Keating v. Office of Thrift Supervision, No. 93-70902

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtWIGGINS
Citation45 F.3d 322
Docket NumberNo. 93-70902
Decision Date01 November 1994
PartiesCharles H. KEATING, Jr., Petitioner, v. OFFICE OF THRIFT SUPERVISION, Respondent.

Page 322

45 F.3d 322
Charles H. KEATING, Jr., Petitioner,
v.
OFFICE OF THRIFT SUPERVISION, Respondent.
No. 93-70902.
United States Court of Appeals,
Ninth Circuit.
Submitted Nov. 1, 1994 *.
Decided Jan. 18, 1995.

Page 324

Charles H. Keating, Jr., Scottsdale, AZ, for petitioner.

Richard L. Rennert, Office of Thrift Supervision, Washington, DC, for respondent.

Petition for Review of a Decision of the Office of Thrift Supervision

Before: WIGGINS, KOZINSKI, and THOMPSON, Circuit Judges.

WIGGINS, Circuit Judge:

BACKGROUND

On August 9, 1990, the Office of Thrift Supervision ("OTS") filed a notice of charges against Petitioner Charles Keating, Jr. and other defendants. Subsequently, all defendants but Keating settled the cases against them. Keating's hearing was conducted before Paul Clerman, an Administrative Law Judge ("ALJ") appointed for this proceeding by Timothy Ryan, who was then Director of the OTS. The OTS's final order banned Keating from the federally insured banking industry and directed him to pay $36,398,738.76 in restitution to Lincoln Savings & Loan in receivership.

Keating appealed to this court, seeking to have the OTS's order vacated and the case remanded for a new hearing. This court has jurisdiction under 12 U.S.C. Sec. 1818(h)(2) to hear the appeal. Keating appeals on three grounds, none of which challenges the substance of the agency's findings and conclusions. First, Keating appeals the ALJ's November 15, 1990 order denying Keating's request to stay the OTS enforcement action pending the resolution of all criminal proceedings against him. 1 Second, Keating alleges error in former OTS Director Timothy Ryan's May 11, 1991, refusal to recuse himself for alleged bias. Third, Keating argues that he was denied due process by Ryan's exercise of combined investigatory, prosecutorial, and adjudicatory functions. We consider each ground for appeal in turn, and we affirm.

DISCUSSION

I. REFUSAL TO STAY THE PROCEEDING

Keating claims his due process rights were violated by OTS's refusal to stay the civil proceeding until the conclusion of state and federal criminal proceedings, because (1) he was afforded inadequate preparation time to defend the OTS proceeding, and (2) the pending criminal proceedings forced him to invoke his Fifth Amendment privilege during the OTS hearing, depriving him of an opportunity to testify on his own behalf.

The Constitution does not ordinarily require a stay of civil proceedings pending the outcome of criminal proceedings. Federal Sav. & Loan Ins. Corp. v. Molinaro, 889 F.2d 899, 902 (9th Cir.1989); Securities & Exchange Comm'n v. Dresser Indus., 628 F.2d 1368, 1375 (D.C.Cir.), cert. denied, 449 U.S. 993, 101 S.Ct. 529, 66 L.Ed.2d 289 (1980). "In the absence of substantial prejudice to the rights of the parties involved, [simultaneous] parallel [civil and criminal] proceedings are unobjectionable under our jurisprudence." Dresser, 628 F.2d at 1374. "Nevertheless, a court may decide in its discretion to stay civil proceedings ... 'when the interests of justice seem[ ] to require such action.' " Id. at 1375 (quoting United States v. Kordel, 397 U.S. 1, 12 n. 27, 90 S.Ct. 763, 769 n. 27, 25 L.Ed.2d 1 (1970)).

The decision whether to stay civil proceedings in the face of a parallel criminal proceeding should be made "in light of the particular circumstances and competing interests involved in the case." Molinaro, 889 F.2d at 902. This means the decisionmaker should consider "the extent to which the defendant's fifth amendment rights are implicated." Id. In addition, the decisionmaker should generally consider the following factors:

Page 325

(1) the interest of the plaintiffs in proceeding expeditiously with this litigation or any particular aspect of it, and the potential prejudice to plaintiffs of a delay; (2) the burden which any particular aspect of the proceedings may impose on defendants; (3) the convenience of the court in the management of its cases, and the efficient use of judicial resources; (4) the interests of persons not parties to the civil litigation; and (5) the interest of the public in the pending civil and criminal litigation. Id. at 903.

Keating contends that the ALJ's refusal to postpone the administrative proceeding left him with inadequate time to mount a defense because the criminal trials demanded all of his attention. Although both the criminal trials and the OTS proceeding involved potentially overwhelming quantities of documentary evidence, the ALJ found that Keating had adequate time to prepare for the OTS hearing. He also concluded that any burden on Keating was far outweighed by the public interest in a speedy resolution of the case. Both conclusions are supported by the record.

The OTS hearing began eleven months after the notice of charges issued. The notice issued on August 9, 1990. The hearing took place in Los Angeles from July 1 to 3 and July 8 to 12, 1991. On July 12 the OTS hearing was suspended for nine months. The state trial began on Aug. 4, 1991, resulting in conviction on Dec. 4, 1991. Keating was then indicted on federal charges on Dec. 12, 1991. On March 24, 1992, two of the four OTS charges were severed because they concerned the transactions on which the federal indictment was based. The OTS hearing on the remaining two charges resumed in Phoenix, Arizona on April 27, 1992. The hearing concluded on May 1, 1992. Keating's federal criminal trial began six months later, on November 2, 1992.

In sum, Keating had eleven months to prepare for the first segment of the administrative hearing. The OTS proceeding was then adjourned for nine months, during which Keating's state trial and sentencing took place. 2 When the hearing resumed, the state trial itself had been over for more than four months. The federal trial did not commence until six months after the completion of the OTS proceeding. The ALJ was therefore justified in finding that Keating had ample time to prepare his defense in the OTS proceeding and that the decision not to stay the hearing did not unduly compromise Keating's due process rights.

Keating also contends that the OTS proceeding should have been stayed until after the conclusion of the criminal trials because the pending trials forced him to assert his Fifth Amendment privilege in the OTS proceeding. His argument is unpersuasive.

Keating did not have an opportunity to invoke his Fifth Amendment privilege in the OTS...

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365 practice notes
  • Oiye v. Fox
    • United States
    • California Court of Appeals
    • December 11, 2012
    ...in a civil proceeding.’ ” (Id. at pp. 885–886, 94 Cal.Rptr.2d 505, quoting Keating v. Office of Thrift Supervision (9th Cir.1995) 45 F.3d 322, 326.) At issue in that case was the extent to which civil discovery could be conducted against a corporation when some discovery requests were met b......
  • Gonzalez v. Cnty. of Merced, Case No. 1:16–cv–01682–LJO–SAB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • December 7, 2017
    ...2017 findings and recommendations, the undersigned found that when weighing the five factors in Keating v. Office of Thrift Supervision, 45 F.3d 322 (9th Cir. 1995) (" Keating factors"), the action should be stayed as to Defendant Rich at that time, but not as to Defendant County until an a......
  • Oiye v. Fox, H036065
    • United States
    • California Court of Appeals
    • March 13, 2013
    ...in a civil proceeding.’ ” (Id. at pp. 885–886, 94 Cal.Rptr.2d 505, quoting Keating v. Office of Thrift Supervision (9th Cir.1995) 45 F.3d 322, 326.) At issue in that case was the extent to which civil discovery could be conducted against a corporation when some discovery requests were met b......
  • Louis Vuitton Malletier S.A. v. LY USA, Inc., Docket Nos. 08–4483–cv
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • March 29, 2012
    ...them.” Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976); see also Keating v. Office of Thrift Supervision, 45 F.3d 322, 326 (9th Cir.1995) (observing that it is “permissible” for the trier of fact to draw such adverse inferences). “[A] party who asserts the priv......
  • Request a trial to view additional results
365 cases
  • Oiye v. Fox
    • United States
    • California Court of Appeals
    • December 11, 2012
    ...in a civil proceeding.’ ” (Id. at pp. 885–886, 94 Cal.Rptr.2d 505, quoting Keating v. Office of Thrift Supervision (9th Cir.1995) 45 F.3d 322, 326.) At issue in that case was the extent to which civil discovery could be conducted against a corporation when some discovery requests were met b......
  • Gonzalez v. Cnty. of Merced, Case No. 1:16–cv–01682–LJO–SAB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • December 7, 2017
    ...2017 findings and recommendations, the undersigned found that when weighing the five factors in Keating v. Office of Thrift Supervision, 45 F.3d 322 (9th Cir. 1995) (" Keating factors"), the action should be stayed as to Defendant Rich at that time, but not as to Defendant County until an a......
  • Oiye v. Fox, H036065
    • United States
    • California Court of Appeals
    • March 13, 2013
    ...in a civil proceeding.’ ” (Id. at pp. 885–886, 94 Cal.Rptr.2d 505, quoting Keating v. Office of Thrift Supervision (9th Cir.1995) 45 F.3d 322, 326.) At issue in that case was the extent to which civil discovery could be conducted against a corporation when some discovery requests were met b......
  • Louis Vuitton Malletier S.A. v. LY USA, Inc., Docket Nos. 08–4483–cv
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • March 29, 2012
    ...them.” Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976); see also Keating v. Office of Thrift Supervision, 45 F.3d 322, 326 (9th Cir.1995) (observing that it is “permissible” for the trier of fact to draw such adverse inferences). “[A] party who asserts the priv......
  • Request a trial to view additional results

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