Week ahead: CFPB leader to argue for significant changes in agency, while court appeal over who is rightful acting director opens

NCUA Board agenda for April meeting also to be released

The federal consumer financial protection agency figures prominently in the week ahead, as the acting director is scheduled to testify twice and discuss his significant proposed changes for the bureau – and the claimant to his seat in leading the agency argues in court why he should be pried out of it.

Consumer Financial Protection Bureau (CFPB) Acting Director Mick Mulvaney is scheduled to testify both before the House Financial Services Committee (on Wednesday) and the Senate Banking Committee (on Thursday). In both settings, Mulvaney is slated to provide the bureau’s “2018 semi-annual report” of the agency’s activities. This week, the agency released its printed semi-annual report, which is mandated by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010.

But both hearings are likely to focus on much more than the agency’s activities over the last six months. In issuing this week’s report, Mulvaney proposed (in the introduction) changes to the law establishing the bureau “to establish meaningful accountability” for the agency:

  • fund the agency through the congressional appropriations process (rather than from the Federal Reserve);
  • require legislative/congressional approval of major rules;
  • ensure that the agency director answers to the president “in the exercise of executive authority”;
  • create an independent inspector general for the agency.

Mulvaney also made it clear in the report that he intends to address these proposals in next week’s testimony, pointing out the Dodd-Frank act “contemplates that the Director will submit independent legislative recommendations to Congress.”

“It is appropriate to include legislative recommendations in this semi-annual report, since doing so will afford Members of Congress a timely opportunity to ask me questions about my recommendations in the hearings at which I will testify,” Mulvaney wrote.

The hearing gets underway at 10 a.m. The committee expects a big audience on site, and is requiring press to RSVP for limited seating in the hearing room. The event is also being live-streamed.

Meanwhile, as Mulvaney is scheduled to testify Thursday before the Senate panel (same topic, and likely similar or same remarks), a three-judge panel is scheduled that same day to hear the argument from the CFPB deputy director that she is the rightful acting director of the agency, rather than Mulvaney.

The panel of judges from the U.S. Court of Appeals for the District of Columbia Circuit (Judges Judith W. Rogers, Thomas B. Griffith and Patricia Millett) will hear the appeal of Leandra English, CFPB deputy director in her lawsuit against Mulvaney and President Donald Trump. The hearing is set to get underway at 9:30 a.m. (in USCA Courtroom 31 in Washington).

English wants the court to declare that she is the rightful acting director of the agency; she is appealing the U.S. district court’s January denial of a preliminary injunction motion.

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 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.

In a reply brief filed with the appeals court last 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.”

Also this week: The NCUA Board Thursday releases agenda items for its open meeting the following week (April 19). The agenda items are typically posted on the board’s website in the afternoon.

Calendar: House Financial Services Committee, CFPB’s Mulvaney to testify

Calendar: NCUA Board meeting (April 19)