UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


AMER COMMTY BKRS

v.

FDIC


99-5028a

D.C. Cir. 2000


*	*	*


Sentelle, Circuit Judge: America's Community Bankers  (Bankers), a
trade association of banks and savings institu- tions, appeals from a
district court order granting summary  judgment for the Federal
Deposit Insurance Corporation  (FDIC) in an action challenging the
results of an FDIC  rulemaking undertaken in response to the Deposit
Insurance  Funds Act of 1996 (the Act or the 1996 Act). Reviewing the 
agency's rulemaking under Chevron U.S.A. Inc. v. Natural  Resources
Defense Council, Inc., 467 U.S. 837 (1984), the  district court upheld
the FDIC's conclusions as a reasonable  interpretation of the relevant
statutes. Because we agree  with the district court that the FDIC's
interpretation of its  governing statute is a reasonable one entitled
to Chevron  deference, we affirm the district court's decision.


I. Glossary Because of the numerous acronyms and terms of art em-
ployed in this opinion, we provide a brief glossary.


Bankers America's Community Bankers (Ap-  pellant)


APA Administrative Procedure Act


Bank Fund Bank Insurance Fund


Act or 1996 Act Deposit Insurance Funds Act of 1996


FDIC Federal Deposit Insurance Cor-  poration (Appellee)


FICO Financing Corporation


FIRREA Financial Institutions Reform, Re-  covery, and Enforcement


FSLIC Federal Savings and Loan Insur-  ance Corporation


Savings Fund Savings Association Insurance Fund  II. Background


In 1987, in an effort to stem a crisis in the savings and loan 
industry, Congress established the Financing Corporation  (FICO) and
authorized it to issue and service bonds for the  purpose of
recapitalizing and stabilizing the insolvent Federal  Savings and Loan
Insurance Corporation (FSLIC). See Fed- eral Savings and Loan
Insurance Corporation Recapitaliza- tion Act of 1987, Pub. L. No.
100-86, s 302, 101 Stat. 552, 585  (1987); see also 12 U.S.C. s 1441
(1994) (current version at 12  U.S.C.A. s 1441 (West Supp. 1999));
Marirose K. Lescher &  Merwin A. Mace III, Financing the Bailout of
the Thrift  Crisis: Workings of the Financing Corporation and the 
Resolution Funding Corporation, 46 Bus. Law. 507, 510 (1991) 
(discussing the establishment of FICO). The problems of the  savings
and loan industry failed to abate, however, so in 1989  Congress
enacted more sweeping legislation to increase the  supervisory
authority of the FDIC and other regulatory  agencies and to "reform,
recapitalize, and consolidate" the  federal deposit insurance system.
Financial Institutions Re- form, Recovery, and Enforcement Act of
1989, Pub. L. No.  101-73, 103 Stat. 183, 183 (1989) (FIRREA); see
also How a  Good Idea Went Wrong: Deregulation and the Savings and 
Loan Crisis, 47 Admin. L. Rev. 643, 656-58 (1995) (discussing  the
enactment of FIRREA). To accomplish the latter,  FIRREA created two
insurance funds under the administra- tive authority of the FDIC: the
Savings Association Insur- ance Fund (Savings Fund) and the Bank
Insurance Fund  (Bank Fund). See FIRREA s 206 (codified at 12 U.S.C. 
s 1815). FIRREA also abolished the FSLIC, gave the Fed- eral Housing
Finance Board administrative authority over  FICO, and shifted
responsibility for the interest on FICO's  bonds to Savings Fund


In further legislation, Congress ordered the FDIC to pro- mulgate by
regulation a schedule to assess Savings Fund  member institutions
semiannually to achieve by the year 2004  a designated 1.25%
reserve-to-deposits capitalization ratio,  then to set semiannual
assessments to maintain reserves at  that level. See Federal Deposit
Insurance Corporation Im- provement Act of 1991, Pub. L. No. 102-242,


Stat. 2236, 2345 (1991) (codified as amended at 12 U.S.C.  s 1817(b)
(West Supp. 1999)). The FDIC's governing statute  instructed the FDIC
Board, in setting the Savings Fund's  assessments, to consider "(I)
expected operating expenses,  (II) case resolution expenditures and
income, (III) the effect  of assessments on members' earnings and
capital, and (IV)  any other factors that the Board of Directors may
deem  appropriate." 12 U.S.C. s 1817(b)(2)(A)(ii) (West Supp. 


Another section of that statute, 12 U.S.C. s 1441(f)(2), also 
authorized FICO, "with the approval of the Board of Di- rectors of the
[FDIC]," to assess Savings Fund members to  service FICO's bonds. 12
U.S.C. s 1441(f)(2) (1994) (current  version at 12 U.S.C. s 1441(f)(2)
(West Supp. 1999)). The  same provision mandated that the sum of
amounts assessed  by FICO and by the Resolution Funding Corporation
under  12 U.S.C. s 1441b "shall not exceed the amount authorized to 
be assessed against [Savings Fund] members pursuant to [12  U.S.C. s
1817];" and that FICO "shall have first priority to  make the
assessment." Id. s 1441(f)(2)(A)-(B). Finally, 12  U.S.C. s
1441(f)(2)(C) required the amount of the Savings  Fund assessment
under 12 U.S.C. s 1817 to be reduced by  the amount of the FICO and
Resolution Funding Corporation  assessments. See id. s 1441(f)(2)(C).
After FIRREA abol- ished the FSLIC in 1989, the FDIC collected the
FICO  assessments on FICO's behalf along with the Savings Fund 
assessments. Thus the pre-1996 statutory scheme linked  FICO's bond
interest funding to the Savings Fund's insur- ance premium assessment
process and gave FICO funding  the higher priority.


The Bank Fund achieved capitalization in May 1995, so the  FDIC lowered
the assessments of member institutions. See  Lisa L. Bonner, Updating
FDICIA/RTC, 15 Ann. Rev. Bank- ing L. 81, 84-87 (1996) (describing the
state of the insurance  funds immediately prior to passage of the 1996
Act). In  comparison, the Savings Fund remained significantly under-
capitalized, and Savings Fund assessments remained high,  because of
the diversion of a portion of Savings Fund assess- ments to satisfy
FICO's bond interest obligation. See id. 


Pursuing lower insurance fund assessments, Savings Fund  member
institutions sought to shift their deposits to the Bank  Fund, and
thus threatened to destabilize the Savings Fund  and FICO's ability to
pay its bond interest obligation. See J.  Virgil Mattingly & Keiran J.
Fallon, Understanding the  Issues Raised by Financial Modernization, 2
N.C. Banking  Inst. 25, 62-63 (1998) (discussing the enactment of the
1996  Act). To address this problem, Congress passed the 1996  Act,
which the President signed into law on September 30,  1996. See id.


The Act ordered the FDIC to impose a special assessment  sufficient to
raise the Savings Fund to the 1.25% designated  reserve ratio for the
fourth quarter of 1996 as of October 1,  1996. See 1996 Act, Pub. L.
No. 104-208, s 2702, 110 Stat.  3009, 3009-479 (1996). The Act also
amended 12 U.S.C.  s 1817(b)(2)(A)(i) to require that the FDIC make
Savings  Fund assessments "when necessary, and only to the extent 
necessary" to maintain Savings Fund reserves at the desig- nated
reserve ratio. 1996 Act s 2708(a), 110 Stat. 3009-497  (codified at 12
U.S.C. s 1817(b)(2)(A)(i) (West Supp. 1999)).  Finally, effective
January 1, 1997, the Act authorized FICO to  service its bonds by
assessing all insured depository institu- tions, not just Savings Fund
member institutions; and in a  related amendment, the Act eliminated
the language in 12  U.S.C. s 1441(f)(2) that linked the FICO and
Savings Fund  assessments. See 1996 Act s 2703(a), 110 Stat. 3009-485 
(codified at 12 U.S.C. s 1441(f)(2) (West Supp. 1999)).


To summarize: As of October 1, 1996, the Savings Fund  was fully
capitalized at the designated reserve ratio. Thus,  under 12 U.S.C. s
1817(b)(2)(A)(i), the FDIC could only  assess Savings Fund members to
the extent necessary to  maintain the Savings Fund at that level.
Because the amend- ment to 12 U.S.C. s 1441(f)(2) severing the
statutory relation- ship between the Savings Fund and FICO did not
become  effective until January 1, 1997, however, FICO could only 
assess Savings Fund members to the extent authorized under  12 U.S.C.
s 1817 to cover its bond interest obligation for the  fourth quarter


On May 30, 1996, before the 1996 Act was enacted, FICO  sent a
memorandum to the FDIC requesting funding of  $396,665,000 for the
period of July 1 through December 31,  1996. On August 31, 1996, the
FDIC sent invoices to the  Savings Fund member institutions for the
fourth quarter 1996  Savings Fund and FICO assessments. On September
30,  1996, the day the President signed the Act into law, the FDIC 
collected the fourth quarter Savings Fund and FICO assess- ments and
transmitted to FICO its portion. On October 16,  1996, the FDIC issued
a final rule imposing the special  assessment ordered by the Act, to
be collected on November  27, 1996. See 61 Fed. Reg. 53,834 (1996).
Since the special  assessment capitalized the Savings Fund retroactive
to Octo- ber 1, the FDIC also issued on October 16 a notice of 
proposed rulemaking to revise the fourth quarter assessment  schedules
so as to refund the fourth quarter Savings Fund  assessment collected
on September 30, 1996. See 61 Fed.  Reg. 53,867 (1996) (proposed Oct.


On December 11, 1996, the FDIC Board held an open  meeting to consider
a final rule revising the fourth quarter  Savings Fund assessment
rates. At that meeting, the Board  considered whether a refund of the
fourth quarter FICO  assessment was appropriate as well. While
acknowledging  that the statutes could be read otherwise, the Board
rejected  the legal interpretation favored by Bankers in this
litigation  in favor of what the Board deemed to be "the better
reading."  The Board concluded that the statutory relationship between
 the FICO and Savings Fund assessments should be construed  to satisfy
congressional intent that FICO be funded, that  FICO's needs fell
within the scope of "any other factors that  the Board of Directors
may deem appropriate" under 12  U.S.C. s 1817(b)(2)(A)(ii)(IV), and
that the FDIC serves  purely a custodial role in collecting and
disbursing the FICO  assessments, thus has no authority to refund the
fourth  quarter 1996 FICO assessment. The final rule adopting the 
revised assessment schedules, including the Savings Fund  refund but
no FICO refund, was issued December 24, 1996.  See 61 Fed. Reg. 67,687
(1996) (codified as amended at 12  C.F.R. ss 327.3-327.10).


Bankers sued under the Administrative Procedure Act  (APA) seeking a
declaratory judgment that its members are  statutorily entitled to a
refund of the FICO portion of the  September 30, 1996, assessment.1
The district court applied  the two-part test of Chevron U.S.A. Inc.
v. Natural Re- sources Defense Council, Inc., 467 U.S. 837 (1984), to
the  FDIC Board's interpretation of the statutory scheme, and  found
that the FDIC's decision not to refund the FICO  portion of the fourth
quarter 1996 assessments "was neither  arbitrary, capricious, nor
otherwise unlawful." America's  Community Bankers v. FDIC, 31 F. Supp.
2d 137, 141  (D.D.C. 1998). Additionally, the district court found
that the  refund sought by Bankers was not available under 5 U.S.C.  s
702: Because the FDIC had disbursed the funds to FICO  immediately
upon collection, the FDIC lacked the particular  res required for
recovery under the APA. See id. at 142  (citing City of Houston v.
Department of Hous. and Urban  Dev., 24 F.3d 1421, 1428 (D.C. Cir.
1994)). The court sug- gested that Bankers should sue FICO for relief


III. Article III Standing


First, the FDIC challenges Bankers's standing before this  court, a
contention which we must address before proceeding  to the merits of
Bankers's claim. To meet the case or  controversy requirement of
Article III of the United States  Constitution, a plaintiff must
demonstrate that he has suf- fered injury in fact, that the injury is
fairly traceable to the  defendant's actions, and that a favorable
decision will redress  the plaintiff's injury. See Bennett v. Spear,
520 U.S. 154, 162  (1997); Lujan v. Defenders of Wildlife, 504 U.S.
555, 560-61  (1992). The FDIC does not challenge Bankers's
satisfaction  of the injury-in-fact element,2 but asserts that Bankers




__________

n 1 Under the APA, reviewing courts hold unlawful and set aside  only
those agency actions or conclusions found to be "arbitrary, 
capricious, an abuse of discretion, or otherwise not in accordance 
with law." 5 U.S.C. s 706(2)(A) (1994).


2 Bankers's standing rests on the concept of associational stand- ing.
A membership organization may sue to redress its members' 


satisfy the causation and the redressability requirements for  Article
III standing. To establish causation, Bankers must  demonstrate a
causal link between the injury to its members  and the FDIC's conduct,
that is that the injurious conduct is  fairly traceable to the FDIC's
actions, as opposed to the  independent action of a third party not
before the court. See  Defenders of Wildlife, 504 U.S. at 560-61. To
satisfy the  redressability requirement, Bankers must establish that
it is  likely, as opposed to merely speculative, that a favorable 
decision by this court will redress the injury suffered. See id.


A. Causation


The FDIC suggests that, to satisfy the causation element  of the
standing analysis, the challenged agency must have  been the driving
force behind the injurious conduct. Employ- ing this standard, the
FDIC maintains that it did not cause  the injury to Bankers's members
because it was only a  conduit, a passive intermediary acting entirely
on FICO's  behalf and at FICO's instruction. Contrary to the FDIC's 
assertion, our precedents generally do not require so high a  degree
of independent agency action for a finding of causa- tion. We have
held in several recent opinions that the  causation element is
satisfied by a demonstration that an  administrative agency authorized
the injurious conduct. See,  e.g., Animal Legal Defense Fund (ALDF) v.
Glickman, 154  F.3d 426, 440-43 (D.C. Cir. 1998) (en banc);
Bristol-Myers  Squibb Co. v. Shalala, 91 F.3d 1493, 1499 (D.C. Cir.
1996);  Telephone and Data Sys., Inc. v. FCC, 19 F.3d 42, 46-47  (D.C.
Cir. 1994). In ALDF v. Glickman, we held that even  agency action
which implicitly permits a third party to behave  in an injurious
manner offers enough of a causal link to  support a lawsuit against
the agency. See 154 F.3d at 440- 43. In short, our precedents suggest




__________

n injuries, even if the organization cannot demonstrate an injury to 
itself. See, e.g., UAW v. Brock, 477 U.S. 274 (1986); Hunt v. 
Washington State Apple Adver. Comm'n, 432 U.S. 333 (1977);  Warth v.
Seldin, 422 U.S. 490 (1975). Our discussion therefore  concerns injury
to Bankers's member institutions, not the organiza- tion per se.


have to be the direct actor in the injurious conduct, but that 
indirect causation through authorization is sufficient to fulfill  the
causation requirement for Article III standing.


In the present case, the FDIC was more involved in both  the assessment
and collection processes than our precedents  require. Both before and
after the 1996 Act, FICO was  statutorily required to obtain "the
approval of the Board of  Directors of the [FDIC]" in assessing
Savings Fund member  institutions. 12 U.S.C. s 1441(f)(2) (West Supp.
1999); see  also 12 U.S.C. s 1441(f)(2) (1994). Even if the FDIC is 
correct that it could not collect the semiannual FICO assess- ment
without FICO's permission, clearly 12 U.S.C.  s 1441(f)(2)
contemplates that FICO could not assess Savings  Fund member
institutions without FDIC approval, either.  The FDIC's own
deliberations over whether or not to refund  the FICO portion of the
funds collected on September 30,  1996, suggest that, contrary to its
position here, the FDIC  viewed itself as playing an active role in
the assessment  process. Moreover, once the assessments were final,
the  FDIC was solely responsible for collecting the funds from 
Savings Fund members. So while the FDIC's involvement in  the FICO
assessment was perhaps something less than we  often see, cf. Bennett
v. Spear, 520 U.S. at 169-70; Northeast  Energy Assocs. v. FERC, 158
F.3d 150, 153-54 (D.C. Cir.  1998), the FDIC's actions are well within
the outer boundary  of causation established by ALDF v. Glickman and


B. Redressability


In its suit against the FDIC, Bankers seeks a declaratory  judgment
that 12 U.S.C. ss 1441 and 1817, as of October 1,  1996, limited the
fourth quarter 1996 Savings Fund assess- ment (including the FICO
assessment portion) to the rate  necessary to maintain the Savings
Fund at the 1.25% desig- nated reserve ratio. See Appellant's Br. at
2. Bankers also  seeks a declaration that its members are entitled to
a refund  from the FDIC of all fourth quarter assessments exceeding 
that amount--in other words, a refund of the fourth quarter 


FICO assessment paid September 30, 1996--plus interest and  costs. See
id. The FDIC maintains that a decision against it  will not redress
the injury to Bankers's members because the  FDIC does not control the
funds it collects on FICO's behalf  and does not have the authority to
use the Bank Fund and  Savings Fund reserves it does control to
provide a refund.  Bankers responds that the FDIC still must approve
FICO  assessments and continues to be actively involved in the 
structure and timing of those assessments. Moreover, Bank- ers claims
that 12 U.S.C. s 1817(e)(1) gives the FDIC the  statutory authority to
make the requested refund. Thus, the  parties perceive that whether a
favorable decision by this  court would redress the injury to
Bankers's members turns  upon whether the FDIC has the authority
either to pay the  refund sought by Bankers or to require FICO to pay


The parties misconstrue the inquiry. The redressability  element does
not depend upon the defendant's financial abili- ty to pay a judgment
against it. Courts do not deny a  plaintiff his day in court simply
because the defendant may be  unable to pay all or part of a potential
judgment against it.  Indeed, courts regularly grant awards against
defendants  who cannot pay, then leave the problems of collection to
the  prevailing plaintiffs. As a general rule, governing statutes do 
not explicitly authorize agencies to pay judgments against  them,
presumably because such statutes do not typically  address the
consequences of agencies overstepping their au- thority. Instead,
Congress has promulgated statutes like the  APA to waive sovereign
immunity and authorize parties  aggrieved by agency actions to seek
relief against the offend- ing agencies in court. See generally 5
U.S.C. s 702 (1994).  If an agency errs, the agency is liable, to the
extent that  Congress has waived the government's immunity from suit. 
Premising redressability on the agency's explicit authority to  pay
contradicts the premise of agency accountability which  underlies the


The law does not require that the challenged agency be  able to pay
before the redressability element for Article III  standing is
satisfied. Instead, the law only requires that the  relief requested,
if granted, will resolve the injury. In Natu-


ral Resources Defense Council v. Pena, 147 F.3d 1012 (D.C.  Cir. 1998),
for example, the appellants sought an injunction  precluding a
government agency from using a particular  report prepared by a
committee organized and operated in  violation of the Federal Advisory
Committee Act (FACA).  We concluded that the NRDC failed to satisfy
redressability  for two reasons: First, the NRDC could not demonstrate
that  denying use of the report would redress the injury caused by 
past FACA violations; and second, even if ongoing FACA  violations
continued to injure the NRDC, the injunction  sought would do nothing
to resolve ongoing violations. See  id. at 1021-22. In contrast, the
relief that Bankers seeks  would redress the alleged injury by giving
Bankers's mem- bers their money back, so long as they could collect


Where an agency rule causes the injury, the redressability  requirement
may be satisfied as well by vacating the chal- lenged rule and giving
the aggrieved party the opportunity to  participate in a new
rulemaking the results of which might be  more favorable to it. See,
e.g., Lepelletier v. FDIC, 164 F.3d  37, 43 (D.C. Cir. 1999) (citing
Northeast Energy Assocs. v.  FERC, 158 F.3d at 154; Motor & Equip.
Mfrs. Ass'n v.  Nichols, 142 F.3d 449, 457-58 (D.C. Cir. 1998)). If we
order  the relief that Bankers seeks, the FDIC would issue new  fourth
quarter 1996 schedules assessing a lesser amount, in  essence revoking
its approval of the FICO assessment retro- actively, as it did with
the fourth quarter 1996 Savings Fund  assessment, and entitling
Bankers's members to a refund.


Finally, collectibility is not in fact a problem in this case.  At oral
argument, the FDIC conceded that it could utilize its  approval
authority to require FICO to offer Bankers's mem- bers a credit
against future assessments if this court were to  find for Bankers on
the merits. Thus, while several lines of  analysis appear to support
Bankers's satisfaction of the re- dressability requirement for Article
III standing, at a mini- mum, the FDIC's ability to offer a remedy in
the form of a  credit is sufficient to establish redressability. On
that basis,  we hold that Bankers has standing to bring this claim for
 declaratory relief against the FDIC.


IV. Money Damages


The FDIC additionally contests our jurisdiction under the  APA to
consider Bankers's request for declaratory relief.  That provision
limits judicial review of claims challenging  agency actions to those
"seeking relief other than money  damages." 5 U.S.C. s 702. Relying
upon our opinion in City  of Houston v. Department of Hous. and Urban
Dev., 24 F.3d  1421, 1428 (D.C. Cir. 1994), the district court held
that, since  the FDIC was merely a conduit for the payment of funds by
 the Savings Fund member institutions to FICO, the FDIC  did not
retain the specific res from which a refund could be  paid; thus, it
held, the refund Bankers seeks is unavailable  under 5 U.S.C. s 702.
See America's Community Bankers,  31 F. Supp. 2d at 141-42. In other
words, since the FDIC no  longer holds the funds paid by Bankers's
members for the  fourth quarter of 1996, a refund constitutes money
damages  beyond the scope of the APA's jurisdictional grant. Bankers 
suggests that the district court misconstrued City of Houston  and
interpreted 5 U.S.C. s 702 too narrowly.


The pivotal analysis in distinguishing specific relief avail- able
under the APA from unavailable money damages comes  from our opinion
in Maryland Dep't of Human Resources v.  Department of Health and
Human Servs., 763 F.2d 1441  (D.C. Cir. 1985), which the Supreme Court
adopted in Bowen  v. Massachusetts, 487 U.S. 879 (1988). Not all forms
of  monetary relief are money damages. See Maryland Dep't of  Human
Resources, 763 F.2d at 1447. Rather, money dam- ages represent
compensatory relief, an award given to a  plaintiff as a substitute
for that which has been lost; specific  relief in contrast represents
an attempt to restore to the  plaintiff that to which it was entitled
from the beginning. See  id. at 1446. Maryland Department of Human
Resources,  Bowen, and subsequent cases focus on the nature of the
relief  sought, not on whether the agency still has the precise funds 


Where a plaintiff seeks an award of funds to which it claims 
entitlement under a statute, the plaintiff seeks specific relief,  not
damages. See, e.g., Bowen, 487 U.S. at 901; Maryland 


Dep't of Human Resources, 763 F.2d at 1446-48; National  Ass'n of
Counties v. Baker, 842 F.2d 369, 373 (D.C. Cir. 1988);  Aetna Cas. &
Sur. Co. v. United States, 71 F.3d 475, 478-79  (2d Cir. 1995); Dia
Navigation Co. v. Pomeroy, 34 F.3d 1255,  1266-67 (3d Cir. 1994). In
the present case, Bankers main- tains that the statutory scheme, as it
was for the fourth  quarter of 1996, required the FDIC to provide for
a FICO  assessment refund in the revised assessment schedules pro-
mulgated in December 1996. If Bankers is correct that the  FDIC
violated its statutory obligation by adopting revised  assessment
schedules which permitted an overcharge, then  under established and
binding precedent, Bankers's claim  represents specific relief within
the scope of 5 U.S.C. s 702,  not consequential damages compensating
for an injury. That  the FDIC no longer possesses the precise funds
collected is  not determinative of this analysis.


Our precedent in City of Houston does not preclude Bank- ers's claim.
In that case, Houston sued HUD for congres- sionally appropriated
grant money that HUD first allocated  to Houston, then reallocated
elsewhere after Houston failed  to meet spending targets. The FDIC
notes that we rejected  Houston's argument that HUD could use other
funds at its  disposal to pay its claim and concluded that "specific
relief"  under section 702 requires payment "out of a specific res." 
City of Houston, 24 F.3d at 1428. The FDIC argues that  Bankers's
claim is analogous to Houston's, as Bankers sug- gests that if the
FDIC does not have adequate authority to  pay a refund from FICO
funds, the FDIC could use Savings  Fund reserves instead. This
resemblance is superficial, how- ever.


The principal issue in City of Houston was mootness, not  the question
of allowable specific relief as opposed to unavail- able money
damages. We dismissed Houston's claim as moot  because the grant funds
were contractually obligated to an- other recipient and the
appropriation in question had lapsed.  See id. at 1427. We rejected
Bowen as inapplicable in view of  the Appropriations Clause of the
Constitution. Because the  Appropriations Clause precludes a
distribution of money from  the Treasury unless appropriated by


we had no authority to provide monetary relief by ordering 
reapplication of lapsed or fully obligated appropriations. See  id at
1428. The commitment of the appropriated funds to  other recipients
and the expiration of the congressional ap- propriation eliminated
Houston's particular entitlement to  government monies. Outside the
appropriations process,  HUD had no statutory, regulatory, or other
legal obligation  or authority to distribute funds to Houston. Under
those  circumstances, an award from other available HUD funds not 
only would have represented compensation for Houston's loss  of the
grant money--thus money damages as opposed to  specific relief--but
also would have created a separation of  powers encroachment under the
Appropriations Clause of the  Constitution. The City of Houston
petitioners sought to have  us control the appropriation of funds, or
the distribution of  appropriated funds, while the present case does
not directly  implicate appropriated funds, but rather seeks
restoration of  funds allegedly taken wrongfully by assessment from


Whereas City of Houston addressed whether a court could  award to a
claimant funds which otherwise belonged to the  government, this case
questions whether the government can  retain funds which originally
belonged to Bankers's members.  Unlike Houston, Bankers is not seeking
compensation for  economic losses suffered by the government's alleged
wrong- doing; Bankers wants the FDIC to return that which right- fully
belonged to Bankers's member institutions in the first  place. Bankers
alleges that the FDIC violated the terms of  12 U.S.C. ss 1441 and
1817 by assessing more in the fourth  quarter of 1996 than the
statutory scheme permitted. If  Bankers is correct in its statutory
interpretation, then the  FDIC improperly collected money from
Bankers's members,  and they are entitled under the statutory scheme
to get their  money back. The FDIC cannot eliminate the entitlement of
 Bankers's member institutions to reimbursement by distrib- uting the
improperly collected funds elsewhere.


The FDIC also cites Department of the Army v. Blue Fox,  Inc., 119 S.
Ct. 687 (1999), as supporting the district court's  conclusion. In
Blue Fox, a prime contractor on a government 


contract failed to pay a subcontractor, who then sued the  Army seeking
an equitable lien on any funds available or  appropriated for the
project and an order directing payment  of those funds. The Supreme
Court held that, since the  subcontractor's claim for specific relief
was against the de- faulting prime contractor, an equitable lien
represented com- pensatory or substitute relief, thus money damages.
See id.  at 692. The present case is different because the FDIC's 
responsibility for the alleged overassessment is not purely 
subsidiary to FICO's. Unlike the Army in Blue Fox, the  FDIC at least
shares with FICO primary responsibility for  the alleged wrongdoing.
Although the FDIC disclaims any  active role in the alleged injurious
conduct, as we have  already discussed, the FDIC's characterization is
inaccurate.  Since the FDIC shares direct responsibility for assessing
and  collecting the FICO assessment, Bankers's claim for mone- tary
relief is equitable, like the claims in Bowen and Mary- land
Department of Human Resources, not compensatory,  like the claim in


Regardless, even if we were to order a refund in this case,  no
transfer of funds would be necessary to follow our com- mand. At oral
argument, the FDIC conceded that it had the  authority to offset
Bankers's members' future FICO assess- ments by the amount of any
refund this court might order.  In other words, if we found for
Bankers on the merits, we  could order the FDIC to give them a credit
against future  FICO assessments as opposed to a cash refund of past 
assessments. Bankers agreed that such a remedy would be  functionally
equivalent to the relief it seeks. These conces- sions render the
FDIC's cash position both practically and  legally irrelevant. For
these reasons, we hold that the reme- dy sought by Bankers does not
constitute money damages.  Thus we have power under 5 U.S.C. s 702 to
consider the  merits of Bankers's claim.


V. Alleged Issues of Fact


Bankers challenges the district court's grant of summary  judgment on
the ground that the court improperly resolved 


genuine issues of material fact which should be left to a jury. 
Bankers raises three allegedly key facts as in dispute: First, 
whether FICO could have met its interest payment obli- gations in the
fourth quarter of 1996 without the special  assessment; second,
whether the FDIC played an active or  passive role with respect to the
assessment; and third,  whether the FDIC is capable of paying a
refund. An appel- late court reviews a grant of summary judgment de
novo,  applying the same standard as governed the district court's 
decision. See Greene v. Dalton, 164 F.3d 671, 674 (D.C. Cir.  1999).
Accordingly, we must determine whether a genuine  issue of material
fact exists in this case. See Byers v.  Burleson, 713 F.2d 856, 859


Bankers's claim misapprehends the district court's decision  and the
nature of the inquiry at hand. Summary judgment is  appropriate when
evidence on file shows "that there is no  genuine issue as to any
material fact and that the moving  party is entitled to a judgment as
a matter of law." Fed. R.  Civ. P. 56(c). Not all alleged factual
disputes represent  genuine issues of material fact which may only be
resolved by  a jury. "Material facts are those 'that might affect the 
outcome of the suit under governing law,' and a genuine  dispute about
material facts exists 'if the evidence is such that  a reasonable jury
could return a verdict for the nonmoving  party.' " Farmland Indus.,
Inc. v. Grain Board of Iraq, 904  F.2d 732, 735-36 (D.C. Cir. 1990)
(quoting Anderson v. Liber- ty Lobby, Inc., 477 U.S. 242, 248 (1986)).
The "factual issues"  raised by Bankers do not meet this standard.


With respect to FICO's ability to meet its interest payment 
obligation, the FDIC's concern was with the construction of  the
statutory funding scheme overall. The FDIC at no point  in the record
said that FICO could not make its fourth  quarter 1996 interest
payment unless it retained the funds  collected on September 30, 1996.
Instead, the FDIC rea- soned that Bankers's interpretation of the
statute could yield  inconsistent funding and disrupt FICO's ability
to meet its  bond interest obligation, that another reading would
generate  a more stable cash flow for FICO, and that the stable cash 
flow was consistent with congressional intent. Thus, the 


FDIC's discussion of FICO's ability to meet its bond interest 
obligation represents statutory construction, not fact finding,  and
the district court appropriately treated it as such.


The nature of the FDIC's role in the FICO assessment  process is also a
legal, not a factual, question. The adequacy  of the Savings Fund
reserves is not a material fact because it  is not relevant. But even
if we considered these allegedly  factual disputes to be issues of
fact, and a jury found that the  FDIC was an active participant, that
finding would only  influence whether Bankers clears the Article III
standing  hurdle, a question which we have already decided in Bank-
ers's favor as a matter of law; and for a jury to find that the 
Savings Fund reserves are adequate to cover the refund  would resolve
nothing. Neither finding would inform the  question of whether the
FDIC properly interpreted its statu- tory obligation with respect to
the FICO assessment. Put  simply, even if Bankers were correct in
characterizing these  so-called disputes as issues of fact, they do
not involve  material facts because they have no bearing on the
outcome  of the case. This case turns on whether the FDIC properly 
interpreted the statutory scheme governing Savings Fund  and FICO
assessments, not on determinations of fact. The  district court did


VI. Statutory Interpretation


Accordingly, we turn to the bottom line of the present case:  whether
the FDIC properly construed its authority and obli- gations under 12
U.S.C. ss 1441 and 1817. Prior to the  enactment of the 1996 Act and
through January 1, 1997, 12  U.S.C. s 1441(f)(2) provided that the
FICO assessment "shall  not exceed the amount authorized to be
assessed against  Savings Association Insurance Fund members pursuant
to [12  U.S.C. s 1817]...." 12 U.S.C. s 1441(f)(2) (1994); see also 
Pub. L. 104-208, s 2703(a), (c), 110 Stat. 3009, 3009-485 to  3009-486
(1996) (making the amendments to s 1441(f)(2) ef- fective only with
respect to semiannual periods beginning  after December 31, 1996). As
of September 30, 1996, howev- er, 12 U.S.C. s 1817(b)(2)(A)(i)
required the FDIC Board to


set semiannual assessments for insured depository insti- tutions when
necessary and only to the extent necessary  ... to maintain the
reserve ratio of each deposit insur- ance fund at the designated
reserve ratio; or ... if the  reserve ratio is less than the
designated reserve ratio, to  increase the reserve ratio to the
designated reserve  ratio.... 


12 U.S.C. s 1817(b)(2)(A)(i) (West Supp. 1999). The stat- ute
instructed the FDIC Board in carrying out that task to  consider the
Savings Fund's expected operating expenses,  case resolution
expenditures and income, the effect of assess- ments on members'
earnings and capital, and "any other  factors that the Board of
Directors may deem appropriate."  Id. s 1817(b)(2)(A)(ii). The statute
also precluded the FDIC  Board from setting the Savings Fund
assessments "in excess  of the amount needed ... to maintain the
reserve ratio of the  fund at the designated reserve ratio; or ... if
the reserve  ratio is less than the designated reserve ratio, to
increase the  reserve ratio to the designated reserve ratio." Id.  s
1817(b)(2)(A)(iii). Notably, the limitation on assessment  codified in
12 U.S.C. s 1817(b)(2)(A)(iii) was part of the 1996  Act, and thus
became effective September 30, 1996. Addi- tionally, even though the
changes to 12 U.S.C. s 1441(f)(2)  severing the link between the FICO
and Savings Fund as- sessments were not effective until January 1,
1997, the por- tion of 12 U.S.C. s 1817(b)(2) which addressed the FICO
 assessment was repealed effective September 30, 1996: "Not-
withstanding any other provision of this paragraph, amounts  assessed
by the Financing Corporation under section 1441 of  this title against
Savings Association Insurance Fund mem- bers shall be subtracted from
the amounts authorized to be  assessed by the Corporation under this
paragraph." 12  U.S.C. s 1817(b)(2)(D) (1994); see also Pub. L. No.
104-208,  s 2703(b), 110 Stat. 3009, 3009-485 (1996) (repealing  s




__________

n 3 In its final rule, the FDIC took the view that section 2703(c) of 
the 1996 Act contained a misprint, and that the Act actually  repealed
12 U.S.C. s 1817(b)(2)(D) effective January 1, 1997. See 


Bankers asserts that the plain meaning of these provisions  as they
read for the fourth quarter of 1996 unambiguously  excused Savings
Fund members from paying fourth quarter  1996 assessments in excess of
the amount necessary for the  Savings Fund to achieve or maintain the
designated 1.25%  reserve-to-deposits capitalization ratio. Congress,
through  the 1996 Act, ordered the FDIC to set and collect a special 
assessment sufficient to raise the Savings Fund reserves to  the
designated reserve ratio as of October 1, 1996, and limited  the
Savings Fund assessment to the amount needed to main- tain the Savings
Fund reserves at that level. But Congress  preserved the statutory
link between the FICO and Savings  Fund assessments until January 1,
1997. Therefore, Bankers  argues, Congress clearly intended to limit
the fourth quarter  FICO assessment. As the fourth quarter FICO
assessment  had already been collected when the Act came into effect, 
Bankers argues a refund is required, as with the fourth  quarter
Savings Fund assessment. Bankers suggests that  the FDIC's approach
reduces 12 U.S.C. s 1441(f)(2) to an  instruction for the FDIC to
allocate to FICO whatever  amounts FICO requested, while 12 U.S.C. s
1441(f)(2) clearly  limited the FICO assessment to the amount
necessary to  achieve or maintain the Savings Fund at the designated 


The FDIC, in contrast, maintains that the only reasonable 
interpretation of the statutory scheme as a whole, both before  the
1996 Act and through the fourth quarter of 1996, was for  the Savings
Fund assessment to include the amounts neces- sary for both the
Savings Fund and FICO. Before the Act  required a special assessment
raising the Savings Fund re- serves to the designated ratio, 12 U.S.C.
s 1817(b)(3)(B)  ordered the FDIC to bring the Savings Fund to that
level  within a fifteen year time frame. As the FDIC sees it, if 
Bankers's interpretation of the pre-1996 statutory scheme is  correct,
then the FDIC would have had to satisfy the require- ments of FICO and
the Savings Fund both out of the 




__________

n 61 Fed. Reg. at 67,688 n.2. We do not need to resolve whether the 
FDIC is correct on this point to reach our conclusion.


assessment necessary to fund the Savings Fund alone, and  the Savings
Fund could not have achieved the designated  reserve ratio within the
required fifteen year period. More- over, as the Savings Fund
approached and achieved the  designated level, FICO would have
received less and less,  then nothing at all unless the Savings Fund
fell below that  ratio. Such an outcome, it argues, would contradict
Con- gress's clear intent to provide FICO with the funding neces- sary
to satisfy its bond interest payment obligations. Under  its own
interpretation, the statutory scheme merely precluded  the FDIC from
assessing for the Savings Fund's needs until  it had assessed an
amount adequate to fund FICO, and the  FDIC could maintain a stable
cash flow for FICO even after  the Savings Fund attained the
designated reserve ratio.  Moreover, the statute does not provide for
a refund of the  FICO assessment. If Congress intended a refund, the
FDIC  asserts, it would have provided for one.


The overall statutory scheme involves a statute over which  the FDIC
does not possess administrative authority, 12  U.S.C. s 1441.
Ordinarily, an agency's interpretation of a  statute it does not
administer is not entitled to deference.  See, e.g., Professional
Reactor Operator Soc'y v. United  States Nuclear Regulatory Comm'n,
939 F.2d 1047, 1051  (D.C. Cir. 1991). Nevertheless, because the
FDIC's actions  derive principally from its interpretation of 12
U.S.C.  s 1817(b)(2), which it does administer, the two-step Chevron 
inquiry is appropriate here. See Chevron, 467 U.S. at 842-43.  Under
the Chevron standard, if Congress has directly spoken  to the issue,
and the intent of Congress is clear, then there is  nothing for the
agency to interpret, and the court must give  effect to the
unambiguous expression of Congress. See id.  If, however, the court
decides that the statute is ambiguous,  then the court determines only
whether the agency's inter- pretation is a reasonable one. See id.


Turning to the first step of the analysis, we cannot agree  with
Bankers that the plain meaning of 12 U.S.C. s 1441(f)(2)  and 12
U.S.C. s 1817(b)(2) required the FDIC to refund the  FICO assessment.
Neither can we concur with the FDIC's  claim that these provisions
explicitly precluded a refund. 


Indeed, both parties offer reasonable interpretations of the  proper
functioning of the statutory scheme. In our view, the  intersection of
12 U.S.C. s 1817(b)(2)(A) and 12 U.S.C.  s 1441(f)(2) was somewhat
ambiguous even before the Act,  and the staggered effective dates
imposed by the Act sub- stantially compounded that ambiguity.


We note however that 12 U.S.C. s 1817(b)(2)(A) gives the  FDIC the
authority to "set" the Savings Fund assessment  amount, then
articulates several factors including the "any  other factors" element
for the FDIC to consider in doing so.  In its notice of final
rulemaking and before this court, the  FDIC asserted that the pre-1996
Act statutory scheme in  effect when the assessment at issue was
collected, as well as  the "any other factors" language of 12 U.S.C. 
s 1817(b)(2)(A)(ii) which survived the Act, gave it some dis- cretion
to deny a FICO assessment refund on the ground that  such a refund
would imperil FICO funding. See 61 Fed. Reg.  at 67,692; Appellee's
Br. at 26-27, 30, 32. Although each  party argued that the case should
be resolved in its favor at  Chevron step one, our conclusion that the
statutory scheme is  facially ambiguous and our acceptance of the
FDIC's claim  that 12 U.S.C. s 1817(b)(2)(A)(ii) allows it some
discretion  over these matters permit us to move to the second phase


We recognize that the FDIC's interpretation of the provi- sions in
question has been inconsistent. Indeed, in its final  rule addressing
the refund issue, the FDIC blamed the FICO  allocation for the Savings
Fund's failure to receive the full  amount of the revenues that the
Savings Fund assessments  generated prior to the Act. See 61 Fed. Reg.
67,687 & n.1  (1996). The FDIC noted that, "[t]hrough the end of 1996,
the  FICO draw serves to reduce the amounts that the FDIC  assesses
against [Savings Fund]-member savings associa- tions." Id. at 67,688
(citing 12 U.S.C. s 1441(f)(2)). Only  after 1996, the FDIC claimed,
would FICO assessments be  "independent of and in addition to those of
the FDIC." Id. at  67,688 & n.2. These statements suggest that the
FDIC's  December 1996 interpretation of the pre-Act statutory  scheme
was in line with Bankers's interpretation here. 


Moreover, in challenging Bankers's standing to raise the  refund claim,
the FDIC maintained before this court that it  had no discretion with
respect to the FICO assessment, but  was merely a passive collection
agent and conduit for the  assessed funds.


However, despite these inconsistencies, the FDIC in its  rulemaking
process clearly considered the alternative inter- pretations of the
statute, and settled on a construction that is  at least permissible.
For the most part, the FDIC has  continued to support this
construction throughout the litiga- tion, even if at times it has
advanced additional, somewhat  contradictory positions as well. Thus,
under the deferential  Chevron standard, we conclude that the FDIC's
interpreta- tion of 12 U.S.C. s 1817 was a reasonable one which we
must  respect. We conclude as well that the FDIC, in declining to 
refund the fourth quarter 1996 FICO assessment, did not act 
arbitrarily, capriciously, or otherwise contrary to the law.


Both in the district court and before us, the FDIC has  advanced the
additional argument that the amended statutory  language effective
October 1, 1996, bars the FDIC only from  "set[ting]" assessments and
from "assess[ing]" amounts in  excess of statutory limitations. 12
U.S.C. ss 1441(f)(2)(A)(i)- (ii), 1817(b)(2)(A)(i), (iii). Because the
assessment in this case  was "set" no later than May 30, 1996, by
memorandum from  FICO to the FDIC and "assessed" on or about August
31,  1996, when the FDIC sent invoices to the saving institutions, 
both events, potentially barrable by the amended statute,  occurred
well before the effective date of the statutory  change. As the FDIC
points out, Bankers has not even  argued that the fourth quarter 1996
FICO assessment was  unlawful under the statutory scheme as it existed
prior to the  October 1, 1996, effective date of the amendment.
Because  nothing in the new statute requires the FDIC to reconsider 
the previously set lawful assessment, the FDIC argues that  the
language upon which Bankers relies is not applicable to  the
assessment at issue. We find this argument to be a  persuasive one.


The principal drawback with this additional argument of  the FDIC is
that the FDIC did not rely upon it or even  discuss it during the
rulemaking process as the basis for its  decision not to refund the
fourth quarter FICO assessment.  Thus, we cannot apply to this
interpretation of the statutory  words "set" and "assess" the same
Chevron deference we  afforded to the FDIC's "any other factors"
analysis discussed  above. This does not, however, mean that we may
not  consider the argument, or even rely on the interpretation. It  is
true, of course, that a court can only uphold the decision of  an
administrative agency on those grounds "upon which the  record
discloses that its action was based." SEC v. Chenery  Corp., 318 U.S.
80, 87 (1943). Courts are not commissioned  to remake administrative
determinations on different bases  than those considered and relied
upon by the administrative  agencies charged with the making of those


An obvious corollary to this principle is that post hoc 
rationalizations cannot support an affirmance of an agency  decision
based on an otherwise invalid rationale. See, e.g.,  Citizens to
Preserve Overton Park v. Volpe, Inc., 401 U.S.  402, 419-20 (1971).
This principle applies as well to our  review of statutory
interpretations under the second prong of  Chevron. As we stated in
City of Kansas City v. Department  of Hous. & Urban Dev., 923 F.2d 188
(D.C. Cir. 1991), "[i]n  whatever context we defer to agencies, we do
so with the  understanding that the object of our deference is the
result of  agency decisionmaking, and not some post hoc rationale de-
veloped as part of a litigation strategy." Id. at 192.


However, the FDIC does not ask us to do anything barred  by Chenery or
Kansas City. The corporation does not seek  before us to substitute a
post hoc, and therefore unacceptable,  rationale for an otherwise
invalid rationale rejected by the  court on review. Rather, the FDIC,
in defending the reason- ableness of its interpretation of one part of
the relevant  statute subject to the second prong of the Chevron
analysis,  offers a persuasive interpretation of other words of that
same  statute consistent with the interpretation it seeks to have us 
uphold under Chevron. The FDIC does not claim, and we do  not hold,
that its interpretation of "set" and "assess" indepen-


dently carries the day in our review of its decision. Were we  to so
hold, we might well be countenancing the sort of post  hoc-ery we have
rejected in prior cases. But again, that is  not what we do in the
present analysis. Rather, the FDIC  argues, and we hold, that the
apparent legal meanings of the  statutory terms "set" and "assess" are
consistent with the  FDIC's interpretation of the "any other factor"
rationale in  fact relied upon by the FDIC and reviewed by us under
the  Chevron standard. There is no difficulty in our reviewing the 
statutory language de novo. That is, after all, what courts do.


It is fixed law of Chevron jurisprudence, applicable to the  "any other
factors" interpretation, that we may employ the  traditional tools of
statutory interpretation in determining  both whether the meaning of
the language is clear at Chevron  step one and whether the agency's
interpretation is a reason- able one at Chevron step two. See, e.g.,
Bell Atlantic Tel.  Cos. v. FCC, 131 F.3d 1044, 1049 (D.C. Cir. 1997);
American  Fed'n of Gov't Employees v. FLRA, 798 F.2d 1525, 1528 (D.C. 
Cir. 1986). Consistency of interpretation of one portion of a  statute
with the apparent meaning of another portion is a  traditional tool of
statutory interpretation. See, e.g., Lexecon  Inc. v. Milberg Weiss
Bershad Hynes & Lerach, 118 S. Ct.  956, 962 (1998); Atwell v. Merit
Sys. Protection Bd., 670 F.2d  272, 286 (D.C. Cir. 1981). Therefore,
the argument is proper- ly before us; it is also convincing. The
FDIC's interpretation  of the "any other factors" language of 12
U.S.C.  s 1817(b)(2)(A)(ii)(IV) yields a result consistent with the
ap- parent congressional goal of 12 U.S.C. ss 1441(f)(2)(A)(i)-(ii) 
and 1817(b)(2)(A)(i) and (iii). This is evidence that the  FDIC's
interpretation of the statutory scheme is reasonable.  The opposing
interpretation advanced by appellants is not so  consistent with the
apparent congressional intent of the other  section. Therefore, the
FDIC's interpretation is not only  reasonable, but the more reasonable
of those before us, even  if we subjected it to a more stringent
standard than Chevron  analysis. It does no violence to Chenery or
Kansas City  principles for an agency to advance a legal argument in 
support of its administrative position which bolsters rather 


than duplicates the consistent position upon which its decision  was
made below.


Conclusion


In summary, we hold that Bankers satisfies the require- ments for
Article III standing, and that the remedy Bankers  seeks represents
relief other than money damages within the  context of 5 U.S.C. s 702.
As a result, we are able to  consider the merits of Bankers's claim.
Upon consideration  of those merits, however, we hold that the
district court did  not improperly invade the jury's province and
resolve genuine  issues of material fact; and we hold that the FDIC's
interpre- tation of the relevant statutory scheme is a reasonable one 
entitled to Chevron deference and is not arbitrary, capricious,  or
otherwise contrary to the law. For these reasons, we  affirm the
district court's grant of summary judgment in  favor of the FDIC.