Faculty Notes Norman I. Silber, Professor of Law

Published on February 23, 2018 | by LawNews

Prof. Norman Silber Signs Amicus Brief in Support of Plaintiff-Appellant in English v. Trump, et al.

Professor Norman I. Silber joined other consumer finance and financial regulation scholars in an amicus brief to the U.S. Court of Appeals for the District of Columbia in support of Plaintiff-Appellant Leandra English, English v. Trump, No. 18-5007 (D.C. Cir.).

The issue is the rightful Acting Director of the Consumer Financial Protection Bureau.

The amicus brief argues, “The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act or Dodd-Frank) is clear: the Deputy Director of the CFPB ‘shall . . . serve as acting Director in the absence or unavailability of the Director.’ 12 U.S.C. §5491(b)(5)(B). Thus, upon the Director’s resignation, the CFPB’s Deputy Director, Leandra English, became Acting Director and may serve in that role until a new Director has been confirmed by the Senate or recess appointed.”

The amici also argue that “Deputy Director English’s claim is correct because the Dodd-Frank Act is the only statute that governs this succession dispute. In Dodd-Frank, Congress expressly decreed a mandatory line of succession for an Acting CFPB Director, stating that the Deputy Director ’shall’ serve as the Acting Director in the event of the Director’s vacancy. Congress enacted this provision after considering and rejecting the FVRA [Federal Vacancies Reform Act of 1998] during the drafting of the Dodd-Frank Act. Further, Congress’s choice of this succession provision is intrinsic to the CFPB’s design as an agency with unique independence from policy control by the White House. The appointment of any White House official, but particularly the OMB Director, as Acting CFPB Director is repugnant to the statutory CFPB independence that Congress ordained.”

Read the full amicus brief on the SSRN website.

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