National City Bank v. Turnbaugh , 463 F.3d 325 ( 2006 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NATIONAL CITY BANK OF INDIANA; 
NATIONAL CITY MORTGAGE COMPANY;
FIRST FRANKLIN FINANCIAL
CORPORATION,
Plaintiffs-Appellees,
v.
CHARLES W. TURNBAUGH, in his
official capacity as Commissioner
of Financial Regulation, Maryland
Department of Labor, Licensing and
Regulation,
Defendant-Appellant.
THE STATES OF ALASKA; ARIZONA;
ARKANSAS; COLORADO; CONNECTICUT;
 No. 05-1647
DELAWARE; FLORIDA; HAWAII; IDAHO;
ILLINOIS; IOWA; KANSAS; KENTUCKY;
LOUISIANA; MAINE; MASSACHUSETTS;
MICHIGAN; MINNESOTA; MISSISSIPPI;
MISSOURI; MONTANA; NEVADA; NEW
HAMPSHIRE; NEW JERSEY; NEW YORK;
NORTH CAROLINA; NORTH DAKOTA;
OKLAHOMA; OREGON; PENNSYLVANIA;
SOUTH CAROLINA; SOUTH DAKOTA;
TENNESSEE; TEXAS; VERMONT;
WASHINGTON; WEST VIRGINIA;
WISCONSIN; WYOMING; THE
DISTRICT OF COLUMBIA,
Amici Supporting Appellant,

2 NATIONAL CITY BANK v. TURNBAUGH
THE OFFICE OF THE 
COMPTROLLER OF THE CURRENCY, 
Amicus Supporting Appellees.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(CA-04-2719-CCB)
Argued: May 25, 2006
Decided: August 10, 2006
Before WIDENER and DUNCAN, Circuit Judges,
and Joseph R. GOODWIN, United States District Judge for the
Southern District of West Virginia, sitting by designation.
Affirmed by published opinion. Judge Goodwin wrote the opinion, in
which Judge Widener and Judge Duncan joined.
COUNSEL
ARGUED: Jonathan R. Krasnoff, Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Balti-
more, Maryland, for Appellant. Robert Allen Long, Jr., COVING-
TON & BURLING, Washington, D.C., for Appellees. Douglas
Bradford Jordan, OFFICE OF THE COMPTROLLER OF THE CUR-
RENCY, Washington, D.C., for Amicus Supporting Appellees. ON
BRIEF: J. Joseph Curran, Jr., Attorney General of Maryland, Steven
M. Sullivan, Solicitor General, Thomas L. Gounaris, Assistant Attor-
ney General, OFFICE OF THE ATTORNEY GENERAL OF
MARYLAND, Baltimore, Maryland, for Appellant. Stuart C. Stock,
Keith A. Noreika, Benjamin C. Block, COVINGTON & BURLING,
Washington, D.C., for Appellees. Roy Cooper, Attorney General of
NATIONAL CITY BANK v. TURNBAUGH 3
North Carolina, Philip A. Lehman, Assistant Attorney General, Con-
sumer Protection Division, NORTH CAROLINA DEPARTMENT
OF JUSTICE, Raleigh, North Carolina; Thomas J. Miller, Attorney
General of Iowa, William L. Brauch, Special Assistant Attorney Gen-
eral, Consumer Protection Division, IOWA ATTORNEY GENER-
AL’S OFFICE, Des Moines, Iowa, for Amici Supporting Appellant.
Julie L. Williams, Daniel P. Stipano, Horace G. Sneed, OFFICE OF
THE COMPTROLLER OF THE CURRENCY, Washington, D.C.,
for Amicus Supporting Appellees.
OPINION
GOODWIN, District Judge:
The issue before us is whether the National Banking Act ("NBA"),
12 U.S.C. §§ 21-216 (2000), and regulations of the Office of the
Comptroller of the Currency ("OCC") preempt Maryland laws requir-
ing the State’s Commissioner of Financial Regulation ("Commis-
sioner") to exercise certain powers over operating subsidiaries of a
national bank. We agree with the district court that the Maryland laws
are preempted and affirm.
I.
This dispute arose when the Commissioner, acting pursuant to
Maryland law, attempted to exercise visitorial powers and to limit
prepayment penalties on adjustable rate mortgage ("ARM") loans
originated by operating subsidiaries of a national bank.1
National City Bank of Indiana wholly owns and operates National
City Mortgage Company and First Franklin Financial Corporation as
1
Maryland law requires the operating subsidiaries to submit to the
Commissioner’s visitorial powers, Md. Code Ann., Fin. Inst. §§ 11-504to -515 (West 2006), and establishes a prepayment restriction on ARM
loans, Id., Com. Law § 12-105(b). "Visitation" includes examination of
bank records, regulation and supervision of banking activities, and
enforcement of laws. 12 C.F.R. § 7.4000(a)(2) (2006).
4 NATIONAL CITY BANK v. TURNBAUGH
operating subsidiaries. National City Mortgage and First Franklin
both previously engaged in residential lending in Maryland.2
The Maryland Mortgage Lender Law ("MMLL"), Md. Code Ann.,
Fin. Inst. §§ 11-501 to -524 (West 2006), enacted in 1989, provides
Maryland’s regulatory framework for residential lending. The MMLL
grants the Commissioner the authority to exercise visitorial powers
over mortgage lenders and to adopt rules and regulations to carry out
the provisions of the MMLL. Id. §§ 11-503 to -515. In a separate stat-
ute, Maryland law gives the Commissioner authority to restrict pre-
payment penalties on ARM loans. Id., Com. Law § 12-105(b).
In June and July 2004, two consumers filed complaints with the
Commissioner contesting prepayment penalties assessed by First
Franklin. After the Commissioner notified First Franklin of the com-
plaints, National City Bank and its operating subsidiaries filed an
action for declaratory and injunctive relief to prevent the Commis-
sioner’s enforcement. The bank claimed that the regulations promul-
gated by the OCC under the NBA exempt the bank’s wholly-owned
subsidiaries, to the same extent that it exempts the bank itself, from
state regulation of its banking activities. Because the OCC regulations
are valid exercises of the agency’s congressionally delegated author-
ity, the bank argued, they preempt the conflicting Maryland law. The
parties filed cross-motions for summary judgment. The district court
granted the plaintiffs’ summary judgment motion, denied the defen-
dant’s motion, and permanently enjoined the Commissioner from
enforcing the Maryland laws against the operating subsidiaries.
II.
We review a grant of summary judgment de novo, viewing the
facts in the light most favorable to the nonmoving party. Spriggs v.
Diamond Auto Glass, 242 F.3d 179, 183 (4th Cir. 2001). A moving
2
Neither operating subsidiary presently originates mortgage loans in
Maryland. The district court correctly ruled, however, that the case is not
moot because the Commissioner still seeks to exert visitorial authority
over First Franklin and National City Mortgage for mortgage loans they
originated previously, and the Commissioner may attempt to exercise
visitorial authority over other National City Bank operating subsidiaries.
NATIONAL CITY BANK v. TURNBAUGH 5
party is entitled to summary judgment if the evidence shows that no
genuine issue of material fact exists and the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(c). The parties
agree that this case involves only legal issues and that there are no
disputed facts.
III.
We first summarize the relevant federal statutory and regulatory
framework and then consider preemption.
A.
Congress enacted the NBA in 1864 "to facilitate . . . a ‘national
banking system.’" Marquette Nat’l Bank of Minneapolis v. First of
Omaha Serv. Corp., 439 U.S. 299, 314-15 (1978) (quoting Cong.
Globe, 38th Cong., 1st Sess., 1451 (1864)). In relevant part, the NBA
establishes nationally chartered banks and vests these banks with cer-
tain powers. 12 U.S.C. § 24.
The OCC has the "primary responsibility for surveillance of the
‘business of banking’ authorized by [the NBA]." NationsBank of
N.C., N.A. v. Variable Annuity Life Ins. Co., 513 U.S. 251, 256
(1995). To carry out this responsibility, the OCC promulgates regula-
tions and defines the "‘incidental powers’ of national banks beyond
those specifically enumerated in the statute." Wachovia Bank, N.A. v.
Burke, 414 F.3d 305, 312 (2d Cir. 2005); see also 12 U.S.C. § 93a
(authorizing the OCC "to prescribe rules and regulations to carry out
the responsibilities of the office").
Our analysis focuses on three federal statutes and the regulations
issued by the OCC to enforce them. First, Congress gives national
banks general authority to "exercise all such incidental powers as
shall be necessary to carry on the business of banking." 12 U.S.C.
§ 24. In furtherance of this statute, the OCC allows national banks to
conduct "business of banking" activities through operating subsidia-
ries. 12 C.F.R. § 5.34(e)(1).
Second, Congress specifies that national banks may engage in resi-
dential lending as regulated by the OCC. 12 U.S.C. § 371(a). Under
6 NATIONAL CITY BANK v. TURNBAUGH
this section, the OCC provides that national banks and subsidiaries
may deal in ARM loans "without regard to any State law limitations
on those activities." 12 C.F.R. § 34.21(a). The OCC also provides that
"[a] national bank offering or purchasing ARM loans may impose
fees for prepayments notwithstanding any State law limitations to the
contrary." Id. § 34.23.
Third, "No national bank shall be subject to any visitorial powers
except as authorized by federal law . . . ." 12 U.S.C. § 484(a). Pursu-
ant to this section and other sections, the OCC issued 12 C.F.R.
§ 7.4006, which states, "Unless otherwise provided by Federal law or
OCC regulation, State laws apply to national bank operating subsidia-
ries to the same extent that those laws apply to the parent national
bank."
B.
When the federal government acts within the scope of its authority,
federal law preempts inconsistent state law. M’Culloch v. Maryland,
17 U.S. 316, 436 (1819).3 To determine whether preemption exists,
courts look to congressional intent. Fid. Fed. Sav. & Loan Assoc. v.
de la Cuesta, 458 U.S. 141, 152 (1982). Preemption "is compelled
whether Congress’ command is explicitly stated in the statute’s lan-
guage or implicitly contained in its structure and purpose." Jones v.
Rath Packing Co., 430 U.S. 519, 525 (1977).
The Commissioner contends the OCC exceeded its delegated
authority by promulgating regulations that limit a state’s power to
regulate national banks’ operating subsidiaries. The Commissioner
claims that a presumption against preemption exists and therefore the
OCC’s regulations do not preempt the Maryland laws. The district
court found that a presumption against preemption does not exist, the
Maryland statutes conflict with federal law, and the regulations are
entitled to Chevron deference.4 The district court accordingly found
that federal law preempts the Maryland statutes. We agree.
3
"Federal regulations have no less pre-emptive effect than federal stat-
utes." Fid. Fed. Sav.& Loan Ass’n. v. de la Cuesta, 458 U.S. 141, 153
(1982).
4
The district court also applied a separate analysis that considered only
the reasoning and holding of de la Cuesta. The court concluded the regu-
lations were valid under either analysis.
NATIONAL CITY BANK v. TURNBAUGH 7
1.
The Commissioner claims that the extensive history of state regula-
tion of non-bank, state-chartered mortgage subsidiaries creates a pre-
sumption against preemption. Courts generally apply a presumption
against preemption in fields the states traditionally regulate. Rice v.
Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). However, "an
‘assumption’ of nonpre-emption is not triggered when [a] State regu-
lates in an area where there has been a history of significant federal
presence." United States v. Locke, 529 U.S. 89, 108 (2000) (citing
Rice, 331 U.S. at 230). The regulation of federally chartered banks is
indisputably such an area. Wachovia Bank, N.A. v. Watters, 431 F.3d
556, 560 n.3 (6th Cir. 2005); Bank of Am. v. San Francisco, 309 F.3d
551, 558 (9th Cir. 2002) ("Congress has legislated in the field of
banking from the days of M’Culloch v. Maryland, . . . creating an
extensive federal statutory and regulatory scheme."). Further, the
"grants of both enumerated and incidental powers to national banks"
are "not normally limited by, but rather ordinarily pre-empt[ ], con-
trary state law." Barnett Bank of Marion County, N.A. v. Nelson, 517
U.S. 25, 32 (1996) (emphasis added). The pertinent regulations define
the scope of the national banks’ authority to conduct business through
operating subsidiaries; undoubtedly these issues involve the "inciden-
tal powers" of national banks. A presumption against preemption,
therefore, does not exist.
2.
We now turn to whether conflict preemption exists. Our first step
in a conflict preemption analysis is to determine whether a conflict
exists between the federal and state laws. College Loan Corp. v. SLM
Corp., 396 F.3d 588, 595-96 (4th Cir. 2005) (explaining that conflict
preemption exists when a state law conflicts with federal law). The
parties agree that the Maryland banking laws conflict with the OCC
regulations. This case therefore involves conflict preemption unless
the OCC "exceeded its authority or acted arbitrarily." See de la
Cuesta, 458 U.S. at 153-54 (finding an administrator’s "judgments are
subject to judicial review only to determine whether he has exceeded
his statutory authority or acted arbitrarily").
8 NATIONAL CITY BANK v. TURNBAUGH
3.
The framework set forth in Chevron U.S.A., Inc. v. Natural
Resources Defense Council, 467 U.S. 837 (1984), determines whether
the OCC exceeded its authority or acted arbitrarily. Wells Fargo Bank
N.A. v. Boutris, 419 F.3d 949, 958 (9th Cir. 2005); Wachovia Bank
v. Burke, 414 F.3d at 315; Wachovia Bank v. Watters, 431 F.3d at
560.
Two questions control the Chevron analysis. First, "whether Con-
gress has directly spoken to the precise question at issue." Chevron,
467 U.S. at 842. If Congress’s intent is clear, "that is the end of the
matter. . . . [But] if the statute is silent or ambiguous with respect to
the specific issue, the question for the court is whether the agency’s
answer is based on a permissible construction of the statute." Id. at
842-43. If there is ambiguity, we "give great weight to any reasonable
construction" of the statute. Clarke v. Secs. Indus. Ass’n, 479 U.S.
388, 403 (1987).
i.
Congress has not spoken directly about whether the OCC has the
authority to regulate operating subsidiaries. The Commissioner claims
Congress’s omission of references to "non-bank state-chartered" enti-
ties in the NBA is evidence that regulation of operating subsidiaries
is beyond the scope of the OCC’s authority. The Ninth Circuit in
Wells Fargo succinctly explains why the Commissioner’s argument
fails:
While this silence might have been significant to the court
were it to interpret the statute de novo, it does not answer
the question asked by the first step of Chevron—namely,
whether Congress has "unambiguously expressed [its]
intent." We agree. The absence of any reference to operating
subsidiaries in the Bank Act does not unambiguously pro-
vide that national banks may not create and perform banking
functions through such entities.
Wells Fargo, 419 F.3d at 959 n.12 (quoting Wachovia Bank, N.A. v.
Burke, 319 F. Supp. 2d 275, 285 n.5 (D. Conn. 2004)). We agree with
the Ninth Circuit.
NATIONAL CITY BANK v. TURNBAUGH 9
ii.
We next ask whether the OCC’s regulations are based on a permis-
sible construction of the NBA. Chevron, 467 U.S. at 843. If the
OCC’s interpretation is reasonable, we defer to its construction of the
statute. Id. at 844-45.
The Commissioner principally contends the OCC’s regulations are
unreasonable interpretations of the NBA. As explained, the NBA is
silent on whether the OCC may regulate national banks’ operating
subsidiaries. When statutes are silent, "agencies [generally] have
authority to fill gaps." Nat’l Cable & Telecomm. Ass’n v. Gulf Power
Co., 534 U.S. 327, 339 (2002). Further, in cases of statutory silence,
we "must defer, under Chevron, to [an agency’s interpretation of its
governing statute], so long as that interpretation is permissible in light
of the statutory text and reasonable." Ohio Valley Envtl. Coal. v.
Bulen, 429 F.3d 493, 498 (4th Cir. 2005).
The NBA allows national banks to "exercise . . . all such incidental
powers as shall be necessary to carry on the business of banking." 12
U.S.C. § 24 Seventh. The Supreme Court explains the "‘business of
banking’ is not limited to the enumerated powers in § 24 Seventh and
that the Comptroller therefore has discretion to authorize activities
beyond those specifically enumerated." NationsBank of N.C., 513
U.S. at 258 n.2. However, "[t]he exercise of the Comptroller’s discre-
tion . . . must be kept within reasonable bounds. Ventures distant from
dealing in financial investment instruments—for example, operating
a general travel agency—may not exceed those bounds." Id.We find the OCC’s regulation of operating subsidiaries does not
exceed the limitations contemplated in NationsBank. "Allowing
national banks to create, control, and delegate banking functions to
operating subsidiaries provides some assistance to banks in perform-
ing their authorized activities." Wells Fargo, 419 F.3d at 960. Further,
12 C.F.R. § 5.34 limits the activities national banks can conduct
through operating subsidiaries to those activities that are authorized
by the NBA. See 12 C.F.R. § 5.34(e)(3) ("An operating subsidiary
conducts activities authorized under this section pursuant to the same
authorization, terms and conditions that apply to the conduct of such
activities by its parent national bank."). With these principles in mind,
10 NATIONAL CITY BANK v. TURNBAUGH
we find that the OCC’s interpretation of 12 U.S.C. § 24 Seventh is
reasonable and therefore is permissible.
We also find that 12 C.F.R. § 7.4006, which provides that state
laws must apply to operating subsidiaries to the same extent that state
laws apply to parent national banks, is reasonable and within the
OCC’s delegated authority. If state law applied to operating subsidia-
ries to a greater extent than it applied to their parent national banks,
it would frustrate national banks’ right to conduct the "business of
banking" through operating subsidiaries. The OCC’s reasoning
behind the regulation is compelling:
When national banks are unable to operate under uniform,
consistent, and predictable standards, their business suffers,
which negatively affects their safety and soundness. The
application of multiple, often unpredictable, different state
or local restrictions and requirements prevents them from
operating in the manner authorized under Federal law, is
costly and burdensome, interferes with their ability to plan
their business and manage their risks, and subjects them to
uncertain liabilities and potential exposure. In some cases,
this deters them from making certain products available in
certain jurisdictions.
The OCC therefore is issuing this final rule in furtherance
of its responsibility to enable national banks to operate to
the full extent of their powers under Federal law, without
interference from inconsistent state laws, consistent with the
national character of the national banking system, and in
furtherance of their safe and sound operations.
Bank Activities and Operations; Real Estate Lending and Appraisals,
69 Fed. Reg. 1904 (Jan. 13, 2004); see also Wachovia Bank v. Burke,
414 F.3d at 320-21 (quoting the same). We adopt this reasoning.
Accordingly, we find that the federal regulations at issue are rea-
sonable interpretations of the NBA and are entitled to Chevron defer-
ence.
NATIONAL CITY BANK v. TURNBAUGH 11
IV.
We join the Second, Sixth, and Ninth Circuits in finding the OCC
did not exceed its delegated authority. Wachovia Bank v. Burke, 414
F.3d at 318-21; Wachovia Bank v. Watters, 431 F.3d at 562-63; Wells
Fargo, 419 F.3d at 961-62. Accordingly, we affirm the district court’s
grant of summary judgment to the plaintiffs/appellees.
AFFIRMED