Wednesday, November 29, 2017

Friend of the Court from Texas: Ken Paxton's bid to join the fight over CFPB leadership temporarily rebuffed

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


Date Filed
#
Docket Text
11/26/2017
1 
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)
11/26/2017
2 
Emergency MOTION for Temporary Restraining Order by Leandra English (Attachments: # 1 Text of Proposed Order Proposed Order)(Gupta, Deepak) (Entered: 11/26/2017)
11/27/2017
3 
MEMORANDUM re 2 Emergency MOTION for Temporary Restraining Order filed by Leandra English by Leandra English. (Gupta, Deepak) (Entered: 11/27/2017)
11/27/2017
4 
AFFIDAVIT OF DEEPAK GUPTA UNDER LOCAL RULE 65.1(B) by Leandra English. (Gupta, Deepak) (Entered: 11/27/2017)
11/27/2017
5 
NOTICE of Appearance by Matthew Joseph Berns on behalf of All Defendants (Berns, Matthew) (Entered: 11/27/2017)
11/27/2017

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)
11/27/2017
6 
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)
11/27/2017
7 
ERRATA by LEANDRA ENGLISH. (Attachments: # 1 Corrected Complaint, # 2 Corrected Motion and Memorandum for Temporary Restraining Order)(Gupta, Deepak) (Entered: 11/27/2017)
11/27/2017

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)
11/27/2017
8 
NOTICE of Appearance by Benjamin Thomas Takemoto on behalf of All Defendants (Takemoto, Benjamin) (Entered: 11/27/2017)
11/27/2017

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)
11/27/2017
9 
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)
11/27/2017
13 
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)
11/28/2017

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)
11/28/2017

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)
11/28/2017
10 
NOTICE of Appearance by Scott A. Keller on behalf of STATE OF TEXAS (Keller, Scott) (Entered: 11/28/2017)
11/28/2017
11 
MOTION for Leave to File Brief of Amici Curiae by STATE OF TEXAS (Attachments: # 1 Exhibit Proposed Brief of Texas et al., # 2 Text of Proposed Order)(Keller, Scott) (Entered: 11/28/2017)
11/28/2017
12 
MOTION Plaintiff's Scheduling Request by LEANDRA ENGLISH (Gupta, Deepak) (Entered: 11/28/2017)
11/28/2017

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)
11/29/2017

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)
11/29/2017

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)
11/29/2017

Set/Reset Deadlines: Joint Proposed Briefing Schedule due by 12/1/2017. (kh) (Entered: 11/29/2017)



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
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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