The orders released today by the U.S. Supreme Court from its January 10 conference did not include any orders regarding the petition for a writ of certiorari filed by the plaintiffs in Collins v. Mnuchin or the petition filed by the FHFA and Treasury Department. The case dockets indicated that briefing on the petitions was submitted for last Friday’s conference.
In its en banc decision in Collins, the Fifth Circuit held the FHFA’s structure is unconstitutional because the Housing and Economic Recovery Act of 2008 (HERA) only allows the President to remove the FHFA’s Director “for cause.” While ruling that the FHFA’s structure is unconstitutional, the en banc Fifth Circuit concluded that the appropriate remedy for the constitutional violation was to sever HERA’s for-cause removal provision but not to invalidate an amendment to a stock agreement as sought by the plaintiff shareholders in the case. In their cert petition, the shareholders challenge the Fifth Circuit’s severance analysis and refusal to invalidate the amendment based on the FHFA’s unconstitutionality. In their cert petition, the FHFA and Treasury challenge the Fifth Circuit’s reversal of the district court’s dismissal of the plaintiffs’ statutory claim against the FHFA.
We previously commented that because the Supreme Court has agreed to decide in Seila Law whether the CFPB’s structure is constitutional and whether severance of the Dodd-Frank Act’s for-cause removal provision would be the appropriate remedy for a constitutional violation, and resolution of those questions could impact the amendment’s validity, the Supreme Court might grant the petitions and hold them pending its ruling in Seila Law. The absence of any orders from the January 10 conference on the certiorari petitions in Collins could indicate that the Supreme Court is instead holding a decision on the petitions until it issues a ruling in Seila Law.