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PLAINTIFF v. FDIC

August 22, 1985

ANONYMOUS, Plaintiff,
v.
FEDERAL DEPOSIT INSURANCE CORPORATION, Defendant



The opinion of the court was delivered by: GREENE

 Plaintiff has served as an officer or director of several small banks 1 Defendant Federal Deposit Insurance Corporation (FDIC) is charged with monitoring the performance of federally insured banks and is empowered to detect, prevent, and remedy violations of federal banking laws and unsafe banking practices. See 12 U.S.C. § 1818(e); First National Bank of Scotia v. United States, 530 F. Supp. 162, 166 (D.D.C. 1982). On August 5, 1985, the FDIC served notice on plaintiff that, in the wake of its investigation of Bank, of which he had been an officer and director, *fn2" it was initiating an administrative proceeding pursuant to 12 U.S.C. § 1818(e)(1) and (2) *fn3" to remove him from office and to prohibit him from further participation in the affairs of other federally insured banks. On that same day, the FDIC notified plaintiff that, pursuant to its authority under 12 U.S.C. § 1818(e)(4) *fn4" it had issued an interim order immediately suspending plaintiff from office and prohibiting him from participating in any way in the affairs of any federally insured bank pending the outcome of the administrative removal proceedings.

 Plaintiff promptly *fn5" brought suit in this Court seeking a temporary restraining order and/or a stay of the FDIC's interim suspension order (see 12 U.S.C. § 1818(f)) *fn6" and a declaratory judgment that the FDIC proscription from participation in the affairs of any federally insured bank was overbroad and beyond the FDIC's statutory authority. The FDIC has opposed plaintiff's motions, has moved to transfer venue, and has moved for reconsideration of the Court's previous order sealing these proceedings. The Court heard oral argument on all of the motions on August 16, 1985, and they are now ripe for decision.

 I

 The FDIC has moved to transfer this case pursuant to 28 U.S.C. § 1404(a) to , which is the district in which the home office of the Bank is located and is therefore the alternative district in which this suit may be brought under 12 U.S.C. § 1818(f). In support of its motion the FDIC argues that at least two of the bank examiners whose testimony might prove useful are located in that district and that other examiners and documents are located in Memphis, Tennessee, which is somewhat closer to that court than to Washington, D.C.

 The courts have repeatedly held, however, that unless the balance of conveniences greatly favors the alternative forum, the plaintiff's forum choice should ordinarily be afforded considerable respect. See, e.g., NAACP v. Levi, 418 F. Supp. 1109, 1113-14 (D.D.C. 1976); see generally, 15 Wright, Miller & Cooper, Federal Practice and Procedure : Civil § 3848 (1976 and Supp.). Here, the relevant statute explicitly establishes the District of Columbia as an appropriate forum for hearing section 1818(f) stay proceedings. See note 6, supra. The FDIC maintains its main offices here. Although the distance from Memphis to the alternative district may be somewhat less than from Memphis to Washington, air transportation from Memphis to the District can hardly be considered more difficult than transportation to the alternative district. And finally, neither the parties nor the Court contemplate lengthy proceedings in this action. In such circumstances, the Court sees no basis whatever for concluding that the Western District of would be a significantly more convenient forum for the parties and witnesses and for transferring the case there in derogation of plaintiff's forum choice. Accordingly, the motion to transfer venue will be denied.

 II

 The FDIC has also requested the Court to reconsider its previous order (per Johnson, J.), granting plaintiff's motion to seal the entire proceeding in this case. In support of this request, the FDIC notes that there is a strong presumption that judicial proceedings should be open to the public unless closure is essential to the interests of justice. See In re Application of National Broadcasting Co. (United States v. Jenrette), 209 U.S. App. D.C. 354, 653 F.2d 609, 612-13 (D.C. Cir. 1981); 28 C.F.R. § 50.9. At the same time, the FDIC seeks to maintain under seal all copies of the relevant FDIC bank examiners' reports, which have traditionally been recognized to be confidential and privileged. See Bank of America National Trust & Savings Ass'n v. Douglas, 70 App. D.C. 221, 105 F.2d 100, 104 (D.C. Cir. 1939); Denny v. Carey, 78 F.R.D. 370, 373 (E.D. Pa. 1978).

 The federal courts have recognized that the sealing of court records may be justified when a litigant's privacy interest outweighs the public's right to know, and that the balancing of these important interests is a matter committed to the trial court's sound discretion. See In Re Knoxville News-Sentinel Co., Inc., 723 F.2d 470, 474 (6th Cir. 1983). In this case the allegation in plaintiff's papers, which must be accepted as true for the purpose of deciding this motion, is that disclosure of the pending FDIC administrative proceeding and enforcement of the interim suspension order will irreparably destroy his reputation in the banking community. Indeed, it is precisely to prevent the injury that would accrue from the publicity attendant to the disclosure of the pending FDIC administrative removal proceedings that plaintiff has initiated the instant suit. *fn7"

 The FDIC's proposed modification of the sealing order, which would seal the bank examiners' reports but unseal all other aspects of these proceedings, would frustrate this purpose. The release of some, but not all, of the information brought forward in this proceeding would necessarily create a significant possibility that the publicly available information would create a distorted, misleading impression of the allegations and evidence involved. It would also achieve the perverse result that plaintiff's § 1818(f) stay application to prevent injury to his reputation would trigger precisely the sort of adverse publicity he has filed this suit to prevent. Finally, and most importantly, unsealing these proceedings might not only harm plaintiff's reputation but also undermine public confidence in the soundness of the banks which he participates in managing. Such results seem neither necessary nor just.

 III

 This brings us, finally, to the merits of plaintiff's motions. In support of his motion for a stay under 12 U.S.C. § 1818(f) of the FDIC's interim suspension order, plaintiff argues that he clearly satisfies the traditional criteria for preliminary injunctive relief, *fn8" which are presumably applicable to § 1818(f) stay proceedings. ...


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