FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CONSUMER FINANCIAL 

PROTECTION BUREAU,

Petitioner-Appellee,

v.

SEILA LAW LLC,

Respondent-Appellant.

No. 17-56324

D.C. No.

8:17-cv-01081-JLS-JEM

ORDER AND 

AMENDED OPINION

On Remand From the United States Supreme Court

Argued and Submitted November 19, 2020

San Francisco, California

Filed December 29, 2020

Amended May 14, 2021

Before: Susan P. Graber and Paul J. Watford, Circuit 

Judges, and Jack Zouhary,* District Judge.

Order;

Dissent from Order by Judge Bumatay;

Opinion by Judge Watford

* The Honorable Jack Zouhary, United States District Judge for the 

Northern District of Ohio, sitting by designation.
2 CFPB V. SEILA LAW

SUMMARY**

Consumer Financial Protection Bureau

The panel filed an order (1) amending its December 29, 

2020, opinion issued on remand from the United States 

Supreme Court; and (2) denying on behalf of the court a sua 

sponte request for rehearing en banc, in a case in which the 

panel reaffirmed the district court’s order granting the 

petition of the Consumer Financial Protection Bureau to 

enforce Seila Law LLC’s compliance with the Bureau’s civil 

investigative demand requiring the firm to produce 

documents and answer interrogatories. The amendments 

reflected that two of the panel’s citations were to the 

plurality portion of the Supreme Court opinion.

The Supreme Court held that the statute establishing the 

Consumer Financial Protection Bureau (CFPB) violated the 

Constitution’s separation of powers by placing leadership of 

the agency in the hands of a single Director who could be 

removed only for cause. Seila Law LLC v. CFPB, 140 S. Ct. 

2183, 2197 (2020). The Court concluded, however, that the 

for-cause removal provision could be severed from the rest 

of the statute and thus did not require invalidation of the 

agency itself. The Supreme Court vacated the panel’s prior 

judgment, published at CFPB v. Seila Law LLC, 923 F.3d 

680 (9th Cir. 2019), and remanded so that the panel could 

consider in the first instance whether the civil investigative 

demand (CID) was validly ratified by former Acting 

Director Mick Mulvaney during his year-long stint in that 

office. 

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
CFPB V. SEILA LAW 3

In the amended opinion, the panel held that the CID was 

validly ratified, but that there was no need to decide whether 

the ratification occurred through the actions of Acting 

Director Mulvaney. On July 9, 2020, after the Supreme 

Court’s ruling, the CFPB’s current Director, Kathleen 

Kraninger, expressly ratified the agency’s earlier decisions 

“to issue the civil investigative demand to Seila Law, to deny 

Seila Law’s request to modify or set aside the CID, and to 

file a petition requesting that the district court enforce the 

CID.” At the time that she ratified these decisions, Director 

Kraninger knew that the President could remove her with or 

without cause. She nonetheless ratified the agency’s 

issuance of the CID and ongoing efforts to enforce it.

Director Kraninger’s ratification remedied any 

constitutional injury that Seila Law may have suffered due 

to the manner in which the CFPB was originally structured. 

Seila Law’s only cognizable injury arose from the fact that 

the agency issued the CID and pursued its enforcement while 

headed by a Director who was improperly insulated from the 

President’s removal authority. Any concerns that Seila Law 

might have had about being subjected to investigation 

without adequate presidential oversight and control had now 

been resolved. A Director well aware that she may be 

removed by the President at will had ratified her 

predecessors’ earlier decisions to issue and enforce the CID.

The panel rejected Seila Law’s contention that Director 

Kraninger could not validly ratify the CFPB’s earlier actions 

because the agency lacked the authority to take those actions 

back in 2017. The panel held that Seila Law’s argument was 

largely foreclosed by this court’s decision in CFPB v. 

Gordon, 819 F.3d 1179 (9th Cir. 2016). Just as in Gordon, 

the constitutional infirmity related to the Director alone, not 

to the legality of the agency itself. 
4 CFPB V. SEILA LAW

The panel also rejected Seila Law’s remaining argument 

that Director Kraninger’s July 2020 ratification was invalid 

because it took place outside the limitations period for 

bringing an enforcement action against Seila Law. The 

panel held that Seila Law’s argument failed because this 

statutory limitations period pertained solely to the bringing 

of an enforcement action, which the CFPB had not yet 

commenced against Seila Law. The only actions ratified by 

Director Kraninger were the issuance and enforcement of the 

CID. The very purpose of such a demand was to assist the 

agency in determining whether Seila Law had engaged in 

violations that could justify bringing an enforcement action; 

it was impossible to know at this point whether such an 

action would (or would not) be timely. Seila Law therefore 

had raised its statute-of-limitations argument prematurely.

Judge Bumatay, joined by Judges Callahan, Ikuta, and 

VanDyke, dissented from the denial of rehearing en banc. 

He wrote that the court’s decision to deny rehearing en banc 

effectively meant that Seila Law was entitled to no relief 

from the harms inflicted by an unaccountable and unchecked 

federal agency. With no agency empowered to enforce the 

laws at the time of the CPFB’s prior actions, no ratification 

was permissible.

COUNSEL

Anthony R. Bisconti (argued) and Thomas H. Bienert Jr., 

Bienert Katzman PC, Los Angeles, California; Kannon K. 

Shanmugam, Paul Weiss Rifkind Wharton & Garrison LLP, 

Washington, D.C.; for Respondent-Appellant.

Kevin E. Friedl (argued), Senior Counsel; Christopher J. 

Deal, Attorney; Steven Y. Bressler, Assistant General 
CFPB V. SEILA LAW 5

Counsel; John R. Coleman, Deputy General Counsel; Mary 

McLeod, General Counsel; Consumer Financial Protection 

Bureau, Washington, D.C.; for Petitioner-Appellee.

ORDER

The opinion filed on December 29, 2020, is amended as 

follows:

On page 5 of the slip opinion, add <(plurality opinion)> 

after <Id. at 2208, 2211>.

On page 7 of the slip opinion, replace <the Court 

explained> with <the plurality opinion explained>.

The amended version is filed concurrently with this 

order.

A judge of the court sua sponte requested a vote on 

whether to rehear this case en banc. A vote was taken, and 

the matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. See

Fed. R. App. P. 35(f). Rehearing en banc is DENIED.

An opinion dissenting from the denial of rehearing en 

banc prepared by Judge Bumatay is filed concurrently with 

this order.
6 CFPB V. SEILA LAW

BUMATAY, Circuit Judge, joined by CALLAHAN, 

IKUTA, and VANDYKE, Circuit Judges, dissenting from 

the denial of rehearing en banc:

We all know the story of David and Goliath. Goliath, the 

fearsome warrior who stood over nine feet tall, awaited a 

challenger for forty days and forty nights. When no one 

stepped forward, David—a young shepherd boy with no 

experience at war—petitioned the king for the opportunity 

to face Goliath. David stepped on the battlefield with just a 

sling and a few stones from a nearby brook. Goliath was 

indignant that such an unworthy opponent would stand 

against him. But after a brief exchange of words, David 

slung a single rock at Goliath, knocking him to the ground 

and killing him. David, the underdog, had won a shocking 

victory for his people.

This case is a little like the story of David and Goliath; 

except here, the Ninth Circuit resurrects Goliath on the 

battlefield so that he can defeat David. Seila Law, a law firm 

operated by a solo practitioner, challenged the 

constitutionality of the Consumer Financial Protection 

Bureau, an independent agency created in the wake of the 

2008 financial crisis. The CFPB had issued a civil 

investigative demand on Seila Law, but the firm argued that 

the CFPB was unconstitutionally structured since the 

President could not remove its Director without cause. The 

CFPB took Seila Law to district court, filing a petition to 

enforce the civil investigative demand, which the court 

granted. CFPB v. Seila Law, LLC, No. 17-cv-1081, 2017 

WL 6536586, at *1 (C.D. Cal. Aug. 25, 2017). Seila Law 

appealed to our court, and the CFPB prevailed again. CFPB 

v. Seila Law LLC, 923 F.3d 680 (9th Cir. 2019).

But last year, the Supreme Court vindicated Seila Law 

and held that the CFPB’s structure violated the Constitution. 
CFPB V. SEILA LAW 7

Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2192 (2020). The 

Court did so because Congress improperly shielded the 

CFPB Director from at-will removal by the President, which 

rendered the agency “accountable to no one.” Id. at 2203. 

Thus, like David, the one-man firm seemingly defeated the 

giant CFPB.

But that is not the end of the story. Rather than dismiss 

this action, the Court severed the CFPB Director’s tenure 

protection and remanded the case to our court to determine 

whether the action must be dismissed. Id. at 2211 (plurality 

opinion). Shortly afterward, the CFPB’s then-Director, 

Kathleen Kraninger, ratified both the civil investigative 

demand and the petition to enforce the demand against Seila 

Law. See CFPB v. Seila Law LLC, 984 F.3d 715, 717–18 

(9th Cir. 2020) (Seila Law II).

On remand, a panel of our court resuscitated the giant,

holding that the CFPB’s post-severance ratification cured 

any defect in the agency’s prior actions. Id. at 719. In so 

ruling, the panel held that the CFPB’s constitutional defect 

was confined “to the Director alone,” leaving “the legality of 

the agency itself” undisturbed. Id. That meant that the 

Director could retroactively ratify decisions made while the 

agency was answerable to neither the President nor the 

people, therefore permitting the investigation of Seila Law 

to continue.

Our court’s decision to deny rehearing en banc 

effectively means that Seila Law is entitled to no relief from 

the harms inflicted by an unaccountable and unchecked 

federal agency. Thus, while David slayed the giant, Goliath 

still wins. But that is not the law. As the panel recognized, 

Supreme Court precedent conditions effective ratification on 

the principal having the power to do the act ratified at the 

time of the act—not just at the time of ratification. Id. at 718. 
8 CFPB V. SEILA LAW

And as the Court held, the Director’s insulation from 

presidential control rendered the whole agency 

unconstitutional. With no agency empowered to enforce the 

laws at the time of the CPFB’s prior actions, no ratification 

is permissible.

I therefore respectfully dissent from the denial of the 

petition for rehearing en banc.

I.

A.

The Constitution vests the Executive power—“all of 

it”—in the President. Seila Law, 140 S. Ct. 

at 2191(emphasis added); U.S. Const. art. II, § 1, cl. 1. It is 

the President alone who must “take Care that the Laws be 

faithfully executed.” U.S. Const. art. II, § 3. Unlike the 

bicameral Legislature with its intentional division of 

authority, the Constitution purposefully consolidates the 

Executive power in one person. That’s because the Founders 

determined that the execution of the laws and protection of 

the nation required the “[d]ecision, activity, secrecy, and 

d[i]spatch” that “characterise the proceedings of one man.” 

The Federalist No. 70, at 472 (Alexander Hamilton) 

(J. Cooke ed., 1961). This unity of Executive power permits 

the laws to be administered without the “habitual feebleness 

and dilatoriness” that comes with a “diversity of views and 

opinions.” Id. at 476.

Concentrating the Executive power in one person also 

enhances accountability. Rather than permit the “diffusion 

of accountability” that comes with the “diffusion of power,” 

Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 

477, 497 (2010), the Constitution entrusted the Executive 

power to a “single object” to be held responsible by the
CFPB V. SEILA LAW 9

people, The Federalist No. 70, at 479. The Founders then 

“made the President the most democratic and politically 

accountable official in Government”—the only office, along 

with the Vice President, elected by the entire Nation. Seila 

Law, 140 S. Ct. at 2203. So the constitutional design of a 

single-person Executive “ensure[s] both vigor and 

accountability” to the people. Printz v. United States, 

521 U.S. 898, 922 (1997).

At the time of the Founding, and even more so today, the 

President needed assistance in carrying out these unique 

responsibilities. The President may therefore “select those 

who [are] to act for him under his direction in the execution 

of the laws.” Myers v. United States, 47 S. Ct. 21, 25 (1926). 

Legions of federal officials accordingly assist in the 

discharge of Executive duties. But delegation of authority is 

not abdication of accountability. In all matters of Executive 

action, “[t]he buck stops with the President.” Free 

Enterprise Fund, 561 U.S. at 493. Thus, while individual 

executive officials may wield “significant authority,” such 

authority always remains under “the ongoing supervision 

and control of the elected President.” Seila Law, 140 S. Ct. 

at 2203. The President’s control over executive officials 

preserves a chain of accountability, with the President 

serving as the check on those federal officials and the people 

a check on the President. Id.; see Free Enterprise Fund, 

561 U.S. at 498 (“[E]xecutive power without the Executive’s 

oversight . . . subverts the President’s ability to ensure that 

the laws are faithfully executed—as well as the public’s 

ability to pass judgment on his efforts.”).

Necessarily concomitant with the President’s oversight 

of the Executive branch is the power to remove federal 

officers. Myers, 47 S. Ct. at 24 (holding that such power is 

“vested in the President alone”). Although the President 
10 CFPB V. SEILA LAW

possesses various means to influence his subordinates’ 

actions, see Free Enterprise Fund, 561 U.S. at 499–500 

(discussing budget requests, “purely political factors,” and 

other tools), the Constitution’s design for accountability “did 

not rest . . . on . . . bureaucratic minutiae,” id. at 500. Rather, 

it is the ultimate consequence of being fired from one’s perch 

atop an agency that officers “must fear and . . . obey.” Seila 

Law, 140 S. Ct. at 2197 (quoting Bowsher v. Synar, 478 U.S. 

714, 726 (1986)). And one who is not bound to the 

President’s will in this way “may not be entrusted with 

executive powers.” Bowsher, 478 U.S. at 732.

B.

It was this “carefully calibrated” and historically 

venerated design that Congress contravened in creating the 

CFPB. Seila Law, 140 S. Ct. at 2203. As part of the DoddFrank Act of 2010, Congress established the CFPB as an 

independent agency to implement and enforce 19 consumer 

protection statutes. Id. at 2193. True to that independence, 

Congress conceived that the agency would be helmed by a 

solo Director, serving for a five-year term, who would be 

removable by the President only for “inefficiency, neglect of 

duty, or malfeasance in office.” 12 U.S.C. § 5491(c)(1), (3). 

This tenure protection meant the CFPB Director was 

effectively unanswerable to the President. See, e.g., Seila 

Law, 140 S. Ct. at 2204 (raising the concern that some 

Presidents may have no “influence [over CFPB’s] activities” 

and be “saddled with a holdover Director from a competing 

political party who is dead set against [the President’s] 

agenda” (emphasis omitted)).

The CFPB’s authority is also no little matter. Congress 

granted the agency “vast rulemaking, enforcement, and 

adjudicatory authority,” including the authority to conduct 

investigations, issue subpoenas, carry out in-house 
CFPB V. SEILA LAW 11

adjudications, and prosecute civil actions in federal court. 

Id. at 2191; see 12 U.S.C. §§ 5562, 5564(a), (f). Remedies 

at the CFPB’s disposal are similarly broad. They include 

“any appropriate legal or equitable relief,” reformation of 

contracts, and civil penalties up to one million dollars per 

day. 12 U.S.C. § 5565(a)(1)–(2), (c). And the agency 

exercises these powers free from Congress’s appropriations 

decisions. The CFPB is statutorily entitled to a stream of 

revenue directly from the Federal Reserve. Seila Law, 

140 S. Ct. at 2194. The CFPB thus “acts as a mini 

legislature, prosecutor, and court, responsible for creating 

substantive rules for a wide swath of industries, prosecuting 

violations, and levying knee-buckling penalties against 

private citizens.” Id. at 2202 n.8.

From its inception, the CFPB wielded enormous power 

but was led by a Director who was “neither elected by the 

people nor meaningfully controlled . . . by someone who is.” 

Id. at 2203. In no uncertain terms, the Supreme Court 

described this arrangement as having “no basis in history and 

no place in our constitutional structure.” Id. at 2201. The 

CFPB Director’s “insulation from removal by an 

accountable President” offended the separation of powers 

and was thus “enough to render the agency’s structure 

unconstitutional.” Id. at 2204.

Moreover, the President’s ability to oversee the CFPB 

Director was so fundamental, and the defect so severe, that 

if the removal protection were not severable, it may mean 

that “the entire agency is unconstitutional and powerless to 

act.” Id. at 2208 (plurality opinion). There would then be 

“no agency left with statutory authority to maintain this suit 

or otherwise enforce the demand.” Id. Thus, the severance 

issue presented a binary choice: either (1) the Director’s 

tenure protection could be removed and the CFBP “may 
12 CFPB V. SEILA LAW

continue to exist and operate,” id. at 2207 (emphasis added), 

or (2) there would be “no agency at all,” id. at 2210. But 

because the Court determined “Congress would have 

preferred a dependent CFPB to no agency at all,” id., the 

Court severed the Director’s tenure protection.1

C.

With these background principles in mind, I turn to the 

CFPB’s ratification of its past actions against Seila Law. 

After determining the CFPB’s structure was unconstitutional 

and severing the offending tenure provision, the Supreme 

Court remanded to this court to determine whether Acting 

Director Mick Mulvaney had effectively ratified the 

agency’s actions.2 Before we decided that issue, however, 

Director Kraninger (now removable by the President without 

cause) again ratified the CFPB’s demand and petition. Seila 

Law II, 984 F.3d at 718. Our court then held that Director 

Kraninger’s actions validly ratified the CFPB’s pursuit of 

Seila Law. Id. I disagree with this conclusion.3

1 Three Justices joined this severance analysis, while four other 

Justices joined its judgment. Two other Justices would have denied 

severance and granted Seila Law relief then and there. Seila Law, 140 S. 

Ct. at 2224 (Thomas, J., concurring in part and dissenting in part).

2 The Court declined to opine on the ratification debate, which 

“turn[ed] on case-specific factual and legal questions not addressed 

below and not briefed” before the Court. Seila Law, 140 S. Ct. at 2208 

(plurality opinion). Instead, it left the issue for lower courts to consider 

in the first instance. Id.

3 As a threshold matter, I have concerns about whether the CFPB 

has Article III standing to bring this action. As we held in CFPB v.

Gordon, a party must be “part of the Executive Branch” to be exempt 

from the traditional standing requirement of an individualized injury. 
CFPB V. SEILA LAW 13

To begin, ratification does not seem to be a proper 

remedy for separation-of-powers violations such as we face 

here. The Court has made clear that parties injured by 

actions of a constitutionally deficient executive official are 

“entitled to relief.” Lucia v. SEC, 138 S. Ct. 2044, 2055 

(2018). Indeed, when a party raises a constitutional 

challenge as a defense to a federal enforcement action, “no 

theory . . . would permit [a court] to declare the [agency’s] 

structure unconstitutional without providing relief to the 

[injured party.]” Fed. Election Comm’n v. NRA Pol. Victory 

Fund, 6 F.3d 821, 828 (D.C. Cir. 1993). In the criminal 

context, for example, the Court usually regards structural 

violations as “so intrinsically harmful as to require automatic 

reversal” of the defective decision. Neder v. United States, 

527 U.S. 1, 7 (1999). Since ratification purports to cure 

defects in an agency’s prior actions, the result is that a party 

injured by a separation-of-powers violation is left with no 

relief at all. But the Court has told us to provide remedies 

that “create incentives to raise” separation-of-powers 

challenges. See Lucia, 138 S. Ct. at 2055 n.5 (simplified) 

(ordering a new hearing before a properly appointed SEC 

administrative law judge, even though the SEC had ratified 

the appointment of the then-unconstitutionally serving ALJ 

who had ruled against Lucia). Ratification then seems 

inconsistent with the Court’s teachings.

Even if ratification could cure structural constitutional 

errors, the CFPB’s ratification here was ineffective because 

819 F.3d 1179, 1189 (9th Cir. 2016). Seila Law raises the concern that 

the CFPB was not duly constituted as “part of the Executive Branch” for 

Article III standing purposes. Nevertheless, since no party raised or 

briefed this issue, I do not discuss it here. On en banc review, we should 

have directed the parties to address this court’s jurisdiction to hear this 

case.
14 CFPB V. SEILA LAW

it lacked Executive authority at the time it initiated its actions 

against Seila Law. The ratification inquiry is “governed by 

principles of agency law.” Fed. Election Comm’n v. NRA 

Pol. Victory Fund, 513 U.S. 88, 98 (1994) (discussing 

Restatement (Second) of Agency § 90 (1958)); see Seila 

Law II, 984 F.3d at 718; Gordon, 819 F.3d at 1191. And 

under those common law principles, it is essential that the 

party ratifying should be able “to do the act ratified at the 

time the act was done” as well as “at the time the ratification 

was made.” NRA Political Victory Fund, 513 U.S. at 98 

(emphasis omitted).

This is so because ratification “affects the relations 

between the principal, agent, and third persons” and thus 

“the same limitations apply to the ratification of acts” that 

apply to the acts themselves. Restatement (Second) of 

Agency § 84 cmt. a (1958). Since “[t]o ratify is to give 

validity to the act of another, [it] implies that the person or 

body ratifying has at the time power to do the act ratified,” 

Norton v. Shelby Cnty., 118 U.S. 425, 451 (1886), and “a 

ratification can have no greater effect than a previous 

authority,” Dist. Twp. of Doon v. Cummins, 142 U.S. 366, 

376 (1892).

We applied these principles in Gordon. In that case, the 

CFPB brought an action against Gordon during Richard 

Cordray’s tenure as Director after an unconstitutional recess 

appointment. Gordon, 819 F.3d at 1186. Later, however, 

Cordray was properly nominated and confirmed, and he 

ratified his earlier action against Gordon. Id. at 1185–86. 

Gordon argued that, even after Senate confirmation, Director 

Cordray could not have ratified his own prior acts as a recess 

appointee because he lacked the power to do those acts at 

that time.
CFPB V. SEILA LAW 15

Applying the Second Restatement, we held that “if the 

principal (here, CFPB) had authority to bring the action in 

question, then the subsequent . . . ratification of the decision 

to bring the case against Gordon is sufficient.” Id. at 1191 

(citing Restatement (Second) of Agency § 84(1)). Thus, we 

construed the “principal” to be the CFPB as an agency, 

which could possess the power to act on behalf of the 

Executive branch separately from any individual Director.4

 

Next, because we understood that “the CFPB had the 

authority to bring the action at the time Gordon was 

charged,” we ruled that a properly appointed Director was 

empowered to ratify the action after the fact. Id. at 1192. In 

the end, we held that Director Cordray—acting as the 

CFPB’s agent after being properly nominated and 

confirmed—could ratify his own prior acts as a recess 

appointee. Id.

But based on the Court’s intervening decision in Seila 

Law, that ratification inquiry must now come out differently. 

Contrary to our assumption in Gordon, the CFPB was not a 

“principal” empowered to act on behalf of the Executive 

branch at the time of its actions against Seila Law. Until the 

Supreme Court severed the Director’s tenure protection, the 

CFPB was operating beyond the control of the President. 

When an agency has “slip[ped] from the Executive’s control, 

and thus from that of the people,” Free Enterprise Fund, 

561 U.S. at 499, the chain of accountability breaks. And 

when that happens, the chain of delegated power also breaks. 

4 Judge Ikuta forcefully argued that this analytical move was 

incorrect because only individual officials—and not abstract agencies—

can possess Executive power. See Gordon, 819 F.3d at 1200 (Ikuta, J., 

dissenting). Whether the Gordon majority or Judge Ikuta is correct on 

this point is beyond the scope of this dissent. Under either view, 

ratification was improper here.
16 CFPB V. SEILA LAW

See Bowsher, 478 U.S. at 732 (holding that officers not 

controlled by the President are not “entrusted with executive 

powers”). That is because the Executive power is not 

Congress’s to dispense to such individuals and agencies as it 

pleases; it is vested solely in the President, who may be 

assisted by those he controls—including through the 

“powerful tool” of removal. Free Enterprise Fund, 561 U.S. 

at 510 (simplified).

Indeed, the Court’s determination that severance was 

necessary confirms that the CFPB lacked Executive 

authority pre-severance. The Court was explicit that, if it 

failed to sever the Director’s tenure protection, there would 

be “no agency . . . with statutory authority to maintain this 

suit.” Seila Law, 140 S. Ct. at 2208 (plurality opinion). And 

contrary to the panel’s belief that the constitutional violation 

did not affect “the legality of the agency itself,” Seila Law II, 

984 F.3d at 719, the Supreme Court held that the Director’s 

separation-of-powers violation was “enough to render the 

agency’s structure unconstitutional.” Seila Law, 140 S. Ct. 

at 2204 (majority opinion). Given this defect, there would 

be “no agency at all” in the absence of severance, and the 

Court severed because it believed Congress would have 

preferred a “dependent CFPB” to “no CFPB.” Id. at 2210 

(plurality opinion). Thus, so long as the CFPB was not 

accountable to the President and, through him, to the people, 

the agency did not “ha[ve] the authority to bring the action” 

on behalf of the Executive branch. Gordon, 819 F.3d at 

1192. In other words, the agency was not a “principal” under 

agency law and could not have ratified Executive-branch 

actions after the fact.5

 By holding the ratification to be 

5 A “principal” is “[s]omeone who authorizes another to act on his 

or her behalf as an agent.” Black’s Law Dictionary (11th ed. 2019). 

Since the CFPB lacked the authority to “act” as a principal on behalf of 
CFPB V. SEILA LAW 17

effective, we allowed the CFPB to retroactively curtail Seila 

Law’s rights, even though it lacked the power to do so at the 

time.

Consider the converse: if, as the panel maintained, the 

pre-severance CFPB did possess lawful authority to act 

against Seila Law, the Court’s decision to sever the 

Director’s removal protection would be inexplicable and 

irrelevant. If “the legality of the agency” were untouched by 

the Director’s defect, Seila Law II, 984 F.3d at 719, Seila 

Law would have suffered no constitutional injury and would 

have been entitled to no relief. That cannot be the case. As 

the Court stated, “violat[ing] the separation of powers . . . 

inflicts a here-and-now injury on affected third parties that 

can be remedied by a court.” Seila Law, 140 S. Ct. at 2196 

(simplified). Thus, the Court recognized that the 

unconstitutional structure of the CFPB injured Seila Law. 

But our court today pronounces that this harm is no big deal 

and allows the CFPB to continue its pursuit of Seila Law—

effectively rendering the firm’s “here-and-now injury” 

without remedy.

II.

Under our constitutional structure, an agency untethered 

from the President’s control may not wield his power. Such 

unchecked power would be unaccountable to the people and 

subvert the constitutional design. Before severance, the 

CFPB Director was free from Presidential oversight—and 

thus free of Executive authority. The doctrine of ratification 

does not permit the CFPB to retroactively gift itself power 

that it lacked. The panel’s decision to condone this power 

the Executive branch, it could not bestow that authorization on others, 

including its Director.
18 CFPB V. SEILA LAW

grab was erroneous. Just as bad, our failure to correct this 

decision en banc declares Goliath the victor and makes 

hollow the promise of judicial relief for separation-ofpowers violations. I respectfully dissent.

OPINION

WATFORD, Circuit Judge:

In February 2017, the Consumer Financial Protection 

Bureau (CFPB) issued a civil investigative demand (CID) to 

Seila Law LLC, requiring the firm to produce documents and 

answer interrogatories. Seila Law refused to comply. In 

June 2017, the CFPB filed a petition to enforce the CID. The 

district court granted the petition and we affirmed. CFPB v. 

Seila Law LLC, 923 F.3d 680 (9th Cir. 2019). Upon review 

of our court’s decision, the Supreme Court held that the 

statute establishing the CFPB violated the Constitution’s 

separation of powers by placing leadership of the agency in 

the hands of a single Director who could be removed only 

for cause. Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2197 

(2020). The Court concluded, however, that the for-cause 

removal provision could be severed from the rest of the 

statute and thus did not require invalidation of the agency 

itself, as Seila Law had urged. Id. at 2209–11 (plurality 

opinion); id. at 2245 (Kagan, J., concurring in judgment with 

respect to severability and dissenting in part). The Court 

vacated our judgment and remanded so that we could 

consider in the first instance “whether the civil investigative 

demand was validly ratified” by former Acting Director 

Mick Mulvaney during his year-long stint in that office. Id.

at 2208, 2211 (plurality opinion).
CFPB V. SEILA LAW 19

We conclude that the CID was validly ratified, but we 

need not decide whether that occurred through the actions of 

Acting Director Mulvaney. On July 9, 2020, after the 

Supreme Court’s ruling, the CFPB’s current Director, 

Kathleen Kraninger, expressly ratified the agency’s earlier 

decisions “to issue the civil investigative demand to Seila 

Law, to deny Seila Law’s request to modify or set aside the 

CID, and to file a petition requesting that the district court 

enforce the CID.” At the time that she ratified these 

decisions, Director Kraninger knew that the President could 

remove her with or without cause. She nonetheless ratified 

the agency’s issuance of the CID and ongoing efforts to 

enforce it.

Director Kraninger’s ratification remedies any 

constitutional injury that Seila Law may have suffered due 

to the manner in which the CFPB was originally structured. 

Seila Law’s only cognizable injury arose from the fact that 

the agency issued the CID and pursued its enforcement while 

headed by a Director who was improperly insulated from the 

President’s removal authority. Any concerns that Seila Law 

might have had about being subjected to investigation 

without adequate presidential oversight and control have 

now been resolved. A Director well aware that she may be 

removed by the President at will has ratified her 

predecessors’ earlier decisions to issue and enforce the CID.

Seila Law advances two arguments challenging the 

validity of Director Kraninger’s ratification, neither of which 

we find persuasive.

As a threshold matter, Seila Law contends that Director 

Kraninger could not validly ratify the CFPB’s earlier actions 

because the agency lacked the authority to take those actions 

back in 2017. Seila Law bases this argument on the 

statement in Federal Election Commission v. NRA Political 
20 CFPB V. SEILA LAW

Victory Fund, 513 U.S. 88 (1994), that “it is essential that 

the party ratifying should be able not merely to do the act 

ratified at the time the act was done, but also at the time the 

ratification was made.” Id. at 98 (emphasis omitted). In 

Seila Law’s view, until the Supreme Court invalidated the 

for-cause removal provision, the CFPB was exercising 

executive power unlawfully, which in turn rendered all of 

the agency’s prior actions void at the time they were taken 

and hence incapable of being ratified.

Seila Law’s argument is largely foreclosed by our court’s 

decision in CFPB v. Gordon, 819 F.3d 1179 (9th Cir. 2016). 

In that case, the CFPB initiated an enforcement action after 

Richard Cordray had been appointed as the agency’s 

Director pursuant to President Obama’s recess appointment 

power. Id. at 1185–86. Shortly thereafter, the Supreme 

Court’s decision in NLRB v. Noel Canning, 573 U.S. 513 

(2014), called into question the validity of Director 

Cordray’s appointment. After he was renominated and 

confirmed by the Senate, Director Cordray issued a blanket 

ratification of all actions he had taken while serving as a 

recess appointee. Gordon, 819 F.3d at 1185–86. We held 

that Director Cordray’s ratification cured any Appointments 

Clause defect in the initiation of the enforcement action 

against the defendant. Id. at 1192. Addressing the same 

passage from NRA Political Victory Fund quoted above, we 

reasoned that the constitutional defect was limited to 

Director Cordray and did not infect the agency as a whole. 

Thus, the CFPB as an agency had the authority to bring the 

enforcement action both at “the time the act was done” and 

at “the time the ratification was made.” Id. at 1191–92.

The same is true here. Just as in Gordon, the 

constitutional infirmity relates to the Director alone, not to 

the legality of the agency itself. Although the Supreme 
CFPB V. SEILA LAW 21

Court held in Seila Law that the CFPB’s “structure” violated 

the separation of powers, 140 S. Ct. at 2192, the plurality 

opinion explained that “[t]he only constitutional defect we 

have identified in the CFPB’s structure is the Director’s 

insulation from removal.” Id. at 2209. Nothing in the 

Court’s decision suggests that it believed this defect 

rendered all of the agency’s prior actions void. Indeed, had 

that been the Court’s view, it presumably would have 

ordered the dismissal of this proceeding rather than 

remanding for us to consider whether the agency’s actions 

relating to the CID had been validly ratified.

We find strong support for our holding in Federal 

Election Commission v. Legi-Tech, Inc., 75 F.3d 704 (D.C. 

Cir. 1996), a case cited with approval in Gordon. 819 F.3d 

at 1191. In Legi-Tech, the Federal Election Commission 

brought a civil enforcement action while two congressional 

officers were impermissibly serving as ex officio members 

of the Commission. 75 F.3d at 706. After the presence of 

those members was held to violate the separation of powers, 

the Commission reconstituted itself and ratified its earlier 

decision to bring the enforcement action. Id. at 706, 708. 

The D.C. Circuit held that the ratification was valid and, in 

doing so, rejected the same argument Seila Law advances 

here—namely, that a “structural” constitutional defect in an 

agency’s composition renders all of the agency’s prior 

actions void. Id. at 708–09. Taken together, Legi-Tech and 

Gordon confirm that ratification is available to cure both 

Appointments Clause defects and structural, separation-ofpowers defects.

Seila Law’s remaining argument is that Director 

Kraninger’s July 2020 ratification is invalid because it took 

place outside the limitations period for bringing an 

enforcement action against Seila Law. In support of its 
22 CFPB V. SEILA LAW

position, Seila Law again relies on the Supreme Court’s 

decision in NRA Political Victory Fund—in particular, its 

holding that the Solicitor General could not validly ratify the 

filing of an unauthorized petition for certiorari when the 

attempted ratification occurred after the time for filing the 

petition had already run. 513 U.S. at 98.

The statute of limitations relevant here states that, 

“[e]xcept as otherwise permitted by law or equity, no action 

may be brought under this title more than 3 years after the 

date of discovery of the violation to which an action relates.” 

12 U.S.C. § 5564(g)(1). According to Seila Law, the “date 

of discovery of the violation” was February 18, 2016, when 

the CFPB filed an application (in a proceeding brought 

against a different entity) that accused Seila Law of 

wrongdoing. Alternatively, Seila Law contends that the 

limitations period began to run at the very latest on 

February 27, 2017, when the CFPB issued the CID at issue.

Seila Law’s argument fails because this statutory 

limitations period pertains solely to the bringing of an 

enforcement action, which the CFPB has not yet commenced 

against Seila Law. The only actions ratified by Director 

Kraninger are the issuance and enforcement of the CID. The 

very purpose of such a demand is to assist the agency in 

determining whether Seila Law has engaged in violations 

that could justify bringing an enforcement action; it is 

impossible to know at this point whether such an action 

would (or would not) be timely.

Whether Seila Law would be able to mount a successful 

statute-of-limitations defense in a future enforcement action 

has no bearing on the validity of Director Kraninger’s 

ratification. “[A] party may not defeat agency authority to 

investigate with a claim that could be a defense if the agency 

subsequently decides to bring an action against it.” EEOC 
CFPB V. SEILA LAW 23

v. Children’s Hospital Medical Center, 719 F.2d 1426, 1429 

(9th Cir. 1983) (en banc). We have applied that principle 

specifically in the statute-of-limitations context. In Pacific 

Maritime Association v. Quinn, 491 F.2d 1294 (9th Cir. 

1974), the employer resisted a demand for documents from 

the Equal Employment Opportunity Commission on the 

ground that the employee’s underlying discrimination 

complaint was untimely. Id. at 1295. We stated that the 

“statute of limitations issue has been raised prematurely” and 

held that the demand should be enforced so that the agency 

could investigate whether there was a continuing violation 

that would render the complaint timely. Id. at 1296. Seila 

Law has similarly raised its statute-of-limitations argument 

prematurely.

For the reasons given in our earlier decision, we reject 

Seila Law’s arguments challenging the CFPB’s statutory 

authority to issue the CID. 923 F.3d at 684–85. 

Accordingly, we reaffirm the district court’s order granting 

the CFPB’s petition to enforce the CID.

AFFIRMED.