## Facts

- Congress enacted a 1916 statute authorizing national banks in communities of 5,000 or fewer people to act as agents for insurance companies; it was later codified as 12 U.S.C. § 92.
- Beginning with the 1952 edition, the United States Code omitted § 92 and included an editorial note suggesting it had been repealed in 1918.
- In 1986, the Comptroller of the Currency ruled that United States National Bank of Oregon could sell insurance through a branch located in a small Oregon town to customers beyond that town, based on § 92.
- Trade organizations representing insurance agents sued, arguing the Comptroller’s ruling conflicted with the limits of § 92.
- The district court granted summary judgment to the bank and the Comptroller; respondents did not challenge whether § 92 remained valid law.
- On appeal, respondents continued to argue only statutory meaning, but the D.C. Circuit raised § 92’s validity, concluded it had been repealed in 1918, and ordered judgment for respondents.
- The Supreme Court granted certiorari in consolidated cases and reviewed both the appellate court’s handling of the unraised validity issue and the continued force of § 92.

## Issues

1. Whether an appellate court may consider, on its own initiative, the validity of a statute that the parties did not contest in the district court or initially on appeal.
2. Whether 12 U.S.C. § 92 was repealed in 1918 or instead remained in force despite its omission from later editions of the United States Code and an editorial repeal note.

## Decision

- The Supreme Court unanimously reversed the D.C. Circuit and remanded.
- The Court held the court of appeals had discretion to consider § 92’s validity despite lack of preservation, and doing so was not an abuse of discretion in these circumstances.
- The Court held § 92 was not repealed in 1918 and remains valid law.
- Because the D.C. Circuit’s repeal holding prevented full consideration of the Comptroller’s interpretation under a valid § 92, the case was remanded for further proceedings.

## Legal Principles

- Appellate courts have broad discretion to consider purely legal issues not raised below, including when resolution is clear or the question is of public importance.
- In a conflict between the Statutes at Large and a provision’s treatment in the United States Code for a title not enacted as positive law, the Statutes at Large control; the Code is only prima facie evidence of the law.
- Codifiers’ omissions, classifications, and editorial notes in the non–positive-law Code do not repeal or amend statutes; repeal requires an act of Congress.
- Repeals by implication are disfavored; later enactments should not be read to repeal earlier statutes absent clear congressional intent.

## Conclusion

The Court confirmed that § 92 remained operative despite its omission from the non–positive-law United States Code and rejected the view that an editorial repeal note or codification choice could extinguish a statute enacted in the Statutes at Large, while also recognizing appellate discretion to reach an unpreserved legal question central to the dispute’s statutory framework.


United States Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439 (1993)