A federal judge continued to indicate that he is unlikely to rule in favor of Leandra English in her quest to sue her way to being the acting director of the Consumer Financial Protection Bureau.
English, who was promoted to deputy director by former director Richard Cordray in the hours before he resigned on Nov. 24, has filed a lawsuit against President Trump and Mick Mulvaney, whom the president named acting director. Mulvaney is also the director of the White House Office of Management & Budget.
A hearing was held on Dec. 22 on a motion by English for a preliminary injunction that would remove Mulvaney as acting director. Judge Timothy Kelly had already denied a request for a temporary restraining order against Mulvaney’s appointment.
English — and Cordray — are using the Dodd-Frank Wall Street Reform & Consumer Protection Act as the basis for their legal succession argument, while the president is using the Federal Vacancies Reform Act as the legal mandate that allows him to appoint any individual who has already been confirmed by the Senate to run a second agency on an interim basis.
Congress did not want a vacancy that the president could not fill, argued Brett Schimate, a deputy assistant attorney general who argued the case on behalf of the government. According to one published report, Kelly was “intrigued” by this idea.
If English were to be the acting director and the president took some time to name a permanent replacement,
then the bureau would be headed by someone who has “never been nominated by any president, has never been confirmed,” and will head an “agency with significant regulatory authority, with significant enforcement authority.”
Kelly also appeared to be concerned about “clarity,” that is making sure there is no confusion about who is running the CFPB.
“I don’t know how finding for your client provides more clarity,” Kelly told Deepak Gupta, the lawyer representing English in her suit.
Kelly did not provide a timeline for ruling on the injunction.
