Patrick Adams

Undue Process

For Patrick Adams, justice has been both delayed and, now, denied.

Regular readers of this blog are familiar with Mr. Adams protracted fight with the OCC, and I won’t regurgitate the history of the conflict. In my most recent post, I criticized the repeated failure of the Comptroller of the Currency to render a timely decision in the OCC’s enforcement action against Mr. Adams as required by applicable law. An administrative law judge had determined that the OCC’s enforcement action against Mr. Adams was not supportable on the basis of applicable law and the factual record, and the OCC had appealed the ALJ’s decision to the Comptroller, who repeatedly extended the deadline for his rendering of a final decision, notwithstanding the fact that the applicable statute does not provide for such extensions.

On September 30th, the Comptroller rendered a decision in which he determined that the ALJ was completely wrong on the law and that even though the ALJ’s finding of fact were “inadequate” for the Comptroller to be able to reach a “final findings of fact,” they were sufficiently adequate for the Comptroller to allege (as he does on page 67) that a trier of fact could have determined that Mr. Adams should be sanctioned with civil money penalties. After spending 67 pages rejecting the exoneration of Mr. Adams by an independent trier of law and fact, the Comptroller then concludes that it is not going to send the matter back down to the ALJ in order to determine an “adequate basis” for a final finding of facts. Instead, the Comptroller dismissed the charges and sanctions against Mr. Adams in the exercise of his “plenary authority over remedies.”

In other words, the ALJ was flat wrong and the defendant is guilty as initially charged, but what the heck: we made him spend hundreds of thousands of dollars to defend himself against charges that we weren’t able to prove before an independent judge, he’s been de facto ostracized from the banking business anyway, and we’d likely lose before an objective federal district court judge if we sanctioned him in final agency action, so why give him a reason to appeal?

Some former federal bank regulatory counsel have suggested to me that the OCC is twisting and spinning the official record in a CYA effort to impede a claim by Mr. Adams for his attorneys fees and costs as a “prevailing party” under the Equal Access to Justice Act. That may or may not be the case. What is clear is that there’s an inherent flaw in a system that purports to afford due process to defendants but in which the prosecutor and judge are the same person. In such a system, the fairness of the outcome depends entirely on the personal and professional integrity of the ultimate decision-maker.

If this case proves anything, it proves that the system needs some serious legislative refinements.

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