UNITED STATES OF AMERICA
COMMODITY FUTURES TRADING COMMISSION
______________________________ : CREATIVE STRATEGY FUND I : : v. : CFTC Docket No. 93-R014 : PRUDENTIAL SECURITIES, INC.; : ORDER ROBERT ROWLAND; and THE : ROWLAND BROTHERS COMPANY, : INC. : ______________________________: On June 11, 1996, we denied complainant's Motion for Reconsideration of May 15, 1996. On January 23, 1997, complainant filed a Motion for Reconsideration of our June 11, 1996 order. In light of its untimeliness and failure to raise extraordinary circumstances, we deny complainant's instant motion.
This, in effect, is the third time that complainant has moved that we reconsider our judgment in this case, in which we affirmed the Administrative Law Judge's dismissal of the complaint and award of $101,087.53 to respondent Prudential Securities, Inc. on its debit balance counterclaim. Creative Strategy Fund I v. Prudential Securities, Inc., et al., [Current Transfer Binder] Comm. Fut. L. Rep. (CCH) ¶ 26,304 (CFTC Feb. 8, 1995). On July 7, 1995, complainant filed a "Motion to Vacate Order and Notice of Parallel Proceedings", alleging lack of jurisdiction and extra-judicial bias on the part of the ALJ and seeking to vacate our February 8, 1995 order. On April 26, 1996, we denied complainant's July 7, 1995 motion, which we treated as a motion for reconsideration. Creative Strategy Fund I v. Prudential Securities, Inc., et al., 1996 CFTC LEXIS 76 (CFTC Apr. 26, 1996). On May 15, 1996, complainant filed a Motion for Reconsideration of our April 26, 1996 order, which we also denied. Creative Strategy Fund I v. Prudential Securities, Inc., et al., 1996 CFTC LEXIS 106 (CFTC June 11, 1996).
While the Commission's reparations rules do not provide for motions for "reconsideration", we have recognized that such post-decision motions are "application[s] for a form of relief not otherwise specifically provided for in [formal reparations proceedings]." Commission Rule 12.308(a), 17 C.F.R. § 12.308(a)(1996). However, we have noted that this "additional layer of administrative review . . . [is] generally inconsistent with the statutory goal of providing 'efficient and expeditious administration' of reparations claims. Kohler v. Merrill Lynch, Pierce, Fenner & Smith, Inc., [1986-1987 Transfer Binder] Comm. Fut. L. Rep. (CCH) ¶ 23,437 at 33,172 (CFTC Dec. 30, 1986) (quoting Section 14(b) of the Commodity Exchange Act, 7 U.S.C. § 18(b)(1994)).
Any request for reconsideration "must be filed within a reasonable time." Kohler, ¶ 23,437 at 33,173. This request for reconsideration, which was filed more than seven months after entry of the order it addresses and 23 months after entry of our initial order, is untimely.
Furthermore, "[a]ny party seeking reconsideration of a Commission reparations decision . . . faces the burden of showing truly extraordinary circumstances." Kohler, ¶ 23,437 at 33,173. Such circumstances--which are quite narrow--include
a clear and convincing showing of fraud on the forum by an adverse party;
the discovery of previously unknown and non-discoverable evidence which
would probably produce a different result; a factual error in a
jurisdictional ruling . . . ; or the type of egregious factual or legal
error that goes to the heart of the challenged decision's
Complainant points to a Commission investigation of respondent Prudential Securities, Inc. as a circumstance warranting reconsideration of our judgment in this case. Such an attempt to "reweigh the facts in an effort to persuade the Commission to come out differently will not succeed." Kohler, ¶ 23,437 at 33,173. The other circumstances listed in the Motion for Reconsideration also do not qualify as "extraordinary."
Accordingly, we deny complainant's Motion for Reconsideration.
IT IS SO ORDERED.
By the Commission (Chairperson BORN, and Commissioners DIAL, TULL, HOLUM,
Jean A. Webb
Secretary of the Commission
Commodity Futures Trading Commission
Dated: March 19, 1997