The CLEARING HOUSE ASSOCIATION, L.L.C., Plaintiff-Appellee, Office of the Comptroller of the Currency, Plaintiff-Counter-Defendant-Appellee, v. Andrew M. CUOMO, in his Official Capacity as Attorney General for the State of New York, Defendant-Counter-Claimant-Appellant.
Docket Nos. 05-5996-cv (L), 05-6001-cv (CON)
United States Court of Appeals, Second Circuit.
Decided: Dec. 4, 2007.
510 F.3d 105
Argued: Dec. 4, 2006.
Robinson B. Lacy (H. Rodgin Cohen, Adam R. Brebner, Keith Levenberg, on the brief), Sullivan & Cromwell, LLP, New York, NY, for Plaintiff-Appellee The Clearing House Association, L.L.C.
Douglas B. Jordan (Julie L. Williams, Daniel P. Stipano, Horace G. Sneed, on the brief), Washington, DC, for Plaintiff-Counter-Defendant-Appellee Office of the Comptroller of the Currency.
Before: CARDAMONE and B.D. PARKER, Circuit Judges, and KOELTL,
Judge CARDAMONE concurs in part and dissents in part in a separate opinion.
B.D. PARKER, Jr., Circuit Judge:
The National Bank Act (“NBA” or “Act“) authorizes national banks to engage in a broad range of business activities, and also limits the exercise of “visitorial powers” over such banks.1 The Office of the Comptroller of the Currency (“OCC“) is the agency Congress has entrusted to implement the NBA and to oversee the national banks’ exercise of their powers. This appeal concerns the residual authority of state officials in regards to laws pertaining to real estate lending, one of the banking activities governed by the NBA and OCC regulations.
I
In 2005, the New York State Attorney General began investigating evidence of possible racial discrimination in the residential real estate lending practices of several national banks and their operating subsidiaries. The Attorney General‘s investigation was prompted by data that the federal Home Mortgage Disclosure Act (“HMDA“) requires lenders to make public. See
On the basis of these apparent racial disparities, the Attorney General sent “letters of inquiry” to mortgage lenders implicated by the data, including several national banks and their operating subsidiaries.2 The letters stated that such disparities “are troubling on their face, and unless legally justified may violate federal and state anti-discrimination laws such as the Equal Credit Opportunity Act and its state counterpart, New York State Executive Law § 296-a.”3 “In lieu of issuing a formal subpoena,” the letters requested that lenders voluntarily produce certain non-public information regarding their mortgage policies and practices, as well as data concerning loans related to real property in New York State.
Soon afterwards, the OCC sued to enjoin the Attorney General‘s investigative and enforcement efforts. A recently promulgated OCC regulation expansively interpreted the NBA‘s visitorial powers provision,
The Clearing House Association (“Clearing House“)—a consortium of national banks, including several that received letters of inquiry from the Attorney General—filed a similar complaint, seeking to enjoin the Attorney General from “investigating, requesting or issuing subpoenas for information concerning, or taking any other action to enforce federal and state discrimination-in-lending laws” against its national bank members and their operating subsidiaries.
The Attorney General counterclaimed, arguing that the OCC‘s regulation was unlawful and should be set aside under the Administrative Procedure Act (“APA“),
Following a trial on the merits, the United States District Court for the Southern District of New York (Stein, J.) deferred to the OCC‘s interpretation of the statute, under Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984), and concluded that the Attorney General‘s investigation was prohibited. Office of the Comptroller of the Currency v. Spitzer, 396 F. Supp. 2d 383 (S.D.N.Y. 2005) (”OCC v. Spitzer“). In a separate opinion, the court agreed with Clearing House that the FHA does not create an exception authorizing the exercise of visitorial powers otherwise prohibited under § 484(a). Clearing House Ass‘n, L.L.C. v. Spitzer, 394 F. Supp. 2d 620 (S.D.N.Y. 2005) (”Clearing House v. Spitzer“). Accordingly, in both cases the court issued the declaratory and injunctive relief sought by the OCC and Clearing House.
We affirm the district court‘s judgment in OCC v. Spitzer. We affirm in part and vacate in part the district court‘s separate judgment in Clearing House v. Spitzer. We affirm that part of the Clearing House judgment granting Clearing House the injunctive relief provided in OCC v. Spitzer. We vacate, however, that part of the Clearing House judgment granting permanent injunctive relief against the Attorney General‘s enforcement of the FHA. We hold that the district court lacked jurisdiction to decide the FHA claim, and we remand the case to the district court with instructions to dismiss that claim.
II
The NBA provides for the creation of national banks, and authorizes them to exercise certain enumerated powers, as well as “all such incidental powers as shall
Section 484 provides, in part, that “[n]o national bank shall be subject to any visitorial powers except as authorized by Federal law [or] vested in the courts of justice.”
In 1996, the OCC adopted a regulation clarifying that, under § 484(a), “the exercise of visitorial powers over national banks is vested solely in the OCC.”
In its present form, Section 7.4000 lists several examples of prohibited visitations, including “(i) Examination of a bank; (ii) Inspection of a bank‘s books and records; (iii) Regulation and supervision of activities authorized or permitted pursuant to federal banking law; and (iv) Enforcing compliance with any applicable federal or state laws concerning those activities.”
The regulation also addresses the exceptions included in § 484(a) for visitorial powers “authorized by Federal law” and “vested in the courts of justice.” The OCC construes the courts-of-justice exception as “pertain[ing] to the powers inherent in the
III
We review a district court‘s grant of a permanent injunction for abuse of discretion. Shain v. Ellison, 356 F.3d 211, 214 (2d Cir. 2004). A district court abuses its discretion when it bases its decision on an error of law or a clearly erroneous finding of fact. Id.; S.C. Johnson & Son, Inc. v. Clorox Co., 241 F.3d 232, 237 (2d Cir. 2001). Although the parties disagree about the facts underlying the Attorney General‘s investigation—especially the significance of the HMDA data as evidence of possible racial bias in mortgage lending—those facts are not at issue here. The only questions before us are legal ones.
A
Central to the parties’ dispute is the meaning of the term “visitorial powers” in § 484(a). The OCC argues that its interpretation of “visitorial powers” should be afforded Chevron deference while the Attorney General denies that the OCC‘s interpretation is entitled to such deference. Under Chevron, we first ask whether Congress has spoken directly to the precise question at issue. Chevron, 467 U.S. at 842. If Congress‘s intent is clear, both the court and the agency “must give effect to the unambiguously expressed intent of Congress.” Id. at 843. If, however, “the statute is silent or ambiguous with respect to the specific issue,” we proceed to the second step of the Chevron analysis, in which “the question for the court is whether the agency‘s answer is based on a permissible construction of the statute.” Id.
The Attorney General raises an initial argument that the Chevron framework does not apply to the OCC‘s interpretation of the statute at issue here. The Attorney General argues that by limiting the visitorial powers that apply to national banks, Congress clearly did not intend to divest states of the authority to enforce their own otherwise non-preempted laws against such banks. Such authority, the Attorney General contends, is an intrinsic aspect of state sovereignty and its exercise cannot be curtailed in the absence of a clear statement of Congressional intent. See, e.g., Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) (“If Congress intends to alter the usual constitutional balance between the States and the Federal Government, it must make its intention to do so unmistakably clear in the language of the statute.” (internal quotation marks omitted)); see also Diamond v. Charles, 476 U.S. 54, 65 (1986) (“[T]he power to create and enforce a legal code, both civil and criminal is one of the quintessential
The first question is whether a presumption against preemption applies to the OCC‘s regulation interpreting § 484(a). Federal preemption can be express or implied, but in either case is primarily a question of Congressional intent. See Barnett Bank of Marion County, N.A. v. Nelson, 517 U.S. 25, 31 (1996). “Preemption can generally occur in three ways: where Congress has expressly preempted state law, where Congress has legislated so comprehensively that federal law occupies an entire field of regulation and leaves no room for state law, or where federal law conflicts with state law.” Burke, 414 F.3d at 313; see also Fid. Fed. Sav. & Loan Ass‘n v. de la Cuesta, 458 U.S. 141, 153 (1982). “Federal regulations have no less pre-emptive effect than federal statutes.” de la Cuesta, 458 U.S. at 153.
Ordinarily, a presumption against preemption applies in areas of regulation traditionally allocated to the states. See Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947) (“[W]e start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.“). In Wachovia v. Burke, we observed that this presumption “disappears” in the context of national bank regulation, which has been “substantially occupied by federal authority for an extended period of time.” Burke, 414 F.3d at 314 (internal quotation marks omitted); see also Flagg v. Yonkers Sav. & Loan Ass‘n, 396 F.3d 178, 183 (2d Cir. 2005). Historically, the Supreme Court has “interpret[ed] grants of both enumerated and incidental ‘powers’ to national banks as grants of authority not normally limited by, but rather ordinarily pre-empting, contrary state law.” Barnett Bank, 517 U.S. at 32. The district court, therefore, did not err in determining that no presumption against preemption applies to the regulation at issue here.
For essentially the same reason, we also reject the Attorney General‘s reliance on the somewhat broader principle that—whether or not a presumption against preemption applies—“[w]here an administrative interpretation of a statute invokes the outer limits of Congress’ power, we expect a clear indication that Congress intended that result.” Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng‘rs, 531 U.S. 159, 172 (2001) (“SWANCC“). That broader principle is rooted in the doctrine of constitutional avoidance, which the Supreme Court has recognized may, in some instances, trump the deference typically afforded to an agency‘s interpretation of the statute it administers. See id.; Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988) (“[W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.“). The concern about reaching constitutional issues unnecessarily, and the corresponding demand for a clear statement from Congress, is “heightened where the administrative interpretation alters the federal-state framework by permitting federal encroachment upon a traditional state power.” SWANCC, 531 U.S. at 173.
B
We turn next to the Attorney General‘s contention that § 484(a) is clear, and that the statute precludes the interpretation the OCC has adopted.6 As we have already noted, the first question we ask in reviewing an agency‘s construction of the statute it administers is “whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842-43. The two questions at issue here both concern the scope of visitorial powers encompassed by § 484(a). They are: (1) whether Congress intended to preclude state officials from enforcing non-preempted state laws that, like New York‘s discrimination-in-lending law, concern the federally authorized activities of national banks; and (2) whether Congress intended to permit state officials to exercise otherwise prohibited visitorial powers by bringing actions in the “courts of justice.”
(i)
In construing § 484(a), we do not write on a blank slate. The Supreme Court interpreted “visitorial powers” in the context of the NBA for the first time in Guthrie v. Harkness, 199 U.S. 148 (1905). At issue in Guthrie was whether the NBA precludes an individual shareholder from inspecting the books and records of a national bank. The Court examined various dictionary definitions of the term “visitorial,” and summarized its common law history. Based on these various sources, the Court concluded that the visitorial powers restricted by Congress in the NBA do not include “the common-law right of the shareholder to inspect the books of the corporation.” Id. at 157. This conclusion followed from the Court‘s ac-
The Attorney General suggests that although Guthrie involved a lawsuit brought by a private plaintiff, the Court‘s opinion is consistent with the understanding that “visitation” refers primarily to examination of a corporation‘s books and records for the limited purposes of managerial oversight and monitoring compliance with a bank‘s charter, and that the term does not encompass enforcement of state laws of general applicability. This understanding, the Attorney General maintains, is reinforced by the text and structure of the NBA.
In its current form, the NBA details the OCC‘s specific examination powers over national banks in a different section from the visitorial powers restriction. See
As the court below pointed out, the Attorney General‘s proposed reading ignores the fact that the NBA, both as originally enacted and in its present version, authorizes the OCC to sue in its own name to redress certain violations—a power that might itself be considered visitorial. See OCC v. Spitzer, 396 F. Supp. 2d at 394;
The Supreme Court‘s decision in Watters v. Wachovia casts further doubt on the Attorney General‘s interpretation. Watters involved the State of Michigan‘s effort to enforce two statutes concerning mortgage lending against a national bank‘s operating subsidiary, Wachovia Mortgage. The statutes imposed registration and disclosure requirements on mortgage lenders, including national bank operating subsidiaries and other state-chartered institutions. Watters, 127 S. Ct. at 1565-66. They also granted to the commissioner of Michigan‘s Office of Insurance and Financial Services “inspection and enforcement authority over registrants,” and “authorize[d] the commissioner to take regulatory or enforcement actions against covered lenders.” Id. at 1566. The State argued—contrary to another recent OCC regulation,
The powers granted to the commissioner under the Michigan statutes, the Court observed, were undeniably “visitorial” and thus, as the parties conceded, could not be applied to national banks themselves. “State laws that conditioned national
In this regard, the Court in Watters concluded that the level of deference owed to the OCC‘s regulation, § 7.4006, “is an academic question,” since that regulation “merely clarifies and confirms what the NBA already conveys: A national bank has the power to engage in real estate lending through an operating subsidiary, subject to the same terms and conditions that govern the national bank itself; that power cannot be significantly impaired or impeded by state law.” Id. at 1572; cf. Burke, 414 F.3d at 321 (upholding § 7.4006 on the basis of a Chevron analysis).
Watters does not directly address the questions at issue here. Nevertheless, the Court implied that investigation and enforcement by state officials are just as much aspects of visitorial authority as registration and other forms of administrative supervision, and that the OCC was not clearly wrong to include in its definition of visitorial powers “[e]nforcing compliance with any applicable federal or state laws concerning” a national bank‘s authorized banking activities.
The Watters dissent maintained, as the Attorney General does here, “that nondiscriminatory laws of general application that do not ‘forbid’ or ‘impair significantly’ national bank activities should not be preempted.” Id. at 1574 (Stevens, J., dissenting). The premise of the majority opinion, however, is that enforcement of a state law purporting to regulate a national bank‘s exercise of the powers it has been granted under the NBA may constitute a prohibited visitation under § 484(a), whether or not the law itself directly conflicts with a federal statute or regulation.8
(ii)
The Attorney General maintains that even if his investigation may be construed as a visitation, it is nonetheless permitted under § 484‘s express exception for visitorial powers “vested in the courts of justice.” To support this argument, the Attorney General relies primarily on what might be read as an alternative holding in Guthrie. Having concluded that the NBA‘s visitorial powers restriction did not foreclose a shareholder from seeking to enforce his common law right of inspection against a national bank, the Court in Guthrie observed that such inspection, “even if included in visitorial powers as the terms are used in the statute,” would nevertheless “belong to that class ‘vested in the courts of justice’ which are expressly excepted from the inhibition of the statute.” Guthrie, 199 U.S. at 159.
The Attorney General‘s proposed interpretation of the “courts of justice” exception cuts too broadly. If a state official could sidestep the Act‘s restriction on the exercise of visitorial powers simply by filing a lawsuit, the exception would swallow the rule. Moreover, as we note above, the sovereign‘s bringing of an action in court was a primary means of exercising visitorial powers at common law. Because Guthrie involved a suit initiated by a private plaintiff, the only possible exercise of visitorial powers would have been by the court itself. See Guthrie, 199 U.S. at 158-59 (“The right of visitation [is] a public right . . . .” (emphasis added)). Whatever the scope of the courts of justice exception, it cannot be as broad as the Attorney General suggests, since that interpretation would provide no effective restriction on the exercise of a state‘s visitorial powers over national banks.
C
Since “Congress has not directly addressed the precise question[s] at
The Attorney General makes two preliminary arguments for why we should not defer to the OCC‘s interpretation of § 484(a). Both were properly rejected by the district court. First, the Attorney General argues that the OCC‘s regulation,
It is settled that courts should give great weight to any reasonable construction of a regulatory statute adopted by the agency charged with the enforcement of that statute. The Comptroller of the Currency is charged with the enforcement of banking laws to an extent that warrants the invocation of this principle with respect to his deliberative conclusions as to the meaning of these laws.
NationsBank, 513 U.S. at 256-57 (internal quotation marks omitted). We see no reason to depart from this settled principle here.
Second, the Attorney General contends that no deference is owed to the regulation because it interprets purely legal concepts, as opposed to technical matters within the OCC‘s expertise. This contention is significantly more troublesome. We have previously observed that “an [administrative] agency has no special competence or role in interpreting a judicial decision.” New York v. Shalala, 119 F.3d 175, 180 (2d Cir. 1997) (internal quotation marks and citation omitted).
The administrative record here consists almost entirely of the agency‘s interpretation of case law, legislative history, and statutory text. See, e.g., 69 Fed. Reg. 1895, 1897-1900 (Jan. 13, 2004) (final rule); 64 Fed. Reg. 31749, 31751 (June 14, 1999) (NPRM). These are not subjects on which the OCC holds any special expertise, nor has the OCC identified any particularly technical aspect of the regulatory subject matter that the agency is “‘uniquely qualified’ to comprehend.” Geier v. Am. Honda Motor Co., 529 U.S. 861, 883 (2000) (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 496 (1996)); see also Watters, 127 S. Ct. at 1584 (Stevens, J., dissenting). To warrant Chevron deference, we ordinarily require administrative agencies to “articulate a logical basis for their decisions, including a
Nevertheless, it does not follow that an agency‘s attempts to harmonize its rulemaking with judicial precedent—as the OCC has done here, see, e.g., 69 Fed. Reg. 1895, 1897-1900—necessarily invalidate that rulemaking. Cf. Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 127 S. Ct. 2339, 2350-51 (2007). We remain bound to uphold the agency‘s rule so long as it is not “arbitrary, capricious, or manifestly contrary to the statute.” Chevron, 467 U.S. at 844. Because we conclude that the rule the OCC adopted is not inconsistent with judicial precedent, the Attorney General‘s argument is unavailing.
Rather than analyzing the OCC‘s regulation in the abstract, we begin by emphasizing that the investigation and threatened enforcement action it would preclude in this instance concern real estate lending—precisely the same banking activity that was at issue in Watters. The authority of national banks to engage in that activity is a power that Congress has expressly granted under the NBA, subject to rules prescribed by the OCC.
In 2004, the OCC adopted a separate regulation detailing certain categories of preempted state law limitations on a national bank‘s real estate lending powers, including laws that concern licensing and registration, loan-to-value ratios, disclosure and advertising, and interest rates.
In addition to being unencumbered by state laws that are preempted, either by the NBA itself or by OCC regulations, “real estate lending, when conducted by a national bank, is immune from state visitorial control” as a result of § 484(a). Watters, 127 S. Ct. at 1567. Such immunity attaches not because of any specific conflict between state and federal law, but because “[t]he NBA specifically vests exclusive authority to examine and inspect in [the] OCC.” Id. In this regard, the NBA‘s restriction on visitorial powers reflects Congress‘s overall judgment that, in the context of national bank regulation, “confusion would necessarily result from control possessed and exercised by two independent authorities.” Easton v. Iowa, 188 U.S. 220, 232 (1903); see Watters, 127 S. Ct. at 1568.
Likewise, the OCC‘s regulation is “consistent with the intent of creating a national banking system that is subject to cohesive, uniform supervision by the primary
In drawing the lines that it did in § 7.4000(a), the OCC reached a permissible accommodation of conflicting policies that were committed to it by the statute. As we have described above, the OCC‘s regulation furthers Congress‘s intent, through § 484(a) and other provisions of the NBA, to shield national banks “from unduly burdensome and duplicative state regulation” in the exercise of their federally authorized powers, such as real estate lending. Watters, 127 S. Ct. at 1567. At the same time, it preserves state sovereignty by leaving state officials free to enforce a wide range of laws that do not purport to regulate a national bank‘s exercise of its authorized banking powers, as well as by not preempting state laws—including
Furthermore, as the district court pointed out, the OCC‘s interpretation of § 484(a) as restricting the authority of states to enforce certain otherwise non-preempted laws finds support in another recent Congressional enactment, the Riegle-Neal Interstate Branch Banking and Efficiency Act of 1994. The Riegle-Neal Act permits national banks to establish interstate branches, and provides that such branches remain subject to “[t]he laws of the host State regarding community reinvestment, consumer protection, [and] fair lending,” except when such laws are federally preempted or determined by the OCC to have a discriminatory effect on national banks.
Finally, we agree with the district court that the OCC permissibly interpreted the “courts of justice” exception under § 484(a) as pertaining only “to the powers inherent in the judiciary” and as not “grant[ing] state or other governmental authorities any right to inspect, superintend, direct, regulate or compel compliance by a national bank with respect to any law, regarding the content or conduct of activities authorized for national banks under Federal law.”
By contrast, the OCC has put forth a more reasonable interpretation that comports with the text of the statute, as well as Congress‘s overall intent. The exception, as the OCC interprets it, confirms that § 484(a) does not strip the courts of any inherent authority they possess to issue subpoenas, for example, against a national bank, or to exercise jurisdiction over such a bank where it is otherwise proper to do so, simply because such acts in and of themselves might be considered “visitorial.” See, e.g., NLRB v. N. Trust Co., 148 F.2d 24, 29 (7th Cir. 1945); Overfield v. Pennroad Corp., 113 F.2d 6, 12 (3d Cir. 1940). At the same time, the OCC properly determined that this exception does not positively grant authority to state officials to accomplish what § 484(a) otherwise forbids “by invoking the power of the courts.” OCC v. Spitzer, 396 F. Supp. 2d at 406.
We conclude that the district court did not err in deferring to the OCC‘s interpretation of § 484(a), as set forth in
IV
The Attorney General argues that even if he is precluded from enforcing New York State law against the national banks, under § 484(a) and § 7.4000, he nevertheless is permitted to bring an action against such banks to enforce the federal Fair Housing Act, in a parens patriae capacity.10 The Attorney General first mentioned the FHA in his Answer to the OCC‘s complaint, and only later clarified that the basis for a potential suit under that statute might be his parens patriae
We note at the outset that the OCC did not address the issue of whether the FHA creates a federally authorized exception under § 484(a), and declined to take a position on this issue in the court below on the ground that it was not ripe for adjudication. In its brief to this Court, the OCC purports to have changed its mind regarding ripeness, and now aligns itself with Clearing House on the merits of the claim. We also note that while no party contested our jurisdiction over Clearing House‘s claim, the Attorney General did argue below that the court lacked subject matter jurisdiction. Moreover, we have an independent obligation to ensure that subject matter jurisdiction exists, and we therefore raise the issue nostra sponte. Joseph v. Leavitt, 465 F.3d 87, 89 (2d Cir. 2006); Palmieri v. Allstate Ins. Co., 445 F.3d 179, 184 (2d Cir. 2006).
We perceive two aspects to this question of jurisdiction. The first is whether Clearing House has properly grounded its complaint in a federal question, consistent with the “well-pleaded complaint” rule. See Fleet Bank, Nat‘l Ass‘n v. Burke, 160 F.3d 883, 886 (2d Cir. 1998) (noting that the rule “requires a complaint invoking federal question jurisdiction to assert the federal question as part of the plaintiff‘s claim, and precludes invoking federal question jurisdiction merely to anticipate a federal defense” (internal citations omitted)). The second is whether the FHA issue is ripe for adjudication. See United States v. Quinones, 313 F.3d 49, 58 (2d Cir. 2002) (observing that “[r]ipeness is a constitutional prerequisite to the exercise of jurisdiction by the federal courts” (internal quotation marks omitted)).
With regard to the first aspect, the district court correctly noted that “[i]t is beyond dispute that federal courts have jurisdiction over suits to enjoin state officials from interfering with federal rights.” Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96 n. 14 (1983); see also Fleet Bank, 160 F.3d at 888. Thus, the fact that the claim Clearing House is asserting might also serve as the basis for a defense to a potential state court action has no bearing on whether it has satisfied the well-pleaded complaint rule. See Clearing House v. Spitzer, 394 F. Supp. 2d at 624-25. Moreover, since Clearing House seeks to prevent the Attorney General from enforcing one federal statute (the FHA) because such enforcement would conflict with another federal statute (the NBA), the issue of whether a federal question has been presented is even more straightforward than in cases such as Fleet Bank and Shaw, which involved actions brought to challenge the threatened enforcement of state laws by state officials.11 See id. at 624; see also Verizon Md. Inc. v. Pub. Serv. Comm‘n of Md., 535 U.S. 635, 650-51 (2002) (Souter, J., concurring).
Somewhat more difficult is the issue of ripeness, which the district court did not address, but which we find necessary to consider given that the Attorney Gener-
The Supreme Court has advised that ripeness questions are “best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967). Whether the Attorney General may sue to enforce the FHA against national banks depends on our interpretation of that statute‘s grant of standing, along with our understanding of § 484(a). Those questions might be viewed as purely legal ones which would not be significantly clarified by further factual development. See Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 581 (1985); Abbott Labs., 387 U.S. at 149.
As to the second factor, however, we have serious doubts regarding any hardship that Clearing House might suffer were we to defer consideration of this issue. If this were only a prudential matter, we might be inclined to afford greater weight to the first aspect of the ripeness inquiry. Cf. Nat‘l Park Hospitality Ass‘n v. Dep‘t of Interior, 538 U.S. 803, 814-15 (2003) (Stevens, J., concurring). In this case, however, the question of hardship for ripeness purposes coincides with the question of whether an “imminent injury in fact” has been established for purposes of standing. See, e.g., MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 S. Ct. 764, 772 n. 8 (2007). The latter is an independent constitutional requirement. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
The district court held that Clearing House and its members had suffered injury because “[t]he threat of litigation in this case is not merely conjectural or hypothetical.” Clearing House v. Spitzer, 394 F. Supp. 2d at 626 (citing O‘Shea v. Littleton, 414 U.S. 488, 496-97 (1974)). Although no enforcement action has yet been filed, the district court noted the Attorney General‘s stated intention to file such an action in the absence of an injunction, as well as his belief that the HMDA data are sufficient to establish a prima facie case of racial discrimination under both federal and state fair lending laws. See id.
The Supreme Court has recognized that “where threatened action by government is concerned, we do not require a plaintiff to expose himself to liability before bringing suit to challenge the basis for the threat—for example, the constitutionality of a law threatened to be enforced.” MedImmune, 127 S. Ct. at 772; see also Steffel v. Thompson, 415 U.S. 452, 459 (1974) (holding that where a threat of prosecution is concrete and not merely speculative, “it is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights“). However, the various factors giving rise to
Nor are Clearing House‘s members faced with the dilemma confronted in Ex Parte Young, 209 U.S. 123 (1908), where to test the validity of an allegedly unconstitutional state regulation, the company would have been required to find an agent or employee to disobey the regulation at the risk of a fine or imprisonment. Id. at 145-46; see also Yakus v. United States, 321 U.S. 414, 437-38 (1944). Nor is this a situation in which compliance with a challenged law, prior to its enforcement, would force Clearing House‘s members to incur immediate expenses, make changes in their daily activity, or otherwise would affect their “primary conduct.” Cf. Nat‘l Park Hospitality Ass‘n, 538 U.S. at 810; Abbott Labs., 387 U.S. at 152-53. As we have already emphasized, Clearing House and its members are required to abide by the fair lending provisions of the FHA regardless of whether the New York Attorney General has the authority to enforce those provisions.
Finally, we see no risk that, in the absence of an injunction, the Attorney General will continue to investigate Clearing House‘s members prior to filing an enforcement action. Under state law, the Attorney General has broad authority to investigate illegality as well as the power to issue subpoenas.
For similar reasons, we see no contradiction between our decision to affirm the relief granted by the district court in OCC v. Spitzer and our determination that the FHA claim at issue is not ripe for adjudication. Although the Attorney General had not filed a lawsuit to enforce
Because it was unripe, the district court lacked jurisdiction over Clearing House‘s claim regarding enforcement of the FHA. We therefore vacate the injunction against the Attorney General‘s enforcement of the
Moreover, this Court has never had occasion to address the underlying question of whether a state attorney general has standing to sue as parens patriae under the FHA. Cf. Support Ministries for Pers. With Aids, Inc. v. Vill. of Waterford, 799 F. Supp. 272, 279 (N.D.N.Y. 1992) (concluding that New York State had parens patriae standing to maintain a suit under the FHA); Hous. Auth. of the Kaw Tribe of Indians of Okla. v. City of Ponca, 952 F.2d 1183, 1195 (10th Cir. 1991) (holding that a state housing authority could be considered a “person” for purposes of standing under the FHA). Though we do not believe it would be appropriate to do so in the first instance on the basis of the hypothetical action posited in this case, we note that both Congress and the Supreme Court have made clear that standing to sue under the FHA is extraordinarily permissive. See infra. As a result, the question of whether the NBA precludes state attorneys general from seeking to enforce the FHA against national banks is significantly more complicated than the district court‘s analysis suggests.
The FHA includes a broad remedial provision that allows any “aggrieved person” to bring an action in district court on the basis of a discriminatory housing practice.
* * *
For the foregoing reasons, we AFFIRM the district court‘s judgment in OCC v. Spitzer. We AFFIRM in part and VACATE in part the district court‘s separate judgment in Clearing House v. Spitzer, and we REMAND with instructions for the district court to dismiss the Fair Housing Act claim for lack of subject matter jurisdiction.
Notes
No national bank shall be subject to any visitorial powers except as authorized by Federal law, vested in the courts of justice or such as shall be, or have been exercised or directed by Congress or by either House thereof or by any committee of Congress or of either House duly authorized.
[L]awfully authorized State auditors and examiners may, at reasonable times and upon reasonable notice to a bank, review its records solely to ensure compliance with applicable State unclaimed property or escheat laws upon reasonable cause to believe that the bank has failed to comply with such laws.