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July 28, 1992


The opinion of the court was delivered by: JOHN F. GERRY

 GERRY, Chief Judge

 This is a case born out of the infamous savings and loan crisis and the legislation passed by Congress in the late 1980's in an attempt to avert it. The plaintiff is Security Savings Bank ("Security"), a relatively successful New Jersey savings and loan institution, which is suing the Office of Thrift Supervision ("OTS"), the federal regulatory agency charged with regulation of the savings and loan industry, and the Federal Deposit Insurance Corporation ("FDIC"), the agency responsible for insuring the accounts of depositors in thrift institutions, on what is essentially a breach of contract claim. Security claims that it entered into an agreement with federal regulators *fn1" in the early 1980's by which it agreed to take over two failing thrift institutions in exchange for which the government agreed to relax certain regulatory requirements regarding the amount of capital Security was required to maintain over the next 10-15 years. In 1989, Congress passed the Financial Institutions Reform, Recovery, and Enforcement Act ("FIRREA"), which, among other things, strengthened the regulatory capital standards for the thrift industry, effectively increasing the levels of capital that thrifts were required to maintain and specifically prohibiting the loophole through which Security had been granted more lenient treatment in the early 1980's. Claiming that their agreement with the federal government in the early 1980's was a binding contract, Security is now challenging the imposition of these new capital requirements as a breach of contract, and an unconstitutional taking under the fifth amendment. *fn2" Defendants have moved to dismiss both for lack of subject matter jurisdiction and on the merits of plaintiff's claims, and plaintiff has cross-moved for summary judgment. Because we find that this court lacks subject matter jurisdiction over any of plaintiff's claims, defendants' motion to dismiss will be granted and plaintiff's motion for summary judgment will be denied.

 I. Factual Background

 During the late 1970's and early 1980's, record high interest and inflation rates pushed the cost of retaining and obtaining depositors for savings and loan institutions substantially above the rate of return that such institutions were receiving on their portfolios of long-term, low-yielding fixed rate mortgages. This, in part, precipitated the much-publicized savings and loan crisis, which threatened to deplete the reserves of the Federal Savings and Loan Insurance Corporation ("FSLIC"). In an attempt to avoid wherever possible the expense of having to liquidate insolvent S&L's and pay insurance claims on the accounts, the FSLIC attempted to induce financially sound institutions to merge with troubled thrifts, and thus save them from insolvency. In order to induce the healthy thrifts to enter into these mergers, the FSLIC promised cash contributions, as well as certain regulatory forbearances, which would essentially allow the thrifts to maintain levels of capital substantially lower than those required by law.

 Federal regulations require savings and loan institutions to maintain levels of capital funds equal to a certain percentage of their total liabilities. In order to allow institutions that acquired ailing thrifts to avoid these minimum capital requirements, the FSLIC authorized the use of an accounting method (the "purchase method") which essentially creates fictional capital, called "supervisory goodwill," which is used to make the thrifts' financial records appear as if regulatory capital requirements are being met. "Supervisory goodwill" is a fictitious dollar amount equal to the amount by which the acquired (failing) institution's liabilities exceed its assets. Paradoxically, this means that the weaker the acquired institution, the more supervisory goodwill it creates. This supervisory goodwill can then be recorded as a capital asset by the healthy, acquiring institution in order to meet regulatory minimum capital requirements, and it may be amortized on a straight-line basis over a period of up to 40 years. *fn3"

 In this case, Security claims that the FSLIC made just such an agreement regarding supervisory goodwill in order to induce it to acquire two failing thrifts in 1982: First Federal Savings and Loan of Burlington county, New Jersey ("Burlington"), and Princeton Savings and Loan Association ("Princeton"). security agreed to acquire the ailing thrifts, thus saving the government millions of dollars in liquidation and insurance costs, in return for the government's promise to allow security to amortise supervisory goodwill over a period of 30 years. Security claims that this provision was essential to their participation in the agreement, and that "had Security not been permitted to record the supervisory goodwill as an amortizing asset included in regulatory capital, Security's acquisition of Burlington and Princeton . . . would have decimated security's regulatory net worth, crippled its prospective financial performance, and destroyed its reputation as a financially sound institution." *fn4" As evidence of this agreement, Security points to a number of documents executed around the time of the mergers, including an Assistance Agreement between the FSLIC and Security, several forbearance letters issued by the Federal Home Loan Bank Board ("FHLBB"), and an FHLBB Resolution. Security contends that when viewed as a whole, these documents establish the existence of a binding contract between the parties.

 Congress enacted FIRREA in 1989 in response to the savings and loan crisis. In addition to providing billions of dollars in funds to close insolvent institutions and recapitalize the federal insurance fund, the Act set new stricter standards for the minimum capital requirements to be imposed on thrifts, and required the OTS -- the successor to the FHLBB -- to promulgate new regulations implementing these standards. Under the new regulations, which went into effect on December 7, 1989, see 54 Fed. Reg. 46861, the amount of "supervisory goodwill" that may be used to meet minimum capital levels is severely restricted.

 Initially, the OTS granted Security an exemption from these regulations based on a Capital Plan submitted by security according to which it planned to meet all requirements by the end of 1994. Security, however, was unable to meet the targets set out in its Capital Plan, and by January, 1991, the OTS began imposing various restrictions on Security, including, inter alia, 1) prohibiting Security from making, investing in, purchasing, or refinancing certain types of commercial loans without prior written non-objection from the OTS; 2) prohibiting Security from releasing any borrower from personal liability without prior written non-objection from the OTS; 3) prohibiting capital distributions; and 4) limiting the compensation of directors, executive officers and other employees. The OTS is now also requiring Security to adhere to a revised capital plan and threatens to take further restrictive action if Security violates that plan.

 Security alleges that these restrictions imposed by the OTS have forced it to reduce its size and have prevented it from taking advantage of opportunities that would enable it to increase earnings and capital through growth. Security alleges that imposition of new capital requirements pursuant to FIRREA constitutes a breach of its original contract and an unconstitutional taking. Security is seeking declaratory and injunctive relief as well as costs and attorneys' fees.

 II. Jurisdiction

 As with any action brought before the court, our first task must be to determine whether subject matter jurisdiction is proper in this court. It is well established that a federal court may not exercise jurisdiction over a claim against the United States unless there exists by federal statute both an affirmative grant of subject matter jurisdiction as well as an express waiver of sovereign immunity. According to defendants, there is only one statute that provides such a grant of jurisdiction and waiver of immunity with respect to the type of claims against the United States that plaintiff brings here, and that is the Tucker Act. Since the Tucker Act only provides for jurisdiction over such claims in the United States Claims Court, they argue that this court lacks jurisdiction over plaintiff's claims.

 The Tucker Act reads as follows:

 The United States Claims Court shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States.

 28 U.S.C. ยง 1491. The Act also provides that such jurisdiction is concurrent with that of the district courts for claims not exceeding $ 10,000. *fn5" The Supreme Court has held that this language operates both as a waiver of sovereign immunity and a grant of jurisdiction to the Claims Court. See United States v. Mitchell, 463 U.S. 206, 216, 77 L. Ed. 2d 580, 103 S. Ct. 2961 (1983).

 It is often said that for Tucker Act claims seeking damages of more than $ 10,000 against the United States, the Claims Court's jurisdiction is exclusive. See Bowen v. Massachusetts, 487 U.S. 879, 910, 101 L. Ed. 2d 749, 108 S. Ct. 2722 n. 48 (1988). There is some dispute, however, as to whether this is so because the Tucker Act itself affirmatively forbids any concurrent jurisdiction over such claims, see, e.g., Sharp v. Weinberger, 255 U.S. App. D.C. 90, 798 F.2d 1521, 1524 (D.C.Cir. 1986), or because in most instances there simply is no other statute that provides the requisite waiver of sovereign immunity. See, e.g., Hahn v. U.S., 757 F.2d 581, 586 (3d Cir. 1985). To the extent that the Claims Court's jurisdiction under the Tucker Act is exclusive in the first sense, injunctive relief against the government is simply not available, since the Tucker Act provides for relief only in the form of damages.

 Plaintiff's contract and constitutional claims present analytically distinct problems with respect to the impact of the Tucker Act on this court's jurisdiction, and we therefore address them separately. We will begin with the Fifth Amendment takings claim *fn6" because the Third Circuit has recently provided us with some much needed guidance on this issue in Carteret Savings Bank v. OTS, 963 F.2d 567 (3d Cir. May 7, 1992).

 A. Takings claim

 The takings clause does not prohibit the taking of private property per se, but rather requires that if such a taking occurs, just compensation be paid. Such compensation need not be paid in advance or even contemporaneously with the taking. See Preseault v. I.C.C., 494 U.S. 1, 110 S. Ct. 914, 921, 108 L. Ed. 2d 1 (1990). Therefore, "equitable relief is not available to enjoin an alleged taking of private property for a public use, duly authorized by law when a suit for compensation can be brought against the ...

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