IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF FLORIDA 

FT. LAUDERDALE DIVISION 

Case No. 0:20-CV-61010-AHS 

NACSO NONPROFIT BUSINESS 

LEAGUE INC., 

 Plaintiff, 

vs. 

CONSUMER FINANCIAL PROTECTION 

BUREAU and FEDERAL TRADE 

 COMMISSION, 

 Defendants. 

____________________________________/ 

DEFENDANTS’ (THE CONSUMER FINANCIAL PROTECTION BUREAU AND THE 

FEDERAL TRADE COMMISSION) MOTION TO DISMISS PURSUANT TO FED. R. 

CIV. P. 12(b)(1) AND 12(b)(6), AND MEMORANDUM OF POINTS AND 

AUTHORITIES IN SUPPORT 

Defendants, the Consumer Financial Protection Bureau (CFPB, BCFP, or Bureau) and the 

Federal Trade Commission (FTC or Commission), move that this Court dismiss all three counts 

of the Amended Complaint for Declaratory Relief filed by Plaintiff, NACSO Nonprofit Business 

League Inc. (NACSO). First, this Court lacks subject-matter jurisdiction with respect to all three 

counts of the Amended Complaint because those counts allege violations of the Administrative 

Procedure Act (APA) but were filed far outside of that statute’s six-year jurisdictional statute of 

limitations. Moreover, even if this Court did have jurisdiction, it should exercise its discretion and 

decline to grant the declaratory relief that NACSO requests because such relief would trench upon 

the very purpose of the APA’s statute of limitations. Second, as to second and third counts in the 

Amended Complaint, those counts should be dismissed not only because this Court lacks subject 

matter jurisdiction, but also pursuant to Fed. R. Civ. P. 12(b)(6) because they fail to state a claim 

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upon which relief may be granted. In particular, although those counts allege violations of the 

APA, they fail to identify any final agency action taken by either the Bureau or the Commission, 

a necessary prerequisite to an APA challenge. 

BACKGROUND 

According to the Complaint, NACSO is a non-profit national association that includes 

credit repair organizations as members. Amended Complaint (Compl.) at ¶ 7. The Amended 

Complaint describes credit repair organizations as “provid[ing] services to individuals in an effort 

to improve such individuals’ credit history, credit record, or credit rating.” Id. at ¶ 15. 

In 1994, Congress passed the Telemarketing and Consumer Fraud and Abuse Prevention 

Act, 15 U.S.C. §§ 6101-6108 (Telemarketing Act). When it passed the Telemarketing Act, 

Congress found that “[i]nterstate telemarketing fraud has become a problem of such magnitude 

that the resources of the Federal Trade Commission are not sufficient to ensure adequate consumer 

protection from such fraud.” 15 U.S.C. § 6101(2). To address this problem, the Telemarketing Act 

required the Commission to “prescribe rules prohibiting deceptive telemarketing acts or practices 

and other abusive telemarketing acts or practices.” Id. § 6102(a)(1); see Compl. at ¶ 15. On August 

23, 1995, the Commission fulfilled this requirement by issuing its Telemarketing Sales Rule 

(TSR). 60 Fed. Reg. 43842 (Aug 23, 1995), codified at 16 C.F.R Part 310. 

The TSR describes and prohibits a variety of deceptive and abusive telemarketing acts or 

practices. One provision applies specifically to the telemarketing of credit repair services: 

It is an abusive telemarketing act or practice and a violation of this Rule for any 

seller or telemarketer to engage in the following conduct: ... 

Requesting or receiving payment of any fee or consideration for goods or services 

represented to remove derogatory information from, or improve, a person’s credit 

history, credit record, or credit rating until: (i) The time frame in which the seller 

has represented all of the goods or services will be provided to that person has 

expired; and (ii) The seller has provided the person with documentation in the form 

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of a consumer report from a consumer reporting agency demonstrating that the 

promised results have been achieved, such report having been issued more than six 

months after the results were achieved. 

16 C.F.R. § 310.4(a)(2); see Compl. at ¶ 24. There are also other more general provisions of the 

TSR that apply to all telemarketers including those who telemarket credit repair services. For 

example, the TSR prohibits all telemarketers from making false or misleading statements to induce 

a consumer to pay for goods or services. 16 C.F.R. § 310.3(a)(4). And it prohibits all telemarketers 

from failing to disclose the total costs of, and any limitations on, the goods or services that the 

telemarketer is selling. 16 C.F.R. § 310.3(a)(1). 

Pursuant to the Telemarketing Act as originally enacted, the Commission was the federal 

agency charged with enforcing the TSR. 15 U.S.C. § 6102(c) (1994). However, the Telemarketing 

Act was amended in 2010 as part of the Dodd-Frank Wall Street Reform and Consumer Protection 

Act, Pub. L. No. 111-203, 124 Stat. 1376, (Dodd-Frank Act) so that the Bureau would also have 

enforcement authority. 15 U.S.C. § 6102(c)(2). Since then, the Bureau has brought several actions 

to enforce the TSR’s provisions regarding credit repair services. See, e.g., CFPB v. Prime Mktg. 

Holdings, LLC, No. 2:16-cv-07111-BRO (JEM) (C.D. Cal. Aug. 31, 2017) (Stipulated Final 

Judgment and Order barring defendant who allegedly violated the TSR from providing credit 

repair services); BCFP v. Progrexion Mktg., et al., No. 2:19-cv-00298-DPB (D. Utah filed May 2, 

2019) (alleging that defendants charged advance fees in violation of the TSR); BCFP, et al. v. 

Commonwealth Equity Group, LLC, et al., No. 1:20-cv-10991 (D. Mass. filed May 22, 2020). The 

Commission has also recently brought actions enforcing those provisions. See, e.g., FTC v. Grand 

Teton Pros., LLC, 3:19-cv-00933 (D. Conn. filed June 17, 2019); FTC v. BoostMyScore LLC, No. 

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1:20-cv-00641 (D. Colo. filed Mar. 6, 2020).1 The Dodd-Frank Act made no change to the 

Commission’s rulemaking authority – the Commission still has the sole authority to amend or 

repeal the TSR. 15 U.S.C. § 6102(a), (b).2 

 On September 15, 2020, NACSO filed its Amended Complaint for Declaratory Relief. It 

filed the Amended Complaint on its own behalf, not on behalf of any of its members. NACSO 

seeks review of the TSR under the APA. Compl. at ¶ 12. The Amended Complaint includes three 

counts, all of which challenge the provision of the TSR that prohibits a telemarketer of credit repair 

services from receiving advance fees for those services until six months after promised results 

have been achieved. The first count, which names just the Commission, alleges that the 

Commission lacked the authority to impose this advance-fee prohibition. Compl. at ¶¶ 54-65. In 

particular, the count alleges that, when Congress enacted the Credit Repair Organizations Act in 

1996, 15 U.S.C. § 1679 et seq., (CROA), this superseded the provision of the TSR restricting when 

credit repair services may request or receive compensation. Compl. at ¶ 60. The second count, 

which names both the Commission and the Bureau, alleges that the advance-fee prohibition is a 

content-based restriction on speech that violates the First Amendment of the Constitution. Id. at 

¶¶ 66-78. And the third count, which also names both the Commission and the Bureau, alleges that 

1

 NACSO contends that the FTC does not enforce the advance-fee prohibition of the TSR. See 

Compl. at p.2. In fact, the FTC alleged violations of that prohibition in both of the cases cited 

above. 

2

 But it did require the Commission to consult with the Bureau when it makes certain changes to 

the TSR: “In prescribing a rule under this section that relates to the provision of a consumer 

financial product or service that is subject to the Consumer Financial Protection Act of 2010, 

including any enumerated consumer law thereunder, the Commission shall consult with the Bureau 

of Consumer Financial Protection regarding the consistency of a proposed rule with standards, 

purposes, or objectives administered by the Bureau of Consumer Financial Protection.” 15 U.S.C. 

§ 6102(b). 

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the advance-fee prohibition is unconstitutional because it is an underinclusive restriction on 

speech. Id. at ¶¶ 79-85. The Amended Complaint seeks a declaration that the promulgation of the 

TSR exceeded Congress’s grant of rulemaking authority, and that the TSR is unenforceable 

because it violates the Constitution. 

DISCUSSION 

 NACSO’s three-count Amended Complaint names both the Bureau and the Commission 

as defendants – Count I names the Commission and Counts II and III name both the Bureau and 

the Commission. All three counts allege that the promulgation of the TSR violates the APA, and 

all three counts should be dismissed for lack of subject-matter jurisdiction. The TSR was 

promulgated in 1995, but the Amended Complaint, filed in 2020, falls far outside of the APA’s 

six-year statute of limitations, a limitations period that is jurisdictional. And, even if this Court had 

subject matter jurisdiction, it should exercise its discretion and decline to enter any relief under the 

Declaratory Judgment Act. With respect to the second and third counts of the Amended Complaint, 

which name both the Bureau and the Commission, to the extent that those counts challenge the 

TSR as applied, they should be dismissed not only for lack of subject matter jurisdiction but also 

for a second reason: They fail to state a claim against either the Bureau or the Commission upon 

which relief can be granted. In particular, because the bringing of a lawsuit to enforce the TSR, 

i.e., the filing of a complaint, is not final agency action, Counts II and III fail to allege any violation 

of the APA. 

I. The Amended Complaint should be dismissed with respect to both the Bureau and 

the Commission because this Court lacks subject-matter jurisdiction 

This Court lacks subject-matter jurisdiction with respect to both the Bureau and the 

Commission and with respect to all three counts of the Amended Complaint. All three counts 

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challenge the promulgation of the TSR’s advance-fee prohibition, and all three counts allege that 

the promulgation of that provision violates the APA. The APA provides that “final agency action 

for which there is no other adequate remedy in a court [is] subject to judicial review,” 5 U.S.C. 

§ 704, and in its Amended Complaint, NACSO states that “[t]he TSR constitutes final agency 

action,” Compl. at ¶ 12. The advance-fee prohibition was promulgated in 1995. The problem for 

NACSO is that the APA has a six-year statute of limitations, and the statute of limitations is 

jurisdictional – the government has waived sovereign immunity only with respect to APA claims 

brought within six years of the final agency action. Because NACSO’s Amended Complaint falls 

far outside of the limitations period, there is no waiver of sovereign immunity. Accordingly, this 

Court lacks subject-matter jurisdiction and the Amended Complaint should be dismissed pursuant 

to Fed. R. Civ. P. 12(b)(1). 

Federal courts are courts of limited jurisdiction, and as a result, a district court is powerless 

to hear a matter where subject-matter jurisdiction is lacking. Bochese v. Town of Ponce Inlet, 405 

F.3d 964, 974-75 (11th Cir. 2005). A plaintiff bears the burden of establishing subject-matter 

jurisdiction, Sweet Pea Marine, Ltd. v. APJ Marine, Inc., 411 F.3d 1242, 1248 n.2 (11th Cir. 2005), 

and if the plaintiff fails to shoulder that burden, then the case must be dismissed, In re Trusted Net 

Media Holdings, LLC, 550 F.3d 1035, 1042 (11th Cir. 2008). When determining whether the 

plaintiff has sufficiently alleged a basis for subject-matter jurisdiction, this Court should take the 

allegations in the complaint as true. McElmurray v. Consol. Gov’t of Augusta—Richmond Cty., 

501 F.3d 1244, 1251 (11th Cir. 2007). 

As a sovereign, the United States cannot be sued in its own courts unless Congress 

explicitly authorizes it to be sued. See United States v. Sherwood, 312 U.S. 584, 586 (1941). “A 

necessary corollary of this rule is that when Congress attaches conditions to legislation waiving 

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the sovereign immunity of the United States, those conditions must be strictly observed, and 

exceptions thereto are not to be lightly implied.” Block v. North Dakota ex rel. Bd. of Univ. & Sch. 

Lands, 461 U.S. 273, 287 (1983). In an action brought pursuant to the APA, one of those conditions 

is the statute of limitations, which reflects Congress’s decision to waive sovereign immunity only 

if suit is brought within a particular period of time. See Soriano v. United States, 352 U.S. 270, 

273 (1957) (holding that the court had jurisdiction only with respect to those cases filed within the 

statute of limitations). As such, compliance with the applicable statute of limitations is a condition 

of federal court jurisdiction. Id.

The statute of limitations that applies to actions brought pursuant to the APA is six years 

and is set forth in 28 U.S.C. § 2401(a): “[e]xcept as provided by chapter 71 of title 41 [dealing 

with certain contract disputes], every civil action commenced against the United States shall be 

barred unless the complaint is filed within six years after the right of action first accrues.” See

Alabama v. PCI Gaming Auth., 801 F.3d 1278, 1292 (11th Cir. 2015) (“A six-year general statute 

of limitations applies to APA claims”). 

[A] facial challenge to a regulation must also be made within six years of the 

regulation’s issuance. The reasoning behind this rule is simple: “The grounds for 

such challenges will usually be apparent to any interested citizen within a six-year 

period following promulgation of the decision .... The government’s interest in 

finality outweighs a late-comer’s desire to protest the agency’s action as a matter 

of policy or procedure.” 

Fla. Keys Citizens Coal. v. West, 996 F. Supp. 1254, 1256 (S.D. Fla. 1998), quoting Wind River 

Mining Corp. v. United States, 946 F.2d 710, 715 (9th Cir. 1991). “Unlike an ordinary statute of 

limitations, § 2401(a) is a jurisdictional condition attached to the government’s waiver of 

sovereign immunity, and as such must be strictly construed.” Ctr. for Biological Diversity v. 

Hamilton, 453 F.3d 1331, 1334 (11th Cir. 2006).

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The sole basis of NACSO’s Amended Complaint is the APA. Compl. at ¶ 8.3

 The only 

final agency action NACSO challenges is the TSR’s provision regarding credit repair services – 

in particular, the advance-fee prohibition. See Compl. at ¶¶ 54-85. But that provision was issued 

(by the Commission) in August 1995 – more than 25 years ago – and has not been amended since. 

Compare 60 Fed. Reg. 43842, 43866 (Aug 23, 1995) with 16 C.F.R. § 310.4(a)(2) (2020). 

Accordingly, NACSO’s challenge is far outside the six-year statute of limitations and NACSO’s 

Amended Complaint should be dismissed with prejudice pursuant to Fed. R. Civ. P. 12(b)(1) for 

lack of subject-matter jurisdiction. 

II. Even if the Court had jurisdiction to hear NACSO’s declaratory action, it can and 

should decline to exercise it in this case 

 As explained above, the government has not waived its sovereign immunity with regard to 

NACSO’s claims, so the Court lacks jurisdiction to hear this case. But even if this Court somehow 

had jurisdiction, it should exercise its discretion under the Declaratory Judgment Act (DJA) and 

decline to exercise any power it may have because entering the declaratory relief that NACSO 

seeks would conflict with the basic purposes of the APA’s statute of limitations.4

 “The Declaratory 

Judgment Act provides that a court ‘may declare the rights and other relations of any interested 

party,’ * * * not that it must do so.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 136 (2007) 

3

 NACSO also invokes 28 U.S.C. § 1331 and Article III of the Constitution. Compl. ¶ 11. 

However, neither constitutes a waiver of sovereign immunity. Harbert v. United States, 206 F. 

App’x 903, 907 (11th Cir. 2006) (§ 1331 does not waive sovereign immunity); Smith v. Goodwin, 

No. CIV 06-1940-PHX-MHM, 2007 WL 9724818 (D. Ariz. July 13, 2007) (Article III does not 

waive sovereign immunity); Gleason v. Dep’t of Homeland Sec., No. 06-CIV-13115 DLC, 2007 

WL 1597955 (S.D.N.Y. June 1, 2007) (same). 

4

 The DJA, 28 U.S.C. §§ 2201-2202, “does not, of itself, confer jurisdiction upon the federal 

courts; a suit brought under the Act must state some independent source of jurisdiction.” Borden 

v. Katzman, 881 F.2d 1035, 1037 (11th Cir. 1989) (citing Skelly Oil Co. v. Phillips Co., 339 U.S. 

667 (1950)). That statute is merely “a remedial arrow in the district court’s quiver.” Wilton v. Seven 

Falls Co., 515 U.S. 277, 288 (1995). 

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(quoting 28 U.S.C. § 2201(a), emphasis in original). It is “an enabling Act, which confers a 

discretion on courts rather than an absolute right upon the litigant.” Wilton v. Seven Falls Co., 515 

U.S. 277, 287 (1995). See also Ameritas Variable Life Ins. Co. v. Roach, 411 F.3d 1328, 1330 

(11th Cir. 2005) (DJA “gives the federal courts competence to make a declaration of rights; it does 

not impose a duty to do so.”). Thus, in declaratory judgment cases, “the normal principle that 

federal courts should adjudicate claims within their jurisdiction yields to considerations of 

practicality and wise judicial administration.” Wilton, 515 U.S. at 286 (emphasis added). This 

means that “district courts possess discretion in determining whether and when to entertain an 

action under the Declaratory Judgment Act, even when the suit otherwise satisfies subject matter 

jurisdictional prerequisites.” Id. at 282; accord Edge Sys. LLC v. Aguila, No. 14-24517, 2015 WL 

6447502, at *5 (S.D. Fla. Oct. 26, 2015). 

 The court’s discretion under the DJA is “substantial,” and “the range of considerations 

available to the district court in deciding whether to entertain the declaratory action is vast.” 

Manuel v. Convergys Corp., 430 F.3d 1132, 1135, 1137-38 (11th Cir. 2005) (cleaned up). The 

court’s decision is “equitable in nature,” and not “rigid” or “mechanical.” Id. at 1135 (citing 

Kerotest Mfg. Co. v. C–O–Two Fire Equip. Co., 342 U.S. 180, 183 (1952)). 

 In this case, a number of factors weigh heavily against entertaining NACSO’s lawsuit. As 

discussed above, the APA’s six-year statute of limitations in 28 U.S.C. § 2401(a) bars NACSO’s 

claims entirely. But even more than that, the concerns animating that statutory prohibition strongly 

counsel against hearing this case. “Statutes of limitations are intended to prevent ‘the revival of 

claims that have been allowed to slumber until evidence has been lost, memories have faded, and 

witnesses have disappeared’.” Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1388 (11th 

Cir. 1998) (en banc) (quoting Order of R.R. Telegraphers v. Railway Express Agency, 321 U.S. 

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342, 348-49 (1944)). They discourage plaintiffs from “sleeping on their rights.” Crown, Cork & 

Seal Co. v. Parker, 462 U.S. 345, 351 (1983). “One of the policies underlying the statute of 

limitations” in APA challenges to rulemaking “is repose.” Harris v. FAA, 353 F.3d 1006, 1013 n.6 

(D.C. Cir. 2004) (quoting Norwest Bank Minnesota Nat’l Ass’n v. FDIC, 312 F.3d 447, 452 (D.C. 

Cir. 2002)). Here, NACSO’s Amended Complaint was filed a quarter century after the TSR was 

promulgated – and nineteen years after the statute of limitations on any facial challenge to that rule 

had expired. Businesses subject to that rule, including credit repair service providers, have since 

adjusted their practices to conform to the terms of the rule. If the passage of so many years does 

not entitle government agencies to the assurance that a rule is safe from facial challenge, 

administrative rulemaking – and business compliance – will be rendered perpetually uncertain, 

and the APA’s statute of limitations would be a dead letter. “Statutes of limitations are not simply 

technicalities,” however; “they have long been respected as fundamental to a well-ordered judicial 

system.” Bd. of Regents of Univ. of State of N. Y. v. Tomanio, 446 U.S. 478, 487 (1980). 

 Moreover, NACSO’s members have a procedurally appropriate means to challenge the 

application of the TSR if and when either the Bureau or the Commission brings an enforcement 

action against one of them. Even after the APA statute of limitations has expired, “when an agency 

seeks to apply the rule, those affected may challenge that application on the grounds that it conflicts 

with the statute from which its authority derives.” Weaver v. Fed. Motor Carrier Safety Admin., 

744 F.3d 142, 145 (D.C. Cir. 2014) (internal citations omitted). See, e.g., CFPB v. Prime Mktg. 

Holdings, No. 16-7111, 2016 WL 10516097, *9 (C.D. Cal. Nov. 15, 2016) (in a CFPB 

enforcement action, the court rejected the argument that the TSR had been superseded by CROA); 

In re National Credit Mgmt. Grp., LLC, 21 F.Supp.2d 424, 459-460 (D.N.J. 1998) (in FTC 

enforcement action, rejecting the argument that the TSR’s payment provisions violate the First 

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Amendment); BCFP v. Commonwealth Equity Gp., LLC, No. 20-cv-10991, ECF 30 (D. Mass. 

Mot. to Dismiss filed Sept. 30, 2020) (defendant raised a challenge to the Commission’s authority 

to promulgate the TSR’s advance-fee prohibition and to the provision’s constitutionality).5 At that 

point, a court may consider any defenses presented, including the legality and propriety of the 

TSR’s advanced-fee prohibition, and the matter can be fully adjudicated. Moreover, when the TSR 

is contested in the context of a particular enforcement action, constitutional questions may well be 

avoided if, for example, the case can be resolved in favor of the service provider on other grounds. 

See, e.g., Bowen v. Michigan Acad. of Family Physicians, 476 U.S. 667, 681 n.12 (1986) (Court’s 

interpretation of Medicare regulation’s statutory basis avoids “serious constitutional question”).6

Because NACSO’s members will have a full opportunity to challenge the TSR in an appropriate 

situation, even if this Court had jurisdiction, it should exercise its discretion and not hear this 

dispute at this time. 

III. Counts II and III of the Amended Complaint fail to state a claim upon which relief 

can be granted 

Although it is not altogether clear, Counts II and III, which name both the Bureau and the 

Commission, appear to challenge not only the Commission’s promulgation of the TSR’s advancefee prohibition, but also efforts by both agencies to enforce that provision. As such, these counts 

5

 It is also possible to challenge the constitutionality of a regulation (or an agency’s authority to 

issue that regulation) if the agency has taken some new final action with respect to the regulation, 

and if this new action affects the particular plaintiff. Dunn-McCampbell Royalty Interest, Inc. v. 

Nat’l Park Serv., 112 F.3d 1283, 1287 (5th Cir. 1997). This exception is, however, inapplicable 

here; the TSR’s advance-fee prohibition has never been amended. 

6

 “[W]here an otherwise acceptable construction of a statute would raise serious constitutional 

problems, the Court will construe the statute to avoid such problems unless such construction is 

plainly contrary to the intent of Congress.” Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. 

& Const. Trades Council, 485 U.S. 568, 575 (1988). 

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should be dismissed not only because the Court lacks subject-matter jurisdiction but also because 

these counts do not identify any final agency action and thus fail to state a claim upon which relief 

can be granted. 

To survive a Rule 12(b)(6) 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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A 

claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 

the reasonable inference that the defendant is liable for the misconduct alleged.” Id. This requires 

more than mere “labels and conclusions, and a formulaic recitation of a cause of action’s 

elements.” Twombly, 550 U.S. at 545. The plaintiff must allege facts that “raise the right to relief 

above the speculative level.” Id. Granting a motion to dismiss is appropriate “when it is 

demonstrated beyond a doubt the plaintiff can prove no set of facts in support of [its] claim that 

would entitle [it] to relief.” Reeves v. DSI Sec. Servs., 331 Fed. App’x 659, 661 (11th Cir. 2009). 

Counts II and III of the Amended Complaint allege that the Bureau and the Commission 

have violated the APA. The APA provides that “final agency action for which there is no other 

adequate remedy in a court [is] subject to judicial review.” 5 U.S.C. § 704. The Supreme Court 

has held that “two conditions must be satisfied” for an agency action to be deemed “final” for 

purposes of judicial review under the APA: “First, the action must mark the consummation of the 

agency’s decisionmaking process,” in the sense that “it must not be of a merely tentative or 

interlocutory nature. And second, the action must be one by which rights or obligations have been 

determined, or from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177-78 

(1997); Canal A Media Holding, LLC v. United States Citizenship & Immigration Servs., 964 F.3d 

1250, 1255 (11th Cir. 2020). 

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Counts II and III appear to challenge not only the promulgation of the TSR’s advance-fee 

prohibition,7 but also efforts that the Bureau and the Commission, have taken, or intend to take, 

to enforce that prohibition against NACSO’s members. See Compl. at page 1, and ¶¶ 3, 38, 49 

(naming just the Bureau), and ¶ 52 (naming Defendants (i.e., both the Bureau and the 

Commission)). To the extent that the counts do, in fact, challenge the agencies’ enforcement 

efforts, they must be dismissed because NACSO has failed to plead factual content sufficient to 

allow this Court to draw a reasonable inference that either the Bureau or the Commission is liable 

for a violation of the APA. Bringing an enforcement action, i.e., filing a complaint, does not 

constitute “final agency action” subject to review under the APA. FTC v. Standard Oil Co. of Cal., 

449 U.S. 232, 239 (1980) (“[t]he Commission’s issuance of its complaint was not ‘final agency 

action.’”); see also First Nat’l Monetary Corp. v. CFTC, 677 F.2d 522, 525 (6th Cir. 1982) (“the 

act of filing a complaint is interlocutory and not ‘final’”). A fortiori the mere intent to file an 

enforcement action is not final agency action. A complaint merely initiates the process of fixing 

the rights and obligations of the parties. Only the final judgment, after the adjudicatory process 

has been completed, would mark the point when plaintiffs’ rights or obligations can be said to 

“have been determined.” Bennett, 520 U.S. at 178. Until then, no “legal consequences will flow.” 

Id. 

Courts routinely hold that the initiation of an enforcement action does not constitute “final” 

agency action that would be judicially reviewable under the APA. See Miss. Chem. Corp. v. EEOC, 

7

 As explained in Part I, this Court lacks subject-matter jurisdiction with respect to NACSO’s 

challenge to the promulgation of the TSR. To the extent that Counts II and III seek to hold the 

Bureau liable for the TSR’s promulgation, those claims against the Bureau should also be 

dismissed pursuant to Rule 12(b)(6) because only the Commission, not the Bureau, has rulemaking 

authority with respect to the TSR. See 15 U.S.C. § 6102(a), (b). 

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786 F.2d 1013, 1019 (11th Cir. 1986); LabMD, Inc. v. FTC, 776 F.3d 1275, 1279 (11th Cir. 2015); 

Beverly Health & Rehab. Servs. v. Feinstein, 103 F.3d 151, 154 (D.C. Cir. 1996). As the Court 

explained in In Standard Oil, the agency’s determination that precedes the issuance of a complaint 

merely represents “a threshold determination that further inquiry is warranted and that a complaint 

should initiate proceedings.” 449 U.S. at 239. Noting that the issuance of the FTC’s complaint 

would have no legal force or effect on Standard Oil’s business, the Supreme Court cautioned that 

judicial review “before adjudication concludes” “is likely to be interference with the proper 

functioning of the agency and a burden for the courts,” and thus “should not be a means of turning 

prosecutor into defendant.” Id. at 242-43. 

Because Counts II and III of NACSO’s Amended Complaint allege that the agencies 

violated the APA but fail to identify any final agency action taken by the Bureau or the 

Commission, those two counts fail to state a claim upon which relief can be granted. Accordingly, 

those counts of the Amended Complaint should be dismissed not just pursuant to Rule 12(b)(1), 

but also pursuant to Rule 12(b)(6). 

 

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CONCLUSION 

 For the reasons set forth above, this Court should dismiss NACSO’s Amended Complaint. 

I certify that, pursuant to Rule 7.1(a)(3) of the Local Rules of this Court, counsel for Defendants, 

the Consumer Financial Protection Bureau and the Federal Trade Commission, have conferred 

with counsel Plaintiff, NACSO Nonprofit Business League Inc., in a good faith effort to resolve 

the issues raised in this Motion and have been unable to do so. 

Dated: December 3, 2020 Respectfully submitted, 

ALDEN F. ABBOTT 

General Counsel 

JOEL MARCUS 

Deputy General Counsel 

/s/ Imad Abyad 

IMAD D. ABYAD 

Attorney 

Phone: 202-326-3579 

Email: iabyad@ftc.gov 

Federal Trade Commission 

600 Pennsylvania Avenue, N.W. 

Washington, DC 20580 

Counsel for Defendant 

FEDERAL TRADE COMMISSION 

MARY McLEOD 

General Counsel 

JOHN R. COLEMAN 

Deputy General Counsel 

LAURA M. HUSSAIN 

Assistant General Counsel 

/s/ Lawrence DeMille-Wagman 

LAWRENCE DEMILLE-WAGMAN 

Senior Litigation Counsel 

Phone: 202-435-7957 

E-mail: Lawrence.DeMille-Wagman@cfpb.gov 

Consumer Financial Protection Bureau 

1700 G Street, N.W. 

Washington, D.C. 20552 

Counsel for Defendant 

CONSUMER FINANCIAL PROTECTION 

BUREAU 

Case 0:20-cv-61010-AHS Document 25 Entered on FLSD Docket 12/03/2020 Page 15 of 15