On Petition for Review of an Order of the Federal Deposit Insurance Corporation;
Nos. FDIC-12-568e; FDIC-13-115k.
Argued: October 20, 2021
Decided and Filed: June 10, 2022
Before: BOGGS, GRIFFIN, and MURPHY, Circuit Judges.
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OPINION
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BOGGS, Circuit Judge. Harry C. Calcutt III, a bank executive and director, petitions for
review of an order issued by the Federal Deposit Insurance Corporation (“FDIC”) that removes
him from his position, prohibits him from participating in the conduct of the affairs of any
insured depository institution, and imposes civil money penalties. In addition to attacking the
conduct and findings in his individual proceedings, he also brings several constitutional
challenges to the appointments and removal restrictions of FDIC officials.
His first hearing in these proceedings occurred before an FDIC administrative law judge
(“ALJ”) in 2015. Before the ALJ released his recommended decision, the Supreme Court
decided Lucia v. SEC, 138 S. Ct. 2044 (2018), which invalidated the appointments of similar
ALJs in the Securities and Exchange Commission (“SEC”). The FDIC Board of Directors then
appointed its ALJs anew, and in 2019 a different FDIC ALJ held another hearing in Calcutt’s
matter and ultimately recommended penalties.
Broadly, Calcutt’s claims fall into two categories. First, he brings structural
constitutional challenges, contending that: The FDIC Board of Directors is unconstitutionally
shielded from removal by the President; the FDIC ALJs who oversee enforcement proceedings
are also unconstitutionally insulated from removal; and the second hearing before a different ALJ
failed to afford him a “new hearing,” as mandated by Lucia. In his second group of challenges,
Calcutt attacks the procedure used and results reached in his post-Lucia adjudication. He begins
by contending that the ALJ abused his discretion by curtailing cross-examination about bias of
the witnesses. He then argues that the FDIC Board failed to find that he had committed
misconduct that caused “effects” for Northwestern Bank, as the governing statute, 12 U.S.C.
§ 1818(e)(1), requires. See Dodge v. Comptroller of Currency, 744 F.3d 148, 152 (D.C. Cir.
2014).
We deny his petition. Calcutt’s challenges to the removal restrictions at the FDIC are
unavailing, because even if he were to establish a constitutional violation, he has not shown that
he is entitled to relief. See Collins v. Yellen, 141 S. Ct. 1761, 1789 (2021). We also conclude that
his 2019 hearing satisfied Lucia’s mandate. As for the limits on cross-examination at that
hearing, any error committed by the ALJ was harmless. Finally, there is substantial evidence in
the record to support the FDIC Board’s findings regarding the elements of § 1818(e)(1). |