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Related Court case activity.
Interesting docket entry in the related CFPB constitutionality case.
I think the 5th circuit may be working both cases for uniformity in the constitutionality opinion, thus some delay.
I could be in error, but activity in this CFPB case could be a welcome sign.
-Havoc
In the United States Court of Appeals
for the Fifth Circuit
Consumer Financial Protection Bureau,
Plaintiff-Appellee,
v.
All American Check Cashing, Incorporated; Mid-State
Finance, Incorporated; Michael E. gray, Individually,
Defendants-Appellants.
On Appeal from the United States District Court
for the Southern District of Mississippi,
in Civil Action No. 3:16-cv-356
CORRECTED BRIEF OF THE STATES OF TEXAS,
ARKANSAS, GEORGIA, INDIANA, KANSAS, LOUISIANA,
NEBRASKA, OKLAHOMA, SOUTH CAROLINA, TENNESSEE,
UTAH, WEST VIRGINIA, AND PAUL R. LEPAGE, GOVERNOR
OF MAINE, AS AMICI CURIAE IN SUPPORT OF
APPELLANTS
Ken Paxton
Attorney General of Texas
Jeffrey C. Mateer
First Assistant Attorney General
Office of the Attorney General
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
Tel.: (512) 936-1700
Fax: (512) 474-2697
Kyle D. Hawkins
Solicitor General
kyle.hawkins@oag.texas.gov
Counsel for Amici Curiae
Table of Contents
Page
Table of Authorities ................................................................................................ iii
Interest of Amici Curiae ........................................................................................... 1
Introduction ............................................................................................................. 3
Argument ................................................................................................................. 5
I. The CFPB’s Structure Violates the Constitution’s Separation of
Powers. ....................................................................................................... 6
A. The President Must Retain the Power to Remove at Will the
Heads of Single-Director Agencies. ..................................................... 6
B. Congress May Restrict the President’s Removal Power Only
As to Independent, Multi-Headed Commissions. ............................... 9
C. The CFPB’s Structure Violates the Constitution Because It
Vests Unchecked Power in a Single Director Removable Only
for Cause. ........................................................................................... 12
II. The CFPB’s Unconstitutional Structure Renders All Its Actions
Unlawful. .................................................................................................. 14
A. The Court Should Invalidate the CFPB’s Enforcement
Action. ............................................................................................... 14
B. The Court Should Disagree with the D.C. Circuit’s Recent
Decision Upholding the CFPB. .......................................................... 15
Conclusion .............................................................................................................. 16
Certificate of Service .............................................................................................. 18
Certificate of Compliance ...................................................................................... 18
No. 18-60302
In the United States Court of Appeals
for the Fifth Circuit
Consumer Financial Protection Bureau,
Plaintiff-Appellee,
v.
All American Check Cashing, Incorporated; Mid-State
Finance, Incorporated; Michael E. gray, Individually,
Defendants-Appellants.
On Appeal from the United States District Court
for the Southern District of Mississippi,
in Civil Action No. 3:16-cv-356
CORRECTED BRIEF OF THE STATES OF TEXAS,
ARKANSAS, GEORGIA, INDIANA, KANSAS, LOUISIANA,
NEBRASKA, OKLAHOMA, SOUTH CAROLINA, TENNESSEE,
UTAH, WEST VIRGINIA, AND PAUL R. LEPAGE, GOVERNOR
OF MAINE, AS AMICI CURIAE IN SUPPORT OF
APPELLANTS
Ken Paxton
Attorney General of Texas
Jeffrey C. Mateer
First Assistant Attorney General
Office of the Attorney General
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
Tel.: (512) 936-1700
Fax: (512) 474-2697
Kyle D. Hawkins
Solicitor General
kyle.hawkins@oag.texas.gov
Counsel for Amici Curiae
Case: 18-60302 Document: 00515057449 Page: 1 Date Filed: 07/31/2019
Table of Contents
Page
Table of Authorities ................................................................................................ iii
Interest of Amici Curiae ........................................................................................... 1
Introduction ............................................................................................................. 3
Argument ................................................................................................................. 5
I. The CFPB’s Structure Violates the Constitution’s Separation of
Powers. ....................................................................................................... 6
A. The President Must Retain the Power to Remove at Will the
Heads of Single-Director Agencies. ..................................................... 6
B. Congress May Restrict the President’s Removal Power Only
As to Independent, Multi-Headed Commissions. ............................... 9
C. The CFPB’s Structure Violates the Constitution Because It
Vests Unchecked Power in a Single Director Removable Only
for Cause. ........................................................................................... 12
II. The CFPB’s Unconstitutional Structure Renders All Its Actions
Unlawful. .................................................................................................. 14
A. The Court Should Invalidate the CFPB’s Enforcement
Action. ............................................................................................... 14
B. The Court Should Disagree with the D.C. Circuit’s Recent
Decision Upholding the CFPB. .......................................................... 15
Conclusion .............................................................................................................. 16
Certificate of Service .............................................................................................. 18
Certificate of Compliance ...................................................................................... 18
Case: 18-60302 Document: 00515057449 Page: 2 Date Filed: 07/31/2019
iii
Table of Authorities
Page(s)
Cases
Bowsher v. Synar,
478 U.S. 714 (1986) .................................................................................... 7, 8, 14
Consumer Financial Protection Bureau v. RD Legal Funding, LLC,
No. 17-CV-890 (LAP), 2018 WL 3094916 (S.D.N.Y. June 21, 2018) ............ 4, 15
Free Enter. Fund v. Public Co. Accounting Oversight Bd.,
561 U.S. 477 (2010) ........................................................................... 7, 8, 9, 11, 14
Ex parte Hennen,
38 U.S. (13 Pet.) 230 (1839) ................................................................................ 8
Humphrey’s Ex’r v. United States,
295 U.S. 602 (1935) .............................................................................. 4, 9, 10, 11
Massachusetts v. EPA,
549 U.S. 497 (2007) ............................................................................................ 1
Metro. Washington Airports Auth. v. Citizens for Abatement of Aircraft
Noise, Inc., 501 U.S. 252 (1991) ........................................................................... 3
Morrison v. Olson,
487 U.S. 654 (1988) (Scalia, J., dissenting) .................................................... 3, 13
Myers v. United States,
272 U.S. 52 (1926) ................................................................................. 7, 8, 9, 12
NLRB v. Noel Canning,
134 S. Ct. 2550 (2014) ....................................................................................... 12
PHH Corp. v. Consumer Fin. Prot. Bureau,
881 F.3d 75 (D.C. Cir. 2018) (en banc) ....................................................... passim
Printz v. United States,
521 U.S. 898 (1997) .......................................................................................... 6-7
Case: 18-60302 Document: 00515057449 Page: 3 Date Filed: 07/31/2019
iv
Texas v. United States,
809 F.3d 134 (5th Cir. 2015), aff’d by equally divided Court, 136 S.
Ct. 2271 (2016) (per curiam) ............................................................................... 1
Wiener v. United States,
357 U.S. 349 (1958) ............................................................................................ 11
Constitutional Provisions, Statutes, and Rules
12 U.S.C.
§ 5491(b) ........................................................................................................ 3, 12
§ 5491(c) ........................................................................................................ 3, 13
§ 5491(c)(3) ......................................................................................................... 3
§ 5511(a) .............................................................................................................. 5
§ 5511(c) .............................................................................................................. 6
§ 5512(b)(1) ........................................................................................................ 13
§ 5514(b) ............................................................................................................ 13
§ 5515(b) ............................................................................................................ 13
§ 5516(c) ............................................................................................................ 13
§ 5562.................................................................................................................. 6
§ 5562(c) ............................................................................................................ 13
§ 5563 .................................................................................................................. 6
§ 5563(a) ............................................................................................................ 13
§ 5564................................................................................................................. 13
§ 5565 .................................................................................................................. 6
U.S. Const. art. II
§ 1, cl. 1 ............................................................................................................... 6
§ 3 ....................................................................................................................... 6
Other Authorities
1 Annals of Cong. 463 (1789) (Joseph Gales ed., 1834) ............................................ 7
51 Cong. Rec. 10,376 (1914) ..................................................................................... 4
3 Joseph Story, Commentaries on the Constitution of the United
States § 1414, at 283 (1833) ................................................................................. 7
Case: 18-60302 Document: 00515057449 Page: 4 Date Filed: 07/31/2019
v
Agreed Order, All American Check Cashing, Inc. v. Corley,
No. G-2017-699 S/2 (Chancery Ct. of the 1st Judicial Dist. Hinds
Cty., Miss. June 9, 2017),
www.dbcf.state.ms.us/documents/aacc_agreed_060917
.pdf ..................................................................................................................... 15
Akhil Reed Amar, AMERICA’S CONSTITUTION: ABIOGRAPHY 197
(2005) ................................................................................................................. 6
THE FEDERALIST No. 70 .......................................................................................... 9
Kirti Datla & Richard L. Revesz, Deconstructing Independent Agencies
(and Executive Agencies), 98 CORNELL L. REV. 769 (2013) ................................. 12
Media Release, State of Mississippi Department of Banking and
Consumer Finance (May 12, 2017),
http://www.dbcf.state.ms.us/documents/pr051217.pdf ............................. 14, 15
Neomi Rao, Removal: Necessary and Sufficient for Presidential Control,
65 ALA. L. REV. 1205 (2014) ............................................................................. 7-8
Senate Committee on Governmental Affairs, Study on Federal
Regulation, S. Doc. No. 95-91, vol. 5, at 35 (1977) ........................................... 4-5
Case: 18-60302 Document: 00515057449 Page: 5 Date Filed: 07/31/2019
Interest of Amici Curiae
Amici are the States of Texas, Arkansas, Georgia, Indiana, Kansas, Louisiana, Nebraska, Oklahoma, South Carolina, Tennessee, Utah, West Virginia,
and Paul R. LePage, Governor of Maine. States have “special solicitude” to
challenge unlawful federal Executive Branch actions. Massachusetts v. EPA,
549 U.S. 497, 520 (2007). Courts have long recognized that the States guard
“the public interest in protecting separation of powers by curtailing unlawful
executive action.” Texas v. United States, 809 F.3d 134, 187 (5th Cir. 2015),
aff’d by equally divided Court, 136 S. Ct. 2271 (2016) (per curiam).
In this case, the Consumer Financial Protection Bureau (CFPB) has
wielded its unchecked power to bring an enforcement action against All American Check Cashing, Inc. and other entities (collectively, “All American”),
alleging deceptive trade practices. States enforce robust consumer protections, and indeed have severely sanctioned All American for its unlawful conduct. If federal agencies wish to assist States in protecting consumers and policing deceptive trade practices, they must do so in a manner consistent with
Article II of the Constitution. For the reasons set out below, the CFPB’s structure violates the Constitution. The CFPB thus has no authority to bring the
enforcement action at issue in this case.
Case: 18-60302 Document: 00515057449 Page: 6 Date Filed: 07/31/2019
2
Amici therefore ask this Court to declare the CFPB’s structure unconstitutional.1
1
Neither amici nor counsel received any monetary contributions intended
to fund preparing or submitting this brief. No party’s counsel authored this
brief in whole or in part.
Case: 18-60302 Document: 00515057449 Page: 7 Date Filed: 07/31/2019
3
Introduction
The “ultimate purpose” of our Constitution’s separation of powers “is
to protect the liberty and security of the governed.” Metro. Washington Airports Auth. v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 272
(1991). That is why the Framers “viewed the principle of separation of powers
as the absolutely central guarantee of a just Government.” Morrison v. Olson,
487 U.S. 654, 697 (1988) (Scalia, J., dissenting). This case calls upon the Court
to vindicate that principle by striking down the unlawful action of an administrative agency built around a single unaccountable and unchecked administrator.
That agency—the CFPB—was created in 2010 under the Dodd-Frank
Act. Charged with enforcing various federal consumer-protection laws, the
CFPB is headed by a single director—not a board or a group of commissioners.
The director is appointed by the President, with the advice and consent of the
Senate, to a five-year term. 12 U.S.C. § 5491(b), (c). He may be removed by
the President only for “inefficiency, neglect of duty, or malfeasance in office.”
Id. § 5491(c)(3).
That structure is unprecedented. Before the CFPB’s creation, “[n]o independent agency exercising substantial executive authority ha[d] ever been
headed by a single person.” PHH Corp. v. Consumer Fin. Prot. Bureau, 881 F.3d
75, 165 (D.C. Cir. 2018) (en banc) (Kavanaugh, J., dissenting) (emphasis in
original). As Judge Kavanaugh of the D.C. Circuit recently observed, “the Director of the CFPB possesses more unilateral authority—that is, authority to
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4
take action on one’s own, subject to no check—than any single commissioner
or board member in any other independent agency in the U.S. Government.”
Id. at 165-66 (Kavanaugh, J., dissenting). Indeed, “other than the President,
the Director enjoys more unilateral authority than any other official in any of
the three branches of the U.S. Government.” Id. at 166 (Kavanaugh, J., dissenting); see also Consumer Financial Protection Bureau v. RD Legal Funding,
LLC, No. 17-CV-890 (LAP), 2018 WL 3094916, at *35 (S.D.N.Y. June 21,
2018) (finding the CFPB’s structure unconstitutional for the reasons identified by Judge Kavanaugh).
The Constitution forbids concentrated, unchecked authority in a sole, unaccountable director of an administrative agency charged with wielding executive power. And with good reason: a single-headed agency lacks the critical
structural attributes that have historically justified multi-member regulatory
commissions. Courts have permitted multi-member commissions on the basis
that such a structure poses less threat to individual liberty than does a singleheaded commission. See, e.g., Humphrey’s Ex’r v. United States, 295 U.S. 602,
629 (1935); see also 51 Cong. Rec. 10,376 (1914) (Federal Trade Commission
“would have precedents and traditions and a continuous policy and would be
free from the effect of . . . changing incumbency”). An agency built around a
sole director, by contrast, is unchecked by the constraints of group decisionmaking among members appointed by different Presidents. PHH Corp.,
881 F.3d at 166, 178 (Kavanaugh, J., dissenting) (citing Senate Committee on
Governmental Affairs, Study on Federal Regulation, S. Doc. No. 95-91, vol. 5,
Case: 18-60302 Document: 00515057449 Page: 9 Date Filed: 07/31/2019
5
at 35 (1977)). A single director, in other words, “poses a far greater risk of
arbitrary decisionmaking and abuse of power, and a far greater threat to individual liberty, than a multimember independent agency does.” Id. at 166 (Kavanaugh, J., dissenting).
In this case, the CFPB brought that unchecked power to bear on All American for allegedly unlawful trade practices. It has done so free from any oversight by the Executive. Amici take no position on the propriety or legality of
the business activities targeted in the CFPB’s enforcement action in this case.
Whatever those merits may be, the CFPB has no power to litigate them, because the CFPB’s structure renders it unconstitutional. It follows that any action the CFPB undertakes is necessarily invalid.
Combating unlawful trade practices is among a State’s most important
responsibilities. The extent to which federal administrative agencies should
involve itself in consumer protection is debatable; what is not debatable,
though, is the duty to comply with the Constitution. The Court should reverse
the decision below.
Argument
The CFPB has the power to “seek to implement and, where applicable,
enforce Federal consumer financial law” as a means of ensuring that “all consumers have access to markets for consumer financial products and services”
and that the markets for such products and services are “fair, transparent, and
competitive.” 12 U.S.C. § 5511(a). The CFPB furthermore may prescribe
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6
rules implementing consumer-protection laws; conduct investigations of market actors; and enforce consumer-protection laws in administrative proceedings and in federal court, including through civil monetary penalties. See, e.g.,
id. §§ 5511(c), 5562, 5563, 5565.
The Constitution does not permit the government to consolidate those
sweeping executive powers in an administrative agency headed by a sole director who may be removed only for cause. Courts should thus invalidate any
enforcement action promulgated pursuant to that unconstitutional structure.
I. The CFPB’s Structure Violates the Constitution’s Separation of Powers.
The Constitution vests “[t]he executive power” in the President and
compels him to “take care that the laws be faithfully executed.” U.S. Const.
art. II, § 1, cl. 1; id. art. II, § 3. Precedent provides that removal restrictions
such as those governing the CFPB are permissible only for multi-member
commissions, not for those headed by a single director.
A. The President Must Retain the Power to Remove at Will the
Heads of Single-Director Agencies.
Article II bestows “[t]he executive power” in a single, unitary executive.
It makes “emphatically clear from start to finish” that “the president would
be personally responsible for his branch.” Akhil Reed Amar, AMERICA’S CONSTITUTION: A BIOGRAPHY 197 (2005). The Framers demanded “unity in the
Federal Executive” to guarantee “both vigor and accountability.” Printz v.
Case: 18-60302 Document: 00515057449 Page: 11 Date Filed: 07/31/2019
7
United States, 521 U.S. 898, 922 (1997). This unitary executive further promotes “[d]ecision, activity, secre[c]y, and dspatch” in ways that a “greater
number” cannot. 3 Joseph Story, Commentaries on the Constitution of the
United States § 1414, at 283 (1833).
Of course, as a practical matter, the President cannot carry out the full
scope of “the executive power” on his own. That is why, “as part of his executive power,” the President “select[s] those who [are] to act for him under
his direction in the execution of the laws.” Myers v. United States, 272 U.S. 52,
117 (1926). Selecting assistants and deputies lies at the heart of “the executive
power,” which necessarily includes “the power of appointing, overseeing,
and controlling those who execute the laws.” Free Enter. Fund v. Public Co.
Accounting Oversight Bd., 561 U.S. 477, 492 (2010) (quoting 1 Annals of Cong.
463 (1789) (Joseph Gales ed., 1834) (remarks of Madison)).
The President’s essential power to select administrative officials necessarily includes the power to “remov[e] those for whom he cannot continue to
be responsible.” Myers, 272 U.S. at 117; see Bowsher v. Synar, 478 U.S. 714,
726 (1986) (“Once an officer is appointed, it is only the authority that can remove him, and not the authority that appointed him, that he must fear and, in
the performance of his functions, obey.” (quotation marks omitted)); PHH
Corp., 881 F.3d at 168 (Kavanaugh, J., dissenting) (“To supervise and direct
executive officers, the President must be able to remove those officers at
will.”); Neomi Rao, Removal: Necessary and Sufficient for Presidential Control,
Case: 18-60302 Document: 00515057449 Page: 12 Date Filed: 07/31/2019
8
65 ALA. L. REV. 1205, 1215 (2014) (“The text and structure of Article II provide the President with the power to control subordinates within the executive
branch.”).
Since the Founding, it has been understood that the removal power is necessary “to keep [executive] officers accountable.” Free Enter. Fund, 561 U.S.
at 483. This view “soon became the ‘settled and well understood construction
of the Constitution.’” Id. at 492 (quoting Ex parte Hennen, 38 U.S. (13 Pet.)
230, 259 (1839)).
After all, if the President could not remove agents, then “a subordinate
could ignore the President’s supervision and direction without fear, and the
President could do nothing about it.” PHH Corp., 881 F.3d at 168 (Kavanaugh, J., dissenting) (citing Bowsher, 478 U.S. at 726). That, in turn, would
intolerably impinge on the President’s duty to execute the law. See id. And it
would upend the chain of command on which the Executive Branch relies to
function properly. See Free Enter. Fund, 561 U.S. at 513-14; see also id. at 484
(“The President cannot ‘take Care that the Laws be faithfully executed’ if he
cannot oversee the faithfulness of the officers who execute them.”).
The Supreme Court first recognized and adopted this commonsense understanding in Myers v. United States, when it struck down as unconstitutional
a statutory provision that restricted the President’s power to remove certain
executive officers. 272 U.S. at 176. The Court held: “[W]hen the grant of the
executive power is enforced by the express mandate to take care that the laws
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9
be faithfully executed, it emphasizes the necessity for including within the executive power as conferred the exclusive power of removal.” Id. at 122. If the
President lacked the exclusive power of removal, he could not “take care that
the laws be faithfully executed.” Id. at 164.
The Myers rule has been reaffirmed repeatedly to the present day. The
Supreme Court did so recently in Free Enterprise Fund, confirming that the
President’s executive power “includes, as a general matter, the authority to
remove those who assist him in carrying out his duties” to faithfully execute
the laws. 561 U.S. at 513-14. “Without such power, the President could not be
held fully accountable” for how executive power is exercised, and “[s]uch diffusion of authority ‘would greatly diminish the intended and necessary responsibility of the chief magistrate himself.’” Id. at 514 (quoting THE FEDERALIST No. 70, at 478 (Alexander Hamilton) (J. Cooke ed. 1961)).
B. Congress May Restrict the President’s Removal Power Only
As to Independent, Multi-Headed Commissions.
The Supreme Court has recognized one narrow exception to the general
rule of Myers. In 1935, the Supreme Court held that Congress could create
“independent” agencies whose heads were not removable at will and would
operate free of the President’s supervision and direction. Humphrey’s Ex’r,
295 U.S. at 625, 631-32.
Humphrey’s Executor concerned President Franklin Roosevelt’s dispute
with a commissioner of the Federal Trade Commission. President Roosevelt
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10
attempted to fire the commissioner, but the commissioner contested his removal, claiming that he was protected against firing by the FTC’s for-cause
removal provision. Id. at 621-22. In presenting the case to the Supreme Court,
the Roosevelt Administration’s “chief reliance” was Myers and its articulation
of the Article II executive power. Id. at 626.
The Supreme Court rejected that argument and held that Article II did
not forbid Congress to create an independent agency “wholly disconnected
from the executive department.” Id. at 630. The Court deferred to the FTC’s
“nonpartisan” nature and its charge to “act with entire impartiality” while
“exercis[ing] the trained judgment of a body of experts appointed by law and
informed by experience.” Id. at 624 (quotation marks omitted). In that situation, the Court held, Congress could validly limit the President’s power to remove the commissioners. Id. at 628-30.
Predictably, following Humphrey’s Executor, independent agencies came
to populate all corners of the federal government. These agencies “play[] a
significant role in the U.S. Government” and “possess extraordinary authority over vast swaths of American economic and social life—from securities to
antitrust to telecommunications to labor to energy.” PHH Corp., 881 F.3d at
170 (Kavanaugh, J., dissenting). Many significantly affect the daily lives of
countless Americans, including the Federal Reserve Board, the Federal Communications Commission, the Federal Deposit Insurance Corporation, the
Securities and Exchange Commission, the National Labor Relations Board,
the Consumer Product Safety Commission, and many others. Id. at 173.
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11
Those independent agencies share certain specific features recognized in
Humphrey’s Executor. Specifically, their leadership includes multiple members
appointed at staggered times. As the Supreme Court observed in Humphrey’s
Executor, the FTC had five members with staggered terms, and no more than
three of them could be of the same political party. 295 U.S. at 619-20. The
Court thus held that the Commission was a “body of experts” deliberately
“so arranged that the membership would not be subject to complete change
at any one time.” See id. at 624. Those features have come to be regarded as
the Humphrey’s Executor exception to the general rule announced in Myers.
See, e.g., Wiener v. United States, 357 U.S. 349, 355-56 (1958) (upholding the
removal provisions of the three-member War Claims Commission); see also
Free Enter. Fund, 561 U.S. at 483 (“In Humphrey’s Executor [] we held that
Congress can, under certain circumstances, create independent agencies run
by principal officers appointed by the President, whom the President may not
remove at will but only for good cause.”).
Courts have recognized two primary justifications for permitting the limited removal of the heads of these independent agencies. First, “n the absence of Presidential control, the multi-member structure of independent
agencies serves as a critical substitute check on the excesses of any individual
independent agency head.” PHH Corp., 881 F.3d at 183 (Kavanaugh, J., dissenting). That is, “[t]he multi-member structure thereby helps to prevent arbitrary decisionmaking and abuse of power, and to protect individual liberty.”
Id. That basic structure makes it harder for the independent agency to impinge
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12
on individual freedom. See id. It further discourages arbitrary, unsound agency
actions driven by the whims of one individual. Id. Each commissioner, in other
words, acts as a check on the others through the process of “deliberative decision making.” Kirti Datla & Richard L. Revesz, Deconstructing Independent
Agencies (and Executive Agencies), 98 CORNELL L. REV. 769, 794 (2013).
Second, multi-member independent agencies have an historical tradition
since Humphrey’s Executor. PHH Corp., 881 F.3d at 182-83 (Kavanaugh, J.,
dissenting). In “separation of powers cases not resolved by the constitutional
text alone, historical practice matters.” Id. The Supreme Court confirmed as
much in its recent decision in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014),
in which it relied on “[l]ong settled and established practice” to reach “a
proper interpretation of constitutional provisions regulating the relationship
between Congress and the President.” Id. at 2559 (quotation marks omitted).
In sum, only independent agencies with several directors serving staggered terms can possibly fall within Humphrey’s Executor exception to the general Myers rule.
C. The CFPB’s Structure Violates the Constitution Because It
Vests Unchecked Power in a Single Director Removable
Only for Cause.
That legal background makes this case clear-cut: the CFPB’s structure is
impermissible under Article II. See Myers, 272 U.S. at 117.
Unlike the multi-member agencies approved in Humphrey’s Executor and
its progeny, the CFPB is headed by a single Director. 12 U.S.C. § 5491(b). He
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13
serves a term of five years and may be fired only for “inefficiency, neglect of
duty, or malfeasance in office.” Id. § 5491(c). And he wields “unmistakably
executive responsibilities,” including “criminal investigation and prosecution.” PHH Corp., 881 F.3d at 80 (majority op.).2
The director wields that executive power as to nineteen different federal
consumer-protection statutes. 12 U.S.C. § 5512(b)(1). He may examine and
investigate individuals and entities to assess their compliance with those statutes. Id. §§ 5514(b), 5515(b), 5516(c). He may issue “civil investigative demand[s].” Id. § 5562(c). He may institute enforcement actions and conduct
“adjudication proceedings.” Id. § 5563(a). He may sue in state or federal
court to enforce consumer-protection laws. Id. § 5564.
Those facts are sufficient to resolve this case. Myers provides that the
President’s subordinates must be removable at will. Humphrey’s Executor creates a narrow exception for multi-director independent agencies with directors serving staggered terms. Because the CFPB has a sole director, appointed
for a term of five years and removable only for cause, its structure violates
Article II by preventing the President from carrying out the executive power.
2
To be sure, the Humphrey’s Executor Court termed the FTC functions
“quasi-legislative” and “quasi-judicial,” but the Court later recognized in
Morrison that courts today would not use those same terms. 487 U.S. at 689
n.28 (“[I]t is hard to dispute that the powers of the FTC at the time of Humphrey’s Executor would at the present time be considered ‘executive,’ at least to
some degree.”).
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14
II. The CFPB’s Unconstitutional Structure Renders All Its Actions Unlawful.
A. The Court Should Invalidate the CFPB’s Enforcement Action.
Because the CFPB’s structure is unconstitutional, any action it takes is
necessarily invalid. In Free Enterprise Fund, after concluding that the Public
Company Accounting Oversight Board’s structure was constitutionally impermissible, the Supreme Court declared that the challengers were entitled to
relief “sufficient to ensure that the reporting requirements and auditing standards to which they are subject will be enforced only by a constitutional agency
accountable to the Executive.” 561 U.S. at 513 (citing Bowsher, 478 U.S. at 727
n. 5).
The outcome in this case should be the same. Any enforcement action
brought by an administrative agency is permissible only when it is brought pursuant to a mechanism that does not violate the Constitution. Until then, All
American is entitled to declaratory and injunctive relief. See id.
Striking down the CFPB will not leave consumers vulnerable to deceptive
trade practices. Indeed, Mississippi already has vigorously protected its citizens from unlawful trade practices involving All American. See All American
Br. 4-5. In May 2017, for example, Mississippi issued an Administrative Order
against All American addressing various violations of state law.3
Among other
3 See Media Release, State of Mississippi Department of Banking and
Consumer Finance (May 12, 2017), http://www.dbcf.state.ms.us/documents/pr051217.pdf.
Case: 18-60302 Document: 00515057449 Page: 19 Date Filed: 07/31/2019
15
things, the State levied monetary penalties totaling almost $1.6 million, along
with several severe non-monetary sanctions.4
B. The Court Should Disagree with the D.C. Circuit’s Recent
Decision Upholding the CFPB.
Earlier this year, the en banc D.C. Circuit held in PHH Corp. that the
CFPB’s structure does not violate the Constitution. See 881 F.3d at 77, 84.
For the reasons set out above, that holding misunderstands the Constitution.
Indeed, Judges Henderson and Kavanaugh, writing in dissent, fully documented the majority’s erroneous reasoning, and cogently explained why that
court should have reached the opposite conclusion. See id. at 140-64 (Henderson, J., dissenting), 164-200 (Kavanaugh, J., dissenting).
Meanwhile, the Southern District of New York has reached the opposite
conclusion. See RD Legal Funding, 2018 WL 3094916, at *35. That court explicitly “disagree[d] with the holding of the en banc court [in PHH Corp.] and
instead adopt[ed] Sections I-IV of Judge Brett Kavanaugh’s dissent.” Id.
This Court should decline to follow the D.C. Circuit’s erroneous decision. Like the Southern District of New York, it should hold that the CFPB’s
structure renders the CFPB unconstitutional.
4 Id.; see also Agreed Order, All American Check Cashing, Inc. v. Corley, No.
G-2017-699 S/2 (Chancery Ct. of the 1st Judicial Dist. Hinds Cty., Miss. June
9, 2017), http://www.dbcf.state.ms.us/documents/aacc_agreed_060917
.pdf.
Case: 18-60302 Document: 00515057449 Page: 20 Date Filed: 07/31/2019
16
Conclusion
This Court should hold that the CFPB’s structure violates the Constitution and reverse.
Leslie Rutledge
Attorney General of Arkansas
Christopher M. Carr
Attorney General of Georgia
Curtis T. Hill, Jr.
Attorney General of Indiana
Derek Schmidt
Attorney General of Kansas
Jeff Landry
Attorney General of Louisiana
Madeline K. Malisa
Chief Counsel to the
Governor of Maine
Doug Peterson
Attorney General of Nebraska
Mike Hunter
Attorney General of Oklahoma
Alan Wilson
Attorney General of South Carolina
Herbert H. Slatery III
Attorney General and Reporter,
State of Tennessee
Respectfully submitted.
Ken Paxton
Attorney General of Texas
Jeffrey C. Mateer
First Assistant Attorney General
/s/ Kyle D. Hawkins
Kyle D. Hawkins
Solicitor General
kyle.hawkins@oag.texas.gov
Office of the Attorney General
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
Tel.: (512) 936-1700
Fax: (512) 474-2697
Counsel for Amici Curiae
Case: 18-60302 Document: 00515057449 Page: 21 Date Filed: 07/31/2019
17
Sean D. Reyes
Attorney General of Utah
Patrick Morrisey
Attorney General of West Virginia
Case: 18-60302 Document: 00515057449 Page: 22 Date Filed: 07/31/2019
18
Certificate of Service
I certify that on July 31, 2019, the foregoing Corrected Brief of Amici Curiae was served through the Court’s ECF filing system on all counsel of record.
/s/ Kyle D. Hawkins
Kyle D. Hawkins
Certificate of Compliance
This brief contains 3,109 words, excluding the parts of the brief exempted
by Rule 32(a)(7)(B)(iii). It thus complies with Rule 29(a)(5). This brief complies with the typeface requirements of Rule 32(a)(5) and the type style requirements of Rule 32(a)(6) because it has been prepared in a proportionally
spaced typeface (14-point Equity) using Microsoft Word (the same program
used to calculate the word count).
/s/ Kyle D. Hawkins
Kyle D. Hawkins
Case: 18-60302 Document: 00515057449 Page: 23 Date Filed: 07/31/2019
I hope this court recognizes them for failing to operate as a conservator, and invalidating 4617(f).
"12 U.S.C. § 4617(f), which precludes courts from “tak[ing] any any action to restrain or affect the exercise of powers or functions [of FHFA] as a conservator…."
Havoc
FHFA rebuttal.
Pulling the old Section 4617(f) argument out again.
July 16, 2019
VIA ECF
Lyle W. Cayce Clerk of Court United States Court of Appeals for the Fifth Circuit F. Edward Hebert Building 600 S. Maestri Place New Orleans, LA 70130-3408
Re: Collins et al. v. Mnuchin et al., No. 17-20364 (en banc oral argument held January 23, 2019)
Dear Mr. Cayce:
FHFA Defendants-Appellees write in response to PlaintiffsAppellants’ July 11 letter citing Department of Commerce v. New York, 139 S. Ct. 2551 (2019).
Department of Commerce has no relevance here. Plaintiffs rely principally on a sentence generally summarizing and quoting the APA’s judicial review provision. 139 S. Ct. at 2567. However, the very next sentence explains that “[r]eview is not available, however, ‘to the extent that’ a relevant statute precludes it….” Id. (quoting 5 U.S.C. § 701(a)(2)). Unlike the Census Act, HERA contains just such a provision: 12 U.S.C. § 4617(f), which precludes courts from “tak[ing] any any action to restrain or affect the exercise of powers or functions [of FHFA] as a conservator….”
Section 4617(f) also disposes of Plaintiffs’ argument that the Third Amendment must be vacated because FHFA’s rationale for it was allegedly “pretextual.” All courts to have considered the issue have agreed that under § 4617(f), subjective motive is irrelevant and the sole issue is whether the
Case: 17-20364 Document: 00515035779 Page: 1 Date Filed: 07/16/2019
July 9, 2019 Page 2
action involves a function of financial-institution conservators. See, e.g., Perry Capital v. Mnuchin, 864 F.3d 591, 612 (D.C. Cir. 2017) (“[N]othing... in [HERA] hinges FHFA’s exercise of its conservatorship discretion on particular motivations.”); id. at 644 (Brown, J., dissenting) (agreeing “no portion of HERA’s text invites such an analysis” into motives).
The Court found pretext relevant in Department of Commerce as part of its scrutiny of the factual explanation the agency furnished to support its action. But under HERA, the inquiry begins and ends at statutory authority. The Complaint here does not even include any arbitrary-and-capricious claim against FHFA. ROA.81-83.
Nor does Department of Commerce support Plaintiffs’ position that if the Court holds HERA’s good-cause removal provision unconstitutional, vacatur of the Third Amendment becomes mandatory. There was no removal-restriction claim in Department of Commerce. In Free Enterprise Fund, the Court held that the applicable remedy for an unconstitutional albeit severable removal restriction is to excise the offending limitation— while leaving the agency, its actions, and authority intact. Panel 51-53; FHFA Supp. En Banc Br. 24-26. Nothing in Department of Commerce suggests any departure from that teaching.
Respectfully Submitted,
Robert J. Katerberg Robert J. Katerberg
Counsel for Defendants-Appellees Federal Housing Finance Agency and Director Mark A. Calabria
Cooper & Kirk Lawyers A Professional Limited Liability Company David H. Thompson (202) 220-9659 dthompson@cooperkirk.com Via ECF 1523 New Hampshire Avenue, N.W. Washington, D.C. 20036 July 15, 2019 Lyle W. Cayce Clerk of Court United States Court of Appeals for the Fifth Circuit 600 S. Maestri Place New Orleans, LA 70130-3408 (202) 220-9600 Fax (202) 220-9601 Re: Collins v. Federal Housing Finance Agency, No. 17-20364 Dear Mr. Cayce: It is no coincidence that since the current President took office the Department of Justice has had one position on FHFA’s constitutionality and FHFA has had three. FHFA’s latest switch, prompted once again by a change in leadership at the agency, only further underscores how this agency’s novel structure places vast executive power in the hands of a single individual who is wholly unaccountable to the President. Humphrey’s Executor blessed the FTC’s independence because in that case independence—combined with leadership from a commission whose members serve staggered terms—was thought to promote continuity and expertise at the agency. In FHFA’s case, independence achieves the opposite of continuity by leaving critical policy decisions up to the whim of whichever individual happens to sit atop the organizational chart of an agency that answers to no one. FHFA was right the second time, not the first or the third. Respectfully submitted, /s/ David H. Thompson David H. Thompson
Hi TRCPA,
This is known from David's signature on the summary.
Respectfully submitted,
/s/ David H. Thompson David H. Thompson
Counsel for Appellants
cc: Counsel of Record (by ECF)
These are the parties:
PATRICK J. COLLINS; MARCUS J. LIOTTA; WILLIAM M. HITCHCOCK,
Plaintiffs–Appellants,
v.
STEVEN T. MNUCHIN, SECRETARY, U.S. DEPARTMENT OF
TREASURY; DEPARTMENT OF THE TREASURY; FEDERAL HOUSING
FINANCE AGENCY; MELVIN L. WATT,
Defendants–Appellees.
Is there another point I'm missing from you?
Havoc
Hi TRCPA,
Yes, it's addressed to the court
clerk, Mr. Casey.
It seems to be an independent inquiry from the court. I don't recall an APA topic from the prior letter, only MC substitution and reassertion of FHFA structure as constitutional.
Either way, I think this is good because it shows the clerks are working on the opinion, and I don't see a request from the court to FHFA.
Havoc
No time to extrapolate on all aspects of this submission, but basically, beat up FHFA's argument with the Supreme Court's APA ruling, and maybe limit appeal avenues.
There are 60 more pages attached to this summary which are supportive legal arguments for this summary.
The court's opinion release may be delayed, perhaps the end of July, as Glen suggests. We all hope not.
I also hope the prior submission allows the 5th to rule on the
constitutionality question for both FHFA and CFPB cases.
GLTA
All opinions are welcome.
Havoc
More action in court.
Looks like the court may have asked for clarifications.
Sites the recent APA questions in citizenship ruling.
July 11, 2019
Via ECF
Lyle W. Cayce Clerk of Court United States Court of Appeals for the Fifth Circuit 600 S. Maestri Place New Orleans, LA 70130-3408
Re: Collins v. Federal Housing Finance Agency, No. 17-20364
Dear Mr. Cayce:
In Department of Commerce v. New York, 139 S. Ct. 2551, 2567-68 (2019), the Supreme Court said that the APA “instructs reviewing courts to set aside agency action that is . . . not in accordance with law” and “command[s] that courts set aside agency action that is an abuse of discretion.” See also id. at 2577-78 (Thomas, J., concurring in part and dissenting in part) (“[T]he APA requires courts to ‘hold unlawful and set aside’ agency action that is . . . ‘not in accordance with law’” (emphasis added)). In April, a panel of this Court likewise observed that a reviewing court “must set aside agency action” that does not satisfy the APA’s standard. Southwestern Electric Power Co. v. United States Environmental Protection Agency, 920 F.3d 999, 1013 (5th Cir. 2019); see also id. at 1022 (“Section 706(2)(A) of the APA provides that a reviewing court faced with an arbitrary and capricious agency decision shall—not may—hold unlawful and set aside the agency action.” (internal quotation marks and citation omitted)). These statements support Plaintiffs’ argument that the APA’s use of the word “shall” requires the Court to hold unlawful and set aside the Net Worth Sweep because it was “contrary to constitutional right, power, privilege, or immunity.” 5 U.S.C. § 706(2)(B); see Pls.’ En Banc Reply Br. 11-12.
Department of Commerce also provides further support for Plaintiffs’ argument that the Court cannot uphold the Net Worth Sweep based upon Defendants’ “death spiral” rationale. See Pls.’ Panel Reply Br. 18-20; Pls.’ Panel Opening Br. 7-11, 40. Documents quoted at length in the complaint show that, like the explanation at issue in Department of Commerce, Defendants’ public explanation for their actions in this case is pretextual. E.g., ROA.55-57, 73. After the Supreme Court’s ruling, this Court cannot uphold agency action based upon a demonstrably pretextual government rationale, much less affirm the granting of a motion to dismiss by crediting a factual narrative that directly contradicts the allegations in the complaint. Department of Commerce, 139 S.Ct. at 2576 (refusing to “[a]ccept[ ] contrived reasons” to uphold agency action).
Respectfully submitted,
/s/ David H. Thompson David H. Thompson
Counsel for Appellants
cc: Counsel of Record (by ECF)
Havoc
Haha, maybe.
I see Theodore arguing in May regarding similar separation of powers in this related CPFB case.
Case: 18-60302
Document: 00514948360 Page: 1 Date Filed: 05/08/2019
GIBSON DUNN
Gibson, Dunn & Crutcher LLP
1050 Connecticut Avenue, N.W. Washington, DC 20036-5306 Tel 202.955.8500 www.gibsondunn.com
Theodore B. Olson
Direct: +1 202.955.8668 Fax +1 202.530.9575 TOlson@gibsondunn.com
May 8, 2019
VIACMJECF
Lyle W. Cayce Clerk of the Court
US. Court of Appeals for the Fifth Circuit F. Edward Herbert Building
600 S. Maestri Place
New Orleans, LA 70130
Re: Consumer Financial Protection Bureau v. All American Check Cashing, et al., No. 18-60302
Dear Mr. Cayce:
Appellants All American Check Cashing, Inc., Mid-State Finance, Inc., and Michael E. Gray (collectively, "All American") respond to the Rule 280) letter filed May 7, 2019 by the Consumer Financial Protection Bureau ("CFPB").
The Ninth Circuit's decision in CFPB v. Seila Law LLC, No. 17-56324, 2019 WL 1983530 (9th Cir. May 6,2019), adds nothing new (and does not purport to add anything new) to the discussion concerning the constitutionality of the CFPB' s structure. See slip op. 4 (citing PHH Corp. v. CFPB, 881 FJd 75 (D.C. Cir. 2018) and seeing "no need to re-plow the same ground here"). Moreover, the decision fails to engage: (i) the dissenting PHH opinions of then-Judge Kavanagh and Judge Henderson; (ii) the panel decision in Collins v. Mnuchin, 896 FJd 640 (5th Cir. 2018), reh'g en banc granted, 908 F.3d 151; or (iii) the position of the United States that the CFPB is unconstitutional, all of which flatly contradict the Ninth Circuit's holding. The Ninth Circuit's opinion also focuses solely on at-will removal and fails to discuss the other factors that have the "combined effect" of rendering the CFPB unconstitutional, i.e., funding outside the appropriations process, lack of bipartisan leadership, and the oversight role of other bodies. Reply Br. 5-16.
The CFPB reiterates its view (reflected in the Ninth Circuit's opinion) that this case is controlled by Humphrey's Executor v. United States, 295 US. 602 (1935), and Morrison v. Olson, 487 US. 654 (1988), and that those cases require this Court to uphold the CFPB. But, as All American already explained (Opening Br. 28-35, Reply Br. 17-18), and as the panel in Collins persuasively concluded, see 896 F.3d at 664-65,670-72, both cases are distinguishable. This Court should not permit further erosion of our system of separated powers.
Beijing· Brussels- Century City, Dallas • Denver· Dubai • Frankfurt· Hong Kong' Houston' London· Los Angeles· Munich New York· Orange County· Palo Alto' Paris· San Francisco' Sao Paulo· Singapore' WaShington, D.C.
Case: 18-60302 Document: 00514948360 Page: 2 Date Filed: 05/08/2019
. GIBSON DUNN
Lyle W. Cayce May 8, 2019 Page 2
All American respectfully urges the Court to resolve this case as quickly as practicable and afford Mr. Gray the relief to which he is entitled by granting All American's motion for judgment on the pleadings.
Theodore B. Olson
GLTA
Havoc
I believe this may be a concession to the court allowing it to clean up the constitutional questions in multiple cases, perhaps in exchange for a less harsh relief ruling.
See post 539247.
TRCPA,
There are no links.
These are docket items from PACER.
That may be convenient politically, but I wonder if the legal purpose for FHFA to reassert FHFA structure constitutionality arguments is for the courts to cleanly rule against single Director agencies in both cases.
18-60302 Consum Fincl Protc Bur v. All Amer Check Cashing, Inc., et al
17-20364 Patrick Collins, et al v. Steven Mnuchin, Secretary, et al
With such a ruling clearing the way, the courts are free to move to the remedies and relief, and MC can say he argued well.
Recap could be 'forced' on him from the courts.
We'll have to see what happens.
Havoc
Hi YanksGhost,
Yes, it may well be. The ongoing CPFB case is also updating documents. I believe that Collins is dependent on the CPFB case's constitutionality outcome.
This is the rest of the filing:
Dear Mr. Cayce:
The Federal Housing Finance Agency (FHFA) Defendants-Appellees
write to advise the Court (a) of a leadership change at FHFA that necessitates
substitution of parties under Fed. R. App. P. 43(c)(2), and (b) that under its
new leadership FHFA has reconsidered the constitutional issue in this case,
presently taking the position that HERA’s for-cause removal provision is
constitutional, and urges the Court to uphold the constitutionality of the
structure Congress chose for FHFA.
1. In April, Mark A. Calabria was sworn in to serve a five-year term as
FHFA Director following presidential nomination and Senate confirmation.
Pursuant to Rule 43(c)(2), Director Calabria should be substituted for Acting
Director Joseph Otting as a defendant-appellee.
2. In this case, Plaintiffs-Appellants challenged the validity of a
transaction known as the Third Amendment in part as it is unconstitutional for
FHFA to be led by a single Director removable by the President only for
cause. Before the district court and the Panel, and in its petition for rehearing
July 9, 2019
Page 2
en banc, FHFA defended the constitutionality of this provision. Shortly after
this Court granted rehearing en banc, the term of the prior Senate-confirmed
Director expired. Under interim leadership between January and April 2019,
including during en banc briefing and oral argument, FHFA elected not to
defend the constitutionality of its structure. At all relevant times FHFA argued
and continues to argue the issue does not affect the Third Amendment’s
validity.
Under its new Director, FHFA has considered this issue. FHFA now
advises the Court FHFA takes the position going forward that HERA’s
structure is constitutional. FHFA respectfully requests that the Court consider
the arguments on that issue presented at pages 46-56 of FHFA’s Panel brief,
and pages 10-15 of FHFA’s en banc petition, as presenting FHFA’s operative
position. FHFA withdraws the statements relating to this issue at page 3 of
FHFA’s supplemental en banc brief and to similar effect at en banc argument.
FHFA respectfully requests that, to the extent the Court finds it necessary to
reach the constitutional issue, the Court uphold FHFA’s structure and
otherwise affirm the judgment below as to the Third Amendment.
Respectfully Submitted,
/s/ Robert J. Katerberg
Robert J. Katerberg
Counsel for Defendants-Appellees
Federal Housing Finance Agency and
Director Mark A. Calabria
All insights are welcome.
Havoc
BREAKING:
The following transaction was entered on 07/09/2019 at 11:08:36 AM CDT and filed on 07/09/2019
Case Name: Patrick Collins, et al v. Steven Mnuchin, Secretary, et al
Case Number: 17-20364
Document(s): Document(s)
Docket Text:
LETTER filed by Appellees Federal Housing Finance Agency and Joseph M. Otting, Acting Director of the Federal Housing Finance Agency To advise the Court of a leadership change that necessitates substitution of parties under Fed. R. App. P. 43(c)(2), and that its new leadership has reconsidered the constitutional issue in this case.. Date of Service: 07/09/2019 via email - Attorney for Appellants: Barnes, Cooper, Flores, Patterson, Thompson; Attorney for Amici Curiae: Bayne, Mapes, Nelson, Wydra; Attorney for Appellees: Cayne, Hoffman, Katerberg, Mooppan, Phillips, Sinzdak, Stern, Varma, Wright [17-20364] (Robert J. Katerberg )
Havoc
I'm wondering if the related case of All American v. CFPB is being resolved first so as to bolster the Collins v. FHFA opinion.
The CFPB case has court updates from May 8, 2019.
The latest court update for Collins is March 21, 2019.
In this March 21st response from Thompson, he seems to be refuting the magnitude of the remedies argued by FHFA, and citing case precedence for vacatur based on unconstitutionality.
GLTA
This is a willful prediction based on court decision statistics I posted prior.
Just For Fun Stats
Since the maximum date prediction fell on this Sunday, I shortened it to Friday hoping universal karma would help out. Unless it comes late tonight, It will be incorrect. I admit the 81 case sample size dating back to December 2018 is limited.
There do seem to be other streams of opinion release timing indicating within June, which is good.
GLTA
Havoc5
Tomorrow, En Banc released.
May 24th
May 24th
Sure. No one knows for sure, but I'm hoping before Friday, May 24th since the 26th is a Sunday.
GLTA
Havoc5
Just for fun, some En Banc opinion statistics.
En Banc case status
Description Date opinion was published # Days till published
Dec. 3 2018 % Complete 43.2%
18-30390 Private parties 2/13/2019 72 % Outstanding 56.79%
18-60176 Private parties 4/5/2019 123 Maximum Days to Publish 123
17-11073 Appellants v. Official Stanford Investors Committee Not Yet Ave Days to Publish 52.4
Dec. 4 2018 # published 35
17-50885 United States of America v. Francisco Javier Del Hierro-Vega 1/23/2019 50 Total cases 81
17-60833 Appellants v. Commissioner of Internal Revenue 4/3/2019 120 # Date rows 25
17-51001 Private parties Not Yet
17-20599 Private parties Not Yet
Dec. 5 2018
18-40043 JP Morgan Chase Bank, N.A., Appellant v. Datatreasury Corp Not Yet
17-20646 Private parties 1/31/2019 57
17-41243 Private parties 1/14/2019 40
MONDAY, DECEMBER 3, 2018 - COURT CONVENES AT 9:00 A.M.
* No. 17-50881 United States of America v. Abel DeLeon, Appellant. 2/12/2019 71
* No. 16-51148 Scott Lynn Gibson, Etc., Appellant v. Bryan Collier, E 3/29/2019 116
* No. 18-10061 United States of America v. Dennis Duray Johnson, Appellant. 1/15/2019 43
* No. 17-30889 Kelvin Dunn v. Marquette Transportation Co., LLC, Appellant. 12/12/2018 9
TUESDAY, DECEMBER 4, 2018 – COURT CONVENES AT 9:00 A.M.
* No. 17-31007 United States of America v. Cornell Pendleton, Appellant. 2/21/2019 79
* No. 18-60144 Express Oil Change, LLC, Et Al., Appellant v. Mississippi Board of 2/19/2019 77
* No. 17-60857 James D. Schaeffer, Appellant-Appellee v. Warren County, MS, Et Al. 12/7/2018 3
* No. 18-60224 Onebeacon America Insurance Co. v. Dorothy L. Barnett, Etc., Appellant 2/27/2019 85
WEDNESDAY, DECEMBER 5, 2018 – COURT CONVENES AT 9:00 A.M.
* No. 18-30469 Rhonda F. Lamb, Appellant v. Ashford Place Apartments, LLC 1/30/2019 56
* No. 17-41212 German Hernandez Najera, Appellant v. United States of Am Not Yet
* No. 18-10248 Jatera Corporation, Et Al., Appellants v. US Bank National Associa 3/7/2019 92
* No. 18-30392 Tesla Offshore, LLC, Appellant v. Atlantic Specialty Insurance Co., 2/12/2019 69
THURSDAY, DECEMBER 6, 2018 – COURT CONVENES AT 9:00 A.M.
* No. 18-10260 20/20 Communications, Inc., Appellant v. Lennox Crawf Not Yet
* No. 17-51089 William Parrish, Et Al. v. Premier Directional Drilling, L.P., A 2/28/2019 84
* No. 18-30377 Bahram Zamanian, Etc., Et Al., Appellants v. Jefferson Paris 1/14/2019 39
TUESDAY, JANUARY 8, 2019 - COURT CONVENES AT 9:00 A.M.
* No. 17-50852 Papalote Creek, II, LLC, Etc., Appellant v. Lower Colorado Ri Not Yet
* No. 18-60365 Lakesha Butler v. Coast Electric Power Association, Appellant (Cons.w/N Not Yet
* No. 18-20251 Nicole C. Wittmer, Appellant v. Phillips 66 2/6/2019 60
WEDNESDAY, JANUARY 9, 2019 – COURT CONVENES AT 9:00 A.M
* No. 17-30950 United States of America v. Paul Joseph Vi 4/17/2019 98
* No. 16-20268 Keith Chester Hill, Appellant v. Lorie Davis Not Yet
* No. 17-20808 Jeff Faludi, Appellant-Appellee v. U.S. Shale Solut Not Yet
* No. 18-20125 Glassell Non-Operated Interests, Limited, Et Al. v. Enerquest Oil & Gas, LL Not Yet
* No. 18-30699 Planned Parenthood Gulf Coast, Inc, Et Al. v. Rebekah Gee, Etc., Appella Not Yet
THURSDAY, JANUARY 10, 2019 – COURT CONVENES AT 9:00 A.M.
* No. 18-10001 United States of America v. John Martin Cabello, aka Chinaman, Appella 2/22/2019 43
* No. 18-60117 Mary Paula Harville, Appellant v. City of Houston, Mis Not Yet
* No. 18-10438 Marily Flores, Appellant v. Texas Tech University Hea 1/28/2019 18
* No. 18-30323 Amy McDonald Nobre, Etc., Et Al., Appellants v. Louisiana Department of Public Safety, E Not Yet
FRIDAY, JANUARY 11, 2019 – COURT CONVENES AT 9:00 A.M.
* No. 18-40361 United States of America v. Daniel Salinas, Appellant (Cons.w/No. 18-40407, United Stat 3/20/2019 68
* No. 18-60004 Tom L. Mays, Petitioner-Respondent v. Director, OWCP, Etc. v. Huntingt Not Yet
Jan 23 2019 Guess Dates
16-30486 Private parties Not Yet Average Maximum
17-20364 Patrick J. Collins, Et Al. Not Yet 3/16/2019 5/26/2019
TUESDAY FEBRUARY 5, 2019 - COURT CONVENES AT 1:00 P.M.
* No. 18-50428 Jarrod Stringer, Et Al. v. David Whitley, Etc., Et Al., Appell Not Yet
* No. 18-10469 Robert Yaquinto, Etc., Et Al. v. Lloyd Eugene Ward, Appell Not Yet
* No. 18-20115 ENI US Operating Co., Inc., Appellant v. Transocean Offshore Deepwater Drilling, 3/28/2019 51
WEDNESDAY, FEBRUARY 6, 2019 – COURT CONVENES AT 1:00 P.M.
* No. 18-50097 Nautilus, Inc. v. ICON Health & Fitness, Inc., Appe 2/22/2019 16
* No. 18-30515 Uptown Grill, LLC v. Camellia Grill Holdings, Inc, Appellant (and related ca 3/29/2019 51
TUESDAY, FEBRUARY 5, 2019 - COURT CONVENES AT 9:00 A.M.
* No. 18-50492 United States of America v. Blanca Nieve Vasquez-Hernandez, Appellant (and related cases) Not Yet
* No. 18-10620 Texas Tech Physicians Associates, Appellant v. United States Department of Health and Hum 3/8/2019 31
* No. 18-50160 Lisa M., Etc., Et Al. v. Leander Independent School District, Appell Not Yet
WEDNESDAY, FEBRUARY 6, 2019 - COURT CONVENES AT 9:00 A.M.
* No. 18-20157 Christina Romero, Et Al., Appellants v. Amanda Brown, Etc., Et Al. Not Yet
* No. 18-60450 Associated Industries Insurance Co. v. Brad Williams, LLC, Et Al., Appellan Not Yet
* No. 18-30388 Alejandro Jorge-Chavelas, Et Al. v. Louisiana Farm Bureau Casualty Insurance Co., 3/8/2019 30
THURSDAY, FEBRUARY 7, 2019 - COURT CONVENES AT 9:00 A.M.
* No. 18-60291 Louisiana Real Estate Appraisers Board, Petitioner v. Federal Trad 2/28/2019 21
MONDAY, MARCH 11, 2019 - COURT CONVENES AT 9:00 A.M.
* No. 18-60436 Southern Hens, Inc., Petitioner v. Occupational Safety and Health Review Commission, Et Not Yet
* No. 18-20379 Jeffery Schweitzer, Et Al., Appellants v. The Investment Committee of the Phillips Not Yet
* No. 18-20248 Jose Carmona, Appellant v. Leo Ship Management, Inc. Not Yet
* No. 18-30349 Ana Christine Shelton, Etc., Appellant v. Louisiana State, Et Al. 3/26/2019 15
TUESDAY, MARCH 12, 2019 - COURT CONVENES AT 9:00 A.M.
No. 18-60302 Consumer Financial Protection Bureau v. All American Check Cashing, Inc., Et Al Not Yet
* No. 18-40359 United States of America v. Spencer Salcedo, App Not Yet
* No. 18-40557 Port of Corpus Christi Authority, Appellant v. Sherwin Alumina Co., LLC, Et Not Yet
WEDNESDAY, MARCH 13, 2019 - COURT CONVENES AT 9:00 A.M.
* No. 18-50086 United States of America v. Coy Jones, Appellant. (Cons.w/ 18-5 Not Yet
* No. 18-50125 Maria Ramirez, Etc., Et Al. v. Ruben Escajeda, Jr., Appellant. 4/16/2019 35
* No. 18-10615 Santa Barbara Medical Innovations, LLC, Appellant v. Primcogent Solutio 3/13/2019 1
* No. 18-30759 Alliance for Good Government v. Coalition for Better Government, App 3/21/2019 9
THURSDAY, MARCH 14, 2019 - COURT CONVENES AT 9:00 A.M.
* No. 18-50159 United States of America v. Isaac Ramos, Appell Not Yet
* No. 18-50194 Maria Arenas, Etc., Appellant v. John Calhoun, Et Not Yet
MONDAY, APRIL 1, 2019 - COURT CONVENES AT 9:00 A.M.
* No. 18-30791 United States of America v. Lazandy Daniels, Ap Not Yet
* No. 18-60499 Juanita Nichols v. Reliance Standard Life Insurance Co., Appellant Not Yet
* No. 18-30776 Wilfred Jones, Appellant v. United States of Amer Not Yet
* No. 18-20518 Alisha Pate, Et Al., Appellants v. Rodney D. Tow, Etc., Et A Not Yet
* No. 17-60753 W.M.V.C., Et Al., Petitioners v. William P. Barr, Etc. (SEALED CASE Not Yet
TUESDAY, APRIL 2, 2019 - COURT CONVENES AT 9:00 A.M.
* No. 18-30856 Labrittany K. Hassen, Appellant v. Ruston Louisiana Hospital Company, LL Not Yet
* No. 18-40499 Doctor David Masel, Et Al., Appellants v. Adriana Villarreal, Et Al Not Yet
* No. 18-20097 Judith Deeds, Et Al., Appellants v. Whirlpool Corp., Et Al 4/4/2019 2
* No. 18-10561 Angie Waller, Etc., Et Al.; Terry Wayne Springer, Et Al. v. Benjamin B. Hanlon, Et A Not Yet
WEDNESDAY, APRIL 3, 2019 - COURT CONVENES AT 9:00 A.M.
* No. 18-20098 Light-Age, Inc., Appellant v. Clifford Ashcroft-Smith. Not Yet
* No. 17-60510 Jose Nelson Cruz, Et Al., Petitioners v. William P. Barr, Etc Not Yet
* No. 18-40320 The Law Funder, LLC v. Sergio Munoz, Jr., Et Al., Appellants. Not Yet
* No. 18-30819 Donald Washington, Appellant-Appellee v. Wood Group PSN, Inc. Not Yet
THURSDAY, APRIL 4, 2019 - COURT CONVENES AT 9:00 A.M.
* No. 16-51142 United States of America v. Elizabeth Garcia De Nieto, aka Betty, aka Elizabeth Jurado Not Yet
* No. 18-20330 Al Cohen, Appellant v. Allstate Insurance Co., Et Al. Not Yet
* No. 18-30837 Clarence Joseph Jason v. Robert Tanner, Etc., Et Al., Appellants. Not Yet
90 days post En Banc tomorrow, April 23, 2019.
Good day for an opinion release?
17-20364 01/23/2019 Patrick Collins, et al v. Steven Mnuchin,Secretar Robert J. Katerberg- Hashim M. Mooppan- David H. Thompson- MP3
En Banc Oral Arguments
www.ca5.uscourts.gov/clerk/calendar/1901/01-23.htm
IMPORTANT NOTES
1. All oral arguments are recorded. Oral argument recordings generally are available late in the day argument is held. Listeners using “Windows Media” software can search for an argument by case number, date, case title or attorney’s name. PERSONAL RECORDERS ARE NOT PERMITTED IN THE COURTROOM. With advance approval however, counsel may contract for an official court reporter to be present and transcribe the argument
*https://www.ca5.uscourts.gov/clerk/calendar/1901/01-23.htm
IMPORTANT NOTES
1. All oral arguments are recorded. Oral argument recordings generally are available late in the day argument is held. Listeners using “Windows Media” software can search for an argument by case number, date, case title or attorney’s name. PERSONAL RECORDERS ARE NOT PERMITTED IN THE COURTROOM. With advance approval however, counsel may contract for an official court reporter to be present and transcribe the argument
https://www.ca5.uscourts.gov/clerk/calendar/1901/01-23.htm
IMPORTANT NOTES
1. All oral arguments are recorded. Oral argument recordings generally are available late in the day argument is held. Listeners using “Windows Media” software can search for an argument by case number, date, case title or attorney’s name. PERSONAL RECORDERS ARE NOT PERMITTED IN THE COURTROOM. With advance approval however, counsel may contract for an official court reporter to be present and transcribe the argument