United States District Court, District of Columbia
G. Sullivan United States District Judge
quarter, insured banking institutions make payments, known as
"assessments, " into the Deposit Insurance Fund
("Fund"), which insures depositors' accounts up
to $250, 000. Pursuant to the Federal Deposit Insurance Act
("FDIA" or "Act"), see 12 U.S.C. §
1817, the Federal Deposit Insurance Corporation
("FDIC") created a "risk-based" system to
calculate each institution's assessment based on that
institution's self-reported, quarterly data. The FDIC
alleges that defendant Bank of America, N.A.
("BANA") improperly reported its quarterly data,
thereby underpaying for deposit insurance. According to the
FDIC, BANA owes $1.12 billion in deposit insurance
assessments, which it refuses to pay.
FDIC's amended complaint alleges that (1) BANA failed to
pay mandatory assessments in violation of the FDIA; and (2)
BANA was unjustly enriched when it received deposit insurance
without fully paying for it. BANA counterclaimed, challenging
the FDIC's regulations, which purportedly set out the
method by which regulated institutions must calculate and
report their quarterly data. BANA argues that the regulations
violate the Administrative Procedure Act, 5 U.S.C. § 500
et seq., and are contrary to the FDIA. Pending
before the Court is BANA's motion to dismiss the
FDIC's amended complaint in part or strike in part. See
Def.'s Mot., ECF No. 13. After careful consideration of
the motion, the response, the reply thereto, and the
applicable law, BANA's motion to dismiss or strike the
FDIC's amended complaint in part is
FDIC is a "government corporation and instrumentality of
the United States." Am. Compl., ECF No. 10 ¶ 16. It
examines and supervises almost 3, 800 commercial banks and
savings institutions for operational safety and soundness.
Id. It also administers the Fund, which provides
deposit insurance to over 5, 000 banks and savings
institutions, insuring accounts of up to $250, 000 per
depositor. Id. ¶¶ 2, 16. If an institution
fails, the FDIC ensures that the depositors are able to
access their insured accounts at that institution; if the
institution's assets are insufficient to return all
insured deposits, the FDIC pays the balance from the Fund.
Id. ¶ 21.
required by the FDIA, the FDIC finances the Fund with
assessments collected from FDIC-insured institutions.
Id.¶ 24. To determine the amount that each
institution must pay, the FDIC utilizes a
"risk-based" assessment system. Id. The
system calculates each assessment rate based on that
institution's "risk profile." Id. The
risk profile captures the probability that the institution
will fail and, in the event of failure, the potential amount
of loss that the Fund will bear. Id. To determine
each institution's risk profile, the FDIC implemented a
"regulatory regime" that requires certain
institutions to self-report specific data via quarterly
"Call Report[s]." Id. ¶¶ 29, 32.
This data, which includes the amount, that the institution
has lent to other entities, is intended to capture the risk
of failure. Id. ¶¶ 30-39. Because
BANA is one of the largest insured institutions, it is
subject to the FDIC's assessment system and must report
its quarterly data. Id. ¶ 25.
FDIC alleges that, from the second quarter of
2011through the fourth quarter of 2014, BANA
improperly reported its quarterly data, thereby understating
its risk profile. Am. Compl., ECF No. 10 ¶ 43.
As a result, the FDIC underbilled BANA for deposit insurance.
Had BANA properly reported its data, it allegedly would have
owed the FDIC an additional $1.12 billion in assessment
payments. Id. ¶¶ 48, 60. According to the
FDIC, BANA knew how to properly report its data but
"decided not to [do so]." Id. ¶¶
57-59. Instead, it "certified as true and correct,
" pursuant to the FDIA, every Call Report at issue.
Id. ¶ 68 (referring to 12 U.S.C. §
1817(a)(3)). The FDIC purportedly did not "learn the
full extent of [BANA's] reporting failure" until
2016. Id. ¶ 9. The FDIC thereafter invoiced
BANA for the $1.12 billion it allegedly owes. Id.
¶¶ 11, 65. BANA purportedly refuses to pay. Id.
January 9, 2017, the FDIC sued BANA for $542 million for
failing to pay its mandatory assessments from the second
quarter of 2013 through the fourth quarter of 2014. See
Compl, ECF No. 1. On April 7, 2017, the FDIC amended its
complaint, adding a claim for unjust enrichment. See Am.
Compl., ECF No. 10 ¶¶ 72-94. The amended complaint
alleges that BANA owes the FDIC an additional $583 million
for underpayments predating the second quarter of 2013.
Id. The FDIC requests that the Court order BANA to
pay the full amount it owes, including interest, costs, and
disorgement of profits unjustly earned. Id. ¶
22. On May 5, 2017, BANA filed a motion to dismiss or strike
the FDIC's amended complaint in part for failure to state
a claim for relief pursuant to Federal Rule of Civil
Procedure 12(b)(6). See Def.'s Mot., ECF No. 13.
Standard of Review
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) tests the legal sufficiency of a complaint.
Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir.
2002). A complaint must contain "a short and plain
statement of the claim showing that the pleader is entitled
to relief, in order to give the defendant fair notice of what
the . . . claim is and the grounds upon which it rests."
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(internal quotations and citations omitted).
this liberal pleading standard, to survive a motion to
dismiss, a complaint "must contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face." Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (internal quotations and citations
omitted). A claim is facially plausible when the facts pled
in the complaint allow the court to "draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Id. The standard does not amount to a
"probability requirement, " but it does require
more than a "sheer possibility that a defendant has
acted unlawfully." Id.
ruling on a defendant's motion to dismiss [pursuant to
Rule 12(b)(6)], a judge must accept as true all of the
factual allegations contained in the complaint."
Atherton v. D.C. Office of the Mayor, 567 F.3d 672,
681 (D.C. Cir. 2009) (internal quotations and citations
omitted). In addition, the court must give the plaintiff the
"benefit of all inferences that can be derived from the
facts alleged." Kowal v. MCI Commc'ns
Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Even so,
"[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements" are not
sufficient to state a claim. Iqbal, 556 U.S. at 678.
moves to dismiss or strike in part the FDIC's amended
complaint for failure to state a claim. See
Def.'s Mot., ECF No. 13. It makes three arguments: (1)
the FDIC's unjust enrichment claim should be dismissed
because the FDIA provides the FDIC with an adequate legal
remedy; (2) the FDIC's unjust enrichment claim should be
dismissed because the FDIC did not allege unjust enrichment
as a matter of law; and (3) the FDIC's claims for unpaid