Federal Law

After All American was Frazzled by Fifth Circuit Judge Higginbotham, The Flamin’ Arguments Continue at the US Supreme Court

All American also notes in its reply brief that a group of 11 (Republican) state Attorneys General have filed an amicus brief in support of All American’s petition – a payday lender.

CFPB files opposition to All American Check Cashing’s cert petition; All American replies

19 Nov., 2019

Although the CFPB now agrees that its structure is unconstitutional, it has filed a brief opposing the Petition for a Writ of Certiorari Before Judgment filed by All American Check Cashing with the U.S. Supreme Court.

All American’s interlocutory appeal from the district court’s ruling upholding the CFPB’s constitutionality is still pending before the Fifth Circuit (and a second oral argument is scheduled for December 4).

In its petition, All American argued that “there is nothing to be gained by waiting [for the Fifth Circuit’s decision]” because the arguments regarding the CFPB’s constitutionality have already been exhaustively explored in the circuit courts.

Having filed its petition before the Supreme Court granted Seila Law’s certiorari petition, All American argued that its case was a better vehicle than Seila Law for deciding the constitutionality question but that, at a minimum, its case should be heard as a companion case to Seila Law.

All American’s petition presents two questions: whether the CFPB’s structure violates the separation of powers and whether a constitutional defect would entitle a company subject to a CFPB enforcement action to “meaningful relief, such as dismissal of the action.”

In addition to arguing in its opposition that granting All American’s petition “would do nothing to enhance” the Supreme Court’s consideration of the constitutionality question also presented in Seila Law, the CFPB argues that All American’s second question does not warrant Supreme Court review.

According to the Bureau, “lower courts have not yet addressed the particular issue here—whether an enforcement action that was filed by an official who was unconstitutionally insulated from removal by the President must be dismissed even where an official fully accountable to the President decides that it should move forward.”

The Bureau observes that there is no circuit conflict on related remedial issues, with “the few reasoned decisions that address related issues [agreeing] that [a separation-of-powers violation] does not compel invalidation of the agency’s action if those actions are subsequently approved in compliance with separation-of-powers requirements.”

In addition, the Bureau notes that “the ratification is implicated in at most a handful of cases” and asserts that the courts “adjudicating those cases can decide that issue in the first instance if an when doing so becomes necessary.” (The Bureau states in a footnote that the constitutional issue has not been preserved in all of the 19 enforcement actions it currently has pending.)

Finally, the CFPB asserts that All American’s argument that the proper remedy for a constitutional violation is dismissal of the CFPB’s enforcement action is wrong on the merits because ratification by a CFPB Director who is subject to appropriate Executive oversight can cure any constitutional defect.

“The Burkes would suggest on review of this oral argument, where Ms. Walker was literally incinerated in the first 22 minutes by JPEH, the All American lawyers went back to Washington, took stock of the disastrous oral argument and advised their client that they felt the Fifth Circuit had left counsel, and their case, suffering from first degree burns, and as such they had no skin to lose but they did have a slim chance of a lifesaving skin graft by going direct to the US Supreme Court, thus snubbing the Fifth for their incivility in the oral proceedings and taking all the oxygen out of counsels’ lungs.”

In its reply brief, All American reasserts its argument that actions by an unconstitutional agency cannot be made valid through ratification and that “[t]he only remedy to address the CFPB’s structural flaws is dismissal.”

It also argues that its case presents “a crucial companion issue to the merits question that the Court will resolve in Seila Law” and “the only opportunity for the Court to consider the full remedial consequences of the CFPB’s unconstitutionality.”

All American contends that if the Court does not resolve the remedial question now, it will haunt the CFPB’s pending enforcement actions “not to mention other invalid CFPB actions, and cases concerning the acts of the Federal Housing Finance Agency or any other unconstitutionally structured agency.”

All American states that it is “prepared to expedite briefing in this case to allow it to be heard together with Seila Law.”

It suggests a briefing schedule “in which the opening brief is filed 14 days after the petition is granted [which] would allow the CFPB to have the full 30 days to respond, and still enable this Court to schedule this case, as well as Seila Law, as early as February.”

All American also notes in its reply brief that a group of 11 (Republican) state Attorneys General have filed an amicus brief in support of All American’s petition. In their brief, the AGs also reject the CFPB’s ratification argument.

They urge the Supreme Court to resolve the “lingering question of whether the appropriate remedy [for the CFPB’s unconstitutionality] changes simply because an actor who claims to be removable at will purports to ratify the decision of an otherwise unconstitutional agency” and assert that “delay will only serve to prolong confusion in the multi-billion-dollar market in consumer financial products.”

The briefs in All American have been distributed for the Supreme Court’s conference on December 6.

While the Supreme Court might grant All American’s petition and make All American a companion case to Seila Law, it might instead grant the petition but hold All American until it decides Seila Law.

General Docket
United States Court of Appeals for the Fifth Circuit
Court of Appeals Docket #: 18-60302 Docketed: 04/24/2018
Nature of Suit: 2890 Other Statutory Actions
Consum Fincl Protc Bur v. All Amer Check Cashing, Inc., et al
Appeal From: Southern District of Mississippi, Jackson
Fee Status: Fee Paid
Case Type Information:
     1) United States Civil
     2) United States
     3)
Originating Court Information:
     District: 0538-3 : 3:16-CV-356
     Originating Judge: William H. Barbour, Jr., U.S. District Judge
     Date Filed: 05/11/2016
     Date NOA Filed:      Date Rec’d COA:
     04/24/2018      04/24/2018

09/06/2019 Open Document CLERK ORDER granting motion to withdraw as counsel Matthew Waring for Chamber of Commerce of the United States of America filed by Amicus Curiae Chamber of Commerce of the United States of America [9138644-2] [18-60302] (MCS) [Entered: 09/06/2019 09:35 AM]
09/10/2019 Open Document COURT DIRECTIVE ISSUED directing the parties to file simultaneous letter briefs, not to exceed ten pages, by 10/10/19, addressing what action this court should take in light of NO. 17-20364, Collins v. Mnuchin, 2019 U.S. App. LEXIS 27001 (5th Cir. Sept. 6, 2019) (en banc) The parties may file simultaneous reply letter briefs, not to exceed three pages, by 10/24/19. [9141419-2] A/Pet Supplemental Brief due on 10/10/2019 for Appellants All American Check Cashing, Incorporated, Michael E Gray and Mid-State Finance, Incorporated.. E/Res Supplemental Brief due on 10/10/2019 for Appellee Consumer Financial Protection Bureau. [18-60302] (MCS) [Entered: 09/10/2019 02:55 PM]
09/18/2019 Open Document LETTER filed by Consumer Financial Protection Bureau advising the court of the change in their position on a matter. [18-60302]
REVIEWED AND/OR EDITED – The original text prior to review appeared as follows: LETTER filed by Appellee Consumer Financial Protection Bureau Notification to the Court of a change in the Bureau’s position regarding the constitutionality of the for-cause removal provision in the Consumer Financial Protection Act.. Date of Service: 09/18/2019 via email – Attorney for Amici Curiae: Bayne, Dunford, Gottridge, Hawkins, Mapes, Nelson, Pincus, Shapiro, Watterson, Wuertz, Wurman, Wydra, Zieve; Attorney for Appellants: Christiansen, Conner, Cory, Danks, Lipshutz, Olson, Shelfer, Walker; Attorney for Appellees: Deal, DeMille-Wagman [18-60302] (Lawrence W. DeMille-Wagman ) [Entered: 09/18/2019 08:32 AM]
10/10/2019 Open Document APPELLANTS’ SUPPLEMENTAL LETTER BRIEF FILED. A/Pet’s Supplemental Brief deadline satisfied [18-60302]
REVIEWED AND/OR EDITED – The original text prior to review appeared as follows: APPELLANT’S SUPPLEMENTAL BRIEF FILED by All American Check Cashing, Incorporated, Mr. Michael E Gray and Mid-State Finance, Incorporated. Date of service: 10/10/2019 via email – Attorney for Amici Curiae: Bayne, Dunford, Gottridge, Hawkins, Mapes, Nelson, Pincus, Shapiro, Watterson, Wuertz, Wurman, Wydra, Zieve; Attorney for Appellants: Christiansen, Conner, Cory, Danks, Lipshutz, Olson, Shelfer, Walker; Attorney for Appellees: Deal, DeMille-Wagman [18-60302] (Theodore Olson ) [Entered: 10/10/2019 10:05 AM]
10/10/2019 Open Document APPELLEE’S SUPPLEMENTAL LETTER BRIEF FILED. E/Res’s Supplemental Brief deadline satisfied [18-60302]
REVIEWED AND/OR EDITED – The original text prior to review appeared as follows: APPELLEE’S SUPPLEMENTAL BRIEF FILED by Consumer Financial Protection Bureau Date of service: 10/10/2019 via email – Attorney for Amici Curiae: Bayne, Dunford, Gottridge, Hawkins, Mapes, Nelson, Pincus, Shapiro, Watterson, Wuertz, Wurman, Wydra, Zieve; Attorney for Appellants: Christiansen, Conner, Cory, Danks, Lipshutz, Olson, Shelfer, Walker; Attorney for Appellees: Deal, DeMille-Wagman [18-60302] (Lawrence W. DeMille-Wagman ) [Entered: 10/10/2019 02:31 PM]
10/24/2019 Open Document SUPPLEMENTAL REPLY LETTER BRIEF FILED filed by All American Check Cashing, Incorporated, Michael E. Gray and Mid-State Finance, Incorporated. [18-60302]
REVIEWED AND/OR EDITED – The original text prior to review appeared as follows: SUPPLEMENTAL REPLY BRIEF FILED by All American Check Cashing, Incorporated, Mr. Michael E Gray and Mid-State Finance, Incorporated Date of service: 10/24/2019 [18-60302] (Theodore Olson ) [Entered: 10/24/2019 11:35 AM]
10/24/2019 Open Document SUPPLEMENTAL REPLY LETTER BRIEF FILED BY Appellee. [18-60302]
REVIEWED AND/OR EDITED – The original text prior to review appeared as follows: SUPPLEMENTAL REPLY BRIEF FILED by Consumer Financial Protection Bureau Date of service: 10/24/2019 [18-60302] (Lawrence W. DeMille-Wagman ) [Entered: 10/24/2019 02:07 PM]
10/25/2019 Open Document CASE CALENDARED for oral argument on Wednesday, 12/04/2019, in the En Banc Courtroom, Room 209, of the John Minor Wisdom United States Court of Appeals Building, 600 Camp Street, New Orleans, LA. [18-60302] (GAM) [Entered: 10/25/2019 03:02 PM]
10/29/2019 Open Document LETTER filed by Appellants All American Check Cashing, Incorporated, Michael E. Gray, Mid-State Finance, Incorporated and Appellee Consumer Financial Protection Bureau requesting court clarify scope of December 4 Oral Argument. [18-60302]
REVIEWED AND/OR EDITED – The original text prior to review appeared as follows: LETTER filed by Appellants All American Check Cashing, Incorporated, Mr. Michael E Gray and Mid-State Finance, Incorporated Requesting Court Clarify Scope of December 4 Oral Argument. Date of Service: 10/29/2019 via email – Attorney for Amici Curiae: Bayne, Dunford, Gottridge, Hawkins, Mapes, Nelson, Pincus, Shapiro, Watterson, Wuertz, Wurman, Wydra, Zieve; Attorney for Appellants: Christiansen, Conner, Cory, Danks, Lipshutz, Olson, Shelfer, Walker; Attorney for Appellees: Deal, DeMille-Wagman [18-60302] (Helgard Clarice Walker ) [Entered: 10/29/2019 11:54 AM]
10/30/2019 Open Document COURT DIRECTIVE ISSUED. The court’s response to appellants and appellee’s joint letter requesting clarification regarding the scope of the issues to be addressed at the December 4 Oral Argument [18-60302] (MCS) [Entered: 10/30/2019 01:49 PM]

18-60302 Consum Fincl Protc Bur v. All Amer Check Cashing, Inc., et al

Associated Case Short Title Type Start End Status
17-20364 Patrick Collins, et al v. Steven Mnuchin, Secretary, et al Related 04/30/2018 closed

 

Originating Case Lead Case Filed Execution Date Judgment NOA Originating Judge Court Reporter
3:16-CV-356 05/11/2016 04/24/2018 Barbour, William H. Jr.

 

Party Party Type Terminated from Case Attorney
Consumer Financial Protection Bureau Plaintiff-Appellee DeMille-Wagman,Lawrence W.
Deal,Christopher J.
All American Check Cashing, Incorporated Defendant-Appellant Christiansen,Jeremy Max
Conner,Bentley Edd
Danks,Dale Jr.
Lipshutz,Joshua Seth
Olson,Theodore
Shelfer,Lochlan Francis
Walker,Helgard Clarice
Cory,Michael Verdier Jr.
Mid-State Finance, Incorporated Defendant-Appellant Christiansen,Jeremy Max
Conner,Bentley Edd
Danks,Dale Jr.
Lipshutz,Joshua Seth
Olson,Theodore
Shelfer,Lochlan Francis
Walker,Helgard Clarice
Cory,Michael Verdier Jr.
Gray, Michael E Defendant-Appellant Christiansen,Jeremy Max
Conner,Bentley Edd
Danks,Dale Jr.
Lipshutz,Joshua Seth
Olson,Theodore
Shelfer,Lochlan Francis
Walker,Helgard Clarice
Cory,Michael Verdier Jr.

 

Attorney Party Type(s) Represented Representation End
DeMille-Wagman, Lawrence W. Plaintiff-Appellee
Nelson, Scott Lawrence
Olson, Theodore Defendant-Appellant
Danks, Dale Jr. Defendant-Appellant
Zieve, Allison M.
Conner, Bentley Edd Defendant-Appellant
Cory, Michael Verdier Jr. Defendant-Appellant
Shapiro, Ilya
Walker, Helgard Clarice Defendant-Appellant
Keller, Scott A. 09/12/2018
Hawkins, Kyle Douglas
Hawkins, Kyle Douglas 07/11/2019
Wurman, Ilan
Wydra, Elizabeth Bonnie
Lipshutz, Joshua Seth Defendant-Appellant
Pincus, Andrew John
Waring, Matthew A. 09/06/2019
Christiansen, Jeremy Max Defendant-Appellant
Shelfer, Lochlan Francis Defendant-Appellant
Deal, Christopher J. Plaintiff-Appellee
Dunford, Oliver J.
Dunford, Oliver J. 10/01/2019
Gottridge, Marc
Gottridge, Marc 04/29/2019
Wuertz, Allison Michele
Watterson, Colin Michael
Bayne, Jeffrey Michael
Mapes, Katharine M.
Hammoud, Fadwa A. 07/11/2019

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