## Facts

- The Office of the Comptroller of the Currency (OCC) charters and supervises national banks under the National Bank Act (NBA).
- A 2003 OCC regulation permitted “special-purpose national bank” (SPNB) charters for entities performing at least one core banking function (receiving deposits, paying checks, or lending money), even if not conducting all traditional banking activities.
- In 2018, the OCC announced it would begin accepting SPNB charter applications from nondepository financial technology (fintech) companies engaged in the “business of banking.”
- The New York State Department of Financial Services (DFS), through its Superintendent, alleged the OCC’s policy would enable nondepository fintech firms to obtain federal charters, claim federal preemption, and avoid New York licensing, supervision, consumer protections, and related state revenue.
- DFS sued for declaratory and injunctive relief under the Administrative Procedure Act (APA) and the Tenth Amendment, asserting the OCC lacked statutory authority to charter nondepository fintech companies as national banks.
- The OCC moved to dismiss for lack of subject-matter jurisdiction (standing and ripeness) and failure to state a claim.

## Issues

1. Whether DFS alleged Article III standing to challenge the OCC’s decision to accept SPNB applications from nondepository fintech companies.
2. Whether the dispute was ripe for judicial review before any specific fintech charter was granted.
3. Whether DFS plausibly alleged that the OCC exceeded its authority under the NBA, supporting claims for relief under the APA.
4. Whether the OCC’s asserted chartering authority stated a viable Tenth Amendment violation distinct from the statutory and APA claims.

## Decision

- The court held DFS plausibly alleged standing based on threatened impairment of DFS’s regulatory authority and loss of revenue tied to state licensing and assessments.
- The court held the dispute was ripe because the OCC’s announcement was a definitive agency position with immediate legal consequences and withholding review would impose hardship.
- The court denied the motion to dismiss as to the NBA/APA counts, concluding DFS plausibly alleged the OCC’s nondepository fintech charter policy could exceed statutory authority and be contrary to law.
- The court granted the motion to dismiss the Tenth Amendment count for failure to state a claim.

## Legal Principles

- A state regulator may establish Article III injury by alleging imminent impairment of its regulatory authority and associated economic harms attributable to federal agency action.
- Pre-enforcement review may be ripe where an agency adopts a definitive position that creates a concrete pathway for regulated entities to alter legal relationships and trigger preemption disputes.
- APA claims may proceed where a plaintiff plausibly alleges an agency acted “in excess of statutory jurisdiction” or “not in accordance with law,” even if merits questions (including deference) require fuller analysis beyond the pleadings.
- A Tenth Amendment claim is not independently stated where the asserted injury turns on whether the agency acted within the scope of congressional authorization; the proper vehicle is statutory interpretation and APA review.

## Conclusion

The court permitted DFS’s statutory and APA challenges to the OCC’s nondepository fintech SPNB charter policy to go forward, finding standing and ripeness satisfied, but dismissed the Tenth Amendment claim as duplicative of the statutory-authority dispute.


Vullo v. Office of the Comptroller of the Currency, 378 F. Supp. 3d 271 (S.D.N.Y. 2019)