United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 19, 2014 Decided July 24, 2015
No. 13-5247
STATE NATIONAL BANK OF BIG SPRING, ET AL.,
APPELLANTS
v.
JACOB J. LEW, IN HIS OFFICIAL CAPACITY AS UNITED STATES
SECRETARY OF THE TREASURY, ET AL.,
APPELLEES
Consolidated with 13-5248
Appeals from the United States District Court
for the District of Columbia
(No. 1:12-cv-01032)
Gregory F. Jacob argued the cause for Private
Appellants. With him on the briefs were Sam Kazman, Hans
Bader, C. Boyden Gray, Adam J. White, and Adam R.F.
Gustafson.
Patrick R. Wyrick, Attorney, Office of the Attorney
General for the State of Oklahoma, argued the cause for State
Appellants. With him on the briefs were E. Scott Pruitt,
Attorney General, Alan Wilson, Attorney General, Office of
the Attorney General for the State of South Carolina, James
2
Emory Smith, Jr., Attorney, Samuel S. Olens, Attorney
General, Office of the Attorney General for the State of
Georgia, John E. Hennelly, Attorney, Bill Schuette, Attorney
General, Office of the Attorney General of the State of
Michigan, Neil D. Gordon, Attorney, Jon Bruning, Attorney
General, Office of the Attorney General of the State of
Nebraska, Katherine J. Spohn, Attorney, Luther Strange,
Attorney General, Office of the Attorney General for the State
of Alabama, Andrew L. Brasher, Deputy Solicitor, Derek
Schmidt, Attorney General, Office of the Attorney General for
the State of Kansas, Jeffrey A. Chanay, Deputy Attorney
General, Timothy C. Fox, Attorney General, Office of the
Attorney General for the State of Montana, Lawrence
VanDyke, Attorney, Greg Abbott, Attorney General, Office of
the Attorney General for the State of Texas, John Reed Clay,
Jr., Attorney, Michael DeWine, Attorney General, Office of
the Attorney General for the State of Ohio, Jennifer L. Pratt,
Assistant Attorney General, Patrick Morrisey, Attorney
General, Office of the Attorney General for the State of West
Virginia, and Elbert Lin, Solicitor General. Matthew T.
Cochenour, Assistant Attorney General, Office of the
Attorney General for the State of Montana, and Aaron D.
Lindstrom, Attorney, Office of the Attorney General for the
State of Michigan, entered appearances.
Daniel Tenny, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Stuart F. Delery, Assistant Attorney General, Ronald C.
Machen, Jr., U.S. Attorney, Mark B. Stern, Attorney,
Meredith Fuchs, General Counsel, Consumer Financial
Protection Bureau, John R. Coleman, Senior Counsel,
Katherine H. Wheatley, Associate General Counsel, Board of
Governors of the Federal Reserve System, Joshua P.
Chadwick, Counsel, Colleen J. Boles, Assistant General
Counsel, Federal Deposit Insurance Corporation, Kathryn R.
3
Norcross, Senior Counsel, Jerome A. Madden, Counsel,
Gregory F. Taylor, Douglas B. Jordan, and Gabriel Hindin,
Attorneys, Office of the Comptroller of the Currency, Michael
A. Conley, Deputy General Counsel, Securities and Exchange
Commission, William K. Shirey, Assistant General Counsel,
Ajay B. Sutaria, Counsel, Office of General Counsel,
Commodity Futures Trading Commission, and John K. Ianno,
Senior Associate General Counsel, National Credit Union
Administration.
Before: ROGERS, KAVANAUGH, and PILLARD, Circuit
Judges.
Opinion for the Court filed by Circuit Judge
KAVANAUGH.
KAVANAUGH, Circuit Judge: In response to the financial
crisis in 2008 and 2009, Congress passed and President
Obama signed the Dodd-Frank Wall Street Reform and
Consumer Protection Act. See Pub. L. No. 111-203, 124 Stat.
1376 (2010). State National Bank is a bank in Big Spring,
Texas, between Midland and Abilene. In this case, the Bank
and a group of States challenge the constitutionality of
various provisions of the Dodd-Frank Act.
First, State National Bank challenges the constitutionality
of the new Consumer Financial Protection Bureau created by
the Dodd-Frank Act. The Bureau is an independent agency
that regulates consumer financial products and services. The
Bureau is headed by a single Director. According to the
Bank, independent agencies must be headed by multiple
members rather than by a single person. Cf. Humphrey’s
Executor v. United States, 295 U.S. 602, 624, 631-32 (1935).
For that reason, among others, the Bank claims that the
Bureau is unconstitutional. The Bank also argues that
4
Congress’s broad delegation of authority to the Bureau
violates the non-delegation doctrine. See J.W. Hampton, Jr.,
& Co. v. United States, 276 U.S. 394, 409 (1928).
Second, the Bank contests the constitutionality of
President Obama’s recess appointment of the Bureau’s head,
Director Richard Cordray. On July 18, 2011, President
Obama nominated Cordray as Director of the Bureau. As of
January 4, 2012, the Senate had not acted on the nomination,
so President Obama used his recess appointment power to
appoint Cordray during a three-day intra-session Senate
recess. On July 16, 2013, after Cordray had been serving
under his recess appointment for 18 months, the Senate
confirmed Cordray. The Bank alleges that Director Cordray’s
recess appointment (and the actions he took before he was
confirmed) was unlawful because the appointment occurred
during an intra-session recess of insufficient length. See
NLRB v. Noel Canning, 134 S. Ct. 2550, 2566-67, slip op. at
19-21 (2014); see also Mathew Enterprise, Inc. v. NLRB, 771
F.3d 812, 813-14 (D.C. Cir. 2014).
Third, the Bank challenges the constitutionality of the
new Financial Stability Oversight Council created by the
Dodd-Frank Act. The Council monitors the stability of the
U.S. financial system and responds to emerging threats to that
system. The Council’s voting members include, among
others, the Secretary of the Treasury, the Chairman of the
Federal Reserve, the Comptroller of the Currency, the
Director of the Consumer Financial Protection Bureau, the
Chairman of the Securities and Exchange Commission, and
the Chair of the Federal Deposit Insurance Corporation (or
FDIC). The Council possesses statutory authority to
designate certain “too big to fail” (as they are colloquially
known) financial companies for additional regulation in order
to minimize the risk that such a company’s financial distress
5
will threaten the stability of the American economy. The
Bank argues that the Council is unconstitutional under the
non-delegation doctrine and related separation of powers
principles because the Council has broad and unchecked
power to decide which companies should face additional
regulation.
Fourth, the State plaintiffs challenge the Dodd-Frank
Act’s grant of new liquidation authority to the U.S.
Government. The Act gives the Treasury, the Federal
Reserve, and the FDIC “the necessary authority to liquidate
failing financial companies that pose a significant risk to the
financial stability of the United States.” 12 U.S.C. § 5384(a).
That is called “orderly liquidation authority.” The
Government has broad power when exercising its orderly
liquidation authority to alter the priority of a financial
company’s creditors. The State plaintiffs and their pension
funds are investors in bonds issued by large financial
institutions. The States say that their current investments are
worth less because of how the Government might exercise its
orderly liquidation authority in the future if those financial
institutions were to run into significant financial difficulties
and be liquidated or reorganized. The State plaintiffs argue
that the orderly liquidation authority – because it grants the
Government broad power to alter the priority of creditors – is
unconstitutional under the Bankruptcy Clause’s guarantee of
uniform bankruptcy laws and under non-delegation and due
process principles.
Plaintiffs filed suit in the U.S. District Court for the
District of Columbia. The District Court concluded that the
plaintiffs did not have standing and that their claims were not
ripe. Plaintiffs appealed to this Court. Our review of the
6
standing and ripeness determinations is de novo, and we
consider plaintiffs’ four challenges in turn. 1
I
First, State National Bank challenges the constitutionality
of the new Consumer Financial Protection Bureau created by
the Dodd-Frank Act. The question at this juncture is whether
the Bank has standing to raise that claim and, if so, whether
the claim is ripe for review now rather than in any later
enforcement action against the Bank.
For standing, the question is whether State National Bank
has suffered an injury in fact caused by the Bureau and
redressable by the Court. See Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61 (1992). The Supreme Court has stated
that “there is ordinarily little question” that a regulated
individual or entity has standing to challenge an allegedly
illegal statute or rule under which it is regulated. Id. at 561-
62. So it is in this case.
State National Bank claims that the Bureau is
unconstitutional. The Bank is not a mere outsider asserting a
1
The 60 Plus Association, which is a nonprofit advocacy
group representing the interests of seniors, and the Competitive
Enterprise Institute, which is a nonprofit public policy organization,
also joined the Bank’s suit. On appeal, they do not advance
arguments for standing independent of the Bank’s arguments. The
State plaintiffs are the States of Alabama, Georgia, Kansas,
Michigan, Montana, Nebraska, Ohio, Oklahoma, South Carolina,
Texas, and West Virginia. The State plaintiffs challenge only the
Government’s orderly liquidation authority. The Bank, the 60 Plus
Association, and the Competitive Enterprise Institute joined the
State plaintiffs’ challenge to the Government’s orderly liquidation
authority, but they do not advance arguments on appeal for standing
with respect to that challenge.
7
constitutional objection to the Bureau. The Bank is regulated
by the Bureau. Under the Dodd-Frank Act, the Bureau “shall
regulate the offering and provision of consumer financial
products or services under the Federal consumer financial
laws.” 12 U.S.C. § 5491(a). The Act authorizes the Bureau
to implement those “Federal consumer financial laws through
rules, orders, guidance, interpretations, statements of policy,
examinations, and enforcement actions.” Id. § 5492(a)(10).
State National Bank offers and provides consumer financial
products and services. The Bureau has already exercised its
broad regulatory authority to impose new obligations on
banks, including State National Bank. For example, in 2012
the Bureau promulgated the Remittance Rule. See 12 C.F.R.
§§ 1005.30-1005.36. The Remittance Rule imposes
disclosure requirements on institutions that offer international
remittance transfers, which are electronic money transfers.
The Rule also offers a safe harbor, but banks such as State
National Bank must incur costs to ensure that they are
properly complying with the terms of that safe harbor. See 77
Fed. Reg. 50,244, 50,274-75 (Aug. 20, 2012). The Bank
indeed alleged that it must now monitor its remittances to stay
within the safe harbor, and the monitoring program causes it
to incur costs. See Purcell Decl. ¶¶ 18, 20, J.A. 105.
There is no doubt that the Bank is regulated by the
Bureau. Under Lujan, the Bank therefore has standing to
challenge the constitutionality of the Bureau.
The remaining question at this stage is when the Bank
may bring its claim. May it do so only as a defense in a future
enforcement action, or may it bring this pre-enforcement
challenge? That is a question of ripeness. The Supreme
Court’s landmark decision in Abbott Laboratories largely
resolved the ripeness issue for many challenges to agency
action. See Abbott Laboratories v. Gardner, 387 U.S. 136,
8
148-53 (1967). There, the Supreme Court ruled that affected
parties could challenge agency regulations in pre-enforcement
suits. The Supreme Court explained that regulated parties
generally need not violate a law in order to challenge the law.
See id. at 152-53.
The Bank is not challenging an agency rule that regulates
its conduct (the usual kind of agency case we see), but rather
is challenging the legality of the regulating agency itself.
Still, the same basic Abbott Laboratories reasoning applies.
As the Supreme Court stated in Free Enterprise Fund, it
would make little sense to force a regulated entity to violate a
law (and thereby trigger an enforcement action against it)
simply so that the regulated entity can challenge the
constitutionality of the regulating agency. See Free
Enterprise Fund v. Public Co. Accounting Oversight Board,
561 U.S. 477, 490 (2010). To use the Supreme Court’s
words, we “normally do not require plaintiffs to bet the farm”
by violating the law in order to challenge the constitutionality
of the regulating agency. Id. (internal quotation marks
omitted).
In short, the Bank has standing to challenge the
constitutionality of the Consumer Financial Protection
Bureau, and the case is ripe. The parties have not briefed the
merits of the constitutional challenge to the Bureau. We
therefore reverse and remand to the District Court for it to
consider the merits of that claim.
9
II
Second, State National Bank contests the legality of
President Obama’s recess appointment of the Bureau’s
Director, Richard Cordray. Because of that allegedly illegal
recess appointment, the Bank claims that the Bureau has
operated in an unconstitutional manner. For the same reasons
that the Bank has standing to challenge the constitutionality of
the Bureau, the Bank has standing to challenge Director
Cordray’s recess appointment. And for the same reasons that
the Bank’s challenge to the Bureau is ripe, the Bank’s
challenge to Cordray’s recess appointment is likewise ripe.
We therefore reverse and remand to the District Court for
consideration of the merits of this issue in light of the
Supreme Court’s decision in Noel Canning. See NLRB v.
Noel Canning, 134 S. Ct. 2550, 2557, 2566-67, slip op. at 2,
19-21 (2014). In considering the Bank’s claim, we leave it to
the District Court to consider the significance of Director
Cordray’s later Senate confirmation and his subsequent
ratification of the actions he had taken while serving under a
recess appointment.
III
Third, the Bank argues that the Financial Stability
Oversight Council created by the Dodd-Frank Act is
unconstitutional. The Bank does not have standing to assert
that claim.
The Dodd-Frank Act created a new Financial Stability
Oversight Council “to identify risks to the financial stability
of the United States that could arise from the material
financial distress or failure, or ongoing activities, of large,
interconnected bank holding companies or nonbank financial
companies.” 12 U.S.C. § 5322(a)(1)(A).
10
To meet that objective, the Council has the authority to
designate certain “too big to fail” financial institutions for
additional regulation, including supervision by the Federal
Reserve. See 12 U.S.C. §§ 5323(a)(1), 5365. So far, the
Council has designated American International Group, GE
Capital Corporation, MetLife, and Prudential Financial for
additional regulation and supervision.
State National Bank is a bank located in West Texas.
State National Bank offers consumer financial services,
including consumer deposit accounts and agricultural loans.
State National Bank does not allege that it is subject to
additional regulation as a “too big to fail” entity. Rather, it
alleges that it is a competitor of GE Capital, which has been
designated by the Council for additional regulation. GE
Capital similarly offers consumer deposit accounts and
agricultural loans in West Texas.
The Bank argues that the Council’s designation of GE
Capital for additional regulation has indirectly harmed State
National Bank. According to the Bank, “GE Capital receives
a reputational subsidy as a result of” its designation by the
Council for additional regulation, “which allows GE Capital
to raise money at lower costs than it otherwise could,
negatively impacting the Bank’s ability to compete for the
same finite funds.” State National Bank Br. 46.
As we have noted, if a party is the “object” of a
government action, “there is ordinarily little question” that the
party has standing to challenge the action. Lujan v. Defenders
of Wildlife, 504 U.S. 555, 561-62 (1992). A bank adversely
affected because it was designated “too big to fail” would
presumably have standing to challenge such a designation.
This is not such a case. To begin with, at the time of the
complaint, GE Capital had not yet been designated for
11
additional regulation. In any event, the Bank here is
complaining about the “too big to fail” designation of
someone else. When “a plaintiff’s asserted injury arises from
the government’s allegedly unlawful regulation (or lack of
regulation) of someone else, much more is needed.” Id. at
562.
To surmount that hurdle, the Bank relies on the doctrine
of competitor standing. Under that doctrine, a plaintiff in
some circumstances may challenge the Government’s
allegedly illegal under-regulation of the plaintiff’s competitor.
Competitors suffer an injury in fact “when agencies lift
regulatory restrictions on their competitors or otherwise allow
increased competition against them.” Sherley v. Sebelius, 610
F.3d 69, 72 (D.C. Cir. 2010) (internal quotation marks
omitted). But here, State National Bank’s competitor (GE
Capital) labors under a greater regulatory burden as a result
of the Dodd-Frank Act. The Bank cites no precedent
suggesting that a plaintiff has standing to challenge a
regulation that merely imposes enhanced regulatory burdens
on the plaintiff’s competitor. The Bank retorts that the extra
regulatory burden on GE Capital actually creates a
reputational benefit for GE Capital. The problem with that
novel theory, at least in this case, is that the link between
(i) the enhanced regulation of GE Capital, (ii) any alleged
reputational benefit to GE Capital, and (iii) any harm to State
National Bank is simply too attenuated and speculative to
show the causation necessary to support standing. Cf. Allen v.
Wright, 468 U.S. 737, 759 (1984); Florida Audubon Society v.
Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996).
We affirm the District Court’s judgment that the Bank
lacks standing to pursue this claim.
12
IV
Fourth, the State plaintiffs challenge the Dodd-Frank
Act’s “orderly liquidation authority.” This new orderly
liquidation authority gives the Government broad power to
liquidate failing financial institutions that pose a significant
risk to the stability of the U.S. financial system. See 12
U.S.C. §§ 5384, 5390. Pursuant to the Government’s orderly
liquidation authority, the FDIC is authorized to treat similarly
situated creditors of a company differently if doing so will
increase the value of the company’s assets or minimize losses.
See id. § 5390(b)(4).
The State plaintiffs argue that the orderly liquidation
authority is unconstitutional because it deprives the States of
the uniform treatment to which they say they are
constitutionally entitled under the Bankruptcy Clause of the
Constitution, and which they previously enjoyed under the
Bankruptcy Code. They also raise non-delegation and due
process arguments.
The State plaintiffs’ theory for standing and ripeness is as
follows: (i) the States and their pension funds have invested in
financial companies, (ii) the States are therefore potential
creditors in possible future liquidations or reorganizations of
those financial companies, (iii) in such a liquidation or
reorganization, the Government’s new orderly liquidation
authority could deprive the States of the uniform treatment
they claim they are entitled to, and (iv) as a result, their
current investments are now worth less than they otherwise
would be.
There are several independent problems with that theory.
First of all, the State plaintiffs will be affected by the orderly
liquidation authority only if a company in which they are
invested is liquidated or reorganized by the Government, and
13
only if the States are then treated differently from other
similarly situated creditors. It is premature for a court to
consider the legality of how the Government might wield the
orderly liquidation authority in a potential future proceeding.
Second, to the extent the State plaintiffs say that future
uncertainty over how such a proceeding would unfold affects
the current value of their investments, the State plaintiffs have
not sufficiently alleged or demonstrated that their current
investments are worth less now, or have been otherwise
adversely affected now, because of the Government’s new
orderly liquidation authority. Moreover, by the State
plaintiffs’ logic, virtually any investor could raise a pre-
bankruptcy constitutional challenge to any bankruptcy-related
statute, on a theory that the value of the investor’s
investments would be higher if the challenged provision were
deemed unconstitutional. But we are not aware of any case
that has allowed such a lawsuit, and the State plaintiffs cite no
such case. See Thomas W. Merrill & Margaret L. Merrill,
Dodd-Frank Orderly Liquidation Authority: Too Big for the
Constitution?, 163 U. Penn. L. Rev. 165, 200 (2014) (“If the
mere existence of a debt were enough to confer standing to
challenge a change in the legal treatment of creditors, then
any person would be able to challenge any change in the law
that might conceivably affect their interests as creditors
sometime in the future. This is clearly not the law.”); id. (It
“is not clear that this alleged injury, even if otherwise
sufficient to confer standing, would support standing to
challenge the” orderly liquidation authority’s
“constitutionality prior to the actual commencement of an”
orderly liquidation authority “receivership.”).
The State plaintiffs’ theory, in short, does not satisfy
standing or ripeness requirements. See Susan B. Anthony List
v. Driehaus, 134 S. Ct. 2334, 2341 n.5, slip op. at 7 n.5 (2014)
(“The doctrines of standing and ripeness originate from the
14
same Article III limitation” and in certain circumstances can
“boil down to the same question.”) (internal quotation marks
omitted).
The State plaintiffs separately argue that they have
standing because the Dodd-Frank Act took away a statutory
right to uniform treatment that they had previously enjoyed
under the Bankruptcy Code. In the usual “statutory right”
case, a plaintiff claims that an Executive Branch agency has
deprived the plaintiff of a right guaranteed by statute. See,
e.g., Zivotofsky v. Secretary of State, 444 F.3d 614, 617-19
(D.C. Cir. 2006) (standing to challenge Secretary of State’s
authority to designate birth place on passport in contravention
of a federal statute); see also FEC v. Akins, 524 U.S. 11, 21-
25 (1998) (standing to challenge agency’s denial of request
for information). There is ordinarily little problem finding
standing in such cases. The injury in fact in those cases is the
agency’s infringement of a present statutory right to the
detriment of the plaintiff. That is not what we have here.
This is not a case where a plaintiff claims that the Executive
Branch has deprived the plaintiff of a right afforded by
statute. Here, Congress enacted a new statute that superseded
an old statute. Plaintiffs challenge the new statute. But to
challenge the new statute, all that the plaintiffs can argue (and
do argue) is that the new statute is unconstitutional. But as
we have explained above, they do not have standing to press
that constitutional claim nor is such a claim ripe for review. 2
2
If the State plaintiffs are injured at some point in the future
by a liquidation or reorganization under the Government’s orderly
liquidation authority, the State plaintiffs can seek to raise their
constitutional arguments then, as the Government acknowledges.
See generally Webster v. Doe, 486 U.S. 592, 603 (1988).
15
***
To sum up: First, the Bank has standing to challenge the
constitutionality of the Consumer Financial Protection
Bureau, and that claim is ripe. We therefore reverse the
judgment of the District Court on that claim and remand for it
to consider in the first instance the Bank’s constitutional
challenge to the Bureau. Second, the Bank has standing to
challenge Director Cordray’s recess appointment, and that
claim is ripe. We therefore also reverse the judgment of the
District Court on that claim and remand for it to consider in
the first instance the Bank’s constitutional challenge to the
recess appointment. Third, the Bank lacks standing to
challenge the constitutionality of the Financial Stability
Oversight Council. We affirm the judgment of the District
Court on that claim. Fourth, the State plaintiffs lack standing
to challenge the Government’s orderly liquidation authority,
and that claim is not ripe. We affirm the judgment of the
District Court on that claim.
The judgment of the District Court is affirmed in part,
reversed in part, and remanded for further proceedings.
So ordered.