On November 24, the plaintiffs in National Treasury Employees Union (NTEU) v. Consumer Financial Protection Bureau (CFPB or Bureau) filed a motion to clarify the existing injunction, asking the court to confirm that the CFPB may not justify noncompliance by declining to request funds from the Federal Reserve Board (Fed) and that “combined earnings” under 12 U.S.C. § 5497(a)(1) refers to the Federal Reserve System’s total earnings, not a net figure reduced by interest expense. In response, Judge Amy Berman Jackson issued a minute order directing the parties to file submissions by November 26 identifying which provisions of the preliminary injunction they believe remain in force and addressing the court’s authority to enforce those provisions in light of the D.C. Circuit’s August 15 opinion and the pending petition for rehearing en banc.
What the motion to clarify argues
The motion squarely targets the CFPB’s position advanced in a U.S. Department of Justice (DOJ) notice and the Office of Legal Counsel (OLC) opinion (discussed here) that the Bureau’s primary statutory funding stream is unavailable while the Federal Reserve is operating at a loss. The plaintiffs contend the statutory text, structure, and history confirm that “combined earnings” means the gross earnings of the Federal Reserve System, from which the Fed “shall transfer” amounts reasonably necessary for the Bureau to carry out its authorities up to the statutory cap. On that reading, the plaintiffs argue that the Bureau cannot precipitate a funding lapse by declining to request transfers, and the Antideficiency Act cannot excuse compliance with the injunction when the statutory funding mechanism remains available.
By contrast, the OLC interprets “combined earnings” as profits, revenue net of interest expense, and concludes there are currently no funds from which the CFPB may lawfully draw. That view, reflected in DOJ’s notice, projects a potential funding lapse in early 2026 and frames any continued operations after existing balances are exhausted as constrained by the Antideficiency Act. The motion to clarify asks the court to reject that interpretation for purposes of enforcing the injunction.
Status of the litigation
As discussed here, on August 15, the U.S. Court of Appeals for the District of Columbia vacated the district court’s preliminary injunction, which had previously restricted the CFPB’s actions to halt the Bureau’s operations and terminate its employees. The D.C. Circuit found that the district court lacked jurisdiction over claims related to employment loss, which must be addressed through the Civil Service Reform Act’s specialized review scheme. Furthermore, the court determined that the remaining claims did not target final agency action reviewable under the Administrative Procedure Act or unconstitutional action reviewable in equity. Currently, there is a pending motion for rehearing en banc.
Judge Jackson’s November 24 minute order underscores that the district court remains engaged in managing the injunction while the appellate landscape is in flux. By requiring the parties to identify which provisions remain operative and to brief the court’s enforcement authority in light of the D.C. Circuit’s decision and the pending rehearing petition, the court has set an expedited schedule that will determine, in the near term, how the injunction functions and whether defendants must continue affirmative steps, including requesting funds, to comply. Meanwhile, the D.C. Circuit could decide the petition for rehearing en banc at any time.
We will continue to monitor this litigation and provide updates.
