This article previously appeared on the CFPB Monitor, a Ballard Spahr publication, and is republished here with the permission of the author.
The United States, at the Solicitor General’s request, has filed an “unopposed motion” with the D.C. Circuit for leave to file an amicus brief in PHH by March 17, 2017. The motion states that both PHH and the CFPB have consented to the motion.
The D.C. Circuit’s order granting the CFPB’s petition for rehearing en banc requires amicus briefs supporting PHH to be filed by March 10 and amicus briefs supporting the CFPB to be filed by March 31. (PHH must file its opening brief by March 10 and the CFPB must respond by March 31.) In asking for leave to file its amicus brief by March 17, the United States appears to be signaling that its brief will support PHH rather than the CFPB.
In December 2016, at the D.C. Circuit’s invitation, the United States filed a response to the CFPB’s petition for rehearing en banc expressing the views of the United States. The response, which supported the CFPB’s motion, did not address the D.C. Circuit’s RESPA rulings and instead addressed only the panel’s constitutional separation-of-powers holding. The United States argued that the panel’s holding was based on an incorrect application of U.S. Supreme Court precedent.
Since the Department of Justice is now headed by Republican Attorney General Jeff Sessions, the amicus brief to be filed by the United States can be expected to support PHH’s position that the CFPB’s single-director-removable-only-for-cause structure is unconstitutional. Should the United States also address PHH’s RESPA arguments in its amicus brief, it is also likely to support PHH’s position that the CFPB’s RESPA interpretation was incorrect.
Indeed, in addition to requesting a March 17 date for filing its amicus brief, the following statements made by the United States in its unopposed motion also appear to signal its intention to support PHH: “As this Court recognized in calling for the views of the United States on the question whether rehearing should be granted, the views of the United States on matters involving the President’s removal power are not always congruent with the views of independent agencies. An earlier filing date would make it exceedingly difficult to engage in the necessary consultation with the government. A March 17 filing by the United States would provide the Bureau adequate time to address, in the Bureau’s own filing on March 31, points made in the Department of Justice’s filing.”
Editor’s Note: This article is the latest in a series of well written articles by Ms. Mishkin on the PHH case. For the complete discussion see prior articles published on the dates noted: