OPINION
This case presents the question of whether a regional Federal Home Loan Bank was a government actor when it discharged one of its employees. We hold that it was not, and accordingly, we affirm the district court’s grant of summary judgment to defendant.
I.
The Federal Home Loan Bank of Atlanta (the Bank) is one of twelve regional banks set up by Congress under the Federal Home Loan Bank Act to provide banking services to member institution savings-and-loans. 12 U.S.C. §§ 1421-49. Services include lending to member thrifts, serving as a depository, processing of checks, and providing economic analysis. The Bank operates as a central credit facility for its members, enhancing the liquidity of the thrift industry by allowing members to secure advances against their assets, which are primarily home mortgages.
See Fidelity Financial Corp. v. Federal Home Loan Bank,
At the time of the events giving rise to this lawsuit, the Bank was supervised and regulated by the Federal Home Loan Bank Board (the Board), an independent agency of the federal government. 12 U.S.C. § 1437, repealed by Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Title VII, § 703(a), Pub.L. No. 101-73, 103 Stat. 183, 415. The Board appointed six of the Bank’s directors and designated the Bank’s chairman and vice-chairman. 12 U.S.C. § 1427(a), (g), repealed by Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Title VII, § 702(a), Pub.L. No. 101-73,103 Stat. at 413. In addition, the Board (through its authority over the Federal Savings and Loan Insurance Corporation) had the authority to examine savings-and-loans, which it had delegated to employees of the regional Home Loan Banks. See generally Dirk S. Adams & Rodney R. Peck, The Federal Home Loan Banks and the Home Finance System, 43 Bus.Law. 833 (1988).
In June 1987, Harrell G. Andrews was fired by the Bank from his position as a field examiner in its Charlotte office. The parties offer very different explanations for the discharge. Andrews claims that he was discharged for criticizing a change in the Bank’s asset-classification policy. The Bank claims that it terminated Andrews for behavior that compromised an examination and for his failure to cooperate with Bank personnel who were charged with inquiring into that behavior. At Andrews’ request, an Ombudsmen Committee appointed by the Federal Home Loan Bank Board reviewed Andrews’ termination. The Committee upheld the action of the Bank.
After his termination, Andrews filed this lawsuit, alleging violations of the First and Fifth Amendments, along with a variety of state law claims. After removing the case to federal court, the Bank filed a motion for summary judgment, which the district court granted. The court rejected Andrews’ constitutional claims because the Bank that terminated him was not a government actor. It rejected Andrews’ state law claims because they were preempted by federal statute. Andrews now appeals.
II.
In order to establish a violation of the First Amendment, Andrews must first show that the federal government was responsible for the termination of his employment.
Hudgens v. NLRB,
Many of the indicia of the Bank’s operations are characteristic of a private institution: the Bank is privately funded, privately owned, and it pays out its profits to its shareholders in the form of quarterly dividends. The Bank provides private banking services, such as lending money, issuing letters of credit, and serving as a trustee. The Bank’s employees are not in the civil service and are not employees of the federal government. There is thus ample reason to conclude that, despite its federal charter, the Bank operates more like a private entity than as a part of the federal government.
See San Francisco Arts & Athletics, Inc. v. United States Olympic Committee,
III.
Andrews nonetheless claims that the Bank’s termination of him qualifies as state action, because the Bank was an agent or instrumentality of the federal government. Alternatively, Andrews claims that the Board was a joint participant in the decision to terminate him.
We -recognize that the many private characteristics of the Bank’s operations cannot end the inquiry. In certain circumstances, a private actor can still be bound by constitutional limitations because its “conduct is fairly attributable to the state.”
Arlosoroff v. National Collegiate Athletic Ass’n,
A.
The first category, coercion by the state, stands for the obvious proposition that when the government orders specific conduct, it must be held accountable for that conduct. The presumption in favor of respecting the private choice of individuals is dissolved by the force of state command. “When the State has commanded a particular result, it has saved to itself the power to determine that result and ... has removed that decision from the sphere of private choice.”
Peterson v. City of Greenville,
The Board’s regulation of the Bank does not fall within this first category of governmental coercion. The Board can hardly be said to have coerced the Bank into terminating Andrews. The Bank made that decision on its own, and the Board became involved only when Andrews sought review from the Board’s Ombudsmen Committee, long after the Bank had terminated Andrews. The Bank was established by federal statute, but that statute does not establish personnel policies for the Bank. Nor does the mere fact that the Federal Home Loan Act permitted the Bank to terminate Andrews “at pleasure” transform that termination into an act of the federal government.
See Flagg Bros. Inc. v. Brooks,
B.
The second category of state action involves cases in which the government has delegated responsibility to a private party for conduct that would be unconstitutional if done by the government. Government cannot evade constitutional duties by delegating the responsibility to a private contractor. In
West v. Atkins,
the state contracted with a private physician to provide medical care for its prisoners, a duty imposed on the state by the Eighth Amendment.
The Board’s acts do not fit the second category for state action. While the Constitution plainly permits the federal government to supervise savings-and-loans, it places no duty on the government to do so. What may be wise as a matter of public policy is not compelled as a matter of constitutional decree. Hence the government evaded no constitutional duty by delegating the examination of thrifts to regional Bank employees.
West,
C.
The third category is commonly denominated the “public function” theory of state action. It encompasses the “exercise by a private entity of powers traditionally exclusively reserved to the State.”
Jackson v. Metropolitan Edison Co.,
The functions performed by the Bank and its employees-banking and bank examina
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tion-are not traditionally and exclusively public functions.
See Morast v. Lance,
D.
The fourth category of state action limits the actions that a state can take in enforcing the rights of private individuals. When the state commits an unconstitutional act in the course of enforcing private rights, the private entity may be held accountable for invoking the state’s authority. For example, when the state enforces a property right at the behest of a private entity, the state’s actions may be limited by Due Process.
See Lugar v. Edmondson Oil Co.,
Under the fourth category, the Board committed no unconstitutional act in the course of enforcing the Bank’s right to terminate Andrews. The Bank acted in furtherance of its statutory right to dismiss Andrews at will, 12 U.S.C. § 1432(a), and it had no need to enlist the Board to enforce that right. The
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Ombudsmen Committee reviewed the Bank’s action at Andrews’ request, not at the request of the Bank or at the direction of the Board. The Bank acting alone, not the Board, fired Andrews-the availability of
post hoc
review did not change this fact.
Cf. Flagg Bros.,
IV.
“The directors of each Federal Home Loan Bank ... shall have power ... to select, employ, and fix the compensation of such officers* employees, attorneys, and agents ... and to dismiss at pleasure such officers, employees, attorneys, . and agents.... ” 12 U.S.C. § 1432(a) (emphasis added). Andrews claims that the district court erred in holding his state law wrongful termination claim preempted by this federal statute. Andrews argues that his state claim supports the purpose of the Federal Home Loan Bank Act to regulate the soundness of thrifts by providing protection to employees who are terminated for refusing to violate the Act or its regulations.
The Supreme Court has identified three situations in which 'federal law preempts state law: (1) when explicit statutory language preempts state law; (2) when states regulate a field that Congress intended to be completely occupied by the federal government; or (3) when state law actually conflicts with federal law.
English v. General Electric Co.
V.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
Notes
. The district court identified personnel decisions as the function at issue. It then held personnel decisions not to constitute a public function. While we would not differ with that characterization, we think that the Bank’s status as a governmental entity is what the parties contest for purposes of state action doctrine. If the Bank were held to be performing a public function for purposes of state action doctrine, then it would be difficult to conclude that personnel decisions reached during the performance of that public function were not subject to constitutional strictures.
. Examiners were civil service employees until 1985, and they were returned to the civil service in 1989 after the passage of FIRREA. Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Tit. III, § 301, Pub.L. No. 101-73, 103 Stat. at 279, codified at 12 U.S.C. § 1462a(g)(4)(B)(i). At the time of his dismissal in June of 1987, Andrews was not a civil service employee.
