Moroney v. CFPB

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CASE STATUS:
Notice of Appeal

CASE START DATE:
December 19, 2019

DECIDING COURT:
U.S. Court of Appeals for the Second Circuit

ORIGINAL COURT:
U.S. District Court for the Southern District of New York

 

CASE SUMMARY

The New Civil Liberties Alliance has filed a lawsuit in the U.S. District Court for the Southern District of New York challenging the funding mechanism for the Consumer Financial Protection Bureau (CFPB) as unconstitutional. Specifically, NCLA alleges that Congress unlawfully divested its legislative appropriations power when it gave CFPB the ability to draw funding directly from the Federal Reserve, without annual appropriations from Congress and without oversight from the appropriations committees of Congress. By giving the power of the purse—a core legislative power—over to an executive branch agency, Congress violated Article I of the Constitution, which vests ALL legislative power in Congress, including appropriations power.

This case, entitled Law Offices of Crystal Moroney v. Bureau of Consumer Financial Protection, may ultimately provide the U.S. Supreme Court the opportunity to revive the Non delegation Doctrine that five justices expressed interest in revisiting earlier this year in the wake of last June’s Gundy v. United States decision.

NCLA also contends that CFPB acted beyond its constitutional authority when it targeted Ms. Maroney’s Law Firm with a Civil Investigative Demand, withdrew that CID on the cusp of her federal court hearing challenging it, and then promptly issued a new CID practically identical to the original one as soon as the case was dismissed as moot. The complaint asks the Court to redress this fundamental denial of Crystal Moroney’s right to due process.

Finally, the case also preserves the objection that Congress may not vest executive authority in CFPB, an independent agency led by a single director, while also shielding that agency’s director from Presidential oversight and removal. Such a regime clearly violates the President’s constitutional duty to “take Care” that the laws are faithfully executed. That objection to CFPB’s structure is pending at the U.S. Supreme Court in Seila Law, LLC v. CFPB. NCLA filed an amicus curia brief in that case this week too, arguing that the President must have the power to remove any federal officer who exercises executive power. 

CASE DOCUMENTS

July 15, 2020 | Response to Order to Show Cause
June 9, 2020 | Letter-Motion to Consolidate and Stay
April 30, 2020 | Amended Verified Complaint for Permanent Injunctive and Declaratory Relief
April 27, 2020 | Amended Petition to Enforce Civil Investigative Demand
February 27, 2020 | Plaintiff's Reply in Support of Motion for Preliminary Injunction

Plaintiff Law Offices of Crystal Moroney, P.C., comes before the Court to challenge a civil investigative demand (CID) that itself imposes no binding obligations on Plaintiff. And the CID will not impose any such obligations unless and until Defendant Consumer Financial Protection Bureau files a petition to enforce it in district court. When and if that happens, Plaintiff will have a chance to raise any legal objections it may have to the CID. Until then, Plaintiff faces no risk of fine or penalty if it simply does nothing.

Nonetheless, Plaintiff claims that the Court must immediately resolve its various constitutional objections to the CID. At the same time, it claims that the Court must enjoin the Bureau from filing the sort of CID-enforcement proceeding that could resolve Plaintiff’s objections in the context of an actual case or controversy between the parties. And Plaintiff makes these requests after having previously asked another judge of this Court to delay resolving its constitutional claims and then, after Plaintiff effectively prevailed in that action on other grounds, asking the court to re-open the case.

The law that established the Bureau and authorizes it to issue CIDs also put in place a comprehensive scheme of administrative and judicial review meant to avoid this sort of maneuvering by serving as the exclusive means to resolve disputes over CIDs. Plaintiff seeks to circumvent that scheme by pursuing this unripe collateral attack on the CID. The Court thus lacks jurisdiction over Plaintiff’s claims. For this reason, among others set out in this brief, Plaintiff cannot show the likelihood of success on the merits that it needs to justify a preliminary injunction. Plaintiff also cannot show that it will suffer irreparable injury if the Bureau seeks to enforce the CID in court or issues any additional non-self-enforcing CIDs.

The Court should deny Plaintiff’s motion for extraordinary emergency relief.

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February 03, 2020 | Defendants’ Opposition to Motion for Preliminary Injunction

Plaintiff Law Offices of Crystal Moroney, P.C. (“Ms. Moroney’s Law Firm”) submits this Complaint for Permanent Injunctive and Declaratory Relief to prohibit Defendant Bureau of Consumer Financial Protection, also known as the Consumer Financial Protection Bureau (“the Bureau” or “CFPB”), and Defendant Director Kathy Kraninger, from perpetuating a lawless and retaliatory Civil Investigative Demand against Ms. Moroney’s Law Firm, and alleges as follows:

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January 22, 2020 | Order to Show Cause
January 21, 2020 | Memorandum of Law in Support of Plaintiff’s Motion for Preliminary Injunction

The Law Offices of Crystal Moroney, P.C. (“Ms. Moroney’s Law Firm” or “she” or “her”) urgently needs judicial intervention to preserve the status quo and forestall the irreparable harm being caused by the Bureau of Consumer Financial Protection’s (the “Bureau” or “CFPB”) and CFPB Director Kathy Kraninger’s continuing and systematic violation of the Plaintiff’s fundamental right to due process. If the Defendants’ unconstitutional abuses of process persist unabated, Ms. Moroney’s Law Firm is likely to become insolvent, and she will not be able to seek redress of her grievances in the future, exacerbating the irreparable constitutional harms she continues to suffer. Thus, the Plaintiff respectfully requests that this Court temporarily enjoin the Defendants from conducting investigations into Ms. Moroney’s Law Firm—including issuing Civil Investigative Demands (CIDs) to third parties—and to prohibit issuance of future CIDs that target the Plaintiff, while this case is pending.

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December 18, 2019 | Verified Complaint for Permanent Injunctive and Declaratory Relief

Plaintiff Law Offices of Crystal Moroney, P.C. (“Ms. Moroney’s Law Firm”) submits this Complaint for Permanent Injunctive and Declaratory Relief to prohibit Defendant Bureau of Consumer Financial Protection, also known as the Consumer Financial Protection Bureau (“the Bureau” or “CFPB”), and Defendant Director Kathy Kraninger, from perpetuating a lawless and retaliatory Civil Investigative Demand against Ms. Moroney’s Law Firm, and alleges as follows:

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PRESS RELEASE

August 18, 2020 | SDNY Judge Recognizes CFPB Acted Unconstitutionally, but Still Enforces CID Against NCLA Client

Washington, DC (August 18, 2020) – Oral argument was held telephonically today in Bureau of Consumer Financial Protection v. Law Offices of Crystal Moroney in the Southern District of New York. At the conclusion of argument, U.S. District Judge Kenneth M. Karas handed down a decision from the bench granting CFPB’s Petition to Enforce the Civil Investigative Demand (CID) it issued to the Law Offices of Crystal Moroney, P.C. The New Civil Liberties Alliance disagrees with the court’s ruling on numerous grounds but also recognizes that this case was always destined for higher court resolution given the current state of nondelegation precedent in lower courts.

The court ruled that while the Supreme Court’s Seila Law decision did not reach the Bureau’s unique funding structure, CFPB’s funding regime does not violate the Vesting or Appropriations Clauses of Article I. NCLA argued that CFPB’s funding structure violates the Appropriations Clause because the Bureau—not Congress—decides how much funding it receives each year and that Congress cannot divest its power of the purse or any other core legislative power. The court ruled CFPB had not done so here because it specified a formula in statute for the ceiling of how much the Bureau could obtain in annual funding.

The court also recognized that Seila Law’s holding applies to this case. Hence, as NCLA alleged, CFPB Director Kathy Kraninger was not lawfully empowered to act at the time the Bureau issued the CID because she was unconstitutionally insulated from removal by the President. However, the court ruled that she could nevertheless ratify her own prior invalid actions because the Bureau—not Kraninger herself—was the principal at the time of the unlawful act. NCLA disagrees with this ruling for several reasons, but one the court’s ruling failed to address stands out. Director Kraninger knew she was acting unconstitutionally at the time she acted in Nov. 2019—having admitted her unconstitutional status to Congress the previous September. This court today became the first ever to grant ratification where the ratifier knew what she was doing was unconstitutional in the first instance. NCLA will fully explore the possibility of appealing this and other aspects of the court’s decision.

It is unclear how this ruling impacts NCLA’s affirmative case against CFPB (filed in December 2019).  While the court acknowledged that NCLA prevailed in its request for declaratory judgment that the Director was unconstitutionally insulated from removal by the President after Seila Law, the court did not comment on the other requests for relief presented in that case.

NCLA released the following statements: 

 “It took Ms. Moroney three years and $80,000—to say nothing of the stress and strain on her personal and professional life—to finally get her day in court to defend against the CFPB’s unconstitutional structure and abusive practices. While we are disappointed with the result, we are eager to advance our arguments on appeal, where we hope to vindicate Ms. Moroney’s civil liberties once and for all.”

  Michael P. DeGrandis, Senior Litigation Counsel  

“The result in this case shows the enfeebled nature of the current Nondelegation Doctrine in the lower federal courts. Congress gave away its birthright by funding CFPB through the Federal Reserve rather than with direct appropriations. If Congress can divest the core legislative power of the purse, which Article I of the Constitution vests in it, then the current version of the doctrine has outlived its usefulness. Thankfully, a majority of the U.S. Supreme Court has already signaled its willingness to revisit this crucial constitutional issue.”

  Mark Chenoweth, Executive Director & General Counsel  

 ABOUT NCLA 

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

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July 16, 2020 | NCLA Disputes CFPB Enforcement Action on Ground that Agency Is Unconstitutional post-Seila Law

Washington, DC (July 16, 2020) – The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, filed a response last night to an order to show cause in Bureau of Consumer Financial Protection v. Law Offices of Crystal Moroney, P.C. in the U.S. District Court for the Southern District of New York. NCLA is challenging the Consumer Financial Protection Bureau’s (CFPB) unconstitutional manner of being funded and its Director’s doomed attempts to ratify her own prior actions, taken while her authority to act was unconstitutional.

Crystal Moroney and her law firm have been on the receiving end of the Bureau’s “knee-buckling” power to punish private citizens for more than three years. CFPB has not brought this lawsuit against Ms. Moroney on the basis of a consumer complaint, but rather on a pure fishing expedition into how her firm practices law. She has spent tens of thousands of dollars providing CFPB with thousands of pages of documents, generating dozens of reports, and answering more than 80 interrogatories. Despite her prodigious efforts to comply, CFPB is asking the court to force her to turn over attorney-client privileged documents—which she will not do. This is the second time the agency tries to interfere with Ms. Moroney’s attorney-client relationships.

CFPB’s unconstitutional design, which combines extraordinary power with unparalleled institutional independence, is at the root of its dysfunction and its scorn for civil liberties. From the outset, Congress unlawfully divested its power to make appropriations through law when it gave CFPB the ability to draw funding directly from the Federal Reserve on demand, without any oversight from Congress.

In a recent Supreme Court decision, Seila Law LLC v. CFPB, the Supreme Court declared the Director’s insulation from presidential control unconstitutional, but the Court did not address whether Congress may divest itself of its constitutional duty to fund government operations through appropriations. After Seila Law, the Director is answerable to the President. So, the President may now demand more than half a billion dollars per year in off-the-books funds, free from congressional oversight. He controls the enforcement agenda of a free-wheeling agency capable of financially ruining individuals and businesses caught in its crosshairs.

Seila Law has rendered CFPB’s decision-making process defective on multiple levels but has also brought new issues with the validity of the prior CID’s enforcement. Previous actions taken by an unconstitutionally structured agency must be nullified. The Bureau’s only lawfully acting principal prior to Seila Law was the President of the United States. Therefore, only the President could ratify the unconstitutionally insulated acts of pre-Seila Law Directors, but he has not. Thus, prior actions against the Law Offices of Crystal Moroney remain unenforceable.

NCLA urges the court to declare CFPB unconstitutional as funded and assert that the Bureau’s actions against Ms. Moroney’s law firm, while its Director was unconstitutionally insulated from removal, cannot be ratified by the agency director herself—the agent in the relationship—but only by the President.

NCLA released the following statement:

“CFPB is a rampaging Frankenstein’s monster. The Supreme Court cut out its Director’s unconstitutional for-cause removal provision in Seila Law, but the stitched-together abomination is still stumbling about wreaking havoc. The President now has absolute dominion over an agency that the Supreme Court described as having “knee-buckling” power to punish private citizens, with a direct pipeline to off-the-books funding without congressional appropriation. This unconstitutional monster must be stopped.”

— Michael P. DeGrandis, Senior Litigation Counsel, NCLA

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

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December 19, 2019 | NCLA Lawsuit Says CFPB Is Funded Unconstitutionally—Congress Cannot Divest Legislative Power

Washington, DC (December 19, 2019)​ – The New Civil Liberties Alliance has filed a ​lawsuit​ in the U.S.District Court for the Southern District of New York challenging the funding mechanism for the Consumer Financial Protection Bureau (CFPB) as unconstitutional. Specifically, NCLA alleges that Congress unlawfully divested its legislative appropriations power when it gave CFPB the ability to draw funding directly from the Federal Reserve, without annual appropriations from Congress and without oversight from the appropriations committees of Congress. By giving the power of the purse—a core legislative power—over to an executive branch agency, Congress violated Article I of the Constitution, which vests ALL legislative power in Congress, including appropriations power.

This case, entitled ​Law Offices of Crystal Moroney v. Bureau of Consumer Financial Protection​, may ultimately provide the U.S. Supreme Court the opportunity to revive the Nondelegation Doctrine that five justices expressed interest in revisiting earlier this year in the wake of last June’s ​Gundy v. United States decision.

NCLA also contends that CFPB acted beyond its constitutional authority when it targeted Ms. Maroney’s Law Firm with a Civil Investigative Demand, withdrew that CID on the cusp of her federal court hearing challenging it, and then promptly issued a new CID practically identical to the original one as soon as the case was dismissed as moot. The complaint asks the Court to redress this fundamental denial of Crystal Moroney’s right to due process.

Finally, the case also preserves the objection that ​Congress may not vest executive authority in CFPB, an independent agency led by a single director, while also shielding that agency’s director from Presidential oversight and removal. Such a regime clearly violates the President’s constitutional duty to “take Care” that the laws are faithfully executed. That objection to CFPB’s structure is pending at the U.S. Supreme Court in ​Seila Law, LLC v. CFPB​. NCLA filed an ​amicus curia​​ brief​ in that case this week too, arguing that the President must have the power to remove any federal officer who exercises executive power.

NCLA released the following statements: “Crystal Moroney and the law firm she has built are victims of the Administrative State. Her plight is all too familiar to those of us fighting to restore constitutional constraints on federal agencies. On the bright side, her case will afford an excellent opportunity to call into question the highly irregular—and almost certainly unconstitutional—way in which Congress has funded CFPB.”— ​Mark Chenoweth, NCLA Executive Director and General Counsel

“This case illustrates what happens to civil liberties when an administrative agency lacking anysemblance of control or oversight from the executive or legislative branches turns on the citizens it purportedly exists to serve. Only the judicial branch can vindicate Ms. Maroney’s civil liberties by restoring accountable,constitutional government.” — ​Michael P. DeGrandis, NCLA Senior Litigation Counsel

“The serial investigations of the Plaintiff expose the CFPB’s cynical investigatory practices andreprehensible litigation tactics for what they truly are—brazenly unconstitutional abuses of process. It is longpast time for CFPB to face the judicial scrutiny that it has so contemptuously circumvented over the last twoand a half years.” — ​Jessica Thompson, NCLA Litigation Counsel

ABOUT NCLA – NCLA is a nonprofit civil rights organization founded by prominent legal scholar ​Philip Hamburger​ to protectconstitutional freedoms from violations by the Administrative State. NCLA’s​​public-interest litigation andother ​pro bono​ advocacy strive to tame the unlawful power of state and federal agencies and to foster a newcivil liberties movement that will help restore Americans’ fundamental rights.For more information, visit us online: ​NCLAlegal.org​.

 

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