The Department of Justice has filed its opposition brief in Leandra English’s appeal of the district court’s denial of her preliminary injunction motion in her action seeking a declaration that she is the lawful Acting CFPB Director.  Ms. English filed her opening brief with the D.C. Circuit on January 30.

The DOJ relies primarily on the same argument it made to the district court in opposing Ms. English’s preliminary injunction motion–namely, that the provision in the Consumer Financial Protection Act that provides that the CFPB Deputy Director “shall…serve as acting Director in the absence or unavailability of the Director” does not displace the President’s authority under the  Federal Vacancies Reform Act to appoint an Acting Director.  It also argues that “[n]othing in either the text or structure of the Dodd-Frank Act or the FVRA supports English’s assertion that there should be an unwritten exception precluding the President from choosing a particular Senate-confirmed official—the OMB Director—from serving in a vacancy to which the FVRA applies.”

As it did in opposition to Ms. English’s preliminary injunction motion, the DOJ asserts that its arguments demonstrate that Ms. English is unlikely to succeed on the merits of her claim and that she has not satisfied the other requirements for injunctive relief (i.e. a likelihood of irreparable harm absent preliminary relief and that the balance of harms and public interest weigh in favor of an injunction.)

Ms. English must reply to the DOJ’s brief by March 6.  Oral argument is scheduled for April 12.