200 F.3d 822 (D.C. Cir. 2000)
America's Community Bankers, Appellantv.Federal Deposit Insurance Corporation, Appellee
No. 99-5028
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 19, 1999Decided January 18, 2000

Appeal from the United States District Court for the District of Columbia(No. 97cv00416)
H. Stephen Harris, Jr., argued the cause for appellant.  With him on the briefs was Philip R. Stein.
Thomas L. Holzman, Counsel, Federal Deposit Insurance  Corporation, argued the cause for appellee.  With him on the  brief were Jack D. Smith, Deputy General Counsel, Ann S.  Duross and Thomas A. Schulz, Assistant General Counsel, and Robert D. McGillicuddy and Barbara Sarshik, Counsel.
Before:  Sentelle, Henderson and Garland, Circuit  Judges.
Opinion for the Court filed by Circuit Judge Sentelle.
Sentelle, Circuit Judge:


1
America's Community Bankers  (Bankers), a trade association of banks and savings institutions, 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  ResourcesDefense 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

2
Because of the numerous acronyms and terms of art employed in this opinion, we provide a brief glossary.


3
Bankers                         America's Community
                                Bankers (Appellant)
APA                         Administrative Procedure Act
Bank Fund                       Bank Insurance Fund
Act or 1996 Act             Deposit Insurance Funds Act of 1996
FDIC                       Federal Deposit Insurance Corporation (Appellee)
FICO                            Financing Corporation
FIRREA                    Financial Institutions Reform, Re covery,
                                and Enforcement Act
FSLIC                     Federal Savings and Loan Insurance Corporation
Savings Fund              Savings Association Insurance Fund
                                II. Background


4
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 Federal Savings and Loan Insurance Corporation Recapitalization Act of 1987, Pub. L. No. 100-86,  302, 101 Stat. 552, 585  (1987);  see also 12 U.S.C.  1441 (1994) (current version at 12  U.S.C.A.  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 Reform, 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 administrative authority of the FDIC:  the Savings Association Insurance Fund (Savings Fund) and the Bank Insurance Fund  (Bank Fund).  See FIRREA  206 (codified at 12 U.S.C.   1815).  FIRREA also abolished the FSLIC, gave the Federal Housing Finance Board administrative authority over  FICO, and shifted responsibility for the interest on FICO's  bonds to Savings Fund member institutions.  See id.   401(a), 512.


5
In further legislation, Congress ordered the FDIC to promulgate 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 Improvement Act of 1991, Pub. L. No. 102-242,  302(a), 105 Stat. 2236, 2345 (1991) (codified as amended at 12 U.S.C.   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.A.  1817(b)(2)(A)(ii) (West Supp.  1999).


6
Another section of that statute, 12 U.S.C.  1441(f)(2), also  authorized FICO, "with the approval of the Board of Directors of the [FDIC]," to assess Savings Fund members to  service FICO's bonds.  12 U.S.C.  1441(f)(2) (1994) (current  version at 12 U.S.C.A.  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.  1441b "shall not exceed the amount authorized to  be assessed against [Savings Fund] members pursuant to [12  U.S.C.  1817];"  and that FICO "shall have first priority to  make the assessment."  Id.  1441(f)(2)(A)-(B).  Finally, 12  U.S.C.  1441(f)(2)(C) required the amount of the Savings  Fund assessment under 12 U.S.C.  1817 to be reduced by  the amount of the FICO and Resolution Funding Corporation  assessments.  See id.  1441(f)(2)(C).  After FIRREA abolished 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 insurance premium assessment process and gave FICO funding  the higher priority.


7
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. Banking 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 undercapitalized, and Savings Fund assessments remained high,  because of the diversion of a portion of Savings Fund assessments 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.


8
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,  2702, 110 Stat.  3009, 3009-479 (1996).  The Act also amended 12 U.S.C.   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 designated reserve ratio.  1996 Act  2708(a), 110 Stat. 3009-497  (codified at 12 U.S.C.A.  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 institutions, not just Savings Fund member institutions;  and in a  related amendment, the Act eliminated the language in 12  U.S.C.  1441(f)(2) that linked the FICO and Savings Fund  assessments.  See 1996 Act  2703(a), 110 Stat. 3009-485  (codified at 12 U.S.C.A.  1441(f)(2) (West Supp. 1999)).


9
To summarize:  As of October 1, 1996, the Savings Fund  was fully capitalized at the designated reserve ratio.  Thus,  under 12 U.S.C.  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 amendment to 12 U.S.C.  1441(f)(2) severing the statutory relationship 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.  1817 to cover its bond interest obligation for the  fourth quarter of 1996.


10
On May 30, 1996, before the 1996 Act was enacted, FICO  sent a memorandum to the FDIC requesting funding of  $396,665,000for 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 assessments 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 October 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. 16, 1996).


11
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.  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.  327.3-327.10).


12
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 Resources 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.   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 suggested that Bankers should sue FICO for relief instead.

III. Article III Standing

13
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 suffered 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 cannot 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

14
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.  Employing 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 causation.  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 44043.  In short, our precedents suggest that an agency does not 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.


15
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.A.  1441(f)(2) (West Supp. 1999);  see  also 12 U.S.C.  1441(f)(2) (1994).  Even if the FDIC is  correct that it could not collect the semiannual FICO assessment without FICO's permission, clearly 12 U.S.C.   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 the cases  discussed therein.

B. Redressability

16
In its suit against the FDIC, Bankers seeks a declaratory  judgment that 12 U.S.C.  1441 and 1817, as of October 1,  1996, limited the fourth quarter 1996 Savings Fund assessment (including the FICO assessment portion) to the rate  necessary to maintain the Savings Fund at the 1.25% designated 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, Bankers claims that 12 U.S.C.  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 it.


17
The parties misconstrue the inquiry.  The redressability  element does not depend upon the defendant's financial ability 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 authority.  Instead, Congress has promulgated statutes like the  APA to waive sovereign immunity and authorize parties  aggrieved by agency actions to seek relief against the offending agencies in court.  See generally 5 U.S.C.  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 APA.


18
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 Natural 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 members their money back, so long as they could collect the  award.


19
Where an agency rule causes the injury, the redressability  requirement may be satisfied as well by vacating the challenged 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 retroactively, as it did with the fourth quarter 1996 Savings Fund  assessment, and entitling Bankers's members to a refund.


20
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 members 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 redressability requirement for Article III standing, at a minimum, 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

21
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.  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.  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.  702 too narrowly.


22
The pivotal analysis in distinguishing specific relief available 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 damages 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  paid.


23
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 maintains 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 promulgated 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 establishedand binding precedent, Bankers's claim  represents specific relief within the scope of 5 U.S.C.  702,  not consequential damages compensating for an injury.  That  the FDIC no longer possesses the precise funds collected is  not determinative of this analysis.


24
Our precedent in City of Houston does not preclude Bankers's claim.  In that case, Houston sued HUD for congressionally 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 suggests 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, however.


25
The principal issue in City of Houston was mootness, not  the question of allowable specific relief as opposed to unavailable money damages.  We dismissed Houston's claim as moot  because the grant funds were contractually obligated to another 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 Congress, we held that 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 appropriation 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 Bankers's member institutions.


26
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 wrongdoing;  Bankers wants the FDIC to return that which rightfully belonged to Bankers's member institutions in the first  place.  Bankers alleges that the FDIC violated the terms of  12 U.S.C.  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 distributing the improperly collected funds elsewhere.


27
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.  TheSupreme Court held that, since the  subcontractor's claim for specific relief was against the defaulting prime contractor, an equitable lien represented compensatory or substitute relief, thus money damages.  See id.  at 692.  The present case is different because the FDIC's  responsibility for the alleged over assessment 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 monetary relief is equitable, like the claims in Bowen and Maryland Department of Human Resources, not compensatory,  like the claim in Blue Fox.


28
Regardless, even if we were to order a refund in this case,  no transfer of funds would be necessary to follow our command.  At oral argument, the FDIC conceded that it had the  authority to offset Bankers's members' future FICO assessments 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 concessions render the FDIC's cash position both practically and  legally irrelevant.  For these reasons, we hold that the remedy sought by Bankers does not constitute money damages. Thus we have power under 5 U.S.C.  702 to consider the  merits of Bankers's claim.

V. Alleged Issues of Fact

29
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 obligations 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 appellate 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 (D.C. Cir. 1983).


30
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. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).  The "factual issues"  raised by Bankers do not meet this standard.


31
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 reasoned 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 wouldgenerate 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.


32
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 Bankers'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 statutory 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 not invade the jury's province.

VI. Statutory Interpretation

33
Accordingly, we turn to the bottom line of the present case: whether the FDIC properly construed its authority and obligations under 12 U.S.C.  1441 and 1817.  Prior to the  enactment of the 1996 Act and through January 1, 1997, 12  U.S.C.  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.  1817]...."  12 U.S.C.  1441(f)(2) (1994);  see also  Pub. L. 104-208,  2703(a), (c), 110 Stat. 3009, 3009-485 to 3009-486 (1996) (making the amendments to  1441(f)(2) effective only with respect to semiannual periods beginning  after December 31, 1996).  As of September 30, 1996, however, 12 U.S.C.  1817(b)(2)(A)(i) required the FDIC Board to


34
set semiannual assessments for insured depository institutions when necessary and only to the extent necessary... to maintain the reserve ratio of each deposit insurance fund at the designated reserve ratio;  or ... if there serve ratio is less than the designated reserve ratio, to increase the reserve ratio to the designated reserve ratio....


35
12 U.S.C.A.  1817(b)(2)(A)(i) (West Supp. 1999).  The statute 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 assessments on members' earnings and capital, and "any other  factors that the Board of Directors may deem appropriate."Id.  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.   1817(b)(2)(A)(iii).  Notably, the limitation on assessment  codified in 12 U.S.C.  1817(b)(2)(A)(iii) was part of the 1996  Act, and thus became effective September 30, 1996.  Additionally, even though the changes to 12 U.S.C.  1441(f)(2)  severing the link between the FICO and Savings Fund assessments were not effective until January 1, 1997, the portion of 12 U.S.C.  1817(b)(2) which addressed the FICO  assessment was repealed effective September 30, 1996:  "Notwithstanding any other provision of this paragraph, amounts  assessed by the Financing Corporation under section 1441 of  this title against Savings Association Insurance Fund members shall be subtracted from the amounts authorizedto be  assessed by the Corporation under this paragraph."  12  U.S.C.  1817(b)(2)(D) (1994);  see also Pub. L. No. 104-208,   2703(b), 110 Stat. 3009, 3009-485 (1996) (repealing   1817(b)(2)(D)).3


36
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 maintain 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.  1441(f)(2) to an  instruction for the FDIC to allocate to FICO whatever  amounts FICO requested, while 12 U.S.C.  1441(f)(2) clearly  limited the FICO assessment to the amount necessary to  achieve or maintain the Savings Fund at the designated  reserve ratio.


37
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 necessary for both the Savings Fund and FICO.  Before the Act  required a special assessment raising the Savings Fund reserves to the designated ratio, 12 U.S.C.  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 requirements of FICO and the Savings Fund both out of the 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.  Moreover, 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 Congress's clear intent to provide FICO with the funding necessary 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.


38
The overall statutory scheme involves a statute over which  the FDIC does not possess administrative authority, 12  U.S.C.  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.   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 interpretation is a reasonable one.  See id.


39
Turning to the first step of the analysis, we cannot agree  with Bankers that the plain meaning of 12 U.S.C.  1441(f)(2)  and 12 U.S.C.  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.  1817(b)(2)(A) and 12 U.S.C.   1441(f)(2) was somewhat ambiguous even before the Act,  and the staggered effective dates imposed by the Act substantially compounded that ambiguity.


40
We note however that 12 U.S.C.  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.   1817(b)(2)(A)(ii) which survived the Act, gave it some discretion 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.  1817(b)(2)(A)(ii) allows it some discretion  over these matters permit us to move to the second phase of  the Chevron analysis.


41
We recognize that the FDIC's interpretation of the provisions 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 associations."  Id. at 67,688 (citing 12 U.S.C.  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.


42
However, despite these inconsistencies, the FDIC in its  rulemaking process clearly considered the alternative interpretations 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 litigation, 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 interpretation of 12 U.S.C.  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.


43
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.  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.


44
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 decisions.


45
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 developed as part of a litigation strategy."  Id. at 192.


46
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 reasonableness 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" independently 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 ourreviewing the  statutory language de novo.  That is, after all, what courts do.


47
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 reasonable 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 properly before us;  it is also convincing.  The FDIC's interpretation  of the "any other factors" language of 12 U.S.C.   1817(b)(2)(A)(ii)(IV) yields a result consistent with the apparent congressional goal of 12 U.S.C.  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

48
In summary, we hold that Bankers satisfies the requirements for Article III standing, and that the remedy Bankers  seeks represents relief other than money damages within the  context of 5 U.S.C.  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 interpretation 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.



Notes:


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.  706(2)(A) (1994).


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


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.  1817(b)(2)(D) effective January 1, 1997.  See  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.


