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FEINBERG v. FDIC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


August 13, 1976

Bernard FEINBERG, Plaintiff,
v.
The FEDERAL DEPOSIT INSURANCE CORPORATION, and Alan R. Miller, Defendants

The opinion of the court was delivered by: RICHEY

CHARLES R. RICHEY, District Judge.

This case has been remanded *fn1" to this three-judge district court for determination of whether section 8(g)(1) of the Federal Deposit Insurance Act, 12 U.S.C. § 1818(g)(1) (1970), *fn2" is constitutional insofar as it authorizes the Federal Deposit Insurance Corporation (hereinafter, "FDIC") to issue a Notice and Order of Suspension upon the mere fact of an indictment for a felony involving dishonesty or breach of trust without provision for a prior or subsequent opportunity to be heard. The parties have filed cross motions for summary judgment and have agreed that there are no material facts in dispute.

 This issue has arisen as the result of the plaintiff, Bernard Feinberg, receiving a Notice and Order of Suspension after he was indicted, on May 9, 1973, by a federal grand jury in the United States District Court for the Northern District of Illinois. The indictment charged him with conspiracy to commit mail fraud, a felony, in violation of 18 U.S.C. § 1341. Plaintiff was tried under a superseding mail fraud indictment, and on June 27, 1975, was found guilty on four counts of mail fraud and not guilty on two. He was sentenced to six months imprisonment on one count and was given a suspended sentence on the remaining three counts. On May 17, 1976, the United States Court of Appeals for the Seventh Circuit affirmed Feinberg's conviction. Plaintiff's petition for rehearing was denied on July 12, 1976. Counsel for plaintiff have indicated that they will file a petition for a writ of certiorari in the Supreme Court.

 Prior to being suspended on February 8, 1974, plaintiff Feinberg was president and director of the Jefferson State Bank, an Illinois State Banking corporation insured by the F.D.I.C. and having its principal place of business in Chicago, Illinois. Feinberg had been president and director of the bank for fourteen years and received a salary of $55,000 from the bank for the year 1973. Feinberg also owns twenty-eight per cent of the bank's outstanding stock and is the administrator of the estate of his deceased brother, who owned twenty-three per cent of the bank's outstanding stock. Plaintiff will inherit one-third of his deceased brother's stock, thereby giving him approximately a thirty-five per cent interest in the bank.

 Prior to the issuance of the Notice and Order of Suspension, plaintiff and his attorneys had a conference with the F.D.I.C. Regional Director for Chicago. At this December 14, 1973 conference, Feinberg requested a hearing, which was denied for the stated reason that the Washington, D.C. staff of the F.D.I.C. had decided that section 1818(g)(1) was applicable to the plaintiff and that a hearing would serve no useful purpose.

 Since Feinberg's suspension, the F.D.I.C. has permitted two bank officials to make presentations prior to any action under section 8(g)(1). One official was suspended, the other was not. As to the suspended official, the sole issue at his hearing was whether the indictment charged a felony involving dishonesty or breach of trust, a requirement for suspension under the statute. As to the non-suspended official, an executive panel of the F.D.I.C. determined, after a hearing, that the alleged conduct, a violation of 18 U.S.C. § 656 (willfully misapplying bank funds) involved a practice prevalent in the banking industry. The panel therefore decided not to suspend the official.

 On July 31, 1974, plaintiff brought this action seeking a declaration that 12 U.S.C. § 1818(g)(1) "is unconstitutional on its face in that it authorizes the [F.D.I.C.] to effect a substantial deprivation of liberty and property without satisfying minimal due process requirements. Specifically, [plaintiff claims] that the lack of any standards other than the mere fact of a felony indictment, and the lack of any provision in the Act for notice, hearing or judicial review of section 8(g)(1) suspension orders, [renders] the Notice and Order of Suspension against him void; consequently, he [seeks] to enjoin its enforcement." 522 F.2d at 1337.

 Defendants argue that this Court need not reach the merits of plaintiff's claim because, they assert, this case is not justiciable inasmuch as plaintiff's conviction has triggered the application of section 1829 of title 12, and because plaintiff has allegedly failed to seek a modification of the Notice and Order of Suspension from the defendants.

 I. JUSTICIABILITY

 This action focuses on section 1818 of the Federal Deposit Insurance Corporation Act, 12 U.S.C. §§ 1811 et seq. Section 1818 sets forth the action the F.D.I.C. can take with respect to insured banks and their officers, directors, and employees who are thought to be acting either contrary to sound business practices or in violation of the law, and where an officer, director or employee has been charged in an indictment with a felony involving dishonesty or breach of trust. Section 1818 can be bifurcated as follows: subsections (a) through (d) relate to insured banks, whereas subsections (e) through (q) relate to officers, directors and employees of insured banks. These latter subsections can be further divided into those subsections relating to the F.D.I.C.'s powers regarding officers, directors and employees who are believed to have committed a breach of sound business and financial practice or to have violated the law (subsections (e) and (f)), and the subsection relating to the F.D.I.C.'s power regarding officers, directors and employees who have been indicted for a felony involving dishonesty or breach of trust (subsection (g)). *fn3" Subsections (h) and (i) relate to hearings and judicial review. These subsections provide for a hearing and judicial review under subsections (e) and (f), but do not provide for a hearing under subsection (g), and substantially limit judicial review of F.D.I.C. action under subsection (g). The remaining pertinent subsection is (j), which provides for penalties for persons who violate suspension notices and cease and desist orders. Another section of importance here is section 1829 *fn4" of title 12, which prohibits directors, officers, and employees from serving in those capacities after having been convicted of any criminal offense involving dishonesty or a breach of trust.

 The threshold question presented is whether a justiciable controversy with respect to section 8(g)(1) of the Federal Deposit Insurance Corporation Act, 12 U.S.C. § 1818(g)(1), continues to exist despite the fact that plaintiff has been convicted, thereby triggering the application of section 1829 of the Act, which prohibits the plaintiff from serving as a director or officer of the insured bank. The Court finds that the case remains justiciable because of the secondary impact of the Notice and Order of Suspension issued pursuant to 12 U.S.C. § 1818(g)(1) -- prohibiting plaintiff from "participation in any manner in the conduct of the affairs of the bank." 12 U.S.C. § 1818(g)(1).

 A Notice and Order of Suspension may provide for either or both of the following prohibitions: (1) suspend the director or officer from holding office, and (2) prohibit him from further participation in any manner in the conduct of the affairs of the bank. In this case, plaintiff was subjected to both prohibitions. The Notice and Order of Suspension of § 1818(g)(1) can only follow an indictment. In this case, plaintiff was notified of the suspension nine months after his indictment. Upon conviction, however, the prohibition of section 1829 is triggered. That section prohibits an officer or director from continuing to serve in such capacity. Thus, upon conviction the first prohibition of section 1818(g)(1), holding office, is superceded by the prohibition of section 1829. In this case, plaintiff was convicted on June 27, 1975, and is therefore subject to the prohibition of section 1829.

 If the Notice and Order of Suspension issued against the plaintiff had been limited to his holding of office and position on the board of directors, this case would be non-justiciable, because the Court could not afford the plaintiff any relief that would affect his status, inasmuch as that status would be controlled by section 1829 rather than section 1818(g)(1). However, the Notice and Order of Suspension was not limited to the first prohibition of section 1818(g)(1). Instead, it also prohibited the plaintiff from participating in any manner in the conduct of the affairs of the bank.

 Since the second prohibition of section 1818(g)(1) is unaffected by plaintiff's conviction and section 1829's prohibition, the Notice and Order of Suspension continues to have an effect upon the plaintiff -- it keeps him from participating in the affairs of the bank and, particularly, voting his stock. Thus, a determination of the issues raised herein would have a practical and real effect upon the interests of the plaintiff, making this case justiciable. *fn5"

 Defendants, however, maintain that since the plaintiff failed to avail himself of the opportunity of having the F.D.I.C. lift the remaining prohibition of Section 1818(g)(1), the court should decline to consider plaintiff's claims. The defendants' argument for non-justiciability is premised upon a reading of section 1818(j) *fn6" which would permit the F.D.I.C. to lift that part of the Notice and Order of Suspension prohibiting plaintiff from participating in any manner in the conduct of the affairs of the bank. A careful reading of section 1818(j)(i) and (ii) reveals no language which would expressly grant the F.D.I.C. the power to permit the plaintiff to participate in the conduct of the affairs of the bank having been prohibited from doing as much by a Notice and Order of Suspension issued under section 1818(g)(1). Only (ii) of section 1818(j) contains language which appears to give the F.D.I.C. the power to permit the plaintiff to vote for a director or serve as a director or officer of the bank.

 In any event, the defendants have argued that the F.D.I.C. has the inherent power to amend a Notice and Order of Suspension so as to remove the second prohibition of section 1818(g)(1). At oral argument, plaintiff's counsel agreed that the F.D.I.C. probably did have the inherent power to amend the notice. However, plaintiff's counsel did not admit that such a possibility was made available to the plaintiff or was a realistic possibility in this case. This is critical.

 Defendants' argument is akin to a claim of failure to exhaust administrative remedies. Under the doctrine of exhaustion of administrative remedies, a party must present his or her claim to the administrative process for a determination prior to presenting the claim to a court for resolution. The basis of the doctrine is that the courts should not be resorted to if the agency could first resolve the issue and afford the party the relief sought. There are two important limitations on the doctrine. First, the administrative process must be "available" to the party, and second, submission to that process of one's claim cannot be an exercise in futility. Both of these limitations are applicable in this case.

 Defendant F.D.I.C. admits that it has no formal or informal regulations setting forth the process they contend exists. *fn7" Further, the statute, and particularly section 1818(j) as construed above, does not express such a process. Thus, it would only be by word of mouth or by experience with the agency that a person would know of the procedure, assuming such a procedure does exist. This can hardly be characterized as an "available" process so as to invoke, by analogy, the doctrine of exhaustion of administrative remedies.

 In addition to the lack of availability of such a process, the facts of this case evince a futility that would excuse plaintiff's failure to make the request which, the defendant maintains, could have resulted in the relief plaintiff seeks in this Court. It is undisputed that the plaintiff requested a hearing which was denied for the reason that the F.D.I.C. saw no purpose for a hearing. And, it was not until after this suit was brought that the F.D.I.C. began holding hearings arguably of the kind sought by the plaintiff. Thus, plaintiff could have no expectation from the F.D.I.C.'s past action that it would be receptive to a request that the entire second prohibition of a section 1818(g)(1) Notice and Order of Suspension would be lifted. *fn8"

 While an argument can be made that this Court should remand this matter to the agency because the plaintiff now knows of and will be afforded the opportunity of seeking an amendment to the Notice and Order of Suspension, it is not compelling. Defendant F.D.I.C. admits that it is in a state of confusion with respect to what it should and should not consider (in the first instance) in determining whether to issue a Notice and Order of Suspension. The defendants' confusion can therefore be expected to reach an amending proceeding. In the past, permission has been given to participate in the conduct of the bank's affairs in circumstances requiring a lifting of the prohibition for the continued operation of the bank. But plaintiff does not seek such a limited amendment. Rather, plaintiff seeks to have the prohibition lifted in toto. To send the plaintiff back to the agency under such circumstances would not only be unfair to him, but would perhaps render a disservice to the F.D.I.C. itself, given its admitted confusion.

 Having considered defendants' arguments, the Court concludes that this case remains justiciable because of the secondary impact upon the rights of the plaintiff of the Notice and Order of Suspension issued pursuant to 12 U.S.C. section 1818(g)(1), prohibiting plaintiff from "participating in any manner in the conduct of the affairs of the bank." *fn9"

 II. PLAINTIFF'S DUE PROCESS CLAIM

 "Procedural due process imposes constraints on governmental decisions which deprive individuals of 'liberty' or 'property' interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendments." Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). However, not all interests are entitled to due process protection. Cafeteria & Restaurant Workers Local 473 v. McElroy, 367 U.S. 886, 895-96, 81 S. Ct. 1743, 1748-49, 6 L. Ed. 2d 1230 (1961). Thus, before a court can consider the question of what incidents of due process are required to attend governmental action relating to the interest involved, the question of whether the interest at stake is constitutionally protected must first be addressed. Jones v. Johnston, 175 U.S. App. D.C. 151, 534 F.2d 353, 358 (D.C.Cir. 1976).

 A. The Interest to be Protected.

 It appears clear to this Court that the F.D.I.C., acting pursuant to 12 U.S.C. § 1818(g)(1), has deprived plaintiff Feinberg of a constitutionally-protected property interest -- namely, effective ownership of his voting stock. While the ramifications of depriving plaintiff Feinberg of the opportunity to vote his stock have not been completely articulated, they are sufficiently clear for this Court to conclude that this interest is at least of the same stature as other property interests that have been deemed entitled to constitutional protection. Compare Bell v. Burson, 402 U.S. 535, 538, 91 S. Ct. 1586, 1588, 29 L. Ed. 2d 90 (1970) (driver's license); Fuentes v. Shevin, 407 U.S. 67, 70-73, 92 S. Ct. 1983, 1989-90, 32 L. Ed. 2d 556 (1972) (household goods purchased under conditional sales contracts; purchasers entitled to possession), with Mitchell v. W. T. Grant Co., 416 U.S. 600, 604, 94 S. Ct. 1895, 1898, 40 L. Ed. 2d 406 (1974) ("heavily encumbered" goods "purchased under an installment sales contract"); *fn10" Cafeteria & Restaurant Workers Local 473 v. McElroy, 367 U.S. at 896, 81 S. Ct. at 1749 ("opportunity to work at one isolated and specific military installation").

 Defendants, while not really disputing the seriousness of the deprivation, assert that the plaintiff is nevertheless not only not entitled to a pre-suspension hearing, but also that there is no due process requirement for a post-suspension hearing in regard to action taken pursuant to 12 U.S.C. § 1818(g)(1). This latter argument is bottomed on defendants' belief *fn11" that a Notice and Order of Suspension based upon the return of an indictment, and issued within the standards of section 1818(g)(1), does not by its nature admit a hearing before the regulatory agency since there are no material facts which may properly be disputed, the indictment being dispositive on the issue of probable cause that the individual committed the offense charged. Defendants add that since, in their view, the only question is probable cause, a re-examination of that issue by the agency would result in an impermissible intrusion into the criminal process. *fn12" And, they maintain that the criminal trial would in any event serve as a speedy and appropriate forum for the individual to contest the question of probable cause. Finally, defendants seek to emphasize the importance of the governmental interest underlying section 1818(g)(1).

 It appears arguable that if the issuance of a Notice and Order of Suspension were automatic upon the return of an indictment or the filing of an information or complaint, then there might not be a need for a hearing or other incidents of due process. *fn13" Such an argument could only retain its vitality though if there were no agency determination required prior to the issuance of the Notice and Order of Suspension. *fn14" But this is not the case. Section 1818(g)(1), by its very language, requires that the agency decide whether the crime charged is one "involving dishonesty or breach of trust." *fn15" Given the variety and nature of state offenses, it is apparent that the agency must exercise discretion as to this issue. This discretion, in fact, is enhanced by the lack in the statute of a definition of a crime of "dishonesty or breach of trust." But this is not the only discretionary question posed by the statute. The statute interjects an added element of discretion by providing that the agency "may" issue a Notice and Order of Suspension; it is not required to do so. Furthermore, when the statute is construed it appears clear *fn16" that even if the agency determines that the crime charged is one involving dishonesty or a breach of trust, the agency is still given -- and in fact has exercised *fn17" -- the discretion not to issue a Notice and Order of Suspension. In addition, it is significant for purposes of due process that no specific guidelines are provided in the statute for the exercise of this discretion. *fn18" The only ascertainable guidance is the general purpose of the statute: to insure the public's confidence in the stability of the financial institution. Given the fact of and the extent *fn19" of the discretion which attends the issuance of a Notice and Order of Suspension, coupled with the resultant deprivation of a constitutionally-protected right, it is therefore clear that there is a need here for imposing the safeguards of due process; for, the "touchstone of due process is protection of the individual against arbitrary action of the government, Dent v. West Virginia, 129 U.S. 114, 123 [9 S. Ct. 231, 233, 32 L. Ed. 623] (1889)," Wolff v. McDonnell, 418 U.S. 539, 558, 94 S. Ct. 2963, 2975, 41 L. Ed. 2d 935 (1974).

 The criminal trial is hardly the proper or timely hearing for the deprivation at issue. Despite the Speedy Trial Act, 18 U.S.C. § 3162 et seq. (Supp.1976), the interim between indictment and trial is sufficient time within which plaintiff's interest could be permanently and irreparably impaired. *fn20" Moreover, contrary to defendant's belief, the question relating to issuance of a Notice and Order of Suspension is not the person's guilt or innocence but, rather, whether the crime charged can be characterized as a crime involving "dishonesty or breach of trust," and whether the decision to issue a Notice and Order of Suspension in a particular case is necessary to further the legislative purpose of the statute. *fn21" Since a criminal trial is not a forum for addressing either of these questions, it is not a permissible substitute for affording plaintiff the protection of having an opportunity to be heard.

 There is no question but that there is a strong governmental purpose for a speedy and efficient action in order to maintain the public's confidence in the insured financial institutions. See 112 Cong. Rec. 20080 (1966) (Remarks of Senator Proxmire, a sponsor of the bill); Report of the Senate Committee on Banking and Currency, S.Rep.No.1482, 89th Cong., 2d Sess. 5-6 (1966); Report of the House Committee on Banking and Currency, H.Rep.No.2077, 89th Cong., 2d Sess. 4-5 (1966); Hearings on S. 3158 Before the Senate Committee on Banking and Currency, 89th Cong., 2d Sess. 28, 30 (1966) (respective statements of Joseph W. Barr, Undersecretary of the Treasury, and Kenneth H. Randall, Chairman, Federal Deposit Insurance Corporation). The importance of this interest has been recognized in the past. See Fuentes v. Shevin, 407 U.S. 67, 92 & n. 26, 92 S. Ct. 1983, 2000, 32 L. Ed. 2d 556, citing Fahey v. Mallonee, 332 U.S. 245, 67 S. Ct. 1552, 91 L. Ed. 2030 (1946). But the importance of the governmental interest alone does not provide a basis for not affording any protection to interests that are constitutionally deserving of protection. Instead, the importance of the governmental interest is to be considered in determining what incidents of due process are necessary and appropriate under the circumstances. Mathews v. Eldridge, 424 U.S. 319, 332-355, 96 S. Ct. 893, 901-903, 47 L. Ed. 2d 18. Thus, where an important governmental interest requires summary action, immediate and full post-action hearings have been held to be within the parameters of due process. See Goldberg v. Kelly, 397 U.S. 254, 263 and n. 10, 25 L. Ed. 2d 287, 90 S. Ct. 1011, 1018 and note 10 (1970).

 This Court concludes that defendants have deprived the plaintiff of a constitutionally-protected property interest. Having so concluded, the Court now turns to the question of whether this has been accomplished in violation of the Constitution. To make this determination, the Court must necessarily determine what minimal incidents of due process are required under the circumstances.

 B. Due Process Under the Circumstances

 "The fundamental requisite of due process of law is the opportunity to be heard." Grannis v. Ordean, 234 U.S. 385, 394, 34 S. Ct. 779, 783, 58 L. Ed. 1363 (1914). And while at one point it appeared that due process required a hearing prior to any deprivation of a constitutionally-protected interest, with the exception of certain "extraordinary circumstances," Fuentes v. Shevin, 407 U.S. 67, 91, 92 S. Ct. 1983, 1999, 32 L. Ed. 2d 556 (1972), citing Boddie v. Connecticut, 401 U.S. 371, 379, 91 S. Ct. 780, 786, 28 L. Ed. 2d 113 (1971), it now appears that the process due in a particular case is to be determined by the circumstances, Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S. Ct. 1895, 40 L. Ed. 2d 406 (1974). *fn22" Reaching this determination

 

"requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and, finally, the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18 (1976).

 In examining the private interest, this Court notes, as it did above, that the precise ramifications of plaintiff Feinberg's being prohibited from voting his stock have not been completely articulated. There is no question, however, that this deprivation has a serious impact on the plaintiff's financial status. While defendants argue that the seriousness of the injury is diminished by the temporary nature of the deprivation, we decline to characterize it as such. A Notice and Order of Suspension "remains in effect until such information, indictment, or complaint is finally disposed of or until terminated by the agency." 12 U.S.C. § 1818(g)(1). Such a final disposition, considering the possible appellate avenues, presents the possibility of a substantial passage of time. And while the agency can terminate the Notice and Order of Suspension on its own initiative, such terminations have not occurred and appear unlikely in the future. Being so contingent, agency termination does not diminish the expected duration of the deprivation. Moreover, unlike Eldridge, this case involves a permanent loss of property in that Feinberg cannot be awarded full -- or, for that matter, even partial -- retroactive relief. 424 U.S. at 339, 96 S. Ct. at 905.

 Also as stated above, there is a strong governmental-public interest in speedily and efficiently removing indicted officers, directors, or employees from financial institutions, the viability of which depend upon the public's confidence. See page 118, supra. But it also must be recognized that the costs of providing the incidents of due process would not be significant since there are simply not many § 1818(g)(1) cases. *fn23" Moreover, balanced against the governmental interest in minimizing administrative cost is the governmental interest in a sound banking system. Congress itself has emphasized that "to permit suspensions and removals without thorough consideration would be unfair to the institution and officers involved. Any system which would permit this would have a harmful effect on the banking system itself and on depositors, borrowers, and the public." S.Rep.No.1482, 89th Cong., 2d Sess. (1966). Balancing the effect of the deprivation upon the individual with the governmental-public interest to be served, it appears that the minimal process constitutionally permissible under the circumstances would be an immediate postsuspension hearing. Cf. Fahey v. Mallonee, 332 U.S. 245, 67 S. Ct. 1552, 91 L. Ed. 2030 (1947).

 It is clear from the congressional history that Congress, in passing 12 U.S.C. § 1818, was concerned with the dangerous effect of the public's loss of confidence in financial institutions. Notably, section 1818 was introduced at the request of the regulatory agencies, its purpose being the creation of more effective regulatory powers to deal with crises in financial institutions. 112 Cong.Rec. 10077-84, 20223-48 (1966). The Senate Committee Report stated:

 

"Existing remedies have proven inadequate. On the one hand they may be too severe in many situations, such as taking custody of an institution or terminating its insured status. On the other hand they may be so time consuming and cumbersome that substantial injury occurs to the institution before remedial action is effected." Id. at 20082.

 In order to maintain the public's confidence, Congress agreed with the agencies that immediate action was necessary where a director, officer or employee of an insured bank was indicted for a felony involving dishonesty or breach of trust. To delay this action, which occurs in the form of a Notice and Order of Suspension, would thus seriously and directly undermine the congressional purpose behind section 1818(g)(1). On the other hand, it is possible that the individual might be seriously harmed by the issuance of a Notice and Order of Suspension. But the degree of harm to the individual is far outweighed by the public interest. Under these circumstances, due process requires that the individual be given an immediate post-suspension hearing.

 While the hearing need not be a trial-type hearing, *fn24" notice, the opportunity to be represented by counsel, for written submissions, and for oral argument, appear mandated by the circumstances. Certainly notice of the right to be heard is essential. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950). The assistance of counsel is also needed in these cases, *fn25" particularly since the hearing will involve a complex legal question: whether the crime charged is one involving dishonesty or breach of trust, as well as a question requiring the subtle interrelation of fact and policy: the effect upon the public of the indictees holding office and participating in the affairs of the bank. As to the presentation of live evidence, the "nature of the relevant inquiry," 424 U.S. 343, 96 S. Ct. at 907, does not seem to require any more than written submission. *fn26" However, oral argument would be necessary. For, the question of whether issuance of a Notice and Order of Suspension in a particular case would further the purpose of the statute in protecting the public's confidence in the financial institutions is a broad and subtle question to which "a wide variety of information may be deemed relevant," 424 U.S. at 343, 96 S. Ct. at 907. Given the broad nature of the inquiry and the variety of evidence to be considered, the process must afford the individual the opportunity to effectively correlate the evidence with the inquiry. Oral argument has been traditionally recognized as best serving this function. See Mildner v. Gulotta, D.C., 405 F. Supp. 182, 214-15 (Weinstein, J., dissenting). Requiring oral argument here is further supported by the fact that only a few Notice and Order of Suspensions are considered, or even issued, each year. *fn27" See United States v. Florida East Coast Railway Co., 410 U.S. 224, 245-46, 93 S. Ct. 810, 820-21, 35 L. Ed. 2d 223 (1973), explaining Londoner v. City and County of Denver, 210 U.S. 373, 385-86, 28 S. Ct. 708, 714, 52 L. Ed. 1103 (1908).

 Finally, some statement of the basis for the decision of the agency must be provided. See 397 U.S. at 272, 90 S. Ct. at 1022. The reason for providing such a statement is not for purposes of judicial review, since this is precluded by 12 U.S.C. § 1818(i); rather, it is necessary to assure that the agency has complied with the fundamental tenet of due process that the decisionmaker consider the evidence and arguments presented. Id. See also Mildner v. Gulotta, 405 F. Supp. at 216-17.

 Unlike the other subsections of 12 U.S.C. § 1818, *fn28" subsection (g)(1) does not provide for any of these minimum due process requirements. The Court must therefore find that the statute is repugnant to the Constitution. Where legislation is found to be constitutionally infirm, the infirmity can sometimes be remedied by ordering an agency, using its inherent rulemaking power, to promulgate curative regulations. Doe v. Martin, 404 F. Supp. 753, 762 (D.D.C.1975). Here, this is impossible, since Congress clearly intended not to provide for a hearing in subsection (g)(1) cases. Thus, the Court is compelled to issue a declaration that the statute is constitutionally infirm, and that the Notice and Order of Suspension issued on February 8, 1974, to plaintiff Bernard Feinberg prohibiting him from participating in the affairs of the Jefferson State Bank of Chicago, Illinois, is unlawful and of no legal force or effect, as well as issue an injunction restraining the defendants from enforcing the Notice and Order of Suspension against the plaintiff. *fn29"

 An Order in accordance with the foregoing will be issued of even date herewith.

 ORDER

 In accordance with the Memorandum Opinion of the Court it is

 ORDERED, ADJUDGED, DECLARED AND DECREED, that 12 U.S.C. § 1818(g)(1), insofar as it permits the issuance of a Notice and Order of Suspension without affording the individual minimum due process namely, an immediate post-suspension hearing, preceded by a notice of such a right, and consisting of the opportunity to be represented by counsel, to make written submissions, and make oral argument, violates the fifth amendment of the Constitution of the United States; and it is

 FURTHER ORDERED, ADJUDGED, DECLARED AND DECREED, that the Notice and Order of Suspension issued by the Federal Deposit Insurance Corporation on February 8, 1974, prohibiting Bernard Feinberg, plaintiff herein, from participating in any manner in the conduct of the affairs of the Jefferson Street Bank, Chicago, Illinois, is unlawful, null and void; and it is

 FURTHER ORDERED, ADJUDGED, DECLARED AND DECREED, that the defendant Federal Deposit Insurance Corporation, its officers, agents, servants, employees, attorneys, and all persons in active concert or participation with the defendant be, and the same hereby are, enjoined from enforcing the Notice and Order of Suspension issued by the defendant Federal Deposit Insurance Corporation on February 8, 1974, against Bernard Feinberg, plaintiff herein.


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