The opinion of the court was delivered by: SMITH
This action challenges the constitutionality of § 8(g)(1) of the Federal Deposit Insurance Act, 12 U.S.C. § 1818(g)(1), which provides for temporary suspension from office of a bank officer who has been indicted for a felony involving dishonesty or breach of trust. The case is before the Court on plaintiff's application for a three-judge court, his motion for a preliminary injunction, and defendants' motion to dismiss. For reasons set forth infra, the Court finds it lacks subject matter jurisdiction and accordingly grants defendants' motion to dismiss.
On May 9, 1973, plaintiff was named a defendant in a nine count felony indictment charging mail fraud under 18 U.S.C. § 1341. The indictment alleges a fraudulent scheme to evade property taxes owed to Cook County and the City of Chicago, Illinois, in two properties owned by plaintiff. At the time of the indictment, plaintiff was the President and a Director of the Jefferson State Bank, Chicago, Illinois, an insured nonmember bank of defendant Federal Deposit Insurance Corporation ("Corporation"). On February 8, 1974, the Corporation's Board of Directors, acting pursuant to § 1818(g)(1), issued a Notice and Order of Suspension which suspended plaintiff from his position as President and Director.
Section 1818(g)(1) provides in pertinent part:
"(g)(1) Whenever any director or officer of an insured bank, or other person participating in the conduct of the affairs of such bank, is charged in any information, indictment, or complaint authorized by a United States attorney, with the commission of or participation in a felony involving dishonesty or breach of trust, the appropriate Federal banking agency may, by written notice served upon such director, officer, or other person suspend him from office and/or prohibit him from further participation in any manner in the conduct of the affairs of the bank."
"Such suspension and/or prohibition shall remain in effect until such information, indictment, or complaint is finally disposed of or until terminated by the agency."
Jurisdiction for enforcement of any outstanding Notice or Order of Suspension is conferred upon the United States district courts by § 8(i) of the Act, 12 U.S.C. § 1818(i), which also provides:
Defendants contend that § 1818(i) is a flat statutory withdrawal of jurisdiction over plaintiff's constitutional attacks on § 1818(g)(1). Plaintiff, while not contesting the constitutionality of § 1818(i) on its face, nevertheless urges the Court to ignore the section on grounds it acts to perpetuate the vitality of § 1818(g)(1) thereby compounding the constitutional injury. The Court views this position as essentially a due process attack on the jurisdictional withdrawal statute itself and will consider it as such.
This Court's jurisdiction over justiciable cases and controversies derives, of course, from Art. III, Sec. 1 of the Constitution which provides in part:
"The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."
The notion that all federal courts, other than the Supreme Court, derive their jurisdiction from the authority conferred upon Congress by Art. III, Sec. 1 is one of the most time tested in our Nation's judicial history. See, Sheldon v. Sill, 49 U.S. (8 How.) 441, 448-9, 12 L. Ed. 1147 (1850); Lockerty v. Phillips, 319 U.S. 182, 187, 87 L. Ed. 1339, 63 S. Ct. 1019 (1943). Cf., Palmore v. United States, 411 U.S. 389, 401, 36 L. Ed. 2d 342, 93 S. Ct. 1670 (1973). When, as in the present case, Congress decides to withdraw jurisdiction from the federal courts, our inquiry is a narrow one limited to deciding whether the cause of action in question was of the type which Congress sought to remove from federal judicial review. If the action is so plainly outside the scope of that which Congress desired to protect from our examination, it follows, a fortiori, that the action may proceed assuming jurisdiction otherwise exists. Thus, for example, in the case of the Anti-Injunction Act, 26 U.S.C. § 7421(a), which prohibits suits for the purpose of restraining the assessment or collection of any federal tax, the Supreme Court has held that the Act is inapplicable if "it is clear that under no circumstances could the Government ultimately prevail." Enochs v. Williams Packing Co., 370 U.S. 1, 7, 8 L. Ed. 2d 292, 82 S. Ct. 1125 (1962). The Court's rationale in Enochs was that in such cases the exaction is merely in the "guise of a tax" and hence allowing judicial intervention would not frustrate the Act's purpose of insuring the uninterrupted collection of legitimate taxes. Ibid.
Similarly, in cases arising under the Military Selective Service Act of 1967, 50 U.S.C.A. App. §§ 451-473, the Supreme Court has permitted limited judicial review despite § 10(b)(3) of that Act, 50 U.S.C.A. App. § 460(b)(3), which proscribes judicial review of the classification or processing of any registrant, except as a defense to a criminal prosecution for refusing to be inducted. In Clark v. Gabriel, 393 U.S. 256, 21 L. Ed. 2d 418, 89 S. Ct. 424 (1968), the Court upheld the constitutionality of § 10(b)(3) on grounds that to allow preinduction review would create the sort of disruption which Congress sought to prevent when it passed § 10(b)(3), namely, "litigious interruptions of procedures to provide necessary military manpower." Id. at 258. Accord, Fein v. Selective Service System Local Board No. 7, 405 U.S. 365, 31 L. Ed. 2d 298, 92 S. Ct. 1062 (1972). But on the same day it decided Gabriel, the Court allowed preinduction review in another Selective Service case. Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 21 L. Ed. 2d 402, 89 S. Ct. 414 (1968). In that case, the Selective Service granted appellant a divinity student exemption only to revoke it a short time later on account of appellant's delinquency in not complying with certain Selective Service regulations. The Court found that the Board had acted in a lawless manner in depriving appellant of a statutory exemption because of conduct "unrelated to the merits of granting or continuing the exemption." Id. at 237. In finding that the case involved a "clear departure by the Board from its statutory mandate," the Supreme Court concluded that to consider the ...