MEMORANDUM OPINION
DABNEY
L. FRIEDRICH, UNITED STATES DISTRICT JUDGE
For the
second time in this district, the plaintiff, Conference of
State Bank Supervisors (CSBS), challenges the purported
Nonbank Charter Decision of the defendants, the Comptroller
of the Currency and the Comptroller's Office
(collectively, the OCC). See Compl. at 40-45, Dkt. 1. This
Court dismissed CSBS's first challenge because CSBS
lacked standing and its claims were unripe. See
Conference of State Bank Supervisors v. Office of the
Comptroller of the Currency (CSBS I), 313 F.Supp.3d 285,
299 (D.D.C. 2018). Two motions are before the Court: the
defendants' Motion to Dismiss, Dkt. 12, and CSBS's
Alternative Motion for Leave to Conduct Jurisdictional
Discovery, Dkt. 16. The Court will grant the defendants'
motion to dismiss because CSBS continues to lack standing and
its claims remain unripe. And the Court will deny CSBS's
motion for discovery because the OCC has agreed to provide
the information necessary to establish standing and because
that information is publicly available.
Not
much has happened since CSBS I that affects the jurisdiction
analysis.[1] In its most recent complaint, CSBS does
not allege that any financial technology company (a so-called
“Fintech”) has applied for a charter, let alone
that the OCC has chartered a Fintech. Compl. ¶ 119. It
highlights two arguably relevant events: the Senate
confirming Joseph Otting as Comptroller of the Currency,
Id. ¶ 22, and on July 31, 2019 the OCC
finalizing its once-draft policy to charter Fintechs,
Id. ¶¶ 7-9. Yet because neither event
“cure[s] the original jurisdictional deficiency”
identified in CSBS I “[i]ssue preclusion bars [the
Court] from reconsidering whether [CSBS] suffered Article III
injury.” Nat'l Ass'n of Home Builders v.
Envtl. Prot. Agency, 786 F.3d 34, 41-42 (D.C. Cir.
2015).[2]
To
start, CSBS still “fails to plead an injury in
fact” that is either actual or imminent. CSBS I, 313
F.Supp.3d at 299. In CSBS I, the Court reasoned that each of
the alleged “harms [was] contingent on whether the OCC
charters a Fintech.” Id. at 296. That
reasoning still applies because CSBS's alleged harms
remain the same, and the OCC still has not chartered a
Fintech. The Court also said:
Several contingent and speculative events must occur before
the OCC charters a Fintech: (1) the OCC must decide to
finalize a procedure for handling those applications; (2) a
Fintech company must choose to apply for a charter; (3) the
particular Fintech must substantively satisfy regulatory
requirements; and (4) the OCC must decide to grant the
charter to the particular Fintech.
Id. At the time, none of these four events had
occurred. Id. Since then, the OCC has finalized its
procedure for handling Fintech applications. But what was
true then remains true today:
[T]he second step-a Fintech's electing to apply-ha[s] not
occurred, let alone the third or fourth. In fact, an aspiring
Fintech that does not accept deposits plausibly could have
attempted to apply for a charter anytime since the 2003
regulations took effect. And yet in the [now over] fifteen
years between those regulations and the complaint, the OCC
posits-and CSBS does not plead otherwise-that not one Fintech
of the type described by the complaint has attempted to apply
for a national charter.
Id. at 297. In addition, “CSBS [still] does
not allege in more than a conclusory fashion that its members
suffer an injury from a ‘substantial risk' of harm,
and CSBS certainly does not allege that any such risk
‘may prompt its members to reasonably incur costs to
mitigate or avoid that harm.'” Id.
(original alterations omitted) (quoting Clapper v.
Amnesty Int'l, 568 U.S. 398, 414 n.5 (2013)). This
case also remains distinguishable from those other cases in
which “CSBS seeks refuge . . . to show regulatory
injuries” because “not a single Fintech has ever
applied for a charter.” Id.; see Id.
at 297-98.
On top
of this, CSBS's second complaint “remain[s]
inadequate” because it “fails to identify in its
complaint which particular member of the organization”
faces imminent injury. Id. at 298-99. Though the
latest complaint generally identifies laws from each state
that cover mortgage lending, consumer lending, and money
transmission, see Compl. Ex. 4, Dkt. 1-4, it does not connect
those general laws to any particular actual or imminent harm.
And it stays silent about which state bank
supervisors-CSBS's members-face imminent injury. See
Id. That silence alone warrants dismissal. See CSBS
I, 313 F.3d at 298-99 (explaining that associational standing
requires “plead[ing] an imminent injury to some
particular member”). CSBS's omission is
unsurprising given that no Fintech-in any state-has applied
for a charter. Until then, CSBS can only guess which states
and which members face imminent injury. As the Court said in
CSBS I:
[T]he identification requirement serves an important
gatekeeping role. It highlights the challenge of determining
whether any particular state will be injured before a
particular Fintech, if any, receives a charter. A national
charter could injure Indiana without injuring Alaska, or vice
versa. As it stands, the complaint does not equip the Court
to decide which state to consider when evaluating standing,
what role the CSBS member has in that state's regulatory
system, or whether there are any Fintech companies within
that state that are likely to receive a national charter. And
the identification requirement ensures that the Court
considers the likelihood of injury to individual members of
the organization, thus preventing the organization from
gaining standing by combining several alleged injuries that
are inadequate separately.
Id. at 299. This reasoning still applies. The bottom
line is that despite the now-final policy and the
Comptroller's confirmation, CSBS still fails to
“carry its burden” of “demonstrat[ing] that
it has standing to survive a Rule 12(b)(1) motion” for
nearly all the same reasons as before. Id.
This
dispute also remains neither “constitutionally [n]or
prudentially ripe for determination.” Id. For
one thing, “[t]his dispute [still] would benefit from a
more concrete setting and additional percolation.”
Id. at 300. As in CSBS I, “this dispute will
be sharpened if the OCC charters a particular Fintech-or
decides to do so imminently.” Id. Though the
“procedures that may lead to issuing a Fintech
charter” are now final and the OCC's leadership is
settled, “there are [still] many other procedural
hurdles to overcome before a charter could be granted.”
Id. As such, “[a]ny procedural review at this
point would be piecemeal, potentially involving a new legal
challenge every time the OCC takes a step towards a result
disfavored by a trade organization.” Id. at
300-01. In addition, this dispute presents the same
“legal issues that are unfit for review” absent
“a more concrete setting” to resolve them.
Id. at 301.
For
another, CSBS also makes no new attempt to explain how
“withholding a decision will cause hardship to the
parties” that “would be immediate and
significant.” Id. (quotation omitted). CSBS
alleges hardship to “charter applicants, ”
Pl.'s Opp. at 19, but charter applicants are not parties.
And the other hardships that CSBS
alleges-“confusion” and “budgetary and
resource allocation complications” among the states,
Id. at 13-are not “immediate and
significant” hardships that outweigh the
“institutional interests in the deferral of review,
” CSBS I, 313 F.Supp. at 301.
As
before, “the prudential ripeness doctrine counsels in
favor of allowing time to sharpen this dispute before
deciding it. Indeed, there may ultimately be no case to
decide at all if the OCC does not charter a Fintech.”
Id. Thus, “even if CSBS had ...