Biden Administration Embraces Narrower View of National Bank Act Preemption

Disagrees with 2021 OCC position

The Biden Administration, through the Solicitor General, has filed a brief responding to the Supreme Court’s request for its views in two related cases concerning the preemptive effect of the National Bank Act on state laws requiring the payment of interest on mortgage escrow accounts. The Supreme Court has not yet decided to hear either of the cases and this brief from the Solicitor General is intended to provide the views of the federal government as to whether the Court should involve itself.

In summary, the Biden Administration says that the Supreme Court should decline to hear the case. In so doing, the Solicitor General’s brief takes issue with the Second Circuit decision below taking a broad view of National Bank Act preemption, as well as a Ninth Circuit decision taking a much narrower view.

This post looks at the administration’s arguments in Part III. Part I provides brief background and Part II summarizes the decisions below that are at issue, including the position previously taken by the Office of the Comptroller of the Currency in those cases.

I. (Abbreviated) Statutory Background

In the United States, commercial banks may be chartered either at the federal or state level. Most banks with a federal charter operate under the National Bank Act (NBA).¹ The NBA grants to national banks a broad set of powers, including both enumerated powers and incidental powers necessary to carrying on the business of banking.

Unlike in other contexts where courts when confronted with a claim that federal law preempts state law apply a “presumption against preemption,” no such presumption applies under the National Bank Act. Instead, the Supreme Court in a case called Barnett Bank explained that the National Bank Act’s grants of powers are “grants of authority not normally limited by, but rather ordinarily pre-empting, contrary state law.”

Barnett Bank, decided in 1996, represented the Supreme Court’s effort to summarize and apply the holdings of more than a century of cases examining whether state laws are preempted by the National Bank Act. The OCC later in 2004 issued regulations saying that any state law that works to “obstruct, impair or condition" a national bank's powers in the areas of lending, deposit taking and other national bank operations was preempted by the NBA. Concurrently with adopting these regulations, the OCC issued a Q&A saying that it believed its regulation “captures the essence” of the tests laid down by the Supreme Court.

How does the preemption standard included in the Final Rule – “obstruct, impair, or condition” – fit with the United States Supreme Court precedents?

The preemption standard in the Final Rule is a distillation of the many preemption standards applied by the Supreme Court over the years. These include “obstruct,” “stands as an obstacle to,” “impair the efficiency of,” “condition the grant of power,” “interfere with,” “impair,” “impede,” and so on. Courts have recognized that no one phrase necessarily captures the full range of conflicts that will lead to a preemption of state law. We are not applying a standard that is inconsistent with those applied by the Supreme Court. Rather, we are adopting a standard that captures the essence of the tests used in various Supreme Court decisions. The preamble to the final rule expressly states that we are not trying to create a standard different from what the Court has expressed.

Dodd-Frank Act

The Dodd-Frank Act made several changes or clarifications with respect to preemption. Two provisions of the Act are important context for the cases at issue today.²

First, the Dodd-Frank Act says that a “State consumer financial law” may be preempted only if:

• applying the law would have a discriminatory effect on national banks as compared to state banks;

• “in accordance with the legal standard for preemption in the decision of the Supreme Court of the United States in Barnett Bank of Marion County, N. A. v. Nelson, Florida Insurance Commissioner, et al., 517 U.S. 25 (1996), the State consumer financial law prevents or significantly interferes with the exercise by the national bank of its powers”; or

• the State consumer financial law is preempted by another federal law other than the Title 62 of the Revised Statutes.

Second, and arguably not relevant to the cases at issue here (but see below), the Dodd-Frank Act added a new provision to the Truth in Lending Act (TILA). This new provision, which appears at 15 USC 1639d, says that certain escrow accounts must be created for certain mortgages, and that “each creditor” shall pay interest on those accounts if “prescribed by applicable State or Federal law.”

Dodd-Frank was enacted in 2010 and the above-described preemption change became effective July 21, 2011. The addition of Section 1639d did not become effective until January 21, 2013.

On July 20, 2011, the OCC issued updated preemption regulations. The OCC removed from its regulation the “obstruct, impair, or condition” language it had adopted in 2004, saying that though this standard was intended to be consistent with Barnett Bank, it “had resulted in misunderstanding and confusion.” The OCC also made clear, however, that it did not see the Dodd-Frank Act as imposing any standard different than the one under Barnett Bank:

With respect to the specifics of the proposal, the OCC concludes that the Dodd-Frank Act does not create a new, stand-alone “prevents or significantly interferes” preemption standard, but rather, incorporates the conflict preemption legal standard and the reasoning that supports it in the Supreme Court’s Barnett decision. This result follows from the language of the statute; is supported by language of other, integrally-related portions of the Dodd-Frank Act preemption provisions; was so described by its sponsors at the time of enactment as intending that result; is consistent with the interpretation Federal courts have accorded virtually identical preemption language in the Gramm-Leach-Bliley Act of 1999 (GLBA); and subsequently has been explained as embodying the intent of the sponsors of the language.

As this CRS report explains, the OCC’s approach was divisive even among those who voted for or otherwise supported the Dodd-Frank Act.

Some believed that the OCC’s updated preemption regulations did not do enough to change the OCC’s preemption approach in light of Dodd-Frank.

After the OCC issued the notice, the Treasury Department’s General Counsel wrote a letter to the Comptroller of the Currency arguing that the OCC’s proposed rule was “inconsistent with the plain language of [Dodd-Frank] and its legislative history.” Specifically, the Treasury Department argued that interpreting Section 1044 as making no significant changes to existing preemption law conflicted with “basic canons of statutory construction” and legislative history indicating that the provision was intended to “revise[]” the OCC’s preemption standard. Senator Carl Levin also expressed disagreement with the proposed rules in a letter to the Comptroller, arguing that “[i]f [Congress] had wanted to leave the OCC’s purported federal preemptive powers unchanged, [it] could have engaged in a very simple exercise—do nothing.”

Other prominent Democrats, however, felt the OCC got it right.

Other Senators expressed support for the OCC’s proposed rules. Senators Tom Carper and Mark Warner criticized the Treasury Department’s letter for “ignor[ing] the clear legislative history indicating that [Section 1044] is intended to codify the Barnett case.” In responding to the Treasury Department’s argument that Section 1044 was intended to “revise” the OCC’s preemption standards, Senators Carper and Warner argued that the OCC’s proposed rules would effectuate the contemplated revision by removing the potentially troublesome “obstruct, impair, or condition” language from the agency’s 2004 rules.

II. The Circuit Court Decisions: Lusnak, Kivett and Cantero

Coming back to the present day, two cert petitions are before the Supreme Court. In Kivett v. Flagstar Bank, the Ninth Circuit, relying on an earlier decision called Lusnak, has held that California’s law requiring the payment of interest on certain escrow accounts is not preempted with respect to national banks. In Cantero v. Bank of America, the Second Circuit has determined that New York’s law requiring the payment of interest on certain escrow accounts is preempted with respect to national banks. This section looks at the facts of those cases, the decisions issued by the courts, and the positions previously taken by the OCC

Lusnak v. Bank of America

In 2008 Donald Lusnak purchased a home with a mortgage from Countrywide Financial, a bank that was later sold to Bank of America. Lusnak in 2009 refinanced his mortgage and in 2011 agreed with Bank of America to a modification of certain terms.

To obtain his mortgage, Lusnak had been required to open a mortgage escrow account into which he would pay $250 per month. California law requires “[e]very financial institution” to pay at least 2% interest on mortgage escrow accounts. Bank of America believed this law did not apply to national banks as it was preempted by the National Bank Act, and so did not pay interest to Lusnak. In 2014, Lusnak filed a class action saying that by not paying him or other Bank of America customers interest Bank of America had violated California and federal law.

Bank of America moved to dismiss the case. The district court agreed, holding that the National Bank Act preempted the application of the California interest-on-escrow law to Bank of America.

Ninth Circuit Decision

In March 2018, the Ninth Circuit (Judges Berzon, Christen and Nguyen) reversed the district court, holding that the National Bank Act did not preempt California law in this case.

In the court’s view, Bank of America had failed to “affirmatively demonstrate that Congress intended to preclude states from enforcing their escrow interest laws” because Bank of America had not shown that the California law would “prevent[] or significantly interfere[]” with the powers of national banks.

Key to the Ninth Circuit’s holding was Section 1639d, which, although not applicable to Lusnak’s mortgage, the court took as a clear expression of “Congress’s view that such interest-on-escrow laws would not necessarily prevent or significantly interfere with a national bank’s operations.”

The court also argued that looking to the legislative history of Section 1639d further supported its conclusion, saying that the legislative history “shows Congress’s view that creditors, including large corporate banks like Bank of America, can comply with state escrow interest laws without any significant interference with their banking power.”

Bank of America Seeks En Banc Review and OCC Files Amicus Brief

After the panel decision in Lusnak, Bank of America sought en banc review. The OCC filed an amicus brief in support of Bank of America, saying that the Ninth Circuit panel’s preemption analysis was erroneous and had “introduce[d] significant uncertainty in a vital area of the law” that was a “matter of foundational consequence to the OCC and to the federal banking system.”

Compared to the Ninth Circuit panel’s opinion, the OCC’s brief devoted relatively little time to Section 1639d. The OCC said that because 1639d was inapplicable to Lusnak’s mortgage it was wrong for the Ninth Circuit to have relied on it. Thus it was “unnecessary for the OCC to take a position upon the interaction of that amendment with the NBA and the OCC’s implementing regulations, if any.”

Instead, the OCC focused on the Ninth Circuit’s preemption analysis under Barnett Bank’s prevent or significantly interfere standard as codified by the Dodd-Frank Act. The OCC’s concluded that California law would result in significant interference because, as the district court had found, this law would “allow a state to (1) impose additional burdens on national bank lending activity, (2) add a fixed and inflexible interest rate on national bank escrow account activity, and (3) subject national banks to potentially diverse and duplicative requirements across other states.”

In its amicus brief the OCC also highlighted a case not mentioned in the Ninth Circuit’s decision, Franklin National Bank of Franklin Square v. New York. This is a 1954 Supreme Court decision holding that a New York state law that prevented national banks from using the word “saving” or “savings” in advertising was preempted. The Court reached this result even though the practical effect of the law was only to burden “the power to advertise using variations on a specific word.”

None of this proved persuasive in the context of Bank of America’s en banc petition. The panel voted against en banc rehearing, and no other judge of the Ninth Circuit requested a vote.

Supreme Court Denies Cert Petition

After the Ninth Circuit declined to hear the case en banc, Bank of America asked the Supreme Court to take the case, but the Court in November 2018 declined to so, with no noted dissents as to the denial.

Kivett v. Flagstar Bank

The facts of Kivett are similar to Lusnak. William Kivett, Bernard Bravo and Lisa Bravo brought a class action against Flagstar on behalf of current and former mortgagors to whom Flagstar had not paid interest on escrow counts, notwithstanding California law. The district court, applying Lusnak, granted summary judgment to the plaintiffs and awarded a judgment of a little more than $9 million.

Ninth Circuit Decision

In May 2022 in an unpublished decision the Ninth Circuit (Judges Bybee, Nelson and Bolton) affirmed the district court’s order, holding that the outcome in Kivett was controlled by Lusnak.

Flagstar was in a tough spot here given Lusnak, and so had tried to seize on the “large corporate banks” language in Lusnak as implying that the outcome might be different for a relatively smaller bank like Flagstar. The Ninth Circuit was not convinced, saying that Lusnak’s holding was unqualified.

Pending Cert Petition

Flagstar subsequently asked the Supreme Court to hear its case, and it is this cert petition on which the Supreme Court has asked the Solicitor General to express the views of the United States.

Cantero v. Bank of America

New York, like California, has a similar law requiring the payment of interest on certain escrow accounts.³ In 2010, Alex Cantero purchased a home in Queens with a mortgage from Bank of America and in 2016 Saul Hymes and Ilana Harwayne-Gidansky purchased a home on Long Island, also with a mortgage from Bank of America. In both instances, the plaintiffs were required by Bank of America to deposit money into escrow, and in neither case did Bank of America pay interest.

The Cantero and Hymes cases were considered together by the district court. Taking an approach similar to that taken by the Ninth Circuit in Lusnak with respect to California law, the district court found that the New York law’s interference with the powers of national banks was “minimal.” The court also concluded that Section 1639d, though not applicable to the specific mortgages at issue here,⁴ was nonetheless evidence of Congress’s “policy judgment that there is little incompatibility between requiring mortgage lenders to maintain escrow accounts and requiring them to pay a reasonable rate of interest on sums thereby received.”

Bank of America’s Appeal and the OCC’s Amicus Brief

Bank of America appealed the district court’s ruling to the Second Circuit. In June 2021, the OCC filed an amicus brief in support of the bank. As it had done in its Ninth Circuit amicus brief a few years earlier under different leadership, the OCC called the question at issue one of “foundational consequence to the OCC and to the federal banking system.” This 2021 amicus brief was filed by the OCC after Acting Comptroller Hsu assumed his current role, and was signed by the OCC’s then (and still now) Chief Counsel.

The OCC urged the appellate court to overturn the district court’s decision and “conclude that a state law that requires a national bank to pay even a nominal rate of interest on a particular category of account impermissibly conflicts with a national bank’s power by disincentivizing the bank from continuing to offer the product.”

Here again, the OCC pointed to Franklin, saying that the reasoning of Franklin had been adopted by the Barnett Bank court and thus still carries force given that Dodd-Frank codified the Barnett Bank standard:

Accordingly, despite the fact that state restrictions burdened only the power to advertise using variations on a specific word, the Supreme Court nevertheless held that the naming restriction stated a conflict sufficient to preempt the state statute. Barnett itself relied upon Franklin for the proposition that “where Congress has not expressly conditioned the grant of a power upon a grant of state permission, the Court has ordinarily found that no such condition applies.” Barnett, 517 U.S. at 35. Against this backdrop, the Court should conclude that a state law that requires a national bank to pay even a nominal rate of interest on a particular category of account impermissibly conflicts with a national bank’s power by disincentivizing the bank from continuing to offer the product. This is sufficient to trigger preemption under Barnett. [citing cases]

The OCC’s amicus brief declined to take a position on how, if at all, Section 1639d would change the analysis, given that Section 1639d did not apply here and thus “the District Court’s attempt to engraft § 1639d(g)(3) into its Barnett analysis is inappropriate.”

Second Circuit Decision

The Second Circuit (Judges Livingston, Park and Pérez) reversed the district court and ruled in favor of Bank of America, holding that New York law was preempted by the National Bank Act,⁵ at least with respect to the mortgages at issue.

As urged in the OCC’s briefing, the court found the Supreme Court’s decision in Franklin to be on point, explaining that the standard to be applied when approaching national bank preemption questions is whether the law would exert control over a national bank’s exercise of its powers.

The banking power at issue here is the power to create and fund escrow accounts. Like the regulation in Franklin National, GOL § 5-601 would target, curtail, and hinder a power granted to national banks by the federal government. By requiring a bank to pay its customers in order to exercise a banking power granted by the federal government, the law would exert control over banks’ exercise of that power. […]

The issue is not whether this particular rate of 2% is so high that it undermines the use of such accounts, or even if it substantially impacts national banks’ competitiveness. The power to set minimum rates is the “power to control,” and the power to control is the “power to destroy.” McCulloch, 17 U.S. at 431.

As for the import of Section 1639d, the Second Circuit disagreed with what it saw as the district court’s conclusion that “the TILA amendments somehow reflected Congress’s judgment that all escrow accounts, before and after Dodd-Frank, must be subject to such state laws.”

[T]he court improperly reasoned that Congress’s decision to subject some escrow accounts to state interest-on-escrow laws “evince[d] a clear congressional purpose to subject all mortgage lenders to state escrow interest laws.” Hymes, 408 F. Supp. 3d at 189 (emphasis in original); see also Lusnak, 883 F.3d at 1196 (suggesting that Section 1639d reflects a more general judgment against preemption because it shows “Congress’s view that creditors . . . can comply with state escrow interest laws without any significant interference with their banking powers”).

The court correctly noted that preemption analysis is a question of congressional intent. But to assess congressional intent in the preemption context, we employ the ordinary rules of statutory interpretation. The district court’s approach—to note certain exceptions granted by Congress, to infer from those a broader “intent” of Congress, and then to extrapolate further exceptions from there—is not an appropriate means of determining a statute’s legal effect. See Holy Trinity Church v. United States, 143 U.S. 457 (1892) (applying similar reasoning); United States v. Lucero, 989 F.3d 1088, 1098 n.8 (9th Cir. 2021) (remarking that Holy Trinity Church’s approach has “long been disfavored”). To the contrary, the enumeration of only some exceptions typically implies the exclusion of others. See Stow Mfg. Co. v. Comm’r, 190 F.2d 723, 726 (2d Cir. 1951) (L. Hand, J.) (“That choice must have been deliberate: expressio unius, exclusio alterius.”).

Here, it is much more “harmonious[]” to read the NBA together with Dodd-Frank as a decision by Congress to carve out an exception from its general rule, rather than expressly imposing a burden on some mortgage loans in order to impliedly impose a burden on all of them. Hymes, 408 F. Supp. 3d at 198.

Judge Pérez’s Concurrence

Judge Pérez joined the majority opinion in full. She wrote a separate concurrence, however, to explicitly state her view that when (unlike in this case) Section 1639d applies to a mortgage, the National Bank Act does not preempt state law requiring interest on escrow.

Pending Cert Petition

The losing plaintiffs have asked the Supreme Court to hear this case. As it did with Flagstar’s petition in Kivett, the Supreme Court asked the Solicitor General to express the views of the United States.

III. The Biden Administration’s Position

The Solicitor General’s brief says that when making a determination as to whether the “significantly interferes” standard in the statute has been met, a court “must make a practical assessment of the degree to which the state law will impede the exercise” of a national bank’s powers.

In the Biden Administration’s view, neither the Ninth Circuit decision nor the Second Circuit decision, which reached opposite conclusions, properly conducted this analysis. Nonetheless, the Biden Administration believes it would be “unwarranted” for the Supreme Court to choose to hear these cases.

This section of the post looks at each of these claims in turn.

Case-by-Case Inquiry

Today’s brief asserts, citing first to the American Heritage Dictionary (and then later to case law), that the significantly interferes with standard requires “a practical assessment of the degree to which a particular state consumer financial law impedes the exercise of national banks’ powers.”⁶

If that is correct, the question then is whether the laws at issue in these cases “are sufficiently burdensome to ‘deter’ national banks from using escrow accounts” and whether the laws would amount to an “unusual alteration” of a national bank’s relationship with its customers.

In the Biden Administration’s view, neither of the courts below properly analyzed these questions. According to the brief:

• The Second Circuit’s decision in favor of preemption should have asked whether the specific rate at issue (2%) was so high as to undermine the use of mortgage escrow accounts.

  • It was improper for the court to adopt an analytical position that “would have found the New York law preempted whether the interest rate it imposed was .01% or 10%, simply because the law ‘exert[s] control over banks’ exercise’ of the ‘power to create and fund escrow accounts.’”

  • If the Second Circuit’s approach were to be adopted, it would “effectively negate Congress’s effort to limit the circumstances under which the application of ‘State consumer financial laws’ to national banks will be preempted.”

  • Franklin National Bank discussed above, does not stand for what either the Second Circuit or Bank of America [or, not mentioned, but the OCC’s brief in 2021] say that it does. Instead, the better way to understand Franklin National Bank is as being about a state law that expressly prohibited a national bank from engaging in conduct that the National Bank Act expressly authorizes. This is consistent with the “degree to which” approach embraced by the Solicitor General’s brief because the degree of interference in Franklin National Bank was total.

  • As for claims this sort of case-by-case inquiry will be unworkable, the Solicitor General asserts in a brief paragraph that courts do this all the time in preemption cases.

• But the Ninth Circuit’s approach in Kivett v. Flagstar was also wrong. The Solicitor General says that the Lusnak decision on which Kivett was based erroneously “treated the California' law’s likely practical effect as irrelevant to the preemption analysis.” The Ninth Circuit also “erred in treating Section 1639d as determinative of the preemption question here.”

Justification for Departure From 2021 OCC Brief

In a footnote, the Solicitor General’s brief explains that it reviewed the OCC’s 2021 amicus brief in the Second Circuit and concluded that the analytical framework set out above “better reflects the text, structure, and history of the statute.”

Even With All That, a Recommendation Not to Hear the Case

As a result of the circuit court decisions in Lusnak, Kivett and Cantero, currently there is a decision covering California and much of the western part of the United States (a population of some 67 million people in total) saying that national banks must pay interest on certain escrow accounts. There is also a decision covering New York and two other eastern states saying that national banks do not have to pay interest on certain escrow accounts.⁷

The Biden Administration believes both of these decisions are wrong, but yet asks the Supreme Court not to get involved. The Solicitor General reasons as follows:

• Currently, the conflict between the two cases is “shallow” and the Supreme Court should let other circuits have a go at conducting an analysis before getting involved. The Solicitor General notes, for example, that a case involving Citizens Bank is currently pending in the First Circuit.⁸

• Although preemption under the National Bank Act as a general matter is very important, only 13 states have enacted interest-on-escrow laws, making this specific preemption question one of relatively lesser importance.

• Cantero is “a poor vehicle for considering the question presented because the case has been litigated on the premise that [the Dodd-Frank preemption language] does not apply to one of the petitioners” because that standard took effect after the petitioner’s mortgage was executed.

• Kivett is “also a flawed vehicle” because Flagstar was until recently a federal savings bank, not a national bank, and although the preemption standards for federal savings banks and national banks are now the same (thanks to the Dodd-Frank Act) this was not always the case during the class period at issue.

The brief then goes on to say that, if the Supreme Court does decide to hear one of these cases, it should choose the Flagstar case because the flaws described above are apparently not insurmountable, at least with respect to certain members of the class:

If this Court concludes that its immediate resolution of the question presented is warranted, it should grant the petition for a writ of certiorari in Flagstar and hold the petition in Cantero. In Flagstar, the Court could clarify, with respect to the named-plaintiff respondents, the proper understanding of the Dodd-Frank provisions that govern NBA preemption of “State consumer financial laws.” The Court could then remand for consideration of ancillary questions concerning the proper class definition and other class members’ claims. See Flagstar Reply Br. 7, 11; Flagstar Supp. Br. 8.

Respondents’ own mortgages originated after Section 25b’s effective date. And Flagstar is now a national bank under a current injunction to make interest payments under California law. For those reasons, the vehicle issues in Flagstar would not appear to prevent the Court from answering the question presented as ap-plied to the named-plaintiff respondents.

***

There is no set timeframe or deadline for action, but a decision from the Supreme Court justices as to whether, contrary to what the Solicitor General recommends, they would like to hear one or both of these cases is expected in early fall.

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1. For simplicity’s sake I am just going with “banks” throughout this post and setting aside any differences that currently apply or that at one point applied for federal savings banks. See Section III below, however, for an argument from the Solicitor General that this might matter here.

2. The Dodd-Frank Act also made other changes to preemption law not relevant to this post. For instance, the law now provides that subsidiaries of national banks cannot benefit from preemption of state consumer financial laws under Title 62 of the Revised Statutes or under 12 USC 371, legislatively overruling a prior Supreme Court decision.

3. The plaintiffs in the Cantero case have told the Supreme Court that “at least thirteen” states have such laws.

4. As the district court explained, “Plaintiffs in these actions have two types of mortgage escrow accounts with Bank of America, neither of which is mandatory pursuant to section 1639d. … In their motion papers, both sets of plaintiffs concede this point.”

5. New York itself believed its interest-on-escrow law did not apply to national banks. From the Second Circuit’s decision:

In 2018, the New York Department of Financial Services changed the minimum rate under GOL § 5-601 for state-chartered banks to “the lesser of two percent or the six-month yield on United States Treasury securities.” Order Issued Under Section 12-a of the New York Banking Law, N.Y. St. Dep’t Fin. Servs. 2 (Jan. 19, 2018), https://www.dfs.ny.gov/system/files/documents/2020/03/wild_20180 119_mortgage-escrow_order.pdf (“2018 Order”). The state explained that the change was aimed at creating “parity” between state- and federal-chartered banks given that “national banks . . . [were able] to establish such escrow accounts without restriction as to the payment of interest.” Id. at 1. The 2018 Order does not purport to apply to national banks.

The Second Circuit’s decision doesn’t describe it in these terms, but the order in question was issued under New York’s wildcard statute, on the basis that lowering the rate of interest to be paid by NY-state chartered institutions was “necessary to achieve parity” between state and federally chartered entities.

6. Emphasis in the original.

7. The population number is just based on a Wikipedia table breaking down the circuits by population post-2020 census, so don’t take it too seriously. Apologies also to Connecticut and Vermont for not mentioning them by name in the main text above as part of the Second Circuit.

8. Conti v. Citizens Bank, N.A., No. 22-1770 (1st Cir. Filed Nov. 14, 2022).