A high-stakes procedural battle is unfolding in the en banc U.S. Court of Appeals for the District of Columbia Circuit that could determine the near-term fate of the Consumer Financial Protection Bureau (“CFPB”).

In a newly filed response, the National Treasury Employees Union (“NTEU”) and other plaintiffs are pushing back forcefully against efforts by Acting CFPB Director Russell Vought and the government to modify an existing preliminary injunction that has, to date, prevented large-scale layoffs at the agency.

The filing tees up a critical question: whether the government can move forward—now—with a sweeping reduction in force (“RIF”) based on a newly unveiled “streamlining” plan, or whether it must first return to the District Court and satisfy traditional standards for modifying an injunction.

Background: Alleged Effort to Shut Down the CFPB

The litigation stems from actions taken shortly after Vought became Acting Director. According to the District Court’s findings—repeated prominently in the plaintiffs’ brief—the government pursued a plan that would have effectively dismantled the CFPB within weeks, including:

• Terminating probationary and term-limited employees
• Planning a large-scale RIF affecting the vast majority of staff
• Taking steps that, absent judicial intervention, would have “wiped out” the agency in approximately 30 days

The District Court issued a preliminary injunction to preserve the status quo, concluding that the government had been engaged in a “concerted, expedited effort to shut the agency down” and, notably, expressing skepticism about the government’s credibility.

A D.C. Circuit panel reversed the District Court by a 2-1 vote, but maintained the District Court’s preliminary injunction regarding the RIF in place pending the outcome of a petition for rehearing en banc.

The full court later took the case en banc and the injunction regarding the RIF remains in place.

The Government’s New Strategy: A “Streamlining” Plan

More than a year after the injunction was entered—and a month after en banc oral argument—the government introduced a new RIF plan, asserting that it reflects a shift away from shutting down the CFPB toward “streamlining” its operations.

Based on that development, the government is seeking a modification by the DC Circuit of the stay pending appeal of the preliminary injunction barring the RIF or, in the alternative, a limited remand to the District Court, with a 45-day deadline for the District Court to rule.

The plaintiffs’ agree with the request for a limited remand to the District Court, but not the 45-day deadline.

Plaintiffs’ Core Arguments

The response advances three principal arguments, each with broader implications for administrative law and appellate procedure.

1. No Justification for an “Emergency” Timeline

As noted, the plaintiffs do not oppose a limited remand to allow the District Court to consider the new RIF plan. But they strongly object to the government’s request for a 45-day deadline.

Their argument is straightforward: urgency is self-inflicted and not credible. They argue that the government:

• Waited over a year after the injunction to file this new motion 
• Waited a month after en banc argument to introduce the new plan
• Offers no explanation for why immediate action is now required

Imposing an accelerated schedule, the plaintiffs argue, would disrupt the District Court’s docket and prejudice both the plaintiffs and other litigants.

2. The Government Must First Go to the District Court

A central theme of the brief is procedural. Under Federal Rule of Appellate Procedure 8, requests to modify or stay an injunction must be presented to the district court “in the first instance.”

The plaintiffs argue that:

• The government has never asked the District Court to approve this specific RIF plan
• The current motion, insofar as it requests the Court of Appeals to grant relief, improperly seeks to bypass the requirement that the District Court must be given the first opportunity to modify or stay an injunction 
• Recharacterizing the request as a “modification” of an appellate stay does not change its substance

The plaintiffs argue that the District Court, having developed the factual record and conducted prior evidentiary hearings, is best positioned to evaluate:

• Whether circumstances have actually changed
• Whether the new RIF plan differs meaningfully from prior shutdown efforts
• Whether factual disputes require further development

3. The Government Cannot Satisfy the Stay Standard

Even if the D.C. Circuit were to consider the request directly, the plaintiffs argue that the government has failed to meet the traditional stay factors set forth in the Supreme Court’s Nken v. Holder ruling, 556 U.S. 418 (2009). In the case, the Court addressed the four factors that apply to a court’s consideration of whether to grant a party’s request for a stay, with the first two factors being the most critical: (1) a strong showing that the party is likely to succeed on the merits, (2) whether the party will be irreparably injured absent a stay, (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding and (4) where the public interest lies. The Court also noted then when the government is the party opposing the stay, the third and fourth factors merge.

The plaintiffs argue that the government does not “even attempt to argue that they have a likelihood of success on appeal” nor goes the government “attempt to demonstrate irreparable harm,” which claim they assert is undermined by the government’s delay. They also argue that while the government does not address other Nken factors, it does address the balance of the equities. The plaintiffs assert that this does not overcome the failure to address other factors and that, in any event, the equities are not in the government’s favor. Finally, the plaintiffs assert that the government concedes the employee plaintiffs would be harmed by the implementation of the RIF plan, and that the government makes “no effort at all to demonstrate that the public would not be harmed.”

The plaintiffs emphasize that the court previously rejected a similar effort to permit mass terminations, particularly after the government attempted to use a partial stay to justify layoffs that would have effectively shuttered the agency.

A Credibility Undercurrent

One of the most striking aspects of the filing is its repeated emphasis on credibility.

The plaintiffs juxtapose:

• Litigation positions denying any intent to shut down the CFPB
• Public statements by Vought and others indicating the opposite

They argue that the new “streamlining” plan should be viewed in light of that history—raising implicit questions about whether the new proposal is substantively different or simply a rebranded version of earlier efforts.

Key Takeaways

This filing highlights several broader themes worth watching:

• Procedural rigor matters: The case underscores the importance of Rule 8 and the expectation that trial courts evaluate new factual developments first.
• Delay cuts against emergency relief: Courts remain skeptical of claims of urgency when parties have delayed action.
• Agency restructuring through litigation is fraught: Efforts to dramatically reshape (or potentially dismantle) an agency face heightened judicial scrutiny, particularly where factual disputes and credibility concerns are present.
• The en banc court’s posture remains critical: The D.C. Circuit has already shown sensitivity to preserving “meaningful final relief,” suggesting caution about allowing actions that could moot the case.

What the Plaintiffs Did Not Address

A key point argued by the government is that the One Big Beautiful Bill passed by Congress last year reduced the maximum amount of funding that the CFPB may request annually from the Federal Reserve from 12% to 6.5% of the Fed’s 2009 operating expenses, adjusted for inflation. The government asserts that the preliminary injunction requires the CFPB to maintain funding at the original level, which would be $677.5 million for the current fiscal year, but that the statutory change reduced the amount for the year to $466.8 million. The government also asserts that the CFPB “expects that by the fourth quarter of calendar year 2026 (i.e., the first quarter of fiscal year 2027) its cash on hand will no longer be sufficient to comply with both the injunction and the statutory funding cap Congress has now imposed.” While the fourth quarter is further away than the 45-day deadline requested by the government, if the government’s claims are accurate, there is a real-world timing issue that the District Court will need to take into consideration. As a result, it is a bit perplexing that the plaintiffs did not address this issue in their opposition to the government’s motion.

What Comes Next

The most likely near-term outcome is a limited remand to the District Court, where the government will need to:

• Formally present its new RIF plan
• Demonstrate that circumstances have materially changed
• Address concerns that the plan would effectively replicate prior shutdown efforts