[00:00:06] Speaker 00:
Mr. Gupta for the appellate and Mr. Wu Pan for the appellee.

[00:00:27] Speaker 05:
Good morning.

[00:00:28] Speaker 02:
Good morning.

[00:00:29] Speaker 02:
May it please the court.

[00:00:30] Speaker 02:
Deepak Gupta for the plaintiff Leandra English.

[00:00:33] Speaker 02:
Congress took pains to ensure that the CFPB would be independent, headed by a single- Before we get there, how does Ms.

[00:00:42] Speaker 02:
English have standing here?

[00:00:43] Speaker 02:
Well, the government hasn't questioned Miss English's article freestanding.

[00:00:48] Speaker 02:
I am.

[00:00:49] Speaker 02:
And the reason she has standing is that she is seeking to assert her entitlement to a position that she believes she lawfully holds.

[00:01:00] Speaker 02:
That is the legal question here.

[00:01:03] Speaker 03:
Address the redressability.

[00:01:05] Speaker 03:
If she prevails, does she get the relief she wants?

[00:01:09] Speaker 02:
If she prevails and there is a preliminary injunction, the preliminary injunction seeks to run against.

[00:01:20] Speaker 02:
It runs against Mr. Mulvaney.

[00:01:23] Speaker 02:
We've also sued Mr. Trump, although there's a separate question whether that would be necessary.

[00:01:28] Speaker 03:
Yeah, well, let's talk about Mr. Mulvaney.

[00:01:30] Speaker 03:
If you prevail, what's the injunction saying?

[00:01:32] Speaker 02:
So the injunction would prevent Mr. Mulvaney from holding himself out as the director of the CFPB, from occupying that position.

[00:01:41] Speaker 02:
and it would restore Miss English to what she believes is the status quo ante, which is... Would it?

[00:01:48] Speaker 03:
If you can't enjoin the President, what keeps him from naming someone else?

[00:01:55] Speaker 02:
Well, the President has the power to name someone and send a name to the Senate for confirmation.

[00:02:01] Speaker 02:
There's no question about that.

[00:02:03] Speaker 03:
You have to show that if she prevails, that she's likely

[00:02:08] Speaker 03:
to get the relief, right?

[00:02:10] Speaker 03:
And if you can't enjoin the president, and that's an open question, but not very open, right?

[00:02:18] Speaker 03:
If you can't enjoin the president here, what would prevent the president from simply naming other people?

[00:02:26] Speaker 03:
And it's not likely that Ms.

[00:02:27] Speaker 03:
English would get the relief.

[00:02:30] Speaker 03:
claims, even if her theory is correct.

[00:02:32] Speaker 02:
First of all, it is not a rule that the president can never be enjoined.

[00:02:36] Speaker 03:
Give me the examples where he has been?

[00:02:41] Speaker 02:
Sure, I mean, I'd be happy to, this question hasn't come up in the briefing, I'd be happy to give supplemental briefing on this question.

[00:02:48] Speaker 02:
It was briefed a bit in the district court.

[00:02:49] Speaker 02:
There are examples in this court, the NTU case from this circuit.

[00:02:55] Speaker 02:
What this court has said is that usually it's not necessary to enjoin the president because you can.

[00:03:02] Speaker 02:
That's why you always name other defendants.

[00:03:06] Speaker 03:
Exactly, and you can do so with declaratory release, but there is this ministerial exception.

[00:03:12] Speaker 02:
Right.

[00:03:13] Speaker 02:
But there are very few cases involving this sort of scenario where there's a contested appointment like this.

[00:03:20] Speaker 02:
We cited the Berry case from the district court, the Mackey case from the district court here in D.C., both of which granted injunctive relief against the president because there was no other person against whom to grant injunctive relief.

[00:03:32] Speaker 02:
Here, relief could be granted against Mr. Mulvaney.

[00:03:35] Speaker 03:
But all the relief against Mr. Mulvaney does is telling he can't show up

[00:03:39] Speaker 02:
work it doesn't do anything unless you unless you can enjoy in the president here I don't see how she gets her well she gets the relief she wants because she will have an order that says that she is the acting director of the CFPB and mr. Mulvaney is not and that that can be accomplished without an order against the president now you only get to any of this if you conclude that we're likely to succeed on the merits and so if I may I'd like to start there

[00:04:05] Speaker 06:
Can we deal with this problem in Swan v. Clinton and say that you'll enjoin an appointment context and join a lower level person and assume that the president will adhere to follow the court's order?

[00:04:19] Speaker 02:
Yes, and Swan v. Clinton also found that the plaintiff in that case has had Article III standing, so I should have started there.

[00:04:27] Speaker 02:
That's right.

[00:04:27] Speaker 02:
So to go to the merits now, it's now been five months since the president.

[00:04:32] Speaker 02:
since the vacancy and the president has yet to nominate a new CFPB director for Senate confirmation.

[00:04:38] Speaker 02:
Both sides agree that if President Trump had not invoked the Vacancies Reform Act, Leandra English would have become the rightful acting director by operation of the Dodd-Frank Act.

[00:04:48] Speaker 02:
And so the question here is whether the general and permissive language of the Vacancies Reform Act displaces the later enacted, more specific, and otherwise mandatory language of the Dodd-Frank Act.

[00:05:01] Speaker 05:
This case involves an apparent- So let me ask you, as you say in your reply brief, the question in part is, how do you say, how clear does Congress have to be to displace the FVRA?

[00:05:16] Speaker 05:
So the argument is the FVRA refers to vacancy, resignation, et cetera, whereas Dodd-Frank does not.

[00:05:27] Speaker 02:
Right.

[00:05:28] Speaker 02:
The government makes much of this ambiguity that the statute, the Dodd-Frank Act, uses the term unavailability.

[00:05:34] Speaker 02:
But it's common ground between the parties that unavailability covers a vacancy.

[00:05:40] Speaker 02:
The Office of Legal Counsel has concluded as such and has done so in previous opinions as well.

[00:05:47] Speaker 02:
And so the ambiguity on that question, whether the statute applies to a vacancy, I think should not be imported to other questions, which is, what is the meaning of the word shall, and how clear was Congress that this was a mandatory command?

[00:06:02] Speaker 02:
Once we get past the question, whether the statute applies to a vacancy, it either does or it doesn't, and both parties agree that it does, the question then is whether this is a mandatory command.

[00:06:12] Speaker 06:
And we think- Can I back up and ask something?

[00:06:17] Speaker 06:
That essential to your position is that she is not only that we read the Dodd-Frank Act the way you want us to, but that we also say that she has, she assumes the for-cause removal, for-cause protection from removal that the director would.

[00:06:38] Speaker 06:
Is that correct?

[00:06:39] Speaker 02:
I think that's right.

[00:06:39] Speaker 06:
Is that essential to your position?

[00:06:40] Speaker 06:
If she does not have

[00:06:42] Speaker 06:
Even if everything else you say is a right on statutory construction, just assume that for a second.

[00:06:48] Speaker 06:
If she doesn't get for-cause removal, you lose, don't you?

[00:06:52] Speaker 06:
Because the appointment of Mulvaney is a constructive discharge.

[00:06:55] Speaker 02:
Yeah, I mean, I think you could write an opinion that rules in our favor, that doesn't find for us on that ground, but I think, well... How would the appointment of Mr. Mulvaney not be a constructive discharge from that position?

[00:07:11] Speaker 02:
Yeah, I mean, I think that's the more natural view.

[00:07:14] Speaker 02:
And so let me try to defend... The unnatural view?

[00:07:19] Speaker 02:
The more natural view is what you said, which is that our position depends on this.

[00:07:23] Speaker 02:
So I think this is a question of statutory construction.

[00:07:27] Speaker 02:
And the question is, did Congress give any indication

[00:07:31] Speaker 02:
that the acting director wouldn't enjoy the for-cause protection that is critical to this agency's design, and that is, as this court explained in PHH, central to the goal that Congress had for this agency, which is independence.

[00:07:46] Speaker 02:
And it is not anomalous that an acting director or someone in this kind of position would have for-cause protection.

[00:07:54] Speaker 02:
The Social Security Administration is one of the few examples of independent- Can you say it specifically there, though?

[00:07:59] Speaker 02:
It does.

[00:08:01] Speaker 06:
So not saying it here.

[00:08:02] Speaker 06:
The difficulty for you is that the removal for cause provision only says the director.

[00:08:09] Speaker 06:
And in the very next sentence, section D, they talk about director or deputy director.

[00:08:14] Speaker 06:
So it wasn't lost on Congress.

[00:08:16] Speaker 06:
that a deputy director is different from the director.

[00:08:19] Speaker 06:
And so one, just as a matter of a straightforward reading of the statute, they left deputy director out of the four cause protection and put deputy director in the next sentence about restrictions on

[00:08:31] Speaker 06:
So that seems a tough statutory construction row to hoe.

[00:08:37] Speaker 06:
And if there's any ambiguity at all, don't we have to construe a statute not to constrain the president's ordinary at-will removal power?

[00:08:50] Speaker 02:
Okay, so as to the first question, this is just a question of statutory construction, I think first you're trying to figure out what does the term acting director mean.

[00:08:58] Speaker 02:
And I think what that means is that the acting director steps into the shoes of the director, the powers, privileges of the director, which are referred to throughout the statute, apply to the acting director.

[00:09:10] Speaker 02:
And there isn't any textual indication, and I'll get to the textual indication you've suggested,

[00:09:15] Speaker 02:
that Congress intended this for-cause protection that is really about the structural design of the agency not to apply to the deputy director.

[00:09:24] Speaker 02:
Now you mentioned this next sentence after the removal for cause of service restrictions, but notice that the service restriction provision has some independent meaning when it applies to the deputy director because what that's saying is in the ordinary course where the deputy director is not the acting director,

[00:09:41] Speaker 02:
the deputy director also can't hold these positions in a bank.

[00:09:44] Speaker 02:
So I don't think that one should draw an inference from that provision to say that we should have some kind of a textual limitation that withdraws the for-cause protection that applies to this agency from the acting director, particularly when we know that there are other examples, like the Social Security Administration, where I think for-cause removal and independence were less

[00:10:08] Speaker 02:
central to the design.

[00:10:10] Speaker 06:
But Congress said it there and didn't say it here.

[00:10:14] Speaker 02:
That is the case.

[00:10:15] Speaker 02:
That's true.

[00:10:15] Speaker 02:
There are not very many single-director agencies with for-cause protection.

[00:10:22] Speaker 02:
The only other one besides the two we've mentioned that I think is relevant is the Federal Housing Finance Agency.

[00:10:29] Speaker 02:
And actually, this question about whether for-cause removal protection applies to that director, an acting director,

[00:10:36] Speaker 02:
there is being litigated right now in the Fifth Circuit and in a case called Collins versus Mnuchin.

[00:10:44] Speaker 02:
And I think the way to approach this in the first instance is as a question of statutory construction.

[00:10:50] Speaker 02:
There isn't any textual indication.

[00:10:51] Speaker 06:
I think part of your statutory construction also seems to assume that at all times this agency must be headed by someone with four-cause removal protection.

[00:11:02] Speaker 06:
And that's just not true in the statute itself, because if, for example, Mr. Cordray had stayed to the end of his term and then just continued until a replacement was made, at the end of that term, there would, he would be subject to at-will removal.

[00:11:16] Speaker 06:
That was in our PHH decision.

[00:11:18] Speaker 06:
It was incited by parties all around.

[00:11:20] Speaker 06:
So Congress actually seemed to have envisioned that there would be these sort of interregnum situations where at-will removal would,

[00:11:28] Speaker 06:
operate with this agency.

[00:11:30] Speaker 06:
So how can this be any different here?

[00:11:34] Speaker 06:
The statutory construction or the statutory purpose for independence is not protected by the statute itself even as to the director, let alone an acting director.

[00:11:44] Speaker 02:
Well, I think, you know, we're still in the period right now where the acting director is, as it were, serving out the term for which the director was set and confirmed.

[00:11:53] Speaker 06:
Do you agree that in July 12th or whatever it is when Mr. Cordray's term would have expired had he stayed, that she would, after that, she would lose the four-cause removal?

[00:12:01] Speaker 06:
I think that's a much closer question because of this court's decision in Swan v. Clinton.

[00:12:06] Speaker 06:
I get it's a closer question, so what is Miss English's position?

[00:12:09] Speaker 02:
Does she think it continues after or is it only during the... We do think that it continues after because there's no textual indication that it's withdrawn, but I acknowledge that in Swan v. Clinton... Does it ever end for her?

[00:12:21] Speaker 02:
Sorry?

[00:12:22] Speaker 06:
Does it ever end for her?

[00:12:23] Speaker 02:
It does.

[00:12:24] Speaker 02:
I mean, I think... When?

[00:12:27] Speaker 02:
Well, certainly, in the case of Swan v. Clinton, President Clinton tried to name a replacement to the NCUA board with a recess appointment, and the court said, certainly, there's no for-cause protection there.

[00:12:40] Speaker 02:
And that was a statute where there was no statutory for-cause protection at all, which is true of many financial regulators.

[00:12:46] Speaker 02:
So I think, you know, it's certainly possible to say, under Swan v. Clinton,

[00:12:52] Speaker 02:
that at that point, once the term expires, that the for-cause protection ends with it.

[00:12:58] Speaker 02:
But here we're in a situation in which we're still within that original term.

[00:13:02] Speaker 02:
The president hasn't even named a successor, sent that name to the Senate.

[00:13:06] Speaker 02:
And so there isn't any textual reason or constitutional reason.

[00:13:10] Speaker 06:
We thought the statute were ambiguous.

[00:13:14] Speaker 06:
Not explicit.

[00:13:14] Speaker 06:
It's not explicit.

[00:13:16] Speaker 06:
We thought it were ambiguous.

[00:13:17] Speaker 06:
You have your statutory construction tools, and others will have their own.

[00:13:22] Speaker 06:
Doesn't constitutional avoidance break any ambiguity tie here?

[00:13:26] Speaker 02:
I think constitutional avoidance certainly has a role to play.

[00:13:30] Speaker 02:
But first of all, we're not in a situation in which the president has named a successor or we're past the term where those kinds of constitutional concerns would start to increase.

[00:13:44] Speaker 02:
And this court has always

[00:13:45] Speaker 02:
The Supreme Court has said that four-cause removal protection is attached to a limited duration.

[00:13:52] Speaker 02:
Here, I think Congress intended that the acting director position would be a position of limited duration, and there's no reason to think it won't be here.

[00:13:59] Speaker 02:
The president has the ability to name a successor and have that person confirmed.

[00:14:05] Speaker 02:
And so, and I should just point out that the constitutional avoidance considerations point in both directions.

[00:14:12] Speaker 02:
I mean, it is possible on the defendant's view that a director, an acting director could name a deputy and that person could remain for an indefinite period of time, although acknowledged they would say without the for-cause protection.

[00:14:29] Speaker 06:
And so, you know, in a case- How is that a constitutional problem if it's, they don't have for-cause protection?

[00:14:35] Speaker 02:
Well, it shows that the parade of horribles about a person who is remaining in the position and the Senate does not confirm anyone and conspires to deprive a Senate-confirmed director, that that can obtain even in their scenario.

[00:14:55] Speaker 02:
I think if there is, if you conclude that there's ambiguity about this question, about whether for-cause removal protection applies, I think the right way to analyze that question is, first of all, I think there's no textual indication that it was not intended to apply, and I don't think the service restriction provision

[00:15:14] Speaker 02:
gets you there.

[00:15:15] Speaker 02:
And then I think the overall purpose of this statute is very clear from this court's PHH decision.

[00:15:22] Speaker 02:
The court recognized that this statute was designed to preserve independence from presidential will, above all.

[00:15:31] Speaker 02:
And it would be quite strange for Congress in designing this agency to have created the first independent financial regulator where during this transitional period, the president can take over the agency, as it were.

[00:15:47] Speaker 02:
I mean, if you look at the multi-member commissions, what typically happens is the Senate, before the president can name a successor, the president has to send a name to the Senate and get Senate confirmation.

[00:15:58] Speaker 02:
And so this would be a situation in which

[00:16:01] Speaker 02:
The very agency that Congress intended to be sort of more independent, super independent, so much so that it raised these concerns in PHH, would be an agency where the president could take over immediately in the event of a vacancy.

[00:16:14] Speaker 02:
And all of these attributes of independence would then actually all be in service of the opposite of what Congress intended, which would be to maximize presidential control of the agency.

[00:16:26] Speaker 03:
You know, but before we get to purpose, we have to deal with text, right?

[00:16:30] Speaker 03:
That's right.

[00:16:30] Speaker 03:
And in both the Vacancies Act and Dodd-Frank, we have some express statement rules, right?

[00:16:38] Speaker 03:
And we put them together, and it's as if it reads, the Vacancy Act procedures are displaced only if done so expressly.

[00:16:46] Speaker 03:
mashing them two together.

[00:16:48] Speaker 03:
What is there in Dodd-Frank that expressly displaces the president's authority under the Vacancy Act?

[00:16:58] Speaker 03:
Because that's the way it has to expressly do so.

[00:17:00] Speaker 02:
We can't do this by implication.

[00:17:01] Speaker 02:
Right.

[00:17:02] Speaker 02:
And Congress did so expressly by using a mandatory command.

[00:17:07] Speaker 02:
The conventional way.

[00:17:10] Speaker 03:
But in Brewer, there's got to be something on the face of it.

[00:17:13] Speaker 03:
that shows us that they had in mind displacing the president's authority.

[00:17:18] Speaker 03:
You don't have the Ninth Circuit dealt with this argument.

[00:17:22] Speaker 03:
You're just creating two alternative means.

[00:17:25] Speaker 02:
We think the Ninth Circuit's decision in Hooks is correctly decided.

[00:17:28] Speaker 02:
The two statutes, the FVRA and another statute, can exist side by side.

[00:17:33] Speaker 02:
The statute there, of course, uses the word may, and it was a pre-FVRA statute.

[00:17:38] Speaker 02:
So the question here is, what did Congress mean when it used the word shall?

[00:17:42] Speaker 02:
I think the legislative history is helpful here.

[00:17:44] Speaker 02:
Congress, in the House version of the Dodd-Frank Act, had an explicit reference to the FVRA and the succession would have followed the FVRA.

[00:17:54] Speaker 02:
It eliminated that reference and instead inserted this mandatory command.

[00:17:58] Speaker 03:
Do you really want to go to legislative history?

[00:18:01] Speaker 03:
That's not a terrain I'm often comfortable arguing, but the legislative history here

[00:18:06] Speaker 03:
shows that the express statement rule was the last thing that came in in the Senate report, right?

[00:18:13] Speaker 02:
You're talking about the Dodd-Frank legislative history?

[00:18:15] Speaker 02:
Yeah, yeah.

[00:18:16] Speaker 03:
Yeah, but that express statement rule... I mean, I think the most reasonable explanation of that is that the House provision

[00:18:25] Speaker 03:
was dropped out, but the gist of it was preserved in the Senate conference report, if you want to go legislative history.

[00:18:32] Speaker 02:
You're talking about... It might be better sticking with shall.

[00:18:35] Speaker 02:
Shall is mandatory, right?

[00:18:36] Speaker 02:
Right.

[00:18:37] Speaker 02:
Shall is mandatory.

[00:18:38] Speaker 02:
That's the conventional understanding of the word shall.

[00:18:40] Speaker 03:
And nothing about the way Congress used the word here indicated an intent to do anything other than... Although, isn't the history... I mean, once again, from the legislative history, doesn't the conference report point out that there

[00:18:52] Speaker 03:
15 other statutes involving acting directors, they used the word shall and never been thought that they displaced the President's authority under the... Well, pre-FVRA, it's our view that those shall statutes were indisputably mandatory.

[00:19:09] Speaker 02:
The question is, what happened when the FVRA was passed in 1998?

[00:19:13] Speaker 02:
And it's true, the government relies on the Senate report for the conclusion that I think the branches have now understood that those statutes can exist side by side with the FVRA.

[00:19:26] Speaker 02:
But sequence, I think, is quite important here.

[00:19:28] Speaker 02:
The question here is what intent did Congress have in 2010 when Congress was designing an agency that was designed above all to be independent of presidential will?

[00:19:37] Speaker 03:
But in Dodd-Frank itself, they incorporate all of the government personnel law, specifically.

[00:19:44] Speaker 03:
And that includes the Vacancies Act, right?

[00:19:47] Speaker 02:
Well, it includes all laws applying to personnel budget, all sorts of things.

[00:19:53] Speaker 02:
It includes the Vacancies Act, right?

[00:19:55] Speaker 02:
And what that means is that, absent some textual indication to the contrary, those statutes are going to apply.

[00:20:06] Speaker 02:
But there is a textual indication.

[00:20:08] Speaker 03:
It's the word shall, right?

[00:20:10] Speaker 02:
Yes.

[00:20:11] Speaker 03:
Now, you do a lot of citing of Garner and Scalia on shall, and I like that.

[00:20:19] Speaker 03:
That's good.

[00:20:20] Speaker 03:
But they also point out that shall is a semantic mess, right?

[00:20:25] Speaker 03:
That shall doesn't always mean

[00:20:28] Speaker 03:
mandatory.

[00:20:29] Speaker 03:
And in terms of citing canons, you do the general specific canon.

[00:20:34] Speaker 03:
There's another canon that we're supposed to use before that, and that's the canon for harmonious reading of statutes.

[00:20:41] Speaker 03:
Putting all these statutes together, wouldn't it be better to read shall as will here, and that it doesn't displace it?

[00:20:47] Speaker 03:
Aren't we supposed to read them so they try and work together, and can't they work together here?

[00:20:52] Speaker 03:
Shal does not displace the Presidents?

[00:20:55] Speaker 02:
Yes, I think they do work together.

[00:20:56] Speaker 02:
That's the point I was trying to make.

[00:20:58] Speaker 03:
But not if they displace the Presidents.

[00:21:00] Speaker 02:
Well, they work together in the sense that the general and specific canon understands that the more specific and later enactment becomes an exception to the general rule.

[00:21:10] Speaker 02:
And so it's not an implied repeal.

[00:21:14] Speaker 02:
It's just a, in this specific situation, Congress certainly works, in your argument, it certainly works like an implied repeal here.

[00:21:21] Speaker 03:
You're displacing the President's authority under the Vacancies Act.

[00:21:25] Speaker 02:
Right.

[00:21:26] Speaker 02:
In this specific context where Congress used this mandatory command, which mirrors the mandatory command of the, you know, the FVRA.

[00:21:34] Speaker 02:
The FVRA, and I just, I want to sit down.

[00:21:37] Speaker 02:
The FERA says the first assistant shall become the acting, right?

[00:21:42] Speaker 02:
And then the two later clauses say notwithstanding that section, the president may.

[00:21:47] Speaker 02:
And what that structure understands is the conventional understanding of shall and may, that we needed those notwithstanding clauses.

[00:21:54] Speaker 02:
because otherwise that shell language would be mandatory.

[00:21:57] Speaker 02:
In the Dodd-Frank Act, Congress has used that shell language to indicate a mandatory command, and there's no indication that notwithstanding that mandatory command, those permissive provisions of the FVRA would apply.

[00:22:14] Speaker 05:
Sorry, to the extent your argument hinges on shell,

[00:22:19] Speaker 05:
The backup you have to that is the independence purpose, nature, structure.

[00:22:26] Speaker 05:
Yes.

[00:22:27] Speaker 05:
To what extent is your argument based on the second part of your argument, that namely Mr. Mulvaney cannot be

[00:22:38] Speaker 05:
protected.

[00:22:39] Speaker 05:
As you know better than I, you know, it's been suggested that it could be independence.

[00:22:43] Speaker 05:
The problem is the particular person who was appointed because of his position serving not only as the director of OMB, but at will.

[00:22:56] Speaker 02:
Right.

[00:22:57] Speaker 02:
I think that the appointment of Mr. Mulvaney highlights the principle argument we're making, the problem with how it destroys the statutory design that Congress had for this agency.

[00:23:10] Speaker 02:
But it's particularly, I think, notable in this regard that Congress had provisions in the statute to insulate the Bureau from the director of the Office of Management Budget.

[00:23:21] Speaker 02:
So there are provisions that say that the budgets and plans

[00:23:25] Speaker 02:
should not be construed to have to be approved by the Director of Office and Management and Budget.

[00:23:30] Speaker 05:
So pressing forward on this point, the President, if we were to read the two statutes that's coexisting, the President could appoint someone else.

[00:23:42] Speaker 05:
exercising one of the options he would have under the vacancy reform act.

[00:23:48] Speaker 02:
If you disagree with us and you conclude that the FVRA applies and the president has that authority, he could appoint somebody else.

[00:23:56] Speaker 02:
But this is the narrowest way you could rule in our favor.

[00:23:59] Speaker 05:
Well, that's what I was getting at, really.

[00:24:02] Speaker 05:
Why is it necessary to adopt your position when independence as such

[00:24:11] Speaker 05:
is preservable in another way.

[00:24:13] Speaker 05:
And the problem with the deputies serving, maybe with for cause protections, serving indefinitely, even after the president were to send someone to the Senate, and then there's, you know,

[00:24:31] Speaker 05:
a battle over the confirmation of that person.

[00:24:35] Speaker 02:
Right.

[00:24:35] Speaker 02:
So as Chief Justice Roberts says, if it's necessary to decide, it's necessary not to decide.

[00:24:42] Speaker 02:
If you agree with this more narrow argument that Congress sought to insulate the OMB director from the CFPB, and so the one person that the president should not have named to this position was the OMB director, to have someone occupy those two offices that Congress sought to separate.

[00:24:59] Speaker 02:
That would be the narrowest way to rule in our favor.

[00:25:02] Speaker 02:
It would not implicate these broader questions about the FVRA.

[00:25:06] Speaker 05:
So were the president to move in that direction and appoint someone else, would you still be back with the same argument, namely that anyone who serves at the president's will is what?

[00:25:23] Speaker 05:
an inappropriate nominee.

[00:25:26] Speaker 05:
I'm just trying to understand, it's not that the president exceeds his authority, but rather he's selected the wrong person.

[00:25:35] Speaker 02:
Right, the argument there would be, this is a slightly broader argument, would be that someone who serves at the pleasure of the president

[00:25:43] Speaker 02:
cannot be in this role of heading this independent agency because it contravenes the whole theory of Humphrey's executor that independence entails.

[00:25:54] Speaker 02:
To have that attitude of independence, you can't be serving at the pleasure of the person you're supposed to be independent from.

[00:26:00] Speaker 06:
Thank you.

[00:26:01] Speaker 06:
Don't go yet.

[00:26:02] Speaker 06:
So as to this last argument on just that it can't be the OMB director,

[00:26:08] Speaker 06:
How does Miss English have standing?

[00:26:10] Speaker 06:
Because that doesn't say that it's her rather than someone else.

[00:26:14] Speaker 06:
That bypasses that argument and would just say anybody in the world except Mr. Mulvaney.

[00:26:21] Speaker 02:
Oh, no, Miss English, she certainly has standing for the same reasons that she has standing, right.

[00:26:26] Speaker 02:
to bring the broader arguments, because someone who transgresses that more narrow understanding of independence has been named and displaced her.

[00:26:38] Speaker 02:
Now, that isn't to say that the president couldn't solve the problem by naming someone who would be an appropriate nominee, and in that... But the readership that you want isn't just...

[00:26:49] Speaker 06:
some sort of, you know, table thumping, you shouldn't have done that.

[00:26:53] Speaker 06:
Her redress would have to be that, and she gets her job back.

[00:26:57] Speaker 06:
And in your just not Mr. Mulvaney argument, that's not the end result of the court order in the way it would be under your...

[00:27:09] Speaker 02:
It would be your honor, but then it would be up to the president to decide how he wants to respond.

[00:27:14] Speaker 02:
And he has, of course, he still has the ability to name a Senate confirmed director.

[00:27:19] Speaker 02:
He would have the option to name someone who would be appropriate and wouldn't.

[00:27:24] Speaker 02:
transgress these principles of independence, but but miss English would receive she'd have standing and her Injury would be redressable because you would be issuing an order that would restore What we think is the status quo ante put her back in that position and then the president would have the option to decide what to do next So it would not be a Pyrrhic victory and I think it would be important She would get the job back for half a day or an hour or so until the president named somebody else

[00:27:50] Speaker 06:
Well, I can't predict what this president will do.

[00:27:54] Speaker 06:
But your theory is that there's going to be some period of time, just as a matter of the way things work, takes time for news to travel, that she would then be acting director?

[00:28:04] Speaker 02:
She would be acting director and the court would also be saying that, you know, she should have been the acting director.

[00:28:10] Speaker 06:
and that this design of agency independence means something, and that the President can... No, we wouldn't be saying all that in the just not Mr. Mulvaney, because we would be saying other people who are subject to at-will removal could be put in there.

[00:28:24] Speaker 06:
It's just not, as I understood your argument, it's just a statutory separate walling off of it.

[00:28:29] Speaker 02:
I want to be clear, there are sort of two versions of the argument.

[00:28:32] Speaker 02:
The narrowest, narrowest version, right, is that it cannot be the OMB director.

[00:28:37] Speaker 02:
The broader version of that argument is that it cannot be somebody who serves the president at his pleasure.

[00:28:44] Speaker 02:
to run this independent agency.

[00:28:47] Speaker 02:
And, you know, that's never been the case in independent financial regulators.

[00:28:51] Speaker 02:
They've always been named, they've always been headed by people who are independent of the president, and Congress took special turns here.

[00:28:57] Speaker 02:
Well, not true under this statute, right?

[00:28:58] Speaker 06:
If Mr. Cordray had continued, he would be at will.

[00:29:01] Speaker 06:
So it's just not true.

[00:29:02] Speaker 02:
It's always... I mean, I don't... Yeah, I mean, right.

[00:29:04] Speaker 02:
For the reasons we've discussed, I, you know, I don't... I'm just saying, if Mr. Cordray had stayed.

[00:29:09] Speaker 02:
Yes.

[00:29:09] Speaker 06:
Not what would happen to an acting director.

[00:29:11] Speaker 06:
But if Mr. Cordray had stayed, there's no question

[00:29:13] Speaker 06:
And our on-bank court noted this, that after July 12th or whatever the date is, he would serve at will until a replacement came in.

[00:29:23] Speaker 02:
After the expiration of the term, he could be replaced by the president, right?

[00:29:27] Speaker 06:
That will.

[00:29:28] Speaker 06:
And the other question I just had one more, and I'm sorry to delay you, but as long as you're talking about statutory construction on your Dodd-Frank trumps the Federal Vacancies Reform Act argument, you focused on the word shell.

[00:29:40] Speaker 06:
But what caught my attention is the phrase absence or unavailability.

[00:29:44] Speaker 06:
And I could not find any statute that was deemed to be a successor provision

[00:29:51] Speaker 06:
that did not have either the word vacancy or verbs that indicate permanent termination of the individual, the prior person who held the job.

[00:30:06] Speaker 06:
So either they all say either vacancy or a phrase like dies, resigns, terminated.

[00:30:14] Speaker 06:
And when someone dies, resigns, terminate, they're not coming back.

[00:30:18] Speaker 06:
without the word vacancy or anything that suggests any non-foreseeable

[00:30:25] Speaker 06:
that return is non-foreseeable, why is this even naturally read as a successorship provision?

[00:30:34] Speaker 06:
Because I just couldn't find any other statute.

[00:30:36] Speaker 02:
Right.

[00:30:36] Speaker 02:
Well, I mean, to go back to our discussion of this earlier, I mean, this is something that's common ground between the parties.

[00:30:42] Speaker 02:
The Office of Legal Counsel has interpreted the word, it's not the word absence, it's the word unavailability.

[00:30:49] Speaker 06:
And, you know, there are references in previous... I guess, with all due respect to OLC, I have to read statutes myself and do my own statutory construction, and even they admitted that, well, it's a bit dubious.

[00:31:04] Speaker 06:
It's not at all clear.

[00:31:06] Speaker 06:
They're not warmly embracing it.

[00:31:08] Speaker 06:
And quite frankly, in their briefing, they embrace it on one page and reject it on another, as you noted in your reply brief.

[00:31:13] Speaker 06:
So they're not, I don't think they're that dependent on this interpretation.

[00:31:18] Speaker 02:
Well, they want to have their cake and eat it, too.

[00:31:19] Speaker 02:
They want to be able to get some.

[00:31:21] Speaker 02:
OK, and I don't.

[00:31:21] Speaker 02:
I don't.

[00:31:22] Speaker 02:
So I just want to pursue this statute.

[00:31:24] Speaker 02:
Right.

[00:31:24] Speaker 06:
I've got no skin in this game other than to try to get this statute right.

[00:31:27] Speaker 06:
And so if we're trying to decide whether this

[00:31:32] Speaker 06:
This is a displacement of the Federal Vacancies Reform Act.

[00:31:38] Speaker 06:
That general thing out there, and Congress meant for this to govern vacancies.

[00:31:43] Speaker 06:
Can we do that when the word vacancy is not here?

[00:31:46] Speaker 06:
nor the equivalent terms of dies, resigns, terminated, permanent, non-return.

[00:31:55] Speaker 02:
I agree with the government that the word unavailable is best read as a catch-all.

[00:32:00] Speaker 02:
You have these references in the OLS opinions to the phrases like dies, resigns, or is otherwise unavailable.

[00:32:08] Speaker 02:
or what the FVRA says, dies, resigns, or is otherwise unable to serve, right?

[00:32:13] Speaker 02:
And so I think that is the best and most natural reading of that word.

[00:32:17] Speaker 02:
I honestly don't know why Congress chose that word as opposed to the more traditional formulations.

[00:32:22] Speaker 06:
But the legislative history does show us... Words are known by the company they keep.

[00:32:26] Speaker 06:
And I get that if you say dies, resigns, terminated, or otherwise unavailable, you're just trying to cover the basis for

[00:32:33] Speaker 06:
in whatever capacity, this person is not coming back.

[00:32:37] Speaker 06:
But here, when the only accompanying word, the only company the word unavailable has is the word absent, which everyone says, that doesn't mean a vacancy.

[00:32:45] Speaker 06:
Then it seems to me, again, to the extent we're trying to decide what Congress intended with respect to the Federal Vacancies Reform Act, you've got another textual speed of them.

[00:32:54] Speaker 02:
Well, absent, you know, unavailable has got to mean something other than absent, right?

[00:32:59] Speaker 02:
And so what independent work is that we're doing, unless it means what I'm saying it means, because in any situation where someone has not, you know, died or resigned, they're going to be absent, I think.

[00:33:11] Speaker 02:
I mean, those are the only two situations in which you would have someone acting come in, right?

[00:33:17] Speaker 02:
Unavailable would cover... I don't know.

[00:33:18] Speaker 06:
The Congress felt like they had to use the word vacancy in just about every other statute.

[00:33:22] Speaker 02:
Well, and I think it's also, I don't want to belabor this, but I think the legislative history is helpful in that, you know, Congress knew it was talking about vacancies and it had this very specific reference to the Vacancies Reform Act.

[00:33:34] Speaker 02:
It removed that reference and then put in this language.

[00:33:37] Speaker 02:
And so I think in light of that history, it's best understood as a vacancy provision.

[00:33:43] Speaker 05:
Thank you.

[00:33:46] Speaker 05:
Thank you.

[00:33:47] Speaker 05:
Council for Appellees.

[00:33:52] Speaker 04:
May it please the court.

[00:33:54] Speaker 04:
Congress would not have intended to displace the FVRA using the precise language it specified coexists with the FVRA.

[00:34:02] Speaker 04:
As counsel conceded again this morning, the FVRA coexists with the dozen or so agency-specific vacancy statutes using mandatory words like shall that were enacted pre-FVRA.

[00:34:16] Speaker 06:
Before we get to that,

[00:34:18] Speaker 06:
I was caught by something on page 47 in your brief, and you say, even assuming that separation of powers concerns do not categorically bar jurisdiction over claims like English's.

[00:34:31] Speaker 06:
And then you go on.

[00:34:33] Speaker 06:
Are you making a jurisdictional argument?

[00:34:37] Speaker 04:
I think that was about the scope of relief, if I recall correctly.

[00:34:41] Speaker 06:
Well, your phrase is, even assuming the separation of powers' concerns do not categorically bar jurisdiction over claims.

[00:34:48] Speaker 06:
Not relief.

[00:34:49] Speaker 04:
We're not making a jurisdictional objection beyond a concern about injunctions running against the President, Your Honor.

[00:34:57] Speaker 06:
Sorry to interrupt, but I had to make sure we didn't have a jurisdictional issue.

[00:35:02] Speaker 04:
So as counsel conceded this morning, the dozen or so statutes that use mandatory language that predate the FVRA coexist with the FVRA.

[00:35:12] Speaker 04:
So their entire argument turns on the question of timing.

[00:35:14] Speaker 04:
that when Dodd-Frank used the precise same language, it somehow displaced the FVRA simply because it post-dates the FVRA.

[00:35:22] Speaker 04:
And that's contrary to both the text of the FVRA, the text of the Dodd-Frank Act, and established canons of construction.

[00:35:29] Speaker 04:
So first starting with the text of the FVRA.

[00:35:31] Speaker 04:
The reason the FERA co-exists with the pre-existing statutes is because of the exclusivity provision and its exception, where it specifically says that the FERA is exclusive unless there are other agency-specific statutes that directly designate an officer to serve.

[00:35:48] Speaker 04:
That language is temporarily unqualified.

[00:35:53] Speaker 04:
It doesn't turn on when the other statute was passed, whether it was pre or post.

[00:35:57] Speaker 04:
So just on the face of the FBRA, Congress has already told us that if there's an agency-specific statute, even one that uses the word shall, even one that's mandatory, it coexists with the FBRA.

[00:36:09] Speaker 01:
And that language...

[00:36:12] Speaker 04:
And that language, by the way, the fact that it's temporarily unqualified is no accident.

[00:36:16] Speaker 04:
An earlier version of the draft bill actually did have a temporal limitation in it, and it was removed before Congress enacted the ultimate FVRA.

[00:36:25] Speaker 04:
Do you want to add a question?

[00:36:27] Speaker 06:
So I was, yeah, I was just going to ask is the same question I asked the other side, and that is do we need to get through any of this if we hold that

[00:36:35] Speaker 06:
Ms.

[00:36:36] Speaker 06:
English does not enjoy for cause removal protection, even assuming she is the acting director.

[00:36:43] Speaker 04:
Nope.

[00:36:44] Speaker 04:
We very much agree, Your Honor, that if you agree that she's removable at will as an acting, then you should treat the designation of Mr. Oleni as a constructive discharge.

[00:36:53] Speaker 04:
And we do think it is correct that she doesn't have at will removal.

[00:36:56] Speaker 04:
I guess I'll make a couple of points in addition to what was discussed earlier.

[00:37:01] Speaker 04:
First, of course, is there's the fact that the removal provision only specifies the director, not the acting director.

[00:37:06] Speaker 04:
But there's a pretty good textual indication that that is intentional.

[00:37:10] Speaker 04:
If you look at the holdover provision, the holdover provision references an individual serving as director.

[00:37:16] Speaker 04:
And the removal provision doesn't use that language.

[00:37:19] Speaker 04:
It doesn't use the language of an individual serving as director.

[00:37:22] Speaker 04:
If you contrast that to the language in the Social Security Act, the removal restriction in the Social Security Act covers an individual serving as the Social Security Commissioner.

[00:37:32] Speaker 04:
That too is a independent single-headed agency.

[00:37:36] Speaker 04:
So there we have a very good textual contrast that when Congress wants to give removal restrictions for an acting independent agency, they can do so, but they haven't done so here.

[00:37:45] Speaker 06:
And then other places in the statute when it talks about what the director will do.

[00:37:50] Speaker 06:
And there's no question that the acting director can do the things that the director will do.

[00:37:54] Speaker 06:
They don't use the phrase the director or someone serving as the director.

[00:37:59] Speaker 06:
So in all those cases, the director, all the other statutory provisions, the director,

[00:38:03] Speaker 06:
is, I would assume, naturally construed to wrap in the acting director.

[00:38:08] Speaker 04:
Sure, because those are the powers and duties of the director.

[00:38:11] Speaker 04:
And the whole point of the acting director is it says that the acting director can serve as the director and exercise their powers and duties.

[00:38:17] Speaker 04:
But this isn't a power or duty.

[00:38:19] Speaker 04:
This is a restriction, a protection of the director.

[00:38:22] Speaker 04:
And so the language of the deputy director provision doesn't pick up the removal restriction.

[00:38:27] Speaker 04:
And we know that Congress, when it wants to pick up a removal restriction for an acting director, it says so expressly.

[00:38:33] Speaker 04:
And then over and above that, there's the fact that in Swan v. Clinton, this court held that removal restrictions shouldn't be extended to holdovers.

[00:38:42] Speaker 04:
I think all the rationales that the court gave for that equally apply to acting directors, including the constitutional concerns.

[00:38:49] Speaker 04:
So I do think that would be a complete answer to this case, Your Honor.

[00:38:52] Speaker 04:
But going back to the actual question that's been briefed, over and above the actual text of the FURA, we then turn to the text of the Dodd-Frank Act.

[00:39:00] Speaker 04:
and the Dodd-Frank Act says all federal laws dealing with officers apply unless expressly provided otherwise and certainly nothing in the Dodd-Frank Act expressly provides otherwise because the only language that they've pointed to in the Dodd-Frank Act is the mere word shall and we know that shall by itself isn't enough to displace the FVRA because the FVRA says that and all the statutes that predate the FVRA they concede don't displace the FVRA.

[00:39:30] Speaker 06:
How forcefully you defend the view that absence or unavailability, in particular unavailability includes, is in fact meant to cover vacancies like this, successorship situations as opposed to this is how we just keep it running when the director

[00:39:48] Speaker 06:
isn't around or isn't able, for whatever reason, temporarily to act.

[00:39:53] Speaker 04:
Well, Your Honor, the question really isn't presented here.

[00:39:54] Speaker 04:
The issue isn't whether she is the Deputy Director.

[00:39:57] Speaker 04:
The question is whether, as Deputy Director, that displaces the FVRA.

[00:40:01] Speaker 04:
And for that purpose, the question that's actually presented here, I think the key is the point that Your Honor pointed out earlier, which is that

[00:40:08] Speaker 04:
At a minimum, it's not clear.

[00:40:09] Speaker 04:
And I think counsel himself can refer to it as ambiguous.

[00:40:12] Speaker 04:
And if it's ambiguous as to whether she's even the deputy director at all, then certainly it doesn't have the clarity necessary to displace the FVRA, particularly given the express statement requirement in the FVRA.

[00:40:23] Speaker 04:
So I don't think this court really needs to answer the question of whether, had there been no designation by the president, she could even serve as deputy director.

[00:40:30] Speaker 06:
No, no, I'm not asking that.

[00:40:30] Speaker 06:
I'm saying what absence are unavailable.

[00:40:32] Speaker 06:
Why is absence are unavailable?

[00:40:33] Speaker 06:
Absence are unavailable, focusing on the word unavailable.

[00:40:36] Speaker 06:
Why is that even construed to cover permanent vacancies by the director, as opposed to temporary ones?

[00:40:44] Speaker 06:
I guess I'm missing that point.

[00:40:47] Speaker 06:
As a senator of statute of construction, I could find no statute where Congress used just that formulation to talk about

[00:40:54] Speaker 06:
a successorship provision that was meant to, you know, when the person in the director role or the head role is not coming back.

[00:41:05] Speaker 04:
No, Your Honor, it's a reasonable point, and in a case where the question was whether she was the director and where we had actually fully briefed it, that would be the right case to address that.

[00:41:15] Speaker 04:
It just simply isn't presented here, because we're not disputing for present purposes that she is the deputy director, and all we're saying is that that's not enough to displace the FVRA.

[00:41:23] Speaker 04:
So I think that the questions about whether she is the deputy director are best addressed in the case where it's squarely presented and where it's been squarely briefed.

[00:41:34] Speaker 03:
The Homeland Security Act, doesn't that talk about unavailability and vacancy?

[00:41:41] Speaker 03:
Are you aware of that?

[00:41:42] Speaker 03:
6 U.S.

[00:41:44] Speaker 03:
Code 113G1.

[00:41:46] Speaker 03:
The undersecretary for management shall serve as the acting secretary if by reason of absence, disability, or vacancy in office, neither the secretary nor the deputy secretary is available to exercise the duties of the office of the secretary.

[00:42:00] Speaker 04:
Would that?

[00:42:01] Speaker 04:
So I think that language is absent.

[00:42:03] Speaker 04:
It says vacancy in there.

[00:42:06] Speaker 00:
Yeah.

[00:42:06] Speaker 04:
Right.

[00:42:06] Speaker 04:
So I'm not sure that's really responsive to the question Judge Millett was asking.

[00:42:11] Speaker 04:
So, as I said, the FDRA language doesn't displace.

[00:42:15] Speaker 04:
The Dodd-Frank Act language doesn't displace.

[00:42:18] Speaker 04:
The last point on satchel interpretation.

[00:42:20] Speaker 06:
I'm sorry, just back up on one thing.

[00:42:22] Speaker 06:
If the President had not named anyone, Mr. Mulvaney or anyone else, then do you, you do not dispute that she would not only be Deputy Director, but upon Mr. Cordray's resignation and until

[00:42:39] Speaker 06:
either a Senate-confirmed person comes through or we're back in this dispute, she would be acting director under the phrase, absences are unavailable.

[00:42:48] Speaker 04:
Yeah, we're not disputing that in this case.

[00:42:52] Speaker 04:
I think the textual points we made about both the FVRA and the Dodd-Frank Act are bolstered by established canons of interpretation.

[00:42:59] Speaker 05:
But I just ask so I'm clear, when you say you're not disputing that, are you also not disputing that she would have full college protection?

[00:43:07] Speaker 04:
Oh, we are disputing that.

[00:43:09] Speaker 04:
Yes.

[00:43:10] Speaker 04:
We are not disputing that, in this case, that she is the Deputy Director, and but for an FVRA designation, she would be the Acting Director, but we do disagree that Acting Directors have... Even within the same term.

[00:43:22] Speaker 04:
Even within the same term.

[00:43:23] Speaker 04:
We think all the, both the textual indications and the constitutional concerns that Swan discussed apply equally for holdovers and acting.

[00:43:31] Speaker 04:
If I turn to the canons of interpretation, which I think bolster our textual argument, there are two canons of interpretation that I think are quite relevant.

[00:43:39] Speaker 04:
One is that Congress legislates under the backdrop of existing law, and two is that statutes should be harmonized.

[00:43:45] Speaker 04:
In this case, as I said, the FVRA makes clear that agency-specific vacancy statutes, even when they use mandatory words like shall, coexist with the FVRA.

[00:43:55] Speaker 04:
And so there's simply no reason to read shall as displacing all that.

[00:43:59] Speaker 04:
You need to have greater language.

[00:44:01] Speaker 04:
They emphasize heavily the canon that specific controls the general.

[00:44:05] Speaker 04:
But as the court has made clear, both the Supreme Court and this court, that canon applies when the specific and the general are inconsistent.

[00:44:11] Speaker 04:
And you need to basically create an exception so that they can be harmonized.

[00:44:15] Speaker 04:
That's not necessary here.

[00:44:17] Speaker 04:
You don't say that the specific trumps the general when the general already says that it coexists with the specific.

[00:44:22] Speaker 04:
It just doesn't make sense.

[00:44:24] Speaker 04:
they're creating a conflict in the statutes when the statutes bond their own terms can be harmonized.

[00:44:30] Speaker 04:
I turn to some of their points about independence.

[00:44:33] Speaker 04:
As Your Honor pointed out, I think the holdover provision of the CFPB and the fact that there's no removal restriction, that by itself explodes their argument that Congress was trying to make the CFPB director maximally independent, but I think there's an even greater concession that shows that.

[00:44:48] Speaker 04:
They've conceded in their brief that if there was no deputy director,

[00:44:52] Speaker 04:
then in that circumstance the FVRA applies.

[00:44:56] Speaker 04:
So we know then that the President could pick someone and the President could pick someone who was within his control and who acted in his pleasure, and that would be perfectly permissible under the Dodd-Frank, even under their own interpretation.

[00:45:09] Speaker 04:
A couple other points about independence.

[00:45:12] Speaker 04:
The FVRA does say that it doesn't apply to certain independent agencies, multi-member ones.

[00:45:19] Speaker 04:
If Congress wanted to make sure that the Dodd-Frank Act wasn't subject to the FVRA because they wanted to keep it independent, they could have included the Dodd-Frank Act, the CFPB, within 3349C.

[00:45:31] Speaker 04:
They did not.

[00:45:32] Speaker 04:
And it's not like single-handed independent agencies were news to the Congress in 1998 when they passed the FVRA.

[00:45:39] Speaker 04:
Just in 1994, they had made the Social Security Administration an independent single-headed agency.

[00:45:43] Speaker 04:
The Office of Special Counsel had been an independent single-headed agency since 1978.

[00:45:49] Speaker 04:
Both of those agencies are subject to the FVRA, which I think further demonstrates that their concerns about independence are misguided.

[00:45:56] Speaker 04:
as is the FHFA.

[00:45:59] Speaker 04:
Even the FHFA, it's true that the president has to pick within the three deputy directors, but it's still the case that he gets to pick who's one of the three deputy directors, and then whoever he picks serves at his pleasure as acting director.

[00:46:12] Speaker 04:
And so all the pressures and desires to comply with his wishes, if they want to stay being done.

[00:46:17] Speaker 03:
Why don't we have more examples of Congress displacing the president's authority over the vacancy act?

[00:46:23] Speaker 03:
You just cited one, the FHFA.

[00:46:25] Speaker 03:
Are there others?

[00:46:27] Speaker 04:
Well, just to clarify, I wasn't saying that the FHFA displaces.

[00:46:31] Speaker 04:
I was just saying that even on the plain terms of the FHFA, even on their view of the statute, the president gets to pick among the three deputy directors.

[00:46:39] Speaker 03:
Well, if your argument is that Dodd-Frank isn't expressed enough to displace, you agree that Congress could displace the presidents?

[00:46:48] Speaker 04:
Of course, and there are lots of ways that Congress could have done it.

[00:46:51] Speaker 04:
But they haven't.

[00:46:54] Speaker 04:
Not to my knowledge have they just categorically said,

[00:46:58] Speaker 04:
except other than the agencies that are listed in the express exception right there are 3349 see the multi-member independent agencies and for again the service transportation board and article one judges all of those are expressly exempted but setting aside those I am not aware of a situation where Congress is wholly displaced the FBI.

[00:47:19] Speaker 04:
As to why, I suppose it's because they think the FRA is a good statute.

[00:47:23] Speaker 03:
Well, I'm just kidding.

[00:47:26] Speaker 03:
People always make the argument, Congress had the ability, they knew how to do this expressly, that the fact that they didn't is significant here.

[00:47:33] Speaker 03:
But doesn't that suggest that maybe the way that they did it was through the use of the word shall here?

[00:47:40] Speaker 02:
Well, I don't think so, Your Honor.

[00:47:41] Speaker 03:
And what they were signaling here is that

[00:47:43] Speaker 03:
This agency is a different sort of agency.

[00:47:46] Speaker 03:
We want to preserve independence here.

[00:47:49] Speaker 03:
And so the way that we're going to do it is we're going to, the deputy director is going to become the acting director and the president is cut out of the picture.

[00:47:58] Speaker 04:
Well, so that would be a passing strange way to do it because the FBI itself says that such statutes coexist with the FBI.

[00:48:05] Speaker 04:
They don't displace it.

[00:48:06] Speaker 04:
If they actually wanted to displace the FRA, there are multiple ways they could have done it.

[00:48:09] Speaker 04:
We're not urging a magic words test, like they suggest.

[00:48:13] Speaker 04:
As I said, they could have put the CFPB in the exceptions to the FRA in 3349C.

[00:48:19] Speaker 04:
They could have said that the acting director shall be the exclusive, the deputy director shall be the exclusive acting director.

[00:48:25] Speaker 04:
paralleling 3347.

[00:48:26] Speaker 06:
Wait, Congress doesn't speak like that.

[00:48:28] Speaker 06:
When has Congress ever said she'll be the exclusive successor?

[00:48:32] Speaker 06:
Do you have any statutes that ever use the phrase the exclusive successor?

[00:48:36] Speaker 04:
FVRA Section 3347 itself says that the FVRA is the exclusive method.

[00:48:41] Speaker 04:
No, no, no.

[00:48:42] Speaker 06:
You just said you wanted the statute to say so-and-so shall be the exclusive successor, the exclusive

[00:48:49] Speaker 06:
acting director.

[00:48:50] Speaker 06:
I've never seen anything like that.

[00:48:53] Speaker 04:
It's true that I'm not sure that there is a statute that says something like that.

[00:48:56] Speaker 06:
Maybe the way you would say it is this person shall be it.

[00:49:00] Speaker 04:
If they had said only or if they said exclusively or if they said something like that, sure.

[00:49:06] Speaker 06:
This person shall be it?

[00:49:07] Speaker 06:
Why isn't that enough?

[00:49:09] Speaker 04:
Because the FBRA itself says that saying shall isn't enough.

[00:49:13] Speaker 04:
If you focus on 3347A1B, I believe, is the language in the exclusivity provision that says if there's an agency-specific statute that directly designates an individual to act,

[00:49:26] Speaker 04:
That renders the FARA not inapplicable.

[00:49:29] Speaker 04:
It renders it non-exclusive.

[00:49:30] Speaker 04:
And they concede that there's more than a dozen statutes that... Well, that might be a statute that says so-and-so will.

[00:49:37] Speaker 04:
No, there are statutes that say shall.

[00:49:39] Speaker 04:
We've cited them in our brief.

[00:49:40] Speaker 06:
Well, the past ones, right?

[00:49:41] Speaker 04:
Huh?

[00:49:41] Speaker 06:
Yeah.

[00:49:41] Speaker 06:
We're talking about past ones.

[00:49:42] Speaker 04:
Past ones plus two subsequent ones, both the statutes that govern the Office of Director of National Intelligence and the Central Intelligence Agency are both post-FVRA statutes that use the word shall.

[00:49:53] Speaker 04:
And at least for the ODNI, it has not been treated as exclusive.

[00:49:58] Speaker 04:
At the start of this administration, when there was neither a director nor a principal deputy, another deputy director served for three months as the acting director.

[00:50:08] Speaker 04:
On their view, that should be illegal, except

[00:50:11] Speaker 04:
In their reply brief, they try to suggest, oh, no, Xiao means Xiao unless there is no deputy director.

[00:50:18] Speaker 04:
But that, I think, just further underscores why their entire interpretation is atextual.

[00:50:22] Speaker 04:
If Xiao means Xiao, it means Xiao.

[00:50:24] Speaker 04:
It means that if there is no deputy director, there should be no one serving.

[00:50:28] Speaker 04:
They just want to create an exception that says Xiao means Xiao unless.

[00:50:31] Speaker 04:
Well, if Xiao can mean Xiao unless there's no deputy director, it can also mean Xiao, Xiao means Xiao unless the president invokes the FARA.

[00:50:39] Speaker 04:
That actually makes much more sense because, again, the FVRA says it.

[00:50:43] Speaker 04:
The FVRA says that agency-specific statutes shall coexist, and because the Dodd-Frank Act says all federal laws dealing with officers shall apply unless expressly provided on the law.

[00:50:54] Speaker 05:
So on your coexistence argument, is there any limitation then on who the president may appoint, given that you have acknowledged

[00:51:07] Speaker 05:
Dodd-Frank setting up an independent director.

[00:51:11] Speaker 04:
So a couple things, Your Honor.

[00:51:13] Speaker 04:
The first is, I think there's at least a possibility that he couldn't appoint someone who would be, who could not serve as the director themselves.

[00:51:22] Speaker 04:
So the Dodd-Frank Act specifically specifies certain people and certain job relationships that exclude you from being the director.

[00:51:29] Speaker 04:
To be sure, that language doesn't specify whether it extends to the acting director, and so I think that would be a question.

[00:51:34] Speaker 06:
Well, it does say deputy director, so I don't see how you could possibly read that.

[00:51:38] Speaker 04:
Right, but I think Judge Rogers' question is if it was through the FVRA, so they wouldn't necessarily have to be the deputy director either, if it was a presidential designation, but at least possibly that language would be, but again, if I could just bracket, that language further shows why they're wrong, because Congress specified, Congress thought about who shouldn't serve as the director, and Congress didn't say anyone who's serving in OMB, Congress didn't say anyone who's accountable to the president, Congress specified a couple of relationships

[00:52:05] Speaker 05:
So in your view you are asking for magic words in that regard because the argument on the other side is Congress did say very expressly that the director was to serve and perform his duties or her duties independent

[00:52:23] Speaker 05:
of OMB, and I'm suggesting that means the director as well.

[00:52:29] Speaker 04:
Well, so I don't think that's quite right, Your Honor, for a couple reasons.

[00:52:32] Speaker 04:
The first is the Dodd-Frank Act doesn't say that it doesn't hermetically seal the CFPB from OMB.

[00:52:39] Speaker 04:
It doesn't say that there can't be consultation.

[00:52:42] Speaker 04:
All it says is

[00:52:43] Speaker 04:
The CFPB is required to provide financial reports to OMB, but that doesn't require the CFPB to consult or get the approval of OMB.

[00:52:56] Speaker 04:
It's perfectly permissible for the CFPB to do so.

[00:53:00] Speaker 04:
And again, they concede that if there were, I'm sorry, you had a question.

[00:53:07] Speaker 04:
The other point I just wanted to make about the OMB issue is, if they're wrong about the threshold point that the FVRA applies, anyone who the president picks under the FVRA is going to be accountable then, because the president can always change the designation.

[00:53:21] Speaker 05:
Well, I understand that argument, but as you know, I mean, it's been suggested to us, there are a number of other people who the president could appoint.

[00:53:31] Speaker 05:
The question is, if

[00:53:34] Speaker 05:
you read Dodd-Frank to say that the director is to have the power to function independently of whatever policies and preferences that OMB may have, then does it follow that necessarily, if you're going to have the statutes harmonized, the president cannot appoint the director of OMB.

[00:54:02] Speaker 05:
He may appoint

[00:54:04] Speaker 05:
various other officials who served at his pleasure during this

[00:54:09] Speaker 05:
interim period, but not the director of OMB.

[00:54:12] Speaker 04:
Okay, so I don't think so, Your Honor, because again, the word independent isn't tied to that OMB provision, right?

[00:54:18] Speaker 04:
The word independent is at the front end saying that it's an independent establishment.

[00:54:22] Speaker 04:
So anyone who he picks, literally anyone under the FVRA is not going to be independent in that sense, and most of the people he could pick under the FVRA would be presidential PAS appointees who he could remove from their original position at will, just like the OMB director.

[00:54:35] Speaker 05:
I'm trying to get you to focus.

[00:54:37] Speaker 05:
I hear you.

[00:54:37] Speaker 04:
Right.

[00:54:38] Speaker 04:
So on the OMB provision specifically, again, all I would just say on that is I think they're over-reading that provision drastically.

[00:54:46] Speaker 04:
It would be perfectly permissible for a Senate-confirmed CFPB director to run everything they do by the OMB director, to not make a single move unless the OMB director blesses it.

[00:54:57] Speaker 04:
All the statute says is that they're not required to do so, and they can't take that, that shall not be construed and use that as somehow implicitly qualifying the President's designation powers under the FVRA.

[00:55:10] Speaker 04:
If shall isn't enough to expressly displace the FVRA, certainly that very strained negative inference isn't enough to displace the FVRA.

[00:55:19] Speaker 06:
Except the end result of appointing Mr. Mulvaney is that everything the CFPB director decides is

[00:55:29] Speaker 06:
going to be approved by the OMB director or it won't happen.

[00:55:33] Speaker 06:
He's wearing two hats at the same time.

[00:55:36] Speaker 06:
It seems to me a much, on straining things, it seems much to strain to suggest that Mr. Mulvenny would wake up and say, I wish to do this as CFPB director.

[00:55:47] Speaker 06:
Of course, as OMB director, I think that's a terrible, horrible thing to do.

[00:55:51] Speaker 06:
But I'm going to go ahead and do it.

[00:55:53] Speaker 06:
And then after lunch, I'll go back over to the OMB.

[00:55:56] Speaker 06:
Look, I don't disagree with that, Your Honor, but, again, if the President... Well, isn't it the point, then, that this thing that just said you're giving too little weight to the fact that when it says you don't need the OMB's permission to do these things, doesn't mean you couldn't get it if you want to.

[00:56:12] Speaker 06:
But I think you're giving too little weight to the notion that this appointment then turns that you don't need your permission to nothing's going to happen without that permission.

[00:56:21] Speaker 06:
We all know how this is going to work.

[00:56:23] Speaker 04:
We might all know that, Your Honor, but if the President picks someone other than the OMB Director and said, I want you to consult with the OMB, I think there's a pretty high likelihood they would do so.

[00:56:33] Speaker 04:
So I'm not sure that there's any difference between picking the OMB Director and picking someone.

[00:56:37] Speaker 06:
No, if the President said, I'm putting you in there, and don't do anything that the OMB Director wouldn't do if he were in your position,

[00:56:48] Speaker 06:
That would be contradicting the statute, correct?

[00:56:51] Speaker 06:
That would violate the plain text of the statute.

[00:56:54] Speaker 04:
I don't think so, Your Honors.

[00:56:55] Speaker 06:
The President is allowed to make his designations on the FVRA and completely ignore other parts of the statute as well, such as saying, if the President said, and don't do a budget unless the OMB approves.

[00:57:08] Speaker 06:
If the president said that to the new replacement, the temporary replacement person, you're saying that would be perfectly fine.

[00:57:15] Speaker 04:
Was that provision in the statutes governing a permanent director who has four-cause removal?

[00:57:22] Speaker 04:
Use the Holdover example, Your Honor, where everyone concedes they're removable at will.

[00:57:26] Speaker 06:
You said that, look, when it comes to the powers and duties of the director,

[00:57:31] Speaker 06:
then whoever is serving as acting director can do that.

[00:57:33] Speaker 06:
They may not get the protections of forecast removal, but when it comes to the jobs and duties, they are the same.

[00:57:40] Speaker 06:
And so an acting director has no more obligation to get O-1B approval of a budget.

[00:57:46] Speaker 04:
And the director would have he doesn't have an obligation to but the president can certainly remove him for doing it as again they can see if there was a holdover or if there was no deputy director and so there's conceivably no remove for cause removal.

[00:58:01] Speaker 04:
The president can say, you have not exercised your powers in the way I wish you to, and you're being removed.

[00:58:07] Speaker 04:
That's not inconsistent with the language that the CFP director can't be required to do that, because normally when the CFP director is serving during their term, they have four clause removal.

[00:58:17] Speaker 04:
But once the four clause removal is gone, as Your Honor pointed out for holdovers, and is also the case for actings,

[00:58:23] Speaker 04:
then that just can't be the case.

[00:58:24] Speaker 04:
The president isn't somehow constrained in exercising his removal power in that circumstance, but even if... None of this is sufficient to displace the FVRA, especially given the Dodd-Frank Act itself says that all federal laws dealing with officers apply unless expressly providing otherwise.

[00:58:42] Speaker 06:
And just these... No, it's just troubling to hear you saying that the president's

[00:58:51] Speaker 06:
at will removal power for what Congress has said should be a Senate confirmed position includes the power to tell the acting person to do nothing or do all the things the statute says you cannot, should not do and cannot do or need not do.

[00:59:09] Speaker 06:
That seems to me a bit more than just saying, I have at-will removal.

[00:59:14] Speaker 06:
Because the theory of it is, yes, you have at-will removal, but if you're removing everybody every day because they're actually trying to do the job they've been appointed to, it's going to become non-functional.

[00:59:26] Speaker 06:
No one's going to take the appointment.

[00:59:28] Speaker 04:
It would be one thing if they're actually prohibited

[00:59:32] Speaker 04:
the CFP director from consulting with the OMB director.

[00:59:35] Speaker 04:
And then the president said, I'm ordering you to violate the statute.

[00:59:37] Speaker 04:
But the statute doesn't say that you're prohibited.

[00:59:40] Speaker 04:
It just said you're not required to.

[00:59:42] Speaker 04:
And that makes perfect sense when you have four clause removal.

[00:59:44] Speaker 04:
Right.

[00:59:44] Speaker 06:
So you would agree then that in appointing someone, the president shouldn't say you're appointed on the condition that you do something the statute forbids.

[00:59:55] Speaker 04:
I would probably not be a prudent exercise of the President's appointment authority to precondition.

[01:00:01] Speaker 05:
You wouldn't phrase it that way.

[01:00:02] Speaker 05:
You'd come around the other way.

[01:00:04] Speaker 05:
I mean, you're not concerned with the proposition that the agency basically couldn't function.

[01:00:10] Speaker 04:
Again, I think we are slightly overemphasized.

[01:00:15] Speaker 04:
The basic part of the OMB provision is a requirement on the CFPB.

[01:00:19] Speaker 04:
It's a requirement that they provide OMB with materials.

[01:00:22] Speaker 04:
The provision that they're hanging their hat on is a rule of construction that says that requirement to provide information shall not be construed to require approval.

[01:00:33] Speaker 04:
That cannot be enough to displace the FVRA.

[01:00:36] Speaker 06:
It's if that I'd given that show I think I just make a narrow point not just displacement of the FBI wholesale but simply that reading the statutes together even under your approach there at least seems to arise an argument as they presented arises out of the Dodd-Frank Act that

[01:00:56] Speaker 06:
Your universe is narrower, is a tad narrower here in the FERA.

[01:01:01] Speaker 06:
You can't do OMB Director and you can't do a Federal Reserve Bank and the things that are listed in the service restrictions.

[01:01:08] Speaker 04:
I guess I'd still say the same thing though, right?

[01:01:10] Speaker 04:
It's not clear enough to displace the FERA in a whole or in part.

[01:01:14] Speaker 04:
The Dodd-Frank Act expressly says that all federal laws dealing with officers, all federal laws, and that includes all applications of federal laws,

[01:01:22] Speaker 04:
unless expressly provided otherwise, and it simply doesn't expressly provide otherwise.

[01:01:27] Speaker 04:
If Congress had wanted to say that the OMB director cannot serve as the director or acting director of the agency, then they could have specified that, they could have added that.

[01:01:37] Speaker 06:
Right, so that's what, because I was concerned, what caused this was, I was concerned about what I thought you were saying to Judge Rogers, and that is that the President could even appoint someone who, whom Congress has said may not

[01:01:48] Speaker 04:
So I think that would be a tough question, Your Honor, and we haven't taken a position on it, but I guess one other point I can make.

[01:01:58] Speaker 06:
But you're not willing to concede that the FVRA, your view is it's an open question whether the FVRA takes over, displaces, not just.

[01:02:08] Speaker 06:
the deputy director position, but also limitations on who can serve as the head of this agency.

[01:02:13] Speaker 04:
Yeah, I think it's a tough question, and the reason we haven't taken a position on it is because the language does say director, not individual serving as director.

[01:02:20] Speaker 06:
Well, it doesn't sound like not a position.

[01:02:21] Speaker 06:
That sounds like you're construing it as not upon.

[01:02:23] Speaker 04:
Well, I just specified the argument on one side.

[01:02:25] Speaker 04:
The argument on the other side is, I think, the premise of your question.

[01:02:29] Speaker 04:
But if I could say one other thing about the OMB director, I think it's undisputed that the president could have nominated the OMB director and the Senate could have confirmed the OMB director, right?

[01:02:39] Speaker 06:
Sure, but then you wouldn't have the problem because you wouldn't be where to.

[01:02:41] Speaker 06:
Oh, there wouldn't.

[01:02:42] Speaker 06:
Oh, I'm sorry.

[01:02:43] Speaker 04:
Their argument, right, is that the statute forecloses this somehow.

[01:02:46] Speaker 04:
So under their theory, the president should not be able to even nominate Mick Mulvaney to serve as OMB director, even if the Senate confirms them.

[01:02:53] Speaker 04:
So you went CFPB director while you were to have two positions because there's no there's no restriction on dual service unlike other statutes that do restrict dual service I think that's perhaps the best way of showing why they they're reading too much into the OMB point.

[01:03:07] Speaker 05:
Anything further?

[01:03:08] Speaker 04:
No.

[01:03:08] Speaker 05:
Thank you your honor.

[01:03:09] Speaker 05:
Thank you.

[01:03:11] Speaker 05:
Council for Appellate.

[01:03:15] Speaker 02:
Thank you.

[01:03:15] Speaker 02:
I'd like to start with the OMB issue that my colleague left off on.

[01:03:20] Speaker 02:
So it is true that the statute does not expressly say the OMB director may not be the director or the acting director, in so many words.

[01:03:31] Speaker 02:
But Mr. Mulvaney, simply by being there, is necessarily violating these provisions with respect to the OMB director.

[01:03:39] Speaker 02:
His very presence does so.

[01:03:40] Speaker 02:
And I think my colleague didn't focus on the right language in this OMB provision, that that provision is 12 USC 5497A4E.

[01:03:50] Speaker 02:
The language at the end of that provision makes very clear, the director of OMB, the statute may not be construed

[01:03:58] Speaker 02:
to confer any jurisdiction or oversight over the affairs or operations of the Bureau.

[01:04:06] Speaker 02:
I don't see how Mr. Mulvaney can be in the Bureau and not be violating that provision every day that he's there.

[01:04:13] Speaker 02:
And in his congressional testimony yesterday, Mr. Mulvaney admitted that he performs Bureau business at the OMB offices and vice versa.

[01:04:22] Speaker 02:
And so this is a structural, it's a specific provision

[01:04:27] Speaker 02:
intended to facilitate the overall structural design of the CFPB's independence, but it makes it very clear.

[01:04:33] Speaker 06:
So you would disagree with his proposition that the President could nominate Mr. Mulvaney to have two jobs?

[01:04:40] Speaker 06:
He could nominate

[01:04:43] Speaker 02:
Mr. Mulvaney to be the CFPB director, but then he would have to choose which job because this statute makes it very clear that the OMB cannot have jurisdiction or oversight.

[01:04:53] Speaker 02:
Those are Congress's words over this bureau.

[01:04:56] Speaker 02:
And so this is, that's why I said earlier, this is the one person that Congress made it very clear cannot be in this position in this bureau.

[01:05:04] Speaker 02:
I think my colleague's argument also brought out how extreme the government's position is, that it amounts really to a magic words kind of theory, that Congress cannot displace the FVRA in their words unless Congress explicitly refers to the FVRA and says we are overriding the FVRA.

[01:05:26] Speaker 02:
The Supreme Court has been very clear that one Congress cannot bind a future Congress.

[01:05:31] Speaker 02:
Justice Scalia mentions this in his treatise and in his opinion in the Lockhart decision.

[01:05:37] Speaker 02:
And so that is effectively what they're saying, even with respect to these single-director independent agencies that Congress created in the wake of the FVRA, where it's quite clear they used mandatory language and it's quite clear that they intended these agencies to be independent of presidential control.

[01:05:54] Speaker 02:
But on their view, these agencies would be less independent than the multi-member commissions that preceded them, like the FTC, where the Senate, the President cannot name a successor to run those agencies, an agency head, without Senate confirmation.

[01:06:10] Speaker 02:
Finally, or two more points.

[01:06:13] Speaker 02:
Judge Millett, you asked my colleague about the word unavailable.

[01:06:16] Speaker 02:
And I think it's telling that the reason I said earlier that the government wants to have it both ways, they want to be able to read this word unavailable, as we do, to allow it to cover a vacancy.

[01:06:34] Speaker 02:
But they want to have the ability to have Mr. Mulvaney, for example, install a deputy director who then becomes the acting director and remains there and is controlled by the president.

[01:06:46] Speaker 02:
And so I think the court should be wary of that and however it writes its opinion to ensure that the statutory design isn't turned on its head and that we don't have someone who serves at the pleasure of the president serving indefinitely.

[01:07:02] Speaker 02:
And finally, I would just say purpose I think has a role here.

[01:07:06] Speaker 02:
And what this court is tasked with doing here is interpreting two statutes.

[01:07:12] Speaker 02:
The Federal Vacancies Reform Act that had a purpose of limiting

[01:07:16] Speaker 02:
the president's role and safeguarding the prerogatives of the Senate.

[01:07:21] Speaker 02:
and the Dodd-Frank Act, which had an overarching purpose in creating this agency of structuring an agency that's independent of presidential control.

[01:07:30] Speaker 02:
And in the feet of legal alchemy, they have managed to read both statutes together to maximize presidential control and indeed to allow the president to take over this agency in a way that would not be possible for any of the other independent financial regulators.

[01:07:47] Speaker 05:
Thank you.

[01:07:47] Speaker 05:
We'll take the case under advisement.