999 F.3d 130
2d Cir.2021Background
- The OCC announced (July 2018) it would accept applications for special-purpose national bank (SPNB) charters from fintechs "engaged in the business of banking," including non-depository firms, relying on 12 C.F.R. §5.20(e)(1)(i).
- DFS (New York State Department of Financial Services) sued under the APA, arguing the National Bank Act (NBA) requires national banks to take deposits, so the OCC exceeded its statutory authority and §5.20(e)(1)(i) is invalid as applied to non-depository fintechs.
- DFS alleged two primary future injuries: (1) regulatory disruption via federal preemption of New York law; (2) loss of assessment revenue if regulated firms convert to federal charters.
- The district court denied the OCC’s Rule 12(b)(1)/(6) motion, found DFS had Article III standing and ripe claims, and held the NBA unambiguously requires deposit-taking; it set aside §5.20(e)(1)(i) nationwide as applied to non-depository fintechs.
- The Second Circuit reversed: it held DFS lacked Article III standing and the claims were constitutionally unripe because no non-depository fintech had applied for or been granted an SPNB charter and alleged injuries remained speculative; it remanded with instructions to dismiss without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing (injury in fact) | DFS: OCC decision imminently threatens preemption and loss of assessments — concrete harms to NY and DFS. | OCC: Alleged harms are speculative; no application or preemption has occurred, so no actual or imminent injury. | Held: No standing. Alleged harms are contingent and speculative; injury not actual or certainly imminent. |
| Constitutional ripeness | DFS: Agency policy is final enough to present justiciable dispute. | OCC: Claims are premature until an application is filed/granted and concrete effects occur. | Held: Unripe. Ripeness overlaps standing; injury speculative so constitutional ripeness fails. |
| Statutory scope / Chevron deference ("business of banking") | DFS: NBA unambiguously requires deposit-taking; OCC exceeded statutory authority. | OCC: "Business of banking" ambiguous; its interpretation to include non-depository SPNBs is reasonable and merits Chevron deference. | Held: Court did not decide merits (no jurisdiction). District court's merits ruling not reached. |
| Remedy scope (nationwide vacatur) | DFS: Nationwide relief appropriate to block OCC acceptance of non-depository SPNB applications. | OCC: Relief should be limited and claims may be premature; merits unresolved. | Held: Not reached due to lack of jurisdiction; remand for dismissal without prejudice. |
Key Cases Cited
- Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (U.S. 1984) (Chevron deference framework)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (U.S. 1992) (standing: concrete, particularized, actual or imminent injury)
- Clapper v. Amnesty Int'l USA, 568 U.S. 398 (U.S. 2013) (future injury must not be speculative; ‘‘certainly impending’’/substantial-risk standard limits standing)
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (U.S. 2016) (standing requires concrete injury)
- Susan B. Anthony List v. Driehaus, 573 U.S. 149 (U.S. 2014) (pre-enforcement standing: future injury may suffice if certainly impending or substantial risk)
- Massachusetts v. EPA, 549 U.S. 497 (U.S. 2007) (states may receive "special solicitude" in standing analysis, but must still show concrete injury)
- Nat'l Park Hosp. Ass'n v. Dep't of Interior, 538 U.S. 803 (U.S. 2003) (ripeness in administrative challenges; avoid premature adjudication)
- Abbott Laboratories v. Gardner, 387 U.S. 136 (U.S. 1967) (ripeness framework for pre-enforcement review)
- MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (U.S. 2007) (standing and ripeness overlap in declaratory judgment/pre-enforcement contexts)
- Sonterra Capital Master Fund Ltd. v. UBS AG, 954 F.3d 529 (2d Cir. 2020) (standard for reviewing facial standing challenges under Rule 12(b)(1))