Consumer Financial Protection Bureau v. National Collegiate Master Student Loan Trust

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 22-1864
____________
CONSUMER FINANCIAL PROTECTION BUREAU
v.
NATIONAL COLLEGIATE MASTER STUDENT LOAN
TRUST; NATIONAL COLLEGIATE STUDENT LOAN
TRUST 2003-1; NATIONAL COLLEGIATE STUDENT
LOAN TRUST 2004-1; NATIONAL COLLEGIATE
STUDENT LOAN TRUST 2004-2; NATIONAL
COLLEGIATE STUDENT LOAN TRUST 2005-1;
NATIONAL COLLEGIATE STUDENT LOAN TRUST
2005-2; NATIONAL COLLEGIATE STUDENT LOAN
TRUST 2005-3; NATIONAL COLLEGIATE STUDENT
LOAN TRUST 2006-1; NATIONAL COLLEGIATE
STUDENT LOAN TRUST 2006-2; NATIONAL
COLLEGIATE STUDENT LOAN TRUST 2006-3;
NATIONAL COLLEGIATE STUDENT LOAN TRUST
2006-4; NATIONAL COLLEGIATE STUDENT LOAN
TRUST 2007-1; NATIONAL COLLEGIATE STUDENT
LOAN TRUST 2007-2; NATIONAL COLLEGIATE

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STUDENT LOAN TRUST 2007-3; NATIONAL
COLLEGIATE STUDENT LOAN TRUST 2007-4,
Delaware Statutory Trusts
NATIONAL COLLEGIATE MASTER STUDENT LOAN
TRUST; NATIONAL COLLEGIATE STUDENT LOAN
TRUST 2003-1; NATIONAL COLLEGIATE STUDENT
LOAN TRUST 2004-1; NATIONAL COLLEGIATE
STUDENT LOAN TRUST 2004-2; NATIONAL
COLLEGIATE STUDENT LOAN TRUST 2005-1;
NATIONAL COLLEGIATE STUDENT LOAN TRUST
2005-2; NATIONAL COLLEGIATE STUDENT LOAN
TRUST 2005-3; NATIONAL COLLEGIATE STUDENT
LOAN TRUST 2006-1; NATIONAL COLLEGIATE
STUDENT LOAN TRUST 2006-2; NATIONAL
COLLEGIATE STUDENT LOAN TRUST
2006-3; NATIONAL COLLEGIATE STUDENT LOAN
TRUST 2006-4; NATIONAL COLLEGIATE STUDENT
LOAN TRUST 2007-1; NATIONAL COLLEGIATE
STUDENT LOAN TRUST 2007-2; NATIONAL
COLLEGIATE STUDENT LOAN TRUST 2007-3;
NATIONAL COLLEGIATE STUDENT LOAN TRUST
2007-4; AMBAC ASSURANCE CORPORATION;
TRANSWORLD SYSTEMS INC,
Appellants

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Appeal from the United States District Court
for the District of Delaware
(D.C. Civil Action No. 1-17-cv-01323)
Circuit Judge: Honorable Stephanos Bibas1
Argued on May 17, 2023
Before: RESTREPO, ROTH and McKEE, Circuit Judges
(Opinion filed: March 19, 2024)
Seth Frotman
Steven Y. Bressler
Kevin E. Friedl (ARGUED)
Kristin Bateman
Consumer Financial Protection Bureau
1700 G Street NW
Washington, DC 20552
Counsel for Appellee Consumer
Financial Protection Bureau
Jonathan Y. Ellis (ARGUED)
McGuireWoods LLP
500 Fayetteville Street
Suite 500
Raleigh, NC 27061
1 Honorable Stephanos Bibas, United States Court of Appeals
Judge for the Third Circuit Court of Appeals, sitting by
designation.

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Nicholas J. Giles
McGuireWoods LLP
Gateway Plaza
800 East Canal Street
Richmond, VA 23219
Francis J. Aul
McGuireWoods LLP
888 16 th Street, NW
Black Lives Matter Plaza, Suite 500
Washington, DC 20006
Megan Ix Brison
Michael A. Weidinger
Pinckney Weidinger Urban & Joyce
2 Mill Road
Suite 204
Wilmington, DE 19806
Counsel for Appellants
Rebecca L Butcher
Jennifer L. Cree
Landis Rath & Cobb
919 Market Street
Suite 1800, P.O. Box 2087
Wilmington, DE 19801
Counsel for Intervenor Appellant GSS
Data Services LLC

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Joshua A Kipnees
George A. LoBiondo
Patterson Belknap Webb & Tyler
1133 Avenue of the Americas
New York, NY 10036
Counsel for Intervenor Appellant Ambac
Assurance Corp
Allyson B. Baker
Meredith L. Boylan
Sameer P. Sheikh
Paul Hastings
2050 M Street NW
Washington, DC 20036
Counsel for Intervenor Appellant
Transworld Systems Inc
Stephen M. Nickelsburg
Clifford Chance US
2001 K Street NW
Washington, DC 20006
Counsel for Amicus Appellant Chamber
of Commerce of the United States of
America and Securities Industry and
Financial Markets Association

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R. Trent McCotter
George Mason University
3301 Fairfax Drive
Arlington, VA 20001
Counsel for Amicus Appellant Separation
of Powers Clinic
Ellen V. Hollman
Cadwalader Wickersham & Taft
200 Liberty Street
One World Financial Center
New York, NY 10281
Rachel Rodman
Cadwalader Wickersham & Taft
700 Sixth Street NW
Washington, DC 20001
Counsel for Amicus Appellant Structured
Finance Association
Sarah A. Hunger
Office of Attorney General of Illinois
Solicitor General’s Office
115 S LaSalle Street
23 rd Floor
Chicago, IL 60603
Counsel for Amicus Appellees State of
Illinois, State of California, State of
Colorado, State of Connecticut, State of
Delaware District of Columbia, State of

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Hawaii, State of Idaho, State of Maine,
State of Maryland, State of
Massachusetts, State of Michigan, State
of Minnesota, State of Nevada, State of
New Jersey, State of New Mexico, State
of New York, State of North Carolina,
State of Oregon, State of Rhode Island,
State of Commonwealth of Virginia, State
of Washington and State of Wisconsin
Benjamin J. Roesch
Jensen Morse Baker
1809 Seventh Avenue
Suite 410
Seattle, WA 98101
Counsel for Amicus Appellees Student
Borrower Protection Center,
Community Legal Aid Society Inc,
Community Legal Services Inc, New
York Assistance Group and New
Jersey Citizen Action
O P I N I O N

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ROTH, Circuit Judge:
The issues before the Court on this interlocutory appeal
are whether the Trusts are covered persons subject to the
Consumer Financial Protection Act (CFPA), and whether the
Consumer Financial Protection Bureau (CFPB) was required
to ratify the underlying action. As a result of our review of the
case, we will remand it to the District Court with our answers
to the two questions certified.
I. BACKGROUND
A. Formation and Obligations of the Trusts
Between 2003 and 2007 there was a massive uptick in
securitized assets.2 Part of this increase in securitization was
the privatization of student loans.3 During this period, the
fifteen appellant trusts (the Trusts), which are “offshoots of the
National Collegiate Student Loan Master Trust,” were formed
“for the narrow purpose of acquiring and servicing a sizable
2 See Sergei Chernenko et al., The Rise and Fall of Demand for
Securitizations, H ARVARD B USINESS S CHOOL , 1 (2014),
https://www.hbs.edu/ris/Publication%20Files/The%20Rise%
20and%20Fall%20of%20Demand%20for%20Securitizations
_26afb79a-342c-42d6-9b8e-184c0b9ec2f4.pdf.
3 See id. at 5.

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portfolio of student loans.”4 Indeed, the Trusts have since
amassed over eight hundred thousand private loans.5
“At their formation, each of the 15 Trusts and the Owner
Trustee executed a Trust Agreement governed by Delaware
law.”6 This agreement defined the purpose of the Trusts.7
Under the agreement, because the Trusts have no employees,
the Owner Trustee “is empowered to ‘act on behalf of the
Trust[s].’”8 One way to do so is by entering into
Administration Agreements.9 “[T]he Administration
Agreements make clear the Administrator will ‘perform’ the
‘duties of the [Trusts]’ as well as ‘the duties and obligations of
the Owner Trustee on behalf of the [Trusts] under . . . the Trust
Agreement.’”10 Therefore, “Administration Agreements . . .
play a pivotal role in the overall structure of the securitization
transaction.”11
4 In re Nat’l Collegiate Student Loan Trusts Litig., 251 A.3d
116, 127 (Del. Ch. 2020) (hereinafter In Re NCLST).
5 CFPB v. Nat’l Collegiate Master Student Loan Trust, 575 F.
Supp. 3d 505, 506 (D. Del. 2021), motion to certify appeal
granted, No. 1:17-CV-1323-SB, 2022 WL 548123 (D. Del.
Feb. 11, 2022) (hereinafter CFPB II).
6 In Re NCLST, 251 A.3d at 132. There is no discernable
difference between the Trusts in In Re NCLST and the Trusts
from CFPB II.
7 See infra note 105.
8 In Re NCLST, 251 A.3d at 131 (alteration in original).
9 See id.
10 Id. at 140 (quoting JA150).
11 Id. at 133.

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Part of the role played by the Administrator is
contracting with third parties through Servicing Agreements.12
“[F]or each Trust, the Administrator contracted with a
[Special] Servicer (or a similar entity) in a Servicing
Agreement. In that agreement, the Servicer promised to
‘provide and perform’ certain services such as ‘[b]orrower
communications,’ ‘[p]rocedures for delinquency and default,’
and ‘[d]isbursement.’”13 The Special Servicer, would, in turn,
contract with subservicers that would “conduct[] collections”
and “oversee[] . . . collection lawsuits against borrowers in the
name of the Trusts.”14 As such, in each suit, one of the Trusts
was the named plaintiff and the primary beneficiary of any
action in which it prevailed.15
In 2014, after noticing the practices of the Trusts and
those acting on their behalf, the CFPB issued a civil
investigative demand (CID) to each Trust for information on
collections lawsuits brought against borrowers for defaulted
12 Id. at 141.
13 Id. at 141 (alterations in original) (footnote omitted).
14 CFPB II, 575 F. Supp. 3d at 506–07 (alterations in original).
15 See Amici Br. Student Borrower Protection Center at 15
(stating that, in California, “every time” a suit was brought
against a delinquent debtor, the creditor was represented by
counsel) (citing Mark Huelsman, The Debt Divide: The Racial
and Class Bias Behind the “New Normal” of Student
Borrowing, D EMOS (2015),
https://www.demos.org/publication/debt-divide-racial-and-
class-bias-behind-new- normal-student-borrowing).

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student loans.16 In 2017, the CFPB initiated enforcement
proceedings against the Trusts.17 The parties reached a
settlement and asked the court to enter a consent decree. The
court declined to do so.18 The CFPB then filed this action.19
B. Precedential Developments and Their Effect on
the Instant Matter
While the case was proceeding through the District
Court, the Supreme Court issued two relevant opinions. The
first was Seila Law LLC v. Consumer Financial Protection
Bureau.20 There, the Court addressed 12 U.S.C. § 5491(c), the
statute establishing the CFPB and its Director. According to
the statute, the Director may be removed by the President only
“for cause.”21 However, the Constitution dictates that agency
heads must be freely removable by the President.22 The Court
16 CFPB v. Nat’l Collegiate Master Student Loan Tr., No. CV
17-1323 (MN), 2021 WL 1169029, at *2 (D. Del. Mar. 26,
2021) (hereinafter CFPB I); JA367 (same); NCMSLT Br. at
14.
17 CFPB I, 2021 WL 1169029, at *2.
18 CFPB II, 575 F. Supp. 3d at 507.
19 CFPB I, 2021 WL 1169029, at *2; JA367.
20 140 S. Ct. 2183 (2020).
21 12 U.S.C. § 5491(c)(3).
22 See Bowsher v. Synar, 478 U.S. 714, 726 (1986) (stating that
executive officials “must fear and, in the performance of [their]
functions, obey” (quotation omitted)). Even though this
removal power is not without limit, “[t]he parties do not ask us
to reexamine any of these [limits], and [thus] we do not do so.”
Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S.
477, 483 (2010).

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held that the CFPB’s removal provision unconstitutionally
insulated the Director of the CFPB from the president’s
removal authority because “the CFPB’s leadership by a single
individual removable only for inefficiency, neglect, or
malfeasance violates the separation of powers.”23
When an unconstitutional “provision violates the
separation of powers it inflicts a ‘here-and-now’ injury on
affected third parties that can be remedied by a court.”24 The
Court then evaluated 12 U.S.C. § 5491(c)(3) within the broader
context of the Dodd-Frank Act.25 It noted that “[i]t has long
been settled that ‘one section of a statute may be repugnant to
the Constitution without rendering the whole act void.’”26
“Generally speaking, when confronting a constitutional flaw in
a statute, we try to limit the solution to the problem, severing
23 Seila Law LLC, 140 S. Ct. at 2197. There was also a
secondary basis for this decision: that the Director would be
appointed every five years, and so a sitting President may not
have the opportunity to appoint the agency head. Id. at 2204.
This is why the opinion refers to the Director as being
“insulated by two layers of for-cause removal protection.” Id.
at 2198. However, because the parties focus purely on the fact
that the Director was unconstitutionally insulated because he
could only be removed for cause, there is no need to address
this secondary ground discussed in Seila Law.
24 Id. at 2196 (citing Bowsher, 478 U.S., at 727 n.5).
25 Id. at 2207, 2209. The CFPA is contained within the Dodd-
Frank Act. Because the parties do not discuss Dodd-Frank
outside the confines of the CFPA, the two terms may be used
interchangeably.
26 Id. at 2208 (quoting Loeb v. Columbia Twp. Trs., 179 U.S.
472, 490 (1900)).

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any problematic portions while leaving the remainder intact.”27
Therefore, “[w]hen Congress has expressly provided a
severability clause, [a court’s] task is simplified.”28 Because
“[t]he only constitutional defect [the Court] identified in the
CFPB’s structure is the Director’s insulation from removal . . .
. [the Court] must therefore decide whether the removal
provision can be severed from the other statutory provisions
relating to the CFPB’s powers and responsibilities.”29
The Dodd-Frank Act itself, which contains the CFPA,
includes the following provision: “If any provision of this Act
. . . or the application of such provision . . . is held to be
unconstitutional, the remainder of this Act, the amendments
made by this Act, and the application of the provisions of such
to any person or circumstance shall not be affected thereby.”30
Thus, because Dodd-Frank has an express severability clause,
“[t]here is no need to wonder what Congress would have
wanted if ‘any provision of this Act’ is ‘held to be
unconstitutional.’ Congress has told us: ‘the remainder of this
Act’ shall ‘not be affected.’”31 The Court found there to be no
support for the notion that “Congress would have preferred no
CFPB to a CFPB supervised by the President.”32 The Court
27 Id. at 2209 (quoting Free Enter. Fund, 561 U.S. at 508)); see
id. at 2208 (“If the removal restriction is not severable, then we
must grant the relief requested, promptly rejecting the demand
outright.”).
28 Id.
29 Id.
30 12 U.S.C. § 5302.
31 Seila Law, 140 S. Ct. at 2209 (quoting 12 U.S.C. § 5302).
32 Id.

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concluded that “[t]he provisions of the Dodd-Frank Act
bearing on the CFPB’s structure and duties remain fully
operative without the offending tenure restriction.”33
The Supreme Court then severed 12 U.S.C. § 5491(c),
and remanded the action “to determine what to do about a
petition to enforce a CID that the Bureau had filed while its
structure was unconstitutional.”34 This conformed with the
law at the time that constitutional defects had to be cured by
ratification,35 and “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.”36 The court
concluded that, if the CFPB Director did not effectively ratify
the underlying suit, the petition had to be dismissed.37
Turning to the case before us, the Trusts moved to
dismiss the CFPB’s complaint on several grounds.38 However,
the District Court felt it “need only address two” of those
grounds:39 first, whether the Trusts were “covered persons”
33 Id.
34 CFPB I, 2021 WL 1169029, at *4.
35 Id.
36 Advanced Disposal Serv. E., Inc. v. N.L.R.B., 820 F.3d 592,
603 (3d Cir. 2016).
37 Id. Ratification will be discussed in more depth below.
38 More specifically, there were several entities that intervened
in this matter, and they moved to dismiss in the wake of Seila
Law. The Trusts joined the intervenors’ motion to dismiss.
CFPB I, 2021 WL 1169029, at *3.
39 Id. at *3. These are, in essence, the two grounds in this
appeal.

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subject to the CFPA;40 second, whether the suit had to be
ratified because the action was initiated while there was a
constitutional deficiency within the agency. The contention
was that this suit was ratified after the statute of limitations had
run and thus was untimely.41
The District Court agreed that the suit was untimely.42
Relying on our opinion in Advanced Disposal, it concluded
that “ratification is, in general, not effective when it takes place
after the statute of limitations has expired.”43 The CFPB
Director ratified the action more than three years after the date
of discovery of these violations.44 The District Court also
rejected the CFPB’s alternative argument that the statute of
limitations be equitably tolled. The court found that the bureau
did not “diligent[ly] pursu[e] . . . its rights” during the relevant
period because “the Bureau was (as it should have been)
acutely aware that there was doubt over the constitutionality of
its enforcement authority.”45
40 See id.
41 Id.; see 12 U.S.C. 5564(g)(1) (stating that “no action may be
brought . . . more than 3 years after the date of discovery of the
violation to which an action relates”).
42 The District Court did not thoroughly address whether the
Trusts were “covered persons” under the CFPA, but it did
“harbor[ ] some doubt” that they were. CFPB I, 2021 WL
1169029, at *3.
43 CFPB I, 2021 WL 1169029, at *5 (citing Benjamin v. V.I.
Port Authority, 684 F. App’x 207, 212 (3d Cir. 2017)).
44 Id.
45 Id. at *6.

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With the court’s leave, the CFPB filed an amended
complaint. The CFPB’s amended complaint emphasized that
the Trusts are “covered persons” who “engage in” debt
collection and are thus subject to the CFPA.46 Again, the Trusts
and several intervenors moved to dismiss, arguing that they are
not “covered persons” under the statute and that the suit was
untimely.47
Before the District Court decided these motions, the
Supreme Court issued a new opinion, in Collins v. Yellen.48
There, the Court was facing a situation similar to that in Seila
Law. The underlying suit was brought against the Federal
Housing Finance Authority (FHFA) on the ground that the
FHFA Director was impermissibly insulated from the
President’s removal authority because he could only be
removed for cause.49 Because of this, the Shareholders argued
that agency enforcement actions made while the FHFA
Director was impermissibly insulated were void ab initio.50
The Court made quick work of the insulation issue. It
found its decision in Seila Law to be “all but dispositive”: “[a]
straightforward application of [the] reasoning in Seila Law”
required the Court to conclude that a for-cause restriction on
the President’s removal power violates separation of powers.51
46 JA383–84.
47 CFPB II, 575 F. Supp. 3d at 507.
48 141 S. Ct. 1761 (2021).
49 Id. at 1784.
50 Id. at 1787.
51 Id. at 1783–84. Though there are obviously some differences
between the CFPB and the FHFA, the Court did not “find any

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However, unlike in Seila Law, the Court also addressed
the question of whether the actions of agency heads lacking
constitutional authority were void ab initio.52 At the outset, it
noted that “there is no basis for concluding that any head of the
FHFA lacked the authority to carry out the functions of the
office.”53 The Court concluded that whether agency action was
void ab initio came down to whether an agency director was
properly appointed.54 More particularly, the Court held:
All the officers who headed the FHFA during the
time in question were properly 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 . . .
as void.55
of these distinctions sufficient to justify a different result.” Id.
at 1784.
52 Id. at 1787.
53 Id. at 1788 (citing Seila Law, 140 S. Ct. at 2207–11).
54 Id. at 1787. There is no support for the notion that any CFPB
director was improperly appointed, and neither party argues
this point. See JA15 (stating that “the Bureau’s director was
properly appointed”).
55 Collins, 141 S. Ct. at 1787.

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In so holding, the Court rejected the claim that agency actions
are void unless “ratified by an Acting Director who was
removable at will by the President.”56
The Court further clarified that actions taken by an
improperly insulated director are not “void” and do not need to
be “ratified” unless a plaintiff can show that the removal
provision harmed him.57 “[P]laintiffs alleging a removal
violation are entitled to injunctive relief—a rewinding of
agency action—only when the President’s inability to fire an
agency head affected the complained-of decision.”58 In other
words, if there is no harm derived from the President’s inability
to remove the agency head, then the agency action will not be
unwound.59
Because in Seila Law there was a “dispute [about] the
possibility that the unconstitutional removal restriction caused
any such harm,” the Court held that such disputes should be
resolved by the lower courts and remanded the action to the
56 Id. In Collins, the petitioning shareholders argued that an
unconstitutionally insulated “Director’s action would be void
unless lawfully ratified,” id. at 1788, based on the fact that the
Court in Seila Law remanded “to consider whether the civil
investigative demand was validly ratified,” Seila Law, 140 S.
Ct. at 2211. However, the Court in Collins noted that it never
mentioned “whether ratification was necessary” when agency
action was taken at the behest of an unconstitutionally
insulated agency director. Collins, 141 at 1788.
57 Id. at 1788–89.
58 Id. at 1801 (Kagan, J., concurring in part).
59 Id.

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court of appeals.60 In so doing, the Court in Collins extended
the rule established in Seila Law to permit consideration of
harm and, as a result of doing so, to determine if the agency
action had to be rewound.
Against this backdrop of Collins and Seila Law, the
District Court considered the underlying action. It addressed
two questions: whether the CFPB needed to ratify this action
(which necessarily addresses the suit’s timeliness) and whether
the Trusts were “covered persons” under the CFPA.61 Based
on Collins, the District Court held that the agency head was
properly appointed, and that the agency would have filed the
action regardless of the President’s ability to remove the
agency head. More particularly, it held:
This suit would have been filed even if the
director had been under presidential control. It
has been litigated by five directors of the CFPB,
four of whom were removable at will by the
President. And the CFPB did not change its
litigation strategy once the removal protection
was eliminated. This is strong evidence that this
suit would have been brought regardless. Thus,
the CFPB’s initial decision to bring this suit was
not ultra vires.62
60 Id. at 1789; see, e.g., id. at 1795 (Thomas, J., concurring)
(“The Fifth Circuit can certainly consider this issue on
remand.”); id. at 1802 (Kagan, J., concurring in part) (stating
that the “Court of Appeals already considered and decided the
issue remanded”).
61 See CFPB II, 575 F. Supp. 3d at 506.
62 Id. at 508 (citation omitted).

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This conclusion resolved the first question.
The District Court then considered whether the Trusts
were “covered persons” under the CFPA.63 Section 5584(a)
of the statute, which governs the CFPB’s enforcement
authority, states that “[t]he CFPB may bring enforcement
actions to ‘prevent a covered person or service provider from
committing or engaging in an unfair, deceptive, or abusive act
or practice.’”64 Under the CFPA, a “covered person,” is “any
person that engages in offering or providing a consumer
financial product or service.”65 Because “[t]he Trusts do not
deny that their subservicers collected debt or serviced loans”
the District Court noted that “this dispute boils down to the
breadth of the word ‘engage.’”66 The central question in
evaluating this inquiry was: “Does a person ‘engage’ in an
activity if he contracts with a third party to do that activity on
his behalf?”67 The court’s answer was “Yes.”68
Relying on multiple dictionaries, the District Court
determined that “‘[e]ngage’ means to ‘to embark in any
business’ or to ‘enter upon or employ oneself in an action.’”69
63 See id. at 509.
64 Id. (quoting 12 U.S.C. § 5531(a)).
65 12 U.S.C. § 5481(6)(A).
66 CFPB II, 575 F. Supp. 3d at 509.
67 Id. (emphasis added).
68 Id.
69 Id. (citing Engage (def. 16), Oxford English Dictionary (2d
ed. 2000)); see also Engage, Black’s Law Dictionary (11th ed.
2019) (“To employ or involve oneself; to take part in; to
embark on.”).

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This definition, it found, was “broad enough to encompass
actions taken on a person’s behalf by another, at least where
that action is central to his enterprise.”70 The court found that
“[t]he Trusts ‘embark[ed] in [the] business’ of collecting debt
and servicing loans when they contracted with the servicers
and subservicers to collect their debt and service their loans.”71
The court continued, “[t]he Trusts cannot claim that they were
not ‘engaged in’ a key part of their business just because they
contracted it out.”72
Shortly thereafter, the Trusts and intervenors timely
filed a motion for interlocutory appeal. The District Court
certified two questions for review: first, the statutory question
whether the Trusts are “‘covered persons’ subject to the
[CFPB’s] enforcement authority” under the CFPA;73 second,
the constitutional question, whether, after Collins, “the Bureau
need[ed] to ratify this suit before the statute of limitations ran,
having first filed it while the Bureau’s director was improperly
insulated from presidential removal[.]”74
70 CFPB II, 575 F. Supp. at 509.
71 Id.
72 Id. at 509–10 (citing Barbato v. Greystone All., LLC, 916
F.3d 260, 266–68 (3d Cir. 2019) (finding that a “passive debt
owner” counted as a “debt collector” under the Fair Debt
Collection Practices Act when it contracted with a third party
to collect debt on its behalf)).
73 JA20.
74 JA20.

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II. JURISDICTION AND STANDARD OF REVIEW
The Trusts petitioned us for review pursuant to 28
U.S.C. § 1292(b).75 We have jurisdiction under that same
provision.76 We also have jurisdiction pursuant to 28 U.S.C. §
1331. We review questions certified for interlocutory review
de novo.77
III. DISCUSSION
A. Statutory Question
The statutory dispute between the parties boils down to
a central question: Are the Trusts “covered persons” under the
CFPA because they engage in consumer financial products or
services?78
In interpreting a statute, we begin our analysis with the
plain language of the statute. Just as the District Court did, we
“[s]tart with the text.”79 That text begins with 12 U.S.C. §
5531(a), which dictates the CFPB’s enforcement authority.
The statute states the following:
75 NCMSLT Br. at 4–5.
76 NCMSLT Br. at 4.
77 Barbato, 916 F.3d at 264.
78 See NCMSLT Br. at 24, 33; CFPB Br. at 12.
79 CFPB II, 575 F. Supp. 3d at 509; see Republic of Sudan v.
Harrison, 139 S. Ct. 1048, 1056 (2019) (“We begin ‘where all
[statutory interpretation] inquiries must begin: with the
language of the statute itself.’” (quoting Caraco Pharm. Labs.,
Ltd. v. Novo Nordisk A/S, 566 U.S. 399, 412 (2012) (cleaned
up))).

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The Bureau may take any action . . . to prevent a
covered person or service provider from
committing or engaging in an unfair, deceptive,
or abusive act or practice under Federal law in
connection with any transaction with a consumer
for a consumer financial product or service, or
the offering of a consumer financial product or
service.80
A “covered person” is defined by § 5481(6)(A) as “any person
that engages in offering or providing a consumer financial
product or service.”81 To apply the statutory interpretive
framework above, and thus determine whether the Trusts are
“covered persons” subject to the CFPB’s enforcement
80 12 U.S.C. § 5531(a) (emphases added).
81 12 U.S.C. § 5481(6)(A). The omitted portion of this
provision states the following: “and any affiliate of a person
described in subparagraph (A) if such affiliate acts as a service
provider to such person.” While we do agree that servicers
were “central” to the Trusts’ “enterprise,” see JA14, neither
party argues at this time that the Trusts should be liable for the
acts of the servicers. Indeed, that would likely be an entirely
different matter. See CFPB Br. at 31; Barbato, 916 F.3d at
269–70 (illustrating that whether one can be liable for the
actions of another is a different question from the one presented
on appeal). As such, we need not evaluate affiliate liability,
especially if the Trusts can be said to “engage” on their own
accord. Thus, the relevant inquiry is not whether the servicers
are an affiliate of the Trusts, but whether the Trusts “engaged”
others to proliferate their business.

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authority, we must look to “engage” in its statutory context.82
To streamline this process, we will define this context first so
that we can then apply “engage” against that background.
A “person,” under the CFPA, “means an individual,
partnership, company, corporation, association (incorporated
or unincorporated), trust, estate, cooperative organization, or
other entity.”83 “Trusts” are explicitly mentioned here.
Additionally, the Trusts are statutory trusts formed under
Section 3801 of Title 12 of the Delaware Code.84 Title 12 of
the Delaware Code states that statutory trusts are defined as
“unincorporated associations.”85 Congress’s intent is clear:
the Trusts were to be included as “persons” under the CFPA.86
A similarly inevitable conclusion is reached when
defining “consumer financial product[s and] service[s].”87 In
82 Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997) (“The
plainness or ambiguity of statutory language is determined by
reference to the language itself, the specific context in which
that language is used, and the broader context of the statute as
a whole.”); see JA14.
83 12 U.S.C. § 5481(19).
84 CFPB I, 2021 WL 1169029, at *1.
85 12 Del. Code § 3801(i).
86 “If the language of the statute expresses [the legislature’s]
intent with sufficient precision, the inquiry ends there and the
statute is enforced according to its terms.” Gregg, 226 F.3d at
257 (“If the language of the statute expresses [the legislature’s]
intent with sufficient precision, the inquiry ends there and the
statute is enforced according to its terms.”).
87 12 U.S.C. § 5481(5).

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defining this phrase,88 the statute directs us to the definition of
“financial product or service.”89 Under § 5481(15), a financial
product or service may include “extending credit and servicing
loans.”90 The Trusts themselves state in their opening brief that
they “were formed to acquire a pool of private student loans,
to issue securitized notes on those loans, and to provide for the
servicing of the loans and the distribution to noteholders of the
loan payments made by borrowers.”91 Thus, they
unambiguously fall within the statute.92
We then turn to the primary statutory question: whether
the Trusts “engage.” If they do “engage,” they are covered
persons under the CFPA; if they do not, they do not fall within
the purview of the CFPA. The District Court found “room for
reasonable disagreement” in the definition of “engage.”93 For
this reason, we will look to other interpretative measures to
88 See supra notes 80–81 and accompanying text.
89 12 U.S.C. § 5481(5).
90 Id. § 5481(15)(A)(i). Thus, the terms of § 5481(15) are
included in § 5481(5).
91 NCMSLT Br. at 10 (emphasis added) (citing JA107, which
is part of the trust agreement).
92 This point does not seem to be disputed by the parties. See
Amici Br. Securities Ind. & Fin. Mkts. Assoc. at 15 (stating
that the Trusts “do not, and cannot, ‘engage in’ offering or
providing consumer financial products or services such as the
debt collection services at issue here” (emphasis added)); see
also JA13–14 (“True, third parties, not the Trusts, collected the
debt and serviced the loans. But the loan servicing and debt
collection were crucial to the Trusts’ business and could not
have happened without their say-so.”).
93 JA14.

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define this term. To do so, we will review how this definition
has been applied in earlier cases.94
In Southwest Airlines Co. v. Saxon, the Supreme Court
had to determine whether a “class of workers engaged in
foreign or interstate commerce.”95 Southwest Airlines
attempted to enforce an arbitration agreement against Saxon
under the Federal Arbitration Act (FAA).96 In response,
94 Unfortunately, Dodd-Frank’s legislative history does not
adequately define “engage.” Thus, we cannot glean much by
examining CFPA’s history. Something we can glean, though,
is that when Dodd-Frank was before Congress, its purpose was
broad: “This is a time to bring certainty back into the market
and reasonable regulation and reasonable enforcement back to
the financial system.” 156 Cong. Rec. H5223-02, 156 Cong.
Rec. H5223-02, H5231. But Congress addressed the concern
that the Act was too broad: “One of the initial concerns we
heard was that companies who do not engage in consumer
financial business would be regulated by [Dodd-Frank]. We
fixed that. Merchants, retailers, doctors, realtors, and others—
some suggested the butcher, the baker, the candlestick
maker—let’s be clear, they’re exempt from [Dodd-Frank] as
was intended and as they should be.” 155 Cong. Rec. H14762-
01, 155 Cong. Rec. H14762-01, H14773. So when Congress
walked back Dodd-Frank’s broad grant of enforcement
authority, it retained the notion that Dodd-Frank applies to
those taking part in the financial system and consumer
financial business. As such, it is clear that Congress intended
the Dodd-Frank to apply to the consumer financial industry.
95 Sw. Airlines Co. v. Saxon, 596 U.S. 450, 457 (2022)
(emphasis added) (internal quotations omitted).
96 See Id.

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“Saxon [argued] that the [FAA] did not apply because she was
a member of a ‘class of workers engaged in foreign or interstate
commerce,’ and therefore exempted by § 1 of the [FAA].”97 To
determine whether this exemption applied, the Supreme Court
had to define “engage.”98
The Court, “begin[ning] with the text,” stated that the
word “‘engaged’ . . . mean[s] ‘occupied,’ ‘employed,’ or
‘involved’ in [something].”99 In applying this definition, the
Court held that Southwest Airlines interpreted the statute too
narrowly, and that Saxon, as a ramp supervisor for the airline,
was part of a “‘class of workers engaged in foreign or interstate
commerce’ to which [the statutory] exemption applies.”100
This interpretation is consistent with colloquial and
legal dictionaries that define “engage.” Merriam-Webster’s
Dictionary contemporarily defines engage as “to begin and
carry on an enterprise or activity” and “to do or take part in
something.”101 Black’s Law Dictionary defines engage as: “To
employ or involve one’s self; to take part in; to embark on.”102
This definition has remained remarkably consistent over time,
97 Saxon v. Sw. Airlines Co., 993 F.3d 492, 495 (7th Cir. 2022).
98 Saxon, 596 U.S. at 463.
99 Id. (citing Webster’s New International Dictionary 725
(1922) and Black’s Law Dictionary 661 (3d ed. 1933)
(defining “engage”)).
100 Id.
101 Engage, Merriam-Webster’s Dictionary.
102 Engage, Black’s Law Dictionary (11th ed. 2019). This
definition is also consistent with the one used by the District
Court. See CFPB II, 575 F. Supp. 3d at 509.

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and is the same definition referred to by the Supreme Court in
Saxon.103
Using this definition, we can now determine whether
the Trusts “engage” in consumer financial products or services.
If the Trusts meet any of the aforementioned definitions, they
can be said to “engage.” For example, if they “embark on” or
“take part in” collecting debt or servicing loans, they can be
said to engage in those consumer financial products or
services.104 And if they engage, they will come under the
purview of the CFPA.
The Trust Agreement that each Trust entered into
states the following:
The purpose of the Trust is to engage in the
following activities and only these activities: (i)
To acquire a pool of Student Loans, to execute
the Indenture and to issue the Notes; (ii) To enter
into the Trust Related Agreements and to provide
to the administration of the Trusts and servicing
of the Student Loans; (iii) To engage in those
activities and to enter into such agreements that
are necessary, suitable or convenient to
accomplish the foregoing or are incidental
thereto or connected therewith; and (iv) To
engage in other such activities as may be
103 Compare Engage, Black’s Law Dictionary (3d ed. 1933)
with Engage, Black’s Law Dictionary (11th ed. 2019).
104 The District Court found “debt collection and loan servicing
[to be] core aspects of the Trusts’ business model.” CFPB II,
575 F. Supp. 3d at 509.

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29
required in connection with conservation of the
Trust Property and Distributions to Owners.105
Thus, the Agreement itself states that the Trusts “engage” in
these activities, which include consumer financial products or
services. Nonetheless, because the parties dispute the
definition of engage, we will apply it to each purpose
mentioned in the Trust Agreement.
First, in “acquir[ing] a pool of Student Loans,”106 the
Trusts “beg[an] . . . an enterprise or activity,”107 with that
enterprise108 “involv[ing]”109 financial products or services.
As the Trusts themselves state in their brief, “the defendants
are 15 statutory trusts formed to purchase, pool, and securitize
student-loan debt.”110 Moreover, it seems unlikely that one can
acquire111 something without “involv[ing] one’s self.”112
Second, the Trusts “carr[ied] on [their] enterprise”
through Administration Agreements.113 These Agreements
“make clear the Administrator will ‘perform’ the ‘duties of the
105 JA107 (emphasis added).
106 Id.
107 See supra note 101.
108 See Enterprise, Black’s Law Dictionary (11th ed. 2019)
(“An organization or venture, esp[ecially] for business
purposes.”).
109 Engage, Black’s Law Dictionary (11th ed. 2019).
110 NCMSLT Br. at 1.
111 See Acquire, Black’s Law Dictionary (11th ed. 2019) (“To
gain possession or control of; to get or obtain.”).
112 NCMSLT Br. at 1.
113 See supra note 101.

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30
[Trusts].’”114 More particularly, “[t]he Administrator shall
prepare for execution . . . , or shall cause the preparation . . . of,
all such documents, reports, filings, instruments, certificates
and opinions . . . of the [Trusts] . . . pursuant to the Trust
Related Agreements.”115 In this vein, “the Administrator need
not await instructions before pursuing ordinary course lawsuits
initiated ‘by the [Trust] or its agents . . . for the collection of
the Student Loans owned by the [Trust].’”116 Therefore,
through the Administration Agreements, the Trusts
“involv[ed]”117 themselves in consumer financial products or
services.
Third, the Trusts “carr[ied] on [their] enterprise”118 by
further “involv[ing]”119 themselves in agreements for the
servicing of loans.120 Another such set of agreements were
Servicing Agreements, which were entered into by the
114 In re NCLST, 251 A.3d at 140 (alteration in original)
(quoting JA150). While the Trusts purport that the
Administrator is separate from the Trusts, see NCMSLT Br. at
11 (arguing that “the Administrator is ‘not . . . subject to the
supervision of the [Trusts] or the Owner Trustee with respect
to the manner in which it accomplishes the performance of its
obligations’”), we need not address this claim. It is a bridge
too far. All we need to determine is whether the Trusts
engaged in such agreements.
115 JA149.
116 In re NCLST, 251 A.3d at 140–41 (alteration in original)
(quoting JA151).
117 Engage, Black’s Law Dictionary (11th ed. 2019).
118 See supra note 101.
119 Engage, Black’s Law Dictionary (11th ed. 2019).
120 See supra note 101.

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Administrator.121 Servicing Agreements were a necessary part
of their business.122 Again, as the Trusts mention in their brief,
“[t]hey have no employees and no directors.”123 So, in order
to fulfill their obligation of “servicing . . . student loans”124 they
had to enter into agreements with “third parties [to] collect[]
the debt and service[] the loans,” which “could not have
happened without [the Trusts’] say-so.”125 Indeed, without
these agreements, the Trusts could not have “embark[ed]
on”126 the servicing of student loans.
Finally, the Trust Agreement states that the Trusts are to
“engage in other activities” that may be “required in
connection or conservation of Trust Property . . . .”127 Trust
Property, according to the Trust Agreement, is defined as “all
right, title and interest of the Trust or the Owner Trustee on
behalf of the Trust in and to any property contributed to the
Trust.”128 And “the Trusts retained legal title to the Collateral
[i.e., the Student Loans] so that they could collect Student
Loans for distribution . . . .”129 When suits are brought against
borrowers for the Trusts to collect on student loans, third
parties are acting for the benefit of the Trusts.130 As such, the
121 In re NCLST, 251 A.3d at 131.
122 JA14.
123 NCMSLT Br. at 1.
124 See supra note 105.
125 JA13.
126 Engage, Black’s Law Dictionary (11th ed. 2019).
127 See supra note 105.
128 JA105.
129 In Re NCSLT, 251 A.3d at 194.
130 See supra note 15 and accompanying text.

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Trusts cannot claim that they did not “take part in” collecting
debts.131
The Trust Agreement’s purpose indicates that the Trusts
engage in both student loan servicing and debt collection. As
such, the Trusts fall within the purview of the CFPA because
they “engage” in a known “consumer financial product or
service” and are necessarily subject to the CFPB’s enforcement
authority.132
B. Constitutional Question
We now turn to the constitutional question that was
certified: Ratification of agency action. The Trusts argue that
the underlying suit needed to be ratified by the Director of the
CFPB because it was initiated while the agency head was
improperly insulated; and since that ratification came after the
statute of limitations had run, the suit was untimely.133
Moreover, they claim that action undertaken while an agency
head is impermissibly insulated creates a “here-and-now
injury.”134 The CFPB responds by arguing that ratification was
not necessary in the wake of Collins because the agency head
was properly appointed and the statute did not cause harm to
the Trusts.135
To properly evaluate these arguments, we must briefly
revisit our discussion of Collins. As the District Court found,
131 See supra notes 15, 91, 104, and accompanying text.
132 12 U.S.C. § 5584(a).
133 NCMSLT Br. at 49–53.
134 NCMSLT Br. at 21.
135 CFPB Br. at 34–54.

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“[t]he [Collins] Court explained that actions taken by an
improperly insulated director are not ‘void’ and do not need to
be ‘ratified’ unless a plaintiff can show that the removal
provision harmed him.”136 The parties do not dispute whether
the CFPB Director was properly appointed.137 Thus, the heart
of the issue is whether the insulation provision, 12 U.S.C. §
5491(c), caused harm.138 This is not an issue of first
impression. We begin by evaluating the approaches our sister
circuits have taken in interpreting Collins.
The Second Circuit Court of Appeals in CFPB v. Law
Offices of Crystal Moroney, P.C.,139 addressed whether a civil
investigative demand (CID), often the first step in an
enforcement suit by the CFPB “was void ab initio because,
when the CID was issued, the CFPB Director was shielded by
an unconstitutional removal provision.”140 The court held that
“[t]his argument is foreclosed by the Supreme Court’s decision
in Collins.”141 It interpreted the Court in Collins as “h[olding]
that the relevant inquiry for determining whether an officer
‘lacked constitutional authority and that [her] actions were
136 JA16 (citing Collins, 141 S. Ct. at 1787–88).
137 JA15. However, the Trusts do argue that the harm from
impermissible insulation is “indistinguishable” from harm of
improper appointment.
138 Cf. Kaufmann v. Kijakazi, 32 F.4th 843, 849–50 (9th Cir.
2022) (holding that, when an agency head is impermissibly
insulated, the matter is to be decided based on whether the
statute itself caused harm).
139 63 F.4th 174 (2d Cir. 2023). A Petition for Writ of
Certiorari has been docketed.
140 Id. at 179.
141 Id.

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therefore void ab initio’ is whether the officer in question [was]
properly appointed,’ not whether she was properly
removable.”142 Like our interpretation of Collins today, the
circuit court also noted that a party could, nevertheless, “be
entitled to relief if it could show that ‘an unconstitutional
provision . . . inflict[ed] compensable harm’ on the
petitioner.”143 In determining the nature of that harm, the
circuit court relied on Justice Kagan’s concurrence to
determine that “[r]equiring but-for causation in these cases
properly matches the constitutional injury to the requested
remedy.”144 The circuit court found this interpretation to be
consistent with its own and with Supreme Court precedents.145
The Ninth Circuit Court of Appeals in Kaufmann v.
Kijakazi,146 further defined the requisite harm. There, the
circuit court was faced with deciding whether an
impermissibly insulated agency head violated the separation of
powers, and if so, whether the agency action was necessarily
void.147 At the outset, the court noted that, “[f]or the purpose
of the constitutional analysis, the Commissioner of Social
Security is indistinguishable from the Director of the FHFA
discussed in Collins and the Director of the CFPB discussed in
142 Id. (alterations in original) (quoting Collins, 141 S. Ct. at
1787). Again, we agree that the CFPB’s Director was properly
appointed. See JA15 (stating that “the Bureau’s director was
properly appointed”).
143 Id. (quoting Collins, 141 S. Ct. at 1789).
144 Id. at 180.
145 Id.
146 32 F.4th 843 (9th Cir. 2022).
147 Kaufmann, 32 F.4th at 846.

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35
Seila Law.”148 Much like Seila Law, the circuit court also
found “the removal provision . . . severable from the remainder
of the statute,” and that the remainder of the statute was capable
of functioning independently of the impermissible
provision.149 Still, the circuit court also noted that “[a] party
challenging an agency’s past actions must . . . show how the
unconstitutional removal provision actually harmed the
party.”150 “[U]nless a claimant demonstrates actual harm, the
unconstitutional provision has no effect on the claimant’s case.
Because Claimant has not shown actual harm, we uphold the
Commissioner's decision.”151
Here, as discussed above, the Trusts claim that an
unconstitutional provision violating the separation of powers
caused them harm.152 But a mere allegation that the
unconstitutional provision inherently caused them harm is
insufficient. There must be something more.153 For example,
if the CFPA suggested “any link whatsoever between the
removal provision and [c]laimant’s case,” then the Trusts may
be entitled to some type of relief.154
148 Id. at 849.
149 Id. (“[O]ne provision of a [statute] may be invalid by reason
of its not conforming to the Constitution, while all the other
provisions may be subject to no constitutional infirmity.”)
(quoting Seila Law, 140 S. Ct. at 2208)) (alteration in original).
150 Id.
151 Id. at 850 (emphasis added).
152 That harm is the purported “here-and-now” injury. See
supra note 134 and accompanying text; infra note 159 and
accompanying text.
153 Id. at 849–50.
154 Id. at 850.

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We cannot find such a link. The statute, in relevant part,
states: “The Director shall serve for a term of 5 years”; “An
individual may serve as Director after the expiration of the term
for which appointed, until a successor has been appointed and
qualified”; and “The President may remove the Director for
inefficiency, neglect of duty, or malfeasance in office.”155
There is no notion in this statute that the CFPB would have
taken this action but for the President’s inability to remove the
Director.156 On the contrary, as the District Court noted, there
“is strong evidence that this suit would have been brought
regardless” of a president’s authority to remove because the
CFPB’s litigation strategy has been consistent across five
directors, four of whom were removable at will.157
While the Trusts argue that the unconstitutional
provision, in and of itself, created a here-and-now injury,158
their analysis of the injury does not go far enough. They argue
that harm from an unconstitutional statutory restriction on
removal authority is “indistinguishable” from the “harm
suffered under the authority of executive officers who were not
properly appointed in the first instance.”159 This
presupposition of harm, as discussed above, is foreclosed by
155 12 U.S.C. § 5491.
156 See Kaufmann, 32 F.4th at 850.
157 See CFPB II, 575 F. Supp. 3d at 508; supra notes 61–62 and
accompanying text.
158 NCMSLT Br. at 21 (“An enforcement action initiated by an
unconstitutionally structured agency inflicts a ‘here-and-now’
injury, that demands a remedy tailored ‘to the injury suffered.’”
(quoting United States v. Morrison, 449 U.S. 361, 364 (1981)))
(cleaned up).
159 NCMSLT Br. at 62.

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Collins and its progeny because there must be an actual,
compensable harm in order for there to be an injury from an
impermissible insulation provision.160 Again, the circuit court
in Kaufmann held that an impermissible insulation provision
does not, on its own, cause harm, and “unless a claimant
demonstrates actual harm, the unconstitutional provision has
no effect on the claimant’s case.”161
Additionally, the Trusts’ interpretation of their
purported injury seems to be in discord with other precedential
examples of “here-and-now” injuries. For example, the
Supreme Court has noted that “subjection to an illegitimate
proceeding, led by an illegitimate decisionmaker” is a
manifestation of a “here-and-now” injury.162 There is no
support in the record for the notion that instant proceeding was
similarly illegitimate because, like Kaufmann, there is no
indication that this suit would have been undertaken but-for a
president’s authority to remove the CFPB’s Director, or that the
CFPB was able to target the Trusts via the unconstitutional
provision.163 In another example, in Sherley v. Sebelius, the
D.C. Circuit Court of Appeals found there to be a “here-and-
now injury” when doctors would have to invest additional time
and resources because of a loss, or different allocation, of
funding.164 In both of these examples, there was a
compensable and identifiable harm. Here, there is no such
thing.
160 Kaufmann, 32 F.4th at 850.
161 See id. (emphasis added).
162 Axon Enter., Inc. v. Fed. Trade Comm’n, 143 S. Ct. 890,
903 (2023).
163 See CFPB II, 575 F. Supp. 3d at 508.
164 610 F.3d 69, 74 (D.C. Cir. 2010).

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The Trusts argue, contrary to these precedents, that
Collins did not actually change the legal landscape, and that
the matter before us still needed to be ratified by a properly
appointed director after the constitutional defect was cured via
severing pursuant to 12 U.S.C. § 5491(c).165 This notion is
directly counter to the Supreme Court’s holding in Collins. It
is also counter to guidance provided by our sister courts. For
example, the Tenth Circuit Court of Appeals in Integrity
Advance, LLC v. CFPB held that “Collins put to rest” the
argument that ratification was necessary for actions taken
while the agency was unconstitutionally structured.166 And the
Ninth Circuit Court of Appeals had nearly the same
interpretation of a post-Collins world: “We find it unnecessary
to consider ratification because [Collins] has made clear that
despite the unconstitutional limitation on the President’s
authority to remove the Bureau’s Director, the Director’s
actions were valid when they were taken.”167
We see no need to remand the ratification issue. As our
sister courts have noted, “[w]hile Collins remanded for further
factual development on the issue of harm, we need not do so
here, as the record is clear.”168 The record is also clear here:
There is no indication that the unconstitutional limitation on
the President’s authority harmed the Trusts.
165 NCMSLT Br. at 53–67.
166 48 F.4th 1161, 1170 (10th Cir. 2022), cert. denied, No. 22-
838, 2023 WL 3937614 (June 12, 2023).
167 CFPB v. CashCall, Inc., 35 F.4th 734, 742 (9th Cir. 2022).
168 Decker Coal Co. v. Pehringer, 8 F.4th 1123, 1137 (9th Cir.
2021) (citation omitted).

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CONCLUSION
For the above reasons, we will respond to the District
Court’s queries by holding that (1) the Trusts are covered
persons subject to the CFPA’s enforcement authority because
they “engage” in the requisite activities and (2) the CFPB did
not need to ratify this action before the statute of limitations
had run.

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