Consumer Fin. Prot. Bureau v. Gordon, No. 13-56484 (9th Cir. 2016)Annotate this Case
Chance Gordon, a licensed California attorney, appealed the district court's order of summary judgment for the CFPB on its enforcement action for violations of the Consumer Financial Protection Act, 12 U.S.C. 5531, 5536, and Regulation O, 12 C.F.R. 1015.1-11. On January 4, 2012, President Obama, relying on his recess-appointment power, named Richard Cordray as the CFPB’s initial Director. President Obama renominated Cordray as Director on January 24, 2013. The parties agree that while Cordray’s initial January 2012 recess appointment was invalid, his July 2013 confirmation was valid. The court concluded that, while the failure to have a properly confirmed director may raise Article II Appointments Clause issues, it does not implicate the court's Article III jurisdiction to hear this case. That its director was improperly appointed does not alter the Executive Branch’s interest or power in having federal law enforced. The subsequent valid appointment, coupled with Cordray’s August 30, 2013 ratification, cures any initial Article II deficiencies. Because the CFPB had the authority to bring the action at the time Gordon was charged, Cordray’s August 2013 ratification, done after he was properly appointed as Director, resolves any Appointments Clause deficiencies. On the merits, the court concluded that CFPB is entitled to summary judgment on all counts because there is no dispute as to material fact regarding Gordon's liability. Because the district court conscientiously tailored the injunction at issue, it did not abuse its discretion in granting equitable judgment. However, because the district court may have impermissibly entered a monetary judgment against Gordon for a time period prior to the enactment or effective date of the relevant provisions of the CFPA and Regulation O, the court vacated and remanded for further consideration.