United States Court of Appeals

for the Fifth Circuit

No. 19-31023

Federal Deposit Insurance Corporation, as Receiver 

for First NBC Bank, 

Plaintiff—Appellee,

versus

Daniel Belcher, 

Defendant—Appellant.

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:19-CV-12561

Before Stewart, Clement, and Costa, Circuit Judges.

Carl E. Stewart, Circuit Judge:

The Federal Deposit Insurance Corporation (“FDIC”) filed an action 

in the district court seeking to enforce an administrative subpoena that 

ordered Daniel Belcher to submit to a deposition. The court granted the 

FDIC’s motion to enforce the subpoena. Belcher then filed this appeal 

seeking to vacate the district court’s judgment. In the interim, the district 

court denied Belcher’s request for a stay pending the outcome of this appeal. 

Belcher sat for the deposition. Nevertheless, we now vacate the district 

United States Court of Appeals

Fifth Circuit

FILED

October 26, 2020

Lyle W. Cayce

Clerk

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No. 19-31023

2

court’s judgment enforcing the FDIC’s subpoena and remand the case for 

proceedings consistent with this opinion.

I.

This lawsuit is one of many related to the collapse of First NBC Bank 

of New Orleans (“the Bank”). In 2013, Ernst & Young (“EY”) was hired to 

audit the financial statements of First NBC Bank Holding Company (“the 

Holding Company”). The Holding Company’s only asset was the Bank. 

When the Bank began to struggle financially, the Public Company 

Accounting Oversight Board (“PCAOB”) initiated an investigation into 

EY’s audits of the Holding Company. 

The subject of the PCAOB’s investigation was EY. As part of its 

investigation, the PCAOB requested numerous documents from EY, which 

turned them over under the impression that they were confidential and 

privileged under federal law. See 15 U.S.C. § 7215(b)(5)(A). The PCAOB also 

deposed several of EY’s auditors as part of its investigation. Those 

depositions resulted in hundreds of pages of transcripts. EY also believed 

those transcripts were confidential and privileged. Among the EY auditors 

deposed by the PCAOB was Daniel Belcher.

When the Bank failed, the Louisiana Office of Financial Institutions 

appointed the FDIC to serve as the Bank’s receiver. In this capacity, the 

FDIC began its own investigation into EY’s audits of the Holding Company. 

The FDIC ultimately sought to hold EY liable for significant monetary losses 

resulting from the Bank’s failure. In search of evidence to use against EY, the 

FDIC asked the PCAOB for documents it had because of its investigation 

into EY. Among the documents sought by the FDIC were four days’ worth 

of transcripts from Belcher’s deposition before the PCAOB. The PCAOB 

gave the transcripts—and many other documents—to the FDIC.

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After reviewing Belcher’s deposition testimony to the PCAOB, the 

FDIC decided it also wanted to depose him. It served him with a pre-suit 

administrative subpoena ordering him to submit to a deposition. On the 

advice of EY’s lawyers, Belcher refused to comply with the subpoena. It was 

their view that the FDIC’s lawyers committed a legal violation and an ethical 

breach when they sought and obtained documents from the PCAOB that EY 

believed were confidential and privileged under federal law. 

The FDIC responded by filing a complaint against Belcher in the 

district court seeking to enforce its administrative subpoena pursuant to 12 

U.S.C. § 1818(n). The next day, the FDIC moved to enforce the subpoena. 

Belcher responded with a motion seeking to quash the subpoena and 

disqualify the FDIC’s counsel because of the alleged ethical violations. EY, 

meanwhile, moved to intervene.

The district court granted the FDIC’s motion and denied Belcher’s 

and EY’s. The court’s decisions turned on its holding that Belcher’s rights 

under federal law were not violated when the PCAOB shared transcripts of 

his deposition testimony with the FDIC. The court reasoned that even 

though the material was confidential and privileged under 15 

U.S.C. § 7215(b)(5)(A), the FDIC, in its capacity as the Bank’s receiver, was 

entitled to receive the documents as “the appropriate Federal functional 

regulator” of the Bank under 15 U.S.C. § 7215(b)(5)(B)(ii)(II). 

Almost immediately, Belcher filed a notice of appeal. He also moved 

to stay the district court’s order pending the outcome of the appeal. The 

district court denied his request for a stay. Belcher sat for the deposition on 

January 28, 2020.1

1

 The parties agree that Belcher’s compliance with the district court’s order did 

not moot this appeal. But mootness is a jurisdictional question, and federal jurisdiction 

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II.

We generally review the enforcement of an administrative subpoena 

for abuse of discretion. See Consumer Fin. Prot. Bureau v. Source for Pub. Data, 

L.P., 903 F.3d 456, 458 (5th Cir. 2018). Conclusions of law that underly the 

enforcement of such a subpoena, however, are reviewed de novo. Id.

III.

The issue of first impression squarely before us is whether the district 

court erred by holding that the FDIC, in its capacity as the Bank’s receiver, 

was “the appropriate Federal functional regulator” in this case, entitling it 

to receive otherwise confidential and privileged documents from the 

PCAOB.

2

15 U.S.C. § 7215(b)(5)(A) provides, in relevant part:

[A]ll documents and information prepared or 

received by or specifically for the [PCAOB] . . . 

in connection with . . . an investigation under this 

cannot be conferred by an agreement between the parties. See Giannakos v. M/V Bravo 

Trader, 762 F.2d 1295, 1298 (5th Cir. 1985). Nevertheless, we agree with the parties. 

Because the district court on remand can “fashion some form of meaningful relief,” this 

appeal is not moot. Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992).

Exactly what that relief might entail is beyond the scope of our concern. However, it is 

undisputed by the parties that the district court could strike Belcher’s deposition testimony 

before the FDIC. 

2

 The FDIC suggests this issue is not squarely before us. Instead, it posits that we 

need not reach this statutory interpretation issue because we can affirm on the ground that

it is “undisputed” that the FDIC had the authority to seek the subpoena, its demand in the 

subpoena was not too indefinite, and the information sought by it was reasonably relevant 

to its ongoing investigation into the Bank. See United States v. Morton Salt Co., 338 U.S. 

632, 652 (1950). As Belcher points out, the district court’s order enforcing the subpoena 

and denying Belcher’s and EY’s motions as moot turned entirely on its interpretation of 15 

U.S.C. §§ 7215 and 6809. Because the district court’s judgment was dependent on this 

holding, Belcher’s request that we interpret the statutes de novo is properly within our 

scope of review.

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section, shall be confidential and privileged as an 

evidentiary matter (and shall not be subject to 

civil discovery or other legal process) in any 

proceeding in any Federal or State court . . . .

The parties agree that the transcripts of Belcher’s deposition testimony to 

the PCAOB fell within the purview of this statute because they were 

documents prepared by the PCAOB in connection with an investigation 

under 15 U.S.C. § 7215. What they disagree about is whether the FDIC, in its 

capacity as receiver for the Bank, fits within an exception to this rule.

The applicable exception is provided by 15 

U.S.C. § 7215(b)(5)(B)(ii)(II), which provides, in relevant part:

Without the loss of its status as confidential and 

privileged in the hands of the [PCAOB], all 

information referred to in subparagraph (A) 

may—

. . .

(ii) in the discretion of the [PCAOB], 

when determined by the [PCAOB] to be 

necessary to accomplish the purposes of 

this Act or to protect investors, be made 

available to—

. . .

(II) the appropriate Federal 

functional regulator (as defined in 

section 6809 of this title), other 

than the [Securities and Exchange] 

Commission, and the Director of 

the Federal Housing Finance 

Agency, with respect to an audit 

report for an institution subject to 

the jurisdiction of such regulator[.]

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The key language for our purposes appears in subsection (II): “the 

appropriate Federal functional regulator . . . .” The FDIC argues that it is the 

appropriate Federal functional regulator in this case. Belcher argues that it’s 

not.

Because subsection (II) expressly incorporates the definition of a 

Federal functional regulator from 15 U.S.C. § 6809, we turn now to 

subsection (2) of that statute, which provides:

The term “Federal functional regulator” 

means—

(A) the Board of Governors of the Federal 

Reserve System;

(B) the Office of the Comptroller of the 

Currency;

(C) the Board of Directors of the Federal Deposit 

Insurance Corporation;

(D) the Director of the Office of Thrift 

Supervision;

(E) the National Credit Union Administration 

Board; and

(F) the Securities and Exchange Commission.

There is no denying that “the Board of Directors of the [FDIC]” is a Federal 

functional regulator under 15 U.S.C. § 6809(2). The question for us is 

whether the FDIC, acting in its capacity as the Bank’s receiver, as opposed 

to its corporate or governing capacity, is the appropriate one in this case. See

15 U.S.C. § 7215(b)(5)(B)(ii)(II).

“Rules of grammar govern statutory interpretation unless they 

contradict legislative intent or purpose.” Nielsen v. Preap, 139 S. Ct. 954, 965 

(2019) (cleaned up). When Congress modified “Federal functional 

regulator” with the definite article “the” and the adjective “appropriate,” it 

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made clear that there can only be one appropriate Federal functional regulator 

“with respect to an audit report for an institution subject to the jurisdiction 

of such regulator.” 15 U.S.C. § 7215(b)(5)(B)(ii)(II); see Rumsfeld v. Padilla, 

542 U.S. 426, 434 (2004) (explaining that the appearance of the definite 

article “the” before the word “person” in a statute indicated that there was 

only one “person” who could fit the definition within the statute). The 

FDIC, however, asks us to interpret this language in a way that would 

establish two appropriate Federal functional regulators in this case: the FDIC, 

as the appropriate Federal functional regulator of the Bank, and the Federal 

Reserve, as the appropriate Federal functional regulator of the Holding 

Company.3 Such a conclusion would contravene the language of the statute.

The FDIC’s response is that because EY’s audit reports were “for” 

the Holding Company and the Bank,4 the statute permits multiple 

appropriate Federal functional regulators in this case. Assuming that an audit 

report can be “for” multiple entities, the FDIC is not the “appropriate” 

Federal functional regulator here. That’s because the FDIC was acting in its 

capacity as the Bank’s receiver when it acquired the confidential documents 

from the PCAOB, not as the Bank’s regulator. See Fed. Deposit Ins. Corp. v. 

Ernst & Young LLP, 374 F.3d 579, 581 (7th Cir. 2004) (explaining that “it is 

helpful” to treat the FDIC as three different entities depending on whether 

it acts in its corporate, receiver, or regulatory capacity). 

The FDIC points us to subsections of 12 U.S.C. § 1821 as evidence of 

Congress’s ability to distinguish between the FDIC in its various capacities

to show that its intent was not to do so here by referring only to “the Board 

3

 It is undisputed that the Holding Company is regulated by the Federal Reserve.

4

 Although the Holding Company is the entity that engaged EY to complete the 

audit reports, they were completed on a consolidated basis, and the Bank later submitted 

the same reports to the FDIC to comply with various reporting requirements.

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of Directors of the Federal Deposit Insurance Corporation” in 15 

U.S.C. § 6809(2)(C). See, e.g., 12 U.S.C. §§ 1821(d)(2)(K) (“In carrying out 

its responsibilities in the management and disposition of assets from insured 

depository institutions, as conservator, receiver, or in its corporate capacity, 

the [FDIC] . . . .”); § 1821(d)(10)(B) (“The receiver may, in the receiver’s 

sole discretion, pay dividends on proved claims at any time, and no liability 

shall attach to the Corporation (in such Corporation’s corporate capacity or 

as receiver) . . . .”). We recognize that Congress’s decision to specifically 

address the FDIC’s different capacities in one statute can be evidence of its 

intent not to differentiate among the capacities in another. See Marx v. Gen. 

Revenue Corp., 568 U.S. 371, 384 (2013) (relying on Congress’s use of certain 

language in one statute to infer meaning of related language in another 

statute).

Here, however, context is important. FCC v. AT & T Inc., 562 U.S. 

397, 404 (2011) (“The construction of statutory language often turns on 

context . . . .”). 15 U.S.C. § 6809(2) is a list comprised of regulatory bodies. 

The Supreme Court has relied “on the principle of noscitur a sociis—a word 

is known by the company it keeps—to ‘avoid ascribing to one word a meaning 

so broad that it is inconsistent with its accompanying words, thus giving 

unintended breadth to the Acts of Congress.’” Yates v. United States, 574 

U.S. 528, 543 (2015) (quoting Gustafson v. Alloyd Co., 513 U.S. 561, 575

(1995)). Applying that principle here buttresses our conclusion that the FDIC 

is not “the appropriate” Federal functional regulator in this case.

“The appropriate Federal functional regulator” here is the Federal 

Reserve, not the FDIC. Accordingly, it was improper for the PCAOB to 

disclose to the FDIC, acting in its capacity as receiver for the Bank,

transcripts of Belcher’s deposition testimony before the PCAOB. See 15 

U.S.C. § 7215(b)(5)(A).

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IV.

We hold that the FDIC was not “the appropriate Federal functional 

regulator” in this case. Accordingly, the PCAOB lacked the authority under 

15 U.S.C. § 7215(b)(5)(B) to share transcripts of Belcher’s deposition 

testimony before it with the FDIC. Because the district court’s judgment 

rested on a contrary interpretation of the applicable statutory language, we 

VACATE the judgment enforcing the FDIC’s administrative subpoena and 

REMAND this case for proceedings consistent with this opinion.5

5

 At oral argument, it was brought to our attention that the FDIC, acting in its 

capacity as the Bank’s receiver, recently filed an action against EY in the Eastern District 

of Louisiana seeking to recover monetary damages based on EY’s alleged negligence in 

auditing the Bank. We leave it to the district court on remand to determine whether there 

are common issues between that case and this one that may warrant consolidation.

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Gregg Costa, Circuit Judge, dissenting:

This is a strange appeal. The documents that are the subject of this 

appeal were not turned over in this proceeding. The FDIC filed this case just

to enforce an administrative subpoena to depose Daniel Belcher. See 12 

U.S.C. § 1818(n). After the district court enforced the subpoena, and we 

refused to stay that decision, the deposition went forward. Because of the 

controversy about the PCAOB’s earlier production of documents, the FDIC 

did not ask about the documents during the deposition. With the deposition 

complete and this case not being the source of the disputed production, it 

seems odd that this appeal would be the vehicle for deciding if the PCAOB’s 

action was lawful. The PCAOB is not even a party to this case. 

In other words, the appeal seems moot. This case was a limited action

to enforce a deposition subpoena. That deposition has taken place. What 

more can be done?

Belcher answers—and the FDIC agrees, though its concession does 

not bind us because mootness is jurisdictional—that there is the possibility 

of some remedy on remand if we conclude that the PCAOB should not have 

turned over the documents. That would be true if this district court had 

ordered production of the PCAOB documents. Even after a party produces 

documents in response to a district court order, the appeal remains live 

because a reversal can result in an order to return those documents. See, e.g., 

Church of Scientology of Cal. v. United States, 506 U.S. 9, 13–17 (1992) (holding 

that appeal of district court order to turn over tape recordings to IRS was not 

moot because a reversal could result in an order that “the Government [] 

return the records”); United States v. Chevron U.S.A., Inc., 186 F.3d 644 (5th 

Cir. 1999) (finding case remained “live” even though documents had been 

produced because the government “would be required to return the 

documents” the district court had ordered produced). But because the 

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district court did not order the PCAOB to produce the Belcher documents, 

cases like Church of Scientology do not apply. 

The same problem infects Belcher’s argument that there are 

additional remedies, such as disqualification of the FDIC’s counsel, that the 

district court could impose on remand following an appellate ruling that the 

PCAOB should not have handed over the documents. Again, that might be 

true if the documents had been wrongfully produced in this case. But they 

were produced by the PCAOB before this limited proceeding to compel a 

deposition began. And neither Belcher nor Ernst & Young has brought suit 

against the PCAOB to challenge its administrative action turning over the 

documents. What authority would the district court in this case have to 

remedy alleged misconduct that did not happen before it?

Consider the following situation. In Lawsuit A, a court orders a 

defendant to turn over documents to the plaintiff. In Lawsuit B filed years 

later between the same parties, the plaintiff still possesses the documents 

from Lawsuit A. I don’t see how the court presiding over Lawsuit B has the 

authority to punish the plaintiff for “wrongfully” obtaining the documents 

via a court order in Lawsuit A. To be sure, the court in Lawsuit B could limit 

the use of the Lawsuit A documents in the new suit. A court always has 

authority to decide what evidence is admissible. But I don’t see how Court 

B can punish a party for something it did with Court A’s authorization. 

Indeed, Belcher cites no authority allowing a trial court to sanction a 

party because another legal authority erroneously gave it documents. Nor is 

there any authority for striking this deposition based on a disclosure that 

occurred outside this case (especially when the documents were not used in 

this deposition). As a result, I see no reason to override what common sense 

suggests: the appeal of an order requiring a deposition is moot once the 

deposition is over. 

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I thus would not decide the difficult statutory questions about whether 

the PCOAB should have turned over these documents. Now that the FDIC 

has filed a malpractice action against Ernst & Young, the judge presiding over

that case could decide the statutory question in deciding whether the 

documents are admissible. 

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