CFPB v. Chance Edward Gordon, 819 F.3d 1179 (9th Cir. 4/14/2016)
CFPB v. Chance Edward Gordon, 819 F.3d 1179 (9th Cir. 4/14/2016): Defendant Gordan on 11/17/16 filed his Petition for Certiorari, requesting the US Supreme Court to grant review by the US Supreme Court of the 9th Circuit’s decision against defendant Gordon. The 9th Circuit decision affirmed Gordon’s liability for Gordon having committed deceptive practices in connection with offering/providing/charging for mortgage modification services. The petition addresses the ratification of government action alleged to be ultra vires at the time the action was taken, as well as a subject-matter jurisdiction question regarding whether federal courts’ Article III jurisdiction exists when the federal official heading the agency and bringing the case does not have the proper authority at the time the case is litigated. In his petition for a writ of certiorari, the defendant contends primarily that because CFPB Director Richard Cordray was not validly appointed as an Officer of the United States before his July 2013 confirmation by the Senate, Director Cordray’s post-confirmation ratification of the Bureau’s actions during the previous 18 months was invalid. The defendant argues that Director Cordray was not properly appointed under the President’s recess appointment power, and, thus, Director Cordray was a “private citizen” who had no authority to initiate any pre-confirmation enforcement actions (including the federal court action against the defendant). The defendant then argues that Director Cordray’s post-confirmation ratification – a four-sentence Federal Register notice – of all previous Bureau actions violated Article II of the Constitution. It will likely take the US Supreme Court several months to grant or deny Gordon’s Petition for Certiorari, to say whether the US Supreme Court will, or will not, review the 9th Circuit’s decision.