them an advantage judges cannot possibly have, not only in dealing with the problems raised for their discretion by the system's working, but also in ascertaining the meaning Congress had in mind in prescribing the standards by which they should administer it. Accordingly their judgment in such matters should be overturned only when there is no reasonable basis to sustain it or where they exercise it in a manner which clearly exceeds their statutory authority.'
We have read the many cases cited in Bridgeport's able and comprehensive brief. Some of these cases may appear to support Bridgeport's position, but we do not regard them as controlling authority. The rulings in this area of the law are perhaps difficult to harmonize.
First National Bank of McKeesport v. First Federal Sav. & Loan Ass'n, 96 U.S.App.D.C. 194, 225 F.2d 33 (D.C.Cir.1955), relied on by defendants, is directly in point. That case involved actions by several financial institutions for declaratory and injunctive relief against the Board and two Federal savings and loan associations, following the Board's approval of applications to establish branch offices. The Court held that the adjudication and procedural provisions of APA were inoperative in the case of an application for a branch office (225 F.2d p. 36):
'While neither Section 5(e) nor any other section of the act specifically requires an agency hearing in granting an original charter, we may assume for the purposes of these cases that such a hearing is required in that instance. Even so, the same formalities are not required in the consideration of an application for a branch. Section 5(e) quoted above refers simply to 'charters,' and governs the Board's consideration of an application for the grant of a charter to establish an 'institution.' A branch, however, is not an 'institution' and does not require a charter, its establishment being of an entirely different character.
'Section 5 of the Administrative Procedure Act, 5 U.S.C.A. § 1004, requires that 'in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing' (except in six listed circumstances not here applicable), an agency shall observe certain procedures specified in subsequent sections of that act. Neither the Home Owners' Loan Act of 1933, as amended, nor the regulations thereunder, contains any provision that an application for a branch must be 'determined on the record after opportunity for an agency hearing.'
'Appellants urge that Section 5(e) of the Home Owners' Loan Act gives them protection from 'undue injury' in the establishment of a branch, and contend that, even though that act does not specifically provide for a determination on the record, they are entitled, as a matter of constitutional due process, to the adjudication and procedural provisions of the Administrative Procedure Act, citing in support Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S. Ct. 445, 94 L. Ed. 616; Riss & Co. v. United States, 341 U.S. 907, 71 S. Ct. 620, 95 L. Ed. 1345; Cates v. Haderlein, 342 U.S. 804, 72 S. Ct. 47, 96 L. Ed. 609; United States v. L. A. Tucker Truck Lines, 344 U.S. 33, 73 S. Ct. 67, 97 L. Ed. 54. None of these cases has application here. We think it clear that, even if it be assumed that Section 5(e) requires an agency hearing on the original grant, there is no such requirement on an application for the establishment of a branch.'
The Court further held that the Board's action was not subject to judicial review (225 F.2d p. 36):
'What we have said disposes of these cases and we, therefore, are not bound to consider the question of appellants' standing. We merely call attention to the fact that, since authority to permit establishment of a branch is clearly committed to agency discretion, the matter is disposed of automatically by Section 10 of the Administrative Procedure Act. 5 U.S.C.A. § 1009.'
We conclude, therefore, that the complaint fails to state a claim upon which relief can be granted.
Now, November 14th, 1961, it is ordered and decreed that defendants' motions to dismiss be, and they are, granted, and the complaint is dismissed.