Banking and Finance Law Daily Congress members, state AGs, consumer groups can’t defend CFPB’s structure
Thursday, February 2, 2017

Congress members, state AGs, consumer groups can’t defend CFPB’s structure

By Richard A. Roth, J.D.

The U.S. Court of Appeals for the District of Columbia Circuit has denied three separate petitions for permission to intervene in PHH Corp. v. CFPB, an appeal in which the Consumer Financial Protection Bureau is seeking an en banc rehearing of a decision that its structure violates constitutional separation of powers requirements. The petitions were filed by Sen. Sherrod Brown (D-Ohio) and Rep. Maxine Waters (D-Calif)attorneys general of 16 states and the District of Columbia; and consumer advocacy organizations Americans for Financial Reform, Center for Responsible Lending, Leadership Conference on Civil and Human Rights, Self-Help Credit Union, and United States Public Interest Research Group, Inc. The one-sentence, per curiam order did not explain why the petitions were denied.

In the case, the majority of a three-judge panel decided that the Dodd-Frank Act’s establishment of the CFPB as an independent agency whose single director could be removed by the president only for cause violated the separation of powers requirement of the U.S. Constitution (see PHH Corp. v. CFPBBanking and Finance Law Daily, Oct. 11, 2016). However, rather than invalidating all of the Consumer Financial Protection Act provisions creating the CFPB, the court ordered that the bureau should be considered to be an executive agency whose director could be removed at the president’s discretion.

The panel’s order has no effect while the bureau’s petition for an en banc rehearing is being considered.

Attorneys: Elizabeth B. Wydra (Constitutional Accountability Center) for Sen. Brown and Rep. Waters. Jane R. Rosenberg, Assistant Attorney General, State of Connecticut, for the attorneys general. Thomas C. Goldstein (Goldstein & Russell, P.C.) for the consumer advocacy organizations. Theodore B. Olson (Gibson, Dunn & Crutcher LLP) for PHH Corporation.

Companies: Americans for Financial Reform; Center for Responsible Lending; Leadership Conference on Civil and Human Rights; PHH Corporation; Self-Help Credit Union; United States Public Interest Research Group, Inc.

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