Last Friday, the DOJ filed an “unopposed motion” with the DC Circuit asking for permission to file an amicus brief by March 17, 2017 in the landmark legal battle between PHH and the CFPB. According to the DOJ’s motion, both PHH and the CFPB have consented to the motion.
In February, the DC Circuit granted the CFPB’s petition for rehearing en banc and set the briefing schedule; PHH must file its opening brief by March 10 and the CFPB must file its response by March 31. Similarly, amicus briefs supporting PHH must be filed by March 10 and amicus briefs supporting the CFPB are due by March 31.
In support of the motion for a one-week extension to file its amicus brief, the DOJ argued that “the views of the United States on matters involving the President’s removal power are not always entirely congruent with the views of independent agencies.” The DOJ further contended that it needs an extra week in order to “engage in necessary consultation within the government.”
By requesting the court’s permission to file its amicus brief by March 17, the DOJ appears to be signaling its intent to oppose the CFPB. This request by the Trump administration is not surprising given the President’s disdain for the Obama-era financial regulations, including the Dodd-Frank Act which established the CFPB.
In December 2016, the DOJ filed a response to the CFPB’s petition for rehearing expressing the views of the United States. In its response, the DOJ presented arguments supporting the CFPB’s petition for rehearing and argued that the panel’s ruling “departs from the approach the Supreme Court has applied in resolving such separation-of-powers questions.
In light of the DOJ’s latest filing, we anticipate that the DOJ will switch sides and support PHH’s position that the Bureau’s single-director-removable-only-for-cause leadership structure is unconstitutional.
PHH’s opening brief is due this Friday. We expect the court to grant the DOJ’s motion for leave to file its amicus brief next Friday. The CFPB’s opening brief is due March 31 and oral argument will be heard on May 24, 2017.