independence of or control over the agency and whether the agency can own property in its own name. Id.
A number of statutory provisions indicate that the legislature, when it created the Commissioner's office, viewed it as part of the state. The statute creating the office of the Commissioner refers to it as "an agency of the State . . . which shall have an officer of the State at its head. . . . " Ill. Rev. Stat. ch. 17 para. 3307-1. The decisions of the Commissioner are reviewable under the Administrative Review Law, which covers only the actions of administrative agencies "of the state." Para. 3307-27; Ill Rev. Stat. ch. 110 para. 3-101.1. The Commissioner is immune from suit for any good faith action, suggesting that the state meant the extend to him the protection of its sovereign immunity, which is the basis of the Eleventh Amendment. Ill. Rev. Stat. ch. 17 para. 3307-2.
The Commissioner's office does not operate with complete independence from the rest of state government. It must report annually to the governor and the general assembly. Ill. Rev. Stat. ch. 17 para. 3307-8. Further, any order or action of the Commissioner is reviewable by the Illinois Savings and Loan Board. Ill. Rev. Stat. ch. 17 para. 3307-22. Upon the record before the court, it appears that the property used by the Commission is not held in its own name, but is owned by the state. (Commissioner's Affidavit paras. 13, 14.)
In summary, there is no clear support for the conclusion that the Commission is financially independent from the state. Other factors indicate that, under Illinois law, the Commissioner is considered to be an arm of the state. Consequently, the court, under the Eleventh Amendment, cannot exercise jurisdiction over Carey and Marshall's third-party claim.
In reaching this conclusion, the court rejects third-party plaintiffs' Carey and Marshall's contention that their claims are exempt from the Eleventh Amendment because the original plaintiff, the FDIC, could have asserted a claim without violating the Eleventh Amendment. As stated previously, the focus of a third-party action is the third-party defendants' liability to the third-party plaintiff, not the third-party defendants' possible liability to the original plaintiff. (See footnote 6.) See also United States v. Illinois, 454 F.2d 297, 300-01 (7th Cir. 1971) (proper focus of Eleventh Amendment inquiry on third-party claim is posture of third-party claim, not original claim). Additionally, the third-party plaintiffs cannot take advantage of any possible recoupment exception to the Eleventh Amendment, because the Illinois Commissioner is not a plaintiff in this action. (See previous discussion at pp. 11-12.)
For the foregoing reasons, FDIC's motion to dismiss the Director claimants' counterclaims is DENIED, and FDIC's motion to dismiss the Millers' counterclaims is GRANTED. Third-party defendants OTS and the Commissioner's motions to dismiss Carey and Marshall's third-party claims are GRANTED.
Parties are urged to discuss settlement of this case. This case is set for status on January 16, 1992 at 10 a.m.
JAMES F. HOLDERMAN
United States District Judge
DATED: November 15, 1991