Cordray Names Official Deputy Director on Thanksgiving Weekend; Trump Says Mulvaney Will Lead

This article was originally published last Friday November 24. It has since been updated as follows.

UPDATED Friday 11/24/17 5:00pm: Since this article was posted earlier on November 24, 2017, President Trump has named Mick Mulvaney, Director of the Office of Management and Budget, to lead the Bureau temporarily. The White House said in a statement, "The President looks forward to seeing Director Mulvaney take a common sense approach to leading the CFPB's dedicated staff, an approach that will empower consumers to make their own financial decisions and facilitate investment in our communities." It will be an interesting Monday morning at the CFPB, with two leaders potentially in charge.

UPDATED Sunday 11/26/17 9:25pm: CFPB Deputy Director Leandra English has filed suit against President Trump and OMB Director Mick Mulvaney in US District Court for control of the Bureau.

UPDATED Monday 11/27/17 10:15am: Trump's Department of Justice opinion says he has authority to designate an acting director of the CFPB. Mary E. McLeod, General Counsel at the CFPB issued a memo to senior staff supporting this position, in opposition to her new boss (the one appointed by Richard Cordray).

Meanwhile, everyone showed up for work this morning. It looks like Mulvaney brought donuts.

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Today, on Friday of the Thanksgiving holiday weekend, the Consumer Financial Protection Bureau (CFPB) announced that Leandra English has been officially named deputy director of the agency. English, who had been most recently serving as the agency’s chief of staff, has previously held key leadership positions at the CFPB, the Office of Management and Budget, and the Office of Personnel Management. David Silberman, who had been serving as acting deputy director, will continue in his role as associate director of the Research, Markets, and Regulations division.

Before taking on the role of deputy director of the CFPB, Leandra English had been serving as the agency’s chief of staff.  Ms. English returned to the CFPB in January 2017 after serving as the principal deputy chief of staff at the Office of Personnel Management. She has previously served in number of senior leadership roles at the CFPB, including deputy chief operating officer, acting chief of staff, and deputy chief of staff. Previously, English served as chief of staff and senior advisor to the deputy director for management at the Office of Management and Budget, and as a member of the CFPB implementation team at the Department of the Treasury. Ms. English received her B.A. from New York University and her M.S. from the London School of Economics. 

In a statement, director Richard Cordray thanked David Silberman for serving in the role of acting deputy director in addition to his official role as associate director of Research, Markets, and Regulations. 

Cordray announced on November 15 that he would step down from his position at the Bureau by the end of the month. This ended months of speculation about whether he would or wouldn't voluntarily leave - or be fired - before finishing his term, which ends in July 2018. Many expect that he will soon announce his candidacy for Governor of Ohio, his home state.

There has been a great deal of speculation about who would take on the interim director role after Cordray's departure. Some interpret Dodd-Frank to say the deputy director would take over as acting director in the event of a departure. Since Cordray announced his resignation last week, it has been raised that David Silberman has never officially been given the deputy title, but has been serving as "acting" deputy, and that he is therefore not eligible to step into the role.  Many expected that Cordray would give the official title to Silberman before leaving, so today's announcement is somewhat of a surprise.

Others, including Ballard Spahr's Alan Kaplinsky, have interpreted that the Federal Vacancies Reform Act of 1998 gives Trump other options to appoint an acting director, including: (1) an officer in any agency who is occupying a position requiring Senate confirmation to perform the functions and duties of the office, or (2) any officer or employee of the subject agency who is occupying a position for which the rate of pay is equal to or greater than the minimum rate of pay at the GS-15 level and who has been with the agency for at least 90 of the preceding 365 days to perform the functions and duties of the office.

Within a day of Cordray's November 15 announcement, it has been widely speculated that Trump would name Mick Mulvaney, Director of the Office of Management and Budget, to temporarily head the CFPB. Mulvaney has not been a fan of Cordray's CFPB. One wonders whether Cordray felt that English would be more likely than Silberman to be left in place to lead the agency until a permanent director can be named.

As for a permanent replacement, which requires Senate confirmation, multiple names are still being circulated, including former Rep. Randy Neugebauer (R-Texas); House Financial Services Commitee Chairman Jeb Hensarling (R-Tex); Todd Zywicki, law professor at George Mason University; Mark Calabria, currently Mike Pence's Chief Economist and former Director of Financial Regulation Studies at the Cato Institute; and former Fannie Mae counsel Brian Brooks.

insideARM Perspective 

This transition occurs literally in the midst of the expected release of a Notice of Proposed Debt Collection Rulemaking, a process which has been ongoing for four years. As today appears to be Cordray's last day at the Bureau, we now know that the debt collection rule will not be dropped prior to his departure, which some had thought. 

Meanwhile, only last week the bureau published a notice in the Federal Register requesting comment on round 2 of its proposal to conduct a consumer survey about debt collection disclosures. Comments are due by December 14, 2017. This has led to speculation that perhaps the scope of the initial rulemaking would be limited -- possibly even more so than was announced in June. At that time, Cordray outlined that of the three core areas to be addressed with rulemaking:

1. Collecting the right amount from the right consumer
2. Ensuring that consumers understand the collection process and their rights in that process
3. Ensuring that consumers are treated with dignity and respect within the debt collection process

The first would be separated out and addressed later, with #'s 2 and 3 being addressed first. But the proposed consumer study really seems to relate to #2. So, at this point, what rules will be proposed -- and when -- is truly anybody's guess.