This past Friday, March 20, the Fifth Circuit entered an order granting rehearing en banc in All American Check Cashing. The Fifth Circuit also vacated the 2-1 panel decision issued on March 3 (the same day that the U.S. Supreme Court heard oral argument in Seila Law) that ruled that the CFPB’s structure is constitutional.
The Fifth Circuit’s order states that “a majority of the circuit judges in regular active service and not disqualified hav[e] voted, on the Court’s own motion, to rehear this case en banc.” It also states that oral argument will be held “on a date hereafter to be fixed.”
Pursuant to Fifth Circuit Rule 35, any active member of the court or any member of the panel rendering the decision can request a poll of the court’s active members “whether rehearing en banc should be granted, whether or not a party filed a petition for rehearing.” Such a request triggers the following procedures:
- The requesting judge will ordinarily send a letter to the Chief Judge with copies to the other active judges and any other panel member.
- Each active judge casts a ballot and sends a copy to all other active judges and any senior judge who is a panel member. The ballot indicates whether the judge voting desires oral argument if en banc rehearing is granted.
- If a majority of active judges who are not disqualified vote for en banc rehearing, the Chief Judge instructs the clerk as to an appropriate order indicating a rehearing en banc with or without oral argument has been granted.
- If the vote is unfavorable to the grant of rehearing en banc, the Chief Judge advises the requesting judge. The panel originally hearing the case then enters an appropriate order.