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Battle Over CFPB’s Future Comes to a Head

New-Development-IconBy Sean D. Nelson

Leandra English, the Deputy Director of the Consumer Financial Protection Bureau (“CFPB” or “Bureau”), filed a lawsuit in the U.S. District Court for the District of Columbia last night, November 26, seeking an emergency temporary restraining order against President Trump and John Michael Mulvaney, asserting that she is properly the new acting Director of the CFPB following former Director Richard Cordray’s resignation. 

On Friday, November 24, Cordray announced his resignation, and appointed English as acting Director.  The same day, however, President Trump appointed Mulvaney, currently the Director of the Office of Management and Budget (“OMB”), and a harsh critic of the CFPB, as acting Director. 

English’s complaint makes two primary arguments: (1) that the Dodd-Frank Act takes precedence over the Federal Vacancies Reform Act, such that the Deputy Director serves as acting Director in the absence of a Director of the CFPB; and (2) that Mulvaney’s appointment would be contrary to the CFPB’s status as an independent agency, since Mulvaney is already directly responsible to the President as head of OMB.  As reported by several news outlets, both Mulvaney and English have sent staff-wide emails announcing themselves as acting Director.  The CFPB’s General Counsel, who was appointed by Cordray, released an opinion on Sunday that Mulvaney is properly the acting Director under the Vacancies Reform Act. 

The current dispute continues the increasingly politicized battle over the CFPB, and the Court’s decision on the Bureau’s next leader is likely to have a profound effect on its future.