1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________________ ) STATE NATIONAL BANK of BIG ) SPRING et al . , ) ) Plaintiff s, ) ) v. ) Civil Action No. 12
- 1032 (ESH) ) JACOB J. LEW et al . , ) ) Defendant s . )

__________________________________________) MEMORANDUM OPINION Plaintiffs filed this suit in 2012 to challenge t he constitutionality of the Consumer Financial Protection Bureau (“CFPB”) , which was created as part of the Dodd

- Frank Act

. See Dodd

- Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111

- 203 , 124 Stat.
1376 ( 2010)

. They also allege that the recess appointment of CFPB Director Richard Cordray was unconstitutional and seek an injunction that would prevent him from taking any further action in that role

. After this Court dismissed the lawsuit on standing and ripeness grounds, State Nat. Bank of Big Spring v. Lew , 958 F. S upp. 2d 127, 166 (D.D.C. 2013), the Court of Appeals reversed in part

. See State Nat. Bank of Big Spring v. Lew , 795 F.3d 48, 5 7 (D.C. Cir. 2015) . It held that State National Bank of Big Spring (“SN B”) had standing to challenge (1) the constitutionality of the CFPB’s structure, and (2) Director Cordray’s recess appointment. See id. at 54. Upon remand, the parties filed cross

- motions for summary judgment. ( See Pls.’ Mot. for Summ. J. [ECF No. 53

- 1]); Defs .’ Cross

- Mot. for Summ. J. [ECF No. 59

- 1].)
A t this time , the Court will defer ruling on plaintiffs ’ attack on the CFPB on sepa ration

of

- powers grounds. T his same constitutional challenge was made to the D.C. Circuit in a2 recently argued case. See Pet ’ rs ’ Statement of Issues, PHH Corp. v. Consumer Fin. Prot.
Bureau , Case No. 15

- 1177 (D.C. Cir. July 24, 2015) (raising the question of “ [ w ] hether the unprecedented structural features of the CFPB, which combine legislative, executive, and judicial power in the hands of a single individual, violate the separation of powers”). Plaintiffs in this case filed an amicus brief in support of petitioners , making largely the same arguments that they make here. See generally Br

. of State National Bank of Big Spring, The 60 Plus Association, Inc.; and Competitive Enterprise Institute, PHH Corp. v. Consumer Fin. Prot.
Bureau , Case No. 15

- 1177 (D.C. Cir. Oct. 5, 2015). G iven the likelihood that this issue will soon be decided by the Circuit, this Court will h old this matter in abeyance until the Court of Appeals rul es in PHH Corp

. See, e.g. , Al Qosi v. Bush , 2004 WL 4797470, at *1 (D.D.C. Dec.
1 7, 2004) (holding further proceedings in abeyance pending resolution of the same issues in a case already before the D.C. Circuit).
I t will , however, address the merits of plaintiffs ’ challenge to the recess appointment of Director Cordray

. To do this, it will limit i ts background d iscussion to information that is relevant only to that issue

.
BACKGROUND On July 18, 2011, President Obama first nominated Richard Cordray to serve as CFPB Director. ( See Defs.’ Resp. to Pls.’ Statement of Material Facts Not in Dispute (“Defs.’ Resp.”) [ECF No. 59

- 2] ¶ 18.) When the Senate took no action on that nomination, the President then appointed him to the position on January 4, 2012, invoking his authority under the Recess Appointments Clause. ( See id. ¶ 19.) That same day, the President also invoked his Re cess Appointment authority to appoint three members to the National Labor Relations Board (“NLRB”)

. ( See id. ¶ 21.) The Supreme Court s ubsequently found in Nationa l L abor Relations3 B oard v. Noel Canning , 134 S. Ct. 2550, 2578 (2014) , that these NLRB appointments were made in violation of the Recess Appointments Clause. As a recess appointee, Cordray exercised final decision

- making authority concerning several CFPB rulemakings. ( See Defs.’ Resp. ¶ 27; Electronic Fund Transfers (Regulation E), 77
Fe d. Reg. 6,193 (Feb. 7, 2012); 77 Fed. Reg. 50,243 (Aug. 20, 2012); 78 Fed. Reg. 30,661 (May 22, 2013); Integrated Mortgage Disclosures Under the Real Estate Settlement Procedures Act (Regulation X) and the Truth In Lending Act (Regulation Z), 77 Fed. Reg. 51,115 (Aug. 23, 2012) ; 1 Escrow Requirements Under the Truth in Lending Act (Regulation Z), 78 Fed. Reg. 4,725 (Jan. 22, 2013); Ability to Repay and Qualified Mortgage Standards Under the Truth in Lending Act (Regulation Z), 78 Fed. Reg. 6,407 (Jan. 30, 20 13); Mortgage Servicing Rules Under the Real Estate Settlement Procedures Act (Regulation X), 78 Fed. Reg. 10,695 (Feb. 14, 2013). On January 24, 2013, President Obama re

- nominated Cordray to serve as CFPB Director, and the Senate confirmed his nomination on July 16, 2013. (Defs.’ Resp. ¶ 26.) The following month, Director Cordray published a Notice of Ratification in the Federal Register, which read as follows: The President appointed me as Director of the Bureau of Consumer Financial Protection on J anua ry 4, 2012, pursuant to his authority under the Recess Appointments Clause, U.S. Const. art. II, § 2, cl. 3. The President subsequently appointed me as Director on July 17, 2013, following confirmation by the Senate, pursuant to the Appointments Clause, U.S. Const. art. II, § 2, cl. 2. I believe that the actions I took during the period I was serving as a recess appointee were legally authorized and entirely proper. To avoid any possible uncertainty, however, I h ereby affirm and ratify any and all actio ns I took during that period. Notice of Ratification, 78 Fed. Reg. 53,734 , 53,734 (Aug. 30, 2013).

1 Although this Notice of Proposed Rulemaking was issued during Director Cordray’s recess appointment, the final rule was not issued until after his Senate confirmation and re

- appointment. See 78 Fed. Reg. 79,730 (Dec. 31, 2013).4 The primary point of contention between the parties is what legal effect, if any, this purported ratification has.

ANALYSIS
I. RECESS APPOINTMENT After finding that plaintiffs had standing to challenge Director Cordray’s recess appointment as unconstitutional , the Court of Appeals left it to this Court “ to consider the

s ignificance of Director Cordray’ s later Senate confirmation and his subsequent ratification of the actions he had taken while serving under a recess appointment. ” State Nat. Bank of Big Spring , 795 F.3d at 54

. Defendants now argue that the confirmation and subsequent ratification is fat al to plaintiffs’ recess appointment cha llenge for t hree reasons.

A . Mootness At the time the Second Amended Complaint was filed, Director Cordray had not yet been confirmed by the Senate, and thus , plaintiffs challenged his authority to take any action as head of the Bureau. ( See Second Am. Compl. [ECF No. 24 ] ¶ 257 (filed Feb. 19, 2013).) The y now acknowledge that his subsequent confirmation moots much of their claim for injunctive relief: “To be sure, plaintiffs do not dispute that subsequent to his confirmation, Cordray could (subject to plaintiffs’ separation of powers challenge) properly e xercise those authorities that are lawfully vested in him as Director of the CFPB.” ( See Pls.’ Reply Br. [ECF No. 62] at 33.) Howev er, they argue that even if they are not entitled to all of the relief they initially requested , the dispute remains live because the Co urt can still enjoin the enforcement of regulations that were promulgated prior to his confirmation . ( See id. ; see also Pls.’ Mot. for Summ. J. at 6 (identifying the five regulations issued prior to confirmation “that most directly impact SNB” ) .) Defenda nts respond that this reframing of the requested relief amounts to a constructive amendment of5 plaintiffs’ complaint and should thus be disallowed. ( See Defs.’ Cross

- Mot. for Summ. J. at 33

- 34.) Even if certain remedies h ave been foreclosed during the course of litigation, the availability of partial relief prevents the case from becoming moot. See Church of Scientology of Cal. v. United States , 506 U.S. 9, 13 (1992) . Th erefore , defendants’ mootness argument can only succeed if none of the relief soug ht remains available in the wake of Director Cordray’s confirmation. See id. As discussed , plaintiffs initially sought to enjoin Cordray from “carrying out any of the powers” of his office (Second Am. Compl. ¶ 257), and they continue to seek an injunctio n against the enforcement of rules promulgated prior to his confirmation. The Court agrees with plaintiffs that the broad request for relief in their complaint encompasses the more limited relief that could still be granted, i.e. , enjoining Director Cordr ay from carrying out some of the powers of his office

. ( See Pls.’ Re ply Br. at 32.) Defendants’ argument that “[t]here is no overlap between the injunction originally requested and SNB’s present characterization of it” (Defs.’ Reply Br. [ECF No. 64] at 20) is n ot persuasive

. For the same reason, there is no support for defendants’ argument that the reframed request for relief is not properly before the Court

. ( S ee id. at 20

- 21. ) A s discussed, the limited relief still potentially available to plaintiffs was sought in their Sec ond Amended Complaint.
B. Standing Defendants next argue that plaintiffs have not demonstrated standing to challenge most of the regulations they seek to invalidate. ( See Defs.’ Cross

- Mot. for Summ. J. at 35

- 40.) This both misapprehends the thrust of plaintiffs’ claim and flies in the face of the Court of Appeals’ decision. First, plaintiffs are not seeking to directly “invalidate” any regulations, as if this were a

run - of

- the

- mill APA challenge . ( See Pls.’ Reply Br. at 34

- 35.) I nstead, they are seeking a6 declaration that Director Cordray’s recess appointment was unconstitutional, and consequently,

a n injunction preventing the enforcement of any rules that were issued while he was a recess appoint ee . ( See id. ; see also Second Am. Compl. ¶ 257.) Defendants essentially admit that plaintiffs’ compliance costs under the Remittance Rule create standing to challenge the recess appointment ( see Defs.’ Cross

- Mot. for Summ. J. at 35), as they must following the decisio n of the Court of Appeals. See State Nat. Bank of Big Spring , 795 F.3d at 53

- 54 (SNB’s Remittance Rule compliance costs create standing to challenge both the Bureau’s constitutionality and Director Cordray’s recess appointment). T hus , the Court must r each the merits of the recess appointment claim, regardless of whether SNB would have also been able to establish standing under other rules. Second, and more fundamentally, the Court of Appeals has already unequivocally held as much: “ [T] he Bank has stan ding to challenge Director Cordray's recess appointment .” See id. at 54. It thus remanded to this Court “for consideration of the merits of this issue,” including the significance of Cordray’s ratification of the acts taken during the allegedly u nlawful r ecess appointment. See id. (emphasis added). Accordingly, the Court will now turn to the merits of this issue

. 2

C. Ratification On August 30, 2013, just over a month after his Senate confirmation, Director Cordray published a notice in the Federal Register “affirm[ing] and ratify[ing] any and all actions” that he took between his recess appointment and subsequent confirmation. See Notice of Ratification,

2 Defendants also challenge the standing of Competitive Enterprise Institute and the 60 Plus As sociation to remain in the case (Defs.’ Cross

- Mot. for Summ. J. at 49

- 50), but because SNB has standing, the Court need not consider whether the other plaintiffs also have standing to make the same claims

. See Ry. Labor Exec s . ’ Ass ’ n v. United States , 98 7 F.2d 80 6, 810 (D.C. Cir. 1993) (“[T] he Supreme Court has repeatedly held that if one party has standing in an action, a court need not reach the issue of the standing of other parties when it makes no difference to the merits of the case. ”).7 78 Fed. Reg. 53,734 , 53,734 (Aug. 30, 2013). Defendants thus argue that even if t he recess appointment was unconstitutional, 3 this ratification cured any defect in the rules promulgated during th e interim period. ( See Defs.’ Cross

- Mot. for Summ. J. at 4 1

- 46.) They rely primarily
upon two D.C. Circuit cases in which properly appointed officer s effectively ratified the actions of their predecessor s , when the validity of the predecessor s ’ appointment s was doubtful. See Doolin Sec. Sav. Bank, F.S.B. v. Office of Thrift Supervision , 139 F.3d 203 (D.C. Cir. 1998);
F

ed. E lection C omm’n v. Legi

- Tech, Inc. , 75 F.3d 704 (D.C. Cir. 1996) ; see also Laurel Baye Healt hcare of Lake Lanier, Inc. v. Nat ’ l L abor R elations B d

. , 564 F.3d 469, 476 (D.C. Cir. 2009) (relying on Legi

- Tech to suggest that a properly reconstituted NLRB could ratify and reinstate an order inva lidated due to Board’s lack of quorum ). D efendants have a lso filed a notice of recent opinions from the Third and Ninth Circuits approving ratification , the latter of which found Director Cordray’s ratification of his past actions to be effective. See Advance d Disposal Servs. E., Inc. v. Nat ’ l L abor R elations B d

. , 820 F.3d 592, 605

- 06 (3d Cir. 2016) ; Consumer Fin. Prot. Bureau v. Gordon , 819 F.3d 1179, 1192 (9th Cir. 2016) (“ Cordray’ s August 2013 ratification, done after he was properly appointed as Director, resolves any Appointments Clause deficiencies. ”) . A review of these cases demonstrates why Director Cordray’s ratification saves the regulations from plaintiffs’ challenge

. In Le gi

- Tech , the Federal Election Commission brought an enforcement action against appellee, but while that litigation was pending, the D.C. Circuit ruled in a separate case that the
FEC’s makeup was unconstitutional. See 75 F.3d at 706. The FEC then properl y reconstituted

3 Defendants make no attempt to rebut the argument that Cordray’s recess appointment was unconstitutional ( see D efs .’ Cross

- Mot. for Summ. J. at 31

- 32 , 41 ), which is unsurprising in light of the Supreme Court’s decision in Noel Canning

. See 134 S. Ct. at 2578 (holding that three recess appointments made on the same day as that of Director Cordray were unconstitutional).8 itself and voted to continue with the enforcement action against Legi

- Tech. See id. Nonetheless, the district court dismissed the case, holding that the ratification was ineffective and that to move forward, the FEC would have to initiate an entirely new proceeding. See id. The D.C. Circuit reversed , holding that (1) the FEC’s improper makeup did not, in and of i tself, render its actions void; 4 (2) even if it was nothing more than a “rubberstamp,” the ratification adequately remedied
any prejudice to Legi

- Tech; and (3) forcing the FEC to start the administrative process over would be fruitless, because “ it is virtually inconceivable that its decisions would differ in any way the second time from that which occurred the first time. ” See i d. at 708

- 09. It is this last point that bears particular attention

— just as the re was “no significant change in the membership” of the properly reconstituted FEC, id. at 709, Director Cordray in effect replaced himself and then ratified his own prior acti ons . Thus, there is even less reason here to believe that forcing him to restart the notice

- and

- comment process

— or even to go through the motions of a nominal “reconsideration”

— would change the outcome in any way.
T he D.C. Circuit re affirmed L egi

- Tech ’ s holding and rationale just two years later i n Doolin

. See 139 F.3d at 2 1 4

. There, an agency’s Acting Director issued a N otice of C harges against a bank, after which the Acting Director’s successor found the charges warranted and entered a final cease and desist o rder. See 139 F.3d at 204

. On appeal, t he bank challenged the validity of the Acting Director’s appointment, arguing that he lacked authority to issue the

4 Plaintiffs mistakenly cite Legi

- Tech for the proposition that every action tak en by Director Cordray pre

- confirmation is “void ab initio

. ” ( S ee Pls.’ Reply Br. at 39 (quoting Legi

- Tech , 75 F.3d at 707).) However, that quote was taken from the Court of Appeals’ summary of Legi

Tech’s own arguments, which the Court then expressly rejected

. See Legi

- Tech , 75 F.3d at 707 (“Legi

- Tech argues that . . . [s]eparation of powers is a structural constitutional defect that makes the FEC’s entire investigation and decision to file suit void ab initio .”); id. at 708 (“Legi

- Tech’s contention that . . . separation of powers is a ‘structural’ constitutional defect that necessarily voids all prior decisions is overstated.”).9 N otice of C harges , and therefore the subsequent cease and desist order issued by his successor

was also invalid. See id. at 211

- 12. Relying on Legi

- Tech , the C ourt of Appeals held otherwise

— because the Acting Director’s successor was properly appointed, and because his

cease and desist order implicitly ratified the earlier Notice of Charges, the agency’s order was upheld. See id. at 213

- 14. (“ [R] edoing the administrative proceedings would bring about the
same outcome

— a cease and desist order against the Bank. To require an other Director sign a new notice

. . . would do nothing but give the Bank the benefit of delay . . . .”). The Court thus had no need to determine whether the Acting Director’s appointment was invalid, because even if it were, his successor’s ratification cured any potential defect. See id. at 214. The more recent D.C. Circuit decisions cited by plaintiffs do nothing to n egate th is analysis. It is true that Landry v. F DIC stated that Appointments Clause violations create a structural error that, even a bsent a showing of prejudice, make the invalid appointee’s actions “subject to automatic reversal.” See 204 F.3d 1125, 113 1 (D.C. Cir. 2000) . However, Landry did not involve ratification, and it distinguished Doolin on that basis, expre ssly recognizing that ratification can “cure [] the [Appointments Clause] error

. ” See id. at 1132. SW General similarly did not involve any attempt at ratification. See SW Gen., Inc. v. N at
. L abor R elations B d

. , 796 F.3d 67, 79 (D.C. Cir. 2015 ). And , Intercollegiate Broad casting System , which plaintiffs cite for the same “automatic reversal” point, is even m ore detrimental to their position

. See Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd. , 796 F.3d 111, 124 (D.C. Cir. 2015)

. There, the Court rejected an Appointments Clau se challenge because a properly constituted panel of administrative judges later ratified the challenged decision. See id. (“[A] court’ s holding that there has been an Appointments Clause violation does not mean that the violation cannot be remedied by a new, proper appointment. ”)

.10 Moreover, t he recent Third and Ninth Circuit decisions upholding agency ratification further support defendants’ position . In Advanced Disposal Services East , petitioner ch allenged the actions of an NLRB Regional Director who was appointed by an improperly constituted
NLRB. See 820 F.3d at 596

. B ecause the properly reconstituted NLRB had ratified the Regional Director’s appointment, and because the Regional Director had then ratified the actions challenged by petitioner, the court upheld those actions. See id. at 604

- 06 (relying primarily
upon Doolin , 139 F.3d at 213

- 14). The Ninth Circuit’s decision in Gordon is even more helpful
t o defendants, as it deemed effective the very ratification challenged here: “Cordray’ s August 2013 ratification, done after he was properly appointed as Director, resolves any Appointments Clause deficiencies. ” See 819 F.3d at 1192 ( citing Legi

- Tech , 75 F.3d at 707, 709, for its holding that “ a newly constituted FEC need not ‘ start at the beginning ’ and ‘ redo the statutorily required procedures in their entirety ’” ). Plaintiffs raise three arguments to disput e the effectiveness of Director Cordray’s ratification, none of which i s persuasive. First, they argue that ratification can only be effective if the ratifier was authorized to take the action both initially and at the time of ratification, and Cordray lacked that authority when the rules were initially promulgated. ( See Pls.’ Mot. for
Summ. J. at 33

- 3 5 .) This argument confuses the principal (the CFPB) and its agent (Cordray). If it were the agent who needed that authority at all times , then ratification could never cure a n Appointments Clause violation

— the very reason ratification is needed is that the appointee lacked authority to take the original action. See, e.g. , Legi

- Tech , 75 F.3d at 709 ( ratification was an “adequate remedy” where FEC initially acted without authority). Instead, it is the principal , the CFPB, who must at all times have the authority to take the challenged action. See Gordon , 819 F.3d at 1191 ( “ Under the Second Restatem ent, if the principal (here, CFPB) had authority to11 bring the action in question, then the subsequent August 2013 ratification of the decision to bring the case against Gordon is sufficient. ”). P laintiffs implicitly acknowledge that the CFPB, at all relev ant times, has had the authority to promulgate the challenged regulations . ( See Pls.’ Mot. for Summ. J. at 34 (discussing “the CFPB’s rulemaking authority” during Cord ray’s recess appointment); see also 12 U.S.C. § 5512 (establishing the CFPB’s rulemaking authority).) Accordingly, this argument fails. Second, plaintiffs assert that the ratification is ineffective because it did not involve “repromulgation of the regulations pursuant to the APA’s notice and comment rulemaking
p rocedures .” ( See Pls. ’ Reply Br. at 41

- 42.) In other words, they make the same argument that the Court of Appeals rejected in Legi

- Tech , Doolin , and Intercollegiate Broadcasting System

— that ratification can only be effective if it involves a repetition of the procedures i nitially followed. See Legi

- Tech , 75 F.3d at 708 ( rejecting argument that “ the FEC must repeat the entire administrative process ” in order for ratification to be effective ); Doolin , 139 F.3d at 214 ( agency not required to “redo[] the administrative proceedings” in order for ratification to be effective); Intercollegiate Broad. Sys. , 796 F.3d at 120 ( ratification effective even though reconstituted Board did not conduct a new evidentiary hearing). Plaintiffs suggest that these cases are distinguishab le because they do not involve a rulemaking ( see Pls.’ Reply Br. at 39) , but nothing in them implies that the particular form of administrative action at issue is dispositive. See Intercollegiate Broad. Sys. , 796 F.3d at 119 (rejecting attempt to distinguis h Legi

- Tech and Doolin “ on the ground that they involved administrative enforcement actions

. . . rather than the exercise of judicial authori ty in an adversarial proceeding”). Instead, regardless of th e type of administrative action , these decis ions have consistently declined to impose formalistic procedural requirement s before a ratification i s deemed to be effective.12 Nonetheless , plaintiffs insist that they remain prejudiced even after ratification, because they “never had an opportunity to present objections or comments to the proposed rules to a constitutionally appointed official.” ( See Pls.’ Reply Br. at 44.) This argument rings hollow when considering that plaintiffs do not allege that (a) they offered comments when the rules were first proposed, (b) they refrained from offering comments because they believed Cordray’s appointment unconstitutional, o r (c) they would offer comments if the rules were again subjected
t o notice and comment. But even assuming they would avail themselves of the “opportunity” this time around, they do not specify what the substance of those comments would be, or most crucially, give any reason to believe that the outcome would change if they were permitted to comment. Th at is the only relevant prejudice : the likelihood that the outcome was affected by the Appointments Clause violation. See , e.g. , Legi

- Tech , 75 F.3d at 708 (“Even were the Commission to re turn to square one . . . it is virtually inconceivable that its decisions would differ in any way the second time from that which occurred the first time.”). It is not enough that plaintiffs lost some hypothetical opportunity to participate in the adminis trative process. Finally, plaintiffs make the related argument that ratification was ineffective because Director Cordray failed to meaningfully reconsider the merits of the challenged rules through a de novo deliberative process. ( See Pls.’ Reply Br. at 40. ) T here is some support for this argument, particularly in Doolin and Advanced Disposal Services East , but the Court concludes that such a “ de novo reconsideration” requirement is both unworkable and unwarranted, at least where, as here, the agency decision

- maker is ratifying his own actions. Instead, D.C. Circuit ’ s earlier opinion in Legi

- Tech makes clear that “the better course is to take the [ratification] at f ace value and treat it as an adequate remedy,” even though it may well be nothing more than a rubberstamp. See 75 F.3d at 709

.13 The reason for this is well

- established: “ it generally is not the function of the court to probe the mental processes of an agency decisionmaker. ” See Hercules, Inc. v. Envtl. Prot. Agency , 598 F.2d 91, 123 (D.C. Cir. 1978) (quoting United States v. Morgan , 313 U.S. 409, 422 (1941 ) ) (internal quotations omitted ) ; see also Legi

- Tech , 75 F.3d at 709 (“[W] e cannot, as Legi

– Tech argues, examine the internal deliberations of the Commission, at least absent a contention that one or more of the Commissioners were actually biased. ”). This is especially true where Director Cordray is ratifying his own actions

— the C ourt would effectively be forcing him to repeat his own analysis in a deliberation that is only nominally “ de novo .” See Legi

- Tech , 75 F.3d at 709 ( a new p roceeding by a similar FEC panel,

“ given human nature, promises no more detached and ‘pure’ consideration of the merits of the case than the Commission's ratification decision reflected”). As discussed supra , an Appointments Clause violation creates preju dice where it likely affected a challenged decision, because a different, properly appointed decision

- maker might have taken a different approach

. See id. at 708

- 09 ( assuming that the presence of non

- voting FEC members “impacted the [challenged enforcemen t] action” against Legi

- Tech). T herefore, where the very same decision

maker ratifies his own challenged decision, a ny chance of prejudice is effectively wiped out

. Cf. Andrade v. Regnery , 824 F.2d 1253, 1257 (D.C. Cir. 1987) (no Appointments Clause injury where a properly appointed administrator implemented a policy developed by his improperly appointed predecessor). In each of the ratification cases decided by the Court of Appeals, the ratifi er was not the same as the original decision

- maker. See Legi

- Tech , 75 F.3d at 706 (ratifying FEC panel excluded two non

- voting ex officio members from the original panel); Doolin , 139 F.3d at 204 ( new director ratified Notice of Charges issued by prior ac ting director); Intercollegiate Broad. Sys. , 796 F.3d at 11 8

- 1 9 ( Copyright Royalty Board determination ratified14 by a Board made up of entirely new members). Thus, even if those opinions could be stretched to impose a “ de novo deliberation” requirement, this case is distinguishable for that reason alone. As discussed, however, Legi

- Tech precludes s uch a reading , a nd a re - d eliberation requirement would be in consistent with the prohibition on courts probing agency decision

- making processes.

CONCLUSION For the reasons stated above, the Court will grant in part d efendants’ cr oss - motion for summary judgment and deny in part plaintiffs’ motion for summary judgment

. It will hold in abeyance any ruling on plaintiffs’ separation

- of

- powers chall enge pending the Court of Appeals’ ruling in PHH Corp. v. Consumer Financial Protection Bureau , Case No. 15

- 1177 (argued Apr. 12, 2016). A separate Order accompanies this Memorandum Opinion.

/s/ **Ellen Segal Huvelle** ELLEN SEGAL HUVELLE United States District Judge
DATE: July 1 2 , 201 6