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The DC Circuit’s Big CFPB Ruling Carries Wide Implications. Here’s What’s Next

OMB director mick mulvaney. credit: white house The Consumer Financial Protection Bureau is moving to stop at least two companies from continuing to argue that enforcement actions should be dismissed based on an alleged defect in the agency’s power structure. Defense lawyers for the companies-the mortgage loan servicer Ocwen Financial Corp. and All American Check Cashing Inc.-had raised.

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Second, last Friday the CFPB filed a petition for en banc rehearing of the PHH decision, citing serious concerns about the DC Circuit’s "dramatic and unprecedented ruling." 2 The petition requests review of the holdings that found (1) the CFPB’s single-director structure to be unconstitutional, and (2) that the bureau misinterpreted RESPA.

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Eric Mogilnicki is quoted by The National Law Journal in an article regarding the significance of a federal appeals court ruling upholding the lawfulness of the CFPB’s single-director structure. "The combination of that opinion and Acting Director Mulvaney’s recent statement that the bureau would stop ‘pushing the envelope’ on enforcement matters will provide PHH with strong arguments for why the case should be dropped," says Mogilnicki.

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On October 11th, the US Court of Appeals for the DC Circuit ruled that the CFPB cannot continue to operate under the leadership of a lone individual unencumbered by any branch of government. In stark contrast to other federal agencies, the Bureau has thus far had a single director, Richard Cordray, who could only be removed from his position "for cause" and not at the president’s volition.

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