49 F3d 128 Variable Annuity Life Insurance Co v. L Clarke

49 F.3d 128

Robert L. CLARKE, Comptroller of the Currency, et al.,

No. 92-2010.

United States Court of Appeals,
Fifth Circuit.

March 21, 1995.

David Overlock Stewart, Raymond C. Ortman, Jr., Ropes & Gray, Washington, DC, for appellant.

Ellen K. Dollase, Kansas City, MO, pro hac vice, amicus curiae, in support of appellant.

Jacob M. Lewis, Mark B. Stern, U.S. Dept. of Justice, Civ. Div., Washington, DC, for Clarke, Office of Comptroller and U.S.

Steven S. Rosenthal, Robert M. Kurucza, Morrison & Foerster, Washington, DC, for NCNB Bank and NCNB Sec.

Jonathan Sallet, Ann M. Kappler, Jenner & Block, Washington, DC, for amicus curiae.

Michael F. Crotty, American Bankers Ass'n, Washington, DC, for amicus curiae AMA.

Donn C. Meindertsma, Eric L. Hirschhorn, David W. Roderer, Winston & Strawn, Washington, DC, for amicus curiae American Bankers Ass'n and American Business Ass'n et al.

Theodore Edelman, John L. Warden, Sullivan & Cromwell, New York City, for amicus curiae NY Clearing House Ass'n.

Appeal from the United States District Court for the Southern District of Texas; Kenneth M. Hoyt, Judge.


Before GOLDBERG,* JOLLY and WIENER, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

On August 26, 1993, in the above-captioned case,1 we held that the section of the National Bank Act permitting national banks in towns with under 5,000 inhabitants to act as insurance agents, impliedly prohibited national banks in towns with populations over 5,000 inhabitants from selling insurance. We further held that "annuities" were "insurance" within the meaning of this provision. Accordingly, we reversed the decision of the district court affirming the Comptroller of the Currency's decision approving the proposed annuity sale by a national bank located in a town with a population greater than 5,000. Certiorari was granted and the Supreme Court2 reversed our decision. The Court held that the Comptroller's opinion and order that annuities were properly classified as investments, not insurance, and that the sale of annuities was an incidental power necessary to carry on the business of banking was a reasonable construction of the National Bank Act and thus entitled to deference. By so holding, the Court found it unnecessary to decide--as we had decided--whether a national bank located in a town with more than 5,000 residents was prohibited from selling insurance. In accordance with the decision of the Supreme Court, we VACATE our mandate and REMAND to the district court for entry of judgment in favor of the Comptroller of the Currency and NationsBank of North Carolina.


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Due to his death on February 11, 1995, Judge Goldberg did not participate in this decision. The case is being decided by a quorum. 28 U.S.C. Sec. 46(d)


998 F.2d 1295 (5th Cir.1993)


NationsBank v. Variable Annuity Life Ins. Co., --- U.S. ----, 115 S.Ct. 810, 130 L.Ed.2d 740 (1995)