Court sides with Trump in consumer agency fight

[DonViejo]

Source: The Hill




BY SYLVAN LANE - 11/28/17 05:01 PM EST

A federal judge on Tuesday rejected a lawsuit from an official who claims that she, and not President Trump appointee Mick Mulvaney, is the rightful director of the Consumer Financial Protection Bureau.

Judge Timothy Berry of the U.S. District Court of the District of Columbia declined to grant Leandra English a restraining order to bar Mulvaney from serving as the CFPB’s acting director.

The ruling clears the way for Mulvaney to run the CFPB until a permanent director is sworn in or English successfully appeals the decision.

Trump last week appointed Mulvaney to temporarily lead the CFPB until the lawmakers confirm his pick to replace Richard Cordray, who resigned as the agency's director on Friday.

Read more: http://thehill.com/policy/finance/362107-court-sides-with-trump-in-consumer-agency-fight

[Freethinker65]

1. Might as well shut the department down and give the $ straight to the finance industry then

[laserhaas]

12. Concur

We're screwd

[Bengus81]

35. Yup...bet those quicky loan joints are comin a big un.....

They'll be dumping their measly 300% interest and shoot for 1000% interest per year.

[sandensea]

2. A Chump-appointed judge sides with (surprise, surprise)...

[sadiegirl]

4. I trust the employed civil servants know how to handle Mulvaney.

[sandensea]

18. Trump reminds me of some of these right-wing third-world despots he likes to pal around with.

People like Erdogan, Macri, Duterte, Bibi, and of course Uncle Vlad.

All were elected; but all have managed (or are trying) to perpetuate themselves in power in part by purging the civil service of anyone known or suspected of opposing them.

Critical departments are often left severely understaffed - or worse: staffed with largely incompetent relatives, friends of relatives, friends of friends, mistresses, etc.

The Founding Fathers are rolling in their graves.

[librechik]

39. The founding fathers I know are hopping up to conspire against the tyrant.

They wouldn't rest in their graves for months as we have.

[sandensea]

40. I hope they remember to keep Dense Pence in their sights too.

It'll do us little good to dump the Don if that means being stuck with Sir Fetus Funeral.

He's just as bad if not worse (and just as connected to Putin, by way of his brother Greg); but knows how to "appear" normal.

[librechik]

38. We're going to redesign this agency--you are all fired pending further action

Job 2 of the Putin invasion.

Job 1, get in office. Job 2, destroy the office.

[Judi Lynn]

17. I thought I had already seen the ugliest Hump photo until seeing this one! My God.

I need to wash my eyes.

That one should become his official portrait.

[sandensea]

19. Great idea! It really should be.

It really captures all that childishness, self-importance, and smugness.

God help us all, Judi.

[theaocp]

3. I'm guessing TPTB realize there are just too many mouths to feed

in the coming decades and are preemptively trying to lower the population via starvation or untreated maladies. Otherwise, they should be treated for rabies. This is fucking madness.

[KT2000]

5. this will be used

to prevent Senate approval of nominees to head agencies from this point forward.

[FBaggins]

9. I'm not sure how

Almost all such positions are already presidential appointments. Having an alternative succession process is not the norm.

[KT2000]

16. If the agenct head quits

or is fired, rump names a temporary replacement and never submits a nominee to the Senate. Absent this ruling I guess he could do that anyway. In this case though - Mulvaney is in there for the rest of the term.

[OliverQ]

6. There are no longer any checks and balances in this country.

Trump and Grassley are padding the courts with right-wing fascists to allow them to side with any decisions they want. And idiot conservatives accuse liberal judges of activism.

Every day, it just gets to be too much. It's terrifying watching the country collapse with no way to stop it, while criminals get away with everything.

[charliea]

7. Is Appeal possible?

Can she appeal? I read both laws, and I really think she has the law on her side (although I'm not a lawyer or a Trump judge)

[BumRushDaShow]

11. I thought I had seen that it was expected to be appealed

and would go to the D.C. Circuit.

[FBaggins]

14. She can... and the next court up leans left...

... but that court has already expressed concern with the structure of the CFPB.

More importantly... "the law" in this case is not how the law creating the CFPB reads (or that for FAVA)... it's how the two are interpreted in light of one another (both are pretty clear in and of themselves). One allows the President to make the appointment... the other (newer and more specific - which is usually a good sign) has the deputy director act as director - at least in some cases (it doesn't specifically mention vacancies). The main argument advanced by both the DOJ and the CFPB is that the President has the option of using either path (this is, after all, a part of the Executive branch). That matches a 9th circuit ruling from last year that the DOJ cited in their opinion.

In the end, I'm having a tough time figuring out why it matters. There's no question that the President gets to appoint a permanent replacement if the Senate confirms it... and Republicans would have the ability to make the issue moot long before it got to the Supreme Court.

[diva77]

20. Seems like a flagrant conflict of interest for a judge newly appointed by Dump to then take on a

a case involving Dump and make an obviously illegitimate ruling in Dump's favor.

[SunSeeker]

27. Yes, and likely. The law is plainly on her side.

The judge just refused to issue a TRO (temporary restraining order) pending trial. To get a TRO, you must show proof of irreparable harm, which is hard. Now they will get a briefing schedule and this will be fully litigated. However, may all be rendered moot if Trump gets a nominee through the Senate.

[bluestarone]

8. totally expected here

not sure if appeal will do any good so fucking disheartening

[Honeycombe8]

10. Bad news. :( nt

[irisblue]

13. Next upper level ..court of appeals.

I also suggest she sleep in the office. Fight those f-ers

[Yavin4]

15. What's ironic is that destroying the CFPB erodes the public's confidence in banks

Rip off enough people and sooner or later, people will lose their faith in financial institutions. They'll use credit cards less. Take out fewer loans and generally avoid using banks as much as possible. That will leave only the truly desperate using financial instruments, and good luck trying to get your money back from them. Yes, you can bring back debtors prisons, but you're not getting your money back.

[maxrandb]

23. Unfortunately

Most Americans don't know they're getting ripped off by the banks until their house is yanked from under their feet.

Too busy looking at the shiny objects the MSM throws in front of them.

[Calista241]

21. Not surprising given the language of the bill. n/t

[SunSeeker]

28. What "bill"? The law establishing the CFPB clearly states the Dep. Dir. becomes Acting Dir.

The vacancies law Trump's DOJ cited explicitly states it does not apply where Congress established a process for filling a vacancy, and Congress did so right in the law creating the CFPB. Per that CFPB law, when a vacancy occurs in the Director position, the Deputy Director automatically becomes Acting Director, by operation of law, pending Senate confirmation the President's new Director nominee.

[FBaggins]

30. And the law establishing the standard for vacancies in general says the Pres. picks

Judges could read the two statutes as conflicting (in which case the more recent and more specific law would generally win)... or they can elect to harmonize the two and say that both paths are options that the President can choose between.

The clincher in this case is that the 9th circuit ruled on this very issue just last year.

...with respect to the specific positions in which temporary officers may serve under the specific statutes this bill retains, the [FVRA] would continue to provide an alternative procedure for temporarily occupying the office.

The vacancies law Trump's DOJ cited explicitly states it does not apply where Congress established a process for filling a vacancy,

Nope. It just says that it's no longer the "exclusive" way when other statutes provide an alternative.

[SunSeeker]

31. What is the name of the 9th Circuit case you are referring to?

5 U.S. Code § 3347 states in pertinent part:
(a) Sections 3345 and 3346 are the exclusive means for temporarily authorizing an acting official to perform the functions and duties of any office of an Executive agency (including the Executive Office of the President, and other than the Government Accountability Office) for which appointment is required to be made by the President, by and with the advice and consent of the Senate, unless—
(1) a statutory provision expressly—
(A) authorizes the President, a court, or the head of an Executive department, to designate an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity; or
(B) designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity; or....

[FBaggins]

32. Hooks ex rel. NLRB v. Kitsap Tenant Support Servs

5 U.S. Code § 3347 states in pertinent part:

Right... and they read that to mean that if "a statutory provision expressly..." (etc.), then FVRA is no longer the exclusive means... and thus both become options.

[SunSeeker]

33. No, in Hooks the NLRB provision said the President "may" appoint.

So it was an option for the President to appoint under the NLRB rules. That is why the Court spoke of two "options":

Under this provision of the FVRA, §§ 3345 and 3346 form the exclusive means for filling a vacancy in an Executive agency office unless another statute expressly provides a means for filling such a vacancy. Because section 3(d) of the NLRA does so, neither the FVRA nor the NLRA is the exclusive means of appointing an Acting General Counsel of the NLRB. Thus, the President is permitted to elect between these two statutory alternatives to designate an Acting General Counsel.

The CFPB law is not worded as an option like that NLRB rule. The CFPB Dep. Dir. automatically becomes Dir. upon vacancy, by operation of law. The President has nothing to do with it. Congress included this rather unique provision to enhance the independence of the CFPB. Hooks dealt with the narrow situation of where there was an alternate optional appointment provision. Thus, Hooks is not determinative.

[FBaggins]

34. Where does the NLRB provision say "may"?

The section of the ruling that you quoted says exactly what I presented. (i.e. that the "express provision" in NLRA changes the "exclusive" in FVRA to one of two options... rather than trumping it).

The only "may" appoint in the act is not relevant to either case because it's explicitly limited to 40 days.

The NLRA specifically provides for the temporary designation of an Acting General Counsel in the event of a vacancy. Section 3(d) of the NLRA states that the President may temporarily fill a vacancy in the office of the General Counsel and limits the term of acting service to forty days

In Hooks, President Obama's appointment of an acting General Councel lasted for almost three and a half years. Clearly that was not pursuant to the NLRA's "may" language. In fact, the ninth circuit explicitly said "President Obama designated Solomon as Acting General Counsel pursuant to § 3345(a) of the FVRA"

On edit - Here's the actual language:

In case of vacancy in the office of the General Counsel the President is authorized to designate the officer or employee who shall act as General Counsel during such vacancy, but no person or persons so designated shall so act (1) for more than forty days when the Congress is in session unless a nomination to fill such vacancy shall have been submitted to the Senate,

President Obama didn't appoint the new General Counsel for six and a half months after making him the acting GC. Clearly that appointment conflicted with the NLRA provision.

[SunSeeker]

36. Hooks reads the NRLB vacancy provision as a "may."

As stated in section IIA of the Hooks opinion:

The NLRA specifically provides for the temporary designation of an Acting General Counsel in the event of a vacancy. Section 3(d) of the NLRA states that the President may temporarily fill a vacancy in the office of the General Counsel and limits the term of acting service to forty days, with the possibility of a nomination-based extension.5 29 U.S.C. § 153(d).

As you note, the NRLB vacancy appointment provision, 29 U.S.C. § 153(d), states:
In case of a vacancy in the office of the General Counsel the President is authorized to designate the officer or employee who shall act as General Counsel during such vacancy, but no person or persons so designated shall so act (1) for more than forty days when the Congress is in session unless a nomination to fill such vacancy shall have been submitted to the Senate, or (2) after the adjournment sine die of the session of the Senate in which such nomination was submitted.

Being "authorized" means just that, he can or may do it. It doesn't mean he must do it. Otherwise, it would say the "President shall designate..." like it does in that same paragraph (d) when it comes to appointing the General Counsel: "There shall be a General Counsel of the Board who shall be appointed by the President, by and with the advice and consent of the Senate, ..." Thus, the President designating an acting General Counsel was an optional act, not required by the NRLA. That is not the case with the CFPB. As I explained to you, that provision cuts the President out entirely, giving him no option or authority. It expressly states the Deputy Director becomes Acting Director upon a vacancy.

[FBaggins]

37. Again... I think you're missing the point

They ruled that both acts provide options for the President to use. He clearly did not follow the model set out by NLRA. He did not do what he was authorized to do. The point of the Hook lawsuit was the the GC's decisions weren't valid because he wasn't appointed in the manner that the NLRA required. The court ruled that the fact that the statute provided for one path to an acting GC did not mean that the FVRA path was not an option... it merely mean that it was not the exclusive option.

The argument in this case is that the FVRA path is no longer an option if a different path is stated in the CFPB statute. Clearly Hook contradicts that position - which is probably why even the CFPB's own lawyers (clearly not Trump picks) gave the same opinion.

[SunSeeker]

41. No, it appears you are missing the point. What part of "may" do you not understand?

The NLRA gives the President an optional route to fill a vacancy pending Senate confirmation. The CFPB does not; it does not create an option for the President. The CFPB explicitly requires that the Deputy Director becomes the Acting Director upon a vacancy. As you acknowledged up the thread, if the more specific CFPB rule conflicts with the FVRA, which it does here, the CFPB rule controls. The NLRA did not conflict with FVRA since it was an optional route to fill the vacancy. The NLRA did not require that vacancies be filled by the route it described; the CFPB rule does require it.

I don't know what lawyers you are referring to, but James Cordray, the CFPB's only Director since the agency's inception, and Elizabeth Warren, who proposed and established the CFPB, agree with me, and both discussed this on Rachel Maddow Tuesday night. They are the experts here.

[bluestarone]

22. could someone here explain why

Richard Cordray resigned and put us in this situation??

[Owl]

24. My question also.

[cilla4progress]

26. He's running

for governor of Ohio.

Meh.

[onetexan]

25. WTH??

now we're all screwed

[DeminPennswoods]

29. There's too much focus on executives and political appointees

I'm sure there are other DU'ers who were/are career federal civil servants who'll also admit that the federal bureaucracy rolls on regardless of political appointees. I worked in DoD and SecDefs and Asst SecDefs came and went. The only things that changed were the pictures on the wall. These political appointees are holed up in their executive offices circulating among themselves in their own little world and generally have little to no idea what goes on in the catacombs of whatever agency they're "in charge" of.