Jon Hill: DC Circ. Judges Skeptical Of Blockade On CFPB Mass Layoffs

Here, in Law360. Judges Rao and Katsas, both Trump appointees, expressed concerns about whether the administration had taken final action, required for court review under § 704 of the APA, and what an injunction requiring the Bureau to fulfill its statutory mandate would look like. The third judge, Judge Pillard, an Obama appointee, seemed less concerned about those issues. On the final action issue, Jen Bennett, arguing for the plaintiffs, noted that they had not yet had discovery and so had access only to communications the administration chose to make available or that employees had received and provided to the plaintiffs. In other words, final action might be reflected in something the plaintiffs had not yet seen. Because an administration trying to shutter an agency and knowing that only final action is subject to court review could evade court review simply by not reflecting that decision in documents to which their adversary has access, it seems to me that the court should conclude that there is sufficient evidence of final action here to allow the case to go forward. Certainly the administration, including President Trump (an important thing to get rid of) and Elon Musk (RIP CFPB), has made many statements indicating a decision to close the CFPB. I hope Judges Rao and Katsas can rise above the politics of the moment to issue a ruling that makes sense no matter which party controls the White House.