English files emergency motion for expedited appeal

by Ballard Spahr LLP

Leandra English has filed an emergency motion with the U.S. Court of Appeals for the D. C. Circuit requesting expedited briefing and oral argument in her appeal from the district court’s denial of her preliminary injunction motion in her action seeking a declaration that she, and not Mick Mulvaney, is the lawful CFPB Acting Director.

Ms. English argues that even without the “special circumstances” presented by her case, her appeal is entitled to expedited consideration because she is appealing from the denial of a preliminary injunction.  In support, Ms. English cites to 28 U.S.C. section 1657(a) which requires a federal court to “expedite the consideration of any action…for temporary or preliminary injunctive relief,” and to D.C. Circuit Rule 47.2(a), which directs the clerk of the court, in an action seeking such relief, to ” prepare an expedited schedule for briefing and argument” after docketing the appeal.

Ms. English also points to language in 28 U.S.C. section 1657(a) requiring expedited review when “good cause is shown” and asserts that, pursuant to the D.C. Circuit’s Handbook of Practice and Internal Procedures, “good cause” exists where a delay in hearing an appeal will cause irreparable injury and the decision under review is subject to “substantial challenge,” or if the public has “an unusual interest in prompt disposition.”

According to Ms. English, there is an “urgent public need for clarity” as to who is the lawful Acting Director because “doubt over who is the legitimate Acting Director hurts the public by casting a pall over the validity of the agency’s actions, since actions taken by an illegally appointed Director may themselves be unlawful.”  She also claims that as a result of the freeze imposed by Mr. Mulvaney on significant CFPB actions, “the public is deprived of the protections and guidelines that Congress intended the CFPB to provide.”

Ms. English also argues that the district court’s ruling is subject to substantial challenge, as proven by the “bevy of amicus briefs filed below” in her support.  She claims that she has suffered irreparable injury by virtue of “the usurpation of her statutorily-conferred position at the fore of a major federal agency” and that such injury “will continue every day that Mr. Mulvaney claims to hold the office of Acting Director.”  She further claims that a finding that her injury does not qualify as irreparable harm “would also have the pernicious result of rewarding and encouraging illegal temporary appointments.”

Ms. English proposes the following briefing schedule:

  • Appellant’s opening brief: January 30, 2018
  • Amicus briefs supporting appellant: February 6, 2018
  • Appellees’ brief: February 13, 2018
  • Amicus briefs supporting appellees: February 20, 2018
  • Appellant’s reply brief: February 22, 2018

Written by:

Ballard Spahr LLP

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