279 F.Supp.3d 307
D.D.C.2018Background
- CFPB Director Richard Cordray resigned effective Nov. 24, 2017; that day he appointed Leandra English Deputy Director effective at noon and announced she would serve as acting Director upon his departure.
- President Trump designated Mick Mulvaney (OMB Director) as acting CFPB Director under the Federal Vacancies Reform Act (FVRA) effective Nov. 25, 2017; OLC and CFPB General Counsel advised the designation was lawful.
- English sued seeking declaratory relief and a preliminary injunction to bar Mulvaney and require recognition of her as acting Director under the Dodd-Frank Act’s Deputy Director provision.
- The legal dispute centers on statutory interpretation: whether Dodd-Frank’s Deputy Director provision displaces the FVRA (5 U.S.C. § 3345 et seq.), and if not, whether Mulvaney is a permissible FVRA selection.
- The Court denied English’s request for a preliminary injunction, finding she was unlikely to succeed on the merits, failed to show irreparable harm, and that the balance of equities and public interest favored defendants.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the FVRA applies to the CFPB Director vacancy | English: Dodd-Frank’s Deputy Director "shall...serve as acting Director" displaces FVRA for CFPB vacancies | Defendants: FVRA applies because CFPB is an Executive agency and FVRA’s text covers PAS offices | FVRA applies to CFPB; by its terms the FVRA authorizes presidential designation |
| Whether Dodd-Frank’s Deputy Director provision expressly displaces the FVRA | English: "shall" is mandatory and, combined with Dodd-Frank’s express-statement clause, excludes FVRA | Defendants: statutes can be harmonized; FVRA’s exclusivity provision leaves room for agency-specific provisions; no clear, express displacement | Court: statutes harmonizable; Dodd-Frank does not expressly displace FVRA; English unlikely to show implied repeal or express displacement |
| Whether Mulvaney (OMB Director) is disqualified from serving as acting CFPB Director | English: Mulvaney is a White House official and CFPB is an "independent" bureau, so Dodd-Frank forbids such a dual role | Defendants: Dodd-Frank contains no textual bar to a PAS officer (like OMB Director) serving as acting CFPB Director; FVRA limits pool to confirmed PAS officers which preserves some Senate role | Court: Nothing in Dodd-Frank disqualifies Mulvaney; Mulvaney validly designated under FVRA §3345(a)(2) |
| Whether preliminary injunction prerequisites are met | English: she will be irreparably harmed and likely to succeed on the merits | Defendants: English unlikely to prevail; no irreparable harm shown; public interest favors clarity and continuity | Court: English failed to show likelihood of success and irreparable harm; injunction denied |
Key Cases Cited
- Loving v. IRS, 742 F.3d 1013 (D.C. Cir. 2014) (statutory text governs even if other policy outcomes might be preferable)
- Burrage v. United States, 134 S. Ct. 881 (2014) (statutory interpretation precedent cited for need to apply text)
- NLRB v. SW Gen., Inc., 137 S. Ct. 929 (2017) (discussing FVRA background and acting-officer statutes)
- Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008) (standards for preliminary injunctions)
- Hooks v. Kitsap Tenant Support Servs., Inc., 816 F.3d 550 (9th Cir. 2016) (agency-specific statute and FVRA can coexist; President may elect between alternatives)
- Free Enterprise Fund v. PCAOB, 561 U.S. 477 (2010) (separation-of-powers and executive removal/appointment context)
- Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644 (2007) (presumption against implied repeals)
- PHH Corp. v. CFPB, 839 F.3d 1 (D.C. Cir. 2016) (context on CFPB structure and powers)