DC Circuit Hears Oral Arguments in CFPB Leadership Battle

The D.C. Circuit Court recently heard oral arguments on Leandra English’s appeal of a lower court decision that retained Mick Mulaney as the acting director of the Consumer Financial Protection Bureau (CFPB). CFPB Deputy Director English is disputing the denial of an injunction request that would have removed Mulvaney from the consumer agency and installed her as the temporary head.

At issue is whether the provisions of the Dodd-Frank Act authorize the deputy director to lead the Bureau in the absence of the director or does the Federal Vacancies Reform Act allows the President to appoint a temporary caretaker. The lower court judge found that the two statutes could be read harmoniously. Dodd-Frank allows the deputy director to ascend to the temporary leadership role, but that does not preclude the President from naming an interim director to supercede the Dodd-Frank authorization.

While the circuit judges appeared hesitant to displace a Presidentially-appointed director, they did express concerns about Mulvaney’s dual role as Acting CFPB Director and Director of the Office of Management and Budget. Mulvaney’s double duty with the federal government was also the subject last week of Congressional questioning at a hearing on the CFPB’s activities.

Regardless of the outcome of English’s appeal, the acting director will only manage the agency for a short time until President Trump appoints a permanent director confirmed by the Senate. A few names have been tossed around in the months since the last director resigned, but the President has yet to indicate whom he will nominate as the second permanent director of the consumer agency.