(a) Service of notice. When the Board issues and serves a directive
on a state member bank pursuant to section 263.202 requiring the bank
to dismiss from office any director or senior executive officer under
section 38(f)(2)(F)(ii) of the FDI Act, the Board shall also serve
a copy of the directive, or the relevant portions of the directive
where appropriate, upon the person to be dismissed.
8-095.6
(b) Response to directive.
(1) Request for
reinstatement. A director or senior executive officer who has
been served with a directive under subsection (a) (respondent) may
file a written request for reinstatement. The request for reinstatement
shall be filed within 10 calendar days of the receipt of the directive
by the respondent, unless further time is allowed by the Board at
the request of the respondent.
(2) Contents
of request; informal hearing. The request for reinstatement shall
include reasons why the respondent should be reinstated, and may include
a request for an informal hearing before the Board or its designee
under this section. If the respondent desires to present oral testimony
or witnesses at the hearing, the respondent shall include a request
to do so with the request for an informal hearing. The request to
present oral testimony or witnesses shall specify the names of the
witnesses and the general nature of their expected testimony. Failure
to request a hearing shall constitute a waiver of any right to a hearing
and failure to request the opportunity to present oral testimony or
witnesses shall constitute a waiver of any right or opportunity to
present oral testimony or witnesses.
(3) Effective
date. Unless otherwise ordered by the Board, the dismissal shall remain
in effect while a request for reinstatement is pending.
8-095.7
(c) Order for informal hearing. Upon receipt of a timely written request from a respondent for an
informal hearing on the portion of a directive requiring a bank to
dismiss from office any director or senior executive officer, the
Board shall issue an order directing an informal hearing to commence
no later than 30 days after receipt of the request, unless the respondent
requests a later date. The hearing shall be held in Washington, D.C.,
or at such other place as may be designated by the Board, before a
presiding officer(s) designated by the Board to conduct the hearing.
8-095.8
(d) Hearing procedures.
(1) A respondent may appear
at the hearing personally or through counsel. A respondent shall have
the right to introduce relevant written materials and to present oral
argument. A respondent may introduce oral testimony and present witnesses
only if expressly authorized by the Board or the presiding officer(s).
Neither the provisions of the Administrative Procedure Act governing
adjudications required by statute to be determined on the record nor
the Uniform Rules of Practice and Procedure in subpart A of this part
apply to an informal hearing under this section unless the Board orders
that such procedures shall apply.
(2) The informal hearing shall be recorded,
and a transcript shall be furnished to the respondent upon request
and payment of the cost thereof. Witnesses need not be sworn, unless
specifically requested by a party or the presiding officer(s). The
presiding officer(s) may ask questions of any witness.
(3) The presiding officer(s)
may order that the hearing be continued for a reasonable period (normally
five business days) following completion of oral testimony or argument
to allow additional written submissions to the hearing record.
8-095.9
(e) Standard for review. A respondent shall bear the burden of demonstrating that his or
her continued employment by or service with the bank would materially
strengthen the bank’s ability—
(1) to become adequately capitalized, to
the extent that the directive was issued as a result of the bank’s
capital level or failure to submit or implement a capital-restoration
plan; and
(2) to correct
the unsafe or unsound condition or unsafe or unsound practice, to
the extent that the directive was issued as a result of classification
of the bank based on supervisory criteria other than capital, pursuant
to section 38(g) of the FDI Act.
8-096
(f) Recommendation of presiding officers. Within
20 calendar days following the date the hearing and the record on
the proceeding are closed, the presiding officer(s) shall make a recommendation
to the Board concerning the respondent’s request for reinstatement
with the bank.
(g) Time
for decision. Not later than 60 calendar days after the date
the record is closed or the date of the response in a case where no
hearing was requested, the Board shall grant or deny the request for
reinstatement and notify the respondent of the Board’s decision. If
the Board denies the request for reinstatement, the Board shall set
forth in the notification the reasons for the Board’s action.
