National Association of Industrial Bankers v. Weiser

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 2, 2026
• Docket: 24-1293
• Status: Published

Opinion

Appellate Case: 24-1293 Document: 162 Date Filed: 04/02/2026 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS April 2, 2026 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

NATIONAL ASSOCIATION OF INDUSTRIAL BANKERS, et al.,

Plaintiffs - Appellees,

v. No. 24-1293 (D.C. No. 1:24-CV-00812-DDD-KAS) PHILIP J. WEISER, in his official capacity (D. Colo.) as Attorney General of the State of Colorado, et al.,

Defendants - Appellants.

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STATE OF ARIZONA, et al.,

Amici Curiae. _________________________________

ORDER _________________________________

Before HOLMES, Chief Judge, HARTZ, TYMKOVICH, BACHARACH, PHILLIPS, McHUGH, MORITZ, EID, CARSON, ROSSMAN, and FEDERICO, Circuit Judges. 1 _________________________________

This matter is before the court on Appellees’ Petition for Rehearing En Banc

(Petition) and Defendants-Appellants’ Response to Petition for Rehearing En Banc

(Response). The Petition and Response were circulated to all non-recused active judges

1 The Honorable Scott M. Matheson, Jr. is recused in this matter. Appellate Case: 24-1293 Document: 162 Date Filed: 04/02/2026 Page: 2

of the court. A poll was called, and a majority of the non-recused active judges voted to

rehear this matter en banc. Accordingly, the Petition is GRANTED, the court’s

November 10, 2025 judgment is VACATED, the issuance of the mandate is STAYED,

and this matter is REOPENED. See Fed. R. App. P. 40(c); see also 10th Cir. R. 40.2(E)

(noting the effect of the grant of rehearing en banc).

The pending motions for leave to file amicus briefs are GRANTED. All amicus

briefs submitted in connection with the court’s consideration of whether to grant en banc

rehearing will be filed as of the date they were submitted.

The parties shall file supplemental briefs addressing the following questions and

any other issues raised in the Petition: 2

1. Does the phrase “loans made in such State” in Section 525 of the Depository

Institutions Deregulation and Monetary Control Act of 1980 (DIDMCA) refer to

“an executed loan” and encompass “loans in which either the lender or the

borrower is located in the opt-out state”? Nat'l Ass'n of Indus. Bankers v. Weiser,

159 F.4th 694, 714 (10th Cir. 2025).

2. How, if at all, should the reference in Section 521 of DIDMCA to “the State . . .

where the bank is located” inform the meaning of “loans made in such State” in

Section 525?

2 The scope of the en banc proceedings in this matter is limited to the issues raised in the Petition and the supplemental briefing questions identified above; the en banc court will not reconsider whether the Banks have a valid cause of action for a claim in equity under Ex parte Young, 209 U.S. 123 (1908).

2 Appellate Case: 24-1293 Document: 162 Date Filed: 04/02/2026 Page: 3

3. How, if at all, is DIDMCA’s enactment history instructive to interpreting the

phrase “loans made in such State”?

4. How, if at all, is the regulatory guidance instructive to interpreting the phrase

“loans made in such State”?

5. Is the phrase “loans made in such State” ambiguous?

6. Does a presumption against preemption apply in this case?

Appellees’ supplemental brief shall be filed within 30 days of the date of this

order. That brief shall be no longer than thirty double-spaced pages in a 13- or 14-point

font. Sixteen paper copies of Appellees’ supplemental brief must be received in the

Clerk’s Office within five business days of notification that the brief has been accepted

for electronic filing.

Within thirty days of service of Appellees’ supplemental brief, Appellants shall

file a supplemental response brief that may be no longer than thirty double-spaced pages

in a 13- or 14-point font. Sixteen paper copies of Appellants’ supplemental brief must be

received in the Clerk’s Office within five business days of notification that the brief has

been accepted for electronic filing.

Within 14 days of service of Appellants’ supplemental brief, Appellees may file a

supplemental reply brief. The supplemental reply brief may be no longer than fifteen

double-spaced pages in a 13- or 14-point font. Sixteen paper copies of the supplemental

reply brief must be received in the Clerk’s Office within five business days of notification

that the brief has been accepted for electronic filing.

3 Appellate Case: 24-1293 Document: 162 Date Filed: 04/02/2026 Page: 4

Amicus participation is encouraged.

Entered for the Court,

Per Curiam