English Makes Next Move; Appeals CFPB Leadership Decision to D.C. Circuit

Last week in the case of Leandra English v. Donald J. Trump et al. Judge Timothy Kelly denied a second request to remove President Trump's pick to lead the Consumer Financial Protection Bureau (CFPB) until a permanent replacement can be nominated and confirmed. On Friday, English made her next move by filing an appeal with the U.S. District Court for the District of Columbia. She also requested that the decision be expedited.

Read insideARM's coverage of the circumstances of the first denial (English's request for a temporary restraining order) here.

Read insideARM's coverage of the second denial (English's request for an injunction) here.

You can download a copy of the Notice of Appeal here.

The Notice itself is brief (case references removed for readability),

Notice is hereby given that Plaintiff Leandra English appeals to the United States Court of Appeals for the District of Columbia Circuit from the order of this Court denying her motion for a preliminary injunction, entered on January 10, 2018. 

In addition, the plaintiff is entitled to—and hereby requests—expedited appellate review.  

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This case presents precisely the sort of extraordinary circumstances that justify expedited consideration. The plaintiff is entitled by law to serve as Acting Director of the Consumer Financial Protection Bureau (CFPB). Defendant Donald J. Trump, however, has unlawfully purported to appoint Defendant John M. Mulvaney to that position. As a result, the plaintiff is suffering a continuing and manifestly irreparable injury: the usurpation of her position at the fore of a federal agency in a role that will disappear as soon as the President nominates and the Senate confirms a new Director. Moreover, there is an urgent public need for clarity as to the Acting Director position at the CFPB. The CFPB is the primary federal regulator of many consumer financial products and services, issuing rules and taking enforcement actions affecting a large portion of the economy. The dispute between the plaintiff, the President, and Mr. Mulvaney has generated substantial attention in the media, which has repeatedly noted the existence of public confusion over the CFPB’s leadership. Until the full judicial process has run its course, the Bureau’s employees, the companies it regulates, and millions of American consumers will continue to suffer under a cloud of disruptive legal uncertainty.

In light of these circumstances, the plaintiff respectfully requests that the Court of Appeals accord expedited treatment to this case.

insideARM Perspective

In my perspective last week I contemplated whether English would appeal, and said this,

Maybe. It seems to me, though, that as a practical matter, the time required for an appeal will approach (or even exceed) the period of Mulvaney's acting directorship, which by law is capped at 210 days. (You may recall that oral arguments in the case of PHH Corp. v. Consumer Financial Protection Bureau took place on May 24, 2017; we still await a decision. And, another case still pending in the D.C. Court of Appeals, ACA International, et al. v. the Federal Communications Commission (FCC) and United States of America, saw oral arguments in October 2016; still no decision there either.)

Hence, her request for expedited treatment.