esoteric subjects, a remand for an express explanation may be desirable as an aid to the reviewing court. Such situations, when they arise, will be ad hoc only, and not such as to warrant a fixed rule to be applied in all cases.
There is danger, too, in cases like this one, that such a remand may subtly involve a reviewing court in a substitution of judgment. The decision here was in November, 1977. It is now nearly 3 years later. The action taken was on the basis of forecast with informed judgment and expertise. The Board now has data, no doubt, of actual experience. If it is to ignore that experience and spell out reasoning as of late 1977, what useful purpose will it serve? If it makes use of actual results, the review will not be testing the same question the Board had in 1977. Many pertinent elements have no doubt changed. For one thing, FSLIC and FDIC insurance has this year been increased from $ 40,000 to $ 100,000., just as SIPC has recently increased its insurance to $ 500,000. Had those 1980 changes been known in advance, as of 1977, would the decision have been the same?
The fuel shortage of 1979 had not occurred when the Board acted. It, and the periodic rise in fuel costs, have had their broad impact on all phases of the economy. Should this be taken into account on a remand?
Such obvious questions make it clear that a remand in this field would not only generate controversy rather than produce clarification, but it would convert an authorization resolution into a short-term permit subject to reconsideration in the light of actual experience.
This is not what the statute and regulations contemplate. An applicant who secures authorization and promptly proceeds to exercise it is inevitably involved in long-term commitments. There is no way to restore the status quo ante.
For each and all of these reasons, the court concludes that no remand for explanation of reasons is warranted.
At the pretrial conference, Fort Lee "amended" its complaint in intervention to add a claim for money damages. Morsemere indicated it would make a like amendment. There were indications that both would file cross-motions for summary judgment. None of these steps was taken.
The disposition made here, however, decides the underlying basis for all claims adversely to Morsemere and Fort Lee and the other aspects in the case or potentially in the case are accordingly moot, and the judgment will be final as to all parties and all issues.
The action of the Board had a rational basis, and so was not arbitrary, capricious or contrary to law. There is no Fifth Amendment property right, and no deprivation thereof without due process of law. The basis for the agency decision is so clearly evident from a review of the record as not to warrant a remand for explanation of reasons, whether as an aid to the court or otherwise. Submit judgment accordingly.