United States v. Godbout-Bandal

• Decision Date: 20 October 2000
• Docket Number: No. 00-1601,DEFENDANT-APPELLANT,GODBOUT-BANDAL,PLAINTIFF-APPELLEE,00-1601
• Citation: 232 F.3d 637
• Parties: (8th Cir. 2000) UNITED STATES OF AMERICA,, v. CHERYL C.; BRUCE A. RASMUSSEN; WAYNE FIELD; DEFENDANTS, RICHARD D. DONOHOO, Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 637

232 F.3d 637 (8th Cir. 2000)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. CHERYL C. GODBOUT-BANDAL; BRUCE A. RASMUSSEN; WAYNE FIELD; DEFENDANTS, RICHARD D. DONOHOO, DEFENDANT-APPELLANT.

No. 00-1601

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: October 20, 2000

Filed: November 15, 2000

Appeal from the United States District Court for the District of Minnesota

Before Hansen, Murphy, and Bye, Circuit Judges.

Bye, Circuit Judge.

The district court ¹ granted summary judgment to the federal government on its claim for enforcement of an award of civil penalties against defendants for violation of the Change in Bank Control Act, 12 U.S.C. 1817(j). Defendant Richard D. Donohoo (Donohoo) appeals on the single issue of whether the applicable five-year statute of limitations bars the government's claim. We affirm.

I.

In July, 1990, Donohoo and the other defendants, officers of Capital Bank, inserted $1,000,000 in cash into that institution during the banking crisis, in order to meet the bank's capital requirements. The investment allowed Capital Bank to weather the crisis; but, as it turned out, Donohoo and his cohorts violated the Change in Bank Control Act when they made their investment without first obtaining approval from the Federal Deposit Insurance Corporation (FDIC). See Lindquist & Vennum v. Federal Deposit Ins. Corp., 103 F.3d 1409, 1413-14 (8th Cir. 1997).

The exact details of Donohoo's transgressions are unimportant for purposes of this appeal; however, the following chronology is relevant. In September 1992, the FDIC assessed civil penalties against Donohoo in the amount of $1,000,554.00 for his July, 1990, violation. Donohoo appealed the assessment, and an administrative hearing was held before an administrative law judge (ALJ) in April-May, 1993. In September, 1994, the ALJ issued his Recommended Decision. The FDIC Board of Governors modified the ALJ's decision, and in September, 1995, issued its own decision ordering Donohoo to pay $1,000,554.00. Donohoo appealed the administrative decision to this court; we affirmed the penalty assessment on January 8, 1997. See id. Donohoo then sought a writ of certiorari from the Supreme Court, which was denied on October 6, 1997. See Donohoo v. Federal Deposit Ins. Corp., 522 U.S. 821 (1997).

In November, 1998, more than eight years after the commission of the act for which the penalty was assessed, the FDIC commenced this action to enforce the penalty pursuant to 12 U.S.C. 1818(i). The district court granted the government's motion for summary judgment on December 20, 1999, rejecting without discussion Donohoo's argument that the government could not collect on the debt because the statute of limitations set forth in 28 U.S.C. 2462 had run.

II.

Donohoo seeks review of only one issue: whether the district court erred in implicitly finding that the government's claim against him is not barred by the statute of limitations. We review the district court's grant of summary judgment de novo. See Lynn v. Deaconess Med. Ctr.-West Campus, 160 F.3d 484, 486 (8th Cir. 1998).

The government proceeds against Donohoo pursuant to 1818(i)(1) which allows the "appropriate Federal banking agency" to seek "enforcement of any effective and outstanding notice or order issued under this section" in district court. This statutory provision is not equipped with its own statute of limitations; thus, the general statute of limitations for collection of civil penalties, 28 U.S.C. 2462, applies. Section 2462 states as follows:

Except as otherwise provided by Act of Congress, an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued if, within the same period, the offender or the property is found within the United States in order that proper service may be made thereon.

28 U.S.C. 2462.

Donohoo argues that the government's claim for enforcement of the penalties assessed against him by the FDIC is barred by this statute. He asks us to interpret the phrase "claim first accrued" to mean the date of the original violation for which the penalty was assessed, i.e., July, 1990. The government, in contrast, argues that the claim does not accrue until the administrative proceedings assessing the penalties are completed.

This question appears to be a matter of first impression in our circuit. The circuits are split on when a claim accrues under this statute of limitations. The Fifth Circuit favors Donohoo's approach. See United States v. Core Labs. Inc., 759 F.2d 480 (5th Cir. 1985). The Core court analyzed caselaw arising under the various predecessors to 2462 and found that "[a] review of these cases clearly demonstrates that the date of the underlying violation has been accepted without question as the date when the claim first accrued, and, therefore, as the date on which the statute began to run." Id. at 482. The court also found support for its position in the legislative history of the Export Administration Act, 50 U.S.C. App. 2401, the Act pursuant to which the underlying lawsuit was brought. See id. Finally, the court noted that "[p]ractical considerations support this construction. The progress of administrative proceedings is largely within the control of the Government. A limitations period that began to run only after the government concluded its administrative proceedings would thus amount in practice to little or none." Id. at 482-83.

The First Circuit takes the opposite position. See United States v. Meyers, 808 F.2d 912 (1st Cir. 1987). In Meyers, another proceeding under the Export Administration Act, the First Circuit rejected Core's reasoning ("the core of Core," id. at 913). Instead, the court held that where the Act which authorizes the assessment of a penalty provides for an administrative procedure for assessing that penalty, the statute of limitations at 2462 does not begin to run until "the penalty has first been assessed administratively." Id. at 914. The Meyers court noted the "obvious proposition that a claim for 'enforcement' of an administrative penalty cannot possibly 'accrue' until there is a penalty to be enforced." Id. Because the court found the language of the relevant statutes to be unambiguous, it rejected any resort to statutory construction to aid in interpretation. Id. at 915. Further, the court noted that rather than preventing government abuses, the Fifth Circuit's interpretation could encourage violator abuses of the administrative system. If the government has only five years from the date of the violation to assess a penalty and begin collection proceedings, the violator would have great incentive to delay the process as much as possible, hoping that the government's clock would run out before the enforcement proceeding...