NFIB Files Amicus Briefs in Three Important Small Business Court Cases

CFPB v. Community Financial Services

NFIB joined an amicus brief in the case Consumer Financial Protection Bureau v. Community Financial Services Association of America, Limited at the U.S. Supreme Court. The case concerns whether the Consumer Financial Protection Bureau (CFPB)’s funding structure violates the appropriations clause in Article 1, Section 9 of the Constitution.

“The CFPB has a direct impact on small businesses as it has wide enforcement power and authority over those who engage in specified consumer financial activities in the economy,” said Elizabeth Milito, Executive Director of NFIB’s Small Business Legal Center. “Currently, the CFPB is funded without Congressional oversight through the appropriations process, which is unconstitutional and leads to the Bureau overstepping its bounds. Small businesses are at risk of costly penalties and burdensome inspections. We ask the Court to provide limited and meaningful relief and affirm the lower court’s ruling.”

NFIB joined a business coalition, led by the U.S. Chamber of Commerce, in filing the brief. The brief argues three main points:

1. The Bureau’s funding mechanism violates the Constitution.
2. A decision affirming the judgment will provide targeted and meaningful relief for those subject to the CFPB.
3. The Court can mitigate disruptions in the marketplace by crafting a narrow remedy.

Culley v. Steven Marshall, Attorney General of Alabama

NFIB filed an amicus brief in the case Culley v. Steven Marshall, Attorney General of Alabama at the U.S. Supreme Court. The case concerns civil asset forfeitures and whether the due process clause requires a post-seizure probable cause hearing.

“Small business owners who rent, sell, and conduct cash transactions are particularly vulnerable to seizures like the one highlighted in this case,” said Milito. “Without a hearing, small business owners are forced to go through a lengthy and costly forfeiture process, where they may not recover their property for years. NFIB urges the Court to reverse the Eleventh Circuit’s ruling and establish that innocent small business owners are entitled to a prompt post-deprivation hearing.”

NFIB’s brief describes how small businesses are targeted and injured in the absence of clear constitutional guardrails around civil asset forfeiture. The brief highlights three distinct harms to small businesses:

1. Civil asset forfeiture subjects people who drive vehicles, many of them small business owners, to roadside seizures.
2. The financial burden for the public’s illegal conduct is often passed onto businesses through civil asset forfeiture.
3. Civil asset forfeiture punishes business owners for the conduct of employees, even when the employee acts outside of the scope of employment.

Nebraska v. Walsh

NFIB filed an amicus brief in the case State of Nebraska, et al. v. Martin Walsh at the U.S. Court of Appeals for the Ninth Circuit. The case questions whether the Department of Labor’s (DOL) rule on increasing the minimum wage for federal contractors goes beyond the authority delegated by Congress in the Federal Property and Administrative Services Act. NFIB argues against a federal minimum wage increase as it would have harmful financial consequences on small businesses.

“Small businesses don’t benefit from most federal mandates, such as the federal minimum wage increase for contractors highlighted in this case,” said Milito. “If enacted, the rule will have financial burdens and cause job losses for small government contractors, small subcontractors, and small entities seeking to gain government contracts. Congress did not approve this minimum wage increase, nor did it grant DOL authority to increase the minimum wage for federal contractors. We ask the Court to enjoin the rule.”

NFIB’s brief argues two main points:

1. The Procurement Act is a limited Congressional delegation of legislative authority.
2. The court must subject the rule to meaningful judicial review.

NFIB filed the amicus brief with the Pacific Legal Foundation.

The NFIB Small Business Legal Center protects the rights of small business owners in the nation’s courts. NFIB is currently active in more than 40 cases in federal and state courts across the country and in the U.S. Supreme Court.