Fifth Circuit panel in All American Check Cashing asks parties to brief impact of en banc Fifth Circuit decision holding FHFA structure unconstitutional

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The issue of the CFPB’s constitutionality is currently before the Fifth Circuit in the interlocutory appeal of All American Check Cashing from the district court’s ruling upholding the CFPB’s constitutionality.  Oral argument was held in March 2019 and no decision has yet been issued.

At oral argument, the panel asked the parties whether it should hold its decision until the en banc court issued its decision in Collins v. Mnuchin, the case involving the FHFA’s constitutionality.  Last Friday, the en banc Fifth Circuit issued its decision in Collins, ruling that the FHFA is unconstitutionally structured because it is excessively insulated from Executive Branch oversight and that the appropriate remedy for the constitutional violation is to sever the provision of the Housing and Economic Recovery Act of 2008 that only allows the President to remove the FHFA Director “for cause.”

On Tuesday, the Fifth Circuit sent a letter to the parties in All American Check Cashing directing them to file letter briefs addressing “What action this court should take in light of [the en banc decision in Collins.]”  The briefs (not to exceed 10 pages) must be filed by October 10 and reply letter briefs (not to exceed 3 pages) must be filed by October 24.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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