Doolin Sec. Sav. Bank, F.S.B. v. Office of Thrift Supervision, No. 97-1222

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtPER CURIAM; KAREN LECRAFT HENDERSON
Citation156 F.3d 190
Docket NumberNo. 97-1222
Decision Date01 September 1998
PartiesDOOLIN SECURITY SAVINGS BANK, F.S.B., Petitioner, v. OFFICE OF THRIFT SUPERVISION and Nicolas P. Retsinas, Director, Office of Thrift Supervision, Respondents.

Page 190

156 F.3d 190
332 U.S.App.D.C. 189
DOOLIN SECURITY SAVINGS BANK, F.S.B., Petitioner,
v.
OFFICE OF THRIFT SUPERVISION and Nicolas P. Retsinas,
Director, Office of Thrift Supervision, Respondents.
No. 97-1222.
United States Court of Appeals,
District of Columbia Circuit.
Sept. 1, 1998.

On Motion for Recall of the Mandate.

Before: HENDERSON, RANDOLPH, and TATEL, Circuit Judges.

Opinion for the Court filed PER CURIAM.

PER CURIAM:

Nearly three months after our opinion issued in Doolin Security Savings Bank, FSB v. OTS, 139 F.3d 203 (D.C.Cir.1998), petitioner Doolin Security Savings Bank filed a motion seeking a recall of the mandate. We deny the motion for the reasons that follow.

Our decision, issued on March 27, 1998, upheld a cease and desist order the Office of Thrift Supervision issued against the Bank. OTS had initiated administrative enforcement proceedings against the Bank in September 1993, when Jonathan L. Fiechter, then Acting Director of OTS, filed a "Notice of Charges and Hearing for Issuance of Cease and Desist Order Directing Affirmative Action." Two and a half years later an Administrative Law Judge issued a "Recommended Decision" that the Bank had violated the law and engaged in unsafe and unsound banking practices. When Fiechter later resigned, Nicolas P. Retsinas became the new acting director of the agency and passed on the ALJ's recommendation and the Bank's motion to dismiss for lack of jurisdiction. See Doolin, 139 F.3d at 204.

The Bank's objection--characterized as "jurisdictional," we suppose, because it had not been raised earlier in the administrative proceedings--proceeded from the status of the Director of OTS as an "advice and consent" position requiring Presidential nomination and Senate confirmation. Fiechter had served as Acting Director of OTS for close to four years after the outgoing Director purported to delegate his powers to him; the President never nominated Fiechter for the position of Director. His replacement, Retsinas, came to his position through a different route: President Clinton appointed Retsinas Acting Director pursuant to the Vacancies Act, 5 U.S.C. §§ 3345-3349, which authorizes the President to transfer a constitutionally appointed officer from his original post to fill temporarily a vacant office without first obtaining Senate approval. See Doolin, 139 F.3d at 205. The Bank contended that Fiechter had never lawfully exercised the powers of Director, and therefore it viewed

Page 191

[332 U.S.App.D.C. 190] the position of Director as having been vacant for more than four years before the President invoked the Vacancies Act to appoint Retsinas to the office. According to the Bank, the Vacancies Act contains a time limit that prevents the President from filling vacancies left open for more than 120 days, and therefore Retsinas also could not lawfully exercise the powers of the Director.

In his opinion adopting the...

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7 practice notes
  • Cone v. Bell, No. 07–1114
    • United States
    • United States Supreme Court
    • April 28, 2009
    ...Dist., 173 F.3d 274, 299, n. 13 (C.A.5 1999) (Garza, J., dissenting); Doolin Security Sav. Bank, F.S.B. v. Office of Thrift Supervision, 156 F.3d 190, 191 (C.A.D.C.1998) ; Boone v. Carlsbad Bancorporation, Inc., 972 F.2d 1545, 1554, n. 6 (C.A.10 1992). And it is common to practice for appel......
  • Cone v. Bell, No. 07–1114
    • United States
    • United States Supreme Court
    • April 28, 2009
    ...Dist., 173 F.3d 274, 299, n. 13 (C.A.5 1999) (Garza, J., dissenting); Doolin Security Sav. Bank, F.S.B. v. Office of Thrift Supervision, 156 F.3d 190, 191 (C.A.D.C.1998); Boone v. Carlsbad Bancorporation, Inc., 972 F.2d 1545, 1554, n. 6 (C.A.10 1992). And it is common to practice for appell......
  • Cone v. Bell, No. 07–1114
    • United States
    • United States Supreme Court
    • April 28, 2009
    ...Dist., 173 F.3d 274, 299, n. 13 (C.A.5 1999) (Garza, J., dissenting); Doolin Security Sav. Bank, F.S.B. v. Office of Thrift Supervision, 156 F.3d 190, 191 (C.A.D.C.1998); Boone v. Carlsbad Bancorporation, Inc., 972 F.2d 1545, 1554, n. 6 (C.A.10 1992). And it is common to practice for appell......
  • Fraternal Order of Police v. U.S., No. 97-5304
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • April 16, 1999
    ...we would refuse to consider an argument that an appellant failed to raise before its reply brief. See, e.g., Doolin Sec. Sav. Bank v. OTS, 156 F.3d 190, 191 (D.C.Cir.1998); McBride v. Merrell Dow & Pharms., Inc., 800 F.2d 1208, 1210-11 (D.C.Cir.1986). Here, however, the felon-misdemeanant i......
  • Request a trial to view additional results
7 cases
  • Cone v. Bell, No. 07–1114
    • United States
    • United States Supreme Court
    • April 28, 2009
    ...Dist., 173 F.3d 274, 299, n. 13 (C.A.5 1999) (Garza, J., dissenting); Doolin Security Sav. Bank, F.S.B. v. Office of Thrift Supervision, 156 F.3d 190, 191 (C.A.D.C.1998) ; Boone v. Carlsbad Bancorporation, Inc., 972 F.2d 1545, 1554, n. 6 (C.A.10 1992). And it is common to practice for appel......
  • Cone v. Bell, No. 07–1114
    • United States
    • United States Supreme Court
    • April 28, 2009
    ...Dist., 173 F.3d 274, 299, n. 13 (C.A.5 1999) (Garza, J., dissenting); Doolin Security Sav. Bank, F.S.B. v. Office of Thrift Supervision, 156 F.3d 190, 191 (C.A.D.C.1998); Boone v. Carlsbad Bancorporation, Inc., 972 F.2d 1545, 1554, n. 6 (C.A.10 1992). And it is common to practice for appell......
  • Cone v. Bell, No. 07–1114
    • United States
    • United States Supreme Court
    • April 28, 2009
    ...Dist., 173 F.3d 274, 299, n. 13 (C.A.5 1999) (Garza, J., dissenting); Doolin Security Sav. Bank, F.S.B. v. Office of Thrift Supervision, 156 F.3d 190, 191 (C.A.D.C.1998); Boone v. Carlsbad Bancorporation, Inc., 972 F.2d 1545, 1554, n. 6 (C.A.10 1992). And it is common to practice for appell......
  • Fraternal Order of Police v. U.S., No. 97-5304
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • April 16, 1999
    ...we would refuse to consider an argument that an appellant failed to raise before its reply brief. See, e.g., Doolin Sec. Sav. Bank v. OTS, 156 F.3d 190, 191 (D.C.Cir.1998); McBride v. Merrell Dow & Pharms., Inc., 800 F.2d 1208, 1210-11 (D.C.Cir.1986). Here, however, the felon-misdemeanant i......
  • Request a trial to view additional results

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