Damian Sinclair v. John D. Hawke

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 02-1979
___________

Damian Sinclair, individually and as *
assignee of Sinclair National Bank, *
*
Plaintiffs - Appellants, * Appeal from the United States
* District Court for the
v. * Western District of Arkansas.
*
John D. Hawke, Jr., et al., *
*
Defendants - Appellees. *
___________

Submitted: September 9, 2002

Filed: January 3, 2003
___________

Before LOKEN, FAGG, and RILEY, Circuit Judges.
___________

LOKEN, Circuit Judge.

Exercising his comprehensive authority to regulate national banks, the
Comptroller of the Currency declared Sinclair National Bank (SNB) insolvent and
appointed the Federal Deposit Insurance Corporation (FDIC) as SNB’s receiver under
the national banking laws. See 12 U.S.C. §§ 191, 1821(c)(2)(A)(ii). SNB and its
owner, Damian Sinclair, sued the Comptroller in his official capacity, the FDIC, and
certain employees of the Office of the Comptroller of the Currency (OCC) seeking
an order removing the FDIC as receiver and other equitable relief. The district court1
denied plaintiffs’ motion for a temporary restraining order, and the FDIC sold the
assets of SNB to another Arkansas bank.

Mr. Sinclair, acting individually and as assignee of SNB, then filed an amended
complaint, dropping the agency defendants and the claims for equitable relief and
asserting damage claims against the Comptroller and eight other OCC employees, in
their individual capacities, for violating the First and Fifth Amendments; two federal
civil rights laws, 42 U.S.C. §§ 1981 and 1982; and the Racketeer Influenced and
Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(c). The district court granted
defendants’ motion to dismiss, concluding that District Deputy Comptroller John
Bodnar is entitled to qualified immunity regarding his action in approving Mr.
Sinclair’s change-of-control application, and that all defendants are entitled to
absolute immunity regarding the other regulatory actions challenged in the amended
complaint. Mr. Sinclair appeals the court’s absolute immunity ruling. Concluding
that the amended complaint fails to state a claim upon which relief can be granted, we
affirm without reaching the absolute immunity issue. See Abels v. Farmers
Commodities Corp., 259 F.3d 910, 916 (8th Cir. 2001) (standard of review).

I. Background.

In 1999, Northwest National Bank was a distressed bank operating in Gravette,
Arkansas, under a Memorandum of Understanding with the OCC. Mr. Sinclair filed
a change-in-control application with the OCC, stating his intent to purchase the bank
and submitting a business plan in which the bank would purchase large pools of non-
prime consumer loans to low-income borrowers from Stevens Financial Group, Inc.,
a company formerly owned by Mr. Sinclair. The OCC approved the change of

1
The Honorable ROBERT T. DAWSON, United States District Judge for the
Western District of Arkansas.

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ownership provided the bank would maintain enhanced capital ratios. In March 2000,
Mr. Sinclair agreed to that condition, purchased the bank for $2.75 million, changed
the bank’s name to SNB, and contributed an additional $2 million to the bank’s
capital. The District Deputy Comptroller primarily responsible for oversight of SNB
immediately received a letter from the FDIC criticizing the OCC for approving the
change in ownership without considering the FDIC’s negative comments regarding
Mr. Sinclair’s business plan. Thus began a contentious two-year regulatory
relationship during which, the amended complaint alleges, OCC officials took the
following actions against SNB:

• In April 2000, OCC began “a persistent series of directives and criticisms,
each of increasing severity, none of which was based on a comprehensive
examination of the actual loan files.” A May 17 OCC letter alleged that the bulk
loans purchased by SNB violated the legal lending limit.

• On June 28, 2000, the OCC issued a Safety and Soundness Notice of
Deficiency criticizing SNB’s management and monitoring of its non-prime loans and
containing “numerous contrived and specious allegations.” The statute authorizes the
OCC to commence cease-and-desist proceedings if “in the opinion of” the agency, a
national bank “is engaging or has engaged . . . in an unsafe or unsound practice.” 18
U.S.C. § 1818(b)(1). The Comptroller’s regulations authorize the OCC to issue a
Notice of Deficiency to request a compliance plan. See 12 C.F.R. § 30.3(b).2

• In September 2000, OCC officials demanded that SNB limit non-prime
minority and low-income loans to one-hundred percent of the bank’s capital. OCC

2
Congress did not define unsafe and unsound banking practices in the statute.
“[T]he Comptroller suggests that these terms encompass . . . conduct deemed contrary
to accepted standards of banking operations which might result in abnormal risk or
loss to a banking institution or shareholder.” First Nat’l Bank of Eden v. Dept. of the
Treasury, 568 F.2d 610, 611 n.2 (8th Cir. 1978).

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threatened to issue a safety and soundness order if SNB did not comply. Because this
“patently punitive demand” would leave SNB unable to implement its business plan,
SNB sued the OCC in the United States Court of Federal Claims for breach of an
alleged contract defining the capital requirements OCC would impose. SNB also
sued various OCC officials in the District of Columbia District Court, asserting the
constitutional violations alleged in this lawsuit and seeking declaratory and injunctive
relief from the threatened regulatory action.3

• The OCC conducted two lengthy on-site examinations of SNB in late 2000
and early 2001 that “totally paralyzed SNB’s activities by virtue of the [examiners’]
constant and deliberate interference.” The National Bank Act authorizes the
Comptroller to “appoint examiners who shall examine every national bank as often
as the Comptroller . . . shall deem necessary.” 12 U.S.C. § 481.

• In December 2000, the OCC concluded that SNB’s proposed compliance
plan was inadequate and issued a Notice of Intent to Issue a Safety and Soundness
Order, a regulatory action authorized by 12 C.F.R. § 30.5(a). In response, SNB
submitted another compliance plan. In March 2001, the OCC criticized that plan and
imposed “restrictions on non-prime lending that made it impossible for SNB to carry
out the business plan that the OCC had expressly approved just one year earlier.”

• In April 2001, the OCC issued a Cease and Desist Consent Order. When
SNB refused to consent, the agency issued a Notice of Charges on June 7, 2001, as

3
On February 27, 2001, the District of Columbia District Court denied SNB’s
emergency motion to stay regulatory action, concluding that the bank was unlikely
to prevail in the litigation. SNB dismissed this lawsuit one month later, allegedly
because Mr. Bodnar told Mr. Sinclair that the OCC would not approve SNB’s
compliance plan with the action pending. The Court of Claims action was not
dismissed. See Sinclair v. United States, 49 Fed. Cl. 274 (2001) (denying the OCC’s
motion to dismiss). The record on appeal does not disclose the status of that action.

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authorized by 12 U.S.C. § 1818(b)(1). SNB answered the Charges, and an
administrative law judge set a discovery schedule.

• In early August 2001, the OCC reclassified SNB’s loan portfolio, declared
SNB “critically undercapitalized,” and issued a Prompt Corrective Action Directive
requiring SNB to submit a capital restoration plan and take other corrective actions,
a directive authorized by statute, see 12 U.S.C. § 1831o(e)(2) & (i), and by the
Comptroller’s regulations, which provide for a prompt administrative appeal, see 12
C.F.R. § 6.21(a)(2). SNB filed a capital restoration plan and an administrative appeal.
In addition, the Chapter 11 trustee for Stevens Financial Group submitted a change-
of-control application to the OCC, seeking to purchase SNB from Mr. Sinclair for $2
million. When the OCC denied SNB’s request for a hearing and more time to
respond, SNB and Mr. Sinclair filed their initial Petition for Review of Agency
Action and Complaint in the district court. After a telephonic hearing the next day,
the district court denied plaintiffs’ motion for a temporary restraining order.

• In early September 2001, the OCC declared SNB insolvent, appointed the
FDIC as SNB’s statutory receiver, and terminated the pending administrative
proceeding as moot. See 12 U.S.C. §§ 191, 1821(c)(2)(A)(ii). The district court
declined to enjoin the receivership, the FDIC sold SNB’s assets to another bank, and
Mr. Sinclair alleges he lost the ability to recover his investment in SNB.

After setting forth the above-summarized dispute in great detail, the amended
complaint asserts the following compensatory and punitive damages claims on behalf
of Mr. Sinclair personally and as SNB’s assignee:

1. Fifth Amendment equal protection and procedural and substantive due
process claims under Bivens v. Six Unknown Named Agents of the Fed. Bureau of
Narcotics, 403 U.S. 388 (1971), alleging that the OCC officials took the above

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regulatory actions for retaliatory and vindictive purposes and to discriminate against
minority borrowers.

2. First Amendment Bivens claims alleging that, beginning in December 2000,
all the OCC regulatory actions were taken in retaliation for SNB’s exercise of its First
Amendment right to file the two lawsuits SNB filed that fall.

3. Claims of race discrimination under 42 U.S.C. §§ 1981 and 1982. In
support of these claims, the amended complaint alleges that various OCC officials
made statements over the course of the two-year dispute evidencing their hostility
toward minority borrowers, statements of the kind we have called “stray remarks” in
the more familiar context of employment discrimination disputes.

4. RICO claims alleging that defendants “conspired to fraudulently approve
the charter for SNB and then institute a program of regulatory action to force SNB to
abandon its non-prime lending programs” as part of a pattern of racketeering activity
“designed to deprive minorities from having ownership of significant national banks
and to prevent minority and low-income borrowers from having access to credit.”

By these claims, Mr. Sinclair seeks to have a jury decide whether defendants’
facially lawful regulatory actions were the product of an unlawful motive. To our
knowledge, such judicial review of the actions of federal bank regulators would be
unprecedented. The issue, broadly stated, is whether Congress has authorized wide-
ranging judicial review of regulators’ motives in personal damage actions that might
have a chilling effect on their willingness to aggressively attack unsafe and unsound
banking practices.

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 II. The Constitutional and Civil Rights Act Claims.

A. Mr. Sinclair’s Individual Claims. The amended complaint alleges that Mr.
Sinclair was sole shareholder and chairman of the board of SNB and “was damaged
in his business or property” by defendants’ alleged unlawful regulatory conduct. The
pleading is defective for failing to allege Mr. Sinclair’s constitutional and prudential
standing to assert these claims. His only financial injury was to the value of his
investment in SNB resulting from adverse actions taken against SNB. Thus, Mr.
Sinclair “falls squarely within the prudential standing rule that normally bars litigants
from asserting the rights or legal interests of others in order to obtain relief from
injury to themselves.” Warth v. Seldin, 422 U.S. 490, 509 (1975).

In Potthoff v. Morin, 245 F.3d 710, 716 (8th Cir. 2001), we dismissed a sole
shareholder’s First Amendment claim for lack of standing, applying the longstanding
principle that “[a]ctions to enforce corporate rights or redress injuries to the
corporation cannot be maintained by a stockholder in his own name . . . even though
the injury to the corporation may incidentally result in the depreciation or destruction
of the value of the stock” (quotation omitted). Accord Gregory v. Mitchell, 634 F.2d
199, 202 (5th Cir. 1981) (dismissing bank shareholders’ equal protection and due
process claims against the FDIC and state regulators); Des Vergnes v. Seekonk Water
Dist., 601 F.2d 9, 16 (1st Cir. 1979) (dismissing developer’s § 1981 claim against
local regulator). Here, too, Mr. Sinclair’s indirect monetary loss simply does not give
him constitutional or statutory standing to sue the OCC defendants for their
regulatory actions against SNB.

B. SNB’s Bivens Claims. In Bivens, the Supreme Court held that private
citizens have a cause of action for damages against federal agents who violate their
Fourth Amendment rights. The Court has since declined to extend this nonstatutory
damages remedy to contexts in which it may be inferred that Congress has spoken to
the contrary. For example, in Bush v. Lucas, 462 U.S. 367, 368 (1983), the Court

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held that the elaborate and comprehensive statutory remedies available under the civil
service system precluded a Bivens damage action by a federal employee who was
allegedly disciplined for exercising his First Amendment rights. In Schweiker v.
Chilicky, 487 U.S. 412, 414 (1988), the Court held that Social Security claimants may
not sue government officials under Bivens for alleged due process violations in
denying or delaying benefits. And in FDIC v. Meyer, 510 U.S. 471, 473 (1994), and
Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 63 (2001), the Court refused to extend
Bivens to claims against federal agencies and private government contractors, as
opposed to individual federal officials. The issue in this case is whether to extend
Bivens to Mr. Sinclair’s claims for damages against OCC officials for their adverse
regulatory actions against SNB.4

In Chilicky, 487 U.S. at 423, the Supreme Court stated that a “special factor”
precluding a Bivens action is the existence of a statutorily created remedy, even if that
remedy does not provide complete relief:

When the design of a Government program suggests that Congress has
provided what it considers adequate remedial mechanisms for
constitutional violations that may occur in the course of its
administration, we have not created additional Bivens remedies.

We have described this limitation as creating -

a sort of presumption against judicial recognition of direct actions for
violations of the Constitution by federal officials. . . . If Congress has
not explicitly created such a right of action, and if it has created other
remedies to vindicate (though less completely) the particular rights

4
SNB assigned its claims to Mr. Sinclair after the FDIC was appointed SNB’s
receiver. Defendants argue that the assigned claims must be dismissed because only
the FDIC as receiver has standing to assert them on behalf of SNB. See 12 U.S.C.
§§ 91, 1821(d)(2)(A)(i). We need not consider this issue.
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 being asserted . . . [then only] if Congress’s omission to recognize a
constitutional tort claim was “inadvertent” will the courts be free to
allow such a claim.

McIntosh v. Turner, 861 F.2d 524, 526 (8th Cir. 1988). When Congress has created
a comprehensive regulatory regime, the existence of a right to judicial review under
the Administrative Procedure Act is sufficient to preclude a Bivens action. See Miller
v. U.S. Dep’t of Agric. Farm Servs. Agency, 143 F.3d 1413, 1416 (11th Cir. 1998);
Maxey v. Kadrovach, 890 F.2d 73, 75-76 (8th Cir. 1989). “[P]arties may not avoid
administrative review simply by fashioning their attack on an [agency] decision as a
constitutional tort claim against individual [agency] officers.” Zephyr Aviation,
L.L.C. v. Dailey, 247 F.3d 565, 572 (5th Cir. 2001).

Congress has been establishing and extensively regulating national banks for
over two hundred years. See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 401-
02 (1819). Since the nineteenth century, the designated federal regulator (now, the
Comptroller of the Currency) has had broad powers to conduct bank examinations
and to declare national banks insolvent. See 12 U.S.C. §§ 161, 191, and their
predecessor statutes. Today, the OCC’s extensive oversight powers include
approving applications for new national bank charters, for the grant of additional
corporate powers, and for changes in the ownership of existing banks; issuing cease
and desist orders and prompt corrective action notices to curb unsafe and unsound
banking practices; assessing civil money penalties; and appointing conservators and
receivers to take over distressed and insolvent banks. See 18 U.S.C. §§ 21, 27, 30,
36, 191, 203, 1818, 1831o; First Nat’l Bank of LaMarque v. Smith, 610 F.2d 1258,
1264-65 (5th Cir. 1980). Through periodic examinations and intense regulation of
unsound practices, the OCC actively engages with bank management to protect the
interest of depositors and the general public in the solvency and soundness of national
banks. As Judge Posner observed in Central Nat’l Bank of Mattoon v. U.S. Dept. of
Treasury, 912 F.2d 897, 905 (7th Cir. 1990), “Those banks are [the Comptroller’s]
wards, and his only wards; if they fail in droves, he will be blamed.” The FDIC
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exercises extensive complementary powers, such as insuring national bank deposits
and serving as the statutory receiver for insolvent national banks.

In 1966, Congress enacted the Financial Institutions Supervisory Act, Pub. L.
89-695, 80 Stat. 1028 (1966), granting the Comptroller and other federal bank
regulators broad powers to issue cease and desist orders and orders suspending and
removing unfit bank officers -

in order to prevent violations of law or regulation and unsafe and
unsound practices which otherwise might adversely affect the Nation’s
financial institutions, with resulting harmful consequences to the growth
and development of the Nation’s economy.

S. Rep. No. 1482 (1966), reprinted in 1966-3 U.S.C.C.A.N. 3532, 3533. Exercise of
these new remedial powers was subject to carefully circumscribed APA review. See
12 U.S.C. § 1818(h) (judicial review of cease and desist and suspension and removal
orders is limited to APA review and “shall be exclusively as provided in this
subsection (h)”); 12 U.S.C. § 1818(g)(3) (barring pre-enforcement review of some
suspension orders; upheld against a procedural due process challenge in FDIC v.
Mallen, 486 U.S. 230, 245 (1988)); 12 U.S.C. § 1818(i)(1) (courts have no
jurisdiction to enjoin enforcement actions; applied in Bd. of Governors of the Fed.
Reserve Sys. v. MCorp Fin., Inc., 502 U.S. 32 (1991)); 12 U.S.C. §§ 1818(c)(2) and
1818(e)(3) (limited judicial authority to stay or enjoin temporary cease-and-desist
orders and some suspension and prohibition orders).

When these new regulatory powers were enacted in 1966, the Comptroller
already possessed the most drastic regulatory power -- the authority to declare a
national bank insolvent and appoint a statutory receiver or conservator. See 12
U.S.C. § 191, a section of the often-amended National Bank Act. Section 191 permits
the Comptroller to appoint the FDIC receiver “without prior notice or hearings.”
While § 203(b) provides for judicial review of a Comptroller order appointing the

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FDIC as conservator, the National Bank Act is silent as to whether an order
appointing the FDIC as receiver is subject to judicial review. Because of the highly
discretionary nature of the decision, and the need for prompt action to protect
depositors when a bank becomes insolvent, federal courts have divided on this issue.
See James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1092-93 (D.C. Cir. 1996);
American Bank, N.A. v. Clarke, 933 F.2d 899, 903-04 (10th Cir. 1991); In re Matter
of Liquidation of Amer. City Bank & Trust Co., 402 F. Supp. 1229, 1231 (E.D. Wis.
1975) (collecting cases). But many courts have dismissed damage actions against the
OCC for wrongfully appointing the FDIC as receiver on the ground that this is a
discretionary act exempt under the Federal Tort Claims Act. See FDIC v. Irwin, 916
F.2d 1051, 1053-54 (5th Cir. 1990); Golden Pac. Bancorp v. Clarke, 837 F.2d 509,
512 (D.C. Cir. 1988); Huntington Towers, Ltd. v. Franklin Nat’l Bank, 559 F.2d 863,
868-70 (2d Cir. 1977).

In 1989, faced with a nationwide crisis in the savings and loan industry,
Congress enacted the Financial Institutions Reform, Recovery, and Enforcement Act
(FIRREA), Pub. L. No. 101-73, 103 Stat. 183 (1989). Convinced that inadequate
enforcement powers and regulatory laxity were contributing factors to the failure of
many thrift institutions, Congress granted expanded and strengthened enforcement
powers to federal bank regulators, including the OCC. See H.R. Rep. No. 101-54(I),
at 464-66 (1989), reprinted in 1989-2 U.S.C.C.A.N. 86, 260-62; H.R. Conf. Rep. No.
101-222, at 393, 439-42 (1989), reprinted in 1989-2 U.S.C.C.A.N. 432, 478-81. Of
particular relevance to the OCC actions of which SNB complains, FIRREA imposed
more stringent capital requirements on commercial banks, see 12 U.S.C. § 1464;
expanded the grounds on which the Comptroller may place a national bank in
conservatorship or receivership, see 12 U.S.C. §§ 203(a), 1813(x), 1821(c)(5); and
prohibited judicial actions “to restrain or affect the exercise of powers or functions
of the [FDIC] as a conservator or a receiver,” 12 U.S.C. § 1821(j). See Hindes v.
FDIC, 137 F.3d 148, 160-61 (3d Cir. 1998).

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 We conclude that this comprehensive statutory regime precludes the Bivens
damage claims asserted by SNB. All the adverse regulatory actions at issue fell
within the OCC’s express statutory powers to regulate national banks, to take action
against unsafe and unsound banking practices, and to appoint a receiver for insolvent
banks. The OCC actions up to the declaration of SNB’s insolvency were subject to
administrative and judicial review processes that SNB invoked. To the extent these
APA remedies are limited, the long history of congressional regulation of national
banks confirms that the limitations are not inadvertent. Rather, Congress has
repeatedly adjusted, and at times overhauled, these statutory remedies in a continuing
effort to resolve -

a difficult and delicate problem of reconciling conflicting interests -- on
one hand, the interests of depositors and savers who have their money
in these insured institutions, the interests of well-run banks and savings
and loan associations who contribute substantial premiums to the
reserve funds of the insuring agencies, and the interests of the
Government which underwrites the insuring agencies -- in preventing
irresponsible or even criminal individuals from looting or otherwise
wrecking insured banks and savings and loan associations through
improper activities; on the other hand, the interests of insured banks and
savings and loan associations and their officials in receiving fair
treatment from the Government, and in receiving a reasonable degree of
protection from Government actions which might at times, for one
reason or another, degenerate into arbitrary, capricious, and overbearing
tactics.

S. Rep. No. 1482, 1966-3 U.S.C.C.A.N. at 3534-35. In this complex regulatory
environment, it is for Congress to decide whether the public interest in a sound
national banking system would be furthered by a cause of action requiring bank
regulators to pay damages personally unless they can convince a jury that their
conduct in aggressively regulating a national bank was not the product of an
unconstitutional motive. Because Congress has not created that cause of action, we
decline to extend Bivens so as to create it by implication, just as many circuits have
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declined to permit Bivens damage actions against agents of the Internal Revenue
Service, who administer another comprehensive federal regulatory regime in which
relationships between the regulator and the regulated are frequently hostile and
adversarial. See Vennes v. An Unknown Number of Unidentified Agents, 26 F.3d
1448, 1453 (8th Cir. 1994); Schreiber v. Mastrogiovanni, 214 F.3d 148, 150-55 (3d
Cir. 2000), and cases cited.

SNB’s § 1981 and § 1982 Claims. These civil rights statutes grant causes of
action to persons who, on account of race, are denied the right to make and perform
contracts (§ 1981) or to buy, hold, and sell property (§ 1982). See, e.g., McDonald
v. Santa Fe Trail Transp. Co., 427 U.S. 273, 295-96 (1976); Sullivan v. Little Hunting
Park, Inc., 396 U.S. 229, 236 (1969). The amended complaint alleges that
defendants, on account of race, took regulatory actions “to deny creditworthy, non-
white and minority borrowers and potential borrowers of loans purchased or financed
by Plaintiff Sinclair,” thereby depriving those persons of their “equal right to make
and enter into contracts with qualified buyers to buy, own and sell real property on
account of Plaintiffs’ association with persons who are non-white.”

SNB did not lend directly to non-white borrowers. Rather, SNB purchased
large pools of non-prime loans from a company owned or formerly owned by Mr.
Sinclair. The FDIC criticized SNB’s high-risk business plan, the OCC demanded
increased equity capital to protect the bank’s insured depositors, and ultimately the
OCC placed SNB in receivership as insolvent. In response to defendants’ motion to
dismiss in the district court, plaintiffs cited no case imposing § 1981 or § 1982
liability on federal regulators for regulatory actions taken within their statutory
authority. Here, it is not enough for SNB to allege and prove that the pools of non-
prime loans included a disproportionate number of loans to non-white borrowers.
“[O]fficial action will not be held unconstitutional solely because it results in a
racially disproportionate impact.” Village of Arlington Heights v. Metro. Hous. Dev.
Corp., 429 U.S. 252, 264-65 (1977). In these circumstances, we doubt that SNB has

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stated a claim under § 1981 or § 1982, but in any event it is clear that defendants are
entitled to qualified immunity from these damage claims. See Anderson v. Creighton,
483 U.S. 635, 640 (1987).

III. The RICO Claims.

“The major purpose behind RICO is to curb the infiltration of legitimate
business organizations by racketeers.” Atlas Pile Driving Co. v. DiCon Fin. Co., 886
F.2d 986, 990 (8th Cir. 1989). To establish a RICO violation, a plaintiff must allege
and prove “(1) the existence of an enterprise; (2) defendant’s association with the
enterprise; (3) defendant’s participation in predicate acts of racketeering; and (4)
defendant’s actions constitute a pattern of racketeering activity.” United Healthcare
Corp. v. Amer. Trade Ins. Co., 88 F.3d 563, 570 (8th Cir. 1996). In his lengthy
response to defendants’ motion to dismiss in the district court, Mr. Sinclair asserted
that the nine defendants, all employees of the OCC, functioned as an enterprise and
that their above-described conduct in regulating SNB constituted a pattern of
racketeering activity intended to “persecute national banks that seek to make minority
lending a primary focus of their activities and force these institutions out of
business.” Mr. Sinclair has cited no authority for the proposition that federal
employees who take regulatory action consistent with their statutory powers engage
in a “pattern of racketeering activity” if those actions are adverse to a particular
industry or business activity. In our view, the proposition is ludicrous on its face.
“Bankers do not become racketeers by acting like bankers.” Terry A. Lambert
Plumbing, Inc. v. Western Sec. Bank, 934 F.2d 976, 981 (8th Cir. 1991). Likewise,
bank regulators do not become racketeers by acting like aggressive regulators.

IV. Conclusion.

For the foregoing reasons, we conclude that the amended complaint fails to
state a claim upon which relief can be granted. Therefore, we need not consider

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whether defendants are entitled to absolute immunity from any or all of the claims
asserted by Mr. Sinclair and SNB. See generally Butz v. Economou, 438 U.S. 478
(1978); compare Howard v. Suskie, 26 F.3d 84 (8th Cir. 1994), with Kwoun v.
Southeast Mo. Prof. Standards Review Org., 811 F.2d 401, 405-06 (8th Cir. 1987).
The judgment of the district court is affirmed. Appellant’s Motion to Strike is denied
as moot.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

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