Mick Mulvaney’s appointment by President Trump as CFPB Acting Director became effective on November 25, 2017 upon Richard Cordray’s resignation (which became effective at midnight on November 24). Accordingly, as of March 1, Mr. Mulvaney will have served as Acting Director for 96 days. President Trump has not yet announced his nominee for CFPB Director, thus giving rise to questions about how long Mr. Mulvaney can continue to serve as Acting Director.
In the lawsuit filed by Leandra English challenging Mr. Mulvaney’s appointment, President Trump has relied on Section 3345(a)(2) of the Federal Vacancies Reform Act (FVRA) as the source of his authority to appoint Mr. Mulvaney. Section 3345(a)(2) provides that an acting officer appointed by the President under that provision serves “subject to the time limitations of section 3346.”
Under Section 3346(a), such acting officer can serve “for no longer than 210 days beginning on the date the vacancy occurs,” or, “subject to subsection (b), once a first or second nomination for the office is submitted to the Senate, from the date of such nomination for the period that the nomination is pending in the Senate.” Section 3346(b) provides that if the President’s first nomination is rejected, withdrawn, or returned by the Senate, the acting officer can continue to serve for no more than 210 days after the date of the rejection, withdrawal or return. If a second nomination is made, the acting officer can continue to serve until the second nomination is confirmed or for no more than 210 days after the second nomination is rejected, withdrawn, or returned. (If the last day of any 210-day period is a day on which the Senate is not in session, the second day the Senate is next in session and receiving nominations is deemed the last day of such period.)
The 210-day period established by Section 3346(a) will expire for Mr. Mulvaney on or about June 22. As a result, assuming President Trump makes a nomination for CFPB Director before June 22, Mr. Mulvaney can continue to serve as Acting Director until the nominee is confirmed by the Senate.
If that nomination is rejected, withdrawn, or returned by the Senate, Mr. Mulvaney can continue to serve for another 210 days and assuming the President makes a second nomination within that 210-day period, Mr. Mulvaney can continue to serve until the second nominee is confirmed or for no more than 210 days after the second nomination is rejected, withdrawn, or returned.
Given the above, Mr. Mulvaney’s service as Acting Director could potentially continue into 2019. However, regardless of how long Mr. Mulvaney serves as Acting Director, there is nothing in the FVRA or the Dodd-Frank Act that would shorten the 5-year term of the new CFPB Director who is eventually confirmed.
Of course, the “wildcard” for Mr. Mulvaney’s tenure as Acting Director is Ms. English’s lawsuit. Should the D.C. Circuit reverse the district court and grant the preliminary injunction she is seeking before President Trump has nominated a new Director, a nomination is likely to soon follow. There is no assurance, however, that President Trump’s nominee will be confirmed quickly even though Republicans have a slim, 51-49 margin in the Senate. It has taken several months for the President’s nominees to other positions to be confirmed.