AINSWORTH, Circuit Judge:
Petitioners Kaneb Services, Inc. (Kaneb), Southwestern Group Financial, Inc. (SGF) and United Savings Association of Texas (United Savings) filed petitions for review in this court pursuant to section 408(k) of the National Housing Act, 12 U.S.C. § 1730a(k),
This case concerns acquisition of two smaller corporations by Kaneb, a diversified company specializing in financial services and energy-related enterprises. The two corporations, SGF and World Savings Association (World), were involved exclusively in the savings and loan business. The SGF acquisition occurred first, the transaction being initiated through a proposal by Kaneb for a stock-for-stock merger. SGF, a savings and loan holding company, owned the stock of United Savings, an FSLIC-insured institution. Thus, before Kaneb could acquire control of SGF, it was required pursuant to 12 U.S.C. § 1730a(e)(1)(B) to obtain written approval from the FSLIC.
In February 1979, the FSLIC issued a resolution approving the SGF transaction subject to several conditions which Kaneb must adhere to upon completion of the acquisition. One of these conditions was a dividend restriction limiting the amount of dividends United Savings can pay in any fiscal year to 50% of its net income.
Kaneb filed with the FSLIC its application for acquisition of World in June 1979. Kaneb sought to acquire control of World, another federally insured savings and loan association, and merge it into United Savings.
It was not until April 1980 that the FSLIC acted upon petitioners' request to remove the dividend restriction contained in the original resolution approving the SGF acquisition. The FSLIC issued its third and final resolution, modifying the original dividend restriction and allowing petitioners more flexibility. In order to make the application of this new restriction consistent, the FSLIC ruled the new resolution would also modify the dividend restriction contained in the second resolution conditionally approving the World acquisition. Though this modified dividend restriction was less restrictive than the restrictions in the two previous resolutions, payments of dividends were still ultimately limited to 50% of United Savings' net income in any fiscal year.
Petitioners filed petitions with this court seeking removal of the dividend restriction, claiming the FSLIC exceeded its statutory authority in conditionally approving the acquisitions of two of its insured saving and loan companies upon acceptance by petitioners of a limitation on payment of dividends.
The threshold issue is whether petitioners are estopped from challenging the conditions imposed by the FSLIC once they completed the acquisitions.
It is recognized that under the doctrine of equitable estoppel a party with full knowledge of the facts, which accepts the benefits of a transaction, contract, statute, regulation, or order may not subsequently take an inconsistent position to avoid the corresponding obligations or effects. E. g., Exchange Trust Drainage Co. v. Drainage Dist., 278 U.S. 421, 49 S.Ct. 181, 73 L.Ed. 436 (1929); Wall v. Parrot Silver & Copper Co., 244 U.S. 407, 37 S.Ct. 609, 61 L.Ed. 1229 (1917); Winslow v. Baltimore & O. R. Co., 208 U.S. 59, 28 S.Ct. 190, 52 L.Ed. 388 (1908); American Guaranty Corp. v. United States, 401 F.2d 1004 (Ct.Cl.1968). The Supreme Court extended this principle in Federal Power Commission v. Colorado Interstate Gas Co., 348 U.S. 492, 75 S.Ct. 467, 99 L.Ed. 583 (1955) to include estoppel based upon acceptance of the benefits of an administrative order or ruling.
In Colorado Gas, the Supreme Court considered a case closely analogous to the present matter. There, a natural gas company challenged an order of the Federal Power Commission imposed on it as a condition of a merger by the company. The Commission had only conditionally approved the merger. Like petitioners in the present case, the gas company sought no review of the conditions but rather completed the merger and accepted the benefits of the transaction. The Supreme Court decided against the gas company, holding that "[the company] cannot now be allowed to attack an officially approved condition of the merger while retaining at the same time all of its benefits." 348 U.S. at 502, 75 S.Ct. at 473.
The estoppel doctrine applicable in Colorado Gas is also applicable here. As in
B. Statutory Authority
Notwithstanding that petitioners are estopped from asserting their claim, such an attack on the authority of the FSLIC to impose the present dividend restriction is nevertheless without merit. Congress has delegated broad regulatory authority to the FSLIC over acquisitions of insured institutions by savings and loan holding companies under the National Housing Act and its amendments. This authority includes the discretionary power to impose a dividend restriction.
It is clear that the intent of Congress was to give the FSLIC authority to impose conditions upon approval of an acquisition by a savings and loan holding company. Otherwise, it would not have been necessary to give authority to the FSLIC to initiate cease and desist proceedings for violation of "any condition in writing imposed by the [FSLIC] in connection with the granting of any application." 12 U.S.C. § 1730(e)(1). Furthermore, the FSLIC's imposition of the dividend condition corresponds directly with its statutory duty under 12 U.S.C. § 1730a(e)(1) and (2) to consider the financial resources and future prospects of the institutions involved before approving petitioners' application.
Accordingly, petitioners' requests for review and modification of FSLIC's orders are DENIED.
The argument of petitioners runs contrary to the basis of the estoppel principle. The doctrine of estoppel is based on fair dealing and good conscience and prohibits the assertion of a position that would be contrary to equity for a party to allege. Cook v. Ball, 144 F.2d 423, 439 (7th Cir. 1945), cert. denied, 323 U.S. 761, 65 S.Ct. 93, 89 L.Ed. 609 (1944); Robinson v. Commissioner of Internal Revenue, 100 F.2d 847, 849 (6th Cir. 1939), cert. denied, 308 U.S. 567, 60 S.Ct. 81, 84 L.Ed. 476 (1939); Harvey Radio Laboratories, Inc. v. United States, 115 F.Supp. 444, 449 (Ct.Cl.1953), cert. denied, 346 U.S. 937, 74 S.Ct. 377, 98 L.Ed. 425 (1954). The FSLIC issued the new dividend restriction only in a response to a request by petitioners for review of the initial restriction imposed in the SGF acquisition. Additionally, the FSLIC modified the restrictions to make them less restrictive and give petitioners more flexibility. See note 7 supra. It would therefore be adverse to the principles of fair play which is the basis of the estoppel doctrine, to rule that estoppel does not apply to preclude an attack on the final dividend restriction which gives petitioners more flexibility than the earlier restrictions and was issued only in response to a request for review of the earlier restrictions by petitioners.
It has long been recognized that construction of a statute by an agency charged with its administration is entitled to great deference. Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 100 S.Ct. 790, 63 L.Ed.2d 22 (1980); Udall v. Tallman, 380 U.S. 1, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965). Accordingly, we agree with the FSLIC's interpretation that the veto provision in section 1730a(g)(6) which places a ceiling on the allowable debt structure does not exclude the authority to impose dividends restrictions as a method of insuring the positive overall impact of the acquisitions on the financial resources and future prospects of the institutions under section 1730a(e)(1) and (2).