Appeal from a decision of the United States District Court for the District of Connecticut, F. T. Gilroy Daly, Judge, denying defendants' motion to dismiss and granting judgment in favor of the plaintiff on his claim that the bank's deposit pick-up service constituted a "branch" under the National Bank Act, 12 U.S.C. § 36(f). The district court's decision is affirmed.
Oakes, Chief Judge, Meskill and Wisdom*fn* , Circuit Judges.
This case involves the issues whether a deposit pick-up service operated by the First National Bank of Stamford, Inc. for the convenience of its customers constitutes a "branch" under the National Bank Act, 12 U.S.C. § 36(f) and, if so, whether its operation violates the restrictions on branch banking set forth in 12 U.S.C. § 36(c). The facts of this case are undisputed; the twist comes in the change of position taken by the Comptroller of the Currency at the trial and appellate levels. We recount only those facts relevant to the resolution of the issues remaining on appeal.
The First National Bank of Stamford, Inc. (FNB), is a banking association chartered by the Comptroller of the Currency, incorporated under the laws of the United States, and authorized to engage in the business of banking under the National Bank Act.*fn1 FNB's main and only office is in Stamford, Connecticut. For the benefit of its customers in Stamford, Norwalk, Darien, and Greenwich, Connecticut, FNB has provided a messenger service to collect deposits from customers. The service, which FNB has operated for the past two years, is offered through an agreement between FNB and the customer in which the customer appoints as his agent an FNB employee to collect funds and deliver them to a teller at FNB's office in Stamford. FNB furnishes the vehicle the messenger uses to transport the deposits to the bank. Under the terms of the agreement the funds collected by the messenger are not considered "received by the Bank until such deposits have actually been delivered by messenger to the teller at the Bank's premises".
In a letter dated February 4, 1987 to the Comptroller of the Currency, the Connecticut State Banking Commissioner objected to FNB's messenger service because it constituted unauthorized branch banking in violation of 12 U.S.C. § 36(c). The Commissioner requested that the Comptroller order FNB to cease operating its messenger service. The Comptroller's District Counsel for the Northeastern District responded by rejecting the Commissioner's characterization of FNB's messenger service as a "branch" under 12 U.S.C. § 36(f). The District Counsel took the position that under the applicable statutes, case law, and an Interpretive Ruling issued by the Comptroller, FNB had not created a branch by providing its messenger service. The Commissioner brought suit in federal court seeking relief that would bar FNB's Operation of the messenger service. The United States District Court for the District of Connecticut, T. F. Gilroy Daly, Judge, granted summary judgment for the Commissioner on the ground that the messenger service is a branch bank under 12 U.S.C. § 36(f) and its operation violates 12 U.S.C. § 36(c) because Connecticut law does not permit state banks to operate a branch in this manner.
In his amicus-curiae brief filed on appeal, the defendant Comptroller of the Currency made a u-turn. He renounced the District Counsel's former position and announced his agreement with the state banking Commissioner that FNB's messenger service is a branch. The Comptroller urges us to affirm the district court's summary judgment on the ground that FNB failed to obtain necessary approval from the Comptroller to operate the messenger service. Such approval could not have been given, the Comptroller maintains, both because the messenger service operates outside the geographic limits set out in the Connecticut branch banking statute and because Connecticut law does not expressly authorize a state bank to operate a branch in this manner.*fn2
The National Bank Act, as amended by the McFadden Act,*fn3 governs the permissibility of establishing a branch of a national bank. The legislative history of these statutes has been carefully considered in numerous cases involving the nature and scope of the activities Congress intended to regulate as well as the broad policy objectives sought to be achieved through this regulatory scheme.*fn4 We need not, therefore, engage in a de novo review of the history and purpose of the federal branching provisions. In applying the appropriate federal and state provisions to FNB's messenger service, we are guided, however, by the McFadden Act's intended goal of re-establishing competitive equality between national and state banks insofar as branch banks are concerned.*fn5 The pertinent language of section 36(c) is straightforward:
(c) A national banking association may, with the approval of the Comptroller of the Currency, establish and operate new branches: (1) Within the limits of the City, town or village in which said association is situated, if such establishment and operation are at the time expressly authorized to State banks by the law of the State in question; and (2) at any point within the State in which said association is situated, if such establishment and operation are at the time authorized to State banks by the statute law of the State in question by language specifically granting such authority affirmatively and not merely by implication or recognition, and subject to the restrictions as to location imposed by the law of the State on State banks.
12 U.S.C.A. § 36(c) (West 1989).
Although some courts have interpreted section 36(c) as not incorporating every state law restriction applicable to state banks,*fn6 it is well settled that section 36(c) authorizes branch banking by national banks only to the extent and in the manner expressly permitted state banks under the applicable state law.*fn7 The question whether a particular operation ...