EMERY CELLI BRINCKERHOFF & ABADY LLP

Transcription

1 Case 1:17-cv PGG Document 10 Filed 12/12/17 Page 1 of 2 RICHARD D. EMERY ANDREW G. CELLI, JR. MATTHEW D. BRINCKERHOFF JONATHAN S. ABADY EARL S. WARD ILANN M. MAAZEL HAL R. LIEBERMAN DANIEL J. KORNSTEIN O. ANDREW F. WILSON ELIZABETH S. SAYLOR DEBRA L. GREENBERGER ZOE SALZMAN SAM SHAPIRO ALISON FRICK DAVID LEBOWITZ DOUGLAS E. LIEB ALANNA KAUFMAN JESSICA CLARKE EMMA L. FREEMAN DAVID BERMAN ASHOK CHANDRAN EMERY CELLI BRINCKERHOFF & ABADY LLP ATTORNEYS AT LAW 600 FIFTH AVENUE AT ROCKEFELLER CENTER 10 TH FLOOR NEW YORK, NEW YORK TELEPHONE (212) FACSIMILE (212) WEB ADDRESS CHARLES J. OGLETREE, JR. DIANE L. HOUK Via ECF December 12, 2017 Honorable Paul G. Gardephe United States District Court Southern District of New York 40 Foley Square New York, NY Re: Lower East Side People s Federal Credit Union v. Trump, et al. 17 Civ Dear Judge Gardephe: We represent plaintiff in the above-captioned matter. Yesterday, we submitted an Order to Show Cause by hand to Judge Abrams for an expedited briefing schedule as part of plaintiff s motion for a preliminary injunction. We understand that the case has since been reassigned to Your Honor. We respectfully request the following briefing schedule: 1. Plaintiff s moving papers to be filed and served today (the papers are filed with this letter) 2. Amicus briefs in support of plaintiff to be filed by December 14, Opposition papers to be filed by 9am on December Amicus briefs in support of defendants to be filed by 9am on December Plaintiff s reply papers to be filed by 5pm on December 19 We believe this is a reasonable schedule, for the reasons set forth in my attached declaration and the supporting papers.

2 Case 1:17-cv PGG Document 10 Filed 12/12/17 Page 2 of 2 EMERY CELLI BRINCKERHOFF & ABADY LLP Page 2 Respectfully Submitted, /s Ilann M. Maazel

3 Case 1:17-cv PGG Document 10-1 Filed 12/12/17 Page 1 of 4 Exhibit A

4 Case 1:17-cv PGG Document 10-1 Filed 12/12/17 Page 2 of 4 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK LOWER EAST SIDE PEOPLE S FEDERAL CREDIT UNION, on behalf of itself and its members, -against- Plaintiff, DONALD JOHN TRUMP, in his official capacity as President of the United States of America; JOHN MICHAEL MULVANEY, in his capacity as the person claiming to be acting director of the Consumer Financial Protection Bureau, Case No. 17 Civ (RA) ORDER TO SHOW CAUSE FOR PRELIMINARY INJUNCTION Defendants. Upon the Declaration of Ilann M. Maazel, dated December 11, 2017, and all exhibits attached thereto, the Declaration of Linda Levy, dated December 11, 2017, plaintiff s memorandum of law in support of its motion for a preliminary injunction, and upon the copy of the complaint hereto annexed, it is ORDERED, that the above named defendants show cause before a motion term of this Court at Room, United States Courthouse, 500 Pearl Street, in the City, County, and State of New York, on, at o clock in the thereof, or as soon thereafter as counsel may be heard, why an order should not be issued pursuant to Rule 65 of the Federal Rules of Civil Procedure, preliminarily (1) declaring that defendant Mulvaney s appointment as Acting Director of the Consumer Financial Protection Bureau is unconstitutional and in violation of 12 U.S.C. 5491(b)(5)(B) and enjoining him from serving as the Acting Director of the 1 1

5 Case 1:17-cv PGG Document 10-1 Filed 12/12/17 Page 3 of 4 Consumer Financial Protection Bureau; (2) declaring that Leandra English is the Acting Director of the Consumer Financial Protection Bureau under 12 U.S.C. 5491(b)(5)(B); (3) declaring that the Federal Vacancies Reform Act does not control the appointment of a temporary Acting Director of the Consumer Financial Protection Bureau because the Dodd-Frank Act expressly... designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity, 5 U.S.C. 3347(a)(1)(B); (4) declaring that the Federal Vacancies Reform Act does not control the appointment of a temporary Acting Director of the Consumer Financial Protection Bureau because that position is excluded from the Federal Vacancies Reform Act under 5 U.S.C. 3349c(1); (5) declaring that defendant Mulvaney and other at-will employees in the White House cannot be the Acting Director of the Consumer Financial Protection Bureau; (6) ordering defendant Trump to refrain from appointing any individual to the position of Acting Director of the Consumer Financial Protection Bureau; (7) ordering defendant Mulvaney to refrain from accepting any appointment to the position of Acting Director of the Consumer Financial Protection Bureau, or asserting or exercising in any way the authority of that office; and it is further ORDERED that plaintiff shall file this signed Order to Show Cause and the accompanying papers on the Court s electronic docket on or before o clock in the, December, 2017; and it is further ORDERED that any amicus briefs in support of plaintiff s motion for a preliminary injunction be filed on the Court s electronic docket on or before December, 2017; and it is further ORDERED that defendants response to plaintiff s motion for a preliminary 2 2

6 Case 1:17-cv PGG Document 10-1 Filed 12/12/17 Page 4 of 4 injunction be filed on the Court s electronic docket on or before December, 2017 at o clock in the ; and it is further ORDERED that any amicus briefs in opposition to plaintiff s motion for a preliminary injunction be filed on the Court s electronic docket on or before December, 2017 at o clock in the ; and it is further ORDERED that Plaintiff s reply in further support of its motion for a preliminary injunction be filed on the Court s electronic docket on or before o clock in the ; and it is further ORDERED that hand delivery of a copy of this order and the annexed papers upon the U.S. Attorneys office for the Southern District on or before o clock in the, December, 2017, and overnight delivery, to be sent on or before December, 2017, to the Attorney General of the United States, President Trump, and John Mulvaney shall be deemed good and sufficient service thereof. New York, New York Dated: December, 2017 HON. RONNIE ABRAMS United States District Judge 3 3

7 Case 1:17-cv PGG Document 10-2 Filed 12/12/17 Page 1 of 29 Exhibit B

8 Case 1:17-cv PGG Document 10-2 Filed 12/12/17 Page 2 of 29 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK LOWER EAST SIDE PEOPLE S FEDERAL CREDIT UNION, on behalf of itself and its members, -against- Plaintiff, Case No. 17 Civ. 9536(RA) DONALD JOHN TRUMP, in his official capacity as President of the United States of America; JOHN MICHAEL MULVANEY, in his capacity as the person claiming to be acting director of the Consumer Financial Protection Bureau, Defendants. DECLARATION OF ILANN M. MAAZEL IN SUPPORT OF PLAINTIFF S MOTION FOR A PRELIMINARY INJUNCTION Ilann M. Maazel declares, under penalty of perjury and pursuant to 28 U.S.C. 1746, that the following is true and correct: 1. I am a partner at Emery Celli Brinckerhoff & Abady LLP, attorneys for plaintiff. I submit this declaration in support of plaintiff s motion for a preliminary injunction. 2. Plaintiff brings its preliminary injunction motion by order to show cause to ask the Court to set an expedited briefing schedule on the motion. Specifically, plaintiff asks for the following schedule: a. Plaintiff s moving papers to be filed on December 11, 2017; b. Amicus briefs in support of plaintiff to be filed on or before December 13, 2017; 1 1

9 Case 1:17-cv PGG Document 10-2 Filed 12/12/17 Page 3 of 29 c. Defendants opposition to be filed on or before December 18, 2017, at 10 a.m.; d. Amicus briefs in opposition to plaintiff s motion to be filed on or before December 18, 2017, at 10 a.m.; and e. Plaintiff s reply to be filed on or before December 19, 2017, at 5 p.m. 3. Plaintiff further requests that the Court set a hearing on the preliminary injunction motion forthwith after briefing is completed, consistent with the Court s calendar. 4. Plaintiff seeks expedited treatment of this motion because the matters raised by this motion are of the utmost public importance and prompt resolution will serve the public and plaintiff. Mr. Mulvaney s appointment is ultra vires, as detailed further in the accompanying memorandum of law. His illegal appointment has thrown plaintiff and other regulated credit unions and banks into regulatory chaos. He is rapidly attempting to gut the agency, at the expense of plaintiff s thousands of members. In addition, the chief question before this Court is a clear legal question of whether Mr. Mulvaney s appointment is lawful under the statutory framework. The Office of the Legal Counsel at the Department of Justice has already opined on the lawfulness of Mr. Mulvaney s appointment, and the government has briefed this issue in a case pending in the District Court of the District of Columbia captioned English v. Trump and Mulvaney, 17-cv-2534 (D.D.C). Accordingly, one week is more than sufficient for the government to respond to plaintiff s motion. 5. Because defendants have not yet appeared in this action, plaintiff further requests that service of the Order to Show Cause by hand delivery to the U.S. Attorneys Office for the Southern District of New York and by overnight mail to the Attorney General of the United 2 2

10 Case 1:17-cv PGG Document 10-2 Filed 12/12/17 Page 4 of 29 States, President Trump, and Mr. Mulvaney, consistent with Fed. R. Civ. P. 4(i), be deemed sufficient. Plaintiff served Lhose persons on December 7, 2017, as detailed in its filed affidavit of service. 6. Attached as Exhibit 1 is the Complaint in this action. 7. Attached as Exhibit 2 is the declaration of Leandra English in support of her motion for a preliminary injunction, Dkt. 24, English v. Trump, 17-cv (D.D.C. Dec. 6, 2017), and accompanying exhibits: Ex. A, Dkt (memorandum of outgoing Director Richard Cordray appointing English as Deputy Director, effective at noon on Nov. 24, 2017); Ex. B, Dkt (resignation letter of Richard Cordray, effective at midnight on Nov. 24, 2017); Ex. C, Dkt (White House press release designating Mick Mulvaney as Acting Director, approx. 8:50 pm on Nov. 24, 2017). R. Attached as Exhibit 3 is a tweet that President Trump tweeted on December 8, Dated: New York, New York December 11, 2017 I Ilann M. Maazel -3-

11 Case 1:17-cv PGG Document 10-2 Filed 12/12/17 Page 5 of 29 Exhibit 1

12 Case Case 1:17-cv PGG Document Filed Filed 12/05/17 12/12/17 Page Page 1 of 15 6 of 29 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK LOWER EAST SIDE PEOPLE S FEDERAL CREDIT UNION, on behalf of itself and its members, v. Plaintiff, Case No. 17 Civ DONALD JOHN TRUMP, in his official capacity as President of the United States of America; JOHN MICHAEL MULVANEY, in his capacity as the person claiming to be acting director of the Consumer Financial Protection Bureau, COMPLAINT Defendants. Plaintiff Lower East Side People s Federal Credit Union, on behalf of itself and its members and by and through its attorneys Emery Celli Brinckerhoff & Abady LLP, for its Complaint alleges as follows: PRELIMINARY STATEMENT 1. The Lower East Side People s Federal Credit Union in New York City is regulated by the United States Consumer Financial Protection Bureau (CFPB). President Trump has attempted an illegal hostile takeover of the CFPB, throwing the Credit Union and other credit unions and banks into a state of regulatory chaos. Even worse, defendant Trump has purported to appoint an Acting Director whose mission is to destroy a Bureau that protects thousands of the Credit Union s members. 2. The Credit Union does not know who is validly in charge of the CFPB, who is authorized to make the rules, or whose rules to follow. The Court must resolve this regulatory

13 Case Case 1:17-cv PGG Document Filed Filed 12/05/17 12/12/17 Page Page 2 of 15 7 of 29 chaos. It must determine who is in charge of the Bureau. To the Credit Union, it is plain that Leandra English is the only lawful Acting Director in charge of the CFPB. 3. The Dodd-Frank Act of 2010 created the Bureau as an independent federal agency, to be led by a single director. When Bureau Director Richard Cordray resigned, Deputy Director Leandra English became the agency s Acting Director: the Deputy Director shall... serve as the acting Director in the absence or unavailability of the Director. 12 U.S.C. 5491(b)(5)(B). By statute, she will remain the Acting Director until the President appoints and the Senate confirms a new Director. 12 U.S.C. 5491(b)(2). 4. Notwithstanding this statutory language, President Trump purported to install defendant Michael Mulvaney, the Director of the White House Office of Management and Budget, as the Bureau s Acting Director. Defendant Trump would have his at-will employee in the White House run a statutorily independent agency on the side. 5. The President claims authority to appoint Mr. Mulvaney under the Federal Vacancies Reform Act of 1988, 5 U.S.C. 3345(a)(2). But the Vacancies Reform Act is not available where, as here, another statute in language that is mandatory rather than merely permissive expressly... designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity, 5 U.S.C. 3347(a)(1)(B). The President s position runs contrary to Dodd-Frank s later-enacted and more specific text, the overall statutory design and independence of the Bureau, and Congress s approach to appointments at other independent agencies. The President s stance also does not square with the relevant legislative history: An earlier version of the Dodd-Frank Act would have allowed the President to use the Vacancies Reform Act to temporarily fill the office. But that language was 2

14 Case Case 1:17-cv PGG Document Filed Filed 12/05/17 12/12/17 Page Page 3 of 15 8 of 29 eliminated and replaced. The current language in the law designates the Deputy Director (Ms. English) as the Acting Director. 6. In addition, it is undisputed that under the Vacancies Reform Act, the President cannot appoint an acting director to an independent multi-member board or commission without Senate approval. 5 U.S.C. 3349c(1). But that is exactly what President Trump did. The Acting Director of the CFPB is by operation of law one of the five members of the board of the Federal Deposit Insurance Corporation, an independent agency. 12 U.S.C. 1812(a)(1)(B), 1812(d)(2). Defendant Trump has appointed his at-will employee, Mr. Mulvaney, to serve on the FDIC board. That is plainly illegal. 5 U.S.C. 3349c(1). 7. Even if President Trump could appoint someone as CFPB Acting Director (he cannot), he cannot appoint a White House employee who serves at his whim and pleasure to run this independent agency. A major purpose of the Dodd-Frank Act was to create a CFPB independent of the President and insulated from political pressure. The purported Mulvaney appointment destroys CFPB independence altogether. 8. The Credit Union contests the legality of President Trump s appointment of Mr. Mulvaney. It seeks a declaration and an injunction barring this and any other CFPB Acting Director appointment by defendant Trump absent Senate approval. JURISDICTION AND VENUE 9. This Court has jurisdiction over the subject matter of this action for declaratory and injunctive relief under 28 U.S.C. 1331, 1361, 1651, 2201, and Venue is proper in this district under 28 U.S.C. 1391(e)(1). 3

15 Case Case 1:17-cv PGG Document Filed Filed 12/05/17 12/12/17 Page Page 4 of 15 9 of 29 PARTIES 11. Plaintiff Lower East Side People s Federal Credit Union ( Credit Union ) resides in Manhattan. The Credit Union s principal place of business is at 37 Avenue B. The Credit Union is regulated by the CFPB. For example, the Credit Union must comply with the CFPB's Know Before You Owe mortgage disclosure rules by providing specified disclosures to members seeking home mortgages. Those regulations, also called the TILA-RESPA Integrated Disclosures rule, were issued by the CFPB to implement the Real Estate Settlement Procedures Act (12 CFR Part 1024, Regulation X) and the Truth in Lending Act (12 CFR Part 1026, Regulation Z). As a second example, the Credit Union must comply with the CFPB s Ability to Repay and Qualified Mortgage Standards under the Truth in Lending Act (12 CFR Part 1026, Regulation Z). Those regulations require the Credit Union to make a reasonable, good faith determination of a consumer s ability to repay a mortgage. 12. Established in 1986, the Credit Union is a non-profit financial cooperative that promotes fair lending, financial inclusion and economic opportunity in New York City neighborhoods. The Credit Union is owned by its approximately 8,500 members and is dedicated to providing high-quality financial services and community development investments in low income, immigrant and other underserved communities. The Credit Union has made approximately $100 million dollars in housing, small business, and consumer loans; served more than 30,000 people; and today serves approximately 8,500 members, primarily in Manhattan. The majority of the Credit Union s members are low income and vulnerable to predatory lending practices and other misconduct the CFPB exists to prevent. 13. President Trump s attempted illegal takeover of the CFPB has thrown the Credit Union into regulatory chaos. The Credit Union does not know who should be lawfully running 4

16 Case Case 1:17-cv PGG Document Filed Filed 12/05/17 12/12/17 Page Page 5 of 10 15of 29 the Bureau, who has the authority to make the rules, or whose rules to follow. The Credit Union has a compelling interest in immediately resolving this regulatory uncertainty, and reestablishing clarity and order in its dealings with the CFPB, both for itself and its membership. 14. In addition, Defendant Mulvaney who has, inter alia, called the CFPB a sad, sick joke is already gutting the CFPB, undermining its mission, and reportedly rolling back regulatory protections that protect the Credit Union s members. The Credit Union s members need the CFPB to protect them against unscrupulous payday lenders, mortgage sellers, and others regulated by the CFPB. Unlike defendant Mulvaney, the Credit Union believes in CFPB s mission, its regulations, and its vital role in protecting American consumers, and creating a level playing field for responsible lenders such as the Credit Union. The appointment of defendant Mulvaney poses an immediate threat to American consumers, including and especially the Credit Union s vulnerable, low-income membership. 15. Defendant Donald J. Trump is the President of the United States and is responsible for the purported designation of Defendant Mulvaney as Acting Director of the Consumer Financial Protection Bureau. 16. Defendant John Michael Mulvaney, also known as Mick Mulvaney, is the Director of the White House Office of Management and Budget and a person claiming to be designated as the Acting Director of the Consumer Financial Protection Bureau. Statutory Background STATEMENT OF FACTS The CFPB Is an Independent Bureau Whose Deputy Director Shall Serve as Acting Director in the Absence or Unavailability of the Director 17. In 2010, Congress enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L , 124 Stat (July 21, 2010), which created the Consumer 5

17 Case Case 1:17-cv PGG Document Filed Filed 12/05/17 12/12/17 Page Page 6 of 11 15of 29 Financial Protection Bureau and established it as an independent bureau located in the Federal Reserve System. 12 U.S.C. 5491(a). A key response to the 2008 financial crisis, the CFPB is the first federal agency with the sole goal of protecting consumers of the U.S. financial services industry. Conscious of the regulatory failures that had fueled the 2008 crisis, Congress took pains to ensure that the new agency would be independent enough to resist capture by powerful financial interests and fulfill its critical responsibilities to American consumers. 18. The CFPB is designed to be led and managed by a single Director, who shall serve as the head of the Bureau. 12 U.S.C. 5491(b)(1). The Director, who serves a five-year term, is to be appointed by the President, by and with the advice and consent of the Senate. 12 U.S.C. 5491(b)(2). To ensure the Bureau s independence, Congress specified that the Director would not serve at the pleasure of the President and could instead be removed only for cause. 12 U.S.C. 5491(c)(3) ( The President may remove the Director for inefficiency, neglect of duty, or malfeasance in office. ). 19. As an additional measure of independence, Congress ensured that the President could not circumvent the need for Senate confirmation by naming a temporary replacement for a Director who leaves before the expiration of his or her term. Instead, Congress provided that the Bureau s Deputy Director, who is appointed by the Director, shall serve as acting Director in the absence or unavailability of the Director. 12 U.S.C. 5491(b)(5). 20. This designation of the Deputy Director as the acting Director reflects Congress s deliberate choice to depart from the default procedure for naming an acting official under the Federal Vacancies Reform Act of 1988 (FVRA). An early version of the Act that passed the House of Representatives in December 2009 did not provide for a Deputy Director, and instead explicitly stated that a temporary replacement for a Director would be chosen in the 6

18 Case Case 1:17-cv PGG Document Filed Filed 12/05/17 12/12/17 Page Page 7 of 12 15of 29 manner provided by the FVRA. H.R. 4173, 111th Cong. 4102(b)(6)(B)(1) (engrossed version, Dec. 11, 2009). But the Senate bill introduced and passed months later contained the present statutory language. S. 3217, 111th Cong. 1011(b)(5)(B) (2010). 21. The Vacancies Reform Act, by its own terms, does not control where, as with the Dodd-Frank Act, a statutory provision expressly... designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity. 5 U.S.C. 3347(a)(1)(B). The President Shall Not Appoint a Member of the FDIC Board without Senate Confirmation; the Acting Director of the CFPB is a Member of the FDIC Board 22. In addition, the President s Vacancies Reform Act appointment powers shall not apply to any members of an independent multi-member board or commission. 5 U.S.C. 3349c(1). 23. The Acting Director of the CFPB is an automatic member of an independent multi-member board or commission: the Federal Deposit Insurance Corporation (FDIC) board. 12 U.S.C. 1812(a)(1)(B), 1812(d)(2). 24. Therefore, the Vacancies Reform Act does not apply to the appointment of the Acting Director of the CFPB. 25. Even defendant Trump s own Office of Legal Counsel at the U.S. Department of Justice admits that the Vacancies Reform Act shall not apply to independent multi-member boards or commissions such as the FDIC board. As OLC admits, Congress has indeed determined that some positions with hallmarks of independence should not be filled on an acting basis through the Vacancies Reform Act. 26. One such position is FDIC board member. 7

19 Case Case 1:17-cv PGG Document Filed Filed 12/05/17 12/12/17 Page Page 8 of 13 15of Because the President cannot appoint an FDIC board member on an acting basis, the President cannot appoint the Acting Director of the CFPB, who is an FDIC board member. 28. The Acting Director of the CFPB is, by statute, one of only five members of the FDIC board. 12 U.S.C. 1812(a)(1)(B). Ms. English s Appointment in Accordance with 12 U.S.C. 5491(b)(5) 29. Richard Cordray was confirmed as the first Director of the CFPB by a vote in the United States Senate on July 16, 2013, and took office on July 17, Mr. Cordray resigned his position as Director of the CFPB, effective at midnight on November 24, At approximately 2:30 p.m. on the afternoon of November 24, 2017, before leaving office, Director Cordray publicly announced that he had appointed Leandra English up until then the Bureau s Chief of Staff as the Bureau s Deputy Director, to ensure that she would become the Acting Director pursuant to 12 U.S.C. 5491(b)(5) until the confirmation by the Senate of a new Director appointed by the President. 32. In considering how to ensure an orderly succession for this independent agency, Director Cordray explained in a statement, I have also come to recognize that appointing the current chief of staff to the deputy director position would minimize operational disruption and provide for a smooth transition given her operational expertise. 33. In addition to serving as the CFPB s Chief of Staff, Ms. English has served in a number of senior leadership roles at the CFPB, including Deputy Chief Operating Officer, Acting Chief of Staff, and Deputy Chief of Staff. In addition to her work at the CFPB, Ms. English has served as the Principal Deputy Chief of Staff at the Office of Personnel Management, the Chief of Staff and Senior Advisor to the Deputy Director for Management at 8

20 Case Case 1:17-cv PGG Document Filed Filed 12/05/17 12/12/17 Page Page 9 of 14 15of 29 the White House Office of Management and Budget, and as a member of the CFPB Implementation Team at the U.S. Department of the Treasury. The President Violates the Law 34. At approximately 8:50 p.m. on the evening of November 24, 2017, the White House press office issued the following statement: Today, the President announced that he is designating Director of the Office of Management and Budget (OMB) Mick Mulvaney as Acting Director of the Consumer Financial Protection Bureau (CFPB). The White House statement did not refer to Director Cordray s earlier appointment of Ms. English as Deputy Director. 35. By purporting to name Mr. Mulvaney as Acting Director of the CFPB, defendant Trump is also purporting to name Mr. Mulvaney a member of the board of the independent, multi-member FDIC. 36. Mr. Mulvaney has never previously served in any capacity in a consumerprotection enforcement or financial or banking regulatory agency at the state, federal, or local level. 37. Mr. Mulvaney has described the CFPB as a sad, sick joke, has co-sponsored legislation proposing to eliminate the agency, and said at a hearing in the House of Representatives: I don t like the fact that CFPB exists, I ll be perfectly honest with you. 38. Ms. English is the Acting Director of the CFPB. 39. First, at the moment that Director Cordray s resignation became effective, she was the agency s Deputy Director, a position created by Congress via the Dodd-Frank Act. 12 U.S.C. 5491(b). The statutory provision creating the position states, in mandatory language, that the Deputy Director shall... serve as acting Director in the absence or unavailability of the Director. Id. 5491(b)(5)(B). Under a plain reading of this language, the Deputy Director 9

21 Case Case 1:17-cv PGG Document Filed Filed 12/05/17 12/12/17 Page Page 10 of 15 15of 29 automatically becomes the Acting Director when the Director leaves office: a Director no longer serving in office is absent as well as unavailable. Thus, when a Director resigns, the Deputy Director serves as Acting Director. This legal arrangement was triggered by the resignation of Director Richard Cordray on November 24, 2017, and his appointment of Ms. English as Deputy Director on that same date. 40. As Acting Director of the CFPB, Ms. English is also a member of the board of the FDIC. 12 U.S.C. 1812(a)(1)(B), 1812(d)(2). 41. However, defendants threw this orderly succession into utter chaos when defendant Trump purported to appoint defendant Mulvaney as Acting Director. The President s purported use of the Federal Vacancies Reform Act to appoint an Acting Director of the CFPB is an obvious contravention of Congress s statutory scheme. General principles of statutory interpretation make plain that the FVRA cannot apply where there is a more specific provision determining a plan for filling a particular vacancy, and the FVRA itself provides that it does not control where, as here, a statutory provision expressly... designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity. 5 U.S.C. 3347(a)(1)(B). 42. Second, the President s Vacancies Reform Act appointment powers shall not apply to any members of an independent multi-member board or commission. 5 U.S.C. 3349c(1). 43. The Acting Director of the CFPB shall be a member of the board of the FDIC, an independent multi-member board or commission. 12 U.S.C. 1812(a)(1)(B) (CFPB Director shall be ), 1812(d)(2) (CFPB Acting Director shall be ). 10

22 Case Case 1:17-cv PGG Document Filed Filed 12/05/17 12/12/17 Page Page 11 of 16 15of Defendant Mulvaney shall not be on the FDIC board, 5 U.S.C. 3349c(1), and therefore cannot be the Acting Director of the CFPB. 45. Third, the purported appointment of a White House staffer to lead the CFPB violates Congress s statutory mandate that the agency be independent. 12 U.S.C. 5491(a). 46. Defendant Mulvaney is the Director of the White House Office of Management and Budget. OMB is an agency within the Executive Office of the President. He is an at-will employee. He serves at the whim and pleasure of the President. He does not enjoy the statutory protections given to the CFPB director. Mr. Mulvaney is particularly susceptible to the direct presidential influence that Congress sought to avoid when it created the CFPB. 47. Even if the President could appoint an Acting Director to the CFPB (he cannot), he still could not appoint his at-will employee Mr. Mulvaney. 48. Nor can the President under any circumstances appoint his at-will employee to be a member of the board of the FDIC. Yet that is what defendant Trump has purported to do. Defendant Mulvaney Begins to Dismantle the CFPB 49. On November 24, the CFPB, through Mr. Cordray, announced that Ms. English would be the Acting Director until a new Director was confirmed. On November 25, CFPB took the opposite position. The CFPB s General Counsel, Mary McLeod, issued a November 25, 2017 memorandum to the CFPB s Senior Leadership Team directing all Bureau personnel to act consistently with the understanding that Director Mulvaney is the Acting Director of the CFPB. Defendants and the CFPB subsequently stated to the world that Mr. Mulvaney is the Acting Director, including by listing him as the Acting Director on its website. 50. Meanwhile, according to press reports, Ms. English continues to assert that she is Acting Director and is instructing CFPB employees accordingly. 11

23 Case Case 1:17-cv PGG Document Filed Filed 12/05/17 12/12/17 Page Page 12 of 17 15of In just a week as the purported Acting Director, defendant Mulvaney has reportedly stopped all new CFPB regulations, stopped all new contracting, stopped all new lawsuits, installed his aides into important CFPB positions, and stopped all payments from the CFPB civil penalties fund. 52. Defendant Mulvaney d[oesn ]t like the fact that CFPB exists. Now he is trying to minimize its existence. CLAIMS 53. President Trump s appointment of Defendant Mulvaney contravenes 12 U.S.C. 5491(b)(5)(B), which establishes that Leandra English is the Acting Director of the Consumer Financial Protection Bureau. 54. Article II Section 2 of the Constitution provides that the President must appoint all officers of the United States with the advice and consent of the Senate. The President may only bypass Senate confirmation in one instance: where Congress vest[s] the appointment of such inferior officers... in the President alone. 55. Defendant Trump did not appoint defendant Mulvaney with the advice and consent of the Senate. 56. Congress did not vest the appointment of the CFPB Acting Director in the President alone. 57. Congress did not vest the appointment of a member of the FDIC board in the President alone. 58. By appointing Mr. Mulvaney in the absence of any Congressional statute so authorizing, President Trump violated constitutional principles of Separation of Powers and the Appointments Clause. 12

24 Case Case 1:17-cv PGG Document Filed Filed 12/05/17 12/12/17 Page Page 13 of 18 15of Though Mr. Mulvaney is acting ultra vires, defendant Mulvaney and the CFPB have taken a final action to install him and recognize him as CFPB Acting Director, in an irrational and unjustified change in agency position. Under the Administrative Procedures Act, plaintiff is adversely affected and aggrieved by that agency action and is entitled to judicial review thereof. 60. A declaration of rights under the Declaratory Judgment Act, 28 U.S.C and the Court s inherent powers is necessary to resolve who is running the CFPB. The Court must rule that Mr. Mulvaney is not the Acting Director of the CFPB, that Ms. English is the Acting Director of the CFPB, and that neither defendant has any ability to make or receive an appointment for the position of Acting Director of the CFPB, or to otherwise act as an officer of the CFPB. 61. In addition, under 28 U.S.C. 2202, the All Writs Act, and the Court s inherent equitable powers, the Court should grant [f]urther necessary or proper relief, including an injunction, preventing defendant Mulvaney from serving as Acting Director and defendant Trump from purporting to appoint anyone as CFPB acting director absent Senate confirmation. 62. The Credit Union will be and is irreparably harmed by the defendants actions and threatened actions, and is without an adequate remedy at law. PRAYER FOR RELIEF The Credit Union requests that the Court: a. Declare that defendant Mulvaney s appointment as the Acting Director of the Consumer Financial Protection Bureau is unconstitutional and in violation of 12 U.S.C. 5491(b)(5)(B) and enjoin him from serving as the Acting Director of the Consumer Financial Protection Bureau; 13

25 Case Case 1:17-cv PGG Document Filed Filed 12/05/17 12/12/17 Page Page 14 of 19 15of 29 b. Declare that Leandra English is the Acting Director of the Consumer Financial Protection Bureau under 12 U.S.C. 5491(b)(5)(B); a. Declare that the Federal Vacancies Reform Act does not control the appointment of a temporary Acting Director of the Consumer Financial Protection Bureau because the Dodd-Frank Act expressly... designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity, 5 U.S.C. 3347(a)(1)(B); b. Declare that the Federal Vacancies Reform Act does not control the appointment of a temporary Acting Director of the Consumer Financial Protection Bureau because that position is excluded from the Federal Vacancies Reform Act under 5 U.S.C. 3349c(1); c. Declare that defendant Mulvaney and other at-will employees in the White House cannot be the Acting Director of the Consumer Financial Protection Bureau; d. Order defendant Trump to refrain from appointing any individual to the position of Acting Director of the Consumer Financial Protection Bureau; e. Order defendant Mulvaney to refrain from accepting any appointment to the position of Acting Director of the Consumer Financial Protection Bureau, or asserting or exercising in any way the authority of that office; f. Award all other appropriate relief, including attorneys fees and costs. 14

26 Case Case 1:17-cv PGG Document Filed Filed 12/05/17 12/12/17 Page Page 15 of 20 15of 29 Dated: New York, New York December 5, 2017 Respectfully submitted, /s/ Ilann M. Maazel Ilann M. Maazel Debra L. Greenberger EMERY CELLI BRICNKERHOFF & ABADY LLP 600 Fifth Avenue, 10 th Floor New York, New York Phone: (212) Fax: (212) Attorneys for Plaintiff 15

27 Case 1:17-cv PGG Document 10-2 Filed 12/12/17 Page 21 of 29 Exhibit 2

28 Case Case 1:17-cv PGG 1:17-cv TJK Document Filed 12/06/17 12/12/17 Page 122 of of 329 IN THE UNITED STATES DISTRICT COt:"RT FOR THE DISTRICT OF COLUMBIA LEANDRA ENGLISH, Plain tid; v. DONALDJ. TRUMP and JOIJN M. MULVANEY, Defendants. Case No. I: 1 7 -cv DECLARATION OF LEANDRA ENGLISH Pursuant to 28 U.S.C. 1746, I hereby declare as follows: I. I am making this declaration in support of my motion for a preliminary injunction. 2. Before November 24, 2017, I served in a number of senior leadership roles at the Consumer Financial Protection Bureau (CFPB), including Acting Chief of Staff, Deputy Chief of Staff, and Deputy Chief Opera ling Officer. 3. In addition to my work at the CFPB, I have previously served as the Principal Deputy Chief of Staff at the Office of Personnel Management, the Chief of Staff and Senior Advisor to the Deputy Director for Management at the \Vhite House Office of Management and Budget, and as a member of the CFPB Implementation Team at the U.S. Department of the Treaswy. I received a B.A. from New York University and an M.S. from the London School of Economics. 4. I was appointed the Deputy Director of the Consumer Financial Protection Bureau effective at noon on November 24, 2017, by the outgoing Director, Richard Cordray. Mr. Cordray made my appointment by means of a memorandum signed by him, a true and correct copy of which is attached as Exhibit r\. 5. At approximately 2:30 p.m. on the afternoon of November 24, 2017, before leaving office, Director Cordray publicly announced that he had appointed me as the Deputy Director to

29 Case Case 1:17-cv PGG 1:17-cv TJK Document Filed 12/06/17 12/12/17 Page 223 of of 329 ensure that I would become the Bureau's Acting Director, pursuant to 12 U.S.C. 549l(b)(5), until the confirmation by the Senate of a new Director appointed by the President. "In considering how to ensure an orderly succession for this independent agency," Director Cordray l"xplained in a statement, "I have also come to recognize that appointing the current chief of staff to the deputy director position would minimize operational disruption and provide for a smooth transition given her operational expertise.'' 6. Mr. Cordray resigned his position as Director of the CFPB effective at midnight on November 24, A true and correct copy of ML Cordray's resignation letter is attached hereto as Exhibit B. 7. At approximately 8:50 p.m. on the evening of November 24, 2017, the White House press office issued the following statement: '"Today, the President announced that he is designating Director of the Office of Management and Budget (OM.B) :Mick Mulvaney as Acting Director of the Consumer Financial Protection Bureau (CFPB)." A true and correct copy of this statement, as posted on the \Vhite House website, is attached hereto as Exhibit C. I declare under penalty of perjuj)' that the foregoing is true and correct. Executed in Washington, DC, on this 6th day of December,

30 Case Case 1:17-cv PGG 1:17-cv TJK Document Filed 12/06/17 12/12/17 Page 324 of of 329 CERTIFICATE OF SERVICE I hereby certify that on December 6, 2017, I electronically filed this declaration through this Court s CM/ECF system. I understand that notice of this filing will be sent to all parties by operation of the Court s electronic filing system. /s/ Deepak Gupta Deepak Gupta 3

31 Case 1:17-cv PGG 1:17-cv TJK Document Filed 12/12/17 12/06/17 Page 25 1 of G Street NW, Washington, DC Memorandum from the Director I have decided to exercise my appointment authority under section 1011(b)(5) of the Dodd-Frank Act to reassign Leandra English from her current position as Chief of Staff to serve as the Deputy Director of the Consumer Financial Protection Bureau. I do so effective at noon on Friday, November 24, She has consented to this reassignment of her duties without receiving a promotion or an increase in salary or change in any other terms of her employment. This memorandum shall serve as the memorialization of my actions in this matter. Richard Cordray Dated: November 24, 2017 Director

32 Case 1:17-cv PGG 1:17-cv TJK Document Filed 12/12/17 12/06/17 Page 26 1 of G Street NW, Washington, DC November 24, 2017 The Honorable Donald J. Trump The President The White House 1600 Pennsylvania Avenue Washington, D.C Dear Mr. President: I am writing to inform you that I am resigning my position as the Director of the Consumer Financial Protection Bureau effective at the close of business (midnight) on Friday, November 24, It has been one of the great joys of my life to have had the opportunity to serve as the first director of the Consumer Bureau for the past six years. I have worked alongside extraordinary men and women who are dedicated to improving the economic health of our country and the financial health of its citizens. Our work has established new safeguards against any repeat of the irresponsible mortgage lending which caused the financial crisis and the economic meltdown that damaged so many families and communities. We have returned almost $12 billion to more than 30 million consumers who had been cheated or mistreated by banks or other large financial companies. We have created new ways to bring financial education to the public so people can take more control over their economic lives. And we have helped hundreds of thousands of Americans who brought their problems to us when it seemed nobody else would listen to them. Since its inception, the Consumer Bureau has stood on the side of consumers to see that they are treated fairly, worked to improve their economic circumstances, and held financial institutions accountable to the basic principle that every consumer counts. This role is vital in our economy, where consumer demand is responsible for two-thirds of the economic activity that makes up our country s GDP. When consumers are supported and protected, when they can have trust and confidence in the marketplace, they drive our economy forward. That is exactly what they have been doing in the past few years, as strong demand for housing, home improvements, and cars and trucks have led to continuing economic recovery from the financial crisis. Making sure that everyone plays by the rules promotes fair economic competition and benefits consumers. In these ways, the ongoing and future work of the Consumer Bureau makes key contributions to the health of our economy and the well-being of all Americans. I am grateful to have been able to serve my country in this capacity, and in departing I now look forward to finding further ways to continue to advocate for those who are facing economic anxiety and uncertainty in their lives. Sincerely, Richard Cordray Director

33 Case 1:17-cv PGG 1:17-cv TJK Document Filed 12/12/17 12/06/17 Page 27 1 of /6/2017 Statement on President Donald J. Trump's Designation of OMB Director Mick Mulvaney as Acting Director of the Consumer Financial Protection Bureau whi The White House Of ce of the Press Secretary For Immediate Release November 24, 2017 Statement on President Donald J. Trump's Designation of OMB Director Mick Mulvaney as Acting Director of the Consumer Financial Protection Bureau Today, the President announced that he is designating Director of the Of ce of Management and Budget (OMB) Mick Mulvaney as Acting Director of the Consumer Financial Protection Bureau (CFPB). The President looks forward to seeing Director Mulvaney take a common sense approach to leading the CFPB s dedicated staff, an approach that will empower consumers to make their own nancial decisions and facilitate investment in our communities. Director Mulvaney will serve as Acting Director until a permanent director is nominated and con rmed. ce/2017/11/24/statement-president-donald-j-trumps-designation-omb-director-mick 1/1

34 Case 1:17-cv PGG Document 10-2 Filed 12/12/17 Page 28 of 29 Exhibit 3

35 Case 1:17-cv PGG Document 10-2 Filed 12/12/17 Page 29 of 29 Donald J. Trump ( Follow ) v Fines and penalties against Wells Fargo Bank for their bad acts against their customers and others will not be dropped, as has incorrectly been reported, but will be pursued and, if an yt hi n g, s u b stan t i a II y i n creased. I w iii cut Regs but make penalties severe when caught cheating! 7:18AM - 8 Dec ,222 Retweets 94,310 Likes

36 Case 1:17-cv PGG Document 10-3 Filed 12/12/17 Page 1 of 8 Exhibit C

37 Case 1:17-cv PGG Document 10-3 Filed 12/12/17 Page 2 of 8 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK LOWER EAST SIDE PEOPLE S FEDERAL CREDIT UNION, on behalf of itself and its members, v. Plaintiff, Case No. 17 Civ (RA) DONALD JOHN TRUMP, in his official capacity as President of the United States of America; JOHN MICHAEL MULVANEY, in his capacity as the person claiming to be acting director of the Consumer Financial Protection Bureau, Defendants. 1746: DECLARATION OF LINDA LEVY IN SUPPORT OF PLAINTIFF S MOTION FOR A PRELIMINARY INJUNCTION LINDA LEVY declares, under penalty of perjury and pursuant to 28 U.S.C. 1. I am the Chief Executive Officer (CEO) of the Lower East People s Federal Credit Union ( Credit Union ), the Plaintiff in this action. I submit this declaration in support of Plaintiff s motion for a preliminary injunction. 2. I have served as the CEO of the Credit Union since From 1991 to 1998, I served on the Credit Union s Board. I also served as Manager at the Credit Union from The Credit Union is a not-for-profit community development financial institution that serves a majority low-income and immigrant membership in New York City and promotes economic justice and opportunity in New York City neighborhoods. The Credit Union s 1

38 Case 1:17-cv PGG Document 10-3 Filed 12/12/17 Page 3 of 8 principal place of business is at 37 Avenue B, New York, NY Organized in 1986, the Credit Union has served more than 30,000 people and today serves approximately 8,500 members. Its members hail from the Lower East Side, Central Harlem, and East Harlem in Manhattan, and the North Shore of Staten Island, and its membership can also include any lowincome resident of New York City. The majority of the Credit Union s borrowers are female heads of households. The Credit Union has made approximately $100 million in housing, small business, and consumer loans. The majority of the Credit Union s members are low-income and vulnerable to predatory lending practices and other misconduct the Consumer Financial Protection Bureau (CFPB) exists to prevent. Approximately 90% of the Credit Union s members are low- or moderate-income; 65% are Latino. 4. Owned by its members, the Credit Union is dedicated to providing high-quality financial services including savings and checking accounts, credit cards, and consumer home mortgage, small business and real estate loans and community development investments in low-income, immigrant and other underserved communities. 5. The Credit Union s corporate mission is to promote economic justice and opportunity in NYC neighborhoods and provide high-quality financial services and community development investments in low income, immigrant and other underserved communities. The Credit Union Must Comply with CFPB Rules 6. All credit unions, including the Credit Union, are subject to the CFPB s rulemaking authority. The Credit Union must therefore comply with all CFPB rules. The Credit Union s compliance with CFPB rules is enforced by the National Credit Union Administration (NCUA). 2

39 Case 1:17-cv PGG Document 10-3 Filed 12/12/17 Page 4 of 8 7. For example, the Credit Union must comply with the CFPB s Know Before You Owe mortgage disclosure rule by providing specified disclosures to members seeking home mortgages. This rule, also called the TILA-RESPA Integrated Disclosures rule, was issued by the CFPB to implement the Real Estate Settlement Procedures Act (12 CFR Part 1024, Regulation X) and the Truth in Lending Act (12 CFR Part 1022, Regulation Z). 8. As a second example, the Credit Union must comply with the CFPB s Ability to Repay and Qualified Mortgage Standards rule under the Truth in Lending Act (12 CFR Part 1026, Regulation Z). This rule requires the Credit Union to make a reasonable, good faith determination of a consumer s ability to repay a mortgage. This determination includes collection of income documentation and calculation of a debt to income ratio. The Credit Union employs three underwriters who are responsible for this determination. 9. As a third example, the Credit Union must comply with the CFPB s Home Mortgage Disclosure Act (HMDA) rule. This rule, codified at 12 CFR Part 1003 (Regulation C), sets out specific requirements for the collection, recording, reporting, and disclosure of mortgage lending information. The Credit Union has been above the asset-size threshold for financial institutions required to comply with HMDA reporting requirements, and has collected and reported annual data as required under Regulation C. In 2015 and 2017, the CFPB promulgated changes to the HMDA rule concerning, inter alia, new data collection, recording, reporting, and disclosure requirements that are slated to go into effect on January 1, As a fourth example, the Credit Union must comply with the CFPB s Electronic Fund Transfer Act (EFTA) rules, including the CFPB s rule concerning international remittances, i.e., transfers of money abroad. Those rules, codified at 12 CFR Part

40 Case 1:17-cv PGG Document 10-3 Filed 12/12/17 Page 5 of 8 (Regulation E), require the Credit Union, inter alia, to provide members with disclosures about fees and exchange rates. Mr. Mulvaney s Takeover Harms the Credit Union and its Members 11. Mr. Mulvaney does not have the lawful authority to run the CFPB. The Credit Union is harmed by being regulated by someone who has no authority to do so. 12. Ever since President Trump purported to install Mr. Mulvaney as Acting Director of the CFPB on November 25, 2017, the Credit Union has been unable to determine who is validly running the Bureau or who will be making the rules. 13. The Credit Union understands that Defendant Mulvaney who has called the CFPB a sad, sick joke and recently stated that he would advocate shutting [the CFPB] down is already gutting the CFPB, undermining its mission, and reportedly rolling back regulatory protections that protect the Credit Union s members. As a result, the Credit Union does not know if, or for how much longer, existing CFPB rules will remain in effect, or if planned-for CFPB rules will in fact be going into effect as expected. 14. Such uncertainty makes it exceedingly difficult for the Credit Union to determine whether, and to what degree, it should continue to engage in certain key compliance efforts. For example, the Credit Union is uncertain whether it should continue to invest its limited staff time and financial resources into preparing to comply with changes the CFPB has made to its HMDA rule changes that the Credit Union had expected, prior to President Trump s illegal takeover of the Bureau, to go into effect on January 1, As the changes to the HMDA rule have come under fire by industry, the Credit Union fears that they may be among those that Defendant Mulvaney who has long criticized the CFPB as overreaching and unaccountable, and who has already issued a freeze on CFPB rulemaking seeks to roll back. 4