On January 10, United States District Judge Timothy Kelly, a Trump administration appointee, refused for the second time to block the Trump administration’s appointment of Office of Management and Budget (OMB) Director Mick Mulvaney as the acting director of the Consumer Financial Protection Bureau (CFPB).

As we reported previously, Judge Kelly had earlier rejected CFPB Deputy Director Leandra English’s request for a temporary restraining order to prevent the administration from appointing an acting director.   In this new decision to deny English’s request for a preliminary injunction, Judge Kelly reiterated his belief that the Federal Vacancies Reform Act (FVRA) empowers the president to appoint a federal official already confirmed by the Senate to step in as the CFPB’s acting director.

“Whether English or Mulvaney is entitled to be acting director, the CFPB remains part of the Federal Reserve System.  Its new director, once appointed by the president and confirmed by the Senate, will have for-cause removal protections (subject to the outcome of pending litigation about the constitutionality of those protections),” Judge Kelly wrote. “The CFPB will continue to receive funding from the Federal Reserve, instead of Congress. And the bar on other executive branch officers exercising control over the CFPB’s communications with Congress about potential legislation will remain in place.”  Kelly again supported the Justice Department’s view that the FVRA authorizes the president to pick an acting CFPB director.

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,” according to Judge Kelly “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.”

This decision will inevitably be appealed, leading to the United States Court of Appeals for the District of Columbia Circuit having a chance to weigh in on this issue.