With the Fifth Circuit having already heard oral argument in March 2019 in All American Check Cashing’s interlocutory appeal from the district court’s ruling upholding the CFPB’s constitutionality, it is not surprising that All American and the CFPB submitted a joint letter to the court requesting “clarification regarding the scope of the issues to be addressed at the December 4 oral argument.”

Last month, after the en banc Fifth Circuit ruled in Collins v. Mnuchin that the FHFA’s structure is unconstitutional, the parties were directed to submit letter briefs regarding what action the Fifth Circuit panel should take in All American in light of Collins.  In their letter seeking clarification, the parties asked whether the oral argument would be limited to the issues addressed in their letter briefs regarding the impact of Collins or whether the panel was also interested in addressing the merits of the constitutionality of the CFPB’s structure.

In response to the parties’ letter, the Fifth Circuit has issued a directive that states:

The court is allowing 30 minutes per side so that all of the issues still remaining in light of (1) Collins v. Mnuchin (en banc) and (2) the CFPB’s change of position can be addressed.  Although the court has ready access to the oral arguments presented in March 2019, the attorneys should argue their entire case without reliance on the March presentation (but mindful that no issue that has been briefed or is jurisdictional is waived).  The attorneys should assume that the grant of certiorari in Seila Law has no effect on the scope of the matters to be presented on December 4, although either side is free to recommend that this case be postponed awaiting a decision in Seila Law.

As we reported, the CFPB has asked the Second Circuit to adjourn the oral argument in RD Legal that is currently scheduled for November 21, 2019 until the Supreme Court decides Seila Law.  (RD Legal has opposed that request.)  The Fifth Circuit’s directive appears to indicate that the panel intends to hold the December 4 oral argument despite the grant of certiorari in Seila Law but would entertain a request to postpone its ruling pending a decision in Seila Law.  (As we also reported, the Ninth Circuit has entered an order withdrawing the submission of CashCall’s appeal from the district court judgment in favor of the CFPB and staying all further proceedings until the Supreme Court’s decision in Seila Law.)

In the joint letter requesting clarification, All American noted that it has filed a Petition for a Writ of Certiorari Before Judgment with the U.S. Supreme Court.  Presumably, regardless of whether it decides to postpone its ruling pending a decision in Seila Law, the Fifth Circuit will wait to see if the Supreme Court grants All American’s Petition for a Writ of Certiorari Before Judgment before taking any further action.