On July 31, I published a blog post in which I suggested that, if Director Cordray resigns, Treasury Secretary Mnuchin would be the obvious and logical person to serve as CFPB Acting Director until President Trump nominates, and the Senate confirms, Director Cordray’s successor. I stated that the President clearly has the authority to appoint an Acting Director under the Federal Vacancies Reform Act of 1998 (the “Vacancies Act”).
One of our blog readers sent me a message asking why David Silberman, the current Acting Deputy Director, would not automatically become Acting Director under Section 1011(b)(5)(B) of Dodd-Frank. That provision states that the Deputy Director shall “serve as acting Director in the absence or unavailability of the Director.” It is my view that this language does not cover a situation where the existing Director resigns and permanently leaves the agency, thereby creating a vacancy in the office. My opinion remains the same even if Director Cordray eliminated “Acting” before “Deputy Director” in Mr. Silberman’s title.
I reached my conclusion based on the absence of any express reference to a “vacancy” in Section 1011(b)(5)(B) of Dodd-Frank. This stands in contrast to numerous federal statutes in which Congress has expressly provided for the temporary filling of a vacancy in a position requiring Senate confirmation. For example, Congress has expressly provided that when the offices of OMB Director, FAA Administrator, or Administrator of the SBA are “vacant” or have a “vacancy,” the Deputy Director or Administrator acts as Director or Administrator.
These statutes indicate that when Congress has wanted to give an officer holding a Deputy position the authority to run an agency in an acting capacity when the position of agency head became vacant, it has done so expressly. Thus, the absence of any express language giving the CFPB Deputy Director authority to serve as Acting Director when there is a “vacancy” in the office of CFPB Director or when such office is “vacant” indicates that Congress did not intend to give the CFPB’s Deputy Director authority to automatically serve as Acting Director in that circumstance.
Furthermore, the Vacancies Act expressly covers the precise situation here – namely, a vacancy at an Executive Agency created by a resignation. Two established rules of statutory construction are instructive. First, when two federal statutes are arguably in conflict with one another, the more specific statute trumps (no pun intended) the more general statute. See, e.g., Coady v. Vaughn, 251 F.3d 480, 484 (3d Cir. 2001) (“It is a well-established canon of statutory construction that when two statutes cover the same situation, the more specific statute takes precedence over the more general one. See Edmond v. United States, 520 U.S. 651, 657, 117 S.Ct. 1573, 137 L.Ed.2d 917 (1997) (‘Ordinarily, where a specific provision conflicts with a general one, the specific governs.’); Preiser v. Rodriquez, 411 U.S. 475, 488–89, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) (holding that prisoner challenging validity of his confinement on federal constitutional grounds must rely on federal habeas corpus statute, which Congress specifically designed for that purpose, rather than broad language of Section 1983); West v. Keve, 721 F.2d 91, 96 (3d Cir.1983). The rationale for this canon is that a general provision should not be applied ‘when doing so would undermine limitations created by a more specific provision.’ Varity v. Howe, 516 U.S. 489, 511, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996).”). Second, when two federal statutes are arguable in conflict with one another, they should be harmonized with one another to the extent possible. See, e.g., Shanty Town Associates, Ltd. Partnership v. E.P.A., 843 F.2d 782, 793 (4th Cir. 1988) (“[O]ur first obligation, when presented with a possible conflict between two federal statutes, is always to attempt to harmonize them. See Morton v. Mancari, 417 U.S. 535, 551, 94 S.Ct. 2474, 2483, 41 L.Ed.2d 290 (1974) (“The courts are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.”).
I believe that Section 1011(b)(5)(B) of Dodd-Frank is intended to cover a situation in which the Director is still in office but unable to function as CFPB leader. An example would be where the current Director is temporarily disabled. As stated above, the Vacancies Act is intended to cover a temporary vacancy in the position of Director of the CFPB resulting from the resignation of the Director.
A reporter asked me recently how Secretary Mnuchin could possibly have the time to manage the CFPB on top of his main job of being Treasury Secretary. Fortunately, Section 1012(b) of Dodd-Frank states: “The Director of the Bureau may delegate to any duly authorized employee, representative, or agent any power vested in the Bureau by law.”