As previously reported, late in 2018 the CFPB announced the availability of a beta version of a Home Mortgage Disclosure Act (HMDA) data platform for companies to test the filing of 2018 data. The CFPB has now announced that the beta testing period is closed and the HMDA data platform is open for the filing of 2018 data. The HMDA data platform can be accessed here.

All test data that companies uploaded during the beta testing period has been removed from the data platform. However, all user accounts created during the 2018 beta testing period, and also for the filing of 2017 data, will be maintained for the 2018 filing period. The reporting deadline for 2018 HMDA data is March 1, 2019.

CFPB Director Kathy Kraninger has sent an email to CFPB employees informing them of her decision to halt “all ongoing efforts to make changes to existing products and materials related to the name correction initiative.”  That initiative was initiated by former Acting Director Mulvaney.  Under his leadership, the Bureau began using “Bureau of Consumer Financial Protection” as its name, together with the acronym “BCFP,”  instead of, respectively, “Consumer Financial Protection Bureau” and “CFPB.”

Ms. Kraninger identified the name change as an “early priority” because of implementation decisions that must be made.  In initiating the name change and commissioning a seal reflecting the change, Mr. Mulvaney had pointed to the Dodd-Frank Act’s use of “Bureau of Consumer Financial Protection” to refer to the agency.  Ms. Kraninger stated that the new seal and “the statutory name we were given in Dodd-Frank” would be used for “statutorily required reports, legal filings, and other items specific to the Office of the Director.”  However, for all other materials, the Bureau will continue to use the name “Consumer Financial Protection Bureau”  and “the existing CFPB logo.”

Ms. Kraninger indicated that she made her decision “after being fully briefed on the costs, operational challenges and the effect on stakeholders.”  Her decision closely follows Senator Elizabeth Warren’s sending of a letter to the Inspector General for the Fed and CFPB asking for an investigation into Mr. Mulvaney’s decision to change the Bureau’s name.  In her letter, Senator Warren cited reports and an internal Bureau analysis indicating that the name change would cost the CFPB between $9 million and $19 million and would cost entities subject to CFPB supervision approximately $300 million to update internal databases, regulatory filings, and disclosure forms with the new name.

We applaud Director Kraninger for quickly addressing this issue and addressing it in a practical manner.


Despite agreeing on the merits with State National Bank of Big Spring (SNB) and the other petitioners for certiorari that the CFPB’s structure is unconstitutional, the Department of Justice has filed a brief in which it argues that the U.S. Supreme Court should deny the petition.  (The other petitioners are two D.C. area non-profit organizations that in 2012, together with SNB, brought one of the first lawsuits challenging the CFPB’s constitutionality.)

The D.C. District Court initially dismissed the petitioners’ complaint for lack of standing but on appeal, in an opinion authored by Judge (now Justice) Kavanaugh, the D.C. Circuit held that the plaintiffs did have standing and remanded the case to the district court.  Further proceedings in the case were held in abeyance by the district court pending the outcome of the PHH case in the D.C. Circuit.

Following the D.C. Circuit’s en banc PHH decision that held the CFPB’s structure is constitutional, the district court lifted its abeyance order and, with the parties having agreed that PHH foreclosed the district court from ruling in favor of the plaintiffs on their constitutional challenge, entered judgment against the plaintiffs.  On June 8, 2018, the D.C Circuit entered an order summarily affirming the district court’s judgment.  Citing its en banc PHH decision, the D.C. Circuit order stated that “the merits of the parties’ positions are so clear as to warrant summary action.”

In its brief, the DOJ calls the principal question presented by the case—whether the Bureau’s single-director-removable-only-for-cause structure violates the separation of powers—is an “important one that warrants [the Supreme] Court’s review in an appropriate case” and that “absent legislative action eliminating the restrictions on removal…will ultimately need to be settled by [the Supreme] Court.”  Nevertheless, the DOJ asserts that the SNB case “would be a poor vehicle to consider the question for multiple reasons.”

Such reasons consist of the following:

  • If the Supreme Court were to grant the petition, it is unlikely the case would be considered by the full Court because of Justice Kavanaugh’s previous participation in the case while a D.C. Circuit judge, and his authoring of the D.C. Circuit’s standing decision.  The DOJ asserts that “[p]articularly for a question of this magnitude, the Court may wish to wait for a vehicle in which all nine Justices are likely to participate.”  (It is not surprising that the DOJ would want Justice Kavanaugh to participate given that he authored the D.C. Circuit panel decision in PHH that held the CFPB’s structure is unconstitutional and a dissent in the D.C. Circuit’s en banc PHH decision that reversed the panel’s decision and held the structure is constitutional.)
  • Before it could reach the merits of the constitutionality issue, the Supreme Court would have to resolve in the petitioners’ favor the jurisdictional issue of whether the petitioners have standing.  According to the DOJ, “petitioners’ standing is sufficiently questionable to present a significant vehicle problem.”
  • There are other cases pending in the courts of appeal that raise a similar constitutional challenge and “one or more of those cases may not present the same obstacles that could impede the full Court from considering the merits of this important issue.”  The pending cases cited by the DOJ are the All American Check Cashing case pending in the Fifth Circuit, the RD Legal Funding case pending in the Second Circuit, and the Seila Law case pending in the Ninth Circuit.  (Seila Law involves an appeal from the district court’s refusal to set aside a Bureau civil investigative demand.  Oral argument in the Ninth Circuit is scheduled for January 8, 2019.)

On the merits, the DOJ argues that the Bureau’s structure is unconstitutional and the proper remedy is to sever the Dodd-Frank Act’s for-cause removal provision.  The DOJ notes, however, that its position “is that of the United States, not the position of the Bureau to date.”  Citing the Dodd-Frank provision that gives the Bureau independent litigation authority in the lower courts, the DOJ observes that while the Bureau continued to defend the constitutionality of its structure in the lower courts under Acting Director Mulvaney, a new Director, Kathy Kraninger, will assume (and now has assumed) leadership of the Bureau.

The DOJ then notes that if the Supreme Court were to grant the petition for certiorari, it would be the Court’s “usual practice to appoint an amicus curiae to defend the judgment of the court of appeals” when no party is doing so.  The DOJ then cites the Dodd-Frank provision that requires the Bureau to seek the Attorney General’s consent before it can represent itself in the Supreme Court and asks the Court, before appointing an amicus curiae, to give the Bureau’s new Director “a reasonable opportunity…to determine whether the Bureau will seek to defend the court of appeals’ judgment in this Court and for the Acting Solicitor General to determine whether he will authorize the Bureau to do so.”  (The DOJ indicates in a footnote that the Solicitor General (Noel Francisco) is recused in the case.  Presumably, the reason for the recusal is that Mr. Francisco’s former law firm is representing one of the amici that has filed a brief with the Supreme Court in support of SNB.)

We note that although the Bureau did continue to defend its constitutionality under Acting Director Mulvaney, it did so as a fallback to its primary argument that because Acting Director Mulvaney is removable at will by the President and had ratified the CFPB’s decision to bring the lawsuit in question, any constitutional defect that may have existed with the CFPB’s initiation of the lawsuit was cured.  The continued viability of that argument is questionable given that Ms. Kraninger, who is now Director, can only be removed by the President for cause.  In its Fifth Circuit appeal, All American Check Cashing recently filed a letter in which it noted the Senate’s confirmation of Ms. Kraninger and stated that “[t]his refutes once and for all the CFPB’s contention that a purported ratification by the former Acting Director somehow cured the defects in the CFPB’s structure.”  It bears observing that a ruling by the Supreme Court that the CFPB’s structure is unconstitutional and the proper remedy is to sever the for-cause removal provision would mean that Ms. Kraninger’s five-year term could be cut short should a Democratic President be elected in 2020.


The BCFP has issued proposed revisions to its 2016 final policy on issuing “no-action” letters (NAL), together with a proposal to create a new “BCFP Product Sandbox.”  Comments must be received on or before February 11, 2019.

Proposed NAL policy revisions. The revisions are intended to address the 2016 policy’s many shortcomings. The Bureau observes that the fact that the Bureau has provided only one NAL under the 2016 policy “strongly suggests that both the process required to obtain [NALs] and the relief available under the 2016 Policy have not provided firms with sufficient incentives to seek [NALs] from Bureau staff.”  Through the proposal, the Bureau seeks to “bring certain aspects of the Bureau’s [NAL] policy more into alignment with [NAL] programs offered by other Federal regulators.”

Key proposed changes to the 2016 policy include the following:

  •  The 2016 policy states that “it was intended to facilitate consumer access to innovative financial products” and that NALs would not be routinely available and were anticipated to be “provided rarely and on the basis of exceptional circumstances.”  The proposal would remove such statements.
  • The 2016 policy stated that NALs were not binding on the Bureau and indicated that UDAAP-focused NALs were expected to be uncommon.  The proposal would revise the policy to state that the Bureau “intends that [an NAL] will include a statement that, subject to good faith, substantial compliance with the terms and conditions of the letter, and in the exercise of its discretion, the Bureau will not make supervisory findings or bring a supervisory or enforcement action against the recipient’s offering or providing the described aspects of the product or service under (a) its authority to prevent unfair, deceptive, or abusive acts or practices; or (b) any other identified statutory or regulatory authority within the Bureau’s jurisdiction.”
  • The 2016 policy requires an NAL applicant to provide up to 15 items of information.  In contrast, the proposal would reduce such items to up to 7.
  • The 2016 policy was accompanied by the Bureau’s statement that it did not intend to issue NALs to trade groups on behalf of their members or to a company that was not identified in an application.  The revised policy would “invite applications from trade associations, service providers, and other third-parties.”
  • The 2016 policy contains no discussion of the Bureau’s coordination with other regulators in connection with an NAL.  The proposal would add a section on “Regulatory Coordination” that discusses the Bureau’s interest in coordinating with state regulators that issue similar NALs “that would provide for an alternative means of receiving an [NAL] from the Bureau” and in coordinating more generally with other regulators  by “enter[ing] into agreements whenever possible to coordinate relief [under Bureau NALs] with similar forms of relief offered by State, Federal, or international regulators.”
  • The 2016 policy anticipates that an NAL will have a limited duration.  The revised policy would assume no temporal limitation.
  • The 2016 policy requires the recipient of an NAL to commit to share data with the Bureau if requested to do so.  The proposal would remove that requirement.
  • The 2016 policy states that in addition to granting or denying a request for an NAL, the Bureau can decline to grant or deny the request, with or without an explanation.  It also lists 10 items for the Bureau to consider when deciding whether to issue an NAL.  The proposal would eliminate the 10 items and revise the policy to provide that in deciding whether to issue an NAL, the Bureau “intends to consider the quality and persuasiveness of the application, with particular emphasis on [certain designated information included in the application].”  The revised policy would state only that the Bureau “intends to grant or deny” an application within 60 days of when it is complete (which is the same timetable as the 2016 policy).

The proposal would continue the practice of publishing NALs on the Bureau’s website and would also allow the Bureau to publish denials after an applicant is given an opportunity to request reconsideration of the denial.  (The proposal would add that the Bureau might publish a version or summary of the application “in appropriate cases” and its reasons for denying an NAL application “particularly if it determines that doing so would be in the public interest.”)  However, the proposal would revise the 2016 policy to add a detailed discussion of the legal limits on the Bureau’s ability to disclose confidential commercial or financial information, including supervisory information, and to state that the Bureau “intends to draft [an NAL] in a manner such that confidential information is not disclosed.”

The proposal would also require the Bureau to specify in an NAL “the extent to which [it] intends to publicly disclose information about the [NAL].”  It would further provide that if an applicant objects to the Bureau’s disclosure of certain information and the Bureau insists such information must be publicly disclosed if an NAL is issued, the applicant can withdraw the application.

BCPF Product Sandbox proposal. Neither the Bureau’s background discussion nor its proposal clearly explain when an applicant would seek to participate in the sandbox program rather than seek a “standard” NAL.  Presumably, the sandbox program is intended to allow participants to test innovative financial products or services without the need to comply with otherwise applicable or potentially applicable statutory or regulatory requirements.  However, there is no indication that the sandbox program is limited to innovative products or services, such as those typically labeled “fintech.”

Key features of the sandbox proposal that differ from the NAL policy include the following:

  •  An applicant admitted to the sandbox program, in addition to receiving no-action relief that is substantially the same as that provided in an NAL letter (i.e. a statement that the Bureau will not make adverse supervisory findings or bring a supervisory or enforcement action under its UDAAP authority or otherwise), will receive two other forms of relief:
    • Approvals, as applicable, under the provisions of theTILA, ECOA, and EFTA that provide a safe harbor from liability in federal or state enforcement actions and private lawsuits for actions taken or omitted in good faith in conformity with Bureau approvals
    • Exemptions granted by Bureau order (i) from statutory or regulatory provisions as to which the Bureau has statutory authority to issue exemptions by order (such as provisions of the ECOA, HOEPA, and FDIA), or (ii) from regulatory provisions as to which the Bureau has general authority to issue exemptions.  Such an exemption would provide immunity from federal or state enforcement actions and private lawsuits.
  • Sandbox program admission will generally be for a two-year term and participants can apply for extensions.
  • The information that applicants must provide includes a description of the data the applicant possesses and/or intends to develop regarding the impact of the product or service on consumers to be shared with the Bureau if the application is granted and a proposed schedule for such sharing.
  • A participant must report information about how the offering or providing of the product or service affects “complaint patterns, default rates, or similar metrics that will enable the Bureau to determine if doing so is causing material, tangible harm to consumers.”
  • A participant must commit to compensate consumers “for material, quantifiable, economic harm” caused by the participant’s offering or providing the product or service within the sandbox program and must commit to sharing data with the Bureau regarding such product or service.
  • In addition to publishing specified information about participants on its website, the Bureau intends to publish information about denials of applications, including its reasons for denying an application, after the applicant is given an opportunity to request reconsideration of the denial.

In September 2018, the Bureau proposed significant revisions to its “Policy to Encourage Trial Disclosure Programs” (TDP Policy), which sets forth the Bureau’s standards and procedures for exempting individual companies, on a case-by-case basis, from applicable federal disclosure requirements to allow those companies to test trial disclosures.  That proposal is not referenced in the NAL policy and sandbox proposals.

The CFPB has made available a beta version of its 2018 HMDA data platform. The platform is for the reporting of data collected in 2018 that must be reported in 2019.

During the beta period, reporting institutions can test and retest 2018 HMDA data files as often as desired to assess if their Loan Application Register (LAR) data complies with the reporting requirements outlined in the Filing Instructions Guide for HMDA data collected in 2018.

No 2018 data can actually be submitted through the platform until January 2019. Based on the substantial changes to HMDA data for 2018, testing whether LAR data complies with the reporting requirements will likely be beneficial for many reporting institutions.

This afternoon, by a vote of 50-49, the Senate confirmed Kathy Kraninger as CFPB Director.

Pursuant to the Dodd-Frank Act, the CFPB Director has a five-year term.  The approximate 12 months during which Mick Mulvaney has served as Acting Director since former Director Cordray’s resignation last November does not count against Ms. Kraninger’s five-year term.  As a result, Ms. Kraninger could serve as Director for approximately three years of the next four-year Presidential term that begins in January 2021 even if a Democratic President is elected.

There is, however, a “wildcard” that could potentially shorten Ms. Kraninger’s tenure, namely the ongoing litigation challenging the CFPB’s constitutionality.  In September 2018, a petition for certiorari was filed in the U.S. Supreme Court by State National Bank of Big Spring which, together with two D.C. area non-profit organizations that also joined in the petition, had brought one of the first lawsuits challenging the CFPB’s constitutionality.  Following the D.C. Circuit’s en banc PHH decision that held the CFPB’s structure is constitutional, the D.C. Circuit, based on PHH, summarily affirmed the district court’s judgment entered against the plaintiffs.  The issue of the CFPB’s constitutionality is also currently pending in two circuit courts–the Second Circuit in the RD Legal Funding case and the Fifth Circuit in the All American Check Cashing case.  In all of these cases, the CFPB’s constitutionality has been challenged based on its single-director-removable-only-for-cause structure.

These cases create a strong likelihood of this issue coming before the Supreme Court in the next year or so.  If the CFPB’s structure is found to be unconstitutional and severing Dodd-Frank’s for-cause removal provision is determined to be the appropriate remedy (as the D.C. Circuit determined in its PHH panel decision), a Democratic President might have the ability to remove Ms. Kraninger without cause before the end of her five-year term.



Last week, the CFPB Ombudsman’s Office released its seventh annual report covering the Office’s activities during fiscal year 2018. The Ombudsman’s Office is intended to serve as an independent, impartial, and confidential resource that assists consumers, financial entities, consumer or trade groups, and others in informally resolving process issues with the CFPB. The Office works outside of the CFPB’s business lines, reporting to the Deputy Director with access to the Director. One of its stated goals is to serve as an early warning system and catalyst for change.

In the annual report, the Office provides examples of its work in the 2018 fiscal year and discusses the types of internal and external engagement in which it has participated during that period.

Some noteworthy items include:

  • An overview of the Office’s efforts in assisting stakeholders in engaging with the Bureau’s Request for Information process, sharing resources to assist consumers in recognizing financial frauds and scams, and facilitating technical assistance to companies responding to consumer complaints.
  • Discussion of the Office’s continued practice of regular meetings with Bureau leadership and staff and the Office’s external outreach activities, including two Ombudsman Forums hosted by the Office and an overview of the new criteria the Office will use in determining the topics and format for future Forums.
  • While the CFPB generally prefers to avoid endorsements of groups or entities, the Office received an inquiry about a Bureau blog post that did recommend one group to consumers for a certain kind of assistance. This inquiry led the Office to study the Bureau’s internal guidance about naming entities in blogs, social media, and print materials for a positive purpose. The study resulted in the Office recommending that the Bureau supplement its guidance as it relates to the commercial impact of the Bureau recommending a group or entity, incorporate review of agency risk associated with such action, and make internal guidance about the endorsement of entities more widely available to Bureau staff.
  • A review of the Bureau’s process for responding to consumer complaints about companies initiated by third parties who are unauthorized to receive the company’s substantive response to the complaint. In these types of situations, a third-party, who is not a customer or authorized person on an account for the company, submits a complaint to the Bureau about the company’s handling of an account or some other action taken by the company. When the company researches the complaint, it learns that the person who brought the complaint is not authorized to receive information responding to the substance of the complaint. When the Bureau is notified that the complaint was brought by an unauthorized person, the Bureau closes the consumer complaint and it is not reopened even if the person submits authorization information. The Office recommended ways for the Bureau’s telephone contact center to be better prepared to address these situations. More specifically, the Office recommended that the telephone contact center be given information that would allow it to answer questions about the unauthorized third party issue, provide additional information to the third party on what it means to be unauthorized, inform consumers that even if new authorization information is submitted the Bureau will not reopen a complaint that was closed because it was initiated by an unauthorized third party, and share that consumers may submit authorizing information required by the company that is the subject of the complaint in a new consumer complaint to be sent to the company.
  • A recommendation that the Bureau provide a direct avenue for non-consumers, meaning anyone who contacts the Bureau about something other than an individual consumer finance question or complaint – including researchers and academics seeking information – to access the Bureau via telephone, or offer a way for non-consumers to know that non-consumer information is available when contacting the Bureau’s main telephone number.

Report of the data and analysis surrounding the individual inquiries received by the Office in FY2018 compared to inquiries received in FY2015-2017. As in the last few years, mortgages were the financial product most commonly underpinning consumer complaint-related inquiries to the Ombudsman, followed by other credit products (26 percent), deposit products (13 percent), credit reporting (13 percent), debt collection (6 percent), and methods of payment (4 percent).

The CFPB recently issued revised versions of the small entity compliance guides for the Loan Originator Rule and the Home Ownership and Equity Protection Act (HOEPA) Rule.

While some of the most well-known provisions of the Loan Originator Rule are the provisions addressing loan originator compensation, the rule also defines the concept of a loan originator and addresses qualification and other requirements related to loan originators. Among various changes, the guide for the Loan Originator Rule is revised to reflect (1) the broadening of an exemption from the concept of a loan originator with regard to retailers of manufactured and modular homes and their employees made by the Economic Growth, Regulatory Relief, and Consumer Protection Act (Act), which was adopted earlier this year (2) the process for contacting the CFPB with informal inquiries about the rule, and (3) that the TILA/RESPA Integrated Disclosure (TRID) rule is now in effect (the prior version of the guide was issued in March 2015 and the TRID rule became effective in October 2015).

Among various changes, the guide for the HOEPA Rule is revised to reflect (1) the broadening of the exemption from the concept of a loan originator made by the Act (which is noted above), as this can affect the requirement to include loan originator compensation in points and fees for purposes of the points and fees threshold under the HOEPA rule, and (2) the process for contacting the CFPB with informal inquiries about the rule.

Note that for purposes of the points and fees cap to determine qualified mortgage loan status under the ability to repay rule, the definition of “points and fees” set forth in the HOEPA rule is used. As a result, corresponding changes likely will be made to the provisions of the small entity compliance guide for the ability to repay rule to reflect that the Act’s broadening of the exemption from the concept of a loan originator with regard to retailers of manufactured and modular homes and their employees may affect the calculation of points and fees for qualified mortgage purposes. The current version of such guide was issued in March 2016, and the version of the guide on the CFPB’s website includes a notice that the guide has not been updated to reflect the Act.

The CFPB has issued its Spring 2018 Semi-Annual Report to Congress covering the period October 1, 2017 through March 31, 2018.

At 41 pages, the new report is even shorter than the Bureau’s last semi-annual report (which was 55 pages) and continues what appears to be a goal under Acting Director Mulvaney’s leadership of issuing semi-annual reports that are substantially shorter than those issued under the leadership of former Director Cordray.  Like the prior semi-annual report under Mr. Mulvaney’s leadership, and also in contrast to the reports issued under former Director Cordray’s leadership, the new report does not contain any aggregate numbers for how much consumers obtained in consumer relief and how much was assessed in civil money penalties in supervisory and enforcement actions during the period covered by the report.

Pursuant to Section 1017(a)(1) of the Dodd-Frank Act, subject to the Act’s funding cap, the Fed is required to transfer to the CFPB on a quarterly basis “the amount determined by the [CFPB] Director to be reasonably necessary to carry out the authorities of the Bureau under Federal consumer financial law, taking into account such other sums made available to the Bureau from the preceding year (or quarter of such year.)”  The new report references the January 2018 letter sent by Mr. Mulvaney to former Fed Chair Yellen requesting no funds for the second quarter of Fiscal Year 2018.

Mr. Mulvaney has, however, sent letters to Fed Chair Powell requesting funds transfers for the third and fourth quarters of FY 2018 and for the first quarter of FY 2019.  The amounts requested are, respectively, $98.5 million, $65.7 million, and $172.9 million.  (In contrast, former Director Cordray’s final transfer request, which was for the first quarter of FY 2018, sought a transfer of $217.1 million.)  Two of Mr. Mulvaney’s letters included the following statement:

By design, this funding mechanism [created by Section 1017(a)(1)] denies the American people their rightful control over how the Bureau spends their money, which undermines the Bureau’s legitimacy.  The Bureau should be funded through Congressional appropriations.  However, I am bound to execute the law as written. 

The new report indicates that the Bureau had 1,671 employees as of March 31, 2018, representing a slight increase in the number of employees (1,627) as of March 31, 2017.  The new report does not discuss any ongoing or past developments of significance beyond those we have covered in previous blog posts.






A number of housing and financial industry trade groups, including the Mortgage Bankers Association and Real Estate Services Providers Council, Inc. (RESPRO®), recently sent a letter to Senators Mitch McConnell (R-KY) and Charles E. Schumer (D-NY) supporting the confirmation of Kathleen Kraninger as CFPB Director.

The trade groups state that Ms. Kraninger “has the ability to lead and manage a large government agency, like the Bureau, which is tasked to ensure consumers’ financial interests are protected,” and “also fulfill the equally important role of ensuring businesses have the necessary compliance support to further those interests.”

Addressing concerns regarding the CFPB, the trade groups state “Our members believe the Bureau must improve its examination, enforcement, rulemaking and guidance processes to assist with regulatory compliance and bring certainty in the marketplace. As evidenced during the Senate Banking Committee confirmation hearing, Ms. Kraninger’s testimony conveyed a commitment to such actions along with a thoughtful review of the law for corresponding administrative actions.”

As we reported previously, the Senate Banking Committee voted to approve Ms. Kraninger’s nomination as CFPB Director, but the full Senate has not acted on the nomination. If the Senate does not act on Ms. Kraninger’s nomination during the lame-duck session, the nomination will be returned to President Trump. Once the new Congress convenes next year, the President could re-nominate Ms. Kraninger or nominate another individual for CFPB Director. As we reported previously, under the Federal Vacancies Reform Act Mick Mulvaney can continue to serve as Acting CFPB Director for a 210-day period if Ms. Kraninger’s nomination is returned or rejected, and once another nomination is made he could serve as Acting Director during the Senate’s consideration of the second nomination.