* * * Title X of the Dodd-Frank Act * * * gives the agency explicit authority to pursue its own litigation up to and including the Circuit Court level. But when it comes to the Supreme Court, the law says the CFPB must first file a written request to the U.S. Attorney General within a specified timeframe and that the "Attorney General concurs with such request or fails to take action within 60 days of the request."
But Sen. Jeff Sessions, R-Ala., Trump's pick for attorney general, could conceivably withhold such concurrence. That would mean the Trump administration effectively blocks the CFPB's decision to appeal to the Supreme Court.
This leaves CFPB with relatively few scenarios to prevail in the PHH v CFPB case. The agency has requested an en banc rehearing of the matter before all sitting justices on the D.C Circuit, and if either that request for rehearing is denied or is granted and the panel upholds the earlier ruling, the Justice Department could prevent the CFPB from appealing the case further. * * *
But if the CFPB prevails en banc, * * * presumably PHH would appeal to the Supreme Court * * * if the high court did grant cert and heard the case, Ohio State University law professor Peter Shane said, the court would likely assign an amicus defendant to stand in the government's place if it decides it does not want to defend its side of the case.