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
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.