English Appeals Denied Injunction to DC Circuit in CFPB Leadership Row

Consumer Financial Protection Bureau (CFPB) Deputy Director Leandra English filed an appeal to the D.C. Circuit Court disputing the denial of an injunction that would have precluded Interim CFPB Director Mick Mulvaney from managing the embattled agency. She is asking for an expedited review of the case.

English’s appeal comes days after a federal district court judge denied her request for a preliminary injunction that would install her as leader of the Bureau. In his opinion, the federal judge found that English had failed to “demonstrate a likelihood of success on the merits or shown that she will suffer irreparable injury.”

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 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.

Now the dispute will come before the D.C. Circuit Court. A panel of D.C. circuit judges found barely a year ago that the structure of the CFPB, where authority is vested in a single director unaccountable to Congress or the President, is unconstitutional. That decision was later vacated, and the full cadre of judges at the D.C. Circuit is now considering the merits of the agency’s structure. Some experts believe that English’s case may become intertwined now with the constitutionality review of the agency, with arguments made in each case ultimately influencing the outcome of the other.