837 F2d 1317 Thomes v. Equitable Savings & Loan Association

837 F.2d 1317

Paul THOMES and Richard Thomes, Plaintiffs-Appellants,

No. 87-1413.

United States Court of Appeals,
Fifth Circuit.

Feb. 22, 1988.

Linda N. Coffee, Palmer & Palmer, Dallas, Tex., for plaintiffs-appellants.

Barry A. Brown, Houston, Tex., for amicus curiae John Black.

David G. Eisenstein, Washington, D.C., Charles R. Haworth, Patrick E. Longan, Andrews & Kurth, Dallas, Tex., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before VAN GRAAFEILAND,* JOHNSON and JOLLY, Circuit Judges.


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Paul and Richard Thomes filed this federal diversity action in December 1986, seeking damages and declaratory relief against Equitable Savings & Loan Association for alleged violations of state usury laws and related claims. In March 1987, the Federal Home Loan Bank Board ("FHLBB") appointed the Federal Savings and Loan Insurance Corporation ("FSLIC") receiver for Equitable pursuant to 12 U.S.C. Sec. 1464(d)(6)(A). Asserting that the district court lacked subject matter jurisdiction, the FSLIC moved for dismissal and the court granted the motion. On appeal, the Thomes raised for the first time the constitutional issue that FSLIC's administrative scheme is an impermissible delegation of article III judiciary power to a non-article III court. In a panel decision rendered November 9, 1987, this court held that the district court's decision should be affirmed on all issues except the constitutional one. Thomes v. Equitable Sav. and Loan Ass'n, 831 F.2d 558 (5th Cir.1987). Noting that the constitutional issue had not been addressed in our precedent and appeared more troubling than the other issues, the panel assigned the constitutional issue for oral argument.


Of course, it is not in dispute that this circuit has sanctioned the administrative review scheme followed by the FSLIC on numerous occasions. FSLIC v. Bonfanti, 826 F.2d 1391 (5th Cir.1987); Chupik Corp. v. FSLIC, 790 F.2d 1269 (5th Cir.1986); Northern Mississippi Savings & Loan Ass'n v. Hudspeth, 756 F.2d 1096 (5th Cir.1985). In Hudspeth, this circuit interpreted section 1464(d)(6)(C) as giving the FSLIC exclusive jurisdiction of creditor claims in the first instance. 756 F.2d at 1103. Under the administrative review scheme designated in 12 U.S.C. Sec. 1464(d)(6)(C), the FHLBB may place a savings and loan association into receivership when it becomes insolvent and appoint the FSLIC as receiver. The FSLIC must then give creditors notice that claims may be submitted to the FSLIC for determination of payment. Hudspeth, 756 F.2d at 1102. A creditor denied relief may seek further review by the FHLBB and, if the creditor remains dissatisfied, judicial review may be obtained pursuant to the guidelines established under the Administrative Procedure Act. Id. at 1103. But only after a claim has proceeded through the administrative process is judicial review appropriate.


The Thomes attempt to overcome this circuit's holding in Hudspeth by challenging the constitutionality of the administrative review scheme. We note, however, that by their refusal to exhaust their claims before the FSLIC, they have left this court unable to decide the constitutional issue. We do not know nor can we speculate whether the FSLIC would grant the Thomes' claims. If the claims were granted, such a ruling would deny the Thomes' standing and consequently avoid the necessity of reaching a judicial decision. Moreover, we are convinced that not until we can review in full the administrative proceedings can we intelligently and cogently address the question whether the proceedings satisfy constitutional requirements. Thus, since the Thomes have shown no immediate injury and have not pursued their available administrative remedies, the constitutional issue presented is not ripe for determination. Poe v. Ullman,367 U.S. 497, 81 S.Ct. 1752, 1756, 6 L.Ed.2d 989 (1961); Coit Independence Joint Venture v. Firstsouth, F.A., 829 F.2d 563, 565 (5th Cir.1987).


The district court's dismissal is therefore




Circuit Judge of the Second Circuit, sitting by designation