Ramon Cierco, et al v. Jacob Lew, et al

Filing

OPINION [1676293] filed (Pages: 20) for the Court by Judge Edwards. [16-5185]

USCA Case #16-5185

Document #1676293

Filed: 05/23/2017

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 13, 2017

Decided May 23, 2017
No. 16-5185

RAMON CIERCO, IN HIS PERSONAL CAPACITY AND
DERIVATIVELY ON BEHALF OF HIMSELF AND ALL OTHERS
SIMILARLY SITUATED, ET AL.,
APPELLANTS

v.
STEVEN T. MNUCHIN, IN HIS OFFICIAL CAPACITY AS
SECRETARY OF THE TREASURY, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:15-cv-01641)

Eric L. Lewis argued the cause for appellants. With him on
the brief was A. Katherine Toomey.
Sarah Carroll, Attorney, U.S. Department of Justice,
argued the cause for appellees. With her on the brief were
Benjamin C. Mizer, Principal Deputy Assistant Attorney
General at the time the brief was filed, and H. Thomas Byron,
III, Attorney.
Before: ROGERS and SRINIVASAN, Circuit Judges, and
EDWARDS, Senior Circuit Judge.

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Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
EDWARDS, Senior Circuit Judge: In 2015, the Department
of Treasury’s Financial Crimes Enforcement Network
(“FinCEN”) suspected that Banca Privada d’Andorra S.A.
(“the Bank”) was being used to launder money. Pursuant to
Section 311 of the USA PATRIOT Act, FinCEN issued a
Notice of Finding and a Notice of Proposed Rulemaking (the
“Notices”) proposing to cut off the Bank’s ties to the United
States’ financial system. Without completing the rulemaking
process that these Notices contemplated, FinCEN effectively
achieved its goals when the Andorran Government seized the
assets of the Bank and began a process to sell off those assets.
After the Andorran Government took control of the Bank,
Appellants – the majority shareholders of the Bank – filed suit
in the District Court, claiming that FinCEN violated the
Administrative Procedure Act (“APA”) in issuing the Notices.
Appellants’ complaint sought two principal remedies: (1) an
order requiring FinCEN to withdraw the Notices, and (2) a
declaration that the Notices were unlawfully issued. While the
case was pending before the District Court, FinCEN, satisfied
that the Bank no longer posed a money laundering concern,
withdrew both Notices. The District Court then granted
FinCEN’s motion to dismiss on the grounds that the case was
moot. Appellants filed an appeal from that judgment.
Subsequent to the District Court’s decision, the Andorran
Government finalized the sale of the Bank’s assets to a private
investment firm.
We agree with the District Court that this case should be
dismissed, but for different reasons. When FinCEN withdrew
the Notices, Appellants received full relief on their first claim.
Therefore, we agree that Appellants’ first claim for relief is

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moot. Appellants’ second claim for relief – a declaration that
the Notices were unlawful – is not moot, but they no longer
have standing to press this claim.
When Appellants first filed their law suit, they had standing
to challenge the legality of the Notices. However, once their
claim for the withdrawal of the Notices became moot,
Appellants had the burden to show that they still had standing
to seek a declaratory order that the Notices were unlawful.
They have not met this burden. Even assuming that Appellants
have the requisite injury and causation to support standing, they
have not shown that a judicial order will effectively redress
their alleged injuries. We therefore dismiss the case because
Appellants’ first claim is moot and they lack standing to pursue
their second claim.
I.

BACKGROUND

A. Statutory Framework
Section 311 of the USA PATRIOT Act (“the Act”)
authorizes the Secretary of the Treasury, upon a finding that a
foreign financial institution is “of primary money laundering
concern,” to impose “special measures” upon any domestic
financial institution that does business with the foreign
institution. 31 U.S.C. § 5318A(b). The Secretary has delegated
his authority under Section 311 to FinCEN, a bureau of the
Department of Treasury. 31 C.F.R. § 1010.810(a). The Act
provides, inter alia, that:
In making a finding that reasonable grounds exist for
concluding that a jurisdiction outside of the United
States [or] 1 or more financial institutions operating
outside of the United States . . . is of primary money
laundering concern so as to authorize the Secretary of
the Treasury to take 1 or more of the special measures

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described in subsection (b), the Secretary shall consult
with the Secretary of State and the Attorney General.
31 U.S.C. § 5318A(c)(1). The Act also states that “the
Secretary shall consider [additional] information [determined]
to be relevant,” including a number of “Jurisdictional” and
“Institutional” factors listed in the statute. Id.
§ 5318A(c)(2)(A), (B).
If FinCEN determines that a foreign institution is of
primary money laundering concern, Section 311 authorizes
FinCEN to take one or more of five special measures. Four of
these special measures – including recordkeeping and
information disclosure requirements – may be imposed by
FinCEN “by regulation, order, or otherwise as permitted by
law.” Id. § 5318A(a)(2)(B). The fifth, and most severe,
measure that FinCEN may take against a foreign institution is
to prohibit the “opening or maintaining in the United States of
a correspondent account or payable-through account by any
domestic financial institution . . . for or on behalf of [that]
foreign banking institution.” Id. § 5318A(b)(5). “[I]mposing
this measure has the effect of eliminating or curtailing a foreign
banking institution’s access to the U.S. financial system and to
transactions involving the U.S. dollar.” FBME Bank Ltd. v.
Lew, 125 F. Supp. 3d 109, 115 (D.D.C. 2015). As such, the fifth
special measure “can be a ‘death sentence’ for smaller foreign
banks who depend on access to U.S. dollar clearing through
correspondent accounts.” STEVEN MARK LEVY, FEDERAL
MONEY LAUNDERING REGULATION: BANKING, CORPORATE
AND SECURITIES COMPLIANCE § 30.03(E) (2d ed. Supp. 2017).
Unlike the other four special measures, the fifth measure
may only be imposed “by regulation.” 31 U.S.C.
§ 5318A(a)(2)(C). The APA requires FinCEN to publish a
“notice of proposed rule making . . . in the Federal Register,”

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allowing interested parties an opportunity to comment. 5
U.S.C. § 553(b)–(c). FinCEN must then publish a final rule to
give effect to the special measure. See, e.g., 31 C.F.R.
§ 1010.659 (imposing the fifth special measure against North
Korean financial institutions).
In practice, however, FinCEN often achieves the intended
effects of the fifth special measure before it completes the
rulemaking process. The Government Accountability Office
has explained that,
once a proposed rule is issued, almost all U.S. financial
institutions immediately implement it voluntarily,
stopping financial transactions with designated
financial institutions or jurisdictions. . . . U.S. banks
often treat proposed Section 311 rules as final and
generally cut off all financial interactions with the
targeted institution. . . . U.S. banks may be taking this
action because the proposed rule is associated with a
finding of primary money laundering concern and, in
many instances, Treasury issued a finding together
with a notice of proposed rule-making. Because it
makes good business sense to protect banks from risks
to their reputation and possible government penalties,
banks may discontinue business with other banks
labeled a primary money laundering concern to reduce
their reputational risk.
U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-08-1058, USA
PATRIOT ACT: BETTER INTERAGENCY COORDINATION AND
IMPLEMENTING GUIDANCE FOR SECTION 311 COULD IMPROVE
U.S. ANTI-MONEY LAUNDERING EFFORTS 21 (2008), Joint
Appendix (“JA”) 236. A notice proposing to impose the fifth
special measure often has effects overseas, as well, as
illustrated by the fact that “several foreign governments have

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strengthened their laws and regulations in response to proposed
rules.” Id. at 22, JA 237.
When FinCEN is able to achieve the objective of imposing
the fifth special measure without completing rulemaking, the
agency typically withdraws the notice of proposed rulemaking.
See, e.g., Withdrawal of the Proposed Rulemaking Against
Lebanese Canadian Bank SAL, 80 Fed. Reg. 60,575 (Oct. 7,
2015).
B. Procedural History
Appellants Ramon and Higini Cierco were the majority
shareholders in Banca Privada d’Andorra S.A., a private bank
in the country of Andorra that held less than two billion euro in
assets in 2015. See Cierco v. Lew, 190 F. Supp. 3d 16, 18
(D.D.C. 2016) (describing the ownership structure of the
Bank); Notice of Finding That Banca Privada d’Andorra Is a
Financial Institution of Primary Money Laundering Concern,
80 Fed. Reg. 13,464, 13,464 (Mar. 6, 2015) (“Notice of
Finding”) (reporting that the Bank held “1.79 billion euro in
assets”).
In March 2015, FinCEN issued its Notice of Finding
alleging that the Bank had “facilitated financial transactions on
behalf of Third-Party Money Launderers . . . providing services
for individuals and organizations involved in organized crime,
corruption, smuggling, and fraud.” Notice of Finding, 80 Fed.
Reg. at 13,464. FinCEN claimed that the Bank “fail[ed] to
conduct adequate due diligence on customer accounts” and
provided “high-risk services to shell companies” – features that
made the Bank “highly attractive and well known to [ThirdParty Money Launderers].” Id. at 13,465.

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The same day that FinCEN published the Notice of
Finding, it also published a Notice of Proposed Rulemaking to
impose the fifth special measure. Imposition of Special
Measure Against Banca Privada d’Andorra as a Financial
Institution of Primary Money Laundering Concern (“NPRM”),
80 Fed. Reg. 13,304 (Mar. 13, 2015). The NPRM stated that
the fifth special measure was necessary to address the primary
money laundering concern and that it would not impose “an
undue regulatory burden” because “only four U.S. covered
financial institutions maintain an account for [the Bank].” Id.
at 13,305.
One day after FinCEN announced that it was preparing to
take action against the Bank, the Andorran Government
declared that it would seize control of the Bank. See Press
Release, Institut Nacional Andorrá de Finances (Mar. 11,
2015), JA 286. In April 2015, the Andorran Government
appointed a new administrator for the Bank. See Press Release,
Agency for the Restructuring of Financial Entities (“AREB”),
AREB Assumes the Tutelage of BPA (Apr. 27, 2015), JA 288.
Then, a few months later, the Andorran Government created a
new bank (“Vall Banc”), to which it transferred the lawful
assets of Banca Privada d’Andorra, in preparation to sell off
those assets. See Press Release, AREB, The Board of the
AREB Creates the New Bank Named Vall Banc (July 22,
2015), JA 290. The Andorran Government stated that Vall
Banc would be a “bridge institution.” Press Release, AREB,
The AREB Will Create a “Good Bank” With Legitimate Assets
and Liabilities Segregated From BPA (June 15, 2015), JA 294.
This meant that, as it operated Vall Banc, the Government
would “strict[ly] review” the assets of Banca Privada
d’Andorra to determine which assets were lawful and which
were tainted by money laundering. See id.

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On October 7, 2015, after the Government of Andorra had
transferred the Bank’s assets to Vall Banc and while it was
reviewing those assets in preparation for sale, Appellants filed
suit in the District Court. They claimed that FinCEN’s issuance
of the Notices was arbitrary and capricious, in violation of the
APA, because FinCEN did not consider relevant evidence,
relied on inaccurate evidence, and imposed a disproportionate
penalty. See Complaint at 35–38, Cierco v. Lew, No. 15-cv1641 (D.D.C. Oct. 7, 2015), ECF No. 1, JA 45–48. Appellants
also claimed that FinCEN violated their Due Process rights and
exceeded the scope of its delegated authority. See id. at 38–42,
JA 48–52. Finally, although Appellants’ complaint sought a
number of remedies, their two principal claims for relief were:
(1) an order requiring FinCEN to withdraw the Notices, and (2)
a declaration that the Notices were unlawfully issued. Id. at 43,
JA 53. These two claims for relief frame the issues that are
before the court on this appeal.
On January 25, 2016, FinCEN filed a motion to dismiss,
claiming, inter alia, that Appellants lacked standing because
the Andorran Government’s seizure of the Bank’s assets could
not be redressed by the District Court. See Memorandum in
Support of the Motion to Dismiss 9–12, Cierco v. Lew, No. 15cv-1641 (D.D.C. Jan. 25, 2016), ECF No. 29-1.
On March 4, 2016, FinCEN announced that it was
withdrawing both its Notice of Finding and Notice of Proposed
Rulemaking, citing “[s]ignificant developments” ensuring that
the Bank “is no longer operating as a financial institution that
poses a money laundering threat to the U.S. financial system.”
Withdrawal of Notice of Proposed Rulemaking Regarding
Banca Privada d’Andorra, 81 Fed. Reg. 11,496, 11,497 (Mar.
4, 2016) (“Notice of Withdrawal”); see also Withdrawal of
Finding Regarding Banca Privada d’Andorra, 81 Fed. Reg.
11,648 (Mar. 4, 2016) (withdrawal of Notice of Finding).

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Those developments included the Andorran Government’s
“control of [the Bank],” “the creation of the bridge bank,” and
the planned sale of that bank. Notice of Withdrawal, 81 Fed.
Reg. at 11,497. FinCEN filed a notice of this withdrawal with
the District Court on February 19, 2016, arguing that the case
“should also be dismissed as moot.” Cierco, 190 F. Supp. 3d at
21. The District Court ordered supplemental briefing on the
question of mootness. Id. at 22.
While the parties were filing their supplemental briefs, the
Andorran Government selected J.C. Flowers & Company, a
United States-based investment firm, as the acquirer of Vall
Banc. See Br. for Appellees at 14; see also Press Release,
AREB, AREB Selects US Investment Firm J.C. Flowers & Co.
as
Buyer
of
Vall
Banc
(Apr.
21,
2016),
http://areb.ad/images/areb/comunicats/21042016_AREB_EN
G.pdf.
Then, on May 18, 2016, the District Court granted
FinCEN’s supplemental motion to dismiss. Cierco, 190 F.
Supp. 3d 16. The District Court found that the case was moot,
and that neither the doctrine of “voluntary cessation” nor the
doctrine of “capable-of-repetition-yet-evading review” barred
such a finding. Id. at 23–28. On July 14, 2016, after the
issuance of the District Court’s decision, the Andorran
Government finalized the sale of Vall Banc to J.C. Flowers.
Press Release, AREB, AREB Transfers Vall Banc to US
Investment Firm J.C. Flowers & Co. (July 14, 2016),
http://areb.ad/images/areb/comunicats/14072016_AREB_EN
G.pdf). Appellants now appeal the District Court’s decision.

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II.

ANALYSIS

A. Standard of Review
We review de novo the District Court’s grant of FinCEN’s
motion to dismiss. See Citizens for Responsibility & Ethics in
Wash. v. Office of Admin., 566 F.3d 219, 221 (D.C. Cir. 2009).
B. Summary of the Analysis
We agree with the District Court’s ultimate decision to
dismiss this case. However, we do not agree that the disposition
of Appellants’ claims can rest solely on mootness.
The case is undoubtedly moot with respect to Appellants’
first claim for relief – a request that FinCEN withdraw the
Notices. At oral argument, Appellants’ agreed that their request
for relief on their first claim has been fully satisfied. Oral Arg.
at 7:15-7:45, 14:00-14:15. Therefore, there is no live dispute
left on this claim.
Appellants’ second claim for relief – a request for a
declaration that the Notices were unlawful – is not moot,
however. Nonetheless, as we explain below, Appellants no
longer have standing to pursue this claim.
C. Appellants’ First Claim for Relief is Moot
As noted above, Appellants have conceded that they
received all of the relief that they requested on the first claim
for relief in their complaint. FinCEN “rescind[ed] the [Notice
of Finding] and set[] aside the [Notice of Proposed
Rulemaking].” Complaint at 43, JA 53. These actions by
FinCEN completely vitiated the Notices.

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“Because the exercise of judicial power under Article III
depends upon the existence of a case or controversy, a federal
court may not render advisory opinions or decide questions that
do not affect the rights of parties properly before it.” EDWARDS,
ELLIOTT, & LEVY, FEDERAL STANDARDS OF REVIEW 134 (2d
ed. 2013) (citing North Carolina v. Rice, 404 U.S. 244, 246
(1971) (per curiam)). If a case is moot, the court must dismiss
it for lack of jurisdiction.
There are two principal exceptions to mootness.
The first pertains to situations in which “the challenged
action was in its duration too short to be fully litigated
prior to its cessation or expiration,” yet there is a
“demonstrated probability that the same controversy
will recur involving the same complaining party.”
Murphy v. Hunt, 455 U.S. 478, 482 (1982) (per
curiam).
....
The second principal exception involves a party’s
“voluntary cessation” of the challenged activity. As a
general rule, a defendant’s “voluntary cessation of
allegedly illegal conduct does not deprive [a court] of
power to hear and determine the case.” Cty. of Los
Angeles v. Davis, 440 U.S. 625, 631 (1979). Voluntary
cessation will only moot a case if “there is no
reasonable expectation . . . that the alleged violation
will recur” and “interim relief or events have
completely and irrevocably eradicated the effects of
the alleged violation.” Id. The defendant carries the
burden of demonstrating “that there is no reasonable
expectation that the wrong will be repeated,” and “[t]he
burden is a heavy one.” United States v. W. T. Grant
Co., 345 U.S. 629, 633 (1953).

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Id. at 135. Neither exception applies here.
The capable of repetition, yet evading review exception to
mootness applies only “where (1) the challenged action is in its
duration too short to be fully litigated prior to cessation or
expiration, and (2) there is a reasonable expectation that the
same complaining party will be subject to the same action
again.” Davis v. FEC, 554 U.S. 724, 735 (2008) (citation and
internal quotation marks omitted). Appellants make no claim
that these conditions exist here.
The voluntary cessation exception also does not apply
here. The Government has assured the court that the disputed
Notices have been completely withdrawn. Br. for Appellees at
18, 28. Appellants do not contest this. Indeed, Appellants have
never even suggested that there is any likelihood that FinCEN
will reissue the withdrawn Notices. See Cierco, 190 F. Supp.
3d at 24 (recognizing “Plaintiffs’ own failure to argue that the
government will impose the fifth special measure on [the Bank]
in the future”). Nor could they plausibly advance such a claim.
After the Bank was seized by the Andorran Government and
its assets were transferred to Vall Banc, FinCEN concluded that
the Bank “is no longer operating as a financial institution that
poses a money laundering threat to the U.S. financial system.”
Notice of Withdrawal, 81 Fed. Reg. at 11,497. Given these
circumstances, and the subsequent finalization of the sale of
Vall Banc to J.C. Flowers, Appellants cannot now show that
they are likely to suffer the same injury in the future.
Therefore, on the record before us, it is quite clear that
Appellants’ first claim – that the Notices be withdrawn – is
moot.

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D. The Framework for Analyzing Appellants’ Standing
As the Court explained in Lujan v. Defenders of Wildlife,
the irreducible constitutional minimum of standing
contains three elements. First, the plaintiff must have
suffered an injury in fact—an invasion of a legally
protected interest which is (a) concrete and
particularized, and (b) actual or imminent, not
conjectural or hypothetical. Second, there must be a
causal connection between the injury and the conduct
complained of—the injury has to be fairly . . . traceable
to the challenged action of the defendant, and not . . .
the result of the independent action of some third party
not before the court. Third, it must be likely, as
opposed to merely speculative, that the injury will be
redressed by a favorable decision.
504 U.S. 555, 560–61 (1992) (citations, internal quotation
marks, and brackets omitted).
“Standing can be raised at any point in a case proceeding
and, as a jurisdictional matter, may be raised, sua sponte, by
the court.” Steffan v. Perry, 41 F.3d 677, 697 n.20 (D.C. Cir.
1994) (en banc). Indeed, we have a “special obligation to
‘satisfy [ourselves] . . . of [our] own jurisdiction.’” Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 95 (1998) (quoting
Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541
(1986)). Where a party’s “Article III standing is unclear,” we
“must resolve the doubt, sua sponte if need be.” Lee’s Summit
v. Surface Transp. Bd., 231 F.3d 39, 41 (D.C. Cir. 2000)
(emphasis added).
“[A] plaintiff must demonstrate standing separately for
each form of relief sought.” Friends of the Earth, Inc. v.

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Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185 (2000)
(citing City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983)).
As explained above, Appellants requested two principal forms
of relief in their complaint. Their first claim – that the Notices
be withdrawn – is moot. So the matter of standing with respect
to this claim is of no moment. Appellants’ second claim – their
request for a declaration that the Notices were illegal – is not
moot. Given these circumstances, we must consider whether
Appellants still have standing to raise it. The Court’s decision
in Lyons establishes the framework for our analysis.
In Lyons, the plaintiff sought damages, an injunction, and
declaratory relief after police officers injured him in a
chokehold. 461 U.S. at 97–98. During the course of the
litigation, the Los Angeles Police Department implemented a
six-month moratorium on the use of chokeholds, and Los
Angeles then suggested that the case may be moot. Id. at 100–
01. The Court acknowledged that, although the plaintiff “still
ha[d] a claim for damages against [Los Angeles] that
appear[ed] to meet all Art. III requirements,” he no longer had
standing to pursue his request for injunctive relief because of
the “speculative nature of his claim that he will again
experience injury.” Id. at 109. “[T]he issue here is not whether
[the damages] claim has become moot but whether Lyons
meets the preconditions for asserting an injunctive claim in a
federal forum.” Id.
Lyons points the way to understanding that when one of a
plaintiff’s requests for relief is no longer live – either because
that relief is granted, the parties have settled, or the claim has
otherwise become moot – a natural issue that arises is whether
the plaintiff has standing to pursue related, remaining requests
for relief. Lyons followed the approach taken by the Court in
DeFunis v. Odegaard, 416 U.S. 312 (1974), and Super Tire
Engineering Co. v. McCorkle, 416 U.S. 115 (1974), and the

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principles that evolved have been followed by the courts ever
since.
The Court’s decision in Summers v. Earth Island Institute,
555 U.S. 488 (2009), is another good example. Plaintiffs in that
case filed suit against the United States Forest Service for
failing to apply notice-and-comment procedures when it
approved the “Burnt Ridge Project.” Id. at 491. Plaintiffs also
challenged the underlying Forest Service regulations. Id.
During the course of litigation, the parties “settled their
dispute” regarding the Burnt Ridge Project specifically, but
plaintiffs continued to press their challenge to the underlying
regulations. Id. at 491–92. The Court, citing Lyons, found that
plaintiffs lacked standing to bring their remaining requested
relief:
We know of no precedent for the proposition that when
a plaintiff has sued to challenge the lawfulness of
certain action or threatened action but has settled that
suit, he retains standing to challenge the basis for that
action (here, the regulation in the abstract), apart from
any concrete application that threatens imminent harm
to his interests.
Id. at 494. After holding that plaintiffs’ first request for relief
was moot, the Court analyzed plaintiffs’ standing to continue
litigating their remaining request. As suggested in Lyons, the
central framework was clear: when plaintiffs settled one of
their requests for relief, the natural question became whether
they had standing to press for the additional remedies that had
been sought in the complaint.
Our own case law is perfectly consistent with this line of
cases. See, e.g., Maydak v. United States, 630 F.3d 166 (D.C.
Cir. 2010) (holding that prisoners lacked standing to continue

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challenging an Inmate Trust Fund after they were released from
custody); Better Gov’t Ass’n v. Dep’t of State, 780 F.2d 86
(D.C. Cir. 1986) (holding that plaintiffs had standing to
continue pressing their facial challenge to government
guidelines even after being awarded a fee waiver in connection
with their request under the Freedom of Information Act
because they were frequent FOIA requesters who would be
affected by the guidelines in the future and the challenge was
ripe for judicial review).
As the Court made clear in Summers, when a plaintiff has
sued to challenge the lawfulness of certain action or threatened
action but that portion of the action is rendered moot, the
plaintiff does not retain standing to challenge the regulation
that was the basis for that action apart from any concrete
application that threatens imminent harm to his interests. 555
U.S. at 494. We must now determine whether Appellants still
have standing to seek a declaration that the disputed Notices
were unlawful even though the Notices have been withdrawn.
E. Appellants Lack Standing to Pursue Their Second Claim
for Relief
Appellants’ second claim for relief seeks a “decision
holding that the [Notices] were issued unlawfully.” Br. of
Appellants at 21. Even if we assume that Appellants have
cognizable injuries and can show causation to support standing,
they have not demonstrated that it is “likely, as opposed to
merely speculative, that the[ir] injur[ies] will be redressed by a
favorable decision” from this court. Lujan, 504 U.S. at 561
(citation and internal quotation marks omitted).
In assessing Appellants’ standing, although we “accept
the[ir] well-pleaded factual allegations as true and draw all
reasonable inferences from those allegations in [their] favor,”

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we do not “accept inferences that are unsupported by the facts
set out in the complaint.” Arpaio v. Obama, 797 F.3d 11, 19
(D.C. Cir. 2015) (internal quotation marks omitted) (quoting
Islamic Am. Relief Agency v. Gonzales, 477 F.3d 728, 732
(D.C. Cir. 2007)). We hold that Appellants lack standing
because the redress that they seek is far too speculative to
support their invocation of federal court jurisdiction.
In their brief to this court, Appellants attempt to explain
how a decision from this court holding that the two Notices
were unlawful would redress their injuries:
[T]here is a substantial likelihood that a decision
finding that FinCEN improperly labeled [the Bank] as
of “primary money laundering concern” would
materially impact the position of Andorran authorities
as to the proper course to be followed with respect to
the sale of [the Bank’s] assets, what should be done
with the corporate structure and any assets that remain,
and how the Ciercos, as [the Bank’s] owners, should
now be treated in the process.
Br. of Appellants at 30. This explanation suffers from both
factual and legal infirmities.
First, with regard to the assets transferred to the bridge
bank, the window of time to “impact the position of Andorran
authorities” has closed. On July 14, 2016, after having
transferred the Bank’s assets to the Government-run bridge
institution, the Andorran Government finalized the sale of the
assets. Press Release, AREB, AREB Transfers Vall Banc to US
Investment Firm J.C. Flowers & Co. (July 14, 2016),
http://areb.ad/images/areb/comunicats/14072016_AREB_EN
G.pdf). Appellants do not dispute the facts proffered by
Appellees to show that the Bank’s assets had been seized and

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sold. See Br. for Appellees at 10–12. The record thus indicates
that the Bank’s assets have been out of the hands of the
Andorran Government for nearly a year now, and Appellants
fail to offer any path of events by which the Andorran
Government could or would unwind the sale.
Second, Appellants may be correct that FinCEN’s Notices
“indisputably prompted Andorra’s actions against [the Bank].”
Br. of Appellants at 31. Even were that the case, however, it is
far from clear that a declaration that FinCEN violated the APA
in promulgating the Notices would cause Andorra to reverse
course. Appellants offer only conjecture, but no evidence,
suggesting that the Andorran Government would be influenced
by such a declaration to undo the sale of Vall Banc to J.C.
Flowers or to return any assets still held by the Government.
Appellants are effectively asking this court to “accept
inferences that are unsupported by the facts set out in the
complaint.” Arpaio, 797 F.3d at 19 (citation and internal
quotation marks omitted). Appellants have offered no evidence
that the Andorran Government would reverse course as a result
of the withdrawal of FinCEN’s Notices. And they have not
shown that the sale actually could be undone even if the
Andorran Government were so inclined.
Third, Appellants contend that, in rejecting their claim, the
District Court erred in “consider[ing] facts beyond the
pleadings.” Br. for Appellants at 34. Appellants appear to be
referring to the information about political developments in
Andorra that took place after Appellants filed their complaint.
In any event, their contention is misguided. We have made it
clear that, “[i]n determining standing, we may consider
materials outside of the complaint.” Food & Water Watch, Inc.
v. Vilsack, 808 F.3d 905, 913 (D.C. Cir. 2015). Indeed,
Appellants apparently understand this because, during oral
argument before this court, they asserted that the Andorran

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Government still holds “1.5 billion euros” of the Bank’s assets.
Oral Arg. at 16:50-17:10. But the assertion was not supported
by any evidence.
Finally, and most importantly, even as we view all of the
relevant facts in the light most favorable to Appellants, we find
that their arguments in support of redressability are much too
speculative to support standing. We are particularly disinclined
“to endorse standing theories that rest on speculation about the
decisions of independent actors.” Clapper v. Amnesty Int’l
USA, 133 S. Ct. 1138, 1150 (2013). It is well understood that
standing is “substantially more difficult to establish” when it
“depends on the unfettered choices made by independent actors
not before the courts and whose exercise of broad and
legitimate discretion the courts cannot presume either to
control or to predict.” Lujan, 504 U.S. at 562 (quoting Allen v.
Wright, 468 U.S. 737, 758 (1984); ASARCO Inc. v. Kadish, 490
U.S. 605, 615 (1989) (opinion of Kennedy, J.)). In such cases,
the plaintiff must offer “substantial evidence of a causal
relationship between the government policy and the third-party
conduct, leaving little doubt as to causation and the likelihood
of redress.” Renal Physicians Ass’n v. U.S. Dep’t of Health &
Human Servs., 489 F.3d 1267, 1275 (D.C. Cir. 2007) (citation
and internal quotation marks omitted). Appellants have offered
no such evidence.
We have been particularly reluctant to find standing where
the third party upon whose conduct redressability depends is a
foreign sovereign. See, e.g., Dellums v. U.S. Nuclear
Regulatory Comm’n, 863 F.2d 968, 976 (D.C. Cir. 1988)
(noting that “[o]ur own decisions . . . have declined to
recognize standing when the effectiveness of the relief
requested depends on the unforeseeable actions of a foreign
nation”); Cardenas v. Smith, 733 F.2d 909, 914 (D.C. Cir.
1984) (holding that plaintiff lacked standing because “the relief

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in the present case could be obtained only through the consent
of the Swiss government”).
As Appellants would have it, a judicial declaration that the
Notices issued by FinCEN were unlawful would encourage the
Andorran Government to unwind the seizure of the Bank’s
assets and the subsequent sale of those assets to J.C. Flowers
and to return any assets still held by the Government. Their
claim thus “depends on the unforeseeable actions” of the
Andorran Government, which is not enough to support
redressability. Dellums, 863 F.2d at 976. Appellants offer no
evidence that the Andorran Government would respond as they
suggest. “When redress depends on the cooperation of a third
party, it becomes the burden of the [appellant] to adduce facts
showing that those choices have been or will be made in such
manner as to produce causation and permit redressability of
injury.” US Ecology, Inc. v. U.S. Dep’t of Interior, 231 F.3d 20,
24–25 (D.C. Cir. 2000) (citation and internal quotation marks
omitted). Appellants have not met this burden.
III.

CONCLUSION

For the reasons stated in this opinion, we affirm the
judgment of the District Court dismissing Appellants’
complaint. We have no jurisdiction to hear their claims.

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