The DC Circuit today granted the CFPB’s petition for rehearing en banc of the decision holding its structure unconstitutional. The court vacated the October 2016 decision (see Brian's October post here) and set a quick briefing schedule, with the petitioner's s opening brief due on March 10 and the CFPB's due on March 31. It set oral argument for May 24.
The court directed the parties to address in their briefs the following issues:
- Is the CFPB's structure as a single-Director independent agency consistent with Article II of the Constitution and, if not, is the proper remedy to sever the for-cause provision of the statute?
- May the court appropriately avoid deciding that constitutional question given the panel's ruling on the statutory issues in this case?
- If the en banc court, which has today separately ordered en banc consideration of Lucia v. SEC, 832 F.3d 277 (D.C. Cir. 2016), concludes in that case that the administrative law judge who handled that case was an inferior officer rather than an employee, what is the appropriate disposition of this case?