Contending that it cannot abolish the CFPB on its own, the Trump Administration said that the union arguing that such a plan exists should not be entitled to an en banc hearing before an appeals court.
“Although factual disputes exist surrounding those actions, all the parties and both the majority and dissenting opinions agree that the Executive Branch lacks power to unilaterally abolish [the] CFPB based on policy disagreements with Congress’s choices,” the Justice Department said, in response to the request for an en banc hearing filed by the National Treasury Employees Union in the U.S. Circuit Court of Appeals for the District of Columbia.
The Administration said the union is relying on what it says is “an unexpressed decision” to shut down the agency.
A court may not review “an abstract decision” but is instead limited to reviewing “specific agency action, as defined in the [Administrative Procedure Act],” the Administration said.
The NTEU has sued the Administration, contending that the Administration’s plan to lay off more than 1,400 employees at the CFPB amounts to an abolishment of the agency. Only Congress has that power, the union said.
The DoJ had sought to delay its response to the en banc request, saying that the government shutdown resulted in it not having the necessary employees to respond. However, the Appeals Court denied that request and continued to require the Administration to file its response by October 21.
A divided three-judge panel of the Appeals Court had dissolved a lower court injunction blocking the firings and said that the Trump Administration could resume the firing of more than 1,400 employees at the CFPB. However, when it dissolved the injunction, the panel withheld the mandate in the case until the plaintiffs timely petitioned for a rehearing en banc. The plaintiffs subsequently filed a request for the en banc hearing.
Most recently, according to several press reports, Office of Management and Budget Director and Acting CFPB Director Russell Vought said on the “Charlie Kirk Show” that he thinks he will be successful in shutting down the CFPB “within the next two to three months.”
In its response to the request for the en banc hearing, the DoJ said that a general plan of future action “no matter how firmly announced” is only a preliminary step toward final action.
The Administration said that no decision to shutter the CFPB is contained in any “regulation, order, document, email or other statement, written or oral.”
Just three weeks after the supposed shutdown decision was made, the agency’s Chief Legal Officer directed employees to perform all legally required work, according to the DoJ. And Vought ordered an employee to perform a statutorily required task, the Administration noted.
The Administration also said that “should [the] CFPB unlawfully cease performing its mandatory statutory duties, plaintiffs may challenge such a failure within the APA’s well-established limits.”
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