922 F.3d 775
7th Cir.2019Background
- In 2015 the FDIC assigned Builders Bank a CAMELS rating of 4, triggering heightened oversight and allegedly higher deposit-insurance assessments.
- Builders Bank sued the FDIC challenging parts of the CAMELS rating as reviewable; this court earlier held some CAMELS components are reviewable (Builders Bank v. FDIC).
- Before remand resolution Builders Bank merged into Builders NAB LLC and exited banking; district court dismissed the suit as moot because the entity no longer operated as a bank.
- Builders NAB (successor) sought monetary relief for alleged overpayments of deposit-insurance premiums, arguing the proper CAMELS rating should have been 3 rather than 4.
- Builders initially relied on the Administrative Procedure Act (APA) for relief; the FDIC pointed to 12 U.S.C. §1817(e)(1) (refund/credit mechanism) and to Tucker Act/FDIC sue-and-be-sued clause as the proper waivers of sovereign immunity and exclusive venues.
- The district court rejected Builders’ APA damages theory and dismissed as moot; the court of appeals modified the dismissal to a merits ruling and affirmed, refusing to entertain new statutory theories raised only on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness of injunctive relief | Builder is moot on prospective CAMELS relief after exiting banking | FDIC: no ongoing controversy once company left banking | Court agreed injunctive/forward relief is moot |
| Successor standing / real party in interest | Merger made Builders NAB owner of Builders Bank’s claims | FDIC: original bank no longer exists; not real party | Court: successor (Builders NAB) owns the claim; real-party issue resolved for NAB |
| APA as source of monetary relief / sovereign immunity waiver | APA §702 waives immunity and permits money relief for overpayments | FDIC: §702 excludes money damages; statutory refund route exists (§1817), and Tucker Act limits venue | Court: rejected APA monetary theory because APA requires lack of other adequate remedy; §1817 provides alternate remedy so APA relief unavailable |
| Raising statutory waiver and venue first on appeal | Builder: overlooked §1817/§1819 and may present them on appeal | FDIC: Builders forfeited those theories by not raising them below | Court: declined to entertain new statutory waiver/venue theories on appeal; held Builders to its district-court theory |
Key Cases Cited
- Builders Bank v. FDIC, 846 F.3d 272 (7th Cir.) (earlier holding that some CAMELS components are reviewable)
- Bowen v. Massachusetts, 487 U.S. 879 (U.S. 1988) (distinguishing money damages from prospective relief under APA)
- Department of the Army v. Blue Fox, Inc., 525 U.S. 255 (U.S. 1999) (discussing substitute relief vs. specific relief)
- Teumer v. General Motors Corp., 34 F.3d 542 (7th Cir. 1994) (appellate court may, but need not, consider issues forfeited below)