Amer Commty Bkrs v. FDIC

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 19, 1999 Decided January 18, 2000

No. 99-5028

America's Community Bankers,
Appellant

v.

Federal Deposit Insurance Corporation,
Appellee

Appeal from the United States District Court
for the District of Columbia
(No. 97cv00416)

H. Stephen Harris, Jr., argued the cause for appellant.
With him on the briefs was Philip R. Stein.

Thomas L. Holzman, Counsel, Federal Deposit Insurance
Corporation, argued the cause for appellee. With him on the
brief were Jack D. Smith, Deputy General Counsel, Ann S.
Duross and Thomas A. Schulz, Assistant General Counsel,
and Robert D. McGillicuddy and Barbara Sarshik, Counsel.

 Before: Sentelle, Henderson and Garland, Circuit
Judges.

Opinion for the Court filed by Circuit Judge Sentelle.

Sentelle, Circuit Judge: America's Community Bankers
(Bankers), a trade association of banks and savings institu-
tions, appeals from a district court order granting summary
judgment for the Federal Deposit Insurance Corporation
(FDIC) in an action challenging the results of an FDIC
rulemaking undertaken in response to the Deposit Insurance
Funds Act of 1996 (the Act or the 1996 Act). Reviewing the
agency's rulemaking under Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984), the
district court upheld the FDIC's conclusions as a reasonable
interpretation of the relevant statutes. Because we agree
with the district court that the FDIC's interpretation of its
governing statute is a reasonable one entitled to Chevron
deference, we affirm the district court's decision.

I. Glossary
Because of the numerous acronyms and terms of art em-
ployed in this opinion, we provide a brief glossary.

Bankers America's Community Bankers (Ap-
pellant)

APA Administrative Procedure Act

Bank Fund Bank Insurance Fund

Act or 1996 Act Deposit Insurance Funds Act of 1996

FDIC Federal Deposit Insurance Cor-
poration (Appellee)

FICO Financing Corporation

FIRREA Financial Institutions Reform, Re-
covery, and Enforcement Act

FSLIC Federal Savings and Loan Insur-
ance Corporation

Savings Fund Savings Association Insurance Fund
II. Background

In 1987, in an effort to stem a crisis in the savings and loan
industry, Congress established the Financing Corporation
(FICO) and authorized it to issue and service bonds for the
purpose of recapitalizing and stabilizing the insolvent Federal
Savings and Loan Insurance Corporation (FSLIC). See Fed-
eral Savings and Loan Insurance Corporation Recapitaliza-
tion Act of 1987, Pub. L. No. 100-86, s 302, 101 Stat. 552, 585
(1987); see also 12 U.S.C. s 1441 (1994) (current version at 12
U.S.C.A. s 1441 (West Supp. 1999)); Marirose K. Lescher &
Merwin A. Mace III, Financing the Bailout of the Thrift
Crisis: Workings of the Financing Corporation and the
Resolution Funding Corporation, 46 Bus. Law. 507, 510 (1991)
(discussing the establishment of FICO). The problems of the
savings and loan industry failed to abate, however, so in 1989
Congress enacted more sweeping legislation to increase the
supervisory authority of the FDIC and other regulatory
agencies and to "reform, recapitalize, and consolidate" the
federal deposit insurance system. Financial Institutions Re-
form, Recovery, and Enforcement Act of 1989, Pub. L. No.
101-73, 103 Stat. 183, 183 (1989) (FIRREA); see also How a
Good Idea Went Wrong: Deregulation and the Savings and
Loan Crisis, 47 Admin. L. Rev. 643, 656-58 (1995) (discussing
the enactment of FIRREA). To accomplish the latter,
FIRREA created two insurance funds under the administra-
tive authority of the FDIC: the Savings Association Insur-
ance Fund (Savings Fund) and the Bank Insurance Fund
(Bank Fund). See FIRREA s 206 (codified at 12 U.S.C.
s 1815). FIRREA also abolished the FSLIC, gave the Fed-
eral Housing Finance Board administrative authority over
FICO, and shifted responsibility for the interest on FICO's
bonds to Savings Fund member institutions. See id.
ss 401(a), 512.

In further legislation, Congress ordered the FDIC to pro-
mulgate by regulation a schedule to assess Savings Fund
member institutions semiannually to achieve by the year 2004
a designated 1.25% reserve-to-deposits capitalization ratio,
then to set semiannual assessments to maintain reserves at
that level. See Federal Deposit Insurance Corporation Im-
provement Act of 1991, Pub. L. No. 102-242, s 302(a), 105

Stat. 2236, 2345 (1991) (codified as amended at 12 U.S.C.
s 1817(b) (West Supp. 1999)). The FDIC's governing statute
instructed the FDIC Board, in setting the Savings Fund's
assessments, to consider "(I) expected operating expenses,
(II) case resolution expenditures and income, (III) the effect
of assessments on members' earnings and capital, and (IV)
any other factors that the Board of Directors may deem
appropriate." 12 U.S.C.A. s 1817(b)(2)(A)(ii) (West Supp.
1999).

Another section of that statute, 12 U.S.C. s 1441(f)(2), also
authorized FICO, "with the approval of the Board of Di-
rectors of the [FDIC]," to assess Savings Fund members to
service FICO's bonds. 12 U.S.C. s 1441(f)(2) (1994) (current
version at 12 U.S.C.A. s 1441(f)(2) (West Supp. 1999)). The
same provision mandated that the sum of amounts assessed
by FICO and by the Resolution Funding Corporation under
12 U.S.C. s 1441b "shall not exceed the amount authorized to
be assessed against [Savings Fund] members pursuant to [12
U.S.C. s 1817];" and that FICO "shall have first priority to
make the assessment." Id. s 1441(f)(2)(A)-(B). Finally, 12
U.S.C. s 1441(f)(2)(C) required the amount of the Savings
Fund assessment under 12 U.S.C. s 1817 to be reduced by
the amount of the FICO and Resolution Funding Corporation
assessments. See id. s 1441(f)(2)(C). After FIRREA abol-
ished the FSLIC in 1989, the FDIC collected the FICO
assessments on FICO's behalf along with the Savings Fund
assessments. Thus the pre-1996 statutory scheme linked
FICO's bond interest funding to the Savings Fund's insur-
ance premium assessment process and gave FICO funding
the higher priority.

The Bank Fund achieved capitalization in May 1995, so the
FDIC lowered the assessments of member institutions. See
Lisa L. Bonner, Updating FDICIA/RTC, 15 Ann. Rev. Bank-
ing L. 81, 84-87 (1996) (describing the state of the insurance
funds immediately prior to passage of the 1996 Act). In
comparison, the Savings Fund remained significantly under-
capitalized, and Savings Fund assessments remained high,
because of the diversion of a portion of Savings Fund assess-
ments to satisfy FICO's bond interest obligation. See id.

Pursuing lower insurance fund assessments, Savings Fund
member institutions sought to shift their deposits to the Bank
Fund, and thus threatened to destabilize the Savings Fund
and FICO's ability to pay its bond interest obligation. See J.
Virgil Mattingly & Keiran J. Fallon, Understanding the
Issues Raised by Financial Modernization, 2 N.C. Banking
Inst. 25, 62-63 (1998) (discussing the enactment of the 1996
Act). To address this problem, Congress passed the 1996
Act, which the President signed into law on September 30,
1996. See id.

The Act ordered the FDIC to impose a special assessment
sufficient to raise the Savings Fund to the 1.25% designated
reserve ratio for the fourth quarter of 1996 as of October 1,
1996. See 1996 Act, Pub. L. No. 104-208, s 2702, 110 Stat.
3009, 3009-479 (1996). The Act also amended 12 U.S.C.
s 1817(b)(2)(A)(i) to require that the FDIC make Savings
Fund assessments "when necessary, and only to the extent
necessary" to maintain Savings Fund reserves at the desig-
nated reserve ratio. 1996 Act s 2708(a), 110 Stat. 3009-497
(codified at 12 U.S.C.A. s 1817(b)(2)(A)(i) (West Supp. 1999)).
Finally, effective January 1, 1997, the Act authorized FICO to
service its bonds by assessing all insured depository institu-
tions, not just Savings Fund member institutions; and in a
related amendment, the Act eliminated the language in 12
U.S.C. s 1441(f)(2) that linked the FICO and Savings Fund
assessments. See 1996 Act s 2703(a), 110 Stat. 3009-485
(codified at 12 U.S.C.A. s 1441(f)(2) (West Supp. 1999)).

To summarize: As of October 1, 1996, the Savings Fund
was fully capitalized at the designated reserve ratio. Thus,
under 12 U.S.C. s 1817(b)(2)(A)(i), the FDIC could only
assess Savings Fund members to the extent necessary to
maintain the Savings Fund at that level. Because the amend-
ment to 12 U.S.C. s 1441(f)(2) severing the statutory relation-
ship between the Savings Fund and FICO did not become
effective until January 1, 1997, however, FICO could only
assess Savings Fund members to the extent authorized under
12 U.S.C. s 1817 to cover its bond interest obligation for the
fourth quarter of 1996.

 On May 30, 1996, before the 1996 Act was enacted, FICO
sent a memorandum to the FDIC requesting funding of
$396,665,000 for the period of July 1 through December 31,
1996. On August 31, 1996, the FDIC sent invoices to the
Savings Fund member institutions for the fourth quarter 1996
Savings Fund and FICO assessments. On September 30,
1996, the day the President signed the Act into law, the FDIC
collected the fourth quarter Savings Fund and FICO assess-
ments and transmitted to FICO its portion. On October 16,
1996, the FDIC issued a final rule imposing the special
assessment ordered by the Act, to be collected on November
27, 1996. See 61 Fed. Reg. 53,834 (1996). Since the special
assessment capitalized the Savings Fund retroactive to Octo-
ber 1, the FDIC also issued on October 16 a notice of
proposed rulemaking to revise the fourth quarter assessment
schedules so as to refund the fourth quarter Savings Fund
assessment collected on September 30, 1996. See 61 Fed.
Reg. 53,867 (1996) (proposed Oct. 16, 1996).

On December 11, 1996, the FDIC Board held an open
meeting to consider a final rule revising the fourth quarter
Savings Fund assessment rates. At that meeting, the Board
considered whether a refund of the fourth quarter FICO
assessment was appropriate as well. While acknowledging
that the statutes could be read otherwise, the Board rejected
the legal interpretation favored by Bankers in this litigation
in favor of what the Board deemed to be "the better reading."
The Board concluded that the statutory relationship between
the FICO and Savings Fund assessments should be construed
to satisfy congressional intent that FICO be funded, that
FICO's needs fell within the scope of "any other factors that
the Board of Directors may deem appropriate" under 12
U.S.C. s 1817(b)(2)(A)(ii)(IV), and that the FDIC serves
purely a custodial role in collecting and disbursing the FICO
assessments, thus has no authority to refund the fourth
quarter 1996 FICO assessment. The final rule adopting the
revised assessment schedules, including the Savings Fund
refund but no FICO refund, was issued December 24, 1996.
See 61 Fed. Reg. 67,687 (1996) (codified as amended at 12
C.F.R. ss 327.3-327.10).

 Bankers sued under the Administrative Procedure Act
(APA) seeking a declaratory judgment that its members are
statutorily entitled to a refund of the FICO portion of the
September 30, 1996, assessment.1 The district court applied
the two-part test of Chevron U.S.A. Inc. v. Natural Re-
sources Defense Council, Inc., 467 U.S. 837 (1984), to the
FDIC Board's interpretation of the statutory scheme, and
found that the FDIC's decision not to refund the FICO
portion of the fourth quarter 1996 assessments "was neither
arbitrary, capricious, nor otherwise unlawful." America's
Community Bankers v. FDIC, 31 F. Supp. 2d 137, 141
(D.D.C. 1998). Additionally, the district court found that the
refund sought by Bankers was not available under 5 U.S.C.
s 702: Because the FDIC had disbursed the funds to FICO
immediately upon collection, the FDIC lacked the particular
res required for recovery under the APA. See id. at 142
(citing City of Houston v. Department of Hous. and Urban
Dev., 24 F.3d 1421, 1428 (D.C. Cir. 1994)). The court sug-
gested that Bankers should sue FICO for relief instead.

III. Article III Standing

First, the FDIC challenges Bankers's standing before this
court, a contention which we must address before proceeding
to the merits of Bankers's claim. To meet the case or
controversy requirement of Article III of the United States
Constitution, a plaintiff must demonstrate that he has suf-
fered injury in fact, that the injury is fairly traceable to the
defendant's actions, and that a favorable decision will redress
the plaintiff's injury. See Bennett v. Spear, 520 U.S. 154, 162
(1997); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992). The FDIC does not challenge Bankers's satisfaction
of the injury-in-fact element,2 but asserts that Bankers cannot

__________
1 Under the APA, reviewing courts hold unlawful and set aside
only those agency actions or conclusions found to be "arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance
with law." 5 U.S.C. s 706(2)(A) (1994).

2 Bankers's standing rests on the concept of associational stand-
ing. A membership organization may sue to redress its members'

satisfy the causation and the redressability requirements for
Article III standing. To establish causation, Bankers must
demonstrate a causal link between the injury to its members
and the FDIC's conduct, that is that the injurious conduct is
fairly traceable to the FDIC's actions, as opposed to the
independent action of a third party not before the court. See
Defenders of Wildlife, 504 U.S. at 560-61. To satisfy the
redressability requirement, Bankers must establish that it is
likely, as opposed to merely speculative, that a favorable
decision by this court will redress the injury suffered. See id.

A. Causation

The FDIC suggests that, to satisfy the causation element
of the standing analysis, the challenged agency must have
been the driving force behind the injurious conduct. Employ-
ing this standard, the FDIC maintains that it did not cause
the injury to Bankers's members because it was only a
conduit, a passive intermediary acting entirely on FICO's
behalf and at FICO's instruction. Contrary to the FDIC's
assertion, our precedents generally do not require so high a
degree of independent agency action for a finding of causa-
tion. We have held in several recent opinions that the
causation element is satisfied by a demonstration that an
administrative agency authorized the injurious conduct. See,
e.g., Animal Legal Defense Fund (ALDF) v. Glickman, 154
F.3d 426, 440-43 (D.C. Cir. 1998) (en banc); Bristol-Myers
Squibb Co. v. Shalala, 91 F.3d 1493, 1499 (D.C. Cir. 1996);
Telephone and Data Sys., Inc. v. FCC, 19 F.3d 42, 46-47
(D.C. Cir. 1994). In ALDF v. Glickman, we held that even
agency action which implicitly permits a third party to behave
in an injurious manner offers enough of a causal link to
support a lawsuit against the agency. See 154 F.3d at 440-
43. In short, our precedents suggest that an agency does not

__________
injuries, even if the organization cannot demonstrate an injury to
itself. See, e.g., UAW v. Brock, 477 U.S. 274 (1986); Hunt v.
Washington State Apple Adver. Comm'n, 432 U.S. 333 (1977);
Warth v. Seldin, 422 U.S. 490 (1975). Our discussion therefore
concerns injury to Bankers's member institutions, not the organiza-
tion per se.

have to be the direct actor in the injurious conduct, but that
indirect causation through authorization is sufficient to fulfill
the causation requirement for Article III standing.

In the present case, the FDIC was more involved in both
the assessment and collection processes than our precedents
require. Both before and after the 1996 Act, FICO was
statutorily required to obtain "the approval of the Board of
Directors of the [FDIC]" in assessing Savings Fund member
institutions. 12 U.S.C.A. s 1441(f)(2) (West Supp. 1999); see
also 12 U.S.C. s 1441(f)(2) (1994). Even if the FDIC is
correct that it could not collect the semiannual FICO assess-
ment without FICO's permission, clearly 12 U.S.C.
s 1441(f)(2) contemplates that FICO could not assess Savings
Fund member institutions without FDIC approval, either.
The FDIC's own deliberations over whether or not to refund
the FICO portion of the funds collected on September 30,
1996, suggest that, contrary to its position here, the FDIC
viewed itself as playing an active role in the assessment
process. Moreover, once the assessments were final, the
FDIC was solely responsible for collecting the funds from
Savings Fund members. So while the FDIC's involvement in
the FICO assessment was perhaps something less than we
often see, cf. Bennett v. Spear, 520 U.S. at 169-70; Northeast
Energy Assocs. v. FERC, 158 F.3d 150, 153-54 (D.C. Cir.
1998), the FDIC's actions are well within the outer boundary
of causation established by ALDF v. Glickman and the cases
discussed therein.

B. Redressability

In its suit against the FDIC, Bankers seeks a declaratory
judgment that 12 U.S.C. ss 1441 and 1817, as of October 1,
1996, limited the fourth quarter 1996 Savings Fund assess-
ment (including the FICO assessment portion) to the rate
necessary to maintain the Savings Fund at the 1.25% desig-
nated reserve ratio. See Appellant's Br. at 2. Bankers also
seeks a declaration that its members are entitled to a refund
from the FDIC of all fourth quarter assessments exceeding
that amount--in other words, a refund of the fourth quarter

FICO assessment paid September 30, 1996--plus interest and
costs. See id. The FDIC maintains that a decision against it
will not redress the injury to Bankers's members because the
FDIC does not control the funds it collects on FICO's behalf
and does not have the authority to use the Bank Fund and
Savings Fund reserves it does control to provide a refund.
Bankers responds that the FDIC still must approve FICO
assessments and continues to be actively involved in the
structure and timing of those assessments. Moreover, Bank-
ers claims that 12 U.S.C. s 1817(e)(1) gives the FDIC the
statutory authority to make the requested refund. Thus, the
parties perceive that whether a favorable decision by this
court would redress the injury to Bankers's members turns
upon whether the FDIC has the authority either to pay the
refund sought by Bankers or to require FICO to pay it.

The parties misconstrue the inquiry. The redressability
element does not depend upon the defendant's financial abili-
ty to pay a judgment against it. Courts do not deny a
plaintiff his day in court simply because the defendant may be
unable to pay all or part of a potential judgment against it.
Indeed, courts regularly grant awards against defendants
who cannot pay, then leave the problems of collection to the
prevailing plaintiffs. As a general rule, governing statutes do
not explicitly authorize agencies to pay judgments against
them, presumably because such statutes do not typically
address the consequences of agencies overstepping their au-
thority. Instead, Congress has promulgated statutes like the
APA to waive sovereign immunity and authorize parties
aggrieved by agency actions to seek relief against the offend-
ing agencies in court. See generally 5 U.S.C. s 702 (1994).
If an agency errs, the agency is liable, to the extent that
Congress has waived the government's immunity from suit.
Premising redressability on the agency's explicit authority to
pay contradicts the premise of agency accountability which
underlies the APA.

The law does not require that the challenged agency be
able to pay before the redressability element for Article III
standing is satisfied. Instead, the law only requires that the
relief requested, if granted, will resolve the injury. In Natu-

ral Resources Defense Council v. Pena, 147 F.3d 1012 (D.C.
Cir. 1998), for example, the appellants sought an injunction
precluding a government agency from using a particular
report prepared by a committee organized and operated in
violation of the Federal Advisory Committee Act (FACA).
We concluded that the NRDC failed to satisfy redressability
for two reasons: First, the NRDC could not demonstrate that
denying use of the report would redress the injury caused by
past FACA violations; and second, even if ongoing FACA
violations continued to injure the NRDC, the injunction
sought would do nothing to resolve ongoing violations. See
id. at 1021-22. In contrast, the relief that Bankers seeks
would redress the alleged injury by giving Bankers's mem-
bers their money back, so long as they could collect the
award.

Where an agency rule causes the injury, the redressability
requirement may be satisfied as well by vacating the chal-
lenged rule and giving the aggrieved party the opportunity to
participate in a new rulemaking the results of which might be
more favorable to it. See, e.g., Lepelletier v. FDIC, 164 F.3d
37, 43 (D.C. Cir. 1999) (citing Northeast Energy Assocs. v.
FERC, 158 F.3d at 154; Motor & Equip. Mfrs. Ass'n v.
Nichols, 142 F.3d 449, 457-58 (D.C. Cir. 1998)). If we order
the relief that Bankers seeks, the FDIC would issue new
fourth quarter 1996 schedules assessing a lesser amount, in
essence revoking its approval of the FICO assessment retro-
actively, as it did with the fourth quarter 1996 Savings Fund
assessment, and entitling Bankers's members to a refund.

Finally, collectibility is not in fact a problem in this case.
At oral argument, the FDIC conceded that it could utilize its
approval authority to require FICO to offer Bankers's mem-
bers a credit against future assessments if this court were to
find for Bankers on the merits. Thus, while several lines of
analysis appear to support Bankers's satisfaction of the re-
dressability requirement for Article III standing, at a mini-
mum, the FDIC's ability to offer a remedy in the form of a
credit is sufficient to establish redressability. On that basis,
we hold that Bankers has standing to bring this claim for
declaratory relief against the FDIC.

 IV. Money Damages

The FDIC additionally contests our jurisdiction under the
APA to consider Bankers's request for declaratory relief.
That provision limits judicial review of claims challenging
agency actions to those "seeking relief other than money
damages." 5 U.S.C. s 702. Relying upon our opinion in City
of Houston v. Department of Hous. and Urban Dev., 24 F.3d
1421, 1428 (D.C. Cir. 1994), the district court held that, since
the FDIC was merely a conduit for the payment of funds by
the Savings Fund member institutions to FICO, the FDIC
did not retain the specific res from which a refund could be
paid; thus, it held, the refund Bankers seeks is unavailable
under 5 U.S.C. s 702. See America's Community Bankers,
31 F. Supp. 2d at 141-42. In other words, since the FDIC no
longer holds the funds paid by Bankers's members for the
fourth quarter of 1996, a refund constitutes money damages
beyond the scope of the APA's jurisdictional grant. Bankers
suggests that the district court misconstrued City of Houston
and interpreted 5 U.S.C. s 702 too narrowly.

The pivotal analysis in distinguishing specific relief avail-
able under the APA from unavailable money damages comes
from our opinion in Maryland Dep't of Human Resources v.
Department of Health and Human Servs., 763 F.2d 1441
(D.C. Cir. 1985), which the Supreme Court adopted in Bowen
v. Massachusetts, 487 U.S. 879 (1988). Not all forms of
monetary relief are money damages. See Maryland Dep't of
Human Resources, 763 F.2d at 1447. Rather, money dam-
ages represent compensatory relief, an award given to a
plaintiff as a substitute for that which has been lost; specific
relief in contrast represents an attempt to restore to the
plaintiff that to which it was entitled from the beginning. See
id. at 1446. Maryland Department of Human Resources,
Bowen, and subsequent cases focus on the nature of the relief
sought, not on whether the agency still has the precise funds
paid.

Where a plaintiff seeks an award of funds to which it claims
entitlement under a statute, the plaintiff seeks specific relief,
not damages. See, e.g., Bowen, 487 U.S. at 901; Maryland

Dep't of Human Resources, 763 F.2d at 1446-48; National
Ass'n of Counties v. Baker, 842 F.2d 369, 373 (D.C. Cir. 1988);
Aetna Cas. & Sur. Co. v. United States, 71 F.3d 475, 478-79
(2d Cir. 1995); Dia Navigation Co. v. Pomeroy, 34 F.3d 1255,
1266-67 (3d Cir. 1994). In the present case, Bankers main-
tains that the statutory scheme, as it was for the fourth
quarter of 1996, required the FDIC to provide for a FICO
assessment refund in the revised assessment schedules pro-
mulgated in December 1996. If Bankers is correct that the
FDIC violated its statutory obligation by adopting revised
assessment schedules which permitted an overcharge, then
under established and binding precedent, Bankers's claim
represents specific relief within the scope of 5 U.S.C. s 702,
not consequential damages compensating for an injury. That
the FDIC no longer possesses the precise funds collected is
not determinative of this analysis.

Our precedent in City of Houston does not preclude Bank-
ers's claim. In that case, Houston sued HUD for congres-
sionally appropriated grant money that HUD first allocated
to Houston, then reallocated elsewhere after Houston failed
to meet spending targets. The FDIC notes that we rejected
Houston's argument that HUD could use other funds at its
disposal to pay its claim and concluded that "specific relief"
under section 702 requires payment "out of a specific res."
City of Houston, 24 F.3d at 1428. The FDIC argues that
Bankers's claim is analogous to Houston's, as Bankers sug-
gests that if the FDIC does not have adequate authority to
pay a refund from FICO funds, the FDIC could use Savings
Fund reserves instead. This resemblance is superficial, how-
ever.

The principal issue in City of Houston was mootness, not
the question of allowable specific relief as opposed to unavail-
able money damages. We dismissed Houston's claim as moot
because the grant funds were contractually obligated to an-
other recipient and the appropriation in question had lapsed.
See id. at 1427. We rejected Bowen as inapplicable in view of
the Appropriations Clause of the Constitution. Because the
Appropriations Clause precludes a distribution of money from
the Treasury unless appropriated by Congress, we held that

we had no authority to provide monetary relief by ordering
reapplication of lapsed or fully obligated appropriations. See
id at 1428. The commitment of the appropriated funds to
other recipients and the expiration of the congressional ap-
propriation eliminated Houston's particular entitlement to
government monies. Outside the appropriations process,
HUD had no statutory, regulatory, or other legal obligation
or authority to distribute funds to Houston. Under those
circumstances, an award from other available HUD funds not
only would have represented compensation for Houston's loss
of the grant money--thus money damages as opposed to
specific relief--but also would have created a separation of
powers encroachment under the Appropriations Clause of the
Constitution. The City of Houston petitioners sought to have
us control the appropriation of funds, or the distribution of
appropriated funds, while the present case does not directly
implicate appropriated funds, but rather seeks restoration of
funds allegedly taken wrongfully by assessment from Bank-
ers's member institutions.

Whereas City of Houston addressed whether a court could
award to a claimant funds which otherwise belonged to the
government, this case questions whether the government can
retain funds which originally belonged to Bankers's members.
Unlike Houston, Bankers is not seeking compensation for
economic losses suffered by the government's alleged wrong-
doing; Bankers wants the FDIC to return that which right-
fully belonged to Bankers's member institutions in the first
place. Bankers alleges that the FDIC violated the terms of
12 U.S.C. ss 1441 and 1817 by assessing more in the fourth
quarter of 1996 than the statutory scheme permitted. If
Bankers is correct in its statutory interpretation, then the
FDIC improperly collected money from Bankers's members,
and they are entitled under the statutory scheme to get their
money back. The FDIC cannot eliminate the entitlement of
Bankers's member institutions to reimbursement by distrib-
uting the improperly collected funds elsewhere.

The FDIC also cites Department of the Army v. Blue Fox,
Inc., 119 S. Ct. 687 (1999), as supporting the district court's
conclusion. In Blue Fox, a prime contractor on a government

contract failed to pay a subcontractor, who then sued the
Army seeking an equitable lien on any funds available or
appropriated for the project and an order directing payment
of those funds. The Supreme Court held that, since the
subcontractor's claim for specific relief was against the de-
faulting prime contractor, an equitable lien represented com-
pensatory or substitute relief, thus money damages. See id.
at 692. The present case is different because the FDIC's
responsibility for the alleged overassessment is not purely
subsidiary to FICO's. Unlike the Army in Blue Fox, the
FDIC at least shares with FICO primary responsibility for
the alleged wrongdoing. Although the FDIC disclaims any
active role in the alleged injurious conduct, as we have
already discussed, the FDIC's characterization is inaccurate.
Since the FDIC shares direct responsibility for assessing and
collecting the FICO assessment, Bankers's claim for mone-
tary relief is equitable, like the claims in Bowen and Mary-
land Department of Human Resources, not compensatory,
like the claim in Blue Fox.

Regardless, even if we were to order a refund in this case,
no transfer of funds would be necessary to follow our com-
mand. At oral argument, the FDIC conceded that it had the
authority to offset Bankers's members' future FICO assess-
ments by the amount of any refund this court might order.
In other words, if we found for Bankers on the merits, we
could order the FDIC to give them a credit against future
FICO assessments as opposed to a cash refund of past
assessments. Bankers agreed that such a remedy would be
functionally equivalent to the relief it seeks. These conces-
sions render the FDIC's cash position both practically and
legally irrelevant. For these reasons, we hold that the reme-
dy sought by Bankers does not constitute money damages.
Thus we have power under 5 U.S.C. s 702 to consider the
merits of Bankers's claim.

V. Alleged Issues of Fact

Bankers challenges the district court's grant of summary
judgment on the ground that the court improperly resolved

genuine issues of material fact which should be left to a jury.
Bankers raises three allegedly key facts as in dispute: First,
whether FICO could have met its interest payment obli-
gations in the fourth quarter of 1996 without the special
assessment; second, whether the FDIC played an active or
passive role with respect to the assessment; and third,
whether the FDIC is capable of paying a refund. An appel-
late court reviews a grant of summary judgment de novo,
applying the same standard as governed the district court's
decision. See Greene v. Dalton, 164 F.3d 671, 674 (D.C. Cir.
1999). Accordingly, we must determine whether a genuine
issue of material fact exists in this case. See Byers v.
Burleson, 713 F.2d 856, 859 (D.C. Cir. 1983).

Bankers's claim misapprehends the district court's decision
and the nature of the inquiry at hand. Summary judgment is
appropriate when evidence on file shows "that there is no
genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law." Fed. R.
Civ. P. 56(c). Not all alleged factual disputes represent
genuine issues of material fact which may only be resolved by
a jury. "Material facts are those 'that might affect the
outcome of the suit under governing law,' and a genuine
dispute about material facts exists 'if the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party.' " Farmland Indus., Inc. v. Grain Board of Iraq, 904
F.2d 732, 735-36 (D.C. Cir. 1990) (quoting Anderson v. Liber-
ty Lobby, Inc., 477 U.S. 242, 248 (1986)). The "factual issues"
raised by Bankers do not meet this standard.

With respect to FICO's ability to meet its interest payment
obligation, the FDIC's concern was with the construction of
the statutory funding scheme overall. The FDIC at no point
in the record said that FICO could not make its fourth
quarter 1996 interest payment unless it retained the funds
collected on September 30, 1996. Instead, the FDIC rea-
soned that Bankers's interpretation of the statute could yield
inconsistent funding and disrupt FICO's ability to meet its
bond interest obligation, that another reading would generate
a more stable cash flow for FICO, and that the stable cash
flow was consistent with congressional intent. Thus, the

FDIC's discussion of FICO's ability to meet its bond interest
obligation represents statutory construction, not fact finding,
and the district court appropriately treated it as such.

The nature of the FDIC's role in the FICO assessment
process is also a legal, not a factual, question. The adequacy
of the Savings Fund reserves is not a material fact because it
is not relevant. But even if we considered these allegedly
factual disputes to be issues of fact, and a jury found that the
FDIC was an active participant, that finding would only
influence whether Bankers clears the Article III standing
hurdle, a question which we have already decided in Bank-
ers's favor as a matter of law; and for a jury to find that the
Savings Fund reserves are adequate to cover the refund
would resolve nothing. Neither finding would inform the
question of whether the FDIC properly interpreted its statu-
tory obligation with respect to the FICO assessment. Put
simply, even if Bankers were correct in characterizing these
so-called disputes as issues of fact, they do not involve
material facts because they have no bearing on the outcome
of the case. This case turns on whether the FDIC properly
interpreted the statutory scheme governing Savings Fund
and FICO assessments, not on determinations of fact. The
district court did not invade the jury's province.

VI. Statutory Interpretation

Accordingly, we turn to the bottom line of the present case:
whether the FDIC properly construed its authority and obli-
gations under 12 U.S.C. ss 1441 and 1817. Prior to the
enactment of the 1996 Act and through January 1, 1997, 12
U.S.C. s 1441(f)(2) provided that the FICO assessment "shall
not exceed the amount authorized to be assessed against
Savings Association Insurance Fund members pursuant to [12
U.S.C. s 1817]...." 12 U.S.C. s 1441(f)(2) (1994); see also
Pub. L. 104-208, s 2703(a), (c), 110 Stat. 3009, 3009-485 to
3009-486 (1996) (making the amendments to s 1441(f)(2) ef-
fective only with respect to semiannual periods beginning
after December 31, 1996). As of September 30, 1996, howev-
er, 12 U.S.C. s 1817(b)(2)(A)(i) required the FDIC Board to

 set semiannual assessments for insured depository insti-
tutions when necessary and only to the extent necessary
... to maintain the reserve ratio of each deposit insur-
ance fund at the designated reserve ratio; or ... if the
reserve ratio is less than the designated reserve ratio, to
increase the reserve ratio to the designated reserve
ratio....

12 U.S.C.A. s 1817(b)(2)(A)(i) (West Supp. 1999). The stat-
ute instructed the FDIC Board in carrying out that task to
consider the Savings Fund's expected operating expenses,
case resolution expenditures and income, the effect of assess-
ments on members' earnings and capital, and "any other
factors that the Board of Directors may deem appropriate."
Id. s 1817(b)(2)(A)(ii). The statute also precluded the FDIC
Board from setting the Savings Fund assessments "in excess
of the amount needed ... to maintain the reserve ratio of the
fund at the designated reserve ratio; or ... if the reserve
ratio is less than the designated reserve ratio, to increase the
reserve ratio to the designated reserve ratio." Id.
s 1817(b)(2)(A)(iii). Notably, the limitation on assessment
codified in 12 U.S.C. s 1817(b)(2)(A)(iii) was part of the 1996
Act, and thus became effective September 30, 1996. Addi-
tionally, even though the changes to 12 U.S.C. s 1441(f)(2)
severing the link between the FICO and Savings Fund as-
sessments were not effective until January 1, 1997, the por-
tion of 12 U.S.C. s 1817(b)(2) which addressed the FICO
assessment was repealed effective September 30, 1996: "Not-
withstanding any other provision of this paragraph, amounts
assessed by the Financing Corporation under section 1441 of
this title against Savings Association Insurance Fund mem-
bers shall be subtracted from the amounts authorized to be
assessed by the Corporation under this paragraph." 12
U.S.C. s 1817(b)(2)(D) (1994); see also Pub. L. No. 104-208,
s 2703(b), 110 Stat. 3009, 3009-485 (1996) (repealing
s 1817(b)(2)(D)).3

__________
3 In its final rule, the FDIC took the view that section 2703(c) of
the 1996 Act contained a misprint, and that the Act actually
repealed 12 U.S.C. s 1817(b)(2)(D) effective January 1, 1997. See

 Bankers asserts that the plain meaning of these provisions
as they read for the fourth quarter of 1996 unambiguously
excused Savings Fund members from paying fourth quarter
1996 assessments in excess of the amount necessary for the
Savings Fund to achieve or maintain the designated 1.25%
reserve-to-deposits capitalization ratio. Congress, through
the 1996 Act, ordered the FDIC to set and collect a special
assessment sufficient to raise the Savings Fund reserves to
the designated reserve ratio as of October 1, 1996, and limited
the Savings Fund assessment to the amount needed to main-
tain the Savings Fund reserves at that level. But Congress
preserved the statutory link between the FICO and Savings
Fund assessments until January 1, 1997. Therefore, Bankers
argues, Congress clearly intended to limit the fourth quarter
FICO assessment. As the fourth quarter FICO assessment
had already been collected when the Act came into effect,
Bankers argues a refund is required, as with the fourth
quarter Savings Fund assessment. Bankers suggests that
the FDIC's approach reduces 12 U.S.C. s 1441(f)(2) to an
instruction for the FDIC to allocate to FICO whatever
amounts FICO requested, while 12 U.S.C. s 1441(f)(2) clearly
limited the FICO assessment to the amount necessary to
achieve or maintain the Savings Fund at the designated
reserve ratio.

The FDIC, in contrast, maintains that the only reasonable
interpretation of the statutory scheme as a whole, both before
the 1996 Act and through the fourth quarter of 1996, was for
the Savings Fund assessment to include the amounts neces-
sary for both the Savings Fund and FICO. Before the Act
required a special assessment raising the Savings Fund re-
serves to the designated ratio, 12 U.S.C. s 1817(b)(3)(B)
ordered the FDIC to bring the Savings Fund to that level
within a fifteen year time frame. As the FDIC sees it, if
Bankers's interpretation of the pre-1996 statutory scheme is
correct, then the FDIC would have had to satisfy the require-
ments of FICO and the Savings Fund both out of the

__________
61 Fed. Reg. at 67,688 n.2. We do not need to resolve whether the
FDIC is correct on this point to reach our conclusion.

assessment necessary to fund the Savings Fund alone, and
the Savings Fund could not have achieved the designated
reserve ratio within the required fifteen year period. More-
over, as the Savings Fund approached and achieved the
designated level, FICO would have received less and less,
then nothing at all unless the Savings Fund fell below that
ratio. Such an outcome, it argues, would contradict Con-
gress's clear intent to provide FICO with the funding neces-
sary to satisfy its bond interest payment obligations. Under
its own interpretation, the statutory scheme merely precluded
the FDIC from assessing for the Savings Fund's needs until
it had assessed an amount adequate to fund FICO, and the
FDIC could maintain a stable cash flow for FICO even after
the Savings Fund attained the designated reserve ratio.
Moreover, the statute does not provide for a refund of the
FICO assessment. If Congress intended a refund, the FDIC
asserts, it would have provided for one.

The overall statutory scheme involves a statute over which
the FDIC does not possess administrative authority, 12
U.S.C. s 1441. Ordinarily, an agency's interpretation of a
statute it does not administer is not entitled to deference.
See, e.g., Professional Reactor Operator Soc'y v. United
States Nuclear Regulatory Comm'n, 939 F.2d 1047, 1051
(D.C. Cir. 1991). Nevertheless, because the FDIC's actions
derive principally from its interpretation of 12 U.S.C.
s 1817(b)(2), which it does administer, the two-step Chevron
inquiry is appropriate here. See Chevron, 467 U.S. at 842-43.
Under the Chevron standard, if Congress has directly spoken
to the issue, and the intent of Congress is clear, then there is
nothing for the agency to interpret, and the court must give
effect to the unambiguous expression of Congress. See id.
If, however, the court decides that the statute is ambiguous,
then the court determines only whether the agency's inter-
pretation is a reasonable one. See id.

Turning to the first step of the analysis, we cannot agree
with Bankers that the plain meaning of 12 U.S.C. s 1441(f)(2)
and 12 U.S.C. s 1817(b)(2) required the FDIC to refund the
FICO assessment. Neither can we concur with the FDIC's
claim that these provisions explicitly precluded a refund.

Indeed, both parties offer reasonable interpretations of the
proper functioning of the statutory scheme. In our view, the
intersection of 12 U.S.C. s 1817(b)(2)(A) and 12 U.S.C.
s 1441(f)(2) was somewhat ambiguous even before the Act,
and the staggered effective dates imposed by the Act sub-
stantially compounded that ambiguity.

We note however that 12 U.S.C. s 1817(b)(2)(A) gives the
FDIC the authority to "set" the Savings Fund assessment
amount, then articulates several factors including the "any
other factors" element for the FDIC to consider in doing so.
In its notice of final rulemaking and before this court, the
FDIC asserted that the pre-1996 Act statutory scheme in
effect when the assessment at issue was collected, as well as
the "any other factors" language of 12 U.S.C.
s 1817(b)(2)(A)(ii) which survived the Act, gave it some dis-
cretion to deny a FICO assessment refund on the ground that
such a refund would imperil FICO funding. See 61 Fed. Reg.
at 67,692; Appellee's Br. at 26-27, 30, 32. Although each
party argued that the case should be resolved in its favor at
Chevron step one, our conclusion that the statutory scheme is
facially ambiguous and our acceptance of the FDIC's claim
that 12 U.S.C. s 1817(b)(2)(A)(ii) allows it some discretion
over these matters permit us to move to the second phase of
the Chevron analysis.

We recognize that the FDIC's interpretation of the provi-
sions in question has been inconsistent. Indeed, in its final
rule addressing the refund issue, the FDIC blamed the FICO
allocation for the Savings Fund's failure to receive the full
amount of the revenues that the Savings Fund assessments
generated prior to the Act. See 61 Fed. Reg. 67,687 & n.1
(1996). The FDIC noted that, "[t]hrough the end of 1996, the
FICO draw serves to reduce the amounts that the FDIC
assesses against [Savings Fund]-member savings associa-
tions." Id. at 67,688 (citing 12 U.S.C. s 1441(f)(2)). Only
after 1996, the FDIC claimed, would FICO assessments be
"independent of and in addition to those of the FDIC." Id. at
67,688 & n.2. These statements suggest that the FDIC's
December 1996 interpretation of the pre-Act statutory
scheme was in line with Bankers's interpretation here.

Moreover, in challenging Bankers's standing to raise the
refund claim, the FDIC maintained before this court that it
had no discretion with respect to the FICO assessment, but
was merely a passive collection agent and conduit for the
assessed funds.

However, despite these inconsistencies, the FDIC in its
rulemaking process clearly considered the alternative inter-
pretations of the statute, and settled on a construction that is
at least permissible. For the most part, the FDIC has
continued to support this construction throughout the litiga-
tion, even if at times it has advanced additional, somewhat
contradictory positions as well. Thus, under the deferential
Chevron standard, we conclude that the FDIC's interpreta-
tion of 12 U.S.C. s 1817 was a reasonable one which we must
respect. We conclude as well that the FDIC, in declining to
refund the fourth quarter 1996 FICO assessment, did not act
arbitrarily, capriciously, or otherwise contrary to the law.

Both in the district court and before us, the FDIC has
advanced the additional argument that the amended statutory
language effective October 1, 1996, bars the FDIC only from
"set[ting]" assessments and from "assess[ing]" amounts in
excess of statutory limitations. 12 U.S.C. ss 1441(f)(2)(A)(i)-
(ii), 1817(b)(2)(A)(i), (iii). Because the assessment in this case
was "set" no later than May 30, 1996, by memorandum from
FICO to the FDIC and "assessed" on or about August 31,
1996, when the FDIC sent invoices to the saving institutions,
both events, potentially barrable by the amended statute,
occurred well before the effective date of the statutory
change. As the FDIC points out, Bankers has not even
argued that the fourth quarter 1996 FICO assessment was
unlawful under the statutory scheme as it existed prior to the
October 1, 1996, effective date of the amendment. Because
nothing in the new statute requires the FDIC to reconsider
the previously set lawful assessment, the FDIC argues that
the language upon which Bankers relies is not applicable to
the assessment at issue. We find this argument to be a
persuasive one.

 The principal drawback with this additional argument of
the FDIC is that the FDIC did not rely upon it or even
discuss it during the rulemaking process as the basis for its
decision not to refund the fourth quarter FICO assessment.
Thus, we cannot apply to this interpretation of the statutory
words "set" and "assess" the same Chevron deference we
afforded to the FDIC's "any other factors" analysis discussed
above. This does not, however, mean that we may not
consider the argument, or even rely on the interpretation. It
is true, of course, that a court can only uphold the decision of
an administrative agency on those grounds "upon which the
record discloses that its action was based." SEC v. Chenery
Corp., 318 U.S. 80, 87 (1943). Courts are not commissioned
to remake administrative determinations on different bases
than those considered and relied upon by the administrative
agencies charged with the making of those decisions.

An obvious corollary to this principle is that post hoc
rationalizations cannot support an affirmance of an agency
decision based on an otherwise invalid rationale. See, e.g.,
Citizens to Preserve Overton Park v. Volpe, Inc., 401 U.S.
402, 419-20 (1971). This principle applies as well to our
review of statutory interpretations under the second prong of
Chevron. As we stated in City of Kansas City v. Department
of Hous. & Urban Dev., 923 F.2d 188 (D.C. Cir. 1991), "[i]n
whatever context we defer to agencies, we do so with the
understanding that the object of our deference is the result of
agency decisionmaking, and not some post hoc rationale de-
veloped as part of a litigation strategy." Id. at 192.

However, the FDIC does not ask us to do anything barred
by Chenery or Kansas City. The corporation does not seek
before us to substitute a post hoc, and therefore unacceptable,
rationale for an otherwise invalid rationale rejected by the
court on review. Rather, the FDIC, in defending the reason-
ableness of its interpretation of one part of the relevant
statute subject to the second prong of the Chevron analysis,
offers a persuasive interpretation of other words of that same
statute consistent with the interpretation it seeks to have us
uphold under Chevron. The FDIC does not claim, and we do
not hold, that its interpretation of "set" and "assess" indepen-

dently carries the day in our review of its decision. Were we
to so hold, we might well be countenancing the sort of post
hoc-ery we have rejected in prior cases. But again, that is
not what we do in the present analysis. Rather, the FDIC
argues, and we hold, that the apparent legal meanings of the
statutory terms "set" and "assess" are consistent with the
FDIC's interpretation of the "any other factor" rationale in
fact relied upon by the FDIC and reviewed by us under the
Chevron standard. There is no difficulty in our reviewing the
statutory language de novo. That is, after all, what courts do.

It is fixed law of Chevron jurisprudence, applicable to the
"any other factors" interpretation, that we may employ the
traditional tools of statutory interpretation in determining
both whether the meaning of the language is clear at Chevron
step one and whether the agency's interpretation is a reason-
able one at Chevron step two. See, e.g., Bell Atlantic Tel.
Cos. v. FCC, 131 F.3d 1044, 1049 (D.C. Cir. 1997); American
Fed'n of Gov't Employees v. FLRA, 798 F.2d 1525, 1528 (D.C.
Cir. 1986). Consistency of interpretation of one portion of a
statute with the apparent meaning of another portion is a
traditional tool of statutory interpretation. See, e.g., Lexecon
Inc. v. Milberg Weiss Bershad Hynes & Lerach, 118 S. Ct.
956, 962 (1998); Atwell v. Merit Sys. Protection Bd., 670 F.2d
272, 286 (D.C. Cir. 1981). Therefore, the argument is proper-
ly before us; it is also convincing. The FDIC's interpretation
of the "any other factors" language of 12 U.S.C.
s 1817(b)(2)(A)(ii)(IV) yields a result consistent with the ap-
parent congressional goal of 12 U.S.C. ss 1441(f)(2)(A)(i)-(ii)
and 1817(b)(2)(A)(i) and (iii). This is evidence that the
FDIC's interpretation of the statutory scheme is reasonable.
The opposing interpretation advanced by appellants is not so
consistent with the apparent congressional intent of the other
section. Therefore, the FDIC's interpretation is not only
reasonable, but the more reasonable of those before us, even
if we subjected it to a more stringent standard than Chevron
analysis. It does no violence to Chenery or Kansas City
principles for an agency to advance a legal argument in
support of its administrative position which bolsters rather

than duplicates the consistent position upon which its decision
was made below.

Conclusion

In summary, we hold that Bankers satisfies the require-
ments for Article III standing, and that the remedy Bankers
seeks represents relief other than money damages within the
context of 5 U.S.C. s 702. As a result, we are able to
consider the merits of Bankers's claim. Upon consideration
of those merits, however, we hold that the district court did
not improperly invade the jury's province and resolve genuine
issues of material fact; and we hold that the FDIC's interpre-
tation of the relevant statutory scheme is a reasonable one
entitled to Chevron deference and is not arbitrary, capricious,
or otherwise contrary to the law. For these reasons, we
affirm the district court's grant of summary judgment in
favor of the FDIC.