Federal Deposit
Insurance Corporation

{{3-31-91 p.A-1566.1}}
   [¶5155A] In the Matter of James C. Amberg, Robert Ray Carroll, Roscoe P. Steen, W. M. Causey, Billy Ray Whitehead, and Benny Zeagler, Docket No. FDIC-89-144k(10-2-90).

   Board rejects respondents' motion for reconsideration and stay pending appeal.

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

   [.2] Practice and Procedure — Civil Money Penalty — Request for Hearing
   The FDIC has authority to prescribe procedures adapted to its particular regulatory mission and may require an answer as well as a request for hearing. Filing of a request for hearing does not eliminate the need to file an answer.

   [.3] Practice and Procedure — Application of Federal Rules of Civil Procedure
   The board may look to the Federal Rules of Civil Procedure for guidance, but where the Federal Rules are inconsistent with the FDIC's Rules of Practice and Procedure FDIC must follow its own regulations.

   [.4] Practice and Procedure — Motion for Stay Pending Appeal
   Petitioner bears burden of demonstrating that his case warrants issuance of stay by establishing likelihood of success on the merits, irreparable injury, no substantial harm to other interested persons, and no harm to the public interest.

In the Matter of
JAMES C. AMBERG, ROBERT RAY
CARROLL, ROSCOE P. STEEN,
W. M. CAUSEY, BILLY RAY
WHITEHEAD, and BENNY
ZEAGLER, individually and as
directors of
THE OLLA STATE BANK
OLLA, LOUISIANA
(Insured State Nonmember Bank)
DECISION AND ORDER
DENYING RESPONDENTS
MOTION FOR RECON-
SIDERATION AND STAY
PENDING APPEAL

   On June 26, 1990, the Board of Directors ("Board") of the Federal Deposit Insurance Corporation ("FDIC") entered a Decision and Order ("Order") against James C. Amberg, Robert Ray Carroll, Roscoe P. Steen, W.M. Causey, Billy Ray Whitehead, and Benny Zeagler ("Respondents"). The Order imposes civil money penalties against Respondents for violations of section 22(h) of the Federal Reserve Act, 12 U.S.C. §375b, and Regulation O of the Board of Governors of the Federal Reserve System, 12 C.F.R. Part 215, as they are made applicable to insured state nonmember banks by section 18(j)(2) of the Federal Deposit Insurance Act ("FDI Act"), 12 U.S.C. §1828(j)(2), and section 337.3 of FDIC's Rules of Practice and Procedures, 12 C.F.R. §337.3, respectively.
   Respondents now move that the Board, pursuant to 12 C.F.R. §308.44(b), reconsider its Order. Respondents also move that the Board grant an indefinite stay of its Order, pending determination of the appeal of the Order which they have filed with the United States Court of Appeals for the Fifth Circuit. After full consideration of this matter, the Board denies Respondent's motions for the following reasons.

   On September 28, 1989, the FDIC issued the Notice of Assessment of Civil Money Penalties, Findings of Fact and Conclusions of Law, Order to Pay, and Notice of Hearing (the "Notice of Assessment"), a copy of which was sent to each Respondent. Certified mail receipts indicate that the Notice of Assessment was received by Respondents Carroll, Steen, Whitehead, and Zeagler (or by others on their behalf) on October 3, 1989, and by Respondents Amberg and Causey (or by others on their behalf) on October 4, 1989. {{3-31-91 p.A-1566.2}}
   The Notice of Assessment stated that if Respondent failed to file a request for hearing and an answer to the charges in the Notice of Assessment within twenty days of their receipt of the Notice of Assessment, in accordance with 12 C.F.R. § 308.21, the civil money penalty would be rendered final and unappealable as to that Respondent. Respondents timely filed a request for hearing on October 16, 1989. However, their answers were not filed until October 27, 1989, after the expiration of the twenty-day period.

II. MOTION FOR RECONSIDERATION

   The Board denies Respondents' motion for reconsideration because they have failed to show sufficient grounds for reconsideration of their case. Moreover, the Board's Decision is fully supported by the law.

   [.1] The Respondents bear the burden of persuading the Board to reconsider its Order.¹ The FDIC's regulations require that, at a minimum, a petitioner seeking reconsideration 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).

   [.2] Respondents' first argument is that section 308.21 of the FDIC's Rules of Practice and procedures (12 C.F.R. § 308.21) impermissibly expands upon the mandate of section 18(j)(4)(F) of the FDI Act by requiring an answer as well as a request for hearing, when section 18(j)(4)(F) provides for a hearing if a request is made within the twenty-day period. This argument is untenable. First, agencies are unquestionably free to design procedural rules adapted to the peculiarities of their regulatory mission. FCC v. Schreiber, 381 U.S. 279, 290 (1965). Second, in section 18(j)(5), Congress has explicitly granted the FDIC the power to prescribe "such procedures as may be necessary" to implement section 18(j)(4). 12 U.S.C. § 1828(j)(5). Finally, under Respondents' interpretation of section 18(j)(4)(F), the mere filing of a request for hearing would establish an absolute right to a hearing and, by implication, would restrict the FDIC's power to decide that summary proceedings are appropriate.² Congress could not have intended such an arbitrary results.

   [.3] Respondents' second argument challenges the provision of section 308.21(d)(1) of the FDIC's Rules of Practice and Procedures that, upon the failure to file a request for hearing and answer within the twenty-day period, the assessment of civil money penalties becomes final and unappealable. Respondents instead assert that once a request for hearing is timely filed, the proceeding becomes a contested matter to be governed by the rules of "ordinary litigation." Respondents also maintain that various standards from the Federal Rules of Civil Procedure should be applied to grant them relief.
   To the contrary, the rules of "ordinary litigation" do not apply to the FDIC's administration proceedings. Rosenthal & Co. v. Commodity Futures Trading Comm'n, 802 F.2d 963, 969 (7th Cir. 1986) (agencies, even when imposing fines, are not subject to procedures required by the courts). In the interest of effective and efficient performance of its Congressionally-mandated regulatory mission, the FDIC has established specialized procedural rules which satisfy due process and the particular requirements of bank regulation. See Schreiber, 381 U.S. at 290. As even Respondents admit at pp. 2–3 of their Memorandum in Support of Motion to Reconsider, the Federal Rules of Civil Procedure are not applicable to administrative hearings. McClelland v. Andrus, 606 F.2d 1278, 1285 (D.C. Cir. 1979); Sloan v. SEC, 547 F.2d 152, 155 (2nd Cir. 1976). Where the Board finds that the content and underlying purpose of the Federal Rules are consistent with the purpose and intent of the FDIC's Rules of Practice and procedures, the Board may look to them for guidance, however, the Federal Rules are persuasive rather than controlling, and where the Federal Rules are inconsistent with the requirements and purposes of the FDIC's Rules of

III. MOTION FOR STAY

   The Board denies Respondents' motion for stay of its Order pending appeal because they clearly fail to make a showing that the circumstances of this case warrant one. The granting of a stay is an extraordinary exercise of the Board's discretion. FDIC Enf. Dec. 88-156c&b, at 3 (Nov. 7, 1989); FDIC Enf. Dec. 89-83e, at 4 (July 24, 1989). Respondents bears the burden of demonstrating that this case warrants the issuance of a stay. Id.; Ohio v. NRC, 812 F.2d 288, 290 (6th Cir. 1987); Cuomo v. NRC, 772 F.2d 972, 978 (D.C. Cir. 1985).

   [.4] In deciding whether to grant a motion to stay pending appeal, Respondents must establish that four conditions exist: (1) a likelihood that they 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 Enf. Dec. 89-83e, at 5; FDIC Enf. Dec. 83-172b, at 10 (November 19, 1984).
   As for the Respondents' likelihood for success on the merits of its appeal, Respondents assert the same grounds in their motion for stay as they have in their motion for reconsideration, and the Board's discussion of their arguments for reconsideration above indicates that the grounds are without merit. Furthermore, Respondents themselves admit that they "cannot show or urge that irreparable harm would result from an enforcement" of the Order. Respondents' Memorandum in Support of Motion to Stay at p. 3. Mere monetary loss does not satisfy the irreparable injury requirement. Sampson v. Murray, 415 U.S. 61, 90 (1974).
   Finally, Respondents do not allege or present facts to establish that a grant of a stay would not cause substantial harm to others or the public interest. Respondents instead submit that the equities of this case indicate that the status quo should be maintained pending appeal. Congress has charged

IV. ORDER

   Accordingly, it is hereby ORDERED that Respondents' Motions for Reconsideration and Stay are hereby DENIED.
   By Direction of the Board of Directors.
   Dated at Washington, D.C., this 2nd day of October, 1990.