1 9

- 4271

Lacewell v. Office of the Comptroller of the Currency 

# United States Court of Appeals
**for the Second Circuit**

_____________________________________
August Term 20 20

(Argued: March 9 , 202 1 Decided: June 3, 2021 )

No. 1 9

- 4271

_____________________________________

L INDA A. L ACEWELL
, IN HER OFFICIAL CAPACITY AS S UPERINTENDENT OF THE N EW

Y ORK S TATE D EPARTMENT OF F INANCIAL S ERVICES
,

Plaintiff

- Appellee

,

— v.

—

O FFICE OF T HE C OMPTROLLER O F T HE C URRENCY
, M ICHAEL J. H SU
, IN HIS OFFICIAL

CAPACITY AS A CTING U.S. C OMPTROLLER OF THE C URRENCY
,

Defendant s

- Appellants

. ∗

_____________________________________

Before: L EVAL
, L YNCH
, and B IANCO
, Circuit Judges

.

Plaintiff

- Appellee the Superintendent of the New York State Department of Financial Services (“DFS”) brought this action against D efendants

- Appellants the Office of the Comptroller of the Currency and the U.S. Comptroller of the Currency (together, the “OC C”) to challenge the OCC’s decision to begin

∗ Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting U.S. Comptroller of the Currency Michael J. Hsu is automatically substituted for former U.S. Comptrolle r of the Currency Joseph M. Otting as Defendant

- Appellant.2 accepting applications for special

- purpose national bank (“SPNB”) charters from financial technology companies (“fintechs”) engaged in the “business of banking,” including those that do not accept deposits. DFS asserts that this decision

, and the OCC regulation underlying it

, exceed the OCC’s statutory authority under the

National Bank Act (“NBA ” or the “Act” )

, 12 U.S.C. § 21 et seq. , because, in DFS’s
view, the “bus iness of banking” as used in the NBA requires that national banks

take deposits. The OCC moved to dismiss DFS’s complaint for lack of subject

matter jurisdiction and for failure to state a claim upon which relief could be granted, arguing, inter alia

, that: (1) DFS lacks Article III standing; (2) DFS’s claims

are constitutionally and prudentially unr ipe; and (3) the term “business of banking” in the NBA is ambiguous and the OCC’s interpretation of that term to
include institutions that do not accept deposits is reasonable, such that it is entitled

to Chevron deference. The United States District Court for the Southern District of

New York (Marrero, J. ) denied the OCC’s motion and h e ld

, in relevant part, that

DFS has Article I II standing, that its claims against the OCC are ripe both under

the U.S. Constitution and as a matt er of prudence, and that the OCC exceeded its authority under the NBA because the Act unambiguously requires national banks

to engage in deposit

- taking. After the parties agreed that no further factual development was required in light of these holdings

, the district court entered judgment in favor of DFS, setting aside the OCC’s decision to accept SPNB charter applications from non

- depository fintechs nationwide. We conclude that DFS lacks Article III standing because it failed to allege that the OCC’s decision caused it to suffer an actual or imminent injury in fact, and we find that DFS’s claims are constitutionally unrip e for substantially the same reason.

Accordingly, we REVERSE the amended judgment and REMAND to the

district court with instructions to enter a judgment of dismissal without prejudice.

C HRISTOPHER C ONNOLLY , Assistant

United States Attorney, ( Benjamin H. Torrance, Assistant United States Attorney

, on the brief ), for Audrey
Strauss, United States Attorney for the

Southern District of New York, New York, NY

, for Defendants

- Appellants

.3 B ARBARA D. U NDERWOOD
, Solicitor

General ( Steven C. Wu, Deputy
Solicitor General, Matthew W. Grieco,

Assistant Solicitor General

, on the brief )

, for Letitia James

, Attorney General of

the State of New York , New York, NY

, fo r Plaintiff

- Appellee

. †

J OSEPH F. B IANCO
, Circuit Judge :

Plaintiff

- Appellee the Superintendent of the New York State Department of

Financial Services (“DFS”) brought this action against D efendants

- Appellants the

Office of the Comptroller of the Currency and the U.S. Comptroller of the

Currency (together, the “OC C”) to challenge the OCC’s decision to begin

accepting applications for special

- purpose national bank (“SPNB”) charters from

financial technology companies (“fintechs”) engaged in the “business of banking,”

including those that do not accept deposits. 1 DFS assert s that this decision

, and

the OCC regulation underlying it

, exceed the OCC’s statutory authority under the

† See Appendix A for a list of filings by amici curiae

.

1 For ease of reference , this opinion makes use of the following defined terms: 12 C.F.R. § 5.20(e)(1)(i) (“Section 5.20(e)(1)(i)”) ; the Administrative Procedure Act (“APA”) ; the Comptroller’s Licensing Manual Supplement: Considering Charter Applications from Financial Technology Companies (“Licensing Manual Supplement”) ; the Conference of State Bank Supervisors (“CSBS” ) ; financial technology companies (“fintechs”) ; the National Bank Act (“NBA” or the “Act”) ; the New York State Department of Financial Services (“DFS”) ; the Office of the Comptroller of the Currency and the U.S. Comptroller of the Currency (together, the “ OCC”) ; and special

- purpose national bank (“SPNB”)

.4 National Bank Act (“NBA ” or the “Act” )

, 12 U.S.C. § 21 et seq

. , because, in DFS’s

view, the “business of banking” as used in the NBA requires that national banks

take deposits. The OCC moved to dismiss DFS’s complaint for lack of subject

matter jurisdiction and for failure to state a claim upon which relief could be

granted, arguing, inter alia

, that: (1) DFS lacks Article III standing; (2) DFS’s claims

are con stitutionally and prudentially unripe; and (3) the term “ business of

banking” in the NBA is ambiguous and the OCC’s interpretation of that term to

include institutions that do no t accept deposits is reasonable, such that it is entitled

to Chevron 2 deference. The United States District Cou rt for the Southern District

of New York (Marrero, J. ) denied the OCC’s motion and held, in relevant part, that

DFS has Article III standing, that its claims against the OCC a re ripe both under

the U.S. Constitution and as a matter of pru dence, and that the OCC exceeded its

authority under the NBA because the Act unambiguously requires national banks

to engage in deposit

- taking. After the parties agreed that no further factual

development was required in light of these holdings

, the district court entered

judgment in favor of DFS, setting aside the OCC’s decision to accept SPNB charter

applications from non

- depository fintechs nationwide.

2 See generally Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. , 467 U.S. 837 (1984).5 We conclude that DFS lacks Article III standing because it failed to allege

that the OCC’s decision caused it to suffer an actual or imminent injury in fact, and

we find that DFS’s claims are constitutionally unripe for substantially the same

reason. Accordingly, we REVERSE the amended judgment and REMAND to the

district court with instructions to enter a judgment of dismissal without prejudice.

BACKGROUND

I. T he Dual Banking System

Financial institutions in the United States operate within a “dual banking

system.” Wachovia Bank, N.A. v. Burke , 414 F.3d 305, 314 (2 d Cir. 2005) (“ States

have a legitimate role in regulating certain banking activity, and it is often said

that we have a ‘ dual banking system ’ of federal and state regulation. ”); accord

Watters v. Wachovia Bank, N.A. , 550 U.S. 1, 15 n.7 (2007). Within that system, both

federal and state governments are empowered to charter banks and to regulate the

banks holding their respective charters. Thus, banks with national banking

charters are primarily supervised by federal regulators , and banks with st ate

charters are largely , though not exclusively, subject to state regulation

.

On the federal side, the OCC i s the bureau of the U.S. Department of the

Treasury “ charged with assuring the safety and soundness of, and compliance6 with laws and regulations, fair access to financial services, and fair treatment of

customers by, the [federally

- chartered] institutions and other persons subject to its

jurisdiction

. ” 12 U .S.C. § 1 (a)

. In New York

, DFS is th e state agency responsible

for “the enforcement of [New York ’s] insurance, banking and financial services

laws.” N.Y. Fin. Serv. Law § 102; see also id. § 102(c) (listing one of DFS’s “ goals ”

as “provid[ing] for the ef fective and efficient enforcement of [New York’s] banking

and insurance laws”). Among other duties, DFS is responsible for supervising

more than 200 New York

- licensed state and international banks (with assets of

around $2.5 trillion), as well as approximately 600 non

- bank financial services

companies (with assets of around $1 trillion).

II. Statutory and Regulatory Context

Under the NBA

, the OCC has been grante d the power to charter national

banks. Specifically

, the NBA’s “[c]ertificate of authority to commence banking”

section provides that :

If, upon a careful examination of the facts so reported, and of any other facts which may come to the knowledge of the Comptroller . . . it appears that [an entity applyin g for a federal banking charter] is lawfully entitled to

commence the business of banking , the Comptroller shall give to such association a certificate . . . that such association has complied with all the provisions required to be complied with before commencing the business of7 banking , and that such association is authorized to

commence such business.

12 U.S.C. § 27(a) (emphas e s added). Although the term the “ business of banking”

is not defined in the NBA, the Act does specify that o nce a ba nk receives a federal

charter

— and thereby becomes a national bank

—

it shall have power

. . . Seventh [, ] [t] o exercise . . . all such incidental powers as shall be necessary to carry on the business of banking ; by discounting and negotiating promissory notes, drafts, bills of exchange, and other
evidences of debt; by receiving deposits ; by buying and selling exchange, coin, and bullion; by loaning money on personal security ; and by obtaining, issuing, and circulating notes

. . . .

Id. § 24(Seventh) (emphasis added)

.

In 2003, the OCC amended one of its regulations to give itself the ability to

issue SPNB charters. 3 See Rules, Policies, and Procedures for Corporate Activities;

Bank Activities and Operations; Real Estate Lending and Appraisals, 68 Fed. Reg.

70,122, 70,126 (Dec. 17, 2003)

. Specifically, the amended regulation provide s :

The OCC charters a national bank under the authority of the National Bank Act of 1864 . . . . The bank may be a special purpose bank that limits its activities to fiduciary activities or to any other activities within the business of

3 An SPNB , in this context, is a “national bank that engages in a limited range of banking activities, including one of the core banking functions [ i.e. , paying checks or lending money], but do es not take deposits and is not insured by the Federal Deposit Insurance Corporation (FDIC).” Joint App’x at 120.8 banking. A special p urpose bank that conducts activities other than fiduciary activities must conduct at least one of the following three core banking functions: Receiving deposits; paying checks; or lending money.

12 C.F.R. § 5.20(e)(1)(i) (“Section 5.20(e)(1)(i) ”) (emphasis added). By that

amendment

, the OCC expressly pronounced that it had the authority to issue

national bank charters to institutions that do not receive deposits f or the first time

since the NBA was enacted in 1864

. 4

DFS alleges that

, in Ma rch 2016

, the OCC first contemplated issuing SPNB

charters to non

- depository fintechs 5 and released a white paper wherein it

“ident i fie[d] the impact of fast

- paced developments in financial services

technology as a much needed s ubject of regulatory inquiry.” Joint App’x at 19. I t

then started the lengthy process of determining whether to issue SPNB charters to

non

- depository fintechs. More specifically, the OCC began by releas ing an

4 Both DFS and the OCC note that the OCC has yet to grant a federal charter to a non

depository financial institution of any kind pursuant to its authority under

Section 5.20(e)(1)(i)

.

5 The OCC describes fintechs as “thousands of technology

- driven nonbank companies offering a new approach to products and services . . . . Fintech companies vary widely in

their business models and product offerings. Some are marketplace lenders providing
loans to consumers and small businesses, others offer payment

- related services, others engage in digital currencies and distributed ledger technology, and still others provide

financial planning and wealth management products and services.” OCC Br. at 7 n.1 (quoting J oint App’x at 47

– 48).9 additional white paper in December 2016 titled “Exploring Special Purpose

National Bank Charters for Fintech Companies, ” id. at 19

– 20

, 46

, which noted that

“[a] q uestion raised by technological advances in financial services and evolving

customer preferences is whether it would be appropriate for the OCC to consider

granting a special purpose national ba nk charter to a fintech company , ” i d. at 48.

The OCC also stated that its ability to grant SPNB charters to fintechs would be

based upon Section 5.20(e)(1)(i)

, which

, as mentioned supra , does not require

deposit

- taking. Further, it pointed out that “[s] tate law applies to a special

purpose national bank in the same way and to the same extent as it applies to a

full

- service national bank ,” noting that “[e] xamples of state laws that would

generally apply to national banks include state laws on anti

- discrimination, fair

lending, [and] debt collection, ” among others. Id. at 51.

Thereafter

, the OCC received and

, i n March 2017, responded to comments

from DFS and other interested parties concerning its plan to grant SPNB charters

to fintechs

— including those that did not receive deposits

— set forth in its

December 2016 white p aper

. In response to criticism that this plan exceeded the

OCC’s statutory authority under the NBA insofar as it enabled the OCC to grant

SPNB charters to non

- depository institutions, the OCC asse rted that “[t] he [NBA]10 does not require that a bank take deposits in order to be engaged in the ‘business

of banking.’ Rather, under the Act, performing only one of [ either accepting

deposits, paying checks, or lending money] is sufficient to be perf orming [the] core

banking functions ” required by Section 5.20(e)(1)(i)

. Id

. at 132

– 33. 6

O n July 31, 2018, the OCC announced its final decision to accept applications

from

— and grant SPNB charters to

— fintechs, including those that do not rece ive

deposits, pursuant to Section 5.20(e)(1)(i) (the “Fintech Charter Decision”)

. In the

press release announcing its decision

, the OCC stated that “it [would] begin

accepting applications for national bank charters from nondepository financial

te chnology (fintech) companies engaged in the business of banking.” Id. at 165

.

That same day, the OCC also published a “Policy Statement on Financial

Technology Companies’ Eligibility to Appl y for National Bank Charters

, ” id. at 23,

167

– 70, and the “Comptroller’s Licensing Manual Supplement: Considering

Charter Applications from Financial Technology Companies” (“Licensing Manual

Supplement ”)

, id. at 23

– 24, 172

– 91

. T he policy statement made clear that the

OCC’s intent was to begin accepting SPNB charter application s from non

6 In March 2017, the OCC also rele ased a draft supplement to the Comptroller’s Licensing Manual titled “Evaluating Charter Applications [f]rom Financial Technology Companies,” id. at 22

– 23, 135, regarding which DFS sent an opposition letter, again contending that the OCC’s plan exceeded it s statutory authority under the NBA.11 depository fintechs. See id. at 167 (“ It is the policy of the Office of the Comptroller

of the Cur rency (OCC) to consider applications for national bank charters from

companies conducting the bus iness of banking, provided they meet the

requirements and standards for obtaining a charter. This policy includes

considering applications for special purpose national bank charters from financial

technology (fintech) companies that are engaged in the business of banking but do

not take depo sits

. ” (emphasis added)). DFS further alleges that, following the

Fintech Charter Decision, the OCC “immediately invited

. . . Fintech startup

companies to come to [its] office in New York to discuss

. . . the new [SPNB]

charter.” Joint App’x at 24. In response to the Fintech Charter Decision, DFS

brought this action in September 2018.

III. Procedural History

A. The Instant Action

Following the July 2018 Fintech Charter Decision, DFS filed the complaint

against the OCC at issue in this appeal in the Southern District of New York on

September 14, 2018. 7 As relevant here, DFS assert ed t hat (1 ) the Fintech Charter

7 Before filing the instant action (and over a year before the OCC’s Fintech Charter Decision became final), DFS filed a separate action against the OCC in the United States

District Court for the Southern District of New York in May 2017, asserting, inter alia , that12 Decision exceeded the OCC’s authority under the NBA because it permits the OCC

to grant SPNB charter s to institutions that do not accept deposits and

(2) Section 5.20(e)(1)(i) is null and void for that same reason

. 8 Although it was not

clear from the face of the complaint, the district court interpreted these claims as

the OCC lacked the authority under the NBA to issue SPNB charters to non

- depository

fintechs and that Section 5.20(e)(1)(i) “is null and void because it exceeds the OCC’s authority under the NBA .” Vullo v. Off. of the Comptroller of the Currency ( Vullo I ), No. 17

-

c v

- 3574 (NRB), 2017 WL 6512245, at *4 (S.D.N.Y. Dec. 12, 2017). After the OCC moved to dismiss the complaint for lack of subject matter jurisdiction, the dist rict court found that, far from receiving and reviewing SPNB charter applications from non

- depository fintechs (let alone granting such applications), the OCC “ha[d] not yet determined whether it [would] issue SPNB charters to fintech companies” at all. I d. at *5. Accordingly, the district court dismissed DFS’s complaint without prejudice on the grounds that DFS had not suffered an injury in fact sufficient to confer Article III standing and that the claims against the OCC were not yet constitutionally or prudentially ripe.

See id. at *7

– 10. With respect to standing, the court determined that DFS’s asserted injuries, which included, among other things, that New York

- chartered institutions seeking and receiving federal SPNB charters would thereby “escape New York’s regulatory requirements, stripping their customers of the protections of New York State law,” “[would] only become sufficiently imminent to confer standing once the OCC makes a final determination that it will issue SPNB charters to fintech comp anies.” Id. at

*7. In relation to constitutional ripeness, the court held that, because “constitutional ripeness is a subset of the injury

- in

- fact element of Article III standing, our constitutional ripeness analysis here is coterminous with our standing analysis.” Id. at *8.

8 With respect to DFS’s second claim, the district court clarified that, although the claim was phrased as a facial challenge of Section 5.20(e)(1)(i) in the complaint, it read that claim as challenging “only . . . so much of the [ r]egulation as purports to authorize [the] OCC

to issue SPNB charters to non

- depository institutions.” Joint App’x at 230 n.5

.13 arising under Section 702 of the Administrative Procedure Act (“APA”)

, 5 U.S.C.

§ 70 1 et seq

. 9

The OCC subsequently moved to dismiss the complaint for lack of subject

matter jurisdiction an d for failure to state a claim upon which relief could be

granted

, pursuant t o Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6),

respectively

. It first contended that DFS lack s Article III standing to pursue its

claims and that the dispute is not yet constitutionally or prudentially ripe for

adjudication. As to the merits, the OCC argued that t he statutory term the

“business of banking” in the NBA is ambiguous and that, therefore, its

interpretation of the term to encompass entities that do not accept deposits

—

including non

- depository fintech s

— pursuant to Section 5.20(e)(1)(i) warrants

Chevron deference

.

The district court denied the OCC’s motion to dismiss as it related to the

justiciability and Chevron issues now on appeal. With respect to standing, the court

noted that “DFS alleges two distinct harms that follow from OCC’s actions,” the

first being that “New York citizens will suffer by losing critical financial

9 In its complaint, DFS also alleged that the Fintech Charter Decision violated the Tenth
Amendment. However, the district cou rt granted the OCC’s motion to dismiss as to that claim, and DFS does not challenge that decision on appeal.14 protection s that New York banking law and regulatory oversight currently

provide s [

, ]” and more specifically “ that the removal of state regulations impacts

[DFS’s] regulati on of non

- depository money transmitters, of payday lenders and

their usurious trade, as well as of the state’s safety and soundness standards for

non

- depository institutions.” Joint App’x at 246

– 47 (internal quotation marks

omitted). The second alleged harm identified b y the district court was that DFS

would “suffer direct economic harm because its operating expenses are funded by

assessments levied by the agency upon New York State licensed institutions and

the Fintech Charter Decision will deprive DFS of the revenues from future

assessments.” Id. at 247 (internal q uotation marks omitted). The district court

concluded that DFS ha s standing to bring its APA claims against the OCC

, noting

that “[t]hese alleged threats to New York and DFS implicate the type of sovereign

and direct interests common in cases where states have standing to contest agency

action.” Id. (footnote omitted). Moreover

, t he district court held that DFS’s claims

are constitutionally ripe for review because DFS had sufficiently alleged that the

OCC’s execution of the Fintech Charter Decision was imminent and that there was

a substantial risk that the OCC could gra nt a n SPNB charter to a non

- depository

fintech at any time, thereby injuring DFS.15 With respect to DFS’s claims under the APA, the district court concluded

that the term the “business of banking” in the NBA unambiguously requires

federally chartered institutions to accept deposits. In reaching th at conclusion, the

district court found that the NBA’s text, statutory framework, and legislative

history, as well as the history of federal banking law and the fact that the OCC

only gave itself charting power over non

- depository institutions in 2003

, all

counseled in favor of finding that the receipt of deposits is clearly indispensable

to the “business of banking.” Accordingly, the district court determined that it di d

not need to reach the second step of the Chevron analysis and denied the OCC’s

motion to dismiss as to DF S’s APA claims.

Following the district court’s decision and order on the OCC’s motion to

dismiss, the parties agreed that th e court had “resolv e[d] the substantive legal

issues in this matter [,]

. . . render[ ing ] the entry of final judgment appropriate.” Id.

at 301. Notwithstanding the OCC’s request for vacatur limited to non

- depository

fintechs “that have a nexus to New York State,” id. at 293, the district court set

aside Section 5.20(e)(1)(i) “with respect to all fintech applicants seeking a national

bank charter that do not accept deposits,” regardless of their location in the United16 States, id. at 301 (emphasis added). After the district court entered its amended

judgment

, the OCC timely appealed.

B. Similar Actions in the District of Columbia

The Conference of State Bank Supervisors (“CSBS”)

— which filed an amicus

brief in connection with this appeal

— separately has filed similar lawsuits against

the OCC in the United States District Court for the District of Columbia. In

Conference of State Bank Supervisors v. Office of the Comptroller of the Currency ( CSBS

I ), CSBS

— like DFS

— brought a pre

- Fintech Charter Decision suit against the OCC,

alleg ing that it lacked the authority to grant SPNB charters to non

- depository

fintechs. See 313 F. Supp. 3d 285

, 29 1

– 93 (D.D.C. 2018)

. The district court

dismissed the complaint for lack of standing, holding

, like the court in Vullo I

, that

CSBS had not alleged a sufficient injury in fact given that each of the harms alleged

were “contingent on whether the OCC charters a Fintech

, ” i d. at 295

– 96

, and that

CSBS’s claims were constitutionally unripe for that same reason, id. at 299 ; see also

id. at 296 (“ 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; and17 (4) the OCC must decide to grant the charter to the particular Fintech. When the

compl aint was filed, not even the first step

— finalized procedures

— had

occurred .”)

.

Again like DFS, CSBS filed another suit against the OCC after it issued its

July 2018 Fintech Charter Decision. See Conf. of State Bank Supervisors v. Off. of the

Comptroller of the Currency ( CSBS II ), No. 18

- cv

- 2449 (DLF)

, 2019 WL 419454 1

, at *1

(D.D.C. Sept. 3, 2019). Unlike DFS, however, CSBS fared no better the second time

around. Specifically, the district court found, for substantial ly the same reasons

set forth in CSB S I

, that CSBS lacked standing and that the dispute was not ripe for

judicial review

. See id. at *1

– 3. 10

DISCUSSION

On appeal, the OCC contends that the district court erred in denying in part

its motion to dismis s DFS’s complaint . Specifically, it argues that the district court

erred in holding that: (1) DFS ha s Article III standing to pursue its APA claims and

10 We note that, after briefing for this appeal was completed, CSBS again sued the OCC
in the District of Columbia on December 22, 2020 in connecti on with the Fintech Charter Decision. CSBS has now added to its complaint the fact that Figure Technologies Inc.

— a fintech that the OCC allegedly has determined does accept deposits but will not be required to obtain deposit insurance from the Federal Dep osit Insurance Corporation

— applied to the OCC for an SPNB charter

. See Complaint at 2, 6

, Conf. of State Bank Supervisors v. Off. of the Comptroller of the Currency ( CSBS III ), 20

- cv

- 3797 ( DLF ) (D.D.C. Dec. 22, 2020), ECF No. 1

. The OCC’s motion to dismiss the complaint is pending.18 that those claims are constitutionally and prudentially ripe for adjudication; (2) the

OCC’s decision to accept SPNB charter applications from non

- depository fintechs

is not entitled to Chevron deference because the “ business of banking” under the

NBA unam biguously requires the receipt of deposits; and (3) Section 5.20(e)(1)(i)

should be vacated as applied to non

- depository fintechs without any geographical

limitation

. As discussed below, we find that DFS lacks Article III standing and

that its APA claims are constitutionally un ripe because no non

- depository fintech

has filed a formal SPNB charter application, nor is it known whether such an

application will be granted if filed

. 11 Accordingly, we need not reach the OCC’s

other claims of error.

I. Standard of Review

In this case, the OCC brought a “facial”

— as opposed to a “fact

- based”

—

standing challenge under Rule 12(b)(1) because its motion was “ based solely on

the allegations of the complaint . . . and exhibits attached to it .” Carter v. HealthPort

11 At various points in its appellate brief s , the OCC suggests that DFS’s claims may not become justiciable even when a non

- depository fintech formally applies for a n SPNB
charter, but rather that DFS may need to wait to bring its claims until after the OCC grants

such a n application

. We do not decide the precise point at which DFS’s claims may become justiciable in the future. Instead, we limit our analysis to the facts currently before us and conclude that at this juncture, where there is no formal application from a

non

- depository fintech for an SPNB charter , DFS does not satisfy the requirements for Article III standing, nor are its claims constitutionally ripe.19 Techs., LLC , 822 F.3d 47, 56 (2d Cir. 2016)

. “[W] e review the district court ’ s decision

on such a facial challenge de novo

. ” Id. ; accord Sonterra Cap. Master Fund Ltd. v. UBS

AG , 954 F.3d 529, 533 (2d Cir. 2020). In doing so, we “ accep t[] as true all material

factual allegations of the complaint, and draw [] all reasonable inferences in favor

of the plaintiff. ” Sonterra Cap. Master Fund Ltd. , 954 F.3d at 533 (internal quotation

marks omitted). Additionally , “ the plaintiff has no evidentiary burden ” when

confronted with a facial standing challenge. Carter , 822 F.3d at 56.

As with its standing determination , a district court’s conclusion as to

ripeness “ is also a legal determination subject to de novo review .” Connecticut v.

Duncan , 612 F.3d 107, 112 (2d Cir. 2010) ; accord Murphy v. New Milford Zoning

Comm’n , 402 F.3d 342, 347 (2d Cir. 2005)

.

II. Article III Standing

At the threshold, t he OCC argues that DFS cannot establish Article III

standing because it has not alleged that it suffered , or will suffer imminently, an

injury in fact as a result of the OCC’s Fintech Charter Decision.

Under Article III of the U.S. Constitution, “[t]he judicial Power o f the United

States” extends only to certain “Cases” and “Controversies.” U.S. Const. art. III,

§ § 1

– 2; see als o Raines v. Byrd , 521 U.S. 811, 818 (1997) (“ No principle is more20 fundamental to the judiciary ’ s proper role in our system of government than the

constitutional limitation of federal

- court jurisdiction to actual cases or

controversies. ” (internal quotation marks omitted))

. To satisfy the Constitution’s

“case

- or

- controversy requirement,” a plaintiff in federal court “must establi sh that

they have standing to sue.” Clapper v. Amnesty Int’l USA , 568 U.S. 398, 408 (2013)

(quoting Raines , 521 U.S. at 818). “T he law of Article III standing, which is built on

separation

- of

- powers principles, serves to prevent the judicial process from being

used to usurp the powers of the political branches. ” Id.

The requirements of Article III standing are well established : “ [ A ] plaintiff

must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged

conduct of the defendant, and (3) that is likely to be redressed by a favorable

judicial decision.” Spokeo, Inc. v. Robins , 136 S. Ct. 1540, 1547 (2016). DFS, “ as the

party invoking federal jurisdiction, bears the burden of establishing these

elements. ” Id. (“ Where, as here, a case is at the pleading stage, the plaintiff must

‘ clearly

. . . allege facts demonstrating ’ each element. ” (quoting Warth v. Seldi n , 422

U.S. 490, 518 (1975)). Because DFS fails to establish “ the ‘ [f]irst and foremost ’ of

standing ’ s three elements ”

— injury in fact

, id. (alteration in original) (quoting Steel21 Co. v. Citizens for a Better Env’t , 523 U.S. 83

, 103 (1998))

— we need not address

traceability or redressability.

“[T]he injury

- in

- fact requirement [] . . . helps to ensure that the plaintiff has

a personal stake in the outcome of the controversy.” Susan B. Anthony List v.

Driehaus , 573 U.S. 149, 158 (2014) (internal quotation marks omitted). For purposes

of Article III standing, an “injury in fact” is “an invasion of a legally protected

interest which is (a) concrete and particularized[] and (b) actual or imminent, not

conjectural or hypothetical.” Lujan v . Defs

. of Wildlife , 504 U.S. 555, 560 (1992)

(footnote, citations, and internal quotation marks omitted) ; accord Clapper , 568 U.S.

at 409 ; Sonterra Cap. Master Fund Ltd. , 954 F.3d at 534 . “An allegation of future

injury may suffice if the threatened inju ry is ‘certainly impending,’ or there is a

‘“substantial risk” that the harm will occur.’” Driehaus , 573 U.S. at 158 (quoting

Clapper , 568 U.S. at 414 & n.5) ; accord Chevron Corp. v. Donziger , 833 F.3d 74, 121 (2d

Cir. 2016) ; see also Clapper , 568 U.S. at 410 (finding an “objectively reasonable

likelihood” of future harm to be an improper standard for showing a “threatened

injury [is] certainly impending” (internal quotation marks omitted ))

. Importantly,

h owever, “ allegations of possible future inj ury are not sufficient .” Clapper , 568 U.S.

at 409 (alteration and internal quotation marks omitted) (“ Although imminence is22 concededly a somewhat elastic concept, it cannot be stretched beyond its purpose,

which is to ensure that the alleged injury is not too speculative for Article III

purposes

. . . . ” (internal quotation marks omitted) )

.

DFS allege s that it will suffer two classes of injuries as a result of the OCC’s

actions. First, it asserts that the Fintech Charter Decision will lead to the

preem ption of state law and thereby reduce DFS ’s regulatory power , to the

detriment of New York consumers . Second, it argues that it faces the prospect of

losing revenue from assessments it currently levies against non

- depository

fintechs, which may opt to convert to a federal SPNB charter. 12 Each of these

alleged injuries is discussed below in turn.

A. Preemption and Regulatory Disruption

In asserting that it has standing, DFS does not argue that it has already

suffered any sort of injury as a result of the OCC’s actions. Instead, it contends

that there is a substantial risk that the Fintech Charter Decision will enable non

depository fintechs with SPNB charters that would otherwise be subject to its

regulatory jurisdiction to escape enforcement by claim ing federal preemption

.

DFS’s logic is as follows: U nder the dual banking system, states have heretofore

12 Under federal law, state

- chartered institutions may convert into national banks, provided that they meet certain requirements. See 12 U.S.C. § 35.23 regulated non

- depository institutions. Thus, if any New York

- chartered, non

depository fintech converts to

— or any ne w non

- depository fintech seeking to do

business in New York applies for

— a n SPNB charter pursuant to the Fintech

Charter Decision, it will, in DFS’s view, claim federal preemption in response to

any DFS

- initiated regulatory action

.

DFS further alleges that this alleged preemption , will, inter alia , “ weaken []

regulatory controls on usury, payday loans, and other predatory lending

practices ” and thereby harm New York , as well as the consumers and businesses

that reside there. Joint App’x at 11. In particula r, DFS contends that non

depository fintechs with federal SPNB charters will “escape ” New York’s

“ bonding requirements, liquidity and capitalization standards, and [certain]

payment obligations ” meant “to protect consumers against loss in the event that

su ch an institution fails .” Id. at 25. Relatedly , DFS asserts that “ the Fintech Charter

Decision effectively negates New York’s strict interest

- rate caps and anti

- usury

laws ” because , under federal law, national banks are subject to the interest

- rate

laws of the jurisdiction in which they are “located

. ” Id. at 26 (quoting 12 U.S.C.

§ 85)

. Thus, according to DFS, “ under the Fintech Charter [D] ecision, marketplace

lenders that use the Internet can now gouge New York borrowers by receiving an24 OCC special purpose charter and locating in any number of other states that

authorize interest rates considered usurious in New York. ” Id.

The district court determined that the alleged threat of federal preemption

and subsequent regulatory harm was sufficient to confer Article III standing

because New York’s “ comprehensive regulatory system for non

- depository

fintech companies ” is “allegedly threatened by” the OCC’s Fintech Charter

Decis ion. Id. at 247 (“ These alleged t hreats to New York and DFS implicate the

type of sovereign and direct interests common in cases where states have standing

to contest agency action. ” (footnote omitted)). We disagree. 13

13 Although not relied upon by DFS on appeal, the district court also determined that

DFS’s APA claims “fall within the parens patriae framework of standing.” Joint App’x at

248. Parens patriae standing allows a state (in its capacity as a sovereign) to bring suit on behalf of its citizens when it “allege[s] injury to a sufficiently substantial segment of its population,” “articulate[s] an interest apart from the interests of particular private parties,” and “express[es] a quasi

- sovereign interest.” Alfred L. Snapp & Son , Inc. v. Puerto

Rico ex rel. Barez , 458 U.S. 592, 607 (1982). The ability of a state to sue the federal government under this doctrine of standing is subject to continuing judicial debate. See Connecticut v. U.S. Dep’t of Com

. , 204 F.3d 413, 414 n.2 (2d Cir. 2000) (declining to address the issue); see also Ariz

. Sta te Legislature v. Ariz

. Indep

. Redistricting Comm’n , 576 U.S. 787, 802 n.10 (2015) (noting that the cases relating to “standing of states to sue the federal government[,]” including those addressing parens patriae standing, “are hard to reconcile” (interna l quotation marks omitted) ) . However, we need not delve into this complex threshold question because, even assuming parens patriae standing could apply here, New York residents (like the state itself) lack a concrete or imminent harm stemming from the OCC ’s Fintech Charter D ecision and that same lack of harm at this juncture prevents DFS from relying on this doctrine to establish parens patriae standing

under Snapp

. See, e.g.

, Table Bluff R srv. (Wiyot Tribe) v. Philip Morris, Inc. , 256 F.3d 879, 88525 As an initial matter, insofar as DF S is relying on the “substantial risk” test

for Article III standing articulated in Driehaus and Clapper

, we find DFS’s asserted

risk of regulatory injury to be too speculative to meet the requirements of Article

III. At this time, no non

- depository fintech has applied for

— let alone been

granted

— an SPNB charter

, and , a s DFS concedes, no state law or regulation has

been preempted as a result of the Fintech Charter Decision . Thus, there is

currently no non

- depository fintech that can claim federal preemption engaging

in any practice that may give rise to the regulatory harms that DFS alleges, such

as charging interest rates that exceed New York’s statutory cap. Moreover, the

Fintech Charter Decision merely indicates that the OCC inten ds to begin accepting

SPNB charter applications from non

- depository fintechs; it is not a guarantee that

those applications will be granted. As was the case before the Fintech Charter

Decision was made final

, “[a]ny allegation of preemption at this point relies on

speculation about the OCC’s future actions

. ” Vullo I , 2017 WL 6512245, at *8 ; see

also CSBS I

, 313 F. Supp. 3d at 298 (“[No] state law has been preempted by the

(9th Cir. 2001) (holding that “[the sovereign] still must allege injury in fact to the citizens they purport to represent as parens patriae ”); accord Utah Div. of Consumer Prot

. v. Stevens

, 398 F. Supp. 3d 1139, 1145 (D. Utah 2019) (“[A]s a matter of logi c, it is clear enough that the mere assertion of a state interest, untethered from injury to the State’s citizens, cannot
support parens patriae standing

— even if that interest might qualify as a quasi

- sovereign interest if accompanied by such injury.”).26 OCC’s preliminary activities respecting Fintech charters .”)

. In short, before any

n on

- depository fintech that engages in the types of business practices about which

DFS is concerned applies for or receives an SPNB charter, there will be no requisite

“imminent” injury to DFS. 14 Luja n , 504 U.S. 560 ; accord Clapper , 568 U.S. at 406

,

40 9

– 1 4 ( finding plaintiffs

— a group that included “ attorneys and human rights,

labor, legal, and media organizations ”

— failed to establish Article III standing to

challenge a statute permitting the foreign surveillance of individuals other than

“United States persons” where plaintiffs contended that their own

communications could be intercepted by the U.S. government under the statute

based upon “ a highly attenuated chain of possibilities ”). For the same reasons,

there is not , at this time, a sufficiently “substantial risk” that such injury will occur.

Driehaus , 573 U.S. at 158 (quoting Clapper , 568 U.S. at 414 n.5)

.

14 In its brief on appeal, DFS argued that it “will be forced to incur regulatory costs before any issuance of a charter” because it will need “to complete enforcement actions before a fintech company can seek immunity from OCC, and to monitor fintechs natio nwide for potential incursion into the New York marketplace.” DFS Br. at 28. As a threshold

matter, DFS failed to raise this issue below. See Spinelli v. Nat’l Football League , 903 F.3d

185

, 198 (2d Cir. 2018) (“The well

- established general rule is that an appellate court will not consider an issue raised for the first time on appeal.” ( alteration and internal quotation marks omitted)). But even if it were properly raised , we note that counsel for DFS conceded at oral argument that DFS still has yet to incur these costs

, despite alleging that the OCC had already begun processing draft applications when the district court judgment was entered, thus demonstrating that these costs

— like the other costs DFS alleges it will incu r

— are too speculative at this stage to support standing

.27 Moreover, even if the OCC grants an SPNB charter to s ome non

- depository

fintech, it is not entirely clear that the regulatory disruption that DFS fears will

actually occur

. Indeed

, DFS’s purported standing on the basis of preemption and

regulatory injury is undermined by its own complaint, which repeatedly couches

this alleged injury in conditional or future

- oriented terms. For example, DFS

alleges that: “federal preemption claims will surely proliferate among fintech

charter

- holders in response to New York misconduct charges,” Joint App’x at 25

(emphasis added); “ New York

- licensed money transmitters

. . . could qualify for an

[SPNB] charter and thereby escape New York’s regulatory requirements,” id.

(emphasis added); and the Fintech Charter Decision “ could realistically lead in New

York to the proliferation of prohibited payday lending by out

- of

- state OCC

c hartered entities,” id. at 26 (emphasis added). DFS also undercuts its own claimed

standing

, admit ting that “the full scope of regulatory disruption is difficult to

ascertain” because the class of fintechs to which the OCC will ultimately grant

SPNB chart ers is uncertain. Id. at 25.

Although no non

- depository fintech has filed a formal application for an

SPNB charter

, DFS urges us to assume that the OCC will grant one imminently.

In its brief on appeal, for instance, DFS points to evidence that the OCC has28 actively solicited SPNB charter applications from non

- depository fintechs and that

a former Comptroller of the Currency suggested that there were multiple entities

“going through the [SPNB charter ] application process” prior to the district court’s

de cision in this case denying in part the OCC’s motion to dismiss. DFS Br. at 19

–

20 (internal quotation marks omitted)

. In DFS’s view, these developments suggest

that its alleged regulatory injuries are sufficiently imminent. We disagree,

however, because the mere act of welcoming SPNB charter applications from non

depository fintechs does little to show that the OCC is on the verge of granting

those application s imminently or at all (or even that one will necessarily be filed)

.

Consequently, DFS’s concer n about preemption and its regulatory fallout is too

speculative. 15

15 Although the district court noted that “DFS benefits from the supposition that the government enforces and acts on its recent, non

- moribund laws,” Joint App’x at 249 (citing Hedges v. Obama , 724 F.3d 170 , 197 (2d Cir. 201 3)), that supposition does not alter the standing analysis here. In Hedges , this Court assessed, inter alia , whether certain non

citizens had Article III standing to challenge a provision of the National Defense Authorization Act purporting to authorize t he U.S. President to detain any person

associate d with certain terrorist activities. 724 F.3d at 182, 193

– 94. In that context, we stated that plaintiffs seemed to face a more “forgiving” standing inquiry before the Supreme Court when bringing a pre

- enfor cement challenge of a statute proscribing certain conduct, in part, because of the Court’s apparent “willing[ness] to presume that the government will enforce the law as long as the relevant statute is recent and not

moribund.” Id. at 197 (internal quotat ion marks omitted). This presumption is of no moment here, however, because the Fintech Charter Decision proscribes nothing and it does not even apply directly to DFS. See Lujan

, 504 U.S. at 562 (“[W]hen the plaintiff is29 Furthermore , at oral argument, DFS asserted that, in light of certain

statements by former Comptrollers of the Currency to the effect that applications

for SPNB charters were in process, the OCC must have been in preliminary

discussions with

— and received draft SPNB charter applications from

— non

depository fintechs, such that any ultimate grant of such a charter would occur

very soon after a formal application is filed. To be s ure, the OCC’s Licensing

Manual Supplement includes a “prefiling phase,” during which a fintech that

considers applying for an SPNB charter can engage with OCC staff regarding the

application process, discuss any potential issues concerning the business plan at

issue, and, if necessary, submit a draft application. Joint App’x at 176

– 77. But

contrary to DFS’s view, the possibility that some unidentified non

- depository

fintechs were in initial discussions with the OCC about applying for an SPNB

charter prior to the district court’s decision in this case , or that those fintechs had

submitted dr aft applications for such a charter, does not render the granting of an

SPNB charter to a non

- depository fintech, much less DFS’s asserted preemption

related injuries, actual or imminent ; ra ther, it only makes those events somewhat

not [it]self the object of the go vernment action or inaction [it] challenges, standing is not precluded, but it is ordinarily substantially more difficult to establish.” (internal quotation marks omitted) ).30 more “ possible

. ” Clapper

, 568 U.S. at 409 (noting that “allegations of possible future

injury are not sufficient” to establish Article III standing (alteration and internal

quotation marks omitted)). 16 Indeed, the Licensing Manual Supplement itself

provides that “[f]iling a draft applicatio n does not guarantee that the OCC will

approv e a formal application

, ” Joint App’x at 177 n.11

, and DFS ignores the fact

that applicants are, by regulation

, required t o publish notice of formal SPNB

charter applications and that the OCC must then provide a thirty

- day public

comment period, see id. at 178 & n n

. 12

– 13.

The district court and DFS stress that DFS, as a state

- agency plaintiff, is

owed “special solicitude” when a ssessing Article III standing. Massachusetts v.

EPA

, 549 U.S. 497, 520 (2007). In finding that DFS lacks standing, however, we do

not cast doubt on this principle because it does not absolve a state or state

- agency

16 We are also unmoved by developments that have occurred since the briefs in this appeal were filed. In its Federal Rule of Appellate Procedure 28(j) letter dated September
4, 2020, DFS informed the court that Politico had reported that the then

- Acting Comptroller of the Currency had indicated in an interview that the OCC “[would] be ready as soon as [September 1, 2020] to start processing applications for charters from payments companies.” DFS Rule 28(j) Letter at 1 (Sept. 4, 2020), ECF. No. 103. DFS contends that the reported statement demonstrates that it is in no way “speculative ” that the OCC “will exercise [its challenged] chartering authority.” Id. at 2. Even if we were to agree that this statement constituted evidence that the OCC is now more eager to accept SPNB charter applications, it does not establish that non

- depositor y fintechs are any more likely to now submit such applications or have such applications granted imminently

.31 pl aintiff from the constitutional requirement that it establish a sufficiently

“concrete, particularized, and

. . . imminent” injury in fact. Clapper

, 568 U.S. at 409

(internal qu otation marks omitted) ; see Del. Dep’t of Nat. Res. & Env’t Control v. Fed.

Energy Regul. Comm’n , 558 F.3d 575, 579 n.6 (D.C. Cir. 2009) (“ This special

solicitude does not eliminate the state petitioner ’ s obligation to establish a concrete

injury, as [ Massachusetts v. EPA ] amply indicates

. ”). Additionally, we note that the

considerations in Massachusetts v. EPA were quite different from those presented

in this case . In particular, there

, Massachusetts had experienced an actual injury

in fact

— namely, “ rising seas ha [d] already begun to swallow Massachusetts ’

coastal land ,” Massachusetts v. EPA , 549 U.S. at 522, whereas here, DFS has not

suffered any actual injury, and the future injuries it fears will only occur if , at least,

an application for a n SPNB charter is filed by a non

- depository fintech and the

OCC decides to grant that application

.

Furthermore, we find the cases upon which DFS relies for the proposition

that “[a]gency action that expands the preemptive scope of an existing federal

statute causes a cognizable injury to [ s ] tates

, ” DFS Br. at 31, to be factually

inapposite to the circumstances here because the preemptive effect of the new

federal law, regulation, or policy at issue in those cases was direct and immediate

.32 For instance, Wyoming ex rel. Crank v. United States involved a federal law

prohibiting individuals convicted of misdemeanor domestic violence crimes from

owning firearms. 539 F.3d 1236, 1239 (10th Cir. 2008). In response to this law,

Wyoming passed its own statute establishing a process for the expungement of

certain domestic violence crimes for the purpose of restoring firearm ownership

rights. Id. at 1239

– 40. The state brought suit in federal court after federal

authorities informed state officials that the new state law did not align with federal

law and that anyone possessing a gun pursuant to the expungem ent law could

still face federal prosecution. See id. at 1240

– 41. With respect to Article III

standing, the Tenth Circuit concluded that Wyoming had sufficiently alleged

injury in fact because federal authorities expressly found that Wyoming law was

pree mpted, and thereby infringed upon the state’s sovereign interest in enforcing

its own laws. Id. at 1242.

T he situation before us is altogether different from Wyoming ex rel. Crank

.

As noted above, no New York law or regulation has been preempted because the

OCC has not received an SPNB charter application from, or granted an SPNB

charter to

, a ny non

- depository fintech and, in addition, it is un clear at this juncture33 whether New York law will ever be preempted in the ways DFS fears. 17 Simply

put, the Fintech Charter Decision has not implicated the sorts of direct preemption

concerns that animated DFS’s cited cases , and it will not do so until the OCC

receives an SPNB charter application from or grants such a charter to a non

depositor y fintech that would otherwise be subject to DFS’s jurisdiction

.

B. Loss of Assessment Revenue

We are also unpersuaded that DFS faces a substantial risk of suffering its

second alleged future injury

— that it will lose revenue acquired through annual

assessments. In its complaint, DFS alleges that it is funded through assessments

levied upon institutions it regulates pursuant to N.Y. Fin. Serv. Law § 206(a). DFS

further asserts that, in light of this assessment regime, the Fintech Charter Decision

will cause it injury in “a directly quantifiable way” because “ [e] very non

depository financial firm that receives an [SPNB] charter in place of a New York

17 The remaining preemption

- based standing cases that DFS cites are unavailing for this

same reason. See Alaska v. U.S. Dep't of Transp ., 868 F.2d 441, 442

– 43 (D.C. Cir. 1989) (concluding that states had suffered sufficient injury in fact to confer Article III standing because federal officials expressly took the position that federal regulations preempted state consumer protection laws concerning “airline price advertising,” which encroached upon the states’ sovereign interest in enforcing their own laws); Ohio ex rel. Celebrezze v. U.S. Dep’t of Transp ., 766 F.2d 228, 229

– 30, 232

– 33 (6th Cir. 1985) (finding same where a federal “statement of policy” expressly provided that federal regulations preempted state laws requiring prenotification of the transporta tion of certain radioactive materials within state lines).34 license to operate in the state deprives DFS of crucial resources that are necessary

to fund the agency’s regulatory function. ” Joint App’x at 27

– 28.

As with its asserted preemption

- related injuries, DFS has not alleged that it

lost any assessments as a result of the Fintech Charter Decision, nor has it shown

that such a financi al loss is sufficiently imminent. At least u ntil a non

- depository

fintech that DFS currently regulates

— or would otherwise regulate

— decides to

apply for an SPNB charter, this alleged assessment loss will remain purely

“conjectural or hypothetical,” rather than “imminent” as the Constitution requires.

Lujan

, 504 U.S. at 560 (internal quotation marks omitted)

.

In addition

, the cases DFS relie s upon to support its loss

- of

- revenue

argument are distinguishable either because the new law or agency decision at

issue had already led to pecuniary injury at the time of the lawsuit, or because

such injury was inevitable. 18 For example, in Wyoming v. Oklahoma , Wyoming

brought suit against Oklahoma under the Commerce Clause of the U.S.

Constitution, challenging an Oklahoma law requiring utility companies to

purchase a certain amount of coal from in

- state sources rather than sources in

18 For purposes of this discussion, we assume, without deciding, that the cited decisions of other courts of appeals, which are not binding on this Court in any event, were correctly decided.35 Wyoming. See 502 U.S. 437, 440

– 41 , 443 (1992). The Supreme Court concluded

that Wyoming had been sufficiently injured for purposes of Artic le III standing

because the Oklahoma law had already led to decreased coal sales, which, in turn,

had decreased Wyoming’s tax revenues. Id. at 447

– 48; see also Air Alliance Hous. v.

EPA , 906 F.3d 1049, 1056

– 57, 1059

– 60 (D.C. Cir. 2018) (per curiam) (findi ng that

states had standing to challenge regulations delaying a final Environment

Protection Agency rule concerning chemical disasters in light of prior , as well as

anticipated, expenditures the states had made to prevent such disasters while the

final rul e was delayed).

Additionally, i n Texas v. United States , multiple states brought a challenge

under the APA against a decision by the Department of Homeland Security to

defer enforcement of the immigration laws against the parents of U.S. citizens and

Law ful Permanent Residents. 787 F.3d 733, 743

– 44 (5th Cir. 2015), affirmed by an

equally divided court , 136 S. Ct. 2271 (2016) (per curiam) . The Fifth Circuit agreed

with the district court that Texas had sufficiently demonstrated that it had Article

III standing because the program, which would have gone into effect but for the

preliminary injunction entered by the district court, see id. at 7 45

– 46, would require

the state to incur the cost of issuing driver’s licenses to program beneficiarie s, id.36 at 748; see also id. at 749 (“ Texas ’ s forced choice between incurring costs and

changing its laws is an injury because those laws exist for the administration of a

state program, not to challenge federal law, and Texas did not enact them merely

to c reate standing. ” ); New York v. U.S. Dep’t of Homeland Sec.

, 969 F.3d 42, 50, 59

– 60

(2d Cir. 2020) (finding that states had established standing to challenge an agency

rule “ setting out a new

. . . interpretation of a

. . . provision of [U.S.] immigration

law that renders inadmissible to the United States any non

- citizen who is likely to

become a ‘public charge ’” where the states alleged “ they [were] injured because

the [r] ule [would] cause many of their residents to forgo u se of public benefits

programs, thereby decreasing federal transfer payments to the states, reducing

Medicaid revenue, increasing overall healthcare costs, and causing general

economic harm” and the agency itself had anticipated a decrease in public benefi ts

enrollment ).

Plainly, the instant case presents an entirely different situation. It is clear

that, contrary to its cited cases, see Wyoming v. Oklahoma , 502 U.S. at 447

– 48 (finding

that the state

- plaintiff had already suffered a financial loss); Air Al liance Hous. , 906

F.3d at 1059

– 60 (same), DFS has yet to lose out on any revenue acquired through

its assessments as a result of the Fintech Charter D ecision because the OCC has37 not receive d , let alone approve d , an application for an SPNB charter from a no n

depository fintech within DFS’s jurisdiction. Moreover, u nlike Texas v. United

States , where the challenged immigration program would have certainly gone into

effect absent the states

- plaintiffs’ APA challenge and thereby force d Texas to incur

the costs of issuing driver’s licenses , 787 F.3d at 745

– 46, the OCC may never grant

a n SPNB charter to a non

- depository fintech currently subject to DFS assessments

and, in fact, has yet to even receive a formal application

.

In short, DFS a sks this Court to determine

— in the abs ence of an actual or

imminent harm , or a sufficiently “substantial risk” of harm

— whether the NBA

unambiguously requires that fintechs accept deposits in order to be eligible for an

SPNB charter

. The standing requirement under Article III of the U.S. Constitution

forecloses consideration of such a request at this time

. Accordingly, because DFS

failed to adequately allege that it ha s Article III standing to bring its APA claims

against the OCC , t hose claims must be dismissed without prejudice.

III. Constitutional & Prudential Ripeness

The OCC also separately asserts that DFS’s APA claims are neither

constitutionally nor prudentially ripe for judicial review because the OCC has

merely announced that it would begin accepting applications for SPNB charters38 from non

- depository fintechs

, and has not received, or granted, such an

application. We hold, in the alternative, that constitutional ripeness

considerations require dis missal of this case for lack of subject matter jurisdiction.

Because we hold that constitutional considerations mandate dismissal, we need

not reach the OCC’s argument that DFS’s claims are prudentially unripe.

In the administrative context, t he ripeness doctrine “ prevent [s] the courts,

through avoidance of premature adjudication, from entangling themselves in

abstract disagreements over administrative policies, and also

. . . protect [s] the

agencies from judicial interference until an administrative decision has been

formalized and its effects felt in a concrete way by the challenging parties.” Nat’l

Park Hosp. Ass’n v. Dep’t of Interior , 538 U.S. 803, 807

– 08 (2003) (quoting Abbott

Labo ratories v. Gardner , 387 U.S. 136, 148

– 49 (1967), abrogated on other grounds by

Califano v. Sanders , 430 U.S. 99 (1977)). “ ‘ Ripeness ’ i s a term that has been used to

describe two overlapping threshold criteria f or the exercise of a federal court ’ s

jurisdi ction .” Simmonds v. INS , 326 F.3d 351, 356

– 57 (2d Cir. 2003). In particular,

t his doctrine is “ drawn both from Article III limitations on judicial power and from

prudential reasons for refusing to exercise jurisdiction .” Nat’l Park Hosp. Ass’n , 538

U.S. at 808 (quoting Reno v. Cath. Soc. Servs., Inc. , 509 U.S. 43, 57 n.18 (1993)). Thus,39 we refer to the former aspect of the doctrine as “constitutional ripeness” and the

latter aspect as “prudential ripeness.” See, e.g.

, In re Methyl Tertiary Butyl E t her

(MTBE) Prods. Liab. Litig. , 725 F.3d 65, 109

– 10 (2d Cir. 2013); Simmonds , 326 F.3d at

357 (“ These two forms of ripeness are not coextensive in purpose .”).

“ Constitutional ripeness is a doctrine that, like standing, is a limitation on

the power of the j udiciary ” in that it “ prevents courts from declaring the meaning

of the law in a vacuum and from constructing generalized legal rules unless the

resolution of an actual dispute requires it. ” Simmonds , 326 F.3d at 357; accord In re

MTBE Prods. Liab. Litig. , 725 F.3d at 110 (“ The doctrine of constitutional ripeness

prevents a federal court from entangling itself in abstract disagreements over

matters that are premature for review because the injury is merely speculative and

may never occur. ” (internal quotat ion marks omitted)) ; MPM Silicones, LLC v.

Union Carbide Corp. , 966 F.3d 200, 232 (2d Cir. 2020)

. Crucially, the doctrine of

constitutional ripeness “ overlaps with the standing doctrine, ‘ most notably in the

shared requirement that the plaintiff ’ s injury be imminent rather than conjectural

or hypothetical. ’” In re MTBE Prods. Liab. Litig. , 725 F.3d at 110 (quoting Ross v.

Bank of Am., N.A. , 524 F.3d 217, 226 (2d Cir. 2008)); accord Nat’l Org. for Marriage,

Inc. v. Walsh , 714 F.3d 682, 688 (2d Cir. 2013) (“ Often, the best way to think of40 constitutional ripeness is as a specific application of the actual injury aspect of

Article III standing. ”); see also MedImmune, Inc. v. Genentech, Inc. , 549 U.S. 118, 128

n.8 (2007) (explaining that “ standing and ri peness boil down to the same question ”

in cases where “ the party seeking declaratory relief is himself preventing the

complained

- of injury from occurring ”); Brooklyn Legal Servs. Corp. v. Legal Servs.

Corp. , 462 F.3d 219, 225 ( 2d Cir. 2006) ( “Because [defe ndant’s] r ipeness arguments

concern only [the] shared requirement ” that “ the [alleged] injury be imminent

rather than conjectural or hypothetical

, . . . it follows that our analysis of

[defendant’s] standing challenge applies equally and interchangeably to its

ripeness challenge .” ), abrogated on other grounds by Bond v. United States , 564 U.S.

211 (2011). 19

Accordingly, f or substantially the same reasons set forth above with respect

to Article III standing, we hold that DFS’s APA claims are not constitutionally ripe.

19 To be sure, the doctrines of standing and ripeness serve separate and distinct purposes. See Bronx Household of Faith v. Bd. of Educ. of the City of N.Y. , 492 F.3d 89, 111 (2d Cir. 2007) (Leval, J. , concurring) (“Standing, in its fundamental aspect, focuses on the party seeking to get his complaint before a federal court and whether that party suffers a sufficiently direct and concrete injury to be heard in complaint. By contrast, the fundamental concern of ripeness is whether at the time of the litigation the issues in the case are fit for judicial decision.” (citation and internal quotation marks omitted)). We simply reemphasize that, where, as here, the justiciability inquiry focuses on whether an alleged injury is “imminent rather than conjectural or hy pothetical,” the two doctrines “overlap[].” In re MTBE Prods. Liab. Litig. , 725 F.3d at 110.41 In particular, we reiterate that, even if non

- depository fintechs have engag ed in

preliminary discussions with the OCC regarding (or submitted draft application s

for) SPNB charters, DFS is still asking us to “entangl[e] [ourselves] in abstract

disagreements over matters that are premature for review because the injury is

merely speculative and may never occur .” In re MTBE Prods. Liab. Litig. , 725 F.3d

at 110 (internal quot ation marks omitted)

.

IV. Merits

Having determined that DFS lack s Article III standing, and that its claims

are not constitutionally ripe, we lack jurisdiction to decide the remaining issues on

appeal. Specifically , we do not address the district court’s holding, on the merits,

that the “business of banking” under the NBA unambiguously requires the receipt

of deposits

, nor whether that holding warrants set ting aside Section 5.20(e)(1)(i)

nationwide with respect to non

- depository fintec hs applying for SPNB charters.

In reversing the amended judgment, w e express no view on the district court’s

determinations regarding these issues.42 CONCLUSION

For the reasons set forth above

, we REVERSE the amended judgment and

REMAND to the district court with instructions to enter a judgment of dismissal

without prejudice

.1 9

- 4271 Lacewell v. Office of the Comptroller of the Currency 

### Appendix A

Filings by Amici Curiae 1

B RIEF OF P ROFESSOR D AVID Z ARING AS A MICUS C URIAE IN S UPPORT OF A PPELLANT S ( Jeffrey S. Bucholtz, J.C. Boggs, Amy R. Upshaw ( King & Spalding LLP, Washington, D C ) , David Zaring ( University of Pennsylvania, Philadelphia, PA ) ).

B RIEF OF T HIRTY

- T HREE B ANKING L AW S CHOLARS AS A MICI C URIAE IN S UPPORT OF
A PPELLEE ( Daniel R. Walfish ( Walfish & Fissell PLLC, New York, NY)).

B RIEF OF A MICUS C URIAE C ONFERENCE OF S TATE B ANK S UPERVISORS IN S UPPORT OF
A PPELLEE AND A FFIRMANCE ( Michael Townsley ( Conference of State Bank Supervisors, Washington, DC), Jennifer Ancona Semko, Graham R. Cronogue ( Baker McKenzie, Washington, DC )).

B RIEF OF N ATIONAL A SSOCIATION OF C ONSUMER C REDIT A DMINISTRATORS AND
A MERICAN C ONFERENCE OF U NIFORM C ONSUMER C REDIT C ODE S TATES AS A MIC I

C URIAE IN S UP PORT OF A PPELLEE ( Zachary D.A. Hingst ( Iowa Division of Banking,
Des Moines, IA )).

A MICUS C URIAE B RIEF OF THE C ENTER FOR R ESPONSIBLE L ENDING
, N ATIONAL

C ONSUMER L AW C ENTER AND N ATIONAL C OMMUNITY R EINVESTMENT C OALITION IN

S UPPORT OF A PPELLEE ( Stuart Rossman (National Consumer Law Center

, Boston, MA), Bradley H. Blower (National Community Reinvestment Coalition

, Washington, DC), Lauren Saunders (National Consumer Law Center, Washington, DC), William R. Corbett, Yvette Garcia Missri (Center for Responsible Lending, Durham, NC) ).

B RIEF FOR I NDEPENDENT C OMMUNITY B ANKERS OF A MERICA AS A MICUS C URIAE IN

S UPPORT OF A PPE LLEE ( Keith Bradley, Darin Smith (Squire Patton Boggs (US) LLP, Denver, CO) ).

1 None of the Amici Curiae listed herein participated in oral argument.