In the wake of the DC Circuit’s October ruling that declared the CFPB’s single-director-removal-only-for-cause leadership structure unconstitutional, Director Richard Cordray shared words of encouragement and lyrics from a Bob Dylan song in his weekly message to CFPB personnel. Cordray encouraged Bureau staff to stay focused and to continue the agency’s core mission of protecting and supporting consumers.
Cordray also shared a few thoughts on the ruling from the DC Circuit’s three-judge panel, offering insight into the Bureau’s strategy and outlook on the legal battle. Of particular interest is Cordray’s prediction that “appeals will take at least two years to arrive at a final decision in the case.”
Director Cordray also highlighted passages from the panel’s opinion which suggest that the court’s proposed remedy on the constitutional claim “will not affect the ongoing operations of the CFPB.” In addition, Cordray mentions that the most significant outcome of the case could be a change in “tenure provision for the Director” but that the Bureau “will continue to operate and perform its many critical responsibilities.”
Keep in mind that this message was sent on October 19 – pre-election. Much has changed since that time.
Not only has Cordray’s position as CFPB Director become significantly more tenuous since Trump assumed the oval office, but the likelihood that the Bureau will be able to petition for Supreme Court review now appears improbable. As we’ve noted previously, the CFPB’s ability to overturn the DC Circuit panel’s decision may ultimately hinge on whether the US Attorney General and the Justice Department allow the case to proceed to the Supreme Court. The Dodd-Frank Act expressly authorizes the Bureau to pursue its own litigation up to and including the Circuit Court level. When it comes to the Supreme Court, however, the CFPB is required to file a written request to the US Attorney General, who has the discretion to approve or deny that request. The Trump administration will have significant control over whether such a petition will be allowed. As such, it appears that the Bureau now has even fewer options to prevail in the legal battle. In light of the election results, Cordray may want to revise his prediction that the matter is at least two years away from resolution.