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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-11172
________________________
D.C. Docket No. 0:17-cv-62317-JIC
BBX CAPITAL,
f.k.a. BankAtlantic Bankcorp, Inc.,
Plaintiff - Appellant,
versus
FEDERAL DEPOSIT INSURANCE CORP,
in its corporate capacity,
BOARD OF GOVERNORS OF THE FEDERAL RESERVE BOARD,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 7, 2020)
Before ROSENBAUM, JILL PRYOR, and BRANCH, Circuit Judges.
PER CURIAM:
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This case concerns severance payments that Plaintiff-Appellant BBX Capital
(“BBX”) seeks to make to five former executives of BankAtlantic (the “Bank”), a
federally insured savings bank that BBX’s predecessor-in-interest, BankAtlantic
Bancorp Inc. (“Bancorp”), used to own. Those severance payments were part of a
2011 Stock Purchase Agreement (the “SPA”) that sold the Bank to BB&T
Corporation (“BBT”). At that time, however, the Bank was operating in a “troubled”
condition, and both the Bank and Bancorp were operating under consent orders that
prohibited them from making any so-called golden parachute payments absent
approval by the Federal Reserve Bank (the “FRB”) and concurrence by the Federal
Deposit Insurance Corporation (the “FDIC”; together with the FRB, the “agencies”).
The SPA also called for BBT to reimburse BBX for any severance payments made
to the executives.
After the sale of the Bank was finalized, the FDIC notified BBX that it
considered the severance payments to be golden parachute payments and that it
would approve payments of only twelve months of salary to each executive,
significantly less than what the SPA called for. The FDIC also concluded that BBT
was required to seek and receive approval before making the reimbursement
payments to BBX. Subsequently, the FRB approved the same payment amounts but
took no action with respect to approving any payments over 12 months of salary
because the FDIC had already prohibited any additional payments.
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BBX then filed this action claiming that the agencies’ decisions were arbitrary
and capricious and violated due process. The district court dismissed BBX’s action
against the FRB for lack of standing because FRB had not injured BBX, and the
court granted summary judgment in favor of the FDIC. BBX now appeals. After
careful review of the record and the briefs, we affirm.
I.
A. Legal Framework
In 1990, Congress added Section 1828(k) to Title 12. That section provides
that “the [FDIC] may prohibit or limit, by regulation or order, any golden parachute
payment or indemnification payment” to institution-affiliated parties (“IAPs”),
including “any director, officer, [or] employee” of the insured bank.
12 U.S.C. §§
1828(k), 1813(u). As relevant here, “golden parachute payment” means the
following:
(A) [A]ny payment (or any agreement to make any payment) in the
nature of compensation by any insured depository institution or covered
company for the benefit of any institution-affiliated party pursuant to
an obligation of such institution or covered company that—
(i) is contingent on the termination of such party's affiliation with
the institution or holding company; and--
(ii) is received on or after the date which—
...
(III) the institution's appropriate Federal banking agency
determines that the insured depository institution is in a
troubled condition . . .
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12 U.S.C. § 1828(k)(4)(A).
The FDIC’s implementing regulations define “golden parachute” in a largely
similar manner. See
12 C.F.R. §§ 359.0, 359.1(f). Notably, the regulations define
“payment,” which is incorporated by the golden parachute payment definition, to
include “[a]ny direct or indirect transfer of any funds[.]”
Id. § 359.1(k)(1).
The regulations also set forth the process by which a covered company can
seek and receive approval to make golden parachute payments. A covered company
that intends to make a golden parachute payment must file an application with the
FDIC and with its primary federal regulator, in this case the FRB. See
12 U.S.C. §
1813(q)(3)(F);
12 C.F.R. §§ 303.244, 359.4(a)(1), 359.6. A golden parachute
payment is prohibited unless excepted.
12 U.S.C. § 1828(k)(1);
12 C.F.R. § 359.2.
To gain regulatory approval to make a golden parachute payment, the
applicant must first “demonstrate” and “certify” that it is not aware of any reason to
believe the IAP (i) has “committed any fraudulent act or omission, breach of trust or
fiduciary duty, or insider abuse,” (ii) was “substantially responsible” for the
institution’s troubled condition, or (iii) has “violated any applicable Federal or State
banking law or regulation.”
12 C.F.R. § 359.4(a)(4)(i)-(iii); see also
18 U.S.C. §
1828(k)(2). The contents of that certification are not at issue here, but, significantly,
only if the applicant demonstrates that the IAP satisfies those requirements will the
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IAP be eligible to receive a golden parachute payment.
12 C.F.R. § 359.4(a)(4)(i)-
(iii).
If that threshold certification requirement is satisfied, then the regulations
provide for three categories of permissible payments, only two of which are relevant
here: the “regulator’s-concurrence exception” and the “change-in-control
exception.”
Id. §§ 359.4(a)(1), (3).1 The regulator’s-concurrence exception permits
a golden parachute payment if “[t]he appropriate federal banking agency, with the
written concurrence of the [FDIC], determines that such a payment or agreement is
permissible[.]” Id. § 359.4(a)(1). The change-in-control exception permits a
“reasonable severance payment, not to exceed twelve months salary,” “in the event
of a[n] [unassisted] change in control of the insured depository institution,” provided
that the institution first “obtain[s] the consent of the appropriate federal banking
agency[.]” Id. § 359.4(a)(3).
In determining whether to permit a payment under one of the listed
exceptions, § 359.4(b) provides that the FDIC and the FRB “may consider” the
following factors:
(1) Whether, and to what degree, the IAP was in a position of
managerial or fiduciary responsibility;
(2) The length of time the IAP was affiliated with the insured depository
institution or depository institution holding company, and the degree to
1
No party contends that the third exception, the “white knight” exception, applies here.
12
C.F.R. § 359.4(a)(2).
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which the proposed payment represents a reasonable payment for
services rendered over the period of employment; and
(3) Any other factors or circumstances which would indicate that the
proposed payment would be contrary to the intent of section 18(k) of
the Act or this part.
12 C.F.R. § 359.4(b)(1)-(3).
B. Factual Background
In 2011, Bancorp sought to sell the Bank, which it owned entirely, to BBT
under the SPA. The SPA provided that, upon closing, Bancorp would be obligated
to make severance payments to, as relevant here, five executives (the “Proposed
Payments”), and BBT would reimburse BBX for those payments. 2 Those Proposed
Payments were significantly greater than each executive’s average salary over the
prior years.
In the wake of the 2008 Great Recession, however, both Bancorp and the Bank
had been deemed to be, and remained in 2011, in “troubled condition,” were covered
companies, and were operating under public consent orders that, among other things,
prohibited the making of any golden parachute payments unless Bancorp complied
with the FDIC’s corresponding regulations. In addition, BBT’s acquisition of the
Bank and Bancorp’s merger with BBX, under the SPA, required regulatory review
2
The Proposed Payments are as follows: Valerie Toalson, Chief Financial Officer
($995,438); Lloyd DeVaux, Chief Operating Officer ($1,319,114); Jay McClung, Chief Risk
Officer ($743,258); Lewis Sarrica, Chief Investment Officer, ($920,451); and Susan McGregor,
Chief Talent Officer ($893,713).
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and approval. To expedite that approval process, Bancorp agreed that it would not
make the Proposed Payments without either a determination by both the FDIC and
the FRB that the payments were not golden parachutes, or FRB and FDIC approval
of the payments. BBT agreed to the same conditions with respect to its
reimbursement payments. The sale of the Bank to BBT closed on July 31, 2012,
with the non-objection of the FDIC and the FRB.
The following year, the FDIC notified BBX that the proposed severance
payments (and any reimbursements) were golden parachutes that could not be made
without FRB approval and FDIC concurrence. With respect to two of the executives,
DeVaux and McClung, the FDIC found that though those executives had previously
executed severance agreements in 1999 and 2001, respectively, the Proposed
Payments set forth in the SPA replaced payments due under the earlier agreements.3
Finally, the FDIC determined that the reimbursement payments from BBT to BBX
also constituted indirect golden parachute payments and therefore required approval.
In September 2013, BBX submitted its applications to make the Proposed
Payments to each of the executives but also reaffirmed its disagreement about the
applicability of the golden parachute provisions.
3
The FDIC subsequently also noted that for both DeVaux and McClung, the amount
provided for under the SPA “was more than the amount due to him upon resignation or change in
control under his employment contract.”
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The FDIC issued its decisions in January 2018. It first confirmed that the
Proposed Payments were subject to the golden parachute regulations. Quoting the
preamble to its golden parachute regulations, the FDIC noted that
§ 1828(k)(4)(A)(ii) “provides that any payment which is contingent on the
termination of an IAP’s employment and is received on or after an institution or
holding company becomes troubled is a prohibited golden parachute. If this
payment is prohibited under the prescribed circumstances, it is prohibited forever.”
So changes to the corporate structure—that is, BBT’s purchase of the Bank and
BBX’s exit from the banking industry—did not change the applicability of the
restrictions.
In addition, the FDIC determined that BBX is subject to golden parachute
regulations as a “covered company” for the purposes of the Proposed Payments.
And even if BBX were not a covered company, the Proposed Payments would still
be subject to the golden parachute restrictions because they arose from the
executives’ employment at BankAtlantic and Bancorp and would be made after the
date those entities had been deemed to be troubled. Finally, the FDIC determined
that the specific Proposed Payment negotiated for each executive qualified as a
golden parachute payment.
Then, turning to whether the Proposed Payments were permissible, the FDIC
concluded that it would not approve payments in any amount above one year’s salary
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for each executive. The FDIC explained that its decision “fully considered
Bancorp’s and the Bank’s supervisory history, BBX’s status as successor to
Bancorp, the agreements at issue, and the text, structure and intent of Section
1828(k), the certification factors found at
12 C.F.R. § 359.4(a)(4), and the
discretionary evaluative criteria found at
12 C.F.R. § 359.4(b).”
Specifically, the FDIC determined that it “would have no objection and would
concur, if the FRB were to approve payment . . . in [an] amount . . . representing
twelve months salary” under the change-in-control exception. But though additional
payments could be permitted under the regulator’s-concurrence exception, the FDIC
determined that additional payments under that exception were not justified based
on its internal guidance and the § 359.4(b) factors. In reaching those conclusions,
the FDIC considered that the executives had limited responsibility for the Bank’s
troubled condition that “arose in the context of a protracted national economic
downturn” and that BBT had acquired the Bank in an unassisted transaction without
loss to the FDIC. Nonetheless, the FDIC found that approval of the entire Proposed
Payment would be contrary to the intent of the golden parachute restrictions and that
independently supported its one year’s salary determination.
About two weeks later, the FRB issued its decision. The FRB approved
payment of 12 months of salary under the change-in-control exception. As to any
excess amounts potentially permissible under the regulator’s-concurrence exception,
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though, the FRB determined that “no further action [wa]s required” and explicitly
“t[ook] no action with regard to those payment amounts” because “FDIC
concurrence,” which had already been withheld, “is required before those payments
can be made.” Finally, the FRB stated, “It is anticipated that BB&T will reimburse
BBX Capital for the golden parachute payments pursuant to Section 5.7(h) of the
[SPA]. BB&T must request approval under 12 C.F.R. part 359 prior to making
reimbursements for the golden parachute payments.”
In response, BBX sued the FDIC and the FRB under the Administrative
Procedure Act (“APA”) and the Due Process Clause of the Fifth Amendment.
BBX’s amended complaint asserts that (1) the FDIC’s determinations that the
Proposed Payments are golden parachute payments and the agencies’ refusal to
approve the full Proposed Payment amounts were arbitrary and capricious (Counts I
and II); (2) the agencies violated BBX’s due-process rights by requiring BBT to file
a second application before reimbursing BBX (Count IV); and (3) the court should
declare that BBX is authorized to make the Proposed Payment (Count V).4
4
Count III asserts that the agencies unlawfully or unreasonably delayed in rendering a
decision. Because the agencies subsequently did issue their decisions, that count is not at issue
here.
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The district court subsequently granted summary judgment in favor of the
FDIC and dismissed the FRB for lack of jurisdiction, concluding that the FRB was
not responsible for any injury BBX sustained. We now affirm. 5
II.
We turn first to BBX’s argument that the district court erroneously concluded
that BBX lacked standing to sue the FRB. We review standing determinations de
novo, CAMP Legal Def. Fund, Inc. v. City of Atlanta,
451 F.3d 1257, 1268 (11th
Cir. 2006), and find that BBX’s arguments lack merit.
“[S]tanding is an essential and unchanging part of the case-or-controversy
requirement of Article III[,]” which the party invoking federal jurisdiction has the
burden of proving. Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61 (1992).
“[T]he irreducible constitutional minimum of standing under Article III consists of
three elements: an actual or imminent injury, causation, and redressability.”
Hollywood Mobile Estates Ltd. v. Seminole Tribe of Fla.,
641 F.3d 1259, 1265 (11th
Cir. 2011) (internal quotation marks omitted).6
The causation element, which we focus on here, requires “a causal connection
between the injury and the conduct complained of—the injury has to be fairly
5
We have jurisdiction pursuant to
28 U.S.C. § 1291.
6
A party suing under the APA must also demonstrate prudential standing, which requires
the interest asserted be “within the zone of interests to be protected or regulated by the statute that
he says was violated.” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak,
567
U.S. 209, 224 (2012) (internal quotation marks omitted). BBX’s prudential standing is not at issue.
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traceable to the challenged action of the defendant, and not the result of the
independent action of some third party not before the court.” Lujan,
504 U.S. at 560
(alterations adopted). That requirement does not disappear simply because the
plaintiff has named an administrative agency as a defendant. Instead, as with any
party that is dragged into court, a plaintiff must allege how the agency’s action or
inaction caused the plaintiff’s alleged injury. See Hollywood Mobile Estates Ltd.,
641 F.3d at 1265-66. Simply describing an agency’s regulatory responsibilities is
not enough.
Id. On the other hand, standing is not defeated merely because the
complained of injury can be fairly traced to multiple parties. Loggerhead Turtle v.
Cty. Council of Volusia Cty., Fla.,
148 F.3d 1231, 1247 (11th Cir. 1998).
BBX first argues that it has standing to sue the FRB because the FRB issued
its decision after the FDIC issued its own decision. That argument is premised on
the text of the regulator’s-concurrence exception, which states that a golden
parachute payment is permissible if “[t]he appropriate federal banking agency [the
FRB], with the written concurrence of the [FDIC], determines that such a payment
or agreement is permissible[.]”
12 C.F.R. § 359.4(a)(1). We do not read that section
as requiring the agencies to act in any particular order. Such a requirement would
have at least one absurd consequence: By issuing its decision before the FRB, the
FDIC, an independent agency, would cause the FRB to violate the regulation and, if
BBX had its way, cause the FRB to injure the golden parachute applicant. We cannot
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countenance that result. And in any event, the FRB did not injure BBX by acting
after the FDIC issued its decision. Because the regulator’s-concurrence exception
requires permission from both agencies, one denial, in any order, vetoes the
Proposed Payment. Here, it was the FDIC’s veto that caused BBX’s injury.
Next, plaintiff argues that the FRB’s substantive decision, as opposed to the
timing of that decision, injured it. We disagree.
As an initial matter, the FRB approved 12 months of salary, the maximum
available, under the change-in-control exception. That decision did not harm BBX.
As to the regulator’s-concurrence exception, the FRB explicitly took no action
because the FDIC had already prohibited any payment under that exception.
Because golden parachute payment approval under that exception requires two
“yeses” from the governing agencies, even if the FRB had approved payments in
excess of 12 months’ salary, no payment could be made. So again, it was the FDIC’s
decision to prohibit any payment in excess of 12 months’ salary, and not the FRB’s
non-decision, that harmed BBX.
Facing the fact that the FRB’s non-decision did not harm it, BBX asserts that
it was harmed by the FRB’s decision to “rubberstamp” the FDIC’s decision. To
begin, that argument is factually incorrect because, as to the regulator’s-concurrence
exception, the FRB neither approved nor rejected the FDIC’s decision. So it didn’t
rubberstamp anything.
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Pointing to Strickland v. Alexander,
772 F.3d 876, 885-86 (11th Cir. 2014),
BBX argues that even the FRB’s performance of a ministerial task supports Article
III standing. But there, we did not hold that the performance of a ministerial task
alone could support standing. Rather, we held that when an injury traceable to a
defendant exists, the ministerial nature of the action taken—i.e., the causal
connection—will not somehow void the injury or causation and thereby defeat
standing. See Alexander, 772 F.3d at 885-86.
BBX’s reliance on Loggerhead Turtle is similarly misplaced. As the district
court explained, “the critical factual difference[] between this case and Loggerhead
Turtle” is that the Loggerhead Turtle defendant had “absolute authority to issue
environmental ordinances that would . . . prevent plaintiffs’ injuries. That is not so
here, where the FRB has no authority whatsoever to control the FDIC—an
independent agency.”
Finally, BBX argues that it was harmed by the FRB’s determination that BBT
must seek approval before reimbursing BBX. True, the FRB’s decision letter stated,
“BB&T must request approval under 12 C.F.R. part 359 prior to making
reimbursements for the golden parachute payments.” But that wasn’t an adverse
decision; it was a statement of the law, as interpreted by the FDIC. The FDIC had
already determined that the payments qualified as golden parachute payments, and
the FRB had no authority to override the interpretation by an independent agency.
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Moreover, in order to expedite approval of the SPA, BBX and BBT contractually
agreed that the Proposed Payments would not be made unless both the FRB and the
FDIC determined the payments were not subject to the golden parachute provisions.
As the FDIC has already rendered an unfavorable determination on that point, BBX
can hardly complain that the FRB somehow injured it by stating that BBT must seek
approval to reimburse BBX—that’s exactly what BBT and BBX agreed to. 7
In sum, because BBX has not shown any injury it has sustained is fairly
traceable to an FRB action or inaction, BBX does not have standing to sue the FRB.
III.
Next, we turn to BBX’s argument that the district court erred by granting
summary judgment in favor of the FDIC. BBX makes two overarching arguments
in support of its primary APA claims. First, BBX asserts that the FDIC decision to
classify the Proposed Payments as golden parachute payments was arbitrary and
capricious. Second, BBX contends that even if that decision was not arbitrary and
capricious, the FDIC’s denial of any payments in excess of 12 months’ salary for
each executive was itself arbitrary and capricious. Finally, BBX argues that the
FDIC’s requirement that BBT obtain approval before reimbursing BBX was
arbitrary and capricious and violated the Due Process Clause.
7
Because our standard of review is de novo and we conclude that BBX has not established
standing to sue FRB, we need not address BBX’s other argument that the district court erred by
applying a proximate-cause standard.
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We review a grant of summary judgment de novo. Preserve Endangered
Areas of Cobb’s History, Inc. v. U.S. Army Corps of Eng’rs,
87 F.3d 1242, 1246
(11th Cir. 1996). Summary judgment is proper if “there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). The moving party bears the initial burden of demonstrating the
absence of a genuine dispute of material fact. Celotex Corp. v. Catrett,
477 U.S.
317, 323 (1986). A fact is “material” if it “might affect the outcome of the suit under
the governing law.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). A
dispute over such a fact is “genuine” if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”
Id.
Federal courts review challenges to agency decisions under the standard set
forth by the APA. See
5 U.S.C. § 706; see also Fund for Animals, Inc. v. Rice,
85
F.3d 535, 541 (11th Cir. 1996). The APA provides, in relevant part, that a court
shall “hold unlawful and set aside agency action, findings, and conclusions” that are
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.”
5 U.S.C. § 706(2). “The arbitrary and capricious standard is exceedingly
deferential.” Miccosukee Tribe of Indians of Fla. v. United States,
566 F.3d 1257,
1264 (11th Cir. 2009) (internal quotation marks omitted). So long as the agency’s
conclusions are rational, we will not set them aside.
Id. That deference is enhanced
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when the agency is making decisions within its area of special expertise, as opposed
to simple findings of fact.
Id. Nevertheless, we may find an agency action
arbitrary and capricious where the agency has relied on factors which
Congress has not intended it to consider, entirely failed to consider an
important aspect of the problem, offered an explanation for its decision
that runs counter to the evidence before the agency, or is so implausible
that it could not be ascribed to a difference in view or the product of
agency expertise.
Id. (quoting Alabama–Tombigbee Rivers Coal. v. Kempthorne,
477 F.3d 1250, 1254
(11th Cir. 2007)).
Relatedly, “[w]hen Congress has explicitly left a gap for an agency to fill,
there is an express delegation of authority to the agency to elucidate a specific
provision of the statute by regulation, and any ensuing regulation is binding in the
courts unless procedurally defective, arbitrary or capricious in substance, or
manifestly contrary to the statute.” United States v. Mead Corp.,
533 U.S. 218, 227
(2001) (internal citation and quotation marks omitted). And “[a]n agency's
interpretation of its own regulations is controlling unless plainly erroneous or
inconsistent with the regulation.” Sierra Club v. Johnson,
436 F.3d 1269, 1274 (11th
Cir. 2006) (internal quotation marks omitted). But when a regulation merely parrots
the language of the authorizing statute, the question for the courts is the meaning of
the statute. See Gonzales v. Oregon,
546 U.S. 243, 257 (2006).
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A.
BBX first contends that the golden parachute statute does not cover the
payments at issue here. Specifically, BBX argues that the FDIC has (1) erroneously
decided to apply the golden parachute provisions in perpetuity to any institution ever
classified as “troubled” and (2) erroneously concluded that the SPA fell within the
plain language of the statutory regime. Those arguments fail for essentially the same
reason: the golden parachute provisions focus on qualifying payments, not on
qualifying institutions.
Chevron requires us to first look at the plain meaning of the statute. 8 Chevron
U.S.A. Inc. v. NRDC Inc.,
467 U.S. 837, 842-43 (1984). If it is unambiguous and
does not lead to absurd results, then the analysis ends there. Packard v. Comm'r,
746 F.3d 1219, 1222 (11th Cir. 2014); Silva-Hernandez v. U.S. Bureau of Citizenship
& Immigration Servs.,
701 F.3d 356, 363 (11th Cir. 2012) (“This Court’s one
recognized exception to the plain meaning rule is absurdity of results.”). “In
determining whether a statute is plain or ambiguous, we consider the language itself,
the specific context in which that language is used, and the broader context of the
statute as a whole.” In re BFW Liquidation, LLC,
899 F.3d 1178, 1188 (11th Cir.
2018) (internal quotation marks omitted). A statute is ambiguous “if it is susceptible
8
BBX also argues that we should revisit Chevron. We are, of course, unable to do so.
Bosse v. Oklahoma,
137 S. Ct. 1, 2 (2016) (“[I]t is th[e] [Supreme] Court's prerogative alone to
overrule one of its precedents.”).
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to more than one reasonable interpretation.”
Id. Only if we determine the statute is
ambiguous do we reach the second step of Chevron, which requires us to defer to
the agency’s construction of a statute it administers if that construction is
permissible. Chevron,
467 U.S. at 842-43.
Section 1828(k) authorizes the FDIC to prohibit or limit any golden parachute
payment or any agreement to make such a payment: “The term ‘golden parachute
payment’ means any payment (or any agreement to make any payment) . . . that (i)
is contingent on the termination of such party’s affiliation with the institution . . .
and . . . (ii) is received on or after the date the institution’s Federal banking agency
determines that the . . . institution is in a troubled condition[.]”
12 U.S.C. §
1828(k)(4)(A) (emphasis added). The SPA is exactly that: an agreement to make
severance payments by an institution to its executives after the institution was
determined to be (and remained) in a troubled condition. By its plain language then,
the golden parachute statute covers the SPA and the Proposed Payments included
therein.
Rather than addressing the plain language of the statute, BBX argues that
Congress did not intend for the statute to be applied to well-performing executives
of institutions that have recovered from their troubled state. We are unconvinced by
that argument for a host of reasons. First, whatever supposed intent BBX gleans
from its reading of the statute, we may not ignore the plain meaning of the statutory
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text unless it leads to absurd results, which it does not. Second, the Bank was still a
“troubled” institution at the time the SPA was executed, so it had not “recovered.”
Third, despite BBX’s assertion to the contrary, the FDIC does not apply the golden
parachute provisions to once-troubled institutions in perpetuity. 9 Rather, it applies
the provisions to qualifying payments and agreements to pay in perpetuity. So if the
Bank was in fact no longer “troubled,” then it could have executed new severance
agreements that would not have been subject to the golden parachute restrictions.
The FDIC’s focus on payments and agreements to make payments that qualify
as golden parachutes is reasonable and makes sense. A contrary reading would allow
otherwise prohibited golden parachute payments to be made through simple
corporate restructuring or by delaying the payments until after the institution is either
no longer covered (as is the case here) or until after the institution is no longer
“troubled.” See, e.g., Council for Urological Ints. v. Burwell,
790 F.3d 212, 225
(D.C. Cir. 2015) (upholding as reasonable statutory interpretation that prevented
evasion); NRA v. Brady,
914 F.2d 475, 481 (4th Cir. 1990) (same).
BBX’s final two argument can be dispatched with alacrity. First, BBX argues
that the proposed payments do not qualify as golden parachute payments because
9
BBX complains that the FDIC’s final decisions relied on the FDIC’s preamble to its
golden parachute regulations that states, “If th[e golden parachute] payment is prohibited under
the prescribed circumstances, it is prohibited forever.” But that language is perfectly consistent
with § 1828(k).
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BBX was under no obligation to pay severance unless and until the sale of the Bank
to BBT closed, at which point BBX would completely exit banking, making it no
longer subject to FDIC regulations. Cf.
12 U.S.C. § 1828(k)(4)(A) (defining golden
parachute payment as including any payment or agreement to pay “pursuant to an
obligation” that is contingent on the IAP’s termination). But an obligation does not
vanish merely because a triggering precondition has not yet occurred. The SPA was
an agreement that obligated BBX to make certain qualifying payments once certain
conditions were met. That puts it within the golden parachute framework’s purview.
Second, BBX argues that the Proposed Payments to McClung and DeVaux
are not golden parachute payments because those two executives had executed
severance contracts in 1999 and 2001, when the Bank was not in a troubled
condition. That argument fails because, pursuant to the SPA, Bancorp expressly
assumed the Bank’s obligation to pay those executives the amounts contemplated by
the SPA. The earlier agreements are thus irrelevant because the Proposed Payments
to McClung and DeVaux are being made under the SPA, not those earlier
agreements.
Moreover, though the prior severance agreements did not qualify as golden
parachutes, if the two executives were terminated in 2011 (without the SPA
superseding the earlier agreements), the golden parachute provisions would
nevertheless apply to payments due under those agreements. See
12 U.S.C. §
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1828(k)(4)(A) (defining golden parachute payment to include any payment
“received on or after the date on which . . . the institution” is determined to be
“troubled”). Thus, BBX would have us conclude that though payment could not be
made under the prior severance agreements, those same agreements somehow
exempt the SPA’s Proposed Payments to McClung and DeVaux. We cannot agree
with that illogical reasoning.
Because the Proposed Payments fall directly under the plain language of the
statute, we cannot conclude that the FDIC’s decision to apply those provisions was
arbitrary or capricious.
B.
BBX next complains that the FDIC’s decision to deny any payment to the five
executives in excess of 12 months’ salary under the regulator’s-concurrence
exception was arbitrary and capricious. BBX argues that the FDIC’s decision was
arbitrary and capricious because the FDIC failed to consider evidence that the five
executives committed no fraudulent acts or omissions or insider abuses, were not
otherwise responsible for the troubled condition of the Bank, and to the contrary,
steered the bank through the Great Recession to the benefit of depositors.
BBX’s argument gets the regulatory framework wrong. Ordinarily, payments
that qualify as golden parachute payments are prohibited unless excepted and
deemed permissible.
12 C.F.R. § 359.2. Under § 359.4(a)(4), BBX has the initial
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burden of showing the executives’ good (or not bad) behavior, which includes
certifying that BBX is not aware of a reasonable basis to believe the executives
committed any fraudulent act, violated any banking law, or were responsible for the
institution’s troubled condition. Only after BBX has satisfactorily made that
showing does the FDIC move on to the question of whether other considerations,
including the discretionary factors set forth in § 359.4(b), weigh in favor of allowing
golden parachute payments to be made. That is, the executives’ good behavior opens
the door to a proposed payment. And once the door had been opened, the statute
and the regulations do not require the FDIC to address the executives’ purported
good behavior when determining whether to permit the Proposed Payments. That
aside, BBX’s argument fails for the additional reason that the FDIC did explicitly
consider the executives’ limited responsibility for the Bank’s troubled condition.
We also conclude that the FDIC’s analysis of the discretionary factors set forth
in § 359.4(b) supports its decision.10 First, the FDIC found that each of the
executives had a “high degree of ‘managerial or fiduciary responsibility.’” As each
executive was a chief officer of some type, that conclusion can hardly be deemed
10
The FDIC’s decision also relied on its internal guidance that advised that the regulator’s-
concurrence exception should not be viewed as permitting golden parachute payments in excess
of one year’s salary. Though BBX mounts several arguments against that guidance, we need not
address them because we find that the FDIC’s analysis of the § 359.4(b) discretionary factors
independently supports its decision. We do, however, reject, as factually inaccurate, BBX’s
argument that the agency based its decision solely on its internal guidance.
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arbitrary or capricious. Second, the FDIC considered the length of each executive’s
tenure at the company compared to that executive’s compensation during that time,
finding each of the executives “well compensated during his [or her] tenure.” BBX
does not challenge that conclusion, and we have no basis to doubt it.
As to the third factor, which calls for a more wide-ranging inquiry, the FDIC
“fully considered that the Bank’s troubled condition arose in the context of a
protracted national economic downturn, which hit Florida markets particularly
hard.” It also accounted for the fact that the Bank was acquired in an unassisted
transaction without loss to the FDIC or taxpayer funds. “Nonetheless, the FDIC
f[ound] that approval” of the full Proposed Payment would be “contrary to the
intent” of § 1828(k) because “executives at the helm of” troubled institutions “should
not be awarded windfall payments.” Congress’s primary focus, in enacting the
golden parachute provision, was to prevent executives from “vot[ing] themselves
generous bonuses at the expense of the institution or company . . . .” 136 Cong. Rec.
E3684-02, E3687,
1990 WL 206971 (Oct. 27, 1990); H.R. Rep. 101-681(I), 1990
U.S.C.C.A.N. 6472, 6588 (Sept. 5, 1990) (same).11 That’s the position the
executives were in here.
11
For the same reason, we are unpersuaded by BBX’s argument that because the executives
had substantial managerial and fiduciary responsibilities, they should be awarded the full Proposed
Payments.
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Nor is there any indication that the FDIC relied on factors that Congress did
not intend for it to consider. And we find no merit in BBX’s remaining contentions.
In short, the FDIC’s decision was not arbitrary and capricious because the
FDIC did exactly what it was supposed to do. It considered the discretionary factors,
it considered additional factors that weighed in BBX’s favor, and it neither refused
to consider relevant factors nor relied on irrelevant factors. The explanations the
FDIC offered for denying additional payments were reasonable and did not run
counter to the evidence. We therefore affirm.
C.
Finally, BBX argues that the FDIC’s requirement that BBT seek approval
before reimbursing BBX was arbitrary and capricious because it did not offer any
reasoned basis for the requirement. But in its April 2013 correspondence, the FDIC
did explain why it considered BBT’s reimbursement payments to be “indirect”
golden parachute payments. The FDIC’s final determination letters incorporated
that 2013 correspondence by reference. The decision was therefore not arbitrary or
capricious for failure to provide a reasoned analysis and, in fact, we find the FDIC’s
analysis reasonable.
Nor did the decision violate due process. Other than claiming that it has a
property interest in the reimbursements—which it no doubt does—BBX does not
explain how its due-process rights were violated by the FDIC’s decision requiring
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BBT to gain approval before reimbursing BBX. Due process requires only that
parties whose liberty or property interests are affected by governmental
adjudications be given “notice and an opportunity to be heard.” See United States
v. James Daniel Good Real Property,
510 U.S. 43, 48 (1993). Though BBT’s
reimbursement application and BBX’s proposed payment application may have
some overlap, BBX cites no authority suggesting that the Due Process Clause
prohibits any duplication of labor.
IV.
For the reasons we have described, we affirm the district court’s dismissal of
the claims against the FRB for lack of standing and affirm the grant of summary
judgment in favor of the FDIC. We also CANCEL ORAL ARGUMENT in this
case.
AFFIRMED.
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