Bank of LA v. FDIC ( 2020 )

Case: 20-60380 Document: 00515686737 Page: 1 Date Filed: 12/28/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 28, 2020
No. 20-60380 Lyle W. Cayce
Summary Calendar Clerk
Bank of Louisiana,
Petitioner,
versus
Federal Deposit Insurance Corporation,
Respondent.
Petition for Review of an Order of the
Federal Deposit Insurance Corporation
FDIC-12-489(b), FDIC-12-479(k)
Before Haynes, Willett, and Ho, Circuit Judges.
Per Curiam:*
The Bank of Louisiana petitions for review of a decision and order
issued by the Federal Deposit Insurance Corporation’s Board, which
concluded that the Bank violated various banking laws and regulations. The
Bank argues that the Administrative Law Judge that issued the order was
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 20-60380
never properly appointed by the FDIC Board of Directors. But the Board
passed a resolution doing just that in July 2018. To the extent the Bank argues
that this resolution was somehow inadequate, that argument is forfeited for
lack of adequate briefing. See Fed. R. App. P. 28(a)(8); United States v.
Scroggins, 599 F.3d 433, 446–47 (5th Cir. 2010) (“It is not enough to merely
mention or allude to a legal theory.”); L & A Contracting Co. v. S. Concrete
Servs., 17 F.3d 106, 113 (5th Cir. 1994) (“[Appellant] cites no authority in its
one-page argument . . . however, and we consider the challenge abandoned
for being inadequately briefed.”).
The Bank also argues that the order is moot because subsequent bank
examinations suggest the Bank remedied its violations. The order imposes a
civil money penalty and includes a cease-and-desist requirement. The money
penalty keeps the controversy alive, even if the Bank has come into
compliance. See, e.g., Reich v. Occupational Safety & Health Review Comm’n,
102 F.3d 1200, 1202 (11th Cir. 1997) (“[C]laims for money do not become
moot as a result of the defendants’ acts following the occurrence giving rise
to the claims”); Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield, Ltd.,
890 F.2d 690, 696 (4th Cir. 1989) (“[T]he [money] penalty factor keeps the
controversy alive between plaintiffs and defendants in a citizen suit, even
though the defendant has come into compliance”). Nor does a
discontinuation of illegal practices render an FDIC cease-and-desist order
moot. See First Nat’l Bank v. Comptroller, 697 F.2d 674, 683 (5th Cir. 1983);
Bank of Dixie v. FDIC, 766 F.2d 175, 178 (5th Cir. 1985).
Alternatively, the Bank argues that it erroneously filed its petition for
review with this court and asks us to transfer the case to the United States
District Court for the Eastern District of Louisiana. We have twice rejected
this argument. See Bank of Louisiana v. FDIC, 807 F. App’x 360, 362 (5th
Cir. 2020) (“Because district courts lack jurisdiction to review FDIC
enforcement orders, and because 28 U.S.C. § 1631 permits transfer only to a
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No. 20-60380
transferee court that would have jurisdiction to hear the case, we deny the
Bank’s motion to transfer to the United States District Court for the Eastern
District of Louisiana.”); Bank of Louisiana v. FDIC, 919 F.3d 916, 924 (5th
Cir. 2019) (“The Bank wisely concedes that the section 1818 scheme displays
Congress’ intent to preclude district court jurisdiction over claims against
the FDIC arising out of enforcement proceedings. Our precedent virtually
compels that concession.”).
We deny both the Bank’s petition for review and request to transfer
the case.
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