Federal Deposit
Insurance Corporation

{{4-1-90 p.I-18}}
   [¶8006] Docket No. FDIC-89-40j (7-11-89).

   Request for Special Permission to Appeal denied. FDIC found that the ALJ had issued no ruling upon which an interlocutory appeal could be based and that there was no possibility of harm to the parties.

   [.1] Practice and Procedure—Interlocutory Appeals—Standard for Special Permission to Appeal.
   Special Permission for Interlocutory Appeals is granted only if the appeal involves an important, unresolved issue of general application. A preliminary letter from an ALJ concerning burden of proof issues does not constitute an order from which an appeal can be made.

In the Matter of * * * BANK * * *
(Insured State Nonmember Bank)
DECISION AND ORDER DENYING
APPLICATION FOR SPECIAL
PERMISSION TO APPEAL AND FOR
STAY OF PROCEEDINGS OR IN THE
ALTERNATIVE FOR AN EXTENSION OF TIME

   This appeal arises from a denial of a Notice of Acquisition of Control application under the Change in Bank Control Act ("CBCA"), 12 U.S.C. § 1817(j), submitted by * * *. On March 10, 1989, the Federal Deposit Insurance Corporation ("FDIC") notified Mr. * * * of its decision to disapprove the proposed acquisition. Mr. * * * filed a request for a hearing pursuant to section 1817(j)(4) of the CBCA and section 308.53 of the FDIC Rules of Practice and Procedures, 12 C.F.R. § 308.53.
   On April 28, 1989, FDIC Enforcement Counsel and Mr. * * * were directed by the Administrative Law Judge ("ALJ") to file memoranda of law on the allocation of the burden of proof. Both parties complied. (See Application, Attachments A and B). On June 12, 1989, the ALJ sent a letter to the parties outlining his "tentative conclusions" as to the allocation of the burden of proof, stating that he was not "inclined to issue an order on the burden of proof dispute prior to the hearing...." Letter at 2. (Application, Attachment C).
   In his June 12, 1989 letter, the ALJ stated that his "tentative conclusion" was that the FDIC has the burden of establishing a prima facie case before the ALJ. Letter at 6. FDIC Enforcement Counsel, in their Brief, concede this point.
   However, the ALJ opined that "there is good reason to believe that the burden of persuasion is on the applicant [Mr. * * *] in the event that a prima facie case has been established." Letter at 6. The ALJ clarifies this point by stating that "the risk of nonpersuasion is initially on the FDIC and then shifts to the applicant." Letter at 2. Mr. * * * would then bear the burden of rebutting the FDIC's prima facie case: "[w]hen the federal regulator presents evidence, it is incumbent on the applicant to rebut the evidence, and to persuade the ALJ that his {{4-1-90 p.I-19}}
version is more likely than not to be true." Letter at 6.

   [.1] Notwithstanding this discussion, the ALJ has not yet affirmatively ruled on these issues. FDIC Enforcement Counsel seeks this interlocutory appeal and stay in order to obtain review of the ALJ's decision to defer his ruling on the burden of proof issue. Application at ¶8.
   B. Special Permission To Appeal And Stay Of Proceedings.
   Interlocutory appeals generally are not favored. Section 308.31(a) of the FDIC Rules and Regulations states in pertinent part:

General rule. (1) Rulings or orders by an administrative law judge may not be appealed to the Board prior to submission of the record to the Board...unless the Board, in its sole discretion, grants special permission to appeal.
   (2) Special permission to appeal a ruling or order will only be granted if (i) the interlocutory appeal involves an important, unresolved issue of general application that should be immediately decided by the Board....

ORDER