United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 19, 2014 Decided July 24, 2015

No. 13-5247

STATE NATIONAL BANK OF BIG SPRING, ET AL.,

APPELLANTS

v.

JACOB J. LEW, IN HIS OFFICIAL CAPACITY AS UNITED STATES 

SECRETARY OF THE TREASURY, ET AL.,

APPELLEES

Consolidated with 13-5248

Appeals from the United States District Court

for the District of Columbia

(No. 1:12-cv-01032)

Gregory F. Jacob argued the cause for Private 

Appellants. With him on the briefs were Sam Kazman, Hans 

Bader, C. Boyden Gray, Adam J. White, and Adam R.F. 

Gustafson. 

Patrick R. Wyrick, Attorney, Office of the Attorney 

General for the State of Oklahoma, argued the cause for State 

Appellants. With him on the briefs were E. Scott Pruitt, 

Attorney General, Alan Wilson, Attorney General, Office of 

the Attorney General for the State of South Carolina, James 
2

Emory Smith, Jr., Attorney, Samuel S. Olens, Attorney 

General, Office of the Attorney General for the State of 

Georgia, John E. Hennelly, Attorney, Bill Schuette, Attorney 

General, Office of the Attorney General of the State of 

Michigan, Neil D. Gordon, Attorney, Jon Bruning, Attorney 

General, Office of the Attorney General of the State of 

Nebraska, Katherine J. Spohn, Attorney, Luther Strange, 

Attorney General, Office of the Attorney General for the State 

of Alabama, Andrew L. Brasher, Deputy Solicitor, Derek 

Schmidt, Attorney General, Office of the Attorney General for 

the State of Kansas, Jeffrey A. Chanay, Deputy Attorney 

General, Timothy C. Fox, Attorney General, Office of the 

Attorney General for the State of Montana, Lawrence 

VanDyke, Attorney, Greg Abbott, Attorney General, Office of 

the Attorney General for the State of Texas, John Reed Clay,

Jr., Attorney, Michael DeWine, Attorney General, Office of 

the Attorney General for the State of Ohio, Jennifer L. Pratt, 

Assistant Attorney General, Patrick Morrisey, Attorney 

General, Office of the Attorney General for the State of West 

Virginia, and Elbert Lin, Solicitor General. Matthew T. 

Cochenour, Assistant Attorney General, Office of the 

Attorney General for the State of Montana, and Aaron D. 

Lindstrom, Attorney, Office of the Attorney General for the 

State of Michigan, entered appearances. 

Daniel Tenny, Attorney, U.S. Department of Justice, 

argued the cause for appellees. With him on the brief were 

Stuart F. Delery, Assistant Attorney General, Ronald C. 

Machen, Jr., U.S. Attorney, Mark B. Stern, Attorney, 

Meredith Fuchs, General Counsel, Consumer Financial 

Protection Bureau, John R. Coleman, Senior Counsel, 

Katherine H. Wheatley, Associate General Counsel, Board of 

Governors of the Federal Reserve System, Joshua P. 

Chadwick, Counsel, Colleen J. Boles, Assistant General 

Counsel, Federal Deposit Insurance Corporation, Kathryn R. 
3

Norcross, Senior Counsel, Jerome A. Madden, Counsel, 

Gregory F. Taylor, Douglas B. Jordan, and Gabriel Hindin, 

Attorneys, Office of the Comptroller of the Currency, Michael 

A. Conley, Deputy General Counsel, Securities and Exchange 

Commission, William K. Shirey, Assistant General Counsel, 

Ajay B. Sutaria, Counsel, Office of General Counsel, 

Commodity Futures Trading Commission, and John K. Ianno, 

Senior Associate General Counsel, National Credit Union 

Administration.

Before: ROGERS, KAVANAUGH, and PILLARD, Circuit 

Judges.

Opinion for the Court filed by Circuit Judge 

KAVANAUGH.

KAVANAUGH, Circuit Judge: In response to the financial 

crisis in 2008 and 2009, Congress passed and President 

Obama signed the Dodd-Frank Wall Street Reform and 

Consumer Protection Act. See Pub. L. No. 111-203, 124 Stat. 

1376 (2010). State National Bank is a bank in Big Spring,

Texas, between Midland and Abilene. In this case, the Bank

and a group of States challenge the constitutionality of 

various provisions of the Dodd-Frank Act.

First, State National Bank challenges the constitutionality 

of the new Consumer Financial Protection Bureau created by 

the Dodd-Frank Act. The Bureau is an independent agency 

that regulates consumer financial products and services. The 

Bureau is headed by a single Director. According to the 

Bank, independent agencies must be headed by multiple 

members rather than by a single person. Cf. Humphrey’s 

Executor v. United States, 295 U.S. 602, 624, 631-32 (1935). 

For that reason, among others, the Bank claims that the 

Bureau is unconstitutional. The Bank also argues that 
4

Congress’s broad delegation of authority to the Bureau 

violates the non-delegation doctrine. See J.W. Hampton, Jr., 

& Co. v. United States, 276 U.S. 394, 409 (1928). 

Second, the Bank contests the constitutionality of 

President Obama’s recess appointment of the Bureau’s head, 

Director Richard Cordray. On July 18, 2011, President 

Obama nominated Cordray as Director of the Bureau. As of 

January 4, 2012, the Senate had not acted on the nomination, 

so President Obama used his recess appointment power to 

appoint Cordray during a three-day intra-session Senate 

recess. On July 16, 2013, after Cordray had been serving 

under his recess appointment for 18 months, the Senate 

confirmed Cordray. The Bank alleges that Director Cordray’s 

recess appointment (and the actions he took before he was 

confirmed) was unlawful because the appointment occurred 

during an intra-session recess of insufficient length. See 

NLRB v. Noel Canning, 134 S. Ct. 2550, 2566-67, slip op. at 

19-21 (2014); see also Mathew Enterprise, Inc. v. NLRB, 771 

F.3d 812, 813-14 (D.C. Cir. 2014).

Third, the Bank challenges the constitutionality of the 

new Financial Stability Oversight Council created by the 

Dodd-Frank Act. The Council monitors the stability of the 

U.S. financial system and responds to emerging threats to that 

system. The Council’s voting members include, among 

others, the Secretary of the Treasury, the Chairman of the 

Federal Reserve, the Comptroller of the Currency, the 

Director of the Consumer Financial Protection Bureau, the 

Chairman of the Securities and Exchange Commission, and 

the Chair of the Federal Deposit Insurance Corporation (or 

FDIC). The Council possesses statutory authority to 

designate certain “too big to fail” (as they are colloquially 

known) financial companies for additional regulation in order 

to minimize the risk that such a company’s financial distress 
5

will threaten the stability of the American economy. The 

Bank argues that the Council is unconstitutional under the 

non-delegation doctrine and related separation of powers 

principles because the Council has broad and unchecked 

power to decide which companies should face additional 

regulation.

Fourth, the State plaintiffs challenge the Dodd-Frank 

Act’s grant of new liquidation authority to the U.S.

Government. The Act gives the Treasury, the Federal 

Reserve, and the FDIC “the necessary authority to liquidate 

failing financial companies that pose a significant risk to the 

financial stability of the United States.” 12 U.S.C. § 5384(a). 

That is called “orderly liquidation authority.” The 

Government has broad power when exercising its orderly 

liquidation authority to alter the priority of a financial 

company’s creditors. The State plaintiffs and their pension 

funds are investors in bonds issued by large financial 

institutions. The States say that their current investments are 

worth less because of how the Government might exercise its 

orderly liquidation authority in the future if those financial 

institutions were to run into significant financial difficulties 

and be liquidated or reorganized. The State plaintiffs argue 

that the orderly liquidation authority – because it grants the 

Government broad power to alter the priority of creditors – is 

unconstitutional under the Bankruptcy Clause’s guarantee of

uniform bankruptcy laws and under non-delegation and due 

process principles. 

Plaintiffs filed suit in the U.S. District Court for the 

District of Columbia. The District Court concluded that the 

plaintiffs did not have standing and that their claims were not 

ripe. Plaintiffs appealed to this Court. Our review of the 
6

standing and ripeness determinations is de novo, and we 

consider plaintiffs’ four challenges in turn.1

I

First, State National Bank challenges the constitutionality 

of the new Consumer Financial Protection Bureau created by

the Dodd-Frank Act. The question at this juncture is whether 

the Bank has standing to raise that claim and, if so, whether 

the claim is ripe for review now rather than in any later 

enforcement action against the Bank.

For standing, the question is whether State National Bank 

has suffered an injury in fact caused by the Bureau and 

redressable by the Court. See Lujan v. Defenders of Wildlife, 

504 U.S. 555, 560-61 (1992). The Supreme Court has stated 

that “there is ordinarily little question” that a regulated 

individual or entity has standing to challenge an allegedly 

illegal statute or rule under which it is regulated. Id. at 561-

62. So it is in this case.

State National Bank claims that the Bureau is 

unconstitutional. The Bank is not a mere outsider asserting a 

 1 The 60 Plus Association, which is a nonprofit advocacy 

group representing the interests of seniors, and the Competitive 

Enterprise Institute, which is a nonprofit public policy organization,

also joined the Bank’s suit. On appeal, they do not advance 

arguments for standing independent of the Bank’s arguments. The 

State plaintiffs are the States of Alabama, Georgia, Kansas, 

Michigan, Montana, Nebraska, Ohio, Oklahoma, South Carolina, 

Texas, and West Virginia. The State plaintiffs challenge only the 

Government’s orderly liquidation authority. The Bank, the 60 Plus 

Association, and the Competitive Enterprise Institute joined the 

State plaintiffs’ challenge to the Government’s orderly liquidation 

authority, but they do not advance arguments on appeal for standing 

with respect to that challenge.
7

constitutional objection to the Bureau. The Bank is regulated 

by the Bureau. Under the Dodd-Frank Act, the Bureau “shall 

regulate the offering and provision of consumer financial 

products or services under the Federal consumer financial 

laws.” 12 U.S.C. § 5491(a). The Act authorizes the Bureau 

to implement those “Federal consumer financial laws through 

rules, orders, guidance, interpretations, statements of policy, 

examinations, and enforcement actions.” Id. § 5492(a)(10). 

State National Bank offers and provides consumer financial 

products and services. The Bureau has already exercised its 

broad regulatory authority to impose new obligations on 

banks, including State National Bank. For example, in 2012 

the Bureau promulgated the Remittance Rule. See 12 C.F.R. 

§§ 1005.30-1005.36. The Remittance Rule imposes

disclosure requirements on institutions that offer international 

remittance transfers, which are electronic money transfers. 

The Rule also offers a safe harbor, but banks such as State 

National Bank must incur costs to ensure that they are 

properly complying with the terms of that safe harbor. See 77 

Fed. Reg. 50,244, 50,274-75 (Aug. 20, 2012). The Bank 

indeed alleged that it must now monitor its remittances to stay 

within the safe harbor, and the monitoring program causes it 

to incur costs. See Purcell Decl. ¶¶ 18, 20, J.A. 105.

There is no doubt that the Bank is regulated by the 

Bureau. Under Lujan, the Bank therefore has standing to 

challenge the constitutionality of the Bureau.

The remaining question at this stage is when the Bank 

may bring its claim. May it do so only as a defense in a future

enforcement action, or may it bring this pre-enforcement 

challenge? That is a question of ripeness. The Supreme 

Court’s landmark decision in Abbott Laboratories largely 

resolved the ripeness issue for many challenges to agency 

action. See Abbott Laboratories v. Gardner, 387 U.S. 136, 
8

148-53 (1967). There, the Supreme Court ruled that affected 

parties could challenge agency regulations in pre-enforcement 

suits. The Supreme Court explained that regulated parties

generally need not violate a law in order to challenge the law. 

See id. at 152-53.

The Bank is not challenging an agency rule that regulates

its conduct (the usual kind of agency case we see), but rather

is challenging the legality of the regulating agency itself. 

Still, the same basic Abbott Laboratories reasoning applies.

As the Supreme Court stated in Free Enterprise Fund, it 

would make little sense to force a regulated entity to violate a 

law (and thereby trigger an enforcement action against it)

simply so that the regulated entity can challenge the 

constitutionality of the regulating agency. See Free 

Enterprise Fund v. Public Co. Accounting Oversight Board, 

561 U.S. 477, 490 (2010). To use the Supreme Court’s 

words, we “normally do not require plaintiffs to bet the farm” 

by violating the law in order to challenge the constitutionality 

of the regulating agency. Id. (internal quotation marks 

omitted). 

In short, the Bank has standing to challenge the 

constitutionality of the Consumer Financial Protection 

Bureau, and the case is ripe. The parties have not briefed the 

merits of the constitutional challenge to the Bureau. We 

therefore reverse and remand to the District Court for it to 

consider the merits of that claim. 
9

II

Second, State National Bank contests the legality of 

President Obama’s recess appointment of the Bureau’s 

Director, Richard Cordray. Because of that allegedly illegal

recess appointment, the Bank claims that the Bureau has

operated in an unconstitutional manner. For the same reasons

that the Bank has standing to challenge the constitutionality of 

the Bureau, the Bank has standing to challenge Director 

Cordray’s recess appointment. And for the same reasons that 

the Bank’s challenge to the Bureau is ripe, the Bank’s 

challenge to Cordray’s recess appointment is likewise ripe. 

We therefore reverse and remand to the District Court for 

consideration of the merits of this issue in light of the 

Supreme Court’s decision in Noel Canning. See NLRB v. 

Noel Canning, 134 S. Ct. 2550, 2557, 2566-67, slip op. at 2, 

19-21 (2014). In considering the Bank’s claim, we leave it to 

the District Court to consider the significance of Director 

Cordray’s later Senate confirmation and his subsequent 

ratification of the actions he had taken while serving under a 

recess appointment.

III

Third, the Bank argues that the Financial Stability 

Oversight Council created by the Dodd-Frank Act is 

unconstitutional. The Bank does not have standing to assert

that claim. 

The Dodd-Frank Act created a new Financial Stability 

Oversight Council “to identify risks to the financial stability 

of the United States that could arise from the material 

financial distress or failure, or ongoing activities, of large, 

interconnected bank holding companies or nonbank financial 

companies.” 12 U.S.C. § 5322(a)(1)(A). 
10

To meet that objective, the Council has the authority to 

designate certain “too big to fail” financial institutions for 

additional regulation, including supervision by the Federal 

Reserve. See 12 U.S.C. §§ 5323(a)(1), 5365. So far, the 

Council has designated American International Group, GE

Capital Corporation, MetLife, and Prudential Financial for 

additional regulation and supervision.

State National Bank is a bank located in West Texas. 

State National Bank offers consumer financial services, 

including consumer deposit accounts and agricultural loans. 

State National Bank does not allege that it is subject to 

additional regulation as a “too big to fail” entity. Rather, it 

alleges that it is a competitor of GE Capital, which has been 

designated by the Council for additional regulation. GE 

Capital similarly offers consumer deposit accounts and 

agricultural loans in West Texas.

The Bank argues that the Council’s designation of GE

Capital for additional regulation has indirectly harmed State 

National Bank. According to the Bank, “GE Capital receives 

a reputational subsidy as a result of” its designation by the 

Council for additional regulation, “which allows GE Capital 

to raise money at lower costs than it otherwise could, 

negatively impacting the Bank’s ability to compete for the 

same finite funds.” State National Bank Br. 46.

As we have noted, if a party is the “object” of a 

government action, “there is ordinarily little question” that the 

party has standing to challenge the action. Lujan v. Defenders 

of Wildlife, 504 U.S. 555, 561-62 (1992). A bank adversely

affected because it was designated “too big to fail” would 

presumably have standing to challenge such a designation. 

This is not such a case. To begin with, at the time of the 

complaint, GE Capital had not yet been designated for 
11

additional regulation. In any event, the Bank here is 

complaining about the “too big to fail” designation of 

someone else. When “a plaintiff’s asserted injury arises from 

the government’s allegedly unlawful regulation (or lack of 

regulation) of someone else, much more is needed.” Id. at

562. 

To surmount that hurdle, the Bank relies on the doctrine 

of competitor standing. Under that doctrine, a plaintiff in 

some circumstances may challenge the Government’s 

allegedly illegal under-regulation of the plaintiff’s competitor. 

Competitors suffer an injury in fact “when agencies lift 

regulatory restrictions on their competitors or otherwise allow 

increased competition against them.” Sherley v. Sebelius, 610 

F.3d 69, 72 (D.C. Cir. 2010) (internal quotation marks 

omitted). But here, State National Bank’s competitor (GE 

Capital) labors under a greater regulatory burden as a result 

of the Dodd-Frank Act. The Bank cites no precedent 

suggesting that a plaintiff has standing to challenge a 

regulation that merely imposes enhanced regulatory burdens 

on the plaintiff’s competitor. The Bank retorts that the extra 

regulatory burden on GE Capital actually creates a 

reputational benefit for GE Capital. The problem with that 

novel theory, at least in this case, is that the link between

(i) the enhanced regulation of GE Capital, (ii) any alleged 

reputational benefit to GE Capital, and (iii) any harm to State 

National Bank is simply too attenuated and speculative to 

show the causation necessary to support standing. Cf. Allen v. 

Wright, 468 U.S. 737, 759 (1984); Florida Audubon Society v. 

Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996).

We affirm the District Court’s judgment that the Bank 

lacks standing to pursue this claim.
12

IV

Fourth, the State plaintiffs challenge the Dodd-Frank 

Act’s “orderly liquidation authority.” This new orderly 

liquidation authority gives the Government broad power to 

liquidate failing financial institutions that pose a significant 

risk to the stability of the U.S. financial system. See 12 

U.S.C. §§ 5384, 5390. Pursuant to the Government’s orderly 

liquidation authority, the FDIC is authorized to treat similarly 

situated creditors of a company differently if doing so will 

increase the value of the company’s assets or minimize losses. 

See id. § 5390(b)(4). 

The State plaintiffs argue that the orderly liquidation 

authority is unconstitutional because it deprives the States of 

the uniform treatment to which they say they are 

constitutionally entitled under the Bankruptcy Clause of the 

Constitution, and which they previously enjoyed under the 

Bankruptcy Code. They also raise non-delegation and due 

process arguments. 

The State plaintiffs’ theory for standing and ripeness is as 

follows: (i) the States and their pension funds have invested in

financial companies, (ii) the States are therefore potential 

creditors in possible future liquidations or reorganizations of 

those financial companies, (iii) in such a liquidation or 

reorganization, the Government’s new orderly liquidation 

authority could deprive the States of the uniform treatment 

they claim they are entitled to, and (iv) as a result, their 

current investments are now worth less than they otherwise 

would be.

There are several independent problems with that theory.

First of all, the State plaintiffs will be affected by the orderly 

liquidation authority only if a company in which they are 

invested is liquidated or reorganized by the Government, and 
13

only if the States are then treated differently from other 

similarly situated creditors. It is premature for a court to 

consider the legality of how the Government might wield the 

orderly liquidation authority in a potential future proceeding. 

Second, to the extent the State plaintiffs say that future 

uncertainty over how such a proceeding would unfold affects 

the current value of their investments, the State plaintiffs have 

not sufficiently alleged or demonstrated that their current 

investments are worth less now, or have been otherwise 

adversely affected now, because of the Government’s new 

orderly liquidation authority. Moreover, by the State 

plaintiffs’ logic, virtually any investor could raise a prebankruptcy constitutional challenge to any bankruptcy-related 

statute, on a theory that the value of the investor’s 

investments would be higher if the challenged provision were 

deemed unconstitutional. But we are not aware of any case 

that has allowed such a lawsuit, and the State plaintiffs cite no 

such case. See Thomas W. Merrill & Margaret L. Merrill, 

Dodd-Frank Orderly Liquidation Authority: Too Big for the 

Constitution?, 163 U. Penn. L. Rev. 165, 200 (2014) (“If the 

mere existence of a debt were enough to confer standing to 

challenge a change in the legal treatment of creditors, then 

any person would be able to challenge any change in the law 

that might conceivably affect their interests as creditors 

sometime in the future. This is clearly not the law.”); id. (It 

“is not clear that this alleged injury, even if otherwise 

sufficient to confer standing, would support standing to 

challenge the” orderly liquidation authority’s 

“constitutionality prior to the actual commencement of an” 

orderly liquidation authority “receivership.”). 

The State plaintiffs’ theory, in short, does not satisfy 

standing or ripeness requirements. See Susan B. Anthony List 

v. Driehaus, 134 S. Ct. 2334, 2341 n.5, slip op. at 7 n.5 (2014) 

(“The doctrines of standing and ripeness originate from the 
14

same Article III limitation” and in certain circumstances can 

“boil down to the same question.”) (internal quotation marks 

omitted).

The State plaintiffs separately argue that they have 

standing because the Dodd-Frank Act took away a statutory 

right to uniform treatment that they had previously enjoyed 

under the Bankruptcy Code. In the usual “statutory right”

case, a plaintiff claims that an Executive Branch agency has 

deprived the plaintiff of a right guaranteed by statute. See, 

e.g., Zivotofsky v. Secretary of State, 444 F.3d 614, 617-19 

(D.C. Cir. 2006) (standing to challenge Secretary of State’s 

authority to designate birth place on passport in contravention 

of a federal statute); see also FEC v. Akins, 524 U.S. 11, 21-

25 (1998) (standing to challenge agency’s denial of request 

for information). There is ordinarily little problem finding 

standing in such cases. The injury in fact in those cases is the 

agency’s infringement of a present statutory right to the 

detriment of the plaintiff. That is not what we have here. 

This is not a case where a plaintiff claims that the Executive 

Branch has deprived the plaintiff of a right afforded by 

statute. Here, Congress enacted a new statute that superseded

an old statute. Plaintiffs challenge the new statute. But to 

challenge the new statute, all that the plaintiffs can argue (and 

do argue) is that the new statute is unconstitutional. But as 

we have explained above, they do not have standing to press 

that constitutional claim nor is such a claim ripe for review.

2

 2 If the State plaintiffs are injured at some point in the future 

by a liquidation or reorganization under the Government’s orderly 

liquidation authority, the State plaintiffs can seek to raise their 

constitutional arguments then, as the Government acknowledges. 

See generally Webster v. Doe, 486 U.S. 592, 603 (1988).
15

* * *

To sum up: First, the Bank has standing to challenge the 

constitutionality of the Consumer Financial Protection 

Bureau, and that claim is ripe. We therefore reverse the 

judgment of the District Court on that claim and remand for it 

to consider in the first instance the Bank’s constitutional 

challenge to the Bureau. Second, the Bank has standing to 

challenge Director Cordray’s recess appointment, and that 

claim is ripe. We therefore also reverse the judgment of the 

District Court on that claim and remand for it to consider in 

the first instance the Bank’s constitutional challenge to the 

recess appointment. Third, the Bank lacks standing to 

challenge the constitutionality of the Financial Stability 

Oversight Council. We affirm the judgment of the District 

Court on that claim. Fourth, the State plaintiffs lack standing 

to challenge the Government’s orderly liquidation authority, 

and that claim is not ripe. We affirm the judgment of the 

District Court on that claim. 

The judgment of the District Court is affirmed in part, 

reversed in part, and remanded for further proceedings. 

So ordered.