The parties dispute what position the FDIC has taken on the preemption issue here

The parties dispute what position the FDIC has taken on the preemption issue here

However, the threshold issue for us is whether the FDIC’s view is entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984). 21

Putting aside the question of what the FDIC’s position is, see Christensen v. Harris County, 529 U.S. 576, 587, 120 S. Ct. 1655, 1662-63, 146 L. Ed. 2d 621 (2000) (interpretations in opinion letters, policy statements, manuals, and the like do not warrant Chevron deference), it is clear to us that no deference is due.

The reason is that we do not defer to agency positions, whether formal or informal, on preemption issues. See Smiley v. Citibank (South Dakota), 517 U.S. 735, 744, 116 S. Ct. 1730, 1735, 135 L. Ed. 2d 25 (1996) (distinguishing between the “substantive (as opposed to pre-emptive) meaning of a statute,” on which deference must be granted, and “the question of whether a statute is pre-emptive”); see also Nat’l Mining Ass’n v. Sec’y of Labor, 153 F.3d 1264, 1267 (11th Cir. 1998) (citing Colo. Pub. Utils. Comm’n v. Harmon, 951 F.2d 1571, 1579 (10th Cir. 1991)). Because “a preemption determination involves matters . more within the expertise of the courts than within the expertise of” an administrative agency, we need not defer to an agency’s opinion regarding preemption. Colo. Pub. Utils. Comm’n, 951 F.2d at 1579. That side issue settled, we turn now to our own determination of the preemption issue.

The out-of-state banks and payday stores point to certain statements made by various FDIC officials suggesting one view and Georgia points to various other documents that it suggests indicate that the FDIC has a different view on the preemption issue

There are three types of preemption: express preemption, field preemption, and conflict preemption. Express preemption occurs when “Congress has manifested its intent to preempt state law explicitly in the language of the statute.” Cliff v. Payco Gen. Am. Credits, Inc., 363 F.3d 1113, 1122 (11th Cir. 2004). Field preemption occurs when “federal regulation in a legislative field is so pervasive that we can reasonably infer that Congress left no room for the states to supplement it. ” Id. Conflict preemption arises either when “it is impossible to comply with both federal and state law” or “when state law stands as an obstacle to achieving the objectives of the federal law.” Id. Because the field preemption and conflict preemption issues are easily resolved, we address them first.

In the case of state-chartered banks, the FDIA itself makes it clear that while state banks are subject to some federal regulation, the states remain the “primary regulatory authority” over state banks participating in the FDIC’s deposit insurance program. See, e.g., 12 U.S.C. §§ 1813(r) (defining “State bank supervisor” as state officer, agency, or other entity with primary regulatory authority over state banks); 1820(h) (1) (A) (granting State bank supervisor regulatory authority over state banks with respect to state laws governing, among other things, fair lending and consumer protection); 1831a(i) (providing that the section governing activities of insured state banks “shall not be construed as limiting the authority of . any State supervisory authority to impose more stringent restrictions”). 22

With regard to field preemption, it is clear that the FDIA was not intended to “occupy the field” of state bank regulation

Although § 27(a) authorizes state banks to export their home interest rate to another state, the FDIA expressly acknowledges that the host state’s consumer and fraud laws still apply to the exporting state banks. 12 U.S.C. § 1820(h) (1) (A) (providing that the state bank supervisor ine branches operated in such state by an out-of-state bank “for the purpose of determining compliance with host state laws, including those governing banking, community reinvestment, fair lending, consumer protection, and permissible activities”). Indeed, the activities of state banks are areas that traditionally have been regulated by the states. See Lewis v. BT Inv. Managers, Inc., 447 U.S. 27, 38, 100 S. Ct. 2009, 2016, 64 L. Ed. 2d 702 (1980). For example, states have authority to regulate the establishment of in-state branches of banks and their activities. See e.g., 12 U.S.C. § 1831u(a) (4)-(5). Therefore, we readily conclude that there is no field preemption of the State’s power to regulate state banks.

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