argument the say after noon we're asking the court to review an agency decision specifically a decision of the office of the comptroller of the currency that in or the second tier civil money penalty against mr bland pursuant to twelve c section eighteen eighteen before addressing the substantive merits of the case there is one threshold issue that i would like to discuss and that involves the standard of review the parties disagree with running what is the standard of review in this case it is different from your standard summary judgment decision from the district well if that is correct your honor the the statute that is involved here is five u s c section southern of six and we believe the court should apply subsection t a which provides that the court should reverse ation agency action that is arbitrary capricious an abuse of discretion or not in accord with the law and the case that directly the case that we were able to find that directly address this issue was actually a fifth circuit case the scott vs f d i c case in that case the f b i see what agree similar type of an foresman action against a bank officer issues with respect to liability were decided entirely on some religious position and then a brief one day hearing evidentiary hearing was held with respect to the penalty in the scott case the fifth circuit held that the issues that were decided on summary disposition in other words the liability issues were reviewed on a dyno basis and that is in fact with the fifth circuit that the issues that were decided on a after the evidence or hearing perspective a penalty those got a more deferential standard review perhaps the one that you have reviewing the decision on summary disposition using the same standard as after an evidentiary hearing and when agencies make i understand the importance of deferring to an agency when there's been an opportunity to hear testimony from ever from witnesses to judge credibility those are the sorts of things that a trier of fact typically does but in this case that did not happen the case was decided on the a sensible way on the basis of undisputed facts and we contend that there were disputed facts so if you in the aerial j before the comptroller drew inferences based on facts that were in favor of the movement which they should not have known there were a number of inference is that were going on here that should have been drawn in favor of the non movement so that would be another issue as well court i apologize it was not cited in our brief you know preparing for oral argument often sharpens one's focus on the case law this is independent bankers association versus board of governors it's a nine hundred seventy five case that was decided by this court and in that case it's actually both rule making authority i believe so it's under section seven five hundred five five three but there there should have been a the court reversed an agency decision where that was not a hearing and held the agency however carries a heavy burden of justification were congolese congress has pointedly given interested parties the right to a full hearing the agency must show that the parties could gain nothing thereby because they disputed none of the material facts upon which the agency's decision could rest so this was a decision under the a p a where the court said no you should have had a hearing because there were disputed issues of fact that's five sixteen half second twelve of six and i believe the the sebelius decision surely versus sebelius which was also side in our brief goes along the same lines in that case the court i believe also held that yeah in this is was cited in our brief under the standard review argument specifically addressing the standard of review under five seven of six two a this court said bus we as did the district court must allow summary judgment for apple lays in this case of so bill yes unless the appellants have produced in the record at least enough evidence for their position to establish a genuine dispute as to so material fact so if we believe that the fifth circuits decision which is squarely on point is also in line with some of this court decisions addressing review under the a p a and here again let me reiterate i understand the importance of deferring to agency action when they have made a decision after an evidentiary hearing and that's most of the cases when you think you argue that in the brief yes your honor we did i know express when we did it was certainly not the main focus of the brave but we did make the argument in the alternative because we anticipated that the court might view things differently than we did and so yes under the substantial evidence test as well this case should go back and there should be a hearing briefly if i may let me address the two other sort of the two substantive issues in the case the first is what we call the campos overdrafts and here there are three main issues i want to address the first is whether or not the case over to strafe an unsound banking practice practice the banks practice of allowing the campus overdraft went on for more than seven years probably ten years in fact during that time the bank never suffered a loss and mr campos never failed to make good on his over graphs so  was no was and no risk thus and risk is of course part of the test of an unsafe and unsound banking practice secondly the bank had in place controls the pro who prevented any risk associated with the campus over graf's to coming to from coming to fruition mr campos had multiple accounts the bank would not honor an overdraft on any of those accounts and left that unless there was enough money in the aggregate in the campus accounts to cover the over graphs in effect these overdraft were secured by cash in the bank the best form of collateral one could have but what you say in the aggregate does that include the accounts that he didn't have signature of forty fo so from that and from that lengthy course of the only i would infer that there was a forty in fact you know as as a trial that that evidence would be very important that there was a ten year portable for you moving money between these accounts without any objection without problems so i don't think that a forty was ever an issue but in any event we also have testimony from m cheatham here mr cheatham was the bank's attorney he gave have hybrid fact expert testimony in which he testified that this was a safe and sound policy and was not an unsafe and on sound policy we have to be careful in going to four down that road because one tends to then conforming consequences with will so by analogy i guess i'm taking the opposite point that i would i wouldn't want to conflate happenstance beneficial consequences with a lack of risk and a point that we made in our brief if one safely crosses a bridge every day for ten years that says something about the risks associated with crossing the bridge the fact that this went on for ten years in one  not i'm not necessarily saying this is or isn't happenstance i guess on to making a broader because up to a point which is that the fact that it's that the overdraft may have been may have been a good on doesn't necessarily show that it was  sound and safe practice to permit this to go on it could still be an unsound unsafe practice i would look at it a little differently on summary disposition and depending on how which standard of you review you apply the argument i would make is the inference should be drawn in favor of the nonmoving and so mr blanton should have received the benefit of the doubt that a ten year history of overdrafts always being covered leads one to the conclusion that they would continue to be covered and i excuse me do you think the amount of the overdrafts know that i do not because that once you start looking at the amount of the overdraft you're now conflating consequences and risks so by analogy falling from thirty thousand feet results in certain death but we consider an acceptable risk to be at thirty thousand feet when we're in a commercial airliner same situation here any one of these overdraft might well have put the bank into the red but the fact that we have controls around the over graf's meaning the bank does not  there's cash on deposit in the bank and we have a ten year history of the overdraft always being covered means you have no risk it's like being in the commercial airline so briefly i see that my time is running out it's going to briefly touch on represent the country all of the currency known as this is a straightforward case of a banker with misplaced certainty in his own opinions causing him to disregard the reality surrounding the bank guidance from those you see and advice that the guarantors were not making principal payments on long or they were having a nonparty to the loan agreements making payments on the loans despite entering into several moment of the cation agreements that relaxed these long terms that the o c c and the your decision but in deciding whether to do a summary disposition or to give him a hearing come forward and try to put on this case we're going to follow the summary judgment yes i want deciding whether there are disputed whether or not there actually any dispute facts but however the whether or not the court should look should apply the substantial evidence has seen seen as saying that whether or not the o c c or the comptroller in this of whether looking at this record or not whether you could have had substantial evidence on a record like this after hearing about whether you actually complied with that order word disputed material facts or reasonable inference him when we undertake that review of the record how do we do that narrower differentially i believe it would still be the deferential standard where the plot and how and yes you do i believe the court can review doing that and i'm which has my head kind of spinning something trying to figure out how i def arrange fully determine whether there were disputed material facts or you took all reasonable inferences in his favor how do i do that so that i mean if there were  disputed material facts you still get some lesion on that now i believe that if there were if there are any disputes of material fact that are material to the determination then the court would have to consider that however consider that to the m then that would mean you were improperly engaged in summary disposition here is that correct yes i think the court ultimately could determine that there were genuine this pieces to material fact however the what constitutes the materials material fact and whether or not there's a genuine dispute of material fact again is determined by the substance of law and it's also determined it is the term in the by the substance of law here the substance of law with respect to the that knew about this for at least eight years dropped its own investigation into these overdraft s in two thousand and three raised the issue with mr blanton even when he came on board two months may june when and the fact if a slam down quickly on mr campus he would take all his money out in the entire language fail then under all circumstances maybe it wasn't so maybe it was  less unsafe and unsound alternative that mr flamm had at the time now i believe that the inference here was proper because i don't think that mr camp mr mr blanton points to the fact that the see that it didn't that it didn't take the same approach in previous years with respect to the overdressed however the bank was in a different position in two thousand and three in the years preceding  year before the bank i believe it was some time it was in two thousand and nine either mid to mid two thousand and nine when the bank was raided of five bank where it was critically and it was deemed critically under capitalize however the controls that mr that mr blanton points to the two thousand and three controls they were implemented at a time where a bank was in a different financial condition at that time they were still doing the same overdraft america's overdraft policy the bank in two thousand and ten well with that was the state he came and use it was already in that state before he came to the helm of it right correct down and ok so i'm scum still back to you for talking about reasonable inferences on a summary judgment and that's your choice of all right that's your choice of regulation to have that and he has so there could be testimony that would say that if they had come down hard on campus really fast he would have yanked all his money out and crash the entire bank down quickly and so mr white was working on it slowly over this four month period not that might raise a question about whether that was unsafe to take the time try to find a way to impose control further controls that would allow more regulation of these are overdraft without dragging mr campos and all this money out of the bank and  yeah so we keep we keep going we keep the status quo just because we've got to keep trying water here until we can actually put together something that's going to work when i think sheer the about it so again these are all about inferences from the evidence which i'm having trouble reconciling with your summary judgment where you are i go i think that again the  your half of the year point the evidence on the record is is specific to the two thousand and three that the two thousand and three period in the two thousand and ten period with respect to mr brown was at the bank on those on collect the balance capital levels would have still been adequate however in two thousand and ten four hundred thirty thousand dollars worth of uncollected overdressed could have someone take bank when did the bank come into this condition where you could june twentieth him response to an e mail and after that other folks just implemented it so how is that not a situation of attaching responsibility with respect to when the statute of limitations begin to run you have to look at that second prong of the c m p statute which means that as part of a pattern of misconduct here and every time he you know every time he allowed these overdraft stop those overdraft there was an unsafe or unsound practice for the for the for the for the purposes of the statute of limitations being beginning to run really well when we have continuing violations you have to distinguish between a say go ahead and do the overdrafts until i'm getting something and place but until then go ahead and do the overdraft consist of two thousand and three controls that was jim and after that you just have the effects going forward and i think again and safe shows that petitioner could have implemented these controls as he was telling those easy or he could have stopped this overdraft activity during his tenure as interim c e o as he told those he just did not even though there was reasonably yes because you know there are based on the undisputed material facts on the record with respect to the car with respect to the long charge of the o c c properly directed long charge also and even with respect to the lone charge offs even under the sunshine bank that the o c c wore petitioner on several occasions that the risk associated with the overdraft and petitioner told the o c c that he would either get the overdraft out of the bank or he would implement additional controls petitioner never made good on any of she said that's what i just read to you but i'm asking you what we're supposed to do you know yes i think if the court were to come down that it agree with those you see on one issue and not the other that is the penalty could still the penalty should i'm sorry why would the does the agency typically do this that has multiple violations it doesn't have anything new for a different violation but it says well the first violation is worth ten thousand alone there's a second one too but when i can have nothing to do it's still time thousand i believe below that there was a hearing on the appropriateness of the c and p and there was a stipulation that ten thousand dollars would be our pro create amount however and the briefs below that we did say that that the penalty that the agency could impose with respect to the violation  allen i think the stipulation was whether or not send thousand dollars would be appropriate as you both live both unsafe or unsound practice a violation of wall however again the agency below said that each that c n d that  impose or the penalty then impose would be sufficient for either the violation of law or the unsafe friend sam practice and petition doesn't dispute that determination in this court when we still have to and you're talking about agency difference here statute says you've only got to do that if your interpretation is no less stringent than correct yes i think your hand but a plan b do anything more than what the statute says correct though the hand that the report instructions can be d that seems to me to be tolerating an error in this case you think it might be more attractive in lots of cases it could be less protective so i don't understand how that instruction of this interpreted to apply to an iranian us right down that satisfied a more protective or more stringent to perpetuate errors i can imagine lots of situations where telling a bank to perpetuate an error would be less stringent and very troublesome well your honor again is and that they're they're not entitled to deference with respect to decisions of accounting principles however those exist the record also shows that there were that that the that examiner karen hudson said that loans or else you cannot recover that amount until you receive cash and mr blake is that position testimony said upon receiving this e mail that this e mail prompted him to become livid and that he was upset that mr and sarah was backpedaling on this issue and distance there is a deposition testimony also says that he made the bank aware he made petitioner specifically aware of his position with respect to rebooking the loans and edge you have to convince the c c of your position at the time that he loans so with all that in mind it think it shows that that petition or one of these loans to be rebooked because he wanted to put three million dollars back on the bank's books but not necessarily because it was an acceptable accounting practice and that when the position that when the his his experts that specifically that the banks outside auditor agreed with his position he was fine with using that position as a basis to support the rebooking of the loans but when he disagree applied that deferential standard review and that is just an incorrect reading of the case i've got the scott decision here and in this case the fifth circuit expressly says substantial evidence excuse me the f standard for summer disposition is similar to the standard for summary judgment consequently we review a grant of summary disposition as if it were a gray up of summary judgment then at the very conclusion of the opinion the court says after reviewing the record we agree with the i a l j the petitioners did not present evidence demonstrating a genuine dispute of material fact the last sentence of the opinion  the i o j did not improperly resolve contested factual issues so i understand that it is the fifth circuit and it's only persuasive president here but in persuasive they're right on publish that is correct it the the next issue i want to address because i run a very low on time let me just briefly say with respect to the ones in the charge off of those loans the o c c never instructed mr blanton that those write offs were bank so the august eighteenth e mail came after all of the call reports that issue in this case were already sent so the second quarter call report went out on july thirtieth so the august eighteenth e mail obviously post dated that and then the other call reports the amended call reports for fourth quarter of two thousand and nine first quarter two thousand and ten and second quarter of two thousand and ten were filed i believe on august fifteenth so that instruction in the august eighteenth e mail the know know well can you tell me where in the record if the there is evidence that the agency approved the firing of the medical report rebooking where is it in the record i don't believe it there the record speak