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GUARANTY S&L ASSN. v. FHLBB

August 2, 1971

GUARANTY SAVINGS AND LOAN ASSOCIATION, Plaintiff,
v.
The FEDERAL HOME LOAN BANK BOARD et al., Defendants


Sirica, Chief Judge.


The opinion of the court was delivered by: SIRICA

SIRICA, Chief Judge.

 Plaintiff, a savings and loan association headquartered in Milwaukee, Wisconsin, brings this action for the entry of a preliminary injunction to restrain the defendant Federal Home Loan Bank Board (FHLBB) from approving the exact location of the branch of the Milwaukee Federal Savings and Loan Association, Milwaukee, Wisconsin, pursuant to the Federal Home Loan Bank Board Resolution No. 71-259. The plaintiff argues that the FHLBB had no proper and reasonable basis to approve Milwaukee Federal's application, because the administrative record underlying the approval and the Resolution were products of arbitrary and capricious acts of FHLBB. The defendants contend that the plaintiff has failed to meet the tests which would warrant the granting of any type of preliminary relief, and therefore asks that the Court deny the plaintiff's request for a preliminary injunction.

 On April 8, 1970, the plaintiff, a state-chartered savings and loan association, filed an application with the Wisconsin Savings and Loan Commissioner for permission to establish a branch office in Greenfield, Wisconsin. This application was approved on July 30, 1970, and plaintiff opened the branch for business on March 29, 1971.

 On October 5, 1970, Milwaukee Federal Savings and Loan Association, a federally-chartered association, filed an application for permission to establish a branch office located approximately one block away from the plaintiff's branch. The FHLBB notified plaintiff and all other competing institutions of the filing of Milwaukee Federal's branch application and it commenced a field investigation on the application. It should be noted that the records indicate that currently there are no other competing institutions within two miles of plaintiff's branch office in Greenfield, Wisconsin. Plaintiff was the sole objector to the approval of the application.

 On November 20, 1970, the plaintiff submitted its reasons why it objected to Milwaukee Federal's branch application, and it requested that a public hearing be held only if the Board decided to approve Milwaukee's application. Oral argument on the application was held on January 5, 1971, before the FHLBB's Supervisor Agent. The argument was conducted according to FHLBB regulation, 12 C.F.R. 545.14(h)(1970). Counsel for the plaintiff appeared at the argument and presented plaintiff's case.

 On March 18, 1971, the FHLBB approved Milwaukee Federal's branch application by Resolution No. 71-259, stating that the application met the regulatory considerations contained in 12 C.F.R. 545.14(c)(1970).

 On June 18, 1971, the plaintiff applied for the preliminary injunction to restrain the Board from approving the location of Milwaukee Federal's branch which is now before this Court.

 A plaintiff must satisfy four conditions in order for a preliminary injunction prohibiting or staying the establishment of a branch office approved by a banking or savings and loan regulatory agency to issue. He must show:

 (1) That the action of the agency in approving the branch application was arbitrary, capricious and an abuse of discretion and therefore that plaintiff is likely to prevail upon the merits;

 (2) That plaintiff will be irreparably injured unless the stay is granted;

 (3) That no substantial harm would result to the branch applicant;

 (4) That the public interest would be benefitted by the issuance of an injunction.

 First-Citizens Bank & Trust Co. v. Camp, 432 F.2d 481, 483 (4th Cir. 1970). See also Virginia Petroleum Job. Ass'n. v. Federal Power Commission, 104 U.S. App. ...


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