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[¶5228] In the Matter of Wayne Field and Lindquist & Vennum, Capital Bank, St. Paul, Minn., FDIC Docket Nos. 92-249c&b, 92-250e, 92-251e, and 92-252k (9-29-95).
FDIC denies motion for stay pending judicial review of an order requiring payment of civil money penalties and reimbursement of attorneys' fees.
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[.1] Practice and Procedure—Stay
Four conditions must be met before the board will enter a stay of an order pending judicial review: (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.
[.2] Practice and Procedure—Stay
Respondents' assertion of monetary loss does not meet their burden of showing irreparable injury, and thus is not a sufficient basis to grant a stay of an FDIC order pending judicial review.
[.3] Practice and Procedure—Stay
Respondents' unsupported contention that during pendency of their appeal of an FDIC order they do not intend to engage in the unsafe or unsound banking practices and violations listed in the order and their financial ability to comply with the order will not deteriorate is insufficient to show the absence of harm to the public interest.
In the Matter of WAYNE FIELD and
LINDQUIST & VENNUM,
as institution-affiliated parties of
CAPITAL BANK
ST. PAUL,MINNESOTA
(Insured State Nonmember Bank)
FDIC-92-249c&b
FDIC-92-250e
FDIC-92-251e
FDIC-92-252k
On August 31, 1995, and September 5, 1995, respectively, Respondents Lindquist & Vennum and Wayne Field ("Respondents") each filed with the Board of Directors ("Board") of the Federal Deposit Insurance Corporation ("FDIC") a Motion for Stay Pending Judicial Review ("Motion") of the Board's Decision and Order ("Order") dated July 5, 1995, but served by mail by letter dated August 15, 1995.1
The July 5, 1995, Order was issued pursuant to the Board's authority under section 8(e) of the Federal Deposit Insurance Act ("FDI Act"), 12 U.S.C. § 1818(e), after a full hearing on the merits of the case. The Board found that Respondents had engaged in violations of Regulation O of the Board of Governors of the Federal Reserve System, breaches of fiduciary duty, and unsafe and unsound practices which caused significant loss to Capital Bank, St. Paul, Minnesota.
Section 8(h)(3) of the FDI Act specifically provides that the 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. Thus, the grant of a stay is an extraordinary exercise of the Board's discretion. See 12 C.F.R. § 308.41 (Board may exercise its discretion to grant a stay).
[.1] The Board has previously held that petitions for a stay pending judicial review must demonstrate that four conditions are met before a stay will be entered: (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. In the Matter of Ronald J. Grubb, Bank of Hydro, Hydro, Oklahoma, Docket No. FDIC-88-282k and FDIC-89-111e, 2 P-H FDIC Enf. Dec. ¶8021 (1992); In the Matter of Harold A. Hoffman, Joseph L. Hayes and Alaska Continental Bank, Anchorage, Alaska, Docket No. FDIC-88-156c&b, 2 P-H FDIC Enf. Dec. ¶5141 (1989); 7 (Pt. 2) J. Moore, J. Lucas & K. Sinclair, Jr., Moore's Federal Practice ¶65.04[1] at 39-40 (2d ed. 1989), and the cases cited therein. Respondents do not meet any of these conditions.
The primary basis for Respondent's Motion is their intention for judicial review with the Eighth Circuit of the United States Court of Appeals, pursuant to 12 U.S.C. § 1818 (h)(2). Respondents contend that (1) during
1 Because the Motions are substantively identical, they are treated together herein, and are referred to in the singular for simplicity.
{{12-31-95 p.A-2730}}the pendency of an appeal their financial ability to comply with the FDIC's Order will not deteriorate; (2) there is no risk that they will engage in unsafe or unsound banking transactions or violations of law during the appeal; (3) the FDIC will not be prejudiced by the stay; and (4) each Respondent will be prejudiced because each will have paid out funds that the Court of Appeals may find or are not due or owing.
Other than the Respondents' obvious disagreement with the Board's decision evidenced by their appeal, the Motion presents neither fact nor legal argument addressing the merits of the case. Thus, the FDIC cannot find that Respondents have carried their burden of showing a likelihood of success on the merits before the Eighth Circuit.
[.2] The only assertion of irreparable injury to Respondents contained in the Motion is monetary loss. It is well settled that economic loss alone is not sufficient basis to grant a stay. Virginia Petroleum Jobbers Assn. v. Federal Power Commission, 259 F.2d 921, 925 (D.C. Cir. 1959); Wisconsin Gas Co. v. FERC, 758 F.2d 669 (D.C. Cir. 1985). Respondents have not met their burden to show irreparable injury.
[.3] The interests of the FDIC and the public interest are considered together. Respondent's unsupported contention that during the pendency of the appeal they do not intend to engage in the unsafe or unsound banking practices and violations listed in the FDIC's Order and that their financial ability to comply with the FDIC's Order will not deteriorate, is not tantamount to serving the public interest and is insufficient to show the absence of harm to the public interest. The public generally and the FDIC, as the insurer of bank depositors, have a strong interest in eliminating unsafe or unsound banking practices and in maintaining the highest professional and ethical standards for bank institution-affiliated parties. Congress has charged the Board with preventing and correcting unsafe or unsound banking practices. The Board's Order represents its best judgment regarding the appropriate remedy for Respondents' actions. In the absence of any assertion to the contrary by Respondents, it is concluded that the public interest is served by enforcement of the Board's Order.
A thorough review of Respondents' submission reveals that Respondents have presented no factual or legal basis upon which the Motion could be granted. Accordingly, it is hereby ORDERED that Respondents' Motion for Stay Pending Judicial Review is DENIED.
Pursuant to delegated authority, upon the advice and recommendation of the General Counsel.
Dated at Washington, D.C. this 29th day of September, 1995.
/s/ Jerry L. Langley
Executive Secretary
