The Consumer Financial Protection Bureau on Nov. 18 filed a petition in the U.S. Court of Appeals for the D.C. Circuit for the court en banc to review the Oct. 11 decision of a three-judge panel holding that the director of the CFPB is subject to “at-will” removal by the president. This would permit an incoming president to remove the current director and alter the course of the bureau’s pro-consumer agenda without a showing of cause. The petition also sought en banc review of the merits decision, which had nullified a finding that certain mortgage referrals violated the Real Estate Settlements Procedure Act (RESPA)—itself a not-insignificant issue.

The October decision, PHH Corp. v CFPB, 839 F.3d 1 (2016), was from a panel on which each judge was appointed by Republican presidents. The primary drafter, Judge Brett Kavanaugh, characterized the removal issue as fundamental to personal liberties. Although his style might be familiar to readers of Judge Kavanaugh’s writings, it hardly fits the distinctions being made. After all, the Supreme Court has long held, in the cases it has reviewed, that legislation providing that particular independent agency directors (such as the commissioners of the Federal Trade Commission) may be removed only “with cause,” is constitutional. The difference here was that the CFPB has a single director, in contrast with other independent agencies, which typically have three or more.

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