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United States flips sides, supports PHH in case against CFPB

Case now falls under Trump administration

The United States revealed last Friday that it now supports PHH in its landmark case against the Consumer Financial Protection Bureau, switching sides from its original stance back in December, according to a new piece in Ballard Spahr’s CFPB Monitor blog by Barbara Mishkin.

Back in February, the U.S. Court of Appeals for the District of Columbia Circuit ruled in favor of the CFPB and granted a rehearing of the case en banc, meaning that it would allow the entire court to hear the case, rather than the three judges who ruled on the case in October.

The move allows the embattled agency to defend the constitutionality of its leadership structure, which is getting called into question in Congress and in court.

Procedurally, after the court’s decision, amicus briefs supporting PHH are required to be filed by March 10 and amicus briefs supporting the CFPB to be filed by March 31. 

Amicus briefs, as explained by this law center, are legal documents filed in appellate court cases by non-litigants with a strong interest in the subject matter.

Meanwhile, PHH must file its opening brief by March 10 and the CFPB must respond by March 31.

Although the fight is between PHH and the CFPB, the Solicitor General is allowed to comment on the matter in order to express the views of the United States.

The Solicitor General hasn’t filed its amicus brief yet, but it did file an “unopposed motion” with the D.C. Circuit to file an amicus brief by March 17, according to Ballard Spahr.

By doing so, the blog stated that the United States appears to be signaling that its brief will support PHH rather than the CFPB. The U.S wouldn’t need an extension if it chose to support the CFPB.

When the court first allowed the Solicitor General to file a response on the case back in December, the move supported the CFPB and only addressed the panel’s constitutional separation-of-powers holding, the blog stated.

However, a lot changed since December. Donald Trump is now president, and there are currently a lot of calls out for him to fire CFPB Director Richard Cordray, including one from House Financial Services Committee Chairman Rep. Jeb Hensarling, R-Texas.

The blog added, “Since the Department of Justice is now headed by Republican Attorney General Jeff Sessions, the amicus brief to be filed by the United States can be expected to support PHH’s position that the CFPB’s single-director-removable-only-for-cause structure is unconstitutional.”

Right after the court’s decision in February to grant a rehearing of the case en banc, it was reported that President Trump did not support the court decision.

The comments, courtesy of the Wall Street Journal, relayed the president’s feelings about the CFPB, and stated, “The President believes that the initial decision made by the three judge panel of the DC circuit was correct. The structure of the CFPB makes it unaccountable to the American people.”

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