Kiosko Multiservicios LLC v. Financial Crimes Enforcement Network et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Kiosko Multiservicios LLC,
Plaintiff,
v.
Financial Crimes Enforcement Network, et
al.,
Defendants.
No. CV-26-02389-PHX-KML
ORDER
Kiosko is a money services business (“MSB”) that provides money transfers, money
orders, and check-cashing services in Maricopa County. It challenges a Geographic
Targeting Order the government issued in March 2026. Before the order, MSBs in
Maricopa County were required to collect information and file detailed reports only for
customer transactions over $10,000. The order lowered that threshold to $1,000, imposing
what Kiosko describes as business-crushing administrative burdens. At this stage, Kiosko
has shown it is entitled to temporary relief on its notice-and-comment theory. The TRO is
granted, but only as to Kiosko.
I. Background
Plaintiff Kiosko Multiservicios LLC is an Arizona company with six retail locations
in Maricopa County. (Doc. 1 at 4.) Its customers are mostly local residents without bank
accounts who use Kiosko to cash payroll checks, pay rent, and send money to family. (Doc.
1 at 4.) Kiosko is regulated as an MSB and is registered with the Treasury Department’s
Financial Crimes Enforcement Network (“FinCEN”). (Doc. 1 at 4–5.)
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The current dispute revolves around new requirements for Currency Transaction
Reports (“CTRs”). CTRs require MSBs to collect a significant amount of information,
including the name, address, profession, and Social Security number of the person
conducting the transaction, a description of the transaction, the type of identification
presented, and the name of the reporting financial institution. (Doc. 1 at 5.) Under ordinary
reporting requirements, MSBs must file CTRs for transactions over $10,000. (Doc. 1 at 5.)
For transactions over $3,000, MSBs must collect some customer information but generally
do not have to report it to the government. (Doc. 1 at 6.) For transactions under $3,000,
MSBs are not usually required to collect customer information. (Doc. 1 at 7.)
On March 10, 2026, FinCEN issued the Geographic Targeting Order (“GTO”) at
issue here. Geographic Targeting Order Imposing Recordkeeping and Reporting
Requirements on Certain Money Services Businesses Along the Southwest Border, 91 Fed.
Reg. 11456–01 (Mar. 10, 2026). The GTO applies to all MSBs in Arizona’s Maricopa,
Pima, Santa Cruz, and Yuma counties, as well as regions in Texas, New Mexico, and
California. (Doc. 1 at 7–8, 12.) It requires MSBs in those regions to file a CTR for every
cash transaction of $1,000 or more. (Doc. 1 at 8.)
The March 2026 GTO expanded on earlier orders aimed at MSBs near the southwest
border. (Doc. 1 at 9–11.) In March 2025, FinCEN issued a GTO covering thirty zip codes
in Texas and California, requiring MSBs in those zip codes to file CTRs for transactions
over $200. (Doc. 1 at 10.) In September 2025, FinCEN expanded that order to include
Santa Cruz and Yuma counties and increased the reporting threshold to $1,000. (Doc. 1 at
11.) In March 2026, that GTO was expanded again to include Maricopa County, bringing
Kiosko within its purview. The GTO is set to expire in September 2026, but Kiosko notes
that FinCEN has twice renewed the earlier GTOs and has given no indication it will not
continue doing so. (Doc. 1 at 15.)
FinCEN claims the GTO was issued to “combat illicit finance by drug cartels and
other illicit actors along the southwest border.” (Doc. 1 at 9.) According to an internal
memorandum (Doc. 24-1), FinCEN believes MSBs are vulnerable to money laundering
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and money transfers through MSBs are associated with Mexico-based drug cartels (Doc. 1
at 11). The same memorandum also acknowledges “most of the business that MSBs
conduct is legitimate and essential” in providing services tailored to people without bank
accounts. (Doc. 1 at 11.) FinCEN’s memorandum states the GTO is intended to generate
leads, identify related subjects in ongoing cases, help identify potential money mules, and
provide FinCEN with a snapshot of cash transactions in the covered geographic areas.
(Doc. 1 at 11–12.)
Kiosko alleges the lowered reporting requirement threatens its survival. According
to Kiosko, it almost never completes transactions of $10,000 or more—so it rarely had to
complete CTRs when that was the threshold (Doc. 1 at 7)—but 30% to 45% of its weekly
transactions are for $1,000 or more (Doc. 1 at 16). Of Kiosko’s 12,001 money transactions
in March 2026, 4,066 were for at least $1,000 but less than $10,000. (Doc. 1 at 16.) Before
the GTO, a routine Kiosko transaction took one to two minutes. (Doc. 1 at 16.) Now,
Kiosko spends roughly ten to eighteen minutes to complete those types of transactions.
(Doc. 14 at 5.) In March 2026, Kiosko claims it required between 600 and 850 additional
labor hours to complete CTRs for the more-than-4,000 transactions affected by the new
GTO. (Doc. 14 at 5.)
Kiosko alleges the GTO has caused customer walkaways and lost transactions,
especially during peak periods. (Doc. 1 at 17.) It also alleges it will need to hire and train
at least six additional employees (one for each retail location) to collect customer
information and prepare CTRs. (Doc. 1 at 17.) As a result, Kiosko expects to close locations
or go out of business if the GTO remains in effect, because it cannot afford to hire
employees or lose customers. (Doc. 1 at 17–18.) Furthermore, Kiosko alleges the GTO will
harm its reputation because customers may view Kiosko as prying into their personal
information when banks and MSBs outside the covered geographic areas are not subject to
the same requirements. (Doc. 1 at 16.)
Kiosko filed this action the day after the GTO went into effect, seeking declaratory
and injunctive relief against FinCEN, the Department of the Treasury, and related federal
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officials. (Doc. 1.) It now moves for a temporary restraining order enjoining enforcement
of the GTO. (Doc. 14.)
II. Legal Standard
Generally, a court analyzes a request for a temporary restraining order under two
slightly-different tests. First, it must evaluate if there is a likelihood of success on the
merits, if there is a likelihood of irreparable harm, whether the balance of equities tips in
the movant’s favor, and whether an injunction would be in the public interest. Winter v.
Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). A court typically must also assess
whether “serious questions going to the merits were raised and the balance of hardships
tips sharply in the plaintiff’s favor” in addition to showing “a likelihood of irreparable
injury and that the injunction is in the public interest.” All. for the Wild Rockies v. Cottrell,
632 F.3d 1127, 1134–35 (9th Cir. 2011).
III. Analysis
Kiosko’s complaint alleges claims under the Fourth and Fifth Amendments
alongside three different claims under the Administrative Procedure Act (“APA”). Under
one APA theory, Kiosko argues the GTO is unlawful because it qualifies as a rule but was
issued without following notice-and-comment procedures. Based on the present record and
briefing, Kiosko has raised serious questions going to the merits of its notice-and-comment
claim, meaning the court need not address the viability of any other claims.
A. Merits and Serious Questions
Kiosko’s first requirement for obtaining relief is establishing either a likelihood of
success on the merits or “serious questions going to the merits.” Id. at 1134. Kiosko’s
notice-and-comment claim largely depends on what constitutes a “rule” versus an “order”
under the APA and which of those categories covers the GTO. Kiosko claims the GTO is
a rule that was improperly issued without notice and comment. (Doc. 14 at 13–15.) FinCEN
argues Congress specifically authorized it to proceed by “order” in 31 U.S.C. § 5326, and
the GTO is a temporary, geographically-limited investigatory measure rather than a rule.
(Doc. 24 at 11–12.) The limited record and briefing support Kiosko’s view.
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The APA, which the parties agree applies to FinCEN’s action, draws a distinction
between rules and orders. In general, a “rule” is the product of rulemaking, whereas an
“order” is the product of adjudication. See 5 U.S.C. § 551(4)–(7). Rulemaking promulgates
policy-type standards, while adjudication resolves disputed facts in particular cases. United
States v. Fla. E. Coast Ry. Co., 410 U.S. 224, 245 (1973). Essentially, “adjudications
resolve disputes among specific individuals in specific cases, whereas rulemaking affects
the rights of broad classes of unspecified individuals.” Yesler Terrace Cmty. Council v.
Cisneros, 37 F.3d 442, 448 (9th Cir. 1994). Adjudications usually have an immediate effect
on the specific parties before the agency, while rules are prospective and affect individuals
only after they are applied. Id. As a result, courts trying to distinguish between rules and
orders often ask whether the agency resolved a dispute involving specific parties in a
specific case or instead adopted a forward-looking requirement affecting a broad swath of
unspecified businesses. See id.; see also Novedades y Servicios, Inc. v. Fin. Crimes Enf’t
Network, 785 F. Supp. 3d 785, 806–07 (S.D. Cal. 2025). The content of an action, not the
label the agency applies, guides the analysis; when an agency promulgates what is in
substance a rule, the APA requires notice and comment.1 See 5 U.S.C. § 553; Azar v. Allina
Health Servs., 587 U.S. 566, 575 (2019); MacLean v. Dep’t of Homeland Sec., 543 F.3d
1145, 1151 (9th Cir. 2008).
The statutory framework regarding CTRs and GTOs reflects this distinction. The
Bank Secrecy Act (“BSA”) authorizes the Treasury to impose reporting and recordkeeping
requirements designed to produce information useful to criminal, tax, regulatory, and
national-security investigations. 31 U.S.C. § 5311. Under the BSA, the Treasury may
require financial institutions to report currency transactions in an amount prescribed by
regulation. 31 U.S.C. § 5313(a). Under current federal regulations, the CTR reporting
threshold applies only to transactions greater than $10,000. 31 C.F.R. § 1010.311.
1 The APA recognizes several exceptions to notice-and-comment rulemaking. For
example, notice and comment is not required for interpretive rules, general statements of
policy, rules of agency organization, procedure, or practice, or when the agency finds good
cause that notice and comment would be impracticable, unnecessary, or contrary to the
public interest. U.S.C. § 553(b)(A)–(B). FinCEN does not invoke the APA’s good-cause
exception or any other set forth in § 553.
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Congress later supplemented the BSA through the Anti-Drug Abuse Act of 1988,
allowing the Treasury to impose additional reporting and recordkeeping requirements in
areas where drug trafficking or money laundering present particular concerns.2
31 U.S.C. § 5326; see also Novedades, 785 F. Supp. 3d at 795–96. Upon finding
reasonable grounds, the Secretary “may issue an order requiring any domestic financial
institution . . . or group of domestic financial institutions . . . in a geographic area” to
obtain transaction information, maintain records, and file reports. 31 U.S.C. § 5326(a)
(emphasis added). Section 5313 authorizes ordinary CTR requirements “by regulation,”
whereas § 5326 authorizes GTOs “by order.” That difference suggests Congress intended
GTOs to issue as orders, not regulations. See Novedades, 785 F. Supp. 3d at 805–06. But
the present factual record and the terms of the GTO at issue bear little resemblance to an
“order” under the APA.
One court within the Ninth Circuit has concluded the earlier March 2025 GTO
appeared to be a rule, not an order. Novedades, 785 F. Supp. 3d at 806–08, 813. That court
reasoned that the GTO imposed new recordkeeping and reporting obligations on covered
MSBs, did not make individualized factual determinations about whether any particular
business was uniquely vulnerable to money laundering, and operated as a broad pre-
investigatory tool. Id. at 806–08. The court then held the GTO created obligations and
changed existing law, making it a rule that required notice and comment. Id. at 813. The
Western District of Texas reached the same conclusion, reasoning the earlier GTO applied
uniformly to MSBs in covered zip codes, created new prospective reporting obligations,
carried civil and criminal penalties, and did not result from an adjudicatory proceeding
involving the covered MSBs. Tex. Ass’n of Money Servs. Bus. v. Bondi, 783 F. Supp. 3d
963, 982–84 (W.D. Tex. 2025). Both cases are now on appeal. Novedades y Servicios, Inc.
v. Fin. Crimes Enf’t Network, No. 25-4238 (9th Cir. filed July 8, 2025); Tex. Ass’n of
2 Following its enactment in 1988, § 5326 was amended several times. Two of those
amendments are relevant here. In 1992, a nondisclosure provision was added, which
prohibits financial institutions and their employees from disclosing the existence of any
GTOs to which they are subject. In 2001, the maximum effective period for GTOs was
lengthened from 60 days to 180 days.
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Money Servs. Bus. v. Bondi, No. 25-50481 (5th Cir. filed June 13, 2025).
There are serious questions whether the current GTO is subject to the same
reasoning. The current GTO uses a $1,000 threshold instead of the $200 threshold earlier
GTOs applied, but that difference does not materially change the rule-order analysis. This
GTO still applies prospectively to all covered MSBs in the targeted counties and zip codes.
(Doc. 1 at 7–8, 15.) It still creates a reporting obligation that did not previously exist for
transactions between $1,000 and $10,000. (Docs. 1 at 8.) And it is not premised on any
particular dispute involving Kiosko, did not make individualized findings about Kiosko or
any group of institutions to which it might belong, and did not impose obligations based
on a particularized factual determination about Kiosko’s business. Instead, it publicly
imposes new reporting requirements on a broad class of businesses based solely on
geography. And the specified geographic scope covers a total population of nearly ten
million people. (Doc. 1 at 12.) These are the hallmarks of rulemaking, not adjudication.
See Yesler, 37 F.3d at 448; Gallo v. U.S. Dist. Ct. for Dist. of Ariz., 349 F.3d 1169, 1182
(9th Cir. 2003); see also Novedades, 785 F. Supp. 3d at 806–08.
FinCEN argues § 5326’s language allowing it to issue an order directed to a “group”
of businesses “in a geographic area” would be meaningless if it had to identify each covered
business or group based on particularized facts. (Doc. 24 at 16–18.) But acknowledging
the statute’s language does not answer whether this GTO operates as an order under the
APA. This GTO was issued publicly, applies automatically to every covered MSB in broad
geographic areas, and imposes forward-looking duties backed by civil and criminal
penalties. See Yesler, 37 F.3d at 448; Novedades, 785 F. Supp. 3d at 806–08. It therefore
looks—at least as of now—less like an adjudicatory order and more like a policy-type rule
of future effect. See 5 U.S.C. § 551(4), (6); Fla. E. Coast Ry., 410 U.S. at 245.
If the current GTO qualifies as a rule, the remaining question is whether § 5326’s
explicit authorization nevertheless allowed FinCEN to bypass notice-and-comment
procedures. At this stage, the answer appears to be “no,” or at least there is a serious
question to which the answer is likely “no.” Section 5326 states the Treasury may issue
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targeted “orders,” but nothing in that statute expressly displaces notice-and-comment
requirements if the agency action functions as a legislative rule, as the APA appears to
require. See 5 U.S.C. § 559 (requiring express language to supersede notice-and-comment
procedures). The structure of § 5326 and its implementing regulation further support that
conclusion: § 5326(c) includes a nondisclosure provision for entities receiving a GTO, and
the regulation provides that an order issued under § 5326 “shall be directed to the Chief
Executive Officer” of that entity. 31 C.F.R. § 1010.370(b), (e). Together, those provisions
suggest what lawmakers contemplated—both when § 5326(a) was enacted and when it was
left unchanged through later amendments—was a targeted order issued directly to specified
entities or groups of entities, not a publicly-issued measure imposing broadly-applicable
reporting duties on a category of entities that includes thousands of businesses across
several states.
FinCEN has not identified any other BSA provision expressly authorizing the
Treasury to impose binding legislative rules without notice and comment. Nor has it
invoked the APA’s ordinary exemptions for interpretive rules, policy statements,
procedural rules, or good cause. See 5 U.S.C. § 553(b)(A)–(B). And FinCEN has identified
no limits to what it claims is the Treasury’s authority under § 5326: taking its logic to the
extreme, by defining the “geographic area” as the United States, FinCEN could
theoretically circumvent the BSA’s requirement that reporting obligations be set by
regulation entirely (in successive 180-day increments). See 31 U.S.C. § 5313(a). That
reading would create serious tension between § 5313 and § 5326, and courts generally
avoid interpretations that make statutory provisions conflict or render one part of a statutory
scheme superfluous. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132–
33 (2000); TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001).
Taken together, Kiosko has raised serious questions as to whether FinCEN was
required to use notice-and-comment rulemaking before issuing the GTO. Because this
conclusion is sufficient for purposes of resolving Kiosko’s TRO motion, the court need
not, and does not, address Kiosko’s remaining theories.
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B. Likelihood of Irreparable Harm
Economic harm “is not generally considered irreparable.” E. Bay Sanctuary
Covenant v. Biden, 993 F.3d 640, 677 (9th Cir. 2021). But “[t]he threat of being driven out
of business is sufficient to establish irreparable harm.” hiQ Labs, Inc. v. LinkedIn Corp.,
31 F.4th 1180, 1188 (9th Cir. 2022). Additionally, when a plaintiff provides “specific
evidence that its reputation and goodwill [are] likely to be irreparably harmed,” this more-
intangible injury may also qualify as irreparable. adidas Am., Inc. v. Skechers USA, Inc.,
890 F.3d 747, 761 (9th Cir. 2018); see also Rent-A-Ctr., Inc. v. Canyon Television &
Appliance Rental, Inc., 944 F.2d 597, 603 (9th Cir. 1991).
Kiosko has shown a likelihood of irreparable harm. The GTO requires Kiosko to
collect and report detailed personal information for many routine transactions that
previously did not trigger federal reporting requirements. (Docs. 1 at 8; 14 at 1–2.) In
March 2026, more than 4,000 of Kiosko’s transactions were newly subject to those
requirements, and Kiosko estimates the added collection and reporting process required
between 600 and 850 additional labor hours that month. (Docs. 14 at 5; 26 at 11–12.)
Kiosko argues it cannot absorb those added labor costs while maintaining all six locations,
and that it may be forced to close most or all of its locations if the GTO remains in effect.
(Docs. 14 at 7; 26 at 12.) That is enough to show more than ordinary economic harm.
The record also supports harm to Kiosko’s customers and goodwill. Kiosko serves
customers who rely on MSBs for everyday transactions such as cashing paychecks, paying
rent, and sending money to family. (Doc. 1 at 4.) It claims some customers have declined
to complete transactions after learning they must provide additional personal information,
and argues others may take their business to banks or MSBs in nearby counties not covered
by the GTO. (Doc. 14 at 7–8.) The GTO therefore places Kiosko in the position of asking
customers for sensitive information during routine transactions, increasing transaction
time, and risking customer frustration during peak periods. (Docs. 14 at 5, 7–8; 26 at 11–
12.) Those circumstances are enough to show likely loss of customers and goodwill, which
“do[] not readily lend [themselves] to calculable money damages.” Epic Games, Inc. v.
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Apple, Inc., 67 F.4th 946, 1003 (9th Cir. 2023). The record is therefore sufficient to show
likely irreparable harm absent temporary relief.
C. Balance of Equities and Public Interest
The court must also “weigh the damage to each [party] in determining the balance
of the equities.” CTIA - The Wireless Ass’n v. City of Berkeley, Cal., 928 F.3d 832, 852
(9th Cir. 2019) (simplified). The “damage to each” is measured as “the effect on each party
of the granting or withholding of the requested relief.” Winter, 555 U.S. at 24. When
defendants are federal agencies and officials, the balance-of-equities and public-interest
factors merge. See Nken v. Holder, 556 U.S. 418, 435 (2009); Drakes Bay Oyster Co. v.
Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014). And when a plaintiff raises serious questions
that an agency failed to comply with required APA procedures, the public interest is served
by ensuring the agency acts within the bounds set by Congress. See California v. Azar, 911
F.3d 558, 581–82 (9th Cir. 2018); see also Novedades, 785 F. Supp. 3d at 822.
The situation here favors temporary relief. Without a TRO, Kiosko faces substantial
compliance burdens, loss of customers, harm to goodwill, and possible closure of most or
all of its locations. FinCEN identifies an important public interest in combating money
laundering and cartel activity, but granting temporary relief would not prevent FinCEN
from enforcing the ordinary BSA reporting regime or using other lawful tools to generate
leads to investigate illicit financial activity. It would merely preserve the pre-GTO status
quo while the court considers the matter further. On this record, the likely harm to Kiosko
from immediate enforcement and the public interest sharply outweigh FinCEN’s interest
in enforcing the new reporting threshold before further review. See California, 911 F.3d at
581–82; Novedades, 785 F. Supp. 3d at 822.
IV. Relief Granted and Scope
Kiosko has shown it is likely to succeed or has raised serious questions on its notice-
and-comment claim, has shown likely irreparable harm, and has shown the balance of
equities and public interest favor temporary relief. But the statewide injunction Kiosko
requests (Docs. 14 at 20–21; 26 at 13–14) is broader than necessary to provide complete
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relief to the plaintiff before the court. See Trump v. CASA, Inc., 606 U.S. 831, 851–52
(2025). Accordingly, defendants are temporarily restrained from enforcing the GTO’s
requirement that Kiosko file CTRs for cash transactions of $1,000 or more that would not
otherwise be reportable under ordinary CTR regulations. The temporary restraining order
will expire on May 22, 2026, and the court declines to require a bond.
If Kiosko intends to seek a preliminary injunction, it must file its motion by May
15, 2026. If such a motion is filed, FinCEN’s response will be due May 22, 2026, and
Kiosko’s reply on May 27, 2026. The parties must address the following questions in any
preliminary injunction briefing: (1) what do the terms “group of domestic financial
institutions” and “geographic area” in 31 U.S.C. § 5326 mean, and do those phrases or any
other statutory language impose limits on the Treasury’s authority to issue a GTO?; (2)
what is the relevance, if any, of 5 U.S.C. § 559 in interpreting 31 U.S.C. § 5326?; (3) in
broad terms, when has the Treasury previously issued GTOs and has any previous GTO
ever affected a comparable number of financial entities? With respect to Kiosko’s claim
that FinCEN has violated the APA because the GTO is arbitrary and capricious, the parties
must also discuss the factual basis for extending the GTO to cover Maricopa County, which
is not “along the southwest border” (Doc. 24-1 at 2), and provide unredacted copies—under
seal and subject to a protective order, if necessary—for all portions of the February 26
Information Memorandum pertaining to Maricopa County. Both parties shall also indicate
their view on whether there are any contested facts bearing on the issuance of a preliminary
injunction such that an evidentiary hearing should be held. A hearing on any motion for
preliminary injunction will be held on June 1, 2026, and will consist of oral argument if no
further evidentiary development is needed.
/
/
/
/
/
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IT IS ORDERED the Motion for Temporary Restraining Order (Doc. 14) is
GRANTED.
IT IS FURTHER ORDERED defendants are temporarily restrained from
requiring Kiosko to file CTRs under the March 2026 GTO for transactions of $1,000 or
more that would not otherwise be reportable under existing CTR regulations.
Dated this 8th day of May, 2026.
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