United States District Court, D. Columbia
FBME BANK LTD., FBME LTD., Plaintiffs: Derek Lawrence
Shaffer, QUINN EMANUEL URQUHART & SULLIVAN, LLP, Washington,
JACOB J. LEW, in his official capacity as Secretary of the
Treasury, DEPARTMENT OF TREASURY, JENNIFER SHASKY CALVERY, in
his official capacity as Director of the Financial Crimes
Enforcement Network, FINANCIAL CRIMES ENFORCEMENT NETWORK,
Defendants: Lynn Yuhee Lee, LEAD ATTORNEY, Amy E. Powell,
U.S. DEPARTMENT OF JUSTICE, Washington, DC.
OPINION AND ORDER
R. COOPER, United States District Judge.
Court recently issued a preliminary injunction against a rule
promulgated by the U.S. Department of Treasury's
Financial Crimes Enforcement Network (" FinCEN" ).
Rather than appeal the injunction, move for reconsideration,
or continue to defend its rulemaking, FinCEN seeks a do-over:
an opportunity to correct any mistakes it might have made the
first time around and to promulgate--following proper
procedures--the same rule, a new rule altogether, or perhaps
even no rule at all. A voluntary remand, FinCEN urges, would
respect the agency's desire to correct its own errors,
conserve judicial resources, and would not unduly prejudice
parties aggrieved by the rule. The Court agrees and,
accordingly, will grant FinCEN's motion for voluntary
remand and stay the proceedings while FinCEN complies with
the Court's remand order.
August 27, 2015, this Court preliminarily enjoined a Final
Rule--promulgated by FinCEN--that would have prohibited
domestic financial institutions from maintaining
correspondent bank accounts with FBME Bank Ltd. ("
FBME" ), a Tanzanian-chartered commercial bank that
operates mainly in Cyprus. The Final Rule, which was designed
to prevent FBME from continuing to do business in the United
States or in U.S. dollars, was issued following a finding by
FinCEN that FBME was of " primary money laundering
concern" and thus a threat to national security and the
U.S. financial system. 31 U.S.C. § 5318A; 79 Fed.Reg.
42639 (July 22, 2014). In issuing its preliminary injunction,
the Court indicated that it was " not inclined to second
guess FinCEN's exercise of its broad discretion in
finding that FBME poses a primary money laundering
concern," FBME Bank Ltd. v. Lew, No.
1:15-cv-01270, 125 F.Supp.3d 109, 2015 WL 5081209, at *2
(D.D.C. Aug. 27, 2015), but nevertheless found that FBME was
likely to succeed on the merits of two of its claims against
FinCEN: (1) that FinCEN provided insufficient notice of
unclassified, non-protected information on which it relied
during the rulemaking proceeding, in violation of the
notice-and-comment requirement of the Administrative
Procedure Act, and (2) that FinCEN failed adequately to
consider at least one potentially significant, viable, and
obvious alternative to the sanction it imposed, [WL] at *5.
light of the Court's ruling, FinCEN requested a "
voluntary remand so that it may engage in further rulemaking
relating to FBME Bank to address certain procedural issues
raised by the court in its order." Defs.' Status
Report, ECF No. 33, at 1-2. FBME opposed FinCEN's request
and asked for briefing on the issue. Pls.' Proposed
Schedule Mots. Voluntary Remand & Summ. J., ECF No. 37. The
Court agreed that briefing was warranted and ordered FinCEN
to submit a motion for voluntary remand, which FinCEN filed
on September 28, 2015. Defs.' Mot. Voluntary Remand &
Stay, ECF No. 38 (" Mot. Remand" ).
motion, FinCEN proposes that the Court stay litigation
pending a redo by the agency: On remand, " plaintiffs
would have the opportunity to respond to unclassified,
nonprivileged information on which FinCEN relied in its
earlier decision, and FinCEN would consider plaintiffs'
responses, as well as any additional information submitted by
plaintiffs or others, during the new comment period."
Id. at 2. FBME urges the Court instead to deny
FinCEN's motion, order expedited summary-judgment
briefing, and proceed to
render final judgment " without ado." Pls.'
" prefer to allow agencies to cure their own mistakes
rather than wast[e] the courts' and the parties'
resources reviewing a record that both sides acknowledge to
be incorrect or incomplete." Ethyl Corp. v.
Browner,989 F.2d 522, 524, 300 U.S.App.D.C. 330 (D.C.
Cir. 1993). As a result, " courts have long recognized
the propriety of voluntarily remanding a challenged agency
action without judicial consideration of the merits upon an
admission of agency error." Carpenters Indus.
Council v. Salazar,734 F.Supp.2d 126, 132 (D.D.C.
2010). Voluntary remand is typically appropriate " (i)
when new evidence becomes available after an agency's
original decision was rendered," id. (citing
Ethyl Corp., 989 F.2d at 523),
" or (ii) where 'intervening events outside of the
agency's control' may affect the validity of an
agency's actions," id. (quoting SKF USA
Inc. v. United States,254 F.3d 1022, 1028 (Fed. Cir.
2001)). " Even in the absence of new evidence or an
intervening event, however, courts retain the discretion to
remand an agency decision when an agency has raised
'substantial and legitimate' concerns in support of
remand." Id. (citing Sierra Club v.
Antwerp,560 F.Supp.2d 21, ...