The Committee on Codes of Conduct of the Judicial Conference of the United States (Committee) has unanimously concluded that Fifth Circuit Judge Willett is not required to recuse in the trade group plaintiffs’ appeal in their lawsuit challenging the CFPB’s final credit card late fee rule (Rule).

Last Friday, pursuant to a directive issued by the Clerk of the Fifth Circuit, the trade group plaintiffs and the CFPB filed letter briefs with the Fifth Circuit regarding whether an ownership interest in a nonparty large credit card issuer would be substantially affected by the outcome of the case.  The directive was triggered by media reports that Judge Willett owns shares in a large credit card issuer that would be covered by the Rule and the filing of a letter by the CFPB with the Fifth Circuit stating that, “in addition to the party associations listed in the Chamber, et al.’s Certificates [of Interested Persons filed with the court], large credit card issuers—those that, together with their affiliates, have one million or more open credit card accounts—have a financial interest in the outcome of the litigation.”  Judge Willett authored the Fifth Circuit decision vacating the Texas federal district court’s order transferring the case to D.D.C. and issuing a writ of mandamus directing the district court “to reopen the case and give notice to D.D.C. that its transfer was without jurisdiction and should be disregarded.”  Pursuant to such notice, D.D.C. has terminated the case on its docket.

The Fifth Circuit’s docket indicates that the directive and letter briefs were forwarded to the Committee by Judge Willett with a request for “an expedited opinion as to whether there is any legitimate basis for recusal or disqualification under the ethical canons that apply to federal judges.”  The docket states that “[t]he Committee has issued its decision, unanimously concluding that nothing in the Code of Conduct requires recusal in either appeal.”  (The Committee’s opinion does not appear on the docket.)  The reference to “either appeal” presumably means the Committee concluded that Judge Willett was not required to recuse in the Fifth Circuit’s consideration of the plaintiffs’ petition for a writ of mandamus nor is he required to recuse in the plaintiffs’ appeal from the “effective denial” of their preliminary injunction motion. 

On March 25, the date on which the plaintiffs filed their Notice of Appeal, the plaintiffs also filed an emergency motion with the Fifth Circuit seeking an administrative stay of the Rule “and, ultimately, an injunction [to enjoin the Rule] pending appeal.”  The CFPB has opposed the emergency motion.  On March 26, the Fifth Circuit entered a briefing schedule that requires the plaintiffs to file their brief in the appeal by May 6.  (The CFPB’s brief will be due 21 days thereafter.)  The plaintiffs are likely to either seek a ruling on their emergency motion or seek to accelerate the briefing schedule on their appeal so that a decision on a preliminary injunction can be issued before the Rule’s May 14 effective date.