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Five amicus briefs filed in support of English appeal

Five amicus briefs have been filed in the U.S. Court of Appeals for the D.C. Circuit in support of Leandra English.  Ms. English has appealed the district court’s denial of her preliminary injunction motion in her action seeking a declaration that she, rather than Mick Mulvaney, has the legal right to serve as CFPB Acting Director.

In her opening appeal brief, Ms. English relies primarily on the argument that the provision of the Federal Vacancies Reform Act (FVRA) that authorizes the President to temporarily fill a vacancy in an executive agency position requiring confirmation is superseded by the provision in the Consumer Financial Protection Act (CFPA) that provides the CFPB Deputy Director “shall…serve as acting Director in the absence or unavailability of the Director.”  Ms. English also argues that appointing Mr. Mulvaney as the CFPB Acting Director is inconsistent with the CFPA’s mandate that the CFPB be an “independent” agency.

Except as noted below, the amici that filed the five amicus briefs in support of Ms. English’s appeal also filed amicus briefs in the district court in support of her motion for a preliminary injunction.  The amici consist of the following:

  • Consumer Financial Regulation Scholars.  Amici consist of a group of 20 academics described as “scholars on financial regulation and consumer finance who regularly study the legal underpinnings of the [CFPB].”  The “scholars” listed on the amicus brief filed in the D.C. Circuit include 10 individuals who were not listed on the amicus brief filed in the district court.
  • Current and former Democratic members of Congress.  Amici consist of a group of 26 current and former Representatives and Senators described as “sponsors of Dodd-Frank [who] participated in drafting it, serve or served on committees with jurisdiction over the federal financial regulatory agencies and the banking industry, currently serve in the leadership, or served in the leadership when Dodd-Frank was passed.”  12 of the current and former Democratic members who joined the amicus brief filed in the district court are not listed on the amicus brief filed in the D.C. Circuit.
  • Democratic State Attorneys General.  Amici consist of the attorneys general of 16 states and the District of Columbia.  The Pennsylvania AG, who joined the amicus brief filed by the Democratic state AGs in the district court, is not listed on the amicus brief filed in the D.C. Circuit.
  • Consumer advocacy groups.  Amici consist of 10 nonprofits who are described as “consumer organizations that protect and defend the rights of consumers through education, advocacy, policy, research, and litigation.”
  • Peter Conti-Brown.  Professor Conti-Brown is an Assistant Professor at the Wharton School of the University of Pennsylvania who is described as “a scholar of the structure, history, and evolution of financial regulatory institutions, including especially the U.S. Federal Reserve System.”

In their amicus briefs filed in the D.C. Circuit, the amici rely on the same primary arguments that they made in their district court briefs.  The primary argument made by the Consumer Financial Regulation Scholars, the current and former Democratic members of Congress, and the Democratic state AGs is that the CFPA succession provision supplants the FVRA and provides the sole means for temporarily filling a vacancy in the position of CFPB Director until Senate confirmation of a new Director.

The amicus brief filed by the consumer advocacy groups does not directly discuss the FVRA and CFPA provisions and instead focuses on the public interest prong of the preliminary injunction standard.  The groups argue that a preliminary injunction “will serve the public interest by enabling the CFPB to pursue its statutory mission and maintain its independence during the course of this litigation.”  Professor Conti-Brown argues that even if the FVRA applies, “President Trump does not have the legal authority to appoint a White House official to lead the CFPB.”  (As we previously commented, we find no support in the FVRA for Professor Conti-Brown’s argument.  Mr. Mulvaney, as OMB Director, serves in an office to which he was appointed by the President and confirmed by the Senate.  As such, he satisfies the FVRA’s criteria for whom the President can appoint to fill a vacancy.  Nothing in the FVRA would disqualify someone who satisfies such criteria from being appointed by the President to serve as CFPB Acting Director because he or she is a “White House official.”)

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About this Author

Barbara S. Mishkin, Ballard Spahr, Philadelphia, Deceptive Practices Lawyer, Fair Debt Collection Practices Act, Gramm Leach Bliley
Of Counsel

Barbara Mishkin focuses on consumer compliance and banking law. The federal laws with which Ms. Mishkin has dealt extensively include the Truth in Lending Act, Equal Credit Opportunity Act, Real Estate Settlement Procedures Act, Fair Credit Reporting Act, Fair Debt Collection Practices Act, and Gramm-Leach-Bliley Act. She also has significant experience with state usury and lender licensing laws, as well as state laws prohibiting unfair and deceptive acts and practices.

American Bar Association, member, Consumer Financial Services Committee;...

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