On April 22, 1970, four days after receipt of this notice, plaintiffs filed a complaint which prayed for all necessary and proper relief including a declaration that section 407(h) of the National Housing Act is unconstitutional. On the same date plaintiffs made an application for a Temporary Restraining Order and Stay which would stay the effect of the Suspension Notice. After oral argument by both plaintiff and defendant, Chief Judge John W. Lord, Jr., on April 23, 1970, granted plaintiffs' application. Due to the nature of the relief sought plaintiffs also requested the appointment of a Three-Judge Court. 28 U.S.C.A. §§ 2282 and 2284. On April 25, 1970, Chief Judge William H. Hastie of the Third Circuit appointed Circuit Judge Harry E. Kalodner and District Judge E. Mac Troutman to sit with Chief Judge Lord for the determination of this case.
Section 407(h) of the National Home Loan Act provides in pertinent part:
Whenever any director or officer of an insured institution, * * * 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 Corporation 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 institution. A copy of such notice shall also be served upon the institution. Such suspension and/or prohibition shall remain in effect until such information, indictment, or complaint is finally disposed of or until terminated by the Corporation. * * *
Moreover, section 407(p)(1), 12 U.S.C.A. § 1730(p)(1) of the same Act makes it a separate criminal offense, punishable by imprisonment for not more than one year or a fine of not more than $5,000 or both, for failure to honor the suspension notice.
Presently before the Three-Judge Court is plaintiffs' motion for a Preliminary Injunction as well as defendant's motion to dismiss. In support of their motion plaintiffs have argued that they are suffering irreparable harm and have a reasonable likelihood of ultimately succeeding on the merits.
Kontes Glass Co. v. Lab Glass, Inc., 373 F.2d 319 (3rd Cir. 1967). With respect to their claim on the merits plaintiffs allege that section 407(h), 12 U.S.C.A. § 1730(h), is unconstitutional in that (1) it constitutes a bill of attainder; (2) it violates substantive due process and (3) it violates procedural due process. Defendant's motion to dismiss, on the other hand, is based on subsection (k)(2) of section 407, 12 U.S.C.A. § 1730(k)(2) which provides in part:
* * * except as otherwise provided in this section no court shall have jurisdiction to affect by injunction or otherwise the issuance or enforcement of any notice or order under this section, or to review, modify, suspend, terminate or set aside any such notice or order.
The instant case falls squarely within the ambit of the above-quoted subsection and it is clear that the plain meaning of (k)(2) withholds jurisdiction from the federal court to act at this time. At the May 11th hearing counsel for plaintiffs did argue in passing that subsection (k)(2) could be interpreted to prohibit a federal court from acting only where the remedy sought was among those specifically designated in the subsection, and that since he ultimately sought a declaratory judgment, a remedy not expressly proscribed, subsection (k)(2) would not act as a bar under the facts of this case. Counsel did not strenuously pursue this line of argument and candidly admitted that such an interpretation would render the language of the subsection "or otherwise" meaningless and would, at best, be a strained interpretation of (k)(2). (N.T. p. 20). The Court finds, and counsel for plaintiffs basically agrees, that the clear meaning of subsection (k)(2), which is directly applicable to the facts in the instant case, precludes this lower federal court from considering the merits of plaintiffs' case. Accordingly, the sole remaining question with respect to defendant's motion to dismiss is whether Congress could constitutionally so limit this Court's jurisdiction.
It is a well-established proposition that, unlike the jurisdiction of the Supreme Court, the jurisdiction of the lower federal courts can, at least to some degree, be controlled by Congress. This fact was evidenced by the very Act which created the lower federal courts, the Judiciary Act of 1789, where Congress clearly chose not to vest the newly created courts with all the jurisdiction enumerated in Article III of the Constitution. While there has been some lingering dissent with respect to this position,
it has been frequently stated
and generally followed by the courts.
In the instant case, we are of the opinion that the Congressional withholding of jurisdiction at this time prescribed by sub-section (k)(2) does not transgress constitutional guarantees.
There is no question that privately operated, federally insured, savings institutions play a critical role in our economy and therefore undoubtedly constitute a legitimate subject of Congressional action.
Moreover, this Court finds that subsection (k)(2) is reasonably related and calculated to accomplish the effective regulation of those financial institutions which avail themselves of federal insurance. Obviously, Congress has a substantial interest in maintaining effective regulation of, and public confidence in, these institutions. It is equally clear that a federal indictment of a director or officer of a savings and loan association for a crime involving dishonesty or breach of trust may raise doubts as to the soundness of the institution itself. Congress, after hearings which included a joint statement that the existing remedies for moving quickly and effectively were inadequate by the then (March 1966) Secretary of the Treasury, the Chairman of the Board of Governors of the Federal Reserve System, the Chairman of the Federal Home Loan Bank Board and the Chairman of the Federal Deposit Insurance Corporation,
found it appropriate to give the Bank Board
the power to suspend such a director during the pendency of the indictment. Congress, through subsection (k)(2) also deemed it necessary, at least in a proceeding of the type presently before the Court, to preclude judicial review of such a suspension. The Court finds this bar to the Court's deciding the merits of plaintiffs' claim reasonably related to the Congressionally desired end to effectively regulate and manage the insured institutions so as to maintain public confidence in the particular institution as well as the system itself even though a director or officer be under federal indictment. We also find that if judicial review were allowed at this time one of the very ends to which Congress was addressing itself in 1966, through the Financial Institutions Supervisory Act, may well be undermined. Without the temporary suspension of such a director or officer, unfettered by injunctions which stay the effect of the notice, individuals may well deem it imprudent to maintain accounts in that institution and may even lose confidence in the entire system.
The Court finds support for its conclusion that withholding jurisdiction at this proceeding is not unconstitutional from an analogous area of law. Section 10(b)(3) of the Military Selective Service Act of 1967, 50 U.S.C.A. App. § 460(b)(3) (Supp. IV 1969) provides in effect
that there shall be no judicial review of the classification or processing of any registrant, except as a defense to a criminal prosecution for refusing to be inducted.
Therefore, § 10(b)(3), like subsection (k)(2), bars the court from proceeding to the merits of a plaintiff's claim prior to his risking criminal sanctions. However, unlike (k)(2), section 10(b)(3) has recently undergone close judicial scrutiny.
In the recent Supreme Court case of Clark v. Gabriel, 393 U.S. 256, 89 S. Ct. 424, 21 L. Ed. 2d 418 (1968), the Court, in a per curiam opinion, affirmed Estep v. United States, 327 U.S. 114, 66 S. Ct. 423, 90 L. Ed. 567 (1946) and Falbo v. United States, 320 U.S. 549, 64 S. Ct. 346, 88 L. Ed. 305 (1944), and upheld the constitutionality of section 10(b)(3). In reaching this conclusion the Court reversed the lower court,
which had held that to condition judicial review on the risk of incurring a substantial penalty amounted to "no review at all" and therefore violated due process. The Supreme Court reasoned that to allow pre-induction review in the case before it (plaintiff was challenging the Board's decision to deny his request to be classified as a conscientious objector) would be to permit exactly the evil which Congress was concerned with when they passed 10(b)(3) i.e., litigious interruptions to the orderly induction of men into the armed services. As this Court has discussed earlier, we also find that to allow a court to stay the effect ...