On December 5, former Fed officials moved for leave to file a brief as amici curiae in the U.S. District Court for the District of Columbia in support of the CFPB union’s motion to clarify the term “combined earnings” as recently addressed by the DOJ’s Office of Legal Counsel (OLC). The meaning of the term has been a central part of ongoing litigation between the union representing CFPB employees and the Trump administration concerning the administration’s plans for the agency, as the CFPB is funded exclusively from the “combined earnings” of the Federal Reserve System. “Combined earnings” has been interpreted by the OLC as something akin to “profit” while plaintiffs have interpreted the term as “revenue.” As previously covered by InfoBytes, the Trump administration averred the Bureau may not legally request funds from the Fed since the Fed currently lacks any “combined earnings,” or profits as they contend, from which the CFPB may draw, as required by statute.

The amici curiae brief contests OLC’s interpretation of the term “combined earnings,” and argues that, as a factual matter, the Fed currently has “combined earnings” even under the OLC’s interpretation.

In a December 10 minute order, the judge granted the motion for leave to file the amicus brief, holding that the matters addressed in the proposed brief were “directly relevant” to the disposition of the pending motion to clarify, and that the amici bring specialized knowledge and experience to the court.

Meanwhile, on December 8, the DOJ on behalf of the acting director of the CFPB responded to the plaintiffs’ motion to clarify, stating that the Court cannot issue what they argue amounts to a new injunction while the government’s appeal is still pending and defending OLC’s interpretation on the merits. The court has not ruled on the motion to clarify nor requested argument.