my name is lee and nichols for appellant bradley to winkle the decision below dismissing twinkles equal credit opportunity act claims to be reversed both because mr twinkle has alleged an article three injury in fact and because on the merits interest congress not to protect giving rise to his injury in fact instrumental this court explained that under the curious maybe this is an appropriate is an appropriate time to ask if you're right about standing in your client standing and therefore the question is do we decide ourselves if we agree with the on that we decide our ourselves the question or do we send it back to the district court to do that and why your honor it's it's our view that you should go ahead and decide the merits question of whether or not he is an applicant and the reason why is because the district court made that decision in the course it it improperly conflated the standing in the merits analysis and made the decision about whether or not mr to me cause an applicant under the statute and so there's no reason to remain and to the district court the district court has already made that determination i know what's in it what it's going to do right we know what it's going to do congress confer the procedural right to protect a plaintiff's concrete interest and where the procedural violation presents a risk of real harm to that country interests as at least three circuits of how one of the concrete interests protected by itoa is borrow education specifically insuring that borrowers know the reason why creditors view them as not credit worthy because capital one did not provide the reason for his credit account terminations to mr twinkle that concrete interest is harm your honor that neither the complaint nor the the record indicates one way or the other but what we know from the email from capital one close in his accounts is that capital one viewed the why overdraft line of credit as part of the checking account so if you look at the notice which is on page seventeen of the appendix it says we close your three hundred and sixty dollars checking including your overdraft line of credit and your debit card only the responses so i remember the st check i ever got was when i went to question leave left open by the record at the least let me hear again a typo the only thing that we have in the record is capital was you know email no terminating mr two angles accounts and their capital one is viewing the overdraft line of credit as part of that account and so when you apply for an account and credit is potentially part of that account your applying for credit that some of you but i want to get out i want to do suggestion about whether there is an adverse action because an adverse action includes a denial for revocation of credit and can this really be called a revocation of credit is a cancellation of is right  privilege to write checks write your honor up to a credit only applause with respect to checks that are written it's not a freestanding credit it's to get overdraft protection if the checks that he writes a point is it is even if it is credited it would be credit only with respect to check writing privileges that no longer exists so we've got a revocation of credit you you're proving i mean we're we're posing a hypothetical right to be clear those are the facts here the facts here is that are that all of his accounts were closed including his credit including the parts of his account that have credit and so we know that at least in his case his credit was revoked and i want to be clear there are some consumers who are using overdraft lines of credit as a line of credit that is more important to them for example then to use it without writing do you really like checks your honor i get and we don't we don't have the details of the terms of this overdraft line of credit in the record here and so on the facts that we have here there's no question that he had credit and it was revoked and that's all that's required to be an adverse action under the statu yes on the applicant question very quickly i just want to you know when i briefly explain why under the the terms of the statute itself why mr twinkled an applicant and if there's any ambiguities he's an applicant under the regulations  i just want to say you know capital one's interpretation runs headline into what congress intended when it passed the co op because under capital one's interpretation it would be perfectly permissible to for a creditor to terminate a woman's credit account when she got married because she got married that would be perfectly permissible under capital one's interpretation of applicant and it is directly contrary to  so whatever applicant meets that is does applicant mean those who have existing and terminated accounts in addition to those who are in the process of applying for credit it's not that is going to govern the prohibition is done in terms of an applicant right to it only prohibited under the statute to discriminate against an applicant the application is interpreted as nearly as capital one suggests it would be perfectly permissible under any cola to discriminate against a woman based on her marital status by terminating her account it doesn't that doesn't exclude the possibility that there are statutes that would cover there may be other discrimination to people while they're applying as well as discrimination in terms of changing terms or revocation modification down the road and the district courts and duly namor reading of the term applicant kept be squared w limited reading more broadly the district court's interpretation with undermine eco's important protections like having them to only certain aspects of a credit transaction and would open broad avenues for invasion for example despite congress  explicit extension of enter discrimination protection to any aspect of a credit transaction under the district court's interpretation borrowers who face discrimination in the servicing of existing loans would not be covered by the district discrimination protection to people who engage in credit transactions so whether or not there are other potential productions under state law is irrelevant to the scope of  that by simply extending credit on the terms of quested and then we are looking at changing the terms and a prohibited basis this would introduce a loophole big enough to threaten to swallow whole the notice requirement and the statute central prohibition on credit  other circuits even come close to supervisory exams you know to enforce the statute and have long understood it to cover both those who are currently seeking credit and those who have sought and received quotes so what's what's really going on here could i think there were some district court decisions that with out and do analysis adopted a superficial reading of the term applicants an answer that as cut and some traction but it ignores the best reading of the statute which is actions with respect to those who have credit to protect those people as well as those seeking credit so for example there was an in foresman actions that two banking subsidiaries had taken discriminatory action against pretty rican card holders requiring them to pay more money to settle that other card holders and had to pay that action could have been brought under the district court's limited interpretation of appleton and there are numerous other examples here was that that conception regardless if such a thing as overdraft protection for our account that doesn't exist now for nick yes it would largely be tied to an account so in this case an account was closed as they were closing your checking account if they said nothing about overdraft protection would there be a violation considerately there could have been there is nothing in the statute that requires them to say something specifically in order to invoke the production's if they were closing a credit accounts and not providing adequate notice that that would fall within the statutes and possible implications of adopting a limited reading that the district court did and so the import of this case goes beyond the specific overdrafts line of credit implicated here but really extends to all of the would be incidental but there is no nobody has raised here the argument that this was just incidental and so that argument really isn't before the court if you take assuming your friend the struct interpretation of applicant is permissible though it's notable that even the district court here thought that the regulation be interpretation was reasonable and permissible it's just that you didn't reach that because the statute itself was an ambiguous for the the closure of a checking account which is not covered by the full credit opportunity act and it's included overdraft line of credit i'd like to focus on three main points the st is that because overdraft protection interpretation of applicants there are plenty of other laws that address the concerns that the agency and that the plaintiffs have i'm sorry can i answer may i interrupt you this is a terrible thing to do but it's a little difficult to be cons you and your argument with that rather extraordinary back room behind you can you tell me what that is that is richmond james river your honor and your enrichment thank you very much  and rd i need to address an argument that neither the plaintiffs nor the agency has touched at all and that argument is that the plaintiff was not entitled to an adverse action notification at all because there was no adverse action on an application on an application being the prerequisite for having to send an adverse action notification under fifteen u s c section six hundred and ninety one  start with standing the complaint defeats itself what's unique about this complaint is that the plaintiff actually attached the e mail notification that capital one sent to the planet that says we are closing your checking account including its overdraft line of credit so that e mail becomes a part of the complaint it's not something that can be ignored under this court's precedent it is actually the complaint itself and in turn that means that the pla allege particularized injury based on a deficiency in the notice that he actually received not based on some hypothetical violation but there's no plausible allegation that any deficiency that includes a more specific reason then reclosed you're talking attacks including your overdraft line of credit your overdraft protection even assuming that you some title to that information under the act and for purposes of standing we do assume that he doesn't allege that he was confused about who his credit or what he doesn't allege that he was confused about how to contact his creditor and so that takes this case out of koa which is one of the primary standing cases of the plaintiff relies on and to the to the point of the question but your honor said earlier the plaintiff doesn't say what if anything she would do with a statement more specific than that the overdraft line of credit was included in the checking account that was closed because they are the overdraft protection is entirely contingent on the checking account once the checking account is closed that overdraft protection vanishes because there's nothing to protect the checking account is closed and in fact the plaintiff does not even allege that he would have requested a statement of more specific reasons if notified of his right to it a s your honor snow six hundred and ninety one dollars d does not require the creditor in the st instance to send a statement of reasons to the applicant the creditor is allowed if the creditor chooses to send a notification that the applicant can request that state and everything within sixty days and there's not even an application there's not even an allegation that the plaintiff would have done that here so in some there's no allegation that the information plaintiff is demanding here actually matters under the specific circumstances of this case and the absence of information that does not matter creates no addressed why the concerns raised about the definition of applicant don't matter and in particular i should i should say st and foremost that helpful one is one hundred percent committed to nondiscrimination both as to credit applicants and as to existing customers but to your honest question about what law applies in the absence of that there's two that immediately spring to mind one very broad ban on credit discrimination generally and what's really important here is that new york's human rights act than a credit discrimination it's not limited to applicants so it's different that's the senate report for the original is hello and the the sentence or the paragraph that she's referring to says this predators generally require a woman who has credit to reapply for credit when she marries usually and her husband saying similar re application is not asked of men when they married so i think this nichols was gesturing in the direction of a concern raised in the legislative history but as we've we've br the correct application of applicants which cover this newly married woman who was forced to apply she is an applicant so there's no concern there and i think it's important to point out what the panel was observing before which is that these cases are not frequently litigated when they are litigated which has only happened in the last couple of decades almost exclusively with one exception the definition of of applicant that we've briefed has prevails but this is not a big problem there's not an epidemic of discrimination against existing customers as you might expect and so this is not an issue but i'd like to suggest that the court can consider an independent way of resolving this case on the merits that avoids the need to decide the meaning of applicant and that independent way of resolving this case from the merits is this that there is no adverse action on so is is how do we divorce the term application from the term application maybe your your response is we don't your honor to in the arguments that we've addressed in the briefs about the meaning of applicants it's fully consistent to read them together but the point i'd like to make here is that even if you don't resolve the meaning of applicant or even if you agree with in the walk and that's a section that talks about the time of the change is just about you got you can't let a person linger for six months or two years you have to respond within a certain period right that's correct  that phrase on the application doesn't appear elsewhere in the section doesn't not in so many words your honor but here's the answer was no ok so what you seem to be saying is that if a person applies for an a for credit that application is granted and then a month later they have the credit revoked based on race or some other in from a simple reason that's ok because this doesn't cover right don't i don't recall how it is not covered correct i can't necessarily agree with that your honor because i would need to know the answer to this question which is why was that revocation a result of either revocation only apply that's an adverse action only if they revoke when you make a new application or an application for an extension or additional credit so that's certain yes or no that's certainly an example of when it would be on an application another example is if there's some no i don't have any trouble figuring out when it would apply your sense i'm trying to get pin you down when it wouldn't apply and it seems to me what you're saying is that if application may application granted and then promptly revolved for an impermissible reason you seem to be saying that that isn't covered that you've got to go to some other statute because this is only about affleck patients for credit and once an application has been granted you a was it wasn't a you know denial of the application yes your honor and i think that person would have a pretty strong case on the on the pleadings that there is an inference that this really was in substance a denial of the application that  point i was trying to get you on the legislative history which to be clear we think the text and context and structure of six hundred and ninety one dollars the is clear so you don't have to but just as a belt and suspenders congress understood adverse action on an application the way that i'm describing today and the legislative history that is right on point is in the senate report to the nine hundred and seventy six dollars amendments to the equal credit opportunity act which says the formalized statement of reasons hold for in the section is appropriate in the committee's view only where there is an equally formalized application for credit so no application for credit no statement of reasons necessary and so we ask the court to recognize that as congress understood this statute there has to be adverse action on an application and that if you find as as there's no allegation here that there was adverse action on an application then the plaintiff doesn't say the claims and finally a problems with play misinterpretation of six hundred and ninety one dollars is that there's a gaping hole in the statute and that hole says adverse actions and clues closing in account years after any action on any application that it would be impossible to meet that one deadline of thirty days after action on the application so under under plaintiff's to the statutory deadline that congress created would be defective but that deadline works just as congress decides when adverse action if correctly confined to adverse action on the application couple of minutes i think here i want to focus on addressing what seems to be this court's concern that perhaps because it is an overdraft line of credit it's not credit the revocation of which is an adverse action here again i want to stress that the account here contains both a depository element and a credit on it and i think there's no question that an overdraft mind of credit well of eyes is credit under the statute and that that credit you're putting the applicant issue to assign to the side is potentially an adverse action no to be clear as the c f p explained there are regulatory exceptions to the notice of reasons requirements are re gulatory exceptions to adverse action which may or may not apply here capital one has never argued that any of those regulatory exceptions apply here it hasn't argued that this isn't credit it has never raised those arguments they have not been briefed we don't have enough information in the record to know whether those regulatory exceptions are met and so to be very clear what what we know from the record and from the statute is that this is credit that has been r is as as two separate requirements for a deal one talks about actions taken on an application indeed two does act those are two different requirements getting at two different things with regard to the time limit  you know i think there's there's a i would read that as an implication that when there's you know upon sort of the the adverse action that you get the statement of reasons for a they think that's the and then there's a timeline for when there's a request for statement of reasons discussed and d to b and so i think that's the that's the better way to read that in the context of the statute as a whole and again if there's any ambiguity here if it's susceptible to more than one reading then we look at the regulation and regulate and there's no dispute that the regulation includes a regulatory definition includes those with existing and terminated credit i want to ask pick up on so again i just want to stress again that close his checking account and said nothing with respect to the overdraft protection that too might be a violation of a call eyeballing it checked holding a checking account might have been a yes because the checking account includes credit rate that if there was no overdraft line of credit included with a checking account obviously ico was not invoked but if that the checking account includes credit which this one triggered because an overdraft line of credit is credit under the statute and that there's there's you know there's been a general i think that's why we're here that's why we're here right and so i think again whether whether this you know because i would say that there are there are her many parts to the legislative history and other parts of the legislative history which we cite energy thing talk about a unilateral revocation of credit which you know it indicates to me that application an active application is not required and so i think there's you know my best it's a little you know we we cite record all that in our briefing and some of the at best it's you know it's ambiguous and then we look at the the regulation and to answer i think just it just to clean up and answer that was asked with regard to the regulatory definition applicant there is a circuit split on another aspect of the regulatory definition that doesn't have to do with whether it applies to there's no violation here and there might be it might require a review of the terms of the account which are not here depends on what they say in their answer and so i think that that's how the litigation might proceed here i think there's you know if they don't have any other arguments as to why it doesn't apply then i think we you know we move for summary judgment and completed litigation but i think that's you know the the we're very early stages below the only