December 2, 2022
A federal appellate court’s ruling that the funding structure for one federal agency is unconstitutional has created a situation where the agency’s actions could be treated differently in different parts of the country, McGuireWoods Raleigh and Washington, D.C., partner Jonathan Ellis told S&P Global in a Nov. 30, 2022, story.
The U.S. Court of Appeals for the Fifth Circuit ruled that the funding mechanism for the Consumer Financial Protection Bureau is unconstitutional. In November, the CFPB filed a writ of certiorari with the U.S. Supreme Court. In the meantime, more targets of CFPB lawsuits are seeking dismissal of their cases based on the Fifth Circuit’s decision, S&P Global reported, and where possible, challengers to the agency’s actions are filing their cases in the Fifth Circuit’s jurisdiction.
But “not everybody can sue in the Fifth Circuit,” and the decision of that court “doesn’t govern other circuits,” Ellis, co-chair of McGuireWoods’ appellate practice, told S&P Global. It remains to be seen whether other courts will follow the Fifth Circuit’s ruling.
Before joining McGuireWoods, Ellis served as assistant to the solicitor general of the United States. In that role, he was the principal drafter of the winning briefs in Seila Law v. CFPB, the last constitutional challenge to the CFPB’s structure to be resolved by the Supreme Court. He served as law clerk to Chief Justice of the United States John G. Roberts, Jr., and has argued nine cases before the Supreme Court.