Doolin Sec. Sav. Bank, F.S.B. v. Office of Thrift Supervision, 97-1222

• Decision Date: 01 September 1998
• Docket Number: No. 97-1222,97-1222
• Citation: 156 F.3d 190
• Parties: DOOLIN SECURITY SAVINGS BANK, F.S.B., Petitioner, v. OFFICE OF THRIFT SUPERVISION and Nicolas P. Retsinas, Director, Office of Thrift Supervision, Respondents.
• Court: U.S. Court of Appeals — District of Columbia Circuit

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 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 ALJ's recommended decision, Acting Director Retsinas commented that the Bank's motion to dismiss for lack of jurisdiction was filed beyond the time limits set forth in OTS regulations, and more than three months after Acting Director Fiechter resigned. Nevertheless, he addressed the Bank's arguments and rejected them.

In its opening brief in this court, the Bank challenged Retsinas' and Fiechter's authority to exercise the powers of Director of OTS for the same reasons it had urged before Retsinas. In its reply brief, however, the Bank raised an entirely new argument--namely, that Fiechter had actually been authorized to exercise the powers of Director, but only for the first 120 days of his tenure. The Bank asserted, for the first time, that Fiechter had been the previous Director's "first assistant." Under §§ 3345 and 3346 of the Vacancies Act, a "first assistant" automatically fills a vacancy caused by resignation, sickness or absence unless the President directs otherwise; absent certain contingencies, the temporary replacement is permitted to perform the duties of the office for 120 days. Once a first assistant has occupied the office for the permitted term under the automatic succession provision, the President is no longer empowered by the Vacancies Act to assign another officer to the position; the President's only option is to submit a nomination and await Senate confirmation. The Bank's claim that Fiechter was a "first assistant" authorized to serve for the first 120 days after his predecessor's departure was therefore a new challenge to Retsinas' designation under the Vacancies Act: if Fiechter occupied the office as a successor "first assistant" under the Vacancies Act, the President could not have assigned Retsinas to fill the position four years later.

The United States, which filed a brief as amicus curiae in this case discussing the proper construction of the Vacancies Act, among other matters, represented in its brief and at oral argument that Fiechter was not a "first assistant" for the purposes of the Vacancies Act. OTS informed the court that the Director had...