English or Mulvaney at the CFPB? Time for quo warranto!

Office of Management and Budget Director Mick Mulvaney. (Jabin Botsford/The Washington Post)

Who is the acting director of the Consumer Financial Protection Bureau? That might seem to be a straightforward question, along the lines of "Who was buried in Grant's Tomb?" It is instead a matter of hot debate. This post is not about who the acting director is, but about how the question could be decided. Many people assume that we would have to wait until some regulatory action is taken (either by Leandra English or Mick Mulvaney), which could then be challenged on the basis of invalid appointment. Other commentators have suggested that if one claimant isn't paid a salary, there could be a suit for the lost wages.

Enter the writ of quo warranto. This is an old prerogative writ that "came to be used as a means of determining which of two claimants was entitled to an office." Newman v. United States ex rel. Frizzell, 238 U.S. 537, 544 (1915). What the writ of quo warranto does is allow immediate action on the question of who holds the office, without waiting for any regulatory moves.

The common law of quo warranto is modified by statute for the District of Columbia:

D.C. Code Ann. § 16-3501. Persons against whom issued; civil action. A quo warranto may be issued from the United States District Court for the District of Columbia in the name of the United States against a person who within the District of Columbia usurps, intrudes into, or unlawfully holds or exercises, a franchise conferred by the United States or a public office of the United States, civil or military. The proceedings shall be deemed a civil action.

D.C. Code Ann. § 16-3502. Parties who may institute; ex rel. proceedings. The Attorney General of the United States or the United States attorney may institute a proceeding pursuant to this subchapter on his own motion or on the relation of a third person. The writ may not be issued on the relation of a third person except by leave of the court, to be applied for by the relator, by a petition duly verified setting forth the grounds of the application, or until the relator files a bond with sufficient surety, to be approved by the clerk of the court, in such penalty as the court prescribes, conditioned on the payment by him of all costs incurred in the prosecution of the writ if costs are not recovered from and paid by the defendant.

The bottom line: the question could be resolved through a quo warranto action brought by Attorney General Jeff Sessions or U.S. Attorney Jessie K. Liu. There is no need to wait, as some commentators have surmised, for one of the two claimants to take some official action that could be challenged in court.

A few other brief notes about quo warranto:

1. A recent case applying these provisions is Taitz v. Obama, 707 F. Supp. 2d 1 (D.D.C. 2010).
2. Federal Rule of Civil Procedure 81(a)(4) recognizes quo warranto.
3. The writ of quo warranto is "legal" not "equitable." One implication is that there have occasionally been jury trials on factual questions in quo warranto actions (e.g., Newman v. United States ex rel. Frizzell, 238 U.S. 537 (1915)). Another implication is that there are cases saying that when statutory restrictions make the writ unavailable, a court can issue an injunction—because the plaintiff would have "no adequate remedy at law." See Andrade v. Lauer, 729 F.2d 1475, 1498 (D.C. Cir. 1984) ("This court has held that equity will not be barred from issuing an injunction to restrain invalidly appointed officers if the alternative remedy of quo warranto is inadequate.").