Federal appeals court weighs CFPB leadership fight

The fight over who should lead the Consumer Financial Protection Bureau (CFPB) hit the nation’s second most powerful court on Thursday.

CFPB Deputy Director Leandra English urged a three-judge panel on the U.S. Court of Appeals for the District of Columbia to rule that she is the rightful leader of the bureau, not the man that President Trump put in place, budget director Mick Mulvaney.

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The court grappled with the language of the Dodd-Frank Wall Street Reform and Consumer Protection Act and how it squares with the president’s authority under the Federal Vacancies Reform Act (FVRA) to temporarily fill vacancies.

“What is there in Dodd-Frank that expressively displaces the president’s authority under the Vacancy Act,” Judge Thomas Griffith, a George W. Bush appointee, asked English’s attorney Deepak Gupta.

Gupta argued his client became the acting director the moment the resignation of Richard Cordray, the bureau’s first director, became effective on Nov. 24, 2017, because Dodd-Frank mandates the deputy director “shall serve as the acting director in the absence or unavailability of the Director.”

Deputy Assistant Attorney General Hashim Mooppan, however, argued Congress would have used stronger language and said the deputy director will be the “exclusive” acting director if they wanted Dodd-Frank to supersede the FVRA.

But that argument didn’t sit well with Judge Patricia Millett, an Obama appointee. 

“Congress doesn’t speak like that,” she told Mooppan. 

The court also grappled with Trump’s selection of Mulvaney, given that Dodd-Frank expressly created the CFPB to be an independent agency.

Gupta argued a provision in the law specifically protects the CFPB Director from needing “to consult with or obtain the consent or approval of the Director of the Office of Management and Budget.”

Judge Judith Rogers, a Clinton appointee, said the court’s been told there were a number of other people Trump could have appointed other than the OMB Director.

But Mooppan said the appellant is over-reading the Dodd-Frank provision. All the statute says is they are not required to get OMB’s approval, he argued.

Millett responded that the very fact Mulvaney is the acting director means everything the CFPB acting director decides is going to be approved by the OMB director.

“He’s wearing two hats at the same time,” she said.

Rogers suggested the court could come to a compromise and side with English on the argument that Mulvaney’s appointment threatens the independence of the CFPB while still upholding the president’s authority to fill vacancies under the FVRA.

Doing so, she said, would allow the president to appoint someone else.

“Why is it necessary to adopt your position when independence is adoptable in another way?” she asked Gupta.

The appeals court is being asked to toss out the district court ruling and grant English her request for an injunction that temporarily blocks Mulvaney from serving as acting director of the CFPB. 

But Judge Griffith questioned whether English even has standing to sue Mulvaney.

“All the injunctive relief does is tell Mr. Mulvaney he can’t show up to work,” he said. 

“Unless you can enjoin the president I don’t see how she can get relief.”

Mulvaney has long been a critic of the CFPB, which was created by President Obama and Congress following the 2008 financial crisis.

In November, shortly after being appointed director, Mulvaney said he wanted to “try and limit as much as we can what the CFPB does to sort of interfere with capitalism and with the financial services market.”