Divided Fifth-Circuit Panel Submits Untimely Amicus Brief in Seila Law v. CFPB

Courts of Appeals should resist the urge to opine on cases pending before the Supreme Court


On Tuesday, March 3, at 10:00 a.m., the Supreme Court heard oral arguments in Seila Law v. LLC. That case considered the constitutionality of the CFPB's structure. (I analyzed the arguments here.) At some time that same day (I am not sure the exact time), the Fifth Circuit decided CFPB v. American Check Cashing. This case also considered the constitutionality of the CFPB's structure.

Why would a federal court of appeals decide a case that is pending before the Supreme Court? I have criticized this practice before.

On February 15, 2018, the en banc Fourth Circuit declared Travel Ban 3.0 unlawful. But the Supreme Court had already granted cert Trump v. Hawaii on January 19, 2018. Perhaps the opinion offered some of the Justices alternate arguments to consider. Indeed, one commentator praised this aspect of post-cert circuit opinions. At the time, I described this decision as a judicial "amicus brief." That is, another document to influence the Supreme Court justices.

Flash back three more years. On March 23, 2015, the Supreme Court heard oral argument in Walker v. Texas Division, Sons of Confederate Veterans. This case considered whether Texas could deny a special vanity plate to the Sons of Confederate Veterans. On May 22, 2015, the Second Circuit decided Children First Foundation, Inc. v. Fiala. This case presented a very similar case, in which New York denied a "Pro Life" vanity plate. The Second Circuit ruled for New York. Ultimately, Justice Alito's Walker dissent cited Fiala. (I recall being critical of the Second Circuit's post-cert decision, but I can't find any tweets or blog posts I wrote at the time.)

Update: A reader kindly tracked down my tweet and blog post from 2015 about the Second Circuit's decision:

Back to the Fifth Circuit. Shortly after Seila was argued, a divided-panel ruled that the CFPB was constitutional. What did the Justices say about the timing. Well, the issue is a bit fuzzy. There are three judges on the panel: Judges Higginbotham and Higginson were in the majority, and Judge Smith dissented.

The opinion begins with a two-page statement by Judge Higginson, which I think serves as the majority opinion. Judge Higginbotham wrote a lengthy "concurring" opinion, joined by Judge Higginson, that provided all of the analysis. (Circuit practice can be strange.) Here is an excerpt from Judge Higginson's explanation, which no one else joined:

Therefore, I look forward to its [Seila's] likely resolution by the Supreme Court. As my colleagues are aware, my own preference in this specific, post-Collins case would have been to hold our matter several months in abeyance. FN1

* FN1: As I emphasize in my opening sentence, the constitutionality of the CFPB's removal provision was left open by the Collins majority, notwithstanding the contrary viewpoint expressed by my dissenting colleague. I would also add that there would have been no need for this panel's intercession had the court chosen to place this case in abeyance until the Supreme Court decides the identical issue that it heard today.

That preference was unpersuasive for reasons I respect and, indeed, I now am confident that views they may choose to elaborate will offer new insights to the Supreme Court. Three circuits have now weighed in on this important question, and the Supreme Court will benefit from those perspectives, as well as the comprehensive and well-reasoned brief of court-appointed amicus curiae. Given the many eloquent voices that have spoken on this question—in majority, concurring, and dissenting opinions—I see little reason to "re-plow the same ground here," Seila Law, 923 F.3d at 682

I agree with Judge Higginson's initial position: the case should be held in abeyance. To the extent that Judge Higginbotham and/or Judge Smith wanted to decide the case on March 3, the date of oral arguments, they erred.

But I disagree with Judge Higginson's post-hoc endorsement of his colleague's position. It is a mistake to view a court decision as simply another "perspective," akin to the "court-appointed amicus curiae." Paul Clement (the court-appointed amicus) filed a brief, which Kannon Shanmugam (counsel for petitioner) could respond to. By filing the panel opinion after the case was argued, none of the parties can reply. This decision resembles what is known as "virtual briefing," where non-parties weigh in on a case after it has been submitted. (I've done it myself!) Now, the Justices can consider the Fifth Circuit opinion, without any substantive response. Issuing the decision the day of arguments, and before the Justices' conference, is the worst possible option. It would have been better to drop the opinion last week, so the parties could at least talk about it before the Court.

I suspect Clement will notify the Supreme Court of the Fifth Circuit's decision. If so, the Supreme Court should allow an opportunity for supplemental briefing–don't let the Fifth Circuit get the final word.

I read the remainder of the Fifth Circuit's opinion, and I do not see any other reference to why the case was not held in abeyance. Judge Higginson may have been referencing some internal deliberations. I am also critical of judges who peel back the curtains. It would have been enough for Judge Higginson to say "I would have held the case in abeyance," without commenting on how his colleagues chose to proceed. Sometimes, less is more.

I would usually discuss the merits of this case, but frankly, it would not be a good usage of time. The Supreme Court will decide Seila in a few months. The Fifth Circuit's decision decision will either be GVR'd, or affirmed-but-supplanted by Seila.

Circuit Judges should know their role. When a Supreme Court case is pending, hold your pens.

NEXT: Alexander Hamilton, Free Press Law Pioneer: Episode 10 of My "Free Speech Rules" YouTube Video Series

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  1. I hope Justice Thomas follows through on his strong hints and strikes down all of these lawmaking independent agencies.

    How utterly undemocratic is it to have unaccountable, unfireable, bureaucrats making law?

    1. Depends on what you mean by democratic. If you mean anti-majoritarian then probably. But if you mean it in the sense of liberal/Western style democracy not necessarily. These systems prize continuity, professionalism, and independent considered judgment in government rather than having it be totally up to the friends of whichever strongman happens to be in power at any given moment.

      1. I’ll give you ‘continuity’ but do ‘professionalism, and independent considered judgment’ sound even vaguely like what we see out of our alphabet soup of regulators? Is that how you would characterize the decisions coming from the TSA, the IRS or even the Post Office?

        1. WTF did the post office do wrong?

          1. You mean besides repeatedly going bankrupt (or as close as a government-propped-up agency can get) and having a management team so disastrous that “going postal” is a phrase?

            Though I will grant you that they are less bad these days.

            1. Might help to know why the P.O. has persistent financial problems. One of the big reasons is Congress’ requirement that it prefund retiree health benefits 75 years in advance. Yes. You read that correctly. Blame Congress.

          2. It would be quicker to list the things they did right.

        2. Some are probably worse than others. But there’s also FERC, NRC, the National Archives, NTSB, FDIC, NASA, etc. And there’s also all the agencies under cabinet departments whose heads who have terms that are different than the President’s like the NIH, CDC, FAA, etc.

      2. rather than having it be totally up to the friends of whichever strongman happens to be in power at any given moment

        I guess I just like having my vote mean something.

    2. “I hope [Supreme Court]Justice Thomas follows through on his strong hints and strikes down all of these lawmaking independent agencies.

      How utterly undemocratic is it to have unaccountable, unfireable, [appointed] bureaucrats making law?”


      1. In some ways the bureaucrats, are sometimes more accountable than a lot of people in government. Take notice and comment rulemaking: they have to painstakingly explain things and respond to public comments anytime they do things, and if they do it wrong, a court might tell them to try again. While Congress is accountable at the polls, representatives never have to actually explain or think through anything they vote on, although it is probably good politics to do so. While judges write opinions and respond to arguments, they don’t have to take public comments into account at all, and in fact it’s discouraged to do beyond the parties arguments.

        1. *go beyond

      2. Only activist judges make law. You know, the liberal ones.

        1. Yeah. Thomas grafting his idiosyncratic historical understandings into his opinions is totally him just discovering the law as it exists out in nature. Not a form of activism at all.

          1. Your face is idiosyncratic. Justice Thomas is not. Look at all the precedent* he cites in his separate opinions!

            (Where, by “precedent,” I mean previous concurring or dissenting opinions by Justice Thomas.)

  2. “I am also critical of judges who peel back the curtains.”

    Because we should pay no attention to the men behind them?

  3. ” I am also critical of judges who peel back the curtains. ”

    Was Prof. Blackman critical of the person who leaked a judicial organization’s memorandum to him?

    Or should we insert the customarily apt “certain” before “judges” in that ostensible unqualified declaration?

  4. “Sometimes, less is more.”

    O, would that Blackman heed Blackman!

  5. So 1 judge on a 3 judge panel should have simply said he would have held it in abeyance as that wouldn’t give a look behind the curtain? Are you capable of basic math?

  6. “Why would a federal court of appeals decide a case that is pending before the Supreme Court?”

    Because Orange Man bad?

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