US. Department of Justice
Of?ce of Legal Counsel

 

 

Of?ce of the Assistant Attorney General Washington, D. C. 20530

November 25, 2017

MEMORANDUM FOR DONALD F. MCGAHN II
COUNSEL TO THE PRESIDENT

Re: Designating an Acting Director of the
Bureau of Consumer Financial Protection

You have asked whether the President may designate an Acting Director of the Bureau of
Consumer Financial Protection upon the resignation of the Director. This opinion
con?rms the oral advice that we gave you before the Director?s resignation took effect at the end
of November 24, 2017. See Letter for the President, from Richard Cordray, Director, CFPB
(Nov. 24, 2017) (communicating resignation).

The CF PB Director is an of?ce ?lled by presidential appointment, by and with the advice
and consent of the Senate. 12 U.S.C. 5491(b)(2). The Federal Vacancies Reform Act of 1998,
5 U.S.C. 3345?3349d, provides the President with authority ?for temporarily authorizing an
acting of?cial to perform the functions and duties? of an of?cer of an Executive agency whose
appointment ?is required to be made by the President, by and with the advice and consent of the
Senate,? and it is the ?exclusive means? for authorizing acting service ?unless? another statute
expressly designates an of?cer to serve in an acting capacity or provides an alternative means for
a designation as an acting of?cer. 5 U. S. C. 3347(a).

The CFPB has such a statute. Speci?cally, 12 U. C. 5491(b)(5) provides that the
5 Deputy Director shall ?serve as acting Director 1n the absence or unavailability of the
Director.? While the statute is unusual in failing expressly to reference temporary service in the
case of a vacancy in the of?ce, we believe that the resignation of the Director would satisfy the
requirement of ?absence or unavailability.? Therefore, the statute would permit a properly
appointed Deputy Director to serve as the Acting Director during a vacancy.1

The fact that the Deputy Director may serve as Acting Director by operation of the
statute,lhowever, does not displace the President?s authority under the Vacancies Reform Act.

 

1 We understand that the CFPB had not had a Deputy Director since August 2015, and so, for over two
years, the CFPB functioned with an Acting Deputy Director. On'November 24, 2017, the CFPB Director?s last day
in of?ce, he stated that he had appointed a Deputy Director in order to take advantage of the succession provision of
12 U.S.C. 5491(b)(5) upon his resignation. Because we have no other details about this appointment, we express
no View about its validity. Even if the Deputy Director were properly appointed, she did not become Acting
Director; the President designated the Director of the Of?ce of Management and Budget to perform the
functions and duties of the Director of the CFPB, effective upon the CFPB Director?s resignation. As someone who
already ?serves in an of?ce for which appointment is required to be made by the President, by and with the advice
and consent of the Senate,? the Director of OMB is among the persons the President could select under 5 U.S.C.
3345(a)(2) to ?perform the functions and duties of the vacant of?ce temporarily in an acting capacity.?

As we have advised in our prior opinions, even when the Vacancies Reform Act is not the
?exclusive? means for ?lling a vacancy, the statute remains an available option, and the
President may rely upon it in designating an acting of?cial in a manner that differs from the
order of succession otherwise provided by an of?ce?speci?c statute. This interpretation of the
Vacancies Reform Act is in accord with the only federal court of appeals to address the issue.

See Hooks v. Kitsap Tenant Support Services, Inc, 816 F.3d 550, 555?56 (9th Cir. 2016). The .
President therefore may designate an Acting Director of the CFPB under the Vacancies Reform
Act. See 5 U.S.C. 3345(a)(2), (3).

1.

Because the Vacancies Reform Act speci?es that it constitutes the ?exclusive means? for
temporarily authorizing an acting of?cial absent another statutory provision, 5 U.S.C. 3347(a),
we ?rst consider whether 12 U.S.C. 5491(b)(5) authorizes the Deputy Director to serve as the
Acting Director when the Director has resigned his of?ce.

Section 5491(b)(5) refers to the ?absence or unavailability of the Director,? but does not
expressly state that it applies when the of?ce is vacant. This phrasing is unusual. The Report of
the Senate Committee on Governmental Affairs on the Vacancies Reform Act identi?ed forty
of?ce?speci?c statutes that the committee believed would continue to provide alternative
mechanisms for acting service. S. Rep. No. 105-250, at 16?17 (1998). Each of these statutes
refers to either a vacancy or a resignation. We have, for instance, construed the succession
provisions of the Department of Justice and the Of?ce of the Management and Budget. See
Authority of the President to Name an Acting Attorney General, 31 Op. O.L.C. 208 (2007)
(?Acting Attorney General?); Acting Director of the O?ice of Management and Budget, 27 Op.
O.L.C. 121, 121 n.1 (2003) (?Acting Director The Department of Justice?s statute
speaks of service as Acting Attorney General by ?reason of absence, disability, or vacancy? in
the of?ces of the Attorney General and the Deputy Attorney General. 28 U.S.C. 508(b)
(emphasis added). Similarly, the Of?ce of Management and Budget?s succession statute speaks
of the Director?s being ?absent or unable to serve or when the of?ce of the Director is vacant.?
31 U.S.C. 502(b)(2) (emphasis added). Accordingly, it could be argued that section '5491(b)(5)
applies only in cases of the Director?s transient ?absence or unavailability,? and does not apply in
the case of a vacancy or a resignation.

This Of?ce distinguished between an ?absence? and a ?vacancy? when considering
whether the Vice Chairman of the Federal Reserve Board would automatically assume the duties
of the Chairman upon the expiration of his term. Status of the Vice Chairman of the Federal
Reserve Board, 2 Op. O.L.C. 394, 395 (1978). There, the statute provided that the Vice
Chairman would preside at meetings of the Federal Reserve Board in the Chairman?s ?absence,?
but was otherwise silent on succession following the end of the Chairman?s term. We advised
that ?[t]he term ?absence? normally connotes a failure to be present that is temporary in
contradistinction to the term ?vacancy? caused, for example, by death of the incumbent or his
resignation.? Id. Accordingly, the Vice Chairman?s authority to preside in the ?absence? of the
Chairman did not mean that he would automatically assume the duties of the chairmanship upon
a vacancy. Rather, we determined that the President would need to designate an acting
Chairman. Id. at 396. If section 5491(b)(5) were limited to service when the Director is

?absent,? we might similarly conclude that the CFPB statutory provision would not apply in the
case of a ?vacancy? in the of?ce of the Director.

9 ?6

Section 5491(b)(5), however, speaks not only of the Director 3 absence,? but also of his
?unavailability.? While the question is not free from doubt, we believe that the provision?s
reference to ?unavailability? is best read to refer both to a temporary unavailability (such as the
Director?s recusal from a particular matter) and to the Director?s being unavailable because of a
resignation or other vacancy in of?ce. See Acting Attorney General, 31 Op. O.L.C. at 209 n.1
(referring to of?cials who ?have died, resigned, or otherwise become unavailable?) (emphasis
added); Designation of Acting Solicitor of Labor, 26 Op. O.L.C. 211, 214 (2002) (describing
provisions of the Vacancies Reform Act as contemplating ?that a ?vacancy? occurs when the
occupant dies or resigns or is otherwise unavailable?) (emphasis added). Cf TCF Film Corp. v.
Gourley, 240 F.2d 711, 714 (3d Cir. 1957) (observing, for purposes of law-of-the-case doctrine,
that a judge who ?dies or resigns from the court . . . obviously is no longer available?) (footnote
omitted). This broader reading of ?unavailability? is consistent with how this Of?ce has
interpreted the Vacancies Reform Act?s reference to when an of?cer ?dies, resigns, or is
otherwise unable to perform the functions and duties of the of?ce.? 5 U.S.C. 3345(a). In our
view, an of?cer is ?unable to perform the functions and duties of the of?ce? during both short
periods of unavailability, such as a period of sickness, and potentially longer ones, such as one
resulting from the of?cer?s removal (which would arguably not be covered by the reference to
See Guidance on Application of Federal Vacancies Reform Act of I 998, 23 Op.
O.L.C. 60, 61 (1999) (?In ?oor debate, Senators said, by way of example, that an of?cer would
be ?otherwise unable to perform the functions and duties of the of?ce? if he or she were ?red,
imprisoned, or sick?) (citing statements by Senators Thompson and Byrd). We think that
?unavailability? should be similarly construed, and thus, that 12 U.S.C. 5491(b)(5) would
authorize a properly appointed Deputy Director of the CFPB to serve as its Acting Director
during a true vacancy in the Director position.

II.

We next consider whether 12 U.S.C. 5491(b)(5), by authorizing the Deputy
Director to serve as its Acting Director, eliminates the President?s authority under the Vacancies
Reform Act to ?ll a vacancy in the Director position on an acting basis. We have addressed this
question before in connection with similar statutes, and our answer is straightforward. The
Vacancies Reform Act is not the ?exclusive means? for the temporary designation of an Acting
Director, but it remains available to the President as one means for ?lling a vacancy in the
Director position.

The Vacancies Reform Act expressly addresses how it interacts with statutes that deal
with who shall act when speci?c of?ces are vacant. It provides that its mechanisms for
designating an acting of?cer (5 U.S.C. 3345) and the accompanying time limitations (id.
3346) are

the exclusive means for temporarily authorizing an acting of?cial to perform the
functions and duties of any of?ce of an Executive agency . . for which appointment is
required to be made by the President, by and with the advice and consent of the Senate,
unless??

(1) a statutory provision expressly?-

(A) authorizes the President, a court, or the head of an Executive department,
to designate an of?cer or employee to perform the functions and duties of a 
speci?ed of?ce temporarily in an acting capacity; or

(B) designates an of?cer or employee to perform the functions and duties of a
speci?ed of?ce temporarily in an acting capacity; or

(2) the President makes an appointment to ?ll a vacancy in such of?ce during the
recess of the Senate pursuant to clause 3 of section 2 of article 11 of the United States
Constitution.

Id 3347(a); see also 12 U.S.C. 5491(a) (specifying that the CFPB ?shall be considered an
Executive agency?).

By its terms, section 3347(a) provides that the Vacancies Reform Act shall be the
?exclusive means? of ?lling vacancies on an acting basis unless another statute ?expressly?
provides a mechanism for acting service. It does not follow, however, that when another statute
applies, the Vacancies Reform Act ceases to be available. To the contrary, in calling the
Vacancies Reform Act the ?exclusive means? for designations ?unless? there is another
applicable statute, Congress has recognized that there will be cases where the Vacancies Reform
Act is non-exclusive, i. e. one available option, together with the of?ce-speci?c statute. If
Congress had intended to make the Vacancies Reform Act unavailable whenever another statute
provided an alternative mechanism for acting service, then it would have said so. It would not
have provided that the Vacancies Reform Act ceases to be the ?exclusive means? when another
statute applies.

This Of?ce has consistently adhered to this reading of section 3347. In 2007, we
concluded that the President has the authority to designate an Acting Attorney General under the
Vacancies Reform Act, even though a separate statute speci?c to the position of Attorney
General, 28 U.S.C. 508, also provides a mechanism by which other designated of?cials in the
Department of Justice may ?act as Attorney Genera during the ?vacancy,? ?absence,? or
?disability? of the Attorney General. Acting Attorney General, 31 Op. O.L.C. at 209-11. We
observed that ?[t]he Vacancies Reform Act nowhere says that, if another statute [for naming an
acting of?cer] remains in effect, the Vacancies Reform Act may not be used.? Id. at 209. We
reached the same conclusion in 2003, when we examined the availability of the Vacancies
Reform Act in light of a separate statute that identi?ed several of?cers who could be designated
as Acting Director of the Of?ce of Management and Budget in the event of a vacancy in that
of?ce. Notwithstanding that of?ce-speci?c alternative mechanism, we concluded that ?the
Vacancies Reform Act may still be used.? Acting Director of 0MB, 27 Op. O.L.C. at 121 n.1. -

A federal court of appeals adopted the same reading of section 3347. In Hooks, an
employer challenged the service of an individual designated under the Vacancies Reform Act as
Acting General Counsel of the National Labor Relations Board. 816 F.3d at 554. The employer
argued, among other things, that the Vacancies Reform Act was not available because a
provision of the National Labor Relations Act speci?cally provided for the temporary
designation of an Acting General CounselThe Ninth Circuit rejected that
contention, concluding that, under section 3347, ?neither the [Vacancies Reform Act] nor the

4

[National Labor Relations Act] is the exclusive means of appointing an Acting General Counsel?
and that ?the President is permitted to elect between these two statutory alternatives to designate
an Acting General Counsel.? Id. at 556.

Our past opinions have recognized that the legislative history con?rms this reading of the,
Vacancies Reform Act. Acting Attorney General, 31 Op. O.L.C. at 209; Acting Director of
0MB, 27 Op. O.L.C. at 121 . n.1. Discussing an earlier draft of the bill, the Senate committee
noted that, ?with respect to the speci?c positions in which temporary of?cers may serve under
the speci?c statutes this bill retains, the Vacancies [Reform] Act would continue to provide an
alternative procedure for temporarily occupying the of?ce.? S. Rep. No. 105-250, at 17. The
enacted version of the statute differs from the version discussed in the Senate Report, but it does
so in ways that reinforce the conclusion that both the Vacancies Reform Act and an of?ce?
speci?c statute are available to ?ll a vacancy on an acting basis. The earlier version of section
3347 discussed in the Senate Report would have provided that ?[s]ections 3345 and 3346 are
applicable? to of?ces to be ?lled by appointment of the President, by and with the advice and
consent of the Senate, ?unless?(1) another statutory provision expressly provides that. .such
provision supersedes sections 3345 and 3346, [or] (2) a statutory provision in effect on the date
of enactment of the Federal Vacancies Reform Act of 1998 expressly? designates or authorizes
the designation of an acting of?cer. Id. at 26. That phrasing could well have been susceptible to
a reading that the Vacancies Reform Act would cease to apply when another statute provided a
mechanism for ?lling a vacancy, notwithstanding the committee?s explanation to the contrary.
But the enacted version of section 3347(a) has removed all doubt, both by striking the language
contemplating that another provision might expressly supersede the Vacancies Reform Act and
by adopting the formulation that the latter IS to be ?exclusive? when no other statute is available.

The CFPB?speci?c statute does state that the Deputy Director ?shall? serve as Acting
Director where the Director is unavailable. 12 U.S.C. 5491(b)(5). However, the Vacancies
Reform Act itself, like the CFPB-speci?c statute, similarly uses mandatory terms, providing that
the ?rst assistant to a vacant of?ce ?shall perform the functions and duties? of that of?ce unless
the President invokes his authority under the statute to direct another of?cial to do so. 5 U.S.C.
3345(a)(l). Accordingly, we cannot View either statute as more mandatory than the other.
Rather, they should be construed in parallel. Furthermore, the Senate Report lists forty of?ce-
speci?c statutes to which the Vacancies Reform Act is an alternative, see S. Rep. No. 105-250, at
16?17, and a number of those statutes similarly employ mandatory language that, like the 
speci?c statute, provides that the ?rst assistant to the vacant of?ce ?shall? serve in an acting
capacity.3 Nevertheless, Congress plainly intended in those cases that the President could invoke

 

2 The enacted version also removed the requirement that a statutory provision be in effect on the date of the
Vacancies Reform Act?s enactment in order to be available for ?lling a vacancy. As a result, the fact that section
5491(b)(5) was enacted after 1998 does not affect our analysis.

3 See, e. 15 U.S.C. 633(b)(1) (?The Deputy Administrator shall be Acting Administrator of the [Small
Business] Administration during the absence or disability of the Administrator or in the event of a vacancy in the
of?ce of 20 U.S.C. 3412(a)(1) (?During the absence or disability of the Secretary [of Education],
or in the event of a vacancy in the of?ce of the Secretary, the Deputy Secretary shall act as Secretary?); 29 U.S.C.
552 (?The Deputy Secretary [of Labor] shall (1) in case of the death, resignation, or removal from of?ce of the
Secretary, perform the duties of the Secretary until a successor is 31 U.S.C. 301(c) (?The Deputy
Secretary [of the Treasury] shall carry out . . . (2) the duties and powers of the Secretary when the Secretary is

5

the Vacancies Reform Act as ?an alternative procedure? and depart from the statutory order of
succession. S. Rep. No. 105?250, at 17.

The canon of statutory interpretation that speci?c provision controls one of more
general application,? Gozlon-Peretz v. United States, 498 US. 395, 407 (1991), does not prevent
the Vacancies Reform Act from being available here. While the CFPB?speci?c statute arguably
is more speci?c than the Vacancies Reform Act in the sense that it applies only to the position of
Director, the same is true with all of the of?ce-speci?c statutes retained by section 3347(a). Yet
in the text and the legislative history, Congress expressly recognized that both the Vacancies
Reform Act and of?ce-speci?c statutes would be available as separate means of temporarily
authorizing individuals to serve in an acting capacity. In View of executive practice before the
CFPB statute was enacted, as re?ected in Acting Attorney General and Acting Director 
and in the absence of some clearer statement in the statute altering the applicability of
the Vacancies Reform Act, there is no reason to conclude that Congress expected 12 U.S.C.
549l(b)(5) to operate any differently than any of the other of?ce-speci?c statutes.

The CFPB?speci?c statute providing that the Deputy Director ?shall . . . serve as acting
Director in the absence or unavailability of the Director,? 12 U.S.C. 549l(b)(5), satis?es
section reference to ?a statutory provision? that ?expressly . . . designates an of?cer or
employee to perform the functions and duties of a speci?ed of?ce temporarily in an acting
capacity.? 5 U.S.C. 3347(a)(1)(B). It therefore should interact with the Vacancies Reform Act
in the same way as other, similar statutes providing an of?ce-speci?c mechanism for an
individual to act in a vacant position. See Acting Attorney General, 31 Op. O.L.C. at 209?11;
Acting Director of 0MB, 27 Op. O.L.C. at 121 n. 1. Both the Vacancies Reform Act and section
549l(b)(5) are available for filling on an acting basis a vacancy that results from the resignation
of the Director. And, as with other of?ce-speci?c statutes, when the President
designates an individual under the Vacancies Reform Act outside the ordinary order of
succession, the President?s designation necessarily controls. Otherwise, the Vacancies Reform
Act would not remain available as an actual alternative in instances where the of?ce?speci?c
statute identi?es an order of succession, contrary to Congress?s stated intent.



Nothing about the statutory structure changes our analysis. Congress has
characterized the CFPB as ?independent,? 12 U.S.C. 5491(a), and has purported to make the
Director removable only ?for inef?ciency, neglect of duty, or malfeasance in of?ce,? id
But those indications of independence do not prevent the President from using the

 

absent or unable to serve or when the of?ce of Secretary is vacant?); 44 U.S.C. 2103(c) (?In the event of a
vacancy in the of?ce of the Archivist, the Deputy Archivist shall act as Archivist until an Archivist is 

4 In pending litigation, the Department of Justice is contending that Congress may not impose a for?cause
restriction on the President?s power to remove the Director, because he is a single-member head of an
agency. See Brief for the United States as Amicus Curiae, PHH Corp. v. Consumer Financial Protection Bureau,
No. 15?1177 (DC. Cir. ?led Mar. 17, 2017). That conclusion is consistent with the panel?s decision in PHH Corp.
V. Consumer Financial Protection Bureau, 839 F.3d 1 (DC. Cir. 2016), vacated upon grant of reh ?g en banc (Feb.
16, 2017), as well as with earlier advice from this Of?ce, as re?ected in, for instance, a 1994 signing statement of

6

Vacancies Reform Act, because Congress has speci?ed that the CFPB ?shall be considered an
Executive agency,? id 5491(a), which brings it within section 3347(a), and because the
Director does not fall within the category of of?cers Whom Congress has excluded from
coverage under the Vacancies Reform Act.

In 5 U.S.C. 3349c, Congress speci?ed that the Vacancies Reform Act ?shall not apply?
to the following of?cers:

(1) any member who is appointed by the President, by and with the advice and
consent of the Senate to any board, commission, or similar entity that??

(A) is composed of multiple members; and

(B) governs an independent establishment or Government corporation;
(2) any commissioner of the Federal Energy Regulatory Commission;
(3) any member of the Surface Transportation Board; or

(4) any judge appointed by the President, by and with the advice and consent of the
Senate, to a court constituted under article I of the United States Constitution.

As that provision illustrates, Congress has indeed determined that some positions with hallmarks
of independence should not be ?lled on an acting basis through the Vacancies Reform Act. But
section 3349c does not exclude the Director of the CFPB, because the CFPB is not governed by
any ?entity that . . . is composed of multiple members,? id. 3349c(1) (emphasis added), and the
Director does not appear among the other speci?cally enumerated positions.5

Even apart from the Director?s absence from section 3349c?s list of carve-outs, the
removal protections for the Director would not insulate an Acting Director from displacement by
the President under the Vacancies Reform Act. In Swan v. Clinton, 100 F.3d 973 (DC. Cir.
1996), the court considered whether members of the Board of the National Credit Union
Administration, whom the court assumed to have tenure protection during their statutory terms of
of?ce, continued to have tenure protection while serving in a holdover capacity following the
expiration of their terms. Id. at 983. It concluded that, ?even if the [relevant] statute were
interpreted to grant removal protection to Board members during their appointed terms . . . this
protection does not extend to holdover members.? Id. at 988. To the extent that a designation
under the Vacancies Reform Act might be regarded as comparable to a ?removal? of an Acting
Director of the CFPB, a similar analysis would apply. Congress does not, by purporting to give

 

President Clinton. See Statement on Signing the Social Security Independence and Program Improvement Act of
1994 (Aug. 15, 1994), 2 Pub. Papers of Pres. William Je??erson Clinton 1471, 1472 (1994).

5 The fact that the Director?s position did not exist when the Vacancies Reform Act was enacted does not
change the analysis. See supra note 2. To the contrary, it reinforces the proposition that Congress could have
excluded the Director of the CFPB from coverage upon creating the of?cefact, the Senate
Report on the Vacancies Reform Act expressly noted that both the Vacancies Reform Act and an of?ce-speci?c
statute would be available to ?ll a vacancy in the of?ce of the Commissioner of the Social Security Administration,
another single?member agency head with certain statutory tenure protections. See S. Rep. No. 105?250, at 16?17;
see also 42 U.S.C. 902(a)(3), Thus, the exclusion for an ?independent establishmen headed by a
multiple-member entity, but not by a single member, cannot be ignored.

tenure protection to a Senate?con?rmed of?cer, afford similar protection to an individual who
temporarily performs the functions and duties of that of?ce when it is vacant.

Nor is our conclusion affected by the drafting history of section 5491. The version of
that provision that passed the House of Representatives would have provided that, the event
of vacancy or during the absence of the Director . . . an Acting Director shall be appointed in the
manner provided in [the Vacancies Reform Act].? Wall Street Reform and Consumer Protection
Act of 2009, HR. 4173, 111th Cong. 4102(b)(6)(B)(i) (as passed by House of Representatives,
Dec. 11, 2009). That version of the bill would not have established a position of Deputy
Director. See id. 4106(a) (providing for the Director?s appointment of other of?cials).
Although the enacted version of the provision dealing with a vacancy in the Director position
does not expressly refer to the Vacancies Reform Act, there is no reason to infer that Congress
deemed the Vacancies Reform Act inapplicable. Such an inference from the failure to enact the
House?passed version ?lacks persuasive signi?cance because several equally tenable inferences
may be drawn from such inaction, including the inference that? the enacted version of the
provision ?already incorporated the offered change.? Pension Bene?t Guar. Corp. v. LT Corp. 
496 US. 633, 650 (1990) (internal quotation marks omitted). In fact, that is the most plausible
inference, given that the statutory backdrop at the time included the Vacancies Reform Act.
Because the enacted provision makes the Deputy Director available to act as Director, the
Vacancies Reform Act is not the ?exclusive means? for designating an Acting Director, as
indicated by the text of section 3347(a) and this Of?ce?s 2003 and 2007 opinions. Yet the
Vacancies Reform Act continues to provide an available mechanism for the President to
designate an Acting Director of the CFPB.

IV.

For the reasons set forth above, we conclude that the President may designate an Acting
Director of the CFPB under 5 U.S.C. 3345(a)(2) or (3), because both the Vacancies Reform
Act and the of?ce?speci?c statute are available to ?ll a vacancy in that of?ce on an acting basis.

92 gm

STEVEN A. ENGEL
Assistant Attorney General

TO:

The Senior Leadership Team, CFPB

FROM:

Mary E. McLeod, General Counsel

SUBJECT:

Acting Director of the CFPB

DATE:

November 25, 2017

Questions have been raised whether the President has the authority under the Federal Vacancies
Reform Act (FVRA) to designate Mick Mulvaney, the Director of the Office of Management and
Budget, as the Acting Director of CFPB following the resignation of Richard Cordray as of
midnight, Friday, November 24, 2017, even if the Deputy Director otherwise could act under 12
U.S.C. ? 5491(b)(5). This confirms my oral advice to the Senior Leadership Team that the
answer is "yes." I advise all Bureau personnel to act consistently with the understanding that
Director Mulvaney is the Acting Director of the CFPB. I outline my reasoning below briefly.
The FVRA is generally "the exclusive means for temporarily authorizing an acting official to
perform the functions and duties of any office of an Executive agency... for which appointment
is required to be made by the President, by and with the advice and consent of the Senate." 5
U.S.C. ? 3347(a). The FVRA is not the exclusive means of authorizing an acting official,
however, when "a statutory provision ... designates an officer or employee to perform the
functions and duties of a specified office temporarily in an acting capacity." 5 U.S.C. ? 3347(a).
Section 1011(b)(5) of the CFPA, 12 U.S.C. ? 5491(b)(5), is on its face such a statute. It states
that the Deputy Director "shall ... serve as acting Director in the absence or unavailability of the
Director." The Vacancies Act thus does not extinguish the authority of the Deputy Director to
serve as the Acting Director under 12 U.S.C. ? 5491(b)(5).
At the outset, there is a debatable question as to whether the phrase "absence or unavailability" is
broad enough to provide authority for the Deputy Director to serve as Acting Director in the
situation of a vacancy created by a resignation. On the one hand, it could be argued that a
vacancy--as opposed to a temporary absence or other unavailability--does not qualify as an
"absence or unavailability." See Federal Reserve Board -Vacancy With the Office of the
Chairman - Status of the Vice Chairman, 2 U.S. Op. O.L.C. 394, 395 (1978) (opining that "[t]he
term 'absence' normally connotes a failure to be present that is temporary in contradistinction to
the term 'vacancy' caused, for example, by death of the incumbent or his resignation"). There
are other provisions of the Dodd-Frank Act that expressly provide for acting officers "in the
event of a vacancy," as well as in the event of an "absence or disability." See Dodd-Frank Wall
Street Reform and Consumer Protection Act, Pub. L. No. 111-203, ?? 336(a)(2), 111(c)(3),
codified at 12 U.S.C. ?? 1812(d)(2), 5321(c)(3). 1
1

Section 336(a)(2) governs vacancies on the FDIC Board of Directors and provides that, "[i]n
the event of a vacancy in the office of the Comptroller of the Currency or the office of Director
of the Consumer Financial Protection Bureau and pending the appointment of a successor, or
during the absence or disability of the Comptroller of the Currency or the Director of the
Consumer Financial Protection Bureau, the acting Comptroller of the Currency or the acting
Director of the Consumer Financial Protection Bureau, as the case may be, shall be a member of
the Board of Directors in the place of the Comptroller or Director." 12 U.S.C. ? 1812(d)(2).
Section 111(c)(3) governs vacancies on the Financial Stability Oversight Council and provides
1

On the other hand, the common meaning of "unavailability" arguably encompasses vacancies.
"Unavailable" means "not available," i.e. not "[q]ualified and willing to serve." American
Heritage Dictionary of the English Language (4th ed. 2000). If someone no longer holds office,
he is not "qualified . . . to serve"--and is therefore "unavailable." Moreover, Executive Orders
and at least two agencies' published succession plans reflect an understanding that a "vacancy in
office" is one reason that an officer may be "not available."
In the present circumstances, it is not necessary to resolve the meaning of "absence or
unavailability" because the statutory language, legislative history, precedent from the Office of
Legal Counsel at the Department of Justice, and case law all point to the conclusion that the
President may use the Vacancies Reform Act to designate an acting official, even when there is a
succession statute under which another official may serve as acting. Some have argued that the
FVRA is the "default setting," and does not control when there is another statute that provides
for succession. The Office of Legal Counsel rejected this view in an opinion that I find on point
and persuasive. "Authority of the President to Name an Acting Attorney General," 2007 WL
5334854 (Sept. 17, 2007). In that case the President sought to name as Acting Attorney General
an individual who would not have become acting under the Attorney General Order
implementing the agency succession statute. In that opinion, OLC reasoned:
That the Vacancies Reform Act is not exclusive does not mean that it is unavailable. By
its terms, the Vacancies Reform Act (with express exceptions not relevant here) applies
whenever a Senate-confirmed officer in an executive agency resigns. See 5 U.S.C. ?
3345(a). The Vacancies Reform Act nowhere says that, if another statute remains in
effect, the Vacancies Reform Act may not be used. Indeed, the Senate Committee Report
accompanying the Act expressly disavows this view. After listing a number of statutes
that would come within the exception to exclusivity in the Vacancies Reform Act,
including 28 U.S.C. ? 508, the Senate Committee Report states that "[i]n any event, even
with respect to the specific positions in which temporary officers may serve under the
specific statutes this bill retains, the Vacancies [Reform] Act would continue to provide
an alternative procedure for temporarily occupying the office." S. Rep. No. 105-250, at
17 (1998).
Furthermore, nothing in the text of the statute or its legislative history supports the
conclusion that the 'alternative procedure' of the Vacancies Reform Act may be used
only when no one can serve under a statute like 28 U.S.C. ? 508. In analogous
circumstances, we earlier concluded that the President could use the Vacancies Reform
Act to name an Acting Director of the Office of Management and Budget, even though
another statute, 31 U.S.C. ? 502(f) (2000), came within the exception to exclusivity under
the Vacancies Reform Act and authorized the President to designate an Acting Director.
that, "[i]n the event of a vacancy in the office of the head of a member agency or department,
and pending the appointment of a successor, or during the absence or disability of the head of a
member agency or department, the acting head of the member agency or department shall serve
as a member of the Council in the place of that agency or department head." 12 U.S.C.
? 5321(c)(3).
2

We wrote that '[t]he Vacancies Reform Act does not provide ... that where there is
another statute providing for a presidential designation, the Vacancies Reform Act
becomes unavailable. The legislative history squares with the conclusion that, in such
circumstances, the Vacancies Reform Act may still be used.' Memorandum for the
Deputy Counsel to the President, from M. Edward Whelan III, Acting Assistant Attorney
General,Office of Legal Counsel, Re: Designation of Acting Director of the Office of
Management and Budget at n.1 (June 12, 2003) (available at www.usdoj.gov/olc/
opinions.html). We do not believe that this opinion could be distinguished on the ground
that, there, the President had the authority under both statutes, while here the authority
under the Vacancies Reform Act belongs to the President and section 508 provides that
the Attorney General may designate officers to serve. Neither the text of the statute nor
the legislative history places any weight on such a distinction. Nor would it make sense
that the Attorney General, through the exercise of a discretionary authority to name a
further order of succession after the Deputy Attorney General and Associate Attorney
General, could prevent the President, his superior, from using his separate authority under
the Vacancies Reform Act. Indeed, for this reason, we believe that the President's action
under the Vacancies Reform Act, without more, trumps the Attorney General's
designation of a succession under section 508. [footnotes omitted]
See also Hooks v. Kitsap Tenant Support Servs., Inc., 816 F.3d 550, 556 (9th Cir. 2016) (holding
that where the National Labor Relations Act contained a provision specifying the means of
designating an Acting General Counsel, "neither the FVRA nor the NLRA is the exclusive means
of appointing an Acting General Counsel of the NLRB").
Some commentators have asserted that 12 U.S.C. ? 5491(b)(5), which was enacted after the
FVRA, was intended to expressly prohibit the President from naming an Acting Director under
the FVRA. In support of this argument, some have focused on the fact that the version of the
CFPA that originally passed the House of Representatives provided that the FVRA applies in the
event of "vacancy or during the absence of the Director," whereas the final version did not refer
to the FVRA, and instead provided for the Deputy Director to serve as Acting Director in the
event of the Director's "absence or unavailability." They assert that this is evidence that
Congress knew how to say that the FVRA applies, but ultimately decided that it would not. I
believe these arguments are unpersuasive. In the House-passed version of the CFPA, the
Director was to lead the agency only during the initial two-year period from the date that the
Bureau's authorities were first transferred to it, after which all of the Director's authorities would
have been assumed by a Commission. Given that this was not the structure for the Bureau
ultimately adopted in the CFPA, the significance of this provision--and its absence from the
final bill--is limited. Further, even to the extent this legislative history is nonetheless relevant in
interpreting Section 5491(b)(5), one could just as easily argue it shows that Congress was aware
that the FVRA generally applies, and chose not to preempt it by either expressly exempting the
succession from the FVRA, or by expressly providing for the Deputy Director to serve in the
event of a "vacancy" or "resignation."
Accordingly, as General Counsel for the Bureau, it is my legal opinion that the President
possesses the authority to designate an Acting Director for the Bureau under the FVRA,
notwithstanding ? 5491(b)(5).
3

Case 1:17-cv-02534-TJK Document 1 Filed 11/26/17 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LEANDRA ENGLISH,
Deputy Director and Acting Director,
Consumer Financial Protection Bureau,
1700 G Street, NW,
Washington, DC 20552,
Plaintiff,

Case No. ___________

v.
DONALD JOHN TRUMP,
in his official capacity as President of
the United States of America,
1600 Pennsylvania, Avenue, NW,
Washington, DC 20500,
JOHN MICHAEL MULVANEY,
in his capacity as the person claiming to
be acting director of the Consumer
Financial Protection Bureau,
725 17th Street, NW,
Washington, DC 20503,
Defendants.

COMPLAINT FOR
DECLARATORY AND
INJUNCTIVE RELIEF
EMERGENCY TEMPORARY
RESTRAINING ORDER SOUGHT

INTRODUCTION
The Dodd-Frank Act of 2010 created the Consumer Financial Protection Bureau as an
independent federal agency, to be led by a single director. Effective at midnight on November
24, 2017, the Bureau's first Director, Richard Cordray, resigned his post. At that point, plaintiff
Leandra English, the Bureau's Deputy Director, became the agency's Acting Director by
operation of law. The Dodd-Frank Act is clear on this point: It mandates that the Deputy
Director "shall . . . serve as the acting Director in the absence or unavailability of the Director."
12 U.S.C. ? 5491(b)(5)(B). By statute, she serves in that capacity until such time as the President
appoints and the Senate confirms a new Director. See 12 U.S.C. ? 5491(b)(2).

Case 1:17-cv-02534-TJK Document 1 Filed 11/26/17 Page 2 of 9

Disregarding this statutory language, President Trump issued a press release on the
evening of November 24 indicating his desire to install defendant Mulvaney, the Director of the
White House Office of Management and Budget, as the Bureau's Acting Director. Under this
scenario, Mr. Mulvaney would seek to serve indefinitely as the interim head of a statutorily
"independent" agency while simultaneously occupying his current White House post.
The President apparently believes that he has authority to appoint Mr. Mulvaney under
the Federal Vacancies Reform Act of 1988, 5 U.S.C. ? 3345(a)(2). But the Vacancies Act, by its
own terms, does not apply where another statute "expressly . . . designates an officer or employee
to perform the functions and duties of a specified office temporarily in an acting capacity," 5
U.S.C. ? 3347(a)(1)(B)--which is exactly what the Dodd-Frank Act does. The President's
interpretation of the FVRA runs contrary to Dodd-Frank's later-enacted, more specific, and
mandatory text. The President's stance is also difficult to square with the relevant legislative
history: An earlier version of the Dodd-Frank Act, which would have specifically allowed the
President to use the Vacancies Act to temporarily fill the office, was eliminated and replaced with
the current language designating the Deputy Director as the Acting Director. And the President's
attempt to appoint a still-serving White House staffer to displace the acting head of an
independent agency is contrary to the overall statutory design and independence of the Bureau.
As the rightful Acting Director of the Bureau, Ms. English brings this action against
President Trump and Mr. Mulvaney seeking a declaratory judgment and, on an emergency
basis, a temporary restraining order to prevent the defendants from appointing, causing the
appointment of, recognizing the appointment of, or acting on the appointment of an Acting
Director of the Consumer Financial Protection Bureau via any mechanism other than that
provided for by 12 U.S.C. ? 5491(b)(5)(B).

2

Case 1:17-cv-02534-TJK Document 1 Filed 11/26/17 Page 3 of 9

JURISDICTION AND VENUE
1.

This Court has jurisdiction over the subject matter of this action for declaratory

and injunctive relief under 28 U.S.C. ?? 1331, 1361, 1651, 2201, and 2202.
2.

Venue is proper in this district under 28 U.S.C. ? 1391(e).
PARTIES

3.

Plaintiff Leandra English is the Deputy Director and Acting Director of the

Consumer Financial Protection Bureau.
4.

Defendant Donald J. Trump is the President of the United States and is

responsible for the purported designation of Defendant Mulvaney as Acting Director of the
Consumer Financial Protection Bureau.
5.

Defendant John Michael Mulvaney, also known as Mick Mulvaney, is the

Director of the White House Office of Management and Budget and a person claiming to be
designated as the Acting Director of the Consumer Financial Protection Bureau.
STATUTORY BACKGROUND
6.

In 2010, Congress enacted the Dodd-Frank Wall Street Reform and Consumer

Protection Act, Pub. L. 111-203, 124 Stat. 1376 (July 21, 2010), which created the Consumer
Financial Protection Bureau (CFPB) and established it as "an independent bureau" located "in
the Federal Reserve System." 12 U.S.C. ? 5491(a). A key response to the 2008 financial crisis, the
CFPB is the first federal agency with the sole goal of protecting consumers of the U.S. financial
services industry. Conscious of the regulatory failures that had fueled the 2008 crisis, Congress
took pains to ensure that the new agency would be independent enough to resist capture by
powerful financial interests and fulfill its critical responsibilities to American consumers.
7.

The CFPB is designed to be led and managed by a single Director, "who shall

serve as the head of the Bureau." 12 U.S.C. ? 5491(b)(1). The Director, who serves a five-year
3

Case 1:17-cv-02534-TJK Document 1 Filed 11/26/17 Page 4 of 9

term, is to be "appointed by the President, by and with the advice and consent of the Senate." 12
U.S.C. ? 5491(b)(2). To ensure the Bureau's independence, Congress specified that the Director
would not serve at the pleasure of the President and could instead be removed only for cause. See
12 U.S.C. ? 5491(c)(3) ("The President may remove the Director for inefficiency, neglect of duty,
or malfeasance in office.").
8.

As an additional measure of independence, Congress ensured that the President

could not circumvent the need for Senate confirmation by naming a temporary replacement for
a Director who leaves before the expiration of his or her term. Instead, Congress provided that
the Bureau's Deputy Director, who is "appointed by the Director," shall "serve as acting Director
in the absence or unavailability of the Director." 12 U.S.C. ? 5491(b)(5).
9.

This designation of the Deputy Director as the "acting Director" reflects

Congress's deliberate choice to depart from the default procedure for naming an acting official
under the Federal Vacancies Reform Act of 1988 (FVRA). An early version of the Act that
passed the House of Representatives in December 2009 did not provide for a Deputy Director,
and instead explicitly stated that a temporary replacement for a Director would be chosen "in the
manner provided by" the FVRA. See H.R. 4173, 111th Cong. ? 4102(b)(6)(B)(1) (engrossed
version, Dec. 11, 2009). The Senate bill introduced and passed months later contained the
present statutory language. See S. 3217, 111th Cong. ? 1011(b)(5)(B) (2010).
10.

The Vacancies Act, by its own terms, does not control where, as with the Dodd-

Frank Act, "a statutory provision expressly . . . designates an officer or employee to perform the
functions and duties of a specified office temporarily in an acting capacity." 5 U.S.C. ?
3347(a)(1)(B).

4

Case 1:17-cv-02534-TJK Document 1 Filed 11/26/17 Page 5 of 9

FACTUAL ALLEGATIONS
11.

Richard Cordray was confirmed as the first Director of the CFPB by a 66-34 vote

in the United States Senate on July 16, 2013, and took office on July 17, 2013.
12.

Mr. Cordray resigned his position as Director of the CFPB, effective at midnight

on November 24, 2017.
13.

At approximately 2:30 p.m. on the afternoon of November 24, 2017, before

leaving office, Director Cordray publicly announced that he had appointed Leandra English--up
until then the Bureau's Chief of Staff--as the Bureau's Deputy Director, to ensure that she would
become the Acting Director pursuant to 12 U.S.C. ? 5491(b)(5) until the confirmation by the
Senate of a new Director appointed by the President.
14.

"In considering how to ensure an orderly succession for this independent agency,"

Director Cordray explained in a statement, "I have also come to recognize that appointing the
current chief of staff to the deputy director position would minimize operational disruption and
provide for a smooth transition given her operational expertise."
15.

In addition to serving as the CFPB's Chief of Staff, Ms. English has served in

number of senior leadership roles at the CFPB, including Deputy Chief Operating Officer,
Acting Chief of Staff, and Deputy Chief of Staff. In addition to her work at the CFPB, Ms.
English has served as the Principal Deputy Chief of Staff at the Office of Personnel Management,
the Chief of Staff and Senior Advisor to the Deputy Director for Management at the White
House Office of Management and Budget, and as a member of the CFPB Implementation Team
at the U.S. Department of the Treasury. Ms. English received her B.A. from New York
University and her M.S. from the London School of Economics.
16.

At approximately 8:50 p.m. on the evening of November 24, 2017, the White

House press office issued the following statement: "Today, the President announced that he is
5

Case 1:17-cv-02534-TJK Document 1 Filed 11/26/17 Page 6 of 9

designating Director of the Office of Management and Budget (OMB) Mick Mulvaney as Acting
Director of the Consumer Financial Protection Bureau (CFPB)." The White House statement did
not refer to Director Cordray's earlier appointment of Ms. English as Deputy Director and was
not accompanied by any legal reasoning concerning the President's claimed authority to make
the appointment.
17.

Mr. Mulvaney has never previously served in any capacity in a consumer-

protection enforcement or financial or banking regulatory agency at the state, federal, or local
level. Mr. Mulvaney has described the CFPB as a "sad, sick joke," has co-sponsored legislation
proposing to eliminate the agency, and has said at a hearing in the House of Representatives: "I
don't like the fact that CFPB exists, I'll be perfectly honest with you."
18.

On Saturday, November 25, 2017, the Department of Justice Office of Legal

Counsel released a memorandum providing legal arguments in support of Mr. Mulvaney's
appointment. The memorandum acknowledges that the statutory scheme of the CFPB provides
that the Deputy Director shall become the Acting Director when there is a vacancy in the
position of the Director. But the memorandum claims that the President may nevertheless choose
to appoint someone from outside the agency to take the position of Acting Director via the
Federal Vacancies Reform Act of 1998, 5 U.S.C. ?? 3345-3349d.
CLAIMS FOR RELIEF
19.

Ms. English has a clear legal entitlement to the position of Acting Director of the

CFPB. At the moment that Director Cordray's resignation became effective, she was the
Bureau's Deputy Director, a position created by Congress via the Dodd-Frank Act. See 12 U.S.C.
? 5491(b). The statutory provision creating the position states, in mandatory language, that the
Deputy Director "shall . . . serve as acting Director in the absence or unavailability of the
Director." Id. ? 5491(b)(5)(B). Under a plain reading of this language, the Deputy Director
6

Case 1:17-cv-02534-TJK Document 1 Filed 11/26/17 Page 7 of 9

automatically becomes the Acting Director when the Director leaves office: a Director who is no
longer serving in office is "absent" as well as "unavailable." Thus, when a Director resigns, the
Deputy Director serves as Acting Director. This legal arrangement was triggered by the
resignation of Director Cordray on November 24, 2017, and his appointment of Ms. English as
Deputy Director on that same date.
20.

The President's purported or intended appointment of defendant Mulvaney as

Acting Director of the CFPB is unlawful. The President's use of the Federal Vacancies Reform
Act to appoint an Acting Director of the CFPB would be an obvious contravention of Congress's
statutory scheme. The President's interpretation of the FVRA cannot be reconciled with DoddFrank's mandatory language. Where the two statutes conflict, Dodd-Frank controls as the laterenacted, more specific statute.
21.

The President's purported or intended appointment is also unlawful as a violation

of the foundational principles of agency independence that Congress codified by the Dodd-Frank
Act. The President may not, consistent with the statutory requirement of independence, install a
still-serving White House staffer as the acting head of an independent agency--particularly when
doing so would displace an acting head who has a clear legal entitlement to the position.
22.

There is a substantial and continuing controversy between Ms. English and the

defendants, and a declaration of rights under the Declaratory Judgment Act is both necessary
and appropriate to establish that Ms. English is the Acting Director of the CFPB and that neither
defendant has any ability to make or receive an appointment for the position of Acting Director
of the CFPB, or to otherwise act as an officer of the CFPB.
23.

Ms. English will be and is irreparably harmed by the defendants' actions and

threatened actions, and is without an adequate remedy at law.

7

Case 1:17-cv-02534-TJK Document 1 Filed 11/26/17 Page 8 of 9

PRAYER FOR RELIEF
The plaintiffs request that the Court:
a. Declare that, under 12 U.S.C. ? 5491(b)(5)(B), Plaintiff Leandra English is the Acting
Director of the Consumer Financial Protection Bureau;
b. Declare that the Federal Vacancies Reform does not control the appointment of a
temporary Acting Director of the Consumer Financial Protection Bureau because the
Dodd-Frank Act "expressly . . . designates an officer or employee to perform the
functions and duties of a specified office temporarily in an acting capacity," 5 U.S.C.
? 3347(a)(1)(B);
c. Declare that defendant Mulvaney is not the Acting Director of the Consumer
Financial Protection Bureau;
d. Order that defendant Trump shall refrain from appointing any individual to the
position of Acting Director of the Consumer Financial Protection Bureau, recognizing
any individual other than plaintiff as the holder of that office, or causing any person to
recognize someone other than plaintiff as the holder of that office;
e. Order that defendant Mulvaney shall refrain from accepting any appointment to the
position of Acting Director of the Consumer Financial Protection Bureau, or asserting
or exercising in any way the authority of that office;
f. Award all other appropriate relief.

8

Case 1:17-cv-02534-TJK Document 1 Filed 11/26/17 Page 9 of 9

Respectfully submitted,
/s/ Deepak Gupta
DEEPAK GUPTA (D.C. Bar No. 495451)
MATTHEW W.H. WESSLER (D.C. Bar No. 985241)
DANIEL TOWNSEND (pro hac vice application to be filed)
GUPTA WESSLER PLLC
1900 L Street, NW, Suite 312
Washington, DC 20036
Phone: (202) 888-1741
Fax: (202) 888-7792
deepak@guptawessler.com
November 26, 2017

Attorneys for Plaintiff

9

Case 1:17-cv-02534-TJK Document 9 Filed 11/27/17 Page 1 of 19

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

LEANDRA ENGLISH,
Plaintiff,
v.
DONALD J. TRUMP and
JOHN MICHAEL MULVANEY,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

No. 1:17-cv-02534-TJK

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR A TEMPORARY
RESTRAINING ORDER

 Case 1:17-cv-02534-TJK Document 9 Filed 11/27/17 Page 2 of 19

INTRODUCTION
This case presents a straightforward question: whether the Consumer Financial Protection
Bureau (“CFPB”)—uniquely among federal agencies—falls outside the purview of the Vacancies
Reform Act (“VRA”), despite being ineligible for any of the Act’s enumerated exceptions. In
arguing that it does, and on that basis asking the Court to issue a temporary restraining order
enjoining the President’s designation of John M. Mulvaney as the Bureau’s Acting Director and
recognize her as Acting Director in Mulvaney’s place, Plaintiff Leandra English (“Plaintiff”) rests
her contention primarily on two of the CFPB’s characteristics: its status as an independent
agency and the Dodd-Frank Act’s provision that the Deputy Director “shall” become the Acting
Director under certain circumstances. But it is well established that neither of those (relatively
common) characteristics is sufficient to take an agency outside the scope of the VRA. Indeed,
the Ninth Circuit ratified longstanding Executive Branch practice just last year when it applied the
VRA to an independent agency with its own default succession statute. See Hooks v. Kitsap
Tenant Support Servs., Inc., 816 F.3d 550, 555-56 (9th Cir. 2016); see also S. Rep. No. 105-250,
at 16-17 (VRA applies to Export-Import Bank and Social Security Administration); 5 U.S.C.
§ 3349c (excepting certain independent agency positions from the VRA). And, since the earliest
days of the VRA, it has been clear that the Act remains available even where there are
“mandatory” agency-specific succession statutes. See S. Rep. 105-250, at 15-17; Memorandum
from Steven A. Engel, Asst. Att’y Gen., to Donald F. McGahn II, Counsel to the President,
Designating an Acting Director of the Bureau of Consumer Financial Protection, at 5 n.3 (Nov.
25, 2017) (“OLC Memo”) (collecting statutes).
For those and other reasons, both the Department of Justice’s Office of Legal Counsel
(“OLC”) and the General Counsel for the CFPB agree that the President of the United States
1

 Case 1:17-cv-02534-TJK Document 9 Filed 11/27/17 Page 3 of 19

lawfully designated John M. Mulvaney as the CFPB’s Acting Director pursuant to the VRA.
Thus, Plaintiff cannot establish the likelihood of success on the merits of her claim necessary to
obtain the extraordinary emergency injunctive relief she seeks. And Plaintiff faces no prospect
of irreparable harm warranting such a radical departure from the status quo that presently exists at
the CFPB.
Plaintiff’s arguments to the contrary rest on a bureaucratic sleight-of-hand effected on the
final day of former CFPB Director Richard Cordray’s tenure: in the waning hours of the day
after Thanksgiving, he purported to appoint Plaintiff, his then-chief of staff, as the Bureau’s
Deputy Director. The CFPB had operated without a permanent Deputy Director for more than
two years prior to that time, but the former Acting Deputy Director during that period had never
been named to fill the post permanently. In designating Plaintiff as Deputy Director on his last
day in office, the former Director stated publicly that he had done so to determine his successor at
the agency.
In the government’s view, however, this sleight-of-hand does not mean that Plaintiff in
fact acceded to the Acting Director position. Rather, on the very same day, the President
designated Mulvaney as Acting Director of the CFPB under the VRA, effective upon the
resignation of the Director. And because the VRA remains available even where there are
agency-specific succession statutes, Mulvaney became the Acting Director at 12:01 a.m. on
November 25, 2017.
Notwithstanding the President’s designation of Acting Director Mulvaney, Plaintiff claims
in this action that she acceded to the position of Acting Director pursuant to a provision in the
Dodd-Frank Act, 12 U.S.C. § 5491(b)(5). Remarkably, Plaintiff seeks the extraordinary remedy
of an injunction prohibiting the President from exercising his authority under the VRA and
2

 Case 1:17-cv-02534-TJK Document 9 Filed 11/27/17 Page 4 of 19

Article II of the Constitution to appoint an officer of the United States and ordering the President
to withdraw his preexisting designation of Acting Director Mulvaney. Such an order would be a
radical departure from the established principle that courts have no power to issue injunctions
against the President. See Mississippi v. Johnson, 71 U.S. 475, 501 (1866) (finding “no
jurisdiction of a bill to enjoin the President in the performance of his official duties”); Franklin v.
Massachusetts, 505 U.S. 788, 828 (1992) (Scalia, J., concurring).
In addition, the Court should deny Plaintiff’s motion for emergency injunctive relief
because she is unlikely to succeed on the merits of her claim that the President’s designation of
Acting Director Mulvaney is unlawful. As OLC concluded, the President “may designate an
Acting Director of the CFPB under the Vacancies Reform Act.” OLC Memo at 2. The CFPB’s
General Counsel independently reached the same conclusion. See Memorandum from Mary E.
McLeod, CFPB General Counsel, to CFPB Senior Leadership Team, Acting Director of the
CFPB, at 1 (Nov. 25, 2017) (“McLeod Memo”) (concluding that “the President possesses the
authority to designate an Acting Director for the Bureau under the FVRA, notwithstanding §
5491(b)(5)”). Plaintiff offers no basis for this Court to reject the sound conclusions of OLC and
the CFPB’s General Counsel that the President lawfully designated Acting Director Mulvaney.
Plaintiff’s motion should also be denied because Plaintiff has failed to demonstrate that
she will suffer irreparable harm in the absence of emergency injunctive relief. As a threshold
matter, Plaintiff grossly misstates the status quo. Legally, Plaintiff never acceded to the position
of Acting Director because the President’s designation of Acting Director Mulvaney took effect
immediately upon the former Director’s resignation. More practically, it is Acting Director
Mulvaney who is in residence at the CFPB, is listed as “acting director” on the CFPB website,
The Director, https://www.consumerfinance.gov/about-us/the-bureau/about-director/ (last visited
3

 Case 1:17-cv-02534-TJK Document 9 Filed 11/27/17 Page 5 of 19

Nov. 27, 2017), and has begun work. Indeed, on November 25, 2017, the CFPB’s General
Counsel “advise[d] all Bureau personnel to act consistently with the understanding that Director
Mulvaney is the Acting Director of the CFPB.” McLeod Memorandum, supra, at 1. Per that
directive, CFPB staff (with the exception of Plaintiff) is treating Mulvaney as the Acting Director.
Accordingly, Plaintiff’s request for a temporary restraining order would radically upend the status
quo rather than maintain it.
To the same end, emergency injunctive relief should be denied on the basis that a loss of
position by itself does not amount to irreparable injury. Nor has Plaintiff suffered any ancillary
injury: she remains the purported Deputy Director of the CFPB and has not been removed from
that position. And, because no additional pay is tied to an acting designation, she cannot allege
any financial injury. Further, Plaintiff has not identified any imminent action by the CFPB’s
Acting Director prompting the need for emergency relief.
Finally, as to the balancing of harms (which in this case is coextensive with the public
interest inquiry), there is no question that temporary injunctive relief would impose substantial
harms on the President and the CFPB. An order compelling the President to recognize Plaintiff
as Acting Director and withdraw his designation of Acting Director Mulvaney would intrude
extraordinarily into core Executive Branch operations; it would effectively install Plaintiff in
office, potentially leading her to argue that she cannot be removed by anyone, for any reason; it
would sow confusion in the face of the General Counsel’s advice that CFPB should recognize
Mulvaney as the Acting Director; and it would lend credence to the view that the leadership of the
CFPB is accountable to no one, not even to the President of the United States. By the same
token, an order compelling the withdrawal of Mulvaney from his position as Acting Director and
substituting Plaintiff would disrupt the agency’s operations and open the door to potential
4

 Case 1:17-cv-02534-TJK Document 9 Filed 11/27/17 Page 6 of 19

collateral attacks on agency actions taken by or at the direction of Plaintiff. For these reasons,
the Court should deny the motion.
STATUTORY BACKGROUND
The VRA provides procedures to temporarily fill a vacancy in an “Executive agency”
wherever an officer “dies, resigns, or is otherwise unable to perform the functions and duties of
the office.” 5 U.S.C. § 3345(a). For purposes of Title 5, the CFPB “shall be considered an
Executive agency.” 12 U.S.C. § 5491(a). The VRA applies to every “officer of an Executive
agency” outside of certain enumerated exceptions. 5 U.S.C. § 3345(a); 5 U.S.C. § 3349c
(exceptions); see also S. Rep. No. 105-250, at 2 (“The bill applies to all vacancies in Senateconfirmed positions in executive agencies with a few express exceptions.”). By its terms, the
VRA is “the exclusive means for temporarily authorizing an acting official to perform the
functions and duties of any [Senate-confirmed] office of an Executive agency,” other than by
recess appointment. 5 U.S.C. § 3347(a). The VRA ceases to be “exclusive” only when “a
statutory provision expressly . . . (A) authorizes the President, a court, or the head of an Executive
department, to designate an officer or employee to perform the functions and duties of a specified
office temporarily in an acting capacity; or (B) designates an officer or employee to perform the
functions and duties of a specified office temporarily in an acting capacity.” Id. In such cases,
it provides “an alternative procedure for temporarily occupying the office.” S. Rep. No. 105-250,
at 17 (1998).
The VRA’s coverage is limited only by carefully delineated exclusions. As relevant, one
of those exclusions protects the independence of certain independent agencies by excluding “any
member who is appointed by the President, by and with the advice and consent of the Senate to
any board, commission, or similar entity that (A) is composed of multiple members; and (B)
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governs an independent establishment or Government corporation.” 5 U.S.C. § 3349c. Offices
in independent agencies not covered by those criteria are eligible to be filled on a temporary basis
by the VRA. See Hooks, 816 F.3d at 556 & n.6 (applying VRA to the General Counsel of the
NLRB).
The Dodd-Frank Act established the CFPB in 2010 to enforce U.S. consumer-protection
laws that had previously been administered by seven different government agencies, as well as
new provisions added by Dodd-Frank itself. See 12 U.S.C. § 5581(b). The CFPB is headed by a
single Director who is appointed by the President, with the advice and consent of the Senate, for a
term of five years, 12 U.S.C. § 5491(b), (c)(1), and who, according to a statutory removal
restriction, is removable by the President only for “inefficiency, neglect of duty, or malfeasance in
office,” id. § 5491(c)(3). Under the CFPB’s organic statute, the CFPB’s Deputy Director is
authorized to “serve as acting Director in the absence or unavailability of the Director.” 12 U.S.C.
§ 5491(b)(5). The statute further provides, though, that “[e]xcept as otherwise provided
expressly by law, all Federal laws dealing with . . . officers . . ., including the provisions of
chapters 5 and 7 of title 5, shall apply to the exercise of the powers of the Bureau.” 12 U.S.C. §
5491(a).
Although the question is “not free from doubt,” OLC Memo at 3, the CFPB-specific
statute providing that the Deputy Director “shall . . . serve as acting Director in the absence or
unavailability of the Director,” 12 U.S.C. § 5491(b)(5), may satisfy section 3347(a)’s reference to
“a statutory provision” that “expressly . . . designates an officer or employee to perform the
functions and duties of a specified office temporarily in an acting capacity.” 5 U.S.C.
§ 3347(a)(1)(B). It is undisputed, however, that the CFPB’s Director does not fall within the
category of officers whom Congress has excluded from coverage under that Act because he is not
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a member of a Board “composed of multiple members.” See 5 U.S.C. § 3349c(1) (emphasis
added).
FACTUAL BACKGROUND
Former CFPB Director Richard Cordray purported to appoint Plaintiff, his chief of staff,
as Deputy Director of the CFPB on November 24, 2017, in his final hours as Director. Cordray
released a statement that he had appointed Plaintiff in an effort to invoke the succession provision
of 12 U.S.C. § 5491(b)(5). That same day, the President filled the vacancy created by the
resignation of former Director Cordray by designating OMB Director Mick Mulvaney to serve as
Acting Director of the CFPB, effective at the time of Cordray’s resignation. On November 27,
2017, Acting Director Mulvaney presented himself at the CFPB’s offices as the Acting Director,
was given access to the CFPB’s building and shown to the Director’s office, and began work as
Acting Director. Plaintiff now seeks emergency injunctive relief to disrupt the President’s
designation of Acting Director Mulvaney and to prevent Mulvaney from performing the official
duties of the position to which he has been designated.
STANDARD OF REVIEW
“The standard for issuance of the extraordinary and drastic remedy of a temporary
restraining order or a preliminary injunction is very high.” Jack’s Canoes & Kayaks, LLC v. Nat’l
Park Serv., 933 F. Supp. 2d 58, 75 (D.D.C. 2013) (citation omitted). An interim injunction is
“never awarded as of right,” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008), and
“should be granted only when the party seeking the relief, by a clear showing, carries the burden
of persuasion,” Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir. 2004). A party moving for a
temporary restraining order or a preliminary injunction “must demonstrate ‘(1) a substantial
likelihood of success on the merits, (2) that it would suffer irreparable injury if the injunction is
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not granted, (3) that an injunction would not substantially injure other interested parties, and (4)
that the public interest would be furthered by the injunction.’” Jack’s Canoes, 933 F. Supp. 2d at
75-76 (quoting CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 746 (D.C. Cir.
1995)). When, as here, the government is opposing a motion for a preliminary injunction, the
third and fourth factors merge. See Nken v. Holder, 556 U.S. 418, 435 (2009). 1
Moreover, a plaintiff seeking a mandatory injunction faces a greater hurdle than one
seeking a prohibitive injunction. Mylan Pharm., Inc. v. Shalala, 81 F. Supp. 2d 30, 36 (D.D.C.
2000). In this Circuit, “the power to issue a preliminary injunction, especially a mandatory one,
should be sparingly exercised.” Dorfmann v. Boozer, 414 F.2d 1168, 1173 (D.C. Cir. 1969); see
also Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1319 (9th Cir. 1994) (where movant seeks
mandatory injunction “well beyond maintaining the status quo pendente lite, courts should be
extremely cautious about issuing a preliminary injunction.”). “[W]here an injunction is
mandatory—that is, where its terms would alter, rather than preserve, the status quo by
commanding some positive act—the moving party must meet a higher standard than in the
ordinary case by showing ‘clearly’ that he or she is entitled to relief or that ‘extreme or very
serious damage’ will result from a denial of the injunction.” Phillip v. Fairfield Univ., 118 F.3d
131, 133 (2d Cir. 1997); see also Columbia Hosp. for Women Found., Inc. v. Bank of TokyoMitsubishi, Ltd., 15 F. Supp. 2d 1, 4 (D.D.C. 1997), aff’d, 159 F.3d 636 (D.C. Cir. 1998)

1

“The D.C. Circuit has, in the past, followed the ‘sliding scale’ approach to evaluating
preliminary injunctions. . . . The continued viability of the sliding scale approach is highly
questionable, however, in light of the Supreme Court’s holding in Winter v. Nat. Res. Def.
Council, 555 U.S. 7, 22 (2007).” Singh v. Carter, No. 16-cv-399 (BAH), 2016 WL 2626844, at
*3 (D.D.C. May 6, 2016) (citing In re Navy Chaplaincy, 738 F.3d 425, 428 (D.C. Cir. 2013) for
the proposition that all four prongs of the preliminary injunction standard must be met before
injunctive relief can be granted). In any event, regardless of which standard is applied, a
temporary restraining order is inappropriate here.
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(“Columbia Hospital”).
ARGUMENT
I.

PLAINTIFF HAS NOT ESTABLISHED A LIKELIHOOD OF SUCCESS.
Plaintiff contends that the President lacked authority to designate Acting Director

Mulvaney because Plaintiff acceded to the Acting Director position by operation of law. As
explained in the opinions of the Department of Justice’s Office of Legal Counsel and the CFPB’s
General Counsel, Plaintiff’s contention is contrary to the text and settled understanding of the
VRA. Moreover, even if the President’s designation of Acting Director Mulvaney were
unlawful, the requested injunction against the President would be an extraordinary and
inappropriate remedy.
The President lawfully exercised his authority to designate Acting Director Mulvaney
upon the resignation of former Director Cordray. The VRA provides the President with authority
“for temporarily authorizing an acting official to perform the functions and duties” of an officer of
an Executive agency whose appointment “is required to be made by the President, by and with the
advice and consent of the Senate . . . .” 5 U.S.C. § 3347(a). It is undisputed that the CFPB
“shall be considered an Executive agency,” 12 U.S.C. § 5491(a), within the ambit of the VRA,
and that the CFPB’s Director does not fall within the exemptions to the Act Congress carefully
delineated, see 5 U.S.C. § 3349c. Because Acting Director Mulvaney was previously confirmed
by the Senate to serve as the Director of the Office of Management and Budget, he is among the
officials whom the VRA expressly authorizes the President to select to “perform the functions and
duties of the vacant office temporarily in an acting capacity.” 5 U.S.C. § 3345(a)(2).
Plaintiff erroneously contends that Section 5491(b)(5) of the Dodd-Frank Act displaces
the President’s authority to designate Acting Director Mulvaney under the VRA. That
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contention rests on a basic misunderstanding of the VRA. The VRA provides that it is the
“exclusive means” for authorizing acting service “unless” another statute expressly designates an
officer to serve in an acting capacity. 5 U.S.C. § 3347(a). If another statute contains an express
designation, the only consequence is that the VRA is not the “exclusive means” of filling the
vacancy. The Act still remains an available option for the President to designate an acting
official in a manner that differs from the order of succession provided for by Section 5491(b)(5)
of the Dodd-Frank Act. See, e.g., Hooks, 816 F.3d at 555-56 (explaining that “neither the [VRA]
nor the [National Labor Relations Act] is the exclusive means of appointing an Acting General
Counsel” and that “the President is permitted to elect between these two statutory alternatives to
designate an Acting General Counsel”); S. Rep. 105–250, 1998 WL 404532, at *17 (1998)
(“[W]ith respect to the specific positions in which temporary officers may serve under the specific
statutes this bill retains, the Vacancies Act would continue to provide an alternative procedure for
temporarily occupying the office.”); see also Acting Attorney General, 31 Op. O.L.C. 208, 209-11
(2007); Acting Director of OMB, 27 Op. O.L.C. 121, 121 n.1 (2003).
OLC and the CFPB’s General Counsel each independently concluded that the President’s
designation of Acting Director Mulvaney controls over the succession provision in Section
5491(b)(5) of the Dodd-Frank Act. As OLC concluded, “[t]he Vacancies Reform Act is not the
‘exclusive means’ for the temporary designation of an Acting Director, but it remains available to
the President as one means for filling a vacancy in the Director position,” OLC Memo at 3, even
if § 5491(b)(5) provides an alternative means of succession. Thus, “when the President
designates an individual under the Vacancies Reform Act outside the ordinary order of
succession, the President’s designation necessarily controls” or else the “Vacancies Reform Act
would not remain available as an actual alternative” to the President. Id. at 6. OLC’s
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interpretation of the VRA in this instance is consistent with the Office’s longstanding view. See
Guidance on Application of Federal Vacancies Reform Act of 1998, 23 Op. O.L.C. 60, 62-63
(1999); Applicability of the Federal Vacancies Reform Act to Vacancies at the International
Monetary Fund and the World Bank, 24 Op. O.L.C. 58, 60 n.2 (2000).
Similarly, the CFPB’s General Counsel “advise[d] all Bureau personnel to act consistently
with the understanding that Director Mulvaney is the Acting Director of the CFPB.” McLeod
Memo at 1. After considering “the statutory language, legislative history, precedent from the
Office of Legal Counsel at the Department of Justice, and case law,” the General Counsel
concluded that they “all point to the conclusion that the President may use the Vacancies Reform
Act to designate an acting official, even when there is a succession statute under which another
official may serve as acting.” Id. at 2. “Accordingly, as General Counsel for the Bureau, it is
my legal opinion that the President possesses the authority to designate an Acting Director for the
Bureau under the FVRA, notwithstanding § 5491(b)(5).” Id. at 3.
Contrary to Plaintiff’s contention (TRO Mot. at 4), the fact the CFPB-specific statute uses
the mandatory word “shall” does not change the analysis. When the VRA was passed, Congress
made clear that any Presidential designation under the Act would be valid notwithstanding the
operation of agency-specific statutes. See S. Rep. No. 105-250, at 15-17 (The Act “retains
existing . . . statutes that expressly provide for the temporary performance of the functions and
duties of an office by a particular officer or employer. . . . [T]he Vacancies Act would continue
to provide an alternative procedure for temporarily occupying the office.”). Indeed, Congress
explicitly stated that statutes like Section 5491(b)(5), which “provide for an automatic
designation,” would be among those that provide an “alternative procedure” to that found in the
VRA. Id.
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In any event, the VRA also uses mandatory terms. See 5 U.S.C. § 3345(a)(1) (absent a
Presidential designation, “the first assistant to the office of such officer shall perform the
functions and duties of the office temporarily in an acting capacity” but the President “may”
designate certain others “notwithstanding” that rule) (emphasis added). Instead of interpreting
one statute to be more mandatory than the other, these two statutes should be construed in
parallel. OLC Memo at 5. At base, Plaintiff’s argument turns on the proposition that
Congress’s enactment of Section 5491 implicitly repealed the VRA’s provisions insofar as the
latter statute authorizes the President to designate someone other than the first assistant to fill the
vacant Director position. But “[i]mplied repeals are disfavored and not presumed unless the
legislative intent is ‘clear and manifest.’” Howard v. Pritzker, 775 F.3d 430, 437 (D.C. Cir.
2015) (quoting Hui v. Castaneda, 559 U.S. 799, 810 (2010)). Plaintiff can point to nothing in the
text of Section 5491, or the legislative history surrounding that provision’s passage, that signals
Congress’s “clear and manifest” intent to divest the President of the authority previously
conferred on him by the VRA. On the contrary, Section 5491 is completely silent as to
“vacancies.” Had Congress intended to repeal the VRA’s provisions—and in particular, Section
3347’s specific instructions regarding the effect of office-specific statutes on the VRA’s
appointment procedures—Congress surely would have spoken more clearly, especially in light of
the longstanding Executive Branch interpretations regarding the intersection of the VRA with
office-specific statutes. 2 Indeed, if there could be any question, the text of Section 5491(a) itself

2

The government assumes for present purposes that 12 U.S.C. § 5491(b)(5) authorizes the
Deputy Director to serve as the CFPB’s Acting Director when the Director has resigned and the
position is thus vacant, but the government reserves the right to contest that question—and raise
other defects in Plaintiff’s complaint—in a motion to dismiss. OLC acknowledged that question
“is not free from doubt,” OLC Memo at 3, and the CFPB’s General Counsel concluded the
question is “debatable” but ultimately “not necessary to resolve.” McLeod Memo. at 1-2. The
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makes clear that Title 5—which contains the VRA—is not displaced by the Dodd-Frank Act
absent the sort of “expres[s]” statement that is lacking here. 12 U.S.C. § 5491(a) (“Except as
otherwise provided expressly by law, all Federal laws dealing with public or Federal contracts,
property, works, officers, employees, budgets, or funds, including the provisions of
chapters 5 and 7 of title 5, shall apply to the exercise of the powers of the Bureau.”).
Plaintiff’s contention that Acting Director Mulvaney’s designation is somehow invalid
because his simultaneous appointment as Director of OMB threatens the Bureau’s independence
is meritless. It is well-established that the VRA applies to independent agencies such as the
Export-Import Bank, Social Security Administration, and National Labor Relations Board. See
S. Rep. No. 150-205, at 15-17. Although the VRA contains specific carve-outs for certain
“independent” agencies and commissions, Congress expressly did not make the CFPB Director an
exception to that authority. See 5 U.S.C. §§ 3345(a) & 3349c. Because Congress placed no
such restriction on the President’s power to designate an acting official, there is no basis for this
Court to infer an extra-statutory limitation on the President’s appointment authority.
Plaintiff’s claim also ignores that the President appointed the CFPB’s former Director and
will appoint the next Director. Indeed, before Cordray was confirmed as director, Elizabeth
Warren served as a “special advisor” for the CFPB and reported to the President and Secretary of
the Treasury. See Jennifer Liberto, Obama names Warren as special adviser, CNN,
http://money.cnn.com/2010/09/17/news/economy/Elizabeth_Warren_consumer_bureau/index.htm
. Whatever CFPB’s degree of independence, the President is not prevented from exercising his

government also reserves the right to contest the validity of Plaintiff’s purported appointment as
CFPB’s Deputy Director, as well as Plaintiff’s apparent assumption that an Acting Director of the
CFPB enjoys protection from removal at will.
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authority under the VRA. Plaintiff’s position could also lead to absurd results, as an Acting
Director could argue that he or she is entitled to even greater protection than an actual Director,
because there is no statutory provision authorizing her removal, even for cause. At bottom,
Plaintiff’s argument that an Acting CFPB Director must be “independent” of the President boils
down to the assertion that the VRA does not apply at all and that the selection of an Acting
Director of the CFPB—unlike the selection of a Director—must be entirely outside of the
President’s control.
Finally, even if the President’s designation of Acting Director Mulvaney was not
authorized by the VRA, this Court would still lack jurisdiction to grant Plaintiff her requested
relief of an injunction against the President. The Supreme Court has long held that courts have
“no jurisdiction of a bill to enjoin the President in the performance of his official duties.”
Mississippi v. Johnson, 71 U.S. at 500–01 (“The Congress is the legislative department of the
government; the President is the executive department. Neither can be restrained in its action by
the judicial department.”). Given the President’s unique status in the constitutional scheme, the
Court cannot issue an injunction restraining the President’s exercise of his appointment power.
II.

PLAINTIFF HAS NOT DEMONSTRATED IRREPARABLE HARM.
Plaintiff’s motion for a temporary restraining order should also be denied because she has

not established that she will suffer irreparable injury absent emergency injunctive relief. The
D.C. Circuit “has set a high standard for irreparable injury.” In re Navy Chaplaincy, 534 F.3d
756, 766 (D.C. Cir. 2008) (citation omitted); Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir.
1985) (per curiam). In government personnel cases, a plaintiff must satisfy a particularly
stringent standard for making that showing. Sampson v. Murray, 415 U.S. 61, 91-92 & n.68
(1974) (holding that absent a “genuinely extraordinary situation,” a showing of financial distress
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or difficulty in obtaining other employment does not constitute irreparable harm).
Plaintiff’s burden is especially high here because she seeks a mandatory injunction that
“would alter, rather than preserve, the status quo by commanding some positive act.” Phillip,
118 F.3d at 133. Acting Director Mulvaney took control of the CFPB this morning and has
begun work. Pursuant to the direction of the CFPB’s General Counsel that “all Bureau personnel
. . . act consistently with the understanding that Director Mulvaney is the Acting Director of the
CFPB,” CFPB GC Memo at 1, he was welcomed by CFPB staff into the Director’s Office and
presented with transition materials. The heightened standard applies here because Plaintiff never
acceded to the position of Acting Director and Mulvaney is currently serving in that position.
Plaintiff cannot meet her extraordinarily high burden of demonstrating irreparable harm
absent a mandatory injunction order declaring her to be the CFPB’s Acting Director, because
courts are virtually unanimous that the loss of a position is not irreparable. See, e.g., Hetreed v.
Allstate Ins. Co., 135 F.3d 1155, 1158 (7th Cir. 1998) (loss of position as senior manager leading
audit department not irreparable injury); Marxe v. Jackson, 833 F.2d 1121, 1122 (3d Cir. 1987)
(division manager); Rubino v. City of Mount Vernon, 707 F.2d 53 (2d Cir. 1983) (mayoralappointed City Assessor); Franks v. Nimmo, 683 F.2d 1290, 1291 (10th Cir. 1982) (Associate
Chief of Staff for Research and Development position at VA Medical Center); EEOC v. City of
Janesville, 630 F.2d 1254, 1256 (7th Cir. 1980) (Chief of Police); Levesque v. State of Me., 587
F.2d 78, 79 (1st Cir. 1978) (Maine Commissioner of Manpower). District courts in this Circuit
have reached the same conclusion. See, e.g., Farris v. Rice, 453 F. Supp. 2d 76, 79-80 (D.D.C.
2006) (“cases are legion holding that loss of employment does not constitute irreparable injury”);
Nichols v. Agency of Int’l Dev., 18 F. Supp. 2d 1, 2, 4 (D.D.C. 1998) (Chief of Information
Management Systems, Office of Inspector General); Burns v. GAO Empl. Fed. Credit Union, Civ.
15

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No. 88-3424, 1988 WL 134925, at **1, 2 (D.D.C. Dec. 2, 1988) (President of Credit Union Board
of Directors).
Plaintiff characterizes her purported injury as the loss of a “statutory right to function,”
Mem. at 10 (quoting Berry v. Reagan, Civ. No. 83-3182, 1983 WL 538, at *5 (D.D.C. Nov. 14,
1983)), but her argument begs the question whether the President had authority to designate
Acting Director Mulvaney pursuant to the VRA. In any event, although she speculates that she
“may” be terminated and that Acting Director Mulvaney “may” take actions with which she
might disagree, such speculation falls short of the showing necessary to establish irreparable
harm. Nor, in any event, has Plaintiff pointed to an imminent decision of significance to be made
by the Acting Director to justify immediate court intervention.
Moreover, the mere designation of Acting Director Mulvaney by the President does not
threaten Plaintiff with an imminent loss of position. Assuming Plaintiff’s eleventh-hour
appointment was valid, Plaintiff remains the purported Deputy Director of the CFPB because the
President did not purport to remove her from that permanent position merely by designating
Mulvaney as the acting director. Plaintiff continues to exercise the powers of the Deputy
Director and to be paid for performing those duties. There is no need to settle the dispute over
the CFPB’s Acting Directorship on an emergency basis because Plaintiff does not face the
prospect of any imminent irreparable harm from being denied that position on an interim basis.
III.

THE BALANCE OF HARMS AND THE PUBLIC INTEREST WEIGH AGAINST
INJUNCTIVE RELIEF.
A party seeking a temporary restraining order or preliminary injunction must also

demonstrate “that the balance of equities tips in [its] favor, and that an injunction is in the public
interest.” Winter, 555 U.S. at 20. “These factors merge when the Government is the opposing
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party.” Nken, 556 U.S. at 435.
In an employment case such as this, the Court “is bound to give serious weight” to the
potentially disruptive effect of interim relief like that sought by Plaintiff. Sampson, 415 U.S. at
83. And those concerns are at their apogee in employment claims such as this against the federal
government and its agencies. As Sampson made clear, the government “has traditionally been
granted the widest latitude in the ‘dispatch of its own internal affairs.’” Id. (quoting Cafeteria &
Rest. Workers Union, Local 473, A.F.L.-C.I.O. v. McElroy, 367 U.S. 886, 896 (1961)). Another
district court within this Circuit has noted that it views “the institutional harm attendant to judicial
interference with federal personnel actions” as “compelling and insurmountable.” Farris, 453 F.
Supp. 2d at 81 (citing Sampson, 415 U.S. at 83-84).
Here, the public interest cuts against an injunction. The confusion that presently exists
surrounding the CFPB’s Acting Directorship stems from Plaintiff’s meritless claims. The
President, OLC, and the CFPB’s General Counsel all agree that Mulvaney is the Acting Director
of the CFPB, and Acting Director Mulvaney has begun work at the agency. A temporary
restraining order would radically alter the status quo, disrupt the orderly operation of the agency,
and throw into doubt whether the CFPB, under the leadership of an Acting Director, is
accountable to the President, or to anyone.
CONCLUSION
For the foregoing reasons, the Court should deny Plaintiff’s motion for a temporary
restraining order. To the extent that Plaintiff now seeks a preliminary injunction, the Court
should set a reasonable briefing schedule that requires Plaintiff to file a motion for preliminary
injunction by December 11, 2017, Defendants to oppose that injunction by December 22, 2017,
and Plaintiff to reply no later than January 2, 2018.
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Dated: November 27, 2017

Respectfully submitted,
CHAD A. READLER
Principal Deputy Assistant Attorney General
BRETT A. SHUMATE
Deputy Assistant Attorney General
CHRISTOPHER HALL
Assistant Director, Federal Programs Branch
MATTHEW J. BERNS
(DC Bar # 998094)
Trial Attorney
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, NW
Washington, DC 20001
Tel: (202) 616-8016
Fax: (202) 616-8470
E-mail: matthew.j.berns@usdoj.gov

Of Counsel:
/s/ Benjamin T. Takemoto
BENJAMIN T. TAKEMOTO
(DC Bar # 1045253)
Trial Attorney
United States Department of Justice
Civil Division, Federal Programs Branch
Washington, DC 20530
Tel: (202) 532-4252
Fax: (202) 616-8470
E-mail: benjamin.takemoto@usdoj.gov

MARY McLEOD
General Counsel
JOHN R. COLEMAN
Deputy General Counsel
STEVEN Y. BRESSLER
LAURA HUSSAIN
Assistant General Counsels

Attorneys for Defendants

18