Gibson, Dunn & Crutcher offices in Washington. Credit: Diego M. Radzinschi/ ALM

Conservative appellate lawyers from major U.S. law firms are vying against each other at the U.S. Supreme Court as the justices weigh whether to hear arguments against the Consumer Financial Protection Bureau, an agency whose independent, single-director design long has drawn the ire of the financial industry and congressional Republicans.

It's the legal equivalent of elbow-throwing at the high court. Appellate lawyers representing different clients have given the justices competing arguments against the consumer bureau, framing their cases as the best path to confront a constitutional question that has reverberated in the lower courts, and divided them, for several years.

The Supreme Court is expected to announce soon whether the justices will hear any challenge to the structure of the consumer bureau, whose sole leader can only be removed from power for cause, not at will. Critics of the agency, which has reaped billions in penalties from financial companies, contend the power scheme violates the Constitution's separation of powers clause. A Supreme Court ruling against the bureau could carry implications for pending investigations and enforcement actions.

A team from Gibson, Dunn & Crutcher, including Theodore Olson, who served as the U.S. solicitor general in the George W. Bush administration, and Helgi Walker, a leader of the firm's regulatory group, late Monday asked the Supreme Court to take a case that the firm has overseen in the U.S. Court of Appeals for the Fifth Circuit. The move was remarkable, as the lawyers urged the Supreme Court to review the case even though the lower appeals court has yet to issue its opinion.

Gibson Dunn's filing was notable for another reason: It came as the Supreme Court is set to consider on Oct. 11 a separate petition from Seila Law, a California-based debt resolution firm that is represented by Paul, Weiss, Rifkind, Wharton & Garrison partner Kannon Shanmugam. Shanmugam, whose client lost in the Ninth Circuit, pitched the case in June to the U.S. Supreme Court.

Paul, Weiss, Rifkind, Wharton & Garrison offices in Washington, D.C. Credit: Diego M. Radzinschi/ NLJ

"This case, which cleanly presents the question whether the CFPB is constitutional, is an ideal vehicle for the court's review. And the court's resolution of the question presented is urgently needed," Shanmugam wrote in his petition. He added: The constitutionality of the consumer bureau's structure "has sweeping legal and practical ramifications."

Paul Weiss and Gibson Dunn are squarely on the same side against the consumer bureau, but Gibson Dunn lawyers have fought the agency's structure longer than the Paul Weiss team and they contend their case is better suited for the justices. Shanmugam jumped into the dispute after Seila Law lost this summer in the Ninth Circuit. Gibson Dunn lawyers, including Olson, had pressed their constitutional claims against the CFPB for more than three years.

The Trump administration's Justice Department and the CFPB itself are now on the side of the business community, supporting Seila Law's challenge against the agency.

In Monday's filing, the Gibson Dunn lawyers presented client All American Check Cashing's challenge as the best case for the justices to confront the constitutionality of the CFPB. Olson, as counsel of record, and Walker contend that their case tees up an issue that Paul Weiss does not directly address: What's the remedy for companies if the court strikes down the single-director structure of the CFPB?

That question, Walker said, is where the "constitutional rubber hits the road, and if it is not addressed, the current uncertainty about what should actually happen in cases involving the CFPB will only grow." All American Check Cashing's attorneys have argued the CFPB's case should be dismissed if the bureau's structure is declared unconstitutional.

"Our case is an ideal vehicle because it raises not just the merits question but the absolutely essential question of remedies: If the CFPB is unconstitutionally structured, what does that mean as a practical matter?" said Walker, who argued for All American Check Cashing in the Fifth Circuit. "What good does it do for a litigant to 'win' on the constitutional question if the government action against him simply goes on as if the constitutional violation never happened, as some lower courts have held?"

Shanmugam declined to comment Monday about the Gibson Dunn petition.

Gibson Dunn's petition also appears to draw a contrast between the court action the CFPB took against All American Check Cashing and Seila Law. In a Mississippi federal court, the CFPB sued All American Check Cashing for allegedly deceiving customers. The CFPB went after Seila Law to force the firm to respond to an administrative subpoena, known as a civil investigative demand, that can be a precursor to a lawsuit.

Gibson Dunn lawyers told the Supreme Court that both cases raise the constitutional question. But the bureau's case against All American Check Cashing, unlike its lawsuit against Seila Law, "indisputably involves the exercise of core executive power by the CFPB: the initiation of a federal court civil enforcement action against All American on the merits," the Gibson Dunn lawyers wrote.

"Although the Fifth Circuit has not yet rendered a decision, there is nothing to be gained by waiting: The case for the constitutionality of the agency, pro and con, has already been exhaustively explored in the circuit courts in numerous thoughtful opinions," Olson and Walker wrote in their petition. They pointed to a pair of federal appeals court decisions upholding the CFPB's structure as constitutional.

The two CFPB cases, meanwhile, are not the only matters that confront the power of single-director agency heads.

Another prominent conservative lawyer has argued that the Supreme Court should address the constitutional question in a case that involves the Federal Housing Finance Agency, whose director enjoys similar protections against a politically motivated firing.

Charles Cooper of Washington's Cooper & Kirk, representing Fannie Mae and Freddie Mac shareholders, urged the justices a week ago to take his case, arriving from the Fifth Circuit. The appeals court ruled in favor of Cooper's clients, who argued the Federal Housing Finance Agency—like the CFPB—is unconstitutionally structured.

Charles Cooper of Cooper & Kirk at the White House last year. Credit: Diegp M. Radzinschi / NLJ

Cooper noted in his petition that the federal housing agency, unlike the CFPB, is standing by the lawfulness of its single-director power setup. The CFPB only recently switched sides, choosing to back arguments that the president should have the power to remove the director for any reason, not just for cause.

The justices would need to appoint a lawyer to defend the Ninth Circuit's decision in favor of the CFPB in the Seila Law case. The federal housing agency case doesn't present the same problem, Cooper told the justices. The Supreme Court would be able to hear directly from the federal housing agency, which is defending its single-director design.

"This case is a better vehicle than Seila Law because it concerns an agency that is currently defending its constitutional structure," Cooper wrote in his petition. "While the Solicitor General says that the Court can assure an adversary presentation by appointing an amicus to defend the statute in Seila Law, there is a simpler solution for guaranteeing an adversary presentation of the issues: grant certiorari in this case and let FHFA defend the constitutionality of its organic statute."

 

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