Consumer Financial Protection Bureau building in Washington, D.C. June 4, 2013. Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL

A federal judge in Washington has given the Consumer Financial Protection Bureau’s deputy director, Leandra English, a Wednesday deadline to make her next push for control of the agency, which has been at the center of a power struggle following the resignation of its former leader, Richard Cordray.

English’s second attempt at blocking the Trump administration’s designation of White House budget director Mick Mulvaney to temporarily lead the CFPB will come in the form of a motion for a preliminary injunction that—if denied—could be brought before the U.S. Court of Appeals for the D.C. Circuit.

Leandra English. Credit: Credit Union National Association.

Last week, U.S. District Judge Timothy Kelly of the  District of Columbia rejected English’s request for a temporary restraining order to shut out Mulvaney. In that ruling, Kelly said the Federal Vacancies Reform Act “on its face” appears to allow the president to name a temporary successor to Cordray. English, represented by Deepak Gupta of Washington’s Gupta Wessler, has argued that the succession language in the Dodd-Frank Act—which created the consumer bureau—dictates that the deputy director steps in as the agency’s acting leader in the event of the “absence or unavailability” of the director.

On Tuesday, Kelly ordered the Justice Department to respond to English’s planned request for a preliminary injunction by Dec. 18 and set a hearing for the morning of Dec. 22. Amicus briefs supporting English’s claim to the acting directorship will be due Friday, and those on the Trump administration’s side will be due the same day as the Justice Department’s response—Dec. 18.

“I know it’s a quick schedule … quicker than the government wanted,” Kelly said.

Kelly didn’t indicate when he would rule on English’s would-be preliminary injunction motion.

“It’s up to the judge,” Gupta said in remarks after the hearing. “I was encouraged that the judge said today he understood the need for a prompt resolution on our motion.”

Mulvaney and English’s competing claims to be the rightful acting director have made for an awkward situation at the CFPB. In remarks with reporters Monday, Mulvaney acknowledged as much, saying “it’s always a challenge when you’re in a workplace with someone who’s suing you—and I’m a named defendant—to sort of chat around the water cooler.”

Mulvaney said he has sent English “roughly a half a dozen” emails urging her to stop purporting to be the agency’s acting director and asking her to carry out duties customarily performed by a deputy director. “I have heard no response to either of those types of emails,” he said.

Undeterred by the standoff, Mulvaney has been putting his mark on the CFPB. On his first day, he imposed a 30-day freeze on new regulations and hiring, although he has since allowed for internal promotions and reassignments to go forward. Citing cybersecurity concerns, Mulvaney said Monday he has also stopped the agency’s collection of personal information.

“I am taking data security very, very seriously,” he said. “I think we should find ways to have as rigorous a data-security program as possible here before we start expecting that from people who we oversee out in the industry.”

Mulvaney is also in the midst of a review of the dozens of pending court cases involving the CFPB. Among the first to come onto his radar screen was the bail bond company Libre by Nexus Inc.’ challenge to a CFPB subpoena. On Monday, the CFPB agreed to suspend that investigation—including its efforts to obtain information from third parties—while a federal judge in Washington weighs whether the agency has authority to conduct the probe.

Last week, the CFPB, with Mulvaney at the helm as acting director, withdrew the agency’s opposition that a company—Nationwide Biweekly Administration Inc.—be filed to post a bond before filing any post-judgment motions. A San Francisco federal trial judge on Monday stayed enforcement of a nearly $8 million civil penalty.

 

Read more:

Companies Plot New Approaches to CFPB as Trump’s Team Takes Control

CFPB Suspends 1 Investigation as Mulvaney, at Helm, Reviews Pending Cases

Judge Upholds Trump’s Designation of Mick Mulvaney as Acting CFPB Head

Leandra English, CFPB’s Deputy Director, Sues Trump to Shut Out Interim Leader

Goodwin Procter Grabs Anthony Alexis, Formerly CFPB’s Enforcement Chief