The acting director of the Consumer Financial Protection Bureau (CFPB) — who also serves as the White House budget director — told a House panel Wednesday he would have to leave the consumer agency post June 22 if President Donald Trump fails to formally nominate a permanent director by then.
However, if the president does make a formal nomination, Acting Director Mulvaney Mulvaney would be able to remain until such time that person is confirmed by the Senate, he told the House Financial Services Committee.
He added, “Given how long it’s taken the Senate to take up confirmations, [he could be at the CFPB] probably well into the fall or end of this year.”
Mulvaney was engaged in an exchange with Rep. Emanuel Cleaver, D-Ohio, during a hearing before the committee Wednesday on the bureau’s semiannual report. Cleaver asked how long Mulvaney said he expected to be both director of the Office of Management and Budget and the “head person” at the CFPB. Mulvaney, in his response, cited the federal vacancies statute the president relied on in making him acting director of the consumer bureau.
Mulvaney is scheduled to testify on the bureau’s semiannual report again Thursday before the Senate Banking Committee. Also Thursday, a three-judge panel is scheduled to hear the argument from the CFPB’s deputy director that she, not Mulvaney, is the rightful acting director of the agency.
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 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.”