LEGAL NEWSLINE

On Nov. 17, the Washington Legal Foundation (WLF) filed a petition with the U.S. Supreme Court on behalf of its client, Chance Gordon, seeking review of Gordon v. Consumer Financial Protection Bureau (CFPB).

In the petition, the WLF is asking the Supreme Court to review a Ninth Circuit decision that it says deviates from previous Supreme Court rulings on when and how a federal agency may ratify prior conduct that was not allowed at the time the agency took the action.

The WLF has requested the that the U.S. Supreme Court strike down the CFPB’s attempted ratification of a civil judgment against Gordon for alleged violations of consumer protection laws.

The WLF is arguing the CFPB's director, Richard Corday, lacked the authority to prosecute the enforcement against Gordon. The WLF contends that because Corday's appointment had not yet been ratified by the U.S. Senate his ruling lacks legitimacy. 

“We decided to issue the writ after looking at the facts in the case and determining it could have wide-ranging implications for how federal appointments are ratified,” Mark Chenoweth, general counsel at WLF, told Legal Newsline.

Cordray was a President Barack Obama recess appointment in 2012, Ultimately, that appointment was found to be unconstitutional, but he was renominated and confirmed in 2013.

The WLF is basing its argument on two issues - the Supreme Court's ruling in Noel v. Canning and Ninth Circuit Judge Sandra Ikuta's strong dissent from the rest of the court.

Chenoweth said in Noel v. Canning, the Supreme Court rejected National Labor Relations Board recess appointments made without a thorough of review for the candidate.

The second issue focuses on Ikuta's dissent, in which she argued that because Corday's appointment was invalid he never had the necessary standing to file suit against Gordon. 

“We were struck by how strongly worded Judge Ikuta's dissent was,” Chenoweth said. “So together, with both the Noel v. Canning ruling and Judge Ikuta's argument, we feel that a strong precedent has been established here.”

Chenoweth added that the Supreme Court's reaction to the WLF's petition could have wide-ranging consequences for how appointments to federal agencies are made while the U.S. Senate is at recess.

If the writ is accepted and the case continues it would make it much harder for poorly scrutinized and rushed appointments to be ratified, he said.

However, if the writ is rejected and the Ninth Circuit's ruling is left to stand, it would make it much easier for recess appointments to act without restriction, WLF says.

This could undermine the U.S. Senate's role in their authorization, essentially giving future Presidents a free pass to install executive officers without confirmation, WLF says.

“I think that if the case is rejected it would set a troubling precedent,” Chenoweth said. “It would incentivize government agencies to not only circumvent the Senate through recess appointments it would also encourage them to be far less thorough in their research.”