486 U.S. 230 100 L. Ed. 2d 265 108 S. Ct. 1780 1988 U.S. LEXIS 2477 SCDB 1987-091

FEDERAL DEPOSIT INSURANCE CORPORATION v. MALLEN et al.

No. 87-82.

Argued March 22, 1988

Decided May 31, 1988

*231Stevens, J., delivered the opinion for a unanimous Court.

John Harrison argued the cause for appellant. With him on the briefs were Solicitor General Fried, Assistant Attorney General Willard, Deputy Solicitor General Cohen, Anthony J. Steinmeyer, Michael Kimmel, Ronald R. Glancz, and James A. Clark.

Mary E. Curtin, by appointment of the Court, 484 U. S. 1055, argued the cause for appellee. With her on the brief was David J. Siegrist.

Justice Stevens

delivered the opinion of the Court.

The question presented by this appeal concerns the constitutionality of a statutory provision that authorizes the *232Federal Deposit Insurance Corporation (FDIC) to suspend from office an indicted official of a federally insured bank. The District Court concluded that the statutory post-suspension procedure is unconstitutional because it does not guarantee the suspended officer a sufficiently prompt decision or an unqualified right to present oral testimony. The District Court therefore enjoined the FDIC from enforcing an order suspending appellee from serving as the president and as a director of the Farmers State Bank in Kanawha, Iowa, and from otherwise participating in the conduct of the affairs of any FDIC-insured bank. 667 F. Supp. 652, 662, 664 (1987). We noted probable jurisdiction. 484 U. S. 911 (1987). We reverse.

J — l

In 1966 Congress adopted several amendments to the Federal Deposit Insurance Act to give federal banking agencies more effective regulatory powers to deal with crises in financial institutions.1 The amendments were designed to protect the interests of depositors and to prevent the potentially debilitating effect of public loss of confidence in the banking industry. See S. Rep. No. 1482, 89th Cong., 2d Sess., 4-5 (1966) (S. Rep.); 112 Cong. Rec. 20080 (1966) (remarks of Sen. Proxmire). Congress therefore enacted 12 U. S. C. § 1818(g)(1) to give the appropriate federal banking agency2 the authority to take immediate action to suspend an officer *233or director of an insured bank if he or she is formally charged with a felony involving dishonesty or breach of trust. As originally enacted, § 1818(g)(1) permitted the appropriate banking agency to suspend an indicted bank officer without providing an opportunity to be heard either before or after issuance of the order of suspension.3

In 1974, the FDIC invoked its § 1818(g)(1) authority to suspend the president of an Illinois bank who had been indicted for conspiracy to commit mail fraud. That officer successfully challenged the constitutionality of the suspension on the ground that it had deprived him of property without due process of law. The three-judge District Court, in Feinberg v. FDIC, 420 F. Supp. 109 (DC 1976), found that the public *234interest in prompt action justified a suspension without a prior hearing, but concluded that the officer was constitutionally entitled to a prompt and meaningful post-suspension hearing in which he could attempt to persuade the FDIC to exercise its discretion to revoke the suspension. In its opinion, the District Court emphasized that the 1966 statute had given the FDIC standardless discretion to suspend or not to suspend an indicted bank official.4

In response to the Feinberg decision, in 1978 Congress amended § 1818(g) by incorporating standards in subsection (1) to guide the FDIC in the exercise of its discretion,5 and *235by enacting a new subsection (3) to give the suspended officer the right to a post-suspension hearing before the agency to demonstrate that his or her continued service would not jeopardize the interests of depositors or impair public confidence in the bank.6 It is the adequacy of the post-suspension pro*236cedure authorized by subsection (3) that is at issue in this appeal.

II

On December 10, 1986, appellee was indicted by a federal grand jury in the Northern District of Iowa. He was charged with making false statements to the FDIC in violation of 18 U. S. C. § 1001 and with making false statements to the Farmers State Bank with the purpose of influencing the actions of the FDIC in violation of 18 U. S. C. § 1014, offenses that are punishable by imprisonment for more than one year, and that unquestionably involve dishonesty or breach of trust.7 At the time of the indictment, appellee *237was the president and a director of a federally insured bank. Thus, if the FDIC found that his continued service “[might] pose a threat to the interests of the bank’s depositors or *238[might] threaten to impair public confidence in the bank,” the requirements specified in § 1818(g)(1) for a suspension order would be satisfied.

On January 20, 1987, the FDIC issued an ex parte order containing the necessary findings, suspending appellee as the president and as a director of the bank and prohibiting him “from further participation in any manner in the conduct of the affairs of the Bank, or any other bank insured by the FDIC.”8 App. to Juris. Statement 28a. A copy of the order was served on appellee on January 26, 1987. Four days later, appellee’s attorney made a written request for “an immediate administrative hearing” at which he proposed to offer “both oral testimony and written evidence” to establish that appellee’s continued service was not likely to pose a threat to the interests of the bank’s depositors or to threaten public confidence in the bank. App. 26. The letter re*239quested that the hearing be expedited and commence no later than February 9, 1987.

After various communications with appellee’s counsel, the FDIC’s regional counsel, and the Administrative Law Judge who was selected to conduct the hearing, it was decided that a hearing would be held on February 18, 1987. 667 F. Supp., at 655. In those communications, the FDIC’s regional counsel took the position that oral testimony would not be necessary. App. 28-30. The hearing officer, however, never had an opportunity to decide whether to receive such testimony because the administrative proceedings were interrupted by this litigation.

On February 6, 1987, appellee filed his complaint against the FDIC in the Federal District Court for the Northern District of Iowa and promptly moved for a preliminary injunction. After receiving evidence in the form of affidavits and exhibits, and after hearing oral argument — but no oral testimony — the District Court entered an order declaring the suspension “null and void” and enjoining the FDIC from enforcing it. The District Court rejected appellee’s argument that the order was invalid because it was not preceded by a hearing, 667 F. Supp., at 658, but held that the post-suspension process was “constitutionally inadequate because it does not contemplate a ‘prompt’ disposition,” id., at 659, and also “because it fails to provide for a hearing at which oral evidence can be presented,” id., at 660.9 The District Court *240made it clear that it was expressing no opinion on the merits of the suspension; its decision rested entirely on the perceived procedural shortcomings in the post-suspension process.

f — H I — I Í-H

It is undisputed that appellee’s interest in the right to continue to serve as president of the bank and to participate in the conduct of its affairs is a property right protected by the Fifth Amendment Due Process Clause. The District Court and the parties correctly recognized that the FDIC cannot arbitrarily interfere with appellee’s continuing employment relationship with the bank, nor with his interest as a substantial stockholder in the bank’s holding company. See Feinberg v. FDIC, 173 U. S. App. D. C. 120, 125, 522 F. 2d 1335, 1340 (1975); cf. Cleveland Bd. of Education v. Loudermill, 470 U. S. 532, 538-541 (1985). It is also undisputed that the FDIC’s order of suspension affected a deprivation of this property interest. Accordingly, appellee is entitled to the protection of due process of law.

“Once it is determined that due process applies, the question remains what process is due.” Morrissey v. Brewer, 408 U. S. 471, 481 (1972). Here again, we at least start with substantial agreement. Appellee does not contend that he was entitled to an opportunity to be heard prior to the order of suspension. An important government interest, accompanied by a substantial assurance that the deprivation is not baseless or unwarranted, may in limited cases demanding prompt action justify postponing the opportunity to be heard until after the initial deprivation. See Barry v. Barchi, 443 U. S. 55, 64-66 (1979); Dixon v. Love, 431 U. S. 105, 112-115 (1977); North American Cold Storage Co. v. Chicago, 211 U. S. 306, 314-321 (1908). In this case, the postponement of the hearing is supported by such an interest. The legislation under scrutiny is premised on the congressional finding that *241prompt suspension of indicted bank officers may be necessary to protect the interests of depositors and to maintain public confidence in our banking institutions. See S. Rep., at 4-5; 112 Cong. Rec. 20080 (1966) (remarks of Sen. Proxmire). This interest is certainly as significant as the State’s interest in preserving the integrity of the sport of horse racing, an interest that we deemed sufficiently important in Barry v. Barchi, supra, at 64-65, to justify a brief period of suspension prior to affording the suspended trainer a hearing. Moreover, as in Barchi, appellee’s suspension was supported by findings that assure that the suspension was not baseless. A grand jury had determined that there was probable cause to believe that appellee had committed a felony. Such an ex parte finding of probable cause provides a sufficient basis for an arrest, which of course constitutes a temporary deprivation of liberty.10 See Baker v. McCollan, 443 U. S. 137, 142, 143 (1979). It should certainly be sufficient, when coupled with the congressional finding that a prompt suspension is important to the integrity of our banking institutions, to support the order entered in this case on January 20, 1987, even though the FDIC did not provide appellee with a separate pre-suspension hearing. The three-judge District Court in the Feinberg case, the District Court in this case, and this Court are all in accord on that proposition.

We cannot agree with the District Court, however, that appellee was denied a sufficiently prompt post-deprivation hearing. As our cases indicate, the District Court was properly concerned about the importance of providing prompt post-deprivation procedures in situations in which an agen*242cy’s discretionary impairment of an individual’s property is not preceded by any opportunity for a pre-deprivation hearing. See Barchi, supra, at 66.. However, the District Court seems to have been improperly concerned with the danger of an interminable delay by the agency, rather than by what would have happened in this case if the proceedings had not been interrupted, or indeed, what might have happened if the FDIC had been as dilatory as the statute permits. For even though there is a point at which an unjustified delay in completing a post-deprivation proceeding “would become a constitutional violation,” Cleveland Bd. of Education v. Loudermill, 470 U. S., at 547, the significance of such a delay cannot be evaluated in a vacuum. In determining how long a delay is justified in affording a post-suspension hearing and decision, it is appropriate to examine the importance of the private interest and the harm to this interest occasioned by delay; the justification offered by the Government for delay and its relation to the underlying governmental interest; and the likelihood that the interim decision may have been mistaken. Cf. Logan v. Zimmerman Brush Co., 455 U. S. 422, 434 (1982); Mathews v. Eldridge, 424 U. S. 319, 334-335 (1976).

Section 1818(g)(3) requires the FDIC to hold a hearing within 30 days of a written request for an opportunity to appear before the agency to contest a suspension and requires that it notify the suspended officer of its decision within 60 days of the hearing. Thus, at maximum, the suspended officer receives a decision within 90 days of his or her request for a hearing. In this case, the agency reported that it would have been able to issue a written decision within 30 days after the hearing.11 In addition, the initial hearing was scheduled *243to take place — had it not been interrupted by the preliminary injunction — 19 days after it was formally requested.

Appellee’s interest in continued employment is without doubt an important interest that ought not be interrupted without substantial justification. We have repeatedly recognized the severity of depriving someone of his or her livelihood. See Brock v. Roadway Express, Inc., 481 U. S. 252, 263 (1987); Loudermill, 470 U. S., at 543. Yet, even assuming that the FDIC required the complete 90 days to hear the case and reach its decision, we are not persuaded that this exceeds permissible limits. In fact, a suspended bank officer has an interest in seeing that a decision concerning his or her continued suspension is not made with excessive haste. The statute imposes a permissive standard for continuing a suspension, and presumably, when in doubt, the agency may give greater weight to the public interest and leave the suspension in place, particularly when the suspension does not impose the additional harm of a significant, incremental injury to reputation. Through the return of the indictment, the Government has already accused the appellee of serious wrongdoing. The incidental suspension is not likely to augment this injury to the officer’s reputation. We thus conclude that the 90-day period is not so long that it will always violate due process. In many cases, perhaps most, it will be justified by an important government interest coupled with factors minimizing the risk of an erroneous deprivation. Cf. *244 id., at 546-547 (9-month delay in final decision not “unconstitutionally lengthy per se”).

The magnitude of the public interest in a correct decision counsels strongly against any constitutional imperative that might require overly hasty decisionmaking. The same governmental interest that justifies permitting suspension prior to the opportunity to be heard extends to this analysis as well. Congress has determined that the integrity of the banking industry requires that indicted bank officers be suspended until it is determined that they do not pose a threat to the interests of the bank’s depositors or threaten to undermine public confidence in the bank. To return these officers to a position of influence in the conduct of the bank’s affairs prior to an opportunity to weigh the evidence carefully would threaten these interests in the same way as allowing them to remain in office from the start. Thus, the public has a strong interest in seeing the ultimate decision made in a considered and deliberate manner. Congress certainly acted within constitutional bounds in determining that 30 days might be required to set and prepare for the hearing and that in some cases another 60 days may be needed to reach a decision. The decision is a serious one and may involve complex issues and an extensive evidentiary record. See Feinberg, 420 F. Supp., at 120 (hearing would involve a “complex legal question” and “subtle interrelation of fact and policy”).

Moreover, and perhaps most significantly, there is little likelihood that the deprivation is without basis. The returning of the indictment establishes that an independent body has determined that there is probable cause to believe that the officer has committed a crime punishable by imprisonment for a term in excess of one year. This finding is relevant in at least two important ways. First, the finding of probable cause by an independent body demonstrates that the suspension is not arbitrary. Second, the return of the indictment itself is an objective fact that will in most cases *245raise serious public concern that the bank is not being managed in a responsible manner. In addition, when § 1818(g) was initially enacted, Congress indicated that suspensions would be “virtually routine.” S. Rep., at 2. The later amendments prompted by the Feinberg decision do not suggest that Congress has disavowed this expectation; rather, the standard adopted by Congress — “may pose a threat to the bank’s depositors or may threaten to impair public confidence in the bank” — would appear to be easily satisfied in the case of bank officials charged with crimes involving dishonesty. One would expect that a decision not to suspend would be the exception. It is thus unlikely that any particular suspension would be erroneously imposed.

We are therefore persuaded that the congressionally recognized interest in maintaining confidence in our banking institutions, coupled with the finding of probable cause that the officer has committed a felony involving dishonesty, is sufficient ground for a regulatory suspension of up to 90 days without the benefit of a post-suspension ruling. In reaching a contrary result, the District Court attached importance to the fact that the criminal proceedings might be concluded more promptly than the FDIC proceeding. The Court reasoned that because the Speedy Trial Act requires that a federal criminal trial take place within 70 days of indictment — plus, of course, time properly excluded under the Act — the criminal trial might well take place before the FDIC need reach a decision. See 18 U. S. C. §3161. The Court accordingly concluded that the statutorily required hearing is • “a toothless remedy for the plaintiffs since the agency can postpone a disposition until after the criminal trial has concluded.’’,. 667 F. Supp., at 659. “It is a remedy only if the agency chooses for it to be a remedy.” Ibid.

We find the possibility that a suspended officer’s criminal trial may conclude before expiration of the 90-day period from request for a hearing to decision quite irrelevant. If *246appellee had been promptly acquitted, the basis for the suspension would have disappeared and the order would have been vacated. On the other hand, a conviction merely strengthens the case for maintaining the suspension and provides grounds for suspension under § 1829 as well.12 The criminal trial merely constitutes a potentially intervening factor that may require that the suspension be promptly vacated; it is difficult to conceive of how this intervening factor interferes with appellee’s due process rights.

Nor is this case controlled by our decision in Barry v. Barchi, 443 U. S. 55 (1979). In Barchi, a horse trainer’s license was suspended for 15 days after a horse he trained was discovered to have had drugs in its system during a race. The state regulatory scheme raised a rebuttable presumption that the trainer either administered the drug or was negligent in protecting against such an occurrence. The trainer claimed that he neither administered the drug nor was negligent. In considering the administrative scheme, we first concluded that the State acted within the bounds of due process in suspending the trainer without a pre-suspension hearing. However, we concluded that the scheme violated due process because “it [was] as likely as not” that the trainer would irretrievably suffer the full penalty before the State would be put to its proof at a post-suspension hearing. Id., at 66. In such situations, the State must assure a prompt post-suspension hearing, “without appreciable delay.” Ibid. *247In this case by contrast, the appellee is not denied a meaningful opportunity to be heard. Rather than closing the door to the benefit of an opportunity to be heard, the possibility that the criminal trial may precede the FDIC hearing simply provides an additional forum at which to demonstrate that the suspension was unjustified. If the official is successful in the criminal proceeding, then due process has prevailed and the order of suspension must be vacated. . If he or she is convicted, the order of suspension is further supported.

We also reject appellee’s contention that § 1818(g) violates due process because it does not guarantee an opportunity to present oral testimony. The statute provides that the suspended officer may “submit written materials (or, at the discretion of the agency, oral testimony)” and present oral argument. § 1818(g)(3). The- relevant regulation, in turn, delegates the decision whether to accept oral testimony to the hearing officer. See 12 CFR § 308.61(e) (1987). In rejecting appellee’s contention we may assume that there are post-suspension proceedings under § 1818(g) in which oral testimony is essential to enable the hearing officer to make a fair appraisal of the impact of a suspended officer’s continued service on the bank’s security and reputation. Indeed, we may assume that this is such a ease. The problem with ap-pellee’s position, however, is that he did not give the hearing officer an opportunity to decide whether to hear whatever testimony he might have adduced. No offer of proof was ever made, and thus certainly was not rejected^ For all we know, the hearing officer might have accepted such evidence; or if he rejected it, he might have been entirely correct in deciding that it was merely cumulative to material that was adequately covered by written submissions or that it was otherwise unnecessary or improper. A statute such as this is not to be held unconstitutional simply because it may be applied in an arbitrary or unfair way in some hypothetical case not before the Court. There is no inexorable requirement that *248oral testimony must be heard in every administrative proceeding in which it is tendered.13 See Califano v. Yamasaki, 442 U. S. 682, 696 (1979). The District Court’s reliance on the absence of such a guarantee in this case was therefore misplaced.

IV

The post-suspension procedure authorized by § 1818(g)(3) is not unconstitutional on its face; nor do we find any unfairness in the FDIC’s use of that procedure in this case. The District Court’s preliminary injunction is accordingly reversed.

It is so ordered.

Federal Deposit Insurance v. Mallen
486 U.S. 230 100 L. Ed. 2d 265 108 S. Ct. 1780 1988 U.S. LEXIS 2477 SCDB 1987-091

Case Details

Name
Federal Deposit Insurance v. Mallen
Decision Date
May 31, 1988
Citations

486 U.S. 230

100 L. Ed. 2d 265

108 S. Ct. 1780

1988 U.S. LEXIS 2477

SCDB 1987-091

Jurisdiction
United States

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