In another win for the Trump administration, the District Court for the District of Colombia ruled this week to deny Consumer Financial Protection Bureau deputy director Leandra English’s preliminary injunction against Trump’s pick for acting director of the agency, Office of Management and Budget director Mick Mulvaney.

English, who was elevated to the position of acting director by the agency’s outgoing director Richard Cordray and then chosen by that same outgoing director to take up the acting director position, has been behaving like the CFPB director, despite broad agency acknowledgement that Mulvaney is the chosen successor.

The issue between the two dueling directors revolves around two laws: the Federal Vacancies Reform Act of 1998 and the Dodd-Frank Wall Street Reform and Consumer Protection Act, which first created the CFPB.

According to Judge Timothy Kelly’s official ruling on the injunction, the FVRA’s default rule is that ”the officer’s ‘first assistant’ takes over as acting officer. However, the president may override that rule by appointing a different officer or employee from within the same agency, or a [presidential appointment Senate confirmation] officer from a different agency. The FVRA generally forbids acting officers from serving for more than 210 days. In addition, with certain exceptions, a person may not serve as an acting officer if he has been nominated for the permanent position.”

Mulvaney and the Trump administration argued that this rule permits the president to appoint Mulvaney as the acting director over the instructions of the outgoing director.

According to Kelly’s ruling, “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.’”

The ruling notes that, to warrant a preliminary injunction, a plaintiff must establish that:

  1. She is likely to succeed on the merits of her case;
  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.

“The 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,” Kelly ruled. “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.”

In addition to failing in legal proceedings, English has also been subject to suspicion by a member of Congress in her role as a career civil servant, as English originally served in a politically appointed position.

There is no word yet as to whether English will appeal the decision.

About Jessie Bur

Jessie Bur covers federal IT and management.

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