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English to seek preliminary injunction in CFPB Acting Director dispute; Dec. 5 scheduling conference ordered

Leandra English has filed a Proposed Schedule confirming that she plans to file a motion for a preliminary injunction in her action for declaratory and injunctive relief filed in D.C. federal district court seeking a declaration that she, rather than Mick Mulvaney, has the legal right to serve as CFPB Acting Director.

Last Tuesday, Judge Timothy Kelly denied Ms. English’s motion for a temporary restraining order (TRO) as well as her request that Judge Kelly treat the denial of her TRO motion as the denial of a motion for a preliminary injunction.  (Click here for the transcript of Judge Kelly’s oral ruling on the TRO motion.)  Following the TRO hearing, Judge Kelly ordered the parties to “meet and confer, and submit, by December 1, 2017, a joint proposed schedule for briefing the merits and/or for briefing a preliminary injunction, should one be filed by Plaintiff by then” and submit separate proposed schedules if no agreement on a joint proposed schedule was reached.  Since no agreement was reached, the parties filed separate proposed schedules last Friday, and Judge Kelly entered an order today requiring the parties to appear for a scheduling conference tomorrow, December 5.

In its Proposed Schedule, the DOJ states that the parties met and conferred last Friday afternoon “when counsel for Plaintiff advised counsel for Defendants for the first time that Plaintiff intends to file a motion for preliminary injunction and indicated an intent to file their motion on or about December 5.”  According to the DOJ, under the court’s Local Rules, its response to a preliminary injunction motion filed on December 5 would be due on December 12 and, under the Federal Rules of Civil Procedure, its response to Ms. English’s complaint would be due on January 30, 2018.  In what it describes as an effort “to meet Plaintiff half way,” the DOJ has proposed that briefing on the preliminary injunction motion and its anticipated motion to dismiss the complaint be consolidated and that the DOJ file its combined brief approximately 26 days before its response to the complaint would otherwise be due.

The deadlines proposed by DOJ are as follows:

  • December 5, 2017. Plaintiff’s motion for preliminary injunction and supporting brief.
  • January 4, 2018. Defendants’ motion to dismiss and combined brief in support of Defendants’ motion to dismiss and in opposition to Plaintiff’s preliminary injunction motion.
  • January 18, 2018. Plaintiff’s combined brief in opposition to Defendants’ motion to dismiss and reply in support of Plaintiff’s preliminary injunction motion.
  • February 1, 2018. Defendants’ reply in support of motion to dismiss.
  • Amici briefs to be filed within seven days of opening brief of the party they support.

In her Proposed Schedule, Ms. English argues that the DOJ’s plan to consolidate briefing on her preliminary injunction motion and its motion to dismiss “would defeat the very purpose of seeking preliminary relief.  It would also thwart prompt appellate review.” (emphasis included).  Ms. English asserts that the DOJ is attempting “to give itself a full month [to oppose her preliminary injunction motion]—four times longer than the Local Rules contemplate.”  She claims that a “full week [to respond to her motion] is more than enough time for the government to recycle and refine the arguments it has already made.  Any additional time would only prolong the proceedings in this Court and needlessly delay the issuance of an order that may be appealed.”

The deadlines proposed by Ms. English are as follows:

  • December 5, 2017. Plaintiff’s motion for preliminary injunction.
  • December 8, 2017. Amicus briefs in support of plaintiff.
  • December 12, 2017. Defendants’ opposition to the motion for preliminary injunction.
  • December 15, 2017. Amicus briefs in support of defendants.
  • If Defendants file a motion to dismiss, briefing should proceed under the ordinary schedule provided by Local Rules
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Kaplinksy, partner, New York, finance
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Alan S. Kaplinsky is Co-Practice Leader of the firm's Consumer Financial Services Group, which has more than 115 lawyers. Mr. Kaplinsky devotes his practice exclusively to counseling financial institutions on bank regulatory and transactional matters, particularly consumer financial services law, and defending financial institutions that have been sued by consumers in individual and class action lawsuits and by government enforcement agencies. Visit Mr. Kaplinsky's profile in Wikipedia.

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