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{{9-30-03 p.A-3281}}

   [5272] In the Matter of Marsha Yessick, individually and as an institution-affiliated party of Cornerstone Community Bank, Chattanooga, Tennessee, Docket No. 00-050k (7-30-03).

   The Executive Secretary of the FDIC denied Marsha Yessick's (Petitioner) request for a stay of the FDIC Board of Director's (Board) final Decision and Order of Assessment of Civil Money Penalty.

   [.1] Stay—Timeliness of appeal

   [.2] Stay—Requirements
{{9-30-03 p.A-3282}}

In the Matter of
MARSHA YESSICK
Individually and as an Institution-affiliated party of
CORNESTONE COMMUNITY BANK
CHATTANOOGA, TENNESSE
(Insured State Nonmember Bank)
DECISION AND ORDER DENYING REQUEST FOR STAY

FDIC-00-050k

   Before the Executive Secretary of the Federal Deposit Insurance Corporation ("FDIC"), pursuant to authority delegated by the FDIC Board of Directors ("Board") under 12 C.F.R. §308.102(b)(2)(ii), is a request by Marsha Yessick ("Petitioner") for a stay of the Board's final Decision and Order of Assessment of Civil Money Penalty ("CMP") dated June 3, 2003 ("Order"), issued pursuant to section 8(i) of the Federal Deposit Insurance Act ("FDI Act"), 12 U.S.C. §1818(i). The Order directed that Petitioner pay a $5,000 CMP in connection with her role as a director of Cornerstone Community Bank, Chattanooga, Tennessee. On July 23, 2003, the FDIC's Executive Secretary received from Petitioner a letter seeking information about how to appeal the Order and requesting a stay of the Order.

   [.1] At this point, it appears that Petitioner has not commenced proceedings for judicial review in either the 6th Circuit Court of Appeals or the U.S. Court of Appeals for the District of Columbia Circuit as is required under 12 U.S.C. §1818(h)(2). Moreover, it would appear that any appeal filed by Petitioner would by now be untimely inasmuch as there is a 30-day appeal period under section 1818(h)(2), and the Executive Secretary sent notice to Petitioner (by certified mail) on June 18, 2003.

   In addition, even if an appellate court accepted a petition for review on Petitioner's behalf, a stay is not warranted here. A stay pending judicial review is an extraordinary action committed to the discretion of the FDIC. Section 8(h)(3) of the FDI Act, 12 U.S.C. §1818(h)(3), 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. See 12 C.F.R. §308.41; In the Matter of Stanley R. Hendrickson, FDIC Enforcement Decisions and Orders ¶5238, A-2797–2998 (1996), 1996 WL 627770, at *1. The Board also has authority to grant a stay pending judicial review under 12 C.F.R. §308.41.

   In determining whether or not to grant a request for a stay, the Board's consideration involves the four factors identified in Virginia Petroleum Jobbers Ass'n v. FPC, 259 F. 2d 921 (D.C. Cir. 1958) and its progeny: (1) a likelihood that the petitioner will prevail on the merits of the appeal; (2) that the petitioner will suffer irreparable injury in the absence of a stay; (3) that other interested persons will suffer no harm if a stay is granted; and (4) that a stay will not harm the public interest. See, e.g., In the Matter of Ronald J. Grubb, FDIC Enforcement Decisions and Order ¶8021, I-67, I-68 (1992), 1992 WL 813234, at *1.

   The Petitioner bears the burden of demonstrating that her case warrants the issuing of a stay pending judicial review. In the Matter of Frank E. Jameson, FDIC Enforcement Decisions and Orders §5154, A-1542.26 (1990), 1990 WL 711220, at *2; Cuomo v. NRC, 772 F. 2d 972, 978 (D.C. Cir. 1985). Yet in this case Petitioner's submission does not address even in the slightest fashion any of the threshold requirements. Petitioner presents no persuasive factual or legal basis that she is likely to prevail on appeal or that she would be irreparably injured if a stay was not granted. Moreover, she has not alleged or presented facts demonstrating that a grant of stay would not cause substantial harm to others or to the public interest.

   Petitioner's request for a stay of the Order is therefore denied because she fails to make any showing that the circumstances of this case warrant one. See Jameson, §5154, A-1542.26, 1990 WL 711220, at *2.

   Accordingly, it is hereby ORDERED and DECREED that Petitioner's request for a stay is DENIED.

   By the Executive Secretary, pursuant to delegated authority from the Board, upon the advice and recommendation of the Deputy General Counsel (Litigation).

   Dated at Washington, D.C. this 30th day of July, 2003.

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Last Updated 10/2/2003 legal@fdic.gov