On December 22, 2017, the Department of Justice responded to the preliminary injunction motion (“PI motion”) filed by the Lower East Side People’s Credit Union (“People’s”) in its lawsuit challenging Mick Mulvaney’s appointment as CFPB Acting Director.  People’s lawsuit was filed in the U.S. District Court for the Southern District of New York after Leandra English, Cordray’s choice for CFPB Acting Director, filed her lawsuit in the U.S. District Court for the District of Columbia.

In its opposition brief, the DOJ not only opposed People’s PI motion but also moved to dismiss People’s lawsuit for lack of Article III standing.  People’s alleges that it has suffered injury because, as a CFPB-regulated entity, it faces “uncertainty” as to who is the lawful CFPB Acting Director.  In addition to arguing that People’s statements regarding uncertainty do not allege an injury in fact sufficient for Article III standing, the DOJ observed that People’s had not explained why such uncertainty should be attributed to Mr. Mulvaney rather than Ms. English.  The DOJ noted that the Credit Union National Association (CUNA) had also referenced the uncertainty resulting from confusion about the CFPB’s leadership in an amicus brief that supports Mr. Mulvaney.  (CUNA’s amicus brief was drafted by Ballard Spahr.)  Otherwise, the DOJ raised largely the same arguments that it raised in its opposition to Ms. English’s preliminary injunction motion.

Also on December 22, the U.S. Chamber of Commerce sought leave to file an amicus brief supporting the DOJ.  The Chamber’s proposed amicus brief raises the same arguments as the amicus brief it filed in Ms. English’s lawsuit.