Each depositor insured to at least $250,000 per insured bank



Home > Regulation & Examinations > Bank Examinations > FDIC Enforcement Decisions and Orders




FDIC Enforcement Decisions and Orders

ED&O Home | Search Form | Text Search | ED&O Help


{{3-31-91 p.A-1542.24}}
   [5154C] In the Matter of Frank E. Jameson, Docket No. FDIC-89-83e(7-24-90).

   FDIC Board denies Petitioner's motions for rehearing and for stay pending appeal of its Order of Removal and of Prohibition from Further Participation. (The decision was affirmed by the United States Court of Appeals for the Fifth Circuit, 931 F.2d 290.)

   [.1] Practice and Procedure—Rehearing—Burden of Persuasion
   Petitioner bears burden of persuading the board to reconsider its decision, specifying reasons and setting forth relevant information that for good cause was not previously set forth.

   [.2] Practice and Procedure—Stay Pending Appeal
   Petitioner bears burden of demonstrating that his case warrants issuance of stay pending appeal, and must establish likelihood of his success on the merits, irreparable injury, no substantial harm to other interested persons, and no harm to the public interest.

In the Matter of
FRANK E. JAMESON, individually
and as vice president, a director, and a
person participating in the conduct of
the affairs of FIRST STATE BANK
LIBERTY, TEXAS
(Insured State Nonmember Bank)
DECISION
DENYING MOTIONS FOR
REHEARING AND STAY PENDING
APPEAL

DECISION

I. BACKGROUND

   On June 12, 1990, the Board of Directors ("Board") of the Federal Deposit Insurance Corporation ("FDIC") entered an Order of Removal and of Prohibition from Further Participation ("Order") against Frank E. Jameson ("Petitioner"). The Order, which takes effect thirty days after the date of its entry and remains in effect for three years thereafter, removes Petitioner from his position as an officer and director of First State Bank, Liberty, Texas. It also prohibits him from acting as an institution-affiliated party or participating in any manner in the conduct of the affairs of any insured depository institution and several other related types of entities,1absent the prior written consent of the appropriate Federal financial institutions regulatory agency. Finally, the Order forbids petitioner to act with respect to voting


1 These other entities are: institutions treated as insured banks under section 8(b)(3), (4) of the Federal Deposit Insurance Act, 12 U.S.C. §1818(b)(3), (4); any insured credit union under the Federal Credit Union Act; any institution chartered under the Farm Credit Act of 1971; any appropriate Federal depository institution regulatory agency; the Federal Housing Finance Board and any Federal Home Loan Bank; and the Resolution Trust Corporation.
{{3-31-91 p.A-1542.25}}rights in any such institution or vote for a director of any insured depository institution.
   The Board entered this Order pursuant to section 8(e) of the Federal Deposit Insurance Act ("FDI Act") (12 U.S.C. §1818(e)) based on its findings in its Decision of June 12, 1990. The Board rejected the Administrative Law Judge's ("ALJ") conclusions of law and findings of fact, holding instead that under section 8(e)(1) of the FDI Act, Petitioner had engaged in breaches of fiduciary duty and unsafe or unsound banking practices for his own financial gain, and that his conduct involved personal dishonesty and demonstrated a willful and continuing disregard for the safety and soundness of First State Bank.
   Petitioner now moves that the Board grant him a rehearing of his case, on the grounds that the Board's finding is contrary to the weight of the evidence. Petitioner also requests that the Board grant him a stay of the Order, pending his appeal of the matter. After full consideration of this matter, the Board denies both motions for the following reasons.

II. MOTION FOR REHEARING

   The Board denies Petitioner's motion for rehearing. He has failed to show sufficient grounds for reconsideration of his case, and the Board's Decision is fully supported by the evidence on the record below.

   [.1] Petitioner bears the burden of persuading the Board to reconsider its Decision.2The FDIC's regulations require that, at a minimum, a petitioner seeking reconsideration of a Board decision should "(i) specify reasons why the FDIC should reconsider its action and (ii) set forth relevant information that for good cause was not previously set forth." 12 C.F.R. §308.44(b).
   Petitioner has failed to show any reason or proffer any argument why the FDIC should reconsider its decision. Petitioner's motion states only that the "order of the [C]orporation is contrary to the evidence. The order and findings of ALJ Charnow (sic) should be adopted." Petitioner's Motion, para. I. This bare allegation does not begin to establish specific grounds for reconsideration of the Board's decision; nor does it allege that the record below was in any way incomplete.
   Furthermore, the Board's decision is fully supported by the weight of the evidence on the record below. The Board made a careful review of the entire record. Decision at p. 6. The Board examined and cited to the evidence on the record as it reconsider its Decision. The FDIC's regulations require that, at a minimum, a petitioner seeking reconsideration of a Board decision should "(i) specify reasons why the FDIC should reconsider its action and (ii) set forth relevant information that for good cause was not previously set forth." 12 C.F.R. §308.44(b).
   Petitioner has failed to show any reason or proffer any argument why the FDIC should reconsider its decision. Petitioner's motion states only that the "order of the [C]orporation is contrary to the evidence. The order and findings of ALJ Chanow (sic) should be adopted." Petitioner's Motion, para. I. This bare allegation does not begin to establish specific grounds for reconsideration of the Board's decision; nor does it allege that the record below was in any way incomplete.
   Furthermore, the Board's decision is fully supported by the weight of the evidence on the record below. The Board made a careful review of the entire record. Decision at p. 6. The Board examined and cited to the evidence on the record as it pertained to every element of the cause of action. See Decision at pp. 12–19. Finally, the Board found that "counsel for the FDIC has proven by the preponderance of the evidence each of the elements of an action under section 8(e)(1) of the Act." Decision at p. 19. In addition, the Board specifically found that all but one of the ALJ's key findings were contrary to the evidence. See Decision at pp. 13–19.
   Petitioner has not directed the Board's attention to any particular findings on which the Board's conclusions are contrary to the


2 Simmons v. ICC, 760 F.2d 126, 132 (11th Cir. 1985), cert. denied, 474 U.S. 1055 (1986). Cf Coalition on Sensible Transp., Inc. v. Dole, 826 F.2d 60, 71 (D.C. Cir. 1987) (administrative rehearing under Federal Aid Highways Act denied because petitioner could not show any significant new information available); Farmers Export Co. v. United States, 758 F.2d 733, 737 (D.C. Cir. 1985) (petitioner required to show "material error, new evidence, or substantially changed circumstances" to obtain rehearing under 49 C.F.R. §1115.4); Cities of Campbell v. FERC, 770 F.2d 1180, 1191 (D.C. Cir. 1985) (petitioner must show extraordinary circumstances to obtain reopening of administrative evidentiary hearing).
{{3-31-91 p.A-1542.26}}evidence. Neither does he set forth any new information as permitted by 12 C.F.R. §308.44(b)(ii) nor any other instances which might be said to have prejudiced his case and entitled him to a rehearing. Therefore, the Board denies the Petitioner's motion for rehearing.

III. MOTION FOR STAY PENDING
APPEAL

   [.2] The Board denies Petitioner's motion for stay of the Order pending appeal because he fails to make any showing that the circumstances of this case warrant one.3The granting of a stay is an extraordinary exercise of the Board's discretion. FDIC Enf. Dec. 88-156c&b at 3 (Nov. 7th, 1989). Petitioner bears the burden of demonstrating that his case warrants the issuance of a stay pending appeal. Id.; Ohio v. NRC, 812 F.2d 288, 290 (6th Cir. 1987); Cuomo v. NRC, 772 F.2d 972, 978 (D.C. Cir. 1985).
   In deciding whether to grant a motion to stay pending appeal, the Petitioner must establish that four conditions exist: (1) a likelihood that the petitioner will prevail on the merits of the appeal; (2) irreparable injury to the petitioner unless the stay is granted; (3) no substantial harm to other interested persons; and (4) no harm to the public interest. FDIC-83-172b, 1984 FDIC Enf. Dec. LEXIS 10 (November 19, 1984). See FDIC-88-156c&b at 3 (Nov. 7th, 1989).
   Petitioner fails to even address these criteria, alleging only that he should be granted a stay so that he may remain in bank employment until his appeal is determined. Petitioner's Motion, para. II. Petitioner's motion presents no factual or legal basis that persuades the Board that he is likely to prevail on appeal, other than his contention (which he have considered and rejected) that the Board's decision is contrary to the weight of the evidence. Additionally, the Petitioner does not allege that he would be irreparably injured if a stay was not granted.4
   Finally, the Petitioner does not allege or present facts to establish that a grant of stay would not cause substantial harm to others or the public interest. Congress has charged the Board with preventing and correcting unsafe or unsound practices in the banking industry, and a secure, stable banking system is vital to the public interest of this nation. In light of Petitioner's failure to even allege facts supporting any of the considerations in this analysis, these safety and soundness concerns must take precedence in this case. See Ohio v. NRC, 812 F. Supp. at 290 (four considerations to be balanced). Therefore, the Board denies Petitioner's motion for stay.

IV. ORDER

   Accordingly, for the reasons set forth in the Decision, it is hereby ORDERED that Petitioner's Motions for Rehearing and Stay are hereby DENIED.
   By direction of the Board of Directors.
   Dated at Washington, D.C., this 24th day of July, 1990.


3 The Board notes that section 8(h)(3) of the FDI Act (12 U.S.C. §1818(h)(3)) provides that commencement of proceedings for judicial review shall not, unless specifically ordered by the court, operate as a stay of any order issued by the appropriate Federal banking agency.

4 The Board recognizes that arguments may be made that the imposition of a temporary suspension could cause irreparable harm to one's career. See [Anonymous] v. FDIC, 617 F.Supp. 509, 516 (D.D.C. 1985). However, Petitioner does not allege that his circumstances fall within the scope of that court's decision.

ED&O Home | Search Form | Text Search | ED&O Help

Last Updated 6/6/2003 legal@fdic.gov