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FDIC Enforcement Decisions and Orders

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   [8005] Docket No. FDIC-88-159e (1-10-89).

   Request for Special Permission to Appeal denied. FDIC found that Respondent's petition showed no exceptional, peculiar, or special circumstances to justify an appeal. Respondent sought to dismiss a removal proceeding on the grounds that Respondent had resigned from his position before the proceeding had been initiated. (For further proceedings relating to this case, see [5139])

   [.1] Practice and Procedure—Interlocutory Appeals—Standard for Special Permission to Appeal.
   Interlocutory appeals are granted only where issues are of first impression, raise significant policy considerations, present substantial danger of irreparable harm to the parties, or if other exceptional circumstances are present.

In the Matter of * * *
Individually, and as former president,
director and participant in the conduct of
the affairs of
* * * BANK * * *, * * *
(Insured State Nonmember Bank)



A. Statement of the Case

   On the basis of a November 6, 1987, examination of * * * Bank, * * *, * * * ("Bank"), and the report therefrom, the Federal Deposit Insurance Corporation ("FDIC") issued a Notice of Intention to Prohibit from Further Participation ("Notice") under section 8(e) of the Federal Deposit Insurance Act ("Act"), 12 U.S.C. § 1818(e) against * * *
   ("Respondent"), individually, and as former president, director and participant in the conduct of the affairs of the Bank.
   The Notice was issued on August 10, 1988. Thereafter, Respondent moved the Administrative Law Judge ("ALJ") to dismiss this action for lack of subject-matter jurisdiction on the ground that Respondent had resigned from the Bank before the FDIC had initiated this proceeding. On September 13, 1988, the ALJ denied Respondent's Motion to Dismiss.
   On September 27, 1988, Respondent filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction with the FDIC's Board of Directors ("Board"). By letter of October 6, 1988, Respondent requested that the Motion be treated as a request for special permission to appeal the ALJ's ruling, pursuant to 12 C.F.R. § 308.12(e). FDIC Enforcement Counsel opposes Respondent's request for an interlocutory appeal.

B. Denial of Special Permission to Appeal

   Section 308.12(e) of the FDIC's Rules and Regulations, 12 C.F.R. § 308.12(e), provides that: "[r]ulings of an administrative law judge...on a motion may not be appealed...except by special permission of the Board." This Regulation also provides that: "such rulings (on motions) shall be considered by the Board in reviewing the record" after the ALJ enters his recommended decision. 12 C.F.R. § 308.12(e).

   [.1] Interlocutory appeals generally are not favored.1 The Board will grant special permission for an interlocutory appeal only where the issues involved are ones of first impression or raise significant policy considerations. If the failure to grant interlocutory review presents a substantial danger of irreparable harm2 to a party or, if other exceptional, peculiar, or special circumstances are present, review may also be granted.

1 In the context of judicial proceedings, the statutes governing jurisdiction of the United States Courts of Appeal only permit appeals from final decisions of the district courts, with certain limited exceptions specifically described in the statute. 28 U.S.C. §§ 1291, 1292. Appeal is not permitted, even from "fully consummated decisions, where they are but steps toward a final judgment in which they will merge. The purpose is to combine in one review all stages of the proceeding that effectively may be reviewed and corrected if and when final judgment results." Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 546 (1949).

2 We note that the expenditure of time and resources by a Respondent in defending an action is not considered by the courts to be irreparable harm. Rosenthal & Co. v. Bagley, 581 F.2d 1258 (7th Cir. 1978). Somerfield v. FDIC, 609 F. Supp 128, 129 (E.D. Tenn. 1985).

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   A review of the submissions of the parties convinces the Board that there has been no showing of exceptional, peculiar, or special circumstances that would justify the Board's granting of Respondent's request. Nor does this matter involve a significant policy issue or the danger of irreparable harm. Board involvement at this stage of a proceeding would be unproductive and would only result in a delay of the proceeding. Respondent and FDIC enforcement counsel will have ample opportunity to file exceptions to the ALJ's recommended decision.


   After considering Respondent's request, the ruling of the ALJ, and the arguments presented in the parties' briefs;
   IT IS ORDERED, that Respondent's Request for Special Permission to Appeal the Ruling of Administrative Law Judge is DENIED.
   By direction of the Board of Directors.
   Dated at Washington, D.C., this 10th day of January 1989.
Hoyle L. Robinson
Executive Secretary

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