In a replay of earlier events, in response to an emergency petition for writ of mandamus and administrative stay of transfer filed by the plaintiffs in the lawsuit challenging the legality of the CFPB’s credit card late fee rule, the Fifth Circuit Court of Appeals on May 29, stayed a District Court order that would have transferred the case to the District of Columbia. The emergency petition seeks mandamus relief “to prevent a legally erroneous transfer to the District of Columbia that would delay the resolution of this challenge and deprive Petitioners of their choice of a proper and appropriate venue.” The Fifth Circuit stayed the transfer until June 18, 2024, and requested that the CFPB respond to the petition by June 6, 2024.

Federal District Court Judge Pittman (N.D. Tex. Ft. Worth Division) entered an order on May 28, transferring the lawsuit to the Federal District Court for the District of Columbia in response to the CFPB’s motion to transfer venue filed the day before. Judge Pittman stated that he based his opinion on the earlier briefing on the motion to transfer venue, which was overturned by the Fifth Circuit when it concluded that the District Court lacked jurisdiction to transfer venue due to the plaintiffs’ appeal of the District Court’s de facto denial of the motion for preliminary injunction, which per the Fifth Circuit occurred when the District Court failed to act on the motion in a timely manner. The recent flurry of activity before Judge Pittman began as soon as the Fifth Circuit dismissed the appeal pending before it and issued its mandate on May 24; the Fifth Circuit thereby relinquished jurisdiction of the case to Judge Pittman and opened the door for Judge Pittman to re-transfer the case. However, as noted above, the Fifth Circuit has again stayed that transfer.

The next determination to be made once venue is finally established will be whether to extend the preliminary injunction on the basis of the alternative claims in the case (the CARD Act, TILA and/or the APA), particularly in light of the fact that the basis of the stay was eliminated on May 16 when the Supreme Court reversed the Fifth Circuit opinion in CFSA v. CFPB. It is noteworthy that Judge Pittman stated in his opinion granting the preliminary injunction that plaintiffs’ alternative claims are “compelling.”

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