This past Monday, the Democratic Attorneys General of 16 states and the District of Columbia filed a motion with the D.C. Circuit seeking to intervene in the PHH appeal. Today, two more motions to intervene were filed. One motion was filed by Democratic lawmakers Senator Sherrod Brown and Representative Maxine Waters who are, respectively, the Ranking Members of the Senate Banking Committee and the House Financial Services Committee. The other motion was filed by Maeve Brown (who chairs the CFPB’s Consumer Advisory Board), Americans for Financial Reform, Center for Responsible Lending, Leadership Conference on Civil and Human Rights, Self-Help Credit Union, and United States Public Interest Research Group.
Like the Democratic AGs, in claiming that they are entitled to intervene as of right, the new movants rely primarily on the argument that they cannot rely on the CFPB under the Trump Administration to adequately represent their interest in defending the CFPB’s status as an independent agency. As grounds for why they have a legally protected interest which would be impaired by the litigation, Senator Brown and Representative Waters point to their votes for the Dodd-Frank Act and claim that if the CFPB, acting at the new Administration’s direction, does not defend its constitutionality, “movants’ votes to establish the Bureau as an independent agency will be nullified without full judicial review of the constitutional question presented in this case.” The consumer advocacy groups rely on their roles as advocates for various consumer interests for their claim that they have a legally protected interest while the credit union movant and Ms. Brown rely on, respectively, the impact of CFPB regulations and enforcement on its members and the need for a CFPB “Director [who] is independent and responsive to the [Consumer Advisory] Board’s recommendations and analysis.” (The motion states that the credit union has $650 million in assets, which is less than the $10 billion threshold for CFPB supervision.) According to the advocacy groups, the credit union, and Ms. Brown, the action threatens to impair their interests because of the potential for pending CFPB policy initiatives and enforcement to be derailed if the panel’s ruling stands.
Should the D.C. Circuit deny the petition for en banc rehearing or grant the petition and affirm the panel’s decision, the CFPB would be required under the Dodd-Frank Act to seek approval from the Department of Justice to file a petition with the U.S. Supreme Court for a writ of certiorari. It is widely assumed the new Attorney General or a new Solicitor General would not give such approval. In their motion to intervene, the Democratic state AGs, in arguing that their motion would not prejudice any party to the case, stated only that if their “participation is necessary to file a petition for certiorari, they would do so under the normal timing and procedural restraints applicable to such a petition, giving the other parties in this case every ordinary opportunity to be heard in response.”
The new motions go further by explicitly raising the possibility that the new Administration’s Department of Justice may refuse to allow the CFPB to file a petition for certiorari. In addition, Senator Brown and Ms. Waters state that if en banc review is denied, “movants will file a petition for certiorari with the Supreme Court” while the consumer advocacy groups and other movants state that their intervention is necessary “to ensure that this Court and, if necessary, the Supreme Court of the United States have the ability to reach the merits of this critically important issue.”