forbearance granted to Flagship in November, 1988. Plaintiffs direct the court's attention to FIRREA §§ 401(f), (g), (h) (found at the note to 12 U.S.C.A. § 1437). These sections contain savings provisions which state that the "existing rights, duties and obligations" of the FHLBB and FSLIC are not to be affected by FIRREA, and that all "orders, resolutions, determinations and regulations" were to remain in effect "until modified, terminated, set aside, or superseded in accordance with applicable law by the Director of OTS."
The court cannot agree that these sections prohibit OTS from abrogating the forbearance agreement. First, the language at FIRREA §§ 401(f), (g) and (h) prevents any change in agency obligations as a result of the abolition of the FHLBB and the FSLIC. See note to 12 U.S.C.A. 1437. Even if the forbearance letter represents an obligation by the FHLBB or the FSLIC to Flagship, it is not the abolition of those agencies which precipitated the current controversy. The alleged obligation was abrogated because OTS acted pursuant to its mandate under FIRREA.
Second, the statute states that the capital requirements apply to any "savings association," with no exclusion for savings associations that have received capital forbearances. See 12 U.S.C.A. §§ 1464(s), (t). Congress did exempt certain types of forbearances from the capital requirements. See FIRREA § 301, found as a Savings Provision to 12 U.S.C.A. § 1467 (a). Congress could have chosen to exempt the type of forbearance granted to Flagship, but it did not, and the court will not imply exemptions into the statute.
Plaintiffs also direct the court to FIRREA § 501(b)(11)(B), see 12 U.S.C.A. § 1141a(b)(11)(B). That section orders the newly created Resolution Trust Corporation ("RTC") to review insolvent institution cases resolved by the FSLIC between January 1, 1988 and August 9, 1989, the date of enactment of FIRREA. See Section 501(b)(11)(B). The RTC is directed to evaluate the costs to the FSLIC of the forbearances granted to these now insolvent institutions.
The court finds that this section is not relevant to this controversy because Flagship is not one of the institutions to which this section applies. Consequently, the court finds that this section does not indicate any Congressional intent to grandfather a forbearance such as that granted to Flagship.
Plaintiffs also argue that they have a cause of action in contract. The court agrees with defendants argument that the forbearance letter was not a contract but a statement by the FHLBB that it would not prosecute Flagship for failing to meet the statutory capital requirements in force in November of 1988. This characterization of the letter is supported by the language of the letter itself. The FSLIC agrees to "forbear . . . from exercising its authority" to compel compliance with regulatory capital requirements. Moreover, the FHLBB specifically reserves a right to cancel the forbearance at any time if it should find that the forbearance "is unsafe or unsound or otherwise actually or potentially detrimental" to Flagship. If this was a contract, it was an illusory one, for one party had the right at any time to cancel its side of the bargain.
Furthermore, the United States Supreme Court has held that when Congress reserves the power to amend legislation, contracts made pursuant to that legislation are subject to future legislative action. See Bowen v. Agencies Opposed to Social Security Entrapment (POSSE), 477 U.S. 41, 52, 91 L. Ed. 2d 35, 106 S. Ct. 2390 (1986). Plaintiffs point to nothing in the National Housing Act (which is the source of the FHLBB's general powers to grant such a forbearance) that would indicate any intention by Congress to waive its power to legislate in this arena. Even if there was a contract between the FHLBB and Flagship, this contract is subject to FIRREA under the POSSE doctrine. See Id.
Lastly, plaintiffs seek injunctive relief for an alleged unconstitutional taking of property. Plaintiffs remedy is consequently limited to an action in the Claims Court subsequent to any unconstitutional taking. "Equitable relief is not available to enjoin an alleged taking of private property for a public use, duly authorized by law, when a suit for compensation can be brought against the sovereign subsequent to the taking." Ruckelshaus v. Monsanto, 467 U.S. 986, 1016, 81 L. Ed. 2d 815, 104 S. Ct. 2862 (1983).
SEALING OF THE FILE
At the beginning of this litigation the court ordered the file sealed. That seal is hereby lifted. The public interest in the regulation of savings associations is best served by access to this file. However, a court may order a file sealed if information would be disclosed which is confidential by regulation. See Comptroller of the Currency v. T. Bertram Lance, 632 F. Supp. 437, 443 (N.D. Ga. 1986). The court will give the parties an opportunity to reach a stipulation as to which documents are to remain sealed. The parties may also stipulate that certain portions of the pleadings may be redacted to the extent that they reveal such confidential information.
The court has subject matter jurisdiction over this claim for injunctive relief against the Director of the Office of Thrift Supervision and the Federal Deposit Insurance Corporation. However, given that the agency actions were not final decisions, the controversy is not ripe for review and the court lacks jurisdiction to hear the claim.
Furthermore, the plaintiff is not entitled to injunctive relief. There is no irreparable harm, and the plaintiff is not likely to succeed in showing that FIRREA prohibited the actions of the OTS or FDIC, or that there was a breach of contract. Accordingly, the motion for a temporary restraining order is denied. The seal on the file is lifted except for those documents which are to remain confidential by order of the court.
IT IS SO ORDERED.
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