By Kevin Daley
Leandra English, the deputy director of the Consumer Financial Protection Bureau (CFPB), sued President Donald Trump and White House Budget Director Mick Mulvaney late Sunday to secure control of the agency, claiming she is the lawful interim successor to former CFPB Director Richard Cordray.
Supreme Court Reporter
Daily Caller News Foundation on November 26, 2017
Cordray’s resignation last week prompted a crisis at the CFPB, which in short order evolved into a proxy conflict over the power of the administrative state, the sprawling network of agencies that enforce federal laws and promulgate their own regulations.
The law which charted the CFPB — the 2010 Dodd-Frank Act — contains a succession provision allowing the agency’s deputy director to assume the directorship if the post is vacant. Cordray designated English as his interim successor before resigning, citing that provision of federal law. The Trump administration countered that the President has power to name an acting director under the Federal Vacancies Reform Act (FVRA), and tapped Mulvaney to lead the agency until a permanent director is confirmed.
Mulvaney’s appointment prompted a lawsuit from English, who claims she is the rightful acting director. The suit was filed at the U.S. District Court in Washington, D.C. She is represented by Deepak Gupta, a litigator associated with several anti-Trump legal causes.
The talented and hard-working CFPB staff stand up for consumers every day (English said in a statement). As acting director, I am filing this lawsuit to stand up for the CFPB.
English’s lawsuit argues the plain text of the Dodd-Frank Act dictates that she is the lawful acting director. The law provides that the deputy director shall “serve as acting director in the absence or unavailability of the director.”
This language, she says, was the result of a deliberative legislative process in which Congress decided to depart from the default FVRA succession procedure, which is often used to temporarily fill a federal post pending Senate confirmation of an official successor. While an original draft of Dodd-Frank contained language providing for an acting director’s appointment under the FVRA, the final version of the legislation designates the deputy director as the interim leader. This indicates, she argues, that Congress decided to foreclose the Vacancies Act procedure for the CFPB.
The Office of Legal Counsel, a division of the Department of Justice which advises the President and other executive branch officers on the scope of executive power, produced an opinion siding with Trump in the dispute. The opinion explains that Dodd-Frank does not displace the President’s authority under the FVRA, because Congress has never said that the FVRA is supplanted when an agency has its own statutory succession procedure. An FVRA appointment, they say, is always one of several options available to the President, unless a law expressly forbids the executive from temporarily filling a post under the Vacancies Act.
Other legal scholars have argued there is a meaningful distinction between “absence or unavailability” and “vacant,” suggesting the Dodd-Frank provision may not apply when the director resigns or is fired. In a separate 1978 opinion concerning the distinction between “absence” and “vacancy,” OLC explained:
[t]he term ‘absence’ normally connotes a failure to be present that is temporary, in contradistinction to the the term ‘vacancy’ caused, for example, by death of the incumbent or his resignation.
The OLC opinion respecting Mulvaney’s appointment, however, argues a resignation is captured by the term “unavailability.”
The agency’s general counsel, Mary McLeod, issued a memo to CFPB leadership advising that officials should proceed on the assumption that Mulvaney is the rightful head of the agency.
As general counsel for the bureau, it is my legal opinion that the president possesses the authority to designate an acting director for the bureau (McLeod wrote in a Nov. 25 memo obtained by Politico). I advise all bureau personnel to act consistently with the understanding that Director Mulvaney is the acting director of the CFPB.
The Daily Caller News Foundation reported Sunday that English is an acolyte of Democratic Sen. Elizabeth Warren of Massachusetts, who played a decisive role in establishing the agency during the Obama administration.