Acting Director of the Consumer Financial Protection Bureau Mick Mulvaney has filed a brief with the U.S. Court of Appeals for the District of Columbia Circuit requesting the court affirm a U.S. district judge’s ruling denying the request of CFPB Deputy Director Leandra English for a preliminary injunction against Mulvaney’s appointment by President Donald Trump. Mulvaney contends that the comprehensive scheme provided by the Federal Vacancies Reform Act (FVRA) applies at any executive agency and is by default the exclusive means to select an acting officer. Last month, English filed her brief arguing for the reversal of the judge’s ruling claiming that the Dodd-Frank Act, not the FVRA, controls by establishing a mandatory succession plan when the Director of the CFPB resigns (see Banking and Finance Law Daily, Jan. 31, 2018).
According to Mulvaney, the plain language of the FVRA applies to a vacancy in the CFPB’s directorship and, moreover, the Dodd-Frank Act’s deputy director provision relied upon by English does not displace the FVRA. In addition, Mulvaney contends that significant practical consequences and constitutional concerns counter English’s interpretation of the Dodd-Frank Act provision. "The many statutes providing that a certain deputy ‘shall’ serve as an acting principal were surely not intended to bar the President from using his FVRA authority to select an acting head of the Departments of Defense, Energy, Education, Health and Human Services, Labor, and Treasury, or the Environmental Protection Agency and the Small Business Administration," the brief states.
Mulvaney also argues that equitable considerations weigh against the granting of a preliminary injunction in English’s favor. English has failed to establish that she will suffer irreparable harm absent injunctive relief, while the balance of harms and the public interest weigh heavily against an injunction, the brief asserts.
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