Before: Wald, Williams, and Tatel, Circuit Judges.
FOR THE DISTRICT OF COLUMBIA CIRCUIT
On Petition for Review of an Order of the Federal Reserve System
Opinion for the Court filed by Circuit Judge Tatel.
Pursuant to its authority under the Bank Holding Company Act, the Board of Governors of the Federal Reserve System approved the mergers of three bank holding companies in Louisiana. The Reverend Joseph L. Jones has petitioned this court for review of the Board's order approving the mergers. Because the petitioner was not a party to the proceedings before the Board, we conclude that he is not a "party aggrieved" within the meaning of the Bank Holding Company Act and therefore lacks standing to petition for review of the Board's decision.
First Commerce Corporation, the largest commercial bank holding company in Louisiana, applied to the Board of Governors of the Federal Reserve System under the Bank Holding Company Act, 12 U.S.C. Section(s) 1842(a) (1994), to merge with two other bank holding companies, City Bancorp, Inc. and First Bancshares, Inc. The Plaisance Development Corporation, a non-profit organization founded in 1988 to help provide affordable housing for the residents of Plaisance, Louisiana, participated as a party in the proceedings before the Board and challenged the mergers. Over PDC's objections, the Board approved the proposed mergers, later denying PDC's request for reconsideration. Acting pro se, the Reverend Joseph L. Jones-pastor of the New Bethel Baptist Church, as well as the founder, president, and a director of PDC-filed in this court a petition for review of the Board's orders pursuant to the judicial review provisions of both the Bank Holding Company Act, 12 U.S.C. Section(s) 1848 (1994), and the Fair Housing Act, 42 U.S.C. Section(s) 3613(a)(1)(A) (1988). We appointed counsel as amicus curiae to argue the claims advanced by petitioner.
Before addressing the Board's principal argument that petitioner lacks standing to maintain this action, we must first consider whether we may substitute PDC for the Reverend Jones as petitioner. At oral argument, counsel for Jones indicated that, if it would help establish standing, he would agree to the court naming PDC as petitioner in accordance with United Transportation Union v. ICC, 891 F.2d 908 (D.C. Cir. 1989), cert. denied, 497 U.S. 1024 (1990). There, this court renamed the case because Patrick Simmons, the Illinois Legislative Director of the United Transportation Union who had initially filed suit, "actually represent[ed] the UTU." Id. at 909 n.1. Changing the caption thus simply reflected the fact that Simmons had been the petitioner in name only and was, in reality, acting as an agent for his organization. This case is quite different. According to the Reverend Jones's petition, he is proceeding in his individual capacity, not as a representative of PDC. He claims that the Board's order "directly affect[ed him] as a member of the board of directors of Plaisance Development Corporation, as an African American residing in the community, and as a member of Plaisance Development Corporation." Petition Para(s) 4. He stated that "[t]he plaintiff believes that he will be injured by a discriminatory housing practice about to occur." Id. Para(s) 5 (emphasis added). Unlike Patrick Simmons in United Transportation, therefore, the Reverend Jones does not appear before us as an agent of an organization.
Nor does the record support the claim that "[t]he Rev[erend] Jones and PDC are essentially the same person." Amicus Reply Br. at 4. Although founder and president of PDC, Jones is but one of three members of its board of directors. In both business and regulatory matters, the record shows that Jones has maintained the distinction between himself and PDC as a separate corporate entity. When PDC applied for a loan for a sewer project, for example, Jones declined to offer his personal assets as collateral. In writing to the Federal Reserve and the Department of Housing and Urban Development, Jones signed his correspondence as president of PDC and referred to PDC, not himself, as the aggrieved party.
Were we to designate PDC as petitioner, we would thus not simply be correcting the caption to reflect the real party in interest, as the court did in United Transportation, but would be substituting as petitioner an entity that has not sought relief from us. We do not read the Federal Rules of Appellate Procedure to permit us to effect such a substitution. According to Rule 43(b), a court of appeals shall substitute a party "[i]f substitution ... is necessary for any reason other than death." It further states that "substitution shall be effected in accordance with the procedure prescribed in" Rule 43(a), which in turn provides that, when a party dies, the personal representative of the deceased-that is, the person to be substituted-must file a motion requesting substitution. Here, the entity to be substituted, PDC, has not requested that we name it petitioner. Not only do we thus lack authority on procedural grounds to substitute PDC for the Reverend Jones, we lack substantive authority as well. This court has found that a substitution is "necessary" under Rule 43(b) if "a party is incapable of continuing the suit, such as where a party becomes incompetent[,] or a transfer of interest in the company or property involved in the suit has occurred," or the focus of the litigation has shifted to make another entity the real party in interest. Alabama Power Co. v. ICC, 852 F.2d 1361, 1366 (D.C. Cir. 1988); National Treasury Employees Union v. United States Dep't of the Treasury, 656 ...