Judge Timothy J. Kelly has been assigned to hear arguments in the legal battle over who the lawful acting director of the consumer watchdog Consumer Financial Protection Bureau is.
Leandra English was appointed as deputy director by outgoing CFPB Director Richard Cordray and is arguing that she is legally the acting director of the bureau. The Trump administration and its attorneys say the president has the right to appoint an interim director, and therefore his appointee, Mick Mulvaney, is legally in charge of the bureau. English filed a temporary restraining order in Washington, D.C. district court Sunday night.
Kelly, 48, was appointed to the federal bench by President Donald Trump and approved by the Senate earlier this year.
Here’s what you need to know:
1. Judge Kelly Was Assigned the CFPB Case Monday & Scheduled an Afternoon Hearing
Judge Timothy J. Kelly was assigned the case brought by Leandra English against President Trump and Mick Mulvaney on Monday. He set a 4:30 p.m. hearing on the temporary restraining order arguments.
The legal battle began when Richard Cordray stepped down from his position on Friday and named English as his temporary successor, according to the Washington Post. Shortly after Cordray’s resignation, Trump announced Mulvaney, who is also the head of the Office of Management and Budget and a fierce critic of the CFPB, as the acting director. English filed the lawsuit Sunday night in an effort to prevent Mulvaney from beginning his work in the new role. In the lawsuit, English’s attorneys listed her as “Deputy Director and Acting Director” and Mulvaney as “the person claiming to be the acting director of the CFPB.” You can read the complaint filed by English below:
English cites the Dodd-Frank Act, which created the CFPB in 2010, and says that when Richard Cordray’s resignation as CPPB director became official at midnight on Nov. 24, English, formerly the CFPB’s Deputy Director, became the agency’s acting director as mandated by Dodd-Frank, which says that the Deputy Director “shall … serve as the acting Director in the absence or unavailability of the Director,” and that the Deputy Director shall serve as acting director until the president appoints a new director, and the Senate confirms it.
After quoting or paraphrasing the relevant portions of Dodd-Frank, English’s suit goes on to say:
Disregarding this statutory language, President Trump issued a press release on the evening of November 24 indicating his desire to install defendant Mulvaney, the Director of the White House Office of Management and Budget, as the Bureau’s Acting Director. Under this scenario, Mr. Mulvaney would seek to serve indefinitely as the interim head of a statutorily “independent” agency while simultaneously occupying his current White House post.
The suit later requests “a temporary restraining order to prevent the defendants from appointing, causing the appointment of, recognizing the appointment of, or acting on the appointment of an Acting Director of the Consumer Financial Protection Bureau via any mechanism other than that provided for by” current law.
Mulvaney did show up for work Monday, bringing coffee and donuts. He later issued a statement saying he has ordered a 30-day hiring freeze and a delay of rule-making, and said he is working to learn more about his role with the bureau.
English, meanwhile, sent an email to the 1,600 CFPB staffers, saying, “I hope that everyone had a great Thanksgiving. With Thanksgiving in mind, I wanted to take a moment to share my gratitude to all of you for your service,” and signing it, “Acting Director,” according to the Washington Post.
Mulvaney responded with an email of his own:
It has come to my attention that Ms. English has reached out to many of you this morning via email in an attempt to exercise certain duties of the Acting Director. This is unfortunate but, in the atmosphere of the day, probably not unexpected.
Please disregard any instructions you receive from Ms. English in her presumed capacity as acting director.” Mulvaney also asked CFPB employees to report any additional professional communications from English to the general counsel’s office.
I apologize for this being the very first thing you hear from me. However, under the circumstances I suppose it is necessary. If you’re at 1700 G Street today, please stop by the fourth floor to say hello and grab a doughnut.
In a statement, White House Press Secretary Sarah Huckabee Sanders said, “The Administration is aware of the suit filed this evening by Deputy Director English. However the law is clear: Director Mulvaney is the Acting Director of the CFPB. Now that the CFPBs own General Counsel who was hired under Richard Cordray has notified the Bureaus leadership that she agrees with the Administrations and DOJs reading of the law, there should be no question that Director Mulvaney is the Acting Director. It is unfortunate that Mr. Cordray decided to put his political ambition above the interests of consumers with this stunt. Director Mulvaney will bring a more serious and professional approach to running the CFPB.”
2. He Was Appointed to the Bench by President Trump in June & Approved by the Senate by a 94-2 Vote
Judge Timothy Kelly was nominated to fill a seat on the D.C. District Court in June, according to a White House press release.
He was then confirmed by the Senate by a 94-2 vote in September 2017. Democratic Senators Elizabeth Warren and Kirsten Gillibrand were the no votes. Warren helped craft the legislation that led to the CFPB and met with Leandra English on Monday. She has said she supports English’s legal argument that she is the rightful acting director of the bureau, according to Reuters.
Kelly has an unusually well-rounded resume for a federal district court position. Having worked in private practice, as a federal prosecutor, and in the legislative process, Kelly will approach the bench with a broad array of legal experience. Furthermore, Kelly also has experience working with indigent clients, as he spent a year representing low income residents of Washington D.C. in cases involving public benefits, landlord-tenant, and family law.
It must also be noted that Kelly’s pre-law school experience is relatively rare for a federal judicial nominee. Of the nominees we have reviewed, Kelly is the first to have worked two jobs simultaneously, the first to have worked in the service industry, and the first to report having received federal financial aid. Given the privileged pedigrees of many nominees, Kelly’s background is refreshingly different.
Kelly was questioned by Democrat Senator Dick Durbin about his membership to the Federalist Society, which he has been a member of since 2009.
“Whatever personal views I hold would not be relevant to my position as a district judge,
should I be fortunate enough to be confirmed. In any event, I have not understood the
Federalist Society to espouse views on specific legal issues; rather, it provides a forum for open debate. According to its website, the Federalist Society was ‘founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.’ These appear to be commonly accepted principles,” he wrote in response.
3. Kelly Previously Served as a Top Aide to Senator Chuck Grassley Who Called Him a ‘Talented Attorney’ Who Is ‘Well-Liked by Staff & Members on Both Sides’
Before being appointed as a judge, Kelly was a top aide to Senator Chuck Grassley, an Iowa Republican who is the chairman of the Judiciary Committee. He worked as the chief counsel for national security and senior crime counsel for the senator.
“Tim is a very talented attorney and is well-liked by staff and members on both sides of the aisle,” Grassley said on the Senate floor before the vote, according to Courthouse News. “His collegiality and ability to get along with folks will serve him well on the bench.”
Kelly began working for Grassley in 2013, according to his Senate questionnaire.
During his vetting process, Democrat Senator Sheldon Whitehouse asked Kelly about how his work with the Senate Judiciary Committee changed his view of proper judicial behavior, to which he responded:
I do not think my work on the Senate Judiciary Committee has had a major impact on my view of proper judicial behavior. If I am fortunate enough to be confirmed, my role as a district judge would not permit me to make federal law in any way, but would instead require me to faithfully interpret and apply federal law passed by Congress to cases and controversies before me. Given my observation of the careful consideration that is given to the text of a bill that becomes law, my work here has underscored for me the importance of a judge focusing on the text when interpreting a statute passed by Congress.
Whitehouse further asked if his approach on the bench would be different from during his time working with Grassley and the judicial committee:
Should I be fortunate enough to be confirmed, my work as a district judge would be dramatically different than my present work as a staff member for the Chairman on the Senate Judiciary Committee. In my current position, I play a small role in assisting the Chairman and other members of the committee write federal law. My role as a district judge would not permit me to make federal law in any way, but would instead require me to faithfully interpret and apply federal law passed by Congress to cases and controversies before me.
4. He Graduated From Duke & Georgetown Law Before Working in Private Practice & as a Federal Prosecutor
Kelly was born in 1969 in Glen Cove, New York. He graduated from Delbarton School in Morristown, New Jersey, in 1987, according to the school’s website. He then graduated from Duke University in 1991 and then went on to Georgetown law school, graduating in 1997 according to his White House biography. He was the senior associate editor of the American Criminal Law Review.
Prior to working in the Senate, Kelly was an attorney in private practice and as a federal prosecutor. He spent several years as a civil litigator at Arnold & Porter, according to the White House.
“Kelly spent a decade as a Federal prosecutor, serving first as an Assistant United States Attorney in the District of Columbia and then as a trial attorney in the Public Integrity Section of the Department of Justice’s Criminal Division,” the White House said.
According to his Senate questionnaire, Kelly was an assistant U.S. Attorney in D.C. from 2003 to 2007 and then worked for the Public Integrity Section from 2007 to 2013.
According to The Vetting Room, Kelly worked on misdemeanor, violent crime and white collar offenses as an AUSA. His work with the Public Integrity Section was more notable, The Vetting Room found:
At the Public Integrity Section, Kelly focused on the investigation and prosecution of political corruption. Kelly prosecuted Eugenio Pedraza, Special Agent-in-Charge for the Department of Homeland Security, who conspired with fellow agents to falsify investigative reports. Kelly also successfully prosecuted Donna Scott for steering Department of Energy contracts to her husband. Notably, Kelly successfully prosecuted the Lt. Governor of the American Samoa, and a senator in the American Samoa legislature for public corruption.
In 2010, Kelly was part of the legal team prosecuting former CIA agent Jeffrey Sterling for his unauthorized disclosure of classified information to journalist James Risen. Before Sterling’s trial, the prosecution missed a discovery deadline imposed by Judge Leonie Brinkema, submitting key impeachment evidence one day late. Judge Brinkema sanctioned Kelly and the other government attorneys for the missed deadline by striking two government witnesses. The Fourth Circuit, in a 2-1 decision, overturned this sanction as an abuse of discretion, noting that the government conduct was not made in bad faith. Nevertheless, the majority opinion noted that it cannot “condone the Government’s oversight.”
Previously, Kelly was a law clerk and then associate at Arthur & Porter in D.C. from 1995 to 2003. According to The Vetting Room, his work there was “focused on defending pharmaceutical companies against product liability lawsuits. Kelly served on the legal team defending American Home Products Corp. (Wyeth) in tort lawsuits relating to their sale of diet drugs. The team ultimately reached a national settlement over the claims during simultaneous state court trials in Mississippi and New Jersey.”
He also clerked for Judge Ronald L. Buckwalter on the United States District Court for the Eastern District of Pennsylvania from 2001 to 2002.
5. Kelly Lives in D.C. With His Wife, Who Works the City’s Department of Human Services & Their 2 Young Daughters
Judge Timothy Kelly lives in Washington, D.C. with his wife, Sharon Kershbaum, and their two young daughters, Harper, 9, and Quinn, 5. They have been married since 2005.
Kershbaum works as the chief operating officer for D.C.’s Department of Human Services, according to her Linkedin profile. In his Senate questionnaire, Kelly said his wife’s office “provides federal benefit eligibility determination and enrollment services for D.C. residents, as well as services for residents experiencing homelessness.” He said if a matter related to the department comes before the District Court in D.C., he would self-recuse himself from the case.
She is a graduated of the University of Pennsylvania and also has a master’s degree from Penn’s Wharton School. Along with her work in Mayor Muriel Bowser’s administration, Kershbaum was the deputy budget director for the city of Philadelphia from 2000 to 2004. She also worked for Fannie Mae from 2004 to 2007 as a director/chief of staff, and then returned to government, working from 2007 to 2010 as CapStat Program Manager and assistant director of contracting and procurement in D.C. and then at the U.S. Treasury as director of department offices operations and deputy assistant secretary for management and budget from 2012 to 2015.
Kelly has belonged to St. Peter’s Catholic Church on Capitol Hill since 2013, according to his questionnaire and has been a part of the Interfaith Families Project of Washington, D.C., since 2007.
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