According to widespread media reports, Director Cordray informed CFPB staff members today that he expects to resign as CFPB Director by the end of this month. His replacement with a successor appointed by President Trump will undoubtedly have a significant impact on the agency’s priorities and initiatives. On December 5, 2017, from 12 p.m. to 1 p.m. ET, Ballard attorneys will hold a webinar: “Richard Cordray Resigns: What’s Next for the CFPB?” Click here to register.
Director Cordray is reported to have told CFPB staff that “it has been a joy of my life to have the opportunity to serve our country as the first director of the Consumer Bureau by working alongside all of you here. Together we have made a real and lasting difference that has improved people’s lives.”
The immediate question raised by Director Corday’s announcement is who will serve as Acting Director pending the appointment and confirmation of a successor. David Silberman currently serves as Acting Deputy Director. The Dodd-Frank Act provides that the Deputy Director shall “serve as acting Director in the absence or unavailability of the Director.”
This provision raises two questions. First, since Mr. Silberman is Acting Deputy Director, it is unclear whether he is eligible to serve as Acting Director under this provision. (Director Cordray could seek to remove this issue by appointing Mr. Silberman the Deputy Director before he leaves the CFPB.)
Second, there is uncertainty as to whether the phrase “absence or unavailability of the Director” covers the present situation (i.e., a vacancy created by the existing Director’s resignation and permanent departure from the agency). As a result, the White House could take the position that because Dodd-Frank does not specify who should serve as Acting Director upon the Director’s resignation, the Federal Vacancies Reform Act of 1998 permits President Trump to appoint as Acting Director either a senior employee of the CFPB or an officer of an agency who has already been approved by the Senate. In that circumstance, Treasury Secretary Mnuchin would seem to be the likely choice to serve as Acting Director until Director Cordray’s successor is appointed and confirmed.
According to Politico, the White House has released a written statement indicating that President Trump plans to appoint an Acting Director. However, the statement did not indicate the basis for the White House’s position. Should President Trump appoint an Acting Director, that appointment might face a challenge from supporters of Mr. Silberman.