On July 15, 2026, former Federal Deposit Insurance Corporation (FDIC) Chairman Martin J. Gruenberg and former Consumer Financial Protection Bureau Director and FDIC Board Member Richard Cordray filed an amicus brief supporting Colorado in the en banc proceedings before the U.S. Court of Appeals for the Tenth Circuit in National Association of Industrial Bankers v. Weiser. Their brief principally addresses four of the six questions posed by the en banc court and urges adoption of the vacated panel majority’s interpretation of Section 525 of the Depository Institutions Deregulation and Monetary Control Act of 1980 (DIDMCA), which is that a loan is made both in the bank’s state and the borrower’s state.
Unlike several of the other amicus briefs filed in support of Colorado, Gruenberg and Cordray devote substantial attention to what they characterize as an unexplained reversal in the FDIC’s litigation position. According to the brief, the FDIC’s current interpretation of Section 525, advanced in its recently filed amicus brief supporting the plaintiffs, represents a departure from the agency’s prior interpretations and is inconsistent with the statute’s text, structure, purpose, and legislative history.
The Brief Focuses on Four Questions Posed by the En Banc Court
The amici organize their analysis around four principal themes.
First, they contend that the phrase “loans made in such State” cannot reasonably be interpreted to mean only loans made by a bank located in that state. They argue that a loan is, by definition, a contract between a lender and a borrower and that both parties are indispensable participants in creating the loan. Because both lender and borrower are necessary to the transaction, they argue that the borrower cannot simply be ignored when determining where a loan is “made.”
Second, the brief argues that the structure of DIDMCA demonstrates that Congress intentionally used different terminology in Sections 521 and 525. Section 521 refers to the state where “the bank is located,” while Section 525 refers to “loans made in such State.” According to the amici, ordinary principles of statutory construction require courts to give effect to those different terms rather than treating them as synonymous.
Third, the amici contend that even if one assumes that a bank “makes” the loan, it does not follow that the loan is made only where the bank is located. Relying on decisions involving interstate commerce and online lending, including the Tenth Circuit’s decision in Quik Payday, Inc. v. Stork, they argue that interstate lending transactions occur both where the lender operates and where the borrower enters into the transaction.
Finally, the brief argues that the purpose and legislative history of Section 525 confirm that Congress intended to preserve a meaningful role for states choosing to opt out of DIDMCA’s interest-rate exportation regime. According to the amici, interpreting Section 525 as applying only to banks physically located in an opt-out state would substantially diminish the practical significance of the opt-out provision.
Former FDIC Officials Criticize the Agency’s Current Litigation Position
Perhaps the most noteworthy aspect of the brief is its criticism of the FDIC’s current litigation position.
Gruenberg and Cordray argue that the FDIC’s present interpretation of Section 525 is inconsistent with the agency’s earlier interpretations, including a 1988 advisory opinion and statements contained in the preamble to the FDIC’s 2020 valid-when-made rule. They assert that those earlier interpretations recognized a distinction between the state where a bank is located under Section 521 and the state where a loan is made under Section 525.
The brief further contends that the FDIC has offered no persuasive explanation for changing its position and characterizes the agency’s current arguments as an attempt to read language into Section 525 that Congress did not enact.
Reliance on the Presumption Against Preemption
The amici also argue that, even if Section 525 were considered ambiguous, the court should resolve that ambiguity in favor of preserving state authority.
Relying on Supreme Court decisions recognizing the traditional state role in regulating banking and consumer protection, including Altria Group, Inc. v. Good and Wyeth v. Levine, they contend that the presumption against federal preemption reinforces the panel majority’s interpretation because Congress expressly preserved the ability of states to opt out of DIDMCA’s preemptive effect.
Observations
This amicus brief is noteworthy because it is filed by two former members of the FDIC Board who criticize the FDIC’s current litigation position as an unexplained departure from the agency’s historical interpretation of Section 525. According to the amici, the FDIC previously interpreted the statute to permit an opt-out state to apply its usury laws to loans made by out-of-state state-chartered banks and only recently changed course after a change in agency leadership.
That characterization, however, overlooks an important part of the FDIC’s own interpretive history.
As our firm explained in the amicus brief we filed on behalf of a coalition of national and state financial services trade associations supporting the plaintiffs, the FDIC’s earliest interpretation of Section 525 reached precisely the opposite conclusion. In Interpretive Letter No. 83-16, issued in October 1983—only three years after DIDMCA’s enactment—the FDIC advised that a state-chartered bank could rely on the interest-rate authority of its home state when extending credit to residents of other states, including “when making loans to citizens of states that have rejected the federal preemption.” That interpretation squarely supports the plaintiffs’ position that a state’s decision to opt out of Section 521 does not prevent an out-of-state state-chartered bank from exporting the interest rate authorized by the law of its home state.
The FDIC reiterated that understanding in its 1992 amicus brief in Greenwood Trust Co. v. Massachusetts. There, the agency argued that a state’s decision to opt out of Section 521 “should not affect the usury preemption of section 521 for a bank not located in that State” and that Section 525 “clearly does not confer on states that elect to opt out of Section 521 extraterritorial authority to apply their own lending laws to loans made in other states by banks chartered in other states, merely because the borrower happens to be a resident.” Those statements are difficult to reconcile with the suggestion that the FDIC historically viewed Section 525 as authorizing opt-out states to regulate loans originated by out-of-state state-chartered banks.
Why the 1988 FDIC Interpretive Letter and the 2020 Final Rule May Not Carry the Weight the Amici Attribute to Them
Former Chairman Gruenberg and former Director Cordray rely heavily on two FDIC authorities, the agency’s 1988 Interpretive Letter and statements contained in the preamble to the FDIC’s 2020 final rule concerning the valid-when-made doctrine, to argue that the FDIC historically interpreted Section 525 to permit an opt-out state to apply its usury laws to loans made by out-of-state state-chartered banks. Whether those authorities support that broad proposition, however, is open to debate.
The same is true of the FDIC’s 2020 final rule implementing the valid-when-made doctrine. That rulemaking was promulgated to address a different issue altogether, whether the interest rate on a loan remains valid after the loan is sold, assigned, or otherwise transferred. The brief discussion of Section 525 in the preamble was incidental to that rulemaking and was not the subject of notice-and-comment rulemaking or independent statutory analysis. Although the preamble observes that state banks making loans in an opt-out state must comply with that state’s interest-rate limits, it does not explain what constitutes a loan “made” in an opt-out state or analyze the statutory text that is now before the en banc court.
Perhaps most significantly, the amici do not address the FDIC’s earlier interpretations of Section 525. As our firm’s amicus brief filed on behalf of a coalition of national and state financial services trade associations explains, the FDIC advised in 1983 that an out-of-state state-chartered bank could continue to export the interest rate authorized by its home state even when lending to residents of a state that had exercised its opt-out rights under Section 525. Likewise, in its 1992 amicus brief in Greenwood Trust Co. v. Massachusetts, the FDIC argued that a state’s decision to opt out “should not affect the usury preemption of Section 521 for a bank not located in that State” and that Section 525 does not authorize an opt-out state to regulate loans made in other states merely because the borrower resides in the opt-out state.
Accordingly, the historical record is considerably more nuanced than the amici suggest. Rather than reflecting a single, uninterrupted agency interpretation dating back to 1983, the FDIC’s statements over the past four decades have not always been consistent. Ultimately, however, that history may prove of only limited significance. The question before the Tenth Circuit is one of statutory interpretation, and under the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, it is the responsibility of the federal courts, not current or former agency officials, to determine the meaning of Section 525 by applying the traditional tools of statutory construction.