The opinion of the court was delivered by: CHARLES R. RICHEY
Before the Court is the Petition of the Resolution Trust Corporation ("RTC") for Summary Enforcement of Administrative Subpoenas, and the Respondents' Motion for Change of Venue in the above-captioned action. The Court has carefully considered the submissions of the parties, the applicable law, and the entire record herein, and concludes that this matter must be transferred to the United States District Court for the Southern District of Texas for all further proceedings, because the regulations relied upon by the RTC in the course of this investigation preclude bringing the enforcement action in this forum. Accordingly, the Respondents' Motion for Change of Venue shall be granted.
Congress granted the RTC subpoena authority by conferring upon the RTC the powers granted to the FDIC. See 12 U.S.C. § 1441a(b)(4). Section 1821(d)(2)(I)(i) of the Financial Institutions Reform, Recovery and Enforcement Act of 1989 ("FIRREA") gives the FDIC and the RTC the powers established in Section 1821(n), including the subpoena power. Until the RTC adopts its own strategies, policies, goals, regulations, and rules, the RTC, in exercising its broad statutory powers,
may carry out its duties in accordance with the strategies, policies, goals, regulations, rules, operating principles, procedures, or guidelines of the Federal Deposit Insurance Corporation, notwithstanding the provisions of section 553 of Title 5 [the Administrative procedures Act].
12 U.S.C. § 1441a(a)(7) (emphasis added).
Among the regulatory provisions cited by the RTC in its counsel's letter and in its Order of Investigation is a regulation providing that a person who conducting an investigation has the power
to issue subpoenas and subpoenas duces tecum and to apply for their enforcement to the United States District Court for the judicial district or the United States Court in any territory in which the main office of the bank, institution, or affiliate is located or in which the witness resides or conducts business.
12 C.F.R. § 308.89 (1991) (currently codified at 12 C.F.R. § 308.146 (1992)) (emphasis added).
Under this regulatory provision, venue would be proper in the District of Columbia only if the main office of the institution were located here, or if a witness resides or conducts business here. 12 C.F.R. § 308.89 (1991). Under the relevant statute, 12 U.S.C. § 1818(n), however, the District of Columbia is a permissible venue for RTC subpoena enforcement petitions regardless of whether or not there is a factual nexus with this forum.
In this case, the subpoenas were issued by RTC attorneys based in Texas, and served on a Houston, Texas law firm and a Texas lawyer and resident. The RTC seeks documents located in Texas. The subpoenas arise out of an RTC investigation being conducted in Texas. The investigation concerns acts allegedly committed in Texas by respondents while they provided legal services for the RTC as conservator for a savings and loan association, BancPlus Federal Savings Association, located in Texas. Respondents argue that because there is little factual nexus to the District of Columbia in this case, the RTC is prevented by its own regulations from seeking enforcement in this forum. 12 C.F.R. § 308.89 (1991). The RTC contends that the FDIC's regulations do not bind the RTC, because under 12 U.S.C. § 1441a(a)(7), the RTC may, but is not required, to use the FDIC's regulations.
The Court agrees that the RTC is not bound to use the FDIC's regulations. In this case, however, the RTC has already used the FDIC's regulations. The RTC relied upon and cited the relevant FDIC regulations in both its Order of Investigation and in a letter to respondents' counsel. RTC Petition for Summary Enforcement, Ex. 1, 8. The RTC did not attempt exclude the regulation governing venue for subpoena enforcement proceedings from its incorporation of the regulations.
Having adopted the regulation, the RTC is now bound to follow it. See, e.g., United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 98 L. Ed. 681 , 74 S. Ct. 499 (1954); Esch v. Yeutter, 278 App. D.C. 98, 876 F.2d 976, 991 & n. 163 (D.C. Cir. 1989) (procedural error for agency to violate own regulations); Reuters Ltd. v. FCC, 251 App. D.C. 93, 781 F.2d 946, 947, 950 (D.C. Cir. 1986) (agency must abide by its rules and regulations). Regulations would have no meaning whatsoever if the RTC were free, after adopting and citing certain regulations in the course of an investigation, to simply disregard those regulations after the fact and without notice to adverse parties. Such a notion offends the concepts of fairness and due process.
Therefore, the Court shall hold the RTC to the regulations that it has invoked, and shall transfer this action to the United States District Court for the Southern District of Texas.
The Southern District of Texas is the district where the relevant institution, BancPlus Federal Savings Association, is located, where respondents are located, and ...