Executive Branch

Federal consumer agency official sues Trump, maintains she is acting director

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Updated: The deputy director of the Consumer Financial Protection Bureau argues she is acting director of the agency in a lawsuit filed Sunday night against President Donald Trump.

Leandra English says the Dodd-Frank Act makes her temporary director of the agency after the resignation of Richard Cordray.

The National Law Journal (sub. req.), the Washington Post and the New York Times have the story.

Trump is seeking to appoint Mick Mulvaney, director of Office of Management and Budget, as acting director. According to the Times, Mulvaney “has been openly hostile” to the CFPB.

U.S. District Judge Timothy Kelly heard arguments in an emergency hearing Monday afternoon, but did not indicate how he would rule, report Law.com (sub. req.), the Washington Post and USA Today.

Mulvaney showed up at the CFPB offices on Monday “with a bag of doughnuts and a new title: boss,” the Washington Post reports. He instructed employees to ignore any directives from English.

The federal lawsuit (PDF), filed in Washington, D.C., seeks an injunction to block Mulvaney’s appointment.

English points to a section of the Dodd-Frank Act that says the deputy director will “serve as acting director in the absence or unavailability of the director.” Her suit says she is acting director of the CFPB until a new permanent director is appointed by the president and confirmed by the Senate.

The Trump administration argues the president has the authority to appoint the acting director under the Federal Vacancies Reform Act. The law authorizes the president to temporarily authorize an acting director of an executive agency whose appointment is made by the president subject to Senate confirmation. The law says it is the “exclusive means” for naming an acting director, unless another statute expressly designates an official to serve.

The Justice Department’s Office of Legal Counsel says in a Nov. 25 legal opinion says the Dodd-Frank Act doesn’t displace the president’s authority to appoint under the Vacancies Reform Act. The wording means the Vacancies Reform Act is nonexclusive, and either statute can be invoked, according to the opinion.

“We cannot view either statute as more mandatory than the other,” the legal opinion says. “Rather, they should be construed in parallel.”

Updated at 10 a.m. to report that Mulvaney showed up at the CFPB’s offices on Monday. Updated on Nov. 28 to report on Monday hearing.

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