United States District Court, District of Columbia
ADVANCE AMERICA, CASH ADVANCE CENTERS, INC., et al. Plaintiffs,
FEDERAL DEPOSIT INSURANCE CORPORATION, et al. Defendants.
Kessler United States District Judge
motions are before this Court. The first motion is Federal
Defendants' Motion to Dismiss Check Into Cash, Inc.
("Check Into Cash"), NCP Finance Limited
Partnership and NCP Finance Ohio, LLC ("NCP
Finance"), PH Financial Services, LLC ("PH
Financial"), Northstate Check Exchange, and Richard
Naumann ("collectively New Plaintiffs") for lack of
subject matter jurisdiction or for failure to state a claim
upon which relief can be granted or, in the alternative, for
summary judgment. [Dkt. No. 152]. The second motion is
Federal Defendants' Motion for Summary Judgment against
Advance America. [Dkt. No. 101-1].
consideration of the Motions, all dispositive briefing, and
the entire record herein, and for the reasons stated below,
the Federal Defendants' Motions are denied as to all
Plaintiffs except PH Financial.
5, 2014, CFSA and Advance America (collectively
"Original Plaintiffs") commenced this lawsuit.
Complaint [Dkt. No. 1]. The Original Plaintiffs alleged that
the Federal Defendants-the Federal Deposit Insurance
Corporation ("the FDIC"), the Board of Governors of
the Federal Reserve System, and both the Office of the
Comptroller of the Currency and Thomas J. Curry, in his
official capacity as the Comptroller of the Currency
("the OCC")-participated in "Operation Choke
Point, " a campaign allegedly initiated by the United
States Department of Justice to force banks to terminate
their business relationships with payday lenders. See
generally First Amended Complaint ("FAC")
[Dkt. No. 12].
Original Plaintiffs brought two distinct categories of claims
against the Federal Defendants. First, they alleged that
certain actions taken by the Federal Defendants as part of
Operation Chokepoint violated the Administrative Procedure
Act ("APA"), 5 U.S.C. § 551 etseq..
FAC ¶¶ 80-108, 116-44, 152-77. Second, they alleged
that Operation Chokepoint violated the due process rights of
CFSA's members, one of which is Advance America. FAC
¶¶ 109-115, 145-51, 178-84.
September 25, 2015, in response to Motions to Dismiss brought
by the Federal Defendants, the Court dismissed all of the
Original Plaintiffs' APA claims. CFSA v. FDIC,
132 F.Supp.3d 98, 105-107 (D.D.C. 2015) ("CFSAJ").
However, the Court concluded that the Original Plaintiffs had
stated a claim for denial of due process and had standing to
pursue that claim. Subsequently, the Federal Defendants
brought a new Motion to Dismiss, arguing that CFSA lacked
standing to pursue the remaining due process claims on behalf
of its members. [Dkt. No. 73]. On December 19, 2016, the
Court granted the Federal Defendants' Motion, thereby
dismissing CFSA as a party to this lawsuit. CFSA v.
FDIC, No. 14 Civ. 953, 2016 WL 7376847 (D.D.C. Dec. 19,
2016) ("CFSA II"). That left Advance
America as the only party to this lawsuit.
to the entry of the decision in CFSA II, Advance
America filed a Motion for Preliminary Injunction. [Dkt. No.
87]. While the Motion for Preliminary Injunction was pending,
the New Plaintiffs were added to the Complaint. See Order
Granting Plaintiffs' Motion for Leave to File Third
Amended Complaint [Dkt. No. 120]; also Third Amended
Complaint ("TAC") [Dkt. No. 124]. These New
Plaintiffs filed their own Motion for a Preliminary
Injunction, advancing virtually the same arguments as Advance
America. [Dkt. No. 107]. The Court denied both Motions for
Preliminary Injunction, based in large part on the
Court's conclusion that the Plaintiffs are unlikely to
succeed on the merits because they are likely not to be able
to show they have been or will be deprived of their right to
hold a bank account or that they have been or will be broadly
precluded from the payday lending industry. See Un-Sealed
Memorandum Opinion at 8-13 [Dkt. No. 134] ("CFSA
already noted, two new Motions are now before the Court.
First, is the Government's Motion to Dismiss, arguing
that the New Plaintiffs should be dismissed for lack of
subject matter jurisdiction and for failure to state a claim
upon which relief can be granted or, in the alternative, for
summary judgment. Corrected Motion to Dismiss [Dkt. No.
152]. Second, is the Government's Motion for
Summary Judgment against Advanced America, arguing that the
Court should award summary judgment to the Federal Defendants
on Advance America's remaining due process claims. Motion
for Summary Judgment on Counts IV, VIII, and XII of the
Second Amended Complaint ("Motion for Summary
Judgment") [Dkt. No. 101-1].
Plaintiffs filed an Opposition to the Corrected Motion to
Dismiss ("Opposition to the Corrected Motion"),
[Dkt. No. 153], and the Federal Defendants filed a Reply to
the Corrected Motion to Dismiss ("Reply to the Corrected
Motion to Dismiss"), [Dkt. No. 156]. Similarly, Advance
America filed an Opposition to the Motion for Summary
Judgment, [Dkt. No. 112], and the Federal Defendants filed a
Reply to the Motion for Summary Judgment, [Dkt. No. 116].
Accordingly, both Motions are now ripe.
Standard of Review
courts of limited jurisdiction, federal courts possess only
those powers specifically granted to them by Congress or
directly by the United States Constitution. Kokkonen v.
Guardian Life Ins. Co. of Am.. 511 U.S. 375, 377 (1994).
The plaintiff bears the burden of establishing by a
preponderance of the evidence that the Court has subject
matter jurisdiction to hear the case. See Shuler v.
United States. 531 F.3d 930, 932 (D.C. Cir. 2008). In
deciding whether to grant a motion to dismiss for lack of
jurisdiction under Rule 12(b)(1), the court must "accept
all of the factual allegations in [the] complaint as
true." Jerome Stevens Pharmaceuticals, Inc. v. Food
& Drug Admin., 402 F.3d 1249, 1253-54 (D.C. Cir.
2005) (quoting United States v. Gaubert 499 U.S.
315, 327 (1991)). The Court may also consider matters outside
the pleadings, and may rest its decision on its own
resolution of disputed facts. See Herbert v. Nat'l
Acad, of Sci, 974 F.2d 192, 197 (D.C. Cir. 1992).
irreducible constitutional minimum of standing contains three
elements. First, the plaintiff must have suffered an injury
in fact... which is (a) concrete and particularized, and (b)
actual or imminent, not conjectural or hypothetical. Second,
there must be a causal connection between the injury and the
conduct complained of... Third, it must be likely, as opposed
to merely speculative, that the injury will be redressed by a
favorable decision." Luian v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992) (internal
quotation marks, citations, and footnote omitted).
New Plaintiffs: Lack of Standing &
Federal Defendants argue that the New Plaintiffs lack
standing because "[their] conclusory allegations
regarding the potential for future loss of access to the
banking system, and a future preclusion from the payday
lending industry, do not set forth a 'real and
immediate' threat of injury." Corrected Motion to
Dismiss at 22. These are quite similar to the arguments that
the Federal Defendants raised in their Motions to Dismiss the
claims made by ...