author: Justice Brennan

text:
    FEDERAL ENERGY REGULATORY COMMISSION v. MARTIN EXPLORATION MANAGEMENT CO. et al.
    No. 87-363.
    Argued March 28, 1988
    Decided May 31, 1988

      Brennan, J., delivered the opinion of the Court, in which all other Members joined, except White, J., who took no part in the consideration or decision of the cases.

      Richard G. Taranto argued the cause for petitioner in No. 87-363. With him on the briefs were Acting Solicitor General Ayer, Deputy Solicitor General Cohen, Catherine C. Cook, Jerome M. Feit, Joel M. Cockrell, and John H. Conway. Richard A. Solomon argued the cause for petitioners in No. 87-364. With him on the briefs were Mark N. Mutterperl, Terence J. Collins, Robert Ballentine, Raymond N. Shibley, Frederick Moring, and Herbert J. Martin. John E. Holtzinger, Jr., Joseph E. Stubbs, Loren S. Meltzer, Stephen E. Williams, Georgia B. Carter, David E. Weatherwax, and Mark G. Magnuson filed a brief for CNG Transmission Corp. as respondent under this Court’s Rule 19.6, in support of petitioners.

      Jeffrey S. Davidson argued the cause for respondents in both cases. With him on the brief were Stephen A. Herman, Michael L. Pate, Charles H. Shoneman, John L. Williford, Charles L. Pain, Harris S. Wood, James B. Atkin, David J. Evans, C. Roger Hoffman, Douglas W. Rasch, R. Gordon Gooch, Ronald D. Hurst, Paul W. Hicks, John McDonald, Richard E. Powers, Jr., Kenneth L. Riedman, Thomas G. Johnson, and Constance D. Coleman

      Together with No. 87-364, Public Service Commission of the State of New York et al. v. Martin Exploration Management Co. et al., also on certiorari to the same court.

       Briefs of amici curiae urging reversal were filed for the Interstate Natural Gas Association of America by John H. Cheatham III; and for Williams Natural Gas Co. by Dale A. Wright, James T. McManus, Michael E. Small, Bobby Potts, and John Cary.

   Justice Brennan

delivered the opinion of the Court.

These cases involve natural gas covered by overlapping provisions of the Natural Gas Policy Act of 1978 — one setting a price ceiling, the other declaring prices deregulated. Petitioners contend that under § 101(b)(5) of the Act such gas should be classified as deregulated gas. The United States Court of Appeals for the Tenth Circuit held that under § 101(b)(5) such gas falls under whichever classification affords producers the highest price under their contracts and current market conditions. The Court of Appeals also held invalid a Federal Energy Regulatory Commission (FERC) ruling that certain “new tight formation gas” under §107 (c)(5) of the Act is automatically “new” gas qualified for deregulated treatment under § 102(c) or § 103 of the Act. We reverse on both issues.

I

From 1938 to 1978, the Federal Government regulated only the interstate natural gas market. By the 1970’s, however, shortages in the interstate market developed because gas producers could get higher prices in unregulated intrastate markets. Two conflicting legislative solutions were developed: the Senate passed a bill deregulating interstate gas, S. 2104, 95th Cong., 1st Sess. (1977); the House passed a bill extending federal regulation to intrastate gas, H. R. 8444, 95th Cong., 1st Sess. (1977). The Conference Committee struck a compromise. H. R. Conf. Rep. No. 95-1752 (1978). The result was the Natural Gas Policy Act of 1978 (Act), Pub. L. 95-621, 92 Stat. 3351, 15 U. S. C. §3301 et seq.

The Act defines various categories of gas spanning both interstate and intrastate gas, and creates a two-part system of phased deregulation. First, the Act establishes price ceilings for wellhead first sales of gas that vary with the applicable category of gas and that gradually increase over time. §§101-110, 15 U. S. C. §§3311-3320. Second, the Act establishes a three-stage elimination of price ceilings for certain categories: the price ceilings for certain “high-cost” gas were eliminated in 1979, for certain “old” intrastate gas and “new” gas in 1985, and for certain other “new” gas in 1987. See §121, 15 U. S. C. §3331.

Many of these categories overlap. Recognizing the overlap, Congress provided in § 101(b)(5) of the Act, 15 U. S. C. § 3311(b):

“If any natural gas qualifies under more than one provision of this title providing for any maximum lawful price or for any exemption from such a price with respect to any first sale of such natural gas, the provision which could result in the highest price shall be applicable.”

In anticipation of the 1985 deregulation, FERC promulgated a regulation interpreting §§ 121 and 101(b)(5) to mean that any gas that was qualified for both deregulated and regulated treatment would be treated as deregulated. 18 CFR §270.208 (1987).

This preference for deregulatory treatment adversely affected many gas producers who had entered into certain types of long-term contracts. Typically, these contracts had one clause setting the price if the gas were regulated and another clause setting the price if it were deregulated. The contract price for regulated gas was typically close to the price ceiling; the contract price for deregulated gas was typically based on market prices or left open to renegotiation. Because by 1984 the market price of natural gas had plunged below the regulated price ceilings, these producers stood to reap higher contractual prices if their gas was regulated than if it were deregulated.

Dissatisfied with FERC’s regulation, numerous producers petitioned for review to the United States Court of Appeals for the Tenth Circuit. The Court of Appeals rejected FERC’s interpretation of §§ 121 and 101(b)(5), adopting the producers’ position that § 101(b)(5) unambiguously requires the applicable category to be that which, at any particular moment, gamers the producer the highest contract price for its gas. 813 F. 2d 1059 (1987). In explaining this holding, the Court of Appeals also rejected FERC’s ruling that certain “new tight formation gas” subject to regulation under § 107(c)(5), 15 U. S. C. § 3317(c)(5), is automatically qualified for deregulation as new gas under § 102(c) or §103, 15 U. S. C. §§3312, 3313. See 813 F. 2d, at 1069-1070. We granted certiorari. 484 U. S. 962 (1987).

II

“The plain meaning of the statute decides the issue presented.” Bethesda Hospital Assn. v. Bowen, 485 U. S. 399, 403 (1988). The Act states that “the provision which could result in the highest price shall be applicable.” § 101(b)(5) (emphasis added). It does not state that the applicable provision is that which will (depending on actual contracts and daily market prices) result in the highest price for each producer. We think these words call for a simple comparison between the highest price permitted by one provision and the highest price permitted by another: the higher the price ceiling, the higher the price that “could result” under the provision. The provision with the highest price ceiling thus applies uniformly to all producers selling gas that falls within both provisions. When one of the provisions sets no price ceiling at all — i. e., it deregulates — that provision governs.

The Court of Appeals rejected this straightforward interpretation on the ground that, although the price of deregulated gas “could” in theory rise without limit, “the price of regulated gas ‘could’ be higher than the price of deregulated gas.” 813 F. 2d, at 1068. The court reasoned that “[s]uch an understanding of ‘could’ — one that considers only the theoretical possibilities — renders § 101(b)(5) meaningless.” Ibid. Rather, the court concluded: “‘Could’ makes sense in § 101(b)(5) only in the context of how gas sales actually occur.” Ibid. Under this reading of § 101(b)(5), the statute requires a determination of which provision would actually result in a higher price under current market prices for that gas and the contractual arrangement each producer had for the sale of that gas. Ibid. The provision that actually results in the highest price at any particular moment establishes the applicable category for that producer’s gas.

We disagree with the Court of Appeals’ conclusion that reading the word “could” in § 101(b)(5) with its ordinary conditional meaning makes so little sense that the word “could” must be converted to the word “will.” The conditional meaning of “could” makes perfect sense if the statute does not mean to refer to particular contracts but rather to the generic situation of parties in a precontract state: the provision that allows the parties to contract to the highest conceivable price applies. Congress must have had in mind the fact that prior to entering into a contract the parties could always contract to a higher price — i. e., a higher price could result— without a price ceiling than with one. After all, no party has any reason to contract to a higher price simply because a price ceiling has been imposed; the price ceiling can only impose a direct legal restraint if the market price would be above the price ceiling. Cf. § 101(b)(9), 15 U. S. C. § 3311(b)(9) (declaring contract prices enforceable if they do not exceed an applicable price ceiling or if a deregulatory provision applies). The Court of Appeals’ difficulty with the statutory language is caused by its focus on the postcontract situation, where many of the contracts contain clauses that have the perverse effect of increasing the price when a price ceiling is imposed. We doubt seriously that Congress enacted § 101(b)(5) with such contracts in mind or that it would have wished to make sure that the Act interacted with such contracts to mandate the maximum price possible. Certainly nothing in the legislative history suggests Congress had such a system in mind.

Indeed, the Court of Appeals’ reading is contrary to the whole thrust of the Act, for it has the effect of turning a statutory scheme of price ceilings and deregulation into a system of price supports for producers. There is no evidence that Congress had any intent to create such a producer-assistance program. The Act was a compromise: those supporting deregulation were opposed only by those who thought deregulation would allow producers to charge excessive prices. Not one participant in the legislative process suggested that producers should receive higher prices than deregulation would afford them. The operating assumption of Congress was that deregulation was the most favorable regime for gas producers under consideration. See, e. g., 124 Cong. Rec. 28633 (1978) (statement of Sen. Jackson) (describing deregulation as “the maximum economic incentive”).

We are moreover reluctant to read § 101(b)(5) as making the applicable provision for a particular type of gas vary not only from producer to producer and from contract to contract, but from day to day as the actual market price of that gas changes. The statute is phrased in a general way that implies that all gas fitting the same overlapping provisions will be treated the same, and one would normally expect that a regulatory regime would apply uniformly rather than varying in such a chaotic fashion. The statute calls for a comparison of statutory provisions, not contractual ones, and nothing in the statute or legislative history suggests that Congress wanted the classification of gas to turn on contractual terms. Indeed, if the logic of the Court of Appeals’ position were pursued, then, even for gas that fell into two regulated categories, § 101(b)(5) would require a comparison of each producer’s contract prices for each category rather than a comparison of the ceiling prices for each category. We see no reason for inferring that Congress intended such a regulatory regime or the disuniformity and administrative difficulties it would entail.

1 — 1 I — I

We also disagree with the Court of Appeals’ decision to overturn FERC’s ruling that certain gas qualified as “new tight formation” gas under § 107(c)(5), 15 U. S. C. § 3317(c) (5), is automatically also qualified as deregulated “new” gas under § 102(c) or § 103, 15 U. S. C. §§ 3312(c), 3313. Section 107(c)(5) gives FERC authority to make eligible for special high-cost gas pricing natural gas “produced under such . . . conditions as [FERC] determines to present extraordinary risks or costs.” Pursuant to § 107(c)(5), FERC has defined “new tight formation gas” as gas

“(i) Which is new natural gas, (as defined in section 102(c)), certain OCS gas qualifying for the new natural gas ceiling price, (as defined in section 102(d)), or gas produced through a new onshore production well (as defined in section 103(c); and
“(ii) Which is produced from a designated tight formation through a well the surface drilling of which began on or after July 16, 1979.” 18 CFR § 271.703(b)(2) (1987).

In the proceeding below, which did not address certain Outer Continental Shelf gas under § 102(d), 15 U. S. C. §3312(d), FERC has simply ruled that, because “[i]n order to qualify as new tight-formation gas under section 107(c)(5), a producer must file the same information, in addition to other information, that would be filed to qualify as a section 102 or 103 determination , a determination that gas qualifies as new tight-formation gas is implicitly a determination that the gas meets the qualifications for either section 102(c) or 103 . . . , regardless of whether that was explicit at the time that the determination was made.” 49 Fed. Reg. 46874, 46880 (1984).

We see nothing objectionable about this ruling, which merely recognizes that, as defined, the types of “new tight formation gas” that were under consideration by FERC are a subset of deregulated “new” gas under § 102(c) or § 103. The Court of Appeals’ objections to the ruling were based on its conclusion that allowing one qualification to result automatically in a second qualification would interfere with what it inferred was Congress’ intent to give producers the right to select the categories they desired. 813 F. 2d, at 1069. The court had two bases for inferring this intent. One was its reading of § 101(b)(5), which we reject above. The other was its reading of certain portions of the legislative history, which state that governmental agencies have no affirmative obligation to identify the applicable classification and that it is up to producers to apply for the designations they want. 813 F. 2d, at 1070 (quoting 124 Cong. Rec. 29109, 38363-38364 (1978)). But the fact that Congress declined to impose affirmative investigative duties on agencies hardly means that it did not want FERC to adopt rules for classifying gas based on the evidence presented by producers at determination hearings.

The producer respondents also argue that FERC’s rule intrudes on the jurisdiction other state and federal agencies have to make category determinations under §503, 15 U. S. C. §3413. FERC, however, has made no category determinations. It has merely promulgated a definitional rule applicable in determination proceedings. This FERC has ample authority to do. Not only does § 107(c)(5) give FERC broad authority to define the gas eligible for § 107(c) (5) treatment, but § 503 gives FERC authority to review the category determinations of other agencies and to prescribe the manner and substantiation with which such category determinations must be presented for its review. And under §501, 15 U. S. C. §3411, FERC has general authority to define terms under the Act and to prescribe “such rules and orders as it may find necessary or appropriate to carry out its functions.”

For the foregoing reasons, the judgment of the Court of Appeals is

Reversed.

Justice White took no part in the consideration or decision of these cases.


source: Caselaw Access Project

author: Justice Marshall

license: Public Domain

text:
    AMADEO v. ZANT
    No. 87-5277.
    Argued March 28, 1988
    Decided May 31, 1988

      MARSHALL, J., delivered the opinion for a unanimous Court.

      Stephen B. Bright argued the cause for petitioner. With him on the brief were Palmer Singleton, Robert L. Me-Glasson, and William M. Warner.

      Susan V. Boleyn, Senior Assistant Attorney General of Georgia, argued the cause for respondent. With her on the brief were Michael J. Bowers, Attorney General, Marion 0. Gordon, First Assistant Attorney General, and William B. Hill, Jr., Senior Assistant Attorney General.

        Julius L. Chambers and Charles Stephen Ralston filed a brief for the NAACP Legal Defense and Educational Fund, Inc., as amicus curiae urging reversal.

   Justice Marshall

delivered the opinion of the Court.

In considering petitioner’s motion for a writ of habeas corpus, the District Court concluded that petitioner successfully established cause for his failure to raise in the state trial court a constitutional challenge to the composition of the juries that indicted him, convicted him, and sentenced him to death. This case presents the question whether the factual findings upon which the District Court based its conclusion were clearly erroneous.

I

Petitioner Tony B. Amadeo was convicted of murder and criminal attempt to commit theft in November 1977 in the Superior Court of Putnam County, Georgia. The jury returned a recommendation of death for the murder charge, and the court imposed the death sentence. In addition, the court imposed a 10-year sentence for the attempted theft charge.

Nine months later, while petitioner was pursuing his direct appeal to the Georgia Supreme Court, an independent civil action in federal court brought to light a scheme by the District Attorney and the Jury Commissioners of Putnam County to underrepresent black people and women on the master jury lists from which all grand and traverse (petit) juries were drawn. See Bailey v. Vining, Civ. Action No. 76-199 MAC (MD Ga., Aug. 17, 1978). Bailey involved a challenge to the at-large voting procedures in Putnam County. In the course of researching the case, one of the plaintiffs’ attorneys reviewed the master jury lists for a period of 20 to 30 years and uncovered a handwritten memorandum on a sheet of legal paper. The missive bore no caption or other designation, no signature, no date, and no file stamp from the court Clerk’s office. Under the heading “Result,” the sheet listed figures for the number of black people and women to be placed on the master jury lists that would result in their underrepresentation on grand and traverse juries by a range of 5 to 11%. App. 4. The attorney who discovered the memorandum asked the Clerk of the court where it came from, and the Clerk responded that it was instructions from the District Attorney’s Office to the Jury Commissioners about the master jury lists. Id,., at 45. According to the Clerk, the Jury Commissioners followed the memorandum’s instructions. Id., at 9.

The District Court in Bailey found that the memorandum was intentionally designed to underrepresent black people and women on grand and traverse juries without giving rise to a prima facie case of racial discrimination under this Court’s opinion in Swain v. Alabama, 380 U. S. 202, 208-209 (1965) (underrepresentation of less than 10% is insufficient to prove intentional discrimination), and the Fifth Circuit’s opinion in Preston v. Mandeville, 428 F. 2d 1392, 1393-1394 (1970) (13.3% underrepresentation constitutes prima facie case). See App. 10, 78. Concluding that the master jury lists could not be used for any purpose until the discrimination had been corrected, the District Court ordered the Jury Commissioners to reconstitute the lists in conformity with the Constitution. Bailey v. Vining, supra, at 7.

Citing the District Court’s order in Bailey, petitioner’s attorneys raised a challenge to the composition of the Putnam County juries that had indicted, convicted, and sentenced petitioner in their opening brief on direct appeal to the Georgia Supreme Court. In addition, petitioner’s attorneys filed a supplemental brief devoted solely to the jury composition issue, in which they argued that the challenge had not been waived in Superior Court because they had not had any opportunity to discover the purposeful discrimination. See App. 14-18. The Georgia Supreme Court nevertheless affirmed petitioner’s convictions and sentences, rejecting his challenge to the jury on the ground that it “comes too late.” Amadeo v. State, 243 Ga. 627, 629, 255 S. E. 2d 718, 720, cert. denied, 444 U. S. 974 (1979). Petitioner twice sought a writ of habeas corpus in the state courts without success, and this Court denied certiorari both times.

After exhausting his state remedies, petitioner sought a writ of habeas corpus in Federal District Court. Petitioner’s habeas petition was heard by the same District Judge who had decided the Bailey case. The court noted that Bailey established that the Putnam County Jury Commissioners had composed the master jury lists so as deliberately to under-represent black citizens without giving rise to a prima facie case of intentional discrimination. App. 78. Accordingly, the court concluded that “[cjlearly, petitioner was indicted, tried and sentenced by unconstitutionally composed juries.” Ibid. The court went on to explain that in light of the Georgia Supreme Court’s finding of waiver under state law, petitioner could assert his constitutional claim in the federal habeas proceeding only if he established cause and prejudice within the meaning of this Court’s decision in Francis v. Henderson, 425 U. S. 536, 542 (1976). Observing that petitioner’s lawyers had raised the discrimination claim as soon as the inculpatory evidence came to light, the court found that they had engaged in no “ ‘sandbagging’ ” or “deliberate bypass” — the principal concerns behind the cause and prejudice requirement. Concluding that to overlook the intentional discrimination in this case would result in a “miscarriage of justice,” the District Court found sufficient cause and prejudice to excuse the procedural default and granted the writ on the basis of petitioner’s constitutional challenge. App. 80.

The Court of Appeals for the Eleventh Circuit remanded the case for an evidentiary hearing. Amadeo v. Kemp, 773 F. 2d 1141 (1985). Acknowledging that neither party had requested a hearing before the District Court, the Court of Appeals nonetheless found the record insufficiently developed for proper review of the question of cause. Id., at 1145. The Court of Appeals requested that the District Court establish on remand “[t]he specifics of the alleged unconstitutional method of selecting the jurors and whether this method was so devious and hidden as to be nondiscoverable.” Ibid.

On remand, the District Court held an evidentiary hearing at which it received testimony from petitioner’s two trial lawyers, a lawyer who assisted petitioner’s lawyers in developing the jury challenge on direct appeal, and the lawyer who discovered the memorandum in the Bailey case. At the conclusion of the hearing, the judge issued an oral order and memorandum opinion in which he reaffirmed his earlier conclusion that petitioner had demonstrated adequate cause to excuse his procedural default. App. 90-93. The court observed that the District Attorney had made no attempt to deal honestly with petitioner’s lawyers and reveal that he had guided the Jury Commissioners’ manipulation of the jury lists. Id., at 92. The court concluded that, in light of all the circumstances of the case, “it was reasonable for [petitioner’s lawyers] at the time that they were appointed, to not challenge the list,” ibid., adding, “I don’t think it was a deliberate by-pass in any sense.” Id., at 93. The court specifically found that if petitioner’s lawyers had known of the District Attorney’s memorandum, they would have challenged the composition of the jury. Id., at 92.

A divided panel of the Eleventh Circuit reversed. Amadeo v. Kemp, 816 F. 2d 1502 (1987). The court noted that the District Court had found that the racial disparity on the jury lists was.concealed by county officials, id., at 1507, but the court stated simply that it “disagree[d] with that conclusion.” Ibid. The court found instead that “[t]he memorandum detailing the county’s efforts to alter the racial composition of the master jury lists . . . was readily discoverable in the county’s public records” and that petitioner’s lawyers “would have found the memorandum” had they examined the records. Ibid. The court further found that petitioner’s lawyers had “made a considered tactical decision not to mount a jury challenge because they wanted to preserve an advantageous jury venire,” ibid., although the court acknowledged that there had been conflicting testimony at the evidentiary hearing on this point. Id., at 1507, n. 9. In light of these findings, the court concluded that petitioner had not established cause for his failure to raise his constitutional challenge in accordance with Georgia procedural law.

The dissenting judge argued as a threshold matter that the majority ignored its obligation to defer to the trial court’s factual findings unless they are clearly erroneous. Id., at 1508, 1510, 1511. More broadly, the dissent maintained that “[w]here the state’s efforts to conceal its misconduct cause an issue to be ignored at trial, the state should not be allowed to rely on its procedural default rules to preclude federal habeas review.” Id., at 1513.

We granted certiorari, 484 U. S. 912 (1987), and we now reverse.

II

In Wainwright v. Sykes, 433 U. S. 72 (1977), this Court adopted the “cause and prejudice” requirement of Francis v. Henderson, supra, for all petitioners seeking federal habeas relief on constitutional claims defaulted in state,court. The Sykes Court did not elaborate upon this requirement, but rather left open “for resolution in future decisions the precise definition of the ‘cause’-and-'prejudice’ standard.” 433 U. S., at 87. Although more recent decisions likewise have not attempted to establish conclusively the contours of the standard, they offer some helpful guidance on the question of cause. In Reed v. Ross, 468 U. S. 1 (1984), the Court explained that although a “tactical” or “intentional” decision to forgo a procedural opportunity normally cannot constitute cause, id., at 13-14, “the failure of counsel to raise a constitutional issue reasonably unknown to him is one situation in which the [cause] requirement is met.” Id., at 14. The Court later elaborated upon Ross and stated that “the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U. S. 478, 488 (1986). We explained that “a showing that the factual or legal basis for a claim was not reasonably available to counsel, or that ‘some interference by officials’ made compliance impracticable, would constitute cause under this standard.” Ibid, (citations omitted).

The Court of Appeals did not contest, nor could it, that the facts found by the District Court in this case permitted the District Court’s legal conclusion that petitioner had established cause for his procedural default. If the District Attorney’s memorandum was not reasonably discoverable because it was concealed by Putnam County officials, and if that concealment, rather than tactical considerations, was the reason for the failure of petitioner’s lawyers to raise the jury challenge in the trial court, then petitioner established ample cause to excuse his procedural default under this Court’s precedents. The situation described by the District Court fits squarely, indeed almost verbatim, within our holdings in Ross and Carrier. First, the District Court essentially found that the basis for petitioner’s claim was “reasonably unknown” to petitioner’s lawyers, Reed v. Ross, supra, at 14, because of the “objective factor” of “‘some interference by officials.’” Murray v. Carrier, supra, at 488 (citation omitted). Second, the District Court’s finding of no deliberate bypass amounted to a conclusion that petitioner’s lawyers did not make a “tactical” or “intentional” decision to forgo the jury challenge. Reed v. Ross, supra, at 13-14.

Hence, the Court of Appeals offered factual rather than legal grounds for its reversal of the District Court’s order, concluding that neither of the two factual predicates for the District Court’s legal conclusion was adequately supported by the record. The Court of Appeals never identified the standard of review that it applied to the District Court’s factual findings. It is well settled, however, that a federal appellate court may set aside a trial court’s findings of fact only if they are “clearly erroneous,” and that it must give “due regard ... to the opportunity of the trial court to judge of the credibility of the witnesses.” Fed. Rule Civ. Proc. 52(a); see Anderson v. Bessemer City, 470 U. S. 564, 573-576 (1985) (describing clearly-erroneous review generally); Wade v. Mayo, 334 U. S. 672, 683-684 (1948) (applying clearly-erroneous review in federal habeas proceeding). We have stressed that the clearly-erroneous standard of review is- a deferential one, explaining that “[i]f the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Anderson v. Bessemer City, supra, at 573-574. After considering the “record viewed in its entirety” in the instant case, we conclude that the Court of Appeals failed properly to apply this standard.

A

The first factual finding rejected by the Court of Appeals is the District Court’s conclusion that the District Attorney’s memorandum was concealed by county officials and therefore was not reasonably available to petitioner’s lawyers. The Court of Appeals acknowledged that the District Court had found these facts. See 816 F. 2d, at 1507. But without examining the record or discussing its obligations under Rule 52(a), the court simply expressed disagreement and substituted its own factual findings for those of the District Court. See ibid, (finding that the memorandum was “not concealed,” but rather “was readily discoverable in the county’s public records”).

Even assuming, somewhat generously, that the Court of Appeals recognized and applied the appropriate standard of review, we cannot agree that the District Court’s factual findings were clearly erroneous. The District Court’s finding of concealment is supported by the nature of the memorandum itself, which was part of the documentary record before the court. See App. 44. The District Attorney’s memorandum was handwritten, unsigned, unstamped, and undesignated — physical characteristics that strongly belie the notion that the document was intended for public consumption. Moreover, the attorney who originally discovered the memorandum testified that he did so as part of a sweeping investigation of 20 to 30 years’ worth of jury lists. Id., at 42. He further testified that the memorandum was “not on the first page of the materials that I was perusing but somewhere within the stack of materials that [the court Clerk] gave me.” Id., at 44. This testimony was not disputed, and the District Court permissibly could have concluded that the memorandum was discovered by mere fortuity and that it would not have been “readily discoverable” had petitioner’s attorneys investigated the jury lists that were .relevant to petitioner’s trial. Indeed, the Court of Appeals identified no evidence in the record — aside from the fact that the memorandum eventually was discovered — that contradicted the District Court’s conclusions about the concealment and availability of the memorandum. The Count of Appeals therefore should not have set aside as clearly erroneous the District Court’s findings on these matters.

B

The second factual finding rejected by the Court of Appeals is the District Court’s conclusion that petitioner’s lawyers did not deliberately bypass the jury challenge. Here the Court of Appeals drew more heavily upon the record below, citing testimony from the evidentiary hearing in the District Court to the effect that petitioner’s lawyers considered a jury challenge, thought they could win it, but decided not to bring the challenge because they were pleased with the jury ultimately empaneled. See 816 F. 2d, at 1506. The Court of Appeals emphasized that petitioner is a white man with a history of assaulting black people and that petitioner’s lawyers therefore were not eager to have more black people on the jury. Ibid. The court also cited testimony from the lawyers that they were satisfied with the jury venire because it contained several members of a charismatic religious group that had seemed sympathetic to petitioner. Ibid. Most damaging to petitioner’s case on habeas was the court’s reliance on the statement of one of his lawyers that “ ‘we made a tactical decision, a knowing, tactical decision not to challenge the array.’” Ibid., quoting 2 Record 13, App. 23.

In the face of this potent testimony from petitioner’s trial lawyers, petitioner argues that even if the lawyers did consider and deliberately bypass a jury challenge, the challenge that they bypassed was not the same challenge that is now being pressed, because the only argument available at the time of trial was a statistical challenge rather than a challenge based on direct evidence of intentional discrimination. The dissenting Circuit Judge also advanced this argument. 816 F. 2d, at 1510-1511 (Clark, J., dissenting). In the alternative, petitioner argues that the District Court’s finding of no deliberate bypass was supported by other testimony and evidence in the record and thus should not have been set aside by the Court of Appeals.

It is not necessary to address the merits of petitioner’s first argument, because we agree that the District Court’s conclusion that petitioner’s lawyers did not deliberately bypass the jury challenge was not clearly erroneous. Although there is significant evidence in the record to support the findings of fact favored by the Court of Appeals, there is also significant evidence in the record to support the District Court’s contrary conclusion, as we describe in more detail below. We frequently have emphasized that “[w]here there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Anderson v. Bessemer City, 470 U. S., at 574, citing United States v. Yellow Cab Co., 338 U. S. 338, 342 (1949), and Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U. S. 844 (1982). We reaffirm that stricture today.

First, the District Court reasonably could have concluded that the lawyers’ statements that they considered but ultimately rejected a jury challenge simply were not credible. Petitioner’s trial lawyers, who were no longer representing him when they testified at the evidentiary hearing, had significant incentive to insist that they had considered every possible angle: they had lost a capital murder trial, and another lawyer had uncovered evidence of serious constitutional error in the proceedings. Moreover, the lawyers’ statements that they thought they could win a jury challenge if they brought it are open to serious doubt. For one thing, the lawyers were quite wrong that they could have won a jury challenge; the underrepresentation of blacks and women on the master jury lists was engineered precisely to avoid a successful statistical challenge. Absent the “smoking gun” of the memorandum or some other direct evidence of discrimination, a statistical challenge would have certainly failed. In addition, the lawyers, when pressed, could offer no explanation for why they thought they could win such a jury challenge. Thus, it was reasonable for the District Court to reject the lawyers’ testimony and conclude that “ignorance” of the strength of the jury challenge — rather than strategy — was the true reason for the lawyers’ failure to raise the claim at trial. App. 93.

Second, the District Court’s refusal to credit the testimony of petitioner’s lawyers was supported by the directly contradictory testimony of two other witnesses. Christopher Coates, the lawyer who discovered the memorandum in the Bailey case, testified that when he told E. R. Lambert, one of petitioner’s lawyers, about the memorandum and the result in the Bailey case, Lambert said: “‘Well, we did not know that... I wish that we had known it because we were looking for every issue to raise because it was a serious case.’” App. 47. In addition, C. Nelson Jarnagin, a lawyer who assisted Lambert on appeal, testified that Lambert told him: ‘“If I’d known about this jury issue prior to trial, I would’ve raised it.’” Id., at 59-60. It was within the District Court’s discretion as factfinder to credit these statements over the potentially self-interested testimony of petitioner’s lawyers. See Anderson v. Bessemer City, supra, at 575 (stressing the special deference accorded determinations regarding the credibility of witnesses). Indeed, the Court of Appeals even noted the conflict in the testimony before the District Court, see 816 F. 2d, at 1507, n. 9, and its failure to defer to the District Court’s findings in light of this recognition is difficult to fathom.

Finally, the District Court’s conclusion that petitioner’s lawyers did not deliberately bypass the jury challenge was supported by events contemporaneous with the jury selection process. Petitioner’s lawyers filed pretrial motions for a change of venue and for a continuance to the next term of Superior Court, both of which, if granted, would have resulted in an entirely different jury venire. See App. 61-65. Both motions cited juror prejudice and claimed that a fair trial was not possible in Putnam County at that time. The District Court permissibly could have concluded that these motions and sworn statements undercut the lawyers’ statements that they were completely satisfied with the jury venire they had drawn. Indeed, the District Court might well have considered this evidence more persuasive than the after-the-fact assessments of petitioner’s lawyers or the other witnesses.

To be sure, the District Court could have been more precise about the bases for its factual conclusions. Indeed, had the District Court identified the record evidence that supported its findings or made clear that it was relying upon credibility determinations, the Court of Appeals might have deferred to its factual findings without dispute. The District Court’s lack of precision, however, is no excuse for the Court of Appeals to ignore the dictates of Rule 52(a) and engage in impermissible appellate factfinding. See Icicle Seafoods, Inc. v. Worthington, 475 U. S. 709, 712-715 (1986). Because there is sufficient evidence in the record considered in its entirety to support the District Court’s factual findings, the Court of Appeals should not have set them aside. Respondent does not dispute that those factual findings are sufficient as a matter of law to support a finding of cause. The Court of Appeals thus erred in holding petitioner’s jury challenge to be procedurally barred from federal habeas review. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion.

It is so ordered.

       The Jury Commissioners were able to determine the race of prospective jurors because the master jury lists were drawn from the list of registered voters in Putnam County, which was maintained on a racially segregated basis. See Bailey v. Vining, Civ. Action No. 76-199 MAC (MD Ga., Aug. 17, 1978), p. 9.

       Georgia law requires that a known challenge to the composition of the grand jury be raised before indictment, see Sanders v. State, 235 Ga. 425, 425-426, 219 S. E. 2d 768, 771 (1975), and that a challenge to the composition of the traverse jury be raised before voir dire commences, see Spencer v. Kemp, 781 F. 2d 1458, 1463-1464 (CA11 1986) (en banc).

       Noting that the State apparently had conceded that the Putnam County jury selection procedures were unconstitutional, the Court of Appeals found the prejudice requirement to be satisfied. 773 P. 2d, at 1145, n. 6.

       See App. 28:
      “THE COURT: But I mean what led you to believe you would win if you challenged [the jury]. . . ?
      “WITNESS PRIOR: I can’t answer that; I think we just had a general knowledge that it probably wasn’t statistically right and I don’t know — I don’t think we had any investigation to back that up.”
      See also id., at 39 (witness Lambert offering no specific answer to the same question).

       To be sure, the testimony of these two witnesses was hearsay, and Jarnagin’s statement was prompted by a leading question on redirect examination. Nonetheless, no objection to either statement was made at the hearing, and the State does not argue that the District Court’s admission of the statements was “plain error” under Federal Rule of Evidence 103(d).

       Respondent seems to argue, however, that even if cause is found to be established, petitioner suffered no cognizable prejudice. See Tr. of Oral Arg. 57-58. This argument is irreconcilable with respondent’s predecessor’s failure to dispute in either the District Court or the Court of Appeals that the finding in Bailey of intentional racial discrimination in the composition of the master jury lists satisfies the requirement of prejudice. See 2 Record 67; Amadeo v. Kemp, 773 F. 2d, at 1145, n. 6. Having conceded this point in both courts below, respondent will not be heard to dispute it here. See Washington v. Yakima Indian Nation, 439 U. S. 463, 476, n. 20 (1979) (alternative ground for affirmance must be properly raised below).


author: Justice Stevens

text:
    FEDERAL DEPOSIT INSURANCE CORPORATION v. MALLEN et al.
    No. 87-82.
    Argued March 22, 1988
    Decided May 31, 1988

      Stevens, J., delivered the opinion for a unanimous Court.

      John Harrison argued the cause for appellant. With him on the briefs were Solicitor General Fried, Assistant Attorney General Willard, Deputy Solicitor General Cohen, Anthony J. Steinmeyer, Michael Kimmel, Ronald R. Glancz, and James A. Clark.

      Mary E. Curtin, by appointment of the Court, 484 U. S. 1055, argued the cause for appellee. With her on the brief was David J. Siegrist.

   Justice Stevens

delivered the opinion of the Court.

The question presented by this appeal concerns the constitutionality of a statutory provision that authorizes the Federal Deposit Insurance Corporation (FDIC) to suspend from office an indicted official of a federally insured bank. The District Court concluded that the statutory post-suspension procedure is unconstitutional because it does not guarantee the suspended officer a sufficiently prompt decision or an unqualified right to present oral testimony. The District Court therefore enjoined the FDIC from enforcing an order suspending appellee from serving as the president and as a director of the Farmers State Bank in Kanawha, Iowa, and from otherwise participating in the conduct of the affairs of any FDIC-insured bank. 667 F. Supp. 652, 662, 664 (1987). We noted probable jurisdiction. 484 U. S. 911 (1987). We reverse.

J — l

In 1966 Congress adopted several amendments to the Federal Deposit Insurance Act to give federal banking agencies more effective regulatory powers to deal with crises in financial institutions. The amendments were designed to protect the interests of depositors and to prevent the potentially debilitating effect of public loss of confidence in the banking industry. See S. Rep. No. 1482, 89th Cong., 2d Sess., 4-5 (1966) (S. Rep.); 112 Cong. Rec. 20080 (1966) (remarks of Sen. Proxmire). Congress therefore enacted 12 U. S. C. § 1818(g)(1) to give the appropriate federal banking agency the authority to take immediate action to suspend an officer or director of an insured bank if he or she is formally charged with a felony involving dishonesty or breach of trust. As originally enacted, § 1818(g)(1) permitted the appropriate banking agency to suspend an indicted bank officer without providing an opportunity to be heard either before or after issuance of the order of suspension.

In 1974, the FDIC invoked its § 1818(g)(1) authority to suspend the president of an Illinois bank who had been indicted for conspiracy to commit mail fraud. That officer successfully challenged the constitutionality of the suspension on the ground that it had deprived him of property without due process of law. The three-judge District Court, in Feinberg v. FDIC, 420 F. Supp. 109 (DC 1976), found that the public interest in prompt action justified a suspension without a prior hearing, but concluded that the officer was constitutionally entitled to a prompt and meaningful post-suspension hearing in which he could attempt to persuade the FDIC to exercise its discretion to revoke the suspension. In its opinion, the District Court emphasized that the 1966 statute had given the FDIC standardless discretion to suspend or not to suspend an indicted bank official.

In response to the Feinberg decision, in 1978 Congress amended § 1818(g) by incorporating standards in subsection (1) to guide the FDIC in the exercise of its discretion, and by enacting a new subsection (3) to give the suspended officer the right to a post-suspension hearing before the agency to demonstrate that his or her continued service would not jeopardize the interests of depositors or impair public confidence in the bank. It is the adequacy of the post-suspension procedure authorized by subsection (3) that is at issue in this appeal.

II

On December 10, 1986, appellee was indicted by a federal grand jury in the Northern District of Iowa. He was charged with making false statements to the FDIC in violation of 18 U. S. C. § 1001 and with making false statements to the Farmers State Bank with the purpose of influencing the actions of the FDIC in violation of 18 U. S. C. § 1014, offenses that are punishable by imprisonment for more than one year, and that unquestionably involve dishonesty or breach of trust. At the time of the indictment, appellee was the president and a director of a federally insured bank. Thus, if the FDIC found that his continued service “[might] pose a threat to the interests of the bank’s depositors or [might] threaten to impair public confidence in the bank,” the requirements specified in § 1818(g)(1) for a suspension order would be satisfied.

On January 20, 1987, the FDIC issued an ex parte order containing the necessary findings, suspending appellee as the president and as a director of the bank and prohibiting him “from further participation in any manner in the conduct of the affairs of the Bank, or any other bank insured by the FDIC.” App. to Juris. Statement 28a. A copy of the order was served on appellee on January 26, 1987. Four days later, appellee’s attorney made a written request for “an immediate administrative hearing” at which he proposed to offer “both oral testimony and written evidence” to establish that appellee’s continued service was not likely to pose a threat to the interests of the bank’s depositors or to threaten public confidence in the bank. App. 26. The letter requested that the hearing be expedited and commence no later than February 9, 1987.

After various communications with appellee’s counsel, the FDIC’s regional counsel, and the Administrative Law Judge who was selected to conduct the hearing, it was decided that a hearing would be held on February 18, 1987. 667 F. Supp., at 655. In those communications, the FDIC’s regional counsel took the position that oral testimony would not be necessary. App. 28-30. The hearing officer, however, never had an opportunity to decide whether to receive such testimony because the administrative proceedings were interrupted by this litigation.

On February 6, 1987, appellee filed his complaint against the FDIC in the Federal District Court for the Northern District of Iowa and promptly moved for a preliminary injunction. After receiving evidence in the form of affidavits and exhibits, and after hearing oral argument — but no oral testimony — the District Court entered an order declaring the suspension “null and void” and enjoining the FDIC from enforcing it. The District Court rejected appellee’s argument that the order was invalid because it was not preceded by a hearing, 667 F. Supp., at 658, but held that the post-suspension process was “constitutionally inadequate because it does not contemplate a ‘prompt’ disposition,” id., at 659, and also “because it fails to provide for a hearing at which oral evidence can be presented,” id., at 660. The District Court made it clear that it was expressing no opinion on the merits of the suspension; its decision rested entirely on the perceived procedural shortcomings in the post-suspension process.

f — H I — I Í-H

It is undisputed that appellee’s interest in the right to continue to serve as president of the bank and to participate in the conduct of its affairs is a property right protected by the Fifth Amendment Due Process Clause. The District Court and the parties correctly recognized that the FDIC cannot arbitrarily interfere with appellee’s continuing employment relationship with the bank, nor with his interest as a substantial stockholder in the bank’s holding company. See Feinberg v. FDIC, 173 U. S. App. D. C. 120, 125, 522 F. 2d 1335, 1340 (1975); cf. Cleveland Bd. of Education v. Loudermill, 470 U. S. 532, 538-541 (1985). It is also undisputed that the FDIC’s order of suspension affected a deprivation of this property interest. Accordingly, appellee is entitled to the protection of due process of law.

“Once it is determined that due process applies, the question remains what process is due.” Morrissey v. Brewer, 408 U. S. 471, 481 (1972). Here again, we at least start with substantial agreement. Appellee does not contend that he was entitled to an opportunity to be heard prior to the order of suspension. An important government interest, accompanied by a substantial assurance that the deprivation is not baseless or unwarranted, may in limited cases demanding prompt action justify postponing the opportunity to be heard until after the initial deprivation. See Barry v. Barchi, 443 U. S. 55, 64-66 (1979); Dixon v. Love, 431 U. S. 105, 112-115 (1977); North American Cold Storage Co. v. Chicago, 211 U. S. 306, 314-321 (1908). In this case, the postponement of the hearing is supported by such an interest. The legislation under scrutiny is premised on the congressional finding that prompt suspension of indicted bank officers may be necessary to protect the interests of depositors and to maintain public confidence in our banking institutions. See S. Rep., at 4-5; 112 Cong. Rec. 20080 (1966) (remarks of Sen. Proxmire). This interest is certainly as significant as the State’s interest in preserving the integrity of the sport of horse racing, an interest that we deemed sufficiently important in Barry v. Barchi, supra, at 64-65, to justify a brief period of suspension prior to affording the suspended trainer a hearing. Moreover, as in Barchi, appellee’s suspension was supported by findings that assure that the suspension was not baseless. A grand jury had determined that there was probable cause to believe that appellee had committed a felony. Such an ex parte finding of probable cause provides a sufficient basis for an arrest, which of course constitutes a temporary deprivation of liberty. See Baker v. McCollan, 443 U. S. 137, 142, 143 (1979). It should certainly be sufficient, when coupled with the congressional finding that a prompt suspension is important to the integrity of our banking institutions, to support the order entered in this case on January 20, 1987, even though the FDIC did not provide appellee with a separate pre-suspension hearing. The three-judge District Court in the Feinberg case, the District Court in this case, and this Court are all in accord on that proposition.

We cannot agree with the District Court, however, that appellee was denied a sufficiently prompt post-deprivation hearing. As our cases indicate, the District Court was properly concerned about the importance of providing prompt post-deprivation procedures in situations in which an agency’s discretionary impairment of an individual’s property is not preceded by any opportunity for a pre-deprivation hearing. See Barchi, supra, at 66.. However, the District Court seems to have been improperly concerned with the danger of an interminable delay by the agency, rather than by what would have happened in this case if the proceedings had not been interrupted, or indeed, what might have happened if the FDIC had been as dilatory as the statute permits. For even though there is a point at which an unjustified delay in completing a post-deprivation proceeding “would become a constitutional violation,” Cleveland Bd. of Education v. Loudermill, 470 U. S., at 547, the significance of such a delay cannot be evaluated in a vacuum. In determining how long a delay is justified in affording a post-suspension hearing and decision, it is appropriate to examine the importance of the private interest and the harm to this interest occasioned by delay; the justification offered by the Government for delay and its relation to the underlying governmental interest; and the likelihood that the interim decision may have been mistaken. Cf. Logan v. Zimmerman Brush Co., 455 U. S. 422, 434 (1982); Mathews v. Eldridge, 424 U. S. 319, 334-335 (1976).

Section 1818(g)(3) requires the FDIC to hold a hearing within 30 days of a written request for an opportunity to appear before the agency to contest a suspension and requires that it notify the suspended officer of its decision within 60 days of the hearing. Thus, at maximum, the suspended officer receives a decision within 90 days of his or her request for a hearing. In this case, the agency reported that it would have been able to issue a written decision within 30 days after the hearing. In addition, the initial hearing was scheduled to take place — had it not been interrupted by the preliminary injunction — 19 days after it was formally requested.

Appellee’s interest in continued employment is without doubt an important interest that ought not be interrupted without substantial justification. We have repeatedly recognized the severity of depriving someone of his or her livelihood. See Brock v. Roadway Express, Inc., 481 U. S. 252, 263 (1987); Loudermill, 470 U. S., at 543. Yet, even assuming that the FDIC required the complete 90 days to hear the case and reach its decision, we are not persuaded that this exceeds permissible limits. In fact, a suspended bank officer has an interest in seeing that a decision concerning his or her continued suspension is not made with excessive haste. The statute imposes a permissive standard for continuing a suspension, and presumably, when in doubt, the agency may give greater weight to the public interest and leave the suspension in place, particularly when the suspension does not impose the additional harm of a significant, incremental injury to reputation. Through the return of the indictment, the Government has already accused the appellee of serious wrongdoing. The incidental suspension is not likely to augment this injury to the officer’s reputation. We thus conclude that the 90-day period is not so long that it will always violate due process. In many cases, perhaps most, it will be justified by an important government interest coupled with factors minimizing the risk of an erroneous deprivation. Cf. id., at 546-547 (9-month delay in final decision not “unconstitutionally lengthy per se”).

The magnitude of the public interest in a correct decision counsels strongly against any constitutional imperative that might require overly hasty decisionmaking. The same governmental interest that justifies permitting suspension prior to the opportunity to be heard extends to this analysis as well. Congress has determined that the integrity of the banking industry requires that indicted bank officers be suspended until it is determined that they do not pose a threat to the interests of the bank’s depositors or threaten to undermine public confidence in the bank. To return these officers to a position of influence in the conduct of the bank’s affairs prior to an opportunity to weigh the evidence carefully would threaten these interests in the same way as allowing them to remain in office from the start. Thus, the public has a strong interest in seeing the ultimate decision made in a considered and deliberate manner. Congress certainly acted within constitutional bounds in determining that 30 days might be required to set and prepare for the hearing and that in some cases another 60 days may be needed to reach a decision. The decision is a serious one and may involve complex issues and an extensive evidentiary record. See Feinberg, 420 F. Supp., at 120 (hearing would involve a “complex legal question” and “subtle interrelation of fact and policy”).

Moreover, and perhaps most significantly, there is little likelihood that the deprivation is without basis. The returning of the indictment establishes that an independent body has determined that there is probable cause to believe that the officer has committed a crime punishable by imprisonment for a term in excess of one year. This finding is relevant in at least two important ways. First, the finding of probable cause by an independent body demonstrates that the suspension is not arbitrary. Second, the return of the indictment itself is an objective fact that will in most cases raise serious public concern that the bank is not being managed in a responsible manner. In addition, when § 1818(g) was initially enacted, Congress indicated that suspensions would be “virtually routine.” S. Rep., at 2. The later amendments prompted by the Feinberg decision do not suggest that Congress has disavowed this expectation; rather, the standard adopted by Congress — “may pose a threat to the bank’s depositors or may threaten to impair public confidence in the bank” — would appear to be easily satisfied in the case of bank officials charged with crimes involving dishonesty. One would expect that a decision not to suspend would be the exception. It is thus unlikely that any particular suspension would be erroneously imposed.

We are therefore persuaded that the congressionally recognized interest in maintaining confidence in our banking institutions, coupled with the finding of probable cause that the officer has committed a felony involving dishonesty, is sufficient ground for a regulatory suspension of up to 90 days without the benefit of a post-suspension ruling. In reaching a contrary result, the District Court attached importance to the fact that the criminal proceedings might be concluded more promptly than the FDIC proceeding. The Court reasoned that because the Speedy Trial Act requires that a federal criminal trial take place within 70 days of indictment — plus, of course, time properly excluded under the Act — the criminal trial might well take place before the FDIC need reach a decision. See 18 U. S. C. §3161. The Court accordingly concluded that the statutorily required hearing is • “a toothless remedy for the plaintiffs since the agency can postpone a disposition until after the criminal trial has concluded.’’,. 667 F. Supp., at 659. “It is a remedy only if the agency chooses for it to be a remedy.” Ibid.

We find the possibility that a suspended officer’s criminal trial may conclude before expiration of the 90-day period from request for a hearing to decision quite irrelevant. If appellee had been promptly acquitted, the basis for the suspension would have disappeared and the order would have been vacated. On the other hand, a conviction merely strengthens the case for maintaining the suspension and provides grounds for suspension under § 1829 as well. The criminal trial merely constitutes a potentially intervening factor that may require that the suspension be promptly vacated; it is difficult to conceive of how this intervening factor interferes with appellee’s due process rights.

Nor is this case controlled by our decision in Barry v. Barchi, 443 U. S. 55 (1979). In Barchi, a horse trainer’s license was suspended for 15 days after a horse he trained was discovered to have had drugs in its system during a race. The state regulatory scheme raised a rebuttable presumption that the trainer either administered the drug or was negligent in protecting against such an occurrence. The trainer claimed that he neither administered the drug nor was negligent. In considering the administrative scheme, we first concluded that the State acted within the bounds of due process in suspending the trainer without a pre-suspension hearing. However, we concluded that the scheme violated due process because “it [was] as likely as not” that the trainer would irretrievably suffer the full penalty before the State would be put to its proof at a post-suspension hearing. Id., at 66. In such situations, the State must assure a prompt post-suspension hearing, “without appreciable delay.” Ibid. In this case by contrast, the appellee is not denied a meaningful opportunity to be heard. Rather than closing the door to the benefit of an opportunity to be heard, the possibility that the criminal trial may precede the FDIC hearing simply provides an additional forum at which to demonstrate that the suspension was unjustified. If the official is successful in the criminal proceeding, then due process has prevailed and the order of suspension must be vacated. . If he or she is convicted, the order of suspension is further supported.

We also reject appellee’s contention that § 1818(g) violates due process because it does not guarantee an opportunity to present oral testimony. The statute provides that the suspended officer may “submit written materials (or, at the discretion of the agency, oral testimony)” and present oral argument. § 1818(g)(3). The- relevant regulation, in turn, delegates the decision whether to accept oral testimony to the hearing officer. See 12 CFR § 308.61(e) (1987). In rejecting appellee’s contention we may assume that there are post-suspension proceedings under § 1818(g) in which oral testimony is essential to enable the hearing officer to make a fair appraisal of the impact of a suspended officer’s continued service on the bank’s security and reputation. Indeed, we may assume that this is such a ease. The problem with ap-pellee’s position, however, is that he did not give the hearing officer an opportunity to decide whether to hear whatever testimony he might have adduced. No offer of proof was ever made, and thus certainly was not rejected^ For all we know, the hearing officer might have accepted such evidence; or if he rejected it, he might have been entirely correct in deciding that it was merely cumulative to material that was adequately covered by written submissions or that it was otherwise unnecessary or improper. A statute such as this is not to be held unconstitutional simply because it may be applied in an arbitrary or unfair way in some hypothetical case not before the Court. There is no inexorable requirement that oral testimony must be heard in every administrative proceeding in which it is tendered. See Califano v. Yamasaki, 442 U. S. 682, 696 (1979). The District Court’s reliance on the absence of such a guarantee in this case was therefore misplaced.

IV

The post-suspension procedure authorized by § 1818(g)(3) is not unconstitutional on its face; nor do we find any unfairness in the FDIC’s use of that procedure in this case. The District Court’s preliminary injunction is accordingly reversed.

It is so ordered.

       See Financial Institutions Supervisory Act of 1966, Pub. L. 89-695, Title II, 80 Stat. 1046-1055, 12 U. S. C. § 1818.

       The statute defines “appropriate Federal banking agency” by reference to the type of bank subject to regulation. See 12 U. S. C. § 1813(q). For example, “in the case of a national banking association, a District bank, or a Federal branch or agency of a foreign bank,” the Comptroller of the Currency is the “appropriate Federal banking agency.” § 1813(q)(1). Section 1813(q)(3) provides that “in the case of a State nonmember insured Bank ... or a foreign bank having an insured branch,” the FDIC is the “appropriate Federal banking agency.” It is undisputed that in this case the FDIC is the appropriate federal banking agency.

       As enacted in 1966, 12 U. S. C. § 1818(g)(1) provided:
      “Whenever any director or officer of an insured bank, or other person participating in the conduct of the affairs of such bank, is charged in any information, indictment, or complaint authorized by a United States attorney, with the commission of or participation in a felony involving dishonesty or breach of trust, the appropriate Federal banking agency may, by written notice served upon such director, officer, or other person suspend him from office and/or prohibit him from further participation in any manner in the conduct of the affairs of the bank. A copy of such notice shall also be served upon the bank. Such suspension and/or prohibition shall remain in effect until such information, indictment, or complaint is finally disposed of or until terminated by the agency. In the event that a judgment of conviction with respect to such offense is entered against such director, officer, or other person, and at such time as such judgment is not subject to further appellate review, the agency may issue and serve upon such director, officer, or other person' an order removing him from office and/or prohibiting him from further participation in any manner in the conduct of the affairs of the bank except with the consent of the appropriate agency. A copy of such order shall also be served upon such bank, whereupon such director or officer shall cease to be a director or officer of such bank. A finding of not guilty or other disposition of the charge shall not preclude the agency from thereafter instituting proceedings to remove such director, officer, or other person from office and/or to prohibit further participation in bank affairs, pursuant to paragraph (1), (2), (3), (4), or (7) of subsection (e) of this section.” 80 Stat. 1050.

       The court noted the breadth of discretion afforded the agency and intimated that if suspension was mandatory upon indictment, no pre- or post-suspension hearing would be required:
      “It appears arguable that if the issuance of a Notice and Order of Suspension were automatic upon the return of an indictment or the filing of an information or complaint, then there might not be a need for a hearing or other incidents of due process. Such an argument could only retain its vitality though if there were no agency determination required prior to the issuance of the Notice and Order of Suspension. But this is not the case. Section 1818(g)(1), by its very language, requires that the agency decide whether the crime charged is one ‘involving dishonesty or breach of trust.’ Given the variety and nature of state offenses, it is apparent that the agency must exercise discretion as to this issue. This discretion, in fact, is enhanced by the lack in the statute of a definition of a crime of ‘dishonesty or breach of trust.’ But this is not the only discretionary question posed by the statute. The statute interjects an added element of discretion by providing that the agency ‘may’ issue a Notice and Order of Suspension; it is not required to do so. Furthermore, when the statute is construed it appears clear that even if the agency determines that the crime charged is one involving dishonesty or a breach of trust, the agency is still given — and in fact has exercised — the discretion not to issue a Notice and Order of Suspension. In addition, it is significant for purposes of due process that no specific guidelines are provided in the statute for the exercise of this discretion. The only ascertainable guidance is the general purpose of the statute: to insure the public’s confidence in the stability of the financial institution.” 420 F. Supp., at 116-117 (footnotes omitted).

       As amended in 1978, 12 U. S. C. § 1818(g)(1) provided:
      “Whenever any director or officer of an insured bank, or other person participating in the conduct of the affairs of such bank, is charged in any information, indictment, or complaint authorized by a United States attorney, with the commission of or participation in a crime involving dishonesty or breach of trust which is punishable by imprisonment for a term exceeding one year under State or Federal law, the appropriate Federal banking agency may, if continued service or participation by the individual may pose a threat to the interests of the bank’s depositors or may threaten to impair public confidence in the bank, by written notice served upon such director, officer, or other person, suspend him from office or prohibit him from further participation in any manner in the conduct of the affairs of the bank. A copy of such notice shall also be served upon the bank. Such suspension or prohibition shall remain in effect until such information, indictment, or complaint is finally disposed of or until terminated by the agency. In the event that a judgment of conviction with respect to such crime is entered against such director, officer, or other person, and at such time as such judgment is not subject to further appellate review, the agency may, if continued service or participation by the individual may pose a threat to the interests of the bank’s depositors or may threaten to impair public confidence in the bank, issue and serve upon such director, officer, or other person an order removing him from office or prohibiting him from further participation in any manner in the conduct of the affairs of the bank except with the consent of the appropriate agency. A copy of such order shall also be served upon such bank, whereupon such director or officer shall cease to be a director or officer of such bank. A finding of not guilty or other disposition of the charge shall not preclude the agency from thereafter instituting proceedings to remove such director, officer, or other person from office or to prohibit further participation in bank affairs, pursuant to paragraph (1), (2), or (3) of subsection (e) of this section. Any notice of suspension or order of removal issued under this paragraph shall remain effective and outstanding until the completion of any hearing or appeal authorized under paragraph (S) hereof unless terminated by the agency.” 92 Stat. 3665-3666 (the language emphasized was added in 1978).

       Title 12 U. S. C. § 1818(g)(3) reads as follows:
      “Within thirty days from service of any notice of suspension or order of removal issued pursuant to paragraph (1) of this subsection, the director, officer, or other person concerned may request in writing an opportunity to appear before the agency to show that the continued service to or participation in the conduct of the affairs of the bank by such individual does not, or is not likely to, pose a threat to the interests of the bank’s depositors or threaten to impair public confidence in the bank. Upon receipt of any such request, the appropriate Federal banking agency shall fix a time (not more than thirty days after receipt of such request, unless extended at the request of the concerned director, officer, or other person) and place at which the director, officer, or other person may appear, personally or through counsel, before one or more members of the agency or designated employees of the agency to submit written materials (or, at the discretion of the agency, oral testimony) and oral argument. Within sixty days of such hearing, the agency shall notify the director, officer, or other person whether the suspension or prohibition from participation in any manner in the conduct of the affairs of the bank will be continued, terminated, or otherwise modified, or whether the order removing said director, officer or other person from office or prohibiting such individual from further participation in any manner in the conduct of the affairs of the bank will be rescinded or otherwise modified. Such notification shall contain a statement of the basis for the agency’s decision, if adverse to the director, officer or other person. The Federal banking agencies are authorized to prescribe such rules as may be necessary to effectuate the purposes of this subsection.” 92 Stat. 3666.

       Appellee was convicted on both counts. The District Court, however, set aside the 18 U. S. C. § 1014 .conviction on the ground that the indictment failed to allege the essential elements of the crime. On appeal, the Court of Appeals for the Eighth Circuit affirmed the 'conviction under 18 U. S. C. § 1001 and reversed the District Court’s decision setting aside the conviction under § 1014. United States v. Mallen, 843 F. 2d 1096 (1988).
      Appellee’s conviction does not moot this case. A § 1818(g) suspension remains in effect until the charge against the bank official “is finally disposed of or until terminated by the agency.” § 1818(g)(1). The structure of the statute makes clear that a charge is not “finally disposed of” until the opportunity for appellate review is exhausted. Section 1818(g)(1) provides that if a suspended official is convicted, the agency may remove that individual from office once the judgment is no longer “subject to further appellate review.” It is unlikely that Congress intended to create a window between suspension and removal for convicted bank officials. Because appellee has not yet exhausted his opportunity for appellate review, the § 1818(g) suspension remains in effect. On May 10, 1988, the Eighth Circuit denied appellee’s petition for rehearing and suggestion for rehearing en bane. He has 60 days from that date to file a petition for certiorari. See this Court’s Rule 20.1.
      Nor is the action mooted by appellee’s suspension under 12 U. S. C. § 1829. That section provides: “Except with the written consent of the [FDIC], no person shall serve as a director, officer, or employee of an insured bank who has been convicted ... of any criminal offense involving dishonesty or a breach of trust. . . .” On May 29, 1987, the judge presiding over appellee’s criminal trial granted the FDIC’s motion for a preliminary injunction pursuant to § 1829, prohibiting appellee from serving “as a director, officer or employee of the Farmers State Bank, Kanawha, Iowa.” FDIC v. Mallen, 661 F. Supp. 1003, 1011 (ND Iowa 1987). In certain respects, the § 1818(g) suspension is broader in scope than the § 1829 suspension, thus giving reinstatement of the § 1818(g) suspension at least a marginal effect. For example, § 1818(j) imposes criminal penalties upon anyone subject to a § 1818(g) suspension who “votes for a director ... of any bank.” Section 1829 does not impose a similar prohibition.
      Finally, counsel informs us that after the jurisdictional statement was filed in this case, the Iowa Superintendent of Banking placed the Farmers State Bank in receivership. The FDIC, which was appointed receiver, executed a “purchase and assumption” transaction, whereby the deposit liabilities of the Farmers State Bank were assumed by another bank. The building that once housed the Farmers State Bank now serves as a branch for the assuming bank. Yet, even though § 1818(g) simply authorizes the suspension of an indicted official as to a specified bank — a bank that in this case at least arguably no longer exists — we are persuaded that the order of suspension and the District Court’s nullification of that order are not moot. The Farmers State Bank has challenged the order of receivership and the “purchase and assumption” transaction. Brief for Appellant 13, n. 11. That challenge is currently before the Supreme Court of Iowa. In the matter of the Receivership of Farmers State Bank, Kanawha, Iowa v. Bernau, No. 87-1199. Because the Farmers State Bank has not yet been finally dissolved as a corporate entity and because the State Supreme Court might invalidate the receivership, we conclude that the order of suspension is not meaningless and thus further conclude that it forms an adequate prerequisite for coverage under § 1818(j). Moreover, we note that even confirmation of the receivership might not moot the order entered pursuant to § 1818(g). Mere changes in corporate structure would not necessarily terminate an otherwise effective order.

       In September and October 1986, extensive hearings were held to determine whether to suspend appellee from office pursuant to §§ 1818(e)(1), (e)(5). Those subsections permit the appropriate federal banking agency, after conducting a hearing, to remove or suspend a director or officer of an insured bank from office for various forms of misconduct. However, because the presiding Administrative Law Judge recused himself before rendering a decision, the proceedings were never completed. 667 F. Supp. 652, 655, n. 1 (1987).

       Although the District Court assumed that appellee had an unqualified right to offer oral testimony at some stage of the administrative proceeding, it expressed the opinion that such testimony could be deferred until after an adverse ruling on appellee’s challenge to the suspension order. It stated:
      “A hearing limited to written submissions and oral argument as described in 12 CFR Section 308.61 could pass constitutional muster if it provided for a sufficiently prompt resolution and if an adverse ruling was followed by a hearing at which oral evidence could be presented. However, neither the Code of Federal Regulations, nor the statute provide for a prompt resolution of such a hearing, nor do they provide for a later opportunity to present live testimony.” Id., at 661.

       Section 1818(g)(1) authorizes the suspension of a bank officer “charged in any information, indictment, or complaint authorized by a United States attorney, with the commission of or participation in a crime involving dishonesty or breach of trust which is punishable by imprisonment for a term exceeding one year under State or Federal law . . . .” Federal crimes punishable by imprisonment for a term in excess of one year must be prosecuted by indictment, unless the defendant waives this right. Fed. Rules Crim. Proc. 7(a) and (b).

       In its order denying the FDIC’s motion to alter or amend its injunction, the District Court wrote:
      “The Federal Deposit Insurance Corporation (FDIC) now requests that this Court alter the relief that it ordered. The FDIC proposed that it could hold a post-suspension hearing under 12 U. S. C. Section 1818(g) on March 9,1987; with an oral disposition within 15 days (March 26,1987); and written disposition within 30 days (April 8, 1987). The Court finds that this proposed schedule suffers from the same difficulties that prompted this Court’s decision of February 17,1987. Mallen’s criminal trial is set for March 16, 1987, and it is estimated that it will last one week. The FDIC’s disposition concerning the suspension under this proposed schedule would be entered only after Mallen has ‘suffered the full penalty imposed’ by the suspension. This procedure does not offer a sufficiently prompt process as required under Barry v. Barchi, 443 U. S. 55, 66 . . . (1979).” 667 F. Supp., at 662-663.

       Section 1829 provides:
      “Except with the written consent of the Corporation, no person shall serve as a director, officer, or employee of an insured bank who has been convicted, or who is hereafter convicted, of any criminal offense involving dishonesty or a breach of trust. For each willful violation of this prohibition, the bank involved shall be subject to a penalty of not more than $100 for each day this prohibition is violated, which the Corporation may recover for its use.”
      Imposition of a § 1829 suspension or removal does not moot a § 1818(g) suspension. See n. 7, supra.

       The three-judge District Court in Feinberg concluded that oral testimony is not constitutionally required in FDIC § 1818(g) suspension hearings:
      “While the hearing need not be a trial-type hearing, notice, the opportunity to be represented by counsel, for written submissions, and for oral argument, appear mandated by the circumstances. , Certainly notice of the right to be heard is essential. See Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306 . . . (1950). The assistance of counsel is also needed in these cases, particularly since the hearing will involve a complex legal question: whether the crime charged is one involving dishonesty or breach of trust, as well as a question requiring the subtle interrelation of fact and policy: the effect upon the public of the indictees holding office and participating in the affairs of the bank. As to the presentation of live evidence, the ‘nature of the relevant inquiry,’ 424 U. S. 343, . . . does not seem to require any more than written submission. However, oral argument would be necessary.” 420 F. Supp., at 120 (footnotes omitted).