On January 13, the DC Circuit entered an order granting PHH’s motion for leave to file a supplemental response to the CFPB’s petition for rehearing en banc.
On November 18, 2016, the CFPB filed its petition for rehearing en banc. PHH and the United States filed their respective responses on December 22. In addition to filing its response, PHH also filed a motion for leave to file a supplemental response seeking an opportunity to be heard on “the United States’ newly expressed views” and to “address fully the Government’s 30 total pages of internally inconsistent arguments supporting rehearing en banc.”
On December 28, the CFPB filed its opposition to PHH’s motion for leave, asserting that if PHH “wants an opportunity to present additional arguments to this Court, they may do so if this Court grants rehearing en banc and seeks additional briefing.” On December 29, PHH filed a reply arguing that the CFPB’s opposition “rests on a single sentence of reasoning, which is completely nonresponsive to PHH’s basis for seeking a supplemental response.”
The DC Circuit’s order states that PHH’s supplemental response is due on or before January 27, 2017. The order also states that PHH’s supplemental response must not exceed 15 pages.
Also of note is the order’s indication that “Chief Judge Garland did not participate in this matter.” Chief Judge Garland recused himself from deciding cases while his US Supreme Court nomination was pending. His nomination formally expired on January 3, 2017, when the 114th Congress was adjourned. It remains to be seen whether Chief Judge Garland will participate in the case if the court grants the Bureau’s petition for rehearing en banc. There are currently 11 active judges on the DC Circuit. Seven of those judges, including Chief Judge Garland, were appointed by either President Obama or President Clinton.