FEDERAL DEPOSIT INSURANCE CORPORATION v. PHILADELPHIA GEAR CORP.
No. 84-1972
Supreme Court of the United States
Argued March 4, 1986—Decided May 27, 1986
476 U.S. 426
Charles A. Rothfeld argued the cause for petitioner. With him on the briefs were Solicitor General Fried, Assistant Attorney General Willard, Deputy Solicitor General Wallace, and John C. Murphy, Jr.
Gerald F. Slattery, Jr., argued the cause and filed a brief for respondent.*
JUSTICE O‘CONNOR delivered the opinion of the Court.
We granted certiorari to consider whether a standby letter of credit backed by a contingent promissory note is insured as a “deposit” under the federal deposit insurance program. We hold that, in light of the longstanding interpretation of petitioner Federal Deposit Insurance Corporation (FDIC) that such a letter does not create a deposit and, in light of the fact that such a letter does not entrust any noncontingent assets to the bank, a standby letter of credit backed by a contingent promissory note does not give rise to an insured deposit.
I
Orion Manufacturing Corporation (Orion) was, at the time of the relevant transactions, a customer of respondent Phila-
On the same day that Penn Square issued the standby letter of credit, Orion executed an unsecured promissory note for $145,200 in favor of Penn Square. App. 27. The purpose of the note was listed as “Back up Letter of Credit.” Ibid. Although the face of the note did not so indicate, both Orion and Penn Square understood that nothing would be considered due on the note, and no interest charged by Penn Square, unless Philadelphia Gear presented drafts on the standby letter of credit after nonpayment by Orion. 751 F. 2d 1131, 1134 (CA10 1984). See also Tr. of Oral Arg. 32.
On July 5, 1982, Penn Square was declared insolvent. Petitioner FDIC was appointed its receiver. Shortly there-
Philadelphia Gear sued the FDIC in the Western District of Oklahoma. Philadelphia Gear alleged that the standby letter of credit was an insured deposit under the definition of “deposit” set forth at
The District Court held that the total value of the standby letter of credit was $145,200, App. B to Pet. for Cert. 20a, 28a-30a; that the letter was an insured deposit on which the FDIC was liable for $100,000 in deposit insurance, id., at 37a-43a; and that Philadelphia Gear was entitled to prejudgment interest on that $100,000, id., at 43a. The FDIC appealed from the District Court‘s ruling that the standby letter of credit backed by a contingent promissory note constituted a “deposit” for purposes of
The Court of Appeals for the Tenth Circuit reversed the District Court‘s award of prejudgment interest, 751 F. 2d, at 1138-1139, but otherwise affirmed the District Court‘s decision. As to the definition of “deposit,” the Court of Appeals held that a standby letter of credit backed by a promissory note fell within the terms of
II
Title
“The term ‘deposit’ means—
“(1) the unpaid balance of money or its equivalent received or held by a bank in the usual course of business and for which it has given or is obligated to give credit, either conditionally or unconditionally, to a commercial . . . account, or which is evidenced by . . . a letter of credit or a traveler‘s check on which the bank is primarily liable: Provided, That, without limiting the generality of the term ‘money or its equivalent,’ any such account or instrument must be regarded as evidencing the receipt of the equivalent of money when credited or issued in exchange for checks or drafts or for a promissory note upon which the person obtaining any such credit or instrument is primarily or secondarily liable. . . .”
Philadelphia Gear successfully argued before the Court of Appeals that the standby letter of credit backed by a contingent promissory note constituted a “deposit” under
The Court of Appeals quite properly looked first to the language of the statute. See Florida Power & Light Co. v. Lorion, 470 U. S. 729, 735 (1985); United States v. Yermian, 468 U. S. 63, 68 (1984). Finding the language of the proviso in
A
Justice Holmes stated that, as to discerning the constitutionality of a federal estate tax, “a page of history is worth a volume of logic.” New York Trust Co. v. Eisner, 256 U. S. 345, 349 (1921). Although the genesis of the Federal Deposit Insurance Act may not be quite so powerful a substitute for legal analysis, that history is worthy of at least a page of recounting for the light it sheds on Congress’ purpose in passing the Act. Cf. Watt v. Alaska, 451 U. S. 259, 266 (1981) (“The circumstances of the enactment of particular legislation may persuade a court that Congress did not intend words of common meaning to have their literal effect“).
When Congress created the FDIC, the Nation was in the throes of an extraordinary financial crisis. See generally F. Allen, Since Yesterday: The Nineteen-Thirties in America 98-121 (1940); A. Schlesinger, The Crisis of the Old Order 474-482 (1957). More than one-third of the banks in the United States open in 1929 had shut their doors just four years later. Bureau of the Census, Historical Statistics of the United States: Colonial Times to 1970, pt. 2, pp. 1019, 1038 (1976). In response to this financial crisis, President Roosevelt declared a national banking holiday effective the first business day after he took office. 48 Stat. 1689. Congress in turn responded with extensive legislation on banking, including the laws that gave the FDIC its existence.
Congress’ purpose in creating the FDIC was clear. Faced with virtual panic, Congress attempted to safeguard the hard earnings of individuals against the possibility that bank failures would deprive them of their savings. Congress passed the 1933 provisions “[i]n order to provide against a repetition of the present painful experience in which a vast sum of assets and purchasing power is ‘tied up.‘” S. Rep. No. 77, 73d Cong., 1st Sess., 12 (1933) (emphasis added). The
“[T]he purpose of this legislation is to protect the people of the United States in the right to have banks in which their deposits will be safe. They have a right to expect of Congress the establishment and maintenance of a system of banks in the United States where citizens may place their hard earnings with reasonable expectation of being able to get them out again upon demand. . . .
“[The purpose of the bill is to ensure that] the community is saved from the shock of a bank failure, and every citizen has been given an opportunity to withdraw his deposits. . . .
“The public . . . demand of you and me that we provide a banking system worthy of this great Nation and banks in which citizens may place the fruits of their toil and know that a deposit slip in return for their hard earnings will be as safe as a Government bond.” 77 Cong. Rec. 3837, 3838, 3840 (1933) (remarks of Rep. Steagall).
See also id., at 3913 (remarks of Rep. Keller) (“[We must make] it absolutely certain that . . . any and every man, woman, or child who puts a dollar in any bank can absolutely know that he will under no circumstances lose a single penny of it“); id., at 3924 (remarks of Rep. Green) (“It is time that we pass a law so secure that when a man puts his money in a bank he will know for sure that when he comes back it will be there“). To prevent bank failure that resulted in the tangible loss of hard assets was therefore the focus of Congress’ effort in creating deposit insurance.
Despite the fact Congress revisited the deposit insurance statute in 1935, 1950, and 1960, these comments remain the
The legislative history of the 1950 amendments is similarly unhelpful, as one would expect given that the relevant provisions were reenacted but unchanged. See S. Rep. No. 1269, 81st Cong., 2d Sess., 2-3 (1950); H. R. Rep. No. 2564, 81st Cong., 2d Sess., 5-6 (1950). The Committee Reports on the 1960 amendments likewise give no indication that the amendments’ phrasing was meant to effect any fundamental changes in the definition of deposit; those Reports state only that the changes are intended to bring into harmony the definitions of “deposit” used for purposes of deposit insurance with those used in reports of condition, and that the FDIC‘S rules and regulations are to be incorporated into the new definition. See H. R. Rep. No. 1827, 86th Cong., 2d Sess., 3, 5 (1960); S. Rep. No. 1821, 86th Cong., 2d Sess., 7, 10 (1960).
Congress’ focus in providing for a system of deposit insurance—a system that has been continued to the present without modification to the basic definition of deposits that are “money or its equivalent“—was clearly a focus upon safeguarding the assets and “hard earnings” that businesses and individuals have entrusted to banks. Congress wanted to ensure that someone who put tangible assets into a bank could always get those assets back. The purpose behind the insurance of deposits in general, and especially in the section defining deposits as “money or its equivalent,” therefore, is the protection of assets and hard earnings entrusted to a bank.
This purpose is not furthered by extending deposit insurance to cover a standby letter of credit backed by a contingent promissory note, which involves no such surrender of assets or hard earnings to the custody of the bank. Philadelphia Gear, which now seeks to collect deposit insurance, surrendered absolutely nothing to the bank. The letter of credit is for Philadelphia Gear‘s benefit, but the bank relied upon Orion to meet the obligations of the letter of credit and made no demands upon Philadelphia Gear. Nor, more importantly, did Orion surrender any assets unconditionally to the bank. The bank did not credit any account of Orion‘s in exchange for the promissory note, and did not treat its own assets as increased by its acceptance of the note. The bank could not have collected on the note from Orion unless Philadelphia Gear presented the unpaid invoices and a draft on the letter of credit. In the absence of a presentation by Philadelphia Gear of the unpaid invoices, the promissory note was a wholly contingent promise, and when Penn Square went into receivership, neither Orion nor Philadelphia Gear had lost anything except the ability to use Penn Square to reduce Philadelphia Gear‘s risk that Philadelphia Gear would go unpaid for a delivery of goods to Orion.
Congress’ actions with respect to the particular definition of “deposit” that it has chosen in order to effect its general purpose likewise lead us to believe that a standby letter of credit backed by a contingent promissory note is not an insurable “deposit.” In 1933, Congress amended the Federal Reserve Act to authorize the creation of the FDIC and charged it “to insure . . . the deposits of all banks which are entitled to the benefits of [FDIC] insurance.” § 8, Banking Act of 1933, ch. 89, 48 Stat. 168. Congress did not define the term “deposit,” however, until the Banking Act of 1935, in which it stated:
“The term ‘deposit’ means the unpaid balance of money or its equivalent received by a bank in the usual course of business and for which it has given or is obligated to give credit to a commercial, checking, savings, time or thrift account, or which is evidenced by its certificate of deposit, and trust funds held by such bank whether retained or deposited in any department of such bank or deposited in another bank, together with such other obligations of a bank as the board of directors [of the FDIC] shall find and shall prescribe by its regulations to be deposit liabilities by general usage. . . .” § 101, Banking Act of 1935, ch. 614, 49 Stat. 684, 685-686.
Less than two months after this statute was enacted, the FDIC promulgated a definition of “deposit,” which provided in part that “letters of credit must be regarded as issued for the equivalent of money when issued in exchange for . . . promissory notes upon which the person procuring [such] instruments is primarily or secondarily liable.” See
In 1950, Congress revisited the provisions specifically governing the FDIC in order to remove them from the Federal
At no point did Congress disown its initial, clear desire to protect the hard assets of depositors. See supra, at 432-435. At no point did Congress criticize the FDIC‘s longstanding interpretation, see infra, at 438, that a standby letter of credit backed by a contingent promissory note is not a “deposit.” In fact, Congress had reenacted the 1935 provisions in 1950 without changing the definition of “deposit” at all. Compare 49 Stat. 685-686 with 64 Stat. 874-875. When the statute giving rise to the longstanding interpretation has been reenacted without pertinent change, the “congressional failure to revise or repeal the agency‘s interpretation is persuasive evidence that the interpretation is the one intended by Congress.” NLRB v. Bell Aerospace, 416 U. S. 267, 275 (1974). See Zenith Radio Corp. v. United States, 437 U. S. 443, 457 (1978). Indeed, the current statutory definition of “deposit,” added by Congress in 1960, was expressly designed to incorporate the FDIC‘s rules and regulations on “deposits.” As Committees of both Houses of Congress explained the amendments: “The amended definition would include the present statutory definition of deposits, and the definition of deposits in the rules and regulations of the Federal Deposit Insurance Corporation, [along] with . . . changes [in sections other than what is now
C
Although the FDIC does not argue that it has an express regulation excluding a standby letter of credit backed by a contingent promissory note from the definition of “deposit” in
“‘If your letter of credit is issued by a charge against a depositor‘s account or for cash and the letter of credit is reflected on your books as a liability, you do have a deposit liability. If, on the other hand, you merely extend a line of credit to your customer, you will only show a contingent liability on your books. In that event no deposit liability has been created.‘” Transcript as quoted in FDIC v. Irving Trust Co., 137 F. Supp. 145, 161 (SDNY 1955).
Because Penn Square apparently never reflected the letter of credit here as a noncontingent liability, and because the interwoven financial instruments at issue here can be viewed most accurately as the extension of a line of credit by Penn Square to Orion, this transcript lends support to the FDIC‘S contention that its longstanding policy has been to exclude standby letters of credit backed by contingent promissory notes from
The FDIC‘s contemporaneous understanding that standby letters of credit backed by contingent promissory notes do not generate a “deposit” for purposes of
Although the FDIC‘s interpretation of the relevant statute has not been reduced to a specific regulation, we conclude nevertheless that the FDIC‘s practice and belief that a standby letter of credit backed by a contingent promissory note does not create a “deposit” within the meaning of
III
Philadelphia Gear essentially seeks to have the FDIC guarantee the contingent credit extended to Orion, not assets en-
Accordingly, the judgment of the court below is reversed, and the case is remanded for further proceedings consistent with this opinion.
Reversed and remanded.
JUSTICE MARSHALL, with whom JUSTICE BLACKMUN and JUSTICE REHNQUIST join, dissenting.
There is considerable common sense backing the Court‘s opinion. The standby letter of credit in this case differs considerably from the savings and checking accounts that come most readily to mind when one speaks of an insured deposit. Nevertheless, to reach this common-sense result, the Court must read qualifications into the statute that do not appear
It cannot be doubted that the standby letter of credit in this case meets the literal definition of a “deposit” contained in
The Court justifies its restrictive reading of the term “promissory note” in large part by arguing that Congress would not have wanted to include in that term any obligation that was not the present equivalent of money. The keystone of the FDIC‘s arguments, and of the Court‘s decision, is that Orion did not entrust “money or its equivalent” to the bank. The note in this case, however, was the equivalent of money,
FDIC concedes, as it must, that Congress has determined that a promissory note generally constitutes money or its equivalent. Moreover, that statutory definition comports with economic reality. Promissory notes typically are negotiable instruments and therefore readily convertible into cash. The FDIC argues, and the Court holds, that the promissory note in this case is “contingent” and therefore not the equivalent of money. However, while the FDIC argues strenuously that Orion‘s note is not a promissory note in the usual sense of the word, one could more plausibly state that it is not a “contingent” obligation in the usual sense of that word. On its face the note is an unconditional obligation of Orion to pay the holder $145,200 plus accrued interest on August 1, 1982. It sets out no conditions that would affect the negotiability of the note, and therefore is fully negotiable for purposes of the UCC,
The Court therefore misses the point when it states that at the time of the original banking Acts, the term “promissory note” was not understood to include a contingent obligation. Ante, at 434. The note at issue in this case is an unconditional promise to pay, and satisfies all the requisites of a negotiable promissory note, either under the UCC or the common law as it existed in the 1930‘s. The only contingencies attached to Orion‘s obligation arise out of a separate contract. As to such contingencies, the law was well settled long before 1930:
“[I]n order to make a note invalid as a promissory note, the contingency to avoid it must be apparent, either upon the face of the note, or upon some contemporaneous written memorandum on the same paper; for, if the memorandum is not contemporaneous, or if it be merely verbal in each case, whatever may be its effect as a matter of defence between the original parties, it is not deemed to be a part of the instrument, and does not af-
fect, much less invalidate, its original character.” J. Thorndike, Story on Promissory Notes 34 (7th ed. 1878) (footnotes omitted).1
It is far from a matter of semantics to state that while Orion and the bank may have an oral understanding concerning the bank‘s treatment of Orion‘s note, that note itself is unconditional and equivalent to money. The Court correctly observes that the bank would have breached its oral contract had it attempted to sue on the note; nevertheless, Orion would have had separately to plead and prove a breach of contract in that case, because parol evidence that the contract between the parties differed from the written instrument would have been inadmissible in the bank‘s action to collect the debt. See American Perforating Co. v. Oklahoma State Bank, 463 P. 2d 958, 962-963 (Okla. 1970). Similarly, should the note have found its way into the hands of a third party, Orion would have had no choice but to honor it, again being left with only the right to sue the bank for breach of the oral contract. Orion‘s entrustment of the note to the bank was not, therefore, completely risk free.
The risk taken on by Orion may not differ substantially from the risk assumed by one who hands over money to the bank to guarantee repayment of funds paid out on a letter of credit. The bank typically undertakes to put such cash collateral into a special account, where it never enters into the general assets of the bank. See
While the Court purports to examine what Congress meant when it said “promissory note,” in fact the Court‘s opinion does not rest on any special attributes of Orion‘s note. Rather, the Court rules that when an individual entrusts a negotiable instrument to a bank, that instrument is not “money or its equivalent” for purposes of