For Plaintiffs-Appellees: Lawrence C. Weiner, Wilentz, Goldman & Spitzer, P.A., Woodbridge, NJ.
For Defendants-Appellants: Robert Hermann, DelBello Donnellan Weingarten Wise & Wiederkehr, LLP, White Plains, NY.
For Amicus Curiae Real Estate Board of New York, Inc.: Richard H. Dolan, Schlam Stone & Dolan LLP, New York, NY.
For Amicus Curiae Consumer Financial Protection Bureau: Nandan M. Joshi, Meredith Fuchs, To-Quyen Truong, David Gossett, Consumer Financial Protection Bureau, Washington, DC.
PRESENT: ROBERT A. KATZMANN, Chief Judge, DENNIS JACOBS, JOSÉ A. CABRANES, ROSEMARY S. POOLER, REENA RAGGI, RICHARD C. WESLEY, PETER W. HALL, DEBRA ANN LIVINGSTON, GERARD E. LYNCH, DENNY CHIN, RAYMOND J. LOHIER, JR., SUSAN L. CARNEY, CHRISTOPHER F. DRONEY, Circuit Judges. DENNIS JACOBS, Circuit Judge, joined by RICHARD C. WESLEY, Circuit Judge, dissenting from the denial of in banc review.
Following disposition of this appeal on May 6, 2013, an active judge of the Court requested a poll on whether to rehear the case en banc. A poll having been conducted and there being no majority favoring en banc review, rehearing en banc is hereby DENIED.
Dennis Jacobs, Circuit Judge, joined by Richard C. Wesley, Circuit Judge, dissents by opinion from the denial of rehearing en banc.
DENNIS JACOBS, Circuit Judge, joined by RICHARD C. WESLEY, Circuit Judge, dissenting from the denial of in banc review:
The statutory word " lot" in the Interstate Land Sales Full Disclosure Act (" Land Sales Act" ) is defined by regulation to mean " exclusive use of a specific portion of the land." 12 C.F.R. § 1010.1(b). The Department of Housing and Urban Development (" HUD" ), which promulgated the regulation, and the Consumer Financial Protection Bureau (" CFPB" ), HUD's successor in this respect, claim Auer deference in aid of their project to transmute the regulation's wording to mean " any interest in real estate," or " realty." See Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997). In that way, HUD has created its jurisdiction to regulate the sale of individual high-rise condominium apartments, which obviously share the " use of . . . land" rather than " exclusive[ly] use" it. 12 C.F.R. § 1010.1(b).
I would sit in banc to consider whether the agency's interpretation of its own regulation is reasonable and, since I think it is not, I would withhold Auer deference. But whether or not the agency's reading of its own regulation is reasonable, the majority opinion rests upon Auer deference in a way that illustrates how the doctrine can conflate (i) an agency's explanation of its text in light of its expertise with (ii) the agency's expansion of its power to suit its ambition.
The majority opinion neatly sets out " [t]he only merits dispute on issue in this appeal" : " whether a single floor condominium in a multi-story building 'includes the right to the exclusive use of a specific portion of the land ,' 12 C.F.R. § 1010.1(b) (emphasis supplied)," and thereby qualifies as a " lot" ...