United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
TIMOTHY J. KELLY, United States District Judge
case concerns whether the President is authorized to name an
acting Director of the Consumer Financial Protection Bureau
(“CFPB”) or whether his choice must yield to the
ascension of the Deputy Director, who was installed in that
office by the outgoing Director in the hours before he
resigned. The CFPB is a government agency created after the
financial crisis of 2007-2008 by the Dodd-Frank Wall Street
Reform and Consumer Protection Act (the “Dodd-Frank
Act” or “Dodd-Frank”), Pub. L. No. 111-203,
124 Stat. 1376 (2010). The CFPB's previous Director,
Richard Cordray, resigned effective at midnight on the day
after Thanksgiving: Friday, November 24, 2017. That same day,
he named Plaintiff Leandra English the CFPB's Deputy
Director, in an apparent attempt to select his successor. But
the President, Defendant Donald John Trump, made his own
appointment that day, announcing that Defendant John Michael
Mulvaney, who serves as the Director of the Office of
Management and Budget (“OMB”), would also serve
as acting Director of the CFPB upon Cordray's
claims that, by operation of the Dodd-Frank Act, she-and only
she-is now entitled to be the acting Director of the CFPB.
She seeks a preliminary injunction that would restrain the
President from appointing an acting Director other than her,
require the President to withdraw Mulvaney's appointment,
and prohibit Mulvaney from serving as acting Director.
Defendants, joined by the CFPB's General Counsel, argue
that the President's appointment of Mulvaney is valid
under a separate statute, the Federal Vacancies Reform Act of
1998 (the “FVRA”), 5 U.S.C. § 3345 et
seq., which they contend provides the President an
available method to fill Executive Branch vacancies such as
this one. They urge the Court to deny the injunction.
merits of this case turn on a question of statutory
interpretation, where “[t]he ‘role of this Court
is to apply the statute[s] as [they are] written-even if . .
. some other approach might accord with good
policy.'” Loving v. IRS, 742 F.3d 1013,
1022 (D.C. Cir. 2014) (quoting Burrage v. United
States, 134 S.Ct. 881, 892 (2014)). Thus, the particular
policies or priorities that English or Mulvaney might pursue
as the CFPB's acting Director are irrelevant to the
Court's analysis. For the reasons explained below,
including that English has not demonstrated a likelihood of
success on the merits or shown that she will suffer
irreparable injury absent injunctive relief, her request for
a preliminary injunction is DENIED.
The Federal Vacancies Reform Act of 1998
II of the Constitution requires that the President obtain
‘the Advice and Consent of the Senate' before
appointing ‘Officers of the United States.'”
NLRB v. SW Gen., Inc., 137 S.Ct. 929, 934 (2017)
(quoting U.S. Const. art. II, § 2, cl. 2). “Given
this provision, the responsibilities of an office requiring
Presidential appointment and Senate confirmation- known as a
‘PAS' office-may go unperformed if a vacancy arises
and the President and Senate cannot promptly agree on a
replacement.” Id. “Congress has long
accounted for this reality by authorizing the President to
direct certain officials to temporarily carry out the duties
of a vacant PAS office in an acting capacity, without Senate
cases, Congress has provided agency-specific rules for acting
officers. See, e.g., 12 U.S.C. § 4 (providing
that the Deputy Comptrollers of the Currency shall perform
the duties of the Comptroller during the latter's
“vacancy, ” “absence, ” or
“disability”). But since at least the 1860s,
Congress has also provided general rules that apply to
executive vacancies more broadly, across a wide range of
government agencies. See SW Gen., 137 S.Ct. at
935-36. Over the years, these authorizations have evolved,
and have included default rules that allowed a PAS
officer's “assistant” to take over her duties
automatically, with provisions that also permitted the
President to fill the vacancy with another person meeting
certain qualifications, such as a person currently serving in
a PAS office. See id.
current iteration of Congress' general rule for acting
officers is the FVRA, which was passed in part to address
perceived threats to the Senate's advice and consent
power that arose in the 1990s. See Id. at 936. As
such, the FVRA imposes carefully calibrated limits on who can
be appointed as an acting PAS officer and how long they may
serve. See 5 U.S.C. §§ 3345, 3346. Its
default rule is that the officer's “first
assistant” takes over as acting officer. Id.
§ 3345(a)(1). However, the President may override that
rule by appointing a different officer or employee from
within the same agency, see Id. § 3345(a)(3),
or a PAS officer from a different agency, see Id.
§ 3345(a)(2). The FVRA generally forbids acting officers
from serving for more than 210 days. See Id. §
3346. In addition, with certain exceptions, a person may not
serve as an acting officer if he has been nominated for the
permanent position. See Id. § 3345(b).
FVRA generally covers any PAS office in any “Executive
agency” in the event the officer “dies, resigns,
or is otherwise unable to perform the functions and duties of
the office.” Id. § 3345(a). Certain
offices are specifically excluded from the statute's
scope, including members of any multi-member body that
“governs an independent establishment or Government
corporation.” Id. § 3349c(1)(B). In
addition, unless another statute expressly addresses the
appointment of an acting officer, the FVRA provides that it
is the “exclusive means” for any such
appointments within its scope. Id. § 3347(a).
If no one can serve as acting officer under the FVRA, the
position remains vacant. Id. § 3348(b).
The Dodd-Frank Wall Street Reform and Consumer Protection
response to the financial crisis in 2008 . . . Congress
passed and President Obama signed the Dodd-Frank
[Act].” State Nat'l Bank of Big Spring v.
Lew, 795 F.3d 48, 51 (D.C. Cir. 2015). Title X of
Dodd-Frank established the CFPB to “regulate the
offering and provision of consumer financial products or
services under the Federal consumer financial laws.”
CFPB v. Accrediting Council for Indep. Colls. &
Schs., 854 F.3d 683, 687 (D.C. Cir. 2017) (quoting 12
U.S.C. § 5491(a)); see also 12 U.S.C. §
5492(a) (listing the CFPB's powers). The CFPB's
purpose is to “implement and, where applicable, enforce
Federal consumer financial law consistently for the purpose
of ensuring that all consumers have access to markets for
consumer financial products and services and that markets for
consumer financial products and services are fair,
transparent, and competitive.” 12 U.S.C. §
5511(a). The “Federal consumer financial law” the
CFPB is charged with enforcing “includes [Title X of
Dodd-Frank] and eighteen pre-existing consumer protection
statutes.” Accrediting Council, 854 F.3d at
687 (citing 12 U.S.C. § 5481(12), (14)). Dodd-Frank
vested the CFPB with “broad ‘rulemaking,
supervisory, investigatory, adjudicatory, and enforcement
authority'” to carry out its mission. Id.
at 688 (quoting Morgan Drexen, Inc. v. CFPB, 785
F.3d 684, 687 (D.C. Cir. 2015)).
Dodd-Frank Act established the CFPB as an “independent
bureau” within the Federal Reserve System. 12 U.S.C.
§ 5491(a). However, unlike many other independent
agencies within the Executive Branch, it is led by a single
Director. Id. § 5491(b)(1). The Director is
appointed by the President with the advice and consent of the
Senate, and may be removed only by the President for
cause. Id. § 5491(b)(2), (c)(3). The Dodd-Frank
Act establishes a five-year term for the Director.
Id. § 5491(c)(1). The CFPB's structure is
also marked by a number of other unusual features: for
example, the CFPB receives funding from the Federal Reserve,
as opposed to Congress. Id. § 5497(a).
Moreover, other Executive Branch officers may not exercise
control over the CFPB's communications with Congress
about potential legislation. See Id. §
5492(c)(4). The Dodd-Frank Act also created a Deputy Director
of the CFPB, who “shall- (A) be appointed by the
Director, and (B) serve as acting Director in the absence or
unavailability of the Director.” Id.
§ 5491(b)(5). In addition, Dodd-Frank provides that
“[e]xcept as otherwise provided expressly by law, all
Federal laws dealing with . . . officers [or] employees . . .
apply to the exercise of the powers of the [CFPB].”
Id. § 5491(a).
Factual and Procedural Background
Cordray's Resignation and the Dueling Appointments of
English and Mulvaney
controversy was set in motion on the day after Thanksgiving:
Friday, November 24, 2017. That day, as consumers thronged
the country's shopping malls, CFPB Director Cordray
resigned from his position effective as of midnight, well
short of the completion of his five-year term. See
ECF No. 22 (“Am. Compl.”) ¶¶ 11-12; ECF
No. 24 (“English Decl.”) ¶ 6. He also named
English, his Chief of Staff, to serve as the CFPB's
Deputy Director-a position that apparently no one had
occupied since August 2015-effective at noon. See
English Decl. ¶ 4; ECF No. 41-2 at 2 n.1. At 2:30 p.m.,
Cordray publicly announced the decision, explaining that the
appointment was intended “to ensure an orderly
succession for this independent agency” by effectively
making English the acting Director after he left office.
English Decl. ¶ 5. He also stated that having his Chief
of Staff serve as acting Director “would minimize
operational disruption and provide for a smooth transition
given her operational expertise.” Id. English
had previously served in a number of other roles at the CFPB,
OMB, and other federal agencies. See Id.
President had other plans on that busy day. He issued a
memorandum directing Mulvaney to “perform the functions
and duties” of the CFPB Director “until the
position is filled by appointment or subsequent designation,
effective 12:01 a.m. eastern standard time, November 25,
2017.” ECF No. 41-1. The President cited the FVRA as
the basis for Mulvaney's designation as the CFPB's
acting Director. Id. At approximately 8:50 p.m., the
White House issued a statement announcing the designation.
English Decl. ¶ 7.
next day, Saturday, November 25, the Department of
Justice's Office of Legal Counsel issued a memorandum
confirming legal advice it had provided orally the previous
day: that the President was lawfully permitted to designate
an acting Director of the CFPB pursuant to the FVRA.
See ECF No. 41-2. That same day, the CFPB's
General Counsel issued a memorandum to CFPB senior management
reaching the same conclusion. See ECF No. 41-3.
Subsequently, in a conference call on Sunday, November 26,
the Associate Directors of the CFPB's six divisions
agreed that they would act consistently with the
understanding that Mulvaney was the acting Director.
See ECF No. 41-4 (“Fulton Decl.”) ¶
Monday, November 27, Mulvaney showed up for work at the
CFPB's facilities and was provided access to the
Director's office. Id. ¶ 7. As of early
December, he was spending three days a week working there,
and three days a week at OMB. See ECF No. 41-5 at 1.
He regularly receives memoranda intended for the CFPB
Director, including memoranda requesting decisions from the
Director. Fulton Decl. ¶ 9. He also issues directives
with which CFPB staff comply. Id. ¶ 10. On
December 4, he held a CFPB press roundtable during which he
described some of the activity he had undertaken as acting
Director. See ECF No. 41-5. Also, the CFPB's
website lists him as the acting Director. See CFPB,
(last accessed Jan. 10, 2018). In summary, the record
evidence suggests that CFPB “operations have continued
with the understanding that Mick Mulvaney is the Acting
Director.” Fulton Decl. ¶ 8. Indeed, it is notable
that the CFPB's General Counsel and other CFPB attorneys
are listed as “Of Counsel” on Defendants'
opposition brief. ECF No. 41 (“Def. Opp.”) at 40.
part, English continues to work at the CFPB, apparently at a
separate facility from Mulvaney. See ECF No. 41-5 at
2. She has held herself out as the acting Director by sending
a number of emails to CFPB staff to that effect. See
Id. at 12. She has also held herself out as the acting
Director in meetings with Congressional leaders and other
stakeholders. See ECF No. 16 at 11:19-24. In
response, Mulvaney has sent her a number of emails asking her
to stop holding herself out as acting Director. See
ECF No. 41-5 at 4, 12. He has also sent her emails asking her
to perform certain customary duties of the Deputy Director.
See Id. at 4-5, 12. As of December 4, he had not
received a response. Id. at 4. However, during the
press roundtable held on that same day, Mulvaney
unequivocally stated that he was not considering terminating
her. Id. at 5. As of late December, all parties
agreed that these basic facts remained unchanged. ECF No. 46
(“PI Hr'g Tr.”) at 4:3-10, 6:3-10.
November 26, 2017, English filed this lawsuit against the
President and Mulvaney, requesting declaratory and injunctive
relief. ECF No. 1. Also on November 26, she filed an
emergency motion for a temporary restraining order
(“TRO”) restraining the President from appointing
any acting Director other than her, requiring the President
to withdraw Mulvaney's appointment, and prohibiting
Mulvaney from serving as acting Director. ECF No. 2. On
November 27, the Court held a hearing on the motion. ECF No.
15. That same day, Defendants filed their opposition to
English's motion. ECF No. 9. The next day, November 28,
the Court held another hearing and denied the TRO motion,
finding that English had not shown a likelihood of success on
the merits and had otherwise failed to meet the prerequisites
for emergency relief. ECF No. 16. On December 6, English
filed an amended complaint, Am. Compl., and moved for a
preliminary injunction seeking substantially the same relief,
ECF No. 23. On December 7, English filed a corrected version
of her brief in support. ECF No. 26 (“Mot.”). On
December 18, Defendants filed their opposition to
English's motion. Def. Opp. On December 20, English filed
her reply. ECF No. 44 (“Reply to Def. Opp.”). On
December 22, the Court held a hearing on the motion for a
preliminary injunction. PI Hr'g Tr.
preliminary injunction is “an extraordinary remedy that
may only be awarded upon a clear showing that the plaintiff
is entitled to such relief.” Winter v. Nat. Res.
Def. Council, Inc., 555 U.S. 7, 22 (2008). To warrant a
preliminary injunction, a plaintiff must establish that (1)
she “is likely to succeed on the merits”; (2) she
“is likely to suffer irreparable harm in the absence of
preliminary relief”; (3) the “balance of
equities” tips in her favor; and (4) “an
injunction is in the public interest.” Id. at
20; accord Aamer v. Obama, 742 F.3d 1023, 1038 (D.C.
Cir. 2014). The last two factors “merge when the
Government is the opposing party.” Nken v.
Holder, 556 U.S. 418, 435 (2009). The plaintiff
“bear[s] the burdens of production and
persuasion” when moving for a preliminary injunction.
Qualls v. Rumsfeld, 357 F.Supp.2d 274, 281 (D.D.C.
2005) (citing Cobell v. Norton, 391 F.3d 251, 258
(D.C. Cir. 2004)).
the Supreme Court's decision in Winter, courts
weighed the preliminary-injunction factors on a sliding
scale, allowing a weak showing on one factor to be overcome
by a strong showing on another factor.” Standing
Rock Sioux Tribe v. U.S. Army Corps of Eng'rs, 205
F.Supp.3d 4, 26 (D.D.C. 2016) (citing Davenport v.
Int'l Bhd. of Teamsters, 166 F.3d 356, 360-61 (D.C.
Cir. 1999)). However, the D.C. Circuit has “suggested,
without deciding, that Winter should be read to
abandon the sliding-scale analysis in favor of a ‘more
demanding burden' requiring a plaintiff to independently
demonstrate both a likelihood of success on the merits and
irreparable harm.” Id. (quoting Sherley v.
Sebelius, 644 F.3d 388, 392-93 (D.C. Cir. 2011));
see also Davis v. Pension Benefit Guar. Corp., 571
F.3d 1288, 1292 (D.C. Cir. 2009).
of whether the sliding-scale analysis survives
Winter in this Circuit, it is clear that a
plaintiff's failure to show a likelihood of success on
the merits is, standing alone, sufficient to defeat the
motion. Standing Rock, 205 F.Supp.3d at 26 (citing
Ark. Dairy Co-op Ass'n, Inc. v. USDA, 573 F.3d
815, 832 (D.C. Cir. 2009)). In addition, “the basis of
injunctive relief in the federal courts has always been
irreparable harm.” Chaplaincy of Full Gospel
Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006)
(quoting Sampson v. Murray, 415 U.S. 61, 88 (1974)).
As such, a plaintiff must show that at least some
“irreparable injury is likely in the absence
of an injunction, ” regardless of whether she satisfies
the other three factors. Winter, 555 U.S. at 21-22
(emphasis in original); see Chaplaincy, 454 F.3d at
the purpose of a preliminary injunction “is merely to
preserve the relative positions of the parties until a trial
on the merits can be held.” Univ. of Tex. v.
Camenisch, 451 U.S. 390, 395 (1981). When a plaintiff
seeks an injunction that would alter the status quo rather
than merely preserve it (i.e., a mandatory
injunction), some district courts in this Circuit have
applied an even higher standard. See, e.g.,
Elec. Privacy Info. Ctr. v. DOJ, 15 F.Supp.3d 32, 39
(D.D.C. 2014) (collecting cases); Columbia Hosp. for
Women Found., Inc. v. Bank of Tokyo-Mitsubishi Ltd., 15
F.Supp.2d 1, 4 (D.D.C. 1997) (“[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 the
denial of the injunction.” (internal quotation marks
omitted) (quoting Phillip v. Fairfield Univ., 118
F.3d 131, 133 (2d Cir. 1997))), aff'd, 159 F.3d
636 (D.C. Cir. 1998). “The D.C. Circuit has not opined
on the issue, but application of a heightened standard of
review to requests for mandatory preliminary injunctive
relief has been adopted in other Circuits.” Singh
v. Carter, 185 F.Supp.3d 11, 17 n.3 (D.D.C. 2016)
Court need not resolve the question of whether the sliding
scale test is viable after Winter. As explained in
more detail below, because English “cannot meet the
less demanding ‘sliding scale' standard, [she]
cannot satisfy the more stringent standard alluded to by the
Court of Appeals.” Kingman Park Civic Ass'n v.
Gray, 956 F.Supp.2d 230, 241 (D.D.C. 2013). Similarly,
the Court need not determine the nature of the injunction
sought by English, because even under the standard governing
prohibitive injunctions, she cannot meet her burden. See,
e.g., Sataki v. Broad. Bd. of Governors, 733
F.Supp.2d 1, 11 n.12 (D.D.C. 2010) (declining to determine
whether to apply a higher standard for a mandatory injunction
because plaintiff could not meet the traditional standard).
Court finds that English is not likely to succeed on the
merits of her claims, nor is she likely to suffer irreparable
harm absent the injunctive relief sought. Moreover, the
balance of the equities and the public interest also weigh
against granting the relief. Therefore, English has not met
the exacting standard to obtain a preliminary injunction.
Likelihood of Success on the Merits
asserts several different causes of action in her Amended
Complaint, but all of them-including her claim that
Mulvaney's appointment is invalid because it violates the
Constitution's Appointments Clause-turn on her argument
that the President is not statutorily authorized to appoint
Mulvaney as the CFPB's acting Director. Am. Compl.
¶¶ 19-28; PI Hr'g Tr. at 16:20-19:25.
Accordingly, the Court organizes its analysis of the merits
around two issues: (1) whether the President is authorized by
statute to appoint an acting Director of the CFPB; and (2) if
he is so authorized, whether he may appoint Mulvaney to that
The President's Authority to Appoint the CFPB's
argues that she acceded to the CFPB's acting Director
position by operation of the Dodd-Frank Act, and that the
President lacks the authority under the FVRA to designate an
acting Director. Mot. at 6-17. She asserts that the
Dodd-Frank Act's provision that its Deputy Director
“shall . . . be appointed by the Director [and] serve
as acting Director in the absence or unavailability of the
Director” displaces the President's authority under
the FVRA to designate an acting CFPB Director. Id.
at 7-8. According to English, Dodd-Frank and the FVRA are in
“unavoidable conflict, ” id at 9, which
“must be resolved against application of the
FVRA” because “Dodd-Frank was enacted later in
time, and speaks with greater specificity to the question at
hand, ” id at 7. Defendants argue that the
FVRA is not displaced by Dodd-Frank's Deputy Director
provision, and remains available as an option for the
President to fill the CFPB's acting Director position.
Def Opp. at 12.
The FVRA's Applicability
initial matter, the Court must determine whether the
FVRA-independent of whether it is displaced by the Deputy
Director provision of the Dodd-Frank Act-authorizes the
President's appointment of the CFPB's acting Director
on its own terms. It clearly does.
FVRA applies if “an officer of an Executive agency . .
. whose appointment to office is required to be made by the
President, by and with the advice and consent of the Senate,
dies, resigns, or is otherwise unable to perform the
functions and duties of the office.” 5 U.S.C. §
3345(a). Under those conditions, the FVRA provides that
“the President (and only the President) may direct a
person who serves in an office for which appointment is
required to be made by the President, by and with the advice
and consent of the Senate, to perform the functions and
duties of the vacant office temporarily in an acting
capacity.” Id. § 3345(a)(2).
CFPB is “an Executive Agency.” 12 U.S.C. §
5491(a). The Director of the CFPB is “appointed by the
President, by and with the advice and consent of the
Senate.” Id. § 5491(b)(2). Director
Cordray resigned effective at midnight on November 24, 2017.
English Decl. ¶ 6. Therefore, a plain reading of the
FVRA's text allows the President to direct a person who
serves in a PAS office to ...