Multiple opinions support the longstanding precedent behind the President’s designation of Mick Mulvaney as Acting Director of the Consumer Financial Protection Bureau.
White House statement on legality of President’s designation.
“The Administration is aware of the suit filed this evening by Deputy Director English. However the law is clear: Director Mulvaney is the Acting Director of the CFPB,” said Sarah Sanders, White House Press Secretary, on November 26. “Now that the CFPB’s own General Counsel – who was hired under Richard Cordray – has notified the Bureau’s leadership that she agrees with the Administration’s and DOJ’s reading of the law, there should be no question that Director Mulvaney is the Acting Director. It is unfortunate that Mr. Cordray decided to put his political ambition above the interests of consumers with this stunt. Director Mulvaney will bring a more serious and professional approach to running the CFPB.”
The CFPB’s General Counsel supports the White House’s legal position.
Questions have been raised whether the President has the authority under the Federal Vacancies Reform Act (FVRA) to designate Mick Mulvaney, the Director of the Office of Management and Budget, as the Acting Director of CFPB following the resignation of Richard Cordray as of midnight, Friday, November 24, 2017, even if the Deputy Director otherwise could act under 12 U.S.C. § 5491 (b)(5) [The Dodd-Frank Act]. This confirms my oral advice to the Senior Leadership Team that the answer is “yes.” I advise all Bureau personnel to act consistently with the understanding that Director Mulvaney is the Acting Director of the CFPB. I outline my reasoning below briefly.
The Department of Justice’s Office of Legal Counsel supports White House’s legal position.
You have asked whether the President may designate an Acting Director of the Bureau of Consumer Financial Protection (“CFPB”) upon the resignation of the Director. This opinion confirms the oral advice that we gave you before the Director’s resignation took effect at the end of November 24, 2017. See Letter for the President, from Richard Cordray, Director, CFPB (Nov. 24, 2017) (communicating resignation) . . . .
For the reasons set forth above, we conclude that the President may designate an Acting Director of the CFPB under 5 U.S.C. § 3345 (a)(2) or (3), because both the [Federal] Vacancies Reform Act and the office-specific statute are available to fill a vacancy in that office on an acting basis.
Read the full memo here.
The Obama Administration took the same position as this White House in the case of a similar vacancy on the National Labor Relations Board.
In the case of Hooks v. Kitsap, the Obama Administration argued that a presidential designation under the FVRA supersedes the succession statute of an independent agency (in that case the National Labor Relations Act with respect to the National Labor Relations Board). The United States Court of Appeals for the Ninth Circuit agreed with this reading of the law. In particular, the Court noted that: “The Senate Report on the FVRA confirms this interpretation. The Senate Report explains that the FVRA retains the vacancy-filling mechanisms in forty different statutes, including NLRA section 3(d), and states that ‘even 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.’”