a ruling by the Comptroller of the Currency that would permit any national bank, or its branch, located in a community of not more than five thousand inhabitants to sell insurance to customers outside that community. The Comptroller based his ruling on section 92 of the National Bank Act. As we find sua sponte that that section has been repealed, and as the Comptroller cites no alternative authority for his ruling, we reverse. I. BACKGROUND Section 92 was enacted in 1916 as an amendment to section 5202 of the Revised Statutes of the United States. It provided, in relevant part, that any na- tional bank located and doing business in any place the popu- lation of which does not exceed five thousand in- habitants ... may, under such rules and regula- tions as may be prescribed by the Comptroller of the Currency, act as the agent for any .. . insur- ance company authorized by the authorities of the State in which said bank is located to do business in said State. 39 Stat. 750, 753 (1916). This provision was codified as section 92 of Title 12 of the United States Code. Although section 92 was omitted from section 5202 when the latter was revised and reenacted in 1918, and although the section has been omitted from re- 3a cent editions of the United States Code, the Comp- troller has continued to treat it as valid. See, e.g., 12 C.F.R. § 7.7100 (1991). The appellant trade associations, which represent insurance agents and underwriters, challenge a ruling by the Comptroller that is based on section 92. The ruling holds that under that statute, “a national bank or-its branch which is located in a place of 5,000 or under population may sell insurance to existing and potential customers located anywhere.” Letter from Judith A. Walter, Senior Deputy Comptroller for National Operations, to Mr. T. Dalrymple (Aug. 18, 1986), reprinted in Joint Appendix at 65. Appellants assert that section 92 places a geographical limit on such sales; and they brought this action to have the ruling set aside under the APA as “arbitrary, capri- cious, an abuse of discretion, or otherwise not in ac- cordance with law,” 5 U.S.C. § 706(2)(A) (1988), as a national bank is not permitted to engage in any activity that is not specifically authorized by law. See 12 U.S.C. § 24 (1988). The district court granted the Comptroller’s motion for summary judgment based on its finding that his interpretation of section 92 was “rational and con- sistent with the statute.” National Ass’n of Life Underwriters v. Clarke, 736 F.Supp. 1162, 1173 (D.D.C.1990) (internal quotation marks omitted). Although the court noted “that [section 92] no longer appears in the United States Code,” it stated that it would “assume that the statute exists in proprio vigore” because “Congress, other courts, and the Comp- troller have presumed its continuing validity.” Jd. at 11463 n. 2 (citations omitted). The court cited no other source of authority for the Comptroller’s ruling; nor does the Comptroller claim any. 4a After the parties had submitted their appellate briefs, we asked them to address two questions: First, should this court decide the validity of section 92 in the absence of a challenge to that validity by any of the parties? Second, was section 92 in fact valid? In response to the first question, appellants took the position that this court was required to consider the validity of section 92 as it “would be without consti- tutional authority or power to render [a decision on the merits] if Section 92 [did] not exist.” Supple- mental Brief for Appellants at 3. The Comptroller, on the other hand, argued that it would be inappro- priate for the court to address the issue: It had not been raised by the parties; and, in any event, “the legal issue identified by the Court [did] not go to its jurisdiction, but rather to the merits of plaintiffs’ claims.” Supplemental Brief for Federal Appellees at 5. In responding to our second question, the parties agreed that section 92 remains in effect. They argue that Congress did not intend to repeal section 92. Its technical deletion, they claim, was the result of mis- placed quotation marks and therefore should be ig- nored; moreover, as section 92 was unrelated to the purposes of the 1918 revision of section 5202, an in; tention to repeal it should not be imputed to Congress. Finally, the parties claim that subsequent action by Congress, the Comptroller, and the federal courts (including the Supreme Court) confirms that section 92 remains in effect. For the reasons set forth below, we conclude that we must decide whether section 92 continues to have the force of law; and because we find it does not, we reverse. 5a II. Discussion A. Should the court decide section 92’s validity? The role of the judicial branch is a limited one. The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them. Carducci v. Regan, 714 F.2d 171, 177 (D.C.Cir.1983) (Scalia, J.). On occasion, however, a court will find it necessary to go beyond the specific legal theories advanced by the parties. In Arcadia, Ohio v. Ohio Power Co., U.S. ——, 111 S.Ct. 415, 112 L.Ed.2d 374 (1990), for example, the parties agreed that the case depended on the proper application of section 318 of the Federal Power Act. The Supreme Court con- cluded, however, that the challenged orders did not fall within the scope of that section, and it disposed of the case on another basis. Jd. at 111 S.Ct. 418. See also Kamen v. Kemper Financial Services, Inc., U.S. , 111 S.Ct. 1711, 1718, 114 L.Ed.2d 152 (1991) (“court is not limited to the particular legal theories advanced by the parties, but rather re- tains the independent power to identify and apply the proper construction of governing law’’). Moreover, federal courts “are not bound to accept, as control- ling, stipulations as to questions of law.” Estate of Sanford v. Commissioner of Internal Revenue, 308 U.S. 39, 51, 60 S.Ct. 51, 59, 84 L.Ed. 20 (1939): see also Sebold v. Sebold, 444 F.2d 864, 870 n. 8 (D.C.Cir.1971) (“Since this is a question of law, .. . the agreement of counsel is not binding on this 6a court.”). The Supreme Court has also held that a court must take judicial notice of a state law that is invalid, stating that ‘on general principles, the question as to the existence of a law is a judicial one, and must be so regarded by the courts of the United States.” Town of South Ottarrt-r Perlcins, 94 US. 260, 268, 24 L.Ed. 154 (1876). We believe that this is one of those occasions where a court may properly dispose of a case on a basis not advanced by the parties. Here, the legal question we are asked to decide is the geographical reach of sec- tion 92. We are on notice, however, that the section no longer appears in the United States Code. That fact gives rise to a statutory presumption that the law invoked by the parties is invalid, see 1 U.S.C. § 204(a) (1988), a presumption that the parties have been given ample opportunity to rebut. Because this controversy hangs on the interpretation of a statute that is presumed not to exist, we not only have the right to inquire into its validity, we have the duty to do so. B. Is section 92 valid? Section 204(a) of Title 1 of the United States Code states: The matter set forth in the edition of the Code of Laws of the United States current at any time shall . . . establish prima facie the laws of the United States, general and permanent in their nature. Therefore, in order to determine whether section 92 is valid, we first consult the Code. On inspecting 12 U.S.C. £ 92 (1988), we find the following: $92. Omitted 7a Codification The provisions of this section, which authorized national banking associations in any place where the population did not exceed 5,000 to act as an insurance agent or real estate broker, were added to R.S. $ 5202 by act Sept. 7, 1916, were omitted in the amendment of R.S. $ 5202 by act Apr. 5, 1918, and therefore this section was omitted from the Code. Pub.L. 97-320, Oct. 15, 1982, pur- ported to amend the Act of September 7, 1916 by deleting [two provisions]. R.S. § 5202, as amended, was set out as section 82 of this title prior to repeal by Pub.L. 97-320. 12 U.S.C. $92 (1988) (citations omitted). In sum, the codifiers treat section 92 as having been repealed in 1918. Because we must look to the Code for prima facie evidence of federal law, its omission creates a pre- sumption that section 92 does not exist. Still, other evidence may rebut that presumption; “ ‘the very meaning of “prima facie” is that the Code cannot prevail over the Statutes at Large when the two are inconsistent.’” United States v. Welden, 377 U.S. 95, 98 n. 4, 84 S.Ct. 1082, 1085 n. 4, 12 L.Ed.2d 152 (1964) (quoting Stephan v. United States, 319 U.S. 423, 426, 63 S.Ct. 1135, 1136, 87 L.Ed. 1490 (1943) (per curiam)). We must therefore examine the text of the Statutes at Large to see whether they rebut the presumption that section 92 has been repealed. 1. The Statutes at Large The critical statutes are section 13 of the Federal Reserve Act of 1913, Pub.L. No. 63-43, $ 13, 38 Stat. Sa 251, 263-64 (1913) (“1913 Act”), the 1916 amend- ments to that Act, Pub.L. No. 64-270, 39 Stat. 752, 753 (1916) (“1916 amendments”), and section 20 of the War Finance Corporation Act of 1918, Pub.L. No. 65-121, $ 20, 40 Stat. 506, 512 (1918) (“1918 Act”). The relevant provisions of these statutes wil: be found in appendices A, B, and C to this opinion. As will be seen in Appendix A, section 5202 of the Revised Statutes of the United States, as amended by the 1913 Act, is to be found in the text of section 15 of that Act. The question raised by the parties is whether Congress, in 1916, intended to make the new section 92 a part of section 5202. The critical lan- guage in the 1916 amendments reads as follows: Section fifty-two hundred and two of the Re- vised Statutes of the United States is hereby amended so as to read as follows: “No national banking association shall at any time be indebted, or in any way liable, to an amount exceeding. ~ « * * * “That in addition to the powers now vested by law in national banking associations . . . located and doing business in any place the population of which does not exceed five thousand inhabit- ants ... may, under such rules and regulations as may be prescribed by the Comptroller of the — \ 'rrency, act as the agent for any fire, life, or otuer insurance company .. . by soliciting and selling insurance and collecting premiums on policies issued by such company. . .. And pro- vided further, That the bank shall not guarantee the truth of any stetement made by an assured in filing his application for insurance. 9a “Any member bank may accept drafts or bills of exchange drawn upon it.... Provided further, That no member bank shall accept such drafts or bills in an amount exceeding at any time the aggregate of one-half of its paid-up and unim- paired capital and surplus.” The middle paragraph above would later be codified as 12 U.S.C. § 92. Thus, on its face, the 1916 amend- ments had the effect of placing section 92 within sec- tion 5202 of the Revised Statutes. Two years later, Congress enacted the 1918 Act. Section 20 of that Act reads in part as follows: Sec. 20. Section fifty-two hundred and two of the Revised Statutes of the United States is hereby amended so as to read as follows: “Sec. 5202. No national banking association shall at any time .. . except on account of de- mands of the nature following: “First. Notes of circulation. * ~ * * * “Sixth. Liabilities incurred under the provisions of the War Finance Corporation Act.” Section 20, in short, sets forth between opening and closing quotation marks what appears as the entire text of the revised section 5202; and as a glance at Appendix C will contirm, the language of section 92 is not to be found in section 5202 as amended. Under traditional rules of statutory construction, the meaning of section 92’s omission is plain; material omitted on reenactment is deemed repealed. See, e.g., 10a Keppel v. Tiffin Savings Bank, 197 U.S. 356, 373, 25 S.Ct. 443, 449, 49 L.Ed. 790 (1905) (“[1]t cannot in reason be said that the omission . . . gives rise to the implication that it was the intention of Congress to reenact it.””); 1A N. Singer, Sutherland Statutory Construction § 23.12, at 355 (4th rev. ed. 1985) (‘When the amendatory act purports to set out the original act or section as amended ... all matter that is omitted in the act or section which the amendment purports to set out as amended, is considered re- pealed.”’) (footnotes omitted). Thus the language and punctuation of the Statutes at Large, traditionally construed, support the codifier’s conclusion that sec- tion 92 was repealed by the 1918 Act. 2. Did Congress Intend to Repeal Section 92? The parties do not dispute the fact that section 92 cannot survive a literal reading of the 1916 and 1918 statutes. They argue, instead, that the section re- mains valid because Congress did not intend to repeal it. They make their statutory argument in two stages: First, they contend that the apparent deletion was the result of misplaced quotation marks in the 1916 amendments that had the effect of placing sec- tion 92 within section 5202 of the Revised Statutes instead of making it part of section 13 of the Federal Reserve Act. They then reason that as section 5202 as amended was not intended to include section 92, its omission from the subsequent revision of section 5202 should not effect a repeal. They assert, specifically, that a quotation mark should not have appeared at the end of the paragraph marked [1] in Appendix B, and that the quotation mark now appearing after the first colon in para- lla graph [2] should have been placed at the beginning of that paragraph. Had section 20 been so punctuated, they say, it would be clear that section 5202 itself had not been amended to include the textually unrelated paragraphs marked [3], [4] (section 92), and [5]. Because a change of these quotation marks would make for greater textual consistency in the 1916 amendments, the parties argue that a mistake was made in the printing of the bill, and they cite cases in which courts have adjusted the punctuation of stat- utes in order to make sense of them. They conclude that the 1918 Act’s revision of section 5202 did not delete section 92 because the latter could not properly be considered part of the former. In support of their view of the 1916 amendments and their interaction with the 1918 Act, the parties direct our attention to a letter and memoranda sub- mitted to the House Banking Committee in 1958 that also conclude that the inclusion of section 92 in sec- tion 5202 of the Revised Statutes was inadvertent, and that section 92 was therefore never repealed. See Financial Institutions Act of 1957: Hearings on S. 1451 and H.R. 7626 Before the Comm. on Banking and Currency of the House of Representatives, 85th Cong., 2d Sess. 1035, 1036 (1958) (“1958 Hear- ings”) (letter from Comptroller asserting that Con- gress misplaced quotation marks and that section 92 “remain[s] in full force’); id. at 1036-40 (memo- randum from Federal Reserve Board reaching same conclusion); id. at 1063-65 (Library of Congress’s Legislative Reference Service reaching same conclu- sion); ‘d. at 1065-71 (general counsel of Banking Committee reaching same conclusion ). This is an impressive array of witnesses, but the verdict is not unanimous. Committee member (and l2a future chairman) Wright Patman was of the view that section 92 did not exist. /d. at 1062 (section 92 “was repealed in 1918”). Seven years later, the staff of a House Banking subcommittee, after examining the response of the Comptroller to a series of ques- tions, would conclude that [w]hether or not the Congress . . . [intended] to perpetuate 12 U.S.C. 92, cannot be ascertained. In any event, however, its intentions would not suffice to overcome the effect of the deletion of § 92 by the inclusion of § 20 in the Act of 1918. ... Section 92 is non-existent. Consolidation of Bank Examining and Supervisory Functions 1965: Hearings on H.R. 107 and H.R. 6885 before the Comm. on Banking and Currency of the House of Representatives, Subcomm. on Bank Supervision and Insurance, 89th Cong., Ist Sess. 3, 391 (1965) (“1965 Hearings”’). It seems to us that the subcommittee staff had its eyes on the right question; namely, on the effect of the 1918 Act. Whatever the intentions of the 64th Congress in 1916, they aye essentially irrelevant to the task at hand. What we are called upon to deter- mine are the consequences of the action taken by the 65th Congress when, two years later, it voted the 1918 Act into law. Section 20 of that Act, which amended section 5202, originated as a floor amend- ment that was adopted without debate. See 1965 Hearings at 391. It seems fair to assume that in drafting section 20 and in voting to enact it, the author and interested members of the House and Sen- ate would have sought out a current text of section 5202 to work from, and not relied on institutional memories of what the text was, or should have been. 13a At that time, there were only three sources to which they could turn for up-to-date information: the Stat- utes ot Large, which reproduced section 5202’s fa- cially unambiguous language, or either of two pri- vately published services. Each of these services re- ported that as a result of the 1916 amendments, sec- tion 5202 of the Revised Statutes contained the provisions to be found in the paragraphs marked [2] through [5] of Appendix B. See 9 U.S.Comp.Stat. Ann. § 9764 (West 1916) and 3 U.S.Stat.Ann. § 5202 (T.H. Flood & Co. 1916). Absent concrete evidence to the contrary, we must assume that the 65th Con- gress understood section 92 to be part of section 5202, and that its exclusion from the amended section 5202 signaled its repeal. The Comptroller argues, however, that as the pur- pose of the War Finance Corporation Act of 1918 was to assist the financing of the war effort, a purpose that had no logical relationship to the insurance activ- ities of small town banks, the traditional rule gov- erning provisions omitted in the version of a statute should not be applied to this case. In support of this position, the Comptroller cites two cases interpreting the Clayton Finality Act of 1959, 73 Stat. 243 (1959), F.T.C. v. Jantzen, Inc., 386 U.S. 228, 87 S.Ct. 998, -18 L.Ed.2d 11 (1967), and F.7.C. v. Standard Motor Products, Inc., 371 F.2d 613 (2d Cir.1967), which conclude that “the rule that amendment ‘to read as follows’ repeals everything omitted . . . must yield where [its] application would be inconsistent with the purposes of the statute.” Standard Motor, 371 F.2d at 617. The inconsistency found in those two cases was one where the literal application of a statutory phrase in the Clayton Finality Act would have frustrated a l4a clearly stated purpose of the amendment. Here, how- ever, there is no inherent contradiction between the deletion of section 92 and facilitating the financing of the American war effort. The two are simply unre- lated, and no one argues that the stated purpose of the 1918 Act would have been impeded by the section’s repeal. The Comptroller refers us to cases indicating that we have the authority to rectify Congress’s apparent error: When “a mistake in draftsmanship is obvious, courts may remedy the mistake,” Symons v. Chrysler Corp. Loan Guarantee Bd., 670 F.2d 238, 242 (D.C. Cir.1981); in construing a statute, a court “will dis- regard the punctuation, or will repunctuate, if that be necessary, in order to arrive at the natural mean- ing of the words employed.” United States v. Shreve- port Grain d& Elevator Co., 287 U.S, 77, 82-83, 58 S.Ct. 42, 43-44, 77 L.Ed. 175 (1932). See also Ham- mock v. Loan and Trust Co., 105 U.S. 77, 84-85, 26 L.Ed. 1111 (1881) (same). In each of these cases, the error distorted the meaning of a statute; where the putative error brings about the repeal of a stat- ute, however, judicial correction entails a far graver task—a task that has generally been shouldered by the legislative branch. See, e.g., Whitney v. State Tax Comm'n, 309 U.S. 530, 535-37, 60 S.Ct. 635, 637-58, 84 L.Ed. 909 (1940) (New York legislature altered trust law and inadvertently immunized certain trusts from taxation; gap corrected by statute); United States v. Riker, 670 F.2d 987, 988 (11th Cir.1982) (Congress inadvertently repealed statute prohibiting possession of drugs aboard American ships at sea; gap corrected by statute). lda 3. Subsequent treatment by Congress, the Comp- troller, and the courts The parties argue, finally, that the subsequent treatment of section 92 by legislative, administrative, and judicial officials requires us to find that the pro- vision is alive and well. First, they note that Con- gress in 1982 attempted to delete several provisions from section 92. See Garn-St. Germain Depository Institutions Act of 1982, Pub.L. No. 97-320 § 403 (b); 96 Stat. 1469, 1510-11 (1982); see also S.Rep. No. 536, 97th Cong., 2d Sess. 60 (1982), reprinted in 1982 U.S. Code Cong. & Admin. News 3054, 3114 (section 403(b) is “ a conforming amendment to 12 U.S.C. § 92, which deletes existing reference to the authority of national banks.”) (emphasis added). Moreover, at the time the parties filed their supple- mental briefs, Congress was considering legislation that, ‘fer alia, would repeal section 92. See H.R. 6, 102nd Cong., Ist Sess. § 432 (1991). The parties contend that Congress would hardly seek to modify or repeal a statute that no longer existed. What Congress may now believe, however, is irrel- evant. “[I]t is well settled that the views of a subse- quent Congress form a hazardous basis for inferring the intent of an earlier one.” Russello v. United States, 464 U.S. 16, 26, 104 S.Ct. 296, 302, 78 L.E.2d 17 (1983) (internal quotation marks omitted). Sec- tion 92 was either repealed in 1918 or it was not: and for those same reasons, it is also immaterial that the Comproller of the Currency has continued to treat the section as valid. Federal agencies have no authority to reinstate a statute that Congress has repealed. In none of the cases cited by the parties has a court found that section 92 remains valid; rather, they have l6a presumed that it does. See, e.g., Independent Bankers Ass'n v. Heimann, 613 F.2d 1164, 1170 & nn. 18-20 (D.C.Cir.1979) ; Independent Ins. Agents of America, Inc. v. Board of Governors of Fed. Reserve System, 736 F.2d 468, 477 (8th Cir.1984); First Nat’l Bank of Lamarque v. Smith, 610 F.2d 1258, 1261 n.6 (Sth Cir.1980). While the Supreme Court made a number of refer- ences to section 92 in Commissioner v. First Security Bank of Utah, N.A., 405 U.S. 394, 92 S.Ct. 1085, 31 L.Ed.2d 318 (1972), its decision did not depend on the statute’s continued vitality. That case concerned section 482 of the Internal Revenue Act (“IRA”), which, for tax purposes, allows the Commissioner to reallocate income among companies that are un- der common ownership or control. See 26 U.S.C. $ 482 (1988). Two national banks, presumably lo- cated in communities having in excess of five thou- sand inhabitants, referred borrowers electing to pur- chase credit life insurance to an independent insur- ance company that, in turn, would reinsure the poli- cies with an insurance subsidiary of the holding com- pany that owned the banks. The banks generating the credit life insurance received no compensation for their services; in fact, they had been advised by coun- sel that it would be unlawful for them to receive any income as a result of their customers’ purchase of the insurance. 405 U.S. at 397, 92 S.Ct. at 1088. Never- theless, the Commissioner of Internal Revenue used his authority under section 482 of the IRA to real- locate forty percent of the insurance subsidiary’s pre- mium income to the banks as compensation for orig- inating the credit. ; The Supreme Court described the question before it as “whether there was a shifting or distorting of the 17a Banks’ true net income resulting from the receipt and retention by [the insurance subsidiary] of the pre- miums above described.” Jd. at 400-01, 92 S.Ct. at 1089-90. The Court noted that the Banks could never have received a share of these premiums. National banks are authorized to act as insurance agents when located in places having a population not exceeding 5,000 inhabi- tants, 12 U.S.C.A. $ 92.12 Section 92 of the National Bank Act was enacted in 1916. When the statutes were revised in 1918 and re-enacted, § 92 was omitted. The revisers of the United States Code have omitted it from recent editions of the Code. However, the Comptroller of the Currency con- siders § 92 to be effective and he still incorporates the provision in his Regulations, 12 CFR §§ 2.1-2.5 (1971). Id, at 400 and n. 12, 92 S.Ct. at 1090 & n. 12. The Court then observed: Although § 92 does not explicitly prohibit banks in places with a population of over 5,000 from acting as insurance agents, courts have held that it does so by implication. The Comptroller of the Currency has acquiesced in this holding, and the Court of Appeals for the Tenth Circuit expressed its agreement in the opinion below. * * * * * « [The Commissioner] does not contest this find- ing by the Tax Court or the holding in this re- spect of the Court of Appeals below. Accordingly, we assume for purposes of this decision that the Banks were prohibited from receiving insurance- related income. .. . 18a Id. at 401-02, 92 S.Ct. at 1090-91 (emphasis added) (footnotes omitted). Based on this assumption, the Court concluded that because the banks did not in fact receive any pre- mium income, and because they would have been pre- cluded from receiving such income whether or not they were under common control with the insurance subsidiary, “the premium income received by [the insurance subsidiary] could not be attributable to the Banks”: the “Commissioner’s exercise of his § 482 authority was therefore unwarranted.” /d. at 407, 92 S.Ct. at 1093. While it is true, as Justice Blackmun noted in dis- sent, that the Court had placed “repetitive emphasis on the missing § 92,” id. at 419, 92 S.Ct. at 1099, its reliance was based on an explicit assumption that the statute prohibited insurance sales by a national bank located in a community with a population of more than five thousand. This assumption as to the appli- cation, we believe, extended to the validity of the sec- tion. Although the Court had earlier referred to seec- tion 92 as authorizing national banks to act as insur- ance agents in places having no more than five thou- sand inhabitants, id. at 401, 92 S.Ct. at 1090, that reference was qualified by footnote 12, which called attention to section 92’s omission from recent editions of the United States Code. Thus, the Supreme Court never directly addressed the question before us today. A determination of the validity of section 92 was not necessary to its decision in First Security Bank; and while the footnote ob- served that the Comptroller still considered the section to be effective, this does not indicate that the Court adopted such a view. 19a III. CONCLUSION We acknowledge that the parties’ analysis of the 1916 amendments is plausible, and that the placement of section 92 in section 5202 of the Revised Statutes might well have been a mistake. Their claim that we must therefore find section 92 valid, however, runs up against the stubborn fact that the troublesome quotation marks are located where they are, not where the parties argue that the 64th Congress intended them to be. Like it or not, they are an integral part of the bill that the President signed into law and that was enrolled in the Statutes at Large. In adopting section 20 of the 1918 Act, the 65th Congress amended section 5202 as it appeared in those Statutes; and the parties have failed to point to any concrete evi- dence to the contrary, we must conclude that Congress intended the consequences of its actions, and that sec- tion 92 has ceased to exist. Moreover, even if we were persuaded that its repeal wes in fact the result of cumulative mistakes by both Congresses (the misplacement of quotation marks in 1916 and the failure to take corrective action in 1918), we would still be hesitant to move into the breach. We recognize that, in order to give effect to a clear congressional intent, federal courts have assumed a rather broad responsibility for correcting flaws in the language and punctuation of federal statutes. There is a point, however, beyond which a court cannot go without trespassing on the exclusive prerogatives of the levislative branch. | Ve believe we are at that point. It is one thing for a court to bend statutory language to make it achieve a clearly stated congressional purpose; it is quite an- other for a court to reinstate a law that, intentionally 20a or unintentionally, Congress has stricken from the statute books. If the deletion of section 92 was a mis- take, it is one for Congress to correct, not the courts. As section 24 of the National Bank Act limits a national bank’s activities to those authorized by law, and as the Comptroller cites no authority other than that section for its challenged ruling, we find that rul- ing not in accordance with law. We therefore reverse and remand the case to the district court with instruc- tions to enter judgment for appellants. So ordered. 2]a » APPENDIX A Section 13 of Federal Reserve Act of 1913 POWERS OF FEDERAL RESERVE BANKS. Sec. 13. Any Federal reserve bank may receive... . * * * * * Any member bank may accept drafts or bills of exchange drawn upon it and growing out of transactions involving the importation or expor- tation of goods having not more than six months sight to run; but no bank shall accept such bills ‘o an amount equal at any time in the aggregate io more than one-haif its paid-up capital stock and surplus, Section fifty-two hundred and two of the Re- vised Statutes of the United States is hereby amended so as to read as follows: No national banking association shall at any time be indebted, or in any way liable, to an amount exceeding the amount of its capital stock at such time actually paid in and remaining undiminished by losses or otherwise, except on account of demands of the nature following: First. Notes of circulation. Second. Moneys deposited with or collected by the association. Third. Bills of exchange or drafts drawn against money actually on deposit to the credit of the association, or due thereto. Fourth. Liabilities to the stockholders of the association for dividends and reserve profits. 22a Fifth. Liabilities incurred under the provi- sions of the Federal Reserve Act. The rediscount by any Federal reserve bank of any bills receivable and of domestic and foreign bills of exchange, and of acceptances authorized by this Act, shall be subject to such restrictions, limitations, and regulations as may be imposed by the Federal Reserve Board. 23a APPENDIX B 1916 Amendments to Federal Reserve Act of 1913 CHAP. 461.—An Act To amend certain sections of the Act entitled “Federal Reserve Act,” approved De- cember twenty-third, nineteen hundred and thirteen. Be it enacted by the Senate and House of Repre- sentatives of the United States of America in Con- gress assembled, That the Act entitled “Federal re- serve Act,” approved December twenty-third, nineteen hundred and thirteen, be, and is hereby, amended as follows: * * * * * That section thirteen be, and is hereby amended to read as follows: + * * * * ‘‘Any Federal reserve bank may make advances to its member banks on their promissory notes [1] for a period not exceeding fifteen days at rates to be established by such Federal reserve banks, subject to the review and determination of the Federal Reserve Board, provided such prom- issory notes are secured by such notes, drafts, bills of exchange, or bankers’ acceptances as are eligible for rediscount or for purchase by Federal reserve banks under the provisions of this Act, or by the deposit or pledge of bonds or notes of the United States.” Section fifty-two hundred and two of the Re- vised Statutes of the United States is hereby [2] amended so as to read as follows: “No na- tional banking association shall at any time be indebted, or in any way liable, to an amount ex- [3] [4] 24a ceeding the amount of its capital stock at such ‘ime actually paid in and remaining undiminished by losses or otherwise, except on account of de- mands of the nature following: “First. Notes of circulation. “Second. Moneys deposited with or collected by the association. “Third. Bills of exchange or drafts drawn against money actually on deposit to the credit of the association, or due thereto. “Fourth. Liabilities to the stockholders of the association for dividends and reserve profits. “Fifth. Liabilities incurred under the provi- sions of the Federal Reserve Act. “The discount and rediseount and the purchase and sale by any Federal reserve bank of any bills receivable and of domestic and foreign bills of exchange, and of acceptances authorized by this Act, shall be subject to such restrictions, limitations, and regulations as may be imposed by the Federal Reserve Board. “That in addition to the powers now vested by law in national banking associations organized under the laws of the United States any such [$ 92]association located and doing business in any place the population of which does not exceed five thousand inhabitants, as shown by the last preceding decennial census, may, under such rules anc_regulations as may be prescribed by the Comptroler of the Currency, act as the acent for any fire, life, or other insurance company author- ized by the authorities of the State in which said bank is located to do business in said State, by soliciting and selling insurance and collecting premiums on policies issued by such company; [>] 25a ... Provided [sic], however, That no such bank shall in any case guarantee... the payment of any premium on insurance policies issued through its agency by its principal: And provided further, That the bank shall not guarantee the truth of any statement made by an assured in filing his application for insurance. “Any member bank may accept drafts or bills of exchange drawn upon it... Provided fur- ther, That no member bank shall accept such drafts or bills in an amount exceeding at any time the aggregate of one-half of its paid-up and unimpaired capital and surplus.” 26a APPENDIX C Section 20 of the War Finance Corporation Act of 1918 Be it enacted by the Senate and House of Repre- sentatives of the United States of America in Con- yress assembled, TITLE L—WAR FINANCE CORPORATION. * * * * * Sec. 20. Section fifty-two hundred and two of the Revised Statutes of the United States is hereby amended so as to read as follows: “Sec. 5202. No national banking association shall at any time be indebted, or in any way liable, to an amount exceeding the amount of its capital stock at such time actually paid in and remaining undimin- ished by losses or otherwise, except on account of de- mands of the nature following: “First. Notes of circulation. “Second. Moneys deposited with or collected by the association. ‘Third. Bills of exchange or drafts drawn against money actually on deposit to the credit of the association, or due thereto. “Fourth. Liabilities to the stockholders of the association or dividends and reserve profits. “Fifth. Liabilities incurred under the provi- sions of the Federal Reserve Act.” “Sixth. Liabilities incurred under the provi- sions of the War Finance Corporation Act.” 27a SILBERMAN, Circuit Judge, dissenting: My position might be thought counterintuitive, but I would decide the case, as did the district court, with- out reaching the question the majority thinks is a necessary antecedent: whether section 92 is still good law. Appellants did not challenge the validity of sec- tion 92. Indeed, after the court ordered the parties to address the issue at oral argument and appellees filed supplemental materials supporting the conclu- sion that the statute was not repealed, counsel for appellants forthrightly said: It would quite obviously be to the appellants’ ad- vantage if section 92 were no longer in existence, since there would be no statutory basis for the Comptroller’s order. We have researched the is- sue, both earlier and in light of the court’s ques- tions, and we have carefully reviewed the sub- mission made by the government. ... Given that the statutory issue involves a controversy over the use of punctuation, that Congress obviously intended to amend the law in 1982, and that the Supreme Court has in fact described the law as in effect, while noting its curious history, we have concluded that we cannot advance a substantial argument that section 92 no longer exists. Tobe sure, when five months later the panel, hav- ing not decided the case, directed the parties to brief the issue, appellants—no doubt at that point realizing that their chances for success were dependent upon indulging the court—did so and partially switched their position, urging us to decide whether section 92 exists. But in answer to our question “‘whether this court should decide the validity of 12 U.S.C. § 92 in the absense of a challenge to its validity,” appellants could only suggest that the question might be juris- 28a dictional—that if section 92 actually had been re- pealed in 1918, the case might be “moot” or perhaps might “not even arise.” I do not think there is very much to either argument ' (nor, apparently, does the majority), but I agree with appellants’ implicit prem- ise: that unless we determine the validity question to be jurisdictional, we should not decide it. My colleagues take a different position. Driven by the perceived duty to inquire, on their own, into sec- tion 92’s validity, they decided the issue. With all due respect, I think the majority is quite wrong in its per- ception of our judicial obligation. We owe no ab- stract duty to Congress (or the President) to enforce or not to enforce laws; all of our power derives from our constitutional duty to decide cases and controver- sies. The issue of section 92’s validity was decidedly not part of the “case or controversy” as it was brought to the district court or on appeal to us. It is quite fair to say that we have added it to the case; we have created a controversy that did not exist. That 1 U.S.C. § 204(a) states that “matter set forth” in the Code “establish[es] prima facie the laws of the United States” hardly suggests any independent duty on the part of the judiciary to inquire whether mat- ' Although the repeal of a statute moots controversies over the law’s validity, see, e.g., Burke v. Barnes, 479 U.S. 361, 363-64, 107 S.Ct. 734, 736-37, 93 L.Ed.2d 732 (1987), here the parties agree that section 92 is valid, and they have a con- tinuing controversy over the Comptroller’s authority to per- mit national banks to sell insurance nationwide. And the case obviously arises under federal law for purposes of 28 U.S.C. § 1331, because, inter alia, the parties have stated a cause of action under the Administrative Procedure Act, 5 U.S.C. §$§ 701-06. See Japan Whaling Ass'n v. American Cetacean Soc’y, 478 U.S. 221, 230 n. 4, 106 S.Ct. 2860, 2866 n. 4, 92 L.Ed.2d 166 (1986) ; Robbins v. Reagan, 780 F.2d 37, 42 (D.C.Cir.1985) (per curiam). 29a ters not appearing in the Code, but which the parties agree continue to be law, remain valid.’ I do not think my view has ever been stated better than in the passage the majority quotes from Car- ducci v. Regan, 714 F.2d 171 (D.C.Cir.1983), written by then-Judge Scalia: The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them. Id. at 177. The majority, however, trumps Judge Scalia in Carducci with Justice Scalia in Arcadia, Ohio v. Ohio Power Co., U.S. , 111 8.Ct. 415, 112 L.Ed.2d 374 (1990). There the Supreme Court decided that a statute, whose exact application was in dispute, did not even apply to a particular transaction, see id. 111 S.Ct. at 418, 422, notwithstanding that no party had even suggested such an argument in the Supreme Court or the court of appeals. Judge Scalia, writing for the Court, did not, however, make clear that the statutory construction adopted by the Court was not argued by the parties at any stage (Justice Stevens pointed it out in his concurring opinion, see id. 111 S.Ct. at 422-23). So, importantly, the Court never explained or justified what it did. I do not think that under these circumstances the Court meant to establish a precedent on the point.” As in the area of “1 do not think the majority is even correct in using the term “presumption,” but our “duty” is not affected in any event. ’ Perhaps because the Court did not wish to set forth a justifying principle that extended beyond that case. The 30a standing, I think we should follow only what the Court says it does, not merely what it does. Cf. Penn- hurst State School & Hosp. v. Halderman, 465 U.S. 89, 119, 104 S.Ct. 900, 918, 79 L.Ed.2d 67 (1984) (court addressing a jurisdictional issue is not bound by prior decisions that passed on the question sub silentio); Haitian Refugee Center v. Gracey, 809 F.2d 794, 800 (D.C.Cir.1987) (prior decision that reached merits without discussing standing did not constitute precedent on standing). The next year in Kamen v. Kemper Financial Serv- ices, Ine., USS. , 111 S.Ct. 1711, 114 L.Ed.2d 152 (1991), the Court, relying on Ohio Power, said that “[w]hen an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law.” Jd. 111 S.Ct. at 1718. Of course, that statement in a sense begs the question, because the hard analysis comes in de- tern ‘ning when an issue or claim is properly before the court. In Kamen, the petitioner had brought a shareholder derivative action under the Investment Company Act of 1940, 15 U.S.C. §$§ 80a-1 to 80a-64, without making a demand for relief upon the board of directors, effectively asserting her right to do so under federal common law. She did not advert to state law until her reply brief in the court of appeals, and thus that court, in shaping a federal common law Supreme Court, I gather, weighs docket management factors that the lower federal courts do not encounter. If the Court wants us to adopt a more relaxed stance than | think appro- priate, this case may well offer a suitable vehicle to so in- struct us. 3la rule, refused to consider state law. The Supreme Court reversed, holding that the court of appeals could and should look to state law to fashion the con- tours of the federal law that governed. See Kamen, 111 S.Ct. at 1718. In other words, the petitioner in. Aamen did assert a right not to make a demand under federal law, and the case was decided on that basis: the Supreme Court only thought that the court of ap- peals should have looked to state law for guidance. That does not seem to me much different than a court relying on a case not cited by the parties to support a contested proposition. And the Court continued: “We do not mean to suggest that a court of appeals should not treat an unasserted claim as waived... .” /d. 111 S.Ct. at 1718 n. 5. This is that very case where the unasserted claim (that Congress repealed section 92 and therefore the Comptroller’s actions under it were unlawful) was waived; it was, in fact, care- fully, deliberately, and thoughtfully waived. The majority’s reliance on Town of South Ottawa v. Perkins, 94 U.S. 260, 24 L.Ed. 154 (1876), is equally misplaced, because the issue of the statute’s validity in that case was raised by the litigants. See id. 94 U.S. at 262, 266. Similarly, although the “stip- ulation of law” cases also cited by the majority estab- lish courts’ power to reach nonjurisdictional issues not raised by the parties, they do not suggest that it is al- Ways appropriate for courts to do so, More in point, it seems to me, is McCormick v. United States, U.S. , 111 S.Ct. 1807, 114 L.Ed.2d 307 (1991). In that case the Supreme Court refused to consider an appellant’s argument, made for the first time in his brief to that Court, that Con- gress did not intend the anti-extortion Hobbs Act, 18 32a U.S.C. $1951, to apply te campaign contributions. See McCormick, 111 S.Ct. at 1814 n. 6. Because he concluded that the statute did not apply, Justice Scalia in a concurring opinion said, “I think it well to bear in mind that the statute may not exist.” /d. at 1820. But he made quite clear that he would not de- cide the case on that ground. See id. The approach taken in McCormick accords with other decisions in which courts have declined to consider nonjurisdic- tional issues not raised by the parties. See, e.g., Spaulding v. University of Washington, 740 F.2d 686, 694 n. 2 (9th Cir.) (declining to decide, in a pre- Garcia case involving a charge of discrimination under the Equal Pay Act, 29 U.S.C. § 206(d)(1), whether the Act might be unenforceable against the university, a conceded state agency, “[b]ecause the parties neither raise the issue nor contend that it affects our jurisdiction”), cert. denied, 469 U.S. 1036, 105 S.Ct. 511, 83 L.Ed.2d 401 (1984). As acknowledged by the McCormick majority, see McCormick, 111 S.Ct. at 1814 n. 6, some courts recog- nize an exception to the general principle of judicial restraint that I assert. The “plain error” doctrine is vecasionally applied in the civil as well as the crim- inal context to decide issues not raised by the parties where manifest injustice might otherwise result. See, e.g., Anderson v. Group Hospitalization, Inc., 820 F.2d 465, 469 n. 1 (D.C.Cir.1987) (discussing civil cases invoking the plain error rule in exceptional cir- cumstances where error is obvious and grave); see also Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976) (appellate court is justified in resolving issue not raised below if “the proper resolution is beyond any doubt” or “ ‘injustice 33a might otherwise result’” (quoting Hormel v. Helver- ing, 312 U.S. 552, 557, 61 S.Ct. 719, 721, 85 L.Ed. 1057 (1941))). But I think that a venue is hardly open to us here, since—as appellants pointed out in their post-argument brief—for over seventy years the Comptroller, Congress, federal courts, and even the Supreme Court, see Commissioner of Internal Reve- nue v. First Security Bank, 405 U.S. 394, 400 n. 12, 92 S.Ct. 1085, 1090 n. 12, 31 L.Ed.2d 318 (1972), have assumed that the statute remains in effect.’ (It actually appears in United States Code Service. See 12 U.S.C.S. § 92.) Injustice is more likely to result from our reaching the issue than from our declining to do so, because the question of section 92’s validity affects many entities, including members of the in- -surance and banking industries who have relied on the law’s continued existence and who, having no notice that the question might be decided, had no opportun- ity to make their views known in this case. I would therefore affirm the district court on the ground that the Comptroller’s ruling is a reasonable interpreta- tion of section 92, and note that we do not decide the significance of Congress’ actions in 1918. * See Maj.Op. at 737-39. Although I agree that subsequent assumptions by the executive, legislative, and judicial branches cannot establish Congress’ intent in 1918, I do think that such widespread acceptance of section 92's existence precludes us from reaching a different conclusion in the absence of a challenge by one of the parties. 34a APPENDIX B UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT Nos. 90-5209, 90-5214 INDEPENDENT INSURANCE AGENTS OF AMERICA, INC., ET AL., APPELLANTS v. ROBERT L. CLARKE, Comptroller of the Currency, ET AL. NATIONAL ASSOCIATION OF LIFE UNDERWRITERS, ET AL., APPELLANTS v. ROBERT L. CLARKE, ET AL. May 22, 1992 Before MIKVA, Chief Judge, WALD, HARRY T. EDWARDS, RUTH BADER GINSBURG, SILBER- MAN, BUCKLEY, STEPHEN F. WILLIAMS, D.H. GINSBURG, SENTELLE, HENDERSON, and RAN- DOLPH, Circuit Judges. 35a On Appellees’ Suggestions for Rehearing En Banc ORDER PER CURIAM. Appellees’ Suggestions for Rehearing En Banc have been circulated to the full Court. The taking of a vote was requested and responses were received. Thereafter, a majority of the judges of the Court in regular active service did not vote in favor of the suggestions. Upon consideration of the foregoing, it is ORDERED, by the Court en banc, that the sug- gestions are denied. SILBERMAN, STEPHEN F. WILLIAMS and D.H. GINSBURG, Circuit Judges, would grant the suggestion of appellee United States National Bank of Oregon, limited to Point II thereof. Separate statement filed by SENTELLE, Circuit Judge, concurring in the denial of rehearing en banc, with whom BUCKLEY and KAREN LeCRAFT HENDERSON, Circuit Judges, join. Separate statement filed by SILBERMAN, Circuit Judge, dissenting from the denial of rehearing en banc, with whom STEPHEN F. WILLIAMS and D.H. GINSBURG, Circuit Judges, join. Separate statement filed by RANDOLPH, Circuit Judge. SENTELLE, Circuit Judge, concurring in the de- nial of rehearing en banc, with whom Circuit Judges BUCKLEY and KAREN LECRAFT HENDERSON join: I write separately expressing concurrence in the Court’s denial of rehearing en banc to respond briefly to a theory advanced by our dissenting colleagues. 36a Our colleagues question the “judicial power” of a federal court to decide an issue of law concededly dispositive of the case where parties have not raised the issue. I think it most apparent that federal courts do possess this power. The alternative is that the parties could force a federal court to render an ad- visory opinion. What the dissenters in effect argue is that the parties can stipulate to the state of under- lying law; frame a law suit, assuming that stipula- tion; and obtain from the court a ruling as to what the otherwise dispositive law would be if the stipu- lated case were in fact the law. Indeed, that is pre- cisely what would have occurred in this case had the panel not, sua sponte, raised the question of the re- peal of section 92. It has long been recognized that we are “free to ignore” stipulations as to matters of law. NLRB, Local 6 v. FLRA, 842 F.2d 483, 485 n. 6 (D.C. Cir. 1988); see also Barry v. United States, 865 F.2d 1317, 1326 (D.C.Cir.1989) (“A concession by a party as to a matter of law, unlike a stipulation of fact, need not hinder a court from finding the proper lega! view.”) (Sentelle, J., dissenting on other grounds’. Thus, by declining to argue that Congress repealed the section, appellants cannot stipulate into existence a repealed statute and then compel the Court to com- pliantly advise the parties what it would do if that statute existed. “[I]t is quite clear that ‘the oldest and most consistent thread in the federal law of jus- ticiability is that federal courts will not give ad- visory opinions.’” Flast v. Cohen, 392 U.S. 83, 96, 88 S.Ct. 1942, 1950, 20 L.Ed.2d 947 (1968) (quoting C. WRIGHT, FEDERAL Courts 34 (196°) ). The soundness of this rule is suggested by the fol- lowing: If the parties can by stipulation bring into 37a existence section 92 and have us decide whether the Comptroller properly exercised his authority under that statute, what is to prevent the parties from next asking us whether the delegation of that authority to the Comptroller was constitutional? That parties have assumed and the Comptroller has enforced the repealed statute for over seventy years seems to me irrelevant to the question. The question is not how long the parties assumed a certain state of the law, but whether that state of the law is merely an assumption. The passage of time, the acquiescence of the parties, the assumptions of officials, even all taken together cannot enact a statute. Legislation only comes into existence through bicameral congres- sional enactment and presentment to the President of the United States. U.S. Const. art. I, $1 and § 7, el, 2&3:1NS v. Chadha, 462 U.S. 919, 946, 103 S.Ct. 2761, 2781, 77 L.Ed.2d 317 (1983). No stipulation by an executive official purporting to operate under a statute and a party affected by the official’s actions can bring that statute into existence, even for pur- poses of a judicial decision as to its construction. I agree with the dissent that there are obvious limits on the power of the Court—I disagree with the dissent as to what those limits are. I am convinced that it is within the Court’s power to determine the existence of a statute essential to the determination of a case or controversy whether or not the parties assume or stipulate that the statute does or does not exist. At bottom, I do not think it within the power of the Court to render an advisory opinion on the con- struction of a statute whose existence depends on the failure of the parties to assert its invalidity. 38a SILBERMAN, Circuit Judge, dissenting from the denial of rehearing en banc, with whom Circuit Judges STEPHEN F. WILLIAMS and D.H. GINS- BURG join: We think this case should be reheard en banc, but the rehearing should be confined to an issue raised only by appellee United States National Bank of Oregon: did the court properly reach and decide the question whether the statutory provision on which the Comptroller based his regulation, and which has been enforced for over 70 years, was repealed by Congress in 1918? As the dissenting opinion points out, the appellant trade associations, which represent insur- ance agents and underwriters, deliberately refused to argue (waived) any claim that Congress did repeal section 92. Even when the panel ordered supplemen- tary briefing directed to that issue five months after argument, the appellants declined to argue that Con- gress repealed the section. Since the question is not juriscictienal, we do not see how it can be appropriate for a federal court, swa sponte, to decide it, and we fear that the implications of what might be thought a rather expansive view of federal judicial power could be profound indeed. Almost any case brought rests on certain uncon- tested legal assumptions that may be thought to be logical antecedents to the issues in dispute. A court is not free, however, to examine itself any of those legal assumptions (if non-jurisdictional) just by as- serting that they are “essential to the determination.” Concurrence at 2. That would mean that a lawsuit is framed by a court’s notion of the logical way to think about a legal problem, and not by the parties’ controversy. A majority of this court rejected that concept in a statement of Judge Rork joined by Judges Ginsburg, Scalia, Starr, Silberman, and Buck- 39a ley concurring in the denial of rehearing en bane in King v. Palmer, 778 F.2d 878, 883 (D.C.Cir.1986). The United States, concerned that a panel of this court had accepted and ratified what the United States thought might be an improper expansion of Title VII (to cover a claim for relief “for sex-based discrimination” by a woman who alleged that she was denied a promotion in favor of another woman who had a sexual relationship with their supervisor, id.), wished time to consider whether to file an amicus brief supporting rehearing. We denied rehearing be- cause the District of Columbia, the defendant, had not challenged the plaintiff's expansive view of Title VII but rather, assuming coverage, argued that its conduct did not violate the statute. Judge Bork said: Rehearing of that issue en bane would be in- appropriate because no party challenged that application of Title VII on appeal and the issue was not briefed or argued to the panel.. . Be- cause the point was not before the panel on ap- neal there is no occasion to address the issue en hane. /d. (emphasis in original). In other words, the state- ment treated the panel’s approval of that interpreta- tion, although phrased as a holding, as limited only to that case and therefore not binding precedent. The en bane majority thought that even if it disagreed with what the concurrence terms the parties’ “stipu- lation of law,” it would be inapropriate so to hold hecause the issue was not contested in the case. With all due respect to our concurring colleagucs, we think they have the advisory opinion point exactly backwards. An advisory opinion is “an abstract de- termination by the Court of the validity of a statute _ or a decision advising what the law would be on eee 40a a hypothetical state of facts.” Nashville, Chatta- nooga & St. Louis Ry. Co. v. Wallace, 288 U.S. 249, 262, 53 S.Ct. 345, 348, 77 L.Ed. 730 (1933). When a court issues an opinion on an uncontested, non- jurisdictional matter of law like the one here, it has made “an abstract determination . . . of the validity of a statute” and issued an advisory opinion—al- though to the world rather than the parties—because the issue was not part of the case or controversy.’ The government makes a forceful argument that the panel, having reached the question whether sec- tion 92 was repealed in 1918, decided the matter in- correctly. Given the importance of this issue to the banking and insurance businesses throughout the country, we would ordinarily be inclined to view the government’s petition sympathetically. We do not so regard the government’s petition here, because, having vigorously argued before the panel that the court should not reach the “repeal” question, the govern- ment now quietly drops that argument and urges us to do that which it originally contended was improper —reach the repeal issue but decide it, instead, in the government’s favor. We full well recognize that the panel’s opinion itself created legal uncertainty concerning the sale of insur- ance by banks located and doing business in small towns (which has been the settled practice for most of this century), and, therefore, it would be only nat- 1 It seems to us that the phrase “stipulates to a matter of law” is too general to be useful in consideration of this kind of problem. We would agree, for instance, that if both par- ties simply misread a Supreme Court decision in their briefs we would not be bound to that interpretation. But that is far removed from a party’s failure to bring an analytically separate claim that we thought was available. We are not free to add such a claim to a case. 4la ural for the Comptroller to wish a speedy judicial ac- tion to dispel this uncertainty. But we are frankly disappointed that the government as a whole would not have thought the question of judicial power— surely, in the long run—to be more important. In any event, the Supreme Court may well be in a better position to deal with both issues. Now that the insurance industry, disinclined to look a gift horse in the mouth, is willing to support the panel’s opinion and argue that Congress did repeal section 92, the Supreme Court could grant certivrari on that issue and, in light of its supervisory role over federal courts, still give guidance on the question that we think even more significant. RANDOLPH, Circuit Judge: It has become customary for members of this court to issue statements concurring in or dissenting from denials of rehearing en banc. I doubt the propriety of this practice. Such statements are rarely confined to setting forth the author’s reasons for thinking or not thinking the case important enough to warrant en bane treatment. Although the statements may take this form, more often than not they contain expres- sions of a different sort. Judges commonly use denials of rehearing ex bane to declare their views on the merits of the case. Those who were not on the original panel announce what they would have decided if only they had been called upon to rule. Judges who were members of the panel express afterthoughts, or re- spond to eriticism contained in the en banc statements of other judges, or explain what the panel “really” meant. All of this may be good for the soul. But it rubs against the grain of Article III’s ban on advisory opinions. The manner in which these en banc “bulle- tins” are formulated does not simulate the process of 42a the court when it is actually deciding a case. If re- curring issues are addressed, en banc statements may be tantamount to prejudgments. Another common practice on denials of rehearing en bane is, to my mind, also inappropriate. It occurs when the judge steps out of the robe and into the role of an advocate, urging the Supreme Court to take the case on cer- tiorari and correct the panel’s judgment. Many years ago two wise judges found it a “‘dubi- ous policy” if “any active judge may publish a dissent from any decision, although he did not participate in it and the Court has declined to review it en banc thereafter . . . especially since, if the issue is of real importance, further opportunities for expression will assuredly oceur.”” United States v. New York, New Haven & Hartford R.R., 276 F.2d 525, 553 (2d Cir.) (statement of Friendly, J., joined by Lumbard, C.J.), cert. denied, 362 U.S. 961, 80 S.Ct. 877, 4 L.Ed.2d 876 & 964, 80 S.Ct. 877 4 L.Ed.2d 878 (1960). I fully agree with Judge Friendly and Judge Lum- bard. In my view, denials of rehearing en bance are best followed by silence. They should not serve as the occasion for an exchange of advisory opinions, over- tures to the Supreme Court, or press releases. Before: SILBERMAN, BUCKLEY, HENDER- SON, Circuit Judges. ORDER Upon consideration of the petitions for rehearing of appellees, it is Ordered, by the Court that the petitions are denied. Circuit Judge SILBERMAN would grant the petition for rehearing of the United States Na- tional Bank of Oregon. 43a APPENDIX C UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA Civ. A. Nos. 86-3042, 86-3045 NATIONAL ASSOCIATION OF LIFE UNDERWRITERS, ET AL., PLAINTIFFS Vv. ROBERT CLARKE, ET AL., DEFENDANTS, and UNITED STATES NATIONAL BANK OF OREGON, DEFENDANT-INTERVENOR INDEPENDENT INSURANCE AGENTS OF AMERICA, ET AL., PLAINTIFFS v. ROBERT L, CLARKE, ET AL., DEFENDANTS and UNITED STATES NATIONAL BANK OF OREGON, DEFENDANT-INTERVENOR May 8, 1990 OPINION JOHN H. PRATT, District Judge. 44a I. Introduction The above action is only the latest chapter in the long running battle for turf on the part of two power- ful industries, each of which is subject to govern- mental regulation. In this case, the insurance indus- try seeks protection from incursions into its claimed territory by the commercial banking industry. On behalf of life, health, property, and casualty insurance agents throughout the United States, various trade as- sociations brought this consolidated action for declara- tory and injunctive relief against the Office of the Comptroller of the Currency (“OCC”), the Comptrol- _ler himself, and the United States.’ After the com- plaints were filed, the United States Bank of Oregon (“USBO”’), a national bank chartered under the Na- tional Bank Act, 12 U.S.C. §§ 21-216d (1988) (some- times ““NBA’’), intervened as an additional defend- ant. At issue is whether the Comptroller reasonably con- cluded that section 92 of the NBA, id. § 92,’ author- ‘We hereby grant defendants’ unopposed request that the - complaint, which alleges nothing against the United States eo nomine, be summarily dismissed against that party. “It is worth noting that this section no longer appears in the United States Code. Enacted by Act of Sept. 7, 1916, ch. 461, 39 Stat. 753 (1916), it apparently was inadvertently repealed in 1918. See Act of Apr. 5, 1918, ch. 45, § 20, 40 Stat. 512 (1918). However, since Congress, other courts, and the Comptroller have presumed its continuing validity, see, e.g., Commissioner v. First Sec. Bank, 405 U.S. 394, 401 & n. 12, 92 S.Ct. 1085, 1090 & n. 12, 31 L.Ed.2d 318 (1972); First Nat'l Bank v. Smith, 610 F.2d 1258, 1261 n. 6 (Sth Cir.1980) ; Saxon v. Georgia Ass'n of Indep. Ins. Agents, 399 F.2d 1010, 1013 (5th Cir.1968); Garn-St. Germain Deposi- tory Institutions Act of 1982, Pub.L. No. 97-320, 96 Stat. 45a ized USBO, through a subsidiary bank insurance agency, to solicit and sell insurance to customers lo- cated throughout the country. Plaintiffs contend that the Comptroller’s decision permits USBO and its par- ent, U.S. Bancorp, a bank holding company regis- tered under the Bank Holding Company Act of 1956, id. $$ 1841-1849 (1988) (sometimes “BHCA’”’), to violate alleged geographic restrictions on insurance activities contained in both the NBA and the BHCA.* Id. $§ 92, 1843(¢)(8). There being no dispute as to any material fact, defendants and USBO moved for summary judgment or dismissal, and plaintiffs cross- moved for summary judgment. The issues have been fully briefed by the parties and the amici curiae.‘ 1511 (1982) [hereinafter Garn-St. Germain Act] (purport- ing to amend §92); 12 C.F.R. §$ 7.7100 (1989), we will assume that the statute exists in proprio vigore. * Defendants claim that two plaintiffs, the National Associ- ation of Life Underwriters (“NALU”) and the Oregon Life Underwriters Association (““OLUA”), lack standing because they represent insurance underwriters rather than agents. From plaintiffs’ uncontested response, however, it is clear that NALU and OLUA represent insurance agents, not under- writers. As such, they plainly have standing to proceed. See Clarke v. Securities Indus. Ass'n, 479 U.S. 388, 403, 107 S.Ct. 750, 759, 93 L.Ed.2d 757 (1987) (“[C]ompetitors who allege an injury that implicates the policies of the National Bank Act are very reasonable candidates to seek review of the Comptroller’s rulings.”). ‘ Plaintiffs have requested leave to file two supplemental exhibits. Proposed Exhibit 16, the text of a June 10, 1987, address by Richard V. Fitzgerald, Chief Counsel of the Comp- troller, is a post hoc commentary on the mental processes that led to the Comptroller's decision, and thus is not rele- vant to this case. See Camp v. Pitts, 411 U.S. 138, 142, 93 46a Il. Background A. USBO’s “New Activities” Proposal As a national bank, USBO is subject to the regula- tory jurisdiction of the Comptroller, the principal ex- positor of the NBA. See Clarke v. Securities Industry Association, 479 U.S. 388, 403-04, 107 S.Ct. 750, 759- 60, 93 L.Ed.2d 757 (1987) (citations omitted) ; First National Bank v. Smith, 610 F.2d 1258, 1264 (5th Cir.1980); 12 U.S.C. $$ 1-216d; 12 C.F.R. §$§ 1.1, 4.1la-4.-11 (1989). Under OCC regulations, a national bank wishing to perform “new activities” through a subsidiary must submit a written proposal to the Dep- uty Comptroller for the district in which the bank’s principal office is located. 12 C.F.R. $ 5.34(d) (1) (i). Upon receiving such a proposal, the Comptroller eval- uates whether the activities would “exceed those le- gally permissible for a national bank operating sub- sidiary.” Jd. $5.34(d)(1) (ii). If the Comptroller requires more than thirty days for this evaluation, he may extend the review period, in which case the bank must await “written notifications” before engaging in the “new activities.” /d. U.S. Bancorp, USBO’s parent, is regulated by the Federal Reserve Board (sometimes the “Board”), S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973) (per curiam) (focal point for judicial review of Comptroller’s decision should be administrative record already in existence, not some new record); Environmental Defense Fund v. Costle, 657 F.2d 275, 284 (D.C.Cir.1981) (judicial review of agency action normally confined to full administrative record before agency at time decision was made). Accordingly, leave to file this exhibit is denied. Leave is granted with respect to pro- posed Exhibit 17, a re-typed version of a previously filed letter from defendants’ counsel. 47a which administers the BHCA.’ See Whitney National Bank v. Bank of New Orleans & Trust Co., 379 U.S. 411, 419, 85 S.Ct. 551, 556-57, 13 L.Ed.2d 386 (1965); Northeast Bancorp, Inc. v. Board of Gover- nors, 849 F.2d 1499, 1501 (D.C.Cir.1988); 12 U.S.C. S$ 1841-1849; 12 C.F.R. § 225.1. U.S. Bancorp did not submit an application to the Board concerning the proposed “new activities’ of USBO. Consequently, the Board was never requested to nor did it approve U.S. Bancorp’s indirect involvement in certain insur- ance activities. Pursuant to OCC regulations, USBO, whose prin- cipal office is in Portland, Oregon, submitted a “new activities” proposal to the OCC’s Western District on October 16, 1984. USBO sought to offer, through its subsidiary U.S. Bank Insurance Agency, Inc. (“Bank Agency’), “a full range of insurance products” from a branch office of USBO in the small town of Banks, Oregon.” Letter from T. Dalrymple to Billy C. Wood (Oct. 16, 1984). USBO relied on section 92 of the NBA and a December 1, 1983, opinion letter * to con- duct the proposed activities. See id. * Although plaintiffs allege violations of the Bank Holding Company Act, neither U.S. Bancorp nor the Federal Reserve Board is a party to this action. * The 1980 census population of Banks was 489. *In 1983, USBO contacted the Assistant Commissioner of the Oregon Department of Commerce concerning the possi- bility of USBO’s acting as an insurance agent through branches in small Oregon communities. The Commissioner requested an opinion from the OCC as to the types of activi- ties authorized by 12 U.S.C. § 92. Letter from Robert E. Miller to Joe Pogar, Regional Counsel (Oct. 7, 1983). The OCC’s resultant opinion letter stated, in pertinent part: “[A} 48a The primary question raised by the proposal was whether any geographic restrictions applied to the solicitation or sale of insurance authorized by section 92 of the NBA. That section provides that any na- tional bank: located and doing business in any place the popu- lation of which does not exceed five thousand in- habitants, as shown by the last preceding decen- nial census, may, under such rules and reqgula- tions as may be prescribed by the Comptroller ..., act as the agent for any fire, life, or other insurance company authorized . . . to do business in [the state in which the bank is located], by soliciting and selling insurance and collecting premiums on policies issued by such company.... 12 U.S.C. $92 (emphasis added). A similar pro- vision applies to bank holding companies. See id. § 1843(c)(8)(C). Section 4(c)(8) of the BHCA national bank or its office may act as an insurance agent without geographic restriction to the community [in which] it is located. However, whether a national bank or its office may act as an insurance agent on an interstate basis is an unsettled issue.” Letter from Debra A. Chong, Senior At- torney, Western District, to Robert E. Miller at 1 (Dec. 1, 1983) [hereinafter Chong Letter]. * As originally enacted in 1916, § 92 also authorized such national banks to act as brokers or agents “in making or procuring loans on real estate located within one hundred miles of the” community. 39 Stat. 753 (1916). This provi- sion was deleted in 1982, Garn-St. Germain Act, supra note 2, 96 Stat. 1511, because Congress considered it “obsolete and unjustifiably restrictive.” H.R.Conf.Rep. No. 899, 97th Cong., 2d Sess. 89 (1982): accord S.Rep. No. 536, 97th Cong., 2d Sess. 27 (1982) [hereinafter Senate Report], U.S.Code Cong. & Admin.News 1982, 3054, 3081. 49a prohibits a bank holding company from engaging in, or acquiring and retaining “shares of any company” engaged in, nonbanking activities unless the Board determines that such activities are “so closely related to banking . . . as to be a proper incident thereto.” /d. $ 1843(c)(8); see Independent Insurance Agents of America, Inc. v. Board of Governors, 835 F.2d 1452, 1454 (D.C.Cir.1987). Subject to a few limited excep- tions, the BHCA precludes the Board from finding that the provision of “insurance as a principal, agent, or broker” is “closely related to banking.” See 12 U.S.C. §$ 1843(¢c)(8). One exception is “any insur- ance agency activity in a place” with “a population not exceeding five thousand (as shown by the last pre- ceding decennial census).” Jd. § 1843(c)(8)(C); see Independent Insurance Agents, 835 F.2d at 1455 nn. 4-5. This provision was added to the BHCA in 1982,’ and was “intended to conform to” Board regulations that already permitted such activity,” “as well as the * Garn-St. Germain Act, supra note 2, 96 Stat. 1536-37. ” Beginning in 1971, the Board determined that certain types of insurance activities were “so closely related to bank-— ing” that bank holding companies could engage in them under the BHCA. “One of these was the sale of any insurance in a community that had a population not exceeding 5,000.” Independent Ins. Agents, 835 F.2d at 1454. In 1979, the Boaré began to limit this exemption to bank holding com- panies that (1) had their principal place of business in a small town; and 2) operated another subsidiary serving the public in the small town in which they wished to sell insur- ance. See id. In 1986, after passage of the Garn-St. Germain Act, the Board deleted the principal place of business require- ment from its new regulations, having determined that it was not mandated by either the text or the purpose of § 4(c) (8). 12 C.F.R. § 225.25(b) (8) (ii)) (1989): see Independent Ins. 50a authority in” section 92 of the NBA. Senate Report, supra note 8, at 38, U.S.Code. Cong. & Admin.News 1982, p. 3092. Since 1963, over twenty-five years ago, the Comp- troller has applied section 92 to any branch office “lo- cated in a community .. . of less than 5,000,” regard- less of whether the bank’s principal office is located in a larger community. 12 C.F.R. § 7.7100 (first codi- fied in 1971)."" Similarly, a Board regulation allows Agents, 835 F.2d at 1455. The D.C. Circuit recently upheld the Board’s decision against an attack waged by many of the same trade associations that are plaintiffs in this case. See Independent Ins. Agents, 835 F.2d at 1456-57. '' After 23 years of silence, plaintiffs now assert that this interpretive ruling is invalid. They claim that Congress could not have intended to authorize insurance activities outside a bank’s “headquartered location” because in 1916, when § 92 was enacted, branch banking did not exist. Plaintiffs empha- size that the McFadden Act, 12 U.S.C. §§ 36, 81, which au- thorizes national banks to conduct business through branch offices, was not passed until 1927. This challenge, even if meritorious, is barred by laches. Independent Bankers Ass'n of Am. v. Heimann, 627 F.2d 486, 488 (D.C.Cir.1980). Plaintiffs are trade associations “charged by [their] members with anticipating the impact of govern- ment rulings” concerning insurance activities by banks. /d. at 488. As such, their long delay in challenging this ruling is patently unreasonable. See id. (12 years held unreasonable). Further, since 1963, some national banks have invested sub- stantial capital in insurance agency branches “that meet the ruling’s requirements.” J/d.; see, e.g., Letter from Michael J. O'Keefe, District Counsel, Midwestern District (June 19. 1986), Ex. 4 to Pls.Mem. [hereinafter O'Keefe Letter]; Let- ter from David H. Baris, Regional Counsel (Dec. 29, 1978). Ex. 2 to Pls.Mem. [hereinaften Raris Letter]. Equity will not protect those who “through Vears of silence halve] cre- ated an impression of acquiescence that has led others to make 5la a subsidiary of a bank holding company to engage “in any insurance agency activity in a place” the popula- tion of which does not exceed 5,000, provided the sub- sidiary “has a lending office” there. Jd. § 225.25(a), (b) (8) (iii).”” It is the Board’s policy, however, that solicitation and sales must be restricted to that place “and to other areas of less than 5,000 adjacent to”’ it. 51 Fed. Reg. 36,201, 36,206 (Oct. 9, 1986); see also First United Bancshares, Inc., 73 Fed.Res. Bull. 162 (1987). B. The Comptroller’s Approval Letter The Comptroller notified USBO that review of its proposal would extend beyond thirty days, and that USBO could not conduct the proposed insurance ac- tivities unless the Comptroller communicated in writ- ing that he had no objection. Letter from Rufus O. Burns, Jr., District Administrator, Western District, to T. Dalrymple (Oct. 24, 1984). Almost [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0352%3A02. Public record. Not legal advice.