857 F.3d 407
D.C. Cir.2017Background
- FinCEN (Treasury) issued a Notice of Finding and a Notice of Proposed Rulemaking under 31 U.S.C. § 5318A in March 2015, alleging Banca Privada d’Andorra (BPA) was a "financial institution of primary money laundering concern" and proposing the severe "fifth special measure" (cutting U.S. correspondent account access).
- The same month, the Andorran government seized BPA, created a government "bridge bank" (Vall Banc), transferred BPA’s lawful assets to it, and later prepared those assets for sale to a private buyer.
- BPA majority shareholders (the Ciercos) sued FinCEN in October 2015 under the APA and related theories, seeking (1) withdrawal of the Notices and (2) a declaratory judgment that the Notices were unlawful.
- FinCEN withdrew both the Notice of Finding and the NPRM in March 2016, asserting that Andorran actions had removed the threat; the district court dismissed the suit as moot in May 2016.
- The sale of Vall Banc to U.S. buyer J.C. Flowers closed after the district-court dismissal; the D.C. Circuit affirms dismissal but on grounds that the withdrawal moots the withdrawal claim and the Ciercos lack standing to pursue the declaratory judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the claim for withdrawal of the Notices is moot | Cierco sought active relief (withdrawal) and originally had standing; relief not yet secured when suit filed | FinCEN rescinded the Notices, so withdrawal claim is satisfied and moot | Moot: withdrawal claim fully satisfied by FinCEN’s rescission |
| Whether the declaratory-judgment claim (that Notices were unlawful) is moot/justiciable | Cierco contends declaratory relief remains live to remedy reputational/ownership harms and could influence Andorran authorities to restore assets | FinCEN argues declaratory relief is non-redressive because alleged harms were caused/solidified by independent Andorran action and sale; redress is speculative | Not moot but plaintiff lacks standing: redressability too speculative; depends on third-party foreign sovereign action |
| Whether voluntary cessation or capable-of-repetition exceptions save the case from mootness | Cierco did not meaningfully argue these exceptions apply | FinCEN points to irrevocable developments (Andorran seizure and sale) and withdrawal of Notices | Exceptions do not apply; no reasonable expectation of recurrence and effects not likely to be reversed |
| Whether courts may consider post-complaint facts for standing/redressability | Cierco argued district court improperly considered later facts about Andorran actions | FinCEN and the court relied on post-complaint developments to assess mootness and redressability | Court may consider materials beyond the complaint when assessing standing; those facts undermine redressability |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (three-part Article III standing test)
- City of Los Angeles v. Lyons, 461 U.S. 95 (1983) (standing to seek injunctive/declaratory relief requires likelihood of future harm)
- Summers v. Earth Island Institute, 555 U.S. 488 (2009) (settlement/mooting of a concrete application can defeat standing to challenge a regulation in the abstract)
- Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) (standing cannot rest on speculative chain of events involving independent actors)
- DeFunis v. Odegaard, 416 U.S. 312 (1974) (mootness principles where underlying controversy is resolved)
- Dellums v. U.S. Nuclear Regulatory Comm’n, 863 F.2d 968 (D.C. Cir. 1988) (courts reluctant to find standing where redress depends on actions of foreign sovereign)