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The U.S. Supreme Court is considering whether to grant an appeal to Harry Calcutt III. AABD submitted an amicus brief supporting the appeal, mainly on the grounds that the Sixth Circuit Court of Appeals improperly corrected the flawed administrative record that was used to remove Mr. Calcutt from office.

Among other things, FDIC examiners reportedly produced a one-sided examination report influenced by examiner bias against Mr. Calcutt. There were extensive ex parte communications with a defaulted borrower, evidence of personal animus, and entrapment of Mr. Calcutt during an examination without proper notice of an investigation.

The FDIC then initiated a removal and lifetime ban from the banking industry based on the results of the examination and mistaken interpretations of statutory language that were so broad that they could support the removal of many bank directors and officers. Mr. Calcutt’s attorneys were then barred by the Administrative Law Judge from cross-examining the examiners for evidence of bias.

Despite finding numerous agency errors, the Sixth Circuit Court of Appeals chose to cleanse the record and rule in favor of the removal and ban, instead of remanding the case to the FDIC for further deliberation.

See our previous alert for more information about the case.

Wiley Rein (Thomas M. Johnson, Jr., counsel of record) prepared the brief.