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Washington University Law Review Volume 92 Issue 5 2015 When Bank Examiners Get It Wrong: Financial Institution Appeals of Material Supervisory Determinations Julie Andersen Hill University of Alabama School of Law Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview Part of the Banking and Finance Law Commons, and the Finance and Financial Management Commons Recommended Citation Julie Andersen Hill, When Bank Examiners Get It Wrong: Financial Institution Appeals of Material Supervisory Determinations, 92 WASH. U. L. REV. 1101 (2015). Available at: https://openscholarship.wustl.edu/law_lawreview/vol92/iss5/5 This Article is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. Washington University Law Review VOLUME 92 NUMBER 5 2015 WHEN BANK EXAMINERS GET IT WRONG: FINANCIAL INSTITUTION APPEALS OF MATERIAL SUPERVISORY DETERMINATIONS† JULIE ANDERSEN HILL ABSTRACT Banks and credit unions sometimes complain that the examination process regulators use to police banking practices is oppressive. These financial institutions complain that regulators reach unduly negative examination conclusions known as “material supervisory determinations.” Institutions are wary because negative determinations can subject an institution to further regulatory scrutiny or enforcement actions. To guard against erroneous determinations, Congress, in 1994, enacted a statute requiring federal financial institution regulators to provide an appeals process. Each of the four regulators (the Office of the Comptroller of the Currency, the Federal Reserve, the Federal Deposit Insurance Corporation, and the National Credit Union Administration) adopted a unique material supervisory determination appeals process. † © 2015 Julie Andersen Hill. Associate Professor of Law, University of Alabama School of Law. I am grateful to Samuel P. Golden, Larry L. Hattix, Joy K. Lee, and Hattie M. Ulan who shared their regulatory experiences with me. Their helpfulness does not necessarily indicate agreement with my conclusions. Ashlin Aldinger provided excellent research assistance, and Michael Hill provided invaluable help with the appeals data. Without them, the process of writing this article would not have been nearly as fun. I am indebted to William Andreen, Emily Bremer, Shahar Dillbary, Ronald Krotoszynski, and Andrew Morriss for their comments on earlier drafts of this article. Finally, I appreciate the opportunities to present this work at the Federal Reserve Bank of St. Louis’ Conference on Community Banking in the 21st Century and Indiana University Maurer School of Law’s faculty workshop series. Comments I received in these venues were particularly astute. 1101 Washington University Open Scholarship 1102 WASHINGTON UNIVERSITY LAW REVIEW [VOL. 92:1101 Using data (some collected through Freedom of Information Act requests) about material supervisory decision appeals since 1994 and interviews with top regulators, this Article provides the first in-depth analysis of the appeals processes. It shows that the appeals processes are sometimes dysfunctional and seldom used. To improve the appeals processes, the Article recommends three changes. First, once a regulator issues a material supervisory determination, financial institutions should have direct access to a dedicated appellate authority outside of the examination function. Second, the appellate authority should engage in a robust review; it should consider a broad scope of appealable matters and employ a clear and rigorous standard of review. Third, regulators should release detailed information about each decision reached by the appellate authority. TABLE OF CONTENTS INTRODUCTION ...................................................................................... 1103 I. REGULATORY STRUCTURE ................................................................ 1107 A. Examination and Enforcement .............................................. 1107 B. Appealing Material Supervisory Determinations .................. 1112 II. APPEALS PROCESSES BY REGULATOR .............................................. 1115 A. OCC ....................................................................................... 1115 1. OCC Appeals Process ................................................... 1116 2. OCC Appeals ................................................................. 1122 B. Federal Reserve ..................................................................... 1127 1. Federal Reserve Appeals Process ................................. 1129 2. Federal Reserve Appeals ............................................... 1135 C. FDIC ..................................................................................... 1139 1. FDIC Appeals Process .................................................. 1139 2. FDIC Appeals ................................................................ 1143 D. NCUA .................................................................................... 1149 1. NCUA Appeals Process ................................................. 1150 2. NCUA Appeals .............................................................. 1155 III. WEAKNESSES IN THE APPEALS PROCESSES .................................... 1160 A. Variations Among Regulators ............................................... 1160 1. Scope of Appealable Matters ......................................... 1161 a. CAMELS Ratings ................................................... 1161 b. Enforcement-Related Determinations ................... 1162 2. Standard of Review ........................................................ 1163 B. Few Appeals .......................................................................... 1165 C. Little Transparency ............................................................... 1167 https://openscholarship.wustl.edu/law_lawreview/vol92/iss5/5 2015] WHEN BANK EXAMINERS GET IT WRONG 1103 IV. STRENGTHENING THE APPEALS PROCESSES ................................... 1169 A. Strengthened Independence of Review .................................. 1169 B. Robust Review Authority ....................................................... 1171 1. Broad Scope of Appealable Matters .............................. 1171 a. Examination Ratings .............................................. 1171 b. Enforcement-Related Determinations ................... 1172 2. Clear and Rigorous Standard of Review ....................... 1175 C. Public Disclosure of Appeal Decisions ................................. 1181 D. Another Proposal: The Super-Ombudsman .......................... 1182 CONCLUSION ......................................................................................... 1184 INTRODUCTION Financial institutions1 are among the most heavily regulated businesses in the United States. To ensure that institutions comply with the complex web of laws, regulators conduct regular examinations. During an on-site examination, regulators comb the institution’s books, records, policies, and practices, looking for evidence of legal infractions and financial stress. Examiners then make a number of “material supervisory determinations” (“MSDs”) about the institution’s financial health and compliance with the law.2 The examiners prepare an examination report detailing these findings. In between on-site examinations, regulators collect and review institutions’ financial information, looking for potential issues. This review can also lead to MSDs. MSDs become the building blocks of regulatory enforcement. In cases where MSDs suggest a financial institution needs to improve, regulators employ formal or informal enforcement mechanisms to ensure that the institution corrects any problems. For example, a regulator might issue a cease-and-desist order instructing the institution to stop certain lending activities.3 In more extreme cases, regulators might close the institution.4 1. As used in this Article, the terms “financial institution” and “institution” refer to banks, credit unions, bank holding companies, and financial holding companies. In some circumstances, I distinguish between “banks” (which are regulated by the Office of the Comptroller of the Currency, the Federal Reserve, and/or the Federal Deposit Insurance Corporation) and “credit unions” (which are regulated by the National Credit Union Share Insurance Fund). 2. MSDs include “determinations relating to . (i) examination ratings; (ii) the adequacy of loan loss reserve provisions; and (iii) loan classifications on loans that are significant to an institution.” 12 U.S.C. § 4806(f)(1)(A) (2012). 3. Id. §§ 1818(b), 1786(b). 4. Id. §§ 191, 1464(d), 1787(a), 1818(a)(2) (allowing for the government closure of financial institutions). Washington University Open Scholarship 1104 WASHINGTON UNIVERSITY LAW REVIEW [VOL. 92:1101 MSDs are often the initial findings that set the regulatory enforcement mechanism in motion. In the aftermath of the September 2008 financial market meltdown, some financial institutions complain that regulators are trending toward overly aggressive examination practices.5 At its root, dissatisfaction with the examination process often indicates that institutions disagree with examiners about MSDs. Some institutions believe that regulators do not consistently apply existing law, claiming that “examiners tended

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