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English v. Trump
CourtUnited States District Court for the District of Columbia
Full case name Leandra English, Deputy Director and Acting Director, Consumer Financial Protection Bureau v. Donald J. Trump, in his official capacity as President of the United States of America and John Michael Mulvaney, in his capacity as the person claiming to be the acting director of the Consumer Financial Protection Bureau
DecidedVoluntarily Dismissed on July 18, 2018
DefendantsDonald Trump
Mick Mulvaney
PlaintiffLeandra English
CitationNo. 1:17-cv-02534
Court membership
Judge sittingTimothy J. Kelly

Leandra English v. Donald Trump, et al., No. 1:17-cv-02534 (D.D.C. 2017), was a lawsuit before the United States District Court for the District of Columbia. The plaintiff, Leandra English, alleged that the defendants, Donald Trump and Mick Mulvaney, violated 12 U.S.C. § 5491(b)(5)(B), a component of the Dodd–Frank Act of 2010, when President Trump appointed Mulvaney to be Acting Director of the Consumer Financial Protection Bureau (CFPB).

English filed her lawsuit shortly after outgoing director Richard Cordray resigned, and she sought a temporary restraining order and a preliminary injunction to prevent Mulvaney from becoming the Acting Director of the CFPB.[1] In July 2018, English resigned from the CFPB and voluntarily dismissed her lawsuit after Trump nominated Kathleen Kraninger to be the next Director.[2]

Chronology

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On November 25, 2017, English was appointed Deputy Director of the CFPB by outgoing Director Richard Cordray, and according to Cordray that would make English the Acting Director after his resignation.[3] That same evening, President Donald Trump appointed the Director of the Office of Management and Budget (OMB), Mick Mulvaney, as the Acting Director of the CFPB.

On November 28, Judge Timothy J. Kelly denied the plaintiff's request for an emergency temporary restraining order.[4][5][6] On December 6, 2017, English responded by filing a request seeking a preliminary injunction to install her as the CFPB's acting chief in place of Mulvaney. Judge Kelly heard arguments on the preliminary injunction on December 22.[7] On January 11, 2018, Judge Kelly denied the injunction, affirming Mulvaney as Acting Director.[8]

Two days later, on January 12, English appealed to the U.S. Court of Appeals for the District of Columbia Circuit.[9]

On January 22, a panel of the D.C. Circuit agreed to expedite the appeal.[10] An oral argument is scheduled for April 12. On January 31, the D.C. appeals court established in another case, PHH v. CFPB, that the law establishing the CFPB can bar the President from firing the CFPB director.[11]

In June 2018, President Trump nominated Kathleen Kraninger, an OMB official, to be the next CFPB Director.[12] In response to this nomination, English stepped down from the CFPB and voluntarily dismissed her lawsuit on July 18, 2018.[13][14]

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The case attracted various amicus curiae briefs, including one signed by Barney Frank and Elizabeth Warren, the legal architects of the agency, urging the Court to side with the plaintiff. Another amici brief which supported the defendants was filed by the attorneys general of Texas, Alabama, and Georgia, among others.

The general argument against the President's nomination is that the Dodd-Frank Act contains mandatory language that makes the deputy director the acting director in the event of a resignation until the Senate confirms the president's choice of director, in order to make the agency more independent. By this reasoning, it would be mandatory to follow the order of succession or nomination provided by the Dodd-Frank Act for the agency, even if the background law might otherwise allow a different result.

The argument for the president's nomination is based on opinions from the Office of Legal Counsel and CFPB's General Counsel that the Federal Vacancies Reform Act provides an option for appointing a successor even when another, more specific, option exists in another statute (in this case, the Dodd–Frank Act).[15]

The Federal Vacancies Reform Act allows the president to appoint an interim replacement for certain offices without Senate confirmation, but states that it does not provide the “exclusive means” for filling a vacancy when “a statutory provision...designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity.” The law establishing the CFPB (the Dodd–Frank Act) doesn't specify whether the director's resignation qualifies as "unavailability" under FVRA, leading to claims that the general provisions of FVRA should prevail.[16][17] The Office of Legal Counsel has stated that the FVRA provides a means for naming an acting CFPB Director, but it isn't the exclusive means for doing so, since the act establishing the CFPB has additional provisions.[18] The CFPB's General Counsel issued a memo agreeing with this opinion.[19]

A related argument, from the PHH v. CFPB case, is that the President's power over the agency is necessary to ensure its accountability.[20][21][22]

See also

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References

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  1. ^ Merle, Renae (November 26, 2017). "Leandra English, the woman at the center of a White House battle for control of the CFPB, files lawsuit against Trump pick to lead watchdog agency". Washington Post. ISSN 0190-8286. Retrieved November 30, 2017.
  2. ^ Borak, Donna (July 6, 2018). "CFPB official who challenged Mulvaney for top job is stepping down". CNN. Retrieved October 22, 2024.
  3. ^ "Leandra English Named Deputy Director of the Consumer Financial Protection Bureau". Washington, D.C.: Consumer Financial Protection Bureau. November 24, 2017. Retrieved November 25, 2017.
  4. ^ Hsu, Spencer S.; Heath, Thomas (November 28, 2017). "Federal judge rules that Trump's choice can remain at head of consumer watchdog bureau". Washington Post. ISSN 0190-8286. Retrieved November 30, 2017.
  5. ^ Green, Miranda. "Judge won't block Trump's pick to lead consumer protection agency". CNN. Retrieved November 30, 2017.
  6. ^ Puzzanghera, Jim (November 28, 2017). "Judge denies restraining order to halt Mulvaney's appointment as acting CFPB director". Los Angeles Times.
  7. ^ Puzzanghera, Jim (December 6, 2017). "Consumer financial watchdog's deputy director asks judge for injunction to replace Mick Mulvaney as acting chief". Los Angeles Times.
  8. ^ "Judge denies injunction to remove Mick Mulvaney as consumer bureau's acting director". Los Angeles Times. January 11, 2018.
  9. ^ Hayashi, Yuka (January 12, 2018). "CFPB Leadership Fight Continues as Official Appeals Court Case". Wall Street Journal.
  10. ^ "DC Circ. Agrees to Expedite Appeal in CFPB Leadership Fight - Law360".
  11. ^ "D.C. appeals court upholds structure of U.S. consumer bureau". Reuters. January 31, 2018. Retrieved January 31, 2018.
  12. ^ Thrush, Glenn (June 16, 2018). "White House Confirms That Mulvaney Deputy Is Pick to Lead Consumer Bureau". The New York Times. ISSN 0362-4331. Retrieved December 5, 2018.
  13. ^ Flitter, Emily (July 6, 2018). "Consumer Bureau Official Who Sued Trump to Step Down and Drop Her Suit". The New York Times. ISSN 0362-4331. Retrieved October 22, 2024.
  14. ^ "Stipulation of Voluntary Dismissal Under Federal Rule of Civil Procedure 41(a)(1)(A)(ii)" (PDF). Court Listener. July 18, 2018. Retrieved October 22, 2024.
  15. ^ Merle, Renae (November 25, 2017). "White House consulted Justice Department before naming CFPB critic to lead agency, administration says". Retrieved November 29, 2017 – via www.washingtonpost.com.
  16. ^ Dayen, David (November 24, 2017). "Richard Cordray Sets Up Titanic Struggle For Control of the Consumer Protection Bureau with Last-Minute Move". The Intercept. Retrieved November 25, 2017.
  17. ^ Puzzanghera, Jim (November 24, 2017). "Trump names Mulvaney as acting CFPB chief as Richard Cordray departs". Los Angeles Times. Retrieved November 25, 2017.
  18. ^ Engel, Steven (November 25, 2017). "Memorandum for Donald F. McGahn II Counsel to the President" (PDF).
  19. ^ McLeod, Mary. "To: The Senior Leadership Team, CFPB". Politico.
  20. ^ Qiu, Linda (November 28, 2017). "Is the Consumer Bureau 'Unaccountable' and Ineffective?". The New York Times. ISSN 0362-4331. Retrieved January 31, 2018.
  21. ^ "CFPB's controversial structure looms over leadership showdown". Reuters. November 27, 2017. Retrieved January 31, 2018.
  22. ^ "Court Ruling on CFPB Director Deals Blow to Trump Administration". Bloomberg.com. January 31, 2018. Retrieved January 31, 2018.
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