The Fifth Circuit has calendared oral argument in the All American Check Cashing case for March 12, 2019. The case is one of the three cases currently pending in the circuit courts that involve a challenge to the CFPB’s constitutionality.
The other two cases are RD Legal Funding which is pending in the Second Circuit and Seila Law which is pending in the Ninth Circuit. While briefing in the Second Circuit in RD Legal Funding will not begin until next month, the Ninth Circuit has already held oral argument in Seila Law (on January 9). (At the oral argument, the Bureau defended its constitutionality.) As a result, the March 12 oral argument date in All American Check Cashing creates the strong possibility that two more circuit court decisions ruling on the CFPB’s constitutionality could be issued this year.
One factor that will determine how quickly the issue could get to the U.S. Supreme Court is whether en banc review is sought from the panel decisions in either or both of these cases. It seems virtually certain that the Supreme Court would grant a petition for certiorari in one of these cases if the circuit court’s decision creates a conflict with the D.C. Circuit’s en banc PHH decision that held the CFPB’s structure is constitutional. However, even in the absence of a circuit conflict, there is a strong likelihood that the Supreme Court would agree to hear one of the cases given the significance of the constitutionality issue.
With regard to en banc review in All American Check Cashing, in August 2018, All American Check Cashing filed a petition asking the Fifth Circuit for an initial en banc hearing in its interlocutory appeal. Although the Fifth Circuit’s Clerk’s Office confirmed to us last Friday that the petition has not yet been ruled on, the case docket indicates that oral argument is to be held in the Fifth Circuit’s en banc courtroom. It is unclear whether the designation of what is presumably a larger courtroom as the venue for the oral argument reflects an anticipated high level of interest in the argument or the possibility that an initial en banc hearing might still be granted.