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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-40884
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
BENNY L. RUSK,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
September 23, 1996
Before HIGGINBOTHAM, WIENER, and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
I. FACTS AND PROCEEDINGS BELOW
From 1952 to 1989, Benny Rusk worked at First State Bank of
Liberty, Texas. By 1988, Rusk had become president of the bank.
In addition, Rusk owned a majority of the bank's stock and was one
of its directors.
On October 14, 1988, the FDIC conducted an examination of the
bank. Bank examiners discovered numerous violations of banking
regulations. John Schmalzer, the examiner-in-charge, reported that

loans ostensibly made to other individuals were actually for Rusk's
benefit. In addition, Rusk allegedly received $214,000 that had
been expensed by the bank as legal and professional fees and
$175,000 from the bank's credit life rebate account. In December
1988, Schmalzer recommended to the FDIC Regional Director that Rusk
be suspended from participating in the bank's affairs and be
ordered to cease and desist from using bank funds to service his
own personal loans.
The FDIC subsequently determined to initiate debarment
proceedings against Rusk pursuant to 12 U.S.C. § 1818(e). The FDIC
informed the bank of its intent and, on April 27, 1989, served Rusk
with the Notice of Intention to Remove from Office and to Prohibit
from Participation. Prior to the filing of the Notice, Rusk
returned $389,769 to the bank as restitution for his
misappropriation of the bank's funds from the account for legal and
professional fees and from the credit life rebate account.
On July 27, 1989, Rusk entered into a Stipulation and Consent
to an Issuance of an Order of Removal. Pursuant to the
Stipulation, Rusk consented to the entry of an order prohibiting
him from participating in the bank's affairs and, further, from
participating in the affairs of any bank insured by the FDIC
without the FDIC's prior written consent. On January 26, 1990, the
FDIC issued an order to that effect.
On March 11, 1992, Rusk was charged in a ten-count indictment
arising from the foregoing activities. The indictment charges Rusk
with conspiracy to make false entries; four counts of false
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entries; three counts of misapplication of bank funds; and two
counts of false statements to the IRS. Rusk moved to dismiss the
indictment, alleging that the prior administrative proceedings
constitute punishment for purposes of double jeopardy and therefore
bar the instant criminal prosecution. The district court denied
the motion. Rusk now appeals that denial. The district court
stayed the criminal proceedings pending this appeal.

II. ANALYSIS
Rusk argues that the criminal indictment constitutes multiple
punishment for the same offense adjudicated in the earlier FDIC
administrative proceedings. Relying on United States v. Halper,
490 U.S. 435 (1989), Rusk contends that the sanctions imposed by
the FDIC were not solely remedial and, therefore, qualify as
punishment under Supreme Court precedent. Rusk points to three
sanctions allegedly imposed by the FDIC: (1) the $389,769
restitution payment; (2) the debarment order; and (3) the drop in
the value of Rusk's bank stock allegedly caused by the debarment
order.
The restitution payment does not constitute punishment
because it is purely remedial. The restitution payment corresponds
exactly to the amount Rusk embezzled from the bank's accounts.
Stated another way, the payment simply returns to the bank what he
stole from it; it does not serve a punitive purpose.
This circuit has yet to address whether a debarment order
issued in an administrative proceeding constitutes punishment for
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purposes of double jeopardy. Other circuits that have addressed
the issue in related contexts have uniformly held that such orders
do not constitute punishment. See DiCola v. Food & Drug Admin., 77
F.3d 504, 507 (D.C. Cir. 1996) (holding debarment under 21 U.S.C.
§ 335a(a) did not constitute punishment for purposes of double
jeopardy); Bae v. Shalala, 44 F.3d 489, 496 (7th Cir. 1995) (same);
United States v. Furlett, 974 F.2d 839, 844 (7th Cir. 1992)
(holding CFTC debarment did not constitute punishment); United
States v. Bizzell, 921 F.2d 263, 267 (10th Cir. 1990) (holding 3-
year HUD debarment did not constitute punishment). Furthermore,
those circuits to consider debarment orders issued under the same
statutory authority as here, 12 U.S.C. § 1818, have held those
orders do not constitute punishment. United States v. Stoller, 78
F.3d 710, 724 (1st Cir. 1996); United States v. Hudson, 14 F.3d
536, 542 (10th Cir. 1994).
As those courts have explained, debarment orders do not serve
a punitive purpose but rather the remedial goal of protecting the
banking industry:
[T]he OCC's use of debarment as a means of protecting the
integrity of the banking system and the interests of the
depositors is a legitimate remedial purpose that need not
necessarily be defined as also serving as deterrence or
retribution.
Hudson, 14 F.3d at 541-42. Similarly, after examining § 1818's
text and legislative history, as well as the particular nature of
the debarment there at issue, Judge Selya concluded that "the root
purpose of debarment . . . [is] to purge sensitive industries of
corruption and thereby protect the public. This purpose, evident
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here, is essentially remedial in nature." Stoller, 78 F.3d at 724.
We agree that the debarment order was remedial, not punitive.
Finally, Rusk contends that the loss in stock value was
attributable to the FDIC's debarment order and, therefore,
constitutes punishment by the FDIC. This argument is without
merit.
Even accepting that the loss in stock value was attributable
to the FDIC debarment order--itself a debatable proposition--the
loss of stock is a collateral consequence of the debarment order.
The FDIC order did not mandate that Rusk forfeit his stock or that
the stock go down in value. Rather, the loss in stock value was
the market's reaction to Rusk's departure from the bank. Rusk
cites no authority that a collateral consequence of a sanction is
part of the sanction itself.
In short, the FDIC's sanctions did not punish Rusk but rather
served remedial purposes. Consequently, the criminal prosecution
does not constitute an attempt to impose multiple punishments for
the same offense.
The district court's denial of Rusk's motion is therefore
AFFIRMED.
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