Page:Calcutt v. FDIC.pdf/4

4 prudent operation’ whose consequences are an ‘abnormal risk of loss or harm’ to a bank.” App. to Pet. for Cert. 150a (quoting Michael v. FDIC, 687 F. 3d 337, 352 (CA7 2012)). The Board held that standard satisfied, concluding that “the record in this matter overwhelmingly establishes that [petitioner] engaged in numerous unsafe or unsound practices.” App. to Pet. for Cert. 150a.

The Board then addressed the issue of causation. In doing so, the Board concluded that an individual “need not be the proximate cause of the harm to be held liable under section 8(e).” Id., at 160a. With that understanding in mind, the Board found that petitioner had caused the Bank harm in three ways: First, the Bank had to charge off (i.e., forgive) $30,000 of one of the loans made in the Bedrock Transaction; second, the Bank suffered $6.4 million in losses on other Nielson Loans; and third, the Bank incurred investigative, auditing, and legal expenses in managing the Bedrock Transaction and its fallout. Id., at 159a–166a.

Finally, the Board turned to the issue of culpability. It found that the record “well supported” the ALJ’s conclusions that petitioner “persistently concealed … the true common nature of the Nielson Entities Loan portfolio, [and] problems with that portfolio.” Id., at 167a–168a. The Board also found that petitioner “falsely answered questions presented to him during examinations,” “concealed documents showing the true condition of the loans,” and “falsely testified that Board members had been fully apprised of the nature of the Nielson Loan portfolio.” Ibid.

Based on these findings, the Board issued a final decision imposing the penalties that the ALJ had recommended. Id., at 184a–185a.

Petitioner then filed a petition for review in the Sixth Circuit, identifying several purported errors in the Board’s decision. Two are relevant here.

First, petitioner contended that the Board had misapplied the FDIA’s “by reason of” requirement by concluding