govinfo:USCOURTS-dcd-1_17-cv-00036-3

UNITED STATES DISTRICT COURT  
FOR THE DISTRICT OF COLUMBIA  
 
 
FEDERAL DEPOSIT INSURANCE 
CORPORATION, 
 
  Plaintiff, 
 
 v. 
 
BANK OF AMERICA, N.A. , 
 
  Defendant. 
 
Civil Action No. 17 - 36 (LLA) 
 
 
MEMORANDUM OPINION  AND ORDER 
Plaintiff, the Federal Deposit Insurance Corporation (the “FDIC”), brought this action 
against Defendant, Bank of America, N.A. (“BANA”), alleging BANA’s failure to pay 
$1.12 billion in deposit insurance assessments in violation of the Federal Deposit Insurance Act 
(“FDIA”), 12 U.S.C. § 1817, and its resulting unjust enrichment.  ECF No. 10.  In March 2025, 
the court granted in part and denied in part both the FDIC’s Motion for Partial Summary Judgment, 
ECF No. 361, and BANA’s Motion for Summary Judgment, E CF No. 366.  See ECF Nos. 385, 
386.  The court held that BANA is liable to pay $540,261,499.90 for its failure to comply with the 
FDIC’s 2011 regulation setting the formula for calculating deposit insurance assessment rates, plus 
pre- and post-judgment interest.  ECF No. 385, at 59.  But it agreed with BANA that the FDIC is 
not entitled to the equitable remedy of disgorgement based on BANA’s purported unjust 
enrichment.  Id. at 54-56. 
The parties now dispute the amount of  pre- and post-judgment interest BANA owes the 
FDIC.  BANA has filed a motion to deem the judgment satisfied pursuant to Federal Rule of Civil 
Procedure 60(b)(5), or, in the alternative, to amend the judgment pursuant to Rule  60(a).  ECF 
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No. 395.  It asks the court to calculate the pre- and post-judgment interest owed based on the 
so-called “regulatory rate” set forth in 12 C.F.R. § 327.7(b).  Id. at 12-18.  The FDIC has filed a  
cross-motion under Rule 60(a) arguing that the court should calculate pre-judgment interest based 
on the prime rate —which is what banks charge for short -term, unsecured loans to creditworthy 
customers—rather than the regulatory rate, and post-judgment interest based on the rate provided 
by 28 U.S.C. § 1961(a), the statutory post-judgment interest provision.  See ECF No. 398.  For the 
reasons discussed below, the court grants in part and denies in part both motions, applies the rate 
set forth in 12 C.F.R. § 327.7(b) to pre-judgment interest, applies the rate set forth in 28  U.S.C. 
§ 1961(a) to post-judgment interest, and directs the parties to file a joint status report with their 
respective calculations of the amounts of pre - and post-judgment interest on or before April  14, 
2026. 
I. BACKGROUND AND PROCEDURAL HISTORY 
The court assumes the parties’ familiarity with the case and details here only the facts 
necessary to resolve the pre- and post-judgment interest dispute. 
The FDIC helps “maintain[] stability and public confidence in the banking system and in 
protecting the savings of ordinary Americans” by insuring banks: when an insured bank fails, the 
FDIC “provides depositors access to their insured accounts at that institution,” and where “the 
institution’s assets are insufficient, the FDIC pays the balance from the Deposit Insurance Fund.”  
ECF No. 364, at  5.  It finances the Deposit Insurance Fund by collecting quarterly premiums, 
called “assessments,” from the banks it insures.  ECF No. 248-4 ¶ 5. 
The FDIA directs the FDIC to issue regulations “establish[ing] a risk-based assessment 
system for insured depository institutions.”  12 U.S.C. § 1817(b)(1)(A).  It also permits the FDIC 
to use “separate risk -based assessment systems for large and small” banks.  Id. § 1817(b)(1)(D).  
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Accordingly, the FDIC employs different methodologies for calculating a bank’s risk depending 
on whether the bank is a small institution, a large institution, or a highly complex institution 
(“HCI”).  ECF No. 248 -4 ¶ 5.  HCIs are “the largest and most complex banks.”  Id. ¶ 7.  BANA 
was one of only a few HCIs nationwide during the period relevant to this case.  Id. ¶ 12. 
After the Great Recession in 2008, lawmakers feared that existing regulations failed to 
ensure the stability of the national banking system.  See Assessments, Large Bank Pricing, 76 Fed. 
Reg. 10672, 10674 (Feb. 25, 2011) (codified at 12 C.F.R. pt. 327).  In 2010, Congress passed the 
Dodd-Frank Wall Street Reform  and Consumer Protection Act (the “Dodd -Frank Act”) to 
“improv[e] accountability and transparency in the financial system” and “end ‘too big to fail.’”  
Pub. L. No. 111-203, 124 Stat. 1376, 1376 (2010) (codified at 12 U.S.C. § 5301).  The Dodd-Frank 
Act achieved this goal in part by requiring the FDIC to amend its regulations for calculating banks’ 
assessment rates.  Id. at 1538; see 76 Fed. Reg. at 10674. 
In February  2011, the FDIC published a final rule (“the 2011  Rule”) that revised the 
assessment methodologies for large banks and HCIs. 76 Fed. Reg. at  10688-10703 (codified at 
12 C.F.R. § 327.9(b)(2) (2011)).  The 2011 Rule went into effect on April 1, 2011.  Id. at 10672.  
It set forth a calculation to determine the “performance score” and “loss severity score” for large 
banks and HCIs like BANA; together, the scores would determine the bank’s quarterly risk-based 
assessment payment.  Id. at 10695, 10689.  For HCIs, the scores considered the bank’s “top 20 
counterparty exposures” and “largest counterparty exposure,” id. at 10696, and the 2011  Rule 
defined “counterparty exposure” based in part on each banks’ counterparties or borrowers “at the 
consolidated entity level ,” id. at 10721 (emphasis added).   The 2011  Rule, as subsequently 
amended, was in effect until December 31, 2014.  See Assessments; RIN 3064-AE37, 79 Fed. Reg. 
70427, 70427, 70433-34, 70438 (Nov. 26, 2014) (codified at 12 C.F.R. pt. 327). 
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In 2016, an FDIC audit revealed that “BANA had not consolidated its counterparty 
exposures to the ultimate parent level as required” for 1Q 2012 through 4Q 2014.1  ECF No. 248-4 
¶ 26.  Instead, “BANA reported the amount of its direct exposure to a given counterparty without 
adding to that amount its exposures to the counterparty’s subsidiaries or to other members of the 
counterparty’s corporate family.”  Id.  This lowered BANA’s concentration measure, which in turn 
considerably lowered the overall amount that BANA paid in assessments for those quarters.  After 
completing the audit, the FDIC invoiced BANA $1,120,563,178.49 in underpaid assessments.  
ECF No. 364, at 15.  BANA declined to pay.  Id. 
In January 2017, the FDIC filed suit against BANA, alleging that BANA had failed to pay 
over $500 million dollars in mandatory assessments for 2Q 2013 through 4Q 2014, as required by 
the FDIA.  ECF No.  1 ¶¶ 50-51.  The FDIC subsequently amended its complaint, alleging that 
BANA had failed to pay $1.12 billion in mandatory assessments for 1Q 2012 through 4Q 2014 in 
violation of the FDIA (Count I) and had unjustly enriched itself at the FDIC’s expense by retaining 
that money (Count  II).  ECF No.  10 ¶¶ 72-94.  The case was reassigned to the undersigned in 
December 2023.  Dec. 14, 2023 Docket Entry. 
In March 2025, the court granted  in part and denied in part both the FDIC’s Motion for 
Partial Summary Judgment, ECF No.  361, and BANA’s Motion for Summary Judgment, ECF 
No. 366.  See ECF Nos. 385, 386; Fed. Deposit Ins. Corp. v. Bank of Am., N.A., 783 F. Supp. 3d 1 
(D.D.C. 2025).  First, t he court concluded that 2011 Rule was a valid  exercise of the FDIC’s 
rulemaking authority, that the rule was supported by substantial evidence, and that it was not 
arbitrary or capricious.  ECF No. 385, at 17-28.  Next, the court found BANA liable for failing to 
 
1 BANA consolidated its counterparty exposures correctly for 2Q 2011 and 3Q 2011, the first two 
quarters that the 2011 Rule was in effect.  See ECF No. 364, at 27; ECF No. 376-2, at 27-28. 
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properly aggregate its exposures and held that, consistent with the statute of limitations, the FDIC 
could recoup BANA’s underpayments from 2Q 2013 through 4Q 2014.  Id. at 44-53.  Finally, the 
court determined that the FDIC was not entitled to disgorgement  because it had an adequate 
remedy at law in the form of pre-judgment interest.  Id. at 54-56.  The court entered judgment in 
the FDIC’s favor and ordered BANA to pay $540,261,499.90 in underpaid assessments, plus 
pre- and post-judgment interest.  ECF No. 386. 
Following the court’s summary judgment decision, the parties moved to stay enforcement 
of the judgment pursuant to Federal Rule of Civil Procedure  62(b) and any deadline for a bill of 
costs or motion for fees or costs pursuant to Rule  54(d)(1) and Local Civil Rule  54.1(a), ECF 
No. 390, at 1, which the court granted, ECF No. 391, at 1.  The parties twice moved to extend the 
stay while they calculated pre- and post-judgment interest and arranged for BANA’s satisfaction 
of the judgment, ECF No.  392, at  2; ECF No. 393, at  2, and the court granted both requests,  
June 11, 2025 Minute Order; June 26, 2026 Minute Order. 
The parties were ultimately unable to reach an agreement on the applicable interest rate s, 
ECF No. 394, and they have filed competing motions.  BANA seeks to have the court deem the 
judgment satisfied pursuant to Federal Rule of Civil Procedure  60(b)(5), or, in the alternative, to 
amend the judgment pursuant to Rule  60(a).  ECF No.  395.  FDIC requests that the court set 
pre- and post-judgment interest under Rule 60(a).  ECF No. 398.  Both motions are fully briefed.  
ECF Nos. 395, 396, 398, 400 to 402.   In November 2025, the court directed the parties to file 
supplemental briefs addressing whether Rule  59(e) was releva nt to the parties’ requests, ECF 
No. 404, which the parties did, ECF Nos. 406, 407, 412, 413. 
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II. LEGAL STANDARDS 
A. Rule 60(a) 
Federal Rule of Civil Procedure  60(a) allows the court to “correct a clerical mistake or a 
mistake arising from oversight or omission whenever one is found in a judgment.”   Fed. R. Civ. 
P. 60(a).  “The rule ’s limitation to ‘clerical’ mistakes and those arising from ‘oversight and 
omission’ means that it cannot be used to change the substance of an order or judgment.”  Fanning 
v. George Jones Excavating, L.L.C. , 312 F.R.D. 238, 239 (D.D.C.  2015) (quoting Fed. R. Civ. 
P. 60(a)).  “Thus a motion under Rule 60(a) only can be used to make the judgment or record speak 
the truth and cannot be used to make it say something other than what originally was pronounced.”  
11 Charles Alan Wright et al., Federal Practice and Procedure § 2854 (3d ed. 2025). 
B. Rule 60(b) 
Under Rule 60(b), the court may “relieve a party . . . from a final judgment” for one of six 
reasons: (1)  “mistake, inadvertence, surprise, or excusable neglect”; (2)  “newly discovered 
evidence that, with reasonable diligence, could not have been discovered in time to move for a 
new trial under Rule  59(b)”; (3)  “fraud . . . , misrepresentation, or misconduct by an opposing 
party”; (4) “the judgment is void”; (5) “the judgment has been satisfied, released, or discharged,” 
or was based on similar grounds, or applying it would “no longer [be] equitable”; or (6) “any other 
reason that justifies relief.”  Fed. R. Civ. P. 60(b)(1)-(6).  Three grounds are potentially applicable 
here: Rule 60(b)(1), 60(b)(5), and 60(b)(6). 
The Supreme Court has determined that “Rule 60(b)(1) covers all mistakes of law made by 
a judge.”  Kemp v. United States, 596 U.S. 528, 534 (2022).  In doing so, the Court “overruled the 
precedent of this Circuit [and held] that any legal error, including those that are not ‘obvious’ or 
‘manifestly erroneous, ’ may constitute ‘mistake’” under Rule 60(b)(1).  Woods v. District of 
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Columbia, No. 20-CV-782, 2022 WL 17989326, at *3 (D.D.C. Dec. 29, 2022).  But the Court left 
in place “the general rule of this jurisdiction that motions for reconsideration are still ‘disfavored’ 
and granting them should be ‘unusual.’”  Id. (quoting Walsh v. Hagee , 10 F. Supp. 3d 15, 18 
(D.D.C. 2013)). 
As for Rule 60(b)(5), courts have “rarely” provided relief from a final judgment because it 
“has been satisfied, released, or discharged.”  11 Charles Alan Wright et al., Federal Practice and 
Procedure § 2863.  “Rule 60(b)(5) may not be used to challenge the legal conclusions on which a 
prior judgment or order rests, but the Rule provides a means by which a party can ask a court to 
modify or vacate a judgment or order if ‘a significant change either in factual conditions or in law’ 
renders continued enforce ment ‘detrimental to the public interest. ’”  Horne v. Flores , 557 U.S. 
433, 447 (2009) (quoting Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 384 (1992)).  Parties 
often invoke Rule 60(b)(5) in institutional reform litigation, when “an injunction typically remains 
in place for many years.”  Am. Council of the Blind v. Mnuchin , 878 F.3d 360, 366 (D.C.  Cir. 
2017). 
Rule 60(b)(6) “provides only grounds for relief not already covered by the preceding five 
[Rule 60(b)] paragraphs,” and it is “available only in narrow circumstances.”  BLOM Bank SAL v. 
Honickman, 605 U.S. 204, 211 (2025).  While a court retains discretion to grant a Rule  60(b)(6) 
motion, Jones v. U.S. Dep’t of Just. , 315 F. Supp. 3d 278, 279 (D.D.C.  2018), it should do so 
“sparingly” and only under “extraordinary circumstances,” People for the Ethical Treatment of 
Animals v. U.S. Dep’t of Health & Hum. Ser vs., 901 F.3d 343, 355 (D.C.  Cir. 2018) (“ PETA”) 
(first quoting Good Luck Nursing Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C. Cir. 1980); then 
quoting Ackermann v. United States, 340 U.S. 193, 199 (1950)).  The party seeking relief “bears 
the threshold burden of proving that a ‘significant change’ in legal or factual circumstances 
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‘warrants revision of the [court’s] decree.’”  Salazar ex rel. Salazar v. District of Columbia , 896 
F.3d 489, 492 (D.C. Cir. 2018) (quoting Rufo, 502 U.S. at 383). 
“In considering a Rule  60(b) motion, the district court ‘must strike a “delicate balance 
between the sanctity of final judgments  . . . and the incessant command of a court’s conscience 
that justice be done in light of all the facts.”’”  PETA, 901 F.3d at 354-55 (alteration in original) 
(quoting Twelve John Does v. District of Columbia , 841 F.2d 1133, 1138 (D.C.  Cir. 1988)).  A 
court considering a Rule 60(b) request has “general discretion whether to reopen a judgment,” as 
well as “further discretion to impose those conditions [the court] sees fit . . . so long as they are a 
reasonable exercise of [that] discretion.”  11  Charles Alan Wright et al., Federal Practice and 
Procedure § 2857. 
III. DISCUSSION 
The parties dispute three issues : the correct procedural vehicle for assessing pre- and 
post-judgment interest, the applicable rate for pre-judgment interest, and the applicable rate for 
post-judgment interest.  The court concludes that the  proper vehicle  is Rule 60(b)(1), that 
12 C.F.R. § 327.7 governs the rate of pre-judgment interest, and that 28 U.S.C. § 1961 governs the 
rate of post-judgment interest. 
A. Procedural Issues 
In its motion, BANA seeks relief under Rule 60(b)(5).  ECF No. 395.  BANA argues that 
pre- and post-judgment interest should be calculated at the regulatory rate in 12 C.F.R. § 327.7(b) 
and that any judgment incorporating its preferred rate has been satisfied because  it “has already 
paid [an] amount” reflecting that rate,  ECF No. 395, at 11, into “ an account maintained with a 
depository and granted the FDIC a security interest in [the collateral],” ECF No.  390, at  1.  
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Alternatively, BANA asks the court to amend the judgment pursuant to Rule 60(a).  ECF No. 395, 
at 3, 11.  In its cross-motion, the FDIC seeks an amendment to the judgment under Rule 60(a) that 
calculates pre-judgment interest based on a market rate and post-judgment interest under 28 U.S.C. 
§ 1961(a).  ECF No. 398, at 3, 7. 
After reviewing the parties’ briefs, the court directed the parties to file supplemental briefs 
addressing whether an award of pre-judgment interest pursuant to Rule  60(a) is appropriate 
because the Supreme Court has held that a “postjudgment  motion for discretionary prejudgment 
interest constitutes a motion to alter or amend the judgment under Rule 59(e).”  ECF No. 404, at 2 
(quoting Osterneck v. Ernst & Whinney , 489 U.S. 169, 175 (1989)).   If the parties’  motions 
concerning the rate of pre-judgment interest were construed as arising under Rule 59(e)—which 
allows the court to alter or amend a judgment within twenty-eight days of “the entry of judgment,” 
Fed. R. Civ. P. 59(e)—they would be untimely and the court would have no authority to consider 
them.  Id. R. 6(b)(2); see Banister v. Davis , 590 U.S. 504, 507 -08 (2020); Oladokun v. Corr. 
Treatment Facility, 309 F.R.D. 94, 98 (D.D.C. 2015). 
In its supplemental briefs, BANA reiterat es its request for Rule  60(b)(5) relief, or, 
alternatively, for a corrected judgment under Rule  60(a).  ECF No.  407, at 2-6.  BANA further 
asserts that the FDIC’s Rule  60(a) motion is improper because it require s the court to exercise 
discretion in choosing an interest rate, ECF No. 412, at 2, whereas awarding BANA relief under 
Rule 60(a) is permissible because that “would conform the judgment to the rate  . . . required by 
law,” ECF No.  407, at 3.  Accordingly, BANA characterizes the FDIC’s Rule  60(a) motion as 
seeking untimely relief under Rule 59(e).  ECF No. 412, at 3-7. 
For its part, t he FDIC contends that Osterneck and its progeny apply only when a party 
seeks pre-judgment interest “for the first time after a judgment” has been issued “that does not 
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already provide for [it].”  ECF No.  406, at  3.  The FDIC further maintains that its Rule  60(a) 
motion is proper because the court need not exercise discretion to set the presumptively appropriate 
prime rate.  Id. at 4-5.  In the alternative, the FDIC argues that the court’s judgment, ECF No. 386, 
was not “final” if pre-judgment interest “cannot be computed through a simple ministerial act,” in 
which case the pre-judgment interest request would be governed by Rule 54(b), ECF No. 406, at 6.  
Rule 54(b) provides that a judgment “adjudicat[ing] fewer than all the claims or the rights and 
liabilities . . . does not end the action . . . and [the judgment] may be revised at any time before the 
[final judgment].”  Fed. R. Civ. P. 54(b).  Finally, the FDIC claims that the court may construe its 
pre-judgment interest motion as one brought under Rule 60(b) seeking relief from judgment or as 
one under Rule 69(a)(1) seeking enforcement of a judgment.  ECF No. 406, at 9-10. 
The court agrees with the FDIC that Osterneck and Rule  59(e) do not apply here.  In 
Osterneck, the trial court entered a judgment that did not mention pre-judgment interest and a party 
later moved—outside the Rule 59(e) window—to have interest included in the total amount it was 
owed.  489 U.S. at  172.  The Supreme Court held that a post -judgment motion for discretionary 
pre-judgment interest fell within Rule  59(e)’s ambit, and the Court acknowledged in dicta that it 
would view a motion for mandatory pre -judgment interest the same .  Id. at 176-77 & n.3.  The 
D.C. Circuit has applied Osterneck under similar circumstances—when a party’s first request for 
pre-judgment interest came after the court had issued a judgment that was silent as to any interest 
owed.  Winslow v. Fed. Energy Regul. Comm’n, 587 F.3d 1133, 1134-36 (D.C. Cir. 2009).  Other 
circuits have done the same.  See id. (collecting cases); see also  Alessi Equip ., Inc. v. Am. 
Piledriving Equip., Inc., 160 F.4th 38, 41, 43 (2d Cir. 2025).  As the First Circuit has recognized—
in an opinion cited  by the Winslow Court as a proper application of Osterneck’s rule, 587 F.3d 
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at 1136—“Rule 59(e) is the proper procedural vehicle for motions seeking . . . an initial award of 
prejudgment interest,” Crowe v. Bolduc, 365 F.3d 86, 93 (1st Cir. 2004) (emphasis added). 
Here, in its amended complaint , the FDIC requested interest on all underpayments.  ECF 
No. 10, at  22.  BANA contended at the summary judgment stage that  the availability of  
pre-judgment payments gave the FDIC an adequate remedy at law and rendered the equitable 
remedy of disgorgement unavailable.  ECF No.  367-2, at  71-72.  And the court’s March  2025 
judgment awarded the FDIC pre- and post-judgment interest.  ECF No. 386.  The FDIC’s motion 
to set the pre -judgment interest rate at the prime rate was not an initial request for interest and 
Osterneck is therefore inapposite.  Cf. Cannon v. Peck, 36 F.4th 547, 577 (4th Cir. 2022) (holding 
that a post-judgment request for pre-judgment interest fell under Rule  59(e) because the plaintiff 
“never requested prejudgment interest at any time prior to entry of the judgment” and “[t]he district 
court’s judgment award[ed] interest at the post-judgment rate but never mention[ed] or award[ed] 
prejudgment interest” (internal quotation marks omitted)). 
Instead, the court sees two plausible approaches  to resolving the instant dispute over the 
rates of pre- and post-judgment interest .  First—and consistent with the court’s intent when it 
issued its summary judgment opinion  and left the FDIC’s request for interest unresolved—the 
court could consider the judgment, ECF No.  386, not “final” with respect to the interest-related 
matters.  See Com. Union Ins. Co. v. Seven Provinces Ins. Co. , 217 F.3d 33, 37 (1st  Cir. 2000) 
(determining that a judgment was not “final” within the meaning of 28 U.S.C. § 1291 because the 
court issued a judgment but “reserved” the issue of deciding the “appropriate date and rate for 
calculating pre-judgment interest and ordered the parties to submit further briefs on the[] issues” 
(internal quotation marks omitted)).  Second—and to the extent that the court’s judgment was final 
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with respect to interest —the court could construe the parties’ pre -judgment interest requests as 
though they seek relief from a final judgment under Rule 60(b)(1). 
Because the court’s March 2025 judgment was, by its own terms, final within the meaning 
of Rule 58(a), see ECF No. 386, the court will proceed under Rule 60(b)(1).  Notwithstanding any 
apparent finality, “deciding . . . how much prejudgment interest should be granted” requires the 
court to “examine  . . . matters encompassed within the merits of the underlying action.”  
Osterneck, 489 U.S. at 176.  By suggesting that its order was final without  resolving the parties’ 
dispute over the applicable interest rates, the court made a legal error.  See Kemp, 596 U.S. at 534 
(holding that Rule 60(b)(1) encompasses a judge’s legal errors).  Contrary to BANA’s suggestion, 
the FDIC ’s motion for pre -judgment interest at the prime rate is not a “Trojan horse for 
sneaking . . . [a] tardy Rule 59(e) motion[] into the courtroom under the guise of Rule 60(b).”  ECF 
No. 407, at 8 (quoting United States v. Deutsch , 981 F.2d 299, 302 (7th  Cir. 1992)).  It was the 
court’s error, not the FDIC’s, to issue a seemingly final judgment when the FDIC’s request for 
judgment-related interest remained outstanding.  Accordingly, the court will award the FDIC 
pre- and post-judgment interest under Rule 60(b)(1) and direct the parties to file a joint status 
report with pre - and post-judgment interest calculations before the court issues a corrected and 
final Rule 58(a) judgment. 
B. Pre-Judgment Interest Rate 
Congress has enacted a general “statute governing the award of postjudgment interest in 
federal court litigation,” but “there is no comparable legislation regarding prejudgment interest. ”  
City of Milwaukee v. Cement Div., Nat’l Gypsum Co., 515 U.S. 189, 194 (1995) (citation omitted); 
see 28 U.S.C. § 1961 (setting a post-judgment interest rate); see also infra Section III.C (awarding 
post-judgment interest).  Nor does the FDIA explicitly make pre-judgment interest available.  See 
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12 U.S.C. § 1817.  Instead, Congress has directed the FDIC to promulgate regulations concerning 
risk-based assessments owed by members of the Deposit Insurance Fund , id. § 1817(b), and 
mandated that “payments . . . be made in such manner and at such time or times as the 
[FDIC] . . . prescribe[s] by regulation ,” id. § 1817(c)(2)(B).  Those regulations require each 
“insured depository institution” to pay interest “on any underpayment of [an] assessment,” 
12 C.F.R. § 327.7(a)(1), but also commit the FDIC to “pay[ing] interest on any overpayment,” id. 
§ 327.7(a)(2). 
BANA did not dispute in its summary judgment briefs that the FDIC would be entitled to 
pre-judgment interest if the court determined that BANA was liable under the FDIA.  See generally 
ECF Nos.  367-2, 376 -2.  Indeed, BANA’s principal objection to the FDIC’s equitable unjust 
enrichment claim was that the “availability of prejudgment interest” provided the FDIC with an 
adequate remedy at law.  ECF No.  367-2, at 71; ECF No. 376-2, at 33.  The sole contested issue 
concerning pre-judgment interest is what rate a pplies to the amount that BANA must pay.  See 
ECF No. 395, at 10 n.7. 
To answer that question, BANA asserts that the “binding text” of the FDIC’s regulation , 
12 C.F.R. § 327.7(b)(1), “requires calculating prejudgment interest” at the so -called “regulatory 
rate,” ECF No. 395, at 14.  The regulatory rate for a given fiscal quarter “is the coupon equivalent 
yield of the average discount rate set on the 3 -month Treasury bill at the last auction held by the 
United States Treasury Department during the preceding [quarter].”  12 C.F.R. § 327.7(b)(1).  The 
FDIC rejects the premise that its own regulation binds the court.  ECF No. 398, at 16-20.  Rather 
than rely on the regulatory rate, the FDIC asks the court to award pre-judgment interest based on 
the “prime rate”—a “generally applicable ‘market rate,’” id. at 8 (quoting Forman v. Korean Air 
Lines Co. , 84 F.3d 446, 450 (D.C.  Cir. 1996))—“to prevent unjust enrichment, disincentivize 
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litigation delay, and compensate [the FDIC] for the time value of money,” id. at 10.  Having 
considered the parties’ arguments—including BANA’s and the FDIC’s respective expert reports 
that bear on the interest rate calculation, ECF Nos. 250-5, 400-4—the court concludes that the 
regulatory rate adopted by the FDIC is the appropriate remedy under the circumstances.  The court 
therefore declines to reach BANA’s argument that 12 C.F.R. § 327.7 prohibits the court from 
setting pre-judgment interest at any other rate.2  ECF No. 395, at 14; ECF No. 400-2, at 3-7 & n.1. 
“[W]hether pre-judgment interest is to be awarded is subject to the discretion of the court 
and equitable considerations.”  Oldham v. Korean Air Lines Co., Ltd , 127 F.3d 43, 54 (D.C.  Cir. 
1997) (alteration in original) (quoting Motion Pictures Ass’n of Am., Inc. v. Oman, 969 F.2d 1154, 
1157 (D.C. Cir. 1992)).  “The purpose of such awards is to compensate the plaintiff for any delay 
in payment resulting from the litigation.”  Id.; see Motion Pictures Ass’n of Am., 969 F.2d at 1157 
(“[I]nterest compensates fo r the time value of money, and thus is often necessary for full 
compensation.”).  Pre-judgment interest therefore prevents a party from unjustly enriching itself 
by retaining wrongfully withheld  money.  See Moore v. CapitalCare, Inc. , 461 F.3d 1, 13 
(D.C. Cir. 2006) (discussing the purposes of pre -judgment interest in a case involving unpaid  
benefits).  It also “promotes settlement and deters any attempt to benefit unfairly from inevitable 
litigation delay.”  Id.  These considerations from the D.C. Circuit substantially overlap with those 
the Supreme Court outlined in a related context.  In Osterneck, the Court explained that when 
overseeing a securities action, a court “deciding if and how much prejudgment interest should be 
granted” will “consider a number of factors, including whether prejudgment interest is necessary 
 
2 The court similarly declines to consider BANA’s argument that the FDIC has conceded during 
this litigation that the regulatory rate is appropriate.  ECF No.  395, at  14-17; ECF No.  400-2, 
at 9-11. 
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to compensate the plaintiff fully for his injuries, the degree of personal wrongdoing on the part of 
the defendant, the availability of alternative investment opportunities to the plaintiff, whether the 
plaintiff delayed in bringing or prosecuting the acti on, and other fundamental considerations of 
fairness.”  489 U.S. at 176. 
According to the FDIC, the prime rate fulfills these purposes, but the regulatory rate does 
not.  ECF No. 398, at 10-15.  The FDIC contends that “BANA’s underpayments were effectively 
an involuntary, interest-free loan from the [Deposit Insurance Fund],” which BANA “was able to 
use to make loans or other investments at market rates.”  Id. at 11.  It further argues that awarding 
pre-judgment interest at the regulatory rate “would enable banks to earn substantial windfalls by 
capitalizing on the difference between the market rate of return and the low 3-month rate” set forth 
in 12 C.F.R. § 327.7(b).  ECF No. 398, at 12.  Finally, the FDIC maintains that BANA’s proposed 
rate “would severely undercompensate the FDIC” because the three -month Treasury rate has 
“frequently hovered around 0%” and therefore “does not compensate for the effects of inflation.”  
Id. at 13. 
To be sure, the D.C.  Circuit has held that “the use of the prime rate for determining 
prejudgment interest is well within the district court’s discretion.”  Forman, 84 F.3d at  450.  In 
Forman—which involved a damages judgment for a plaintiff against a foreign airline—the Circuit 
concluded that the prime rate was “ more appropriate” than the “Treasury bill rate.”  Id.  The 
Forman Court reasoned that the prime rate was “what the victim must pay —either explicitly if it 
borrows money or implicitly if it finances things out of cash on hand—and the rate the wrongdoer 
has available to it.”  Id. at 450-51 (quoting In re Oil Spill by the Amoco Cadiz off Coast of Fr. on 
March 16, 1978, 954 F.2d 1279, 1332 (7th Cir. 1992)).  The FDIC’s argument about the prime 
rate relies heavily on the fact that it is presumptively appropriate.  See ECF No. 398, at 7-10; ECF 
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No. 402, at 2-5.  Yet the D.C. Circuit has also confirmed that a district court has “the authority to 
adopt a rate” other than the prime rate “that better approximates what a specific defendant might 
pay for an unsecured loan.”  Cont’l Transfert Tech. Ltd. v. Federal Government of Nigeria, 603 F. 
App’x 1, 4 (D.C. Cir. 2015) (emphasis added). 
Notwithstanding any presumption in favor of the prime rate , the regulatory rate better 
approximates both what was available to BANA when it underpaid its assessments and the 
corresponding loss to  the FDIC.  The FDIC’s insistence otherwise, ECF No.  398, at  7-18, is 
squarely undermined by the justification the agency offered when it adopted the current formula 
for the regulatory rate.  More than thirty years ago, the FDIC promulgated a rule that changed the 
applicable interest rate on unpaid or overpaid asses sments.  Truth in Lending; Mortgage 
Disclosures; Correction, 60 Fed. Reg. 50400, 50403 (Sep. 29, 1995) (codified at 12 C.F.R. pt. 226) 
(“1996 Final Rule”).  The FDIC previously had used the Treasury Department’s current value of 
the federal funds rate, issued under the Treasury Fiscal Requirements Manual (“TFRM rate”), but 
the FDIC determined that the TFRM rate was “based on aged data” and “quickly bec[a]me[] 
obsolete in volatile interest -rate markets .”  Id. at 50401.  Accordingly, the FDIC replaced the 
TFRM rate with a more “market -sensitive” measure: the “coupon equivalent rate set on the 
3-month Treasury bill at the last auction held by the U.S. Treasury Department before the start of 
each quarter.”  Id. at 50403.  Critical to the current dispute is why the FDIC chose the three-month 
Treasury rate: it “more closely (but not necessarily exactly) approximates the market value of 
funds both for the [financial] institution and for the FDIC.”  Id.  Upon receipt of an overpayment, 
the FDIC anticipated “return[ing] to the institution the benefit that the institution would have been 
able to obtain by investing the excess amount.”  Id.  And if a bank underpaid its assessment, “the 
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institution will have to restore to its fund . . . the economic value of the interest that the fund would 
otherwise have earned.”  Id. 
When promulgating the 1996 Rule, the FDIC considered but rejected a proposal offered by 
a bankers’ association to use the Federal Funds rate because “the FDIC invests its funds with the 
Treasury Department, and not in the Federal Funds market.”  Id. at 50405.  The FDIC further 
explained in the proposed version of the 1996  Rule that it had considered but rejected another 
approach that would set interest rates at the “‘composite yield at market’ rate ,” which “look[s] at 
the interest that the [FDIC’s] portfolios actually earned.” 3  Assessments, 60 Fed. Reg. 40776, 
40779 (Aug. 10, 1995) (“1996 Proposed Rule”).  Put differently, the composite yield at market 
rate “ would represent the FDIC’s actual benefits (or costs)  from the overcollection (or 
undercollection) of assessments” : “[i]f an institution were to overpay its assessment, the FDIC 
would return to the institution every bit of the benefit that the FDIC had received from the 
overpayment[,]” and “if an institution were to underpay its assessment, it would be obliged to 
restore to its fund the economic value of the interest the fund wou ld otherwise have earned, and 
the fund would be made whole.”  Id. at 40780.  Despite the accuracy of this approach, the FDIC 
nevertheless concluded that the composite yield at market rate was not suitable for a regulatory 
rate because it relies on “proprietary information” and fails to “approximate the market value of 
the funds—that is, the interest tha t an institution earned or could have earned by investing the 
funds.”  Id. 
 
3 At the time, the FDIC maintained two portfolios, the Bank Insurance Fund (“BIF”) and Savings 
Association Insurance Fund  (“SAIF”).  See 1996 Rule, 60 Fed. Reg. at  50403.  In the Federal 
Deposit Reform Act of 2005, Pub. L. No.  109-173, §§ 8-9, 119 Stat. 3601, Congress merged the 
BIF and SAIF into the Deposit Insurance Fund, id. at 3610-19.  
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The upshot of the FDIC’s regulatory history is that the regulatory rate prevents unjust 
enrichment and adequately compensates the FDIC .  As it concerns unjust enrichment, the FDIC 
implemented the regulatory rate because it “approximate[s] the market value” of money retained 
by a bank “investing the funds” rather than paying its full assessment.  Id.  Over three decades, the 
FDIC has promulgated rules affect ing assessment payments but left undisturbed both the 
regulatory rate and the rate’s underlying justification.  See e.g., Assessments, 71 Fed. Reg. 69270, 
69271 (Nov. 30, 2006) (codified at 12 C.F.R. pt. 327) ( adopting various changes including 
quarterly, rather than semiannual, assessments ); Special Assessment Pursuant to Systemic Risk 
Determination, 88 Fed. Reg. 83329, 83331, 83348 (Nov. 29, 2023) (imposing a special assessment 
on insured depository institutions, the underpayment of which is subject to interest payments 
calculated according to the regulatory rate).   At bottom , the FDIC’s rationale for adopting the 
regulatory rate is compelling evidence that requiring BANA to pay interest at that rate prevents 
any unjust enrichment.  See ECF No. 398, at 10 (arguing that “prejudgment interest serves three 
core purposes,” including “to prevent unjust enrichment”). 
The FDIC rejects this conclusion because “[i]f th[e] [regulatory] rate is awarded, BANA 
would retain the spread between the market rate (prime) and the lower T-Bill rate.”  Id. at 11.  That 
argument assumes that BANA could have used the capital saved by underpaying its assessments 
“to make loans or other investments at market rates (prime).”  Id.  For support, the FDIC relies on 
First National Bank of Chicago v. Standard Bank & Trust , 172 F.3d 472 (7th Cir. 1999).  There, 
a district court concluded that in the aftermath of a check -fraud scheme, First National Bank of 
Chicago had failed to credit Standard Bank & Trust money from checks drawn on Standard Bank 
accounts.  Id. at 474.  To compensate Standard Bank  for its loss, the court awarded the bank  
pre-judgment interest on the returned checks.  Id.  The Seventh Circuit held that the district court 
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abused its discretion by setting interest at the lower T-Bill rate rather than the higher prime rate on 
the basis that the case was “close ,” which is “not material to the issue of prejudgment interest.”   
Id. at 480 (internal quotation marks omitted).  And the Circuit reasoned that First National Bank 
of Chicago effectively was “allowed to borrow funds from Standard Bank at a rate well below 
what Standard would have charged any other customer.”  Id. at 481. 
First National Bank of Chicago has no bearing on this case.  It may be true that, ordinarily, 
interest pegged to the market rate approximates what the defendant profited, or could have profited, 
from its unlawful conduct.  But t he FDIC’s assumption that BANA used money associated with 
its underpaid assessments to lend or invest at the prime rate is unsupported by the record .  The 
FDIC provides no authority for the proposition that BANA deployed its capital in that manner, see 
ECF No. 398, at 10-12, except by pointing to Treasury notes that BANA purchased as part of an 
agreement to pledge collateral that would cover a judgment in this action, ECF No. 402, at 6 (citing 
ECF No. 400-2, at 12; then citing ECF No.  400-3).  Characterizing those deposits as market-rate 
profits to BANA inverts reality because those payments reflect money set aside for the FDIC —
and, to the extent the collateral gained interest, it did so at a rate approximating the regulatory, and 
not the prime, rate.  See ECF No. 400-2, at 12; ECF No. 400-3.4  Nor can the FDIC’s assumption 
 
4 During this litigation, the FDIC’s expert, Karl Snow, asserted that “[t]he unpaid deposit insurance 
assessments, acting as injected equity, were available to BANA for any business purpose ,” and 
therefore BANA’s ill-gotten profits could be measured by a return on equity.  ECF No. 250-5, at 4.  
Yet BANA’s rebuttal expert, E. Emre Carr, explained that considering unpaid assessments as 
profit from the common shareholders’ perspective is flawed because it conflates the bank’s 
performance with its return on its own investments.  ECF No. 400-4, at 11-18.  The FDIC did not 
contest Dr.  Carr’s assessment in its summary judgment briefing, see generally  ECF No s. 364, 
376-2, or in its briefing on pre - and post-judgment interest, see ECF No. 398, at 4, 22 (restating 
the FDIC’s expert’s conclusion) ; ECF No.  402, at  5, even though BANA relied on Dr.  Carr’s 
opinion in its opposition to the FDIC’s motion  seeking interest, ECF No. 400-2, at 12 n.10; ECF 
(continued on next page) 
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be squared with the fundamental premise underlying the 1996 Rule, which chose the three-month 
Treasury bill because it “approximates” what “an institution earned  . . . by investing the funds” 
rather than paying the FDIC’s assessment.  1996 Proposed Rule, 60 Fed. Reg. at 40780. 
The regulatory history also illustrates why the Section 327.7 rate fairly compensates the 
FDIC for the value of BANA’s underpayments .  To be sure, t he FDIC acknowledged that a 
“composite yield at market rate ,” rather than the regulatory rate,  would account for “every bit of 
the benefit that the FDIC” receives from retaining capital .  Id. at 40779-40780.  Such a metric 
would more closely estimate what the FDIC lost from BANA’s underpayments.  When it adopted 
the regulatory rate, the FDIC nonetheless believed that its chosen rate “closely (but not necessarily 
exactly) approximates the market value of funds . . . for the FDIC.”  1996 Final Rule, 60 Fed. Reg. 
at 50403.  The court is not inclined to second -guess the FDIC’s judgment, refined through notice 
and comment and left undisturbed for three decades, about what market instruments approximate 
its own returns for investments in the Deposit Insurance Fund. 
The FDIC’s rejoinder  here—that historically low three -month Treasury yields “do[] not 
compensate [the FDIC] for the effects of inflation”  since BANA underpaid its assessments,  ECF 
No. 398, at  13—is misplaced.  Assessments against financial institutions fund the Deposit 
Insurance Fund, Fed. Deposit Ins. Corp., Deposit Insurance Fund ,5 and money in the Deposit 
 
No. 400-4.  Instead, the FDIC admitted that it was not “ask[ing] or expect[ing] the [c]ourt to make 
factual findings” on the issues surfaced in the expert reports.  ECF No.  402, at 6 n.1.  The court 
does not principally rely on the parties’ expert opinions, but it notes that the assumption made by 
the FDIC’s expert—that unpaid assessments provide d BANA capital for any busin ess purpose, 
including equity for shareholders —is contradicted by the operative assumption in the rule 
establishing the regulatory rate , which is that the three -month Treasury rate tracks “the interest 
that an institution earned  . . . by investing the funds” it should have paid to the FDIC.  
1996 Proposed Rule, 60 Fed. Reg. at 40780. 
5 Available at https://perma.cc/H9TQ-FRTH. 
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Insurance Fund must, by statute , “be invested in obligations of the United States,” 12  U.S.C. 
§ 1823(a)(1).  Or, as the FDIC puts it, the Deposit Insurance Fund “invests in treasury securities,” 
ECF No. 398, at 14, which are lower -risk than privately  traded securities and therefore offer a 
lower yield.  Placing too much weight on inflation  would ignore the reality that the Deposit 
Insurance Fund has a relatively conservative portfolio—and for good reason, as it insures deposits 
and protects depositors of insured banks.  Cf. Pittington v. Great Smoky Mountain Lumberjack 
Feud, LLC, 880 F.3d 791, 808 (6th  Cir. 2018) (explaining in a pre-judgment interest dispute that 
“where the plaintiff is bound by fiduciary duties to invest conservatively, a court does not abuse 
its discretion in viewing the low market-interest rates associated with ‘the safe type of investment 
that is expected of a fiduciary ’ as adequate, even if the court fails to ‘specifically address the 
[presumably higher] rate of inflation in relation to the treasury bill rate. ’” (alteration in original) 
(quoting Meoli v. Huntington Nat’l Bank, 848 F.3d 716, 736 (6th Cir. 2017))). 
The FDIC lodges another overarching objection to BANA’s request for the regulatory rate: 
Section 327.7 governs only “short-term” assessments “in the course of the regulatory process,” not 
“court-ordered prejudgment interest on a litigation judgment.”  ECF No.  398, at  4.  As the 
argument goes, the 1996  Rule’s adoption of a quarterly -based assessment system merely 
“approximates the value of funds for a 91 -day delay in payment.”  Id. at 5.  That is true but 
irrelevant.  Although in any given quarter , the FDIC estimates the value of under - or overpaid 
assessments based on a quarterly “delay in payment ,” id., Section  327.7 accounts for market 
fluctuations by pegging the interest rate to the performance of the three -month Treasury bill , 
12 C.F.R. § 327.7(b)(1).  Interest accrued in one quarter continues to grow in the next at the next 
quarter’s applicable interest rate.  See ECF No. 395-3 (detailing the change in interest rates and 
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accrued interest on a quarterly basis).  Put differently, the regulatory rate is a market rate—just a 
lower one than the FDIC would like. 
BANA has calculated the amount of pre -judgment interest based on the Section 327.7(b) 
rate for the relevant time period , ECF No.  395-2, at  3 (concluding that pre -judgment interest 
should be $109.8 million), and the FDIC appears to agree with that calculation, see ECF No. 398, 
at 11 (noting that pre -judgment interest “at the 3 -month rate” would be “$109 million”).  
Accordingly, the court will award the FDIC pre -judgment interest at the regulatory rate .  ECF 
No. 395-2, at 3.  However, in an abundance of caution, the court will direct the parties to file a 
joint status report on or before April 14, 2026 setting forth their calculations for pre -judgment 
interest under the regulatory rate. 
C. Post-Judgment Interest 
The parties also dispute the appropriate rate for post-judgment interest.  In BANA’s view, 
the regulatory rate applies with equal force to a post-judgment interest award, ECF No. 395, at 20, 
whereas the FDIC asserts that the statutory rate set forth in 28 U.S.C. § 1961(a) is appropriate, 
ECF No.  398, at  25; ECF No.  402, at  15.  The court agrees with the FDIC and will award 
post-judgment interest as prescribed by the governing statute. 
“[P]ost-judgment interest is a creature of statute.”  Williamsburg Wax Museum, Inc. v. 
Historic Figures, Inc. , 810 F.2d 243, 248 (D.C.  Cir. 1987).  Congress has determined that 
“[i]nterest shall be allowed on any money judgment in a civil case recovered in a district court.”  
28 U.S.C. § 1961(a).  “Such interest shall be calculated from the date of the entry of the judgment, 
at a rate equal to the weekly average 1-year constant maturity Treasury yield, as published by the 
Board of Governors of the Federal R eserve System, for the calendar week preceding the date of 
the judgment.”  Id. 
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BANA’s assertion that “‘more specific provisions . . . may control’ over that default rate,” 
ECF No. 395, at 21 (quoting In re Imperial Petrol . Recovery Corp., 84 F.4th 264, 272 (5th  Cir. 
2023) (per curiam)), has no force here.  The Fifth Circuit decision that BANA cites rightly notes 
that courts have followed a more specific statutory provision concerning post -judgment interest 
rather than relying on 28 U.S.C. § 1961.  In re Imperial Petrol. Recovery Corp. , 84 F.4th at  272 
(collecting cases in the bankruptcy context); cf. Holly v. Chasen , 639 F.2d 795, 797 (D.C.  Cir. 
1981) (noting that “detailed statutory provisions” governing interest available for certain 
judgments against the United States would “become superfluous” if 28 U.S.C. § 1961 “confer[red] 
an automatic entitlement to interest at [that statute’s] rate”).   But BANA has not located any 
authority for the proposition that an agency’s regulation may supersede Congress’s determination 
of the appropriate post-judgment interest rate.  Nor does the FDIC’s regulation, 12 C.F.R. § 327.7, 
expressly address interest following a judgment in an assessment action under 18  U.S.C. 
§ 1817(g)(1).  Absent a specific statute that controls post-judgment interest in civil actions brought 
by the FDIC, the court concludes that the mandatory provision for interest governs here. 
Accordingly, the court will award the FDIC post -judgment interest at a rate of 4.088% , 
which the parties concede is the rate provided by 28 U.S.C. § 1961(a).  ECF No. 395, at 21; ECF 
No. 398, at 25.  Post-judgment interest will accrue from the date of the court’s summary judgment 
merits order and be computed daily and compounded annually .  ECF No.  386; 28  U.S.C. 
§ 1961(b).  The court takes the parties to agree that post-judgment interest should accrue from that 
date.  Neither argues otherwise—and, for the parties to agree that 4.088% is the rate mandated by 
28 U.S.C. § 1961(a), they necessarily determined that the “date of the judgment” was March  31, 
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2025.6  See 28 U.S.C. §  1961(a) (requiring interest to run “from the date of the entry of the 
judgment” at a rate based on the “Treasury yield  . . . for the calendar week preceding the date of 
the judgment”). 
IV. CONCLUSION 
For the foregoing reasons, it is hereby ORDERED that BANA’s Motion to Deem 
Judgment Satisfied, or in the Alternative, Amend Judgment, ECF No. 395, is GRANTED in part 
and DENIED in part, and the FDIC’s Cross-Motion to Fix Pre- and Post-Judgment Interest, ECF 
No. 398, is GRANTED in part and DENIED in part.  It is further ORDERED that the parties 
shall file a joint status report on or before April  14, 2026 advising the court of the parties’ 
calculations for pre-judgment and post-judgment interest consistent with this opinion.  See supra 
Sections III.B, III.C. 
SO ORDERED. 
  
LOREN L. ALIKHAN  
United States District Judge  
Date: March 31, 2026 
 
6 Nevertheless, in an abundance of caution, t he court will direct the parties to confirm in the 
forthcoming status report, see supra p. 22, their calculations for the appropriate amount of 
post-judgment interest. 
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