Judicial Review of Agency Actions

Nobody likes Vullo v. OCC, New York's challenge to the nondepository national fintech charter half a decade ago. For most people in the industry, the case stands for the idea that the OCC can’t charter national banks that don’t take deposits, unless the bank is restricted to trust company activities. The OCC dislikes this for a few reasons, but mostly because it isn’t true. The lower court’s decision against the OCC was reversed on procedural grounds, and the case went away after the applicant at issue applied for deposit insurance. Had the lower court’s substantive reasoning been put to the...

On Friday, May 30th, the CFPB filed a motion for summary judgment in Forcht Bank v. CFPB asking the court to vacate the entire rule implementing Section 1033 (Rule). The motion argues that the Rule is unlawful under the Administrative Procedure Act (APA) as it exceeds the agency’s statutory authority and is arbitrary and capricious. The CFPB states that the change in position is the result of the agency’s review of existing rules under Executive Order 14219 to ensure they are based on the best reading of the underlying statute and do not impose undue burdens on small businesses and impede...

On April 9, 2025, President Trump signed a Presidential Memorandum “Directing the Repeal of Unlawful Regulations” and an accompanying “Fact Sheet” (the Presidential Memorandum and the Fact Sheet shall hereinafter be referred to as the “Memorandum”) directing the heads of federal agencies to expeditiously repeal “facially unlawful regulations.” The Memorandum requires the agencies to prioritize the repeal of regulations that conflict with ten Supreme Court decisions listed in the Memorandum, and requires the agencies to act without following the Administrative Procedure Act’s (APA) notice and...

It seems like the broad regulatory review ordered by EO 14219 was drowned out by last month’s other noise. And, at most agencies, staffing upheaval will make it hard to take rapid deregulatory action. But for the prudential banking regulators, the situation might be different. ➡️ Broad Regulatory Review The EO calls for a government-wide review of regulations AND guidance for modification or rescission under seven legal or policy grounds. Four of the seven implicate conservative legal theories on federalism, delegation, and statutory interpretation. The other three implicate the...

On February 19, 2025, President Trump signed an Executive Order directing a broad-based effort to scale back administrative regulations and enforcement across the Federal Government (the “Deregulation Order”). The Deregulation Order calls for a government-wide review of regulations for modification or rescission under seven enumerated legal or policy grounds. It also orders agencies to de-prioritize enforcement inconsistent with Administration policy and legal views, including termination of ongoing proceedings. While the Deregulation Order applies to almost all domestic non-security...

In Corner Post v. Board of Governors, FRS, the U.S. Supreme Court determined that a claim under the Administrative Procedure Act (“APA”) does not accrue for purposes of the applicable statute of limitations until the plaintiff is injured by final agency action. Corner Post is a North Dakota truck stop and convenience store that opened in 2018. Like most merchants, it accepts debit cards as a form of payment and therefore pays an interchange fee to the bank that issued the card. The allowable amount of the interchange fee is set by the Federal Reserve Board (“Board”) pursuant to its authority...

On June 28, 2024, the Supreme Court issued its opinion in Loper Bright Enterprises v. Raimondo, holding that the Chevron Doctrine was inconsistent with the Administrative Procedure Act. For financial services firms, the impact of the decision will vary from agency to agency. National banks, for example, have benefited from the application of the Chevron Doctrine to actions by the Office of the Comptroller of the Currency. Going forward, however, actions by regulatory agencies must more closely be linked to statutory language, and agency justifications for regulations and other actions will be...

We provide comprehensive legal and regulatory support for government relations teams, trade associations, and policy consultants engaged in federal financial services policy advocacy. Our public policy practice covers the full range of advocacy support services, including congressional testimony, legislative drafting, comment letters, regulatory monitoring, FOIA requests, white papers, and strategic engagement with policymakers. We help clients understand regulatory developments, develop informed policy positions, and advocate effectively before Congress and federal agencies. Services...