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Davis Polk Discusses Rulings on Fed’s Denial of Master Accounts to Custodia and PayServices

Two federal district courts recently upheld decisions by the Federal Reserve Bank of Kansas City (FRBKC) and the Federal Reserve Bank of San Francisco (FRBSF) to deny master account applications from Custodia Bank (Custodia) and PayServices Bank (PayServices). Custodia has a Special Purpose Depository Institution (SPDI) charter from the State of Wyoming that allows it to take deposits but does not require it to obtain insurance from the Federal Deposit Insurance Corporation (FDIC). While Custodia is subject to state prudential regulation, it is not FDIC-insured or subject to federal prudential regulation and does not have a holding company subject to Federal Reserve oversight. Its business model is to provide banking services to crypto-asset companies. Custodia filed an application for a master account in October 2020 with the FRBKC.

PayServices, an Idaho-chartered bank, submitted its master account application in August 2022 with the FRBSF, seeking to use the FRBSF’s transaction-related services to provide payment processing to non-U.S. customers.

A master account at a Federal Reserve Bank is necessary for an institution to have direct access to the payment systems of the Federal Reserve System (Federal Reserve) and settle transactions in central bank money. A master account is also a necessary, but not sufficient, condition for an institution to have access to the Federal Reserve’s discount window, to incur intraday or overnight overdrafts in any of the Federal Reserve’s payment systems or to obtain direct membership in the major clearing networks that connect the U.S. payment system.

Both applications were ultimately denied. Custodia and PayServices each brought suit against the applicable Federal Reserve Bank, challenging the denials and arguing that they were entitled to master accounts as a matter of law by virtue of being depository institutions that are legally eligible for such master accounts.

The U.S. District Court for the District of Wyoming (Wyoming District Court) upheld the FRBKC’s denial of Custodia’s application, reasoning that the FRBKC had the discretion to deny Custodia a master account even though Custodia was legally eligible to have one. A magistrate from the Idaho District Court reached a similar conclusion in the case involving PayServices. The magistrate also held that the FRBSF is not an agency of the U.S. government and thus cannot be compelled to open a master account under the Administrative Procedure Act (APA) or through a writ of mandamus.

The two decisions mark the second and third times a federal district court has held that a Federal Reserve Bank has the discretion to deny master accounts to legally eligible depository institutions. The decisions allow Federal Reserve Banks to continue to implement the master account access guidelines (the Guidelines) issued by the Board of Governors of the Federal Reserve (Federal Reserve Board). The Guidelines, in turn, effectively call for Federal Reserve Banks to apply strict scrutiny to master account applications from uninsured state-chartered depository institutions that are not subject to federal prudential regulation and do not have a holding company subject to Federal Reserve oversight, at least if they have “novel charters.”

The term “novel charters” appears to mean depository institutions with novel business models, such as providing banking services to lawful but politically controversial businesses like crypto-asset companies1 or attempting to provide retail depositors with the economic equivalent of demand deposit claims directly against a Federal Reserve Bank.2 Just as a 10% tax imposed on paper currency issued by state-chartered banks in the 19th century made them less efficient than national banks, so too will the denial of master accounts to uninsured depository institutions with novel business models increase these banks’ operating costs by forcing them to use intermediaries to obtain indirect access to the Federal Reserve’s payment services.

There is a substantial possibility that the Custodia decision will be appealed to the U.S. Court of Appeals for the Tenth Circuit and possibly the U.S. Supreme Court. One Tenth Circuit judge has already held that Fourth Corner Credit Union (Fourth Corner), which was legally eligible for a master account and proposed to provide payment services to marijuana businesses, was entitled to a master account as a matter of law. But that opinion was not the opinion of the court and thus is not binding precedent.

Given the protracted and high-profile nature of Custodia’s lawsuit, and the possibility that Custodia could appeal the decision all the way to the U.S. Supreme Court, this client update focuses on the Custodia court’s decision that Federal Reserve Banks have discretion to reject master account applications. We also discuss the additional ruling in the PayServices case that the FRBSF is not an agency of the U.S. government.

Background

Custodia filed its application for a master account with the FRBKC in October 2020. After the application languished for 19 months, Custodia filed a complaint with the Wyoming District Court seeking an order to compel the Federal Reserve Board and the FRBKC to grant Custodia a master account. We covered Custodia’s initial complaint in a previous client update.

While Custodia’s application was pending, the Federal Reserve Board issued the Guidelines, which we also covered in a previous client update. The Guidelines have two sections. Section 1 requires all applicants to be depository institutions that are legally eligible to have master accounts. Section 2 requires legally eligible depository institutions to meet certain additional safety and soundness standards and created three tiers of scrutiny. Tier 1 applies to federally insured depository institutions, which would generally be subject to “a less intensive and more streamlined review.” Tier 2 applies to uninsured state or federally chartered depository institutions that are subject to federal prudential regulation and have holding company parents that are subject to Federal Reserve oversight. Tier 2 institutions would be subject to “an intermediate level of review.” Tier 3 consists of uninsured state or federally chartered depository institutions that are not subject to federal prudential supervision or do not have holding companies subject to Federal Reserve oversight, or both. Tier 3 institutions would “generally receive the strictest level of review.”

On January 27, 2023—more than two years after Custodia filed its application for a master account—the FRBKC denied Custodia’s application. In its decision letter, the FRBKC classified Custodia as a Tier 3 institution subject to the strictest level of review. It characterized Custodia’s business model as focusing “almost exclusively on offering products and services related to novel crypto-asset asset activities … an unprecedented business model that presents heightened risks involving activities that do not currently have clarity at the federal level.” The FRBKC described Custodia’s business model as “highly likely” to be “inconsistent with safe and sound banking practices.” As a result, the FRBKC concluded that “accepting deposits from Custodia into a master account would introduce undue risk to the [FRBKC], risk to the overall economy due to potential illicit activities, and potential risk to the payments system that cannot be effectively mitigated at this time.”

Custodia reacted to this decision by amending its initial complaint with the Wyoming District Court to seek an order that would overturn the denial.

While the Custodia case was pending, then-Senator Pat Toomey proposed legislation on master account access. One proposal—part of Toomey’s proposed Stablecoin TRUST Act—would have required Federal Reserve Banks to grant master accounts to state-chartered depository institutions acting as issuers of payment stablecoins, a type of cryptocurrency pegged to the U.S. dollar that would be 100% backed by cash or cash equivalents. Another Toomey proposal, which was enacted into law as part of the 2023 National Defense Authorization Act and later codified as 12 U.S.C. § 248c, amended the Federal Reserve Act to require the Federal Reserve Board to “create and maintain a public, online, and searchable database that contains … a list of every entity that submits an access request for a reserve bank master account and services,” including whether the request was “approved, rejected, pending, or withdrawn.” The database was first published by the Federal Reserve Board in June 2023.

Reflecting the importance of master account access and its implications for the dual banking system, several third parties, including former Senator Toomey, weighed in on the Custodia case, either as expert witnesses for one of the parties or as interested persons. Those third parties included Senator Cynthia Lummis (R-WY), the Blockchain AssociationKatie Cox and Professors Peter Conti-Brown, Morgan Ricks,3Julie Andersen Hill and David Zaring.4

In his amicus brief, former Senator Toomey stated that the purpose for his amendment requiring the Federal Reserve Board to maintain a database was to increase the transparency and public accountability of the Federal Reserve Banks’ master account approval process, which otherwise had been conducted in secret. He said he proposed the amendment in reaction to the refusal by the FRBKC to provide Congress with any information about its decision to deny, then approve and then revoke a master account for the Reserve Trust, a financial technology company. The controversy around those actions involved accusations that former Federal Reserve Governor Sarah Bloom Raskin had intervened in Reserve Trust’s master account approval process and ultimately resulted in Raskin withdrawing from her nomination as Federal Reserve Vice Chair for Supervision. Former Senator Toomey stated that the purpose of the amendment was clearly not to suggest that Federal Reserve Banks had any discretion to deny master account applications by legally eligible depository institutions.

The ruling: The FRBKC was not required by statute to grant Custodia a master account

On March 29, 2024, the Wyoming District Court held that the FRBKC was not required to grant Custodia’s request for a master account even though Custodia was legally eligible for a master account.

Custodia had argued that 12 U.S.C. § 248a—which was added by the Depository Institutions Deregulation and Monetary Control Act of 1980 (DIDMCA)—required the Federal Reserve Banks to open a master account for all legally eligible depository institutions upon request. Section 248a(c)(2) states, in relevant part, that “[a]ll Federal Reserve bank services covered by the fee schedule shall be available to nonmember depository institutions and such services shall be priced at the same fee schedule applicable to member banks.” Because a master account is necessary to access Federal Reserve Bank services, and Custodia is an eligible nonmember depository institution, Custodia contended that the FRBKC was required to grant it a master account in order to have access to these services. Several prominent academics supported Custodia’s position.

The Wyoming District Court rejected Custodia’s arguments, holding that the FRBKC was not required by statute to grant Custodia a master account solely by virtue of being legally eligible for a master account. Instead, it held that the FRBKC had the discretion to grant or deny master accounts to otherwise legally eligible depository institutions. The court provided seven reasons for its decision.

“[U]nless the Federal Reserve Banks possess discretion to deny or reject a master account application, state chartering laws would be the only layer of insulation for the U.S. financial system. And in that scenario, one can readily foresee a ‘race to the bottom’ among states and politicians to attract business by reducing state chartering burdens through lax legislation, allowing minimally regulated institutions to gain ready access to the central bank’s balance sheet and Federal Reserve services. As [the FRBKC] accurately notes, ‘[t]he Wyoming Division of Banking … has many purposes and aims, but protecting the national financial system and implementing national monetary policy are not among them… . States lack not only the mission but also the resources to protect national interests.’ The potential negative consequences associated with Custodia’s proffered interpretation do not suggest Congress intended DIDMCA to remove the discretion of Federal Reserve Banks when considering master account applications.”

The court also explained that it was “respectfully deviat[ing] from Judge Bacharach’s opinion in Fourth Corner Credit Union v. Federal Reserve Bank of Kansas City,” the Tenth Circuit decision that reviewed an order granting a motion to dismiss Fourth Corner’s complaint against the FRBKC. Fourth Corner’s complaint had challenged the FRBKC’s denial of its master account application. While noting that the opinion was “well-reasoned and insightful,” the Wyoming District Court stated that it was “not controlling authority because [it] was a three-way decision between a three-judge panel,” where “Judge Bacharach was the odd man out as he voted to reverse the dismissal of the complaint.” The court stated that it was deviating from Judge Bacharach’s opinion “based in large part on” former Senator Toomey’s legislation requiring the Federal Reserve to maintain a database of master account applications, including data about approvals and denials. That legislation had not been “available for Judge Bacharach’s consideration in 2017.”

Legal analysis of the Custodia decision on appeal

If Custodia appeals the Wyoming District Court’s decision to the Tenth Circuit, the standard of review of the district court’s decision will be de novo because there was no genuine issue of material fact in dispute, and the district court’s decision was exclusively an interpretation of law. In other words, the Tenth Circuit would make its own independent determination of the law without any deference to the district court. Custodia will likely argue that the Tenth Circuit should reverse the district court’s decision for at least the following reasons:

Importantly, the FRBKC does not appear to have argued to the district court that its interpretation of the law was entitled to Chevron or Skidmore deference.11 It is not clear whether FRBKC could raise that issue on appeal or, if it did, whether it could succeed assuming it continues to take the position that it is not a federal agency.

Implications of these rulings for Tier 3 banks and the dual banking system

Assuming the two decisions are not appealed or are affirmed on appeal, they would have several important implications for the future ability of state-chartered depository institutions with novel charters to obtain master accounts, as well as for the future of the dual banking system more generally.

Whether Federal Reserve Banks are agencies of the federal government

The Idaho magistrate ruled in the PayServices case that even if PayServicers was entitled to a master account as a matter of law, the court did not have the authority to compel the FRBSF to open a master account for PayServices under the APA or through a writ of mandamus because the FRBSF is not an agency of the U.S. government. This part of the decision reflects a growing split among federal courts over whether the Federal Reserve Banks are agencies of the federal government.

APA

The APA allows courts to review “agency actions” and defines “agency” to mean an “authority of the Government of the United States.” While accepting that Federal Reserve Banks are instrumentalities of the federal government, the Idaho magistrate ruled that Federal Reserve Banks are “more accurately described as private corporations, owned by their member commercial banks.” The judge reasoned that:

Despite the Idaho magistrate’s ruling, the law on this issue remains unsettled. In a November 2022 order, the Wyoming District Court held that Custodia could plausibly claim that the FRBKC was an agency subject to the APA. The court stated that the record had not been sufficiently developed for it to determine whether the FRBKC is an agency. The court also noted that “federal district courts are divided on the matter,” pointing to decisions by the U.S. District Courts for the District of Maryland and the Northern District of Georgia that held that Federal Reserve Banks are agencies subject to the APA.14 The Wyoming District Court ultimately did not rule on this issue because Custodia amended its APA claim to focus only on the Federal Reserve Board’s actions and not those of the FRBKC.

Writ of mandamus

The Idaho magistrate also ruled that Federal Reserve Banks cannot be compelled to open master accounts by a writ of mandamus, reasoning that 28 U.S.C. § 1361 grants district courts the right to compel action only by “an officer or employee of the United States or any agency thereof” and that Federal Reserve Banks are not agencies of the federal government. The magistrate did not separately analyze whether Federal Reserve Banks are agencies for purposes of 28 U.S.C. § 1361; instead, the magistrate relied on its same analysis concluding Federal Reserve Banks are not agencies for purposes of the APA.

The FRBKC in the Custodia litigation did not contest this issue even though Custodia had asked the court to issue a writ of mandamus compelling the FRBKC to grant Custodia a master account. Moreover, in its November 2022 order, the Wyoming District Court found that “Custodia’s claim for mandamus relief plausibly functions as an alternative claim to its APA claim … if the Court ultimately determines [the FRBKC] is not an agency for APA purposes.” As a result, the Wyoming District Court appeared to conclude that an entity can be compelled by a writ of mandamus even if it is not an agency for purposes of the APA.

As a result, it remains an open question whether a court has the authority to compel action by a Federal Reserve Bank through a writ of mandamus even if the court holds that the Federal Reserve Bank is not an agency for purposes of the APA. Moreover, even if a court determines that a Federal Reserve Bank is not an agency for purposes of 28 U.S.C. § 1361, it could still hold that the president of a Federal Reserve Bank is an officer of the United States—as Custodia and PayServices had claimed—and compel the president to grant a master account.

ENDNOTES

1 See, e.g., FRBKC, Letter to Caitlin Long, CEO, Custodia Bank (Jan. 27, 2023) (characterizing the Wyoming SPDI charter as novel).

2 See, e.g., FRBNY, Letter to James McAndrews, Chairman and CEO, TNB USA Inc. (Dec. 13, 2023) (characterizing TNB USA Inc. as a novel type of financial intermediary).

3 Exhibit CM to Plaintiff’s Omnibus Brief in Support of Its Petition for Review on its APA Claim and Its Motion for Judgment on Its Statutory Mandamus Claim, Custodia Bank, Inc. v. Fed. Reserve Bd. of Governors, Fed. Reserve Bank of Kansas City (D. Wyo. December 22, 2023) (Case 1:22-cv-00125-SWS).

4 David Zaring’s Amicus Brief in Support of Defendants, Custodia Bank, Inc. v. Fed. Reserve Bd. of Governors, Fed. Reserve Bank of Kansas City (D. Wyo. February 15, 2024) (Case 1:22-cv-00125-SWS).

5 Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts, at 221 (2012).

6 Id. at 174-176.

7 Id. at 101-106.

8 25 U.S. (12 Wheat.) 273 (1827).

9 523 U.S. 75, 79-80 (1998) (Scalia, J., writing the Opinion of the Court).

10 573 U.S. 351 (2014).

11 Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984); Skidmore v. Swift & Co., 323 U.S. 134 (1944).

12 Act of July 13, 1886, ch. 173, 14 Stat. 98, 146.

13 See National Rifle Association v. Vullo, 49 F. 4th 700 (2022), cert. granted, Nov. 23, 2023.

14 Lee Const. Co. v. Fed. Rsrv. Bank of Richmond, 558 F. Supp. 165, 179 (D. Md. 1982); Flight Int’l Grp, Inc. v. Fed. Rsrv. Bank of Chicago, 583 F. Supp. 674, 678 (N.D. Ga.), vacated sub nom. Flight Int’l Inc. v. Fed. Rsrv. Bank of Chicago, 597 F. Supp. 462 (N.D. Ga. 1984).

This post comes to us from Davis, Polk & Wardwell LLP. It is based on the firm’s memorandum, “District courts refuse to order Federal Reserve to grant master accounts to Custodia and PayServices,” dated April 10, 2024, and available here. 

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