[¶5,277] In the Matter of Randolph W. Lenz, J. Donald Weand, Jr., Marcial
Cuevas, Jack W. Dunlap, Steven B. Levine, Timothy S. Reed, Brian A.
Marks, and Marshall C. Asche, Connecticut Bank of Commerce, Stamford,
Connecticut, Docket Nos. 02-174e, 02-158e, 02-160c&b, 02-161c&b,
02-175k, 02-176k, 02-177k, 02-178k, 02-179k, 02-180k, 02-181k, 02-182k
(1-14-04). (This order, only as pertaining to J. Donald Weand,
was terminated by order of the FDIC dated 7-8-05; see
FDIC reverses stay issued by administrative law judge, allowing FDIC
administrative enforcement proceeding pursuant to section 8 of the
Federal Deposit Insurance Act, 12 U.S.C. §1818, against former
officers and directors of Connecticut Bank of Commerce, Stamford,
Connecticut, to proceed. FDIC found the burden on respondent of facing
parallel proceedings did not warrant a stay. Respondent's motion for
reconsideration was denied.
In the Matter of
RANDOLPH W. LENZ,
J. DONALD WEAND, JR.,
JACK W. DUNLAP,
STEVEN B. LEVINE,
TIMOTHY S. REED,
BRIAN A. MARKS, and
MARSHALL C. ASCHE,
individually and as former institution-affiliated parties of
CONNECTICUT BANK OF COMMERCE STAMFORD, CONNECTICUT (Insured State Nonmember Bank in Receivership)
DECISION AND ORDER ON MOTION FOR RECONSIDERATION
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
§308.102b(2)(ii), is a Motion, dated December 10, 2003, by
Respondent Steven B. Levine ("Levine") for Reconsideration in
Regard to Ruling of Executive Secretary on FDIC's Petition for
Interlocutory Review of Order Staying These Proceedings ("Motion for
The Motion for Reconsideration was filed by Respondent Levine following
the issuance, on December 4, 2003, of a Decision and Order on
Interlocutory Review ("Order on Interlocutory Review") which
reversed a stay order previously issued by Administrative Law Judge Ann
Z. Cook ("ALJ") on August 5, 2003. The ALJ had issued the stay
order pursuant to motions filed by Respondent Levine and co-respondent
Randolph W. Lenz ("Lenz"). On December 19, 2003, FDIC Enforcement
Counsel ("Enforcement Counsel") submitted an Opposition to
Respondent Levine's Motion for Reconsideration of Decision and Order
On Interlocutory Review of Stay Order ("Opposition Motion").
The underlying matter involves an FDIC administrative enforcement
proceeding pursuant to section 8 of the Federal Deposit Insurance Act
("FDI Act"), 12 U.S.C. §1818, against former officers and
directors of Connecticut Bank of Commerce, Stamford, Connecticut
("Bank"), which was closed by Connecticut bank regulators on June
26, 2002, with the FDIC being appointed as receiver. Specifically, as
to Levine, the FDIC alleged unsafe or unsound practices, breaches of
fiduciary duties, or violations by him in connection with his
responsibilities as a member of the Bank's board, and assessed a civil
money penalty against him in the amount of $500,000 pursuant to section
8(i) of the FDI Act, 12 U.S.C. §1818(i).
Levine argues in support of his Motion for Reconsideration that the
Executive Secretary failed to address in the Order on Interlocutory
Review the arguments presented by Levine in favor of staying the
proceedings. Levine had offered two arguments in his submission
opposing Enforcement Counsel's petition for interlocutory review of
the stay order. He contended that (1) Lenz's and co-respondent J.
Donald Weand, Jr.'s ("Weand") potential invocation of their
Fifth Amendment privileges in the face of possible criminal proceedings
would hinder his defense and somehow deprive him of his own
constitutional rights, and (2) the FBI's seizure of Lenz's records
deprived Levine of access to those documents for use in his own
defense. Levine's claim that he needs access to the seized documents
and Lenz's and Weand's testimony is based on his assertion that he
and Lenz do not have commonality of interests in this proceeding
because he too was allegedly defrauded by Lenz.
[.1] Because the FDIC Rules of Practice and Procedure do not contemplate
reconsideration of interlocutory decisions, it is reasonable to look
for guidance to the analogous Federal Rule of Civil Procedure which is,
in this case, Rule 59(e).1 Reconsideration pursuant to
Rule 59(e) is an extraordinary action committed to the discretion of
the court. Firestone v. Firestone, 76 F. 3d 1205, 1208 (D.C.
Cir. 1996) (per curiam). Reconsideration pursuant to rule
59(e) is dependent on the finding of one of three major factors: (1) an
intervening change in controlling law; (2) the availability of new
evidence (not available previously); and (3) the need to correct clear
error (of law) or prevent manifest injustice. See Virgin Atlantic
Airways, Ltd v. National Mediation Board, 956 F. 2d 1245, 1255
(2nd Cir. 1992). In contrast, "reconsideration is not appropriate
where a party is simply attempting to reargue factual or legal
assertions contained in [its] original pleadings." Natural
Resources Defense Council v. EPA, 705 F. Supp. 698, 700 (D.D.C.
1989), vacated on other grounds, 707 F. Supp. 3 (D.D.C.
Levine, in this instance, is trying to make just such a reargument
because contrary to his assertion, the Order on Interlocutory Review
addressed and rejected each of his two arguments in support of the stay
order. See Order on Interlocutory Review at 7-8. Moreover,
Levine does not in his Motion for Reconsideration establish any of the
three critical elements justifying reconsideration. Rather, citing
scant legal authority and offering no convincing reason, Levine,
unhappy with the Order on Interlocutory Review, now seeks a decision
more to his liking.
The Board does not retreat from our earlier opinion regarding the utter
lack of merit to Levine's claim that his constitutional rights will be
violated if this administrative proceeding moves forward, and this view
applies to the possibility of Weand's as well as Lenz's invocation of
their Fifth Amendment rights. Order on Interlocutory Review at 8 n.1.
Likewise, the Board remains unconvinced that the FBI's seizure of
Lenz's records poses a sufficient hardship to Levine as to justify a
stay. As the Board noted, Lenz has access to the seized documents via
arrangement with FBI staff. Order on Interlocutory Review at 8. Levine,
who could have sought access to the documents in question from Lenz,
apparently has not done so. Opposition Motion at 5 n.3. Nor has there
been any showing that Levine has sought access from the FBI.
Because Levine's submission does not demonstrate any of the three
threshold requirements that would warrant reconsideration and in fact
does nothing more than reiterate his previous arguments, his motion is
denied. As noted in the Order on Interlocutory Review, the parties are
not foreclosed from "seeking a stay of this matter at a later point
should the criminal investigation progress in such a way, or any other
new circumstances arise, that would warrant additional
consideration." Order on Interlocutory Review at 11.
Accordingly, it is hereby ORDERED and DECREED that Respondent Levine's
Motion for Reconsideration is DENIED.
Pursuant to delegated authority, upon the advice and recommendation of
the Deputy General Counsel (Litigation ).
Dated at Washington, D.C., this 14th day of January, 2004.
1 Rule 59(e) provides: Motion to Alter
or Amend Judgment. Any motion to alter or amend a judgment shall
be filed no more than 10 days after entry of the judgment. F.R. Civ. P.