Lewis v. Continental Bank Corporation

RESPONDENT: Continental Bank Corporation
LOCATION: Oregon Department of Human Resources

DOCKET NO.: 87-1955
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: United States Court of Appeals for the Eleventh Circuit

CITATION: 494 US 472 (1990)
ARGUED: Nov 28, 1989
DECIDED: Mar 05, 1990

Andrew L. Gordon - for respondents
Arthur E. Wilmarth, Jr. - on behalf of the Appellant

Facts of the case


Media for Lewis v. Continental Bank Corporation

Audio Transcription for Oral Argument - November 28, 1989 in Lewis v. Continental Bank Corporation

William H. Rehnquist:

We will hear argument next in Number 87-1955, Gerald Lewis versus Continental Bank Corporation.

Mr. Wilmarth, you may proceed whenever you're ready.

Arthur E. Wilmarth, Jr.:

Thank you, Mr. Chief Justice, and may it please the Court:

This is an appeal by Gerald A. Lewis, Comptroller of the State of Florida and head of the Florida Department of Banking and Finance, from a decision of the United States Court of Appeals for the Eleventh Circuit.

This case arose out of an application filed by Appellee Continental Bank Corporation to establish a state chartered industrial savings bank, to which I will refer as an ISB, in Miami, Florida.

The court of appeals struck down three Florida statutes which prohibited Continental from opening the proposed ISB based on the Commerce Clause.

The court of appeals also granted attorneys fees on appeal to Continental, apparently based on 42 U.S.C. Sections 1983 and 1988.

Appellant Lewis maintains that the decision below should be reversed for three reasons.

First, this case has become moot by reason of a 1987 amendment to the Federal Bank Holding Company Act.

Second, Section 664.02 of the Florida statutes, which prohibits the issuance of any further ISB charters to any person, represents a non-discriminatory exercise of Florida's authority over the chartering of local banking institutions.

The statute is therefore lawful under the Commerce Clause.

And, as the court of appeals found, the statute would thereby moot the case by precluding any relief to Continental.

Third, Continental's claims under the dormant Commerce Clause do not vindicate any right secured by the Constitution that is cognizable under 42 U.S.C. 1983.

Accordingly, Continental cannot recover attorneys fees under Section 1988.

I will first, very briefly, touch on the mootness issue.

It is undisputed, as shown by the briefs, that Continental cannot now open the ISB for which it applied, which was an FDIC insured ISB.

In 1987 Congress amended the Bank Holding Company Act and expanded the definition of bank to include all FDIC insured institutions.

Continental is an Illinois bank holding company.

Under the Douglas Amendment, Continental cannot acquire a bank in Florida, unless Florida gives specific authorization for Illinois bank holding companies to do so.

Again, it is undisputed that Florida has not permitted Illinois bank holding companies to acquire banks in Florida.

Antonin Scalia:

Mr. Wilmarth, suppose instead of filing an application for a particular bank, as they had done, the plaintiffs here had brought a, simply brought a declaratory judgment action prior to filing that application, it being clear that the application would be denied under the law in question, and asserted that the law in question was unconstitutional?

Would that declaratory judgment action properly lie?

Arthur E. Wilmarth, Jr.:

I do not believe so, Justice Scalia, because there would have been both a standing problem, in my view, and perhaps a rightness problem.

If they had no application pending under the statute, or in fact could not show to this Court's satisfaction or the trial court's satisfaction that they intended to open an ISB under the statute, then obviously it would be merely a hypothetical, speculative case, and would be asking only for an advisory opinion, which is not within just issuability grounds.

And that is really the situation that we have--

Byron R. White:

Under the amended federal act, what is left of this case?

Arthur E. Wilmarth, Jr.:

--The only thing that is left, Justice White, is whether or not Continental now actually intends to go forward and open an uninsured industrial savings bank.

They cannot open an FDIC insured bank.

They have had numerous opportunities to do so.

They have never made an unequivocal, absolute commitment that they will apply for an ISB that is uninsured if they win this case.