English files reply brief in preliminary injunction appeal

by Ballard Spahr LLP

Leandra English has filed her reply brief in her appeal of the district court’s denial of her preliminary injunction motion in her action seeking a declaration that she, rather than Mick Mulvaney, is the lawful CFPB Acting Director.  Her brief responds to the DOJ’s opposition brief filed last week with the D.C. Circuit.

A substantial portion of Ms. English’s reply brief is devoted to her argument that the Dodd-Frank Act (DFA) succession plan for the CFPB Director is “exclusive and mandatory” rather than permissive, as the DOJ contends.  According to Ms. English, established principles of statutory construction dictate that Congress’s use of the word “shall” in the DFA provision that provides that the CFPB Deputy Director “shall…serve as acting Director in the absence or unavailability of the Director” reflects a deliberate choice to make the succession plan mandatory.  She also contends that construing the provision to be mandatory is “the more natural reading of Dodd-Frank–consistent with its text, structure, and legislative history,” including Congress’s goal of making the CFPB independent “from direct presidential control.”

In her reply brief, Ms. English renews the argument she made in her opening brief that President Trump’s appointment of Mr. Mulvaney violates the DFA requirement that the CFPB operate as an independent agency.  According to Ms. English, “it is no exaggeration to say that [Mr. Mulvaney’s] appointment transformed the CFPB from an ‘independent bureau’ into an executive department of the White House.”

The filing of Ms. English’s reply brief completes the scheduled briefing in her appeal.  D.C. Circuit rules provide that the names of the judges sitting on a case’s merits panel are usually posted on the court’s website 30 days before the oral argument date.  Accordingly, since oral argument in Ms. English’s appeal is scheduled for April 12, the composition of the merits panel is likely to be posted next week.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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