Fifth Circuit Grants Expedited Appeal in Challenge to CFPB’s Section 1071 Final Rule; Denies Temporary Administrative Stay

On October 31, the U.S. Court of Appeals for the Fifth Circuit Court of Appeals granted the appellants’ motion to expedite the appeal in Texas Bankers Association v. Consumer Financial Protection Bureau (CFPB). The suit brought by several trade associations challenges the CFPB’s Final Rule under § 1071 of the Dodd-Frank Act, the “Small Business Lending Data Collection Rule” (Final Rule). The court scheduled oral argument for February 3, 2025. However, in that same order, the court denied appellants’ motion for a temporary stay of the Final Rule’s compliance dates, stating that the motion for a stay pending appeal “remained pending.” This means that the compliance dates set forth in the CFPB’s Interim Final Rule remain for now, with the earliest date for the largest lenders being July 18, 2025.

As discussed here, on August 26, 2024, the U.S. District Court for the Southern District of Texas granted the CFPB’s motion for summary judgment on all Administrative Procedure Act (APA) challenges brought by the plaintiffs to the Final Rule. Specifically, the district court found that: (1) the CFPB did not exceed the authority granted to it under § 1071 in issuing the Final Rule; and (2) the CFPB did not act in an arbitrary and capricious manner in considering the Final Rule’s expected costs and benefits. As expected, the plaintiffs swiftly appealed the ruling.

Under the Fifth Circuit’s expedited briefing schedule: appellants’ opening brief is due on December 3, 2024; appellees’ brief is due on January 6, 2025; and appellants’ reply brief is due on January 16, 2025. As noted, oral argument is scheduled for February 3, 2025.

We will continue to provide updates as this case progresses through the appellate process.