Three-judge panel appointed for April 12 appeal over who has claim to ‘acting director’ seat at consumer agency

A three-judge panel has been appointed to hear the argument April 12 from the deputy director of the federal financial consumer protection agency that she is the rightful acting director of the agency, rather than the sitting acting leader.

The appointment of the panel members sets the stage for the hearing to take place as scheduled.

The U.S. Court of Appeals for the District of Columbia Circuit Monday announced that federal Judges Judith W. Rogers, Thomas B. Griffith and Patricia Millett will hear the appeal of Leandra English, deputy director of the Consumer Financial Protection Bureau (CFPB) in her lawsuit. English wants the court to declare that she – and not Acting Director Mick Mulvaney – is the rightful acting director of the agency.

English is appealing the U.S. district court’s January denial of a preliminary injunction motion.

The three judges on the panel were appointed by three separate presidents: Clinton (who appointed Rogers); G.W. Bush (who appointed Griffith); and Obama (who appointed Millett).

English was appointed to her current post in November by outgoing Director Richard Cordray (who resigned shortly after appointing her). In asserting her claim to the acting director’s position, English has pointed to the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank), which states the deputy director takes over in the absence of the director.

President Donald Trump, however, appointed Office of Management and Budget Director Mick Mulvaney to be acting CFPB director the day Cordray stepped down (Nov. 24). Trump pointed to the Federal Vacancies Reform Act of 1998 (FVRA), which gives the president the power to appoint replacements for federal leadership vacancies.

In January, federal Judge Timothy Kelly, in denying a request by English to name her the acting director, ruled that she had not demonstrated a likelihood of success on the merits or shown that she would suffer irreparable injury absent injunctive relief.

“The President has designated Mulvaney the CFPB’s acting Director, the CFPB has recognized him as the acting Director, and it is operating with him as the acting Director. Granting English an injunction would not bring about more clarity; it would only serve to muddy the waters,” Kelly said in his ruling.

In a reply brief filed with the appeals court earlier this month, English contends that the succession plan for the CFPB director outlined in the Dodd-Frank Act is “exclusive and mandatory.” In its brief (filed in late February), the Department of Justice contended that the plan is “permissive.”