Legal Newsline

Saturday, October 19, 2019

DOJ wants dismissal of lawsuit alleging uncertainty over Mulvaney's CFPB appointment

By David Hutton | Jan 18, 2018


WASHINGTON (Legal Newsline) – The Department of Justice (DOJ) continues to maintain that a New York credit union shouldn’t be able to file a lawsuit challenging President Donald Trump’s appointment of Mick Mulvaney as acting director of the Consumer Financial Protection Bureau (CFPB).

Last month, the Lower East Side People’s Federal Credit Union filed a complaint in U.S. District Court for the Southern District of New York in an effort to have Mulvaney’s appointment as CFPB Acting Director ruled unconstitutional and in violation of the Consumer Financial Protection Act (CFPA).

According to Theodore R. Flo, a Washington, D.C.-based attorney with Ballard Spahr LLP, to have standing to petition for an injunction, a party must identify some injury that an injunction would remedy.


“In this case, uncertainty is not enough to give People's standing because an injunction would not solve the 'uncertainty problem' (assuming there is such a problem),” he noted in an interview with Legal Newsline

“Taking People's at its word, it currently faces the uncertainty that Leandra English will ultimately be deemed the lawful acting director, in which case Mulvaney's actions will be called into question.”

Flo pointed out that if an injunction is issued, however, the uncertainty would be the same.

“There would be a risk that Mulvaney will ultimately be deemed the lawful acting director, in which case English's actions will be questioned,” he said.

However, Flo said he believes a motion to dismiss filed Dec. 22 has little chance for success. The motion also isn’t likely to boost the DOJ’s case in another lawsuit over Mulvaney's appointment.

“So far, the DOJ appears to be raising virtually the same arguments in this case as in the D.C. case,” Flo concluded.

The Lower East Side People’s Federal Credit Union filed its lawsuit in U.S. District Court for the Southern District of New York with the argument that Leandra English, the Richard Cordray-appointed acting director, is the rightful interim chief of the agency.

English maintained that she was the legal acting director of the CFPB based on the Dodd-Frank Act.

The Trump administration cited the Federal Vacancies Act for giving the president the authority to make the appointment. English’s lawsuit to be recognized as the rightful acting director is currently before a federal court.

Following the DOJ's motion to dismiss, several parties were granted permission to attempt to persuade the court by filing amicus briefs.

They include Peter Conti-Brown, a professor at The Wharton School at the University of Pennsylvania; a group of several organizations led by Public Justice; and the U.S. Chamber of Commerce.

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Organizations in this Story

Consumer Financial Protection Bureau U.S. Department of Justice U.S. District Court for the Southern District of New York