By Thomas G. Wolfe, J.D.
Challenging President Donald Trump’s appointment of Mick Mulvaney as “Acting Director” of the Consumer Financial Protection Bureau, CFPB Deputy Director Leandra English filed her reply brief with the U.S. Court of Appeals for the District of Columbia Circuit on March 6, 2018. Addressing Mulvaney’s recent brief, which invokes the Federal Vacancies Reform Act (FVRA) in support of his presidential appointment, English argues that the Dodd-Frank Act’s succession plan for the CFPB’s leadership position is “exclusive and mandatory.” Further, English contends that Mulvaney’s appointment as acting director is “separately foreclosed” by the Dodd-Frank Act requirement of Bureau independence, and that equitable factors weigh in her favor to obtain the injunctive relief she requests.
In January 2018, English filed her initial brief with the D.C. Circuit (English v. Trump, Docket No. 18-5007), requesting a preliminary injunction in support of her claim to be recognized as acting director of the CFPB. English has maintained that the Dodd-Frank Act, not the FVRA, controls the position of acting director at the Bureau when a CFPB director resigns.
In response, Mulvaney filed his brief in February 2018, and asked the federal appellate court to affirm the lower court’s ruling denying English a preliminary injunction concerning Mulvaney’s appointment as acting director of the CFPB. Among other things, Mulvaney has contended that the comprehensive scheme provided by the FVRA applies at any executive agency and is, by default, the exclusive means to select an acting officer. According to Mulvaney, the Dodd-Frank Act’s deputy director provision relied upon by English does not displace the FVRA. Mulvaney also has contended that significant practical consequences and constitutional concerns counter English’s interpretation of the Dodd-Frank Act.
Reply brief highlights. The CFPB Deputy Director’s reply brief contests Mulvaney’s appointment as acting director on three fronts.
First, English argues that the Dodd-Frank Act’s succession plan for Bureau leadership is “exclusive and mandatory.” Section 5491of the Dodd-Frank Act provides that the CFPB’s deputy director “shall … serve as acting Director” in the event of a vacancy. According to English, the statutory provision is mandatory, not permissive, and displaces the FVRA through operation of the canon that “a more specific statute will be given precedence over a more general one.” Similarly, English argues that the Dodd-Frank Act provision’s displacement of the FVRA is “confirmed by a related interpretive principle: in the event of an apparent conflict between two laws, the later of the two enactments prevails over the earlier.”
Moreover, English’s brief states that Congress was aware of the existing FVRA process when it created the specific CFPB succession plan, and Congress “sought to achieve a particular goal when it enacted §5491(b)(5)(B): protecting the CFPB’s independence from direct presidential control even when the Senate-confirmed Director was not at the helm.”
Second, English argues that the presidential appointment of Mulvaney is “separately foreclosed by Dodd-Frank’s requirement of independence.” According to English, the Dodd-Frank Act’s establishment of the CFPB as an “independent bureau” under section 5491(a) is not “mere window dressing.” In addition, because Mulvaney was already Director of the Office of Management and Budget at the White House when President Trump appointed him as “Acting Director” of the CFPB, it is “no exaggeration to say that this appointment transformed the CFPB from an ‘independent bureau’ into an executive department of the White House,” the brief asserts.
Third, the reply brief argues that, in connection with the question of whether English is likely to succeed on the merits of her request for a preliminary injunction, equitable factors weigh in her favor. Noting that “this is no everyday employment dispute,” the brief emphasizes that the core issue in the case is “who gets to claim the mantle of ‘the government’.” Underscoring that English is “asking this Court to decide who is lawfully in charge of an independent federal agency,” the reply brief points to case law for the proposition that government officials may invoke “the deprivation of their statutory right to function” as an “injury worthy of preliminary relief.”
Oral argument. Presently, the D.C. Circuit has scheduled oral argument for April 12, 2018, in the expedited appeal.
For more information about court decisions affecting the financial services industry, subscribe to the Banking and Finance Law Daily.
