20-2049 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT 

BRADLEY TEWINKLE, 

Plaintiff-Appellant, 

v. 

CAPITAL ONE, N.A., 

Defendant-Appellee. 

DOES 1-100, 

 Defendants. 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF NEW YORK 

BRIEF OF AMICI CURIAE 

CONSUMER FINANCIAL PROTECTION BUREAU and 

FEDERAL TRADE COMMISSION 

IN SUPPORT OF APPELLANT AND REVERSAL

Alden F. Abbott 

General Counsel

Joel Marcus 

Deputy General Counsel

Mark S. Hegedus 

Bradley Dax Grossman 

Attorneys

Federal Trade Commission 

600 Pennsylvania Avenue NW 

Washington, DC 20580 

(202) 326-2994 

bgrossman@ftc.gov 

Mary McLeod 

 General Counsel 

John R. Coleman 

Deputy General Counsel 

Steven Y. Bressler 

 Assistant General Counsel 

Kevin E. Friedl 

 Senior Counsel 

Consumer Financial Protection Bureau 

1700 G Street NW 

Washington, DC 20552 

(202) 435-9268 

kevin.friedl@cfpb.gov 

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 TABLE OF CONTENTS 

TABLE OF AUTHORITIES ............................................................................ ii 

INTERESTS OF AMICI CURIAE .................................................................... 1 

STATEMENT .................................................................................................. 2 

A. The Equal Credit Opportunity Act and Regulation B ........................ 2 

B. Factual and Procedural Background .................................................. 9 

SUMMARY OF ARGUMENT ........................................................................ 11 

ARGUMENT .................................................................................................. 13 

 ECOA AND REGULATION B PROTECT THOSE SEEKING CREDIT 

BOTH BEFORE AND AFTER THEY RECEIVE IT ................................................ 13 

A. ECOA’s Protections Against Credit Discrimination Do Not 

Disappear the Moment Credit Is Extended ...................................... 13 

B. Regulation B Removes Any Doubt on This Point ............................ 20 

1. Regulation B expressly defines “applicant” to include 

those who have received credit. ...................................................... 21 

2. Regulation B is a reasonable implementation of ECOA 

and as such is entitled to deference. .............................................. 23 

C. The District Court Erred in Its Analysis of the Term “Applicant” ... 25 

CONCLUSION .............................................................................................. 30 

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TABLE OF AUTHORITIES 

Page(s) 

Cases 

Atlantic Richfield Co. v. Christian, 

140 S. Ct. 1335 (2020) .............................................................................. 29 

Barnhart v. Walton, 

535 U.S. 212 (2002) .................................................................................. 24 

CFTC v. Schor, 

478 U.S. 833 (1986) .................................................................................. 20 

Chevron, USA, Inc. v. NRDC, 

467 U.S. 837 (1984) .................................................................................. 23 

Fischl v. Gen. Motors Acceptance Corp., 

708 F.2d 143 (5th Cir. 1983) ....................................................................... 6 

Ford Motor Credit Co. v. Milhollin, 

444 U.S. 555 (1980) .................................................................................. 23 

Gorham-DiMaggio v. Countrywide Home Loans, Inc., 

592 F. Supp. 2d 283 (N.D.N.Y. 2008) ...................................................... 25 

Gorham-DiMaggio v. Countrywide Home Loans, Inc., 

421 F. App’x 97 (2d Cir. 2011). .................................................................. 26 

Kalisz v. Bank of Am., N.A., 

No. 1:18-cv-00516, 2018 WL 4356768 (E.D. Va. Sept. 11, 2018) ....... 25, 26 

Kinnell v. Convenient Loan Co., 

77 F.3d 492 (10th Cir. 1996) ...................................................................... 16 

Kisor v. Wilkie, 

139 S. Ct. 2400 (2019) .............................................................................. 24 

National Ass’n of Home Builders v. Defs. of Wildlife, 

551 U.S. 644 (2007) ................................................................................... 13 

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NLRB v. Bell Aerospace Co., 

416 U.S. 267 (1974) ................................................................................... 20 

NRDC v. EPA, 

961 F.3d 160 (2d Cir. 2020) ................................................................ 23, 29 

Powell v. Pentagon Fed. Credit Union, 

No. 10-cv-785, 2010 WL 3732195 (N.D. Ill. Sept. 17, 2010) ............... 16, 27 

RL BB Acquisition, LLC v. Bridgemill Commons Dev. Grp., LLC, 

754 F.3d 380 (6th Cir. 2014) .................................................................... 22 

Robinson v. Shell Oil Co., 

519 U.S. 337 (1997) .................................................................................... 14 

Stefanowicz v. SunTrust Mortg., 

No. 3:16-cv-00368, 2017 WL 1103183 (M.D. Pa. Jan. 9, 2017) ............... 25 

Stefanowicz v. SunTrust Mortg., 

765 F. App’x 766 (3d Cir. 2019) ................................................................ 25

Treadway v. Gateway Chevrolet Oldsmobile Inc., 

 362 F.3d 971 (7th Cir. 2004) .......................................................... 6, 18, 29 

Tyson v. Sterling Rental, Inc., 

836 F.3d 571 (6th Cir. 2016) ..................................................................... 18 

United States v. Epskamp, 

832 F.3d 154 (2d Cir. 2016) ................................................................. 13, 25 

Statutes 

12 U.S.C. § 5481 ............................................................................................... 1 

12 U.S.C. § 5519 .............................................................................................. 9 

15 U.S.C. § 1691(a) ........................................................................... 5, 7, 13, 16 

15 U.S.C. § 1691(d) ......................................................................... 5, 14, 27, 28 

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15 U.S.C. § 1691a(b) .................................................................................. 3, 29 

15 U.S.C. § 1691a(g) ................................................................................ 23, 29 

15 U.S.C. § 1691b(a) ....................................................................... 4, 21, 23, 24 

15 U.S.C. § 1691b(f) ......................................................................................... 9 

15 U.S.C. § 1691c(c) .......................................................................................... 1 

15 U.S.C. § 1691e(a) ....................................................................... 3, 15, 22, 29 

Dodd-Frank Wall Street Reform and Consumer Protection Act, 

Pub. L. 111-203, § 1085, 124 Stat. 1376 (2010) ..................................... 8, 20 

Equal Credit Opportunity Act, 

Pub. L. No. 93-495, § 503, 88 Stat. 1521 (1974) ..................................... 2, 3 

Equal Credit Opportunity Act Amendments of 1976, 

Pub. L. No. 94-239, 90 Stat. 251 (1976) ..................................................... 5 

FDIC Improvement Act of 1991, 

Pub. L. No. 102-242, § 223, 105 Stat. 2306-07 (1991) .............................. 19 

Regulations 

12 C.F.R. § 202.2(e) (1978) ............................................................................. 8 

12 C.F.R. § 202.3(c) (1976) ................................................................... 4, 8, 19 

12 C.F.R. § 1002.2(c) ...................................................................................... 7 

12 C.F.R. § 1002.2(e) .................................................................... 8, 21, 23, 30 

12 C.F.R. § 1002.2(m) ................................................................................... 22 

12 C.F.R. § 1002.4(a) ..................................................................................... 21 

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12 C.F.R. § 1002.9(a) ............................................................................ 5, 7, 30 

Other Authorities 

CFPB, Interim Final Rule, 

76 Fed. Reg. 79,442 (Dec. 21, 2011) ............................................................ 9 

Federal Reserve Board, Final Rule, 

50 Fed. Reg. 48,018 (Nov. 20, 1985) .......................................................... 7 

Federal Reserve Board, Final Rule, 

42 Fed. Reg. 1242 (Jan. 6, 1977) ........................................................ 7, 8, 21 

Federal Reserve Board, Proposed Rule, 

41 Fed. Reg. 29,870 (July 20, 1976) ........................................................... 8 

Federal Reserve Board, Final Rule, 

40 Fed. Reg. 49,298 (Oct. 22, 1975) .................................................. 4, 5, 21 

Interagency Fair Lending Examination Procedures (Aug. 2009), 

 www.ffiec.gov/PDF/fairlend.pdf ............................................................... 17 

Interagency Policy Statement on Discrimination in Lending, 

59 Fed. Reg. 18,266 (Apr. 15, 1994) ........................................................... 17 

Revision of the Board’s Equal Credit Regulation: An Overview, 

71 Fed. Res. Bull. 913, 1985 WL 68736 (1985) .......................................... 17 

S. Rep. No. 93-278 (1973) ..................................................................... 2, 3, 17 

S. Rep. No. 94-589 (1976) .................................................................... passim

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INTERESTS OF AMICI CURIAE 

The Consumer Financial Protection Bureau is a federal agency 

charged with promulgating rules and issuing interpretations under the 

Equal Credit Opportunity Act, 15 U.S.C. §§ 1691 et seq., as well as enforcing 

compliance with ECOA’s requirements, see id. § 1691c(a); see also 12 U.S.C. 

§ 5481(12), (14) (including ECOA in the list of “Federal consumer financial 

laws” that the Bureau administers). 

The Federal Trade Commission is the federal agency with principal 

responsibility for protecting consumers from deceptive or unfair trade 

practices. ECOA specifically empowers the Commission to enforce ECOA 

and its implementing rule, Regulation B, using all of the Commission’s 

functions and powers under the FTC Act. 15 U.S.C. § 1691c(c). In such 

actions, violations of ECOA are deemed violations of the FTC Act. Id.

The Commission has brought multiple law enforcement actions pursuant to 

ECOA and Regulation B. 

ECOA requires that when creditors take “adverse action” with respect 

to a credit “applicant”—including by revoking or changing the terms of an 

existing extension of credit—the “applicant” is entitled to a statement of 

reasons for the action. Id. § 1691(d). The Act’s core prohibition on credit 

discrimination likewise protects “applicants.” Id. § 1691(a). 

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This case presents the question whether a person ceases to be an 

“applicant” under ECOA and its implementing regulation after receiving (or 

being denied) an extension of credit. The district court thought so. But that 

interpretation is inconsistent with ECOA and Regulation B and would 

significantly undermine their important protections for borrowers. 

Accordingly, the Bureau and the Commission have substantial interests in 

the Court’s resolution of the question presented. 

STATEMENT 

A. The Equal Credit Opportunity Act and Regulation B 

1. The Equal Credit Opportunity Act, 15 U.S.C. §§ 1691 et seq., is a 

landmark civil rights law that protects individuals and businesses against 

discrimination in accessing and using credit—“a virtual necessity of life” for 

most Americans, S. Rep. No. 94-589, at 3-4 (1976).

Congress enacted ECOA in 1974, initially to address “widespread 

discrimination ... in the granting of credit to women.” S. Rep. No. 93-278, 

at 16 (1973). The Act made it unlawful for “any creditor to discriminate 

against any applicant on the basis of sex or marital status with respect to 

any aspect of a credit transaction.” Pub. L. No. 93-495, § 503, 88 Stat. 1521, 

1521 (1974). 

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Then as now, ECOA defined “applicant” to mean “any person who 

applies to a creditor directly for an extension, renewal, or continuation of 

credit, or applies to a creditor indirectly by use of an existing credit plan for 

an amount exceeding a previously established credit limit.” Id. § 503, 

88 Stat. at 1522 (codified at 15 U.S.C. § 1691a(b)). Among other examples of 

the sort of discrimination against “applicants” that ECOA would bar, its 

drafters cited a scenario in which a lender required a “newly married 

woman whose creditworthiness has otherwise remained the same” to 

reapply for her existing credit arrangement as a new applicant. S. Rep. 

No. 93-278, at 17. 

The Act also created a private right of action under which aggrieved 

“applicant[s]” can hold liable a creditor that fails to comply with “any 

requirement imposed under this subchapter [i.e., ECOA].” 15 U.S.C. 

§ 1691e(a). And it provided that this private right of action extends to 

violations of any requirement imposed under ECOA’s implementing 

regulations. Id. § 1691a(g) (“Any reference to any requirement imposed 

under this subchapter ... includes reference to the regulations of the Bureau 

under this subchapter ... .”). 

Congress originally tasked the Board of Governors of the Federal 

Reserve System with prescribing those regulations. Pub. L. No. 93-495, 

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§ 503, 88 Stat. at 1522. Its grant of rulemaking authority was expansive. 

ECOA provided that the Board may issue rules to “carry out the purposes of 

the Act” and that those rules may contain, among other things, “such 

classifications, differentiation, or other provision ... as in the judgment of 

the Board are necessary or proper to effectuate the purposes of [ECOA]” 

and “to prevent circumvention or evasion thereof.” Id.; see also 15 U.S.C. 

§ 1691b(a).

The Board issued those rules, known as Regulation B, the year after 

ECOA was enacted and several days before the statute took effect. See 40 

Fed. Reg. 49,298 (Oct. 22, 1975) (promulgating 12 C.F.R. pt. 202). From the 

first, Regulation B made clear that the new law’s protections against credit 

discrimination cover both those currently applying to receive credit and 

those who have already received it. It did so by defining “applicant” to 

expressly include not only “any person who applies to a creditor directly for 

an extension, renewal or continuation of credit” but also, “[w]ith respect to 

any creditor[,] ... any person to whom credit is or has been extended by that 

creditor.” 12 C.F.R. § 202.3(c) (1976); see also 40 Fed. Reg. at 49,306. In 

explaining this provision, the Board noted that ECOA’s express terms and 

its legislative history “demonstrate that Congress intended to reach 

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discrimination ... ‘in any aspect of a credit transaction.’” 40 Fed. Reg. 

at 49,298 (quoting 15 U.S.C. § 1691(a)). 

2. Two years after enacting ECOA, Congress significantly broadened 

the statute to prohibit discrimination on bases other than sex and marital 

status. See ECOA Amendments of 1976, Pub. L. No. 94-239, 90 Stat. 251. 

These bases now generally include “race, color, religion, national origin, sex 

or marital status, or age” as well as the receipt of public-assistance income. 

Id. § 2, 90 Stat. at 251 (codified at 15 U.S.C. § 1691(a)).

In what the Senate drafters called “one of [the amendments’] most 

important provisions,” S. Rep. No. 94-589, at 2 (1976), the amendments 

also provided that “[e]ach applicant against whom adverse action is taken 

shall be entitled to a statement of reasons for such action from the 

creditor.” 15 U.S.C. § 1691(d)(2); see also id. § 1691(d)(3) (“A statement of 

reasons meets the requirements of this section only if it contains the 

specific reasons for the adverse action taken.”).1 

The amendments defined “adverse action” as “a denial or revocation 

of credit, a change in the terms of an existing credit arrangement, or a 

refusal to grant credit in substantially the amount or on substantially the 

 

1 In lieu of providing this statement of specific reasons, a creditor may 

instead disclose the applicant’s right to receive such a statement. 15 U.S.C. 

§ 1691(d)(2)(B); see also 12 C.F.R. § 1002.9(a)(2)(ii). 

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terms requested.” Id. § 1691(d)(6). Thus, since 1976, ECOA has provided 

that “applicants” are entitled to an explanation when the terms of an 

existing credit arrangement are altered or the credit cancelled outright, 

among other circumstances. 

ECOA’s new notice requirements “were designed to fulfill the twin 

goals of consumer protection and education.” Fischl v. Gen. Motors 

Acceptance Corp., 708 F.2d 143, 146 (5th Cir. 1983); see also id. (calling 

these provisions “[p]erhaps the most significant of the 1976 amendments to 

the ECOA”). In terms of consumer protection, “the notice requirement is 

intended to prevent discrimination ex ante because ‘if creditors know they 

must explain their decisions ... they [will] effectively be discouraged’ from 

discriminatory practices.” Treadway v. Gateway Chevrolet Oldsmobile 

Inc., 362 F.3d 971, 977–78 (7th Cir. 2004) (quoting Fischl, 708 F.2d 

at 146); see also S. Rep. No. 94-589, at 4 (calling the notice requirement 

“a strong and necessary adjunct to the antidiscrimination purpose of the 

legislation”). 

The notice requirement “fulfills a broader need” as well by educating 

consumers about the reasons for the creditor’s action. S. Rep. No. 94-589, 

at 4. As a result of being informed of the specific reasons for the adverse 

action, consumers can take steps to try to improve their credit status or, in 

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cases “where the creditor may have acted on misinformation or inadequate 

information[,] ... to rectify the mistake.” Id.

Following the ECOA Amendments of 1976, the Board amended 

Regulation B, including by adding new provisions to implement ECOA’s 

notice requirement. 42 Fed. Reg. 1242 (Jan. 6, 1977). The amended rule 

defined “adverse action” to include “[a] termination of an account or an 

unfavorable change in the terms of an account that does not affect all or 

substantially all of a class of the creditor’s accounts.” 12 C.F.R. 

§ 1002.2(c)(1)(ii). And it required that adverse-action notices give a 

“statement of reasons” for the action that is “specific” and “indicate[s] the 

principal reason(s) for the adverse action.” Id. § 1002.9(b)(2). 

The Board’s amendments to Regulation B also imposed a number of 

content requirements on adverse-action notices. Id. § 1002.9(a)(2). 

As subsequently amended, this part of Regulation B now requires that an 

adverse-action notice include a statement of the action taken, the name and 

address of the creditor, a statement of the provisions of 15 U.S.C. § 1691(a), 

and the name and address of the relevant federal regulatory agency. 12 

C.F.R. § 1002.9(a)(2); see also 50 Fed. Reg. 48,018, 48,022 (Nov. 20, 1985) 

(adding requirement that notices include the creditor’s name and address). 

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Finally, the Board made a “minor editorial change” to Regulation B’s 

definition of “applicant” in order to “express more succinctly the fact that 

the term includes both a person who requests credit and a debtor”—i.e., one 

who has already requested and received credit. 41 Fed. Reg. 29,870, 29,871 

(July 20, 1976) (proposed rule). Whereas Regulation B originally defined 

“applicant” to include one who “applies to a creditor directly for an 

extension, renewal or continuation of credit” as well as, “[w]ith respect to 

any creditor[,] ... any person to whom credit is or has been extended by that 

creditor,” 12 C.F.R. § 202.3(c) (1976), the revised definition simply stated 

that “applicant” includes “any person who requests or who has received an 

extension of credit from a creditor.” 12 C.F.R. § 202.2(e) (1978) (emphasis 

added); see also 42 Fed. Reg. 1242, 1252 (Jan. 6, 1977) (final rule). 

Although the Board revised other parts of the definition over the years, it 

never departed from the bedrock understanding of the term “applicant” as 

including any person “who has received” an extension of credit. See 12 

C.F.R. § 1002.2(e). 

3. The Dodd-Frank Wall Street Reform and Consumer Protection 

Act, enacted in 2010, established the Bureau and transferred to it primary 

rulemaking responsibility under ECOA. Pub. L. 111-203, § 1085, 124 Stat. 

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1376, 2083-84.2 Shortly thereafter, the Bureau republished the Board’s 

ECOA regulations, including the definition of “applicant,” without material 

change. See 76 Fed. Reg. 79,442 (Dec. 21, 2011) (promulgating 12 C.F.R. 

pt. 1002 & Supp. I). 

B. Factual and Procedural Background 

Plaintiff Bradley TeWinkle was a New York resident at the time of the 

events alleged in his complaint. Defendant Capital One is a national bank. 

TeWinkle had a checking account and an overdraft line of credit with 

Capital One. JA10, 17. Capital One sent TeWinkle an email in December 

2015 notifying him that it was terminating his checking account and his 

overdraft line of credit. JA11. The email included a notice describing the 

protections offered by ECOA and identifying the Bureau as the federal 

agency “that administers compliance with [ECOA] concerning this 

creditor.” JA17. It announced the closure of TeWinkle’s line of credit thusly: 

When you opened your accounts, you agreed to the Account 

Disclosures reserving our right to close your accounts at any 

time, for any reason. We closed your 360 Savings on 12/22/15. 

We closed your 360 Checking, including your Overdraft Line of 

Credit and Debit MasterCard®. 

 

2 The Board retains the authority to prescribe rules under ECOA with 

respect to auto dealers excluded from the Bureau’s authority by 12 U.S.C. 

§ 5519. See 15 U.S.C. § 1691b(f). 

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JA17. TeWinkle received no other correspondence about the revocation of 

his line of credit. JA11. 

 TeWinkle filed suit under ECOA, alleging that Capital One violated 

the adverse-action notice requirement in ECOA and Regulation B. JA14. 

Specifically, TeWinkle alleged that the email he received from Capital One 

upon closure of his line of credit failed to include (1) “the address of the 

creditor” and (2) either a “statement of specific reasons for the action 

taken” or a disclosure of his “right to a statement of specific reasons.” JA11. 

Capital One moved to dismiss, primarily on the ground that TeWinkle 

was not an “applicant” entitled to protection under ECOA because he was 

not applying for credit at the time his account was closed. 

 The magistrate judge to whom the matter was assigned agreed with 

Capital One and concluded that the complaint should be dismissed because 

TeWinkle had not plausibly alleged he was an “applicant” under ECOA. 

JA30-31. The court appeared to acknowledge that TeWinkle was an 

“applicant” as defined in Regulation B. JA29. And it further concluded that 

the definition in the rule was “permissible.” JA29. But the court also held 

that it need not consider Regulation B at all, because ECOA spoke 

unambiguously to the question at hand. JA30-31. 

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The court went on to conclude that TeWinkle had suffered no “injury 

in fact” because the email he received “provided the reason for the closing 

of the line of credit”: “[I]t was closed with the associated checking account,” 

which Capital One could close “at any time, for any reason.” JA32. 

The district judge adopted the magistrate judge’s recommendation, 

over TeWinkle’s objection, without change or additional explanation. JA36. 

SUMMARY OF ARGUMENT 

The Equal Credit Opportunity Act and Regulation B prohibit 

discrimination in any aspect of a credit transaction on the basis of sex, race, 

or other enumerated factors. They further require that creditors give 

borrowers an explanation when they take certain “adverse actions,” 

including revoking or changing the terms of a credit arrangement. These 

important protections do not end the moment an extension of credit begins. 

Instead, ECOA and Regulation B establish that the “applicants” they protect 

include both those who are currently seeking credit and those who sought 

and have now received credit. 

This is the best reading of the statute itself. Although ECOA’s 

definition of “applicant,” read in isolation, could be susceptible to the 

narrow interpretation adopted by the district court, that interpretation 

makes little sense when read alongside the rest of the statute. ECOA’s 

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prohibition on credit discrimination, for example, applies “with respect to 

any aspect of a credit transaction”—not just during the process of applying 

for credit. ECOA also requires that creditors provide a statement of reasons 

to an “applicant” when the creditor revokes or modifies the terms of the 

applicant’s existing credit arrangement. That requirement would cease to 

function sensibly under the district court’s interpretation of “applicant” as 

being limited to those who are presently in the process of applying for 

credit. In addition to its textual difficulties, the district court’s reading 

would undermine ECOA’s protections by cabining them to only certain 

aspects of a credit transaction and opening broad avenues for evasion. 

Any doubt regarding the proper scope of the term “applicant” is put to 

rest by ECOA’s implementing rule, Regulation B. For the 45 years that 

ECOA has been in effect, Regulation B has made explicit that the 

“applicants” the law protects include those who have received credit. That 

provision resolves the statute’s ambiguity on this point and is a reasonable 

exercise of rulemaking authority by the expert agencies (first the Federal 

Reserve Board and now the Bureau) that Congress empowered to issue 

rules to carry out ECOA’s purposes and to prevent evasion. Regulation B’s 

definition is therefore entitled to substantial deference, and the district 

court erred in simply discounting it. 

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ARGUMENT 

ECOA AND REGULATION B PROTECT THOSE SEEKING CREDIT BOTH

BEFORE AND AFTER THEY RECEIVE IT 

A. ECOA’s Protections Against Credit Discrimination Do Not 

Disappear the Moment Credit Is Extended 

The Equal Credit Opportunity Act prohibits creditors from 

discriminating against “applicants” with respect to “any aspect of a credit 

transaction.” 15 U.S.C. § 1691(a). It further requires that creditors provide 

“applicants” with an explanation for any “adverse action,” including a 

“revocation of credit” or a “change in the terms of an existing credit 

arrangement.” Id. § 1691(d)(2), (6). These protections are best read to apply 

to those presently seeking credit as well as those who sought credit in the 

past and now have an existing credit arrangement with a creditor. 

1. “It is a fundamental canon of statutory construction that the 

words of a statute must be read in their context and with a view to their 

place in the overall statutory scheme.” Nat’l Ass’n of Home Builders v. Defs. 

of Wildlife, 551 U.S. 644, 666 (2007) (quotation marks omitted); see also 

United States v. Epskamp, 832 F.3d 154, 162 (2d Cir. 2016) (“A particular 

statute’s plain meaning can best be understood by looking to the statutory 

scheme as a whole and placing the particular provision within the context 

of that statute.” (quotation marks omitted)). Reading together the relevant 

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provisions of ECOA shows that the statute’s protections for “applicants” are 

best understood to cover both those who are applying to receive credit and 

those who have applied for and received it. 

ECOA’s definition of “applicant” includes those who “appl[y] to a 

creditor directly for an extension, renewal, or continuation of credit,” and 

thus designates persons who request credit as “applicants” without regard 

for how or whether their requests for credit are eventually resolved. There 

is, after all, “no temporal qualifier in the statute such as would make plain 

that [the definition] protects only persons still [applying] at the time of the 

[discrimination].” Cf. Robinson v. Shell Oil Co., 519 U.S. 337, 341-42 (1997) 

(concluding along similar lines that Title VII’s definition of “employees” 

includes former employees). 

This conclusion is confirmed by reading ECOA’s definition alongside 

its other provisions. First, ECOA’s adverse-action provision requires that 

creditors provide a statement of reasons to “[e]ach applicant” against whom 

they take adverse action. 15 U.S.C. § 1691(d)(2). The Act defines “adverse 

action” to include a “revocation of credit” as well as a “change in the terms 

of an existing credit arrangement”—actions that can be taken only with 

respect to persons who have already received an extension of credit. Id. 

§ 1691(d)(6). That ECOA requires “applicants” to receive an explanation 

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why their credit has been revoked, or the terms of their existing credit 

arrangement changed, makes clear that the term includes those who have 

applied for and received credit. These provisions would make little sense if 

“applicants” instead included only those with pending requests for credit. 

Second, ECOA creates a private right of action under which an 

aggrieved “applicant” may file suit against a “creditor” who “fails to comply 

with any requirement” of ECOA or Regulation B. Id. §§ 1691e(a), 1691a(g); 

see also id. § 1691e(b) (providing that a “creditor, other than a government 

or governmental subdivision or agency,” shall be liable to the aggrieved 

“applicant” for punitive damages of no more than $10,000); id. § 1691e(c) 

(the aggrieved “applicant” may apply for relief in district court). These 

references to “applicant[s]” as the category of persons who may seek such 

remedies plainly are not limited to those currently applying for credit. If 

they were, those who were denied credit or had it revoked on a prohibited 

basis—the very problem the statute is aimed to remedy—would be unable to 

pursue the “chief enforcement tool” that Congress created for ensuring 

compliance with ECOA. S. Rep. No. 94-589, at 13. Instead, a person may 

seek relief under these provisions as an “applicant” regardless of whether 

that person is presently applying for credit. 

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16 

Third, ECOA is explicit that its core prohibition on discrimination 

applies “to any aspect of a credit transaction”—i.e., not merely to the initial 

application process. 15 U.S.C. § 1691(a). As courts have recognized, reading 

“applicant” to refer only to those with pending credit applications would 

ignore the terms of this broad prohibition and “improperly narrow[] the 

scope of the ECOA.” See Kinnell v. Convenient Loan Co., 77 F.3d 492 

(10th Cir. 1996) (unpublished) (rejecting this interpretation and noting that 

it would exclude from ECOA’s reach “any sua sponte action on the part of 

the creditor, such as accelerating the terms of a note and effectively 

discontinuing the extension of credit”); Powell v. Pentagon Fed. Credit 

Union, No. 10-cv-785, 2010 WL 3732195, at *4 (N.D. Ill. Sept. 17, 2010) 

(rejecting that “narrow[]” interpretation, which “would preclude a plaintiff 

with an existing account from bringing a claim for the discriminatory 

revocation of that account.”). 

Under the district court’s interpretation, ECOA would apply not “to 

any aspect” of a credit transaction, 15 U.S.C. § 1691(a), but instead only to 

the process of requesting credit. This would dramatically curtail the reach 

of the statute, in contravention of its plain text and with far-reaching 

consequences. On this view, a creditor would not violate ECOA by, for 

example, lowering existing credit limits based on account holders’ religion 

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17 

or denying mortgage modification applications because the borrower 

received public assistance income. A creditor could require that women 

with existing lines of credit must reapply for that credit upon getting 

married. But see S. Rep. No. 93-278, at 17 (citing this very scenario as an 

example of the discrimination ECOA prohibits). ECOA has long been 

understood to bar such conduct with respect to existing borrowers.3

Even where ECOA did still apply under the district court’s reading—

i.e., during the application process itself—that reading would undermine 

the law’s protections by opening obvious paths to evasion. A creditor that 

wished to deny credit applications on a prohibited basis, or to offer credit 

on less advantageous terms to certain borrowers, could in many instances 

achieve the same result by simply extending credit on the terms requested 

 

3 See, e.g., Interagency Fair Lending Examination Procedures ii 

(Aug. 2009) (exam manual issued by five financial regulatory agencies 

noting that ECOA bars “treat[ing] a borrower differently in servicing a loan 

or invoking default remedies” or “us[ing] different standards for pooling or 

packaging a loan in the secondary market”), available at 

www.ffiec.gov/PDF/fairlend.pdf; Policy Statement on Discrimination in 

Lending, 59 Fed. Reg. 18,266, 18,268 (Apr. 15, 1994) (statement by nine 

agencies reflecting same understanding of ECOA); Revision of the Board’s 

Equal Credit Regulation: An Overview, 71 Fed. Res. Bull. 913, 914, 1985 

WL 68736, at *2 (1985) (“[B]ecause the [A]ct applies to all aspects of a 

credit transaction, the ECOA affects not only the application stage but also 

... credit reporting, and collection procedures.”). 

Case 20-2049, Document 62, 10/07/2020, 2947456, Page23 of 37
18 

and then later revoking or changing the terms of the credit arrangement on 

a prohibited basis. By such or similar means a creditor could avoid ever 

having to explain the reasons for an adverse action.4

The district court’s flawed interpretation of ECOA would, therefore, 

introduce a loophole big enough to threaten to swallow whole the notice 

requirement and the statute’s central prohibition on credit discrimination. 

Cf. Tyson v. Sterling Rental, Inc., 836 F.3d 571, 580 (6th Cir. 2016) 

(rejecting interpretation of ECOA that would make the Act so easy to evade 

as to render it “a paper tiger”); Treadway v. Gateway Chevrolet 

Oldsmobile Inc., 362 F.3d 971, 977 (7th Cir. 2004) (rejecting interpretation 

of ECOA that “would run contrary to the purpose of the [adverse-action] 

notice requirement”). The better reading of the ECOA—the reading 

consistent with its text, structure, and purpose—is that it protects those 

seeking credit even after they receive (or are denied) an extension of credit. 

 

4 Whether such maneuvers would actually be profitable would depend on 

the circumstances—for example, in what manner the creditor modified the 

terms of the credit arrangement. But even where they are not profitable, 

that alone is no guarantee they would not occur. See generally S. Rep. 

No. 94-589, at 3 (“The Committee readily acknowledges that irrational 

discrimination is not in the creditor’s own best interests because it means 

he is losing a potentially valuable and creditworthy customer. But, despite 

this logical truth, the hearing record is replete with examples of [such 

discrimination].”). 

Case 20-2049, Document 62, 10/07/2020, 2947456, Page24 of 37
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2. Congress’s history of amending the statute strongly supports this 

reading. As discussed below, the Federal Reserve Board first issued 

Regulation B in 1975, shortly before ECOA took effect. This first iteration of 

Regulation B defined applicant to include “any person to whom credit is or 

has been extended.” 12 C.F.R. § 202.3(c) (1976). If Congress thought this 

definition an unreasonable departure from the statute it had just passed, 

one might expect Congress to have given some sign of that when it 

amended and expanded ECOA the following year. (The drafters of those 

amendments were certainly aware of the new Regulation B, and cited other 

parts of the rule in explaining their bill. See S. Rep. No. 94-589, at 2.) 

But the 1976 amendments said nothing to limit the definition of 

“applicant” the Board had adopted just months before. And in fact, the 

statutory amendments included new provisions—such as the requirement 

that “applicants” be entitled to a statement of reasons when their credit is 

revoked or modified—that make sense only if “applicant” is understood to 

include existing borrowers, as stated in Regulation B. 

Nor has Congress ever amended the definition of “applicant” or 

otherwise expressed disapproval for the understanding of that term in 

Regulation B, despite revising the statute a number of additional times over 

the following decades. See FDIC Improvement Act of 1991, Pub. L. No. 102-

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20 

242, § 223, 105 Stat. 2306-07; Dodd-Frank Act, Pub. L. No. 111-203, 

§§ 1071, 1474, 124 Stat. 2056-57, 2199-2200. 

“[W]hen,” as here, “Congress revisits a statute giving rise to a 

longstanding administrative interpretation without pertinent change, the 

‘congressional failure to revise or repeal the agency’s interpretation is 

persuasive evidence that the interpretation is the one intended by 

Congress.’” CFTC v. Schor, 478 U.S. 833, 846 (1986) (quoting NLRB v. 

Bell Aerospace Co., 416 U.S. 267, 274-75 (1974)). As described above, that 

maxim applies with particular force here: The first time Congress revisited 

the statute after the Board’s rulemaking defined “applicant” to include 

existing borrowers, it enacted new provisions that implicitly approved the 

Board’s interpretation by extending protections to applicants for adverse 

actions that can be taken only with respect to existing borrowers. 

B. Regulation B Removes Any Doubt on This Point 

If there were any uncertainty about ECOA’s protections for existing 

borrowers, it is dispelled by Regulation B, which for nearly half a century—

i.e., the entire time ECOA has been in effect—has expressly provided that 

the term “applicant” includes those who have received credit from a 

creditor. That definition, and the many other provisions of Regulation B 

that are based on that understanding of the term, represent a reasonable 

Case 20-2049, Document 62, 10/07/2020, 2947456, Page26 of 37
21 

and consistent exercise of the Board’s and the Bureau’s authority under 

ECOA to issues rules to carry out the statute’s purpose, including by 

resolving this ambiguity in the statute, and to prevent evasion. These 

provisions are therefore entitled to substantial deference. 

1. Regulation B expressly defines “applicant” to include 

those who have received credit. 

In enacting ECOA, Congress tasked first the Board and now the 

Bureau to “prescribe regulations to carry out the purposes of [the Act].” 

15 U.S.C. § 1691b(a). Like the statute it implements, Regulation B prohibits 

creditors from discriminating on a prohibited basis against “an applicant,” 

12 C.F.R. § 1002.4(a), and requires creditors to provide a statement of 

reasons to “an applicant” for any adverse action, id. § 1002.9(a)-(b). 

As first promulgated by the Board in 1975, Regulation B defined 

“applicant” to include “any person who applies to a creditor directly for an 

extension, renewal or continuation of credit” as well as, “any person to 

whom credit is or has been extended.” 40 Fed. Reg. at 49,306. Since the 

Board amended that definition in 1977, it has included “any person who 

requests or who has received an extension of credit from a creditor.” 

12 C.F.R. § 1002.2(e) (emphasis added); 42 Fed. Reg. 1252 (Jan. 6, 1977). 

Thus, at all times, Regulation B has made clear that the term “applicant” is 

Case 20-2049, Document 62, 10/07/2020, 2947456, Page27 of 37
22 

not limited to those persons who are in the process of applying for credit for 

purposes of ECOA’s protections. 

Many other parts of the rule reflect and incorporate this 

understanding of the term. See, e.g., 12 C.F.R. § 1002.2(m) (defining “credit 

transaction” to mean “every aspect of an applicant’s dealings with a creditor 

regarding an application for credit or an existing extension of credit” 

(emphasis added)); id. § 1002.9(a)(1)(iii) (lender shall notify “an applicant” 

within 30 days of “taking adverse action on an existing account”). 

There is thus no question that under Regulation B, a person, such as 

TeWinkle, who has applied for and received an extension of credit is an 

“applicant” to whom the adverse-action notice requirements (as well as the 

prohibition on credit discrimination) apply.5 It is equally clear that 

TeWinkle can rely on this regulatory definition in pursuing his private right 

of action. That right of action allows applicants to hold liable a creditor 

“who fails to comply with any requirement imposed under [ECOA]” or 

Regulation B. 15 U.S.C. §§ 1691e(a), 1691a(g); see also RL BB Acquisition, 

LLC v. Bridgemill Commons Dev. Grp., LLC, 754 F.3d 380, 386 (6th Cir. 

 

5 Capital One appears never to have argued that TeWinkle did not qualify 

as an “applicant” under the definition in Regulation B, nor could it. 

Case 20-2049, Document 62, 10/07/2020, 2947456, Page28 of 37
23 

2014) (“A creditor who violates Regulation B necessarily violates ECOA 

itself.” (citing 15 U.S.C. § 1691a(g)).

2. Regulation B is a reasonable implementation of ECOA 

and as such is entitled to deference. 

Regulation B’s definition of “applicant” to include those “who ha[ve] 

received an extension of credit,” 12 C.F.R. § 1002.2(e), is a reasonable 

exercise of the Bureau’s authority to issue rules “to carry out the purposes” 

of ECOA, including by resolving ambiguities in the statute, and “to prevent 

circumvention or evasion.” 15 U.S.C. § 1691b(a). It is therefore entitled to 

substantial deference under Chevron, USA, Inc. v. NRDC, 467 U.S. 837 

(1984). See, e.g., NRDC v. EPA, 961 F.3d 160, 169-70 (2d Cir. 2020); see 

also Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 566-69 (1980) 

(emphasizing the “particular[]” deference owing to regulations the Board 

issued pursuant to its similar rulemaking authority under the Truth in 

Lending Act).

As described above, the best reading of ECOA’s statutory language is 

that the term “applicant” includes those who have applied for and received 

credit. It was thus reasonable for the Board and now the Bureau to adopt 

through notice-and-comment rulemaking a definitional provision making 

explicit that understanding. Indeed, adopting the contrary interpretation 

would have led to the serious textual inconsistencies described above. 

Case 20-2049, Document 62, 10/07/2020, 2947456, Page29 of 37
24 

Regulation B’s definition avoids that disruption to the statutory text and, in 

the process, serves to “carry out” and “effectuate” the purposes of ECOA by 

making clear that its protections continue to apply after an applicant 

receives credit. 15 U.S.C. § 1691b(a). 

And because a view that “applicant” is limited to those currently 

applying for credit would open a glaring loophole through which creditors 

could avoid ECOA’s requirements, Regulation B’s definition serves also “to 

prevent circumvention or evasion” by making clear that the law’s 

protections apply also to existing borrowers. Id.

Finally, it is noteworthy that Regulation B’s definition of applicant 

has remained unchanged in this respect since its promulgation by the 

Board in 1975. Courts often “accord particular deference to an agency 

interpretation of ‘longstanding’ duration.” Barnhart v. Walton, 535 U.S. 

212, 220 (2002) (citation omitted). Deference is especially appropriate in 

such circumstances because the regulatory provisions do not create any 

“unfair surprise to regulated parties.” Kisor v. Wilkie, 139 S. Ct. 2400, 2418 

(2019) (discussing the practice of deference in the context of ambiguous 

agency regulations) (quotation marks omitted). 

In short, Regulation B’s 45-year-old construction of the term 

“applicant” addresses ambiguity in the statutory scheme in a way that is 

Case 20-2049, Document 62, 10/07/2020, 2947456, Page30 of 37
25 

entirely consistent with the text, structure, and purposes of ECOA and well 

within the scope of the Board’s and the Bureau’s rulemaking authority. 

Regulation B’s definition is therefore entitled to substantial deference. 

C. The District Court Erred in Its Analysis of the Term 

“Applicant” 

The district court erred in concluding that TeWinkle did not plausibly 

allege that he is an “applicant” under ECOA and Regulation B. 

1. The district court’s reading of ECOA was mistaken for the reasons 

already explained. Rather than “looking to the statutory scheme as a whole 

and placing the particular provision within the context of that statute,” 

Epskamp, 832 F.3d at 162, the district court examined the definition 

provision in isolation. It then read into that definition a limitation that does 

not appear in the text itself and that does not function sensibly alongside 

other provisions of ECOA. 

This is equally true of the other district court decisions that have 

reached the same conclusion. See Kalisz v. Bank of Am., N.A., No. 1:18-cv00516, 2018 WL 4356768, at *2-3 (E.D. Va. Sept. 11, 2018); Stefanowicz v. 

SunTrust Mortg., No. 3:16-cv-00368, 2017 WL 1103183, at *8 (M.D. Pa. 

Jan. 9, 2017) (pro se plaintiff), report and recommendation adopted, 

No. 3:16-cv-00368, 2017 WL 1079163 (M.D. Pa. Mar. 22, 2017), aff’d on 

other grounds, 765 F. App’x 766, 772 (3d Cir. 2019); Gorham-DiMaggio v. 

Case 20-2049, Document 62, 10/07/2020, 2947456, Page31 of 37
26 

Countrywide Home Loans, Inc., 592 F. Supp. 2d 283, 291 (N.D.N.Y. 2008), 

aff’d on other grounds, 421 F. App’x 97 (2d Cir. 2011). And no courts of 

appeals have endorsed these courts’ narrow view of the term “applicant” 

upon review.6

None of these decisions addressed the definition’s place in the larger 

statutory scheme. None discussed ECOA’s definition of “adverse action,” its 

private right of action available to “applicants,” or its prohibition on 

discrimination in “any aspect” of a credit transaction. None grappled with 

the clear avenue of evasion that their interpretation of “applicant” would 

open up. And the only one to even acknowledge Regulation B dismissed it 

in much the same conclusory manner as the district court here. Kalisz, 

2018 WL 4356768, at *3. These cases therefore shed no additional light on 

the question presented here—beyond underscoring the need for this Court 

to make clear in this case the proper reading of “applicant.” 

The interpretation of the statute that Capital One offered in the 

district court is no more persuasive. Addressing the definition of “adverse 

action,” Capital One claimed that its pinched reading of “applicant” could 

“be reconciled with” the definition of adverse action because “it is entirely 

 

6 In affirming the district court’s decision in Gorham-DiMaggio, this Court 

made clear that it was not addressing whether the plaintiff was an 

“applicant” under ECOA. 421 F. App’x at 100 n.1. 

Case 20-2049, Document 62, 10/07/2020, 2947456, Page32 of 37
27 

possible for an applicant for new credit to experience a ‘revocation of credit’ 

or ‘a change in terms of an existing credit arrangement.’” Opp’n to Pl.’s 

Objs. to R. & R. at 14-15 (“Opp’n”) (ECF No. 24). As an example, Capital 

One describes a scenario in which a credit card holder applies to increase 

her credit limit and the creditor responds by cancelling the card outright or 

changing its terms. Id. at 14. Capital One suggests that Congress thought it 

important for a borrower in this situation to receive an adverse-action 

notice about the revocation (she would already be entitled to one for the 

denial of a higher credit limit), but not a borrower whose card is cancelled 

without her having sought a higher credit limit. 

This interpretation is strained, at best. As a drafting matter, it would 

have been odd for Congress to target the relatively uncommon situation 

Capital One describes by defining “adverse action” in terms as broad as “a 

denial or revocation of credit” and “a change in the terms of an existing 

credit arrangement.” 15 U.S.C. § 1691(d)(6). Nor has Capital One explained 

why Congress would have sought to so narrowly circumscribe the reach of 

the notice requirement—particularly since the threat of credit 

discrimination is at least as present for the borrower whose card is 

cancelled without any action on her part. See Powell v. Pentagon Fed. 

Case 20-2049, Document 62, 10/07/2020, 2947456, Page33 of 37
28 

Credit Union, No. 10-cv-785, 2010 WL 3732195, at *4 n.2 (N.D. Ill. Sept. 17, 

2010) (rejecting the same argument for much the same reason). 

Capital One also pointed to a number of places that ECOA uses 

“applicant” in conjunction with the term “application.” See, e.g., 15 U.S.C. 

§ 1691(d)(1) (within 30 days of receiving a “completed application for 

credit,” creditors must notify the “applicant” of its decision on the 

application) (cited in Opp’n at 13-14). This hardly indicates that the 

category of applicants is confined to those with currently pending credit 

applications. If anything, the fact that certain provisions in ECOA specify 

that they concern applicants who are in the midst of applying for credit 

tends to suggest that the term “applicant” is not automatically so limited. 

Along similar lines, Capital One pointed to 15 U.S.C. § 1691(d)(5), 

which allows creditors “who did not act on more than one hundred and fifty 

applications during the calendar year preceding” to provide verbal, rather 

than written, notices. See Opp’n at 14. But this provision was plainly meant 

to identify, and to modify the regulatory burden on, smaller creditors. It 

was reasonable that Congress would choose to do so by reference to the 

number of applications the creditor receives each year, rather than the 

number of current borrowers the creditor serves. That choice does not 

dictate the meaning of “applicant.” 

Case 20-2049, Document 62, 10/07/2020, 2947456, Page34 of 37
29 

Finally, Capital One noted that ECOA’s definition refers not only to 

those who request an extension of credit, but also to those seeking a 

“renewal” or “continuation” of credit. 15 U.S.C. § 1691a(b). Thus, Capital 

One argues, Congress meant to exclude borrowers who had not requested 

to renew or continue their existing credit arrangements. See Opp’n at 9. 

To the contrary, the provision’s sweeping language—covering any person 

who applies for “an extension, renewal, or continuation of credit”—evinces 

an intent to include, not exclude. Given the statutory context, this provision 

is best understood as “Congress employ[ing] a belt and suspenders 

approach” to ensure that the definition is read to apply broadly. 

See Atlantic Richfield Co. v. Christian, 140 S. Ct. 1335, 1350 n.5 (2020). 

2. It also was error for the district court to dismiss Regulation B’s 

definition of “applicant.” JA31. That definition represents a reasonable 

means of implementing ECOA by resolving ambiguity in the statute, as well 

as preventing evasion. As such, it is entitled to substantial deference. See, 

e.g., NRDC, 961 F.3d at 169-70; Treadway v. Gateway Chevrolet 

Oldsmobile Inc., 362 F.3d 971, 976 n.3 (7th Cir. 2004) (provisions of 

Regulation B entitled to deference under Chevron). 

Moreover, ECOA by its own terms provides that its private right of 

action extends to violations of Regulation B, 15 U.S.C. §§ 1691e(a), 1691a(g), 

Case 20-2049, Document 62, 10/07/2020, 2947456, Page35 of 37
30 

and Regulation B states that the “applicants” to which it applies, including 

those who have received credit, are entitled to an adverse-action notice, 12 

C.F.R. §§ 1002.9(a)-(b), 1002.2(e). The district court should have applied 

the longstanding regulatory construction of the term “applicant.” 

CONCLUSION 

The Court should reverse the district court’s holding that TeWinkle 

was not an “applicant” entitled to a statement of reasons for the adverse 

action on his line of credit. 

October 7, 2020 Respectfully submitted, 

Alden F. Abbott 

General Counsel

Joel Marcus 

Deputy General Counsel

Mark S. Hegedus 

Bradley Dax Grossman 

Attorneys

Federal Trade Commission 

600 Pennsylvania Avenue NW 

Washington, DC 20580 

(202) 326-2994 

bgrossman@ftc.gov 

/s/ Kevin E. Friedl 

Mary McLeod 

General Counsel 

John R. Coleman 

Deputy General Counsel 

Steven Y. Bressler 

Assistant General Counsel 

Kevin E. Friedl 

Senior Counsel 

Consumer Financial Protection Bureau 

1700 G Street NW 

Washington, DC 20552 

(202) 435-9268 

kevin.friedl@cfpb.gov 

Case 20-2049, Document 62, 10/07/2020, 2947456, Page36 of 37
 

CERTIFICATE OF COMPLIANCE 

This brief complies with the length limits permitted by Federal Rule 

of Appellate Procedure 29(a)(5) and Local Rule 29.1(c). It is 6,441 words, 

excluding the portions exempted by Federal Rule 32(f). The brief’s typeface 

and type style comply with Federal Rule 32(a). 

/s/ Kevin E. Friedl 

Kevin E. Friedl 

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