The opinion of the court was delivered by: RICHEY
CHARLES R. RICHEY, District Judge.
This action arises out of a Complaint for a Declaratory Judgment and Injunctive Relief under Section 36 of the National Bank Act (12 U.S.C. § 36) and Section One of the Declaratory Judgment Act (28 U.S.C. § 2201), by Plaintiff Wood County Bank, a West Virginia state banking association, against Defendant William B. Camp, the Comptroller of the Currency of the United States, and Defendant-Intervenor, Union Central National Bank, the successful applicant for the bank charter at issue here. Plaintiff alleges the existence of a federal question and that the amount in controversy here exceeds, exclusive of interest and costs, the sum of $10,000.00.
Plaintiff seeks to set aside the Defendant Comptroller's approval of a bank charter for Defendant-Intervenor Union Central National Bank. Plaintiff claims that the Defendant Comptroller acted arbitrarily and capriciously and abused his discretion in approving the proposed banking facility based on the economic data contained in the Administrative Record, and that the Comptroller acted unlawfully in failing to issue findings of fact and a reasoned opinion disclosing the legal and factual bases for his action.
The Comptroller argues that he has never made such findings of fact in support of bank charter decisions and as a matter of law does not feel required to make such findings.
1. In early 1971, the Union Trust Bank of Parkersburg, West Virginia applied to the West Virginia Board of Banking and Financial Institutions for permission to establish a banking facility to be called Union Central Bank in the Grand Central Mall, a shopping center under construction just outside Parkersburg.
2. On July 27, 1971 the Banking Board denied this application.
3. After this denial, Union Trust announced its intention to convert to a national charter and operate under the name "Union Trust National Bank," and changed the name of the proposed Mall facility to "Union Central National Bank."
4. Application was made to the Comptroller of the Currency for federal authorization for the proposed Mall bank and hearings were held upon request of Wood County Bank pursuant to the Comptroller's published regulations providing the right to request a hearing.
5. This application received preliminary approval from the Comptroller on May 25, 1972.
6. In accordance with the Comptroller's long standing policy, he issued here no findings of fact or conclusions of law in support of his decision and merely stated that "this application has been approved."
7. On June 28, 1972 Wood County Bank instituted this action seeking judicial review of the Comptroller's decision, after having been denied an application for an administrative stay.
8. On August 7, 1972 this Court granted the Motion of Union Central National Bank for Leave to Intervene as a Party Defendant and heard oral argument on Plaintiff's Motion for a Preliminary Injunction. Cross-Motions for Summary Judgment are presently pending.
Plaintiff argues that the Comptroller has a legal duty to support his approval of the proposed facility with findings of fact and a well reasoned opinion, and that a preliminary injunction should issue until the case has been decided on the merits.
Defendant-Intervenor Bank argues that any injunction or remand to the Comptroller would do irreparable economic harm to its new business opportunity and that the public interest of the merchants and employees of the shopping mall would be adversely affected.
CONSTITUTIONAL REQUIREMENT FOR FINDINGS OF FACT
The Comptroller's bank charter hearings are of a similar nature to zoning hearings of the type discussed in the recent case of Capitol Hill Restoration Society v. Zoning Commission, D.C. App., 287 A. 2d 101 (1972). There, the D.C. Court of Appeals held that when a proceeding before an agency assumes an adjudicatory nature the proceeding is governed by the procedural safeguards of District of Columbia Administrative Procedure Act (D.C. Code 1967, § 1-1501, et seq. Supp. IV, 1971). Among those safeguards is the requirement for findings of fact and conclusions of law.
While the Comptroller may not be directly subject to the findings and conclusions requirement of Section 8B of the Federal Administrative Procedure Act (5 U.S.C. § 551 et seq.) since he is not necessarily required to hold hearings on applications such as the one in the case at bar, he is nevertheless, required to meet certain requirements of procedural due process once a public hearing has been granted.
Whether findings of fact number among those requirements here depends on whether the hearings held in this case pursuant to 12 C.F.R. § 5.1-.14 were adjudicatory or legislative in nature.
If the hearings held were legislative in nature no findings are necessarily required. However, if adjudicatory, fundamental due process demands such findings in order to determine if the Comptroller acted within the scope of his authority and if the Comptroller's action was justifiable under the applicable standard.
As Mr. Chief Justice Hughes stated in the landmark case of Panama Refining Co. v. Ryan, 293 U.S. 388, 432, 55 S. Ct. 241, 253, 79 L. Ed. 446, 465 (1935), "due process of law requires that it shall appear that the order is within the authority of the officer, board, or commission, and, if that authority depends on determinations of fact, those determinations must be shown."
ADJUDICATORY HEARINGS VERSUS LEGISLATIVE HEARINGS
The Comptroller contends that hearings held pursuant to 12 C.F.R. § 5.1-.14 are legislative in nature and are not held as a matter of statutory or constitutional right but merely as an investigatory aid.
A review of the relevant definitions, however, leads the Court to conclude that the Comptroller is in error, and notwithstanding whatever label he might affix, the nature of his branch bank charter hearings are adjudicatory and not legislative.
A "contested case" is defined in D.C. Code 1967, § 1-1502(8) (Supp. IV, 1971), as
"Contested case" is synonymous with "adjudication" as defined in the Federal Administrative Procedure Act, 5 U.S.C. § 551(7) (1970), except in ratemaking ...