United States District Court, S.D. Florida
ORDER DENYING DEFENDANTS' RENEWED MOTION TO
REOPEN AND COMPEL FACT DISCOVERY FROM PLAINTIFF CONSUMER
FINANCIAL PROTECTION BUREAU [DE 524]
WILLIAM MATTHEWMAN United States Magistrate Judge.
CAUSE is before the Court on Defendants' Renewed Motion
to Reopen and Compel Fact Discovery from Plaintiff Consumer
Financial Protection Bureau [DE 24]. This matter was referred
to the undersigned by the Honorable United States District
Judge Kenneth A. Marra. See DE 495. The parties have
filed responses to the motion, and they have filed a Joint
Notice [DE 553] as required by the Court. The Court held a
lengthy hearing on the motion on December 4, 2019. [DE 558].
The matter is now ripe for review.
seek a Court Order either (1) compelling Plaintiff Consumer
Financial Protection Bureau ("Bureau") to answer
written questions to various questions Defendants asked while
deposing employees of the Bureau that Defendants argue the
Bureau improperly objected to, or, (2) permitting them to
re-depose those employees for four additional hours.
Specifically, Defendants seek information regarding Acting
Director Mick Mulvaney's decision to ratify the bringing
of the instant action against Defendants. See DE 52.
Defendants contend such information is necessary to support
their Fifth Defense asserted in their Answer and Affirmative
Defenses [DE 550]. In that Defense, Defendants argue this
action should be dismissed as the Bureau "lacks
authority to bring this lawsuit because its structure is
unconstitutional" (the "Unconstitutionality
Defense"). The Bureau opposes Defendants' motion,
arguing such information is irrelevant and protected under
either the attorney work product privilege, deliberative
process privilege, or both. The Bureau also notes that
Defendants' Fifth Defense is the subject of a pending
motion to strike [DE 527].
Court has twice considered Defendants'
Unconstitutionality Defense and twice rejected it. The
Honorable United States District Judge Kenneth A. Marra first
expressly rejected the Unconstitutionality Defense in his
Order Granting Part in Part and Denying in Part
Defendants' Motion to Dismiss [DE 452], holding that the
Bureau "is without constitutional defect."
Defendants then moved for reconsideration of Judge
Marra's Order [DE 480] after the Bureau notified the
Court that it would "no longer defend the
constitutionality" of its structure [DE 469]. However,
on November 13, 2019, Judge Marra denied Defendants'
motion for reconsideration. [DE 521]. As Judge Marra
explained to Defendants, the Bureau's shift in "its
own position does not discharge the Court of its duty to
interpret the constitutionality of [the Bureau]
independently." Id. at p. 8. The Bureau's
structure was constitutional despite pending litigation
regarding the removal provision of the Bureau's director,
Judge Marra held, because "even if the Supreme Court
finds the [Bureau's] for-cause removal to be
unconstitutional, the proper remedy would be severance of 12
U.S.C. § 5491(c)(3), pursuant to 12 U.S.C. § 5302,
not dismissal[.]" Id. at p.7. Nonetheless,
despite both of Judge Marra's rulings rejecting the
Unconstitutionality Defense, Defendants now seek to reopen
discovery as to the Bureau even though discovery ended in
this case over five months ago on July 1, 2019 [DE
Court is unconvinced Defendants need yet more discovery in
this already overly-discovered case. This lawsuit began on
April 20, 2017. [DE 1]. During the past two and a half years,
Defendants have had ample opportunity to obtain discovery
regarding their Unconstitutionality Defense. Further, the
Court has twice rejected that defense. See DEs 452,
the Court is not persuaded the information Defendants seek is
at all relevant to the instant litigation or proportional.
See Fed. R. Civ. P. 26(b)(1) (information sought in
discovery must be "relevant to any party's claim or
defense and proportional to the needs of the case").
Defendants state the information relates to "when the
Acting Director reviewed the Bureau's decision to file
this lawsuit, who briefed him, and how ratification was
memorialized." [DE 542, p.4]. Such information is
irrelevant to the question of whether the structure of the
Bureau is unconstitutional. Defendants argue they should be
permitted this additional discovery because of pending
litigation before the Supreme Court related to Acting
Director Mulvaney's decision to ratify a different
action. See CFPB v. All Amer. Check Cashing, Inc.,
No. 3:16-cv-356, 2018 WL 9812125 (S.D.Miss. Mar. 21, 2018),
petition for cert, filed, (U.S. Sept. 30, 2019) (No.
19-432). However, on December 9, 2019, the Court declined to
review the pending challenge to Acting Director
Mulvaney's ratification decision, see CFPB v. All
American Check Cashing, 2019 WL 6689879 (Mem) (Dec. 9,
2019), thus leaving in place the decision of the United
States District Court for the Southern District of
Mississippi that "the Bureau is not unconstitutional
based on its single-director structure," All Amer.
Check Cashing, 2018 WL 9812125, at *2.
Supreme Court invalidates the entire constitutional structure
of the Bureau-rather than either upholding it or, as Judge
Marra explained, merely severing 12 U.S.C. § 5491(c)(3)-
Defendants may bring a renewed motion at that time to seek
whatever additional discovery they believe they need, or they
may appeal any adverse ruling against them to the appropriate
court at the appropriate time. However, at this time, the
Court has twice rejected the Unconstitutionality Defense and
will not now permit Defendants to reopen discovery to seek
yet more discovery about a defense twice rejected by this
Court, especially since such discovery is irrelevant and
disproportionate in this case.
light of the foregoing, Defendants' Renewed Motion to
Reopen and Compel Fact Discovery from Plaintiff Consumer
Financial Protection Bureau [DE 24] is
 The Court recently permitted the
Bureau to obtain certain additional, limited discovery from
Defendants in light of Defendants' Answer and Amended
Affirmative Defenses filed on November 27, 2019, as
Defendants asserted new defenses that the Bureau was entitled
to discover about after the close of ...