As discussed in prior posts, the CFPB has petitioned the D.C. Circuit for re-hearing by the full court of the October 2016 ruling by a three-judge panel of the court in PHH v. CFPB. The panel determined that it is unconstitutional for the CFPB to be led by a single director who may only be removed for cause, and ruled that the Bureau Director is subject to at-will removal by the President. Joint motions to intervene were filed by: (1) Attorneys General from 16 states and the District of Colombia; (2) Senator Sherrod Brown (D-OH) and Representative Maxine Waters (D-CA); and (3) a group of six unrelated parties (four public interest organizations, a credit union, and a member of the Bureau’s Consumer Advisory Board). The motions uniformly expressed concern that the Trump Administration, including any new CFPB Director appointed by the President, may not defend the Bureau adequately or at all. The potential intervenors sought the right to continue to litigate in favor of a politically independent Director, even if the Bureau or the Administration would not.
On February 2, 2017, the D.C. Circuit summarily denied the motions to intervene. The court’s action removes a potential obstacle to efforts by the Trump Administration or a new CFPB Director to control the pending litigation in the future. For now, however, the Bureau is actively seeking reconsideration of the ruling entered by the three-judge panel of the court. The court has not ruled on motions by larger groups of legislators and public interest groups to participate as amici.