Whether extended overdraft fees are 'interest' under the National Bank Act

QUESTIONS PRESENTED When an account holder at Respondent BOKF, N.A. (“the Bank”) overdraws their account and the Bank covers the shortfall by extending its own money, the Bank will continuously impose so-called “extended” overdraft charges until the covered amount is repaid. This case concerns whether those extended overdraft fees are “interest” within the meaning of the National Bank Act of 1864, 12 U.S.C. § 85, as implemented by 12 C.F.R. § 7.4001(a). That regulation, as relevant here, defines “interest” as “any payment compensating a creditor ... for an extension of credit... .” A divided panel of the Court of Appeals resolved that question by deferring, under Aver v. Robbins, 519 US. 452 (1997), to an interpretive letter issued by the Office of the Comptroller of the Currency that addresses a different question about a different regulation, that does not cite to § 7.4001, that does not use the word “interest,” and that ignores a previous agency interpretation of the same statute. A dissenting judge (Eid, J.) disagreed that the regulation was ambiguous, and, even if it was, that the interpretive letter in question was worthy of deference. The questions presented are: 1. May a court defer to an agency’s post-promulgation pronouncements to determine that a regulation is genuinely ambiguous? 2. Is an agency interpretation that only addresses the question at issue by implication and which is inconsistent with a previous position taken by the same agency the product of that agency’s “fair and considered judgment,” and therefore potentially entitled to judicial deference? 3. Is 12 C.F.R. § 7.4001(a) genuinely ambiguous, such that an agency interpretation of the regulation (i) ii can be entitled to judicial deference under Auer and Kisor v. Wilkie, 139 S. Ct. 2400 (2019)?