Last week, the U.S. Court of Appeals for the D.C. Circuit heard oral argument in English v. Trump, a case involving a challenge to President Trump’s appointment of Mick Mulvaney as the acting director of the Consumer Financial Protection Bureau (CFPB). U.S. PIRG, along with nine other consumer advocacy groups, has filed two amicus briefs in the case (one in the trial court and one in the appellate court) in support of the plaintiff, Leandra English, who is the CFPB’s deputy director and, we believe, the rightful acting director of the agency.
In our most recently filed amicus brief, we show how the public interest would be served by a court order declaring that English is the rightful acting director and prohibiting Mulvaney from serving as acting director. Prior to Mulvaney’s taking over of the agency, the CFPB vigorously pursued the public interest. For example, through its supervision and enforcement actions alone, the CFPB obtained nearly $12 billion in relief for more than 29 million consumers who had been victimized by unlawful activity in the market for consumer financial products and services. However, since Mulvaney was illegally installed as the acting director, the CFPB has completely ignored its statutory mission and lost the independence that Congress very purposefully gave the agency.
English went to court to enforce her statutory right to temporary lead the agency after President Trump illegally appointed Mulvaney to the job of acting director. The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010—the law that created the CFPB—clearly commands that the agency’s deputy director (English) “shall serve . . . as acting [d]irector in the absence or unavailability of the [d]irector.” All parties agree that Richard Cordray, the CFPB’s previous director, became “unavailable” when he resigned before the conclusion of his five-year term in November of last year. Thus, under the Dodd-Frank Act, English automatically became the CFPB’s acting director the moment that Cordray resigned.
But, claiming authority under the Federal Vacancies Reform Act of 1998, President Trump appointed Mulvaney to serve part-time as the CFPB’s acting director while still serving full-time as the director of the White House’s Office of Management and Budget. The problem with Mulvaney’s purported appointment under the FVRA is that the specific provision of the later enacted Dodd-Frank Act displaces the more general provision of the previously enacted FVRA. In other words, in the Dodd-Frank Act, Congress provided for an exclusive and mandatory succession plan for when the director of the CFPB resigns. (For a full discussion of English’s persuasive legal arguments, see her opening brief and reply brief submitted to the D.C. Circuit.)
However, there’s an additional problem with President Trump’s appointment of Mulvaney as the CFPB’s acting director, namely, that Mulvaney cannot lead the CFPB as an independent agency because he serves at the pleasure of President Trump as OMB director. When creating the new agency in the wake of the 2008 financial crash, Congress purposely set up the CFPB as an “independent bureau” and provided that the director could only be removed by the president for “inefficiency, neglect or duty, or malfeasance in office.” Moreover, Congress included provisions in the Dodd-Frank Act that shielded the CFPB specifically from OMB oversight. As pointed out by one of the judges during last week’s oral argument, it’s absurd to think that Mulvaney could take an action as acting CFPB director that would be at odds with his thinking as OMB director. Yet, Congress specifically contemplated potential conflicts between the CFPB and OMB and expressly gave the CFPB the independence to do what it thought was right.
A decision is expected in the coming weeks, and we hope that the D.C. Circuit reaches the right conclusion and decides in favor of English.