In the lawsuit challenging the CFPB’s final credit card late fee rule (Rule), the Fifth Circuit has denied the CFPB’s petition for a panel rehearing to reconsider the panel’s order vacating the district court’s order transferring the case to the U.S. District Court for the District of Columbia and issuing a writ of mandamus directing the district court to reopen the case. Judge Higginson, who dissented from that ruling, also dissented from the denial of the CFPB’s petition for a panel rehearing, stating that he “would grant the panel rehearing based both on the manufactured nature of Petitioners’ urgency…and the unworkability, more broadly, of finding effective denial here.”
Last week, the Fifth Circuit entered an order vacating the district court’s order denying the plaintiffs’ motion for expedited consideration of their preliminary injunction motion and remanding the case to the district court with instructions to rule on the plaintiffs’ preliminary injunction motion by May 10, 2024. The Rule becomes effective on May 14, 2024. The motion for preliminary injunction in the district court has already been fully briefed. While the district court could now schedule a hearing on the motion, the Fifth Circuit’s order requires the district court to rule on the preliminary injunction motion by May 10 without to regard to whether a hearing is held. A ruling by May 10 on the preliminary injunction motion should allow sufficient time for the losing party to obtain relief in the Fifth Circuit, but there is no assurance that the May 14 effective date will be delayed.
At the time the Fifth Circuit entered the order, the plaintiffs’ appeal from the district court’s order denying the plaintiffs’ motion for expedited consideration of their preliminary injunction motion (which is framed as an appeal from the effective denial of the plaintiffs’ preliminary injunction motion) was pending before the Fifth Circuit and an expedited briefing schedule was in place. In response to a request for clarification from the CFPB, the Fifth Circuit has indicated that this briefing schedule has been vacated.