United States v. Phillip Brumfield

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-3016
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Karen J. Anthony, *
*
Appellant, * Appeal from the United States
* District Court for the
v. * District of Nebraska.
*
The Cattle National Bank & * [PUBLISHED]
Trust Co., *
*
Appellee. *
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Submitted: May 2, 2012
Filed: July 12, 2012
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Before LOKEN, BOWMAN, and BENTON, Circuit Judges.
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PER CURIAM.
Nebraska citizen Karen Anthony appeals from the district court’s 1 dismissal, for
lack of subject matter jurisdiction, of her action against The Cattle National Bank &
Trust Company (the Bank), a national bank headquartered in Nebraska. Following de
novo review see LeMay v. U.S. Postal Serv., 450 F.3d 797, 799 (8th Cir. 2006), this
court affirms.
1The Honorable Laurie Smith Camp, Chief Judge, United States District Court
for the District of Nebraska.

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Anthony alleged that the Bank committed fraud in connection with a secured
loan that it had made to her by lending its own assets or those of its depositors, and
by using improper accounting practices. She asserted subject matter jurisdiction under
12 U.S.C. §§ 24(4), 1831n(a)(2)(A), and 28 U.S.C. § 1331. Upon the Bank’s motion,
the district court dismissed the complaint without prejudice for lack of subject matter
jurisdiction, concluding that (1) there was no diversity jurisdiction, and (2) federal-
question jurisdiction did not exist, because section 24(4) was not an independent
jurisdictional grant to federal courts over national banks, and section 1831n(a)(2)(A)
did not create a private right of action. Anthony appeals.
This court agrees with the district court that diversity jurisdiction does not exist,
see 28 U.S.C. § 1332(a); OnePoint Solutions, LLC v. Borchert, 486 F.3d 342, 346 (8th
Cir. 2007) (diversity jurisdiction requires complete diversity among litigants);
Wachovia Bank v. Schmidt, 546 U.S. 303, 306-07 (2006) (national bank is citizen of
state in which its main office is located), and that section 24(4) cannot serve as a basis
for federal-question jurisdiction, id. at 309-11 (§ 24(4) does not allow national banks
to be sued in federal court without regard to normal subject matter jurisdiction rules).
Further, having reviewed the language and structure of section 1831n, this court
determines that section 1831n does not create a private right of action. See Frison v.
Zebro, 339 F.3d 994, 999 (8th Cir. 2003) (touchstone for determining whether statute
confers private right of action is congressional intent). Section 1831n states that its
objectives are to yield financial reporting that accurately reflects the capital of insured
depository institutions, and to facilitate effective supervision of the institutions and
prompt corrective action at the least cost to the Deposit Insurance Fund. See 12
U.S.C. § 1831n(a)(1). With respect to reports filed with Federal banking agencies, the
statute requires depository institutions to use accounting principles which are uniform
and consistent with generally accepted accounting principles (GAAP), unless a
different accounting principle – no less stringent than GAAP – is prescribed by the
appropriate federal agency. See 12 U.S.C. § 1831n(a)(2). Federal banking agencies,
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in turn, must use uniform accounting standards in determining whether the depository
institutions are complying with statutory or regulatory requirements. See 12 U.S.C.
§ 1831n(b). The agencies must jointly prepare an annual report, for submission to the
House of Representatives and the Senate, that describes any differences among
agencies in the type of accounting or capital standards used. See 12 U.S.C.
§ 1831n(c). This court finds nothing in the text of section 1831n, its structure, or its
history to suggest that Congress intended to create a private right of action. See
Frison, 339 F.3d at 999 (where text and structure of statute provides no indication that
Congress intends to create new individual rights, there is no basis for private suit
under 42 U.S.C. § 1983 or under implied right of action) (citations omitted). Further,
the statute does not create a statutory remedy for violations of section 1831n. See
Gonzaga Univ. v. Doe, 536 U.S. 273, 283-85 (2002) (for implied-right-of-action
cases, underlying statute must create remedy). Rather, the statute creates rights and
obligations among depository institutions, federal banking agencies, and Congress.
Anthony’s remaining arguments are meritless or improperly raised for the first
time on appeal. See Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2001) (stating general
rule that claims not presented in district court may not be advanced for first time on
appeal).
This court affirms the judgment of the district court.
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