In a last-second twist before the D.C. Circuit panel releases its decision on the Consumer Financial Protection Bureau's petition for rehearing en banc, various key Democratic groups filed requests for the full court to reconsider the panel’s denial on their motions to intervene in the CPFB’s case against PHH, a post from Ballard Spahr’s CFPB Monitor explained.

Earlier this month, the D.C Circuit panel denied three motions from Democratic state attorneys general, Senators, and consumer advocacy groups, who were attempting to intervene on behalf of the CFPB.

From the start, the likelihood that the court would deny those motions was high. Alan Kaplinsky, partner and leader of Ballard Spahr’s Consumer Financial Services Group, previously explained that it is very uncommon for motions to intervene to be filed in an appellate court.  “In my 46 years of practicing law, this is the first time I have seen it,” he said.   

And yet, according to the CPFB Monitor, the three groups are going for a second try, with all three filing a petition for rehearing en banc, meaning that they want the entire court to hear the case.

While most of the motions to intervene were similar to the originals, there was one slight difference. From the blog:

The public interest groups state in their motion for reconsideration en banc that they had assumed their motion to intervene “would be circulated to the entire Court alongside the [CFPB’s] petition for rehearing” because they had been instructed by the clerk’s office to file an original and 19 copies of their motion.”  They attach their original motion to intervene and incorporate the arguments for intervention by reference in the new motion but add “one request.”

Their request is that if the court deems their motion for reconsideration premature “because today the CFPB continues to defend itself…the motion be held in abeyance and ruled upon either at the conclusion of the appeal, or when it becomes apparent that the CFPB is changing its position (whichever comes first).”

The blog noted that it is surprised that the three groups are continuing to press these arguments in their new filings. 

Richard Andreano, practice leader of Ballard Spahr's Mortgage Banking Group, said in an interview that he doesn’t think the motion will be successful, but the D.C. Circuit panel will have to address it.

Andreano added that he expects a decision on the CFPB’s petition for rehearing en banc by the end of the month.