All American Check Cashing’s interlocutory appeal from the district court’s ruling upholding the CFPB’s constitutionality has been calendared for oral argument before a Fifth Circuit panel on December 4, 2019. Since the case was previously argued in March 2019, it is unclear why a second oral argument has been scheduled. Last month, the parties were directed to submit letter briefs regarding what action the panel should take in light of the en banc Fifth Circuit’s decision in Collins v. Mnuchin that held the FHFA’s structure is unconstitutional.
Rather than wait for a decision from the Fifth Circuit, All American filed a Petition for a Writ of Certiorari Before Judgment with the U.S. Supreme Court. All American argued in its petition that its case was a better vehicle for deciding the question of the CFPB’s constitutionality than Seila Law. It made the alternative argument that the Supreme Court should grant its petition as a companion case to Seila Law in the event it granted Seila Law’s petition. The CFPB has not yet responded to All American’s petition. In my view, the Supreme Court is likely to either deny All American’s petition (based on the fact that the Fifth Circuit has not yet had an opportunity to review the case) or grant certiorari and hold All American pending the outcome in Seila Law.