Court: Trump pick Mick Mulvaney can remain as Acting Director of CFPB

Court: Trump pick Mick Mulvaney can remain as Acting Director of CFPB

Donald Trump secured a victory in the federal District Court in D.C., as a Judge just ruled that Mick Mulvaney can continue as Acting Director of the Consumer Financial Protection Bureau (CFPB). The Court rejected the claims of Leandra English, appointed by Richard Cordray just as he was leaving CFPB, that she should remain as Acting Director pending nomination and confirmation of a replacement Director.

The Opinion and Order (pdf.) is embedded at the bottom of this post.

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For background, see our prior posts:

• Elizabeth Warren furious over Trump’s CFPB appointment
• General counsel for the CFPB disagrees with Elizabeth Warren on agency head replacement 
• Court Sides with Trump in Bitter Fight with CFPB and Elizabeth Warren

The Court summarized the background and its ruling in the opening paragraphs of the Opinion and Order:

This case concerns whether the President is authorized to name an acting Director of the Consumer Financial Protection Bureau (“CFPB”) or whether his choice must yield to the ascension of the Deputy Director, who was installed in that office by the outgoing Director in the hours before he resigned. The CFPB is a government agency created after the financial crisis of 2007-2008 by the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act” or “Dodd-Frank”), Pub. L. No. 111-203, 124 Stat. 1376 (2010). The CFPB’s previous Director, Richard Cordray, resigned effective at midnight on the day after Thanksgiving: Friday, November 24, 2017. That same day, he named Plaintiff Leandra English the CFPB’s Deputy Director, in an apparent attempt to select his successor. But the President, Defendant Donald John Trump, made his own appointment that day, announcing that Defendant John Michael Mulvaney, who serves as the Director of the Office of Management and Budget (“OMB”), would also serve as acting Director of the CFPB upon Cordray’s resignation.

English claims that, by operation of the Dodd-Frank Act, she—and only she—is now entitled to be the acting Director of the CFPB. She seeks a preliminary injunction that would restrain the President from appointing an acting Director other than her, require the President to withdraw Mulvaney’s appointment, and prohibit Mulvaney from serving as acting Director.

Defendants, joined by the CFPB’s General Counsel, argue that the President’s appointment of Mulvaney is valid under a separate statute, the Federal Vacancies Reform Act of 1998 (the “FVRA”), 5 U.S.C. § 3345 et seq., which they contend provides the President an available method to fill Executive Branch vacancies such as this one. They urge the Court to deny the injunction.

The merits of this case turn on a question of statutory interpretation, where “[t]he ‘role of this Court is to apply the statute[s] as [they are] written—even if . . . some other approach might accord with good policy.’” Loving v. IRS, 742 F.3d 1013, 1022 (D.C. Cir. 2014) (quoting Burrage v. United States, 134 S. Ct. 881, 892 (2014)). Thus, the particular policies or priorities that English or Mulvaney might pursue as the CFPB’s acting Director are irrelevant to the Court’s analysis. For the reasons explained below, including that English has not demonstrated a likelihood of success on the merits or shown that she will suffer irreparable injury absent injunctive relief, her request for a preliminary injunction is DENIED.

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English v. Trump – Opinion and Order Permitting Mulvaney to Remain as Acting Director of CFPB by Legal Insurrection on Scribd

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