Cline v. Hawke , 51 F. App'x 392 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JANE L. CLINE, in her capacity as 
Insurance Commissioner of the
State of West Virginia; STATE OF
WEST VIRGINIA,
Petitioners,
INDEPENDENT INSURANCE AGENTS AND
BROKERS OF AMERICA, INCORPORATED;
NATIONAL ASSOCIATION OF
PROFESSIONAL INSURANCE AGENTS,
INCORPORATED,
Intervenors,
v.

JOHN D. HAWKE, in his capacity as
Comptroller of the Currency of the No. 02-2100
United States of America; THE
OFFICE OF THE COMPTROLLER OF THE
CURRENCY, as an agency of the
United States of America,
Respondents.
NATIONAL ASSOCIATION OF INSURANCE
COMMISSIONERS,
Amicus Supporting Petitioners,
AMERICAN BANKERS ASSOCIATION;
AMERICAN BANKERS INSURANCE
ASSOCIATION AND WEST VIRGINIA
BANKERS ASSOCIATION,
Amici Supporting Respondents.

On Petition for Review from the
Comptroller of the United States, Department of Treasury.
2 CLINE v. HAWKE
Argued: October 30, 2002
Decided: November 19, 2002
Before LUTTIG, KING, and GREGORY, Circuit Judges.
Dismissed by unpublished opinion. Judge Gregory wrote the opinion,
in which Judge Luttig concurred in the judgment. Judge King wrote
a dissenting opinion.
COUNSEL
ARGUED: Scott Alan Sinder, COLLIER, SHANNON, SCOTT,
P.L.L.C., Washington, D.C., for Intervenors. Gregory A. Elam,
OFFICE OF THE INSURANCE COMMISSIONER, Charleston,
West Virginia, for Petitioners. Douglas Bradford Jordan, Washington,
D.C., for Respondents. ON BRIEF: John B. Williams, Christy Hal-
lam DeSantis, COLLIER, SHANNON, SCOTT, P.L.L.C., Washing-
ton, D.C., for Intervenors. Frances A. Hughes, OFFICE OF THE
ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West
Virginia, for Petitioners. Julie L. Williams, Daniel P. Stipano, L. Rob-
ert Griffin, Washington, D.C., for Respondents. John W. Bauer,
Andrew J. Beal, Nathaniel S. Shapo, Director, Illinois Department of
Insurance, NATIONAL ASSOCIATION OF INSURANCE COM-
MISSIONERS, Kansas City, Missouri; Howard W. Dobbins, Robert
D. Perrow, Elizabeth M. Horsley, WILLIAMS MULLEN, P.C., Rich-
mond, Virginia, for Amicus Curiae Insurance Commissioners. John J.
Gill, Michael F. Crotty, AMERICAN BANKERS ASSOCIATION,
Washington, D.C.; James T. McIntyre, Jr., Chrys D. Lemon, MCIN-
TYRE LAW FIRM, Washington, D.C., for Amici Curiae American
Bankers; Sandra Murphy, BOWLES, RICE, MCDAVID, GRAFF &
LOVE, Charleston, West Virginia, for Amicus Curiae West Virginia
Bankers.
CLINE v. HAWKE 3
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
GREGORY, Circuit Judge:
Jane Cline, Insurance Commissioner of the State of West Virginia,
and the State of West Virginia (collectively referred to as "Petition-
ers") brought suit against John Hawke, Comptroller of the Currency
of the United States of America, pursuant to the Gramm-Leach-Bliley
Act of 1999 ("GLBA").1 Petitioners seek review of a preemption let-
ter issued by the Office of the Comptroller of the Currency ("OCC")
regarding insurance laws of the State of West Virginia. In the preemp-
tion letter, the OCC opined that federal law preempted four provisions
and a portion of a fifth provision of the West Virginia Insurance Sales
Consumer Protection Act, an act regulating the sale of insurance by
banks and other financial institutions. Petitioners’ suit challenges the
authority of the OCC to issue such a preemption letter. For the fol-
lowing reasons, we dismiss the petition for review.
I.
Lawyers for the West Virginia Bankers Association2 sent a letter
to the Chief Counsel of the OCC on May 8, 2000, requesting the pre-
emption of ten provisions of the West Virginia Insurance Sales Con-
sumer Protection Act. See Letter from Sandra Murphy, Attorney,
Bowles, Rice, McDavid, Graff & Love, to Julie Williams, Chief
Counsel, Office of the Comptroller of the Currency, 1 (May 8, 2000)
(J.A. 2-12).3 The OCC published notice of the request in the Federal
1
The relevant provisions of the GLBA, Sections 104 and 304, are codi-
fied at 15 U.S.C. §§ 6701 and 6714, respectively. In this opinion, we cite
Sections 104 and 304 of the GLBA, rather than to the provisions as codi-
fied.
2
The West Virginia Bankers Association is a banking trade association
consisting of community banks, regional banks, and savings and loans
located in West Virginia.
3
The Joint Appendix is cited as J.A. in this opinion.
4 CLINE v. HAWKE
Register on June 2, 2000, and sought comments as to whether federal
law preempted the West Virginia statutory provisions. The OCC
received sixty-seven comments in response to the published notice,
including a response from Hanley Clark, former Insurance Commis-
sioner for West Virginia. In a letter dated September 24, 2001, the
OCC issued its opinion regarding the preemption of the West Virginia
statutory provisions ("Preemption Letter"). The OCC concluded that
four of the West Virginia statutory provisions, as well as a portion of
a fifth provision, were preempted by federal law. Petitioners filed a
petition for review of the Preemption Letter with this Court on Sep-
tember 20, 2002.
II.
This Court has jurisdiction over this case pursuant to Section 304
of the GLBA. Under that section, where there is a regulatory conflict
between a State insurance regulator and a Federal regulator, including
the preemption of a State law, the Federal or State regulator "may
seek expedited judicial review of such determination by the United
States Court of Appeals for the circuit in which the State is located
. . . ." Gramm-Leach-Bliley Act of 1999, Pub. L. No. 106-102,
§ 304(a) (1999). We must decide the petition based on a "review on
the merits of all questions presented under State and Federal law,
including the nature of the product or activity and the history and pur-
pose of its regulation under State and Federal law, without unequal
deference." § 304(e) (1999).
The dissent argues that there is no Article III standing in this case.
With all due respect to Judge King, we disagree. In enacting the
GLBA, Congress gave this Court original jurisdiction where there is
a regulatory conflict between a State insurance regulator and a Fed-
eral regulator regarding insurance issues, including preemption issues.
See § 304(a) (1999). The language of the GLBA, therefore, gives this
Court jurisdiction over controversies in which a State regulator con-
flicts with the Federal regulator regarding the regulation of insurance
issues. This grant of jurisdiction is, however, subject to Article III
standing limitations.
To have Article III standing, a litigant must show that: "1) it has
suffered an ‘injury in fact’ that is a) concrete and particularized and
CLINE v. HAWKE 5
b) actual or imminent, not conjectural or hypothetical; 2) the injury
is fairly traceable to the challenged action of the defendant; and 3) it
is likely, as opposed to merely speculative, that the injury will be
redressed by a favorable decision." Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000). In
the instant case, the Preemption Letter causes banks to change their
business plans and business practices and therefore conflict with the
West Virginia laws. West Virginia therefore suffers because it cannot
enforce certain provisions of its insurance laws against national
banks. To undermine the sovereign’s authority to regulate activity for
the protection of its citizens constitutes injury in fact. Thus, the first
prong of the test for Article III standing is met.
It is clear that the injury is traceable to the OCC’s action, which
is challenged in this case, thus satisfying the second prong of the test
for Article III standing. Finally, if this Court were to rule in the Peti-
tioners’ favor, West Virginia’s grievance would be redressed, because
the state would be able to compel national banks to comply with its
insurance laws. Accordingly, we find that Article III standing exists
in this case.
III.
There are three issues before this Court. First, we must address
whether the OCC has authority to interpret the GLBA. Second, if the
OCC does have interpretive authority, we must determine what defer-
ence should be given to the OCC. Finally, we must determine whether
the preemption of West Virginia law was a proper exercise of the
OCC’s interpretive authority.
A.
Petitioners argue that an agency is without power to preempt state
law unless Congress specifically delegates authority to an agency.4
4
Petitioners also argue that Congress intended that states would remain
the functional regulators of insurance and that state insurance regulations
could only be negated by a federal agency in extremely limited circum-
stances. See Petitioners’ Br. at 32. However, the preservation of state
6 CLINE v. HAWKE
See Petitioners’ Br. at 30. They are correct in their assertion that the
GLBA does not give the OCC express power of interpretation. How-
ever, an administrative agency’s authority need not be expressly dele-
gated by Congress. "Sometimes the legislative delegation to an
agency on a particular question is implicit rather than explicit." Chev-
ron v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984).
It is clear from the language of the GLBA that Congress contem-
plated that the OCC would interpret some provisions of the GLBA.
Section 104(d)(2)(C)(1) is titled "OCC Deference" and applies to state
statutes enacted before September 3, 1998. Had Congress not antici-
pated OCC action interpreting the GLBA, there would be no need for
an "OCC Deference" provision of the GLBA. Therefore, we find that
the OCC has implicit interpretive authority under the GLBA. Accord-
ingly, we turn now to determine the scope of that authority.
We look to statutes and other authorities related to the GLBA to
determine the scope of the OCC’s implicit interpretive authority
under the GLBA. The GLBA addresses the ability of national banks
to engage in insurance sales, solicitation and crossmarketing. Simi-
larly, the National Bank Act ("NBA"), 12 U.S.C. § 1 et seq.,
addresses the ability of national banks to engage in insurance sales in
small towns. Under § 92 of the NBA, the OCC has explicit authority
to regulate the sale of insurance by national banks located in small
towns. See 12 U.S.C.A. § 92 (2001). The GLBA, in essence, expands
the scope of § 92 to permit national banks to engage in insurance
sales nationwide. Therefore, because Congress previously granted
explicit interpretive authority to the OCC in § 92 of the NBA and the
GLBA is an expansion of § 92, we find that the OCC must have
implicit interpretive authority under the GLBA.
authority under GLBA is subject to the provisions of § 104, where the
preemption statute is found. See Gramm-Leach-Bliley Act of 1999, Pub.
L. No. 106-102, § 301 (1999). Therefore, state authority that prevents or
significantly interferes with a depository institution’s ability to engage in
insurance sales, solicitation, or crossmarketing is still preempted under
the GLBA.
CLINE v. HAWKE 7
B.
We turn now to examine whether the OCC is entitled to deference
in this case. The GLBA instructs this Court to decide petitions filed
under Section 304 "without unequal deference" to its review of all
questions presented under State and Federal law. See § 304(e) (1999).
However, where a statute was issued, adopted or enacted before Sep-
tember 3, 1998, deference should be given to the OCC. See § 104(d)
(2)(C)(i) (1999) ("OCC Deference: Section 304(e) does not apply
with respect to any State statute, regulation, order, interpretation, or
other action regarding insurance sales, solicitation, or cross marketing
activities described in subparagraph (A) that was issued, adopted, or
enacted before September 3, 1998, and that is not described in sub-
paragraph (B)." (emphasis added)). The West Virginia Insurance
Sales Consumer Protection Act was enacted in 1997. Additionally,
the statutes at issue in the instant case do not fall within the categories
of preserved state laws enumerated under § 104(d)(2)(B). Therefore,
in accordance with § 104(d)(2)(C)(i) of the GLBA, we give deference
to the OCC.
Although the OCC is entitled to some deference, the GLBA does
not provide guidance as to what level of deference is appropriate.5
The OCC argues that the deference enunciated in Skidmore v. Swift
& Co., 323 U.S. 134 (1944), should be applied in the instant case.
Under Skidmore, a court should give some consideration to the inter-
pretation of an ambiguous statutory provision made by the adminis-
tering agency because of the agency’s experience and expertise. See
323 U.S. at 140. The Supreme Court held in Christenson v. Harris
County, 529 U.S. 576 (2000), that agency "interpretations contained
in formats such as opinion letters are ‘entitled to respect’" under Skid-
more, "but only to the extent that those interpretations have the
‘power to persuade.’" Christenson, 529 U.S. at 587 (citations omit-
ted). Therefore, we hold that Skidmore deference applies to this case.
5
The briefs submitted to this Court by the Petitioners and Intervenors
argue that deference should not be given to the OCC under the Chevron
standard. During oral argument, however, the OCC stated that it was not
arguing for Chevron deference because its regulation writing authority
does not come from the GLBA; rather, its authority to write regulations
originates in the National Banking Act.
8 CLINE v. HAWKE
C.
We now must review the Preemption Letter to see if it meets the
standard for persuasiveness under Skidmore. See Skidmore at 140. In
reviewing persuasiveness, we must consider the thoroughness of the
OCC’s consideration, the validity of its reasoning, and its consistency
with earlier and later pronouncements. Id.Section 6 of the West Virginia Act prohibits financial employees
with lending responsibilities from soliciting the sale of insurance.
Section 9(a) requires disclosures to be made in writing, "including in
connection with advertisements and promotional material, and orally
‘during any customer contact.’" Section 10(a) prohibits financial insti-
tutions from making an insurance-related referral or solicitation of a
loan customer until after the bank has approved the loan or credit.
Section 13 requires a customer’s separate written consent to the
bank’s disclosure of insurance information to an agent or broker affil-
iated with the bank no less than two days after the time of application
for, approval of and making of the loan or extension of credit. Finally,
Section 14 requires banks to sell insurance products in an area sepa-
rate and distinct from the institution’s lending and deposit-taking
activities.
The OCC found that these provisions of the West Virginia Act
were preempted by federal law. See Preemption Letter at 2. In reach-
ing its result, the OCC relied on public comments received during the
formal notice-and-comment procedure. Id. at 2. Additionally, the
OCC "relied on the written comment submitted by the Insurance
Commissioner for the State of West Virginia and on discussions with
the staff of the West Virginia Insurance Department" to clarify how
particular provisions of the West Virginia Act would be administered
or applied. Id. Because the OCC implemented a formal notice-and-
comment procedure and consulted the West Virginia Insurance
Department and the Insurance Commissioner of West Virginia in
reaching its decision, we find that the OCC’s consideration was thor-
ough.
We turn now to review the validity of the OCC’s reasoning. In
making its findings, the OCC reasoned that the West Virginia provi-
sions at issue are disruptive to bank operations, increase bank operat-
CLINE v. HAWKE 9
ing costs, and substantively affect a bank’s ability to solicit and sell
insurance products. See Preemption Letter at 16-31 (J.A. 73-88).
These effects prevent or significantly interfere with a bank’s ability
to engage in insurance sales, solicitation, or crossmarketing activity.
Additionally, the OCC found that the requirements under Section 13
violate the Fair Credit Reporting Act, which prohibits State laws that
impose requirements or prohibitions regarding "the exchange of infor-
mation among persons affiliated by common ownership or common
corporate control." 15 U.S.C.A. § 1681t(b)(2) (1998). Because we
find the OCC’s reasoning to be valid, we hold that the Preemption
Letter meets the standard for persuasiveness under Skidmore.
IV.
Because we hold that the OCC had authority to interpret the GLBA
and that its decision met the standard for persuasiveness under Skid-
more, we dismiss the petition for review.
DISMISSED
LUTTIG, Circuit Judge, concurring in the judgment:
I agree with the judgment reached by the court that this action
should be dismissed. I also agree, for the reasons stated in the OCC
opinion letter and those articulated by counsel for the OCC during
oral argument, that the West Virginia provisions at issue are pre-
empted under federal law.
KING, Circuit Judge, dissenting:
The majority today addresses complex issues regarding the possi-
ble preemptive effect of the Gramm-Leach-Bliley Act (the "GLBA")
on state regulation of the insurance industry. To reach these issues,
the majority1 reviews an advisory opinion of the Office of the Comp-
troller of the Currency (the "OCC"), which suggests that GLBA pre-
1
In referring to "the majority," I mean the majority’s judgment that dis-
misses the Commissioner’s petition for review on the basis that federal
law preempts aspects of the West Virginia Code. I realize that there is
no majority opinion here.
10 CLINE v. HAWKE
empts certain provisions of West Virginia law. In reviewing a non-
binding OCC opinion, however, my good colleagues run afoul of the
case or controversy mandate of Article III of the Constitution.2
Because we lack jurisdiction to render a decision under these circum-
stances, I respectfully dissent.
I.
On May 8, 2000, the West Virginia Bankers Association (the
"WVBA") sought an opinion from the OCC that GLBA preempts cer-
tain West Virginia statutes. More precisely, the WVBA asked the
OCC to "preempt ten (10) provisions of the West Virginia Insurance
Sales Consumer Protection Act." Comm’r Pet. Ex. A. Although
WVBA’s letter implied that the OCC could itself preempt state law,
it effectively requested the OCC to issue an opinion declaring that
federal law preempts ten provisions of the West Virginia Code.3
On June 2, 2000, the OCC published notice of the WVBA letter in
the Federal Register and requested comments on the preemption
issue. After considering the WVBA request and reviewing comments,
the OCC issued an opinion (the "Preemption Opinion") on September
24, 2001, suggesting that several provisions of West Virginia law are
preempted. Even though the Preemption Opinion was preceded by
formal notice and comment, the OCC acknowledges that it "does not
purport to be a regulation, an adjudication, or a licensing procedure
carrying the force of law." OCC Br. at 21. In fact, in this very pro-
2
Pursuant to Article III of the Constitution of the United States, the
power of our judiciary extends:
to all Cases, in Law and Equity, arising under this Constitution,
[and] the Laws of the United States, . . . [and] to Controversies
to which the United States shall be a Party; to Controversies
between two or more States; between a State and Citizens of
another State; between Citizens of different States; . . . and
between a State, or the Citizens thereof, and foreign States, Citi-
zens or Subjects.
U.S. Const. art. III, § 2, cl. 1.
3
The contested provisions of the West Virginia Code are contained
within sections 6, 8-11, 13, and 14 of Article 11A of Chapter 33.
CLINE v. HAWKE 11
ceeding, the OCC criticizes the Commissioner for failing to acknowl-
edge that the Preemption Opinion is "a legal opinion," id. at 19
(emphasis in original), and represents only "informal agency guid-
ance." Id. at 21.
As the OCC recognizes, it is not authorized to render a binding pre-
emption decision. Id. at 22. The OCC is an agency in the Department
of the Treasury, charged with the administration of the National Bank
Act. See 12 U.S.C. § 1. It has authority over the chartering, supervi-
sion, and regulation of national banks, including the right to deter-
mine the nature and scope of statutorily authorized banking powers.
See 12 U.S.C. § 24 (Seventh). In addition, the Comptroller is entitled
to promulgate regulations to implement 12 U.S.C. § 92, a statute
enabling national banks to sell insurance in small towns, and the
Comptroller possesses limited authority to "prescribe rules and regu-
lations to carry out the responsibilities of the office." 12 U.S.C. § 93a.
The OCC has no authority, however, to act unilaterally in interpret-
ing or implementing GLBA. To the extent that the OCC possesses
any power under GLBA, it shares that power with other federal bank-
ing agencies. See GLBA, § 305 (codified at 12 U.S.C. § 1831x). Not-
withstanding the position of my good friend Judge Gregory, ante at
6, GLBA was not designed to expand the power of national banks to
issue insurance, but rather its purpose was to remove the traditional
barriers among the banking, insurance, and securities industries.
Therefore, the OCC does not possess, nor does it claim, a role in
implementing GLBA. Because the OCC is not charged with enforcing
or implementing GLBA, its opinions on GLBA’s preemptive effect
are not entitled to Chevron-type deference.4 See Chevron U.S.A., Inc.
4
If the Preemption Opinion had purported to interpret the incidental
powers of national banks pursuant to the National Bank Act, we would
be presented with an entirely different case. Had the OCC issued this
type of opinion, it would be entitled to Chevron deference, and (more
importantly for our purposes) we would have jurisdiction to review it.
See NationsBank of N.C., N.A. v. Variable Annuity Life Ins. Co., 513
U.S. 251, 256-57 (1995) (conducting Chevron analysis for an OCC inter-
pretation of incidental powers of national banks under 12 U.S.C. § 24(Seventh)); Indep. Ins. Agents of Am., Inc. v. Hawke, 211 F.3d 638, 643
(D.C. Cir. 2000) (same); Sec. Indus. Ass’n v. Clarke, 885 F.2d 1034,
12 CLINE v. HAWKE
v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984).5
Indeed, it is doubtful that an agency’s opinion on the preemptive
effect of federal law should ever be accorded deference since, as the
OCC recognizes, "preemption issues are ultimately a matter to be
decided by federal courts." OCC Br. at 22. Therefore, the Preemption
Opinion merely represents an advisory opinion of the OCC on an
issue outside of its statutory powers.
II.
Although it concedes that the Preemption Opinion lacks the force
of law, the OCC nevertheless insists that we should render a decision
in this proceeding because its disagreement with the Commissioner
presents a justiciable case or controversy within the meaning of Arti-
cle III. Id. at 23 n.5. According to the OCC, its legal opinions influ-
ence the business decisions of national banks, and the Preemption
Opinion may indirectly impair the Commissioner’s ability to enforce
state law. OCC Supp. Br. at 4, 6. As another court has suggested, the
OCC opinions may have the practical effect of "permitting and
encouraging national banks" to disobey otherwise enforceable laws.
Sec. Indus. Ass’n v. Clarke, 885 F.2d 1034, 1039 (2d Cir. 1989).
Despite the possible real-world effects of the Preemption Opinion,
the Commissioner’s petition for review fails to present a justiciable
case or controversy.6 Since the Preemption Opinion is purely advi-
1037-38 (2d Cir. 1989) (addressing OCC opinion approving national
bank practice). In this situation, however, the OCC issued a wide-ranging
opinion on the general preemptive effect of GLBA. As the OCC properly
recognizes, its Preemption Opinion is not entitled to Chevron-type defer-
ence and, as it should have recognized, we have no jurisdiction to review
such an opinion.
5
Even if the OCC was the agency in charge of enforcing GLBA, infor-
mal agency opinions are not generally entitled to Chevron deference.
Christensen v. Harris County, 529 U.S. 576, 587 (2000) ("Interpretations
such as those in opinion letters — like interpretations contained in policy
statements, agency manuals, and enforcement guidelines, all of which
lack the force of law — do not warrant Chevron-style deference.").
6
The First Circuit — in a dispute between a state regulator and the
OCC over GLBA’s preemptive effect — has also recently raised the con-
CLINE v. HAWKE 13
sory, it does not interfere with the Commissioner’s ability to enforce
West Virginia law. To the extent that a bank might rely on the Pre-
emption Opinion in violating state law, it would do so at its own risk.
Because the Preemption Opinion has no legal effect, the petition for
review simply asks us to decide whether federal law might, in some
future case, provide a defense to a bank’s noncompliance with state
law. Such a hypothetical scenario fails to present a justiciable ques-
tion. See Calderon v. Ashmus, 523 U.S. 740, 747 (1998) (finding no
Article III jurisdiction to issue "an advance ruling on an affirmative
defense"); Miller v. FCC, 66 F.3d 1140, 1145 (11th Cir. 1995) ("By
asking this court to decide what another court should do in a future
case, petitioners are posing a hypothetical question, the answer to
which would be an advisory opinion.").
A.
Under Article III, the judicial power of the federal courts is limited
"to the resolution of ‘cases’ and ‘controversies.’" Valley Forge Chris-
tian Coll. v. Ams. United For Separation of Church & State, Inc., 454
U.S. 464, 471 (1982). This "bedrock requirement" ensures that Article
III power "is not an unconditioned authority to determine the constitu-
tionality of legislative or executive acts." Id.; see also Raines v. Byrd,
521 U.S. 811, 818 (1997). Indeed, the judicial power "‘is legitimate
only in the last resort, and as a necessity in the determination of real,
earnest and vital controversy.’" Valley Forge Christian Coll., 454
U.S. at 471 (quoting Chicago & Grand Trunk Ry. Co. v. Wellman,
143 U.S. 339, 345 (1892)). As part of this case or controversy require-
ment, federal courts are simply not entitled to issue advisory opinions
on hypothetical questions.
Presented with facts nearly identical to those here, the Eleventh
Circuit, in Miller v. FCC, concluded that the constitutional prohibition
on advisory opinions precluded its review of a non-binding agency
opinion. 66 F.3d at 1141-42. In that situation, candidates for public
office in Georgia had challenged the FCC’s authority to issue a ruling
cern that federal courts lack Article III jurisdiction in this regard. See
Bowler v. Hawke, No. 02-1738 (1st Cir. argued August 2, 2002). While
the First Circuit has ordered supplemental briefing on the Article III
issue, it has yet to render a decision on the matter.
14 CLINE v. HAWKE
on whether federal law preempted state law causes of action. Id. The
FCC’s ruling only represented its opinion on the preemptive effect of
federal law, and it thus did not carry the force of law. Id. at 1144.
Because the FCC’s opinion had no binding effect, the court of appeals
concluded that the petition for review presented an abstract, hypothet-
ical question rather than a justiciable case or controversy. Id. at 1145-
46; see also id. at 1146 ("[W]e are prohibited from determining the
propriety of the FCC’s declaratory ruling given the abstract circum-
stances in which this issue is presented.").
Similarly, in New York Stock Exchange, Inc. v. Bloom, 562 F.2d
736 (D.C. Cir. 1977), the Court of Appeals for the District of Colum-
bia held that a non-binding OCC opinion was not ripe for judicial
review as required by Article III. Id. at 736-37, 41. In that case, a
bank requested an OCC opinion on whether a proposed banking ser-
vice would violate the Glass-Steagall Act (the "GSA"), the pre-GLBA
statute that had prohibited banks from engaging in insurance prac-
tices. Id. at 737. The OCC responded to this request with an opinion
letter concluding that the proposed service was consistent with the
GSA. Id. at 739. The New York Stock Exchange (the "NYSE") then
sued the OCC under the Administrative Procedures Act, challenging
the OCC opinion. In response, the OCC insisted that the NYSE’s
claim was not ripe for review because the opinion letter did not carry
the force of law.
The court of appeals agreed with the OCC, ruling that the NYSE’s
challenge to the OCC opinion was not ripe for review. The court eval-
uated the ripeness issue under the two-part inquiry of Abbott Labora-
tories v. Gardner, 387 U.S. 136 (1967), analyzing (1) the fitness of
the issues for judicial decision and (2) the hardship to the parties of
withholding judicial review. In applying the first prong of Abbott
Laboratories, the court noted "that appellants are challenging infor-
mal opinion letters rather than formal rules or policy statements." New
York Stock Exch., 562 F.2d at 741. The court also pointed out that
undeveloped facts would be relevant to deciding the merits of the
NYSE’s challenge, so it concluded that judicial review of the OCC
opinion would be premature. Id. Addressing the potential hardship to
the parties of withholding such review, the court of appeals empha-
sized that "appellants’ conduct [was] not directly regulated by the
agency action at issue and consequently they are not facing a ‘Hob-
CLINE v. HAWKE 15
son’s choice’ between burdensome compliance and risky noncompli-
ance." Id. Accordingly, it concluded that the NYSE’s challenge to the
OCC opinion failed to pass Article III muster. Id. at 743.
B.
The constitutional prohibition on advisory opinions, embodied in
Article III and its jurisprudence, bars the exercise of jurisdiction here.
The Commissioner’s petition for review presents nothing more than
an abstract disagreement between state and federal regulators. See
Abbott Labs., 387 U.S. at 148 (noting that ripeness doctrine is
designed to "prevent the courts, through avoidance of premature adju-
dication, from entangling themselves in abstract disagreements"). The
Preemption Opinion simply does not represent the type of final
agency action that would be subject to judicial review.7 Compare
NationsBank of N.C., N.A. v. Variable Annuity Life Ins. Co., 513 U.S.
251, 256-57 (1995) (reviewing final OCC opinion issued pursuant to
12 U.S.C. § 24 (Seventh)); Bank of Am. v. San Francisco, 309 F.3d
551 (9th Cir. 2002) (same); see also Florida v. Weinberger, 492 F.2d
488, 492 (5th Cir. 1974) (finding jurisdiction to review agency regula-
tion that "is final and is formally and actually in effect").
Under the Abbott Laboratories test, the question of GLBA’s pre-
emptive effect on West Virginia law is not ripe for judicial review.
First, the preemption issues are not fit for our consideration. See 387
U.S. at 149. In order to address the issue of preemption, the majority
must make assumptions about undeveloped factual issues that are
material to its decision. For example, the question of whether West
7
Ordinarily, Congress does not purport to give federal courts jurisdic-
tion over provisional or preliminary agency actions. See 5 U.S.C. § 704(requiring final agency action for judicial review under Administrative
Procedures Act); see also Allied Corp. v. United States Int’l Trade
Comm’n, 850 F.2d 1573, 1578 (Fed. Cir. 1988) ("That an agency may
choose to render advisory opinions cannot create for one displeased with
its advice a cause of action cognizable in an Article III court."). In this
situation, however, the Article III issue is squarely presented because
GLBA attempts to give federal courts jurisdiction to adjudicate disputes
between state and federal regulators, no matter how abstract such a dis-
pute may be. See GLBA, § 304(a) (codified at 15 U.S.C. § 6714(a)).
16 CLINE v. HAWKE
Virginia law will interfere with the ability of banks to enter the insur-
ance market involves factual issues about insurance and banking prac-
tices. Because no bank has been joined as a party in this proceeding,
the majority is forced to rely on the OCC to understand the banking
and insurance industries in West Virginia. Ante at 8. The OCC, how-
ever, is an imperfect surrogate for the banking and insurance indus-
tries. To ensure a full development of the relevant facts, the scope of
GLBA’s preemption should initially be addressed in an enforcement
proceeding initiated by a state regulator, or in a declaratory judgment
action instituted by a bank.8
Second, judicial review is not necessary at this juncture to protect
the parties from any undue hardship. See Abbott Labs., 387 U.S. at
151-53. The parties have alternate avenues available through which
to seek judicial review of the preemption issues. If the petition for
review is dismissed for want of jurisdiction, the Commissioner may
then institute an enforcement action against non-complying banks, or
banks may institute declaratory judgment proceedings against the
Commissioner. See Indep. Broker-Dealers’ Trade Ass’n v. SEC, 442
F.2d 132, 140 (D.C. Cir. 1971) (reviewing informal agency action
because party had no other recourse to obtain relief). Further, the Pre-
emption Opinion does not place regulated entities into the position of
making a "Hobson’s Choice" between burdensome compliance or
risky noncompliance. See Abbott Labs., 387 U.S. at 152-53; Nat’l
Automatic Laundry Cleaning Council v. Shultz, 443 F.2d 689, 696-97
(D.C. Cir. 1971) ("NALCC"). Because the Preemption Opinion has no
legal effect, the parties face no undue hardship in waiting for judicial
review.
8
Where the OCC has authorized national banks to engage in practices
that violate state or municipal laws, national banks typically initiate
declaratory judgment proceedings against state or local regulators. See
generally Bank of Am. v. San Francisco, 309 F.3d 551 (9th Cir. 2002)
(bank sued local regulator); Wells Fargo Bank Texas, N.A. v. James, 184
F. Supp. 2d 588 (W.D. Tex. 2001) (bank sued state regulator); Metro-
bank Nat’l Ass’n v. Foster, 178 F. Supp. 2d 987 (S.D. Iowa 2001) (banks
sued state regulator).
CLINE v. HAWKE 17
C.
Significantly, the petition does not request review of a coercive
(even if technically non-binding) agency opinion.9 In limited circum-
stances, an "agency action may be reviewable even though it is never
to have a formal, legal effect" because it will have "an immediate and
practical impact" on regulated entities. Cont’l Airlines, Inc. v. Civil
Aeronautics Bd., 522 F.2d 107, 124 (D.C. Cir. 1975) (en banc). For
example, in Independent Broker-Dealers’ Trade Association, the Sec-
ond Circuit reviewed an SEC letter asking the NYSE to ban a contro-
versial brokering practice. 442 F.2d at 139-40. The SEC could have
issued binding regulations, but the NYSE changed its rules voluntar-
ily. Id. Even though the SEC letter was merely suggestive, the court
reviewed a trade association’s challenge, concluding that the letter
had a sufficiently coercive effect to justify judicial review. Id. at 145.
In the circumstances presented here, however, the Preemption
Opinion is not sufficiently coercive to justify judicial review. It does
not carry the force of law, it does not impose affirmative obligations,
and it does not threaten consequences for noncompliance. Put simply,
the Preemption Opinion is not reviewable because the OCC acted out-
side its regulatory authority. Compare Appalachian Power Co. v.
EPA, 208 F.3d 105, 1021 (D.C. Cir. 2000) (reviewing agency "guid-
ance" on interpretation of its regulations); Student Loan Mktg. Ass’n
v. Riley, 104 F.3d 397, 407 (D.C. Cir. 1997) (reviewing agency opin-
ion on interpretation of agency’s organic statute). Even if, as a practi-
9
The label attached by an agency to its action is not determinative of
the action’s finality. See CBS v. United States, 316 U.S. 407 (1942). An
agency action may, in fact, be final even though the agency characterizes
it as tentative, preliminary, or provisional. See, e.g., Appalachian Power
Co. v. EPA, 208 F.3d 1015, 1020-21 (D.C. Cir. 2000) (reviewing agency
"guidance" because it was effectively the agency’s final position). To
decide whether an agency action is reviewable, courts take a pragmatic
approach to the requisite finality and look to whether the agency action
has "contemplation of expected conformity." Indep. Broker-Dealers’
Trade Ass’n, 442 F.2d at 141; see also NALCC, 443 F.2d at 697. In this
situation, unlike in CBS and its progeny, the Preemption Opinion cannot
be considered a final, reviewable action because it deals with a matter
outside the OCC’s bailiwick. Therefore, the OCC cannot reasonably
expect conformity with its position.
18 CLINE v. HAWKE
cal matter, national banks will rely on the Preemption Opinion, such
reliance would result from a mistaken legal conclusion regarding the
OCC’s authority, and it does not create Article III jurisdiction.
III.
Because the majority has reached beyond our jurisdiction in ren-
dering this decision, I respectfully dissent.