UNITED STATES OF AMERICA
COMMODITY FUTURES TRADING COMMISSION
In the Matter of
JERRY W. SLUSSER, FIRST REPUBLIC
CFTC Docket No. 94-14
Jerry W. Slusser, First Republic Financial Corp. and First Republic Trading Corp. (the "respondents") petition us to stay the execution of civil monetary sanctions imposed in our opinion and order dated July 19, 1999, affirming an Administrative Law Judge's initial decision in this administrative enforcement action.1 For the reasons that follow, the motion for stay is denied.
The respondents principally contend that respondent Slusser will suffer irreparable financial harm if the stay is denied, asserting that the imposition of a $10 million judgment against Slusser will deprive him of his right to assistance of counsel in seeking appellate review, and will impair his ability to make a living or to pay his debts as they come due. Memorandum of Law in Support of Respondents' Motion to Stay at 5; Declaration of Jerry W. Slusser, ¶ 8. The respondents further urge that a grant of the stay will not adversely affect the public interest, and claim that their challenges to the Commission's decision will likely be successful on the merits.
A litigant seeking a stay of governmental action taken in the public interest pursuant to a statutory or regulatory scheme must establish, along with irreparable injury, a probability of success on the merits. In re Forty-Eight Insulations, Inc., 115 F.3d 1294, 1301 (7th Cir. 1997); Ciechon v. City of Chicago, et al., 634 F.2d 1055, 1058 (7th Cir. 1980); Virginia Petroleum Jobbers Ass'n v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958). He or she also must show that neither the public interest nor the interests of any other party would be adversely affected if a stay were granted. Virginia Petroleum Jobbers, 259 F.2d at 925; WMATA v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977).
The respondents' arguments are inadequate to show that the public interest would not be adversely affected by the grant of the stay or to establish a probability of success on the merits. Respondents also have failed to make an adequate showing of irreparable injury. The Commission, following the practice of federal courts, consistently has found that the payment of a civil monetary penalty does not constitute irreparable harm. In re Mayer, CFTC Docket No. 92-21, 1998 WL 135821 at *1 (CFTC Mar. 23, 1998); In re Reddy, [1996-1998 Transfer Binder] Comm. Fut. L. Rep. (CCH) ¶ 27,272 at 46,215-16 (CFTC Mar. 9, 1998); see Virginia Petroleum Jobbers, 259 F.2d at 925; Sampson v. Murray, 415 U.S. 61, 91-92 (1974).
Because a stay must rest on an adequate showing under all the elements of the standard, and the respondents have failed to make such a showing, the motion for stay is denied.
IT IS SO ORDERED.
By the Commission (Chairman RAINER and Commissioners HOLUM, SPEARS, and NEWSOME). (Commissioner ERICKSON, not participating).
Catherine D. Dixon
Assistant Secretary of the Commission
Commodity Futures Trading Commission
Dated: August 19, 1999
1 The respondents seek a stay pending review of the Commission's decision in the United States Court of Appeals for the Seventh Circuit. See Respondents' Motion to Stay Execution of Civil Monetary Sanctions Only, filed with the Commission on August 4, 1999. Respondents' petition for review was filed with the Court of Appeals on August 4, 1999.