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LEUTHE v. OFFICE OF FIN. INST. ADJUDICATION

September 8, 1997

JAMES L. LEUTHE
v.
OFFICE OF FINANCIAL INSTITUTION ADJUDICATION, FEDERAL DEPOSIT INSURANCE CORPORATION, OFFICE OF THE COMPTROLLER OF THE CURRENCY, OFFICE OF THRIFT SUPERVISION, FEDERAL RESERVE BOARD and NATIONAL CREDIT UNION ADMINISTRATION



The opinion of the court was delivered by: JOYNER

MEMORANDUM AND ORDER

 JOYNER, J.

 September 8, 1997

 This is an action for declaratory judgment pursuant to which plaintiff seeks to have this Court declare the current procedures for enforcement under the Financial Institutions Reform, Recovery and Enforcement Act ("FIRREA") unconstitutional and illegal and the enforcement proceedings presently underway against him to be null and void. Defendants move to dismiss plaintiff's complaint in its entirety and/or for summary judgment. For the following reasons, defendants' motions to dismiss shall be granted.

 BACKGROUND

 Defendants do not dispute that OFIA is not a federal agency in and of itself. *fn1" OFIA was the response to Congress' directive in Section 916 of FIRREA, 12 U.S.C. § 1818 note, that "before the close of the 24-month period beginning on August 9, 1989, the appropriate Federal banking agencies...and the National Credit Union Administration were to establish jointly their own pool of administrative law judges, and develop a set of uniform rules and procedures for administrative hearings..." Thus, defendants submit, both of OFIA's Administrative Law Judges were properly appointed by OTS and they have the appropriate authority to act in the enforcement proceedings against plaintiff.

 DISCUSSION

 By way of the instant motions, defendants specifically contend (1) that plaintiff lacks both Article III and prudential standing to maintain this lawsuit; (2) that 12 U.S.C. § 1818(i) precludes this Court from exercising jurisdiction over this action; and (3) that the complaint fails to state a cause of action upon which relief may be granted. As we find that the district courts have been divested of jurisdiction over matters such as this one, we do not reach defendants' other arguments.

 A. Standards Applicable to Motions to Dismiss

 Federal Rule of Civil Procedure 12(b) permits the defenses of lack of jurisdiction over the subject matter and the failure to state a claim upon which relief may be granted to be made by motion. Fed.R.Civ.P. 12(b)(1), (6). When a motion under Rule 12 is based on more than one ground, the court should consider the 12(b)(1) challenge first because if it must dismiss the complaint for lack of subject matter jurisdiction, all other defenses and objections become moot. In Re Corestates Trust Fee Litigation, 837 F. Supp. 104, 105 (E.D.Pa. 1993), aff'd 39 F.3d 61 (3rd Cir. 1994). See Also: Freiburger v. Emery Air Charter, Inc., 795 F. Supp. 253 (N.D. Ill. 1992).

 A district court can grant a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction based on the legal insufficiency of the claim. But dismissal is proper only when the claim "appears to be immaterial and made solely for the purpose of obtaining jurisdiction or is wholly insubstantial or frivolous....When subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff must bear the burden of persuasion. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1408-09 (3rd Cir. 1991); Radeschi v. Commonwealth of Pennsylvania, 846 F. Supp. 416, 419 (E.D. Pa. 1993).

 Unlike a motion to dismiss for failure to state a claim under Rule 12(b)(6), when a party attacks the factual allegations of jurisdiction, the courts are not limited in their review to the allegations of the complaint. Any evidence may be reviewed and any factual disputes resolved regarding the allegations giving rise to jurisdiction as it is for the Court to resolve all factual disputes involving the existence of jurisdiction. Sitkoff v. BMW of North America, Inc., 846 F. Supp. 380, 383 (E.D. Pa. 1994), citing Moore's Federal Practice (Second Ed.) at P12.07[2.-1]). In contrast, if the attack to jurisdiction is facial, that is, the allegations of jurisdiction stated in the complaint, the factual allegations of the complaint are presumed to be true and the complaint is reviewed to ensure that each element necessary for jurisdiction is present. Id. Only if it appears to a certainty that the pleader will not be able to assert a colorable claim of subject matter ...


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