10:48, November 27 256 0 abajournal.com

2017-11-27 10:48:04
Federal consumer agency official sues Trump, maintains she is acting director

Leandra English says the Dodd-Frank Act makes her temporary director of the agency after the resignation of Richard Cordray, report the National Law Journal (sub. req.), the Washington Post and the New York Times.

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.

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.”