Gene F. Barany and Helen L. Elliott v. John Buller

This is an internecine dispute between removed members of the Credit Committee of a federally chartered credit union and those responsible for their removal. Although the factual setting is uncomplicated, 1 this case presents surprisingly complex legal issues concerning the availability of federal relief. Viewing the plaintiffs’ action as being in the nature of a quo warran-to proceeding to establish their rights as officers under the Federal Credit Union Act, 12 U.S.C. § 1751 et seq., the district court determined that the plaintiffs’ cause of action is relegated traditionally to state law. In the absence of an express private right of action of this kind under the Act, the trial court held “that Congress did not intend to create a private right of action for the enforcement of the provisions which the plaintiffs allege were violated.” Consequently, the court dismissed this action for failure to state a claim. For the reasons given below, we reverse.

I.

The plaintiffs-appellants, Gene F. Barany and Helen L. Elliott, are members of the Barbers and Beauticians Federal Credit Union (“Credit Union”), which is chartered by the National Credit Union Administration (“NCUA”) under the Federal Credit Union Act, 12 U.S.C. § 1751 et seq. (“Act”). Pursuant to 12 U.S.C. § 1761, they were elected to the Credit Union’s three-member Credit Committee. 2 The third member of the Credit Committee is defendant-appellant Richard J. Devine, who is also a loan officer and a member of the Board of Directors as well as the Credit Union’s Treasurer and its only full-time paid employee. As a loan officer, Devine is authorized to approve loans and lines of credit without the concurrence of the other two Credit Committee members, or any other officer, member or employee of the Credit Union. 12 U.S.C. § 1761c, supra note 2.

At some time in 1979, without disclosing his actions to Barany and Elliott, Devine began approving loans to former members of the Barbers, Beauticians and Allied Industries International Association who still were engaged in either the barber or beauty trades. Upon discovering this practice, Barany and Elliott wrote to Devine and the *728 other defendants (the remaining members of the Credit Union’s Board of Directors), notifying them that the Credit Committee no longer would approve such loans because the loan recipients were not within the Credit Union’s field of membership. 3 On September 13, 1979, after a specially called Board meeting from which they were excluded, Barany and Elliott received written notification that the Board had removed them from the Credit Committee. Subsequently, the Board appointed defendant Jerry Cloud and an office employee, whose name is not mentioned in the complaint, to the vacancies on the Credit Committee left by the Board’s removal of Barany and Elliott. 4

To redress their removal from the Credit Committee, Barany and Elliott brought this action for monetary, declaratory and in-junctive relief, contending that their removal by the Board of Directors was unlawful under the Act, which empowers the Supervisory Committee to take such action. 5 In essence, they argued that the removal provisions contained in § 1761d, supra note 5, are exclusive, divesting the Board of any power to remove Credit committee members. 6 The district court never reached the *729 merits, however, because it found that the Act did not provide Barany and Elliott with a federal cause of action to enforce their rights as members of the Credit Committee. 7

II.

As they did in the district court, the parties utilize the four-factor analysis articulated in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), to discern whether there is an implied private right of action of the kind asserted here under the pertinent provisions of the Act. They urge us to do the same. For the reasons given below, applying the Cort analysis, we find that the plaintiffs do not have an implied private right of action under the Act in this case. However, we also conclude that they may bring this action under the federal common law.

A.

The familiar Cort criteria are:

First,-is the plaintiff “one of the class for whose especial benefit the statute was enacted,” Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33, 39, 36 S.Ct. 482, 484, 60 L.Ed. 874 (1916) (emphasis supplied)— that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? See, e.g., National Railroad Passenger Corp. v. National Ass’n of Railroad Passengers, 414 U.S. 453, 458, 460, 94 S.Ct. 690, 693, 694, 38 L.Ed.2d 646 (1974) (Amtrak). Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? See, e.g., Amtrak, supra; Securities Investor Protection Corp. v. Barbour, 421 U.S. 412, 423, 95 S.Ct. 1733, 1740, 44 L.Ed.2d 263 (1975); Calhoon v. Harvey, 379 U.S. 134, 85 S.Ct. 292, 13 L.Ed.2d 190 (1964). And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a *730 cause of action based solely on federal law? See Wheeldin v. Wheeler, 373 U.S. 647, 652, 83 S.Ct. 1441, 1445, 10 L.Ed.2d 605 (1963); cf. J. I. Case Co. v. Borak, 377 U.S. 426, 434, 84 S.Ct. 1555, 1560, 12 L.Ed.2d 423 (1964); Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 394-395, 91 S.Ct. 1999, 2003-2004, 29 L.Ed.2d 619 (1971); id., at 400, 91 S.Ct. at 2006 (Harlan, J., concurring in judgment).

422 U.S. at 78, 95 S.Ct. at 2088.

More recently, the Court has emphasized that the determinative question in cases involving a claimed private right of action is whether Congress intended to create the particular right of action being asserted and has stated that the resolution of this question is strictly a matter of statutory interpretation. The four Cort factors are merely statutory interpretation aids. E.g., Touche Ross & Co. v. Reddington, 442 U.S. 560, 568, 99 S.Ct. 2479, 2485, 61 L.Ed.2d 82 (1979). Moreover, these factors are not equally weighted. The first two are most important. If they militate against implying the asserted right of action, then the remaining two factors need not be considered. California v. Sierra Club, 451 U.S. 287, 101 S.Ct. 1775, 68 L.Ed.2d 101 (1981); Touche Ross, 442 U.S. at 574-76, 99 S.Ct. at 2488-2489. Finally, in virtually every instance in which an implied private right of action has been found, the statute in question either prohibited certain conduct or created federal rights in favor of private parties. Touche Ross, 442 U.S. at 569, 99 S.Ct. at 2485.

Under this latter rubric, we should affirm the district court’s holding that under the Act the plaintiffs do not have a private right of action of the kind asserted here. Even accepting the implicit premise upon which the plaintiffs rely {i.e., that § 1761d confers upon the Supervisory Committee the exclusive power to remove members of the Credit Committee), the statutory provision in question neither explicitly prohibits the conduct of which the plaintiffs complain nor creates federal rights in their favor.

Nor under the first Cort test are the plaintiffs members of the “class for whose especial benefit the statute was enacted.” 241 U.S. at 39, 36 S.Ct. at 484 (quoted in Cort, 422 U.S. at 78, 95 S.Ct. at 2088). If it was intended to benefit any identifiable class, § 1761d must have been designed to protect credit union members in their capacity as members. Here, the plaintiffs emphatically assert their rights only as Credit Committee members and not as members of the Credit Union generally, supra note 7. On appeal, they argue that their status places them at the core of the class especially benefitted by § 1761d. However, plaintiffs also are in a separate class — Credit Committee members — whose interests in this case, in which their removal from office is at issue, apparently conflict with the interests of the general membership of the Credit Union. In order words, in situations such as this there are two relevant classes: Credit Union members and Credit Committee members. These two classes overlap only because Credit Committee members also must be members of the Credit Union. However, the interests of these two classes are different and probably tend to conflict. Thus, the especial class of which the plaintiffs are members for purposes of this action is the class of Credit Committee members. This is neither the class, nor the core of the class, for whose especial benefit § 1761d was enacted. And applying the second Cort test, as often happens in cases of this kind, the legislative history is silent regarding Congress’ intent to create the asserted private right of action. See Cannon v. University of Chicago, 441 U.S. 677, 694, 99 S.Ct. 1946, 1956, 60 L.Ed.2d 560 (1979). Thus, our examination of the two most important of the Cort factors compels the conclusion that Congress did not intend to create the private remedy asserted here. 8 Consequently, *731 we agree that the district court, following a Cort analysis, correctly concluded that the complaint failed to state a cognizable federal claim based upon an implied statutory right of action.

B.

But our conclusion that Congress did not intend to create a private right of action under § 1761d does not end our inquiry. As discussed more fully below, the legislative history of the Act indicates that, while Congress may not have intended to create a private right of action under the Act, neither did it intend to deny a federal remedy of the kind sought in this case. Very importantly, the history of the Act reveals that the uniform administration of federal credit unions, which can be achieved only by application of federal law, was of paramount importance to Congress when it enacted the Federal Credit Union Act. In these circumstances, we consider sua sponto an alternative basis for a federal remedy. Cf. Middlesex County Sewerage Authority v. Nat'l. Sea Clammers Ass’n., 453 U.S. 1, -, 101 S.Ct. 2615, 2625, 69 L.Ed.2d 435 (1981) (sua sponte consideration of 42 U.S.C. § 1983 as basis for private remedy after finding no implied private right of action in sources relied upon by plaintiffs). We find that federal common law provides the federal remedy which the plaintiffs seek in this case. 9

By now it is clear that there is “no federal general common law.” Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938). However, in a few, limited instances, the Court has formulated specific “federal common law.” See Wheeldin v. Wheeler, 373 U.S. 647, 651, 83 S.Ct. 1441, 1144, 10 L.Ed.2d 605 (1963). These instances “fall into two categories: those in which a federal rule of decision is ‘necessary to protect uniquely federal interests,’ Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 426, 84 S.Ct. 923, 939, 11 L.Ed.2d 804 (1964), and those in which Congress has given the courts the power to develop substantive law, [Wheeldin v. Wheeler, 373 U.S. at 652, 83 S.Ct. at 1445].” Texas industries, 101 S.Ct. at 2067. If Illinois v. City of Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972) (“Illinois I”), 10 exemplifies the first category, the paradigm of the second is probably Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957).

As Justice Jackson remarked, in situations such as this in which no federal statute clearly applies the question arises

whether in deciding the case we are bound to apply the law of some particular state or whether, to put it bluntly, we may make our own law from materials found in common law sources ....

*732 [To say that federal courts have no general common law] is not to say that wherever we have occasion to decide a federal question which cannot be answered from federal statutes alone we may not resort to all the source materials of the common law, in that when we have fashioned an answer it does not become a part of the federal non-statutory or common law ....

Were we bereft of the common law, our federal system would be impotent. This follows from the recognized futility of attempting all complete statutory codes, and is apparent from the terms of the Constitution itself.

D’Oench, Duhme & Co. v. F.D.I.C., 315 U.S. 447, 468-70, 62 S.Ct. 676, 684-685, 86 L.Ed. 956 (1942) (Jackson, J., concurring); see also Clearfield Trust Co. v. United States, 318 U.S. 363, 367, 63 S.Ct. 573, 575, 87 L.Ed. 838 (1943) (“In absence of an applicable Act of Congress it is for the federal courts to fashion the governing rule of law according to their own standards.”); Bd. of County Comm’rs of County of Jackson v. United States, 308 U.S. 343, 60 S.Ct. 285, 84 L.Ed. 313 (1939) (Frankfurter, J.).

There is no contention, and circumstances do not suggest, that this case falls in the second category of “federal common law” cases in which Congress confers upon the courts the power to make substantive law. 11 Consequently, jurisdiction, if it exists at all, must be posited under 28 U.S.C. § 1331, which generally confers district court jurisdiction over actions arising under federal law. Thus, the determinative issue is whether this action arises under federal law. 12 This depends, as stated above, upon the presence of “uniquely federal interests.”

Wc emphasize that the question presented here is not whether the plaintiffs have any remedy, but rather whether the remedy they do have is a federal one. In this regard even the defendants state:

[The plaintiffs’] grievance must be one which is relegated to the common law. There is no “special federal common law” in this area. Common law remedies properly pursued for redress of allegations by the plaintiffs are not pre-empted by federal law. There is no exclusivity of federal legislation so that a properly preserved and presented cause of action is unavailable to the Plaintiffs. The point simply is that no private right of action exists under the Federal Credit Union Act which the Plaintiffs wish to pursue.

Brief of Appellees at 21. We agree, but only insofar as defendants concede the existence of a common law remedy under these circumstances. However, we conclude that the available common law remedy must be federal.

Even without the defendants’ concession on this point, we think it is clear that plaintiffs have some judicial remedy. The only reported decision involving issues similar to those presented here, which we have found, is Harrington v. Philadelphia City Employees Federal Credit Union, 243 Pa. Super. 33, 364 A.2d 435 (1976). It supports this conclusion that a judicial remedy is available. Moreover, the Harrington court also stated, in response to the defendants’ argument that the federal courts had exclusive jurisdiction, that state and federal courts have concurrent jurisdiction. 13 In Harrington, several newly elected members of the Board of Directors and of the Credit Committee of a federal credit union, who were denied their positions, and two re *733 moved members of the Board of the same credit union sought respectively to be installed or reinstated. The Superior Court affirmed the trial court’s determination that that court had jurisdiction. The Supreme Court also upheld the lower court’s issuance of injunctions ordering the requested relief because the plaintiffs were afforded inadequate notice and opportunity to defend and the reasons for barring the plaintiffs from their elected positions were insufficient. 364 A.2d at 440-441.

An examination of the history of the Act reveals the “uniquely federal interests” which behoove acknowledgment of a federal remedy in this case. The first credit unions were organized in Germany in the middle of the 19th century. In 1898, the first credit union in North America was organized in Quebec, Canada. St. Mary’s Bank, the plaintiff in La Caisse Populaire Ste-Marie v. United States, 425 F.Supp. 512 (D.N.H.1976), aff’d, 563 F.2d 505 (1st Cir. 1977), was the first credit union organized in the United States, receiving its charter only six days before the enactment of the first general credit union statute in this country by Massachusetts. 425 F.Supp. at 515. 14 By 1934, when the first federal credit union statute was enacted, 15 thirty-eight states had enacted credit union laws and, in 1932, Congress had passed such a statute for the District of Columbia. S.Rep.No. 555, 73d Cong., 2d Sess. 2 (1934). Under these statutes, 2,350 credit unions operated in the United States. They had 450,000 members and resources of $50,000,000, and made $65,000,000 in loans annually. Id.

Despite American credit unions’ good record during the economic depression of the 1930’s, 16 Congress perceived a need for a federal credit union statute:

At a time when industrial recovery depends on the buying power of the masses of the people, usurious money lending in total amounts which are now figured in billions of dollars annually, obviously destroys vast totals of buying power represented by the difference between what the average worker should pay for credit and what he does pay for credit. It is with this truly national problem that the [Act], is primarily concerned.

S.Rep.No. 555, supra, at 1.

There were several reasons supporting a federal credit union law. First, even where there were local credit union laws, in many states the laws were inadequate or the state banking department lacked interest in credit unions, thus inhibiting credit union development. Also, in the absence of a federal statute, there were no interstate credit unions. H.Rep.No. 2021, 73d Cong., 2d Sess. 2 (1934); see also S.Rep.No. 555, supra, at 4 (“The consumer-credit problem is a national problem which has no State limitations.”). Consequently, one of the purposes of the 1934 Act was the establishment of federal jurisdiction over some credit unions. S.Rep.No. 555, supra, at 1, 4. 17 In addition to permitting the development of credit unions in those jurisdictions without a credit union statute, a federal law was thought to be necessary to insure uniform development of credit unions. S.Rep.No. 555, supra, at 4. These federal interests support the acknowledgment of a federal remedy in this case. Were such a remedy to be denied, the uniform development of federal credit unions will be impossible and the intended difference between state and federal credit unions will evaporate. Also, difficult choice of law problems will arise where, as here, a *734 credit union’s members are from more than one state.

Legislative developments after passage of the initial federal law have increasingly federalized the governance of federal credit unions, lending further support to our conclusion. By 1970, there were 24,000 federal credit unions operating in the United States, with 22 million members and deposits of $14 billion. At that time, credit unions were the only federally chartered thrift institutions without federal insurance protection. S.Rep.No. 91-1128, 91st Cong., 2d Sess. 2 (1970); H.Rep.No. 91-1457, 91st Cong., 2d Sess., reprinted in [1970] U.S. Cong. Code & Ad.News 4166, 4167. Thus, in 1970 congress required the NCUA to insure federal credit unions and permitted federal insurance of credit unions not chartered under the Act. Pub.L.No. 91 — 468, 84 Stat. 994 (1970).

In part, the insurance provisions were viewed “as a reward for the outstanding job performed by the credit unions.” [1970] U.S.Cong. Code, supra. But predictably, federal insurance was accompanied by provisions permitting greater federal administrative monitoring of, and intrusion into, the insured credit unions’ internal affairs. E.g., Pub.L.No. 91 — 468, supra, §§ 202, 204, 206(b), codified as 12 U.S.C. §§ 1782, 1784, 1786(b). The NCUA was given authority, inter alia, to terminate insurance, issue cease and desist orders, suspend and remove credit union officers, and impose monetary penalties for improper practices by a credit union or its officers. Pub.L.No. 91-468, § 206 (1970), codified as 12 U.S.C. § 1786. Not only did these provisions enhance the NCUA’s enforcement tools, they also expanded the variety, and hence the number, of situations in which exercise of the agency’s enforcement authority might occur. The analogous provisions in the original federal credit union statute had created comparatively few such situations. See Pub.L.No. 73-467, June 26, 1934, ch. 750, § 16(b) (conferring upon NCUA power to suspend or revoke a credit union charter upon finding bankruptcy or violation of charter, bylaws, Act or regulations).

Additional support for our conclusion that “uniquely federal interests” require a federal common law remedy in this instance is found in courts’ treatment of similar federal institutions. For example, federal credit unions are similar in important respects to federal savings and loan associations. Cf. Nat’l Alliance of Postal & Federal Employees v. Nickerson, 424 F.Supp. 323, 325 (D.D.C.1976) (power of NCUA analogous to that of Federal Home Loan Bank Board). The salient feature of credit unions is their democratic control and management, which are buttressed, in part, by the Act’s prohibition against proxy voting and its limitation of membership to groups with a common bond. La Caisse Populaire, 425 F.Supp. at 517 (citing pertinent statutory provisions). Even state courts acknowledge that a federal savings and loan association “is subject only to state law which does not interfere with the purposes for which it was created, does not destroy its efficiency and does not conflict with paramount federal law.” Bruckner v. Prairie Federal Savings & Loan Ass’n., 81 Wis.2d 215, 260 N.W.2d 256, 259 (1977) (quoting Pearson v. First Federal Savings & Loan Ass’n., 149 So.2d 891, 894-5 (Fla.App.1963)); 18 see also California v. Coast Federal Savings & Loan Ass’n, 98 F.Supp. 311, 318 (S.D.Cal.1951).

With respect to the internal administration of federal savings and loan associations, federal courts have readily formulated federal remedies not provided in the pertinent federal statute. In Murphy v. Colonial Federal Savings & Loan Ass’n, 388 F.2d 609 (2d Cir. 1967), a dissident group of potential directors successfully brought a federal declaratory judgment action enti *735 tling them to inspect a list of those eligible to vote for directors in the association. The pertinent regulations permitted such votes to be cast either in person or by proxy, but neither the regulations nor the statute expressly entitled the plaintiffs to the requested inspection. Nevertheless, the court ordered the relief which was sought. Regarding the conclusion that this issue was governed by federal law, Judge Friendly stated:

This would become readily apparent if the common law of the state where the association operated denied members a right of inspection; Congress could hardly have intended that the rights of members of federal savings and loan associations to fair elections should vary with quirks of law ....

It is immaterial that the state courts also may deal with internal affairs of federal savings and loan associations.... When they do this, they are nonetheless applying federal law.

388 F.2d at 611-12. 19

Similarly, in Rettig v. Arlington Heights Federal Savings & Loan Ass’n, 405 F.Supp. 819 (N.D.Ill.1975), the court denied the plaintiffs’ motions to retransfer the consolidated eases to the state courts after the removal of them pursuant to 28 U.S.C. § 1441. These were actions arising out of the diversion and misappropriation of funds from several federal savings and loan associations. The court stated that the plenary powers vested in the Federal Home Loan Bank Board over the internal operations of these institutions precluded any state regulation or interference. 405 F.Supp. at 823. To the extent that federal regulations and the federal statute did not govern the matters at issue, the court determined, as we do here, that the need for uniformity in the administration of these federal institutions required the application of federal common law. 405 F.Supp. at 826-27.

Of course, where federal statutory or regulatory provisions expressly preclude a remedy which federal common law provides, the common law remedy does not continue to be available. Kupiec v. Republic Federal Savings and Loan Ass’n, 512 F.2d 147 (7th Cir. 1975) (Federal Home Loan Bank Board bylaw, adopted by federal savings and loan association, containing procedure by which members can communicate is exclusive). However, neither the Act nor the regulations and bylaws promulgated under it explicitly foreclose the availability of the remedies available under the common law. One such remedy was a quo warranto proceeding to determine one’s right to an office and to oust the holder from its enjoyment. See Generally 2 Fletcher Cyclopedia Corporations §§ 283-296, 357, 363-367; 74 C.J.S. Quo Warranto § 1; 19 Am.Jur.2d Corporations § 1096. Although apparently there is no general quo warranto jurisdi