On January 12, 2018, the U.S. Supreme Court agreed to hear the Lucia case in which Raymond J. Lucia is challenging how the SEC appoints administrative law judges (“ALJs”). He argues that ALJs are “inferior officers” who must be appointed by the President, the courts, or a department head in accordance with the Constitution’s appointments clause. Lucia filed a petition for certiorari with the Supreme Court after the D.C. Circuit rejected his argument. A circuit split was created when the 10th Circuit reached the opposite conclusion in another case making a similar appointments clause challenge. The Supreme Court’s decision in Lucia may impact numerous past and pending ALJ decisions, including cases involving the CFPB, most notably the PHH case. We’ve discussed the potential impact of Lucia and the related 10th Circuit case before and will continue to follow them closely.
On July 21, 2017, an investment adviser sought review by the Supreme Court of the D.C. Circuit’s recent ruling in Lucia that allowed to stand a district court decision holding that SEC administrative law judges (“ALJs”) are not officers subject to the appointments clause of the U.S. Constitution. We’ve blogged about Lucia extensively because the issue in that case has the potential to impact the outcome of the PHH case.
The initial PHH decision was decided by an SEC ALJ who was on loan to the CFPB. If the Supreme Court decides to hear Lucia and decides that SEC ALJs are subject to the appointments clause, then the initial ALJ decision in PHH may be invalidated. If that happens, the D.C. Circuit could remand PHH back to the CFPB for decision by a properly-appointed ALJ. That would provide the D.C. Circuit with another basis to decide the PHH case without addressing the constitutionality of the CFPB’s structure. Given how the PHH oral arguments went, that seems unlikely, but we will continue to follow Lucia just in case.
On June 7, the CFPB submitted a Rule 28(j) letter to the D.C. Circuit in the PHH case. In the letter, the CFPB embraced the fact that the Supreme Court’s recent Kokesh v. SEC decision makes the five-year statute of limitations in 28 USC § 2462 applicable to disgorgement remedies in CFPB administrative proceedings. The CFPB asserted (incorrectly in our view) that Kokesh somehow obviated the applicability of RESPA’s three-year statute of limitations in the PHH case.
PHH forcefully responded to that argument in its reply letter. It started with the point that § 2462’s limitation period applies “except as otherwise provided” by Congress. Because RESPA “otherwise provides” a three-year statute of limitations, § 2462 is inapplicable. Next, it pointed out how unreasonable it is for the CFPB to assume that Congress would set one statute of limitations for judicial actions and another for administrative proceedings. That “would destroy the certainty that Section 2614 was intended to provide,” it argued. PHH also reminded the court of the CFPB Director’s holding in an earlier proceeding that no statute of limitations applies to administrative actions. It chided the CFPB for trying to back away from that position at the “eleventh-hour.”
PHH also pointed out that “at the same time the CFPB argued in this Court that Section 2462 governs disgorgement, the Acting Solicitor General argued in Kokesh that it does not. The CFPB’s freelancing merely underscores that the Director answers to no one but himself.”
Clients are always asking me and others in our Consumer Financial Services Group about how long Richard Cordray will remain as CFPB Director. The short answer is nobody knows, perhaps not even Richard Cordray. There are a number of factors, however, that lead me to believe that he will remain as Director until the end of his term on July 16, 2018 unless he voluntarily resigns before then to run for Governor of Ohio.
A Politico article yesterday reported that Gary Cohn, top White House economic aide, recently had a dinner meeting with Director Cordray at which he gave him an ultimatum: resign or be removed by President Trump. The article reported that Mr. Cohn had heard the rumors that Director Cordray wants to run for Ohio governor and, according to people familiar with the meeting, left the dinner thinking that the rumors were true. According to the article, the White House decided to hold off on firing Director Cordray because President Trump “didn’t want to cause a sensation that could boost his candidacy and juice his fundraising.”
While it is very hazardous to predict what President Trump will do, I doubt whether he will try to remove Director Cordray either for cause or without cause. As things now stand, the only event which could change my opinion would be if the Court of Appeals en banc in the PHH case were to reach the same conclusion as the 3-judge panel in the case – namely, that the CFPB was unconstitutionally structured and the appropriate remedy is to enable the President to remove the Director without cause – and the en banc judgment were to become final before Director Cordray’s term ends on July 16, 2018 (which is only 15 months away). In my view, the likelihood of those events happening before July 16, 2018 is remote.
The recent filing of a brief by the DOJ in the PHH case essentially urging the en banc court to adopt the opinion of the 3-judge panel suggests that President Trump will not jump the gun by attempting to remove Director Cordray before a final judgment in the PHH case authorizes him to do so. An attempt by the President to remove Director Cordray for cause would likely trigger a legal challenge by Director Cordray that would outlast the expiration of his term unless his removal were to coincide with a decision by him to voluntarily resign to run for Ohio Governor. Such a lawsuit would likely be stayed pending the outcome of the PHH case. If President Trump intended to pursue a removal for cause, I believe he would have done so by now. If he were to attempt now to remove Director Cordray for cause, that would also likely result in litigation that would outlast July 16, 2018 and, in the meantime, Director Cordray might remain in office.
Ultimately, I believe the length of Director Cordray’s remaining tenure at the CFPB will turn on whether he decides to run for Ohio Governor, and, if so, his view on when he needs to resign as Director to begin his campaign.
Even if Director Cordray remains at the CFPB for several months or longer, it does not necessarily mean that he will finalize any new regulations. While he should have sufficient time to finalize at least the arbitration regulation, he may be deterred from doing so because of his concern that the rule will be overridden by Congress and President Trump under the Congressional Review Act. Congress and President Trump have already overridden at least 13 final regulations issued by other federal agencies.
While Director Cordray may be deterred from finalizing any additional regulations, there is no reason to believe that there will be any let-up in his continuing pursuit of his enforcement and supervisory activities. Indeed, the CFPB has initiated 9 enforcement actions since President Trump’s inauguration.
PHH filed its reply brief with the D.C. Circuit on April 10 in the en banc rehearing of the PHH case. We have blogged extensively about the case since its inception. Central to the case is whether the CFPB’s single-director-removable-only-for-cause structure is constitutional. Of course, the CFPB fiercely defends its structure, while PHH, the DOJ, and others argue that the CFPB’s structure epitomizes Congressional usurpation of executive power in violation of the constitution’s separation of powers principles.
If the CFPB’s structure is constitutional then there is no reason why Congress can’t divest the President of all executive power, PHH argues. “[I]f Congress can divest the President of power to execute the consumer financial laws, then it may do so for the environmental laws, the criminal laws, or any other law affecting millions of Americans.” “The absence of any discernible limiting principle is a telling indication that the CFPB’s view of the separation of powers is wrong.”
Even if existing Supreme Court precedent authorizes Congress to assign some executive power to independent agencies, PHH argued that the CFPB’s structure goes too far. “No Supreme Court case condones the CFPB’s historically anomalous combination of power and lack of democratic accountability, and the Constitution forbids it.” The fact that the CFPB has the power of a cabinet-level agency while lacking any democratic accountability or structural safeguards is a sure sign that its structure is unconstitutional.
The only remedy to the CFPB’s unconstitutional structure, PHH argues, is to dismantle the agency entirely. “The CFPB’s primary constitutional defect, the Director’s unaccountability , is not a wart to be surgically removed. Congress placed it right at the agency’s heart, and it cannot be removed without changing the nature of what Congress adopted.”
* * *
PHH’s reply completes the briefing in this appeal. Oral arguments are scheduled to take place on May 24, with each side being given 30 minutes to argue. On April 11, the D.C. Circuit granted the DOJ’s request for 10 minutes to present its views during oral argument.
The Department of Justice, with the consent of PHH and the CFPB, has filed an unopposed motion with the D.C. Circuit requesting ten minutes of argument time in the oral argument to be held on May 24, 2017 in the rehearing en banc in the PHH case.
The DOJ filed an amicus brief in which it agreed with PHH’s position that the CFPB’s structure is unconstitutional but advocated a more limited remedial measure than PHH is seeking. In contrast to PHH which has argued that the CFPB should be dismantled in its entirety, the DOJ supports keeping the CFPB intact with a director removable at will by the President.
The D.C. Circuit has allocated 30 minutes per side for oral argument. In its motion seeking argument time, the DOJ states that because “our position in this case does not fully align with either party,” it is requesting that “instead of sharing time with either party, we receive a total of ten minutes for the United States.”
The DOJ submitted its amicus brief in the PHH case on Friday, March 17. We have blogged extensively about this case since its inception. Unsurprisingly, the Trump DOJ supports striking from Dodd-Frank the removal-only-for-cause protection currently applicable to the director of the CFPB. In its “view, the panel correctly applied severability principles and therefore properly struck down only the for-cause removal restrictions.” If the DOJ gets its way, the CFPB would remain intact with a director that President Trump can replace at any time.
While PHH likely appreciates the DOJ’s support, the DOJ is advocating a more limited remedial measure than PHH is seeking. As we’ve noted before, PHH is arguing in the case that the CFPB should be dismantled in its entirety because its “unprecedented independence from the elected branches of government violates the separation of powers” and because the CFPB’s “constitutional infirmities extend far beyond limiting the President’s removal power…the proper remedy is to strike down the agency in its entirety.” In sharp contrast, the Trump DOJ supports keeping the CFPB intact with a director removable at the will of the President.
Though the brief does not highlight the fact, the Trump DOJ has departed substantially from the position that the DOJ took under President Obama. The departure is most obvious in brief’s first footnote, where the DOJ notes that “[i]n one case filed against several federal agencies and departments . . ., [t]he [DOJ’s] district court briefs . . . argued that, based on the Supreme Court’s decision in Humphrey’s Executor, the CFPB’s for-cause removal provision is consistent with the Constitution.” However, the footnote goes on, “[a]fter reviewing the panel’s opinion here and further considering the issue, the [DOJ] has concluded that the better view is that the provision is unconstitutional.” The obviously political nature of the change makes it difficult to predict how the judges on the court will react to the DOJ’s brief.
Of course, the change at the DOJ is not reflected in the CFPB’s view, which is diametrically opposed to the DOJ’s. It’s rare that two executive agencies disagree so starkly and so publicly on an issue of such importance. This contrast only highlights the problems created by a federal agency headed by a single person that is not accountable to the president.
On Friday, PHH filed its opening en banc brief with the D.C. Circuit in the rehearing of its appeal of Director Cordray’s June 2015 decision that affirmed an administrative law judge’s (ALJ) recommended decision concluding PHH had violated RESPA and increased the ALJ’s disgorgement award from over $6.4 million to over $109 million. The rehearing was sought by the CFPB after a divided D.C. Circuit panel ruled that the CFPB’s single-director-removable-only-for-cause structure is unconstitutional and severed the unconstitutional provision to make the CFPB Director removable without cause by the President; rejected Director Cordray’s new RESPA interpretation and held that even assuming that his interpretation was consistent with RESPA, the CFPB’s attempt to apply that new interpretation retroactively violated due process; held that statutes of limitations apply to CFPB administrative enforcement actions; and remanded to the CFPB for further proceedings consistent with the panel’s decision.
In its opening brief, PHH argues that the CFPB’s “unprecedented independence from the elected branches of government violates the separation of powers” and that because the CFPB’s “constitutional infirmities extend far beyond limiting the President’s removal power…the proper remedy is to strike down the agency in its entirety.” According to PHH, the Dodd-Frank “for-cause removal provision is not severable from the rest of the provisions establishing the CFPB because severance would create a new agency unrecognizable to the Congress that passed Dodd-Frank.” PHH contends that the court cannot avoid the separation-of-powers issues “simply by adopting the panel’s statutory holdings and remanding to the CFPB, because this Court cannot remand a case to an unconstitutional agency.” PHH asserts that such issues can only be avoided “by vacating the CFPB’s order without remand, so that the CFPB would not be free to resume proceedings against PHH.” (emphasis provided).
In its order granting the CFPB’s petition for rehearing en banc, one of the issues the court ordered the parties to address was what the appropriate disposition would be in PHH if the court were to hold that the ALJ in Lucia v. SEC was an inferior officer. In Lucia, a panel of the D.C. Circuit held that because the SEC’s ALJ was an “employee” rather than “inferior officer” who must be appointed in accordance with the Appointments Clause of the U.S. Constitution, the ALJ’s appointment by the SEC’s Office of Administrative Law Judges rather than an SEC Commissioner was constitutional. The D.C. Circuit granted a petition for rehearing en banc in Lucia and, as noted below, has scheduled oral argument in that case and in PHH for the same day.
Responding to the issue posed by the D.C. Circuit, PHH argues in its brief that if the court holds the ALJ in Lucia was improperly appointed, then the ALJ in its case was also an “inferior officer” who was not appointed in accordance with the Appointments Clause. As a result, the entire hearing before the ALJ was invalid, Director Cordray’s order would need to be vacated, and “any future proceeding must begin afresh before a constitutionally structured agency but also before a valid adjudicator.” PHH further argues that merely restarting the current proceeding still would not provide PHH with full relief because “the unconstitutional taint stemming from the initial authorization of the Notice of Charges would continue to infect this matter.” PHH asserts that for this reason, the court “must decide PHH’s separation-of-powers challenge even if the ALJ was improperly appointed.”
With regard to the RESPA issues, PHH contends they “should not properly be disputed” before the en banc court “and any en banc opinion should simply reinstate the panel’s statutory rulings.” It also observes that the RESPA issues “plainly were not en banc-worthy” and Director Cordray’s RESPA interpretation, if adopted by the en banc court, “would create a circuit split with every other court to have considered RESPA’s proper scope.” Nevertheless, PHH states that “[i]n an abundance of caution and in light of the critical importance of the RESPA issues to PHH and to the entire settlement-services industry…PHH addresses those issues directly [in its brief] to demonstrate that there is no legitimate basis to revisit the panel’s statutory rulings.”
Amicus briefs in support of PHH were filed on Friday by:
- The Chamber of Commerce of the United States of America
- American Bankers Association, American Financial Services Association, Consumer Bankers Association, Mortgage Bankers Association, Housing Policy Council of the Financial Services Roundtable, Real Estate Services Providers Council and seven other trade groups
- ACA International
- The Cato Institute
- RD Legal Partners, LP, RD Legal Funding, LLC, RD Legal Finance, LLC and a related individual
- The Attorneys General of Missouri, Alabama, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Louisiana, Nevada, Oklahoma, South Dakota, Texas, West Virginia, and Wisconsin
- State National Bank of Big Spring, 60 Plus Association, Inc., and Competitive Enterprise Institute
The RD Legal amici are defendants in an enforcement action filed by the CFPB and the New York Attorney General last month alleging that a litigation settlement advance product offered by RD Legal is a disguised usurious loan that is deceptively marketed and abusive. (In their brief, the RD Legal amici claim that the action was filed in retaliation for a preemptive challenge to the CFPB’s jurisdiction filed by RD Legal.) State National Bank of Big Spring and the other amici on its brief are the plaintiffs in a separate lawsuit pending in D.C. federal district court challenging the CFPB’s constitutionality. The State National Bank of Big Spring plaintiffs previously filed an unsuccessful motion with the D.C. Circuit seeking to intervene in the PHH en banc rehearing.
In their amicus brief, the Republican state AGs argue that separation of powers creates a structural check against the aggregation of power on the federal level and protects the role of the states in the federal system by limiting the range of permissible federal action and ensuring federal power can only be wielded by officials who are politically accountable. A group of Democratic AGs from 16 states and the District of Columbia filed an unsuccessful motion with the D.C. Circuit seeking to intervene in the PHH appeal. Among the arguments made by the Democratic AGs in support of their motion was that their intervention was necessary because the Trump Administration might not defend the CFPB’s constitutionality.
Except for the brief filed by the ABA and twelve other trade groups which addresses only the merits of PHH’s RESPA arguments, the amicus briefs only address the CFPB’s constitutionality and argue that the CFPB is unconstitutionally structured because of the CFPB Director’s expansive powers and insulation from Presidential and Congressional oversight. (ACA International’s brief includes the argument that, in addition to being insulated from accountability, the CFPB’s funding mechanism also raises a conflict of interest. According to ACA, the civil penalty fund “creates a perverse incentive for the Bureau to use its enforcement actions as a funding mechanism, where the Bureau is both prosecutor and beneficiary.”)
The ABA’s brief states that even though amici “do not understand the Court to have granted en banc review to reconsider the panel’s straightforward resolution of the RESPA and fair notice questions,” they are nonetheless “filing this brief out of an abundance of caution because [such] questions addressed by the panel are of critical importance to them and their members.” The ABA amici argue that the CFPB “misread RESPA, overturned decades of settled interpretations without any notice, and disrupted a large sector of the economy.” They assert that the panel’s decision “correctly restored the status quo” and urge the en banc court “to let that decision stand.”
Also on Friday, the D.C. Circuit entered an order allowing each side 30 minutes at the en banc oral argument scheduled for May 24, 2017. The order also indicates that the oral argument in Lucia v. SEC, also scheduled for May 24, will be heard first to be followed by a “short recess” before the argument in PHH. Finally, the order confirms that the en banc panel will consist of eleven judges, including Senior Judge Randolph. In addition to Senior Judge Randolph, four of the other panel members were appointed by a Republican president.
The D.C. Circuit, in a divided decision, denied a motion for an emergency injunction pending appeal filed by a company seeking to halt all CFPB action adverse to the company, including enforcement of a CID and disclosure of the company’s identity. The company seeking the injunction in John Doe Company v. CFPB is a California limited liability company with its principal place of business in the Philippines that is in the business of purchasing and selling income streams.
To satisfy the requirement of showing a likelihood of success on the merits, the company pointed to the D.C. Circuit’s PHH decision holding that the CFPB’s single-director-removable-only-for-cause structure is unconstitutional. In denying the injunction, the D.C. Circuit observed that the company was required to show not only that there is potentially persuasive authority for its legal position but also that the district court abused its discretion by not giving sufficient credit to that showing when it balanced the equities for purposes of deciding whether to grant preliminary injunctive relief.
The D.C. Circuit concluded that pointing to PHH was not enough because:
- The PHH decision has been vacated as a result of the order granting the CFPB’s petition for rehearing en banc. The D.C. Circuit stated that the district court “did not abuse its discretion in determining that simply pointing to the vacated majority opinion in PHH did not establish the likelihood of an identical constitutional ruling by the en banc court in PHH or the court in this case.” (emphasis provided).
- Even assuming the en banc court were to agree with the majority opinion in PHH, the company is not in the same constitutional position as PHH. According to the court, PHH was “on the receiving end of a completed law enforcement action by the Bureau” and the majority opinion emphasized the Constitution’s assignment of law enforcement authority to the Executive Branch. In contrast, the company is seeking to stop “a non-self-executing investigative demand for regulatory action” and had not objected to the scope or content of the CID or argued that it is outside the CFPB’s authority. To obtain the injunction, the company “would have to show that only the Executive Branch can demand information from regulated businesses or take such investigative steps,” something which the court deemed “far from constitutionally self-evident.” (emphasis provided).
- The company’s argument that the alleged separation of powers violation requires the CFPB to “be stopped in its tracks” ignores that severance of the unconstitutional provision is often the chosen remedy (as it was in PHH) and that vacatur of past actions is not routine. The court observed that the PHH decision “did not undo the Bureau enforcement action and make it start over from scratch. The court simply remanded for the Bureau to address specific matters.”
- An administrative proceeding rather than the D.C. Circuit is the proper forum for the company’s separation of powers claim.
The D.C. Circuit also found that the district court had not abused its discretion (1) in finding that the company had failed to show irreparable harm, calling the company’s argument about reputational harm “nothing more than speculation about how third parties might respond to routine regulatory investigations,” and (2) in holding that the company’s name did not need to be kept confidential in public court proceedings. (On March 7, the date of the D.C. Circuit decision, the CFPB revealed the company’s name by publishing on its website the company’s petition to modify or set aside the CID and the CFPB’s decision and order denying the petition.)
Judge Kavanaugh, who was on the PHH panel and joined the majority decision, issued a dissenting opinion in which he stated that he would grant the company’s injunction motion. According to Judge Kavanaugh, the company had shown a likelihood of success on the merits because “given the Supreme Court’s Article II precedents, I believe that the CFPB’s structure is likely to be ruled unconstitutional, whether by this Court sitting en banc or by the Supreme Court.” He also found that the company had shown irreparable harm because “[i]rreparable harm occurs almost by definition when a person or entity demonstrates a likelihood that it is being regulated on an ongoing basis by an unconstitutionally structured agency that has issued binding rules governing the plaintiff’s conduct and that has authority to bring enforcement actions against the plaintiff.”
The CFPB had argued that even if it is unconstitutionally structured, the remedy would be to sever the for-cause removal provision as was done in PHH. According to the CFPB, because it would continue to regulate the company as an executive agency rather than an independent agency in that scenario, the company is not entitled to a preliminary injunction to prevent the CFPB in its current form from regulating the company. Calling the CFPB’s analysis “badly mistaken,” Judge Kavanaugh stated that “unless and until” the for-cause removal provision is actually severed, the company “will continue to be regulated on an ongoing basis by an unconstitutional agency.” In his view, a preliminary injunction “would alleviate that ongoing harm.”
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.