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JONES v. OFFICE OF THE COMPTROLLER OF THE CURRENCY

October 22, 1997

REVEREND JOSEPH L. JONES, Plaintiff,
v.
OFFICE OF THE COMPTROLLER OF THE CURRENCY, Defendant.



The opinion of the court was delivered by: FRIEDMAN

 This matter is before the Court on plaintiff's motion for preliminary injunction or summary judgment and defendant's motion to dismiss or for summary judgment. Upon consideration of the briefs submitted by the parties, the exhibits and declarations attached to those briefs and the administrative record, the Court denies plaintiff's motion for preliminary injunction or for summary judgment and grants defendant's motion to dismiss for lack of subject matter jurisdiction over the claims brought under the Fair Housing Act and over one of the claims brought under the Administrative Procedure Act. As to plaintiff's other APA claim, the Court concludes that defendant is entitled to summary judgment.

 I. BACKGROUND

 Plaintiff is an African-American who founded the Plaisance Development Corporation ("PDC") to develop and increase the availability of adequate and affordable housing in an unincorporated, rural, poor and predominately African American community called Plaisance, next to the city of Opelousas, Louisiana. Complaint P 23. Plaintiff is also a shareholder in First Commerce Corporation ("FCC"), a bank holding company. Id. P 3. Plaintiff has sought loans to finance sewer improvements in the Plaisance community, but local banks, including First Acadiana National Bank, a subsidiary of FCC, have repeatedly turned him down. Id. PP 9- 10. Plaintiff alleges both intentional discrimination and disparate impact in lending by these local banks. Id. PP 11, 16, 52-57.

 Defendant, the Office of the Comptroller of the Currency ("OCC"), is a federal agency and a bureau of the Department of the Treasury, charged under the Comptroller of Currency Act and the National Bank Act with chartering banks and with supervising the national banking system. The OCC also has responsibility for monitoring the compliance of national banks with fair lending laws that prohibit illegal racial discrimination. 12 U.S.C. §§ 1, et seq., 21, et seq., 481. The OCC accomplishes this mission chiefly through a staff of bank examiners who are distributed among six District Offices, including the Southwestern District Office in Dallas, Texas ("SWDO"). Def.'s Mem. at 2.

 Title VIII of the Civil Rights Act of 1968, also known as the Fair Housing Act of 1968 ("FHA"), 42 U.S.C. §§ 3601-3619, prohibits discrimination in real estate lending. National bank examiners administer special compliance examinations that determine the level of bank compliance with this Act and several other laws touching the banking industry. If the OCC discovers instances of discrimination that violate the FHA or the Equal Credit Opportunity Act ("ECOA"), 15 U.S.C. §§ 1691-1691f, in the course of these examinations, it is authorized to refer the matter to the Attorney General and request that an appropriate civil action be instituted. If the OCC does not refer the matter to the Attorney General, it must notify the Department of Housing and Urban Development of the suspected violation. See 15 U.S.C. § 1691e(k); Def.'s Statement of Material Facts at PP 3,4. In the course of its regular periodic examinations under the Community Reinvestment Act of 1977 ("CRA"), 12 U.S.C. §§ 2901-2905, and in assigning CRA ratings to national banks, the OCC also considers a national bank's performance under the FHA. Def.'s Statement of Material Facts at P 5. *fn1"

 By letters dated August 30, September 6 and September 8, 1994, First National Bank of Commerce ("FNBC"), an FCC subsidiary, gave written notice to the OCC, as required by relevant banking regulations, that it planned to acquire Wolcott Mortgage Group, Inc. in the cities of Metarie and Slidell, Louisiana. Admin. Rec., Vol. 2, 1113-1114 (August 30, 1994 letter to Edward G. Graves, Director of Analysis SWDO of OCC, from Ashton Ryan, FNBC). On September 14, 1994, plaintiff sent the OCC a letter and a video tape that opposed the acquisition because of the alleged failure of FCC and its member banks to comply with the Fair Housing Act and the CRA. Admin. Rec., Vol. 2, 1077-1089. *fn2"

 In its acknowledgment of Reverend Jones' letter, the OCC explained that the FNBC's notice of intent to acquire Wolcott was not subject to any rules allowing for public notice or comment and that the OCC therefore could not consider plaintiff's comments with respect to FNBC's acquisition of Wolcott Mortgage Group. Admin. Rec., Vol. 2, 646-47 (September 22, 1994 letter to Rev. Joseph Jones from Edward M. Graves, Director for Bank Analysis, OCC). In the same acknowledgment, however, the OCC informed plaintiff that his comments regarding FCC and its subsidiaries would be considered in the OCC's analysis of two pending merger applications submitted by FNBC and another FCC subsidiary, First National Bank of Lafayette. Id. at 1-2; see Def.'s Statement of Material Facts at PP 8-12. On September 26, 1994, the OCC made its final recommendation not to object to FNBC's acquisition of Wolcott and so notified FNBC. Def.'s Statement of Material Facts at P 13.

 Reverend Jones' September 1994 letter triggered a comprehensive investigation into his past and present complaints regarding FCC and its member banks. It also led to a series of communications between the OCC and plaintiff and to the OCC referring his complaint to HUD for further investigation. Def.'s Statement of Material Facts at PP 9-21. On December 6, 1994, OCC Southwestern District Office Compliance Director Gene Ferner and Compliance Examiner Craig Stone met personally with plaintiff in Opelousas, Louisiana. Def.'s Statement of Material Facts at P 28; see Admin. Rec., Vol. 1, 76-77 (Memorandum dated Dec. 8, 1994 to Edward M. Graves, OCC, from Gene W. Ferner, OCC); 78 (E-mail dated Dec. 8, 1994 to Gene Ferner, Karen Hardy, Karen Pickering and William Suman, OCC, from Craig Stone, OCC). Mr. Ferner and Mr. Stone concluded that there was no evidence that the satisfactory ratings FNBC and First National Bank of Lafayette had received for compliance with the Community Reinvestment Act were inaccurate. Def.'s Statement of Material Facts at P 29; see Admin. Rec., Vol. 1, 76-77. Mr. Ferner stated that "Reverend Jones did not present any new or additional hard, factual data to support the allegations detailed in his protests." Admin. Rec., Vol. 1, 77. *fn3"

 The conclusions reached by Mr. Ferner and Mr. Stone echoed those of OCC Senior Compliance Attorney Horace Sneed when he considered the complaints Reverend Jones lodged in 1993 regarding the alleged FHA violations of FCC affiliate bank First Acadiana National Bank. By memorandum dated September 30, 1993, Mr. Sneed concluded that First Acadiana National Bank's conduct "does not indicate a failure to comply with the CRA," and that the OCC had uncovered nothing to establish any wrongdoing by the FCC subsidiary bank. Admin. Rec., Vol. 2, 1136-1137; Def's Statement of Material Facts at PP 25-26. *fn4"

 The OCC's Southwestern District Office verified that plaintiff's challenge to FNBC's acquisition of Wolcott was but one of a series of charges -- all emanating from plaintiff -- leveled against FCC and/or First Acadiana National Bank (another subsidiary of FCC), that were sent to members of Congress, the Board of Governors of the Federal Reserve, the Federal Reserve Bank of Atlanta, and/or the OCC. Admin. Rec., Vol. 2, 1090-93; 1108-12.

 The OCC ultimately rejected plaintiff's allegations on the merits and accepted FNBC's notice of intent to establish an operating subsidiary. On January 10, 1995, the OCC also approved both of the merger applications submitted by FNBC and First National Bank of Lafayette. Admin. Rec., Vol. 2, 637 (September 29, 1994 letter to J. Miles Reidy, FCC, from Michael K. Hughes, OCC); Admin. Rec., Vol. 1, 54-57 (Jan. 12, 1995 letter to Thomas Callicutt, Jr., FCC, from Michael K. Hughes, OCC); 58-61 (Jan. 12, 1995 letter to Thomas Callicutt, Jr., FCC, from Michael K. Hughes, OCC); 62 (Jan. 12, 1995 letter to Rev. Joseph Jones from Karen E. Hardy, OCC); Def.'s Statement of Material Facts at P 30.

 On June 27, 1995, HUD closed plaintiff's complaint (forwarded to HUD by the OCC) against First National Bank of Lafayette. Def.'s Statement of Material Facts at P 31; Admin. Rec. at 1. *fn5"

 This case is plaintiff's second court challenge to the OCC's approval of FNBC's subsidiary acquisition and the OCC's failure "to perform its duty" under the FHA. See Petitioner's Response in Opp'n at 13; Def.'s Opp'n at 1. Plaintiff brought his first challenge to the United States Court of Appeals for the District of Columbia Circuit. Jones v. Board of Governors of the Federal Reserve System, Federal Deposit Insurance Corp., Office of the Comptroller of the Currency, and Dep't of Housing and Urban Development, 1995 U.S. App. LEXIS 38539, D.C. Cir. No. 95-1359. By Order dated November 15, 1995, the court of appeals granted respondents' motion to dismiss that action without opinion.

 Plaintiff is proceeding pro se and appears to object to: (1) the OCC's approval of First National Bank of Commerce's application to acquire an operating subsidiary (Wolcott Mortgage Group, Inc.) in the vicinity of plaintiff's residence; and (2) the OCC's alleged general failure to promote fair housing. See, e.g., Compl. PP 13, 20, 52, 59. Construed liberally, plaintiff's complaint is: (1) an action under 42 U.S.C. § 3613 to remedy discriminatory housing practices by the OCC; (2) a private right of action to remedy OCC's alleged failure to satisfy 42 U.S.C. § 3608(d); and (3) an action under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., alleging arbitrary and capricious or otherwise unlawful action by the OCC.

 Plaintiff seeks the following relief: (1) a declaration that the OCC's non-enforcement of the FHA, including its failure to promulgate regulations for the statute's implementation, constitutes a deliberate and reckless disregard for the rights of African Americans; (2) an injunction against such non-enforcement of the FHA; (3) a direction to the OCC to submit for this Court's approval a detailed plan to affirmatively promote fair housing; and (4) a reversal ...


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