If a party challenges the “constitutionality of any Act of Congress affecting the public interest,” then “the court shall certify such fact to the Attorney General, and shall permit the United States to intervene for presentation of evidence.” 28 U.S.C. §2403. In accordance with §2403, the Federal Circuit is certifying notice of these constitutional challenges to the U.S. Attorney General.The Government responded to certain certification notices by stating it intended to seek rehearing en banc in Arthrex.

In its order entered last week granting Ocwen’s motion to invite the AG to participate, the court stated that “[i]n light of [Ocwen’s] constitutional concerns, the Court finds it appropriate and prudent to ask the Attorney General of the United States to share with the Court its views on the issues raised in [Ocwen’s motion and the CFPB’s response].” The order provides that “[p]ursuant to 28 U.S.C. section 2403 and Federal Rule of Civil Procedure 5.1, the court certifies to the [AG] that a statute has been questioned and permits the United States to intervene.” (Section 2403 requires district courts to notify the AG of a constitutional challenge in which the United States is not a party.)

The Federal Circuit had certified Genentech’s constitutional challenges to the U.S. Attorney General and directed the Attorney General to inform the Court whether the United States intended to intervene in the appeals. In unopposed motions to intervene, (hereand here), the Attorney General moved to “exercise its statutory right to intervene in this appeal under 28 U.S.C. § 2403(a) to defend the constitutionality of the Act of Congress that appellant challenges.” The Federal Circuit granted the motions (hereand here) and ordered the appellee and the United States to provide responsive briefs by November 5, 2018.