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From Banking and Finance Law Daily, December 21, 2017

CFPB Deputy Director replies to Trump designee’s opposition to injunction

By J. Preston Carter, J.D., LL.M.

Consumer Financial Protection Bureau Deputy Director Leandra English has replied to President Donald Trump’s designee Mick Mulvaney’s opposition to her motion to prevent Mulvaney from becoming acting director, restating her argument that the Dodd-Frank Act’s CFPB succession provision governs over the Federal Vacancies Reform Act. Mulvaney argued that English failed to demonstrate a substantial likelihood that she would prevail on her claim, and had not established that, absent a preliminary injunction, she would be irreparably harmed (see Banking and Finance Law DailyDec. 19, 2017).

Likelihood of success. English’s reply argues that the Dodd-Frank Act supplies "a clear answer" to the question on which the merits of the case turn: What happens when the CFPB’s Director resigns, or is otherwise unavailable to perform his duties, and the Senate has not yet confirmed a replacement? The answer is that the agency’s Deputy Director "shall... serve as the acting Director in the absence or unavailability of the Director" (12 U.S.C. § 5491(b)(5)(B)).

English pointed to language of the FVRA, on which President Trump relies, as stating that when a Senate-confirmed office of an executive agency goes vacant, the President "may direct" certain people to serve in an acting capacity (5 U.S.C. § 3345(a)). The difference between the two is as simple as "shall" versus "may," English contends. Picking between these two provisions, she argues, is thus a matter of statutory construction. The most relevant canon of construction—and the one that the defendants have no good response to—is the rule "that the specific governs the general."

Even if Dodd-Frank’s succession statute were interpreted as being permissive rather than mandatory, English says, the President’s selection of Mulvaney would still be impermissible because: (1) It flouts Congress’s design in creating the CFPB as an "independent bureau;" and (2) The FVRA, by its terms, does not apply to the appointment of "any member" of a multi-member board that "governs an independent establishment or Government corporation," and the CFPB Director, as an automatic Federal Deposit Insurance Corporation board member, is such a member.

Irreparable injury. English says the case requires prompt resolution. "The parties, the Bureau’s employees, and the many businesses and consumers subject to the Bureau’s authority all need clarity about who is properly in charge." Her reply states that she has suffered an irreparable injury—the usurpation of her position at the head of a federal agency—that will continue every day that Mulvaney claims to hold the office of acting director. English adds that the injunction would not prejudice the President’s ability to appoint Mulvaney or anyone else as Director, pursuant to the Article II nominations process with the advice and consent of the Senate, after the court rules on the merits of her claim.

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