# Petition for Writ of Certiorari — Donohoo v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2001
- **Citation:** 534 U.S. 825

## Text

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NOFFICE OF Tis OLERK

In The
Supreme Court of the United States

October Term, 2001

RICHARD D. DONOHOO,
Petitioner,
vs.
UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATE COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

RICHARD D. DONOHOO
2116 Second Avenue South
Minneapolis, Minnesota 55404
(612) 874-7071

Attorney for Petitioner

2001 - Executeam +» 2573 N. Hamline Ave. * St Paul MN 55113 + 800-747-8793 + 651-633-1443

ves

A. Questions for Review

1. Does the statute of limitations as specified in
28 United States Code §2642 commence with the date of
the claimed violation?

2. Under the provisions of 28 United States
Code §2642, is the date of the violation the date when the
claim first accrued?

3. Does the decision of the Eighth Circuit
conflict with the decision of this Court in Unexcelled
Chemical Corp v. United States, 345 U.S. 59, 73 S.Ct.580,
97 L.Ed.821 (1953), a parallel case interpreting a similar
statute?

4. Does the decision of the Eighth Circuit
conflict with the decision of the Fifth Circuit in United
States v. Core Labs Inc.,_759 F.2d 480 (5" Cir. 1985)?

S Does the decision of the Eighth Circuit
holding that the limitations period that begins to run only
after the government concludes its administrative
proceedings effectively eliminates the provisions and
purposes of 28 United States Code §2642?

B. List of all Parties

The petitioner is Richard D. Donohoo.

The federal agency involved is the Federal Deposit
Insurance Corporation.

C. Tables of Contents and Cited Authorities

Table of Contents

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Table of Cited Authorities

Statutes
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die vin.owk su cicduiaicgs acs sha baeanieokeeaeteane 2
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Cases
3M Company v. Browner, 17 F.3d 1453,

305 U.S.App.D.C. 100, (1993)... 0.0... 6

Lindquist & Vennum v. Federal Deposit Insurance
Corporation, 103 F.3d 1409 (8th Cir. 1997)........ 4

Unexcelled Chemical Corp v. United States,
345 U.S. 59, 73 S.Ct.580, 97 L.Ed.821 (1953)...i, 5

United States v. Core Labs inc., 759 F.2d 480

NN PE Sancti ie ncibadesunsocns i, 7, 8,9
United States v. Meyer, 808 F.2d 912
RE ee nee aria leer 9
Rules
United States Supreme Court Rule 13...........00.00000...... 1

D. Citation of the Opinion

United States of America v. Godbout-Bandal, 232 F.3d 637,
(8" Cir. 2000), a copy of which is incorporated in the
Appendix.

E. Basis for Jurisdiction

In November 1998, the United States on behalf of
the Federal Deposit Insurance Corporation (“FDIC”)
commenced an action in the District Court of Minnesota to
enforce civil money penalties against Richard Donohoo and
others arising out of a Order of the FDIC Board of
Governors and subsequently affirmed by the Eighth Circuit
Court of Appeals. The District Court ordered judgment in
favor of the United States.

That decision was appealed by Donohoo to the
Eighth Circuit Court of Appeals. Its Opinion affirming the
District Court was filed on November 15, 2000. A Petition
for Rehearing by Panel and Petition for Rehearing En Banc
was timely filed on December 28, 2000. The Order
Denying Petition for Rehearing by Panel and Petition for
Rehearing En Banc was dated January 29, 2001.

This Petition is filed within 90 days after entry of
the Order denying Petition for Rehearing by Panel and for
Rehearing En Banc as required by Rule 13 of the United
States Supreme Court Rules.

The statutory provision conferring on the Court
jurisdiction to review by a writ of certiorari the opinion of
]

the Eighth Circuit and resulting judgment is 28 U.S.C.
§1254, which provides:

Cases in the courts of appeal may be reviewed by
the Supreme Court by the following methods:

(1) By writ of certiorari granted upon the
petition of any party to any civil or
criminal case, before or after
rendition of judgment or decree; _ .

F. Statutes Involved
The statutes include the following:
28 U.S.C. § 2462, which provides:

Except as otherwise provided by Act of Congress,
an action, suit or proceeding for the enforcement of any
civil fine, penalty, or forfeiture, pecuniary or otherwise,
shall not be entertained unless commenced within five
years from the date when the claim first accrued if, within
the same period, the offender or the property is found
within the United States in order that proper service may be
made thereon.

G. Statement of the Case

The facts are not in dispute and are based on the
chronology of the events in this matter. The basic dispute

2

wy

concerns whether Defendant and other investors were
required to file under the Change in Bank Control Act of
1978 (12 U.S.C. § 1817 (j)) when they inserted $1,000,000
in cash in Capital Bank, a federally insured financial
institution, in July 1990, a time in which the banks in the
United States were in a banking crisis. The cash was
inserted as capital to meet the capital requirements imposed
by the FDIC and without question this capital insertion
enabled Capital Bank to survive even to this day without
expense to the taxpayers. The FDIC’s position was that
filing was required. The history of the FDIC enforcement
efforts is as follows:

July 1990 Insertion of $1,000,000 as capital in
Capital Bank by Donohoo and others
with knowledge of the FDIC

August 1992 Donohoo and other shareholders
contract for sale of their stock in

Capital Bank

September 1992 Assessment of civil money penalties
by FDIC; Donohoo and others

request an administrative hearing

December 1992 Donohoo and the other investors sell
their interest in Capital Bank

April, May 1993 Administrative hearing

September 1994 Administrative Law Judge issues a
Recommended Decision

July 1995 FDIC Board of Governors issues
Decision and Order modifying

3

Recommended Decision and
ordering Donohoo to pay $1,000,554

September 1995 Donohoo and others appeals to Court
of Appeals for the Eighth Circuit
without posting bond or seeking stay
of Decision and Order except for one
defendant who does post bond

January 8, 1997 Court of Appeals issues decision,
Lindquist & Vennum v. Federal
Deposit Insurance Corporation, 103
F.3d 1409 (8th Cir. 1997)

November 1998 FDIC commences this action to
recover civil money penalties

For the purposes of this action, Donohoo is not

denying that the violations occurred or that the penalties
were assessed, but denies that he owes any money on the
grounds that the statute of limitations has run.

The basis for federal jurisdiction in the District

Court of Minnesota is 12 U.S.C. §§ 1817G)(16) (E) and

1818(i) and 28 U.S.C. §§ 1345 and 1355.

H. Argument

By holding that the statute of limitations under 28
United States Code §2642 does not start running until the
administrative process results in a final determination, the
decision of the Eighth Circuit conflicts with the holdings of

4

the United States Supreme Court, a well reasoned decision
of the Fifth Circuit, and the plain meaning of the statute.

The United States Supreme Court case interpreting
a similar statute is Unexcelled Chemical Corp. v. United
States, 345 U.S. 59, 73 S. Ct. 580, 97 L. Ed. 821, (1953).
In that case, the statute was the Portal-to-Portal Act of
1947, 61 Stat. 84,87, 29 U.S.C. § 255, which provided in
Section 6 a two-year statute of limitations for any action to
enforce any cause of action under the Fair Labor Standards
Act of 1938; that section also provides that “every such
action shall be forever barred unless commenced within
two years after the cause of action accrued.” At 345 U.S.
61. In that case, an action to recover from a contractor
liquidated damages was commenced within two years from
the time when a formal complaint in administrative
proceedings was issued, but more than two years from the
time when the contractor violated the act. Judge Douglas
wrote the unanimous opinion that the cause of action
accrued when the violation occurred and stated: “It was
from that date that the period of limitations began to run.”
At 345 U.S. 66.

Judge Douglas then stated:

This construction, it is said, will prejudice
the power of the United States to safeguard the
public interest. But if there is prejudice it is the
result of the Portal-to-Portal Act which Congress,
having made, can refashion.

The instant case is similar. The FDIC cannot
complain about the consequences of the statute of
limitations and cannot seek to avoid it against Donohoo.
Its complaints about the hardships of the statute should be
addressed to the Congress, not to this court. After all, the

5

FDIC had considerable input to Congress when the banking
laws in the late 1980’s and early 1990’s were dramatically
revised and extended during the banking crisis. At that
time, the duties and responsibilities of bankers and the
corresponding penalties were considerably broaden and
increased. Congress could have provided for a different
period of limitations for the FDIC but it did not do so.
Thus, the FDIC was subject to 28 U.S.C. § 2462.

An early decision of the United States Supreme
Court supports the clear language of 28 United States Code
§2642. As stated with approval in 3M Company v.
Browner, 17 F.3d 1453 at 1457, 305 U.S.App.D.C. 100 at
104, (1993):

“In a country where not even treason can be
prosecuted, after a lapse of three years, it could
scarcely be -supposed, that an individual would
remain for ever liable to a pecuniary forfeiture.”
Adams v. Woods, 6 U.S. (2 Cranch) 336, 341, 2
L.Ed. 297 (1805) (Marshall, C.J.). Justice Story,
sitting as a circuit justice in a civil penalty case,
made the same point as Chief Justice Marshall: “it
would be utterly repugnant to the genius of our
laws, to allow such prosecutions a perpetuity of

Certainly the holding of the Eighth Circuit allows
prosecutions by the FDIC a “perpetuity of existence”. The
capital was contributed to the bank in July 1990 with the
knowledge of the FDIC. It did not commence its
enforcement proceeding until September 1992 after
Donohoo and others had executed contracts for the sale of
Capital Bank. Over two years had elapsed. In that period
of time, the FDIC claimed that it was entitled to a

6

Sonera nee ome,

maximum daily penalty of $1,000,000 for each alleged
violation. The total amount sought against Donohoo was
over two billion dollars. If the FDIC has waited for two
more years, as it claims that it has the right and power to
do, the amount would exceed four billion dollars.
Obviously, if the FDIC’s position is that the time
limitations start after the decision of the final reviewing
court, the longer it waits, the higher the penalty. There
would be no limits and it would render any statute of

limitations virtually meaningless.

The Eighth Circuit’s decision is in direct conflict
with the decision of the Fifth Circuit, United States of
America v. Core Laboratories, Inc., 759 F.2d 480, (Fifth
Circuit 1985), which had the same issue: “The issue for
decision is when a particular statute of limitations begins to
tun, that of 28 U.S.C. § 2462.” Id. at 481. After citing the
statute, the Core court stated: The issue for decision is the
meaning of ‘the date when the claim first accrued.’ ” Jd. at
481. The Core court stated:

Under that section, the time is reckoned from the
commission of the act giving rise to the liability, and not
from the time of imposition of the penalty, and it is
applicable to administrative as well as judicial proceedings.
Id. at 482.

After citing the Senate Report and the House
Report, it stated at 482, 483:

It is thus abundantly clear that both the courts and
Congress have construed the “first accrual”
language of § 2462 to mean the date of the
violation.

Va

Practical considerations support this
construction. The progress of administrative
proceedings is largely within the control of the
Government. Northern Metal Co. v. United States,
350 F.2d 833, 839 (3d Cir. 1965). The government
is exempt from the consequences of its laches (quod
nullum tempus occurrit regi). Guaranty Trust Co.
v. United States, 304 U.S. 126, 132, 58 S.Ct. 785,
788, 82 L.Ed. 1224 (1938); United States v. Hughes
House Nursing Home, Inc., 710 F.2d 891, 895 (1*
Cir. 1983) (private defendant cannot assert laches
against government). A limitations period that
began to run only after the government concluded
its administrative proceedings would thus amount in
practice to little or none. As one court has
explained,

If the penalty does not accrue [under § 2462]
until the United States makes an administrative
determination that it is due, the United States has
within its power to prolong the period of limitations
and the producer of rice “would remain indefinitely
under the hazard of having penalties imposed upon
him . . .” United States v. Lynn, supra, 132 F.
Supp. [605] at 607. The Court is of the view that
such is not the case.

Appling, 239 F. Supp. at 194.

We take the same view. The interpretation
of § 2462 advanced by the government is in
derogation of the right to be free of stale claims,
which comes in time to prevail over the right to
prosecute them.

The Eighth Circuit has disagreed with the holding
of Core by relying on United States v. Meyer, 808 F.2d 912
(First Cir. 1987). The argument made in Meyer of the
difficulty of adhering to the statute of limitations by an
agency should be made to Congress. As is readily apparent
from an examination of Title 12 of the United States Code
and as a result of the then existing banking crisis, the
banking laws were substantially amended in the late 1980’s
and early 1990’s to impose greater control over the nation’s
banks and substantially increase the penalties and
enforcement tools available to the FDIC. The FDIC could
have requested Congress and Congress could have adopted
a different statute of limitations so that 28 U.S.C. § 2462
would be inapplicable. [That section commences with the
phrase: “Except as otherwise provided by Act of
Congress.”] In fact, Core was decided in 1985. Both the
FDIC and Congress have had plenty of time to reverse that
decision by adopting a different statute of limitations for
the banking laws or amending 28 U.S.C. § 2462. But such
was not done and the FDIC must follow the law. The five
years has elapsed.

The Eighth Circuit also noted that the Fifth Circuit’s
interpretation could encourage violator abuses of the
administrative system. However, as Core pointed out, the
“progress of administrative proceedings is largely within
the control of the Government.” Jd. at 482.

The FDIC certainly controlled the progress in this
case. Over two years elapsed before the FDIC commenced
its case. The hearing was six months later. From that point
forward, the time is that utilized by the Administrative Law
Judge and the FDIC Board of Governors.

The Eighth Circuit has dismantled the meaning of
28 United States Code §2642 by holding “that where an
Act which authorizes the assessment of a civil penalty also
provides for an administrative procedure for assessing that
penalty, the statute of limitations period set out in § 2462
will not begin to run until that administrative process has
resulted in a final determination.” 28 U.S.C. § 2462 does
not contain that exception or modification. Thus, the
Eighth Circuit has simply created new law. This is not its
province; it is the province of Congress.

Furthermore, 28 U.S.C. § 2462 does not state that
the five years commences from the date of the decision of
the final reviewing court. It does not state that the
limitation period for enforcement of any civil fine
commences after determination of the civil fine by the
agency, such as the FDIC Board of Governors. (The statute
does not apply to equitable remedies.) What it states in
plain and convincing language is that enforcement of a civil
penalty must be commenced within five years from the date
when the claim first accrued.

The statute is clear. The enforcement of a civil fine,
such as in the instant case, must be commenced within 5
years from the date when the claim first accrued.

Certainly, the rationale for the statute makes sense.
The Congress has determined that federal agencies, such as
the FDIC, should not be able to keep people at bay for
years and years. The FDIC has control of the situation. It
determines if and when to assess penalties and the
administrative process.

In the instant case, the claim first accrued in July
1990 when the capital was inserted. The FDIC had

10

knowledge at that time as to the insertion of capital. In any
event, it is rather obvious that the claim of the FDIC
accrued no later that September 1992 when the FDIC first
assessed civil money penalties. Thus, the five-year
limitation expired no later than September 1997. The
government did not commence its enforcement of the civil
fine until November 1998 and thus its enforcement action
is simply too late.

Conclusion

Our country was founded on the principle that we
are a “government of laws.” This decision by the Eighth
Circuit abuses that principle and substitutes the idea that we
are a “government of governments.”

Against alleged banking violators, the laws are
interpreted technically, narrowly and precisely. The FDIC
imposes daily fines up to $1,000,000 calculated from the
date of the alleged violation to the date of the assessment
by the FDIC. Indeed, the longer the period the FDIC waits
for assessing the fines, the higher the amount of the fines.
Good faith and intent are not at issue when assessing the
fines.

But when it comes to laws that are not favorable to
the FDIC, the laws are to be interpreted widely and loosely
and subject to exceptions not contained in the law.

The decision of the Eighth Circuit should be
reversed.

11

Respectfully submitted,

Richard D. Donohoo

2116 Second Avenue South
Minneapolis, Minnesota 55404
(612) 874-7071

12

INDEX TO APPENDIX

Opinion of Eighth Circuit Court of Appeals................ 1

Order of Eighth Circuit Court of Appeals Denying
Petition for Rehearing by Panel and Petition

for Rehearing Ea Bane.....................c0-c0eseeee 8

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

No. 00-1601

United States of America, *

Plaintiff-Appellee, * Appeal from the United
v. ° States District Court for
Cheryl C. Godbout-Bandal; * the District of
Bruce A. Rasmussen; Wayne * Minnesota

Field; ad
Defendants, a [Published]
Richard D. Donohoo, .

Defendant-Appellant. *

Submitted: October 20, 2000
Filed: November 15, 2000

Before HANSEN, MURPHY, and BYE, Circuit Judges.

BYE, Circuit Judge.

A-1

The district court' granted summary judgment to the
federal government on its claim for enforcement of an award
of civil penalties against defendants for violation of the
Change in Bank Control Act, 12 US.C. § 1817().
Defendant Richard D. Donohoo (Donohoo) appeals on the
single issue of whether the applicable five-year statute of
limitations bars the government’s claim. We affirm.

L.

In July, 1990, Donohoo and the other defendants,
officers of Capital Bank, inserted $1,000,000 in cash into
that institution during the banking crisis, in order to meet the
bank’s capital requirements. The investment allowed Capital
Bank to weather the crisis; but, as it turned out, Donohoo and
his cohorts violated the Change in Bank Control Act when
they made their investment without first obtaining approval
from the Federal Deposit Insurance Corporation (FDIC).
See Lindquist & Vennum ederal Deposit Ins. Corp., 103
F.3d 1409, 1413-14 (8™ Cir. 1997).

The exact details of Donohoo’s transgressions are
unimportant for purposes of this appeal; however, the
following chronology is relevant. In September 1992, the

' The Honorable Richard H. Kyle, United State District Judge for the
District of Minnesota.

A-2

FDIC assessed civil penalties against Donohoo in the amount
of $1,000,554.00 for his July, 1990, violation. Donohoo
appealed the assessment, and an administrative hearing was
held before an administrative law judge (ALJ) in April-May,
1993. In September, 1994, the ALJ issued his
Recommended Decision. The FDIC Board of Governors
modified the ALJ’s decision, and in September, 1995, issued
its own decision ordering Donohoo to pay $1,000,554.00.
Donohoo appealed the administrative decision to this court;
we affirmed the penalty assessment on January 8, 1997. See
id. Donohoo then sought a writ of certiorari from the
Supreme Court, which was denied on October 6, 1997. See
Donohoo v. Federal Deposit Ins. Corp., 522 U.S. 821 (1997).

In November, 1998, more than eight years after the
commission of the act for which the penalty was assessed,
the FDIC commenced this action to enforce the penalty
pursuant to 12 U.S.C. § 1818(i). The district court granted
the government’s motion for summary judgment on
December 20, 1999, rejecting without discussion Donohoo’s
argument that the government could not collect on the debt
because the statute of limitations set forth in 28 U.S.C. §
2462 had run.

Il.

Donohoo seeks review of only one issue: whether the
district court erred in implicitly finding that the
government’s claim against him is not barred by the statute
of limitations. We review the district court’s grant of
summary judgment de novo. See Lynn v. Deaconess Med.
Ctr.-West Campus, 160 F.3d 484, 486 (8" Cir. 1998).

The government proceeds against Donohoo pursuant
to § 1818(1)(1) which allows the “appropriate Federal
banking agency” to seek “enforcement of any effective and
outstanding notice or order issued under this section” in
district court. This statutory provision is not equipped with
its own statute of limitations; thus, the general statute of -
limitations for collection of civil penalties, 28 U.S.C. § 2462,
applies. Section 2462 states as follows:

Except as otherwise provided by Act of Congress, an
action, suit or proceeding for the enforcement of any
civil fine, penalty, or forfeiture, pecuniary or
otherwise, shall not be entertained unless commenced
within five years from the date when the claim first
accrued if, within the same period, the offender or the
property is found within the United States in order
that proper service may be made thereon.

28 U.S.C. § 2462.

A-4

Donohoo argues that the government’s claim’ for
enforcement of the penalties assessed against him by the
FDIC is barred by this statute. He asks us to interpret the
phrase “claim first accrued” to mean the date of the original
violation for which the penalty was assessed, i.e., July, 1990.
The government, in contrast, argues that the claim does not
accrue until the administrative proceedings assessing the
penalties are completed.

This question appears to be a matter of first
impression in our circuit. The circuits are spli: on when a
claim accrues under this statute of limitations. The Fifth
Circuit favors Donohoo’s approach. See United States v.
Core Labs, Inc., 759F.2d 480 (5" Cir. 1985). The Core court
analyzed caselaw arising under the various predecessors to §
2462 and found that “[a] review of these cases clearly
demonstrates that the date of the underlying violation has
been accepted without question as the date when the claim
first accrued, and, therefore, as the date on which the statute
began to run.” Id. at 482. The court also found support for
its position in the legislative history of the Export
Administration Act, 50 U.S.C. App. § 2401, the Act pursuant
to which the underlying lawsuit was brought. See id.
Finally, the court noted that “[p]ractical considerations

A-5

support this construction. The progress of administrative
proceedings is largely within the control of the Government.
A limitations period that began to run only after the
government concluded its administrative proceedings would
thus amount in practice to little or none.” Id. at 482-83.

The First Circuit takes the opposite position. See
United States v. Meyers, 808 F.2d 912 (1* Cir. 1987). In
Meyers, another proceeding under the Export Administration
Act, the First Circuit rejected Core’s reasoning (“the core of
Core” id. at 913). Instead, the court held that where the Act
which authorizes the assessment of a penalty provides for an
administrative procedure for assessing that penalty, the
statute of limitations at § 2462 does not begin to run until
“the penalty has first been assessed administratively.” Id. at
914. The Meyers court noted the “obvious proposition that a
claim for ‘enforcement’ of an administrative penalty cannot
possibly ‘accrue’ until there is a penalty to be enforced.” Id.
Because the court found the language of the relevant statutes
to be unambiguous, it rejected any resort to statutory
construction to aid in interpretation. Id. at 915. Further, the
court noted that rather than preventing government abuses,
the Fifth Cuircuit’s interpretation could encourage violator

abuses of the administrative system. If the government has

A-6

only five years from the date of the violation to assess a

penalty and begin collection proceedings, the violator would
have great incentive to delay the process as much as
possible, hoping that the government’s clock would run out
before the enforcement proceedings began. See id. at 919.
The court additionally noted that,

[oJutside of the Fifth Circuit, no court has ever held
that, in a case where an antecedent administrative
judgment is a_ statutory prerequisite to the
maintenance of a civil enforcement action, the
limitations period on a recovery suit runs from the
date of the underlying violation as opposed to the
date on which the penalty was administratively
imposed.
Id. at 916.

The parties direct us to only one case that has
examined the question of when a claim accrues under §
1818. In that case, the court followed the First Circuit’s lead
and held that “[t]he government could not bring an action in
this court to enforce the penalty until the final decision was
issued, ...and the assessment was not further appealed.”
United States v. McIntyre, 779 F. Supp. 119, 122 (S.D. Iowa

1991).

? One other court has considered this question, ironically, in reference to

Donohoo himself. During the course of the enforcement proceedings,

Donohoo filed for bankruptcy in Florida, pursuant to Chapter 13 of the
A-7

The issue has significant consequences. In this case,
under the Fifth Circuit’s reasonings, the government would
have had to commence its collection proceedings by July,
1995; thus, it would now be time-barred from attempting to
enforce the penalty against Donohoo. Under the First
Circuit’s reasoning, however, the action instituted by the
government in 1998 would be timely.

We find the First Circuit’s reasoning to be more
persuasive. We therefore hold that where an Act which
authorizes the assessment of a civil penalty also provides for
an administrative procedure for assessing that penalty, the
statute of limitations period set out in § 2462 will not begin
to run until that administrative process has resulted in a final

determination.’

Bankruptcy Code. The government protested that the assessment of its
fine against Donohoo raised Donohoo’s debt beyond the cap for
eligibility under Chapter 13. Donohoo countered by alleging that the
government could not collect the penalty, because of the running of the
statute of limitations period. The United States Bankruptcy Court for the
Middle District of Florida, following the First Circuit’s interpretation,
held that “the assessment did not become final until the Supreme Court
denied the Debtor’s petition for certiorari on October 6, 1997.” In Re
Donohoo, 243, B.R. 139, 142 (Bankr. M.D. Fla. 1999).

> We need not decide whether an appeal of an administrative decision tot

the federal courts would be considered part of the administrative penalty-

assessment process, for purposes of determining when the limitations

period begins to run. Both the date that the final administrative order
A-8

Our conviction that this is the correct rule is
reinforced by our observation that § 1818(i) does not allow

the government to begin a collection proceeding until the
defendant “fails to pay an assessment after any penalty
imposed under this paragraph had become final.” 12 U.S.C. |
§ 18180)(2)DG). In other words, the government is
precluded from bringing an enforcement action until the
penalty has been ffinalized through administrative
proceedings. Under the Fifth Circuit’s rule, the government
could find itself unable to collect on a penalty simply
because those proceedings have taken too long. A violator
should not be able to escape paying a penalty by dragging his
feet through the administrative penalty-assessment process.
Thus, we hold that the government’s enforcement action is
timely.
Affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS,
EIGHTH CIRCUIT

was entered, and the date the Supreme Court denied review are within
five years of the date the government initiated this suit.
A-9

UNITED STATE COURT OF APPEALS

FOR THE EIGHTH CIRCUIT
No. 00-1601
United States of America, *
Appellee, ° Order Denying Petition
v. ” for Rehearing and for
Richard D. Donohoo, . Rehearing En Banc

Appellant.

The petition for rehearing en band is denied. The
petition for rehearing by the panel is also denied.
Judge Loken did not participate in this decision.
(5128-010199)
January 29, 2001

Order Entered at the Direction of the Court:

/s/
Clerk, U.S. Court of Appeals, Eighth Circuit

A-10

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1974%3A1. Public record. Not legal advice.