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FDIC Enforcement Decisions and Orders
{{12-31-90 p.I-1}} Board of Directors granted FDIC's motion for special permission to appeal, quashed subpoena to testify, but denied FDIC's motion for a protective order as moot. (For further proceedings relating to this case, see [¶5137].)
[.1] Practice and ProcedureMotion for Special Permission to AppealTimeliness
[.2] Practice and ProcedureMotion for Special Permission to AppealIssue of First Impression
[.3] Practice and ProcedureEvidenceFDIC Board of ReviewSubpoena
[.4] Practice and ProcedureEvidenceSubpoenaGovernmental Deliberative Process Privilege
In the Matter of
On July 9, 1985, * * * ("Respondent") filed with the Administrative Law Judge ("ALJ") a request to issue subpoenas to testify at the administrative hearing or by deposition to those members of the Federal Deposit Insurance Corporation's ("FDIC") Board of Review who participated in the decision to issue the Notice of Assessment of Civil Money Penalties, Findings of Fact And Conclusions of Law, and Order To Pay ("Notice"). The purpose alleged by Respondent was to obtain testimony and/or depositions with respect to whether the Board of Review considered the proper statutory and regulatory factors in deciding to impose a civil money penalty on Respondent. On July 16, 1985, at the Prehearing Conference, the ALJ granted the Respondent's request for subpoenas and required that the Board of Review be made available for depositions no later than September 3, 1985.
[.1] 1. A Prompt Request to FDIC's Board of Directors Has Been Made
[.2] 2. The Subpoenas Raise a Significant Issue of First Impression 3. Interlocutory Review is Appropriate
Respondent cites various cases holding that interlocutory appeal of a district court's decision with respect to a discovery subpoena is not proper. This action, however, is before an administrative agency. Consequently, FDIC's rules governing administrative hearings control whether interlocutory appeal is appropriate. Under section 308.12(e), the Board of Directors has discretion to grant interlocutory motions to appeal adverse rulings of an ALJ if permission to appeal is promptly requested in C. Testimony of Members of the Board of Review Is Not Appropriate
[.3] 1. Respondent Mistakenly Seeks Board of Review Testimony to Establish the Administrative Record
[.4] 2. The Governmental Deliberative Process Privilege and the Governmental Mental Process Exemption Claim
Second, to be the subject of discovery, or in any event, to be admissible, information must be relevant to the issues in the proceeding. In this proceeding, the issues are (1) whether Respondent engaged in activities in violation of statutes, regulations or orders as set forth in the Notice, and (2) if such violation(s) occurred, what is the appropriate civil money penalty that should be assessed. Those issues will be resolved on the basis of the evidentiary record presented by the FDIC and subjected to scrutiny, rebuttal evidence and cross-examination by Respondent. The information considered by the Board of Review prior to issuing the Notice has no relevance to the Board's final decision in this matter. Consequently, the depositions and/or testimony sought by Respondent have little, if any, possible relevance to the issues in this proceeding and do not appear to be likely to lead to discoverable evidence. Third, with respect to the question of what factors the Board of Review considered in setting the amount of the proposed civil money penalty, the Minutes of the April 3, 1985 meeting of the Board of Review state: "WHEREAS, the Board of Review has taken into account the appropriateness of the penalty with respect to the financial resources and good faith of each Respondent, the gravity of the violations, the history of previous violations, and such other matters as justice may require." (Emphasis Added.) The factors set forth in those minutes by the Board of Review are those required to be considered by Section 18(j) of the FDI Act, 12 U.S.C. § 1828(j), in connection with the assessment of a civil money penalty. To the extent that Respondent seeks to question the individual members of the Board of Review concerning the statutory factors beyond that which is set forth in the minutes, it is the conclusion of the Board of Directors that such an inquiry would necessarily delve into the mental process through which such member determined the appropriate amount of the civil money penalty. Fourth, Respondent's reference to "thirteen factors" presumably refers to the factors set forth in the "Interagency Policy Regarding The Assessment Of Civil Money Penalties By The Federal Financial Institu- 2See, e.g., United States v. Nixon, 418 U.S. 683 (1974); 8 Wright & Miller, Federal Practice and Procedure ¶2019 at 167-69 (1982). 3 The privilege does not protect purely factual material or information. See, e.g., EPA v. Mink, 410 U.S. 73, 8788 (1973). {{12-31-90 p.I-5}}tions Regulatory Agencies," issued September 30, 1980. As with the inquiry discussed above, it is the view of the Board that beyond asking whether the thirteen factors were considered, any further inquiry would inevitably delve into the decisional process. At the same time, whatever the response obtained from the Board of Review, the inquiry would yield little, if any, evidence relevant to the issues in the proceeding. Respondent's final proposed area of inquiry concerning an alleged change in policy is based upon incorrect assumptions. The Board of Directors of the FDIC is the only body that has the authority to establish and modify "policy." Furthermore, the Board has not established a policy with regard to the assessment of civil money penalties other than as set forth in 12 U.S.C. § 1828(j) and the September 30, 1980 Interagency Policy Statement. Under the statute and regulations, the determination to assess and the amount of a civil money penalty is made on a case-by-case basis. There is no other uniform policy relating to determination of the amounts of civil money penalties. In any event, the Board of Review is not an appropriate body to be subjected to the discovery proposed by Respondent's third area of inquiry since it does not set policy. There remains only the balancing of the harm to the governmental decisional process against the need by Respondent for the information sought in the first and second areas of inquiry. In view of the role of the Board of Review,4 the at best marginal relevance of the information sought to be discovered, the allocation of the burden of proof to the FDIC, the opportunity for Respondent to cross examine FDIC witnesses, to call his own witness and to offer documentary evidence at the hearing, the Board of Directors finds that Respondent has not established a showing of need sufficient to defeat the governmental deliberative process privilege. Furthermore, Respondent has not shown that there is no other source of information that would meet his needs. We note in this regard that Respondent has already conducted documentary discovery concerning FDIC's civil money penalty assessments for 1985. In addition, the Regional Director's recommendation to the Board of Review has been made available to Respondent.
3. The Waiver Claim
For the reasons set forth herein, the Board (1) grants FDIC's Motion for Leave to File Special Appeal, and (2) grants the FDIC's Motion and Supplemental Motion to Quash Subpoenas. In view of our decision herein, it is unnecessary for the Board to consider FDIC's Motion for a Protective Order. Therefore, that motion is denied as moot. ORDER
The Board of Directors of the Federal Deposit Insurance Corporation ("Board"), having considered the Federal Deposit Insurance Corporation's Motion for Special Permission to Appeal From Granting of Request for Subpoena to Testify, Motion to Quash Subpoena to Testify and Supplemental Motion to Quash, and the memoranda in opposition filed by Respondents * * * and * * *, it is hereby ORDERED that: |
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