                                                    United States Court of Appeals
                                                             Fifth Circuit
                                                          F I L E D
                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit               March 8, 2004

                                                      Charles R. Fulbruge III
                                                              Clerk
                           No. 02-41766



      PEOPLES NATIONAL BANK, A National Banking Association,

                                              Plaintiff-Appellant


                              VERSUS


 OFFICE OF THE COMPTROLLER OF THE CURRENCY OF THE UNITED STATES,
      and JOHN D. HAWKE, JR., COMPTROLLER OF THE CURRENCY,

                                            Defendants-Appellees.




           Appeal from the United States District Court
                 For the Eastern District of Texas



Before EMILIO M. GARZA, DENNIS, Circuit Judges, and DUPLANTIER,*
District Judge.

DENNIS, Circuit Judge:

      Peoples National Bank appeals from an order of the district

court granting defendants’ motion to dismiss for lack of subject

matter jurisdiction.   We affirm.




  *
     Senior District Judge of the Eastern District of Louisiana,
sitting by designation.

                                -1-
                              I.    BACKGROUND

       Peoples National Bank (“PNB”) is a nationally-chartered bank

located in Paris, Texas.           It is subject to supervision by the

Office of the Comptroller of the Currency (“OCC”), a bureau of the

Department of the Treasury.

       On February 24, 2001, PNB began making small, short-term

consumer loans commonly referred to as “payday loans.” PNB entered

into   Marketing   and   Servicing    Agreements    with   subsidiaries   of

Advance America, Cash Advance Centers, Inc., under which Advance

America agreed to market and service the payday loans as PNB’s

agent.   In April 2001, the OCC began a regularly-scheduled exam of

PNB.    The OCC ultimately notified PNB that its examination rating

would be unsatisfactory due to PNB’s practice of engaging in payday

loan transactions.       The OCC also advised PNB that it intended to

initiate an enforcement action against PNB, primarily because of

PNB’s practice of making payday loans.

       PNB then informed the OCC Ombudsman that the bank intended to

appeal the examination rating by utilizing the procedures set forth

in Banking Bulletin 96-18 (“BB 96-18").          The Ombudsman advised PNB

that newly-issued Banking Bulletin 2002-9 (“BB 2002-9") would apply

rather than BB 96-18.       Like BB 96-18, BB 2002-9 provides that a

national bank may seek review of “examination ratings” but that

“[a] national bank may not appeal to the ombudsman or to its

immediate OCC supervisory office ... [a]ny formal enforcement-



                                      -2-
related actions or decisions.”                But BB 2002-9 added Footnote 2

which       provides   that     “a   formal    enforcement-related     action    or

decision includes the underlying facts that form the basis of a

recommended or pending formal enforcement action ... and OCC

determinations         regarding     compliance    with   an     existing   formal

enforcement action.”            Thus, under BB 2002-9, PNB can appeal its

examination rating to the Ombudsman, but the Ombudsman’s review

will not encompass a review of the facts that form the basis of a

recommended or pending enforcement action or OCC determinations

regarding compliance with an existing formal enforcement action.

          An exchange of letters ensued between PNB and the Ombudsman in

which the Ombudsman indicated his willingness to hear PNB’s appeal

of its examination rating but reaffirmed that the appeal would be

governed by BB 2002-9.           PNB took no further action to seek intra-

agency review of the examination rating but instead filed this suit

in       federal   court   on   March   15,    2002,   seeking    injunctive    and

declaratory relief against the Office of the Comptroller of the

Currency and John D. Hawke, Jr., Comptroller of the Currency.                   PNB

argues that the defendants violated 12 U.S.C. § 48061 as well as

PNB’s procedural due process rights by enacting BB 2002-9.                  The OCC

actually commenced its administrative enforcement action against


     1
     This statute mandates that “each appropriate Federal banking
agency ... shall establish an independent intra-agency appellate
process.” The statute further provides that the appellate process
“shall be available to review material supervisory determinations,”
which include examination ratings.

                                         -3-
PNB on March 18, 2002, by filing a “Notice of Charges for Issuance

of a Cease and Desist Order Against PNB.”

     OCC and Hawke moved to dismiss PNB’s complaint in the district

court, contending that the district court lacked subject matter

jurisdiction.    The district court granted the motion.           The court

noted the prohibition of 12 U.S.C. § 1818(i)(1), which states that

“no court shall have jurisdiction to affect by injunction or

otherwise the issuance or enforcement” of a cease and desist order.

The district court concluded that PNB was essentially attempting to

obtain review of the OCC’s proposed enforcement action and that

section    1818(i)(1)   thus   stripped    the   court   of   jurisdiction.

Additionally, the district court stated that there had been no

final agency action that could be subject to judicial review under

the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq.

     After PNB timely appealed, it entered into a consent order

with the OCC.   Pursuant to the consent order, PNB agreed to end its

payday lending arrangement and to pay a civil penalty of $175,000.

PNB asserts that this consent order constitutes a settlement and

termination of the enforcement action.           The OCC argues that the

enforcement action still exists.          Either way, this appeal is not

moot.     PNB still intends to appeal its examination rating, and

PNB’s challenge to the implementation of BB 2002-9 still exists.

     If the enforcement action has terminated, section 1818(i)(1)

would no longer preclude jurisdiction. But the question of whether



                                   -4-
or not this jurisdictional bar has been removed is only of import

if there is a valid basis upon which the district court could have

asserted jurisdiction in the first place.       We conclude that there

is not a valid basis for jurisdiction, and we affirm the district

court’s dismissal.

                            II.   ANALYSIS

A.     Standard of Review

       This court reviews a district court’s dismissal based on lack

of subject matter jurisdiction de novo.          Hashemite Kingdom of

Jordan v. Layale Enterp., S.A., 272 F.3d 264, 269 (5th Cir. 2001).

       Federal courts are courts of limited jurisdiction.      Id. at

269.    As courts created by statute, they have no jurisdiction

absent jurisdiction conferred by statute. Id. at 270.      Thus, there

must be a statutory basis for federal court jurisdiction over PNB’s

claims. The party claiming federal subject matter jurisdiction has

the burden of proving it exists.        Pettinelli v. Danzig, 644 F.2d

1160, 1162 (5th Cir. 1981).

B.     Subject Matter Jurisdiction

       PNB alleges that jurisdiction can be based upon the APA and on

the OCC’s alleged violation of 12 U.S.C. § 4806.      The APA provides

that “[a]gency action made reviewable by statute and final agency

action for which there is no other adequate remedy in a court are

subject to judicial review.”      5 U.S.C. § 704.     Thus, a federal

court may review an administrative agency decision if (1) the


                                  -5-
decision is made reviewable by statute or (2) there has been a

final agency action for which there is no other adequate remedy in

a court.2

       As a starting point, section 4806 does not directly provide

for judicial review.           Since the relevant administrative agency

statutory provision here does not directly provide for judicial

review, the APA authorizes judicial review only of “final” agency

action.     If there is no “final agency action,” a federal court

lacks subject matter jurisdiction.                American Airlines, Inc. v.

Herman, 176 F.3d 283, 287 (5th Cir. 1999).                 PNB argues that the

implementation of BB 2002-9 constitutes final agency action by the

OCC.

       As a general matter, two conditions must be satisfied for an

agency    action   to    be    final:     1)   the      action   must   mark   the

consummation of the agency’s decision-making process; 2) the action

must be one by which rights or obligations have been determined or

from which legal consequences will flow.                American Airlines, 176

F.3d at 287-88 (citing Abbott Labs. v. Gardner, 387 U.S. 136, 149-

50 (1967)). Conversely, a non-final agency order is one that “does

not of itself adversely affect complainant but only affects his

rights    adversely     on    the   contingency    of   future   administrative


  2
     At one point in its brief, PNB indicates specifically that it
believes jurisdiction is conferred by section 706 of the APA. But
it is well-established that section 706 is not an independent grant
of subject matter jurisdiction. Your Home Visiting Nurse Srvs.,
Inc. v. Shalala, 525 U.S. 449, 457-58 (1999).

                                        -6-
action.”   Rochester Tel. Corp. v. United States, 307 U.S. 125, 130

(1939).    The APA also states that a “preliminary, procedural, or

intermediate agency action or ruling not directly reviewable is

subject to review on the review of the final agency action.”             5

U.S.C. § 704.

     There has been no final agency action in this case.               The

agency’s decision-making process has not been consummated. PNB has

not utilized the procedure for appeal to the Ombudsman.                The

letters from the Ombudsman to PNB indicate that the Ombudsman is

prepared to hear PNB’s appeal; PNB simply takes issue with the idea

that such appeal will be governed by BB 2002-9.          BB 2002-9 may

place a limitation on the scope of review to be applied by the

Ombudsman.    But this affects PNB’s rights adversely only “on the

contingency   of   future   administrative   action,”   that   being   the

possibility that the Ombudsman will continue to view BB 2002-9 as

a limitation on the scope of review and that the Ombudsman will

rule against PNB.    This intra-agency procedural rule should not be

reviewed by a court until it has been utilized and resulted in a

final agency action, in this case a ruling by the Ombudsman.            If

PNB were to pursue its appeal to the Ombudsman, it is possible that

the Ombudsman would no longer view BB 2002-9 as limiting the scope

of review or that PNB would prevail in its appeal, thereby mooting

any potential judicial challenge.       This indicates that PNB should

pursue its administrative appeal, not shortcut it by filing suit.



                                  -7-
American Airlines, 176 F.3d at 292.

      Again, section 704 of the APA provides that any “preliminary,

procedural, or intermediate agency action or ruling not directly

reviewable is subject to review on the review of the final agency

action.”   Thus, the time to challenge the appeals process is after

there is a final agency action.        Because PNB has elected not to

pursue the agency appeal procedure provided for by BB 2002-9, PNB

cannot now complain that BB 2002-9 denied it a meaningful review in

violation of 12 U.S.C. § 4806.    The time to make that argument is

after the appeals process in question has been utilized, resulting

in a final agency action.

                         III.    CONCLUSION

      The district court’s dismissal for lack of subject matter

jurisdiction is AFFIRMED.3


  3
        In its reply brief, PNB attached five documents as exhibits.
None of these documents were included in the record before the
district court. One document is a press release lauding PNB as one
of the top-performing banks in Texas according to the Independent
Bankers Association of Texas.     The other four are e-mails from
various OCC employees. PNB contends these e-mails demonstrate the
OCC’s unfair treatment of the bank because of PNB’s participation
in payday loans.
   The OCC has moved to strike these five documents because they
were not part of the record before the district court and because
PNB did not seek leave of this court before supplementing the
record. PNB opposes that motion and has moved to supplement the
record contending that these documents are relevant.
   “Although a court of appeals will not ordinarily enlarge the
record to include material not before the district court, it is
clear that the authority to do so exists.” Gibson v. Blackburn,
744 F.2d 403, 405 n.3 (5th Cir. 1984). These documents are not
relevant to the disposition of this case. Thus, PNB’s motion to
supplement the record is denied, and the OCC’s motion to strike is

                                 -8-
denied as moot.

                  -9-
