morning your honor and they please the court and he was my confessor represent the petitioner i'd like to begin this morning by addressing why the board was required to consider our points about the nature of the regulation o violations about what was happening in those transactions considering i'm sorry why do you think they didn't consider because the findings in this decision that the board rendered on remained does not refer to to talking about if you're talking about the collateral substitution transaction that's something different there are eight regulation over iowa nations that form the crux of this order and as we pointed out in our briefing and as we pointed out to the board  when you look at those transactions several of four of them in for peer in particular resulted in a benefit to the bank and were profitable one of them at the n e i transaction added at additional debtor to an existing loan and so our point was and is that if you're going to consider banning a person for a life from a business you have to look at the nature of the transactions to determine is this person a violations cost the bank a penny or resulted in loss so you're going to carry that directors can do anything they want you to make money you know what we're talking about is the prohibition for life there are many levels of sanction or penalty which could be imposed in the exercise of discretion short of banning a person from a business for life and so our point is when the board is exercising its discretion  to impose the administrative equivalent of the death penalty it needs to examine not just was there a violation yes that's already been determined but but the board needs to look more what was the nature of the conduct that led to the violation and if the nature of the conduct for example one of that one of the incidents your honor a regulation over iowa ation were an additional debtor assumes an existing obligation and mr de la fuente has kept on as a personal guarantor now someone needs to explain to me i don't understand how that puts the bank its depositors or the insurance system at risk the board never explains that another loan your honor one point three might and that's the circuit and this is a very important point that's usually overlooked just because there's a violation of eighteen eighteen doesn't mean that the f b i seaboard is required to impose a life sentence a required in their judgment and certainly in their judgment they can but the administrative procedure act says if you're going to do that you must address the main points that the titian are argues and if you look at the main points that we argued in our papers to the board on remain on and compare that to go decision they rendered they ignored all of our main points all of them not just the seven hundred thousand dollars the turns out not to be a loss but we went through every single regulation ovide elation all eight of them and we said look are the violations and i can see it in my reply brief yes there are violations but exists because of the benefit that speech that's irrelevant to the point we're making is what is the culpability of this man and does the culpability of the transactions suggest or require banning him from life and we put that on the table to the f b i seaboard as with respect to every single one of these regulation of violations and their decision your honor is completely silent there is  a new evidence use the million are you talking about there's only your argument the regulation of argument does not involve any new evidence every single one of our fine any every single one of our arguments as to  eight regulation overlay sions comes directly from adjudicated facts of the record there is this court found it shocking disregard of sound banking practices and the fact that he used this bank is his personal opinion consider the points that we made look when when the result that the ny circuit rendered before was based on a record that this man represented himself and that's unfortunate because when you look at the evidence in the record these are not this is not new evidence the evidence from the record that we cite as to what he did and you look at the effect on the bank that it would it's difficult to reach the conclusion for you know if i am a little money from my employer and put it on the lottery and i win and give all the money back the effect on my employer is zip have i done something wrong somehow rather i'm not disputing that something should my employer give you an example one of the regulation overlay shoes is a violation where mr duff one day had an eight hundred thousand dollar loan and additional debt or national enterprises assume that obligation that doesn't sound very much like embezzle how adding an additional dagger is anything close to embezzle not when you add an additional source of payment and you keep him on as a personal guarantor now we put that issue before the board on remained said board if you're going to ban this man for life tell as they didn't address them for example your honor they did that what you described address was at most four of the transactions the four loans to fine particle because those are the ones that were the fine particle comes in and buys bad assets from the adding national enterprises as an additional debtor we asked the board to address that to tell us why this mr de la fuente deserved to be banned from banking for life because he got someone else to pay the loan and he stayed on as a personal guarantor tell only for that or just devival and i just don't follow your argument well you can't have a heart it's not harmless error we the agency is required under the applicable standard of review to address the issues we we put before them that are relevant if it's so easy to ban this man for life based on the arguments we made then they come but they didn't at most in a very open way they dealt they understand that i'm not making myself clear that part of their decision as you when you look at the see how their decision is weighed out they reexamine and make new findings on the three elements that have to be proven under eighteen eighteen runkle fact culpability ok what you just read to me your honor is there findings as to element number two whether a prohibited transaction occurred because of a wrongful a fact finding they made that decision i'm focusing on a completely different issue i'm focusing on the issue there is a violation a violation of regulation and a violation of eighteen eight hundred eighty doesn't automatically mean you get banned from banking for life do we bank benefited from every single regulation or transaction every single one there was no loss not one penny was lost and what i'm saying is when you're choosing the penalty to impose on this man for violating this court in reviewing administrative decisions and the him case which applies that in this very similar context a ban from banking for life and what it says is the decision of the f b i she will be reversed where there is no remained and we laid out look folks here's what happened in those transactions please consider that it didn't cost the bank a dime please consider that when you determine whether to ban this man for life from th and their decision ignores all of it and the best you can say is there's no oblique reference to some of the evidence on a completely different issue which is whether there was a violation to begin with that's our point and and you know if they're to ban this man for life they at least have to face up to the podium and look at the evidence we submitted in the arguments we made and say fish you're wrong here's why they didn't  we make is based on findings in the record so when one piece of new evidence and the new evidence is on the collateral substitution transaction it turns out in long after the hearing was over the banks suffered no loss now here's why i think that's properly admissible in this situation number one they don't project it we put it in there's no motion to strike there's no objection there's nothing in the decision by the board that says we're not considering it and here's why secondly they issued an order that uses the phrase we're reopening the record to make certain legal determinations now the board certainly has discretion to reopen the record if it wants to and it told us it was to make legal determinations and legal determinations have to be based on some kind of facts so we interpreted that statement in not broadly it's ambiguous and we put that evidence in and they never objected there's no motion to strike so in this case either they have to consider in which they don't that's an abuse of discretion or they have to tell us why they're not considering it they didn't do that either and if that's going to be the reason they have to do it principly and reasonably can do that there's just not there and that's an abuse of discretion under the standard of review stated in the ken case and in the band ok so you know what's happening to this man is very serious business banning him from an occupation for life and all were saying is yes there's violations that's been adjudicated but you just can't sweep oh you violated a violated something eight times and it was six million dollars so throw away the key that's violations or making additional arguments that are like that now they have to look at they didn't look at what he did your honor is there anything i don't mean to sound so challenging but there's nothing in that decision that says in one of the prohibited transactions for which we're banning him for life he stayed on as a personal guarantor and put another debtor on the hook let's not there how about one of the transactions for which we're throwing away the key was a loan for a million three which was paid back in six weeks where is that i don't see that how about one of the loans was to him for eight hundred thousand it was paid back and it was secured by over one million dollars in real estate i don't see that in there we laid all of this out in our briefing in painstaking detail based on evidence in the record not us and i'm saying before you lock the door to the bank that they have to step up to the plate and say here is here's why we say he still deserves to be on here's why he said what the nicer guy said before still holds and they didn't do that this man deserves that before he's thrown out of the bank you ma letter and the spirit of this court's remained in its original order and didn't abuse its discretion and indeed did consider all of the arguments that were made by mr get appointed and the second point i'd like to reach is just th an extraordinary sanction in this case this is not an extraordinary application and this court should affirm mr fisher's principal argument is that the board did not  consider his arguments regarding regulation zero zero and as you pointed out your honor in footnote eleven the f d i c very specifically addressed them it said that he argued that many of the transactions in question did not ultimately result in a financial benefit to himself and in certain instances benefited the bank the very arguments that mr fisher has made here today the f d i c did address them it explained why even if that effect to find the necessary effect in this case and that was what the board was basing its decision on mr fisher's complaint essentially is they didn't reiterate that argument later in a discussion of the penalty but that wasn't really necessary the statute lays out three elements in order to go ahead and impose a lifetime sanction congress created the elements the first is misconduct and that's really not at issue in this case the second is effect and there are three separate disjunctive possibilities if any one of them is satisfied then the appropriate penalty is a lifetime prohibition that would be a benefit to mr  were a loss to the bank or prejudice to the interest of the depositors the f b i see explained in its response to their submission why it was not going to focus on the benefit of potential benefits to the bank even if they existed because those were not the element that it was basing its decision on rather it was the benefit to mr that of one thing and having made the analogy to the death penalty i can only use my own analogy if a death the death penalty were an appropriate penalty is civil statute said it's an appropriate penalty if the murderer conducted cruel torture of the suspect or of the victim you're the victim was a police officer and there was cruel torture of the victim in this case but he's not a police officer mr delahunt is argument that this was not a police officer would be immaterial the statute still would have been satisfied and the penalty would be appropriate the only abuse of discretion argument that's really offered by mr belafonte here is that the board didn't can sitter if you have to seize board and that's simply not true it was considered here and indeed each of the elements in it reiterated when i say that it is observe the letter in the spirit it reexamined what each of the elements was what the basis of its decision was and what had been a this court in the earlier decision and that was the predicate for in imposing this penalty it considered the arguments but it rejected them they explain that mr della fuente by treating this without ever giv any thought to lending limit restrictions approval requirements collateral requirements reporting requirements and other statutory and regulatory requirements created to protect the pozieres from just these abuses but he had acted in that way and received that benefit and just because he took the money and it ultimately didn't result in a loss if that were the case it's immaterial and i would suggest that the analogy to an embezzl even if the person then went out and hit the lottery or had inside information on a horse and came back and repeated that the wrong occurred when he went ahead and violated rego similarly the collateral substitution and confer a benefit on self that was inappropriate oh yes he did and if he had not received a benefit did he endanger the bank or if he didn't do that to the prejudice the interests of depositors congress set this up for the f one of those three determinations the f t c indeed addressed all of them and did address the points that were raised by mr belafonte and accordingly there was not an abuse of discretion here but i would also like to just point out when i say that this is an extraordinary sanction this court recognized that in its earlier decision but this is not an extraordinary application in the continuum of violations the cases that we offered  which include the greenburg case that attend ski case the prophet case that was the focus of the earlier decision of the ninth circuit in this case all of them look to violations like this in the green conferring that benefit was sufficient to find a lifetime probation was appropriate in the matter of a ten ski and in this f d i c decision the f d i c explained again that failure to impose a lifetime prohibition would harm the deterrent effect that sought by the statute so not only was this not an abuse of discretion but the f b i see explained why a lifetime probation was appropriate if there are no further they didn't do them and so it's not it's not the fact that all the elements line up that doesn't insulate their decision from appellate review the question is before you began this man for life did you address the arguments we made as to the nature of the regulation overlay sions and when you look at what he did a lesser penalty may have been appropriate and would have been appropriate but they failed their obligation by not addressing that's the problem in the