Dtcc Data Repository (u.S.) LLC v. United States Commodity Futures Trading Commission
25 F. Supp. 3d 9
D.D.C.2014Background
- DTCC and its DDR subsidiary challenge CFTC swap data reporting rules and practices under Dodd-Frank.
- Dodd-Frank vested exclusive CFTC jurisdiction over swaps and established a framework for reporting to SDRs.
- DDR is the only SDR not affiliated with a DCO, allegedly limiting competition and market participant choice.
- Plaintiffs accuse DCOs of forcing data reporting to captive SDRs, causing higher costs and data fragmentation.
- CFTC-approved CME Rule 1001 and ICE Rule 211, plus withdrawal of three FAQs, are challenged as unlawful actions or inactions.
- Court dismisses Counts I, IV, and V for lack of final agency action; Counts II and III remain, with Count III not duplicative of Count II.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the FAQ withdrawals constitute final agency action subject to APA review. | DDR argues withdrawal reversed staff views and is final. | Withdrawal was staff action, not final agency action by the Commission. | Count I dismissed; withdrawal not final agency action. |
| Whether ICE Rule 211 self-certification approval is a final agency action. | Self-certification approval constitutes inaction reviewable under APA. | Approval by operation of law is not reviewable final agency action. | Counts IV and V dismissed; no final agency action. |
| Whether Count III duplicatively restates Count II. | Count III presents a distinct legal theory. | Count III duplicates Count II. | Count III not duplicative; both Counts II and III remain. |
Key Cases Cited
- Sprint Nextel Corp. v. FCC, 508 F.3d 1129 (D.C. Cir. 2007) (forbearance petition deemed granted by operation of law; not final agency action to review)
- Amador County v. Salazar, 640 F.3d 373 (D.C. Cir. 2011) (no-action approvals can be reviewable when IGRA caveat creates a duty to disapprove that violates statute)
- Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (U.S. 2004) (agencys failure to act must be discrete to be reviewable)
- Franklin v. Massachusetts, 505 U.S. 788 (U.S. 1992) (agency action must be final to be reviewable)
- Bennett v. Spear, 520 U.S. 154 (U.S. 1997) (finality and final agency action requirements in APA review)
- Independent Equip. Dealers Ass’n v. EPA, 372 F.3d 420 (D.C. Cir. 2004) (necessity of final agency action for review)