Community Financial Services Association of America, Ltd. v. Federal Deposit Insurance Corporation ( 2016 )


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  •                         UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    }
    COMMUNITY FINANCIAL SERVICES         }
    ASSOCATION OF AMERICA, LTD.,         }
    et al.,                              }
    }
    Plaintiffs,             }
    }
    v.                 }         Case No. 14-CV-953 (GK}
    }
    FEDERAL DEPOSIT INSURANCE            }
    CORPORATION, et al.,                 }
    }
    Defendants.             }
    ~~~~~~~~~~~~~~~~~
    }
    MEMORANDUM OPINION
    Plaintiffs,      Community   Financial        Services    Association     of
    America, Ltd.    ("CFSA") and Advance America, Cash Advance Centers,
    Inc.   ("Advance America"), allege that the Defendants, the Federal
    Deposit Insurance Corporation ("the FDIC"), the Board of Governors
    of the Federal Reserve System, and the Off ice of the Comptroller
    of the Currency and Thomas J. Curry, in his official capacity as
    the Comptroller of the Currency ("the OCC"), have violated the due
    process rights of CFSA's members.             Plaintiffs seek declaratory and
    injunctive     relief    to    prevent       these   alleged    violations     from
    continuing.
    This matter      is before   the Court        on Defendants'    Corrected
    Motion to Dismiss        for   Lack of Associational           or Organizational
    Standing or,    in the Alternative,           for Judgment on the Pleadings
    1
    ..
    ("Motion.to Dismiss"), in which Defendants seek dismissal of CFSA
    as a party to this case.             [Dkt . No.   7 5] .   Upon consideration of
    the Motion, Opposition, Reply, and the entire record herein, the
    Motion to Dismiss is granted. 1
    I.     Background
    A. Factual Background
    The basic facts      of this case were fully discussed in the
    Court's prior Memorandum Opinion on Defendants' Motions to Dismiss
    for Lack of Subject Matter Jurisdiction or,                 in the Alternative,
    for Failure to State a Claim.            CFSA v. FDIC, 
    132 F. Supp. 3d 98
    ,
    105-107 (D.D.C. 2015).           Consequently, an abbreviated discussion of
    the facts follows.
    Plaintiffs are CFSA,     an association of payday lenders,        and
    Advance America, a payday lender and member of CFSA.                 
    Id.,
     132 F.
    Supp.       3d at 105.     Defendants are agencies of the United States
    Government       that    have   been delegated      regulatory authority over
    various parts of the United States banking system.                 Id. at 106.
    Plaintiffs allege that Defendants participated and continue
    to participate in a campaign to force banks to terminate their
    business relationships with payday lenders,                 known as. "Operation
    Choke Point"       and initiated by the United States Department of
    Justice.       Id. at 106-107.      Defendants allegedly forced banks that
    1 See Section I.B, Procedural Background, infra, for a detailed
    history of the relevant briefs.
    2
    they supervise to terminate relationships with CFSA's members, "by
    first promulgating regulatory guidance regarding reputation risk,'
    and by later relying on the           reputation risk guidance         'as     the
    fulcrum for a campaign of backroom regulatory pressure seeking to
    coerce   banks    to   terminate     longstanding,       mutually   beneficial
    relationships withall payday lenders.'"            Id.
    B. Procedural Background
    On June 5, 2014,      Plaintiffs filed their original Complaint,
    [Dkt. No. l], which they amended on July 30, 2014,             [Dkt. No. 12],
    alleging that Defendants had violated the Administrative Procedure
    Act   ("APA")   and CFSA's members'        right to procedural due process
    under the Fifth Amendment to the United States Cons ti tut ion.              CFSA,
    132 F. Supp. 3d at 107.         Defendants then filed Motions to Dismiss
    for Lack of Subject Matter Jurisdiction or,              in the Alternative,
    for Failure to State a Claim,        [Dkt. Nos. 16, 17, & 18].         Id.
    On September 25, 2015, the Court issued a Memorandum Opinion
    ("Memorandum     Opinion" ) ,   granting    in part   and   denying    in part
    Defendants' Motions.        CFSA,   
    132 F. Supp. 3d 98
    .       The Court held
    that Plaintiffs had failed to state a claim under the APA,                     and
    dismissed all claims brought pursuant to it.              However, Plaintiffs
    could continue litigating their due process claims, see id'., under
    the theory that the stigma caused by Operation Choke Point deprived
    them of a protected      intere~t   in liberty or property.         
    Id.
     at 123-
    3
    24 (citing Paul v. Davis, 
    424 US 693
    , 708 (1976) & Gen. Elec. Co.
    v. Jackson, 
    610 F.3d 110
    , 121 (D.C. Cir. 2010)).
    Plaintiffs        then filed a       Second Amended Complaint          ("SAC") ,
    alleging facts and claims essentially indistinguishable from those
    contained in their earlier complaints. 2                  [Dkt.   No.   64] .   Each
    Defendant filed an Answer to the Second Amended Complaint.                      [Dkt.
    Nos. 65, 66,     &   67].
    On October 29,          2015,   Defendants filed a Motion to Dismiss
    Plaintiff   CFSA       for   Lack    of   Associational     and    Organizational
    Standing or,     in the Alternative,            a   Motion for Judgment on the
    Pleadings, [Dkt. No. 73], which they corrected on November 6, 2015.
    [Dkt. No. 75].         Defendants seek dismissal only of Plaintiff CFSA
    for lack of standing, and do not challenge the standing or seek
    dismissal   of       Plaintiff   Advance       America.    Plaintiffs      filed   an
    Opposition on November 12, 2015,           [Dkt. No. 76] and Defendants filed
    their Reply on November 19, 2015.                [Dkt. No. 77].
    2 Despite the Court's dismissal of Plaintiffs' APA claims,
    Plaintiffs again included them in their Second Amended
    Complaint.  See SAC , , 116-197 (Counts I-III, V-VII, IX-XI all
    brought pursuant to the APA). As those claims were dismissed,
    they are no longer before the Court and are not the subject of
    this motion. Only Plaintiffs' due process claims, claims IV,
    VIII, and XII, are properly before the Court.
    4
    II.   Standard of Review
    A. Motion to Dismiss Under Fed. R. Civ. P. 12(b) (1)
    As courts of          limited jurisdiction,          federal    courts possess
    only those powers             specifically granted to them by Congress or
    directly by the United States Constitution. Kokkonen v. Guardian
    Life Ins. Co. of Am., 
    511 U.S. 375
    , 377 (1994). The plaintiff bears
    the burden of establishing by a preponderance of the evidence that
    the Court has subject matter jurisdiction to hear the case. See
    Shuler v. United States,            
    531 F.3d 930
    ,       932    (D.C. Cir. 2008). In
    deciding       whether     to    grant   a   motion     to    dismiss     for   lack   of
    jurisdiction under Rule 12 (b) (1),              the court must "accept all of
    the factual allegations in [the] complaint as true." Jerome Stevens
    Pharmaceuticals, Inc. v. Food & Drug Admin., 
    402 F.3d 1249
    , 1253
    54    (D.C.   Cir.    2005)     (quoting United States v. Gaubert,              
    499 U.S. 315
    , 327 (1991)).
    Nonetheless,      "[t]he plaintiff's factual allegations in the
    complaint will bear closer scrutiny in resolving a 12(b) (1) motion
    than in resolving a 12(b) (6) motion for failure to state a claim."
    Grand Lodge of Fraternal Order of Police v. Ashcroft, 
    185 F. Supp. 2d 9
    ,      13-14     (D.D.C.    2001).   The Court may also consider matters
    outside       the    pleadings,    and may       rest   its    decision    on   its    own
    resolution of disputed facts. See Herbert v. Nat'l Acad. of Sci.,
    
    974 F.2d 192
    , 197 (D.C. Cir. 1992).
    5
    B. Motion for Judgment on the Pleadings Under Fed. R. Civ.
    P.    12 {c)
    "After the pleadings are closed but within such time as not
    to    delay   the       trial,   any     party may          move    for   judgment       on   the
    pleadings."         Fed. R. Civ. P. 12(c).                 "Under Rule 12(c), the court
    must accept the nonmovant' s a'llegations as true and should view
    the facts in the light most favorable to the nonmovant."                                 Bowman
    v.    District of Columbia,              
    562 F. Supp. 2d 30
    ,      32   (D.D.C.    2008)
    (internal citations and quotation marks omitted).                          As with a motion
    to dismiss for lack of subject-matter jurisdiction, "the court may
    consider the motion based on the complaint standing alone or, where
    necessary,         on   the    complaint     supplemented           by    undisputed      facts
    evidenced      in       the    record,     or       the    complaint      supplemented         by
    undisputed facts plus the court's resolution of disputed facts."
    
    Id. at 32-33
     (internal citations and quotation marks omitted) .
    "The court should grant a motion for judgment on the pleadings
    if the movant is entitled to judgment as a matter of law."                               
    Id. at 32
    .
    III. Analysis
    Defendants challenge the standing of Plaintiff CFSA, arguing
    that it no longer has Article III standing following this Court's
    dismissal of the Plaintiffs' APA claims.                           Mot.   to Dismiss at 1.
    Defendants argue that CFSA cannot establish that it has standing
    to pursue any of              the due process             claims   that   remain.    Mot.      to
    6
    Dismiss at 1-2.      Specifically, Defendants contend that CFSA lacks
    associational standing,       organizational standing,        or third party
    standing.3     
    Id.
    CFSA counters that it satisfies the requirements for all three
    types of standing.       Furthermore, CFSA argues that Defendants waived
    these arguments by failing to raise them in their original Motions
    to Dismiss for Lack of Subject Matter Jurisdiction or,                 in the
    Alternative, for Failure to State a Claim.
    A. CFSA Lacks Standing
    i. CFSA Must Establish           that    It    Has   Article   III
    Standing
    Article III of the Constitution limits the jurisdiction of
    federal courts to certain "Cases" and "Controversies." See U.S.
    Const. art. III,     §   2. "[N]o principle is more fundamental to the
    judiciary' s   proper role     in our     system of   government     than    the
    constitutional limitation of federal-court jurisdiction to actual
    cases or controversies." Clapper v. Amnesty Int'l USA, 
    133 S.Ct. 1138
    , 1146,    (2013)    (internal citations omitted).        "One element of
    the   case-or-controversy       requirement    is    that    plaintiffs     must
    3 In ruling on Defendants' first Motion to Dismiss, this Court
    held that the Plaintiffs collectively had standing to raise
    these due process claims. CFSA, 132 F. Supp. 3d at 108-115.
    However, in doing so, the Court did not expressly distinguish
    between CFSA's and Advance America's respective standing to
    raise these claims, nor did the parties themselves raise the
    issue. See id. and [Dkt. Nos. 16, 17, 18, 23, 41, 44 & 46].
    7
    establish that they have standing to sue." Id.                      (internal quotation
    marks and citation omitted) .
    "[T] he        irreducible      constitutional          minimum       of    standing
    contains three elements. First, the plaintiff must have suffered
    an injury in fact .               . 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                           Third,    it must be likely,            as
    I   opposed to merely speculative, that the injury will be redressed
    I
    by a favorable decision." Lujan v. Defenders of Wildlife, 
    504 U.S. 555
    ,    560-61,        ( 1992)    (internal    quotation marks,            citations,      and
    footnotes omitted) .
    ii.      CFSA Lacks Associational Standing
    Under the theory of associational standing, an organization
    may    sue   as   a    representative         of    its   members    even     if   it    lacks
    standing to sue in its own right.                     See Hunt v. Washington State
    Apple Advertising Commission,                 
    432 U.S. 333
    ,   343    ( 1977) .     Three
    elements are required to establish associational standing: 1) at
    least one of the organization's members has standing to sue in her
    own right; 2)         the interests the organization seeks to protect in
    its    lawsuit are        germane     to the organization's purpose;                    and 3)
    "neither the claim asserted nor the relief requested requires the
    8
    participation of individual members in the lawsuit."              
    Id., at 343
    ;
    Air Transp. Ass'n v. Reno, 
    80 F.3d 477
    , 483              (D.C. Cir. 1996).
    The Court has already ruled that CFSA's members have standing
    to pursue the due process claims remaining in this lawsuit.                  CFSA,
    132 F. Supp. 3d at 108-15.         Furthermore,     it is self-evident that
    the interest CFSA seeks to protect- -the continued viability of
    payday lending--is germane to its organizational purpose, advocacy
    on behalf of payday lenders.          Thus,      to establish associational
    standing under Hunt, CFSA need only show that participation of its
    members in this lawsuit is not required.                As discussed below, it
    fails to do so.
    a. CFSA' s claims that its members' due process
    rights have been violated cannot be litigated
    without the participation of its members
    To   satisfy   the   third prong    of    Hunt    CFSA must    show    that
    "neither the claim asserted nor the relief requested requires the
    participation of individual members in the lawsuit."                 
    432 U.S. at 343
    .    Accordingly,    Plaintiffs' claims are the starting point for
    determining whether member participation is required.
    Plaintiffs allege that Operation Choke Point violates the due
    process rights of CFSA's members.          See   SAC~~    141-47, 173-79, 198-
    204 (Claims IV, VIII, XII).        These due process claims are brought
    under the     so-called     "stigma-plus   rule."        General Elec.   Co.    v.
    Jackson, 
    610 F.3d at
    121 (citing Paul v. Davis, 
    424 U.S. at 708
    ).
    9
    Under the stigma-plus rule a due process violation exists where
    the plaintiff can show,                 "in addition to reputational harm,               that
    (1) the government has deprived them of some benefit to which they
    have a legal right .                . or (2) the government-imposed stigma is
    so severe that it 'broadly precludes' plaintiffs from pursuing 'a
    chosen trade or business."'                 
    Id.
           (quoting Paul v. Davis, 424 U.S.
    at708).
    In its Memorandum Opinion the Court held that Plaintiffs could
    succeed under the first prong of the stigma-plus test by showing
    that Operation Choke Point deprived CFSA's members of a right to
    hold a bank account.                CFSA,    132 F.       Supp.   3d at 123-24         (citing
    National Council of Resistance of Iran v. Department of State, 
    251 F.3d 192
    ,     204        (D.C.   Cir.    2001); Wisconsin v.            Constantineau,     
    400 U.S. 433
    ,        437     (1971)).       Alternatively,          the    Court    held    that
    Plaintiffs could succeed under the second-prong by showing that
    "the continued loss of banking relationships," caused by Operation
    Choke Point, "may preclude them from pursuing their chosen line of
    business."         
    Id.
    It is quite evident that significant participation by CFSA's
    members is required under either theory.                     Central to both of CFSA's
    theories      of    the     case    is    that    its     members       have    lost   banking
    relationships as a result of Operation Choke Point.                            Thus, to prove
    its claims CFSA must provide evidence that:                         1)     Operation Choke
    10
    Point    stigmatized CFSA' s         members;         2)        that   CFSA' s    members      lost
    banking    relationships;          and    3)    that       the     loss     of   those    banking
    relationships was caused by the stigma generated by Operation Choke
    Point.
    Even   if    it    is    possible      that    Plaintiffs           could       show   that
    Operation          Choke       Point   had     stigmatiz.ed           CFSA' s    members      without
    significant member participation, 4 that alone would be insufficient
    to prove their claims.               See General Electric,                   
    610 F. 3d at 121
    ("stigma       alone        is     insufficient            to       invoke        due     process
    protections").
    Instead,      to    show    that       they    had        actually        lost    banking
    relationships and those losses were caused by Operation Choke Point
    would require significant and extensive participation by CFSA's
    members.           First,      member-specific evidence is necessary to show
    that CFSA' s            members have,        in fact,      lost banking relationships.
    For      example,         members      would       have        to     present        individualized
    "documentation regarding the allegedly lost accounts,                                        including
    the deposit agreements."                 Mot. to Dismiss at 16.
    Second, in order to establish that it was the stigma generated
    by Operation Choke Point that caused those losses,                                      rather than
    4
    For example, Plaintiffs could attempt to show· that Operation
    Choke Point had stigmatized the entire payday lending industry
    relying primarily on evidence of the words and actions of
    Defendants.
    11
    some   other       cause,   individual        banks      would almost        certainly be
    required      to     provide      evidence         regarding       their     reasons     for
    terminating banking relationships with CFSA's members.                           This might
    include communications between the banks and CFSA's members, see
    
    id.,
     along with the evidence of the banks' own reasoning, such as
    internal memoranda or emails.                   Both require CFSA' s            members to
    introduce       individualized           evidence         of     their     lost     banking
    relationships.
    Furthermore, establishing that CFSA's members can no longer
    pursue their chosen line of business will also almost certainly
    require    individualized         evidence         of    their     respective      business
    activity      before    and     after     Operation       Choke     Point,      along    with
    evidence as        to   the myriad factors              relevant    to   the    success or
    failure of their business. 5             Mot. to Dismiss at 7.
    It is impossible to see how any of this could be accomplished
    without     significant         member       participation.          See       Friends    for
    American Free Enterprise Ass'n v. Wal-Mart Stores, Inc., 
    284 F.3d 575
    ,    577     (5th     Cir.     2002)       (association's         claims       regarding
    defendants'        interference         in    bilateral        relationships        between
    5 Defendants also point out that testing Plaintiffs' claims may
    require "documentation of each member's finances over the past
    several years .    . interrogatories about any other lost
    relationships or business opportunities that could have affected
    [members'] financial prospects, and notice depositions to adduce
    each member's present ability to do business." Mot. to Dismiss
    at 15-16.
    12
    association members and third parties not involved in the lawsuit
    are too fact-specific to be resolved without individual member
    participation)   .6
    b. CFSA's request for injunctive,     rather than
    monetary, relief is insufficient to establish
    that member participation is not required
    In spite of this,        Plaintiffs argue that because they seek
    injunctive   relief,        rather   than    monetary     damages,     member
    participation    is   not    required.      Opp'n   at   11-12.      For   this
    proposition Plaintiffs cite United Food and Commercial Works Union
    Local 751 v. Brown Group, Inc., in which the Court noted that in
    6 Indeed, the facts of Friends for American Free Enterprise seem
    directly on point. In that case an association of "manufacturers'
    representatives" sued Sam's Club for tortious interference.    The
    manufacturers' representatives were quintessential middlemen,
    selling the goods produced by the manufacturers to third parties,
    such as Sam's Club.     The representatives' contracts with the
    manufacturers   had   exclusivity  clauses   that  prevented   the
    manufacturers from selling their products directly to others.
    Sam's Club decided it would no longer purchase goods from the
    representatives, but would instead purchase them directly from the
    manufacturers.   An association of manufacturers' representatives
    then sued on their behalf, in part to keep the members' identities
    secret. 
    284 F.3d at 576
    .
    The court held that the association lacked associational
    standing because member participation was required to prove the
    underlying claims.    Just as here, the associational plaintiff
    claimed that the defendant, Sam's Club, was exerting pressure on
    a third party not before the court, the manufacturers, in order to
    get the third party to terminate a bilateral relationship with the
    association's members, the manufacturers' representatives.     The
    court held that resolution of the tortious interference claims
    required member participation because the defendant would need to
    be able to obtain information regarding the business relationship
    between   the   association's    members   and   the   third-party
    manufacturers. 
    Id. at 576-77
    .
    13
    all   prior cases        where    the    Court      had    found       that   associational
    standing existed,        plaintiffs had only sought injunctive relief.
    
    517 U.S. 544
    , 554 (1996)           ("Brown Group").
    The    logical     fallacy        inherent      in       Plaintiffs'     argument     is
    evident     on     its   face.       The       fact    that       all    cases    in    which
    associational standing has been found to exist involved a request
    for injunctive relief, does not mean that associational standing
    exists in all cases where an association seeks injunctive relief.
    Indeed,       such a    rule      is   plainly precluded by              the     Court's
    holding in Hunt, which requires the Court to look not only at the
    type of relief requested but also at the nature of                               "the claim
    asserted" to determine whether member participation is required,
    a requirement repeatedly confirmed since Hunt was decided.                               Hunt,
    433 U.S. at 343; see also Rent Stabilization Ass'n v. Dinkins, 
    5 F.3d 591
    , 596       (2d Cir. 1993)           ("the relief sought is only half of
    the story . . . we must also examine the claims asserted to determine
    whether     they    require      indi victual       participation.") ;         Friends     for
    American     Free    Enterprise,         
    284 F.3d at 577
        (no   associational
    standing even though plaintiffs only sought injunctive relief);
    Kansas Heal th Care Ass' n v.                Kansas Dep' t        of Social and Rehab.
    Servs.,     
    958 F. 2d 1018
    ,       1022       (10th Cir.        1992)    (no associational
    standing even though plaintiffs only sought injunctive relief) .
    14
    Thus,      the mere fact that Plaintiffs seek injunctive rather
    than monetary relief does not mean that member participation is
    not required in this lawsuit.
    c. This defect cannot be cured through sampling
    Plaintiffs argue that this defect can be overcome by sampling
    --i.e. by taking evidence from a representative sample of CFSA's
    members           without violating Hunt's          third prong.          Opp' n at 17
    (arguing          that    "courts     have   repeatedly        upheld    associational
    standing where, as here,              'an association plaintiff can prove its
    case       with a    sampling of       evidence    from    its members'"          (quoting
    Association         of    American    Physicians    &    Surgeons,      Inc.     v.     Texas
    Medical Bd., 
    627 F.3d 547
    , 551-552 (5th Cir. 2010))).
    Plaintiffs are correct that numerous courts have held that
    the third prong of Hunt may be satisfied even though some minimal
    degree of member participation is necessary.                      See e.g. Hospital
    Council v.         Pittsburg,       949 F;2d 83,    89    (3d Cir.      1991);        Retired
    Chicago Police Ass'n v.               City of Chicago,         
    7 F.3d 584
          (7th Cir.
    19 93) ;    see also Association of American Physicians                    &   Surgeons,
    Inc.,       
    627 F.3d at 551-52
       (providing       an   overview     of        various
    Circuits'         approaches to allowing sampling) .              Those courts have
    held that a representative sample of members could provide evidence
    without violating Hunt's third prong.               See Association of American
    Physicians & Surgeons, Inc., 
    627 F.3d at 551-52
    .
    15
    There does not appear to be any bright-line rule regarding at
    what point sampling violates Hunt's third prong.                       See 
    id. at 552
    (differences in various Circuits' approaches "are more of degree
    than kind").      Instead, it is a discretionary inquiry as to whether
    it would be more efficient to allow sampling, rather than require
    each member to bring a claim individually.                 See     Alliance for Open
    Society      International       v.     U.S.    Agency           for     International
    Development, 
    651 F.3d 218
    , 229 (2d Cir. 2011).                   A number of factors
    are relevant to this inquiry.
    Typically,    sampling     is    appropriate       where        only    "minimal
    participation from individual members"              is required to prove the
    claim.      
    Id.
       (internal· quotation marks         and citations             omitted).
    Thus, sampling is appropriate in a case where a "discrete pattern
    of conduct .           [is]    alleged to have applied equally against a
    large number of association members," such that "once proved as to
    some, the violations would be proved as to all."                       
    Id.
    A related factor is whether the claims present "pure questions
    of law" or, instead, are "fact-specific."             See Friends for American
    Free     Enterprise   Ass'n,     
    284 F.3d at 577
    .         Thus,       Courts   have
    repeatedly held that the third prong of Hunt is not violated where
    the claim involves a question of law. 7             Id.; Playboy Enterprises,
    7 Another parallel is the difference between facial and as-applied
    challenges.     Facial   challenges do not ordinarily require
    individual   member   participation   but  as-applied   challenges
    16
    Inc. v. Public Service Com'n of Puerto Rico, 
    906 F.2d 25
    , 35 (1st
    Cir.   1990)   (member participation is not required where the case
    involves a "question of law which is not particular to each member
    of the Association"); Bano v. Union Carbide Corp., 
    361 F.3d 696
    ,
    714    (2d Cir.   2004)   (member participation is not required where
    "organization     seeks    a   purely   legal    ruling") ;    but    see   Retired
    Chicago Police Ass'n v. Chicago, 
    7 F.3d 584
    , 601 (third prong of
    Hunt   satisfied even      though claims        "were   not   premised on pure
    questions of law") .      In contrast, Courts have concluded that member
    participation is required - and thus the third prong of Hunt is
    violated - where a fact-specific inquiry is necessary to establish
    a violation.        Friends for American Free Enterprise Ass' n,                
    284 F.3d at 577
    .
    Finally, courts have concluded that sampling does not violate
    Hunt's    prohibition     on   member    participation        where   the    sample
    evidence focuses on the conduct of the defendant to establish a
    ordinarily do.   See Kansas Health Care Ass' n, 
    958 F. 2d at 1022
    (individual participation not required where violation can be
    adduced solely by looking at terms of agency policy or practice
    (discussing AMISUB (PSL), Inc. v. Colorado Dep't of Social Servs.,
    
    879 F.2d 789
     (10th Cir. 1989)) but individual participation is
    required where violation cannot be determined from reviewing
    policies "on their face"); Bano v. Union Carbide Corp, 
    361 F. 3d 696
    , 714 (2d Cir. 2004) (member participation required in "as-
    applied" challenge (discussing Rent Stabilization Ass'n, 
    5 F.3d at 596
    )); Free Speech Coalition, Inc. v. Attorney General, 
    787 F.3d 142
    , 153-54 (3d Cir.) (as-applied challenge under First Amendment
    requires member participation to establish violation), rev'd on
    other grounds by 
    825 F.3d 149
     (3d Cir. 2016).
    17
    violation     of     law,   rather   than    on   the    extent    of    plaintiff's
    injuries.    Pennsylvania Psychiatric Soc.              v.    Green Spring Health
    Services,    Inc.,     
    280 F.3d 278
    ,   286    (3d Cir 2002)        (limited member
    participation does not defeat standing where sample evidence 'is
    about "methods" employed by Defendants and used to prove "systemic"
    conduct by Defendants); Alliance for Open Society, 
    651 F.3d at 229
    (finding     associational      standing     where      "it   is   the   conduct    of
    Defendants .          . that will be the primary subject of inquiry") ;
    Retired Chicago Policy Ass'n v. Chicago, 
    7 F.3d 584
    , 602-03                        (7th
    Cir.)    (limited member participation does not defeat associational
    standing     where     sample   evidence     focuses     on    whether    defendants
    engaged in alleged conduct) .
    Even Hospital Council of Western Pennsylvania v. Pittsburgh,
    
    949 F.2d 83
        (3d Cir. 1991), the case on which Plaintiffs rely so
    heavily, is understood to allow for limited member participation
    where the sample evidence was used to prove the conduct of the
    defendant.     See Retired Chicago Policy Ass'n,               
    7 F.3d at 603
           ("In
    that case, at issue was whether the defendant governmental entities
    had pursued the policy of which the plaintiffs complained;                         the
    court believed that issue could be answered through the evidence
    submitted by, among others, some of the parties.").
    The Court concludes that sampling is inappropriate in this
    case, as all of the relevant factors suggest that no efficiencies
    18
    will be gained by allowing CFSA to litigate this matter,                        rather
    than having individual members litigate their own claims.
    Fir$t,    Plaintiffs'    stigma-plus claims do not                 involve pure
    questions of law, but instead, are highly fact-sensitive.                      Whether
    any individual member has suffered a loss of banking relationships
    and whether that loss was caused by Operation Choke Point turns on
    unique facts that are specific to that member, such as what reasons
    the individual bank gives for terminating the relationship.
    Second,    this   is   not   a    case where     sample     evidence    can be
    limited to the conduct of the Defendants.                As the Court has already
    explained, the Defendants' conduct is only one of the elements in
    establishing a due process violation under the stigma-plus test.
    Indeed,    CFSA's      own       pleadings     confirm      that     individual
    participation is required in this case.                  See SAC    ~   14 ("numerous
    CFSA members have lost their business relationships with banks"
    (emphasis added)).         By stating that not all of its members have
    lost   banking    relationship          CFSA    has   clearly   demonstrated      that
    Operation Choke Point did not have a uniform ef feet on CFSA' s
    members. Therefore, this is not a case where sample evidence can
    establish violations that "once proved as to some [members]
    would be proved as to all."         See Association of American Physicians
    & Surgeons, Inc., 
    627 F.3d at 552
    .
    19
    Finally,     the Court believes that sampling is likely to be
    inappropriate where an organization's membership is as small as
    CFSA's.      Where an organization contains only 41 members, as CFSA
    does, a statistically significant sample size includes virtually
    all members.        Indeed, any smaller sub-sample of members raises the
    risk    of   choosing    an   unrepresentative          sample,         either   through
    inadvertence or cherry-picking by the plaintiff.                        Thus, a sample
    of sufficient size to be representative will not be significantly
    more efficient than bringing the case individually, and any smaller
    sample is likely to be unrepresentative and misleading.
    Consequently,     all of the relevant factors                suggest that it
    will be no more efficient to have CFSA litigate this case than to
    have members pursue their claims individually.                          Association of
    American Physicians & Surgeons,            Inc.,      
    627 F.3d at 552-53
              (third
    prong of Hunt is concerned with "whether an association or its
    individual members are better positioned to present a case" and
    judicial efficiency) .         Therefore,        as   CFSA' s    claims     so clearly
    "require[]     the     participation       of     individual       members       in   the
    lawsuit,"     the    Court    concludes        that   CFSA      lacks    associational
    standing.     See Hunt, 
    432 U.S. at 343
    .
    iii.    CFSA Lacks Organizational Standing
    Additionally, rather than suing on behalf of its members, an
    organization may sue on its own behalf to protect against alleged
    20
    violations of its own interests.          Nat'l Treasury Employees Union
    v. United States, 
    101 F.3d 1423
    , 1427-28.        (D.C. Cir. 1996)      (citing
    Havens Realty Corp. v. Coleman, 
    455 U.S. 363
    , 378,          (1982)).    To do
    so,    the organization must satisfy each of the traditional three
    prongs of the standing inquiry -          injury in fact,   causation, and
    redressability.       Id. at 1427.   However, the alleged injury cannot
    simply be an injury to its members' interests.           Instead, it must
    be a    "concrete and demonstrable injury to         [the organization's]
    activities."    Id.
    CFSA alleges two distinct injuries which it argues satisfy
    the first prong of injury in fact.         First, CFSA alleges that it is
    receiving fewer dues payments from members as a result of Operation
    Choke Point.    Opp'n at 28, n.8.         Second, CFSA alleges that, as a
    result of Operation Choke Point, it has had to divert significant
    resources from its traditional activities to assist members who
    have been adversely affected.        Opp'n at 27.
    a. CFSA's allegations that it has lost membership
    dues are too speculative to establish causation
    or redressability
    The parties dispute whether Plaintiffs'        loss of membership
    dues, caused by the Defendants' actions, constitutes a cognizable
    injury in fact.       See Opp'n at 28; Mot. to Dismiss at 19-20.          Each
    21
    party musters a number of cases seeking to show that it is correct. 8
    Yet, neither cites to a decision of this Circuit's Court of Appeals
    that conclusively resolves the issue.
    Even if the Court were to assume that a loss of membership
    dues was a cognizable injury in fact, it is evident that Plaintiffs
    cannot show that this injury was caused by Operation Choke Point
    or that an order from this Court would redress it.
    "When    a     plaintiff's      asserted        injury    arises      from   the
    Government's regulation of a third party that is not before the
    court,    it    becomes    substantially           more    difficult    to   establish
    standing.        Because    the     necessary        elements    of    causation    and
    redressability in such a case hinge on the independent choices of
    the regulated third party, it becomes the burden of the plaintiff
    to adduce facts showing that those choices have been or will be
    made     in    such   manner      as   to        produce    causation     and   permit
    8
    Opp'n at 28 n.8      (citing Taxation with Representation of
    Washington v.Regan, 
    676 F.2d 715
    , 722-23 (D.C. Cir. 1982), rev'd
    on other grounds, 
    461 U.S. 540
     (1983); Construction Indus. Ass'n
    of Sonoma Cnty. v. City of Petaluma, 
    522 F.2d 897
    , 903 (9th Cir.
    1975); National Treasury Emps. Union v. IRS, 
    2006 WL 416161
    , at *2
    (D.D.C. Feb. 22,_2006); NAACP v. Acusport Corp., 
    210 F.R.D. 446
    ,
    457 (E.D.N.Y. 2002); Tiano v. County of Santa Clara, 
    1994 WL 618467
    , at *6 (N.D. Cal. Oct. 19, 1994) Richards v. New York State
    Dep't of Corr. Servs., 
    572 F. Supp. 1168
    , 1179 (S.D.N.Y. 1983));
    Mot.   to Dismiss at 19 (asserting that loss of dues is a
    "derivative" harm and therefore non-cognizable as an Article III
    injury (citing Petro-Chem Processing, Inc. v. EPA, 
    866 F.2d 433
    ,
    435 n.2 (D.C. Cir. 1989); Bensman v. United States Forest Serv.,
    
    408 F.3d 945
    , 948 n.2 (7th Cir. 2005); Delta Air Lines, Inc. v.
    Export-Import Bank, 
    85 F. Supp. 3d 250
    , 262 (D.D.C. 2015)).
    22
    redressability        of   injury.       In    other    words,    mere     unadorned
    speculation as        to the existence of a            relationship between the
    challenged government action and the third-party conduct will not
    suffice to invoke the federal judicial power."                  National Wrestling
    Coaches Assn' v. Dept. of Education, 
    366 F.3d 930
    , 938 (D.C. Cir.
    2004); see also Clapper v. Amnesty Intern. USA, 
    133 S. Ct. 1138
    ,
    1150    (2013)     (expressing   a     "reluctan[ce]       to    endorse     standing
    theories      that     require       guesswork    as      to     how      independent
    decisionmakers will exercise their judgment.").
    Previously,     this Court held in its Memorandum Opinion that
    Plaintiffs'       allegations were      sufficient      to establish standing.
    CFSA, 132 F. Supp. 3d at 111-15.              The Court held that Plaintiffs'
    allegations established causation,              by alleging that Defendants'
    actions had caused third-party banks, who are not parties to this
    litigation, to terminate their business relationships with CFSA's
    members.    Id.      The Court also found that a decision in Plaintiffs'
    favor could redress this injury by enabling Plaintiffs to once
    again access the banking system, even if their original banks did
    not restore the terminated banking relationships.                   Id.
    Plaintiffs now ask that the Court go even further and find
    that the increased costs CFSA's members suffered because of the
    alleged loss of banking relationships in turn caused those members
    to either withdraw from CFSA or to reduce their membership level
    23
    •.
    within the association, resulting in lower dues.                  See Opp'n at 28-
    29,   n. 8.      Plaintiffs'    argument      fails   because they cannot           show
    either causation or redressability.
    First, CFSA has failed to allege any facts tending to show a
    causal        relationship     between   Operation       Choke     Point      and    its
    decreased membership revenue.              CFSA names multiple members who
    allegedly have lost banking relationships as a result of Operation
    Choke Point, but fails to name a single member who has reduced its
    dues payments as a result of such losses.                      See SAC.    Similarly,
    CFSA has submitted numerous declarations from members who allege
    that they have lost banking relationships as a result of Operation
    Choke Point, but not one alleges that Operation Choke Point caused
    it to reduce its dues payments to CFSA.                 See various declarations
    [Dkt. Nos. 23-1, 23-2, 23-3, 23-4, 23-5, 23-6, 23-8].
    Indeed,      it appears    just as plausible that CFSA' s members,
    faced with the allegedly existential threat of Operation Choke
    Point,    would maintain or increase             their contributions          to    CFSA
    because       CFSA's   very    mission   is    to     defend    them   from    harmful
    regulatory actions.           Absent any tangible evidence,               it is     "mere
    unadorned speculation" to inf er a causal link between Operation
    Choke Point and the alleged reduction in members' dues payments.
    See National Wrestling Coaches Ass'n,                 366 F.3d at 838;        Food and
    Water Watch v. Vilsack, 
    808 F.3d 905
    , 913 (D.C .. Cir. 2015)                  (a court
    24
    need not "accept inferences that are unsupported by facts set out
    in   the    complaint"     (internal    citations        and   quotation    marks
    omitted))
    Unable   to   show   that   Operation      Choke    Point    has   caused   a
    reduction in membership dues,          it is essentially impossible for
    CFSA to establish redressability.           Furthermore, even if CFSA could
    establish causation,       it is entirely unclear that a court order,
    ending Operation Choke Point, would cause CFSA's members to return
    to paying their previous level of dues.                  Indeed,   just as with
    Plaintiff's arguments regarding causation, the Court can imagine
    an   equally   plausible     scenario       in   which   the   Court     orders   a
    termination of Operation Choke Point and CFSA's members decline to
    resume their prior dues payments because the danger has passed.                   9
    9 This absence of causation and redressability distinguishes the
    present case from many of those that Plaintiffs cite for the
    proposition that a loss of membership dues constitutes an Article
    III injury.    See Opp'n at 28, n.8 (citing National Treasury
    Employees Union v. IRS, 
    2006 WL 416161
    , *2 (D.D.C. Feb. 22, 2006)
    ("NTEU"); Construction Industry Ass'n of Sonoma v. Petaluma, 
    522 F.3d 897
    , 903-04 (9th Cir. 1975)).
    For example, in NTEU the Plaintiff union challenged the
    firing of union members and the court found standing on the
    basis of a loss of union dues.  
    2006 WL 416161
     at *2.   The
    court held that the loss was necessarily caused by the firing of
    union members and was redressable because if the members were
    reinstated they would be required to begin paying dues once
    again.  
    Id.
    Similarly, in Petaluma the Plaintiff Construction association
    challenged a regulation capping the number of dwellings that could
    be built annually and the court found standing on the basis of a
    25
    The Court is mindful of the Supreme Court's and the Circuit
    Court of Appeals' repeated admonitions not to speculate as to how
    third      parties    might     respond   to   a     court   order    in   order    to
    manufacture standing.           See Food and Water Watch, 808 F.3d at 931
    ("when considering any chain of allegations for standing purposes,
    we   may    reject     as     overly   speculative      those   links      which   are
    predictions of future events (especially future actions to be taken
    by third    pa~ties)");       National Wrestling Coaches Ass'n, 366 F.3d at
    838; Clapper,        
    133 S. Ct. at 1150
    .           In this case, it is entirely
    speculative as to whether the alleged reduced membership dues were
    caused by Operation Choke Point or could be redressed by an order
    of this Court.         Therefore,      CFSA cannot establish organizational
    standing on the basis of that alleged injury.
    b. CFSA' s alleged reprogramming of organizational
    resources in response to Operation Choke Point
    is not a cognizable Article III injury
    CFSA also alleges that it has standing because Operation Choke
    Point    frustrates         CFSA's   mission   and    CFSA   has     had   to   expend
    resources to combat that harm.             Opp'n at 25-27          (citing National
    loss of membership dues.  Petaluma, 522 F.3d at 903-04.  Because
    membership dues were a fixed percentage of revenues, the cap on
    building activity necessarily caused a reduction in dues and
    lifting the cap would necessarily redress that harm. Id.
    26
    Treasury Emps. Union v. United States, 
    101 F.3d 1423
    , 1430 (D.C.
    Cir. 1996)).
    In assessing an organization's standing it is insufficient to
    show that the organization's "mission has been compromised" by the
    challenged     action.      Food    and    Water      Watch,   808   F.3d   at   919.
    Instead,   it must       show the   challenged action has            "impeded"    the
    organization's own activities.            Id.    In other words, a showing of
    injury requires "more than simply a setback to the organization's
    abstract social interests." Nat'l Ass'n of Home Builders v. EPA,
    
    667 F.3d 6
    , 11 (D.C. Cir. 2011).
    This requires a "two-part inquiry-'we ask, first, whether the
    agency's   action or omission to act               injured the       organization's
    interest and, second, whether the organization used its resources
    to counteract that harm.'" Food and Water Watch, 808 F.3d at 919
    (quoting PETA v. USDA, 
    797 F.3d 1087
    , 1093 (D.C. Cir. 2015)).                     "To
    allege an injury to its interest, an organization must allege that
    the defendant's conduct perceptibly impaired the organization's
    ability to provide services in order to establish injury in fact.
    An organization's ability to provide services has been perceptibly
    impaired when the defendant's conduct causes an inhibition of the
    organization's daily operations."               
    Id.
        (internal quotations and
    citations omitted) .
    27
    "[A]n organization's use of resources for .                            . advocacy is
    not sufficient to give rise to an Article III injury."                              See Food
    i'
    I    &   Water Watch,    808 F. 3d at 920.                 "Furthermore,    an organization
    does not suffer an injury in fact where it expends resources to
    educate     its   members    and    others       unless     doing     so     subjects    the
    organization to operational costs beyond those normally expended."
    Id. at 920 (internal citations and quotations omitted) .
    The harms asserted by CFSA are not cognizable Article III
    injuries.     First,     CFSA notes that its mission is to advocate on
    behalf of payday lenders in the legislative and regulatory arena,
    while Operation Choke Point is allegedly designed to put an end to
    payday lending,      the very activity CFSA advocates on behalf of.
    Opp'n at 27.      CFSA contends that if that is not a direct conflict
    with its mission,         then nothing ever would be.                  Id.     While CFSA
    tries to characterize this as a unique organizational harm, it is
    nothing more than a "generalized grievance about the conduct of
    the Government."         Food and Water Watch, 808 F.3d at 926.                      Reduced
    to its essence,      CFSA believes that payday lending is good and,
    necessarily,      that    this     effort        to    allegedly      eliminate       payday
    lending is bad.        That is not an Article III injury.                     Id.
    Additionally, CFSA alleges that it has been forced to divert
    resources    from   its     traditional      lobbying activities and instead
    spend its resources advising its members on how to respond to
    28
    Operation Choke Point and negotiating with the banks on behalf of
    members.     Id.   Essentially, CFSA argues that it has been forced to
    curtail its traditional issue advocacy and engage in a new type of
    advocacy to respond to the threat posed by Operation Choke Point.
    Yet, the Court of Appeals has repeatedly rejected the argument
    that impairment of an organization's ability to engage in issue-
    advocacy is a cognizable injury.                 See Center for Law and Educ. V.
    Dep't of Educ., 
    396 F.3d 1152
    , 1161-62 (D.C. Cir. 2005)                      (impairment
    of organization's ability to engage in "pure issue-advocacy" is
    not cognizable injury for standing purposes)                  i   National Taxpayers
    Union,    Inc. v. U.S., 
    68 F.3d 1428
    , 1433i PETA, 797 F.3d at 1093-
    94.     The courts have reasoned that an organization's interest in
    lobbying on behalf of its members is ordinarily indistinguishable
    from and identical to its abstract interest in having "a social
    goal furthered."      National Taxpayers Union, Inc. v. U.S., 
    68 F.3d 1428
    ,     1433.      Harms     to        such     a   generalized        interest    are
    insufficiently concrete            to    rise    to   the   level   of   a   cognizable
    Article III injury. 10       
    Id.
       i    PETA, 797 F.3d at 1094.
    10 Indeed,· in some instances, government actions that hinder the
    policy objectives of an organization may help, rather than harm,
    the organization as an institution, by energizing its members or
    by giving it new opportunities to carry out its mission. See Elec.
    Privacy Info. Ctr. v. Dep't of Educ., 
    48 F. Supp. 3d 1
    , 23 (D.D.C.
    2014) ("Here, the Final Rule has not impeded EPIC's programmatic
    concerns and activities, but fueled them. And the expenditures
    that EPIC has made in response to the Final Rule have not kept it
    from pursuing its true purpose as an organization but have
    29
    Consequently,     CFSA    has    failed       to    establish      that    it   has
    organizational standing.
    iv.    CFSA lacks Third Party (Jus Tetrii} Standing
    Defendants     argue     that    even    if     Plaintiffs        can    establish
    organizational        standing      they        still       fail    to     satisfy      the
    requirements of third party standing,                   also known as jus tetrii
    standing.     CFSA asserts that it has satisfied the requirements for
    third party standing.
    The   doctrine    of     third    party       standing       is    a    prudential
    limitation on the ability of third parties to challenge actions
    that injure others who are not before the court.                          Lepelletier v.
    FDIC, 
    164 F.3d 37
    , 43 (D.C. Cir. 1999).                    It reflects the principle
    that,    ordinarily,     "a litigant must assert his or her own legal
    rights and interests,          and cannot rest a claim to relief on the
    legal rights or interests of third parties."                       Powers v. Ohio, 
    499 U.S. 400
    , 410 (1991).
    A party seeking to clear the prudential hurdle of third party
    standing must first establish that it has Article III standing.
    See Sands v. NLRB, 
    825 F.3d 778
    , 784 (D.C. Cir. 2016)                      ("[plaintiff]
    contributed to its pursuit of its purpose.") ; Nat' 1 Consumers
    League v. Gen. Mills, Inc., 
    680 F. Supp. 2d 132
    , 136 (D.D.C.2010)
    ("Challenging conduct like General Mills' alleged mislabeling is
    the very purpose of consumer advocacy organizations. As such,
    General Mills' alleged conduct does not hamper NCL' s advocacy
    effort; if anything it gives NCL an opportunity to carry out its
    mission.") .
    30
    •.
    must show that he has standing under Article III,                              and that he
    satisfies third party,          or jus tertii,       standing requirements.              11
    )   •
    Assuming she has done so,          there are three factors that must be
    considered in "determining whether an individual may assert the
    rights of others:   (1)    'the litigant must have suffered an injury
    in fact,   thus giving him or her a sufficiently concrete interest
    in the outcome of the issue in dispute, '                  ( 2)    'the litigant must
    have a close relation to the third party,'                        and    (3)   'there must
    exist some hindrance to the third party's ability to protect his
    or her own interests. '    11
    Lepelletier,       
    164 F. 3d at 43
             (quoting
    Powers, 
    499 U.S. at 411
    )         (emphasis added).
    As the foregoing analysis makes clear, CFSA lacks Article III
    standing, and therefore, it does CFSA no good to establish third
    party standing.   Furthermore, even if CFSA could establish Article
    III   standing,   CFSA's        alleged        hindrance      to        its    members        is
    insufficient to find that it has third party standing.
    As the Court has already concluded, many if not all of CFSA's
    members would be required to participate in this lawsuit and to
    disclose information regarding their banking relationships.                          Thus,
    CFSA's members will be forced to disclose their identities and
    business practices in order to prove the claims in this lawsuit
    and the claimed hindrance will exist regardless of whether. CFSA
    litigates these claims on behalf of its members or whether the
    31
    members are forced to bring them individually.                     Indeed,    one of
    CFSA' s    members,     Advance      America,   is   already   a   party     to   this
    lawsuit,    suggesting that this fear is not a hindrance to member
    participation at all.          See Hodak v. Peters, 
    535 F.3d 899
    , 905 (8th
    Cir. 2008).
    Additionally, CFSA fails to cite a single case holding that
    fear of future regulatory activity alone constitutes a cognizable
    hindrance. 11        As third-party standing is an exception to the rule
    that litigants must bring their own claims, it is looked on with
    disfavor,    Kowalski v. Tesmer,          
    543 U.S. 125
    , 130        (2004),   and the
    Court will not extend this exception.
    Thus, the Court concludes that CFSA cannot meet the test for
    third party standing.
    v.    Therefore CFSA cannot establish standing under any
    theory
    In     sum,       the   Court     concludes     that   CFSA     lacks    either
    associational standing or organizational standing.                    Furthermore,
    the Court concludes that even if CFSA had organizational standing,
    11 Plaintiffs rely on Members of the City Council of L.A. v.
    Taxpayers for Vincent, 
    466 U.S. 789
    , 798 (1984). That case makes
    clear that fear is a hindrance unique to the context of a facial
    challenge under the First Amendment to a criminal statute. 
    Id.
    The other case on which Plaintiffs rely did not hold that
    fear alone constitutes a hindrance. See Pennsylvania Psychiatric
    Soc., Inc., 
    280 F.3d at 290
     (concluding that fear "coupled with
    [the third parties']    potential incapacity to pursue legal
    remedies" constituted a hindrance) .
    32
    it    cannot     satisfy      the    prudential    requirements       of   third party
    standing, and therefore should not be allowed to litigate the due
    process claims of             its members.        These conclusions rest on the
    standard of          review    for   a   motion to    dismiss,    pursuant       to Rule
    12(b) (1), or a motion for judgment on the pleadings, pursuant to
    Rule 12 (c).
    B. Defendants Did not Waive their Standing Arguments
    Finally,      Plaintiffs argue that even if CFSA cannot satisfy
    either the third prong of the Hunt test for associational standing
    or the third prong of the test for third party standing, Defendants
    waived these arguments by failing to raise them in their original
    Motions to Dismiss.             Opp'n at 9-11,        29.    Plaintiffs argue that
    these       prongs    are     merely     prudential    limits    on    standing,        and
    therefore,       that they do not survive the Supreme Court's decision
    in Lexmark International, Inc. v Static Control Components, Inc.,
    
    134 S. Ct. 1377
     (2014).              Opp'n at 9-11, 29.
    In Lexmark the Court held that the "zone of interests" test
    is    not    a   standing      requirement    imposed       by Article     III    and    is
    therefore non-jurisdictional.                
    134 S. Ct. at 1386-88
    .           In doing
    so,   the Court suggested that the entire doctrine of prudential
    standing may be illegitimate, noting that it "is in some tension
    with . .         the principle that a federal court's obligation to hear
    and decide cases within its jurisdiction is virtually unflagging."
    33
    
    Id. at 1386
               (quoting Sprint Communications,             Inc. v.     Jacobs,   
    134 S.Ct. 584
    ,       591    (2013)    (internal quotation marks omitted));                 see
    also 15 Moore's Federal Practice 3d                    §   101.50     (describing Lexmark
    as "herald[ing] the demise of the prudential strand of standing").
    Plaintiffs are correct that the tests for both associational
    and third party standing contain prudential elements.                             See Brown
    Group,    
    517 U.S. at 555
                ("the associational standing test's third
    prong    is     a       prudential    one");        Kowalski,    
    543 U.S. at 129-30
    (describing third party standing doctrine as prudential and not
    derived from limits of constitutional standing) .                       Plaintiffs argue
    that in light of Lexmark, such prudential limits on standing are
    no longer jurisdictional.               Opp'n at 9-11, 29.            Plaintiffs contend
    that such non-jurisdictional arguments can be waived,                              and that
    Defendants did in fact waive them in this case, by failing to raise
    their associational standing and organizational standing arguments
    in their first set of Motions to Dismiss.                       
    Id.
    Plaintiffs are also correct that Lexmark casts doubt on the
    vitality of prudential standing doctrines.                      See 15 Moore's Federal
    Practice 3d         §    101.50; Sheet Metal, Air, Rail, and Transportation
    Workers Local Union 20 v. Van's Industrial Inc.,                         
    2015 WL 8180287
    (N.D.    In.    December 7,         2015)   (reviewing decisions in the Sixth,
    Seventh, Eleventh Circuits, all stating that Lexmark has cast doubt
    on the vitality of prudential standing) .
    34
    However,   just because a doctrine was labelled as a form of
    prudential standing prior to Lexmark,                     does not mean that it is
    necessarily non-jurisdictional after Lexmark.                            For example,        in
    Lexmark the Court held that while the prohibition on suits raising
    "generalized grievances" had previously been treated as a form of
    prudential      standing,      it      is   actually a        form   of    constitutional
    standing.     Lexmark, 134        s.     Ct. at 1387, n.3.
    Most importantly, the Court in Lexmark expressly reserved the
    question of whether third-party standing is a form of prudential
    standing or is instead a form of constitutional standing.
    see also United States v. TDC Management Corporation,                             Inc.,     
    827 F.3d 1127
    ,      1133   (D.C.      Cir.      2016)   (declining to decide whether,
    after     Lexmark,     the     limitations          on    third-party       standing        are
    prudential) .        And    the     Court     of    Appeals    for   the    D. C.    Circuit
    continues to treat associational standing as jurisdictional after
    Lexmark. 12     See Sierra Club v.             FERC,     
    827 F.3d 69
    ,      65     (D.C.    Cir.
    2016) .    Thus,     the fact that both associational and third party
    · standing have      been    labelled prudential              in   the    past,     does    not
    establish what will happen in the future, post-Lexmark.
    12 This alone would seem to foreclose Plaintiffs' argument with
    regard to associational standing. However, in Sierra Club, it was
    "unchallenged and clear" that plaintiffs had satisfied the third
    prong of the Hunt associational standing test. Therefore, the
    question of whether the third prong of Hunt is prudential was not
    before the Court of Appeals.   827 F.3d at 65.
    35
    Fortunately, the Court need not enter this thicket.                       Implicit
    in     Plaintiffs'       contention        that     these      def ens es    are        non-
    jurisdictional       and    therefore      waivable,     is    the   assumption         that
    Defendants could have and should have raised them in their Motions
    to Dismiss for Lack of Subject Matter Jurisdiction or,                             in the
    Alternative, for Failure to State a Claim (emphasis added) .
    However,     Rule       12(h) (2)    unambiguously        provides        that     an
    argument that is not raised in an initial Rule 12(b) (6) motion is
    not waived prior to the conclusion of the case.                      See Fed. R. Civ.
    P. 12(h) (2)     (explaining that Rule 12(b) (6) arguments may be raised
    as late as trial).          Indeed, Rule 12(h) (2) expressly provides that
    any defense that could be brought under Rule 12(b) (6) can later be
    raised in a       Rule     12 (c)    motion for     judgment on the pleadings.
    Defendants' present motion is just that - a Motion to Dismiss for
    Lack    of    Associational         or   Organizational       Standing,     or     in    the
    Alternative,      A Motion       for Judgment      on   the   Pleadings.      [Dkt.      No.
    75] (emphasis added) .
    Thus,    Plaintiffs find themselves in a Catch-22 of their own
    making.        Either    the   absence     of    associational       and    third party
    standing is jurisdictional, and therefore not waivable, or it is
    non-jurisdictional         and      therefore     preserved     according        to     Rule
    12 (h) (2).     Either way, Plaintiffs' argument that Defendants have
    waived their arguments regarding CFSA's lack of associational and
    36
    third party standing are without merit.                See Washington Alliance
    of Technology Works v. Dep't of Homeland Sec.,                
    156 F. Supp. 3d 123
    , n.1    (D.D.C.    2015)   (holding that,     after Lexmark,     failure to
    raise    in a   motion    to   dismiss    what   was    formerly   considered a
    prudential standing argument does not waive the issue,                   may be
    decided on the merits at summary judgment), vacated as moot 
    650 Fed. Appx. 13
     (D.C. Cir. 2016).
    IV.     Conclusion
    For the foregoing reasons,        Defendants Motion to Dismiss is
    granted and Plaintiff CFSA is dismissed.
    December 19, 2016
    Gladys Kessler
    United States District Judge
    37