The briefing on the CFPB’s certiorari petition seeking review of the Fifth Circuit panel decision in Community Financial Services Association of America Ltd. v. CFPB was distributed to the Supreme Court yesterday for consideration at its February 17 conference.  In that decision, the Fifth Circuit panel held the CFPB’s funding mechanism violates the Appropriations Clause of the U.S. Constitution and, as a remedy for the constitutional violation, vacated the CFPB’s payday lending rule (Rule).  The briefing on the cross-petition for certiorari filed by Community Financial Services Association (CFSA) was also distributed yesterday to the Court for consideration at the February 17 conference.  The CFPB has urged the Supreme Court to grant its petition and hear the case this Term while CFSA has urged the Court, should it grant the CFPB’s petition, to hear the case next Term.

The CFPB and CFSA have previously filed opposition to each other’s petition.  Yesterday, they filed replies to each other’s opposition.  In its reply brief, the CFPB restates its arguments for why the Fifth Circuit decision is incorrect and challenges the arguments made by CFSA for why the case does not warrant consideration this Term if the CFPB’s petition is granted.

CFSA’s cross-petition for certiorari urges the Court, if it grants the CFPB’s petition, (1) to also grant its cross-petition to consider the alternative grounds for vacating the Rule that the Fifth Circuit rejected or, (2) instead of granting the cross-petition, to consider the alternative grounds as antecedent questions added to the CFPB’s petition.  In its reply brief to the CFPB’s opposition, CFSA restates its arguments for why the alternative grounds each provide a strong basis for vacating the Rule and challenges the arguments made by the CFPB for why constitutional avoidance principles do not require the Court to first consider the alternative grounds and for why adopting the alternative grounds would not actually avoid the Appropriations Clause question.

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