Harry Calcutt III v. FDIC

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0122p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

┐
HARRY C. CALCUTT III,
│
Petitioner, │
> No. 20-4303
│
v. │
│
FEDERAL DEPOSIT INSURANCE CORPORATION, │
Respondent. │
┘

On Petition for Review of an Order of the Federal Deposit Insurance Corporation;
Nos. FDIC-12-568e; FDIC-13-115k.

Argued: October 20, 2021

Decided and Filed: June 10, 2022

Before: BOGGS, GRIFFIN, and MURPHY, Circuit Judges.
_________________

COUNSEL

ARGUED: Sarah M. Harris, WILLIAMS & CONNOLLY LLP, Washington, D.C., for
Petitioner. Michelle Ognibene, FEDERAL DEPOSIT INSURANCE CORPORATION,
Arlington, Virginia, for Respondent. ON BRIEF: Sarah M. Harris, Ryan T. Scarborough,
William B. Snyderwine, Helen E. White, WILLIAMS & CONNOLLY LLP, Washington, D.C.,
Barry D. Hovis, MUSICK, PEELER & GARRETT LLP, San Francisco, California, for
Petitioner. Michelle Ognibene, John Guarisco, FEDERAL DEPOSIT INSURANCE
CORPORATION, Arlington, Virginia, for Respondent. John M. Masslon II, WASHINGTON
LEGAL FOUNDATION, Washington, D.C., Ilya Shapiro, CATO INSTITUTE, Washington,
D.C., Michael Pepson, AMERICANS FOR PROSPERITY FOUNDATION, Arlington, Virginia,
Andrew J. Pincus, MAYER BROWN LLP, Washington, D.C., Robert D. Nachman, BARACK
FERRAZZANO KIRSCHBAUM & NAGELBERG LLP, Chicago, Illinois, for Amici Curiae.

BOGGS, J., delivered the opinion of the court in which GRIFFIN, J., joined. MURPHY,
J. (pp. 54–91), delivered a separate dissenting opinion.
 No. 20-4303 Calcutt v. FDIC Page 2

_________________

OPINION
_________________

BOGGS, Circuit Judge. Harry C. Calcutt III, a bank executive and director, petitions for
review of an order issued by the Federal Deposit Insurance Corporation (“FDIC”) that removes
him from his position, prohibits him from participating in the conduct of the affairs of any
insured depository institution, and imposes civil money penalties. In addition to attacking the
conduct and findings in his individual proceedings, he also brings several constitutional
challenges to the appointments and removal restrictions of FDIC officials.

His first hearing in these proceedings occurred before an FDIC administrative law judge
(“ALJ”) in 2015. Before the ALJ released his recommended decision, the Supreme Court
decided Lucia v. SEC, 138 S. Ct. 2044 (2018), which invalidated the appointments of similar
ALJs in the Securities and Exchange Commission (“SEC”). The FDIC Board of Directors then
appointed its ALJs anew, and in 2019 a different FDIC ALJ held another hearing in Calcutt’s
matter and ultimately recommended penalties.

Broadly, Calcutt’s claims fall into two categories. First, he brings structural
constitutional challenges, contending that: The FDIC Board of Directors is unconstitutionally
shielded from removal by the President; the FDIC ALJs who oversee enforcement proceedings
are also unconstitutionally insulated from removal; and the second hearing before a different ALJ
failed to afford him a “new hearing,” as mandated by Lucia. In his second group of challenges,
Calcutt attacks the procedure used and results reached in his post-Lucia adjudication. He begins
by contending that the ALJ abused his discretion by curtailing cross-examination about bias of
the witnesses. He then argues that the FDIC Board failed to find that he had committed
misconduct that caused “effects” for Northwestern Bank, as the governing statute, 12 U.S.C.
§ 1818(e)(1), requires. See Dodge v. Comptroller of Currency, 744 F.3d 148, 152 (D.C. Cir.
2014).

We deny his petition. Calcutt’s challenges to the removal restrictions at the FDIC are
unavailing, because even if he were to establish a constitutional violation, he has not shown that
 No. 20-4303 Calcutt v. FDIC Page 3

he is entitled to relief. See Collins v. Yellen, 141 S. Ct. 1761, 1789 (2021). We also conclude that
his 2019 hearing satisfied Lucia’s mandate. As for the limits on cross-examination at that
hearing, any error committed by the ALJ was harmless. Finally, there is substantial evidence in
the record to support the FDIC Board’s findings regarding the elements of § 1818(e)(1).

I. BACKGROUND

A. Overview of FDIC Enforcement Proceedings

Among other functions, the FDIC conducts examinations and investigations to ensure
banks’ safety, soundness, and compliance with statutes and regulations. See 12 U.S.C. § 1811.
It has the authority to impose a range of enforcement remedies. Id. § 1818. These include
removal and prohibition orders, in which the FDIC orders “an institution-affiliated party” to be
removed from office or “prohibit[s] any further participation by such party, in any manner, in the
conduct of the affairs of any insured depository institution.” Id. § 1818(e)(1). An institution-
affiliated party includes “any director, officer, employee, or controlling stockholder (other than a
bank holding company or savings and loan holding company) of, or agent for, an insured
depository institution.” Id. § 1813(u)(1).

Section 8(e) of the Federal Deposit Insurance Act (“FDI Act”), 12 U.S.C. § 1818(e), as
amended by the Financial Institutions Reform, Recovery, and Enforcement Act (“FIRREA”),
P.L. No. 101-73, § 903, 103 Stat. 183, 453–54 (1989), provides that FDIC may remove an
institution-affiliated party from office or prohibit the party from participating in conducting the
affairs of any insured institution upon establishing three elements: “(1) the banker committed an
improper act; (2) the act had an impermissible effect, either an adverse effect on the bank or a
benefit to the actor; and (3) the act was accompanied by a culpable state of mind.” De la Fuente
v. FDIC, 332 F.3d 1208, 1222 (9th Cir. 2003). First, the Board of Directors of the FDIC (“FDIC
Board” or “Board”) must find that the party has committed misconduct, including engaging in
“any unsafe or unsound practice in connection with any insured depository institution” or
committing “any act, omission, or practice which constitutes a breach of such party’s fiduciary
duty.” 12 U.S.C. § 1818(e)(1)(A)(ii)–(iii). Second, the Board must find that at least one
requisite effect has occurred, i.e., that “by reason of” the party’s action, the insured depository
 No. 20-4303 Calcutt v. FDIC Page 4

institution “has suffered or will probably suffer financial loss or other damage,” its depositors
have been or could be prejudiced, or the party has received financial gain or other benefit. Id.
§ 1818(e)(1)(B). Finally, the party must have had a culpable state of mind: The violation must
be one that “involves personal dishonesty” or “demonstrates willful or continuing
disregard by such party for the safety or soundness of such insured depository institution.” Id.
§ 1818(e)(1)(C).

The FDIC may also issue civil money penalties (“CMPs”) under a similar test. See
12 U.S.C. § 1818(i)(2). As relevant here, the agency may impose a “second tier” penalty of
$25,000 per day of violation when a party “recklessly engages in an unsafe or unsound practice
in conducting the affairs of [an] insured depository institution” or “breaches any fiduciary duty,”
and that action “is part of a pattern of misconduct,” causes more than minimal loss to the
institution, or benefits the institution-affiliated party. Id. § 1818(i)(2)(B).

To commence these enforcement proceedings, the FDIC first serves the party with a
notice of intention to remove the party from office and/or prohibit that party from participating in
other insured depository institutions. See id. § 1818(e)(1); see also id. § 1818(i)(2)(E)(i)
(requiring notice for civil money penalty). The notice must contain a statement of facts
establishing grounds for the removal and indicate a time and place for a hearing. Id.
§ 1818(e)(4). The institution-affiliated party may then appear at the hearing to contest the notice;
failure to appear constitutes consent to the order. Ibid.

An ALJ conducts the adversarial hearing in accordance with the Administrative
Procedure Act (“APA”), 5 U.S.C. §§ 551–559. See 12 U.S.C. § 1818(h)(1) (requiring hearings
to be “conducted in accordance with the provisions of chapter 5 of Title 5”). Under the
applicable regulations, an ALJ presiding over a removal proceeding has “all powers necessary to
conduct a proceeding in a fair and impartial manner and to avoid unnecessary delay,” 12 C.F.R.
§ 308.5(a), including the power to “receive relevant evidence and to rule upon the admission of
evidence and offers of proof,” id. § 308.5(b)(3); “[t]o consider and rule upon all procedural and
other motions appropriate in an adjudicatory proceeding . . . ,” id. § 308.5(b)(7); and “[t]o
prepare and present to the Board of Directors a recommended decision,” id. § 308.5(b)(8).
 No. 20-4303 Calcutt v. FDIC Page 5

The regulations also provide that evidence that would be admissible under the Federal
Rules of Evidence is admissible in adjudicatory proceedings, id. § 308.36(a)(2), and that except
as otherwise provided, “relevant, material, and reliable evidence that is not unduly repetitive is
admissible to the fullest extent authorized by the Administrative Procedure Act and other
applicable law,” id. § 308.36(a)(1). If evidence meets this latter standard but would be
inadmissible under the Federal Rules of Evidence, the ALJ may not deem the evidence
inadmissible. Id. § 308.36(a)(3).

After the hearing, the ALJ must file and certify a record of the proceeding, including a
recommended decision, recommended findings of fact, recommended conclusions of law, and a
proposed order. Id. § 308.38(a). A party then has thirty days to file written exceptions for the
FDIC Board’s review objecting to particular matters or omissions in the ALJ’s
recommendations, but a failure to file an exception on a particular matter is treated as a waiver of
that objection, and the Board need not consider any such objections that were not initially raised
before the ALJ. Id. § 303.39.

The Board then reviews the ALJ’s recommendations and issues a final decision. Id.
§ 308.40. Its review is “based upon review of the entire record of the proceedings,” although it
may limit its review to those arguments and exceptions that were raised by the parties. Id.
§ 308.40(c)(1). After the Board’s final decision, a party may petition for review in the United
States Court of Appeals for the District of Columbia Circuit or the circuit in which the
institution’s home office is located. 12 U.S.C. § 1818(h)(2).

B. FDIC Composition and Structure

The FDIC Board consists of five members: the Comptroller of the Currency, the Director
of the Consumer Financial Protection Bureau (“CFPB”), and three additional directors who are
appointed by the President with the advice and consent of the Senate. 12 U.S.C. § 1812(a)(1).
The Comptroller of the Currency and the CFPB Director are also appointed by the President with
Senate advice and consent. Id. § 2 (Comptroller of the Currency); id. § 5491(b)(2) (CFPB
Director). The Board also incorporates a measure of partisan balancing, with a maximum of
three directors permitted to be members of the same political party. Id. § 1812(a)(2).
 No. 20-4303 Calcutt v. FDIC Page 6

The three members of the Board not appointed by virtue of another office serve fixed
terms, and the parties agree that they are not removable at will. During the proceedings before
the ALJs in this case, the CFPB Director also enjoyed for-cause protection from removal under
12 U.S.C. § 5491(c)(3); however, before the Board issued its final order, the Supreme Court held
this removal restriction to be unconstitutional. Seila Law LLC v. Consumer Fin. Prot. Bureau,
140 S. Ct. 2183 (2020). The Comptroller of the Currency’s term lasts for five years “unless
sooner removed by the President, upon reasons to be communicated by him to the Senate,” and
Calcutt concedes that this provision provides for at-will removal. 12 U.S.C. § 2. In practice,
however, the FDIC Board has had several vacancies during the proceedings in Calcutt’s case;
additionally, at least one board member continued to serve after his term expired until a
successor was appointed. See 12 U.S.C. § 1812(c)(3) (providing for continuation of service of
appointed members after expiration of term before a successor is appointed).

The ALJs who hear FDIC removal and prohibition proceedings are part of a pool housed
in the Office of Financial Institution Adjudication (“OFIA”), an interagency body established by
FIRREA that presides over enforcement proceedings brought by the FDIC, the Office of the
Comptroller of the Currency (“OCC”), the Board of Governors of the Federal Reserve System
(“FRB”), and the National Credit Union Administration (“NCUA”). See FIRREA § 916, 103
Stat. 183, 486–87 (codified at 12 U.S.C. §1818 note); 12 C.F.R. § 308.3 (defining OFIA as “the
executive body charged with overseeing the administration of administrative enforcement
proceedings” of OCC, FRB, FDIC, and NCUA).1 These agencies signed an agreement that
provides for cost-sharing and specifies that the FDIC is the “Host Agency,” responsible for the
employment of an office staff consisting of ALJs and administrative employees. See Ex. L to
Emergency Motion for Stay Pending Review, at 1–6. The agreement also states: “Any change to
the Office Staff personnel shall be subject to the prior written approval of all Agencies.” Id. at 3.
Two ALJs currently make up the pool in OFIA. See Our Judges, Office of Financial Institution
Adjudication, https://www.ofia.gov/who-we-are/our-judges.html (last visited May 24, 2022).

1Initially, the Office of Thrift Supervision served as “host agency” for OFIA, but that agency’s
responsibilities were transferred to FRB, OCC, and FDIC in Title III of the Dodd-Frank Wall Street Reform and
Consumer Protection Act, Pub. L. No 111-203, 124 Stat. 1376 (2010).
 No. 20-4303 Calcutt v. FDIC Page 7

Until Lucia, these ALJs were not appointed by the FDIC. After the Supreme Court held
in Lucia that SEC ALJs were officers who must be appointed by the President, a court of law, or
a head of department, see 138 S. Ct. at 2051–54, the FDIC Board then newly appointed the same
ALJs without conceding that their previous appointments had been unconstitutional. The FDIC
ALJs may only be removed “for good cause” determined by the Merit Systems Protection Board
(“MSPB”) on the record after an opportunity for a hearing. 5 U.S.C. § 7521(a). Members of the
MSPB, in turn, may be removed by the President “only for inefficiency, neglect of duty, or
malfeasance in office.” 5 U.S.C. § 1202(d).

C. Calcutt’s Actions at Northwestern Bank

With this background, we turn to the facts of the present case. Calcutt was the President,
CEO, and Chairman of the Board of Directors of Northwestern Bank (the “Bank”), which had its
principal place of business in Traverse City, Michigan. He also served as a member of the
Bank’s senior loan committee and as CEO of the Bank’s holding company, Northwestern
Bancorp. The Bank was an insured state nonmember bank subject to the FDI Act, as well as
associated regulations and Michigan state laws. Calcutt retired from his positions at the Bank in
2013 and now serves as the Chairman of State Savings Bank in Michigan and its holding
company. Northwestern Bank was purchased by a competitor in 2014.

Under the Bank’s management structure, twenty employees reported directly to Calcutt,
including Richard Jackson, an Executive Vice President and board member. A commercial-loan
officer named William Green also worked for the Bank.

By 2009, the Bank’s largest loan relationship was with a group of nineteen limited
liability companies controlled by the Nielson family (the “Nielson Entities”). These businesses’
activities involved development of real estate, holding vacant and developed real estate, and
holding oil and gas interests. At that time, the Bank’s loans to the Nielson Entities (the “Nielson
Loans”) amounted to approximately $38 million. The value of the Nielson Entities’ holdings
during this time was approximately $112 million, with $7–9 million in cash or cash equivalents,
and $80 million available in real estate or oil and gas assets that could be used for collateral or
loan-payment purposes.
 No. 20-4303 Calcutt v. FDIC Page 8

As early as 2008, FDIC examiners identified several of the Nielson Entities as a single
borrower and identified the Bank’s loans to these businesses as a “concentration of credit”—
defined as a lending relationship that exceeds twenty-five percent of a bank’s Tier 1 capital.
Although in practice the Nielsons could use cash derived from one entity to pay the loans of
another entity, the loans were not cross-collateralized, meaning that the collateral in one Nielson
Entity did not secure loans to other Nielson Entities, despite the common control. Neither were
the loans supported by personal guarantees: If a Nielson Entity failed, the Bank could not
compel the Nielsons to personally satisfy the obligation. Loans lacking personal guarantees were
considered to be an exception to the Bank’s commercial-loan policy.

In April 2008, Calcutt and Green met Cori Nielson, one of the managers of the limited-
liability company that managed the Nielson Entities, and Autumn Berden, the chief financial
officer of that company. Calcutt and Green requested that the Nielsons stop reporting transfers
between Nielson Entities as intercompany loans on their balance sheets; instead, the bankers
recommended that when an entity needed funds, another entity should distribute funds to its
members, who could then loan or give the funds to the cash-strapped entity. Such a payment
mechanism would not be reported to regulators as an intercompany transfer and would conceal
the Nielson Entities’ “common use of funds.” According to the FDIC, over the following
months this strategy also masked the interrelationship of the Nielson Entities and hid loans to
Entities that had no positive cash flow by routing funds through other actors in the Nielson
group.

The relationship between the Bank and the Nielsons began to deteriorate during the Great
Recession. Although in May 2009 several of the Nielson Entities wrote to Calcutt stating that
they had sufficient cash flow for debt service, by August multiple loans were past due. More
were scheduled to mature on September 1. On August 10, Berden told the Bank that the Nielson
Entities would need to restructure their loans, and on August 21, Cori Nielson made a similar
communication. The Bank did not oblige, and the Nielson Entities stopped paying their loans on
September 1.

Over the following months, the Nielsons and the Bank continued to negotiate, but their
efforts were fruitless. The Nielsons sought measures such as debt forbearance, reduction of loan
 No. 20-4303 Calcutt v. FDIC Page 9

payments, or deeds in lieu of foreclosure,2 because ongoing problems in the real-estate market
had diminished their ability to repay existing debts. Calcutt, on the other hand, later testified that
he thought that the Nielsons were “posturing” and possessed sufficient funds to pay their loans.
The Bank attempted to convince the Nielsons to refinance and provide greater payments on their
loans. Cori Nielson later testified that in response to her communications, Calcutt expressed
concerns about raising “red flags” to regulators about the Bank’s relationship with the Nielson
Entities. By November 30, 2009, several of the loans to the Nielson entities were automatically
placed on nonaccrual status by the Bank, meaning that they were ninety days past due.

Also on November 30, the Bank and the Nielson Entities finally reached an agreement
that would bring all the loans current. First, the Bank extended a loan of $760,000 to Bedrock
Holdings LLC, one of the Nielson Entities (the “Bedrock Loan”), which would be used for the
companies’ future required loan payments until April 2010. After receipt of the loan, Bedrock
Holdings transferred the funds into accounts at the Bank for other Nielson Entities. Second, the
Bank agreed to release $600,000 worth of collateral in investment-trading funds that had been
granted to it by another Nielson Entity, Pillay Trading LLC (the “Pillay Collateral”).3 This
collateral release allowed the Nielson Entities to bring their past-due loans current. Finally, the
Bank renewed the Nielson Entities’ matured loans, including a loan of $4,500,000 to Bedrock
Holdings. The parties refer to this agreement, which took effect in December 2009, as the
“Bedrock Transaction.” Consequently, the Nielson Entities’ loans were removed from the
Bank’s nonaccrual list on December 1.

The FDIC Board would later find that the actions surrounding the Bedrock Transaction
violated the Bank’s commercial-loan policy. That policy required that “all commercial loans are
to be supported by a written analysis of the net income available to service the debt and by
written evidence from the third parties supporting the collateral value of the security,” yet the
Bank did not conduct these analyses or collateral appraisals prior to providing the Bedrock Loan

2Through a deed in lieu of foreclosure, “a mortgagee . . . take[s] a conveyance from the mortgagor in full or
partial satisfaction and as a substitute for foreclosure.” Restatement (Third) of Property (Mortgages) § 8.5 cmt. b
(Am. Law Inst. 1997).
3Asdiscussed below, a year later Northwestern Bank also released $690,000 in collateral from Pillay
Trading LLC. We refer to the $600,000 and $690,000 disbursements together as the “Pillay Collateral.”
 No. 20-4303 Calcutt v. FDIC Page 10

and releasing the Pillay Collateral. At the 2019 hearing, however, Calcutt testified that he
thought that the Bedrock Transaction was in the Bank’s best interest, because it provided time
for the Nielson Entities to pay off their debt and because he believed they had the resources to do
so.

Moreover, the commercial-loan policy required approval by two-thirds of the board of
directors for loans “where the total aggregate exposure is between 15 and 25 percent of the
Bank’s Regulatory Capital.” Ibid. The loans to the Nielson Entities were approximately half of
the Bank’s Tier 1 capital, thereby qualifying for the voting requirement. According to the FDIC,
however, the board did not approve the Bedrock Transaction until March 2010—approximately
four months after the disbursements. The loan write-up for the Bedrock Transaction that was
presented to the board in March 2010 also contained inaccurate information, including misstating
the purpose of the Bedrock Loan as “working capital requirements” and omitting that the
Bedrock Transaction had already occurred.

That loan write-up was prepared by a credit analyst based on information provided by
Green, and Calcutt and Jackson both initialed the document. Before the FDIC, Calcutt argued
that: (a) the write-up’s errors and mischaracterization could not be attributed to him; (b) the
board of directors was aware of the difficulties with the Nielson Entities in November 2009
because of materials it had received; and (c) the board of directors verbally approved the
Bedrock Transaction in November and December 2009. The ALJ and FDIC Board, however,
found against him on these points.

Calcutt’s actions surrounding the FDIC’s June 2010 examination of the Bank also
attracted scrutiny. In May 2010, Calcutt signed an Officer’s Questionnaire required by the
agency. The first question required him to list the loans that the Bank had renewed or extended
since the previous year’s examination by accepting separate notes for the payment of interest or
without fully collecting interest, as well as any loans made for the direct benefit of anyone other
than the named recipients of the loans. On the questionnaire, Calcutt answered that he was not
aware of any such loans. He later testified that these answers were incorrect in light of the
Bank’s activities with the Nielson Entities, but argued that the misstatements were “inadvertent
and unintentional.” (Brackets omitted.)
 No. 20-4303 Calcutt v. FDIC Page 11

Additionally, Calcutt participated in a decision to sell several Nielson Entity loans to two
of Northwestern Bank’s affiliates in May 2010, shortly before the FDIC examiners were due to
arrive. Green told Berden that he and Calcutt would continue to serve as the points of contact on
those loans. In late September 2010, the Bank repurchased the loans, at which point the loans
were delinquent and past maturity.

Despite these actions, by September 2010 the Nielson Entities’ position remained
precarious. Beginning on September 1, they again stopped making payments on their loans.
Several additional months of negotiations ensued, and in December 2010 the parties agreed to an
additional release of $690,000 of collateral from Pillay Trading LLC to fund the Nielson
Entities’ debt service from September 2010 to January 2011. The Bank’s board of directors
agreed to this arrangement. At the end of that period, however, the Nielson Entities yet again
stopped making payments, and they have been in default since then.

D. The 2011 Examination

Shortly before the FDIC’s 2011 regular examination of the Bank was set to begin on
August 1, 2011, Cori Nielson sent the agency a binder with approximately 267 pages of
correspondence between herself, Berden, Green, and Calcutt. The binder’s contents went
beyond the correspondence that FDIC examiners had found in the Bank’s loan file. According to
Calcutt, Nielson’s move also began a series of actions in which she and Berden improperly
influenced the FDIC’s Case Manager, Anne Miessner, and Miessner became biased against
Calcutt while participating in the examination.

During his September 14, 2011 meeting with examiners from the FDIC and the Michigan
Office of Financial and Insurance Regulation,4 Calcutt made several false statements about the
Bedrock Transaction. First, in response to a question about his understanding as to the purpose
of the Bedrock Loan, Calcutt said that the funds were meant to provide “working capital” in
connection with an acquisition of another business, although their true purpose was to help pay
off the loans to Nielson Entities. Second, when examiners asked him about the release of the
Pillay Collateral, he responded, “I thought we still had them,” although he had authorized

4This agency has been renamed the Michigan Department of Insurance and Financial Services.
 No. 20-4303 Calcutt v. FDIC Page 12

releases of the collateral in 2009 and 2010. Third, when queried about how the Nielson Entities
managed to bring their loans current in December 2010, he answered that they used their “vast
resources between oil, gas, and rentals,” although the December 2010 release of Pillay Collateral
was in fact used to satisfy these obligations.

In its 2011 examination, the FDIC also noted that the Nielson relationship “should have
been reported as nonaccrual on quarterly Call Reports beginning no later than December 2009,”
and that its omission “has resulted in a material overstatement in earnings both in the form of
falsely inflated interest income and of grossly understated provision expense.” Calcutt signed
the Call Reports, yet he later testified that he was not involved in their preparation.

Ultimately, the FDIC’s 2011 examination report identified the Bank’s failures in securing
and analyzing the Bedrock Transaction, its reporting inaccuracies, and its misstatements during
the examination. It ordered the Bank to charge off $6.443 million on the loans to Nielson
Entities, which represented the amount that the Bank would be unlikely to collect. 5 On July 31,
2012, the Bank charged off an additional $30,000 specifically on the Bedrock Loan.

E. Administrative Proceedings

1. The 2015 Hearing

On April 13, 2012, the FDIC formally opened an investigation into the Bank’s officers.
Its investigation ended on August 20, 2013, and the agency issued a Notice of Intention to
Remove from Office and Prohibit from Further Participation against Calcutt, Jackson, and
Green, as well as a notice of assessment of civil money penalties (the “Notice”). In 2015, both
Jackson and Green stipulated to orders prohibiting them from banking activity, and Jackson
agreed to a $75,000 CMP. Calcutt proceeded to discovery and further administrative
proceedings.

In September 2015, ALJ C. Richard Miserendino held an eight-day hearing on Calcutt’s
charges. Among the several witnesses who testified were Calcutt, Jackson, Nielson, Berden,
Miessner, and Dennis O’Neill (one of the FDIC examiners). ALJ Miserendino released a

5The parties disagree about whether a charge-off necessarily qualifies as a loss. See infra at 45.
 No. 20-4303 Calcutt v. FDIC Page 13

recommended decision on June 6, 2017. However, before the Board issued its final decision, it
stayed the case pending the Supreme Court’s decision in Lucia, because ALJ Miserendino had
not been appointed by an agency head.

2. The 2019 Hearing

Following Lucia, the FDIC Board formally appointed Miserendino and its other ALJ,
Christopher B. McNeil, then remanded and reassigned each ALJ’s pending cases to the other
ALJ “for a new hearing and a fresh reconsideration of all prior actions, including summary
dispositions, taken before the hearing.” See FDIC Resolution Seal No. 085172, Order in Pending
Cases (July 19, 2018). The Board permitted each new ALJ to conduct a paper hearing on
remand, but if a party objected to the paper hearing, the Board ordered that the ALJ “must
conduct a new oral hearing in accordance with 12 C.F.R. § 308.35, except that the ALJ may
accept the written transcript of prior testimony of any witnesses for which the parties agreed to
accept such testimony.”

Calcutt’s case was reassigned to ALJ McNeil, who stated that he would conduct an oral
hearing and requested that the parties submit objections to ALJ Miserendino’s prehearing
rulings. In response, Calcutt asserted that the prior proceedings were entirely void under Lucia
because the prior ALJ had not been appointed by an agency head. ALJ McNeil rejected this
argument, and proceeded to request that the parties submit specific examples where the prior
proceeding’s outcome turned on evidence that should have been included or excluded, or
“elements, such as witness demeanor, that are not readily determined from a review of the
written record.”

Calcutt then reasserted his argument that “the original proceeding was void ab initio” and
objected to the inclusion of the record from the 2015 proceedings because the case “turn[ed]
entirely on credibility assessments.” In an order dated March 19, 2019, ALJ McNeil rejected
these arguments, concluding that the second hearing would not be de novo, and that “[t]he prior
proceedings have not been deemed void ab initio, but instead serve as the primary source of the
evidentiary record, subject to review and reconsideration by the new ALJ.” ALJ McNeil went
on to observe that although credibility assessments were material to the decision of the case,
 No. 20-4303 Calcutt v. FDIC Page 14

Calcutt had not established that a review of the 2015 hearing transcript would be hindered by an
inability to view witnesses’ demeanor. Finally, he rejected Calcutt’s objections to the admission
of several exhibits from the 2015 proceedings.

On March 20, 2019, ALJ McNeil released an additional prehearing order, which among
other things specified that the parties should identify witnesses by May 15, 2019 and indicate
each witness’s expected testimony. The order specified that “during the evidentiary hearing,
witness testimony will be limited to the descriptions provided in this summary.” Calcutt sought
an interlocutory appeal before the FDIC Board on ALJ McNeil’s limitations on the oral hearing.
The Board granted his request for a new oral hearing on all issues considered at the prior hearing,
including live witness testimony, but it denied his request for an entirely new proceeding as
untimely.

In the next prehearing order, ALJ McNeil granted enforcement counsel’s motions to
strike Calcutt’s affirmative defenses of laches, entrapment, and examiners’ violation of the
agency’s own procedural rules. Then, in response to the parties’ motions in limine, he permitted
introduction of Green and Jackson’s testimony and the parties’ stipulations at the 2015 hearing,
among other evidentiary rulings.

The hearing lasted from October 29 to November 6, 2019. Calcutt was among twelve
witnesses who testified. During the proceedings, Calcutt’s counsel unsuccessfully attempted to
cross-examine witnesses, including Berden, Miessner, and Nielson, about the theory that
Miessner and the FDIC were biased against Calcutt due to their relationship with the Nielsons.
In sustaining enforcement counsel’s objections to this testimony, ALJ McNeil reasoned that
these questions were outside the scope of direct examination, and that in accordance with his
March 20, 2019 order, Calcutt could have identified these witnesses in a prehearing submission
as subject to questioning about bias but failed to do so.

On April 3, 2020, ALJ McNeil issued the Findings of Fact, Conclusions of Law, and
Recommended Decision on Remand (the “Recommended Decision”), finding that Calcutt’s
actions surrounding the Bedrock Transaction amounted to unsafe or unsound practices and
breached his fiduciary duties of care and candor; that these actions caused the Bank to suffer
 No. 20-4303 Calcutt v. FDIC Page 15

damages and financially benefitted Calcutt; and that the actions involved personal dishonesty and
willful and continuing disregard for the Bank’s safety and soundness. See 12 U.S.C.
§ 1818(e)(1). Finding that Calcutt’s actions satisfied the requirements for a removal and
prohibition order and civil money penalties, ALJ McNeil recommended that Calcutt be
prohibited from banking and assessed a $125,000 CMP.

Calcutt filed exceptions to the FDIC Board, challenging many of these findings and
conclusions. He also argued that the proceedings were invalid because the restrictions on ALJ
McNeil’s removal were unconstitutional, and because the new hearing granted after Lucia did
not remedy the Appointments Clause violation in the previous proceedings before ALJ
Miserendino. He did not argue that the Board was also improperly shielded from removal.

Upon review, the FDIC Board accepted ALJ McNeil’s findings and conclusions, and on
December 15, 2020, it issued a final Decision and Order to Remove and Prohibit from Further
Participation and Assessment of Civil Money Penalties (the “Removal and Prohibition Order”).
The Board concluded that Calcutt’s involvement with the Bank’s loans to the Nielson Entities, as
well as his misrepresentations to regulators and the board of directors, were both unsafe and
unsound practices and breaches of his fiduciary duties. See 12 U.S.C. § 1818(e)(1)(A). It also
found that sufficient effects had occurred by reason of Calcutt’s malfeasance: loan charge-offs;
the Bank’s increased investigative, legal, and auditing expenses; and Calcutt’s receipt of
dividends from the Bank’s holding company that reflected the Nielson portfolio’s inflated value.
See 12 U.S.C. § 1818(e)(1)(B). And it concluded that Calcutt acted with the requisite
culpability. See 12 U.S.C. § 1818(e)(1)(C). The Board similarly upheld ALJ McNeil’s
conclusions regarding the appropriateness of the civil money penalty. See 12 U.S.C. § 1818(i).
Finally, it rejected Calcutt’s exceptions regarding the ALJ’s insulation from removal, the
adequacy of the new hearing after Lucia, the ALJ’s evidentiary rulings, the statute of limitations,
and the ALJ’s bias.

Calcutt petitioned this court for review the following day. On December 21, 2020, he
moved for an emergency stay. A panel of this court granted the stay on January 5, 2021. We
have jurisdiction over Calcutt’s petition for review of the FDIC’s order under 12 U.S.C.
§ 1818(h)(2).
 No. 20-4303 Calcutt v. FDIC Page 16

II. STANDARD OF REVIEW

The judicial-review provisions of the APA apply to FDIC removal and prohibition orders
and orders assessing CMPs. 12 U.S.C. § 1818(h)(2). Accordingly, we must hold unlawful and
set aside agency actions, findings, or conclusions that are “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law”; “contrary to constitutional right, power,
privilege, or immunity”; “in excess of statutory jurisdiction, authority, or limitations”;
“without observance of procedure required by law”; or “unsupported by substantial evidence.”
5 U.S.C. § 706(2). Furthermore, “due account shall be taken of the rule of prejudicial error.”
Ibid.; see Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 664, 659–60 (2007)
(explaining that this statutory language refers to a harmless-error rule). Though a court does not
“substitute its judgment for that of the agency” over decisions within the agency’s delegated
authority in applying the APA’s arbitrary-and-capricious standard, the agency’s conclusions must
still be based on “reasoned decision making.” Wollschlager v. FDIC, 992 F.3d 574, 581–82 (6th
Cir. 2021).

We review other agency determinations differently. Questions of law are reviewed
de novo, but we defer to an agency’s interpretation of a provision in a statute that it is entrusted
with administering, if (1) Congress has not “directly spoken to the precise question at issue,” and
(2) “the agency’s answer is based on a permissible construction of the statute.” N. Fork Coal
Corp. v. Fed. Mine Safety & Health Rev. Comm’n, 691 F.3d 735, 739 (6th Cir. 2012) (quoting
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984)). And an
agency’s factual findings are reviewed for substantial evidence, which is “more than a scintilla of
evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Gen. Med., P.C. v. Azar, 963 F.3d 516, 520 (6th Cir.
2020) (quoting Cutlip v. Sec’y of Health & Hum. Servs., 25 F.3d 284, 286 (6th Cir. 1994)).
“The substantiality of evidence must take into account whatever in the record fairly detracts from
its weight.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).
 No. 20-4303 Calcutt v. FDIC Page 17

III. REMOVAL PROTECTIONS

Calcutt maintains that two features of the structure of the FDIC violate Article II and the
separation of powers and thus compel invalidation of the agency’s proceedings against him.
First, relying principally on Seila Law, he argues that the members of the FDIC Board are
unconstitutionally insulated from removal by the President. Second, he contends that the FDIC’s
ALJs are insulated by multiple levels of for-cause protection in contravention of the Supreme
Court’s holding in Free Enterprise Fund v. Public Company Accounting Oversight Board,
561 U.S. 477 (2010).

Neither alleged infirmity, however, compels invalidation of the FDIC proceedings against
Calcutt. As the Court recently explained in Collins v. Yellen, even if an agency’s structure
unconstitutionally shields officers from removal, a party challenging the agency’s action is not
entitled to relief unless that unconstitutional provision “inflict[s] compensable harm.” 141 S. Ct.
at 1789. Calcutt has not demonstrated that the removal protections of the FDIC Board or the
FDIC ALJs caused such harm to him.

A. FDIC Board Structure

We first address Calcutt’s challenge to the FDIC Board’s structure. To start, we conclude
that Calcutt has not forfeited this claim. However, Calcutt has not demonstrated that the
purported constitutional infirmity inflicted harm. See Collins, 141 S. Ct. at 1789. Thus, he is not
entitled to invalidation of the proceedings on this basis.

1. Issue Exhaustion

At the outset, we disagree with the argument by the FDIC that Calcutt has forfeited his
challenge to the Board’s removal protections by not raising it in his exceptions to the
recommended decision of ALJ McNeil. This is a question of “issue exhaustion,” a rule in many
administrative contexts that requires a party to present an issue to an agency before pursuing
judicial review on that issue. Carr v. Saul, 141 S. Ct. 1352, 1358 (2021).
 No. 20-4303 Calcutt v. FDIC Page 18

We have recognized three types of issue-exhaustion requirements. First, many
“requirements of administrative issue exhaustion are largely creatures of statute.” Sims v. Apfel,
530 U.S. 103, 107 (2000). Second, an agency’s regulations may require exhaustion, id. at 108,
so long as the regulations “comport with the statute” and are not applied arbitrarily, Island Creek
Coal Co. v. Bryan, 937 F.3d 738, 747 (6th Cir. 2019). Third, a court may impose an issue-
exhaustion requirement without either a statute or regulation. Sims, 530 U.S. at 108; see Bryan,
937 F.3d at 747–48 (describing “prudential exhaustion” and its unclear doctrinal source). In this
last context, “[t]he desirability of a court imposing a requirement of issue exhaustion depends on
the degree to which the analogy to normal adversarial litigation applies in a particular
administrative proceeding.” Carr, 141 S. Ct. at 1358 (quoting Sims, 530 U.S. at 109). This
resemblance to an adversarial litigation in turn depends on “whether claimants bear the
responsibility to develop issues for adjudicators’ consideration.” Ibid.

The FDIC argues that its regulations (namely 12 C.F.R. § 308.39(b)) compelled Calcutt
to raise any Appointments Clause challenge to the Board’s structure in his exceptions to the
Recommended Decision before raising them before this court. Moreover, the agency adds,
Carr’s limitation on imposing issue-exhaustion requirements in non-adversarial proceedings do
not apply here, because Calcutt’s adjudication was adversarial.

Calcutt responds that § 308.39(b) requires exhaustion only of issues over which the
agency has jurisdiction, and that because agencies lack “authority to entertain a facial
constitutional challenge to the validity of a law,” he did not need to exhaust the removal issue
before the ALJ or the Board. Reply Br. 2 (quoting Jones Bros., 898 F.3d at 673); see 12 C.F.R.
§ 308.39(c)(1) (stating that exceptions “must be confined to the particular matters in, or
omissions from, the administrative law judge’s recommendations”). Relatedly, he argues that an
agency proceeding is an inappropriate forum to consider a structural constitutional claim such as
the Board’s removability, because the Board has no special expertise in Appointments Clause
jurisprudence and has previously disclaimed authority to entertain constitutional challenges to
statutes, meaning that raising this issue before the Board would have been futile.

We think Calcutt has the better of the argument, and that in the “particular administrative
scheme at issue” in this case, no statute, regulation, or prudential principle required him to raise
 No. 20-4303 Calcutt v. FDIC Page 19

his challenge to the FDIC Board during the administrative proceedings. Joseph Forrester
Trucking v. Dir., Off. of Workers’ Comp. Programs, 987 F.3d 581, 590 (6th Cir. 2021) (quoting
Weinberger v. Salfi, 422 U.S. 749, 765 (1975)). To begin with, the judicial review provision of
the FDI Act, 12 U.S.C. § 1818(h), says nothing bearing on exhaustion. We have explained that a
statute must contain language “directing parties to raise issues” before the agency in order to
create a statutory issue-exhaustion requirement. See Bryan, 937 F.3d at 749; Jones Bros., Inc. v.
Sec’y of Lab., 898 F.3d 669, 673–74 (6th Cir. 2018).

The applicable FDIC regulations hit closer to the mark. They provide that the “[f]ailure
of a party to file exceptions . . . is deemed a waiver of objection thereto.” 12 C.F.R.
§ 308.39(b)(1). This text might be read to create an issue-exhaustion requirement in light of our
decision in Bryan, where we detected an issue-exhaustion requirement in a regulation requiring
that a petition for review list “specific issues to be considered” for appeals from Black Lung
Benefits Act adjudications to the Benefits Review Board. 937 F.3d at 749 (quoting 20 C.F.R.
§ 802.211(a)). However, there is an important difference between Bryan and this case. Calcutt
raises a facial constitutional challenge to the FDI Act, and the FDIC has no power to invalidate
its own organic statute; thus, it could never entertain Calcutt’s separation-of-powers challenge to
the FDIC Board in the first place. See Jones Bros., 898 F.3d at 673–74 (reading statute not to
impose issue-exhaustion requirement on facial constitutional challenges where agency could not
“invalidate the statute from which it derives its existence and that it is charged with
implementing”). True, we have explained that an agency may entertain certain facial
constitutional challenges and therefore impose issue-exhaustion requirements where it has long
asserted that authority. See Joseph Forrester Trucking, 987 F.3d at 588–89; Bryan, 937 F.3d at
753. But the FDIC Board has previously disclaimed the authority to determine the
constitutionality of statutes. See Matter of the Bank of Hartford, No. FDIC-92-212kk, at A-2525
(FDIC Apr. 11, 1995), https://www.fdic.gov/bank/individual/enforcement/5223.html (last visited
June 8, 2022)). Though the FDIC now offers a list of examples in which it has considered
constitutional claims in adjudications, almost none of those decisions considered a constitutional
challenge to the authority or structure of the FDIC, and the decision that did so—Matter of ***,
 No. 20-4303 Calcutt v. FDIC Page 20

No. FDIC-85-363e, 1986 WL 379631 (FDIC Apr. 21, 1986)—predates Bank of Hartford.6 And
even if we recognize that the FDIC has asserted authority to decide some constitutional issues,
we cannot say that this constitutes an established practice for the type of separation-of-powers
claim at issue here.

A further consideration counsels against imposing an issue-exhaustion requirement here:
Calcutt’s challenge to the removal protections of the FDIC Board is a structural constitutional
challenge over which the FDIC Board has no special expertise. See Carr, 141 S. Ct. at 1360.
And had Calcutt raised this challenge before the Board, his efforts would have been futile.
See id. at 1361 (“[T]his Court has consistently recognized a futility exception to exhaustion
requirements.”).7 To illustrate, consider what remedy the Board could have offered if Calcutt
had raised the issue and the Board had agreed that it was unconstitutionally shielded from
removal. The remedies granted by Article III courts, such as severing and striking the Board’s
for-cause protections from the FDIC’s organic statute, would have been unavailable, because the
Board, an agency of the Executive Branch, cannot edit its own organic statute. Cf. Seila Law,
140 S. Ct. at 2207–09. Similarly, the Board could hardly have told the President to treat it as if it
had no protections from removal, since an agency cannot compel the President to act (let alone
violate a statute). Another possibility would be for it to vacate Calcutt’s penalty, but that would
not resolve the constitutional issue, because the removal restrictions would persist. Requiring
issue exhaustion in this situation would have been a pointless exercise.

In sum, Calcutt has not forfeited his claim that the FDIC Board is unconstitutionally
insulated from removal.

6This is not to say that the FDIC has disavowed authority to address any constitutional claim. As the FDIC
notes, it has previously addressed Appointments Clause and separation-of-powers challenges to ALJs. See Matter of
Sapp, Nos. FDIC-13-477(e), FDIC-13-478(k), 2019 WL 5823871, at *18–19 (FDIC Sept. 17, 2019); Matter of
Landry, No. FDIC-95-65e, 1999 WL 440608, at *27–29 (FDIC May 25, 1999); Matter of Leuthe, Nos. FDIC-95-
15Ee, FDIC-95-16k,1998 WL 438323, *10–11 (FDIC June 26, 1998). Those decisions, however, did not concern a
separation-of-powers challenge to the FDIC Board.
7While the Supreme Court has cautioned that courts should hesitate to apply exceptions to mandatory
exhaustion requirements in a statute, see Ross v. Blake, 136 S. Ct. 1850, 1857–58 (2016), that concern does not
apply here because, as we have explained, the FDI Act does not clearly mandate an issue-exhaustion requirement.
 No. 20-4303 Calcutt v. FDIC Page 21

2. FDIC Board Structure

Calcutt would have us hold that the FDIC Board is unconstitutionally shielded from
removal and therefore asks us to invalidate his entire proceeding. Under the framework set out
by the Supreme Court’s recent separation-of-powers decisions, however, he is not entitled to
invalidation of his proceedings. See Collins, 141 S. Ct. at 1783–89; Seila Law, 140 S. Ct. at
2198–2204. In particular, Collins indicates that Calcutt is not entitled to the relief he seeks,
because he has not specified the harm that occurred as a result of the allegedly unconstitutional
removal restrictions. See 141 S. Ct. at 1788–89.

Article II of the Constitution states that “[t]he executive Power shall be vested in a
President,” U.S. Const. art. II, § 1, cl. 1, and requires the President to “take Care that the Laws be
faithfully executed,” id. art. II, § 3. This language establishes a core principle of constitutional
separation of powers: “[T]he President’s removal power is the rule, not the exception.” Seila
Law, 140 S. Ct. at 2206; see also Myers v. United States, 272 U.S. 52, 163–64 (1926).

In Seila Law, the Court provided the framework for analyzing the constitutionality of a
restriction on the President’s removal authority. 140 S. Ct. at 2198. At the first step, we ask
whether an officer’s tenure protection falls within an established exception to the general
removal authority. Id. at 2198. As relevant here, one such exception, identified in Humphrey’s
Executor v. United States, 295 U.S. 602 (1935), permits for-cause removal protections for
“multimember expert agencies that do not wield substantial executive power.” Seila Law,
140 S. Ct. at 2199–2200.8 To determine whether an agency falls within this category, we
consider whether (a) the agency is a “body of experts,” id. at 2200 (quoting Humphrey’s Ex’r,
295 U.S. at 624); (b) the agency is nonpartisan or balanced along partisan lines, ibid.; and (c) the
agency is closer to “a mere legislative or judicial aid” that “was said not to exercise any
enforcement power,” id. at 2199–2200, or rather an enforcement body that may “promulgate
binding rules,” “unilaterally issue final decisions awarding legal and equitable relief in

8The Seila Law Court also recognized an exception for “inferior officers with limited duties and no
policymaking or administrative authority” under Morrison v. Olson, 487 U.S. 654 (1988). See Seila Law, 140 S. Ct.
at 2199–2200. However, this exception does not apply to the FDIC Board, which qualifies as the head of a
department. See Free Enter. Fund, 561 U.S. at 512–13 (explaining that multimember commissions can qualify as
head of a department).
 No. 20-4303 Calcutt v. FDIC Page 22

administrative adjudications,” and “seek daunting monetary penalties against private parties on
behalf of the United States in federal court,” id. at 2200.

At the second step, if an agency structure does not fall within an established exception,
we must determine “whether to extend those precedents to the ‘new situation.’” Seila Law,
140 S. Ct. at 2201 (quoting Free Enter. Fund, 561 U.S. at 483). In concluding that the CFPB
Director was unconstitutionally shielded from removal, the Seila Law Court emphasized two key
features: the historical novelty of an agency headed by a single director removable only for
cause, and the inconsistency of this design with constitutional structure. Id. at 2201–04.

As for the historical inquiry, the Court canvassed American history and found only
“modern and contested” examples of agencies headed by a single director who enjoyed good-
cause tenure, such as the Federal Housing Finance Agency (“FHFA”) Director, and a “one-year
blip” during the Civil War in which the Comptroller of the Currency received for-cause
protections. Id. at 2202; see also Collins, 141 S. Ct. at 1783 (holding that removal restriction for
FHFA Director was unconstitutional, and that Seila Law was “all but dispositive” on the
question).

As for the structural inquiry, the Court underscored that the constitutional scheme’s
combination of the separation of powers and democratic accountability foreclosed
executive officers from exercising significant authority without direct presidential supervision.
The Constitution emphasizes the division of power, but it also recognized the need for an
“energetic executive” to respond quickly and flexibly to challenges. Seila Law, 140 S. Ct. at
2203 (discussing The Federalist No. 51 (James Madison) and The Federalist No. 70 (Alexander
Hamilton)). To resolve these dueling priorities, the Constitution makes the President directly
accountable to the American people through elections, allowing him to delegate authority to
subordinate officials to complete the tasks of governance so long as that delegated authority
“remains subject to the ongoing supervision and control of the elected President.” Ibid. The
CFPB Director’s for-cause protections violated this structure because, by eliminating the
President’s ability to remove the CFPB Director at will, the CFPB concentrated power in a
single officer while insulating him from presidential control. Id. at 2204. This infirmity was
exacerbated by the CFPB Director’s five-year term, which meant that “some Presidents may not
 No. 20-4303 Calcutt v. FDIC Page 23

have any opportunity to shape its leadership,” and the agency’s independence from the normal
appropriations process. Ibid.

We need not delve deeply into the Seila Law inquiry in this case, however, because
Collins instructs that relief from agency proceedings is predicated on a showing of harm, a
requirement that forecloses Calcutt from receiving the relief he seeks. See 141 S. Ct. at 1788–89.
Collins concerned the Director of the Federal Housing Finance Agency, an agency with authority
to regulate and act as the conservator or receiver of the Federal National Mortgage Association
(Fannie Mae) and the Federal Home Loan Mortgage Corporation (Freddie Mac). Collins,
141 S. Ct. at 1770. Acting as the companies’ conservator, the FHFA amended stock purchasing
agreements with the Treasury Department, which altered the dividends that Fannie Mae and
Freddie Mac were required to pay to Treasury in exchange for capital. See id. at 1772–75.
Shareholders of the companies brought suit against the FHFA and the FHFA Director as a result.
See id. at 1775. As relevant here, the shareholders argued that the statutory for-cause removal
protection of the FHFA Director violated the separation of powers, see id. at 1778, and that
therefore the amendment to the FHFA-Treasury agreement “must be completely undone,” id. at
1787.

The Supreme Court agreed that the for-cause removal provision was unconstitutional, as
its decision in Seila Law was “all but dispositive.” Id. at 1783. Just as the CFPB in that decision
presented a “novel context of an independent agency led by a single Director” whose for-cause
removal protections “lack[ed] a foundation in historical practice and clashe[d] with constitutional
structure by concentrating power in a unilateral actor insulated from Presidential control,” so too
did the single-director structure and removal protections in the FHFA unconstitutionally limit the
President’s removal power. Id. at 1783–84 (quoting Seila Law, 140 S. Ct. at 2192).

Yet although the removal restriction was unconstitutional, the Court held that the
shareholders were not entitled to relief absent further findings by the lower courts. The
shareholders were not entitled to a prospective remedy, because a subsequent agreement between
the FHFA and Treasury had deleted the dividend formula that caused the alleged injury. Id. at
1779–80. As to retrospective relief for the claimed injury during the years that the dividend
formula was in effect, the Court observed that “[a]lthough the statute unconstitutionally limited
 No. 20-4303 Calcutt v. FDIC Page 24

the President’s authority to remove the confirmed Directors, there was no constitutional defect in
the statutorily prescribed method of appointment to that office.” Id. at 1787. Thus, the Director
“lawfully possess[ed]” the power to implement the provision. Id. at 1788.

The Court explained that the shareholders would be entitled to relief if the
unconstitutional removal restriction “inflict[ed] compensable harm,” and it remanded the case to
the Court of Appeals to conduct this inquiry. Id. at 1789. To establish such harm, the
shareholders would need to show that the removal restriction specifically impacted the agency
actions of which they complained:

Suppose, for example, that the President had attempted to remove a Director but
was prevented from doing so by a lower court decision holding that he did not
have “cause” for removal. Or suppose that the President had made a public
statement expressing displeasure with actions taken by a Director and had
asserted that he would remove the Director if the statute did not stand in the way.
In those situations, the statutory provision would clearly cause harm.

Ibid. Several concurring Justices confirmed that a petitioner would have to establish that an
unconstitutional removal protection specifically caused an agency action in order to be entitled to
judicial invalidation of that action. See id. at 1789 (Thomas, J., concurring) (agreeing with
majority’s remedial analysis “that, to the extent a Government action violates the Constitution,
the remedy should fit the injury”); id. at 1801 (Kagan, J., concurring in part and concurring in the
judgment) (“I also agree that plaintiffs alleging a removal violation are entitled to injunctive
relief—a rewinding of agency action—only when the President’s inability to fire an agency head
affected the complained-of decision.”); id. at 1803 n.1 (Sotomayor, J., concurring in part and
dissenting in part) (agreeing with majority’s remedial discussion).

Calcutt attempts to distinguish Collins by observing that the decision concerned only
retrospective relief, because the FHFA had already ended the challenged action, whereas
Calcutt’s Removal and Prohibition Order remains in effect and operates prospectively. That
distinction does not matter here. The Collins inquiry focuses on whether a “harm” occurred that
would create an entitlement to a remedy, rather than the nature of the remedy, and our
determination as to whether an unconstitutional removal protection “inflicted harm” remains the
same whether the petitioner seeks retrospective or prospective relief (particularly when we
 No. 20-4303 Calcutt v. FDIC Page 25

review an adjudication that has already ended). Collins, 141 S. Ct. at 1789. In other words,
Collins instructs that we must ask whether the FDIC Board’s for-cause protections “inflicted
harm,” such as by preventing superior officers from removing Board members when they
attempted to do so, or possibly by altering the Board’s behavior. Ibid. The Removal and
Prohibition Order’s prospective effect does not change a court’s ability to conduct that inquiry.

Collins thus provides a clear instruction: To invalidate an agency action due to a removal
violation, that constitutional infirmity must “cause harm” to the challenging party. Ibid. Our
sister circuits that have considered the question agree that this is the key inquiry. See Kaufmann
v. Kijakazi, 32 F.4th 843, 849 (9th Cir. 2022) (explaining that “[a] party challenging an agency’s
past actions must . . . show how the unconstitutional removal provision actually harmed the
party”); Bhatti v. Fed. Housing Fin. Agency, 15 F.4th 848, 854 (8th Cir. 2021) (identifying issue
under Collins as whether unconstitutional removal restriction “caused compensable harm”);9
Decker Coal Co. v. Pehringer, 8 F.4th 1123, 1137 (9th Cir. 2021) (stating that, under the
“controlling” authority of Collins, “[a]bsent a showing of harm, we refuse to unwind the
[agency] decisions below”).

Calcutt has not demonstrated that the structure of the FDIC Board caused him harm.
He first states that the FDIC Board’s Removal and Prohibition Order “inflicts ongoing harm” by
preventing him from participating in banking activities. Reply Br. 10. However, Collins does
not say that any administrative penalty imposed by an unconstitutionally-structured agency must
be vacated. Instead, the constitutional violation must have caused the harm. See Collins,
141 S. Ct. 1789 (identifying inquiry as whether “an unconstitutional provision . . . inflict[ed]
compensable harm”).

Calcutt also argues that the possibility that the FDIC would have taken different actions in
his case, if the Board not been unconstitutionally shielded from removal, means that we should

9In Bhatti, the Eighth Circuit also remanded to the district court “to determine if the shareholders suffered
‘compensable harm’ and are entitled to ‘retrospective relief.’” Bhatti, 15 F.4th at 854 (quoting Collins, 141 S. Ct. at
1789). This language does not conflict with our conclusion that Collins does not rest on whether relief is
prospective or retrospective, because Bhatti concerned the same agency actions as Collins did. See id. at 852.
Because the Collins Court recognized that only retrospective relief was available to Fannie Mae and Freddie Mac
shareholders, the Bhatti court followed that precedent. See ibid.
 No. 20-4303 Calcutt v. FDIC Page 26

vacate and remand. Taken in isolation, some language in Collins might be read to support this
view. See, e.g., ibid. (“[T]he possibility that the unconstitutional restriction on the President’s
power to remove a Director of the FHFA could have such an effect [of inflicting compensable
harm] cannot be ruled out.”). But such a broad reading would effectively eliminate any need to
show that unconstitutional removal protections caused harm, because a petitioner could always
assert a possibility that an agency with different personnel might have acted differently. The
Collins Court was not deterred from its holding by the very possibility that harm might occur;
rather, it indicated that a more concrete showing was needed.

Calcutt also posits that if the FDIC Board had not been unconstitutionally insulated from
removal, after Lucia it might have “altered [its] behavior,” ibid., and provided new proceedings
as recommended by the Solicitor General, see Mem. from the Solicitor General to Agency
General Counsels, Guidance on Administrative Law Judges after Lucia v. SEC (S. Ct.) 8–9,
https://static.reuters.com/resources/media/editorial/20180723/ALJ--SGMEMO.pdf (last visited
May 24, 2022). While failure to follow executive-branch policy could certainly help indicate
that a removal restriction inflicted harm, that is not what happened here. As we explain further
below, the FDIC provided a new hearing to Calcutt consistent with Lucia. See infra at 30–35.
We also fail to see how the FDIC disregarded the Solicitor General’s guidance. The Solicitor
General told agencies that while “a full soup-to-nuts redo of the administrative proceeding” was
“the safest course” after Lucia, it was not the only course available:

While litigants may be expected to argue otherwise, however, we do not believe a
complete do-over is constitutionally required. We believe that a ‘new hearing’
will be constitutionally adequate as long as the new ALJ is careful to avoid any
taint from the prior ALJ’s decision. Thus, we do not think it is necessarily fatal if
the new ALJ starts with the existing record in the proceeding (including hearing
transcripts), much of which there would be little purpose in generating anew.

Mem. from the Solicitor General to Agency General Counsels 8–9. Thus, we disagree with
Calcutt’s suggestion that the FDIC Board failed to follow executive-branch policy—let alone that
it did so because of its removal protections.

Finally, Calcutt asks this court to remand to the FDIC to determine whether the removal
restriction “inflicted harm” in his case, as the Collins court also remanded for further findings.
 No. 20-4303 Calcutt v. FDIC Page 27

We do not think this step is necessary. The record is sufficiently clear that the removal
protections did not cause harm, and Calcutt provides only vague, generalized allegations in
response. See Decker Coal Co., 8 F.4th at 1137 (declining to remand where “the record is
clear”). We also note that, unlike the Collins Court or the Eighth Circuit in Bhatti, we would be
remanding to an agency rather than another court. See Collins, 141 S. Ct. at 1789 (remanding to
court of appeals); Bhatti, 15 F.4th at 854 (remanding to district court to determine whether
Fannie Mae and Freddie Mac shareholders suffered compensable harm entitling them to relief
under Collins). We do not see how yet another proceeding before the FDIC would aid in
developing the record on this point.

B. FDIC ALJ Structure

Calcutt’s separation-of-powers challenge to the removal protections of FDIC ALJs is
unsuccessful for similar reasons as his challenge to the structure of the FDIC Board. First and
foremost, even if we were to accept that the removal protections for the FDIC ALJs posed a
constitutional problem, Calcutt is not entitled to relief unless he establishes that those protections
“inflict[ed] compensable harm,” and he has not made this showing. Collins, 141 S. Ct. at 1789.
Second, even if he established that the removal protections caused him harm, Free Enterprise
Fund explicitly excludes ALJs from its prohibition on multiple levels of for-cause removal
protection, and thus, like Seila Law, it only provides weak support for his position. See Free
Enter. Fund, 561 U.S. at 507 n.10.

To recall, FDIC ALJs can only be removed if the MSPB finds that there is “good cause”
for removal on the record after an opportunity for a hearing. 5 U.S.C. § 7521(a). The President
may remove MSPB members “only for inefficiency, neglect of duty, or malfeasance in office.”
5 U.S.C. § 1202(d). Additionally, the FDIC ALJs are housed in an interagency body—the Office
of Financial Institution Adjudication, or OFIA—composed of the FDIC, OCC, FRB, and NCUA.
The memorandum of understanding for OFIA states: “Any change to the Office Staff personnel
shall be subject to the prior written approval of all Agencies.” See Ex. L to Emergency Motion
for Stay Pending Review, at 3. According to Calcutt, OFIA’s structure “magnifies the
constitutional problem” by requiring all four member agencies to consent before “initiat[ing]
ALJ removal proceedings.” Br. of Petitioner 30.
 No. 20-4303 Calcutt v. FDIC Page 28

We begin with the Collins issue. As previously discussed, that decision requires a
showing that an unconstitutional removal restriction “cause[d] harm” to invalidate an agency
action. 141 S. Ct. at 1789.10 Here, again, Calcutt offers vague assertions that it “cannot be ruled
out” that the multiple levels of for-cause removal protections insulating ALJ McNeil caused him
harm, but a generalized allegation is insufficient for affording relief. Reply Br. 18 (quoting
Collins, 141 S. Ct. at 1789). He also argues that had these removal restrictions not been in place,
ALJ McNeil would have been more responsive to executive-branch policy, would have properly
offered a new hearing after Lucia, and would not have issued a recommended decision
that conflicted with the FDI Act. But those arguments are premised on the success of Calcutt’s
other claims of constitutional and statutory violations, and as we explain below, none of those
claims succeed. See infra at 30–35, 37–53. Thus, he cannot rely on those allegations of harm,
either.

An additional feature in this case further suggests that no harm was caused by the
removal restrictions. Before Lucia, FDIC adjudications were performed by two ALJs who were
not appointed by the FDIC Board: ALJ Miserendino and ALJ McNeil. After Lucia held that
similar ALJs in the SEC were inferior officers who must be appointed by the President, a court of
law, or a head of department, see 138 S. Ct. at 2051 (citing U.S. Const. art. II, § 2, cl. 2), the
FDIC could have appointed new ALJs. However, it simply appointed the officials who had
previously been acting as ALJs—including ALJ McNeil. In the specific circumstances of this
case, where the FDIC newly appointed an ALJ when it had the option not to do so, it is unlikely
that the restriction on the removal of the ALJ prevented the agency from pursuing a different
path respecting Calcutt.

Even if relief were available, we doubt Calcutt could establish a constitutional violation
from the ALJ removal restrictions. Though Free Enterprise Fund concluded that the two layers
of for-cause protections enjoyed by the members of the Public Company Accounting Oversight
Board were “incompatible with the Constitution’s separation of powers,” Free Enter. Fund,

10Even if the restrictions on the removal of FDIC ALJs were invalid, both parties agree that ALJ McNeil
was validly appointed. Therefore, we need not address whether Calcutt would be entitled to relief on grounds
specifically relating to McNeil’s appointment. See Collins, 141 S. Ct. at 1787–88.
 No. 20-4303 Calcutt v. FDIC Page 29

561 U.S. at 498, the Court took care to omit ALJs from the scope of its holding, id. at 507 n.10
(“[O]ur holding also does not address that subset of independent agency employees who serve as
administrative law judges.”). The Court explained that its decision did not apply to ALJs for
several reasons: “Whether administrative law judges are necessarily ‘Officers of the United
States’ is disputed,” and many ALJs “perform adjudicative rather than enforcement or
policymaking functions, . . . or possess purely recommendatory powers.” Ibid. (citing Landry v.
FDIC, 204 F.3d 1125 (D.C. Cir. 2000) (statutory citations omitted)). Similarly, as then-Judge
Kavanaugh explained in dissent in the District of Columbia Circuit proceedings, the for-cause
protections of ALJs are distinguishable because agencies can choose not to use ALJs in
adjudications; ALJs may not be officers (as the law stood at that time); and many ALJs perform
adjudicatory functions that are subject to review by higher agency officials, which “arguably
would not be considered ‘central to the functioning of the executive Branch’ for purposes of the
Article II removal precedents.” Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 537 F.3d 667,
699 n.8 (D.C. Cir. 2008) (Kavanaugh, J., dissenting) (quoting Morrison v. Olson, 487 U.S. 654,
691–92 (1988)).

Other than the argument that ALJs are not officers, which Lucia forecloses, see 138 S. Ct.
at 2053–54, these rationales still apply to the FDIC ALJs. First, the FDIC ALJs perform
adjudicatory functions, and they file a recommended decision that is subject to review by the
FDIC Board. See Free Enter. Fund, 561 U.S. at 496 n.10; Free Enter. Fund, 537 F.3d at 699 n.8
(Kavanaugh, J., dissenting); 12 C.F.R. § 308.38(a). Second, “Congress has not tied the
President’s hands and hindered his control over his subordinates here.” Decker Coal Co., 8 F.4th
at 1133. Rather, the FDIC must conduct hearings “in accordance with the provisions of [the
APA],” 12 U.S.C. § 1818(h)(1), and the APA permits an agency to choose whether to preside
over an adjudication itself, allow one or more members to be presiding officers, or use an ALJ,
5 U.S.C. § 556(b). In short, though Calcutt is correct that Free Enterprise Fund left open
whether it applied to ALJs, that decision’s reasoning for exempting ALJs still extends to this
case.

Calcutt and amicus Chamber of Commerce of the United States of America also argue
that the structure of OFIA provides particularly egregious removal protections for FDIC ALJs
 No. 20-4303 Calcutt v. FDIC Page 30

that violate the separation of powers. Under OFIA’s governing memorandum of understanding,
all the constituent agencies of OFIA—the FDIC, OCC, FRB, and NCUA—must approve
“[a]ny change to the Office Staff personnel.” Ex. L to Emergency Motion for Stay Pending
Review, at 3. According to Calcutt, this provision means that each agency has veto power over
any other agency’s attempt to remove an ALJ. Exacerbating this problem, he adds, several of the
agencies who must agree to removal also enjoy for-cause protection. See 12 U.S.C. § 242
(FRB); 12 U.S.C. § 1752a(c) (NCUA Board members serve fixed terms); supra at 6 (FDIC for-
cause protections).

Although OFIA may present a “novel structure,” Free Enter. Fund, 561 U.S. at 495, the
Free Enterprise Fund exception for ALJs centers on their status as adjudicatory officials that
issue non-final recommendations to an agency, and not on how many levels of removal
protections they enjoy, see id. at 496 n.10. Consequently, OFIA does not present a reason for us
to hold that the removal restrictions for FDIC ALJs violates constitutional separation of powers.
More importantly, even if we were to find such a violation, Collins decisively precludes relief for
Calcutt.

C. Appointments Clause

The Appointments Clause requires that “Officers of the United States” be appointed by
the President with the advice and consent of the Senate, but Congress may allow “inferior
Officers” to be appointed by the President alone, by courts, or by heads of departments.
U.S. Const. art. II, § 2, cl. 2. “[T]he ‘appropriate’ remedy for an adjudication tainted with an
appointments violation is a new ‘hearing before a properly appointed official.’” Lucia,
138 S. Ct. at 2055 (quoting Ryder v. United States, 515 U.S. 177, 188 (1995)). Calcutt argues
that he did not receive this “new hearing,” but he is wrong.

Calcutt states that the FDIC ALJs are “inferior Officers,” and the FDIC does not contest
this point. We agree that FDIC ALJs are inferior officers and that they were improperly
appointed before Lucia. Cf. Burgess v. FDIC, 871 F.3d 297, 302–03 (5th Cir. 2017)
(reasoning that FDIC ALJs are officers). Because they are inferior officers, the FDIC ALJs must
be appointed by the President, a court, or the FDIC Board. U.S. Const. art. II, § 2, cl. 2. Prior to
 No. 20-4303 Calcutt v. FDIC Page 31

2018, the FDIC Board did not appoint the ALJs, so their appointments were invalid. See Jones
Bros., 898 F.3d at 679.

Calcutt and the FDIC also agree up to a point that the remedy for the prior Appointments
Clause violation is “a new ‘hearing before a properly appointed’ official” distinct from the
previous ALJ. Lucia, 138 S. Ct. at 2055 (quoting Ryder, 515 U.S. at 188). However, Calcutt
argues that a new hearing must consist of an entirely new proceeding, where the new adjudicator
starts from scratch and ignores the record from the prior proceeding. He specifically objects to
ALJ McNeil’s admission of stipulations and transcripts from the 2015 proceedings, and he
contends that ALJ Miserendino’s procedural rulings in 2015 narrowed the scope of discovery in a
manner that impacted the 2019 proceedings. The FDIC, in contrast, contends that the “new
hearing” requires only a new, independent evaluation of the merits of a case without limiting
consideration of the prior record, and that therefore ALJ McNeil’s use of the 2015 record was
proper.

Lucia does not specify what features a “new hearing” must contain, other than a new
adjudicator. 138 S. Ct. at 2055. Other decisions addressing the remedies for Appointments
Clause violations are similarly vague. See Ryder, 515 U.S. at 188 (holding that petitioner “is
entitled to a hearing before a properly appointed panel” of military court); Jones Bros., 898 F.3d
at 679 (holding that petitioner “is entitled to a new hearing before a constitutionally appointed
administrative law judge” and remanding for “fresh proceedings”).

Other decisions indicate that courts afford agencies more leeway on remand after
Appointments Clause violations than Calcutt’s all-or-nothing position suggests. In Lucia, for
example, the Supreme Court recognized that in situations where “there is no substitute
decisionmaker” after an Appointments Clause violation, a new hearing before the original
decisionmaker could be proper. Lucia, 138 S. Ct. at 2055 n.5 (citing FTC v. Cement Inst.,
333 U.S. 683, 700–03 (1948)). The Federal Circuit, after finding that administrative patent
judges were invalidly appointed, also explained that it required a “new hearing” before a “new
panel” of judges, but that it saw “no error in the new panel proceeding on the existing record”
and left to the agency’s “sound discretion” whether to “allow additional briefing or reopen the
record in any individual case.” Arthrex, Inc. v. Smith & Nephew, Inc., 941 F.3d 1320, 1340
 No. 20-4303 Calcutt v. FDIC Page 32

(Fed. Cir. 2019), vacated on alternate grounds and remanded sub nom. United States v. Arthrex,
Inc., 141 S. Ct. 1970 (2021).11 For its part, the Court of Appeals for the District of Columbia
Circuit rejected a petitioner’s claim that a new proceeding by a properly appointed official must
involve entirely new proceedings that ignore the prior record. Intercollegiate Broad. Sys., Inc. v.
Copyright Royalty Bd., 796 F.3d. 111, 117–19 (D.C. Cir. 2015). Instead, that court concluded
that a subsequent proceeding is valid when “a properly appointed official has the power to
conduct an independent evaluation of the merits and does so,” id. at 117, and that as a
constitutional matter this “independent evaluation” could include a review of prior records and
transcripts, see id. at 122.

This reluctance to adopt a bright-light rule makes sense. To hold that all adjudications
must start from zero after a judicial decision invalidating ALJ appointments would result in
cumbersome, repetitive processes throughout the executive branch simply to produce findings
and orders that would often be identical the second time around. Moreover, as the District of
Columbia Circuit observed, an “independent evaluation of the merits” does not require an ALJ to
ignore all past proceedings: Independence is not a synonym for ignorance. See id. at 121–23.12

Thus, our inquiry focuses on whether ALJ McNeil’s consideration of the 2015
stipulations and testimony showed “sufficient continuing taint arising from the first
[proceeding]” to demonstrate that the second proceeding was not “an independent, de novo

11We note that although the Supreme Court stated that a new hearing was unnecessary in Arthrex, it
explained that Arthrex was not entitled to a new hearing before a new panel “[b]ecause the source of the
constitutional violation is the restraint on the review authority of the Director [of the Patent and Trademark Office],
rather than the appointment of [administrative patent judges] by the Secretary [of Commerce].” Arthrex, 141 S. Ct.
at 1988 (emphases added). This decision thus did not reject the Federal Circuit’s conclusion that, if the
administrative patent judges’ appointments had been invalid, a new hearing would be appropriate, including some
consideration of the original record.
12Our dissenting colleague characterizes our approach as a cost-benefit balancing exercise. See Dissent at
74. But determining whether a new ALJ can conduct an “independent evaluation of the merits,” see Intercollegiate
Broad. Sys., 796 F.3d at 117, involves analyzing the impact of those past proceedings on a current adjudication—an
inquiry that bears little resemblance to a weighing of the relative costs and benefits of a new administrative
proceeding. Though we mention prudential considerations that favor our approach, we do not rely on them.
Instead, our conclusion rests on the principle illustrated in Intercollegiate Broadcasting System and other decisions
that, following an Appointments Clause violation, a new proceeding affords adequate remedy when a new
decisionmaker can independently consider the merits. See id. at 117–20; Arthrex, 941 F.3d at 1340.
 No. 20-4303 Calcutt v. FDIC Page 33

decision.” Id. at 124 (citing Fed. Election Comm’n v. Legi-Tech, Inc., 75 F.3d 704, 708 n.5 (D.C.
Cir. 1996)). No such ongoing impact occurred here.

First, ALJ Miserendino’s general ability to shape the record at the 2015 hearing does not
demonstrate that ALJ McNeil lacked independence. Calcutt implies that any decision at a prior
proceeding that shapes the record of a later proceeding invalidates the latter’s outcome. That
goes too far. See Intercollegiate Broad. Sys., 796 F.3d at 124 (explaining that “not every possible
kind of taint is fatal because, if it were, there would be no way to remedy an Appointments
Clause violation”); Legi-Tech, 75 F.3d at 708–09 (accepting that past Appointments Clause
violation will have some impact on later proceedings, but refusing to restart administrative
process). And where a party receives an opportunity to submit additional evidence and to specify
alleged defects in the first proceeding, as the FDIC’s order after Lucia provided here, the
subsequent proceeding is even more likely to be independent.

Second, ALJ McNeil’s reliance on stipulations that the FDIC, Calcutt, Green, and
Jackson made during the 2015 proceedings before Green and Jackson settled did not taint the
proceedings. Calcutt and amicus Washington Legal Foundation argue that the settlement altered
the facts that Calcutt would have conceded. At most, however, the cases cited by the parties
show that courts sometimes accept stipulations made in prior proceedings and sometimes do not,
and that these decisions are reviewed for abuse of discretion. See United States v. Kanu,
695 F.3d 74, 78 (D.C. Cir. 2012); Waldorf v. Shuta, 142 F.3d 601, 616 (3d Cir. 1998); Hunt v.
Marchetti, 824 F.2d 916, 918 (11th Cir. 1987). To the extent that these decisions about judicial
proceedings apply to administrative adjudications, ALJ McNeil did not abuse his discretion. In
Waldorf, the court specified that “a stipulation does not continue to bind the parties if they
expressly limited it to the first proceeding or if the parties intended the stipulation to apply only
at the first trial,” 142 F.3d at 616, and in this case the parties had agreed to stipulations at the
2015 proceedings without expressly limiting the stipulations to those proceedings. Moreover,
while stipulations from prior proceedings may be excluded if their admission would create a
“manifest injustice,” Kanu, 695 F.3d at 78, Calcutt did not deny that the stipulations were
accurate, but rather argued that they were irrelevant or inappropriate to the new proceeding now
that that his co-respondents had settled. The ALJ did not abuse his discretion by admitting the
 No. 20-4303 Calcutt v. FDIC Page 34

stipulations when Calcutt had failed to show that their admission would produce manifest
injustice and had failed to expressly limit their use to the prior proceedings.

Finally, Calcutt contends that ALJ McNeil and the FDIC Board’s use of the record of the
2015 hearing hampered their ability to make an independent judgment. At the 2019 hearing,
Calcutt objected to using that record for all but two witnesses,13 except for impeachment
purposes. ALJ McNeil indicated that he was willing to use the entire 2015 record for substantive
as well as impeachment purposes, and he ultimately used that record at several points throughout
the hearing and his recommended decision. The FDIC Board then referred to the 2015 record in
its final decision at several points, including instances when the 2015 record was the only cited
evidence. It also concluded that it could consider Calcutt’s testimony during 2015 as either
impeachment or substantive evidence.

This inclusion of the 2015 record also did not prevent ALJ McNeil and the Board from
conducting an “independent evaluation of the merits.” Intercollegiate Broad. Sys., 796 F.3d at
122. To begin with, Calcutt’s prior testimony likely qualifies as an opposing party’s statement,
despite his objection. See 12 C.F.R. § 308.36(a)(2) (permitting admission of evidence that would
be admissible under Federal Rules of Evidence); United States v. Cunningham, 679 F.3d 355,
383 (6th Cir. 2012) (explaining that Federal Rule of Evidence 801(d)(2)(A) allows “a party’s
own statement to be offered as evidence against that party even where the statement would
otherwise be inadmissible as hearsay”). Additional testimony from 2015 was corroborated by
other evidence. The remaining isolated instances in which either ALJ McNeil or the Board relied
on the 2015 record for substantive conclusions do not convince us that the agency was unable to
independently consider the merits of Calcutt’s case. And, if there was error at these points in its
analysis, it was likely harmless due to the abundance of evidence in the record supporting the
agency’s decision. See 5 U.S.C. § 706(2); see also infra at 37–53.

In sum, Lucia required that Calcutt receive a new hearing, and that is what he got. A new
hearing need not be from scratch; rather, the impact of the prior proceeding must be sufficiently
muted that the new adjudicator can independently consider the merits. ALJ McNeil and the

13The parties agreed by stipulation to introduce the 2015 testimony of Dennis O’Neill and Charles Bird,
two FDIC examiners.
 No. 20-4303 Calcutt v. FDIC Page 35

FDIC Board did not abuse their discretion by admitting the 2015 materials when they remained
capable of drawing their own conclusions about Calcutt’s case.

IV. HEARING CHALLENGES

We now turn from Calcutt’s structural constitutional challenges to his claims regarding
the specifics of his 2019 hearing. These fall into three categories: a challenge relating to the
decision of the ALJ to limit cross-examination on bias at the hearing, a challenge to the
substance of the FDIC Board’s findings and conclusions, and an abuse-of-discretion challenge to
the FDIC Board’s choice of sanction.

A. Cross-Examination

Under the FDI Act and the APA, parties are entitled “to conduct such cross-examination
as may be required for a full and true disclosure of the facts.” 5 U.S.C. § 556(d); see 12 U.S.C.
§ 1818(h)(1) (requiring FDIC hearings to be conducted in accordance with APA adjudication
procedures). The FDIC’s regulations provide that evidence which would be admissible under the
Federal Rules of Evidence is also admissible in an enforcement hearing, 12 C.F.R.
§ 308.36(a)(2), and that evidence that would be inadmissible under the Federal Rules of
Evidence is admissible in the hearing if it is “relevant, material, reliable, and not unduly
repetitive,” id. § 308.36(a)(3); see id. § 308.36(a)(1). Calcutt argues that ALJ McNeil erred
under these provisions by limiting cross-examination of Autumn Berden, Cori Nielson, and Anne
Miessner regarding their purported bias against Calcutt, and that the Board erred by accepting
these limitations. The parties agree that neither Berden, Nielson, nor Miessner testified about
bias at the hearing.

We review an ALJ’s exclusion of evidence under an abuse-of-discretion standard. NLRB
v. Jackson Hosp. Corp., 557 F.3d 301, 305–06 (6th Cir. 2009). An abuse of discretion occurs
when the ALJ “applies the wrong legal standard, misapplies the correct legal standard, or relies
on clearly erroneous findings of fact.” B & G Mining, Inc. v. Dir., Off. of Workers’ Comp.
Programs, 522 F.3d 657, 661 (6th Cir. 2008) (quotation marks omitted).
 No. 20-4303 Calcutt v. FDIC Page 36

Yet, “due account must be taken of the rule of prejudicial error.” 5 U.S.C. § 706(2); see
12 U.S.C. § 1818(h)(2) (providing that the APA governs review of FDIC enforcement
proceedings). This language applies the federal harmless-error standard from civil cases. See
Shinseki v. Sanders, 556 U.S. 396, 406–07 (2009). We employ a “case-specific application of
judgment, based upon examination of the record,” id. at 407, to determine whether the error
“affect[ed] the substantial rights of the parties,” 28 U.S.C. § 2111. An error is not harmless
when, for example, an agency violates its own procedural rules and the petitioner shows that he
“has been prejudiced on the merits or deprived of substantial rights because of the agency’s
procedural lapses.” Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 547 (6th Cir. 2004) (quotation
marks and emphasis omitted).

We need not reach whether ALJ McNeil abused his discretion in limiting cross-
examination on the bias of Berden, Nielson, and Miessner, because even if he did, that error was
harmless. As we have explained in the civil context, an adjudicator’s erroneous exclusion of
evidence is not prejudicial, and therefore is harmless, “if other substantially equivalent evidence
of the same facts [was] admitted into evidence.” In re Air Crash Disaster, 86 F.3d 498, 526 (6th
Cir. 1996) (quoting Leonard v. Uniroyal, Inc., 765 F.3d 560, 567 (6th Cir. 1985) (alteration in
original)). Thus, we recently observed that where a court excluded evidence of police interview
transcripts but the record contained depositions of “most of the same witnesses” quoted in the
transcripts, any error was harmless. M.J. v. Akron City Sch. Dist. Bd. of Educ., 1 F.4th 436, 447
(6th Cir. 2021); see also Smith v. Woolace Elec. Corp., 822 F. App’x 409, 417 (6th Cir. 2020)
(potential error over excluding witness’s testimony was harmless where plaintiff “introduced
substantially equivalent evidence” through another witness’s testimony).

ALJ McNeil and the FDIC Board had access to the 2015 record, which contained
substantially equivalent evidence regarding Berden, Nielson, and Miessner’s bias. See supra at
31–35. During those earlier proceedings, Calcutt’s counsel examined Berden, Nielson, and
Miessner about their bias and alleged collaboration. Other documents in the record were also
relevant to bias, including an email where Nielson told Miessner about difficulties with
Northwestern Bank, requested that the FDIC contact Michigan regulators, and stated, “I just wish
there was a fresh face to talk to at the bank—all this collateral damage is meaningless”; an email
 No. 20-4303 Calcutt v. FDIC Page 37

in which Miessner communicated with Michigan regulators regarding Nielson’s request;
Berden’s handwritten notes from meetings with FDIC officials; and an email correspondence
between Miessner, Nielson, and Berden about FDIC charges against Calcutt, titled “A little news
to brighten your weekend.” Although further cross-examination would have allowed Calcutt to
further develop his bias argument, the availability of these other materials indicates that the
agency’s factfinders possessed sufficient information regarding the possible bias of Berden,
Nielson, and Miessner to render any error harmless. Thus, the limits on cross-examination do
not necessitate a new proceeding.

B. Substantive Challenges

As previously discussed, Section 8(e) of the FDI Act permits the FDIC to enter a removal
and prohibition order against an institution-affiliated party after finding that three elements have
been met: misconduct, effects, and culpability. See Dodge, 744 F.3d at 152. Misconduct occurs
when a party has “directly or indirectly” violated a law or regulation, “engaged or participated in
any unsafe or unsound practice” connected with an insured institution, or breached a fiduciary
duty. 12 U.S.C. § 1818(e)(1)(A). The requisite effects take place when, “by reason of” the
misconduct, the insured institution “has suffered or will probably suffer financial loss or other
damage,” its depositors’ interests are prejudiced, or the party “has received financial gain or
other benefit by reason of” the misconduct. Id. § 1818(e)(1)(B). And the culpability element is
met when the party’s action “involves personal dishonesty” or “demonstrates willful or
continuing disregard . . . for the safety or soundness” of the insured institution. Id.
§ 1818(e)(1)(C). We review the FDIC Board’s factual findings for substantial evidence and set
aside the agency’s legal conclusions if they are “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” Pharaon v. Bd. of Governors of Fed. Rsrv. Sys., 135 F.3d
148, 152 (D.C. Cir. 1998) (quoting 5 U.S.C. § 706(2)(A)).14

Calcutt argues that the FDIC exceeded its statutory authority by finding misconduct when
none of his actions qualified under the statutory definitions, failing to demonstrate that any

14Though the FDIC Board’s interpretation of Section 8(e) of the FDI Act may receive persuasive weight, at
least one of our sister circuits has explained that the FDIC receives no Chevron deference to its interpretation of the
Act, because several agencies administer that statute. Dodge, 744 F.3d at 155.
 No. 20-4303 Calcutt v. FDIC Page 38

effects resulted “by reason of” of the misconduct, and failing to identify qualifying effects.
He therefore does not challenge the Board’s finding as to his culpability, so we do not address
that part of the Removal and Prohibition Order. He also challenges his civil money penalty only
to the extent that the Board’s reasoning for the penalty overlaps with its analysis supporting the
Removal and Prohibition Order.

1. Misconduct

As to misconduct, Calcutt maintains that the FDIC Board erred by determining that his
actions constituted an “unsafe or unsound practice” or a breach of fiduciary duties under the
statute.15 We disagree.

a. Unsafe or Unsound Practice

The FDI Act does not define an “unsafe or unsound practice,” and the term is interpreted
flexibly. See Seidman v. Off. of Thrift Supervision (Matter of Seidman), 37 F.3d 911, 926–27
(3d Cir. 1994). However, courts have generally treated the phrase as referring to two
components: “(1) an imprudent act (2) that places an abnormal risk of financial loss or damage
on a banking institution.” Id. at 932; see also Michael v. FDIC, 687 F.3d 337, 352 (7th Cir.
2012) (same); Landry, 204 F.3d at 1138 (identifying imprudent-act and abnormal-financial-risk
components).

Calcutt emphasizes the financial-risk component and argues that the Bedrock Transaction
did not pose an abnormal financial risk to Northwestern Bank. Along with amicus American
Association of Bank Directors, he characterizes the Bedrock Transaction as a good-faith attempt
to shore up one of the Bank’s largest lending relationships during the tumult of the Great
Recession by releasing collateral and extending a loan that amounted to only a fraction of the
Nielson Entities’ total debt. And even if the $760,000 loan and $600,000 in collateral were
ultimately not collected, he says, that loss would have been insignificant, considering that the
Bank’s Tier 1 capital totaled more than $70 million.

15The FDIC does not argue that Calcutt’s actions violated any explicit statute, regulation, cease-and-desist
order, or other similar requirement. Cf. 12 U.S.C. § 1818(e)(1)(A)(i).
 No. 20-4303 Calcutt v. FDIC Page 39

The FDIC responds that the statute does not require a finding of a threat to bank stability
in order to find “unsafe or unsound” practice, and that “[c]ourts have affirmed prohibition orders
based on unsafe and unsound practices with a much more limited effect.” Br. of Respondent 46.
That reading contradicts the analyses of our sister circuits in Seidman, Michael, and Landry, and
the decisions that the agency cites in support of its interpretation are not convincing. Ulrich v.
U.S. Department of Treasury is a Ninth Circuit memorandum in which the court concluded that a
loan “fraught” with financial risk, not just a limited effect, was an unsafe or unsound practice.
129 F. App’x 386, 390 (9th Cir. 2005). Other decisions that the FDIC cites—Gully v. National
Credit Union Administration Board, 341 F.3d 155 (2d Cir. 2003), First State Bank of Wayne
County v. FDIC, 770 F.2d 81 (6th Cir. 1985), and Jameson v. FDIC, 931 F.2d 290 (5th Cir.
1991)—did not engage with the question of whether financial risk to the institution was
necessary to demonstrate an unsafe or unsound practice. Still other cited decisions linked a
finding of unsafe or unsound practices to abnormal financial risks, again controverting the FDIC.
See Gulf Fed. Sav. & Loan Ass’n of Jefferson Parish v. Fed. Home Loan Bank Bd., 651 F.2d 259,
264 (5th Cir. 1981); Matter of ***, FDIC-83-252b&c, FDIC-84-49b, FDIC-84-50e
(Consolidated Action), 1985 WL 303871, at *9 (FDIC Aug. 19, 1985).

Whether or not we interpret the statute to require a finding of abnormal financial risk,
however, the FDIC’s finding that Calcutt committed an “unsafe or unsound practice” is
supported by substantial evidence. First, Calcutt does not address the Board’s finding that he
“repeatedly concealed material information about the Nielson Loans” from regulators, and that
such misrepresentations “constitute unsafe or unsound practices.” See De la Fuente, 332 F.3d at
1224 (“Failure to disclose relevant information to a government investigator can constitute an
unsound banking practice.”); Seidman, 37 F.3d at 937 (stating that “hindering [a financial
regulatory agency] investigation is an unsafe or unsound practice”).

Second, the record supports the FDIC Board’s conclusion that Calcutt committed
additional imprudent acts that posed an abnormal financial risk. In particular, the Board
underscored that when the Nielson Entities indicated to the Bank that they would not be able to
pay off their loans in 2009, Calcutt declined to seek additional financial information and instead
approved the Bedrock Transaction, which extended further credit to the Entities and renewed the
 No. 20-4303 Calcutt v. FDIC Page 40

outstanding $4.5 million in loans to Bedrock Holdings. The Board also found that Calcutt’s
actions violated the Bank’s commercial-loan policy because he approved the Bedrock
Transaction without either determining that the Nielson Entities had sufficient income to service
their debt, obtaining personal guarantees on the loans, or receiving approval by a two-thirds
majority of the board of directors.

Calcutt responds that such actions do not constitute “unsafe or unsound” practices absent
abnormal financial risk to the Bank, and that his actions did not present such a risk. His first
proposition may be correct. See Seidman, 37 F.3d at 932. However, Calcutt’s actions concerned
the Bank’s largest lending relationship—the Nielson Entities—which represented approximately
$38 million in loans and half of the Bank’s Tier 1 capital. The FDIC Board had substantial
evidence to find that his actions presented a risk in this context, even if it did not explicitly draw
that connection. See Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 377 (1998)
(explaining that substantial-evidence test “gives the agency the benefit of the doubt, since it
requires not the degree of evidence which satisfies the court that the requisite fact exists, but
merely the degree which could satisfy a reasonable factfinder” (emphasis omitted)). We
therefore hold that the FDIC Board did not err in determining that Calcutt engaged in unsafe or
unsound practices.

b. Breach of Fiduciary Duties

The FDIC Board also concluded that the misconduct element was satisfied because
Calcutt breached his fiduciary duties of care and candor. See 12 U.S.C. § 1818(e)(1)(A)(iii).
These duties are determined by state law rather than federal common law. See Atherton v. FDIC,
519 U.S. 213, 226 (1997) (holding that state law rather than federal common law defines
standard of care for corporate governance); Mickowski v. Visi-Trak Worldwide, LLC, 415 F.3d
501, 511–12 (6th Cir. 2005). Under Michigan law, bank directors and officers have a fiduciary
duty to act with the degree of care “that an ordinarily prudent person would exercise under
similar circumstances in a like position.” Mich. Comp. Laws Ann. § 487.13504(1) (2021).
And in other contexts, Michigan courts have recognized that “[a] fiduciary has an affirmative
duty to disclose” material facts relating to the fiduciary relationship to a principal. Silberstein v.
Pro-Golf of Am., Inc., 750 N.W.2d 615, 624 (Mich. Ct. App. 2008); see also Lumber Vill., Inc. v.
 No. 20-4303 Calcutt v. FDIC Page 41

Siegler, 355 N.W.2d 654, 694–95 (Mich. Ct. App. 1984) (recognizing that courts may toll the
statute of limitations for fraudulent concealment actions when a fiduciary fails to inform a
principal of material facts relating to the claim, because “there is an affirmative duty to disclose
where the parties are in a fiduciary relationship”).

On appeal, Calcutt presents three arguments, none availing. First, he contends that he
cannot have violated his duty of care, because his actions did not create an “undue risk” to the
Bank. Br. of Petitioner 51 (quoting Kaplan v. Off. of Thrift Supervision, 104 F.3d 417, 421 (D.C.
Cir. 1997)). This argument echoes his position that he did not commit an “unsafe or unsound”
practice with regard to the Bedrock Transaction.16 See Landry, 204 F.3d at 1138 (noting overlap
in analyses of breach of fiduciary duties and unsafe or unsound practices). And it fails for the
same reason as his unsafe-or-unsound claim: The record presents substantial evidence to support
a finding of financial risk.

Second, Calcutt argues that the Board’s finding that he failed to supervise his
subordinates (namely Green, Jackson, and other Bank employees) does not indicate that he
breached his duty of care. It is true that an officer does not necessarily violate a duty of care
merely because subordinates failed to follow orders. See Doolittle v. Nat’l Credit Union Admin.,
992 F.2d 1531, 1537 (11th Cir. 1993); see also Kaplan, 104 F.3d at 422 (explaining that
director’s approval of plan that ultimately led other officers and directors to “dishonestly short
circuit the required procedures” was not “remotely foreseeable” and did not “contribut[e] to any
increased risk” to institution).

But even if Green, Jackson, and other employees committed many of the actions related
to the Nielson Entities, Calcutt remains responsible if he knew about their actions and permitted
them to occur. Failure to supervise subordinates breaches an officer’s duty of care when the
officer knows about subordinates’ activities or buries his head in the sand. See Hoye v. Meek,
795 F.2d 893, 896 (10th Cir. 1986) (holding that bank director and president inadequately
supervised subordinate, because “[w]here suspicions are aroused, or should be aroused, it is the

16We note that the Board also concluded that the December 2010 release of Pillay Collateral violated the
duty of care, but it did not conclude that the collateral release constituted an unsafe or unsound practice. This
difference between the two types of misconduct findings does not affect our analysis.
 No. 20-4303 Calcutt v. FDIC Page 42

directors’ duty to make necessary inquiries”). In Doolittle, for instance, the Eleventh Circuit
clarified that an officer was not responsible for his subordinates’ actions when he gave proper
orders to them, they failed to follow those orders, and he attempted to take remedial measures,
but that those circumstances did not present “a case where a fiduciary engaged in imprudent
lending activities or stood idle and allowed damage to increase.” 992 F.2d at 1537.17

The record provides substantial evidence that Calcutt knew about his subordinates’
activities and permitted them to continue. For instance, in 2008, he was involved in discussions
with Green and the Nielsons involving the suggestion that they change their methods of
intercompany loans. Calcutt was aware of the Nielson Entities’ difficulty in paying their loans,
although he testified that he thought that they were “posturing.” He received correspondence
directly from the Nielsons. Berden testified that though Calcutt would not attend all meetings,
Green often sought his approval before proceeding in negotiations. Calcutt had received a memo
from Green in November 2009 describing the loan to Bedrock Holdings. He was aware of (and
possibly participated in approving) the sale of Nielson Entity loans to affiliated banks. And
Green reported directly to Calcutt. There was ample evidence for the FDIC Board to find that he
had breached his duty of care by failing to supervise subordinates.

Finally, Calcutt resists the Board’s conclusion that he breached his duty of candor to the
Bank’s board of directors by failing to timely disclose the information about the status of the
Nielson Loans and the Bedrock Transaction. He asserts that the duty of candor requires
corporate fiduciaries to “disclose only ‘material information relevant to corporate decisions from
which [the fiduciary] may derive a personal benefit,’” and that he did not have a personal interest
in the Bedrock Transaction. Br. of Petitioner 53 (quoting De la Fuente, 332 F.3d at 1222
(alteration in original)). Even if we accept this framing of the duty, however, the FDIC
concluded that Calcutt derived a personal benefit from misrepresenting the status of the Nielson

17Calcutt and amicus American Association of Bank Directors refer to the business-judgment rule and urge
us not to fault Calcutt for taking what they characterize as reasonable, good-faith, but ultimately mistaken decisions
in managing the Bank. Michigan courts have recognized that “[i]nterference with the business judgment of
corporate directors is not justified by allegations that a different policy could have been followed.” Matter of Est. of
Butterfield, 341 N.W.2d 453, 462 (Mich. 1983). However, they also recognize that a breach of fiduciary duty merits
judicial intervention. Ibid. The business-judgment rule thus does not prevent us from considering whether Calcutt
breached fiduciary duties.
 No. 20-4303 Calcutt v. FDIC Page 43

Loans to regulators, because he received dividends through the Bank’s holding company that
reflected the Bank’s artificially inflated income. To the extent that substantial evidence supports
the personal-benefit determination, the finding that Calcutt breached his duty of candor would
also be sufficiently supported. In addition, even if Calcutt did not receive a personal benefit, the
support for the Board’s finding that he committed unsafe and unsound practices and violated the
duty of care means that this error would be harmless. See Sanders, 556 U.S. at 407.

In sum, we decline to set aside the Board’s conclusions that Calcutt met the misconduct
element of the statute.

2. Effects

Under the FDI Act, the FDIC must find that “by reason of” Calcutt’s misconduct, one or
more of the following effects resulted: The Bank “has suffered or will probably suffer financial
loss or other damage,” its “depositors have been or could be prejudiced,” or Calcutt “has
received financial gain or other benefit.” 12 U.S.C. § 1818(e)(1)(B). The FDIC Board found
that three types of harms qualified under this provision: (1) a $30,000 charge-off to the $760,000
Bedrock Loan that the Bank recorded; (2) $6.443 million in other charge-offs that the Bank
recorded on other Nielson Loans; and (3) investigative, legal, and auditing expenses that the
Bank incurred. It also found that Calcutt received a financial benefit, because he received
dividends from the Bank’s holding company that would have been smaller had he reported the
condition of the Nielson Loans and not approved the Bedrock Transaction or 2010 release of
Pillay Collateral.

Calcutt commences by arguing that the Board erred by failing to read the statute’s “by
reason of” language to require proximate causation. In its final decision, the FDIC was
unwilling to apply a proximate-causation standard, instead stating that “an individual respondent
need not be the proximate cause of the harm to be held liable under section 8(e).”

Because Section 8(e) requires that a bank’s loss or potential loss, or a party’s benefit,
occur “by reason of” the misconduct, it mandates proximate causation. 12 U.S.C.
§ 1818(e)(1)(B). Recently, we observed that “[t]he Supreme Court has repeatedly and explicitly
held that when Congress uses the phrase ‘by reason of’ in a statute, it intends to require a
 No. 20-4303 Calcutt v. FDIC Page 44

showing of proximate cause.” Crosby v. Twitter, Inc., 921 F.3d 617, 623 (6th Cir. 2019)
(quoting Kemper v. Deutsche Bank AG, 911 F.3d 383, 391 (7th Cir. 2018)). This interpretation
has occurred in the context of other statutory schemes. See Hemi Grp., LLC v. City of New York,
559 U.S. 1, 9 (2010) (civil RICO statute, 18 U.S.C. § 1964(c)); Holmes v. Sec. Inv. Prot. Corp.,
503 U.S. 258, 268 (1992) (same); Crosby, 921 F.3d at 623 (Anti-Terrorism Act, 18 U.S.C.
§ 2333). The FDIC has not offered a reason why the phrase should not have the same meaning
in Section 8(e), and “[i]n the absence of any statutory definition to the contrary, courts assume
that Congress adopts the customary meaning of the terms it uses.” United States v. Detroit Med.
Ctr., 833 F.3d 671, 674 (6th Cir. 2016) (citing Morissette v. United States, 342 U.S. 246, 263
(1952)).

The FDIC alternatively argues that its formulation—that “by reason of” requires only “a
causal ‘nexus’ between the misconduct and harm, or that harm was reasonably foreseeable”—is
consistent with proximate causation. Br. of Respondent 50. This has some appeal; after all, it is
notoriously difficult for judges to define proximate cause. See Associated Gen. Contractors of
Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 535–36, 535 n.32 (1983); Crosby,
921 F.3d at 623–24. We also recognize that in prior adjudications, the FDIC has concluded
that a reasonably foreseeable loss “satisfies the ‘effects’ requirement.” Matter of Conover,
Nos. FDIC-13-214e, FDIC-13-217k, 2016 WL 10822038, at *22 (FDIC Dec. 14, 2016); see also
Matter of ***, 1985 WL 303871, at *114 (declining to characterize the causation standard as
proximate cause). However, while reasonable foreseeability may be a necessary component of
proximate causation, it is not sufficient: “substantiality, directness, and foreseeability are all
relevant in a proximate cause determination,” though these concepts may overlap. Crosby,
921 F.3d at 624.

The decisions cited by the FDIC as support for its view are consistent with a proximate-
causation definition of “by reason of” that incorporates substantiality, directness, and
foreseeability. In De la Fuente, for example, the Ninth Circuit held that a risk of loss must be
“reasonably foreseeable,” but did not conclude that reasonable foreseeability alone was enough
for liability. 332 F.3d at 1223; see also United States v. Gamble, 709 F.3d 541, 549 (6th Cir.
2013) (holding that harms must be reasonably foreseeable to be proximately caused, but not
 No. 20-4303 Calcutt v. FDIC Page 45

stating that reasonable foreseeability is sufficient). Haynes v. FDIC, a memorandum, seemingly
treated “reasonably foreseeable” as interchangeable with “by reason of,” but did so in a summary
fashion that we do not consider persuasive. See 664 F. App’x 635, 637 (9th Cir. 2016).
Although in Landry, the Court of Appeals for the District of Columbia Circuit recognized that an
individual could be liable for the effects of misconduct even if he acted “only indirectly,” the
court was construing the misconduct element of Section 8(e). 204 F.3d at 1139; see 12 U.S.C.
§ 1818(e)(1)(A) (identifying relevant finding as whether a party has “directly or indirectly”
committed misconduct). We do not read that decision to say that when it comes to the effects
inquiry, reasonable foreseeability alone suffices to show causation.

With the causation standard established, we consider the statutory effects identified by
the FDIC Board. We conclude that substantial evidence supports the conclusion that some—but
not all—of the impacts to the Bank are “effects” under Section 8(e) and were proximately caused
by Calcutt’s misconduct.

a. The $30,000 Charge-Off on the $760,000 Bedrock Loan

The charge-off on the loan to Bedrock Holdings, which was part of the Bedrock
Transaction, is an effect under the statute. Calcutt argues that a charge-off does not reflect actual
losses but rather estimates possible future loss, but the FDI Act is clear that a loss that a bank
will “probably suffer” qualifies as an effect, 12 U.S.C. § 1818(e)(1)(B)(i). Similarly, an
estimated loss is sufficient. See Dodge, 744 F.3d at 158 (explaining that effects requirement “is
satisfied by evidence of either potential or actual loss to the financial institution, and the exact
amount of harm need not be proven”); Pharaon, 135 F.3d at 157 (holding that FDIC Board need
not “demonstrate the exact amount of harm”). Though Calcutt argues that some charge-offs are
too small to constitute effects, we need not address this issue, because the FDIC supplemented its
finding with respect to the $30,000 effect with several other findings of effects. And the record
indicates that, because Calcutt participated extensively in negotiating and approving the Bedrock
Transaction, his actions proximately caused the Bedrock Loan charge-off.
 No. 20-4303 Calcutt v. FDIC Page 46

b. Investigative, Auditing, and Legal Expenses

The FDIC Board also agreed with ALJ McNeil that Calcutt’s misconduct caused the
Bank to incur expenses by retaining a CPA firm and a legal firm to conduct work relating to the
regulatory problems with the Nielson Entities relationship. We conclude, however, that such
professional fees are not “effects” under Section 8(e). Banks regularly engage accounting and
legal firms as part of their normal business, and we do not see how employing such businesses
for additional services related to imprudent loans is meaningfully different from their run-of-the-
mill engagements.

The FDIC Board reasoned that though legal fees “presumptively are a normal cost of
doing business,” they can constitute an effect when they “are coupled with other ‘non-neutral
indicia of loss,’” and that the Bank’s payments to a CPA firm and loan charge-offs constituted
such other non-neutral indicia. See Matter of Proffitt, FDIC-96-105e, 1998 WL 850087, at *9
n.11 (FDIC Oct. 6, 1998) (considering “a [court] judgment of improper and illegal behavior” in a
related lawsuit to be a non-neutral indicium). We are unpersuaded by this rationale: If
professional fees are not a loss unless they are coupled with other “non-neutral indicia of loss,”
then it may be that the fees do not have any independent significance. The two FDIC decisions
cited by the Board exemplify this problem, since in both instances banks suffered losses in
addition to their payment of professional fees. In Matter of Proffitt, the Board explained that “a
judgment of improper and illegal behavior”—in that context, a court judgment awarding a bank
to pay damages—plus legal fees could establish a qualifying loss. Id. at *3, *9 & n.11. And in
Matter of Shollenburg, the bank suffered additional losses besides professional fees in order to
satisfy tax laws that the respondents had violated. See FDIC-00-88e, 2003 WL 1986896, at *12–
13 (FDIC Mar. 11, 2003).

c. $6.443 Million in Other Losses

Next, the Board found that Calcutt’s actions cost the Bank $6.443 million in losses from
other loans to the Nielson Entities, and that his approval of the release of approximately
$1.2 million in Pillay Collateral prevented the Bank from using those funds to recoup part of
those losses. Apart from asserting that the Board failed to apply a proximate-causation standard,
 No. 20-4303 Calcutt v. FDIC Page 47

Calcutt argues that under that standard, the $6.443 million loss does not count as an effect,
because it represents a probable future loss from the entire Nielson Entity loan portfolio that
would have occurred regardless of his actions, and because the $1.2 million in released collateral
was used to pay off the Nielson Entities’ debts, thereby benefitting the Bank.18

Only part of the $6.443 million in charge-offs can be described as an effect proximately
caused by Calcutt’s misconduct. Recall that the Nielson Entities indicated that they were unable
to pay off debts as early as 2009. The Bank probably would have incurred some loss no matter
what Calcutt did: Although multiple parties’ actions can proximately cause the same outcome,
the state of the Bank’s relationship with the Nielson Entities suggests that Calcutt’s actions did
not substantially or directly contribute to all of its ultimate losses.

Additionally, the FDIC’s explanation for considering the $1.2 million of released
collateral in its loss calculation is unconvincing. In its decision, the FDIC Board reasoned that
had Calcutt not participated in the release of the Pillay Collateral in 2009 and 2010, those funds
would have been available to pay off debts owed by certain Nielson Entities that were secured by
that collateral. But that view ignores that the release of Pillay Collateral was used to satisfy
other Nielson Entity debts, and that the FDIC, in calculating the $6.443 million in losses,
considered all of the Bank’s loans to the companies together. We fail to see how the agency
could reasonably consider the interrelatedness of the Nielson Entities in one part of its loss
calculation and ignore those connections in another. Thus, the mere release of the $1.2 million
in collateral does not qualify as an effect.

Nevertheless, there is substantial evidence that part of the $6.443 million in losses was an
effect of Calcutt’s actions. The record indicates that Calcutt, knowing that the Nielson Entities
were near default and that they were a large lending relationship, extended credit and renewed
loans to them while concealing these transactions and the scale of the problem from the Bank’s
board and from regulators. ALJ McNeil also found that, in 2009, the Nielson Entities had
proposed loan renewals, forbearance, deeds in lieu of foreclosure, and other mechanisms to
relieve their obligations. Though Calcutt may have thought that these options would have

18Calcutt also suggests that because the $6.443 million was recorded in charge-offs, it does not qualify as a
loss. For the reasons previously discussed, this view fails. See supra at 45.
 No. 20-4303 Calcutt v. FDIC Page 48

resulted in “sure losses” to the Bank, the FDIC could have concluded from the record that his
decision to extend additional loans ultimately exacerbated the problem.

Additionally, there is substantial evidence that Calcutt’s actions resulted in probable
future losses to the Bank. Cf. 12 U.S.C. § 1818(e)(1)(B)(i) (permitting effects finding where
bank “will probably suffer financial loss or other damage”); Proffitt v. FDIC, 200 F.3d 855, 863
(D.C. Cir. 2000) (noting that “the effect prong can be met by either potential or actual ‘financial
loss or other damage’”). Even if there were insufficient evidence that Calcutt’s actions
surrounding the Bedrock Transaction and 2010 release of Pillay Collateral caused an actual loss,
his negotiation with the Nielson Entities and approval of loans despite indications that they
would not be able to repay their debts was a direct, substantial, and foreseeable cause of a
situation in which the Bank could suffer a potential loss. The record also shows that Calcutt’s
actions prevented the board and regulators from discovering and mitigating the probable losses
from these activities. Cf. Seidman, 37 F.3d at 937 (noting, in the context of identifying an unsafe
or unsound practice, that a chairman of a board of director’s “attempt to obstruct the
investigation, if continued, would pose an abnormal risk of damage” to the agency). Relying on
board members’ testimony and contemporaneous board minutes,19 ALJ McNeil found that the
board did not approve the loan to Bedrock Holdings until several months after the loan had
already been made. And Miessner testified (despite Calcutt’s theory that she was biased) that, in
her opinion, misrepresenting the condition of the Bank’s loans with the Nielson Entities exposed
the Bank to additional risk. In these circumstances, we conclude from the record as a whole that
Calcutt’s actions proximately caused an actual and potential loss to the Bank—even if the loss
did not amount to the total of $6.443 million.

d. Holding Company Dividends

Finally, the Board concluded that the dividends Calcutt received from the Bank’s holding
company qualified as a financial benefit that satisfied the “effects” element. See 12 U.S.C.
§ 1818(e)(1)(B)(iii) (providing that an effect is present when a party “has received financial gain
or other benefit by reason of such violation, practice, or breach”). The holding company,

19ALJ McNeil also found that Calcutt’s testimony regarding the timing of the board’s approval of the
Bedrock Transaction was not credible.
 No. 20-4303 Calcutt v. FDIC Page 49

Northwestern Bancorp, wholly owned the Bank, and Calcutt held approximately ten percent of
the shares in the holding company. In 2010 and 2011, the Bank paid dividends to Northwestern
Bancorp. The holding company, in turn, paid a dividend to its shareholders. Calcutt argues that
his alleged misconduct cannot have proximately caused a financial benefit, because
Northwestern Bancorp operated independently from the Bank and had alternative sources of
income; thus, even if the Bank’s income appeared inflated due to the improper reporting of the
Nielson Loans, it did not substantially affect the holding company’s payout to shareholders.

As in the circumstance of the FDIC’s categorization of the $6.443 million in losses, the
record compels an answer somewhere in between the two parties’ positions. On one hand, the
FDIC did not point to specific evidence in the record showing that Northwestern Bancorp’s
dividends with certainty reflected the inflated earnings from the Nielson Entities. It simply
assumed (and reasonably so) that the dividends paid by the holding company reflected the value
of the dividends paid by the Bank. On the other hand, Calcutt does not really challenge the
findings that the Bank paid a dividend to the holding company, nor that the Bank’s dividend
reflected its inflated representation of the Nielson Loans’ performance. Rather, his position is
that the holding company still might have paid out dividends from its other sources of income.
He does not provide evidence (other than his own testimony, which is stated in general terms) 20
that the holding company had ever paid dividends over and above a reflection of the Bank’s
perceived performance. Absent such evidence, we are skeptical that the Bank’s earnings did not
impact its holding company’s dividend payments. On balance, the evidence and common sense
support the agency’s position as to this effects finding.

e. Cumulative Effects

In sum, the support for the effects findings made by the FDIC Board are mixed. Taken
together, the $30,000 charge-off on the Bedrock Loan, some of the $6.443 million in other losses
related to the Nielson Entities, and some of the dividend payments that Calcutt received from

20“Q. Did the holding company have sufficient capacity to make payments to shareholders regardless of
whether there were dividends being paid by the Bank to the holding company?
A. [Calcutt:] Yes, for some years the holding company not only had its own assets that generated some
income but it had a line of credit so it had capacity to make dividend payments to shareholders. Again, we were, we
were laughed at a bit in the industry because we had one of the lowest dividend payout ratios that was recorded.”
 No. 20-4303 Calcutt v. FDIC Page 50

Northwestern Bancorp occurred “by reason of” his misconduct surrounding loan activities and
misrepresentations to the Bank’s board of directors and regulators. But the Bank’s auditing and
legal fees do not qualify as an effect, and Calcutt’s actions may not have proximately caused
some of the losses and dividend payments.

These conclusions lead to a further question: If some, but not all, of the FDIC’s effects
findings are supported, should the Removal and Prohibition Order be remanded? One might
argue that had the FDIC only considered those effects for which the record presented substantial
evidence, it would not have thought it appropriate to remove Calcutt from his banking positions
and prohibit him from participation in the industry. Or, perhaps one might say that the whittled-
down effects findings are sufficiently minimal to compel us to send the matter back to the agency
for further findings and proceedings.

A remand is not necessary, for several reasons. To start, the text of the statute indicates
that if substantial evidence supports the FDIC’s finding as to one effect out of multiple
possibilities, the fact that it fails to adequately support its other effects findings does not limit its
power to issue a removal and prohibition order. Section 8(e)(1)(B) separates the categories of
permissible effects by the disjunctive term “or”: The agency must find that “by reason of” the
misconduct,

(i) such insured depository institution . . . has suffered or will probably suffer
financial loss or other damage;
(ii) the interests of the insured depository institution’s depositors have been or
could be prejudiced; or
(iii) such party has received financial gain or other benefit . . . .

12 U.S.C. § 1818(e)(1)(B) (emphases added). Generally, “terms connected by a disjunctive [are]
given separate meanings, unless the context dictates otherwise.” Reiter v. Sonotone Corp.,
442 U.S. 330, 339 (1979). For example, when a statute lists two activities connected by “or,” the
natural reading is usually that it applies to either activity. See Encino Motorcars, LLC v.
Navarro, 138 S. Ct. 1134, 1141 (2018). Thus, the text of the FDI Act permits the FDIC to
remove and prohibit a party (assuming that the misconduct and culpability elements are met) as
long as the evidence supports a finding of one out of any of the options provided by Section
 No. 20-4303 Calcutt v. FDIC Page 51

8(e)(1)(B). Because we conclude here that substantial evidence supports several of the FDIC’s
effects findings, the statutory text indicates that the Removal and Prohibition Order should stand.

Additionally, other circuits have also suggested that when such a finding can be
supported by one of several alternative bases, courts should deny petitions challenging the
agency’s order. In Dodge, for example, the District of Columbia Circuit upheld an effects
finding when substantial evidence supported the Comptroller of the Currency’s conclusions that
a bank’s depositors could be prejudiced under Section 8(e)(1)(B)(ii) and that the petitioner
received a financial benefit under Section 8(e)(1)(B)(iii)—even when the court declined to rely
on the Comptroller’s finding of potential harm to the bank under Section 8(e)(1)(B)(i). 744 F.3d
at 158. And in De la Fuente, the Ninth Circuit held that the FDIC Board “correctly concluded
that De La Fuente’s [sic] actions had an impermissible effect because he received financial
benefit from the transaction and/or because the interests of [the bank’s] depositors were
prejudiced thereby.” 332 F.3d at 1223 (emphasis added). That is, the court suggested that even
if the Board had incorrectly concluded that the petitioner received financial benefit, its separate
finding of prejudice to depositors was sufficient to satisfy the effects element.

Finally, a remand would be in tension with the substantial-evidence standard of review
for factual findings. In conducting this review, we consider the whole record, 5 U.S.C. § 706(2),
but we must uphold an agency’s decision even if we “would decide the matter differently . . . and
even if substantial evidence also supports the opposite conclusion.” Gen. Med., P.C., 963 F.3d at
520 (quoting Cutlip, 25 F.3d at 286). As we have explained, the record in this case provides
substantial evidence to conclude that Calcutt’s actions produced sufficient effects to merit the
FDIC’s sanction, even if some findings as to other effects were incorrect. We cannot nitpick the
agency’s factfinding more than that.

Our dissenting colleague would nonetheless remand the petition to the FDIC, reasoning
that only that remedy is consistent with the principle that courts may not uphold an agency’s
order “unless the grounds upon which the agency acted in exercising its powers were those upon
which its action can be sustained.” SEC v. Chenery Corp., 318 U.S. 80, 95 (1943). While we do
not question Chenery, that decision does not mean that a court must remand where the agency
makes any legal error, especially where substantial evidence amply supports an agency’s
 No. 20-4303 Calcutt v. FDIC Page 52

findings. Remand is unnecessary where an agency’s “incorrect reasoning was confined to that
discrete question of law and played no part in its discretionary determination,” and it reaches a
conclusion that it was bound to reach. United Video, Inc. v. FCC, 890 F.2d 1173, 1190 (D.C. Cir.
1989); see also Morgan Stanley Cap. Grp. Inc. v. Pub. Util. Dist. No. 1., 554 U.S. 527, 545
(2008) (“That [the agency] provided a different rationale for the necessary result is no cause for
upsetting its ruling.”). Reading Chenery so broadly as to compel remand in such circumstances
would result in yet another agency proceeding that amounts to “an idle and useless formality.”
NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766 n.6 (1969) (plurality op.). And it would risk
contradicting the harmless-error rule in courts’ review of agency action. See Sanders, 556 U.S.
at 406–07.

Thus, we do not uphold the FDIC’s order in this case simply by substituting our
reasoning for the agency’s discretionary determinations. Rather, our inquiry focuses on whether
substantial evidence supports the FDIC’s factual findings that the charge-offs, dividends, and
other expenses were “effects” under the statute. Notwithstanding the agency’s error in
identifying the appropriate causation standard, and our conclusion that legal expenses do not
qualify as “effects,” the agency’s findings clear this hurdle. We decline to remand the petition to
the FDIC.

3. Sanction

Finally, Calcutt claims that the FDIC’s order removing him from his position and
prohibiting him from future banking activities is an abuse of discretion. Courts review a removal
sanction for abuse of discretion. Grubb v. FDIC, 34 F.3d 956, 963 (10th Cir. 1994). A sanction
constitutes an abuse of discretion when it “is unwarranted in law or without justification in fact.”
Ibid. (quoting Butz v. Glover Livestock Comm’n Co., 411 U.S. 182, 185–86 (1973)) (quotation
marks omitted). According to Calcutt, his penalty is “plainly excessive” in light of his
subsequent, misconduct-free work for State Savings Bank, his age, and the harshness of the
penalty. Br. of Petitioner 63. True, removal and prohibition are “extraordinary sanction[s].”
De la Fuente, 332 F.3d at 1227. And, as Calcutt notes, the FDIC could have opted to proceed
with only a cease-and-desist order or civil monetary penalty. But for the reasons we have
explained, Section 8(e) clearly permits removal and prohibition for the actions that the FDIC
 No. 20-4303 Calcutt v. FDIC Page 53

alleges in this case, and the FDIC’s conclusions are well supported. The agency’s sanction
choice is not an abuse of discretion under these circumstances.

V. CONCLUSION

For the reasons above, we deny Calcutt’s petition for review and vacate our stay of the
FDIC’s Removal and Prohibition Order.
 No. 20-4303 Calcutt v. FDIC Page 54

_________________

DISSENT
_________________

MURPHY, Circuit Judge, dissenting. After adjudging Harry Calcutt guilty of
misconduct in the management of a bank, the Federal Deposit Insurance Corporation (FDIC)
issued an order that would bar him from working in his profession and fine him $125,000.
Calcutt challenges this order on constitutional and statutory grounds. My colleagues reject all of
his claims. I agree with them on his constitutional claims but must part ways on his statutory
ones.

Calcutt’s three constitutional claims do not entitle him to relief. He first alleges that
Congress has unconstitutionally restricted the President’s right to terminate (and so to control)
the FDIC’s Board of Directors. But his argument rests on a misreading of the Board’s enabling
statute. It gives the President complete authority to fire most of the Board’s members. Calcutt
next argues that Congress at least gave one Board member and the FDIC’s administrative law
judges unconstitutional protections from removal. Even assuming that this claim has merit,
however, he fails to show why these unconstitutional statutes would entitle him to the relief that
he seeks—vacatur of the FDIC’s actions in his case as “void.” The Constitution itself requires
no remedy. And I would read recent Supreme Court precedent to bar his preferred remedy
because that reading best comports with the historical practices that we should follow until
Congress says otherwise. Calcutt lastly notes that the first administrative law judge who heard
his case had not been appointed in a manner that comported with the Constitution’s
Appointments Clause. The Board agreed and gave him a new hearing before a new judge.
Calcutt now claims that the Appointments Clause barred this new judge from relying on any
evidence developed at the initial hearing. But again, nothing in the Constitution required any
remedy, let alone Calcutt’s expansive one.

Calcutt’s statutory claims are another matter. The FDIC misread the statute on which it
relied to sanction him. Of most note, the FDIC cannot bar Calcutt from banking unless it proves
that his bank will suffer a loss (or that he will receive a benefit) “by reason of” his misconduct.
12 U.S.C. § 1818(e)(1)(B). As the Supreme Court has long made clear, the phrase “by reason
 No. 20-4303 Calcutt v. FDIC Page 55

of” incorporates common-law principles of but-for and proximate cause. Yet the FDIC’s order
ignored but-for cause and disavowed proximate cause. In fact, the agency held Calcutt liable for
his bank’s entire loss from underwater loans even though the Great Recession likely would have
caused the bank to suffer much (if not all) of this loss no matter what he did. Congress has given
the FDIC “extraordinary power” to regulate private parties with only limited judicial oversight.
In re Seidman, 37 F.3d 911, 929 (3d Cir. 1994). After Stern v. Marshall, 564 U.S. 462 (2011),
one might wonder whether the agency exercises judicial power by adjudicating cases that
deprive individuals of private rights. At the least, its significant authority should make us
diligent to ensure that the agency has “turn[ed] square corners when” dealing with the regulated
community. Niz-Chavez v. Garland, 141 S. Ct. 1474, 1486 (2021). Because the FDIC did not
do so in this case, I would remand for it to apply the proper law. I thus respectfully dissent.

I. Background

Calcutt served for years as the President and Chairman of Northwestern Bank in Traverse
City, Michigan. During his tenure, entities controlled by the Nielson family (the “Nielson
Entities”) became the Bank’s largest borrowers with $38 million in loans. The Nielson Entities
ran real-estate businesses that struggled during the Great Recession. They defaulted in
September 2009. Two months later, the Bank entered into the “Bedrock Transaction” with the
entities. It issued them another $760,000 loan and released to them $600,000 of funds held as a
security interest. Yet things did not improve. The Nielson Entities again defaulted in September
2010. After the Bank released to them another $690,000 in secured funds, the entities defaulted
a final time in January 2011. The Bank incurred $6.443 million in “charge-offs” (amounts
unlikely to be collected) from the loans and $30,000 in charge-offs from the Bedrock
Transaction.

These events led the FDIC to seek to “remove” Calcutt “from office” and to impose a
“civil penalty” on him. 12 U.S.C. § 1818(e)(1), (i)(2)(B). The first administrative law judge
who heard his case had been unlawfully appointed, so the FDIC assigned him a new judge. This
judge found that Calcutt had committed many statutory violations and that the FDIC should bar
him from banking and fine him $125,000. The FDIC agreed. It held that Calcutt had engaged in
“unsafe or unsound practice[s]” and committed “breach[es]” of his “fiduciary dut[ies]” mainly in
 No. 20-4303 Calcutt v. FDIC Page 56

connection with the Bedrock Transaction. Id. § 1818(e)(1)(A)(ii)–(iii). Among other
misconduct, it found that he had violated the Bank’s lending standards by agreeing to that
transaction, had hid the transaction’s true nature from the Bank’s board of directors, and, perhaps
most seriously, had lied to regulators about it. The FDIC also found that the Bank would likely
suffer “financial loss” and that Calcutt had “received financial gain” “by reason of” this
misconduct. Id. § 1818(e)(1)(B).

II. Constitutional Claims

I agree with my colleagues that Calcutt’s constitutional arguments all fall short. But my
reasoning rests largely on different grounds.

A. Restrictions on the President’s Ability to Control the FDIC

Calcutt first argues that the FDIC’s statutory scheme gives the President constitutionally
insufficient control over the agency’s exercise of executive power. Why? He assumes that the
statute creating the FDIC’s five-member Board of Directors bars the President from removing
most of its members except “for cause.” See 12 U.S.C. § 1812. This limit, Calcutt reasons,
impairs the President’s ability to command the “executive Power” and to “take Care that the
Laws be faithfully executed.” U.S. Const. art. II, § 1, cl. 1; id. § 3. He has a point. The
Supreme Court recently found unconstitutional similar “for cause” limits on the President’s
ability to remove the Director of the Consumer Financial Protection Bureau (CFPB). Seila Law
LLC v. CFPB, 140 S. Ct. 2183, 2197–2207 (2020). In response, the FDIC “does not dispute
Calcutt’s assumption” that § 1812 gives the Board these removal protections. Resp. Br. 17 n.7.
But it argues that they pass muster under Humphrey’s Executor v. United States, 295 U.S. 602
(1935), which upheld similar protections for the Federal Trade Commission (FTC). Id. at 626–
30.

As an intermediate judge, I find this constitutional question difficult. On the one hand,
Humphrey’s Executor relied on the FTC’s nonpartisan, multimember structure to uphold the
provision limiting the President’s ability to fire its commissioners. Id. at 624–25. The FDIC
shares the same structure. Compare 12 U.S.C. § 1812(a)(1)–(2), with 15 U.S.C. § 41. And while
Seila Law may well call Humphrey’s Executor into doubt, lower courts must follow a case that is
 No. 20-4303 Calcutt v. FDIC Page 57

directly on point even if another decision has undercut it. See Agostini v. Felton, 521 U.S. 203,
237 (1997).

On the other hand, Humphrey’s Executor may not be directly on point. It also upheld the
FTC’s removal protections because, as the Court understood the FTC’s duties in 1935, the
agency undertook “no part of the executive power[.]” 295 U.S. at 628. The FDIC, by contrast,
performs core executive functions. Here, it has essentially brought a civil-enforcement suit
against Calcutt to ban him from banking and impose a hefty fine on him. It thus is executing
(i.e., carrying into effect) the law barring “unsafe or unsound” banking practices. 12 U.S.C.
§ 1818(e)(1)(A)(ii); see Saikrishna Prakash, The Chief Prosecutor, 73 Geo. Wash. L. Rev. 521,
537–40 (2005). For executive officers of this kind, “the President’s removal power [has been]
the rule, not the exception.” Seila Law, 140 S. Ct. at 2206; see Myers v. United States, 272 U.S.
52, 111–75 (1926); Michael W. McConnell, The President Who Would Not Be King 161–69,
335–41 (2020).

But I see no reason to resolve the parties’ constitutional debate because I do not read the
FDIC’s statutory scheme to implicate it. Rather, I read the statute that creates the FDIC’s Board
(12 U.S.C. § 1812) as giving the President full power to remove all but one of the Board’s five
members. Since the Dodd-Frank Wall Street Reform and Consumer Protection Act, the Board
has consisted of the Comptroller of the Currency, the CFPB’s Director, and three other
presidentially appointed members. Pub. L. No. 111-203, § 336(a), 124 Stat. 1376, 1540 (2010);
12 U.S.C. 1812(a)(1). All agree that the President may fire the Comptroller for any reason.
12 U.S.C. § 2.

So the President’s ability to control the Board turns on whether he has free rein to fire its
three appointed members. The statute creating their offices provides: “Each appointed member
shall be appointed for a term of six years.” Id. § 1812(c)(1). This statute says nothing that
expressly grants for-cause removal protections to these members. Maybe the mere creation of a
fixed-year term implies that the President may not remove them before their terms end? That
view raises a host of problems. If read this way, wouldn’t the text create an “absolute” ban on
removal even if the President has an excellent reason (like fraud)? Parsons v. United States,
167 U.S. 324, 343 (1897). How can we read the text to include an implied gloss authorizing
 No. 20-4303 Calcutt v. FDIC Page 58

some removals (for cause) on top of an implied restriction generally barring them? That is an
awful lot of implications. And if we were to create this gloss, how do we decide what counts as
adequate “cause”? Judicial intuition? Simply put, we would be legislating rather than
interpreting if we read § 1812 to bar all but for-cause removals. See Morgan v. Tenn. Valley
Auth., 115 F.2d 990, 992–93 (6th Cir. 1940).

Historical context confirms that § 1812 does not interfere with the President’s ability to
remove the Board’s appointed members. The provision establishing their six-year term dates to
the creation of the FDIC in 1933. Banking Act of 1933, Pub. L. No. 73-66, § 8, 48 Stat. 162,
168. At that time, a “well-approved” “rule of” “statutory construction” directed courts to
interpret laws that gave the President the power to appoint an executive officer as including the
power to remove the officer. Myers, 272 U.S. at 119. So if a law was silent on removal, the
President could terminate the officer for any reason. See Shurtleff v. United States, 189 U.S. 311,
316 (1903); Parsons, 167 U.S. at 338–39. The Congress that created the FDIC operated against
this interpretive rule. See Collins v. Yellen, 141 S. Ct. 1761, 1782 (2021). And while the Court
has since departed from the rule once, it relied on the “philosophy of Humphrey’s Executor” to
do so. Wiener v. United States, 357 U.S. 349, 356 (1958). That philosophy did not exist in
1933.

A constitutional concern points the same way. Before Humphrey’s Executor, the
Supreme Court had broadly held that Congress could not constitutionally limit the President’s
power to fire officers who are appointed with the advice and consent of the Senate. See Myers,
272 U.S. at 109–76. The FDIC was created between Myers and Humphrey’s Executor—when
the Court treated these removal protections as presumptively invalid. Myers “aroused wide
interest,” Morgan, 115 F.2d at 992, so Congress would have known that such protections raised
“grave” constitutional “doubts,” United States v. Jin Fuey Moy, 241 U.S. 394, 401 (1916). These
concerns make it all the more implausible to read a law passed at this time as silently including
them. See Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 545–46 (2010)
(Breyer, J., dissenting). In short, the President has unfettered power to fire (and control) most of
the FDIC’s Board.
 No. 20-4303 Calcutt v. FDIC Page 59

To be sure, both parties seem content to assume that the statute grants the Board
protections from removal. Cf. United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020). In
a related case, the Supreme Court also assumed that another agency had these protections. Free
Enter. Fund, 561 U.S. at 487. Yet parties cannot force courts to accept their stipulations of law.
See Young v. United States, 315 U.S. 257, 258–59 (1942). Under basic avoidance principles,
moreover, our power to address an unraised issue reaches its apex when parties ask us to resolve
a weighty constitutional question that a statute might not present. Cf. Nw. Austin Mun. Util. Dist.
No. One v. Holder, 557 U.S. 193, 205 (2009). That is especially true here. Calcutt’s
constitutional claim, if accepted, would take us right back to a statutory “severability” question:
Which parts of the statute must we set aside as unconstitutional? See Free Enter. Fund, 561 U.S.
at 508–10; John Harrison, Severability, Remedies, and Constitutional Adjudication, 83 Geo.
Wash. L. Rev. 56, 88–89 (2014). If the removal protections are imaginary, this question has an
easy answer. We should disregard those protections. Since we may have to consider this
statutory issue even if we reach Calcutt’s constitutional claim, we might as well reach it
immediately. See William Baude, Severability First Principles, 109 Va. L. Rev. ____
(forthcoming 2023) (manuscript at 44–45).

*

Even so, Calcutt responds, the President and Board believed that § 1812 contained
removal protections. This belief, Calcutt argues, “shows that the Board enjoyed de facto tenure
protections while pursuing this enforcement action, causing” him harm. Reply Br. 7 n.1. I agree
that the executive branch likely read the statute this way. But why would “de facto” protections
violate the law? Consider a hypothetical: Disagreeing with my reading, the President issues an
order stating that he will adhere to for-cause removal rules for the Board due to his views of
§ 1812 and the Constitution. If we conclude that this order misreads § 1812 and that the statute
would be unconstitutional if it imposed such protections, would the order violate the Constitution
or statute?

I fail to see why it would violate the Constitution. Like the Supreme Court when
resolving cases, the President must interpret the Constitution when performing his constitutional
duties. See Island Creek Coal Co. v. Bryan, 937 F.3d 738, 753 (6th Cir. 2019) (citing Frank H.
 No. 20-4303 Calcutt v. FDIC Page 60

Easterbrook, Presidential Review, 40 Case W. Res. L. Rev. 905 (1990)). Presidents have
routinely done so. When exercising his pardon power, President Jefferson pardoned those
convicted under the Sedition Act of 1798 because he believed that the convictions violated the
First Amendment. See New York Times Co. v. Sullivan, 376 U.S. 254, 273–76 (1964). When
exercising his veto power, President Jackson vetoed a bill reauthorizing the national bank
because he believed that Congress lacked the power to create it. See Easterbrook, supra, at 909–
10. Like these powers, the removal power belongs to the President. See Seila Law, 140 S. Ct. at
2197–98. So what constitutional provision would the President offend by self-limiting this
power? If anything, a court’s intrusion on his authority would raise the concerns. If an injured
bank customer had sued President Jackson over his national-bank veto, nobody (I hope) would
claim that a court could enjoin the President’s veto with a citation to McCulloch v. Maryland,
17 U.S. 316 (1819). See Collins, 141 S. Ct. at 1794 (Thomas, J., concurring). We would raise
identical separation-of-powers problems if we intruded on the President’s lawful exercise of the
removal power with a citation to Seila Law.

Nor would this hypothetical executive order violate § 1812. The statute gives the
President the power to remove any of the Board’s appointed members for any reason. The
President thus may retain any member for any reason—whether based on his reading of the
statute or on the benefits of a civil-service system. In this respect, the statute is not much
different than a provision that sets the minimum process that an agency must provide. That floor
does not foreclose the agency from offering additional process. Cf. Vt. Yankee Nuclear Power
Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 543–49 (1978); Al-Saka v. Sessions,
904 F.3d 427, 432 (6th Cir. 2018); Easterbrook, supra, at 908. So while § 1812 does not impose
for-cause removal protections on the President, it also does not bar him from imposing those
protections on himself.

Now adjust my hypothetical slightly: Before the FDIC acted in Calcutt’s case, “suppose
that the President had made a public statement expressing displeasure with actions taken by [its
Board] and had asserted that he would remove [its members] if [§ 1812] did not stand in the
way.” Collins, 141 S. Ct. at 1789. If the President’s (mis)reading of § 1812 does not violate the
law once he knows that the courts will interpret it differently than he does, why would this
 No. 20-4303 Calcutt v. FDIC Page 61

reading violate the law before he knows how they will interpret it? I am not sure. Yet I would
leave open whether courts may vacate agency action as “arbitrary and capricious” under the
Administrative Procedure Act (APA) if the President’s reading tangibly affected the disputed
action. 5 U.S.C. § 706(2)(A); Collins, 141 S. Ct. at 1794 n.7 (Thomas, J., concurring). We need
not decide this question because the APA tells us to take “due account” “of the rule of prejudicial
error.” 5 U.S.C. § 706. Calcutt thus would have needed to show that any mistaken belief about
the Board’s removal protections harmed him (by, for example, affecting the Board’s makeup).
See Jicarilla Apache Nation v. U.S. Dep’t of Interior, 613 F.3d 1112, 1121 (D.C. Cir. 2010).
He presented no such evidence.

Calcutt responds that we should remand to the FDIC to allow him to seek discovery over
whether any de facto protections harmed him. That leads to my final point. An FDIC regulation
contains an issue-exhaustion rule that requires parties to raise all exceptions to an administrative
law judge’s decision with the Board. 12 C.F.R. § 308.39(b). Calcutt concedes that he did not
raise this facial constitutional challenge with the agency but says that exhaustion mandates
categorically do not apply to those challenges. I am not so confident. Courts must tread lightly
before creating implied exceptions to regulatory exhaustion rules (as opposed to judge-made
ones). Bryan, 937 F.3d at 751–52. Yet I find the FDIC’s specific regulation unclear as to
whether its text even covers these types of challenges. Cf. id. at 752. I thus would leave this
question for another day because exhaustion is a nonjurisdictional affirmative defense. See
Jones v. Bock, 549 U.S. 199, 211–12 (2007). A rejection of Calcutt’s claim on statutory grounds
makes the issue unnecessary to decide. Cf. Woodford v. Ngo, 548 U.S. 81, 101 (2006). Apart
from exhaustion, however, I see no reason why we should give Calcutt a redo to obtain discovery
that he did not seek the first time around.

B. Restrictions on Removal of the CFPB Director and Administrative Law Judge

Calcutt next challenges two unambiguous removal protections. First, the law that created
the FDIC’s final Board member—the CFPB Director—gives the Director these protections.
12 U.S.C. § 5491(c)(3). As noted, Seila Law found this provision unconstitutional. 140 S. Ct. at
2201–07. And while the President could control all of the other Board members, Calcutt claims
that Congress may not create a multimember agency with even one tenure-protected member.
 No. 20-4303 Calcutt v. FDIC Page 62

Second, “dual for-cause limitations” on removal insulated the administrative law judge who
heard Calcutt’s case from presidential oversight. Free Enter. Fund, 561 U.S. at 492. The judge
could be fired only if the Merit System Protection Board found “good cause,” 5 U.S.C.
§ 7521(a), and the President could remove that entity’s members only for cause too, id.
§ 1202(d). Calcutt claims that the Constitution bars the judge’s “double insulation” from the
President. Compare Decker Coal Co. v. Pehringer, 8 F.4th 1123, 1129–36 (9th Cir. 2021), with
Fleming v. U.S. Dep’t of Agric., 987 F.3d 1093, 1113–18 (D.C. Cir. 2021) (Rao, J., concurring in
part and dissenting in part).

I see no need to opine on the merits of these claims. We must distinguish the
constitutional questions that Calcutt raises (do the removal statutes violate the Constitution?)
from a separate remedies question (if so, do these defects entitle him to his requested relief?).
As his proposed remedy, Calcutt asks us to vacate the FDIC’s order as “void.” But he fails to
identify the source of law that requires (or permits) courts to treat the FDIC’s past actions as
void because potentially unconstitutional statutes attempted to insulate two of the FDIC’s
officers from the President’s removal power. And my review of the relevant legal authorities
leads me to conclude that Calcutt could not obtain this relief even if he successfully established
the statutes’ unconstitutionality.

1

Because Calcutt seeks relief for a constitutional violation, the Constitution provides the
place to start on this remedies question. But it says almost nothing about remedies.
Cf. Hernandez v. Mesa, 140 S. Ct. 735, 741–43 (2020); Armstrong v. Exceptional Child Ctr.,
Inc., 575 U.S. 320, 324–27 (2015). Except for a few provisions like the requirement to pay “just
compensation” for a taking, see Knick v. Township of Scott, 139 S. Ct. 2162, 2171 (2019), the
Constitution sets only limits on government conduct without prescribing specific relief for
violations, see Alfred Hill, Constitutional Remedies, 69 Colum. L. Rev 1109, 1118 (1969). One
thus will search Article II in vain for an explicit constitutional remedy that applies to an invalid
removal provision.
 No. 20-4303 Calcutt v. FDIC Page 63

Where else should we look? The founders enacted the Constitution against the backdrop
of a preexisting legal system with preexisting causes of action and remedies. See id. at 1131–32.
Before the founding, for example, this system often allowed equity courts to issue injunctions to
stop “illegal executive action[.]” Armstrong, 575 U.S. at 327; Ex parte Young, 209 U.S. 123,
150–51 (1908). The Supreme Court has held that we may use these preexisting “judge-made”
remedies to redress constitutional wrongs unless Congress displaces them. Armstrong, 575 U.S.
at 327–28.

But courts should not take this allowance too far. The Constitution does not give us
freewheeling power to adopt federal common-law remedies based on our views of wise policy.
See Hernandez, 140 S. Ct. at 741–42 (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)).
And the Court “disfavor[s]” remedies that are rooted in legislative-like choices about the best
way to deter illegal acts. Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017) (citation omitted).

This dichotomy points the way here. We lack an inherent power to treat the FDIC’s
actions as “void” because we think it would be a good idea. See Hernandez, 140 S. Ct. at 741–
42. We instead must look to the causes of action and remedies that traditionally applied to
claims like Calcutt’s—that a statutory provision related to an office was illegal and that this
defect rendered the officer’s actions void. When courts traditionally chose remedies for this sort
of claim, they distinguished between two types of officers: a “de facto officer” in a lawful
office (whose actions were enforceable) and a “mere usurper” in an unlawful one (whose
actions were void). Albert Constantineau, A Treatise on the De Facto Officer Doctrine §§ 5, 34,
at 8–10, 52–53 (1910).

De Facto Officer in Lawful Office. For centuries, parties have alleged that an officer was
unlawfully holding (and performing the duties of) an office. To give an example at the time of
the founding, a party claimed that a sheriff could not hold that office because the sheriff had
not lived in the county as long as the law required. State v. Anderson, 1 N.J.L. 318, 324–28
(N.J. 1795).

English courts channeled these claims into a specific writ (“quo warranto”) with a
specific remedy (prospectively ousting the officer). See 3 William Blackstone, Commentaries
 No. 20-4303 Calcutt v. FDIC Page 64

*262–64; 2 Edward Coke, Institutes of the Laws of England 282, 494–99 (1642). American
courts followed suit. Constantineau, supra, § 451, at 635 n.1; State v. Parkhurst, 9 N.J.L. 427,
437–38 (N.J. 1802). Three aspects of the quo warranto action deserve mention. For one, invalid
officers caused public harms, so the government itself typically needed to sue them. See Wallace
v. Anderson, 18 U.S. 291, 292 (1820). Yet private parties could sue on the government’s behalf
if they showed a unique interest. See Newman v. United States ex rel. Frizzell, 238 U.S. 537,
549–51 (1915). For a second, the remedy was exclusive. Constantineau, supra, § 451, at 635.
A party disputing an officer’s authority could not sue for an injunction “to restrain the exercise of
official functions[.]” Floyd R. Mecham, A Treatise on the Law of Public Offices and Officers
§ 478, at 307 (1890). For a third, the remedy exists today. See D.C. Code § 16-3503. Parties
may ask the Attorney General to seek this relief or request leave of court to seek it themselves—
a process that may look “cumbersome” to modern eyes. Andrade v. Lauer, 729 F.2d 1475,
1497–98 (D.C. Cir. 1984) (Wright, J.).

Yet the process has always looked cumbersome. Rather than file a direct quo warranto
suit to oust invalid officers, parties harmed by the officers’ actions have tried to collaterally
attack their qualifications in suits involving the actions. Id. at 1496. Since 1431, English courts
have rebuffed these attacks under the “de facto officer doctrine.” Constantineau, supra, § 5, at
8–10 (citing The Abbé de Fontaine, 1431 Y.B. 9 Hen. VI, fol. 32, pl. 3 (Eng.)); Clifford L.
Pannam, Unconstitutional Statutes and De Facto Officers, 2 Fed. L. Rev. 37, 39–42 (1966).
That doctrine treats the past actions of an officer with a colorable claim to office as valid whether
or not the officer met all conditions to hold the office. Constantineau, supra, § 1, at 3–4.
English courts introduced it “into the law as a matter of policy and necessity, to protect the
interests of the public and individuals, where those interests were involved in the official acts of
persons exercising the duties of an office, without being lawful officers.” State v. Carroll, 38
Conn. 449, 467 (1871).

American courts likewise adhered to the de facto officer doctrine as a corollary to the
exclusive quo warranto remedy. See Cocke v. Halsey, 41 U.S. 71, 81–88 (1842); Taylor v.
Skrine, 5 S.C.L. 516, 516–17 (S.C. 1815); Fowler v. Bebee, 9 Mass. 231, 234–35 (1812); People
ex rel. Bush v. Collins, 7 Johns. 549, 554 (N.Y. 1811) (per curiam). Notably, these courts upheld
 No. 20-4303 Calcutt v. FDIC Page 65

the actions of invalid officers who did not meet constitutional conditions on their offices.
An officer might not have taken an oath. Cf. Bucknam v. Ruggles, 15 Mass. 180, 182–83 (1818)
(per curiam). Or the officer might have been appointed in an illegal way. Cf. Ex parte Ward,
173 U.S. 452, 454 (1899). Or the officer might have flunked an eligibility requirement. Perhaps
the officer was too young. Cf. Blackburn v. State, 40 Tenn. 690, 690–91 (1859). Or maybe the
officer had been in the Congress that increased the office’s salary before taking office. Cf. U.S.
Const. art. I, § 6, cl. 2; William Baude, The Unconstitutionality of Justice Black, 98 Tex. L. Rev.
327 (2019); In re Griffin, 11 F. Cas. 7, 27 (C.C.D. Va. 1869) (No. 5,815). The same rules
applied even if the officer held the office by reason of an unconstitutional statute. See
Constantineau, supra, §§ 192–96, at 264–70. An early decision thus upheld the acts of an officer
who had been appointed by the governor under a statute authorizing this appointment, even
though the state constitution had required the legislature to elect the officer. See Taylor, 5 S.C.L.
at 516–17; Carroll, 38 Conn. at 474; see also State v. McMartin, 43 N.W. 572, 572 (Minn.
1889); Ex Parte Strang, 21 Ohio St. 610, 615–18 (1871); cf. Buckley v. Valeo, 424 U.S. 1, 142
(1976) (per curiam).

Usurper in Unlawful Office. Other times, parties have alleged that a generic office could
not exist because it had been assigned “sovereign functions” that it could not possess. Mecham,
supra, § 4, at 5. In one case, for example, a party alleged that a legislatively created “court”
could not perform judicial duties because those duties had been vested in a wrongly abolished
life-tenured court. Hildreth’s Heirs v. McIntire’s Devisee, 24 Ky. 206, 207–08 (1829); Jeffrey S.
Sutton, Who Decides? States as Laboratories of Constitutional Experimentation 76–80 (2022).

Courts granted much broader relief for this type of claim. Parties affected by an illegal
office did not need to sue in quo warranto to dispute the officeholder’s power to perform the
challenged function. Parties instead could dispute the officer’s conduct “in any kind” of suit.
Walcott v. Wells, 24 P. 367, 370 (Nev. 1890); Mecham, supra, §§ 324–26, at 216–18. And the
opposing party could not defend the officer’s past acts using the de facto officer doctrine.
Constantineau, supra §§ 34–36, at 51–55. The officer instead was “merely a usurper, to whose
acts no validity can be attached[.]” Norton v. Shelby County, 118 U.S. 425, 449 (1886).
 No. 20-4303 Calcutt v. FDIC Page 66

This rule extended to constitutional defects. The Supreme Court may have followed it as
early as United States v. Yale Todd (U.S. 1794). United States v. Ferreira, 54 U.S. 40, 52–53
(1851) (note by Taney, C.J.). This unreported case addressed a law allowing pensions for
disabled Revolutionary War veterans. The law ordered circuit courts to determine whether
applicants were disabled and to send their findings to the Secretary of War. Circuit judges
(including Supreme Court Justices) found that the law unconstitutionally gave courts executive
power by making them the Secretary’s administrators. Hayburn’s Case, 2 U.S. 408, 410 n.*
(1792). Given the law’s benevolent goals, though, some judges awarded pensions by claiming to
act as “commissioners.” See Wilfred J. Ritz, United States v. Yale Todd (U.S. 1794), 15 Wash.
& Lee L. Rev. 220, 228–29 (1958). Congress ordered the Attorney General to seek Supreme
Court review of pensions granted by judges “styling themselves commissioners.” Act of Feb.
28, 1793, 1 Stat. 324, 325. In Yale Todd’s case, the Court required him to return the funds. Ritz,
supra, at 228–30. As others have noted, the Court may well have found the judges’ actions void
because they unconstitutionally undertook executive functions. Ferreira, 54 U.S. at 53 (note by
Taney, C.J.); Keith E. Whittington, Judicial Review of Congress before the Civil War, 97 Geo.
L.J. 1257, 1270–74 (2009).

Many decisions followed this remedial approach for claims that a legislative body had
granted functions to an office that it could not lawfully possess. See Town of Decorah v. Bullis,
25 Iowa 12, 18–19 (1868); Hildreth’s Heirs, 24 Ky. at 207–08; G. L. Monteiro, Annotation, De
Jure Office as Condition of De Facto Officer, 99 A.L.R. 294 § III(a) (1935), Westlaw (database
updated 2022). When, for example, a legislature assigned local-government functions to a board
of commissioners that the state constitution vested in justices of the peace, the Supreme Court
treated the board’s actions as void. Norton, 118 U.S. at 441–49. It refused to apply the de facto
officer doctrine because that doctrine required a valid (“de jure”) office. Id. at 444–45.

The Supreme Court’s modern cases also treat an officer’s actions as void if the generic
office could “not lawfully possess” the power to take them. Collins, 141 S. Ct. at 1788. The
Court thus found invalid a bankruptcy judge’s decision in a suit that an Article III court needed
to resolve. See Stern v. Marshall, 564 U.S. 462, 503 (2011). And a plurality rejected the de
facto officer doctrine when a party claimed that Congress assigned to Article I judges a duty
 No. 20-4303 Calcutt v. FDIC Page 67

(sitting on circuit courts) that Article III judges must perform. See Glidden Co. v. Zdanok, 370
U.S. 530, 535–37 (1962) (plurality opinion); cf. Bowsher v. Synar, 478 U.S. 714, 732 (1986);
Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 815 (1987) (Scalia, J.,
concurring in the judgment).

2

This “long history of judicial review” has relevance for Calcutt’s request that we vacate
the FDIC’s order in his case because invalid removal protections shielded two of its officers.
Armstrong, 575 U.S. at 327. To begin with, the history refutes the theory that the Constitution of
its own force compels courts to treat as “void” any action taken by officers whose exercise of an
office does not comport with a constitutional command. That view would treat the de facto
officer doctrine itself as unconstitutional. Yet it formed part of the legal backdrop against which
the founders enacted the Constitution. Near the founding, judges described the doctrine as “a
well settled principle of law,” Bush, 7 Johns. at 554, or “too well established to admit of a
doubt,” Taylor, 5 S.C.L. at 517. Nothing in the Constitution can be read to do away with it.

This history also highlights the key inquiry for deciding whether courts may vacate an
officer’s actions as a “judge-made remedy” when a statute unconstitutionally limits the
President’s removal authority. Armstrong, 575 U.S. at 327. Does the unconstitutional removal
provision show that Congress vested “sovereign functions” in an invalid office that cannot
possess them? Mecham, supra, § 4, at 5; Norton, 118 U.S. at 449. If so, courts should treat the
officer’s actions as void wherever they arise. Or is the removal provision “distinct from the
provisions creating the . . . office” such that the office itself is valid “even assuming that the
[removal provision] is” not? McMartin, 43 N.W. at 572; Carroll, 38 Conn. at 449. If so, courts
should enforce the officer’s acts in suits involving third parties (in contrast to suits between the
government and the officer).

Unfortunately for Calcutt, his claim falls on the wrong side of this divide. He does not
even argue that the two executive officers (the CFPB Director and administrative law judge) sat
in offices that constitutionally “could not exist” (because, for example, the Constitution vested
their duties in another branch). Ashley v. Bd. of Supervisors of Presque Isle Cnty., 60 F. 55, 65
 No. 20-4303 Calcutt v. FDIC Page 68

(6th Cir. 1893). Indeed, his argument’s very premise—that Congress has illegally insulated the
officers from the President—assumes that they perform executive functions. Cf. Seila Law,
140 S. Ct. at 2209. So I would treat the constitutional “condition” in this case (that an officer be
accountable to the President) like other constitutional conditions the violation of which does not
void an officer’s acts. The condition is not much different than, say, a condition that an officer
be of a certain age, see Blackburn, 40 Tenn. at 690–91, or be elected rather than appointed, see
Constantineau, supra, § 192, at 264–65. If statutes departing from these mandates did not render
an officer’s actions void, I fail to see why an unconstitutional removal provision would. Under
traditional remedial principles, then, Calcutt could not obtain the relief that he seeks in this case.

The “lack of historical precedent” to attack removal provisions in a suit like Calcutt’s
reinforces the conclusion that the provisions did not traditionally render an officer’s actions void.
Seila Law, 140 S. Ct. at 2201 (citation omitted). If any private party could collaterally attack
removal provisions in any suit implicating an officer’s acts, one would expect to see many of
these suits. After all, Congress began to enact constitutionally dubious removal provisions
shortly after the Civil War during President Johnson’s administration. See Myers, 272 U.S. at
166–73. Yet Calcutt cites no historical example in which courts evaluated removal provisions in
this type of litigation. So constitutional questions about the provisions lingered for decades. Id.
at 173.

Challenges to the validity of removal provisions instead arose in employment disputes.
See Humphrey’s Executor, 295 U.S. at 618–19; Myers, 272 U.S. at 106; cf. Shurtleff, 189 U.S. at
311–12; Reagan v. United States, 182 U.S. 419, 424 (1901); Ex parte Hennen, 38 U.S. 230, 256–
57 (1839). A discharged officer would sue to recover a salary (or seek reinstatement) on the
ground that the termination violated a tenure-protection statute. Myers, 272 U.S. at 106. The
government would respond that the statute could not restrict the President’s power. Id. This
different kind of suit required courts to resolve the constitutional question. Courts “almost
universally recognized” that the de facto officer doctrine did not apply because the suit was
between the government and the officer (not a third party) and because only valid officers could
receive salaries. Constantineau, supra, § 236, at 331; 2 James Kent, Commentaries on American
Law 355 n.2 (11th ed. 1867).
 No. 20-4303 Calcutt v. FDIC Page 69

Modern precedent confirms my conclusion. The Supreme Court’s recent cases have all
held that unconstitutional removal provisions do not render the office to which they attach
invalid or require courts to find actions taken by the officers void. See Collins, 141 S. Ct. at
1787–89; Seila Law, 140 S. Ct. at 2207–11; Free Enter. Fund, 561 U.S. at 508–10. Take Free
Enterprise Fund. There, accountants under investigation by the Public Company Accounting
Oversight Board filed an Ex Parte Young suit seeking to enjoin all of the Board’s actions as void
because of its removal protections. See 561 U.S. at 487, 491 n.2, 508. The Court agreed that
various removal provisions unconstitutionally intruded on the President’s authority. Id. at 492–
98. But it refused to treat the Board’s actions as void. Id. at 508–10. It held that the Board
could perform the executive functions assigned to it despite the invalid removal provisions
because they were “severable from the remainder of the statute.” Id. at 508. The Court analyzed
this issue in terms of “severability.” See id. at 509. But it could just as well have reasoned that
the unconstitutional statutes did not render the Board’s actions void in third-party suits and so
did not entitle the accountants to their requested remedy. Cf. McMartin, 43 N.W. at 572;
Harrison, supra, at 73–75.

Seila Law fits a similar mold. The CFPB in that case issued a civil investigative demand
seeking documents from a law firm. 140 S. Ct. at 2194. The firm refused to comply, so the
CFPB filed a petition to enforce its demand. Id. The district court rejected the firm’s request to
deny the CFPB’s petition on the ground that its Director’s removal protections rendered all
CFPB actions void. Id. After agreeing that the protections were unconstitutional, the controlling
Supreme Court opinion again held that the invalid provisions were severable and did not render
all CFPB actions void. Id. at 2208–11 (opinion of Roberts, C.J.). Admittedly, the opinion did
not simply reject the law firm’s remedy and affirm the enforcement of the CFPB’s demand.
Rather, it remanded for the lower courts to decide whether the demand had been “validly
ratified” by a Director accountable to the President. Id. at 2211. This resolution might have
implied that all CFPB actions (including the investigative demand) had been void prior to the
Court’s severance “remedy.” Id. at 2208. But the Court has since clarified that Seila Law did
not hold that the CFPB’s prior actions were invalid and instead had left all remedy-related issues
for the lower courts. See Collins, 141 S. Ct. at 1788.
 No. 20-4303 Calcutt v. FDIC Page 70

Most recently in Collins, the Court expressly held that unconstitutional removal
provisions do not render an officer’s past actions void in suits by third parties. Headed by a
director with removal protections, the agency in Collins served as the conservator to two large
mortgage-financing companies. 141 S. Ct. at 1771–72. This agency entered into agreements
with the Department of Treasury requiring the companies to pay large dividends to the Treasury.
Id. at 1772–74. The companies’ shareholders sued to compel the Treasury to return the
dividends on the ground that the director’s removal protections were unconstitutional and that
they voided the agency’s past acts (including the challenged agreements). Id. at 1775. Although
the Court agreed that the removal protections were unconstitutional, id. at 1783–87, it rejected
the broad remedy, id. at 1787–89. The Court found “no reason to regard any of the actions taken
by the” agency “as void” simply because its head had been protected by invalid removal
provisions. Id. at 1787.

All told, under traditional remedial rules, unconstitutional removal provisions do not
render the offices to which they attach invalid and so do not allow courts to vacate the actions of
officers as void in suits by third parties. This tradition compels me to reject Calcutt’s proposed
remedy.

3

I end with two disclaimers about things I need not decide. Disclaimer One: Congress
may generally displace judge-made remedial principles. Armstrong, 575 U.S. at 327–29.
Congress, for example, has sometimes restricted a court’s power to grant Ex Parte Young’s
injunctive relief for violations of federal law. See id. And Bowsher teaches that Congress may
adjust the relief for structural constitutional claims too. There, the Court followed the statutory
remedy once it found that Congress had illegally entrusted a legislative officer with executive
duties. 478 U.S. at 734–35. Congress thus may permit courts to vacate actions taken by officers
subject to unconstitutional removal protections even if traditional judge-made remedial limits
would foreclose relief.

Has Congress done so here? The FDIC’s statute incorporates the APA. 12 U.S.C.
§ 1818(h)(2). It orders a court to “hold unlawful and set aside agency action” that is “contrary to
 No. 20-4303 Calcutt v. FDIC Page 71

constitutional right, power, privilege, or immunity[.]” 5 U.S.C. § 706(2)(B). Perhaps this text
could be read to allow courts to depart from traditional limits and vacate agency “actions” if a
law has structured the agency in a way that is “contrary to constitutional right” or “power.” Id.;
cf. Collins, 141 S. Ct. at 1795 (Gorsuch, J., concurring in part). That the Constitution’s structural
principles exist to protect individual liberty could reinforce this reading that a structural problem
is “contrary to constitutional right” within the meaning of the APA. See Bond v. United States,
564 U.S. 211, 220–24 (2011).

In most structural constitutional cases, however, a private party claims that the challenged
action itself is “contrary to constitutional right.” 5 U.S.C. § 706(2)(B). So parties routinely
allege that a prosecution violates the Constitution because the relevant law reaches conduct that
Congress may not proscribe. See, e.g., Bond, 564 U.S. at 224. Yet, as I have explained, an
unconstitutional removal statute for an office would not necessarily render the officer’s “actions”
void and so would not necessarily render those actions “contrary to constitutional right.”
5 U.S.C. § 706(2)(B). Perhaps the APA’s text is thus best read to incorporate—not depart
from—traditional remedial limits. Cf. id. § 702; Tom C. Clark, Att’y Gen.’s Manual on the
Admin. Proc. Act 108 (1947).

And even if the APA expanded the available relief, recall that it requires courts to take
“due account” “of the rule of prejudicial error.” 5 U.S.C. § 706. The Court has read this text to
adopt the harmless-error principles that “ordinarily apply in civil cases.” Shinseki v. Sanders,
556 U.S. 396, 406 (2009). Under those principles, constitutional errors can be harmless. See
O’Neal v. McAninch, 513 U.S. 432, 440 (1995). Although Collins did not cite the APA, this
harmless-error provision might be one way to understand its suggestion that third parties could
seek relief for unconstitutional removal provisions if they showed that the provisions harmed
them (that is, if they showed that the error was not harmless). 141 S. Ct. at 1788–89. At day’s
end, I would leave these statutory questions open. The parties did not address the APA’s scope
and focused only on whether the removal provisions rendered the FDIC’s order
unconstitutionally void. They did not.

Disclaimer Two: The parties assume that the FDIC performs only executive functions.
Our resolution should not be taken to have impliedly adopted that premise. The FDIC did not
 No. 20-4303 Calcutt v. FDIC Page 72

just prosecute this action. It also adjudicated the action—finding Calcutt guilty and imposing a
punishment on him in the form of an end to his career and a $125,000 penalty. Once an Article
III court finally enters the picture, moreover, it may review the FDIC’s factual findings only
under a deferential substantial-evidence test—a test that has been called more deferential than
the one governing our review of a district court’s factual findings. See Dickinson v. Zurko,
527 U.S. 150, 153 (1999).

Yet both Article III and the Due Process Clause generally require the government to
follow common-law procedure (including, fundamentally, the use of a “court”) when seeking to
deprive people of their private rights to property or liberty. See Stern, 564 U.S. at 482–84; Caleb
Nelson, Adjudication in the Political Branches, 107 Colum. L. Rev. 559, 569–70 (2007). At first
blush, one might think that the FDIC has sought to deprive Calcutt of his “core private rights” to
both. B&B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 171 (2015) (Thomas, J.,
dissenting). According to Blackstone, Calcutt had a “property” interest in the thousands of
dollars that the government seeks to take. See 1 Blackstone, supra, at *134–35. According to
Coke, he had a “liberty” interest in continuing in his profession. See 2 Coke, supra, at 47. So
perhaps the FDIC has undertaken judicial functions here—functions that the Constitution vests in
courts. See Stern, 564 U.S. at 482–84. If the FDIC needed to file suit, moreover, the filing
would have triggered the Seventh Amendment’s right to a jury, which Justice Brennan made
clear applies to suits seeking civil penalties. See Tull v. United States, 481 U.S. 412, 422–25
(1987).

The government traditionally has responded to this call for more “process” with the
defense that its action seeks to vindicate “public rights,” rights that need not be litigated in a
court with a jury. See Oil States Energy Servs., LLC v. Greene’s Energy Grp., LLC, 138 S. Ct.
1365, 1373 (2018); Atlas Roofing Co. v. Occupational Safety & Health Rev. Comm’n, 430 U.S.
442, 450–51 (1977). And maybe Calcutt did not raise this argument here because a healthy
amount of caselaw has accepted that defense in the banking context. See Cavallari v. Off. of
Comptroller of Currency, 57 F.3d 137, 145 (2d Cir. 1995); Simpson v. Off. of Thrift Supervision,
29 F.3d 1418, 1422–24 (9th Cir. 1994). Yet this precedent predates the Court’s recent
instructions in cases like Stern, which held that the adjudication of a state tort claim required an
 No. 20-4303 Calcutt v. FDIC Page 73

Article III court. See 564 U.S. at 487–501. And while Stern did not involve an agency, the
Court “recognize[d]” that its cases may not provide “concrete guidance” on the scope of the
public-rights doctrine in the administrative context. Id. at 494. Several Justices have also
expressed concern with extending the doctrine too far. See Oil States, 138 S. Ct. at 1381–85
(Gorsuch, J., joined by Roberts, C.J., dissenting); B & B Hardware, 575 U.S. at 170–74
(Thomas, J., joined by Scalia, J., dissenting).

There must be some limit to the government’s ability to dissolve the Constitution’s usual
separation-of-powers and due-process protections by waving a nebulous “public rights” flag at a
court. When the government indicts a person for a crime, it also vindicates “public rights” that
belong to the community. Spokeo v. Robins, 578 U.S. 330, 345 (2016) (Thomas, J., concurring)
(citing Ann Woolhandler & Caleb Nelson, Does History Defeat Standing Doctrine?, 102 Mich.
L. Rev. 689, 695–700 (2004)). But the government cannot send people to prison using a hearing
room rather than a court room or an administrative officer rather than a jury of peers. N. Pipeline
Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 70 n.24 (1982) (plurality opinion). Why
should this case be different simply because Calcutt must pay a civil penalty rather than a
criminal fine? Cf. Jarkesy v. SEC, __ F.4th __, 2022 WL 1563613, at *2–7 (5th Cir. May 18,
2022). The FDIC one day must provide answers to these questions in a case that does not
assume them.

C. Remedy for Appointments Clause Violation

Calcutt lastly challenges the FDIC’s remedy for an undisputed constitutional wrong. The
Appointments Clause sets the ground rules for the appointment of officers. U.S. Const. art. II,
§ 2, cl. 2. It allows Congress to vest the power to appoint inferior officers in “the President,”
“Courts of Law,” or “Heads of Departments.” Id. In Lucia v. SEC, 138 S. Ct. 2044 (2018), the
Court held that the SEC’s administrative law judges are inferior officers who must be appointed
by the President or the Commission. Id. at 2051–55. The parties agree that the FDIC’s
administrative law judges are likewise inferior officers, but Calcutt litigated his first hearing
before a judge who had not been appointed by the President or FDIC. The FDIC thus granted
Calcutt a “new” hearing before a different, lawfully appointed judge—the remedy that Lucia
ordered. See id. at 2055. Calcutt argues that this remedy still fell short because the FDIC
 No. 20-4303 Calcutt v. FDIC Page 74

allowed the second judge to use records, stipulations, and orders from the invalid judge’s first
hearing. According to him, the Appointments Clause required the second judge to ignore
everything that occurred before.

To decide what Lucia meant by its “new hearing” remedy, my colleagues engage in a
cost-benefit balance that resembles the Supreme Court’s test for whether a court should suppress
evidence in a criminal trial under the Fourth Amendment’s “exclusionary rule.” Davis v. United
States, 564 U.S. 229, 236–38 (2011). They point out that Calcutt’s remedy would impose heavy
administrative costs (because it would require inefficient, duplicative processes). They add that
it would offer few private benefits (because it is unnecessary to insulate the valid judge’s
decision from the first hearing’s “taint”). Based on this prudential balancing, they reject
Calcutt’s claim that the second judge had to ignore items from the first hearing. Their balance
seems reasonable enough. But I would reject Calcutt’s view of Lucia based on structural
grounds rooted in the best reading of the Appointments Clause and the Court’s current approach
to judge-made remedies.

At the outset, I do not mean to critique my colleagues for engaging in a cost-benefit
inquiry. The Supreme Court’s instructions in Appointments Clause cases may well be read to
contemplate it. See Lucia, 138 S. Ct. at 2055 & nn.5–6; Ryder v. United States, 515 U.S. 177,
182–83 (1995). In Ryder, a court-martialed member of the Coast Guard had his conviction
upheld by a panel that included judges whose appointments violated the Appointments Clause.
515 U.S. at 179–80. The Court of Military Appeals affirmed the panel’s conviction under the de
facto officer doctrine. Id. at 180. The Supreme Court reversed and refused to apply this
doctrine. It held that “one who makes a timely challenge to the constitutional validity of the
appointment of an officer who adjudicates his case is entitled to a decision on the merits of the
question and whatever relief may be appropriate if a violation indeed occurred.” Id. at 182–83.
Did Ryder look to the “original meaning” of the Appointments Clause to adopt this remedy and
reject the de facto officer doctrine? Fin. Oversight & Mgmt. Bd. for P.R. v. Aurelius Inv., LLC,
140 S. Ct. 1649, 1659 (2020). No, the Court rested on a sentence of pure policy: “Any other rule
would create a disincentive to raise Appointments Clause challenges[.]” Ryder, 515 U.S. at 183.
 No. 20-4303 Calcutt v. FDIC Page 75

The Court summarily found the “proper” remedy to be a second appeal before a lawfully
constituted panel. See id. at 188.

Lucia followed the same reasoning. It noted that Ryder called for a new hearing before a
properly appointed administrative law judge. 138 S. Ct. at 2055. It then added a new
requirement: an agency may not assign the case to the judge who initially heard it even if that
judge had been properly appointed in the interim. Id. When responding to the claim that this
“new judge” remedy was not needed to further the Appointments Clause’s purposes, the Court
reasoned that its remedies in this area have been “designed not only to advance those purposes
directly, but also to create ‘[]incentive[s] to raise Appointments Clause challenges.’” Id. at 2055
n.5 (quoting Ryder, 515 U.S. at 183). In both cases, therefore, the Court chose a remedy to
“incentivize” these claims.

This reasoning should look familiar. The Court once expansively created judge-made
remedies that would best promote the purposes of constitutional rights. Although, for example,
Congress has allowed damages claims only against state officers who violate the Constitution,
42 U.S.C. § 1983, the Court felt free to create a remedy allowing parties to seek damages from
federal officers who violate the Fourth Amendment. See Bivens v. Six Unknown Fed. Narcotics
Agents, 403 U.S. 388, 395–96 (1971). And although the Fourth Amendment says nothing about
the rules of evidence in criminal trials, the Court created the exclusionary rule to “remov[e] the
incentive to disregard” its ban on unreasonable searches. Mapp v. Ohio, 367 U.S. 643, 656
(1961) (citation omitted). Ryder bears the hallmarks of Bivens and Mapp. It even discussed the
exclusionary rule. The Court noted that its cases have rejected that rule when the rule’s costs
(allowing criminals to go free) exceeded its benefits (incentivizing officers to obey the law). See
Ryder, 515 U.S. at 185–86 (citing United States v. Leon, 468 U.S. 897 (1984)). Analogizing to
this approach, Ryder foresaw no ill effects from granting an Appointments Clause remedy on
direct appeal and suggested that this appellate relief would create “incentives to make such
challenges.” Id. at 186.

Although Ryder might mesh well with Mapp, the Court in recent years has treated these
types of judge-made innovations with a healthy dose of skepticism. See Hernandez, 140 S. Ct. at
747. The creation of remedies amounts to “lawmaking” that must balance the benefits of any
 No. 20-4303 Calcutt v. FDIC Page 76

remedy against its costs. Id. at 741–42. Yet the Constitution reserves this task to Congress, not
the courts. See id. As a result, the Court has all but held that Bivens was wrong and has refused
to extend it to any other constitutional right for some 40 years. See id. at 742–43 (citing cases);
Abbasi, 137 S. Ct. at 1856–58. It has also continued to narrow the scope of the exclusionary
rule, acknowledging that it is a “judicially created remedy” that must be applied cautiously only
in cases of clear police misconduct. Davis, 564 U.S. at 238 (citation omitted); see, e.g., Utah v.
Strieff, 579 U.S. 232, 237–38, 241 (2016); Herring v. United States, 555 U.S. 135, 140–44
(2009).

What do these principles mean for the issue that confronts us? I agree that Ryder and
Lucia leave open whether a lawful judge at a “new ‘hearing’” may rely on evidence developed at
the invalid hearing or on orders entered by the invalid judge. Lucia, 138 S. Ct. at 2055 (quoting
Ryder, 515 U.S. at 182–83). To resolve the ambiguity, I would read the cases in a way that best
comports with the Constitution’s “original meaning,” Aurelius, 140 S. Ct. at 1659, and with the
Court’s recent guidance to act cautiously before expanding judge-made remedies, Hernandez,
140 S. Ct. at 747. When analyzed in that fashion, the FDIC’s remedy more than sufficed.

The Appointments Clause does not compel Calcutt’s conclusion that a valid judge must
ignore all prior proceedings before an invalid one. If anything, the clause itself requires no
remedy. The de facto officer doctrine broadly applied to claims like Calcutt’s that an officer had
been appointed by the wrong person. See Constantineau, supra, §§ 182–86, at 248–55. An
English judge who sat on the first case to enforce the doctrine in 1431 “apparently recognized”
its application in this setting. Id. § 182, at 248. American courts routinely relied on it when an
officer was unconstitutionally appointed by, say, the governor rather than the legislature, see
Carroll, 38 Conn. at 474 (discussing Taylor, 5 S.C.L. at 516–17), or the mayor rather than the
governor, see Strang, 21 Ohio St. at 615–19. And if the Constitution requires some way in
which to dispute an officer’s right to an office, Congress left open the traditional (if narrow) quo
warranto remedy. D.C. Code § 16-3503; cf. Henry M. Hart, Jr., The Power of Congress to Limit
the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362, 1366–67
(1953).
 No. 20-4303 Calcutt v. FDIC Page 77

Ryder and Lucia thus must rest on a power to create judge-made remedies for
constitutional violations. But we must act with caution when asked to expand these remedies
because the weighing of the costs and benefits amounts to a legislative task, not a judicial one.
See Abbasi, 137 S. Ct. at 1856–57. On the benefits side, Calcutt’s remedy would certainly
promote the purposes of the Appointments Clause. See United States v. Arthrex, Inc., 141 S. Ct.
1970, 1979 (2021). But no provision—not even a constitutional one—“pursues its purposes at
all costs.” Hernandez, 140 S. Ct. at 741–42 (citation omitted). And Calcutt’s remedy comes
with its burdens too. It would add to the “administrative costs” already associated with the new
hearings. Abbasi, 137 S. Ct. at 1856. More fundamentally, courts long recognized that
permitting parties to challenge an officer’s validity at all in appeals of the officer’s actions could
create “endless confusion[.]” Norton, 118 U.S. at 441–42; see Constantineau, supra, § 4, at 7.
That is why they channeled these challenges into special suits that would oust officers only
prospectively, not into appeals that would reverse their actions retrospectively. See
Constantineau, supra, § 451, at 635–36. I see no judicial mode of analysis that can resolve this
legislative weighing of interests.

All told, the Court’s cautious approach to judge-made remedies comports with traditional
remedial practice governing challenges to the validity of an officer’s appointment. See
Hernandez, 140 S. Ct. at 742. I thus would not read Ryder and Lucia broadly to compel
administrative judges to disregard all that occurred at a prior hearing. I would instead read them
literally to compel a new hearing before a properly appointed judge. Calcutt got just that.

III. Statutory Claims

In my view, Calcutt’s statutory claims fare better. The statute allowing the FDIC to bar
bankers from the industry requires it to prove three things: that a banker has engaged in a listed
kind of misconduct, that the misconduct will harm the bank (or benefit the banker), and that the
banker acted with a culpable state of mind. 12 U.S.C. § 1818(e)(1)(A)–(C). The statute
allowing the FDIC to impose penalties largely covers the same terrain. Id. § 1818(i)(2)(B).
Here, Calcutt argues that the FDIC failed to prove the “misconduct” and “effect” elements.
I agree that the FDIC misread these provisions and would remand for it to reconsider the case
under the proper law.
 No. 20-4303 Calcutt v. FDIC Page 78

A. Misconduct

To remove Calcutt from the Bank, the FDIC first must prove that he engaged in one of
three types of misconduct. Id. § 1818(e)(1)(A). Specifically, the statute allows the FDIC to
remove an “institution-affiliated party” if that the party “has, directly or indirectly”:

(i) violated—
(I) any law or regulation;
(II) any cease-and-desist order which has become final;
(III) any condition imposed in writing by a Federal banking agency in
connection with any action on any application, notice, or request by
such depository institution or institution-affiliated party; or
(IV) any written agreement between such depository institution and such
agency;
(ii) engaged or participated in any unsafe or unsound practice in connection with
any insured depository institution or business institution; or
(iii) committed or engaged in any act, omission, or practice which constitutes a
breach of such party’s fiduciary duty[.]

Id. The FDIC found that Calcutt violated the second and third clauses by engaging in “unsafe
or unsound practice[s]” and committing “breach[es]” of his “fiduciary duty.” App. 18–26.
(It imposed the $125,000 penalty for the same reasons. See App. 35.)

1. Unsafe or Unsound Practice. The statute gives the FDIC the power to ban a banker
from the profession if the banker has “engaged or participated in any unsafe or unsound practice
in connection with any insured depository institution or business institution[.]” 12 U.S.C.
§ 1818(e)(1)(A)(ii). Regulators have long defined the key phrase—“unsafe or unsound
practice”—using a two-part test that courts have generally accepted. See First Nat’l Bank of
Eden v. Dep’t of Treasury, 568 F.2d 610, 611 n.2 (8th Cir. 1978). Under this test, an act
qualifies as an unsafe or unsound practice if it conflicts with “generally accepted standards of
prudent operation” and creates an “abnormal risk of loss or harm” to the bank. App. 18 (quoting
Michael v. FDIC, 687 F.3d 337, 352 (7th Cir. 2012)).

This test was not intuitive to me from a review of the text, so I looked into its origins.
One court transparently identified its source: “Because the statute itself does not define an unsafe
 No. 20-4303 Calcutt v. FDIC Page 79

or unsound practice, courts have sought help in the legislative history.” In re Seidman, 37 F.3d
911, 926 (3d Cir. 1994). The Fifth Circuit started down this path. See Gulf Fed. Sav. & Loan
Ass’n v. Fed. Home Loan Bank Bd., 651 F.2d 259, 263–65 (5th Cir. 1981). Rather than seek out
the ordinary meaning of “unsafe or unsound practice,” it jumped to a “lively” debate in the
congressional record. Id. at 263. During this debate, the court noted, a few legislators had
treated as “authoritative” a definition proposed by an agency chairman. Id. at 264. Under the
chairman’s view, the phrase covered “any action” that “is contrary to generally accepted
standards of prudent operation, the possible consequences of which, if continued, would be
abnormal risk or loss or damage to an institution, its shareholders, or the agencies administering
the insurance funds.” Id. (citation omitted). The court accepted his view as law. Id. at 264–65.

This straight-from-the-legislative-history test has spread widely since. The few courts
with reasoned analysis regurgitate the same bit of legislative history. Seidman, 37 F.3d at 926.
Most others, though, simply cite other precedent for this test without considering its origins. See
Frontier State Bank v. FDIC, 702 F.3d 588, 604 (10th Cir. 2012); Michael, 687 F.3d at 352;
Landry v. FDIC, 204 F.3d 1125, 1138 (D.C. Cir. 2000); Simpson, 29 F.3d at 1425; Doolittle v.
Nat’l Credit Union Ass’n, 992 F.2d 1531, 1538 (11th Cir. 1993); Nw. Nat’l Bank v. Dep’t of
Treasury, 917 F.2d 1111, 1115 (8th Cir. 1990).

I am troubled by this approach. The test springs from a mode of interpretation that no
Justice on the Supreme Court would endorse today. In recent decades, the Court has given us
clear marching orders: the answer to an interpretive question begins by identifying the ordinary
meaning of Congress’s words when read against their context and structure. See Food Mktg.
Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2364 (2019); Ross v. Blake, 578 U.S. 632, 638
(2016). This “first canon” is also the “last” if the text has a clear meaning. Conn. Nat’l Bank v.
Germain, 503 U.S. 249, 254 (1992). Here, however, courts have viewed the legislative history
as both the beginning and the end of the analysis. Gulf Federal even claimed that the agency
chairman’s proposed test had been “adopted in both Houses”—by which the court meant that it
had been read into the legislative record. 651 F.2d at 264 (citation omitted). “But legislative
history is not the law.” Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1631 (2018). And the Court
 No. 20-4303 Calcutt v. FDIC Page 80

has not been kind to other tests that developed in this manner. See, e.g., Food Mktg., 139 S. Ct.
at 2364.

I am also troubled by this approach because courts have chosen it to create a “flexible”
statute allowing regulators to address “changing business problems[.]” Seidman, 37 F.3d at 927.
What does this even mean? If an agency condones a banker’s “new business model,” the agency
can constrict the statute to give the banker a pass? Henson v. Santander Consumer USA Inc.,
137 S. Ct. 1718, 1725–26 (2017). But if the agency disapproves of a competitor’s practice, it can
expand the statute to punish the competitor? This accordion-like view of the rule of law has no
place in our constitutional order—one in which the President lacks any “dispensing” prerogative.
Cf. Clark v. Martinez, 543 U.S. 371, 382 (2005); McConnell, supra, at 115–19. If anything, this
view has things backwards. This statute can deprive citizens of their property and livelihoods.
So it would better align with our interpretive traditions if we construed the phrase “strictly”
rather than flexibly. 1 Blackstone, supra, *88; United States v. Wiltberger, 18 U.S. 76, 95
(1820). After all, the rule of lenity (the rule that we resolve ambiguities against the government)
historically applied not just to criminal laws, but also to all laws considered “penal”—“that is,
laws inflicting any form of punishment” like a civil penalty. Wooden v. United States, 142 S. Ct.
1063, 1086 n.5 (2022) (Gorsuch, J., concurring in the judgment). This statute fits that bill. See
Proffitt v. FDIC, 200 F.3d 855, 860–62 (D.C. Cir. 2000). At the least, courts should give a
phrase that affects core private rights its ordinary meaning—not a malleable one.

How might an ordinary banker interpret the phrase? The legislative history reaches any
“imprudent act.” Seidman, 37 F.3d at 932; see Gulf Federal, 651 F.2d at 264. Yet this definition
does not adequately account for two parts of the actual text. For starters, the statute uses the
word “practice,” not “act.” 12 U.S.C. § 1818(e)(1)(A)(ii). Those words mean different things.
If an otherwise conscientious banker makes a single imprudent loan to a couple down on their
luck, the banker might have engaged in an unsound “act.” But nobody would say that the banker
has made it a “practice” of issuing bad loans after just the one. This word includes a connotation
of repetition (of habitual acts). The banker must have a habit of making bad loans (or, at the
least, the bank must have that habit and the banker must “participate[] in” it). Id.; cf. Nw. Nat’l
Bank, 917 F.2d at 1115. That is because a “practice” is a “habitual or customary performance,”
 No. 20-4303 Calcutt v. FDIC Page 81

American College Dictionary 951 (1970), or a “habitual or customary action or way of doing
something,” American Heritage Dictionary of the English Language 1028 (1973).

The statute itself contemplates this distinction. One clause bars bankers from engaging in
“any unsafe or unsound practice[.]” 12 U.S.C. § 1818(e)(1)(A)(ii). The next bars them from
engaging in “any act, omission, or practice” that breaches their fiduciary duties. Id.
§ 1818(e)(1)(A)(iii) (emphases added). We presume that Congress meant different things when
it used different words in clauses that sit right next to each other. See Nat’l Ass’n of Mfrs. v.
Dep’t of Def., 138 S. Ct. 617, 631 (2018). So even a single act or omission “that breaches [a]
fiduciary duty” suffices for punishment, but only a habit of “unsafe or unsound” actions does.

Next, the statute does not cover every unsafe or unsound practice in the abstract. Rather,
the practice must be “in connection with” a bank. 12 U.S.C. § 1818(e)(1)(A)(ii). The Supreme
Court has recognized that this phrase has an “indeterminat[e]” scope. Maracich v. Spears,
570 U.S. 48, 59–60 (2013); see Mont v. United States, 139 S. Ct. 1826, 1832 (2019). If we read
it broadly here, it could cover practices with the remotest of relations to banking—such as a
banker’s decision to speed to work every morning. See Maracich, 570 U.S. at 59. One regulator
even thought that the phrase covered a decision to seek judicial review of the regulator’s own
regulatory decision. Johnson v. Off. of Thrift Supervision, 81 F.3d 195, 202 (D.C. Cir. 1996).
Could Calcutt’s decision to file a petition in this court also be an “unsound practice” because we
reject his appeal? I would not read the statute this broadly. Courts instead must interpret the
clause to adopt the “limiting principle” that best comports with the statute’s context and
structure. See Maracich, 570 U.S. at 59–60; Chadbourne & Parke LLP v. Troice, 571 U.S. 377,
387–91 (2014).

For the reasons that a D.C. Circuit decision has explained, I would read this clause to
cover only “unsafe or unsound banking practices.” Grant Thornton, LLP v. Off. of the
Comptroller of the Currency, 514 F.3d 1328, 1332–33 (D.C. Cir. 2008). This definition
“harmonizes” this subsection with the rest of § 1818. Id. at 1332. The section includes several
other provisions that regulate unsafe or unsound practices “in conducting the business” of a
bank, including one permitting the FDIC to issue cease-and-desist orders. 12 U.S.C.
§ 1818(b)(1). It would be odd to permit a limited remedy (a cease-and-desist order) only for
 No. 20-4303 Calcutt v. FDIC Page 82

unsound banking practices but a severe remedy (removal from a bank) for any unsound practice
with any connection to the bank. And a definition that covered only “banking” practices would
exclude, for example, an outside auditor’s deficient audit, see Grant Thornton, 514 F.3d at 1332–
33, or a decision to seek judicial review.

All of this said, courts that apply a broad legislative-history test have recognized that
their reading could lead to “open-ended supervision.” Gulf Fed., 651 F.2d at 265. So they
compensate by adding a limiting principle that I do not necessarily see in the text either. They
have read the phrase “unsafe or unsound practice” to require that an action pose a risk of extreme
harm—one that threatens the bank’s “financial stability,” Seidman, 37 F.3d at 928, or “integrity,”
Johnson, 81 F.3d at 204 (quoting Gulf Fed., 651 F.2d at 267). An “unsafe” practice (one that
exposes the bank to “danger or risk”) may well require a risk of some harm. 2 Oxford Universal
Dictionary 2312 (3d ed. 1968). But the statute also covers an “unsound” practice in the
disjunctive (a practice that is “not based on proven practice, established procedure, or practical
knowledge”). Webster’s New International Dictionary 2511 (3d ed. 1966). Perhaps the entire
phrase “unsafe or unsound” may be one of those “doublets” that Congress uses to convey a
single idea (like “aid and abet” or “cease and desist”). Doe v. Boland, 698 F.3d 877, 881 (6th
Cir. 2012) (citing Freeman v. Quicken Loans, Inc., 566 U.S. 624, 635–36 (2012)). Even still, I
would not think that this text requires the risk of financial collapse. A loan officer at a massive
bank who has followed a consistent pattern of making bad loans may have engaged in an “unsafe
or unsound practice” even if the banker’s portfolio cannot threaten the bank’s existence.

Be that as it may, I would save the required financial-risk level for another appeal. When
sanctioning Calcutt here, the FDIC did not apply my reading that the statute requires unsafe or
unsound banking practices. I would remand for it to do so in the first instance. Most notably,
the FDIC nowhere indicated that it must identify a banking “practice” as I read the phrase—i.e.,
a “habitual or customary action[.]” American Heritage, supra, at 1028. To the contrary, as
Calcutt notes, the vast majority of its findings relied on a single loan—the Bedrock Transaction.
It concluded, among other things, that Calcutt violated the Bank’s lending policies and engaged
in imprudent lending by approving that transaction. App. 19–21. It is not clear that Calcutt’s
actions with respect to this loan can rise to the level of an unsafe or unsound “practice.”
 No. 20-4303 Calcutt v. FDIC Page 83

This fact contrasts Calcutt’s case with those that the FDIC cited—which involved a pattern of
bad loans. See, e.g., First State Bank of Wayne Cnty. v. FDIC, 770 F.2d 81, 82–83 (6th Cir.
1985).

2. Breach of Fiduciary Duty. The statute also gives the FDIC the authority to ban a
banker from the profession if the banker has “committed or engaged in any act, omission,
or practice which constitutes a breach of such party’s fiduciary duty[.]” 12 U.S.C.
§ 1818(e)(1)(A)(iii). The parties’ briefing on this portion of the statute raises more questions in
my mind than it answers.

Start with a choice-of-law question. Citing Atherton v. FDIC, 519 U.S. 213 (1997), my
colleagues and Calcutt suggest that the relevant state’s corporate-governance law supplies the
rule of decision for determining whether a banker has breached a “fiduciary duty” within the
meaning of § 1818(e)(1)(A)(iii). (The FDIC does not enlighten us with its position on this
choice-of-law subject.) I am skeptical that their reading is correct. The relevant portion of
Atherton that they cite was not interpreting federal statutory language like the “fiduciary duty”
text in § 1818(e). It was rejecting the claim that purely federal common law should supply the
“corporate governance standards” for federally chartered entities. See 519 U.S. at 217–26. Here,
by contrast, we must determine the proper “interpretation of a federal statute,” not whether we
may create federal common law. Id. at 218. And when a federal statute uses a common-law
term of art, the Supreme Court generally interprets its language to adopt a uniform standard of
conduct for all 50 states based on generic common-law concepts. See, e.g., Burlington Indus.,
Inc. v. Ellerth, 524 U.S. 742, 754–55 (1998); Cmty. for Creative Non-Violence v. Reid, 490 U.S.
730, 739–41 (1989). I might take that approach here. It would likely mean that we should
interpret this phrase to codify the well-known duties of care and loyalty as they existed in this
corporate-governance context at the time that Congress adopted this language in 1966. See, e.g.,
Harry G. Henn, Handbook of the Law of Corporations and Other Business Enterprises 362–70
(1961); William J. Grange & Thomas C. Woodbury, Corporation Law: Operating Procedures
for Officers and Directors § 268, at 286–87, § 311, at 325–26 (2d ed. 1964); Dow Votaw,
Modern Corporations 63–64 (1965); Harold Koontz, The Board of Directors and Effective
Management 84–86 (1967).
 No. 20-4303 Calcutt v. FDIC Page 84

Turn to the substantive standards. The Board held that Calcutt had breached his duty of
care to the Bank by acting incompetently in his approval of the Bedrock Transaction and in his
failure to manage the Nielson Loans. App. 23–24. But from my review of the FDIC’s order,
I cannot even determine the substantive standards of conduct that it applied. Its order did not use
the words “negligence” or “gross negligence.” And for decades, courts have debated which of
these standards the statute incorporates. Julie Andersen Hill & Douglas K. Moll, The Duty of
Care of Bank Directors and Officers, 68 Ala. L. Rev. 965, 986–92 (2017). The Board also
neglected to mention the traditional “business-judgment rule,” the application of which is also
contested. Patricia A. McCoy, A Political Economy of the Business Judgment Rule in Banking:
Implications for Corporate Law, 47 Case W. Res. L. Rev. 1, 22–60 (1996). Yet another layer in
this morass is that in the 1980s, Congress also adopted a “gross negligence” floor to govern the
conduct of officers and directors in a related context. 12 U.S.C. § 1821(k); see Atherton,
519 U.S. at 226–28. That separate section’s implications for § 1818(e) are unclear.

Yet I would not authoritatively answer these choice-of-law or substantive questions now.
As I explain below, I would remand to allow the FDIC to reconsider whether Calcutt’s
misconduct was the cause of any of the claimed harms. On remand, I would give the FDIC a
chance to clarify its views on these legal questions about the meaning of this fiduciary-duty
statute.

B. Causation

The statute next requires the FDIC to prove either that Calcutt’s misconduct had the
potential to harm the Bank or that Calcutt received a benefit from that misconduct. See
12 U.S.C. § 1818(e)(1)(B). This “effect” subparagraph provides in full:

(B) by reason of the violation, practice, or breach described in any clause of
subparagraph (A)—
(i) such insured depository institution or business institution has suffered
or will probably suffer financial loss or other damage;
(ii) the interests of the insured depository institution’s depositors have
been or could be prejudiced; or
(iii) such party has received financial gain or other benefit by reason of
such violation, practice, or breach[.]
 No. 20-4303 Calcutt v. FDIC Page 85

Id. The specific civil-penalty provisions on which the FDIC relied required similar “effects.”
See id. § 1818(i)(2)(B)(ii)(II)–(III); App. 34–35.

The FDIC misinterpreted the causation element in this subparagraph. To show why,
I start with the causation basics. The common law has long recognized two types of causation:
factual (or “but for”) causation and legal (or “proximate”) causation. See William L. Prosser,
Handbook of the Law of Torts §§ 45–46, at 311, 321–22 (1941). But-for causation creates a
simple rule. As its name suggests, it requires a plaintiff to show that an injury would not have
occurred “but for” the defendant’s wrongful conduct. See Burrage v. United States, 571 U.S.
204, 211–12 (2014); Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 347 (2013). Suppose,
for example, that after a neighbor’s dam breaks and floods a plaintiff’s property, the plaintiff
sues the neighbor for building the dam negligently. See Restatement (Second) of Torts § 432
illus. 2 (Am. L. Inst. 1965). But-for causation requires a court to ask whether the plaintiff would
have suffered this injury (the flooding) in a counterfactual world in which the neighbor did not
commit the wrongful act (the negligent construction). See id. § 432(1) & cmt. a. And if a once-
in-a-century storm would have caused the flooding even if the neighbor had built the dam to
perfection, the negligent construction did not cause the harm. See id. § 432 illus. 2; Burrage,
571 U.S. at 211–12.

Proximate causation arose from the premise that a factual-cause test alone would lead to
excessive liability. Prosser, supra, § 45, at 312. Courts recognized that, “[i]n a philosophical
sense, the consequences of an act go forward to eternity, and the causes of an event go back to
the discovery of America and beyond.” Id. They thus adopted “proximate cause” rules to cut off
liability even if a defendant was a but-for cause of harm. Holmes v. Secs. Inv. Prot. Corp.,
503 U.S. 258, 268 (1992). As one example, a defendant’s conduct (say, its failure to keep a ship
docked) may set in motion a chain of events that leads another party to negligently cause an
injury (say, the captain incompetently runs the ship aground). See Exxon Co., U.S.A. v. Sofec,
Inc., 517 U.S. 830, 832–34 (1996). Under a superseding-cause test, courts will not hold the
defendant liable if the other party’s negligence was unforeseeable. Id. at 837. As another
example, a defendant’s misconduct (say, stock manipulation) may directly harm one person
(a stockbroker who goes bankrupt) and indirectly harm third parties (the stockbroker’s creditors).
 No. 20-4303 Calcutt v. FDIC Page 86

See Holmes, 503 U.S. at 262–63. Under a directness test, courts will not allow the third parties
to recover. Id. at 271–72.

These common-law rules have significance in this case. The Supreme Court presumes
that Congress enacts statutory text with common-law concepts in mind. See Lexmark Int’l, Inc.
v. Static Control Components, Inc., 572 U.S. 118, 132 (2014). It thus has long read common-law
causation rules into statutes that use causal language like “because of” or “results from.” See
Burrage, 571 U.S. at 213–14; Nassar, 570 U.S. at 350–52. Congress used one such phrase (“by
reason of”) here. The FDIC must prove that the Bank suffered (or will likely suffer) a loss or
that Calcutt received a benefit “by reason of” his misconduct. 12 U.S.C. § 1818(e)(1)(B). So
I would interpret this statute to require both but-for and proximate causation. See Comcast Corp.
v. Nat’l Ass’n of African American-Owned Media, 140 S. Ct. 1009, 1015 (2020); Holmes,
503 U.S. at 265–67.

But the FDIC has not adopted these causation rules. Its enforcement orders have all but
ignored but-for cause. In fact, I have found only one such order that even used this phrase. See
In re Adams, 1997 WL 805273, at *5 (F.D.I.C. Nov. 12, 1997). And it suggested that a “‘but
for’ relationship” was not required. Id. (quoting ABKCO Music, Inc. v. Harrisongs Music Ltd.,
772 F.2d 988, 995–96 (2d Cir. 1983)). The FDIC also failed to mention but-for cause in this
case. It simply indicated: “An actual loss is not required; a potential loss is sufficient so long as
the risk of loss to the Bank was ‘reasonably foreseeable’ to someone in [Calcutt’s] position.”
App. 26 (citations omitted). The FDIC is correct that, unlike most statutes imposing liability for
harm, this statute does not require a past loss. It also applies if a bank “will probably suffer” a
loss in the future “by reason of” the banker’s misconduct. 12 U.S.C. § 1818(e)(1)(B)(i). But it
incorporates but-for cause all the same. For a past loss, the FDIC must show that it “would not
have occurred without” the misconduct. Nassar, 570 U.S. at 347 (citation omitted). For a future
loss, the FDIC must show that the probability of loss would not have occurred without that
misconduct. See id. The FDIC’s jurisprudence leaves no hint that it adheres to these first-year
torts-class concepts.

The FDIC’s legal error is all the more pronounced for proximate causation. For years, it
has rejected outright any need to prove this causation. See Adams, 1997 WL 802573, at *5; In re
 No. 20-4303 Calcutt v. FDIC Page 87

***, 1985 WL 303871, at *114 (F.D.I.C. Aug. 19, 1985). It did so in this case too, noting that
“an individual respondent need not be the proximate cause of the harm to be held liable[.]” App.
26–27. Confusingly, however, the FDIC suggested that the loss needs to be “foreseeable.” App.
26, 31. Foreseeability is one component of the proximate-causation requirement that the FDIC
said it was rejecting. See Hemi Grp., LLC v. City of New York, 559 U.S. 1, 12 (2010). If the
FDIC meant to imply that the statute incorporates only proximate cause’s foreseeability element,
it still erred. Proximate causation contains a group of concepts other than foreseeability. See id.
So the Supreme Court has already rejected this type of argument that a federal statute contains
only a foreseeability test. See Bank of Am. Corp. v. City of Miami, 137 S. Ct. 1296, 1305–06
(2017).

*

Maybe we could overlook the FDIC’s failure to identify the governing causation law if it
correctly applied that law to Calcutt. But it did no such thing. The FDIC held Calcutt
responsible for three injuries to the Bank and one benefit to him. The Bank incurred $6.443
million in charge-offs from the Nielson Loans. App. 27–29. It incurred a $30,000 charge-off
from the $760,000 Bedrock Transaction. App. 27. And it paid its lawyers and accountants for
work related to these loans. App. 29–31. Calcutt lastly received dividends from the Bank’s
holding company despite the loans’ poor condition. App. 31–32. None of these “effects”
sufficed.

As an initial matter, I agree with my colleagues that the FDIC failed to explain why the
statute should even cover fees paid to lawyers or accountants. The statute reaches “financial loss
or other damage” from Calcutt’s misconduct. 12 U.S.C. § 1818(e)(1)(B)(i). It would be unusual
to describe the money paid for these services as “financial loss” or “other damage.” One does
not normally use such terms to describe a payment of money for something of
commensurate value. Cf. Summit Valley Indus. Inc. v. Loc. 112, United Brotherhood of
Carpenters & Joiners of Am., 456 U.S. 717, 722–23 (1982). The payment is more naturally
described as an “expense” or “cost.” Our country’s litigation traditions reinforce this view. We
have long followed the “American Rule” in which a plaintiff’s legal costs are not recoverable
“damages” even if the defendant’s conduct is their but-for cause. See Alyeska Pipeline Serv. Co.
 No. 20-4303 Calcutt v. FDIC Page 88

v. Wilderness Soc’y, 421 U.S. 240, 249–50 (1975) (citing Arcambel v. Wiseman, 3 U.S. 306
(1796)). When a statute allows a plaintiff to recover “damages,” then, courts do not read that
phrase to cover attorney’s fees—or other expert fees for that matter. See Summit Valley,
456 U.S. at 722–23; cf. W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 88–92 (1991). And the
Court has stuck with this rule even if a law uses a phrase (“expenses”) that is “capacious enough
to include” these fees. Peter v. Nantkwest, Inc., 140 S. Ct. 365, 372 (2019). So I would not read
the text “loss” or “damage” to cover them here.

That leaves the other three “effects.” The FDIC did not apply basic causation rules to
any of them. Most tellingly, the FDIC held Calcutt responsible for all $6.443 million in charge-
offs on the $38 million in Nielson Loans—that is, for the entire loss. App. 27–28; see id. at 6–7.
But these loans were underwater in the aftermath of the Great Recession before Calcutt
committed most of the identified misconduct. App. 625–26. As with my hypothetical about the
negligently made dam, then, the FDIC needed to ask a “counterfactual” question: How much in
charge-offs would the Bank have incurred if Calcutt had not engaged in that misconduct?
Comcast, 140 S. Ct. at 1015. Suppose that the (hopefully) once-in-a-century recession would
have caused $7 million in charge-offs if the Bank started collection efforts immediately because
of the collapsed real-estate market. If so, a decision to enter into the Bedrock Transaction would
have helped (not harmed) the Bank. And Calcutt’s misconduct (for example, the failure to
undertake the usual underwriting efforts, see App. 19) could not be described as a but-for cause
of loss. I see nothing in the record on appeal that would help answer this critical but-for
question, confirming that the FDIC did not even ask it.

The same error underlies the FDIC’s decision to hold Calcutt liable for the $30,000
charge-off for the Bedrock Transaction. App. 27. The FDIC did not consider the
“counterfactual” of what would have occurred if Calcutt had not engaged in misconduct.
Comcast, 140 S. Ct. at 1015. As a generic matter, the Bank suffered a total of $6.473 million in
charge-offs on all Nielson Loans (including the Bedrock Transaction) and the FDIC needed to
consider the amount of likely charge-offs without this transaction. Would it have lost more?
Less? The FDIC did not ask these questions. More granularly, Calcutt told the FDIC that the
administrative law judge had erred “by failing to tether the $30,000 charge-off (and other actual
 No. 20-4303 Calcutt v. FDIC Page 89

and potential losses) to specific acts of misconduct[.]” App. 27. The judge found, for instance,
that Calcutt breached his fiduciary duty of candor to the Bank’s directors by failing to seek their
preapproval for the Bedrock Transaction. App. 25–26. Suppose the directors would have
approved the transaction even if he had done so. How could this specific misconduct have
caused this harm? The FDIC responded that it was “unpersuaded” by this causation argument
because the Bedrock Transaction was a “main focus” of the hearing and the judge catalogued
Calcutt’s many misdeeds in approving it. App. 27. This (non)response said nothing about
causation—an element distinct from misconduct.

Both but-for and proximate-cause problems undergird the FDIC’s decision that Calcutt
benefited from his misconduct. He was the largest shareholder of the Bank’s holding company,
and the FDIC held that his misconduct allowed him to obtain a dividend from this company.
App. 31–32. Its conclusion rested on the administrative law judge’s finding that the Bank paid
its own shareholder (the holding company) a $462,950 dividend in mid-2011 and that the FDIC
would not have approved this payment (to the holding company) if it had known that the Nielson
Loans were not performing. App. 287, 751. As a matter of but-for causation, the FDIC did not
ask whether the holding company would have paid its shareholders the same dividend even if the
FDIC had known of the Nielson Loans’ true condition. See Comcast, 140 S. Ct. at 1015. It cites
no testimony from the company’s directors about what they would have done. And Calcutt
testified that the holding company had sufficient assets to pay the dividend even if the Bank had
paid it nothing. A580.

As a matter of proximate causation, the FDIC failed to consider a “directness” issue.
If “by reason of” incorporates usual proximate-cause rules, it would require that Calcutt directly
benefit from his misconduct. Under the FDIC’s theory, though, the holding company was the
direct beneficiary that received the dividend; Calcutt was an indirect beneficiary as a shareholder
of that separate company. Is this a sufficiently “direct” benefit (analogous to a larger salary)?
“The general tendency” in the law has been “not to go beyond the first step.” Bank of Am.,
137 S. Ct. at 1306 (citation omitted). And this theory potentially rests on the “independent”
decision of the holding company. Hemi, 559 U.S. at 15. But I would leave this question for the
FDIC.
 No. 20-4303 Calcutt v. FDIC Page 90

All told, I would remand for the FDIC—the fact finder—to apply the correct causation
rules to the two charge-offs and the dividend payment in the first instance. My colleagues
recognize many of the FDIC’s legal errors but say there is no need to remand. I disagree. They
first invoke the deferential substantial-evidence test. But that test governs our review of the
agency’s factual findings. See Dickinson, 527 U.S. at 162. I do not quibble with those. I take
issue with the FDIC’s failure to follow the proper causation law. The substantial-evidence test
has nothing to say on that subject. And even the FDIC does not claim that we should defer to its
legal views. See Grant Thornton, 514 F.3d at 1331; cf. Epic, 138 S. Ct. at 1629–30.

If anything, my colleagues’ analysis runs afoul of basic administrative-law principles.
When an agency’s decision rests on a collapsed legal foundation, we cannot affirm the decision
on the ground that the agency might have reached the right outcome under a correct legal view.
We must let the agency apply the proper law in the first instance. See Gonzales v. Thomas,
547 U.S. 183, 186 (2006) (per curiam); SEC v. Chenery Corp., 318 U.S. 80, 88 (1943); Henry J.
Friendly, Chenery Revisited: Reflections on Reversal and Remand of Administrative Orders,
1969 Duke L.J. 199, 209–10. But my colleagues all but find facts by applying their view of the
law to the record. Recall, for example, that the FDIC held Calcutt liable for all $6.443 million in
charge-offs on the Nielson Loans—a finding that leaves no doubt that the agency erred. My
colleagues do not defend this finding. They nevertheless say that the FDIC “could have” found
that Calcutt’s misconduct caused some unquantified percentage of the losses. Maj. Op. 48. But
this “judicial judgment cannot be made to do service for an administrative judgment.” Chenery,
318 U.S. at 88.

Even if we could now find Calcutt liable for an (unknown) loss amount on a good-
enough-for-government-work approach, I would still remand. The statute says that the FDIC
“may” seek to remove a banker—not that it must do so—when the other requirements are met.
12 U.S.C. § 1818(e)(1). It thus leaves the FDIC with discretion over whether to bar Calcutt
“from working in his chosen profession for the remainder of his career.” Doolittle, 992 F.2d at
1538. The amount of harm properly chargeable to Calcutt should influence its discretionary
decision. The FDIC found removal proper after holding Calcutt responsible for well over
$8 million (including professional fees and charge-offs). If, on remand, the FDIC were to find
 No. 20-4303 Calcutt v. FDIC Page 91

that Calcutt’s conduct caused a tiny fraction of this harm, it might reconsider its “draconian”
sanction. Id. In fact, this logic led the Eleventh Circuit to remand a similar removal order so that
a related agency could reconsider the order after the court jettisoned part of its reasoning. Id.
Even a case that my colleagues cite issued this type of remand when it upheld only part of the
FDIC’s order—given the “extraordinary” nature of the sanction. De la Fuente v. FDIC,
332 F.3d 1208, 1227 (9th Cir. 2003). Because the FDIC’s order is riddled with legal error, I find
it inexplicable that we are not doing so here.

* * *

For these reasons, I respectfully dissent.