As we previously discussed, on February 16, 2017, the D.C. Circuit granted rehearing en banc in PHH v. CFPB and vacated the holding from the three-judge panel that the CFPB’s single director structure was unconstitutional.
Through an unopposed motion filed on March 3, 2017, the Office of the Solicitor General (“SG”) requested an extension to file its amicus brief for the rehearing en banc. If granted, the deadline for filing the brief would be extended from March 10, 2017, to March 17, 2017. Significantly, the motion signals that the SG may be shifting away from the Obama Administration’s previous position in support of the CFPB, at least in some respects. In particular, the SG stated therein that “the views of the United States on matters involving the President’s removal power are not always entirely congruent with the views of independent agencies” and argued that the earlier filing date “would make it exceedingly difficult to engage in the necessary consultation within the government.” The SG’s position should become clear once the amicus brief is filed later this month.