On February 10, 2017, Democratic state attorneys general from 16 states and the District of Columbia filed a petition for rehearing en banc regarding the denial of their motion to intervene in PHH v. CFPB by a DC Circuit three-judge panel.
The State AGs argue that their intervention in the PHH case is urgent in order to “protect the interest of their States and their States’ citizens in an independent CFPB.”
As we have noted previously, the CFPB’s ability to overturn the DC Circuit panel’s October ruling that the Bureau’s structure is unconstitutional may come down to whether the Trump Administration allows the CFPB to escalate the case to the Supreme Court. Under the Dodd-Frank Act, the CFPB must obtain written consent from the US Attorney General to pursue litigation with the Supreme Court. Given the Trump Administration’s apparent disdain for the CFPB, it is conceivable that the DOJ would not allow the case to reach the Supreme Court.
The State AGs argue that they should be permitted to intervene because the CFPB and DOJ under the Trump Administration may not be able to adequately defend the agency’s constitutionality in the matter.
Democratic lawmakers and consumer advocacy groups also filed their own motions for reconsideration en banc. Senator Sherrod Brown and Representative Maxine Waters filed a motion for en banc reconsideration. The other motion was filed by Americans for Financial Reform, Maeve Brown, the Center for Responsible Lending, the Leadership Conference on Civil and Human Rights, and the US Public Interest Research Group.
The consumer advocacy groups attached their original motion to intervene and incorporated the arguments for intervention by reference and added “one request” – “that the motion be held in abeyance and ruled upon either at the conclusion of the appeal, or when it becomes apparent that the CFPB is changing its position (whichever comes first).” In other words, the consumer advocacy groups are asking the DC Circuit to withhold their ruling on the motion for now, but to consider the motion in the event that the US Attorney General begins representing the CFPB in the case.
Unlike the consumer advocacy groups who attached their original motions to intervene, the State AGs and Democratic lawmakers essentially repeated the arguments from their respective motions to intervene, in their newly filed motions. Senator Brown and Representative Waters did, however, ask that the court to hold the motion “in abeyance pending further developments” in the alternative to granting their motion.
Under the Federal Rules of Appellate procedure, no response to a petition for an en banc consideration may be filed without an order from the court.