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All American Check Cashing seeks initial en banc hearing in Fifth Circuit

All American Check Cashing has filed an Unopposed Petition for Initial Hearing En Banc in which it asks the Fifth Circuit to hear its interlocutory appeal as an initial matter en banc.  The petition states that it is not opposed by the CFPB.

In April 2018, the Fifth Circuit agreed to hear All American’s interlocutory appealfrom the district court’s ruling upholding the CFPB’s constitutionality.  Last month, in Collins v. Mnuchin, a Fifth Circuit panel found that the Federal Housing Finance Agency (FHFA) is unconstitutionally structured because it is excessively insulated from Executive Branch oversight.

All American’s petition is filed pursuant to Rule 35 of the Federal Rules of Appellate Procedure which establishes the standard for seeking an initial en banc hearing or a rehearing en banc.  The rule provides that “[a]n en banc hearing or rehearing is not favored and ordinarily will not be ordered unless: (1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or (2) the proceeding involves a question of exceptional importance.”

In its petition, All American argues that the question of the CFPB’s constitutionality is one of exceptional importance and that if its appeal is heard under the normal panel process, the Fifth Circuit “will likely be asked to rehear that panel’s decision en banc, as occurred in the D.C. Circuit’s PHH case.”

Noting that the plaintiffs in Collins have filed a petition for rehearing en banc with the Fifth Circuit, All American argues that hearing its appeal through the normal panel process “could be a waste [of] judicial resources, especially if this Court votes to rehear Collins en banc.”  It also argues that initial consideration of its appeal en banc “would eliminate any possibility of intra-circuit inconsistency and guarantee that the Fifth Circuit speaks with one voice regarding the constitutionality of [the FHFA’s and the CFPB’s] structures.”

All American asks the Fifth Circuit, if it agrees to hear the appeal en banc as an initial matter, to set oral argument in the Fifth Circuit’s January 2019 en banc sitting, or if it also votes to rehear Collins en banc, to coordinate oral argument for both cases.  All American suggests the following schedule for en banc briefing, which it states the CFPB does not oppose:

  • All American’s en banc brief: Due September 11, 2018
  • CFPB’s en banc brief: Due October 11, 2018
  • All American’s en banc reply: Due November 1, 2018
  • Amicus Curiae en banc briefs: Due the same day as the supported party

The question of the CFPB’s constitutionality could soon reach the Second Circuit in the RD Legal Funding case.  In that case, the CFPB has indicated that it will seek approval for a motion asking the district court to enter a final judgment under Rule 54(b) to allow the CFPB to immediately appeal from the court’s June 21 order which held that that the CFPB’s structure is unconstitutional.

Copyright © by Ballard Spahr LLPNational Law Review, Volume VIII, Number 227


About this Author

Kaplinksy, partner, New York, finance

Alan S. Kaplinsky is Co-Practice Leader of the firm's Consumer Financial Services Group, which has more than 115 lawyers. Mr. Kaplinsky devotes his practice exclusively to counseling financial institutions on bank regulatory and transactional matters, particularly consumer financial services law, and defending financial institutions that have been sued by consumers in individual and class action lawsuits and by government enforcement agencies. Visit Mr. Kaplinsky's profile in Wikipedia.