December 1, 2016

Defendant Seeks Supreme Court Review in Gordon v. CFPB

4 min

On November 17, 2016, the defendant in CFPB v. Chance Edward Gordon filed his appeal to the U.S. Supreme Court from a Ninth Circuit opinion affirming his liability for deceptive practices in connection with mortgage relief services.

The petition addresses the ratification of government action alleged to be ultra vires at the time the action was taken, as well as a subject-matter jurisdiction question regarding whether federal courts' Article III jurisdiction exists when the federal official heading the agency and bringing the case does not have the proper authority at the time the case is litigated.

In his petition for a writ of certiorari, the defendant contends primarily that because CFPB Director Richard Cordray was not validly appointed as an Officer of the United States before his July 2013 confirmation by the Senate, Director Cordray's post-confirmation ratification of the Bureau's actions during the previous 18 months was invalid.

The defendant argues that Director Cordray was not properly appointed under the President's recess appointment power, and, thus, Director Cordray was a "private citizen" who had no authority to initiate any pre-confirmation enforcement actions (including the federal court action against the defendant). The defendant then argues that Director Cordray's post-confirmation ratification – a four-sentence Federal Register notice – of all previous Bureau actions violated Article II of the Constitution. Specifically, he asserts that under FEC v. NRA Political Victory Fund, 513 U.S. 588 (1994), Director Cordray cannot be permitted to "retroactively affirm ultra vires acts without giving more than a momentary thought to their propriety."

The defendant points to the Supreme Court's decision in FEC v. NRA Political Victory Fund to identify a split among the federal courts of appeal on when ratification is permissible. In that case, the Supreme Court held that "the party ratifying should be able not merely to do the act ratified at the time the act was done, but also at the time the ratification was made." According to the petition, the Ninth Circuit's decision here contradicted this holding because Director Cordray was not validly appointed at the time the Bureau initiated its lawsuit against him, and therefore Cordray would not have been "able to do the act ratified at the time the act was done." Furthermore, the petition contends that the Ninth Circuit's decision sharply splits from recent decisions by the D.C. Circuit (Intercollegiate Broadcasting System, Inc. v. Copyright Royalty Bd., 796 F.3d 111, 117 (D.C. Cir. 2015) and the Third Circuit (Advance Disposal Services East, Inc. v. NLRB, 820 F.3d 592 (3d Cir. 2016), which involved ratification only after additional analysis and not "blind[] affirm[ation]" by the ratifier.

Finally, the defendant argues that because Director Cordray's initiation of a federal court action against him was ultra vires, the district court lacked subject matter jurisdiction. In other words, because "nobody in the Executive Branch possessed authority to enforce the Dodd-Frank Act's new consumer protection laws," the Bureau lacked executive standing and the district court, in turn, lacked subject matter jurisdiction. The petition asserts that this is a separation of powers issue, which, according to the filing, are "highlighted by the D.C. Circuit's recent PHH decision."

The CFPB's brief in opposition is currently due on December 22, 2016, though this date can be automatically extended by the CFPB under Supreme Court Rules. Assuming the CFPB's response deadline is extended, the defendant would then have approximately 10 days to file his Reply (approximately January 30, 2017). The cert petition and all briefing would then be distributed to the Court for consideration by approximately early February 2017. The Court would then consider whether to grant certiorari and announce its decision about whether to hear the case by roughly the end of February 2017. If certiorari is granted, the Court will enter a briefing scheduling and set the case for oral argument. If certiorari is denied, then the decision of the Ninth Circuit stands and, in accordance with the Ninth Circuit's decision, the case would be remanded to the district court for further consideration of the proper scope of monetary relief.