UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


PROFFITT, BILLY

v.

FDIC


98-1534b

D.C. Cir. 2000


*	*	*


O R D E R


Petitioner's Petition for Rehearing En Banc and the re- sponse thereto
have been circulated to the full court. The  taking of a vote was
requested. Thereafter, a majority of the  judges of the court in
regular active service did not vote in 


favor of the petition. Upon consideration of the foregoing, it  is


ORDERED that the petition be denied.


Per Curiam


FOR THE COURT:


Mark J. Langer, Clerk


Circuit Judges Silberman, Williams, and Sentelle would  grant the
petition for rehearing en banc.


A statement of Circuit Judge Silberman dissenting from  the denial of
rehearing en banc, in which Circuit Judges  Williams and Sentelle
join, is attached.


Silberman, Circuit Judge, with whom Williams and  Sentelle, Circuit
Judges, join, dissenting from the denial of  rehearing en banc: I
believe that this case merits en banc  consideration, since it
concerns the proper application of the  important and oft-used
provision under which the bank regu- latory agencies bring enforcement
actions against individuals  in the banking industry. For the reasons
set forth in my  dissent, see Proffitt v. FDIC, 200 F.3d 855, 865
(D.C. Cir.  2000) (Silberman, J., dissenting), I think that the panel
major- ity's construction is incorrect and gives those agencies
virtual- ly unlimited discretion as to when they initiate proceedings.
 The majority opinion therefore has the curious result of  formally
extending our holding in Johnson v. SEC, 87 F.3d  484 (D.C. Cir. 1996)
to bank regulatory agency enforcement  actions, but doing so in a
manner that nullifies Johnson's  effect. On reflection, I think that
my dissent should have respond- ed more fully to the majority's claim
that my reading of  section 8(e) would fail to give effect to all of
the provision's  language.1 Section 8(e) states that a regulatory
agency may  bring an enforcement action against a banker if, among
other  things, the depository institution "has suffered or will proba-
bly suffer financial loss or other damage." 12 U.S.C.  s
1818(e)(1)(B)(i). Reasoning that an institution always "will  probably
suffer" financial loss before it suffers actual financial  loss, the
majority asserts that the provision's language per- mitting an
enforcement action where there is probable or  actual loss indicates
Congress' intent to create separate "has  suffered" and "will probably
suffer" causes of action, each  with its own limitations period. See
Proffitt, 200 F.3d at 863- 64. Otherwise, it is argued, the "has
suffered" language is  superfluous. I think this analysis--based on
the notion that actual loss is  included within the concept of
probable loss--is wholly artifi- cial. One does not normally use the
phrase "will probably  suffer" a loss with the intention of
incorporating the concept  of an actual loss. No one talks or writes


__________

n 1 Nor were Proffitt's briefs terribly helpful in responding to this 
argument.


sions in the Sentencing Guidelines that impose an increased  sentence
in the event that the offense causes "death or  serious bodily
injury." See, e.g., U.S.S.G. s 2D1.1(a)(1). Of  course, a person who
has been killed has also suffered serious  bodily injury, and thus the
word "death" is in a metaphysical  sense a "superfluous" term. But we
would not be inclined to  afford special temporal meaning to this
modest overlap--to  the contrary, it would seem odd if the word
"death" were not  separately mentioned.


Even if one thought that the term "will probably suffer" a  loss
necessarily includes an actual loss and is therefore redun- dant, a
bit of redundancy is common not only in everyday  speech but in
legislation where the draftsman has an under- standable desire to, as
Macbeth put it, "make assurance  double sure." See, e.g., Shook v.
D.C. Fin. Responsibility  and Management Assistance Auth., 132 F.3d
775, 782 (D.C.  Cir. 1998); United States v. Microsoft, 147 F.3d 935,
959  (D.C. Cir. 1998) (Wald, J., concurring in part and dissenting  in
part). This textual canon is a most slender thread upon  which to hang
so dubious a construction of section 8(e).