Leandra English’s attorney asked a federal judge Monday to quickly declare that she, rather than Mick Mulvaney, is acting director of the Consumer Financial Protection Bureau as the two claimants dispute who’s in charge of the agency.
Attorney Deepak Gupta said President Trump had no legal right to name an acting director of the CFPB after Richard Cordray’s abrupt departure, even if a donut-bearing Mulvaney was welcomed by senior CFPB staff Monday morning.
Gupta asked U.S. District Judge Timothy Kelly to issue an emerging ruling as early as this week on English’s lawsuit, which she filed Sunday night. He said it the unusual power struggle constitutes an emergency.
After the hearing, Gupta refused to tell a group of reporters who is paying his fees, saying “we will be answering those questions,” but only in “the appropriate way” at some future time.
Gupta told reporters it was “very disturbing” that Justice Department attorney Brett Shumate refused to give an assurance that English is safe from firing as the case is pending.
“I can give no assurances,” Shumate told the judge, who was deciding on how urgent the matter was to resolve.
Kelly, a Trump nominee confirmed by the Senate in September, respectfully weighed both sides of the dispute and said he would set a briefing schedule after the Justice Department files a motion Monday evening.
The crux of the legal dispute is how vacancy-filling procedures in the 2010 Dodd-Frank law that established the CFPB interacts with the process for presidential appointments in an older law, the Vacancies Reform Act.
English’s legal team says the Dodd-Frank law clearly says the CFPB’s deputy director become acting director until such time as the Senate confirms a replacement.
The Justice Department’s Office of Legal Counsel and the general counsel of the CFPB, however, have sided with the White House, which says the president has the authority to name an acting director.
Kelly attempted to clarify which law too precedence and, reviewing the legal arguments, told Gupta that “one of the things you’re asking me to do is enjoin the president … that is an extraordinary remedy.”
“I don’t deny that it’s extraordinary,” Gupta said.
Gupta later argued that even if the judge errs against his legal interpretation about how an acting director is selected, he should still rule that Mulvaney cannot hold the acting director position while simultaneously serving as director of the White House Office of Management and Budget, as the CFPB was set up to be an independent agency.
Gupta told the judge that English performed work on Monday, even though senior leadership of the CFPB treated Mulvaney as the acting director.
“Ms. English went to the building” and “is performing work for the bureau” and “has not been fired,” he said. If she were to be fired, he added, “the question is, who would fire her and under what authority?”
Although the hearing was scheduled with little advance notice, space ran out on courtroom benches, and a court employee repeatedly asked reporters and other observers to squeeze closer together.
Before getting in a car to drive away, Gupta told the Washington Examiner that English’s work today included doing tasks at the office in the morning before meeting with lawmakers “in her capacity as acting director.”
The lawmakers she met with included Sen. Elizabeth Warren, D-Mass., who was influential in setting up the CFPB. Warren was one of two senators to vote against Kelly’s recent confirmation as a judge.
Although a Trump nominee, Kelly did not betray any clear bias, nodding and taking notes as each attorney answered questions, declaring that the case dealt with “extremely important and complicated issues.”
