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{{1-31-95 p.A-2502}}    [5220] In the Matter of The Bartlett Farmers Bank, Bartlett, Ohio, Docket No. FDIC-92-357j (11-8-94).

   FDIC Board disapproves notice of acquisition of control of bank. Upon applicant's withdrawal of his request for hearing, FDIC's Notice of Disapproval operates as a final and unappealable Order of Denial of Application, based on applicant's unsafe and unsound practices at other banks. Board delays effective date of order to allow applicant to rescind his withdrawal letter.
   [.1] Practice and Procedure—Recommended Decision—Exceptions—Oral Argument
   Board has discretion to order oral argument on exceptions to ALJ's recommended decision; it does so only when issues are not adequately addressed in the written record, oral argument will aid the Board in making its decision, and prejudice will result from lack of oral argument. Respondent has burden to show that oral argument is necessary.


32 The Code of Ethics and the policy statement on conflicts of interest which the Proposed Bank indicates that it intends to implement do not provide sufficient protection where Mr. Stoddard would be the largest single shareholder, chairman of the board, and chief executive officer.
{{1-31-95 p.A-2503}}    [.2] Practice and Procedure—Administrative Law Judge—Disqualification— Timeliness of Request
   Motion to disqualify an ALJ for personal bias must be made promptly after discovery of facts tending to prove disqualification. Passage of four months between date of alleged acts of bias and filing of motion renders motion untimely.
   [.3] Practice and Procedure—Administrative Law Judge—Disqualification— Standards
   Party claiming bias must overcome presumption that ALJs are conscientious and capable of judging a controversy fairly on the merits. Parties must show an extrajudicial source of ALJ's bias, not just unfavorable rulings.
   [.4] Practice and Procedure—Administrative Law Judge—Disqualification— Board Review
   Due process and the Administrative Procedure Act do not require Board to determine a question of ALJ bias before the ALJ holds a hearing on the underlying matter, because there is opportunity for later Board review.
   [.5] Practice and Procedure—Hearings—Withdrawal of Request for Hearing
   Withdrawal of request for a hearing constitutes a waiver of opportunity for hearing and results in a final and unappealable order of disapproval of the change in control application.
   [.6] Res Judicata—Claim Preclusion—Administrative Decisions
   Administrative decisions are normally given the same preclusive effect as judicial decisions, so order disapproving change in control would bar any new application by the same parties for the stock purchase that took place several years ago.

In the Matter of

THE BARTLETT FARMERS BANK
BARTLETT, OHIO
(Insured State Nonmember Bank)
DECISION AND ORDER
FDIC-92-357j

I. INTRODUCTION

   This proceeding concerns A. Patrick Tonti's ("Respondent") challenge to the disapproval of the Federal Deposit Insurance Corporation ("FDIC"), under the Change in Bank Control Act ("CBCA"), 12 U.S.C. § 1817(j), of his acquisition of control of The Bartlett Farmers Bank, Bartlett, Ohio ("Bank"). Following two motions by the Respondent to disqualify Administrative Law Judge Walter J. Alprin ("ALJ") for bias (both of which were denied by the ALJ), the Respondent filed a Withdrawal of Request for Hearing ("Withdrawal"). It recites Respondent's belief that he cannot obtain a fair hearing before the ALJ; and his understanding that he may file a new application for approval of his acquisition of control and, if it is denied on the same grounds as his previous application, that he will be free to challenge and litigate those grounds.
   For the reasons set forth below, the Board of Directors of the FDIC ("Board") holds that (1) Respondent's Affidavit of personal bias on the part of the ALJ ("Affidavit") was not timely or sufficient, and cites no evidence of ALJ bias, (2) the Board's failure to rule earlier on Respondent's Motions to Disqualify did not violate the Administrative Procedure Act ("APA"), 5 U.S.C. § 556(b), or Respondent's due process rights, or affect the finality of the Order, (3) the filing of a withdrawal of request for hearing results in a final and unappealable Order of Disapproval of Acquisition of Control, for the reasons stated in the Notice of Disapproval of Acquisition of Control and Notice of Hearing dated December 21, 1992 ("Notice"), (4) the Order herein is res judicata and precludes further consideration of the acquisition in question under the CBCA, and (5) because Respondent may have relied on FDIC Enforcement Counsel's contrary advice as to the effect of the Order, the Order shall become effective ten (10) days after {{1-31-95 p.A-2504}}service on Respondent, unless within the tenday period Respondent files a rescission of his Withdrawal, in which event this proceeding shall be remanded to the ALJ for hearing at the earliest feasible date.

II. BACKGROUND

   The Notice alleges that Respondent, from March 30, 1990 through May 1, 1990, acquired 5,624 shares totalling 37 percent of the outstanding stock of the Bank; that in September 1992, Respondent filed with the FDIC a complete notice of acquisition of control under the CBCA; and that the FDIC disapproved the proposed acquisition because it determined that the competence, experience, and/or integrity of the Respondent is such that the acquisition is not in the interest of the Bank's depositors or in the interest of the public.1
   Respondent requested a hearing, which was postponed several times. On March 2, 1994, Respondent filed a Motion to Disqualify ALJ for Prejudice, which was denied by the ALJ on May 9, 1994.
   On June 22, 1994, Respondent filed a second Motion to Disqualify ALJ for Bias, requesting that the FDIC recuse the ALJ under the APA, 5 U.S.C. § 556(b). This motion was also rejected by the ALJ on July 1, 1994.
   On July 7, 1994, Respondent filed the Withdrawal, which asserts that Respondent cannot receive a fair hearing before the ALJ, and that FDIC Enforcement Counsel advised Respondent that (1) a withdrawal would not preclude Respondent from filing a subsequent application for approval, (2) the Order denying the application would not itself by the basis for a denial of any new application, and (3) Respondent would not be collaterally estopped from disputing and litigating any of the bases set forth in the Notice should they be cited as grounds for any future disapproval.2
   FDIC Enforcement Counsel responded that the FDIC did not concede any of the factual assertions raised by Respondent in the Withdrawal.

III. THE RECOMMENDED DECISION

   The ALJ issued a Recommended Decision and Order on July 11, 1994, which notes that Respondent did not seek interlocutory review of the denials of his motions to disqualify the ALJ and concludes that a withdrawal of a request for hearing results in a final and unappealable order of disapproval on the grounds stated in the Notice, pursuant to 12 C.F.R. § 308.112(b). In essence, the Recommended Decision rejects Respondent's arguments based on the ALJ bias, violation of the APA and due process, as well as Respondent's assertion that he may file a new application and relitigate the disapproval of his bank stock purchase.3

IV. RESPONSE AND EXCEPTIONS OF THE PARTIES

A. FDIC Enforcement Counsel's Response.

   FDIC Enforcement Counsel filed a "Response," rejecting the arguments raised by the Respondent in the Withdrawal and requesting that the Board issue an order holding that the FDIC's disapproval of Respondent's bank stock purchase on the grounds stated in the Notice is final and unappealable.


1 FDIC's determination was based on the following factors:
   (1) The Superintendent of Banks for the State of Ohio had found that Respondent had violated section 1125.18 of the Ohio Revised Code, as implemented by section 1301:1-4-06 of the Ohio Administrative Code [requiring preapproval of acquisition of control of a bank];
   (2) Respondent, in his capacity as a director, senior executive officer, and principal shareholder of a now-defunct savings and loan, had engaged in unsafe and unsound practices;
   (3) Respondent, as director and senior executive officer of the savings and loan, failed to have an annual audit conducted and to submit the audit report for the year ending December 31, 1989, to the Office of Thrift Supervision;
   (4) Respondent, as a director, senior executive officer, and principal shareholder of The First Bank of Marietta, Marietta, Ohio ("Marietta") failed to assemble and retain an experienced management team capable of operating Marietta in a safe and sound manner, which failure contributed to a Written Agreement between Marietta and the Superintendent of Banks for the State of Ohio;
   (5) Respondent, on numerous occasions between 1987 and 1991, charged personal expenses in the amount of at least $18,000 to Marietta.

2 Attached to the Withdrawal as Exhibits A and B are letters to Respondent's counsel and to Respondent, respectively, from FDIC Enforcement Counsel dated march 14, 1994, and June 9, 1994, which set forth this position.

3" ...this Order shall not constitute an agreement with or approval of statements made as part of the withdrawal of request for hearing." Recommended Decision at 6.

{{1-31-95 p.A-2505}}
B. Respondent's Exceptions and Request for Oral Argument.

   Respondent filed Exceptions which are summarized below:
   (1) The Recommended Decision does not include exhibits, rulings, motions, briefs and other memoranda, in violation of 12 C.F.R. § 308.38.
   (2) Respondent was not required to seek interlocutory review of the ALJ's refusal to disqualify himself.
   (3) The FDIC violated the APA, 5 U.S.C. § 556(b), and deprived Respondent of his right to due process by allowing the ALJ rather than the Board to determine the issue whether the ALJ should be disqualified for bias.
   (4) The ALJ erred in not adopting the position expressed in the letters from FDIC Enforcement Counsel that Respondent may file a new application for approval of his bank stock purchase and may dispute and relitigate any of the bases set forth in the Notice should they be cited as grounds for any future disapproval.
   Respondent also filed a Request for Oral Argument before the Board.

V. DISCUSSION

A. Respondent's Request for Oral Argument is Denied.

   [.1] In his Request for Oral Argument, Respondent does not state reasons why arguments cannot be presented adequately in writing, as required by 12 C.F.R. § 308.40(b). After considering Respondent's request and the record as a whole, the Board finds that: (1) the relevant factual and legal arguments on issues necessary to the Board's decision are adequately set forth in the written record;4 (2) the Board will not be aided in deciding this matter by oral argument; and (3) Respondent will not be prejudiced by the lack of oral argument. Therefore, the Board concludes that Respondent has failed to show good cause for oral argument, as required by 12 C.F.R. § 308.40(b), and hence declines to exercise its discretion under 12 C.F.R. § 308.40(b) to order oral argument. See, In the Matter of Ronald J. Grubb, FDIC-88-282k and FDIC-89-111e, 2 P-H FDIC Enf. Dec. ¶5181 (1992); In the Matter of Harold Hoffman, FDIC-88-156c&b, 2 P-H FDIC Enf. Dec. ¶5140 (1989).
B. Respondent's Exceptions are Without Merit.
   1. The Recommended Decision Does not Violate 12 C.F.R. § 308.38.
   Respondent misreads 12 C.F.R. § 308.38. It is the record of the proceeding, as filed with and certified to the Executive Secretary, not the Recommended Decision, which must include exhibits, rulings, motions, briefs and other memoranda. Section 308.38 of Title 12 of the Code of Federal Regulations was fully complied with in its proceeding.
   2. The Issue of Disqualification of the ALJ for Bias.
   Under 12 C.F.R. § 308.5(b)(9), the ALJ properly considered and ruled on Respondent's motions to disqualify the ALJ for bias. The Board concludes, after careful review of the entire record, that the ALJ correctly refused to disqualify himself.
   The Board is issuing a final Order in this matter, hence it must now determine the matter of ALJ bias as part of the record and decision in the case, as provided in 5 U.S.C. § 556(b). The statute requires the filing in good faith of "a timely and sufficient affidavit of personal bias." Id. Because Respondent's first Motion to Disqualify, dated March 2, 1994, failed to provide the affidavit required by the APA, it was not entitled to consideration on the merits by the Board. However, the allegations of bias set forth in the first Motion to Disqualify were incorporated in the second Motion to Disqualify, dated June 22, 1994.

   [.2] The second Motion to Disqualify was accompanied by Respondent's Affidavit. However, the Board agrees with the ALJ's Order dated July 1, 1994, that the second Motion to Disqualify and Affidavit, which rely primarily on ALJ rulings and statements


4 In his Request for Oral Argument, Respondent asserts that "there are serious due process concerns that need to be addressed in this case," namely that the agency "is precluding Respondent from acquiring property in derogation of his constitutional rights under both the Ohio and United states [sic] Constitutions." Because Respondent has withdrawn his request for a hearing, it is not appropriate to address this issue here. If Respondent rescinds his Withdrawal and pursues this case on the merits, this kind of argument should be stated clearly and with legal citations. We note in passing that there are numerous court affirmances of regulatory change of control restrictions.

{{1-31-95 p.A-2506}}issued in this proceeding from September 1993, through February 18, 1994, were not timely as required in 5 U.S.C. § 556(b). To be timely, a recusal motion must be filed at the first opportunity after discovery of the facts tending to prove disqualification. Sine v. Local 992 Intern. Broth. of Teamsters, 882 F.2d 913, 915 (4th Cir. 1989); Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir. 1987); Marcus v. Director, 548 F.2d 1044 (D.C. Cir. 1976); Long Beach Federal Savings and Loan Association v. Federal Home Loan Bank Board, 189 F. Supp. 589 (S.D. Cal. 1960), reversed on other grounds, 295 F.2d 403 (9th Cir. 1961) (hereinafter Long Beach). A contrary rule "would only countenance and encourage unacceptable inefficiency in the administrative process," Marcus v. Director, 548 F.2d 1044 at 1051. Reviewing Respondent's bias charges in the light most favorable to Respondent, it is clear that the latest date on which he can be said to have discovered the facts on which he relies to prove disqualification is the date of receipt of the ALJ's Order Setting Matter for Hearing dated February 18, 1994. His second Motion to Disqualify and Affidavit, dated June 22, 1994, were clearly not filed at the first opportunity thereafter. Hence, Respondent waived his right to move to disqualify the ALJ on the bases set forth in his second Motion to Disqualify and Affidavit.
   Despite its untimeliness, as a matter of discretion, and to assist in any further proceedings below, the Board has addressed the sufficiency of Respondent's charges against the ALJ contained in the second Motion to Disqualify. Based upon a review of the record as a while, the Board concludes that Respondent's second Motion contains no evidence of personal bias on the part of the ALJ and is clearly insufficient for purposes of 5 U.S.C. § 556(b).
   In essence, Respondent charges that the ALJ denied a motion for continuance filed by him, but granted an earlier such motion by FDIC Enforcement Counsel; failed to rule on one of Respondent's motions; and, in his rulings, indicated that he did not believe Respondent's claim of illness and implied bad faith on the part of Respondent and his counsel.5 The Board finds that none of these charges (which are assumed to be true in determining the sufficiency of the motion) involve extrajudicial bias, or reveal a degree of antagonism that would make fair judgment impossible, as required by the well-established law governing disqualification of a decisionmaker for bias.

   [.3] A party claiming bias must overcome the presumption that administrative decisionmakers are persons "of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances." United States v. Morgan, 313 U.S. 409, 421 (1941).
   The recent decision of the Supreme Court in Liteky v. United States, 114 S. Ct. 1147 (1994), provides an excellent summary of the law concerning recusal for bias which is especially pertinent to the charges made in this case:

    First, judicial rulings alone almost never constitute valid basis for a bias or partiality motion.... [T]hey cannot possibly show reliance upon an extrajudicial source; and can only in the rarest circumstances evidence the degree of favoritism or antagonism required...was no extrajudicial source is involved. Almost invariably, they are proper grounds for appeal, not for recusal. Second, opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. They may do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible. An example of the latter...is the statement that was alleged to have been made by the District Judge in Berger v. United States, 255 U.S. 22...a World War I espionage case against German-American defendants: "one must have a very judicial mind, indeed, not [to be] prejudiced against the German Americans" because their "hearts are reeking with disloyalty."
114 S. Court 1147, at 1157.6

5 The Affidavit contains a number of more detailed charges which are either variations on these charges, or conclusory and argumentative disagreements with various ALJ orders. They do not warrant separate discussion.

6 The Liteky case involved motions to recuse a United States District Judge under 28 U.S.C. § 455, for "personal bias or prejudice." It is not directly binding, but is important guidance concerning qualification for bias.

{{1-31-95 p.A-2507}}    Applying the principles articulated above, the Board concludes that Respondent's second Motion and Affidavit are clearly insufficient to demonstrate personal bias on the part of the ALJ. There is nothing in the ALJ rulings and orders which hints of an extra-judicial source. Nor is there any evidence of that rare degree of favoritism or antagonism toward a party which would require recusal when no extrajudicial source is involved. Indeed, the Board finds that the ALJ correctly denied Respondent's motion to postpone the hearing because "Respondent provides no good cause for further extension," Order issued September 13, 1993; and notes that the ALJ granted Respondent postponements of the hearing totalling nine months.7 The Board also concludes that the additional bias allegations set forth in Respondent's Withdrawal and Exceptions concerning recent pre-hearing rulings of the ALJ, are also insufficient. As the Court held in Liteky v. United States, rulings and orders of the decisionmaker, even if incorrect, are rarely evidence of bias and prejudice. In summary, the Board concludes that Respondent's second Motion to Disqualify and Affidavit, and other bias allegations, are neither timely nor sufficient under 5 U.S.C. § 556(b). Our finding of insufficiency makes it unnecessary to address the remaining issue of good faith.
   3. The Board's Failure to Rule Earlier on Respondent's Motions to Disqualify the ALJ Does Not Violate the APA or Respondent's Due Process Rights, or Affect the Finality of the Board's Order.
   In his second Motion to Disqualify, Respondent argued that the FDIC may not hold a hearing in this matter before determining whether Respondent's Motion to Disqualify is timely, sufficient and in good faith, citing Long Beach. In his Exceptions, Respondent argues:

    The consequence of waiving the opportunity for a hearing before a biased judge is not the same as waiving a hearing before an unbiased judge.... By allowing the ALJ to continue to make his own determination as to his bias in clear contravention of the mandate of 5 U.S.C. § 556(b), the FDIC has deprived Respondent of his right to due process.
Respondent's Exceptions at 2, 3.

   [.4] The question of ALJ bias is a matter for determination by the Board pursuant to the APA, 5 U.S.C. § 556(b)8. However, there are compelling reasons for concluding that due process does not require the Board to determine the bias issue prior to a hearing on the underlying matter before the ALJ. First, unless there are exceptional circumstances, a decision by a federal judge not to disqualify himself or herself under 28 U.S.C. § 144 is ordinarily reviewable only upon appeal from the final decision of the court, Thomassen v. United States, 835 F.2d 727 (9th Cir. 1987); United States v. Gregory, 656 F.2d 1132 (5th Cir. 1981); In re Corrugated Container Antitrust Litigation, 614 F.2d 958 (5th Cir. 1980); Dubnoff v. Goldstein, 385 F.2d 717 (2d Cir. 1967). Thus, a litigant's right to due process is not violated by the necessity of litigating a matter before a decisionmaker who had refused to disqualify himself or herself for bias so long as there is an opportunity for later review.


7 Moreover, after careful review, the Board finds no evidence that the ALJ disbelieved Respondent's claim of illness. Rather, the ALJ properly required medical and other evidence, periodically updated, on which he could determine whether or not Respondent's illness made it impossible for Respondent to assist counsel. In the Board's view, it is not sufficient for Respondent to simply allege such inability, especially where the result would be a substantial delay of the proceeding. Therefore, the ALJ correctly insisted on current evidence on which to base such judgment.
   Respondent's charge that the ALJ "insinuated" bad faith on the part of Respondent and his counsel is based on the statement in the ALJ's order denying the first Motion to Recuse that:
   As to the issue of good faith, the undersigned makes no comment, leaving the timing, and the factual omissions in the Respondent's motion to speak for themselves.
   This statement was made in the ALJ's ruling under 5 U.S.C. § 556(b) which requires a determination whether the Motion was filed in good faith. The Board notes that if such a statement were considered evidence of bias, a party could obtain the disqualification of an ALJ by filing a frivolous motion to recuse and then claiming bias when the ALJ properly ruled that the motion was not filed in good faith, as required by section 556(b). This is one reason why remarks which are critical or disapproving of counsel or parties do not constitute a basis for a bias motion except in extraordinary circumstances.

8 That section provides in Part:
A presiding or participating employee may at any time disqualify himself. On the filing in good faith of a timely and sufficient affidavit of personal bias or other disqualification of a presiding or participating employee, the agency shall determine the matter as part of the record and decision in the case.

{{1-31-95 p.A-2508}}    The Board recognizes there may be circumstances where postponing review of the disqualification decision could result in unfairness or injustice. However, the agency's interlocutory review provisions, 12 C.F.R. § 308.28, allows the Board in its discretion to review the administrative law judge's ruling prior to the hearing and recommended decision.9
   The language in section 556(b) that the agency shall determine the matter of disqualification "as part of the record and decision in the case," clearly implies that the decision by the agency on disqualification should be determined after, rather than before, a hearing on the merits of the underlying matter. A later review after hearing will in many cases give the Board a better basis for determining whether the ALJ has shown bias against a party, or whether the party received a fair and impartial hearing before the ALJ. Furthermore, a pre-hearing review could result in an unnecessary determination of the bias issue by the Board because, for example, the recommended decision after hearing could be favorable to the respondent.
   The Long Beach case does not require a contrary result. There, the District Court held that a determination by the Bank Board of charges of bias against the Board "is a preliminary prerequisite to the right of the Board to hear the charges contained in" the Board Orders which were the basis of the administrative proceedings at issue. Id. at 612, 613.10 However, the Court of Appeals disagreed, stating,
In connection with the presentation of the Association's case-in-chief, as the examiner properly ruled, the Board should receive evidence of bias and prejudice on the part of its members.11
This ruling is consistent with the majority of reported cases under APA section 556(b) involving charges of bias against a hearing examiner made before hearing. The cases have not criticized the procedure of a hearing examiner ruling on the bias charge, followed by board review after hearing. See, Converse v. Udall, 262 F.Supp. 583 (D. Ore. 1966); Gipson v. Veterans Administration, 682 F.2d 1004 (D.C. Cir. 1982).
   Accordingly, the Board concludes that neither due process nor the APA are violated by requiring a respondent to proceed to hearing before a decisionmaker who has refused to recuse him- or herself for bias. Nor does the fact that Respondent was faced with such a hearing change the finality and unappealability of the Board's Order resulting from the Withdrawal.
   4. Respondent's Withdrawal of Request for Hearing Results in a Final and Unappealable Order of Disapproval.
   [.5] The Board agrees with the ALJ that the Withdrawal constitutes a waiver of opportunity for hearing. The consequence of affirmatively waiving the opportunity for a hearing by withdrawing the request is the same as failing to file a request for hearing in the first instance. See 12 C.F.R. § 308.112(b).
   [.6] The Board also agrees with the ALJ that a final order under this provision does not constitute an agreement with or approval of statements made as part of the Withdrawal. The Board finds that the final Order precludes relitigation of the Disapproval of Acquisition. If Respondent files a new application for approval of his acquisition, the Order will be res judicata and preclude consideration of the new application. The acquisition occurred four years ago, and is cast in stone. Any new application would involve the identical transaction and identical parties, the clas-


9 Here, Respondent did not request interlocutory review, and now argues that an interlocutory review request is not "mandatory." True, Respondent was not required to request it, nor was the Board required to grant it. But interlocutory review is the only procedure for pre-hearing review by the Board. Having chosen not to use it, Respondent cannot now argue that he was deprived of due process by the lack of pre-hearing review.
   Nevertheless, the Board rejects the ALJ's suggestion, in his Order issued July 1, 1994 at 3, that Respondent may have waived his right to argue ALJ bias before the Board by failing to request interlocutory review.

10 The Court also stated that due process requires an agency to hear charges that the hearing examiner was not properly appointed prior to the hearing before that examiner. Id. Long Beach is inapposite because the nature of the charged disqualifications—that the initial charges were void for board bias, and the improper appointment of the hearing examiner—is such that a hearing before the examiner would not give the reviewing board a better basis for its rulings. As noted above, post-hearing review of the issue of examiner bias is often more efficient and presents a better record for review.

11 295 F.2d 403, at 409. The Ninth Circuit reversed the District Court in Long Beach on other grounds, 295 F.2d 403 (9th Cir. 1961). Long Beach continues to be cited as to the need for a timely, sufficient and good faith affidavit of bias, and for the proposition that due process requires a fair hearing free of personal bias and interest on the part of the ALJ, but has not been cited for the proposition that the agency must determine the issue of bias prior to the administrative hearing.

{{1-31-95 p.A-2509}}sic situation for applying the doctrine of res judicata.12
   The letters from FDIC Enforcement Counsel on this issue are incorrect. The law is well settled that administrative decisions are normally given preclusive effect just as are judicial decisions. See, Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381 (1940); Woods v. Dunlop Tire Corp., 972 F.2d 36 (2d Cir. 1992); Restatement 2d of Judgments §§ 83(3) and (4). The exceptions to this general rule are not applicable here. See, In the Matter of Paul C. Hufnagle, Franklin State Bank, Franklin, Minnesota, Docket No. FDIC-91-62e, 2 P-H FDIC Enf. Dec. ¶8011 (1992); Porter & Dietsch, Inc. v. FTC, 605 F.2d 294 (7th Cir. 1979), cert. denied, 445 U.S. 950 (1980).
   If the Respondent were free to withdraw his request for hearing and file a new application not subject to res judicata, Respondent would control the timing of the agency's administrative docket and its ability to take final action. Indeed, successive filings and withdrawals could forestall adverse agency action indefinitely.
   Respondent cannot rely on the incorrect opinions contained in the FDIC Enforcement Counsel letters attached as Exhibits A and B to the Withdrawal. The letters state that the opinions expressed are those of FDIC Enforcement Counsel in the Chicago Regional Office. As such, they cannot bind either the ALJ or the Board.
   Nevertheless, it appears that Respondent may have relied on the opinions expressed by FDIC Enforcement Counsel in filing his Withdrawal. In the interests of fairness and of achieving finality with respect to this long-delayed matter in the most prompt and efficient manner, the Board will delay the effectiveness of its Order for 10 days after service on Respondent. If in that period Respondent rescinds his Withdrawal, the Order will not become effective, and this matter will be remanded to the ALJ, with instructions to set the matter for hearing at the earliest feasible date without further continuances.

VI. CONCLUSION

   The Board concludes that Respondent's charges of personal bias against the ALJ are neither timely nor sufficient under section 556(b) of the APA; that the Board's failure to rule on Respondent's Motion to Disqualify prior to a hearing is not a violation of the APA or Respondent's due process rights, nor does it affect the finality of the Board's Order; that the Withdrawal results in a final and unappealable Order of disapproval of Respondent's application under the CBCA, on the grounds stated in the Notice; and that such Order precludes relitigation of the disapproval of acquisition. However, in view of contrary advice concerning claim and issue preclusion given to Respondent by FDIC Enforcement Counsel, the effectiveness of the Order is stayed for 10 days following receipt by Respondent, to allow Respondent to file a rescission of his Withdrawal if he so chooses.

ORDER

   The Board of Directors of the Federal Deposit Insurance Corporation has considered the entire record in this proceeding, and it is
   HEREBY ORDERED that, pursuant to section 308.112(b) of the FDIC Rules of Practice and Procedure, 12 C.F.R. § 308.112(b), by reason of A. Patrick Tonti's Withdrawal of Request for Hearing dated July 7, 1994, Respondent's notice under section 7(j) of the Change in Bank Control Act, 12 U.S.C. § 1817(j), of his acquisition of 5,624 shares, representing 37 percent, of the stock of The Bartlett Farms Bank, Bartlett, Ohio ("Application"), is hereby disapproved under 12 U.S.C. § 1817(j) and the FDIC Rules of Practice and Procedure, 12 C.F.R. Part 308, for the reasons stated in the Notice of Disapproval of Acquisition of Control and Notice of Hearing dated December 21, 1992; namely, that the FDIC has determined that the competence, experience, and/or integrity of the Respondent is such that the acquisition is not in the interest of the Bank's depositors or in the interest of the public, for the following reasons:
   (1) The Superintendent of Banks for the State of Ohio had found that Respondent had violated section 1125.18 of the Ohio Revised Code, Ohio Rev. Code Ann. § 1125.18 (Anderson), as implemented by section 1301:1-4-06 of the Ohio Adminis-


12 Of course, if a properly filed pre-acquisition application is disapproved under the CBCA, a new application modifying the terms of the proposed acquisition may be filed to cure the reasons cited for disapproval.

{{1-31-95 p.A-2510}}trative Code, Ohio Admin. Code § 1301:1-4-06;
   (2) Respondent, in his capacity as a director, senior executive officer, and principal shareholder of the now-defunct Pioneer Savings and Loan Company, Marietta, Ohio ("Pioneer") had engaged in unsafe and unsound practices;
   (3) Respondent, as director and senior executive officer of the now-defunct Pioneer, failed to have an annual audit conducted and to submit the audit report for the year ending December 31, 1989 to the Office of Thrift Supervision;
   (4) Respondent, as a director, senior executive officer, and principal shareholder of The First Bank of Marietta, Marietta, Ohio ("Marietta"), failed to assemble and retain an experienced management team capable of operating Marietta in a safe and sound manner, which failure contributed to a Written Agreement between Marietta and the Superintendent of Banks for the State of Ohio;
   (5) Respondent, on numerous occasions between 1987 and 1991, charged personal expenses in the amount of at least $18,000 to Marietta.
   IT IS FURTHER ORDERED, that this Order shall not be construed as agreement with or approval of any statements made in the Withdrawal.
   IT IS FURTHER ORDERED, that this Order shall become effective ten (10) days following service on Respondent, and shall remain effective and enforceable except to the extent that, and until such time as, any provisions of this Order shall be modified, terminated, suspended, or set aside by the FDIC; provided, that if within the 10-day period Respondent files a rescission of his Withdrawal, this Order will not become effective and this proceeding will automatically be remanded to the ALJ, who shall in such event set the matter for hearing at the earliest feasible date without further continuances unless required by exceptional circumstances.
   By direction of the Board of Directors.
   Dated at Washington, D.C., this 8th day of November, 1994.
/s/ Leneta G. Gregorie
Acting Assistant Executive Secretary

____________________________________

RECOMMENDED DECISION AND ORDER

In the Matter of
Bartlett Farmers Bank
Bartlett, Ohio
(Insured State Nonmember Bank)
FDIC-92-357j
Walter J. Alprin, Administrative Law Judge:

   By Notice of Disapproval of Acquisition of Control and Notice of Hearing, issued December 21, 1992, the Board disapproved the application of A. Patrick Tonti ("Tonti" or "Respondent") to acquire control of Bartlett Farmers Bank, of Bartlett, Ohio. The said Notice contained the following admonition:

       The provisions of this NOTICE OF DISAPPROVAL shall become effective upon service and shall remain in effect until terminated by the FDIC or until final disposition thereof.
   Respondent thereafter filed a request for administrative hearing. After numerous delays, primarily at the request of Respondent, the hearing in this matter is scheduled to commerce on Tuesday, July 12, 1994.
   On July 8, 1994, Enforcement counsel filed with the undersigned, by fax, a "Response to Respondent's Withdrawal of Request for Hearing" dated July 7, 1994, which the undersigned had not received though the Certificate of Service indicates it was served on him at the same time as served on Enforcement counsel. At the telephoned request of the undersigned's attorney-advisor/law clerk, Respondent faxed a copy of the withdrawal, received late Friday afternoon. The fax did not contain the exhibits attached to the withdrawal, but a note on the transmittal form stated that hard copy with exhibits would be sent by mail.
   Enforcement counsel's response to the withdrawal noted that the effect on an absence of a request for hearing would in effect constitute a waiver of opportunity for hearing whereby the notice of disapproval shall constitute a final and unappealable order, 12 C.F.R. 308.112(b). Enforcement counsel requested the entry of a "final" order by the undersigned to such effect, without constituting an agreement with or approval of the statements made as part of Respondent's withdrawal. None of these matters has been {{1-31-95 p.A-2511}}presented by way of a motion, upon which a response is required prior to ruling.    A review of the document prepared by Respondent, which contains extensive allegations and arguments, virtually all of which have been presented and ruled on at least once before, and none of the rulings having been properly submitted to the Board for interlocutory review, indicates that rather than a withdrawal as stated in the title, the document constitutes no more than a further attempt to delay determination of the issues herein. Respondent unabashedly states that there will be submitted a subsequent application for approval of the same change in control "which Respondent intends to file," which would result in a hearing at a later date, hopefully before a different Administrative Law Judge, on the same issues.
   The undersigned agrees that a withdrawal of request for hearing shall by operation of law result in a final and unappealable order of disapproval on the grounds stated in the Notice. The pertinent regulation, 12 C.F.R. 308.112(b), Waiver of Hearing, provides that "Failure to request a hearing pursuant to this section shall constitute a waiver of opportunity for a hearing, and the notice of disapproval shall constitute a final and unappealable order." The consequence of affirmatively waiving the opportunity for a hearing by withdrawing the request is the same as failing to file a request for hearing in the first instance.
   The undersigned does not, however, have the authority to issue a final decision, or one terminating a proceeding as requested. The Rules of Practice and Procedure nevertheless explicitly give the undersigned authority "[t]o prepare and present to the Board of Directors a recommended decision as provided herein," 12 C.F.R. 308.5(b)(8).
   For all of the above reasons, the undersigned hereby submits the following

RECOMMENDED DECISION AND PROPOSED ORDER

   WHEREAS, On December 21, 1992, the Federal Deposit Insurance Corporation ("FDIC") issued a Notice of Disapproval of Acquisition of Control and Notice of Hearing herein; and further
   WHEREAS, The Notice stated a determination that the competence, experience, and/or integrity of the Acquiring Person, A. Patrick Tonti ("Tonti") is such that the acquisition is not in the interest of the interest of the depositors of the Bartlett Farmers Bank, of Bartlett, Ohio ("Bank") or in the interest of the public, as set forth at 12 U.S.C. § 1817(j)(7); and further
   WHEREAS, the above finding was based upon a allegations as follows:
   (1) That Tonti was found, pursuant to a final administrative order of the superintendent of Banks for the State of Ohio ("Superintendent") to have violated specified sections of the Ohio Revised Code, as implemented by specified sections of the Ohio Administrative Code,
   (2) That Tonti, in his capacity as a director, senior executive officer, and principal shareholder of the defunct Pioneer Savings and Loan, Marietta, Ohio ("Pioneer") engaged in unsafe and unsound practices;
   (3) That Tonti, in his capacity as a director, senior executive officer, and principal shareholder of the defunct Pioneer failed to have the annual audit conducted and to submit the audit report for the year ending December 31, 1989, to the Office of Thrift Supervision, as required by specified sections of the Rules and Regulations of the OTS as published in the Code of Federal Regulations,
   (4) That Tonti, in his capacity as a director, senior executive officer and principal shareholder of the First bank of Marietta, Marietta, Ohio, failed to assemble and retain an experienced management team capable of operating the Bank in a safe and sound manner, which failure contributed to the violation1 of a Written Agreement between Marietta and the Superintendent, and
   (5) That Tonti, on numerous occasions between 1987 and 1991, charged personal expenses in the amount of at least $18,000 to Marietta, and further
   WHEREAS, the said Notice contained the statement that "The provisions of this NOTICE OF DISAPPROVAL shall become effective upon service and shall remain in effect until terminated by the FDIC or until final disposition thereof," and further
   WHEREAS, Tonti prepared a document entitled "RESPONDENT'S WITHDRAWAL OF REQUEST FOR HEARING" and caused


1 The words "violation of" do not appear in the Notice, but were obviously omitted in error.

{{1-31-95 p.A-2512}}it to be served on July 7, 1994, by which Respondent makes various statements and arguments and "in no way waives any defenses, claims or rights that he may have to challenge any further disapproval issued by the FDIC," and further stating that Respondent intends to file a subsequent application,
   NOW THEREFORE, Board of Directors of the Federal Deposit Insurance Corporation finds and Orders that, pursuant to Rule 112(b) of the applicable Rules of Practice and Procedure applicable herein, 12 C.F.R. 112(b), upon the withdrawal of Request for Hearing, by operation of law the Notice of Disapproval of Change in Control issued by the Federal Deposit Insurance Corporation hereby constitutes a final and unappealable Order of Denial of Application upon the grounds set forth in the said Notice, and that this Order shall not constitute an agreement with or approval of statements made as part of the withdrawal of request for hearing.
/s/ Walter J. Alprin
Administrative Law Judge
Office of Financial Institution
Adjudication

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