Last Friday, the D.C. 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 December 22, PHH and the United States filed responses to the CFPB’s petition with the D.C. Circuit.

In its motion for leave to file a supplemental response, PHH asserted that, in its response, the United States argued that the D.C. Circuit should grant the CFPB’s petition for en banc rehearing on several grounds that were not pressed in the CFPB’s petition and that PHH was therefore seeking an opportunity to be heard on the views expressed by the United States.  PHH’s motion was opposed by the CFPB.

The D.C. Circuit’s per curiam order gives PHH until January 27, 2017 to file its supplemental response, thereby effectively ending speculation that the court might rule on the petition for rehearing en banc before January 20.  The order limits PHH’s response to no more than 15 pages.   

The order also indicates that “Chief Judge Garland did not participate in this matter.”  We understand that Chief Judge Garland recused himself from deciding cases while his U.S. Supreme Court nomination was pending.  However, since his nomination formally expired on January 3, 2017, when the 114th Congress was adjourned, we find it puzzling that he did not participate in the decision to grant PHH’s motion.  As we previously reported, D.C. Circuit rules provide that a majority of the circuit judges who are in regular active service and who are not disqualified may order that an appeal be reheard by the court en banc.  There are currently 11 active judges, of whom 7, including Chief Judge Garland, were appointed by either President Obama or President Clinton.