President Trump has nominated Brian Johnson for a five year term to serve as Director of the Consumer Financial Protection Bureau (CFPB). Johnson is the third nomination Trump has made to fill the position. The first two nominations were Jonathan McKiernan and Stuart Levenbach. Perhaps, the third time will be a charm.

From a qualifications standpoint, Johnson appears to be an exceptionally strong choice. He is no stranger to the CFPB, having previously served in senior leadership positions at the Bureau from December 2017 until March 2020, including as Acting Deputy and then Deputy Director for a majority of that period. He has also served in a key policy and legal role on Capitol Hill as Chief Financial Institutions Counsel of the House Financial Services Committee for more than five years. After leaving the CFPB, he was a partner at a major law firm for more than 2 years before becoming Managing Director of Patomak Global Partners (a strategy, risk management, and compliance financial services consulting firm) for about 2 years. He then joined Capital One in November 2024 as Vice President, U.S. Card Compliance Officer. As a result of all these positions, he developed extensive expertise in consumer financial services law, financial regulation, and administrative law.

The nomination nevertheless raises an interesting legal and procedural question.

Some observers have suggested that the nomination was intended primarily to extend Vought’s tenure as Acting Director under the Federal Vacancies Reform Act (FVRA). A closer examination of the timeline suggests otherwise.

The CFPB Director position became vacant earlier in President Trump’s term. The Administration first nominated Jonathan McKernan to serve as CFPB Director. After McKernan was nominated to another position and his CFPB nomination was withdrawn, the Administration nominated Stuart Levenbach. When the Senate returned Levenbach’s nomination to the President on January 3, 2026, that action triggered what many observers viewed as the final 210-day acting-service period available under the FVRA.

Under that interpretation of the statute, Vought’s authority to serve as Acting Director expires on or about August 1, 2026. If that view is correct, Johnson’s nomination does not extend Vought’s tenure beyond that date.

Instead, the nomination may have significance because of the Consumer Financial Protection Act’s separate succession provision. The Consumer Financial Protection Act (CFPA) provides that the CFPB’s Deputy Director serves as Acting Director in the absence or unavailability of the Director. Accordingly, once Vought’s FVRA authority expires, CFPB Chief Legal Officer Mark Paoletta, who is currently also serving as Acting Deputy Director, could automatically become Acting Director under the CFPA.

If Paoletta succeeds Vought as Acting Director on August 1, 2026 under the CFPA, Johnson’s pending nomination could permit Paoletta to remain in that position while the Senate considers the nomination. In that scenario, Johnson’s nomination would not be extending Vought’s tenure at all. Rather, it would facilitate a seamless transition from Vought to Paoletta while preserving continuity in the Bureau’s leadership.

That possibility may help explain the timing of the nomination. The Administration submitted Johnson’s nomination approximately seven weeks before the anticipated expiration of Vought’s FVRA authority as Acting Director expires. If the goal were simply to keep Vought in office, the nomination would not seem to accomplish that objective. If, however, the goal is to ensure that a Senate-confirmed Director is eventually installed while maintaining a leadership structure aligned with the Administration’s policy objectives, the nomination makes considerably more sense.

The more difficult question concerns what happens if Johnson’s nomination ultimately fails.

Suppose, for example, that the Senate takes no action and returns the nomination to the President at the end of the current session in early January 2027. Would Paoletta’s authority as Acting Director immediately terminate? Would another acting-service period of 210 days become available? Or would the CFPA’s succession provision continue to operate independently of the FVRA so that Paoletta would indefinitely remain as Acting Director intel Trump nominates yet another candidate to be Director of the Bureau. 

Those questions are not free from doubt, and there is surprisingly little judicial guidance addressing the interaction between the CFPA’s succession provision and the FVRA in these circumstances.

Our opinion is that Johnson’s nomination is for real and that it was not made just to enable Paoletta to become Acting Director. Knowing Johnson as we do, we very much doubt that he would allow himself to be used in that fashion.