The D.C. Circuit has entered an order granting the unopposed motion of the United States for leave to file an amicus brief in PHH by March 17, 2017.  As we previously observed, the motion appears to signal the DOJ’s intention to support PHH rather than the CFPB.

In a second order, the D.C. Circuit denied various motions to intervene or for reconsideration of motions to intervene as follows:

  • The motion of the plaintiffs in State National Bank of Big Spring, Texas, et al. v. Lew, another case challenging the CFPB’s constitutionality, to intervene in the en banc rehearing was denied.  In their motion to intervene, the plaintiffs had argued that if the D.C. Circuit granted the CFPB’s petition for rehearing en banc but decided the case on RESPA grounds, their constitutional claims would be left unresolved, and the district court would be left without binding guidance on the constitutional question.
  • The petition for rehearing en banc filed by Democratic AGs from 16 states and the District of Columbia was denied as were the motions for reconsideration en banc filed by Senator Sherrod Brown and Representative Maxine Waters and by Americans for Financial Reform, Center for Responsible Lending, Leadership Conference on Civil and Human Rights, United States Public Interest Research Group, Maeve Brown (who chairs the CFPB’s Consumer Advisory Board), and Self-Help Credit Union.  The motions to intervene were based in substantial part on the argument that because the movants can no longer rely on the CFPB and/or the DOJ under the Trump Administration to adequately defend the CFPB’s constitutionality and have a legal interest in the CFPB remaining an independent agency, intervention is necessary to protect the movants’ legal interests, including by filing a petition for a writ of certiorari.

It is noteworthy that Senior Judge Randolph, is named on both orders, thus confirming that he intends to participate in the rehearing en banc.  (Senior Judge Randolph can elect to sit on the en banc court because he was a member of the original panel.)  As a result, because Chief Judge Garland will not be participating, the en banc court will consist of eleven judges: ten active judges, six of whom were appointed by either President Obama or President Clinton, and Senior Judge Randolph who was appointed by President George H.W. Bush.