Oklahoma Central Credit Union v. United States of America, Ex Rel. National Credit Union Administration, 16 F.3d 416, 10th Cir. (1993)
Oklahoma Central Credit Union v. United States of America, Ex Rel. National Credit Union Administration, 16 F.3d 416, 10th Cir. (1993)
Oklahoma Central Credit Union v. United States of America, Ex Rel. National Credit Union Administration, 16 F.3d 416, 10th Cir. (1993)
3d 416
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of these appeals. See Fed.R.App.P. 34(a); 10th Cir. R. 34.1.9. The cases are
therefore ordered submitted without oral argument.
Plaintiff Oklahoma Central Credit Union appeals an order of the district court
granting defendant's motion to dismiss two of plaintiff's three claims and
granting defendant's motion for partial summary judgment on the third claim.
We affirm.
See Rule 4(a)(5). On September 11, 1992, as the thirty-day extension period
was about to expire, see id., plaintiff filed a notice of appeal, No. 92-5187, even
though the court had not yet ruled on its motion. On December 9, 1992, the
district court granted plaintiff's motion and gave plaintiff up to ten days from
the date of its order to file its notice of appeal. On December 11, 1992, plaintiff
filed appeal No. 92-5239. Both appeals are valid and we have jurisdiction. See
Hinton v. City of Elwood, 997 F.2d 774, 778 (10th Cir.1993); Oda v. Transcon
Lines Corp., 650 F.2d 231, 233 (10th Cir.1981).
5
Contrary to plaintiff's assertion, we agree with the district court that the "sue
and be sued" clause contained in 12 U.S.C. 1789 is not an "unambiguous
indication" that Congress intended to withdraw the United States Court of
Federal Claims' exclusive jurisdiction over plaintiff's damages claims. See
Preseault v. ICC, 494 U.S. 1, 13 (1990).
"The Tucker Act provides jurisdiction in the United States Claims Court for any
claim against the Federal Government to recover damages founded on the
Constitution, a statute, a regulation, or an express or implied-in-fact contract."
Id. at 11-12; see also Williamson County Regional Planning Comm'n v.
Hamilton Bank, 473 U.S. 172, 195 (1985)("taking claims against the Federal
Government are premature until the property owner has availed itself of the
processes provided by the Tucker Act ...."); Blanchette v. Connecticut Gen. Ins.
Corps., 419 U.S. 102, 126 (1974)(proper inquiry is "whether Congress has ...
withdrawn the Tucker Act grant of jurisdiction to the Court of Claims to hear a
suit ... 'founded ... upon the Constitution.' "). The language of 1789 is not
specific enough to overcome the Tucker Act considering the Supreme Court's
strong directives on this issue.
9
Upon review of the agency's decision, see Aulston v. United States, 915 F.2d
584, 588 (10th Cir.1990), cert. denied, 111 S.Ct.2011 (1991), we further agree
with the district court that defendant did not act in an arbitrary or capricious
manner in permitting the overlapping fields of membership. Further, permitting
the overlapping fields of membership did not violate agency policies.
10
The judgment of the United States District Court for the Northern District of
Oklahoma is AFFIRMED for substantially the reasons stated therein.
**
Honorable David K. Winder, Chief Judge, United States District Court for the
District of Utah, sitting by designation
This order and judgment has no precedential value and shall not be cited, or
used by any court within the Tenth Circuit, except for purposes of establishing
the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.
R. 36.3