United States v. First National City Bank (379 U.S. 378)/Opinion of the Court

by William O. Douglas

United States Supreme Court

379 U.S. 378

United States  v.  First National City Bank

 Argued: Nov. 16, 1964. --- Decided: Jan 18, 1965

This case presents a collateral phase of litigation involving jeopardy assessments of some $19,000,000 made by the Commissioner of Internal Revenue against Omar, S.A., a Uruguayan corporation. The assessments charged that income had been realized within the United States on which a tax was due. On the same day respondent was served with notice of levy and notice of the federal tax lien. At the same time petitioner commenced an action in the New York District Court naming Omar, as well as respondent and others, as defendants. Personal jurisdiction over respondent was acquired; but as of the date of argument of the case here, Omar had not yet been served. That action requested, inter alia, foreclosure of the tax lien upon all of Omar's property, including sums held for the account or credit of Omar in foreign branch offices of respondent. ^[1] It also requested that, pending determination of the action, respondent be enjoined from transferring any property or rights to property held for the account of Omar; and affidavits filed with the complaint averred that Omar was removing its assets from the United States.

The District Court, on the basis of the affidavits, issued a temporary injunction enjoining respondent from transferring any property or rights to property of Omar now held by it or by any branch offices within or without the United States, indicating it would modify the order should compliance be shown to violate foreign law. 210 F.Supp. 773. The Court of Appeals reversed by a divided vote both by a panel of three, 321 F.2d 14, and en banc, 325 F.2d 1020. The case is here on a writ of certiorari. 377 U.S. 951, 84 S.Ct. 1629, 12 L.Ed.2d 496.

Title 26 U.S.C. § 7402(a) gives the District Court power to grant injunctions 'necessary or appropriate for the enforcement of the internal revenue laws.' Since it has personal jurisdiction over respondent, has it power to grant the interim relief requested? We are advised that respondent's only debt to Omar is payable at respondent's branch in Montevideo. It is said that the United States, the creditor, can assert against respondent in New York only those rights that Omar, the debtor, has against respondent in New York and that under New York law a depositor in a foreign branch has an action against the head office only where there has been a demand and wrongful refusal at the foreign branch. Sokoloff v. National City Bank, 239 N.Y. 158, 145 N.E. 917, 37 A.L.R. 712; 250 N.Y. 69, 164 N.E. 745. The point is emphasized by the argument that any obligation of respondent to Omar is due only in Montevideo-an obligation apparently dischargeable in Uruguayan currency, not in dollars. Therefore, the argument runs, there is no claim of the debtor (Omar) in New York which the creditor can reach.

We need not consider at this juncture all the refinements of that reasoning. For the narrow issue for us is whether the creditor (the United States) may by injunction pendente lite protect whatever rights the debtor (Omar) may have against respondent who is before the court on personal service. If it were clear that the debtor (Omar) were beyond reach of the District Court so far as personal service is concerned, we would have quite a different case-one on which we intimate no opinion. But under § 302(a) of the New York Civil Practice Law and Rules, 7B McKinney's Consol.Laws Ann., § 302, personal jurisdiction may be exercised over a 'non-domiciliary' who 'transacts any business within the state' as to a cause of action arising out of such transaction, in which event out-of-state personal service may be made as provided in § 313. ^[2] The Federal Rules of Civil Procedure by Rule 4(e) and Rule 4(f) allow a party not an inhabitant of the State or found therein to be served with a summons in a federal court in the manner and under the circumstances prescribed by a state statute. ^[3] See United States v. Montreal Trust Co., D.C., 35 F.R.D. 216.

To be sure, this cause of action arose, the complaint was filed, and the temporary injunction was issued before the New York statute became effective. The New York Court of Appeals has, however, indicated that where the suit is instituted after the effective date of the statute, the statute will normally apply to transactions occurring before the effective date. Simonson v. International Bank, 14 N.Y.2d 281, 290, 200 N.E.2d 427, 432, 251 N.Y.S.2d 433, 440. That court has further indicated that where, as in the instant case, the suit based on the prior transaction was pending on the effective date of the statute, 'the new act shall except where it 'would not be feasible or would work injustice' apply 'to all further proceedings' in such action * * *.' ^[4] Ibid. It seems obvious that a future attempt by the Government to serve process on Omar would be considered a 'further proceeding' in the instant litigation. Accordingly, we judge the temporary injunction, which has only a prospective application, as of now and in light of the present remedy which § 302(a) affords. ^[5] And our review of the injunction as an exercise of the equity power granted by 26 U.S.C. § 7402(a) must be in light of the public interest involved: 'Courts of equity may, and frequently do, go much farther both to give and withhold relief in furtherance of the public interest than they are accustomed to go when only private interests are involved.' Virginian R. Co. v. System Federation, 300 U.S. 515, 552, 57 S.Ct. 592, 601, 81 L.Ed. 789. And see United States v. Morgan, 307 U.S. 183, 194, 59 S.Ct. 795, 801, 83 L.Ed. 1211; Hecht Co. v. Bowles, 321 U.S. 321, 330, 64 S.Ct. 587, 592, 88 L.Ed. 754.

If personal jurisdiction over Omar is acquired, the creditor (the United States) will be able to collect from respondent what the debtor (Omar) could collect. The opportunity to make that collection should not be lost in limine merely because the debtor (Omar) has not made the agreed-upon demand on respondent at the time and place and in the manner provided in their contract.

Whether the Montevideo branch is a 'separate entity,' as the Court of Appeals thought, is not germane to the present narrow issue. It is not a separate entity in the sense that it is insulated from respondent's managerial prerogatives. Respondent has actual, practical control over its branches; it is organized under a federal statute, 12 U.S.C. § 24, which authorizes it 'To sue and be sued, complain and defend, in any court of law and equity, as fully as natural persons'-as one entity, not branch by branch. The branch bank's affairs are, therefore, as much within the reach of the in personam order entered by the District Court as are those of the home office. Once personal jurisdiction of a party is obtained, the District Court has authority to order it to 'freeze' property under its control, whether the property be within or without the United States. See New Jersey v. New York City, 283 U.S. 473, 482, 51 S.Ct. 519, 521, 75 L.Ed. 1176.

That is not to say that a federal court in this country should treat all the affairs of a branch bank the same as it would those of the home office. For overseas transactions are often caught in a web of extraterritorial activities and foreign law beyond the ken of our federal courts or their competence. We have, however, no such involvement here, for there is no showing that the mere 'freezing' of the Montevideo accounts, pending service on Omar, would violate foreign law, cf. Societe Internationale v. Rogers, 357 U.S. 197, 211, 78 S.Ct. 1087, 1095, 2 L.Ed.2d 1255, or place respondent under any risk of double liability. Cf. Western Union Telegraph Co. v. Com. of Pennsylvania, 368 U.S. 71, 82 S.Ct. 199, 7 L.Ed.2d 139. The District Court reserved power to enter any protective order of that character. 210 F.Supp. 773, 775. And if, as is argued in dissent, the litigation might in time be embarrassing to United States diplomacy, the District Court remains open to the Executive Branch, which, it must be remembered, is the moving party in the present proceeding.

The temporary injunction issued by the District Court seems to us to be eminently appropriate to prevent further dissipation of assets. See United States v. Morris & Essex R. Co., 2 Cir., 135 F.2d 711, 713-714. If such relief were beyond the authority of the District Court, foreign taxpayers facing jeopardy assessments might either transfer assets abroad or dissipate those in foreign accounts under control of American institutions before personal service on the foreign taxpayer could be made. Such a scheme was underfoot here, the affidavits aver. Unlike De Beers Consol. Mines v. United States, 325 U.S. 212, 65 S.Ct. 1130, 89 L.Ed. 1566, there is here property which would be 'the subject of the provisions of any final decree in the cause.' Id., 220, 65 S.Ct. 1134. We conclude that this temporary injunction is 'a reasonable measure to preserve the status quo' (Deckert v. Independence Shares Corp., 311 U.S. 282, 290, 61 S.Ct. 229, 234, 85 L.Ed. 189) pending service of process on Omar and an adjudication of the merits.

Reversed.

Mr. Justice HARLAN, with whom Mr. Justice GOLDBERG joins, dissenting.

Notes

1. These branches are not separate corporations but parts of respondent's single, federally chartered corporation. See 12 U.S.C. §§ 601-604; First National City Bank v. Internal Revenue Service, 2 Cir., 271 F.2d 616.
2. There is also of course the possibility that Omar might enter a general appearance as it apparently did in the Tax Court when it filed its petition of May 20, 1963, for a redetermination of the deficiencies on the basis of which the present jeopardy assessments were made.
3. Rule 4(e), effective July 1, 1963, reads in relevant part:
4. The Court of Appeals reached these conclusions on the basis of Civil Practice Law and Rules, § 10003, 7B McKinney's Consol.Laws Ann., § 10003: 'This act shall apply to all actions hereafter commenced. This act shall also apply to all further proceedings in pending actions, except to the extent that the court determines that application in a particular pending action would not be feasible or would work injustice, in which event the former procedure applies. Proceedings pursuant to law in an action taken prior to the time this act takes effect shall not be rendered ineffectual or impaired by this act.'
5. That the Government has not yet attempted to obtain personal jurisdiction over Omar is not significant in light of the fact that until now the Government's primary contention has been that the District Court's personal jurisdiction over the respondent bank was by itself an adequate basis for the issuance of the temporary injunction. As the Government said in its petition for rehearing before the Court of Appeals: 'The jurisdictional basis, then, for the injunction issued by the District Court was personal jurisdiction over the Bank. Certainly, at this stage of the proceeding, it is inconsequential whether the District Court has jurisdiction over a res or over the taxpayer.' The Government went on to say that if this contention was rejected, then it wished to argue that the tax lien had attached to Omar's deposits and that these deposits 'constitute rights to property which were within the jurisdiction of the District Court.' Finally the Government stated: 'It is only in the event that the Court concludes that the lien does not attach to such deposits that personal jurisdiction over Omar becomes relevant. In such event the Government should be afforded an opportunity to obtain personal jurisdiction over Omar and the injunction should stand pending such efforts.' Even before this Court the Government argues alternatively that 'the District Court had authority to enter the temporary injunction to preserve funds over which it had jurisdiction quasi in rem,' a contention upon which, as noted previously, we do not pass.