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In the United States Court of Appeals for the District of Columbia Circuit ______ USCA Case #18-5007 Document #1715599 Filed: 01/30/2018 Page 1 of 74 ORAL ARGUMENT NOT YET SCHEDULED No. 18-5007 In the United States Court of Appeals for the District of Columbia Circuit ____________________________ LEANDRA ENGLISH, Plaintiff-Appellant, v. DONALD J. TRUMP and JOHN M. MULVANEY, Defendants-Appellees. _____________________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CASE NO. 1:17-CV-2534-TJK (THE HON. TIMOTHY J. KELLY) ____________________________ PLAINTIFF-APPELLANT’S BRIEF ____________________________ DEEPAK GUPTA JONATHAN E. TAYLOR JOSHUA MATZ DANIEL TOWNSEND GUPTA WESSLER PLLC 1900 L Street, NW, Suite 312 Washington, DC 20036 (202) 888-1741 (202) 888-7792 (fax) [email protected] January 30, 2018 Counsel for Plaintiff-Appellant USCA Case #18-5007 Document #1715599 Filed: 01/30/2018 Page 2 of 74 COMBINED CERTIFICATES Certificate as to Parties, Rulings, and Related Cases As required by Circuit Rules 27(a)(4) and 28(a)(1), undersigned counsel for Appellant Leandra English hereby provides the following information: I. Parties and Amici Appearing Below The parties and amici who appeared before the U.S. District Court were: 1. Leandra English, Plaintiff-Appellant. 2. Donald J. Trump and John M. Mulvaney, Defendants-Appellees. 3. Public Citizen, Inc., Americans for Financial Reform, Center for Responsible Lending, Consumer Action, National Association of Consumer Advocates, National Consumer Law Center, National Consumers League, National Fair Housing Alliance, Tzedek DC, Inc., and United States Public Interest Research Group Education Fund, Inc., Amici Curiae. 4. Consumer Finance Regulation Scholars, Amici Curiae.1 5. Credit Union National Association, Amicus Curiae. 6. Professor Peter Conti-Brown, Amicus Curiae. 7. District of Columbia, and States of California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington, Amici Curiae. 8. State of Texas, West Virginia, Alabama, Arkansas, Georgia, Louisiana, Oklahoma, and South Carolina, Amici Curiae. 9. Chamber of Commerce of the United States of America, Amicus Curiae. 1 Ethan S. Bernstein, Benjamin P. Edwards, Kathleen C. Engel, Robert Hockett, Dalie Jimenez, Adam J. Levitin, Patricia A. McCoy, Christopher Lewis Peterson, Jeff Sovern, and Arthur E. Wilmarth, Jr. i USCA Case #18-5007 Document #1715599 Filed: 01/30/2018 Page 3 of 74 10. Current and Former Members of Congress, Amici Curiae: Beatty, Joyce Representative of Ohio Brown, Sherrod Senator of Ohio Capuano, Michael E. Representative of Massachusetts Clay Jr., William “Lacy” Representative of Missouri Cleaver, Emanuel Representative of Missouri Cortez Masto, Catherine Senator of Nevada Crist, Charlie Representative of Florida Crowley, Joseph Representative of New York Delaney, John K. Representative of Maryland Dodd, Christopher Former Senator of Connecticut Ellison, Keith Representative of Minnesota Foster, Bill Representative of Illinois Frank, Barney Former Representative of Massachusetts Green, Al Representative of Texas ii USCA Case #18-5007 Document #1715599 Filed: 01/30/2018 Page 4 of 74 Heck, Denny Representative of Washington Himes, Jim Representative of Connecticut Hirono, Mazie K. Senator of Hawaiʻi Hoyer, Steny Representative of Maryland Johnson, Tim Former Senator of South Dakota Kanjorski, Paul E. Former Representative of Pennsylvania Kildee, Dan Representative of Michigan Lynch, Stephen F. Representative of Massachusetts Maloney, Carolyn Representative of New York Meeks, Gregory W. Representative of New York Menendez, Robert Senator of New Jersey Merkley, Jeff Senator of Oregon Miller, Brad Former Representative of North Carolina Moore, Gwen Representative of Wisconsin iii USCA Case #18-5007 Document #1715599 Filed: 01/30/2018 Page 5 of 74 Pelosi, Nancy Representative of California Schatz, Brian Senator of Hawaiʻi Schumer, Charles E. Senator of New York Sherman, Brad Representative of California Van Hollen, Chris Senator of Maryland Vargas, Juan Representative of California Velázquez, Nydia M. Representative of New York Warren, Elizabeth Senator of Massachusetts Waters, Maxine Representative of California II. Parties and Amici Appearing in this Court 1. Leandra English, Plaintiff-Appellant. 2. Donald J. Trump and John M. Mulvaney, Defendants-Appellees. III. Rulings under Review The ruling under review in this case is United States District Court Judge Timothy Kelly’s January 10, 2018, Memorandum Opinion and Order denying Ms. English’s motion for a preliminary injunction. iv USCA Case #18-5007 Document #1715599 Filed: 01/30/2018 Page 6 of 74 IV. Related Cases This case has not previously been filed with this Court or any other court. Counsel is aware of the following case qualifying as related under Circuit Rule 28(a)(1)(C): Lower East Side People’s Federal Credit Union v. Donald J. Trump and John M. Mulvaney, 1:17-cv-9536-PGG (S.D.N.Y. 2017). Respectfully submitted, /s/ Deepak Gupta DEEPAK GUPTA Counsel for Plaintiff-Appellant January 30, 2018 v USCA Case #18-5007 Document #1715599 Filed: 01/30/2018 Page 7 of 74 TABLE OF CONTENTS Combined certificates .............................................................................................. i Table of authorities ............................................................................................. viii Glossary ............................................................................................................... xv Introduction ........................................................................................................... 1 Statement of jurisdiction......................................................................................... 4 Statement of the issues............................................................................................ 4 Statement of the case .............................................................................................. 5 I. Statutory Background ........................................................................ 5 A. The Federal Vacancies Reform Act (FVRA) ............................ 5 B. The Dodd-Frank Act and the Consumer Financial Protection Bureau (CFPB). ....................................................... 7 II. Factual & Procedural Background ...................................................... 9 Standard of review ............................................................................................... 14 Summary of argument ......................................................................................... 15 Argument ............................................................................................................. 18 I. Ms. English is likely to succeed on the merits. ................................... 18 A. Dodd-Frank provides an exclusive, mandatory succession plan for when the Director of the CFPB resigns his position. ................................................................. 20 1. Resignation renders a Director “absent” and “unavailable. ................................................................ 20 2. By mandating that the Deputy Director “shall . serve as acting Director,” Dodd-Frank creates a discrete exception to the FVRA. ................................... 22 a. As used in § 5491(b)(5)(B), “shall” is mandatory and unqualified. .................................................... 23 b. Neither the FVRA’s exclusivity provision nor Dodd-Frank itself supports the district court’s reading of “shall” as permissive. ............................ 29 c. Because “shall” is mandatory and exclusive, it displaces the FVRA. .......................................... 34 vi USCA Case #18-5007 Document #1715599 Filed: 01/30/2018 Page 8 of 74 3. Dodd-Frank’s legislative history and overarching structure confirm that its succession plan is mandatory and exclusive. ............................................. 36 4. The constitutional-avoidance canon is inapplicable. ................................................................. 40 B. Even if the FVRA were to apply to the position of Acting Director, the President’s appointment of Mr. Mulvaney would still be invalid. ............................................. 42 II. Ms. English has shown irreparable injury. ........................................ 47 III. Equity and the public interest weigh in Ms. English’s favor. ............. 50 Conclusion ........................................................................................................... 53 Statutory addendum vii USCA Case #18-5007 Document #1715599 Filed: 01/30/2018 Page 9 of 74 TABLE OF AUTHORITIES Cases Al Bahlul v. United States, 767 F.3d 1 (D.C. Cir. 2014) .................................................................................. 41 Alabama v. Bozeman, 533 U.S. 146 (2001) ............................................................................................. 23 Anglers Conservation Network v. Pritzker, 809 F.3d 664 (D.C. Cir. 2016) ............................................................................ 27 Arizona Public Service Co. v. E.P.A., 211 F.3d 1280 (D.C. Cir. 2000) ............................................................................ 33 Berry v. Reagan, 1983 WL 538 (D.D.C. Nov. 14, 1983) ................................................................... 49 Breuer v. Jim’s Concrete of Brevard, Inc., 538 U.S. 691 (2003) ...........................................................................................
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