LEANDRA ENGLISH vs. TRUMP et MULVANEY UPDATE
Scott A. Keller, Solicitor General at the Texas Attorney General's Office (Ken Paxton), filed appearance on behalf of the STATE OF TEXAS Nov. 28, 2017 and motion for leave to file proposed amicus curiae brief attached as an exhibit, following an amicus brief filed by Democratic lawmakers earlier. Court denied motion as moot today (Nov 29, 2017) without prejudice to refiling as to merits of a preliminary injunction (as opposed to TRO) if such a motion for injunctive relief is filed. (Judge Kelly declined to deem the ill-fated TRO a bid for a preliminary injunction, which, unlike a TRO denial, would have been appealable). A number of attorney generals from other states joined the amicus motion and brief from Texas. Attorney General Ken Paxton is on the brief, with Keller as attorney of record.
Next after the TRO Denial: A proposed joint briefing schedule is to be submitted by Dec 1, 2017.
MINUTE ORDER: For reasons stated on the record at the hearing on November 28, 2017, Plaintiff's 12 Motion to treat her emergency Motion for a Temporary Restraining Order as a Motion for a Preliminary Injunction is DENIED. To the extent that the Motion requests that the Court enter a briefing schedule on the merits, the Motion is DENIED without prejudice. The parties shall meet and confer, and submit, by December 1, 2017, a joint proposed schedule for briefing the merits and/or for briefing a preliminary injunction, should one be filed by Plaintiff by then. If the parties cannot agree on a joint proposed schedule, they shall submit separate proposed schedules. Signed by Judge Timothy J. Kelly on 11/29/2017. (lctjk1) (Entered: 11/29/2017)The docket information reveals nothing about the substance of any ruling at or after the conclusion of the TRO hearing. A leading law firm blog covering the CFPB has additional information about what was said here and here because one of their attorneys was in attendance.
[12/5/2017 UPDATE: See subsequent blog post on
--> Judge Kelly's TRO ruling from the bench in English v Trump et Mulvaney with hotlink to full transcript.]
TEXT OF STATE OF TEXAS AMICUS MOTION
Motion of the States of Texas, West Virginia, Alabama, Arkansas,
Georgia, Louisiana, Oklahoma, and South Carolina To File Brief as
Amici Curiae in Support of Defendants:
The States of Texas, West Virginia, Alabama, Arkansas, Georgia,
Louisiana, Oklahoma, and South Carolina move for leave to file the attached
amici curiae brief in support of defendants.
1. District courts have “inherent authority” to grant participation by an
amicus curiae. Youming Jin v. Ministry of State Sec., 557 F. Supp. 2d 131, 136
(D.D.C. 2008). That authority is derived from Federal Rule of Appellate Procedure
29. Id. In determining whether to grant leave to participate as an amicus,
this Court has “broad discretion,” Nat’l Ass’n of Home Builders v. U.S.
Army Corps of Eng’rs, 519 F. Supp. 2d 89, 93 (D.D.C. 2007), and amicus status
is generally allowed when “the information offered is timely and useful.” Ellsworth
Assocs. v. United States, 917 F. Supp. 841, 846 (D.D.C. 1996).
Under Federal Rule of Appellate Procedure 29(a), a movant must (1) explain
its interest, (2) the reason why an amicus brief is desirable, and (3) why
the matters asserted are relevant to the case. As set forth below, amici will
provide value to this case by bringing relevant matters to the Court’s attention
that are not already discussed by the parties.
2. States have “special solicitude” to challenge unlawful federal Executive
Branch actions. Massachusetts v. EPA, 549 U.S. 497, 520 (2007). Courts
have long recognized that the States guard “the public interest in protecting
separation of powers by curtailing unlawful executive action.” Texas v. United
Case 1:17-cv-02534-TJK Document 11 Filed 11/28/17 Page 2 of 5
States, 809 F.3d 134, 187 (5th Cir. 2015), aff’d by equally divided Court, 136 S.
Ct. 2271 (2016) (per curiam).
Those interests lie at the heart of this case: the Consumer Financial Protection
Bureau wields sweeping power over American life. Its actions touch
the affairs of millions of Americans. As a panel of the D.C. Circuit recently
observed, “the Director of the CFPB possesses more unilateral authority—
that is, authority to take action on one’s own, subject to no check—than any
single commissioner or board member in any other independent agency in the
U.S. Government.” PHH Corp. v. Consumer Fin. Prot. Bureau, 839 F.3d 1, 6-7
(D.C. Cir. 2016), reh’g en banc granted, order vacated (Feb. 16, 2017).
Any federal official who wields that level of power should be appointed by
the President—not by Congress, and certainly not by an unaccountable federal
bureaucrat. Plaintiff’s contrary argument that the Dodd-Frank Act of
2010 supplants the President’s choice raises serious constitutional concerns
and undermines the Constitution’s separation of powers.
Amici thus seek leave to file an amicus brief to present these issues in a
way that is helpful to the Court.
3. On November 28, 2017, counsel for amici emailed counsel for plaintiff
and defendants to ask their position on this motion. Counsel for defendants
responded that defendants take no position on the motion. Counsel for
plaintiff had not responded by the time of filing.
Case 1:17-cv-02534-TJK Document 11 Filed 11/28/17 Page 3 of 5
Conclusion
For the foregoing reasons, amici urge the Court to grant their motion to
file a brief as amici curiae in support of defendants.
Here is the status of the docket as of this morning:
Caution: Live hotlinks are to docs behind the PACER paywall and will result in charges if logged into PACER.
TYPE-D |
U.S. District Court
District of Columbia (Washington, DC)
CIVIL DOCKET FOR CASE #: 1:17-cv-02534-TJK
District of Columbia (Washington, DC)
CIVIL DOCKET FOR CASE #: 1:17-cv-02534-TJK
Date Filed
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#
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Docket Text
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11/26/2017
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COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF (EMERGENCY TEMPORARY RESTRAINING ORDER SOUGHT) against
All Defendants ( Filing fee $ 400 receipt number 0090-5219866) filed by
Leandra English. (Attachments: # 1 Civil
Cover Sheet, # 2 Summons Summons to Donald John Trump,
# 3 Summons Summons to John M. Mulvaney)(Gupta,
Deepak) (Entered: 11/26/2017)
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11/26/2017
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Emergency MOTION for Temporary
Restraining Order by Leandra English (Attachments: # 1 Text
of Proposed Order Proposed Order)(Gupta, Deepak) (Entered: 11/26/2017)
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11/27/2017
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MEMORANDUM re 2 Emergency
MOTION for Temporary Restraining Order filed by Leandra English by
Leandra English. (Gupta, Deepak) (Entered: 11/27/2017)
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11/27/2017
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AFFIDAVIT OF DEEPAK GUPTA
UNDER LOCAL RULE 65.1(B) by Leandra English. (Gupta, Deepak)
(Entered: 11/27/2017)
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11/27/2017
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NOTICE of Appearance by Matthew
Joseph Berns on behalf of All Defendants (Berns, Matthew) (Entered:
11/27/2017)
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11/27/2017
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MINUTE ORDER: The parties shall
appear for a hearing on Plaintiff's 2 Motion
for a Temporary Restraining Order today, November 27, 2017, at 4:30 p.m. in
Courtroom 11. If the parties wish to reschedule the hearing for a later date,
they shall confer and jointly contact chambers today by 3:30 p.m. with a
mutually agreed upon date and time. (lctjk1) (Entered: 11/27/2017)
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11/27/2017
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MOTION for Leave to File Amici
Curiae Brief by SHERROD BROWN, MICHAEL CAPUANO, CATHERINE CORTEZ
MASTO, CHARLIE CRIST, John K. Delaney, KEITH ELLISON, Bill Foster, BARNEY
FRANK, Denny Heck, Jim Himes, Ruben J. Kihuen, Dan Kildee, Carolyn B.
Maloney, Bob Menendez, Gwen S. Moore, NANCY PELOSI, Brian Schatz, CHARLES E.
SCHUMER, BRAD SHERMAN, CHRIS VAN HOLLEN, Juan Vargas, ELIZABETH WARREN,
MAXINE WATERS, STENY HOYER, NYDIA VELAZQUEZ, Vicente Gonzalez (Attachments:
# 1 Exhibit Proposed Amici Curiae Brief,
# 2 Exhibit Proposed Order)(Gorod, Brianne)
(Entered: 11/27/2017)
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11/27/2017
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11/27/2017
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Minute Entry for proceedings held
before Judge Timothy J. Kelly: Motion Hearing held on 11/27/2017 re 2 Emergency
MOTION for Temporary Restraining Order filed by LEANDRA ENGLISH. Oral
arguments heard and taken under advisement. (Court Reporter: Timothy Miller)
(kh) (Entered: 11/27/2017)
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11/27/2017
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NOTICE of Appearance by Benjamin
Thomas Takemoto on behalf of All Defendants (Takemoto, Benjamin) (Entered:
11/27/2017)
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11/27/2017
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MINUTE ORDER: It is hereby ORDERED
that any opposition to the 6 Motion
for Leave to File Amici Curiae Brief shall be filed by tomorrow, November 28,
2017, at 10:00 a.m. Signed by Judge Timothy J. Kelly on 11/27/2017. (lctjk1)
(Entered: 11/27/2017)
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11/27/2017
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Memorandum in opposition to
re 2 Emergency MOTION for Temporary
Restraining Order filed by JOHN MICHAEL MULVANEY, DONALD JOHN TRUMP.
(Takemoto, Benjamin) (Entered: 11/27/2017)
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11/27/2017
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AMICUS BRIEF by SHERROD BROWN,
MICHAEL CAPUANO, CATHERINE CORTEZ MASTO, CHARLIE CRIST, JOHN K. DELANEY,
KEITH ELLISON, BILL FOSTER, BARNEY FRANK, VICENTE GONZALEZ, DENNY HECK, JIM
HIMES, STENY HOYER, RUBEN J. KIHUEN, DAN KILDEE, CAROLYN B. MALONEY, BOB
MENENDEZ, GWEN S. MOORE, NANCY PELOSI, BRIAN SCHATZ, CHARLES E. SCHUMER, BRAD
SHERMAN, CHRIS VAN HOLLEN, JUAN VARGAS, NYDIA VELAZQUEZ, ELIZABETH WARREN,
MAXINE WATERS. (jf) (Entered: 11/29/2017)
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11/28/2017
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MINUTE ORDER granting, for good
cause shown, the 6 Motion for Leave to File Amici Curiae
Brief. It is hereby ORDERED that the amici curiae brief (ECF No. 6-1) shall
be deemed filed as of November 27, 2017. Signed by Judge Timothy J. Kelly on
11/28/2017. (lctjk1) (Entered: 11/28/2017)
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11/28/2017
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MINUTE ORDER: The parties shall
appear for a further hearing on the 2 Motion
for Temporary Restraining Order today, November 28, 2017, at 4:00 p.m in
Courtroom 11. Signed by Judge Timothy J. Kelly on 11/28/2017. (lctjk1)
(Entered: 11/28/2017)
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11/28/2017
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NOTICE of Appearance by Scott A.
Keller on behalf of STATE OF TEXAS (Keller, Scott) (Entered: 11/28/2017)
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11/28/2017
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11/28/2017
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MOTION Plaintiff's Scheduling
Request by LEANDRA ENGLISH (Gupta, Deepak) (Entered: 11/28/2017)
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11/28/2017
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Minute Order and Entry for
Proceedings held before Judge Timothy J. Kelly: Motion Hearing held on
11/28/2017. Emergency MOTION for Temporary Restraining Order filed by Leandra
English 2 DENIED for reasons stated on the record.
(Court Reporter: Timothy Miller) (kh) (Entered: 11/28/2017)
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11/29/2017
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MINUTE ORDER: In light of the
Court's ruling on Plaintiff's 2 Emergency
Motion for Temporary Restraining Order, it is hereby ORDERED that the 11 Motion
for Leave to File Amici Curiae Brief is DENIED AS MOOT, without prejudice to
re-filing for leave to file a brief with respect to the merits or any
additional motions for injunctive relief. Signed by Judge Timothy J. Kelly on
11/29/2017. (lctjk1) (Entered: 11/29/2017)
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11/29/2017
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MINUTE ORDER: For reasons stated
on the record at the hearing on November 28, 2017, Plaintiff's 12 Motion
to treat her emergency Motion for a Temporary Restraining Order as a Motion
for a Preliminary Injunction is DENIED. To the extent that the Motion
requests that the Court enter a briefing schedule on the merits, the Motion
is DENIED without prejudice. The parties shall meet and confer, and submit,
by December 1, 2017, a joint proposed schedule for briefing the merits and/or
for briefing a preliminary injunction, should one be filed by Plaintiff by
then. If the parties cannot agree on a joint proposed schedule, they shall
submit separate proposed schedules. Signed by Judge Timothy J. Kelly on
11/29/2017. (lctjk1) (Entered: 11/29/2017)
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11/29/2017
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Set/Reset Deadlines: Joint
Proposed Briefing Schedule due by 12/1/2017. (kh) (Entered: 11/29/2017)
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ENGLISH v. TRUMP et al Assigned to: Judge Timothy J. Kelly Cause: 28:2201 Declaratory Judgment | Date Filed: 11/26/2017 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant |
Plaintiff
| ||
LEANDRA ENGLISH
Deputy Director and Acting Director, Consumer Financial Protection Bureau |
represented by
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Deepak Gupta
GUPTA WESSLER PLLC 1900 L Sreet, NW Suite 312 Washington, DC 20036 (202) 888-1741 Email: deepak@guptawessler.com ATTORNEY TO BE NOTICED |
V. | ||
Defendant
| ||
DONALD JOHN TRUMP
in his official capacity as President of the United States of America |
represented by
|
Matthew Joseph Berns
U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530 (202) 616-8016 Fax: (202) 616-8470 Email: matthew.j.berns@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Benjamin Thomas Takemoto U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave. NW Rm. 7109 Washington, DC 20530 (202) 532-4252 Fax: (202) 616-8470 Email: benjamin.takemoto@usdoj.gov ATTORNEY TO BE NOTICED |
Defendant
| ||
JOHN MICHAEL MULVANEY
in his capacity as the person claiming to be Acting Director of the Consumer Financial Protection Bureau |
represented by
|
Matthew Joseph Berns
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Benjamin Thomas Takemoto (See above for address) ATTORNEY TO BE NOTICED |
Movant
| ||
STATE OF TEXAS
|
represented by
|
Scott A. Keller
OFFICE OF THE TEXAS ATTORNEY GENERAL PO Box 12548 (MC 059) Austin, TX 78711-2548 (512) 936-1700 Fax: (512) 474-2697 Email: scott.keller@oag.texas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED |
Amicus
| ||
SHERROD BROWN
|
represented by
|
Brianne Jenna Gorod
CONSTITUTIONAL ACCOUNTABILITY CENTER 1200 18th Street, NW Suite 501 Washington, DC 20036 (202) 296-6889 ext. 304 Email: brianne@theusconstitution.org LEAD ATTORNEY ATTORNEY TO BE NOTICED |
Amicus
| ||
MICHAEL CAPUANO
|
represented by
|
Brianne Jenna Gorod
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED |
Amicus
| ||
CATHERINE CORTEZ MASTO
|
represented by
|
Brianne Jenna Gorod
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED |
Amicus
| ||
CHARLIE CRIST
|
represented by
|
Brianne Jenna Gorod
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED |
Amicus
| ||
JOHN K. DELANEY
|
represented by
|
Brianne Jenna Gorod
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED |
Amicus
| ||
KEITH ELLISON
|
represented by
|
Brianne Jenna Gorod
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED |
Amicus
| ||
BILL FOSTER
|
represented by
|
Brianne Jenna Gorod
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED |
Amicus
| ||
BARNEY FRANK
|
represented by
|
Brianne Jenna Gorod
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED |
Amicus
| ||
DENNY HECK
|
represented by
|
Brianne Jenna Gorod
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED |
Amicus
| ||
JIM HIMES
|
represented by
|
Brianne Jenna Gorod
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED |
Amicus
| ||
RUBEN J. KIHUEN
|
represented by
|
Brianne Jenna Gorod
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED |
Amicus
| ||
DAN KILDEE
|
represented by
|
Brianne Jenna Gorod
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED |
Amicus
| ||
CAROLYN B. MALONEY
|
represented by
|
Brianne Jenna Gorod
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED |
Amicus
| ||
BOB MENENDEZ
|
represented by
|
Brianne Jenna Gorod
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED |
Amicus
| ||
GWEN S. MOORE
|
represented by
|
Brianne Jenna Gorod
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED |
Amicus
| ||
NANCY PELOSI
|
represented by
|
Brianne Jenna Gorod
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED |
Amicus
| ||
BRIAN SCHATZ
|
represented by
|
Brianne Jenna Gorod
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED |
Amicus
| ||
CHARLES E. SCHUMER
|
represented by
|
Brianne Jenna Gorod
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED |
Amicus
| ||
BRAD SHERMAN
|
represented by
|
Brianne Jenna Gorod
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED |
Amicus
| ||
CHRIS VAN HOLLEN
|
represented by
|
Brianne Jenna Gorod
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED |
Amicus
| ||
JUAN VARGAS
|
represented by
|
Brianne Jenna Gorod
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED |
Amicus
| ||
ELIZABETH WARREN
|
represented by
|
Brianne Jenna Gorod
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED |
Amicus
| ||
MAXINE WATERS
|
represented by
|
Brianne Jenna Gorod
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED |
Amicus
| ||
STENY HOYER
|
represented by
|
Brianne Jenna Gorod
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED |
Amicus
| ||
NYDIA VELAZQUEZ
|
represented by
|
Brianne Jenna Gorod
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED |
Amicus
| ||
VICENTE GONZALEZ
|
represented by
|
Brianne Jenna Gorod
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED |
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