 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued April 3, 2018               Decided December 7, 2018

                        No. 17-1188

                   WILLIAM R. BLANTON,
                       PETITIONER

                              v.

      OFFICE OF THE COMPTROLLER OF THE CURRENCY,
                      RESPONDENT


  On Petition for Review of an Order of the Final Decision
 and Order of the Office of the Comptroller of the Currency


     Craig E. Bertschi, pro hac vice, argued the cause for
petitioner. On the briefs were Mary C. Zinsner and Syed M.
Reza.

     Amber N. Melton, Attorney, Office of the Comptroller of
the Currency, argued the cause for respondent. With her on the
brief were Charles M. Steele, Deputy Chief Counsel, and
Gregory F. Taylor, Douglas B. Jordan, and Daniel Prieve,
Attorneys.
                              2
    Before: TATEL, SRINIVASAN and MILLETT, Circuit Judges.

    Opinion for the Court filed by Circuit Judge SRINIVASAN.

     SRINIVASAN, Circuit Judge: The Comptroller of the
Currency assessed a $10,000 civil money penalty against
William Blanton, the former Chief Executive Officer of a
Georgia bank. The penalty was based on two distinct sets of
allegations against Blanton. First, the Comptroller found that
Blanton engaged in unfair and unsound banking practices by
allowing the bank to honor repeated overdrafts in the accounts
of a frequent customer. Second, the Comptroller determined
that Blanton caused the bank to file materially inaccurate
reports concerning the bank’s financial condition.

    Blanton seeks review of the Comptroller’s decision. We
uphold the Comptroller’s determination concerning Blanton’s
involvement in honoring the overdrafts. But we set aside the
Comptroller’s decision with regard to the financial reports.

                              I.

     United Americas Bank, chartered in the late 1990s, aimed
to serve the growing Hispanic community in Atlanta, Georgia.
In 2007, William Blanton acquired a shareholder interest in the
Bank. He assumed a seat on the Bank’s Board of Directors and
served as the Bank’s Vice Chairman.

    In 2009 and 2010, the Bank underwent an examination by
the Office of the Comptroller of the Currency (OCC), the
federal agency tasked with supervising national banks. The
OCC determined that the Bank was in “an unsafe and unsound
condition” and that its management was “critically deficient.”
ALJ Decision, William R. Blanton, AA–EC–2015–24 (Office
                               3
of the Comptroller of the Currency Jan. 19, 2017) at 2, J.A.
137.

     At Blanton’s behest, the Board asked the Chief Executive
Officer to resign, and the Board chose Blanton to serve as
interim CEO during the search for a permanent replacement.
The OCC authorized the arrangement, permitting Blanton to
serve in the interim position until September 2010. At that
time, the Board sought to retain Blanton as the permanent CEO,
but Blanton neglected to submit the proper paperwork to secure
the OCC’s approval. In September 2010, he resigned as CEO
and Vice Chairman, and, one month later, resigned from the
Board. Despite efforts by the OCC and the Bank to revive its
financial condition, the Bank closed its doors in December
2010 and went into receivership.

     In June 2015, the OCC issued a Notice of Assessment of a
civil money penalty against Blanton. The OCC can assess a
civil money penalty of up to $25,000 per day if it determines,
as relevant here, that a federal bank affiliate violated any law
or regulation or recklessly engaged in an unsafe or unsound
banking practice, and that the violation or practice is part of a
pattern of misconduct. See 12 U.S.C. § 1818(i)(2)(B). In this
case, the OCC’s assessment arose from Blanton’s involvement
while interim CEO in two sets of bank transactions. The facts
of each set of transactions were as follows.

                               A.

    First, the OCC asserted that Blanton recklessly engaged in
unsafe and unsound banking practices by allowing the Bank to
honor several overdrafts in the accounts of a longstanding
customer without adequate controls.
                              4
    By the time Blanton became interim CEO, the Bank had
developed a longstanding relationship with a local
businessman, Alex Campos. Campos had over thirty personal
and business accounts with the Bank. Over the years, Campos
made numerous transfers that caused substantial overdrafts in
some of his accounts, and the Bank always honored the
overdrafts.

    In 2003, the OCC became aware of the Bank’s practices
concerning Campos’s overdrafts. At the time, Campos had
incurred a $5.4 million overdraft at the Bank. The OCC
decided against taking action after Campos corrected the 2003
overdrafts and paid attorney’s fees to the Bank.

     The Bank then implemented two controls designed to
mitigate the risk caused by the Campos overdrafts. First, the
Bank decided to honor overdrafts only in amounts less than the
total funds available in Campos’s accounts. Second, the Bank
instituted a practice of transferring funds between Campos’s
accounts (with his permission) to cover overdrafts.

     The overdrafts nonetheless continued through 2010.
Between June and October 2010, for instance, there were at
least thirty instances in which one of Campos’s accounts was
overdrawn by more than $50,000. At times, the overdrafts in
his accounts reached amounts exceeding 50% of the Bank’s
overall Tier 1 capital, i.e., its most reliable aggregation of
assets.

     In early 2010, OCC examiners asked the Bank to place
additional controls on the Campos overdrafts. Blanton assured
the examiners that he would resolve the problem by expelling
Campos’s accounts from the Bank, by securing a formal
contract enabling the Bank to transfer funds between his
accounts at will, or by refusing to honor Campos’s overdrafts
                                5
altogether. Although Blanton did not specify when he would
take action, the OCC examiners expected that he would enact
the controls “immediately,” which they took to mean within
thirty to sixty days. Lawrence Dep. 30, Mar. 2, 2016, J.A. 955.
Blanton delegated the task of implementing the controls to the
Bank’s Chief Credit Officer, Robert Beal.

     The Bank, though, continued to honor the Campos
overdrafts, and Blanton continued to assure the OCC that he
was taking steps to enact the promised controls. In April 2010,
Blanton emailed the OCC, vowing that the Bank had the issue
“close to resolution,” although there were “still some parts
left.” Blanton Email to Lawrence, Apr. 30, 2010, J.A. 966.
The next month, at a meeting with Blanton, OCC examiners
provided him a draft report of examination discussing “the
risks involved with allowing a customer to make large and
frequent intra fund transfers that result in overdrafts.” Final
Decision, William R. Blanton, AA–EC–2015–24 (Office of the
Comptroller of the Currency July 10, 2017) at 7,
https://www.occ.gov/static/enforcement-actions/ea2017-
064.pdf [hereinafter Final Decision]. In June 2010, the Bank’s
Chief Financial Officer, Charles Knight, notified Blanton that
Campos continued to overdraw his accounts, but the Bank’s
position, according to a Bank employee, still was to “pay
everything.” Id. at 8. After sending Blanton a second draft
report of examination warning against authorization of the
Campos overdrafts, the OCC issued a final report stating that
the Bank’s practice was unsafe and unsound, posing an
“unwarranted and excessive credit risk” to the Bank. OCC
Report of Examination 35, Dec. 31, 2009, J.A. 420.

      In August 2010, Blanton met with Campos to discuss the
overdrafts, and they orally agreed to three additional controls:
first, the overdrafts would be limited to ten percent of the total
balance of Campos’s accounts; second, the Bank would have a
                              6
written right to make transfers between his accounts to offset
any overdrafts; and third, Campos and his companies would
guarantee any overdrafts. None of the controls took effect,
however, and Campos continued to overdraw his accounts.
Ultimately, after Blanton’s resignation and shortly before the
Bank’s failure, Beal notified Campos that the Bank would no
longer honor overdrafts on his accounts.

                              B.

     Second, the OCC alleged that Blanton had violated the
National Bank Act by causing the Bank to file three materially
inaccurate “call reports.” Those reports describe a bank’s
financial condition and enable banking agencies to “monitor
the condition, performance, and risk profile” of banks and the
financial industry as a whole. 12 C.F.R. § 304.3(a); see 12
U.S.C. § 161(a). When preparing call reports, a bank must
adhere to Generally Accepted Accounting Principles (GAAP)
and “accurately reflect” the bank’s capital. 12 U.S.C.
§ 1831n(a)(1)(A), (2)(A).

     The OCC’s allegations about the Bank’s call reports stem
from the Bank’s valuation of loans issued to two property
developers. In May 2006, the Bank loaned $2.1 million to
Brooks Avenue for acquisition and rehabilitation of an
apartment complex in Atlanta. In 2007 and 2008, the Bank
made two loans totaling $2.2 million to AH&H Property for the
purchase of land and construction of single-family homes in the
city. All three loans were secured by the targeted property and
guaranteed by each debtor-company’s principal.

    The properties securing the loans failed to develop as
planned. The Bank attempted to salvage the loans by amending
the companies’ loan agreements. The companies, however,
were unable to maintain adherence to the amended loan terms.
                                7
     As a result, in 2009, the Bank downgraded the loans in its
June, September, and December “Criticized Asset Reports,”
classifying the loans as “impaired” and “collateral dependent.”
Final Decision at 19. According to GAAP, classification of the
loans as “impaired” meant that “it [was] probable” that the
Bank would be “unable to collect all amounts due according to
the contractual terms of the loan agreement.” Fin. Accounting
Standards Bd., Statement of Financial Accounting Standards
No. 114 ¶ 8 (1993). The classification of “collateral
dependent” signaled that “repayment of the loan [was]
expected to be provided solely by the underlying collateral,”
such as through a sale of the properties. Id. ¶ 13.

    The Bank’s Board, including Blanton as a member,
approved the Criticized Asset Reports. With regard to the
Brooks loan, the Bank reported that it downgraded the loan
“due to the length of time it [took] to get the renovation project
underway and the 25 year amortization on the loan.” Final
Decision at 19. As for the AH&H loan, the downgrade was
“due to the length of time that the loan . . . ha[d] been with the
bank without principal reduction.” Id. at 18.

     In February 2010, the OCC examined the Bank’s
Criticized Asset Reports and agreed with the classification of
the loans as impaired and collateral dependent. The OCC
directed the Bank to obtain new appraisals of the properties’
values and instructed that the Bank would likely need to “write
down” or “charge off” the loans, referring to the process of
reducing the asset value of the loans. The appraisals, as
expected, indicated that the market value of the two properties
had significantly declined, representing only a small share of
the loans’ outstanding balances.

    On May 19, 2010, Blanton sought and received the
Board’s approval to charge off the loans. The Bank reduced
                               8
the value of the Brooks loan by $1.5 million and the value of
the AH&H loan by $1.1 million, for a total reduction of the
Bank’s capital by $2.6 million. The Bank amended and refiled
its call reports from December 2009 and March 2010 to reflect
the decision to charge off the loans.

    Within a few days, Blanton decided to revisit the Bank’s
decision to charge off the loans, prompting a series of
communications between the OCC and the Bank’s officers.
Because the OCC’s determination against Blanton concerning
the call reports turned in significant measure on those
communications, we recount them here in some detail.

     On May 23, 2010, Blanton emailed an OCC examiner,
Walter Lawrence, stating that the Bank would be able to
“restore much of the year end charge offs and bolster the capital
of the bank” because the guarantors for both projects could
pledge additional collateral to secure the loans. Blanton Email
to Lawrence, May 23, 2010, J.A. 504. In response, Lawrence
advised Blanton that his statement was “in error regarding
rebooking charged-off credits.” Lawrence-Blanton Email
Exchange, May 24, 2010, J.A. 503. “The bank,” Lawrence
continued, “can not rebook a charged-off credit.” Id. He also
quoted the call-report instructions stating that, once a bank
charges off a loan and “establishes a new cost basis for the
asset,” the “cost basis may not be ‘written up’ at a later date.”
Id. (quoting Call Report Instructions A-3, Dec. 2009, J.A. 828).
Such a rebooking, Lawrence stated, was “not an acceptable
accounting practice.”        Id.     Blanton responded and
acknowledged that his prior position was “incorrect.” Id.

     Following the exchange with Lawrence, however, Blanton
further examined the history of the loans and concluded that
they “probably shouldn’t have been charged off at all.”
Blanton Dep. 203, Mar. 1, 2016, J.A. 614. In his view,
                               9
although the OCC had instructed the Bank to charge off the
loans, “there wasn’t any basis for that” decision because,
according to “[his] recollection,” the loan holders or guarantors
for each loan “were paying.” Id. at 162, J.A. 582. Blanton
testified in the proceedings before the agency that, according
to the brother of the Bank’s Chairman, the AH&H guarantor
was “good as gold” and had “substantial” financials. Id. at 165,
J.A. 585. Additionally, Blanton testified, he knew the holder
of the Brooks Avenue loan to have profitable financials. Based
on that knowledge, Blanton concluded, it was “very unusual”
to have charged off the loans. Id. Thus, in June 2010, Blanton
announced at a Board meeting that the Bank would “take a
second look at the application” of GAAP to the loan charge offs
“mandated by the OCC,” and that, “[f]rom this second look, the
bank might recover[] $3MM.” Bank Board Minutes 3, June
15, 2010, J.A. 869. Blanton also stated that the Bank’s internal
auditor “would be willing to write up a document supporting
the [B]ank’s assertions.” Id.

     Blanton turned to Knight (the CFO) and Salvator Inserra
(the Bank’s outside auditor) in search of advice about reversing
the charge offs. Knight first asked Inserra for “a resource” to
show the OCC “that supported the argument about what
[Inserra had] said about the guarantor.” Knight-Inserra Email
Exchange, June 29, 2010, J.A. 1077. Inserra replied that
GAAP does not address “where the [cash flow] can be
sourced,” but “states that all [cash flow] should be considered.”
Id. Knight forwarded the email exchange to Blanton. Knight
next asked Inserra about a statement in the OCC Handbook that
endorsed a bank’s consideration of a guarantor’s ability to
support the debt as a factor relevant to loan classification.
Inserra responded, “Gaap does not require a [write down]. That
is a recent (last 18 mos) interpretation by the regs.” Knight-
Inserra Email Exchange, July 2, 2010, J.A. 453. Knight
forwarded that email to Blanton, too, interpreting Inserra’s
                                 10
comment to mean “that GAAP [did] not require the write
downs [the Bank] did [according to] interpretation by the
regulators.” Id.

     The following week, Knight, on Blanton’s instruction,
reversed the charge offs and rebooked the loans. Knight then
emailed Lawrence at the OCC (and Blanton via blind carbon
copy) to inform Lawrence of the rebooking. Knight said, “we
are revising the[] loans as not impaired due to additional
collateral and cash flows from the guarantors. We will reserve
for these loans instead, and the impairment will be reduced or
eliminated.” Knight Email to Lawrence, July 13, 2010, J.A.
891. In a separate correspondence, Knight told Inserra that
“Walter [Lawrence] of the OCC mentioned that they would not
usually allow for a charge-off to be reversed.” Knight Dep.
265, Feb 18, 2016, J.A. 383. Indeed, Lawrence later emailed
to say that, although Inserra and the Bank’s internal auditor had
a “different point of view[,] . . . it [was] imperative that the . . .
call reports accurately reflect the required . . . amounts.”
Lawrence Email to Knight, July 26, 2010, J.A. 501.

     Knight also exchanged a few emails with Inserra. In one,
Knight relayed Blanton’s request that Inserra “lend [his] weight
to the write-up” supporting the Bank’s decision to reverse the
charge offs, specifically including “any suggestions[,] . . .
sources [he could] come up with[,] [and] other examples to
support the bank’s . . . position.” Knight-Inserra Email
Exchange, July 13, 2010, J.A. 874. Inserra returned a rough
draft of the write-up, requesting that Knight “fill in some of the
details”—namely, “quantifiable data” that was “very
important.” Id., J.A. 886. But Knight responded that they were
unable to fill in the empty data fields at the time. Id. The
missing information pertained to the values of the properties
listed as collateral for the loans, which Inserra needed to show
that the guarantors had pledged additional collateral and were
                               11
thus “willing to support the loan.” Inserra Dep. 71, Mar. 17,
2016, J.A. 857. Inserra told Knight, though, that the goal was
“to convince the OCC” that the loans should never have been
charged off in the first instance. Inserra Email to Knight, July
15, 2010, J.A. 458. When asked about the Bank’s reversal of
the charge offs at a deposition, Inserra refused to confirm that
the facts supported the propriety of the Bank’s doing so: he
testified that the information he had gathered “was not
sufficient to argue that the charge-off that was taken was
inappropriate.” Inserra Dep. 240, Mar. 17, 2016, J.A. 865.

     On August 16, 2010, the Bank filed amended call reports
for the December 2009, March 2010, and July 2010 periods
that reflected the decision to reverse the charge offs and rebook
the loans. Two days later, an OCC examiner, Anne Marie
Corathers, emailed Blanton to inquire about the basis for any
changes in the amended call report. She wrote that “[t]he
rebooking of a charged off asset is NOT permitted” and that
“the Bank must recognize the total write downs directed by
examiners.” Corathers Email to Blanton, Aug. 18, 2010, J.A.
914. The Bank never provided the requested information.

     Shortly after Blanton resigned from the CEO position, the
Bank once again decided to charge off the loans. The Bank
filed amended call reports reflecting that change.

                               C.

    The OCC filed a motion for summary disposition on both
the overdraft and call-report allegations.          The OCC’s
regulations allow for issuing a decision on summary
disposition if there is no genuine issue of material fact. See 12
C.F.R. § 19.29(a). Blanton contested the claims on the merits
and also argued that the overdraft claim was barred by a five-
year statute of limitation.
                               12
     On January 19, 2017, the ALJ recommended granting
summary disposition in favor of the OCC. The Comptroller
adopted the recommendation over Blanton’s objections and
imposed a $10,000 civil money penalty covering both
violations. Blanton now seeks our review.

                               II.

     Blanton raises three challenges to the Comptroller’s
decision. He initially contends that the five-year statute of
limitations established by 28 U.S.C. § 2462 barred the OCC’s
claim concerning the Campos overdrafts. On the merits,
Blanton argues that the Comptroller erred in concluding that
the Bank’s repeated honoring of the Campos overdrafts
constituted an unsafe or unsound banking practice and that
Blanton’s involvement in the practice was reckless. Blanton
also contests the Comptroller’s determination against him
based on the Bank’s submission of materially inaccurate call
reports in violation of the National Bank Act.

     The Administrative Procedure Act (APA) sets out the
standards governing our review of the Comptroller’s
determination. See 12 U.S.C. § 1818(h)(2). Under the APA,
we will set aside agency action that is “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law,”
5 U.S.C. § 706(2)(A), or is taken “without observance of
procedure required by law,” id. § 706(2)(D). Review of agency
action under those APA standards is generally considered to be
deferential. E.g., Safari Club Int’l v. Zinke, 878 F.3d 316, 325-
26 (D.C. Cir. 2017).

     Here, the question before us is not merely whether to
sustain the Comptroller’s ultimate decision against Blanton,
but whether to sustain the Comptroller’s issuance of the
decision via summary disposition. According to the OCC’s
                               13
regulations, the Comptroller acts through summary disposition
only if “[t]here is no genuine issue as to any material fact” and
“[t]he moving party is entitled to a decision in its favor as a
matter of law.” 12 C.F.R. § 19.29(a). That standard parallels
the summary-judgment standard set forth in Federal Rule of
Civil Procedure 56. And we apply a de novo standard when
reviewing a district court’s grant of summary judgment under
Rule 56. E.g., Nat’l Sec. Counselors v. U.S. Dep’t of Justice,
848 F.3d 467, 470 (D.C. Cir. 2017).

      We see no reason our approach should be altogether
different when reviewing an agency’s issuance of a
determination on summary disposition. That is, when an
agency elects to proceed via summary disposition under its
regulations but errs in concluding that there is no genuine issue
as to any material fact—and thus errs in determining that a
decision is warranted as a matter of law without any evidentiary
hearing or findings—then the agency has acted in a manner
“not in accordance with the law” or “without observance of
procedure required by law.” 5 U.S.C. § 706(2)(A), (D).

     Applying that approach here, we uphold the Comptroller’s
determination on summary disposition that Blanton recklessly
engaged in an unsafe or unsound banking practice by
authorizing the Bank to honor Campos’s overdrafts. But as to
the Comptroller’s determination that Blanton caused the Bank
to file materially inaccurate call reports, we cannot sustain the
Comptroller’s assessment that there was no genuine issue of
material fact with regard to that issue. We thus vacate the
Comptroller’s decision concerning the call reports.

                               A.

     Blanton first challenges the Comptroller’s determination
that he recklessly engaged in an unsafe or unsound bank
                               14
practice each time he authorized the Bank to honor an overdraft
in Campos’s accounts. We uphold the Board’s determination.

                               1.

     As a threshold matter, Blanton argues that the OCC’s
claim concerning Campos’s overdrafts is barred by the statute
of limitations set forth in 28 U.S.C. § 2462. Section 2462
provides that an action “for the enforcement of any civil . . .
penalty . . . shall not be entertained unless commenced within
five years from the date when the claim first accrued.” Here,
OCC filed its original Notice of Assessment on June 30, 2015,
meaning that any claims must have “accrued” on or after June
30, 2010.

      A claim generally accrues “when the factual and legal
prerequisites for filing suit are in place.” Proffitt v. Fed.
Deposit Ins. Corp., 200 F.3d 855, 862 (D.C. Cir. 2000)
(quoting 3M Co. (Minnesota Min. & Mfg.) v. Browner, 17 F.3d
1453, 1460 (D.C. Cir. 1994)). Here, an actionable infraction
consists of two elements: first, the bank official must
“recklessly engage[] in an unsafe or unsound [banking]
practice”; and second, the reckless practice must be “part of a
pattern of misconduct.” 12 U.S.C. § 1818(i)(2)(B)(i)(II),
(ii)(I). For our purposes, then, a claim accrues each time a bank
official recklessly engages in an unsafe or unsound banking
practice as part of a pattern of misconduct.

     Blanton contends that the OCC’s overdraft claim accrued
long before June 30, 2010, because the Bank’s practice of
honoring Campos’s overdrafts began before Blanton assumed
the CEO role. But the initial onset of the Bank’s ongoing (and
preexisting) pattern of honoring the overdrafts did not alone
trigger the limitations clock. Rather, each instance of an unsafe
                              15
or unsound practice triggers a new claim if part of a pattern of
misconduct. See Proffitt, 200 F.2d at 863-64.

     As a result, each time the Bank, under Blanton’s direction,
honored a Campos overdraft without having imposed adequate
risk controls, an unsafe or unsound banking practice occurred,
continuing the pattern of misconduct and causing a new claim
to accrue. It follows that each honored overdraft after June 30,
2010 (there were at least ten) constituted an actionable banking
practice as part of a pattern of misconduct. And even though
the OCC “might well have brought an action earlier,” its
“failure to do so” does not make the claims it elected to bring
“untimely.” Id. at 864.

                               2.

     Turning to the merits, Blanton first contests the
Comptroller’s determination that the Bank’s practice of
honoring the Campos overdrafts constituted an unsafe or
unsound banking practice. A banking practice is unsafe or
unsound if it poses a “reasonably foreseeable undue risk.”
Landry v. Fed. Deposit Ins. Corp., 204 F.3d 1125, 1138 (D.C.
Cir. 2000) (quotation marks omitted) (citation omitted). The
Comptroller determined that the Bank’s overdraft practice was
unsafe and unsound because Blanton (and the Bank) had
“failed to control the risk” of Campos’s “continuous and large
overdrafts.” Final Decision at 13.

     The record evidence supports the Comptroller’s finding
that the overdrafts in Campos’s accounts were “continuous and
large.” Id. Between June 30, 2010, and August 27, 2010, at
least ten overdrafts in one of Campos’s accounts exceeded
$100,000, with five overdrafts exceeding $200,000. At one
point, four of Campos’s accounts were overdrawn at once, to
                              16
the tune of $443,532 in total, amounting to nearly 65% of the
Bank’s Tier 1 capital.

     Additionally, the Comptroller reasonably explained why
the authorization of the frequent and large overdrafts, if
inadequately controlled, posed a significant risk to the Bank’s
financial stability. Given the Bank’s already perilous financial
condition at the time—when Blanton assumed the CEO role,
the Bank was suffering from “critically deficient capital”—the
Comptroller determined that “it [was] likely that the Bank
would have failed had Mr. Campos not covered the overdrafts.”
Final Decision at 14.

     Blanton argues that the Comptroller incorrectly concluded
that the overdrafts were risky because there was no evidence
indicating that Campos could not honor them. In fact, Blanton
stresses, the Bank never lost money on the Campos overdrafts.

     The Comptroller, though, accurately explained that there
is no requirement of an actual loss. Final Decision at 11-12.
In determining whether a particular banking practice is unsafe
or unsound, the relevant inquiry is whether the practice causes
a risk of loss, regardless of any actual loss. Id. at 11. The
Comptroller reasonably concluded that frequent and large
overdrafts (often exceeding over half the amount of the Bank’s
core capital) carried a substantial risk that an overdraft would
lead to Bank failure if Campos did not cover the difference.
See Landry, 204 F.3d at 1138 (explaining that a bank’s
continuing profitability does not preclude a finding of undue
risk).

    Next, Blanton contends that the controls established by the
Bank in 2003 sufficed to eliminate any material risks
associated with honoring the Campos overdrafts. Those
controls included transfers between Campos’s accounts (with
                              17
his permission) and a practice of honoring only those
overdrafts amounting to less than the total funds in all of
Campos’s accounts. Blanton points to the testimony of Richard
Cheatham, the Bank’s outside counsel, that those controls
rendered the overdraft practice safe and sound. Cheatham also
opined that more formal measures were unnecessary because
the risk of criminal sanctions would have deterred Campos
from overdrawing his account without coverage.

     The Comptroller, though, reasonably explained that the
controls were insufficient because their effectiveness
significantly depended on Campos’s willingness to abide by
them. Final Decision at 10. And although Campos typically
allowed the Bank to transfer money between his accounts, he
was not bound to that arrangement. At any time, Campos could
have withdrawn money from his accounts or refused to allow
transfers between the accounts, leaving the Bank on the hook
for the overdrafts—which, as discussed above, might have
caused the Bank’s failure. As for Cheatham’s testimony, the
Comptroller found it to be wholly unsupported by the record
and lacking any basis in legal reasoning or precedent. See id.
at 10 & n.77. Indeed, Cheatham’s affidavit contains no citation
to any source supporting his assertions. See Cheatham Aff.,
Oct. 17, 2016, J.A. 296-300. Even on summary disposition,
the Comptroller did not err in finding that Cheatham’s
unreasoned and unsupported conclusions did not create a
genuine factual issue. See Anderson v. Liberty Lobby, 477 U.S.
242, 254-55 (1986).

     Blanton also argues that the Comptroller overlooked
evidence that banks frequently honor overdrafts for certain
creditworthy customers. But the Comptroller did not broadly
declare that a bank could never honor a customer’s overdrafts.
Rather, the Comptroller found that the overdrafts in this case,
in the particular circumstances, posed an unacceptable risk.
                              18
Final Decision at 12. That determination, as explained, was
reasonable and also was consistent with OCC precedent
holding that the honoring of overdrafts can constitute an unsafe
or unsound banking practice when the overdrafts compromise
a bank’s stability. See Van Dyke v. Bd. of Governors, 876 F.2d
1377, 1380 (8th Cir. 1989); In re Welk, No. FDIC-91-201e,
1992 WL 813217, at *10 (June 5, 1992).

     Blanton, finally, suggests we should infer the soundness of
the Bank’s overdraft practice from the fact that the OCC
instructed the Bank to cease honoring Campos’s overdrafts
only in 2010 even though it knew of the overdrafts as early as
August 2003. We reject Blanton’s invitation to assess the
propriety of his conduct based on the OCC’s enforcement
timeline. Many factors unrelated to the merits of a case can
influence when an agency decides the time is ripe for
prosecution. See Heckler v. Chaney, 470 U.S. 821, 831-32
(1985). The Comptroller, in short, reasonably determined that
the Bank’s honoring of Campos’s overdrafts constituted an
unsafe or unsound practice.

                               3.

     Blanton also challenges the Comptroller’s determination
that he recklessly disregarded the risks posed by the Campos
overdrafts when he was CEO of the Bank. The Comptroller
determined that Blanton acted recklessly because he was aware
of the risk posed by the overdrafts from his interactions with
the OCC but took only “perfunctory steps to mitigate the risk.”
Final Decision at 15.

     There is no dispute that Blanton was made aware of the
risks associated with honoring the Campos overdrafts. On
several occasions, the OCC notified Blanton and other Bank
officials of the dangers of the Bank’s practice. Also, other
                               19
Bank employees alerted Blanton to the overdrafts and
reminded him of the OCC’s position that the overdrafts were
unduly risky. All the while, Blanton vowed that he was
working on implementing further controls. Yet he never
instituted the additional controls or otherwise took action to
curtail the Bank’s practice.

    Blanton points to steps he took to impose additional
controls on Campos’s overdrafts, namely, delegating the task
to Beal (the Bank’s Chief Credit Officer) and instructing him
to move quickly. But the Comptroller found that Blanton failed
even to follow up with Beal to ensure that controls were in
place. Final Decision at 14. Indeed, no controls took effect
while Blanton served as CEO.

     In the end, the Comptroller reasonably concluded that
Blanton should have imposed additional controls to mitigate
the risk of the overdrafts and that he was reckless in failing to
do so. We therefore uphold the Board’s determination against
Blanton with regard to the Campos overdrafts.

                               B.

     We next consider Blanton’s challenge to the Comptroller’s
determination that he violated the National Bank Act by
causing the Bank to file materially inaccurate call reports.
Blanton argues that the Comptroller erred in reaching its
determination against him on summary disposition because
there are material factual disputes pertaining to whether
Blanton reasonably believed in the accuracy of the call reports.
We agree.

    The National Bank Act requires a bank to file periodic call
reports with the OCC that describe the bank’s financial
condition, including the value of its assets and liabilities. See
                               20
12 U.S.C. § 161(a). Call reports, as noted, must “accurately
reflect the capital” of the bank. Id. § 1831n(a)(1)(A). The bank
officer who signs off on the report must attest “that the report
is true and correct to the best of his knowledge and belief.” Id.
§ 161(a).

     The Comptroller determined that Blanton caused the Bank
to file materially inaccurate amended call reports for the
December 2009, March 2010, and July 2010 reporting periods
by directing the rebooking of the Brooks Avenue and AH&H
loans. Final Decision at 20-23. According to the Comptroller,
the decision to rebook the loans was improper because the OCC
had directed the Bank to charge off the loans (which the Bank
initially did) and write off approximately $2.6 million in loan
assets from its books. Id. As a result, the Comptroller
concluded, when the Bank reversed the charge offs and filed
the amended call reports in August 2010, those reports
overstated the Bank’s financial condition by including the
original (and higher) value of the loans rather than the reduced
value of the loans upon their charge off. Id. The Comptroller
determined that Blanton violated the National Bank Act by
setting in motion the chain of events leading to the amended
call reports. Id.

     The National Bank Act, though, does not impose strict
liability on bank officials for the filing of inaccurate call
reports. Rather, the statute requires accuracy only “to the best
of [the signing official’s] knowledge and belief.” 12 U.S.C. §
161(a). A bank official, then, does not violate the law if she
reasonably believes in the reports’ accuracy, even if the reports
later prove inaccurate. See, e.g., First Nat’l Bank of Gordon v.
Dep’t of the Treasury, 911 F.2d 57, 63 (8th Cir. 1990).

    Blanton argues he reasonably believed that the original
loan charge offs were unwarranted and that the amended call
                               21
reports accurately reflected the Bank’s condition. The
Comptroller rejected that argument, reasoning that Blanton had
no rational basis for believing in the accuracy of the amended
call reports because: the OCC (and the Bank) previously
determined that the loans were correctly charged off; the OCC
warned the Bank not to reverse the charge offs; and Inserra (the
Bank’s auditor) equivocated on whether it was appropriate to
reverse the charge offs. Final Decision at 25.

    In reaching that decision, however, the Comptroller did
not resolve two related factual questions bearing on whether
Blanton reasonably believed in the call reports’ accuracy: first,
what was the specific reason for Blanton’s decision to reverse
the charge offs?; and second, did the OCC’s warning not to
reverse the charge offs encompass that reason?

     First, Blanton and the OCC disagree about his reason for
reversing the charge offs and rebooking the loans. According
to the OCC, Blanton did so because the Bank had reached an
agreement with a Brooks Avenue guarantor and received a
tentative commitment from an AH&H guarantor to pledge
additional collateral to support the loans.

     There is evidence in the record supporting the OCC’s
account. When Blanton first emailed the OCC about his desire
to reverse the charge offs, he cited the guarantors’ promise of
additional collateral. Also, Knight, the Bank’s CFO, in an
email to OCC Examiner Lawrence, said that the Bank had
reversed the charge offs “due to additional collateral and cash
flows from the guarantors.” Knight Email to Lawrence, July
13, 2010, J.A. 891.

     Blanton responds that his reason for reversing the charge
offs was not the guarantors’ promises of new collateral, but
instead his realization that the charge offs had been improper
                              22
all along. According to Blanton, the Bank had unnecessarily
classified the loans as “impaired” and “collateral dependent.”
That is because, as Blanton sees things, the guarantors, at the
time of the charge offs, had a reliable source of cash flow and
had demonstrated willingness to support loan repayment.
Blanton thus contends that the amended call reports accurately
reversed charge offs that had been erroneous from the outset.

     There is evidence in the record supporting Blanton’s
account, too. When announcing to the Board of Directors the
decision to reconsider the charge offs, Blanton described the
process as involving a “second look” at the GAAP to ascertain
whether the loans had been properly classified from the
beginning. Bank Board Minutes 3, June 15, 2010, J.A. 869.
Inserra, additionally, testified before the agency that he
believed the Bank had decided to rebook the loans because they
had been charged off in error. Indeed, in an email to Knight,
Inserra referenced efforts “to convince the OCC [] that [the
loans] should never ha[ve] been charged off in the first place.”
Inserra Email to Knight, July 15, 2010, J.A. 458.

    Evidence in the record thus supports both Blanton’s and
the OCC’s competing accounts of the reason he decided to
reverse the charge offs and rebook the loans. And that factual
dispute is material in light of a second factual issue about the
nature of the OCC’s warnings to Blanton before the
amendments.

     According to the Comptroller’s determination, Blanton
could not have reasonably believed in the amended call reports’
accuracy because the OCC had warned him (and others) not to
reverse the charge offs. Final Decision at 25. But even
assuming Blanton was required to abide by the OCC’s
warnings, the Comptroller’s conclusion about the warnings’
significance—i.e, that Blanton could not have reasonably
                              23
believed in the amended call reports’ accuracy in the face of
the warnings against reversing the charge offs—rests on an
assumption that the warnings encompassed the reason Blanton
decided to reverse the charge offs. Otherwise, Blanton might
have reasonably believed that the OCC’s warnings did not
pertain to the particular circumstances of his decision. In that
regard, the record is inconclusive about (and the Comptroller’s
determination does not resolve) whether the OCC’s warnings
should have put Blanton on notice that a charge-off reversal
would be improper even if he came to understand that the
charge offs had been erroneous from the outset.

    Those warnings took place on three occasions. The first
time, OCC Examiner Lawrence specifically responded to
Blanton’s inquiry about rebooking the loans based on the
guarantors’ new pledges of collateral, before Blanton alleges
he came to believe that the charge offs had been made in error.
The second time, Lawrence said that the OCC does “not
usually allow for a charge to be reversed,” Knight Dep. 265,
Feb 18, 2016, J.A. 383, but that statement similarly came in
response to Knight’s mention of reversing the charge offs “due
to additional collateral and cash flows from the guarantors,”
Knight Email to Lawrence, July 13, 2010, J.A. 891. The third
warning, sent by OCC Examiner Corathers, came after the
Bank had already rebooked the loans and filed amended call
reports, rendering it of limited use for assessing Blanton’s
reason for reversing the charge offs.

      To be sure, even assuming Blanton reversed the charge
offs because he believed they had been incorrect when initially
made (rather than because of any new pledge of collateral),
Blanton seemingly could have asked the OCC whether its
warnings against amending the call reports applied in that
situation. But the Comptroller did not suggest in its
                                 24
determination that Blanton was obligated to do so before
directing that the call reports be amended.

     We are then left with two related factual disputes bearing
on whether Blanton reasonably believed in the reports’
accuracy: first, why did Blanton reverse the charge offs?; and
second, did the OCC’s warnings convey that his rationale
would be an impermissible basis for amending the call reports?
In that context, it was improper for the Comptroller to reject,
on summary disposition, Blanton’s assertion that he reasonably
believed in the accuracy of the amended call reports—or at
least to do so without further explanation of why the factual
disputes could be considered immaterial.

     Given the dispute about Blanton’s reason for reversing the
charge offs and about the relevance of the OCC’s warnings, the
evidence fails to show that the OCC was “entitled to a decision
in its favor as a matter of law.” 12 C.F.R. § 19.29(a). The
Comptroller’s issuance of a decision against Blanton on
summary disposition thus was “not in accordance with law”
and “without observance of procedure required by law.” 5
U.S.C. § 706(2)(A), (D). See also Reuters Ltd. v. FCC, 781
F.2d 946, 950-51 (D.C. Cir. 1986) (“[I]t is elementary that an
agency must adhere to its own rules and regulations.”). We
therefore vacate the Comptroller’s determination with regard
to the call reports and remand for further proceedings.

                    *   *    *        *   *   *

     For the foregoing reasons, we grant the petition for review
in part, vacate the penalty imposed by the Comptroller, and
remand the matter for further consideration consistent with this
decision. We note that counsel for the OCC suggested at oral
argument that the overdraft-related violation, which we have
sustained, could independently support the $10,000 civil
                             25
monetary penalty assessed against Blanton. See Oral Arg. Tr.
at 32-33. We have no occasion to consider that issue here, but
the agency is free to address it in the proceedings on remand.

                                                  So ordered.
