IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

- WICHITA FALLS DIVISION - 

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S

MOTION FOR RECONSIDERATION

FEDERAL DEPOSIT INSURANCE CORPORATION

Andrew J. Dober

Senior Counsel 

Bryce C. Quine (Tex. No. 24032976) 

Arthur E. Anthony (Tex. No. 24001661) 

600 North Pearl Street, Suite 700 

Dallas, Texas 75201 

Telephone: (972) 761-8520 

Alternate Tel.: (972) 761-2237 

Email: bquine@fdic.gov 

Email: aranthony@fdic.gov 

 /s/ Andrew A. Nicely 

Andrew A. Nicely (Va. No. 41750) 

Daniel Kurtenbach

3501 Fairfax Drive, D-7028

Arlington, VA 22226-3500

Tel.: (703) 516-5729 

Fax: (703) 562-2477 

Email: anicely@fdic.gov

 Counsel for Defendants 

DATED: January 13, 2023

CORNELIUS CAMPBELL BURGESS, 

 Plaintiff, 

 v. 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, et al.,

 Defendants. 

 CIVIL NO. 7:22-cv-00100-O 

 The Honorable Reed O’Connor, 

 United States District Judge

Case 7:22-cv-00100-O Document 66 Filed 01/13/23 Page 1 of 18 PageID 1025
Burgess’ Motion for Reconsideration (Motion) contends that this Court erred in some of 

the findings it made in its November 6 Order (ECF No. 31) granting Burgess’ Motion for 

Preliminary Injunction (ECF No. 15) (PI Motion), pursuant to which this Court entered its 

December 1 Order and Injunction (ECF No. 49) (December 1 Injunction), in which it enjoined the 

entire enforcement proceeding as requested by Burgess. But the November 6 Order and December 

1 Injunction, including the findings contested by Burgess in his Motion for Reconsideration, are 

currently being considered by the Fifth Circuit on appeal. Accordingly, this Court lacks 

jurisdiction to grant Burgess’ Motion. And even if jurisdiction existed, the Motion fails on the 

merits. Therefore, this Court should deny it.

PROCEDURAL BACKGROUND

In his PI Motion, Burgess sought to enjoin the FDIC from continuing the enforcement 

proceeding against him,1 on the grounds that he was likely to succeed on the merits of the three 

constitutional claims asserted in his Complaint (ECF No. 1)—that the appointed members of the 

FDIC Board of Directors (Board) and Administrative Law Judge (ALJ) Whang are 

unconstitutionally protected from removal (Counts 1 and 2) (removal-restriction claims), and that 

the enforcement proceeding violates Burgess’ Seventh Amendment right to a jury trial (Count 3) 

(Seventh Amendment claim).2

 1

 Memorandum of Points and Authorities in Support of Plaintiff’s Motion for a Preliminary 

Injunction and a Temporary Administrative Stay (ECF No. 15-1) at 1 (PI Memo); id. at 35 (“This 

Court should enter a preliminary injunction barring the Defendants from continuing the 

Enforcement Proceeding”); see also [Proposed] Order Granting Plaintiff’s Motion for a 

Preliminary Injunction (ECF 15-4) at 1 (asking this Court to order that “the Defendants are 

enjoined from continuing the enforcement proceeding styled In re Cornelius Campbell Burgess et 

al. (Nos. FDIC-14-0307e, FDIC 140-0308k) in any way, including by issuing a Final Decision in 

that enforcement proceeding”).

2

 See PI Memo at 11 (“Because Burgess is likely to succeed on his claim that the FDIC is an 

unconstitutionally structured agency, he is entitled to a preliminary injunction barring the FDIC 

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In its November 6 Order this Court, after determining that it has subject matter jurisdiction 

to entertain this lawsuit, granted Burgess’ PI Motion on the grounds that Burgess had established 

that he is likely to succeed on the merits of his Seventh Amendment claim (though not his removalrestriction claims) and had satisfied the other requirements for preliminary injunctive relief.3

 And 

in its December 1 Injunction, after reviewing the parties’ submissions on the form of the injunction, 

this Court determined that “[a]s the entire Enforcement Proceeding is unconstitutional, the Court 

finds it must enjoin the entire Enforcement Proceeding. Therefore, the Court grants Plaintiff’s 

requested injunctive relief.”4

On December 2 the FDIC appealed from the November 6 Order and December 1 Injunction 

(ECF No. 50). Later that day Burgess, despite being awarded all of the injunctive relief he had 

sought, filed a Motion for Reconsideration (ECF No. 53) asking this Court to reconsider its 

November 6 Order “granting in part and denying in part” his PI Motion and to “alter or amend that 

Order so as to find that Burgess is entitled to a preliminary injunction with respect to Counts 1 and 

2 of his Complaint.” Burgess contended that this Court had erroneously found that he had not 

shown a likelihood of success on the merits of his removal-restriction claims.5 But on January 4, 

 

and its Directors from proceeding in any way with the Enforcement Proceeding, including by 

issuing a Final Decision or taking any other action contemplated by 12 C.F.R. § 308.40(c)(2).”); 

id. at 13-14 (“Burgess is therefore entitled to a preliminary injunction that (1) prevents any further 

exercise of executive authority by ALJ Whang and (2) prevents the FDIC from accepting or 

otherwise relying on ALJ Whang’s Recommended Decision in whole or in part”); id. at 18 

(“Burgess is likely to succeed on the merits of his claim that the FDIC deprived him of his right to 

a jury trial. See Compl. ¶¶ 119-140. Burgess is therefore entitled to a preliminary injunction that 

prevents the FDIC from continuing the Enforcement Proceeding.”).

3

See November 6 Order at 1 (“Having reviewed the Motion, the Court finds that it should be, and 

is, hereby GRANTED.”); id. at 24 (“As Plaintiff has satisfied the requirements for a preliminary 

injunction as to his claim under the Seventh Amendment, the Motion for Preliminary Injunction is 

GRANTED.”).

4 December 1 Injunction at 3.

5

 Memorandum of Points and Authorities in Support of Plaintiff’s Motion for Reconsideration 

(ECF No. 54) at 1-4 (Recon. Memo).

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with his Motion for Reconsideration pending, Burgess filed a notice of cross-appeal (ECF No. 63) 

from the November 6 Order “which granted in part and denied in part Burgess’s motion for a 

preliminary injunction” and from the December 1 Injunction “which granted a preliminary 

injunction as to Count 3 in Burgess’s Complaint (ECF No. 1) but did not grant a preliminary 

injunction as to Counts 1 and 2 in Burgess’s Complaint.”

ARGUMENT

I. THIS COURT LACKS JURISDICTION TO CONSIDER BURGESS’ MOTION.

“The filing of a notice of appeal is an event of jurisdictional significance—it confers 

jurisdiction on the court of appeals and divests the district court of its control over those aspects 

of the case involved in the appeal.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 

(1982). “[A]n issue in the district court is only an ‘aspect[] of the case involved in the appeal’ if 

the appeal and the claims before the district court address the same legal question.” Weingarten 

Realty Investors v. Miller, 661 F.3d 904, 909 (5th Cir. 2011).

Burgess’ Motion for Reconsideration and the pending Fifth Circuit appeals address the 

same legal question concerning the same orders of this Court: whether this Court correctly decided 

Burgess’ PI Motion. The FDIC’s notice of appeal put the November 6 Order and December 1 

Injunction before the Fifth Circuit, including this Court’s findings on the removal-restriction 

claims complained of by Burgess, as the Fifth Circuit “may affirm the district court’s judgment on 

any grounds supported by the record.’” Louisiana v. Biden, 55 F.4th 1017, 1022 (5th Cir. 2022) 

(citations omitted); see id. at 1021-1022, 1033, 1035 (affirming preliminary injunction after 

finding that major questions doctrine established likelihood of success on merits, where district 

court had relied on other grounds). Even if an argument could be made that the FDIC’s notice of 

appeal did not fully divest this Court of jurisdiction to reconsider any aspect of the November 6 

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Order and December 1 Injunction, that argument was extinguished when Burgess filed his notice 

of cross-appeal, which asks the Fifth Circuit to reverse this Court’s rulings on the merits of his 

removal-restriction claims. Simply put, at this juncture, there is no aspect of the November 6 

Order and December 1 Injunction that is not before the Fifth Circuit. The FDIC recently requested 

that Burgess’ counsel withdraw his motion in light of his interlocutory appeal to avoid wasting this

Court’s time and resources. Burgess declined to do so.

The Fifth Circuit has applied Griggs in the context of a preliminary injunction by holding 

that “the powers of the district court over an injunction pending appeal should be limited to 

maintaining the status quo and ought not to extend to the point that the district court can divest the 

court of appeals from jurisdiction while the issue is before us on appeal.” Coastal Corp. v. Texas 

E. Corp., 869 F.2d 817, 820 (5th Cir. 1989); see id. (finding that district court’s dissolution of 

injunction during appeal “was unnecessary to maintain the status quo between the parties”).

Granting Burgess’ Motion for Reconsideration is not necessary to, and would not maintain, 

the status quo. Burgess seeks “a future preliminary injunction as to Counts 1 and 2” whose “scope 

and contours” would be determined later, Recon. Memo at 24 n.25, with the goal of depriving the 

FDIC of the benefit of any Fifth Circuit decision vacating the preliminary injunction currently in 

effect. See id. (“Issuing a preliminary injunction as to Counts 1 and 2 is therefore necessary to 

ensure that the FDIC does not issue a Final Decision in the Enforcement Proceeding in the event 

that the Fifth Circuit were to vacate this Court’s determination that an injunction is warranted as 

to Count 3.”).

The same legal questions presented in Burgess’ Motion for Reconsideration are before the 

Fifth Circuit, and Burgess’ Motion aims to change rather than maintain the status quo. 

Accordingly, this Court lacks authority to grant the Motion and should deny it. See Providence 

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Title Co. v. Truly Title, Inc., No. 4:21-CV-147-SDJ, 2021 WL 5003273, at *5 (E.D. Tex. Oct. 28, 

2021) (court lacked authority to grant motion to reconsider preliminary injunction pending appeal 

because requests for modification or clarification of injunction were “thinly veiled proposals to 

alter the status quo between the parties and clearly do not fall into the exceptions for managing 

preliminary injunctions pending appeal”).

II. BURGESS’ MOTION FAILS ON THE MERITS IN ANY EVENT.

If this Court had jurisdiction to grant Burgess’ Motion, denial still would be appropriate 

because Burgess fails to show that reconsideration is warranted. In its November 6 Order, this 

Court analyzed whether Burgess had shown a likelihood of success on the merits, one of the 

elements for granting a preliminary injunction. With respect to Burgess’ removal-restriction 

claims, this Court found that although the allegations of unconstitutionality have merit, Burgess is 

not likely to succeed on the merits of his claims because he did not show that any unconstitutional 

removal restrictions harmed him, as required by Collins v. Yellen, 141 S. Ct. 1761 (2021).6

 This 

Court also addressed and rejected Burgess’ argument that the Collins harm requirement does not 

apply to claims for prospective relief, finding that argument foreclosed by Community Fin. Servs. 

Ass’n of Am., Ltd. v. Consumer Fin. Prot. Bureau, 51 F.4th 616 (5th Cir. 2022), petition for cert. 

filed (U.S. Nov. 14, 2022) (No. 22-448) (CFSA).7 This Court correctly applied Collins and CFSA

to find that Burgess is unlikely to succeed on the merits of his removal-restriction claims.

A. Under Collins, Plaintiffs Cannot Obtain Relief—Prospective or

Retrospective—On Removal-Restriction Claims Unless They Establish That 

Those Restrictions Caused Harm.

In Collins, shareholders of Fannie Mae and Freddie Mac sued the United States Department 

of the Treasury and the Federal Housing Finance Agency (FHFA), which is the conservator of 

 6

 November 6 Order at 17-19.

7

 November 6 Order at 17-19.

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Fannie Mae and Freddie Mac. The plaintiffs alleged that FHFA had exceeded its statutory 

authority by entering into a third amendment of an agreement concerning Treasury’s investment 

in Fannie Mae and Freddie Mac, and that FHFA was unconstitutionally structured because it was 

led by a single Director who could be removed by the President only for cause. See Collins, 141 

S. Ct. at 1775.

After rejecting the plaintiffs’ statutory claim, the Court proceeded to consider their 

removal-restriction claim. See Collins, 141 S. Ct. at 1778. Relying on Seila Law LLC v. Consumer 

Fin. Prot. Bureau, 140 S. Ct. 2183 (2020), which had invalidated a restriction on removal of the 

CFPB Director, the Court held that the for-cause restriction on removal of the FHFA Director 

violates the separation of powers. See Collins, 141 S. Ct. at 1783.

The Court went on to address the plaintiffs’ request for relief. The plaintiffs had sought 

both prospective and retrospective relief in their complaint. See Collins, 141 S. Ct. at 1780. But 

after the Court heard oral argument, Treasury and FHFA advised the Court that they had executed 

a fourth amendment to the subject agreement, which meant that the plaintiffs’ claim for prospective 

relief was no longer live, although they still had an interest in retrospective relief. See id. The 

plaintiffs argued that they were entitled to relief on the ground “that the third amendment was 

adopted and implemented by officers who lacked constitutional authority and that their actions 

were therefore void ab initio.” Id. at 1787. The Court rejected this argument as conflating 

Appointments Clause violations with unconstitutional removal restrictions:

We have already explained that the Acting Director who adopted the third 

amendment was removable at will. That conclusion defeats the shareholders’ 

argument for setting aside the third amendment in its entirety. We therefore 

consider the shareholders’ contention about remedy with respect to only the 

actions that confirmed Directors have taken to implement the third amendment 

during their tenures. But even as applied to that subset of actions, the 

shareholders’ argument is neither logical nor supported by precedent. All the 

officers who headed the FHFA during the time in question were properly 

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appointed. Although the statute unconstitutionally limited the President’s 

authority to remove the confirmed Directors, there was no constitutional defect 

in the statutorily prescribed method of appointment to that office. As a result, 

there is no reason to regard any of the actions taken by the FHFA in relation to 

the third amendment as void.

Collins, 141 S. Ct. at 1787 (emphasis in original) (internal citation omitted). Nevertheless, the 

Court found that “it is still possible for an unconstitutional provision to inflict compensable harm. 

And the possibility that the unconstitutional restriction on the President’s power to remove a 

Director of the FHFA could have such an effect cannot be ruled out.” Id. at 1789. The Court 

provided two examples where a removal restriction would cause harm—if the President had 

attempted to remove a Director but was prevented from doing so by a lower court ruling that he 

lacked “cause,” and if the President had publicly expressed displeasure with a Director’s actions 

and stated that he would remove the Director if the statute did not stand in the way. Id.

8

In CFSA, the Fifth Circuit applied the Collins harm requirement to a lawsuit in which the 

plaintiffs sought to hold unlawful, enjoin, and set aside a rule promulgated by the CFPB. See 

CFSA, 51 F.4th at 625. The plaintiffs argued, inter alia, that the rule must be invalidated because 

it was initially promulgated by a CFPB Director who, as Seila Law held, was unconstitutionally 

protected from removal by the President. Id. at 631. The Fifth Circuit found that the plaintiffs had 

failed to demonstrate harm from the unconstitutional removal restriction as required by Collins. 

Id. at 632-633. The Court also rejected the plaintiffs’ argument that the Collins harm requirement 

does not apply to claims for prospective relief:

 8

 The Court remanded the case for further proceedings because “the [Collins plaintiffs] 

nevertheless claim that the unconstitutional removal provision inflicted harm.” Collins, 141 S. Ct. 

at 1789. The case recently was dismissed with prejudice because “[a]s Plaintiffs have failed to 

plead that they were harmed by the removal restrictions, they are unable to make a claim for relief.” 

Collins v. Lew, No. 4:16-CV-03113, 2022 WL 17170955, at *5 (S.D. Tex. Nov. 22, 2022), appeal 

docketed sub nom. Collins v. Treasury, No. 22-20632 (5th Cir. Dec. 8, 2022).

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While the Plaintiffs acknowledge Collins, they argue the case is distinguishable 

on several grounds. None are persuasive.

First, they assert that Collins applies only to retrospective relief. But Collins did 

not rest on a distinction between prospective and retrospective relief. As the 

Sixth Circuit recently explained, Collins’s remedial inquiry “focuse[d] on 

whether a ‘harm’ occurred that would create an entitlement to a remedy, rather 

than the nature of the remedy, and our determination as to whether an 

unconstitutional removal protection ‘inflicted harm’ remains the same whether 

the petitioner seeks retrospective or prospective relief.”

Id. at 631 (quoting Calcutt v. Federal Deposit Ins. Corp., 37 F.4th 293, 316 (6th Cir. 2022)).9

B. Burgess’ Argument That Collins and CFSA Do Not Apply To His RemovalRestriction Claims Is Without Merit.

Burgess does not argue that allegedly unconstitutional restrictions on removal of appointed 

Board members or the ALJ inflicted harm on him, a prerequisite for relief under Collins. Instead, 

he offers multiple reasons why this Court supposedly erred in finding Collins and CFSA applicable 

to his removal-restriction claims. None of them has merit.

 9

 Burgess surmises that “whatever persuasive value Calcutt may have had when [CFSA] was 

decided has since been called into grave doubt,” because the Supreme Court recalled the mandate 

and stayed proceedings pending the filing of a petition for writ of certiorari on the application of 

Calcutt who argued, among other things, that the Sixth Circuit had incorrectly interpreted Collins. 

Recon. Memo at 16-17. The Supreme Court’s recall of the mandate and stay order in Calcutt does 

not make CFSA any less binding on this Court. In any event, the Supreme Court’s order does not 

create “grave doubt” about the correctness of Calcutt’s holding that the Collins harm requirement 

applies to claims for prospective relief. The FDIC agreed with Calcutt that a stay was warranted 

on an unrelated question presented—whether the Sixth Circuit had erred by not remanding to the 

Board after it determined that the Board had applied the wrong causation standard to the FDIC’s 

claims in the enforcement proceeding against Calcutt. Response to Application for a Stay of 

Proceedings and Recall of the Sixth Circuit’s Mandate Pending a Petition for a Writ of Certiorari 

and for an Administrative Stay at 12, Calcutt v. Federal Deposit Ins. Corp., No. 22A255 (U.S. 

Sept. 28, 2022). But the FDIC disagreed that a stay was warranted as to the question relevant 

here—whether the Sixth Circuit had erred in applying Collins to Calcutt’s removal-restriction 

claims. Id. In reply, Calcutt asked that “[i]n light of the government’s agreement that the 

application should be granted,” the Court grant the requested relief. Reply in Support of 

Application for a Stay of Proceedings and Recall of the Sixth Circuit’s Mandate Pending a Petition 

for a Writ of Certiorari and for an Administrative Stay at 1, Calcutt v. Federal Deposit Ins. Corp., 

No. 22A255 (U.S. Sept. 29, 2022).

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1. Cochran Does Not Hold That The Collins Harm Requirement Is 

Inapplicable To Burgess’ Claims.

Burgess asserts that in Cochran v. United States Secs. & Exch. Comm’n, 20 F.4th 194 (5th 

Cir. 2021) (en banc), cert. granted, 142 S. Ct. 2707 (U.S. May 16, 2022) (No. 21-1239), in footnote 

16 of the majority opinion, the Fifth Circuit “held that Collins’s ‘compensable harm’ requirement 

applies when a plaintiff ‘seek[s] to ‘void’ the acts of an [agency] official’ after the fact, but does 

not apply when a plaintiff seeks equitable relief to secure ‘an administrative adjudication untainted 

by separation-of-powers violations’ in a suit for ‘pre-enforcement review.’”10 Footnote 16 of the 

Cochran majority opinion cannot bear the weight Burgess places upon it. In that footnote, the 

majority noted the dissent’s assertion (Cochran, 20 F.4th at 244) that improper appointment of an 

ALJ creates a “more serious injury” than improper restrictions on removal of an ALJ, because 

Collins held that improper protection from removal, unlike improper appointment, does not lead 

to the exercise of power that an agency official does not lawfully possess. The majority responded 

that “Collins does not impact our conclusion in this case because Cochran does not seek to ‘void’ 

the acts of any SEC official. Rather, she seeks an administrative adjudication untainted by 

separation-of-powers violations. Although we will not engage in the dissenting opinion’s efforts 

to weigh the relative severity of constitutional injuries, Cochran’s injury is sufficiently serious to 

justify pre-enforcement review in federal court.” Id. at 210 n.16. Absent from the majority-dissent 

exchange comprising footnote 16 is a discussion of whether Collins permits challengers to obtain 

prospective relief without showing compensable harm. 

Even if a statement on the applicability of the Collins harm requirement to requests for 

prospective relief could be teased out of footnote 16 of the majority opinion, it would not be a 

 

10 Recon. Memo at 3 (emphasis in original). 

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holding. The constitutionality of removal restrictions was not at issue in Cochran, much less the 

available remedies in the event that restrictions are found unconstitutional. Instead, “[t]he question 

presented [was] whether a provision of the Securities Exchange Act of 1934 . . . implicitly strips 

federal district courts of subject-matter jurisdiction to hear structural constitutional claims.” 

Cochran, 20 F.4th at 197-198; id. at 199 (“The sole issue on appeal is whether the district court 

had subject-matter jurisdiction over Cochran’s claims.”); id. at 211 (“this case presents only the 

issue of whether the Exchange Act divested district court jurisdiction over claims that SEC ALJs 

are unconstitutionally insulated from the President’s removal power; our holding extends no 

further”). Burgess does not explain how the references to Collins in footnote 16 of the Cochran

majority opinion are necessary to that jurisdictional holding. Nor did the district court in 

Consumers’ Research v. Consumer Prod. Safety Comm’n, 592 F. Supp. 3d 568 (E.D. Tex. 2022), 

appeal docketed, No. 22-40328 (5th Cir. May 18, 2022).

11

2. As This Court Correctly Held, CFSA Governs Here.

Another reason why Burgess’ reliance on footnote 16 of the Cochran majority opinion is 

misplaced is that less than a year after Cochran, the Fifth Circuit issued CFSA, in which it held 

that the Collins harm requirement applies to claims for prospective as well as retrospective relief. 

CFSA, 51 F.4th at 631. In his Motion for Reconsideration, Burgess’ arguments that CFSA should 

not be read at face value miss the mark.

 11 Burgess asserts that “[r]elying on this very footnote, other courts within the Fifth Circuit have 

recently interpreted Cochran in exactly the way that Burgess interprets Collins here.” Recon. 

Memo at 14. Assuming that Burgess is referring to his interpretation of Cochran as holding that 

the Collins harm requirement does not apply to claims for prospective relief, Burgess cites only 

one case decided by one court (Consumers’ Research). The FDIC is unaware of any “other courts” 

in this Circuit that have relied on footnote 16 of the Cochran majority opinion in the manner 

Burgess describes.

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Burgess contends that “[i]nsofar as [CFSA] is interpreted to require depriving Burgess of 

any remedy—despite being subjected to ongoing enforcement proceedings by unconstitutionally 

insulated officials who are threatening to deprive him of his right to ever participate in the banking 

industry again—it is plainly in conflict with” Cochran.

12 As explained above, CFSA does not 

conflict with Cochran because CFSA holds that the Collins harm requirement applies to 

prospective as well as retrospective relief and Cochran does not hold to the contrary. Moreover, 

CFSA does not hold that Burgess cannot obtain a remedy if he is being (or has been) prosecuted 

or judged by an officer unconstitutionally protected from removal. CFSA merely holds that under 

Collins, Burgess must establish harm from removal restrictions in order to obtain a remedy. 

Assuming arguendo this Court’s jurisdiction over this lawsuit (an issue currently before the Fifth 

Circuit), had Burgess established both that the removal restrictions at issue were unconstitutional 

and that they inflicted harm on him, under Collins and CFSA this Court could have awarded him 

relief on his removal-restriction claims. But Burgess does not allege harm.

Burgess also argues that this Court should construe CFSA narrowly so that it does not apply 

to him: “The easiest way for this Court to reconcile [CFSA] and Cochran would be to hold that 

the discussion of remedies in [CFSA] does not constitute binding precedent with respect to the 

particular fact pattern presented in this case—i.e., a situation in which the plaintiff seeks only

prospective relief and does not request vacatur of any agency action.”13 But there is no CFSACochran conflict to reconcile, and neither Collins nor CFSA contains a carveout for Burgess’ 

alleged circumstances.

 

12 Recon. Memo at 2-3. 

13 Recon. Memo at 19. 

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Continuing his focus on Cochran, Burgess asserts that “[i]t also bears mention that [CFSA] 

may well have been decided differently if the panel had been made aware of the import of the 

Cochran decision for its remedial analysis.”14 As explained above, Cochran’s holding does not 

conflict with CFSA’s holding that the Collins harm requirement applies to prospective as well as 

retrospective relief. In any event, Burgess does not explain how an argument based on speculation 

that (a) the CFSA panel was unaware of Cochran’s supposed import,15 and (b) the CFSA decision 

“may well have” come out a different way, merits reconsideration. Nor does Burgess gain traction 

by positing that “the fact that a particular issue was not raised in the parties’ briefs means that 

future Fifth Circuit panels (and District Courts within the Circuit) are not precluded from reaching 

a different result in a future case where that issue is presented in the briefs.”16 The issue of whether 

the Collins harm requirement applies to claims for prospective relief was briefed by the parties in 

CFSA.

17

Burgess also argues that CFSA’s finding that the Collins harm requirement applies to 

claims for prospective relief need not be followed by this Court, because the plaintiffs had forfeited 

 

14 Recon. Memo at 16. 

15 The fact that the parties in CFSA did not cite Cochran to the Fifth Circuit does not mean the 

panel was unaware of Cochran. After all, Cochran was a high-visibility opinion issued during the 

course of briefing in CFSA, and all three members of the CFSA panel participated in the en banc 

Cochran decision (and joined Judge Oldham’s concurrence to which Burgess frequently refers). 

And Cochran is one of a small number of Fifth Circuit opinions citing Collins. So if Cochran

really did contain a “plain holding” (Recon. Memo at 3) that the Collins harm requirement does 

not apply to claims for prospective relief, it is reasonable (or at least no more speculative than 

Burgess’ alternative) to assume that the panel would have been aware of that holding and applied 

it.

16 Recon. Memo at 16 (emphasis in original). 

17 Opening Brief of Appellants at 16-18, Community Fin. Servs. Ass’n of Am., Ltd. v. Consumer 

Fin. Prot. Bureau, No. 21-50826 (5th Cir. Nov. 15, 2021); Brief of Appellees at 37-38, Community 

Fin. Servs. Ass’n of Am., Ltd. v. Consumer Fin. Prot. Bureau, No. 21-50826 (5th Cir. Dec. 15, 

2021); Reply Brief of Appellants at 7, Community Fin. Servs. Ass’n of Am., Ltd. v. Consumer Fin. 

Prot. Bureau, No. 21-50826 (5th Cir. Jan. 19, 2022). 

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their argument to the contrary “[a]nd it is black-letter law that a federal court’s comments on 

forfeited issues constitute mere dicta.”18 But the out-of-circuit caselaw cited by Burgess does not 

help his cause because, in each of those opinions, the court in the prior case had found that an issue 

had been forfeited.19 In CFSA, by contrast, the Fifth Circuit did not find that the plaintiffs had 

forfeited their argument on the Collins harm requirement.20 Instead, the Court considered and 

rejected the argument. CFSA, 51 F.4th at 631. That is not dicta; it is a holding.

 18 Recon. Memo at 22-23; see id. at 23 n.24 (citing cases).

19 See United States v. Wilson, 776 F.3d 402, 405 (6th Cir. 2015) (“The Fourth Circuit came to a 

different conclusion in United States v. Alston . . . but its one-sentence analysis was dicta because 

Alston forfeited the issue on appeal.”); United States v. Alston, 722 F.3d 603, 606 n.4 (4th Cir. 

2013) (“Alston raises this argument for the first time in his reply brief and did not raise it before 

the district court. His argument is therefore waived.”); see also Howell Petroleum Corp. v. Samson 

Res. Co., 903 F.2d 778, 780 n.1 (10th Cir. 1990) (“Howell relies upon Becker v. State ex rel. 

Department of Public Welfare . . . .Regarding the statute of limitations, the court first noted that 

the defendant waived any defense based on the statute because he failed to plead it. Four 

paragraphs later, the court said that the claim was not barred by the statute of limitations because 

the cross-claimants had no notice that the defendant had repudiated the trust. The second statement 

is dicta because the issue had been waived and was not before the court.”); see also United States 

v. Smith, 386 F.3d 753, 761 (6th Cir. 2004) (“[T]he government relies upon United States v. 

Johnson . . . .However, the language in Johnson cited by the government is dicta, since in the same 

paragraph, we pointed out that the defendant had forfeited the issue concerning the validity of the 

no-knock warrant because he failed to raise the argument before the district court. Therefore, it 

cannot serve as precedent.”) (internal citations omitted); see also Bass v. Butler, 116 F. App’x 376, 

383 (3d Cir. 2004) (“On that claim, the Commonwealth Court held that Bass had waived the issue. 

Despite this finding, the court did address the issue ‘in any case’ and found the claim meritless. 

After finding that the issue was waived, however, any discussion on the merits was dictum, because 

under Pennsylvania law lower courts are not allowed to address issues waived by the parties. . . 

.[I]n this case the Commonwealth Court was not empowered to evaluate Bass’s facial claims after 

it found that the issue had been waived. Therefore, the facial constitutionality of Section 415 was 

not actually decided by the Commonwealth Court, and the issue is not barred by Rooker-Feldman

on that basis.”).

20 When the Fifth Circuit in CFSA intended to find a forfeiture, it said so. See CFSA, 51 F.4th at 

629 (“As to the first point, the Plaintiffs forfeited their stale data argument by failing to raise it in 

the district court.”); id. at 633 n.6 (“Because the Plaintiffs did not raise their appropriations-based 

nondelegation argument in the district court, it is forfeited on appeal.”).

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For that same reason, Burgess’ reliance on Ochoa-Salgado v. Garland, 5 F.4th 615 (5th 

Cir. 2021), is misplaced. In that case, after discussing circuit precedent on applying the rule of 

orderliness to conceded points, the Court summed it up: “In short, where a party concedes an issue 

and a panel fails to give it reasoned consideration, a ruling relying on that concession isn’t an 

affirmation of the conceded proposition that operates as binding precedent.” Id. at 620. As 

explained below, in CFSA the plaintiffs made no concession on the applicability of the Collins

harm requirement to claims for prospective relief. But even if they had, the Court did not rely on 

that concession by stating that the plaintiffs concede that Collins applies to prospective as well as 

retrospective relief.

21 Just the opposite: the Court stated that the plaintiffs “assert that Collins

applies only to retrospective relief.” And the Court went on to give the issue reasoned 

consideration by following an earlier Court of Appeals decision addressing the issue. See CFSA, 

51 F.4th at 631.

Burgess cites no case, from any court, holding that where the court of appeals does not find 

an issue forfeited and proceeds to decide it, a trial court can, in a different case, reach its own 

conclusion as to whether the court of appeals should have found a forfeiture, and thus whether to 

treat the court of appeals’ finding on the issue as a holding or dicta. Even if that were the law, 

Burgess has not shown forfeiture by the CFSA plaintiffs. He points to a letter the plaintiffs filed 

with the Fifth Circuit in response to the CFPB’s letter notifying the Court of the Calcutt decision.22 

 21 See, e.g., United States v. Ibarra-Luna, 628 F.3d 712, 716 (5th Cir. 2010) (“The government 

concedes that a mere offer to sell, without evidence of possession or transfer, is tantamount to 

solicitation and is not proscribed by the Controlled Substances Act.”); Ochoa-Salgado, 5 F.4th at 

619 (citing Ibarra-Luna as a case where “we relied on the government’s concession that an offerto-sell theory fell outside the CSA”).

22Response to Letter Pursuant to Fed. R. App. P. 28(j), Community Fin. Servs. Ass’n of Am., Ltd. 

v. Consumer Fin. Prot. Bureau, No. 21-50826 (5th Cir. Jun. 23, 2022).

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In a footnote, the plaintiffs disagreed with Calcutt’s read of Collins as applying to claims for 

prospective relief, attempted to distinguish Calcutt on the point, and then stated that “[r]egardless, 

this Court need not resolve whether Collins applies to prospective relief. Rather, because Plaintiffs 

have satisfied Collins by establishing that President Trump would have removed Director Cordray, 

the Court can simply assume arguendo that Collins applies to the relief sought here.”23

The plaintiffs’ statement is best read as an argument that even if the Court reads Collins

the way the Sixth Circuit did in Calcutt, the plaintiffs still win. So read, it is consistent with the 

position the plaintiffs previously took at oral argument, refuting the CFPB’s assertion that they 

were conceding the applicability of Collins: “I wanted to correct something that my friend said. 

We don’t concede that Collins’ limitation on relief applies outside of its narrow circumstances 

there, which was disgorgement of funds. But we think the simplest way for the court to decide 

this case is just to assume that Collins applies because we so readily satisfy Collins.”24

CONCLUSION

For the foregoing reasons, Burgess’ Motion for Reconsideration should be denied. 

 Respectfully submitted,

FEDERAL DEPOSIT INSURANCE CORPORATION

Andrew J. Dober

Senior Counsel 

Bryce C. Quine (Tex. No. 24032976) 

Arthur E. Anthony (Tex. No. 24001661) 

600 North Pearl Street, Suite 700 

Dallas, Texas 75201 

Telephone: (972) 761-8520

 /s/ Andrew A. Nicely 

Andrew A. Nicely (Va. No. 41750) 

Daniel Kurtenbach

3501 Fairfax Drive, D-7028

Arlington, VA 22226-3500

Tel.: (703) 516-5729

 

23Id. at 2 n.1. 

24Recording of Oral Argument at 36:45-37:03, Community Fin. Servs. Ass’n of Am., Ltd. v. 

Consumer Fin. Prot. Bureau, No. 21-50826 (5th Cir. May 9, 2022); see Recon. Memo at 23 

(quoting statement of CFPB attorney to whom the plaintiffs’ attorney responded). 

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Alternate Tel.: (972) 761-2237

Email: bquine@fdic.gov 

Email: aranthony@fdic.gov 

Fax: (703) 562-2477

Email: anicely@fdic.gov

 Counsel for Defendants 

DATED: January 13, 2023 

Case 7:22-cv-00100-O Document 66 Filed 01/13/23 Page 17 of 18 PageID 1041
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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on January 13, 2023, I electronically filed the foregoing with

the Clerk of the Court using the CM/ECF system, which will send notification of such filing to all

counsel and parties of record registered to receive such notices.

 

 /s/ Andrew A. Nicely

 Andrew A. Nicely

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