19-4271 Lacewell v. Office of the Comptroller of the Currency United States Court of Appeals for the Second Circuit _____________________________________ August Term 2020 (Argued: March 9, 2021 Decided: June 3, 2021) No. 19-4271 _____________________________________ LINDA A. LACEWELL, IN HER OFFICIAL CAPACITY AS SUPERINTENDENT OF THE NEW YORK STATE DEPARTMENT OF FINANCIAL SERVICES, Plaintiff-Appellee, — v. — OFFICE OF THE COMPTROLLER OF THE CURRENCY, MICHAEL J. HSU, IN HIS OFFICIAL CAPACITY AS ACTING U.S. COMPTROLLER OF THE CURRENCY, Defendants-Appellants. ∗ _____________________________________ Before: LEVAL, LYNCH, and BIANCO, Circuit Judges. Plaintiff-Appellee the Superintendent of the New York State Department of Financial Services (“DFS”) brought this action against Defendants-Appellants the Office of the Comptroller of the Currency and the U.S. Comptroller of the Currency (together, the “OCC”) to challenge the OCC’s decision to begin ∗ Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting U.S. Comptroller of the Currency Michael J. Hsu is automatically substituted for former U.S. Comptroller of the Currency Joseph M. Otting as Defendant-Appellant. accepting applications for special-purpose national bank (“SPNB”) charters from financial technology companies (“fintechs”) engaged in the “business of banking,” including those that do not accept deposits. DFS asserts that this decision, and the OCC regulation underlying it, exceed the OCC’s statutory authority under the National Bank Act (“NBA” or the “Act”), 12 U.S.C. § 21 et seq., because, in DFS’s view, the “business of banking” as used in the NBA requires that national banks take deposits. The OCC moved to dismiss DFS’s complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief could be granted, arguing, inter alia, that: (1) DFS lacks Article III standing; (2) DFS’s claims are constitutionally and prudentially unripe; and (3) the term “business of banking” in the NBA is ambiguous and the OCC’s interpretation of that term to include institutions that do not accept deposits is reasonable, such that it is entitled to Chevron deference. The United States District Court for the Southern District of New York (Marrero, J.) denied the OCC’s motion and held, in relevant part, that DFS has Article III standing, that its claims against the OCC are ripe both under the U.S. Constitution and as a matter of prudence, and that the OCC exceeded its authority under the NBA because the Act unambiguously requires national banks to engage in deposit-taking. After the parties agreed that no further factual development was required in light of these holdings, the district court entered judgment in favor of DFS, setting aside the OCC’s decision to accept SPNB charter applications from non-depository fintechs nationwide. We conclude that DFS lacks Article III standing because it failed to allege that the OCC’s decision caused it to suffer an actual or imminent injury in fact, and we find that DFS’s claims are constitutionally unripe for substantially the same reason. Accordingly, we REVERSE the amended judgment and REMAND to the district court with instructions to enter a judgment of dismissal without prejudice. CHRISTOPHER CONNOLLY, Assistant United States Attorney, (Benjamin H. …
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