On February 24, the CFPB filed an opposition brief in response to the plaintiffs’ motion for a preliminary injunction in a suit challenging the recent actions the new administration has taken to halt CFPB operations, cancel contracts, and terminate the employment of probationary employees, among other actions (covered by InfoBytes here). The CFPB stated “there will continue to be a CFPB,” responding to the plaintiffs’ allegations that the administration’s actions reflect an effort to eliminate the agency. The brief further asserted that the Trump administration’s actions to “pause policy-related decision-making” was routine “so that new agency leadership may reevaluate policies and enforcement priorities.”
A declaration in support of the brief by the CFPB’s Chief Operating Officer included the following statements:
- “Since the arrival of the Acting Director, the new leadership is engaging in ongoing decision-making to assess how to make the Bureau more efficient and accountable. Our leadership has worked to comply with statutorily required functions, and my operations team has been mindful of this as we advise on operational related issues.”
- “Work requests have been approved to allow the CFPB to maintain operations required by statute,” including maintenance tasks needed to ensure continuation of the HMDA application, the Consumer Complaint Database, and other systems.
- “The Bureau is maintaining a single, toll-free telephone number, a website, and a Consumer Complaint Database to facilitate the centralized collection of, monitoring of, and response to consumer complaints regarding consumer financial products or services.”
- “[A]s required by the HMDA, the Bureau is providing information technology technical assistance to enable filers to submit their data and enabling the [FFIEC] to compile and publish information about applications for mortgage loans that is reported to the Bureau by mortgage lenders.”
- “Shortly after becoming Acting Director, Mr. Vought reviewed the sums available to the Bureau in its Bureau and Civil Penalty Funds. After considering the Bureau’s total current balance and the projected expenses for the upcoming quarter, Acting Director Vought determined that these currently available funds were sufficient for the Bureau to carry out its statutory mandates for the next fiscal quarter.”
The CFPB’s primary arguments against a preliminary injunction were (i) a similar request by the plaintiffs was already denied by a court in a different matter (a suit filed by the union challenging the planned layoffs across the federal government); (ii) one of the plaintiffs — an employee association — did not have standing because it did not allege any injury based on the challenged conduct; (iii) the court did not have jurisdiction because the dispute should be adjudicated through the administrative process established by Congress; (iv) the plaintiffs were not challenging a “discrete agency action” as required by the APA; (v) the plaintiffs cannot obtain equitable relief outside the APA; (vi) challenges to the CFPB’s actions under the CFPA cannot proceed for certain plaintiffs who “fall outside the zone of interests protected by the statute”; (vii) the challenges under the Federal Vacancies Reform Act (FVRA) failed because the removal of an agency head and appointment of a temporary acting director “are authorized by the Constitution and the FVRA” and the Acting Director instructed employees to continue all actions required by the law, including the CFPA; (viii) the challenged actions were “committed to agency discretion by law”; (ix) the plaintiffs had not sufficiently demonstrated any irreparable harm justifying a preliminary injunction; and (x) “[t]he public has an interest in permitting the President to take decisive action when it comes to setting his policy priorities for the CFPB.”
The hearing on the plaintiffs’ request for preliminary injunction is scheduled for March 3 at 10 a.m. EST.
