Three amicus briefs in support of President Trump and Mick Mulvaney filed in English appeal

by Ballard Spahr LLP

Three amicus briefs have been filed in the U.S. Court of Appeals for the D.C. Circuit in support of President Trump and Mick Mulvaney, who are asking the D.C. Circuit to affirm the district court’s decision denying Leandra English’s motion for a preliminary injunction in her action seeking a declaration that she, rather than Mr. Mulvaney, has the legal right to serve as CFPB Acting Director.

The three amicus briefs were filed by the following amici:

  • Chamber of Commerce.  The Chamber represents 300,000 direct members and indirectly represents the interests of more than 3 million companies and professional organizations.
  • Republican State Attorneys General.  Amici are the attorneys general of the following 13 states: Texas, West Virginia, Alabama, Arizona, Arkansas, Florida, Georgia, Kansas, Louisiana, Michigan, Nebraska, Oklahoma, and South Carolina.
  • 113 Current Members of Congress.  Amici consist of 38 Republican Senators and 75 Republican House members.

In its opposition brief filed with the D.C. Circuit, the DOJ relied primarily on the argument that the provision in the Consumer Financial Protection Act (CFPA) that provides the CFPB Deputy Director “shall…serve as acting Director in the absence or unavailability of the Director” does not override the President’s authority under the Federal Vacancies Reform Act (FVRA) to temporarily fill a vacancy in an executive agency position requiring confirmation.  The DOJ also argued that “[n]othing in either the text or structure of the Dodd-Frank Act or the FVRA supports English’s assertion that there should be an unwritten exception precluding the President from choosing a particular Senate-confirmed official—the OMB Director—from serving in a vacancy to which the FVRA applies.”

All three amici agree with the DOJ’s position that the President’s designation of Mr. Mulvaney as Acting Director was proper under the FVRA.  They also argue that Ms. English’s position raises serious constitutional issues under the U.S. Constitution’s Appointments Clause.  Under the Appointments Clause, a “principal officer” of the United States may only be appointed by the President with the Senate’s consent.

The three amici argue that because the Acting Director exercises the power of a principal officer, the CFPA places no limits on how long an Acting Director can serve, and the nomination and confirmation process for a new permanent Director can be lengthy, Ms. English’s position encroaches on the President’s appointment authority, thereby raising questions about the extent to which Congress can constitutionally limit such authority.  Citing U.S. Supreme Court or D.C. Circuit case law indicating that preference should be given to a statutory interpretation that avoids a constitutional issue, the amici contend that the D.C. Circuit should rule in favor of President Trump and Mr. Mulvaney to avoid the Appointments Clause questions.

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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