Alert June 18, 2013

OCC Issues Bulletin Describing its Revised Appeals Process

The OCC issued a bulletin, OCC 2013-15 (the “Bulletin”), describing the OCC’s revised policy (the “Policy”) by which national banks, federal savings associations and federal branches and agencies (collectively, “Banks”) may appeal OCC decisions and actions.  The Bulletin replaces and supersedes the OCC’s prior guidance on the subject entitled “Bank Appeals Process:  Guidance for Bankers” dated November 1, 2011.  The OCC said that the appeals process described in the Bulletin ensures that a Bank will not be disadvantaged by filing an appeal.  The OCC also stresses in the Bulletin that Banks are encouraged to discuss with the OCC’s Ombudsman any OCC policy, decision or action that could develop into an appealable matter.

Under the Policy, a Bank may appeal to either the Deputy Controller in the applicable OCC District or the Ombudsman a broad spectrum of matters, including, but not limited to:

  • Examination ratings;
  • Adequacy of the Bank’s allowance for loan and lease loss methodology;
  • Individual loan ratings;
  • Cited apparent violations of law;
  • Shared National Credit commercial loan decisions;
  • Fair-lending-related decisions;
  • Licensing decisions; and
  • Material supervisory decisions, e.g., conclusions in a Report of Examination.

Matters that a Bank may not appeal to the OCC under the Policy include:

  • Appointments of receivers and conservators;
  • Preliminary examination conclusions prior to receipt by the Bank of a Report of Examination;
  • Any formal enforcement action;
  • Formal and informal rulemakings under the Administrative Procedure Act;
  • Decisions following formal and informal adjudications under the Administrative Procedure Act;
  • Requests for OCC records under the Freedom of Information Act;
  • OCC decisions that disapprove proposed Bank directors and senior executive officers; and
  • Any other OCC decisions that are subject to judicial review (other than those listed above as appealable to the OCC).

The Bulletin provides additional detail concerning the process of filing appeals to the applicable OCC Deputy Controller or the Ombudsman.  The Bulletin also states that after an OCC official renders a decision on a formal appeal, the Ombudsman will contact the applicable Bank to ask the Bank whether it believes the OCC took the action against the Bank in retaliation for the Bank’s appeal.  If the Bank claims that the OCC’s action is retaliatory, the Ombudsman will investigate the claim.

The OCC emphasizes in the Bulletin that the Ombudsman operates independently from the bank supervision process and reports directly to the Comptroller.  The Bulletin also notes that the Ombudsman, with the prior consent of the Comptroller, may stay any applicable OCC decision or action during the resolution of an applicable matter and may make recommendations to the Comptroller for changes in OCC policy.