(Slip Opinion)
Designating an Acting Director of the
Federal Housing Finance Agency
In designating an Acting Director of the Federal Housing Finance Agency, the President
may choose either an incumbent Deputy Director under 12 U.S.C. § 4512(f ), the
vacancy statute that applies specifically to the office of the Director, or someone who
is made eligible to be an acting officer by the Vacancies Reform Act of 1998. Under
the latter, the President may select the Senate-confirmed Comptroller of the Currency.
March 18, 2019
MEMORANDUM OPINION FOR THE
DEPUTY COUNSEL TO THE PRESIDENT
On December 18, 2018, the Director of the Federal Housing Finance
Agency (“FHFA”) sent the President a letter of resignation, “effective at
midnight on January 6, 2019.” Two days later, the President announced
his intention to designate the Comptroller of the Currency as FHFA’s
Acting Director. 1 This Office had previously advised that the President
could invoke the Vacancies Reform Act of 1998, 5 U.S.C. §§ 3345−3349d,
to make that designation upon the resignation of the incumbent Director.
This memorandum explains the basis for that advice, which is consistent
with several previous opinions of this Office.
The Vacancies Reform Act provides the President with authority “for
temporarily authorizing an acting official to perform the functions and
duties” of an officer of an “Executive agency” whose appointment, like
that of the FHFA Director, “is required to be made by the President, by
and with the advice and consent of the Senate.” 5 U.S.C. § 3347(a). The
Vacancies Reform Act is the “exclusive means” for authorizing acting
service in most such positions “unless” another statute expressly desig-
nates an officer to serve in an acting capacity or expressly authorizes the
President, a court, or an agency head to designate an acting officer. Id.
(emphasis added). In the case of a vacancy in the office of the FHFA
Director, another statute does allow the President to select an Acting
Director from among three Deputy Directors appointed by the Director.
See 12 U.S.C. § 4512(f ).
1 See President Donald J. Trump Announces Intent to Designate Individual to a Key
Administration Post (Dec. 20, 2018), www.whitehouse.gov/presidential-actions/president-
donald-j-trump-announces-intent-designate-individual-key-administration-post-2/.
1
Opinions of the Office of Legal Counsel in Volume 43
This Office has repeatedly concluded that the Vacancies Reform Act
still applies to an executive office, including that of an agency head, when
another office-specific statute would enable someone else to serve as
the acting officer. The federal courts have consistently agreed that, in
such a circumstance, the President may choose between the office-specific
statute and the Vacancies Reform Act when designating an acting officer.
We therefore advised that the President could invoke the Vacancies
Reform Act to designate an Acting Director of FHFA and, in doing so,
could select a Senate-confirmed officer, such as the Comptroller of the
Currency. See 5 U.S.C. § 3345(a)(2).
I.
In the Housing and Economic Recovery Act of 2008 (“HERA”), Con-
gress established FHFA as “an independent agency of the Federal Gov-
ernment” and charged it with supervising and regulating the following
mortgage-financing institutions: the Federal National Mortgage Associa-
tion (known as “Fannie Mae”) and its affiliates; the Federal Home Loan
Mortgage Corporation (known as “Freddie Mac”) and its affiliates; the
Federal Home Loan Banks; and the Office of Finance of the Federal
Home Loan Bank System. See 12 U.S.C. § 4511(a)−(b). The Director of
FHFA is “the head of the Agency,” id. § 4512(a), and is appointed for a
five-year term by the President with the Senate’s advice and consent, id.
§ 4512(b)(1)−(2). An incumbent Director may also continue to “serve as
the Director after the expiration of the term for which appointed until a
successor has been appointed.” Id. § 4512(b)(4). The FHFA Director is
authorized to appoint three deputies: the Deputy Director of the Division
of Enterprise Regulation, the Deputy Director of the Division of Federal
Home Loan Bank Regulation, and the Deputy Director for Housing Mis-
sion and Goals. Id. § 4512(c)−(e).
The five-year term of FHFA Director Melvin L. Watt expired on Janu-
ary 6, 2019, and he chose to resign rather than hold over until his succes-
sor could be appointed. See Letter for the President from Melvin L. Watt,
Director, FHFA (Dec. 18, 2018).
II.
Director Watt’s resignation implicated two different statutes, each po-
tentially available for naming an Acting Director of FHFA. First, HERA
provides that, “[i]n the event of the death, resignation, sickness, or ab-
2
Designating an Acting Director of FHFA
sence of the Director, the President shall designate [one of FHFA’s three
Deputy Directors] to serve as acting Director until the return of the Direc-
tor, or the appointment of a successor.” 12 U.S.C. § 4512(f ). Second, the
Vacancies Reform Act applies to the vast majority of Senate-confirmed
offices in the Executive Branch. See 5 U.S.C. §§ 3345(a), 3349c. It is
triggered when an officer “dies, resigns, or is otherwise unable to perform
the functions and duties of the office,” id. § 3345(a), and it permits the
President to designate, as acting officers, certain executive officials,
including those who already hold “office[s] for which appointment is
required to be made by the President, by and with the advice and consent
of the Senate,” id. § 3345(a)(2). 2
Rather than select one of the incumbent Deputy Directors under section
4512(f ), the President sought to designate Joseph M. Otting, the Comp-
troller of the Currency, to act as FHFA Director upon Director Watt’s
resignation. Because the Comptroller of the Currency is appointed after
Senate confirmation, see 12 U.S.C. § 2, the President could designate
Mr. Otting if the Vacancies Reform Act were available. Accordingly, we
considered whether the President could use that statute or whether section
4512(f ) provides the exclusive means for designating an Acting Director
of FHFA. 3 Consistent with our previous opinions about materially similar
offices, we concluded and advised that the President may use the Vacan-
cies Reform Act to designate an Acting Director of FHFA.
2 Director Watt created a vacancy by resigning from office. See 5 U.S.C. § 3345(a). If
the Director had sought to hold over after the expiration of his term, the Vacancies
Reform Act would not have been available unless he were removed or otherwise left
office before his successor’s appointment. See id. §§ 3345(a), 3349b. Separately, HERA
provides that a “vacancy in the position of Director that occurs before the expiration of
the term for which a Director was appointed” shall be filled through appointment by the
President with the Senate’s advice and consent. 12 U.S.C. § 4512(b)(3). That provision
does not concern the service of an Acting Director, and it was inapplicable here because
Director Watt’s resignation did not become effective “before the expiration” of his term.
3 Congress has specified that the FHFA Director must “have a demonstrated under-
standing of financial management or oversight, and have a demonstrated understanding of
capital markets, including the mortgage securities markets and housing finance.” 12
U.S.C. § 4512(b)(1). Additionally, the FHFA Director “may not” (1) possess a financial
interest in the entities FHFA regulates or their affiliates; (2) hold any position in such
entities; or (3) have served as an executive officer or director of such entities during the
preceding three years. Id. § 4512(g). We did not address whether an Acting Director must
satisfy these provisions, because, even assuming that they apply, we were informed that
Mr. Otting would satisfy them.
3
Opinions of the Office of Legal Counsel in Volume 43
A.
In four published opinions over the last sixteen years, this Office has
concluded that an office-specific statute designating an individual who
“may” or “shall” assume an office in an acting capacity in the event of a
vacancy did not negate the availability of the Vacancies Reform Act as an
alternative mechanism for naming an acting official.
In 2017, we considered the availability of the Vacancies Reform Act
for designating an Acting Director of the Bureau of Consumer Financial
Protection (“CFPB”), who, like the Director of FHFA, is the single head
of an independent agency created after Congress enacted the Vacancies
Reform Act. The CFPB’s organic statute provides that the CFPB’s Deputy
Director shall “serve as acting Director in the absence or unavailability of
the Director.” 12 U.S.C. § 5491(b)(5). We concluded that “[t]he fact that
the Deputy Director may serve as Acting Director by operation of the
statute . . . does not displace the President’s authority under the Vacancies
Reform Act.” Designating an Acting Director of the Bureau of Consumer
Financial Protection, 41 Op. O.L.C. __, at *2 (Nov. 25, 2017) (“Acting
Director of CFPB ”). We reasoned as follows:
By its terms, section 3347(a) provides that the Vacancies Reform
Act shall be the “exclusive means” of filling vacancies on an acting
basis unless another statute “expressly” provides a mechanism for
acting service. It does not follow, however, that when another statute
applies, the Vacancies Reform Act ceases to be available. To the
contrary, in calling the Vacancies Reform Act the “exclusive means”
for designations “unless” there is another applicable statute, Con-
gress has recognized that there will be cases where the Vacancies
Reform Act is non-exclusive, i.e., one available option, together with
the office-specific statute. If Congress had intended to make the Va-
cancies Reform Act unavailable whenever another statute provided
an alternative mechanism for acting service, then it would have said
so. It would not have provided that the Vacancies Reform Act ceases
to be the “exclusive means” when another statute applies.
Id. at *5−6. We emphasized that, in addition to the provision establishing
that the Vacancies Reform Act will cease to be “exclusive” with respect to
some offices (section 3347(a)), another provision entirely excludes some
offices from the Act. Id. at *10−11 & n.5. The latter provision is entitled
“Exclusion of certain officers,” and it provides that the Act simply “shall
not apply” to certain specified offices (individual members of certain
4
Designating an Acting Director of FHFA
multi-member agencies and Article I judges). 5 U.S.C. § 3349c. The
contrast between those two provisions reinforced our conclusion that
section 3347(a)’s non-exclusivity provision does not preclude the use of
the Vacancies Reform Act when another statute applies to an office but
does not itself purport to be exclusive. See Sebelius v. Cloer,
569 U.S.
369, 378 (2013) (“We have long held that where Congress includes par-
ticular language in one section of a statute but omits it in another section
of the same Act, it is generally presumed that Congress acts intentionally
and purposely in the disparate inclusion or exclusion.”) (internal quotation
marks and brackets omitted).
In Acting Director of CFPB, we observed that the only court of appeals
to address the issue had reached the same result with respect to the Acting
General Counsel of the National Labor Relations Board. See 41 Op.
O.L.C. __, at *6; see also Hooks v. Kitsap Tenant Support Servs., Inc.,
816 F.3d 550, 556 (9th Cir. 2016) (“neither the [Vacancies Reform Act]
nor the [National Labor Relations Act] is the exclusive means of appoint-
ing an Acting General Counsel”; “the President is permitted to elect
between these two statutory alternatives to designate an Acting General
Counsel”). We further noted that two of this Office’s previous opinions
had “recognized that the legislative history confirms this reading of the
Vacancies Reform Act.” Acting Director of CFPB, 41 Op. O.L.C. __, at
*6 (citing Authority of the President to Name an Acting Attorney General,
31 Op. O.L.C. 208, 209 (2007), and Designation of Acting Director of the
Office of Management and Budget,
27 Op. O.L.C. 121, 121 n.1 (2003));
see also S. Rep. No. 105-250, at 17 (1998). The next year, we reached a
similar conclusion with respect to the President’s ability to use the Vacan-
cies Reform Act to designate an Acting Attorney General, notwithstand-
ing an office-specific statute under which the Deputy Attorney General
would have been the Acting Attorney General. See Designating an Acting
Attorney General, 42 Op. O.L.C. __, at *3–8 (Nov. 14, 2018). 4
4 In addition to the instances addressed in our four published opinions, the President
invoked the Vacancies Reform Act on at least two other occasions to designate individu-
als other than those specified in the relevant office-specific statute, even when an official
designated by the office-specific statute was available to serve. See Presidential Designa-
tion of Michael Hager, Assistant Secretary of Veterans Affairs, to serve as Acting Direc-
tor, Office of Personnel Management (Aug. 11, 2008, effective Aug. 14, 2008); Presiden-
tial Designation of Santanu Baruah, Assistant Secretary of Commerce for Economic
Development, to serve as Acting Administrator, Small Business Administration (Aug. 13,
2008, effective Aug. 18, 2008).
5
Opinions of the Office of Legal Counsel in Volume 43
Since our Acting Director of CFPB opinion, several district courts have
agreed that the Vacancies Reform Act remains available for acting desig-
nations, notwithstanding the simultaneous applicability of office-specific
statutes, in the course of rejecting challenges to the President’s designa-
tions of an Acting Director of the CFPB 5 and of an Acting Attorney
General. 6 To date, no court has adopted a contrary conclusion.
B.
The reasoning of our four previous opinions applies equally to the in-
teraction between the Vacancies Reform Act and the office-specific
statute that allows the President to designate a Deputy Director as the
Acting Director of FHFA.
Although FHFA is “an independent agency,” 12 U.S.C. § 4511(a), it is
not governed by a “board, commission, or similar entity that . . . is com-
posed of multiple members,” 5 U.S.C. § 3349c(1)(A). The Vacancies
Reform Act therefore does not expressly exclude the office of the Director
from its coverage. Instead, that Act’s relationship with other designation
mechanisms is governed by section 3347(a)’s exclusivity provision. The
Vacancies Reform Act is not exclusive under that provision because
section 4512(f ) is a “statutory provision [that] expressly . . . authorizes
the President . . . to designate an officer or employee to perform the
functions and duties of ” the office of FHFA Director “temporarily in an
acting capacity.” 5 U.S.C. § 3347(a)(1)(A).
At the same time, nothing in HERA makes section 4512(f ) the exclu-
sive mechanism for designating an Acting Director of FHFA. HERA was
enacted in 2008, against the backdrop of the Vacancies Reform Act.
Congress knew that the Vacancies Reform Act could apply to a single-
member head of an independent agency and to subsequently created
5 See English v. Trump,
279 F. Supp. 3d 307, 319−30 (D.D.C. 2018), appeal dismissed
upon appellant’s motion, No. 18-5007,
2018 WL 3526296 (D.C. Cir. July 13, 2018).
6 See Guedes v. Bureau of Alcohol, Tobacco, Firearms, & Explosives,
356 F. Supp. 3d
109, 138–44 (D.D.C. 2019), appeals docketed, Nos. 19-5042, 19-5043, 19-5044 (D.C.
Cir. Feb. 26, 2019); United States v. Santos-Caporal, No. 18-cr-171,
2019 WL 468795,
at *6–7 (E.D. Mo. Jan. 9, 2019), report and recommendation adopted by
2019 WL
460563, at *1 (E.D. Mo. Feb. 6, 2019); United States v. Smith, No. 18-cr-115,
2018 WL
6834712, at *2 (W.D.N.C. Dec. 28, 2018); United States v. Peters, No. 17-cr-55,
2018
WL 6313534, at *2−5 (E.D. Ky. Dec. 3, 2018); United States v. Valencia, No. 17-cr-882,
2018 WL 6182755, at *2−4 (W.D. Tex. Nov. 27, 2018), appeal docketed, No. 18-51008
(5th Cir. Dec. 3, 2018).
6
Designating an Acting Director of FHFA
offices. See 5 U.S.C. § 3349c (exempting only those independent agencies
that are headed by multi-member entities); S. Rep. No. 105-250, at 16–17
(noting that both an office-specific statute and the Vacancies Reform Act
would be available to fill a vacancy in the office of the Commissioner of
the Social Security Administration); see also Acting Director of CFPB, 41
Op. O.L.C. __, at *7 n.2 (noting that “[t]he enacted version also removed
the requirement [in an earlier bill] that a statutory provision be in effect
on the date of the Vacancies Reform Act’s enactment in order to be avail-
able for filling a vacancy”). Congress could easily have excluded the
FHFA Director from coverage under the Vacancies Reform Act—either
in section 4512(f ) itself, or by amending section 3349c’s list of excluded
offices—but it did not do so. See Epic Sys. Corp. v. Lewis,
138 S. Ct.
1612, 1624 (2018) (noting “the strong presumption that repeals by impli-
cation are disfavored and that Congress will specifically address preexist-
ing law when it wishes to suspend its normal operations in a later statute”)
(internal quotation marks and alterations omitted).
Section 4512(f ) is phrased in mandatory terms, providing that “the
President shall designate either the Deputy Director of the Division of
Enterprise Regulation, the Deputy Director of the Division of Federal
Home Loan Bank Regulation, or the Deputy Director for Housing Mission
and Goals” as the Acting Director in the absence of the FHFA Director.
12 U.S.C. § 4512(f ) (emphasis added). But the Vacancies Reform Act
also employs mandatory language, stating that the first assistant “shall
perform the functions and duties” of the vacant office unless the President
chooses to direct another official to do so in accordance with the other
provisions of the statute. 5 U.S.C. § 3345(a)(1) (emphasis added). “A
party seeking to suggest that two statutes cannot be harmonized, and that
one displaces the other, bears the heavy burden of showing a clearly
expressed congressional intention that such a result should follow.”
Epic Sys. Corp.,
138 S. Ct. at 1624 (internal quotation marks omitted).
When confronting similarly mandatory text in the CFPB’s statute, we
concluded that “we cannot view either [the CFPB’s office-specific statute
or the Vacancies Reform Act] as more mandatory than the other. Rather,
they should be construed in parallel.” Acting Director of CFPB, 41 Op.
O.L.C. __, at *7 (addressing 12 U.S.C. § 5491(b)(5), which provides that
the CFPB’s Deputy Director “shall” serve as Acting Director when the
Director is unavailable). The same is true here, and the Congress that
enacted HERA was aware that the Vacancies Reform Act distinguished
between offices to which the Vacancies Reform Act is inapplicable
7
Opinions of the Office of Legal Counsel in Volume 43
(5 U.S.C. § 3349c) and those for which it can be rendered non-exclusive
(id. § 3347(a)).
HERA and the Vacancies Reform Act can be harmonized by reading
section 4512(f ) as supplementing the President’s designation options—
a construction that coheres with the strong presumption against any im-
plied repeal. HERA requires that each FHFA Deputy Director possess
“a demonstrated understanding” of the financial fields most relevant to his
or her role. See, e.g., 12 U.S.C. § 4512(c)(1) (Deputy Director of the
Division of Enterprise Regulation must “have a demonstrated understand-
ing of financial management or oversight, and have a demonstrated under-
standing of mortgage securities markets and housing finance”). Congress
could reasonably determine that individuals appointed to these offices
would likely be appropriate candidates to serve temporarily as Acting
Director of FHFA. The Deputy Directors, however, would not necessarily
qualify for designation under the Vacancies Reform Act. None of them is
obviously the FHFA Director’s “first assistant,” 5 U.S.C. § 3345(a)(1);
they are not Senate confirmed, id. § 3345(a)(2); and they may not be
eligible as senior agency officials if, for instance, they recently arrived
at the agency, id. § 3345(a)(3). In addition, section 4512(f ) permits the
President to designate one of these pre-screened individuals to serve in an
acting capacity for a longer period than the Vacancies Reform Act would
otherwise allow. Section 4512(f ) thus comfortably co-exists with the
Vacancies Reform Act as an alternative means of designating an Acting
Director. See Epic Sys. Corp.,
138 S. Ct. at 1624 (“Respect for Congress
as drafter counsels against too easily finding irreconcilable conflicts in
its work.”). Because section 4512(f ) did not implicitly repeal the ap-
plicability of the Vacancies Reform Act to the office of the FHFA Direc-
tor, the President may choose to “direct a person who serves in” a Senate-
confirmed office “to perform the functions and duties” of the FHFA
Director “temporarily in an acting capacity subject to the time limits of
[5 U.S.C. §] 3346.” 5 U.S.C. § 3345(a)(2). 7
7 This conclusion is reinforced by the report of the Senate Committee on Governmental
Affairs, which listed forty specific statutes to which the Vacancies Reform Act was
intended to offer an alternative. See S. Rep. No. 105-250, at 16−17. That list included, for
example, 15 U.S.C. § 633(b)(1), which concerns the Administrator of the Small Business
Administration and provides that “[t]he Deputy Administrator shall be Acting Administra-
tor . . . during the absence or disability of the Administrator or in the event of a vacancy
in the office of the Administrator.” See S. Rep. No. 105-250, at 16. The list also included
44 U.S.C. § 2103(c), which provides that “the Deputy Archivist shall act as Archivist [of
the United States]” “[d]uring any absence or disability of the Archivist” and “[i]n the
8
Designating an Acting Director of FHFA
Although HERA authorizes one method of presidential designation, we
do not read it as displacing the President’s alternative authority under
the Vacancies Reform Act. In sustaining the legality of the President’s
designation of an Acting Director of the CFPB, a district court recently
emphasized that the CFPB’s office-specific provision “is silent regard-
ing the President’s ability to appoint an acting Director.” English, 279
F. Supp. 3d at 322. The court noted that the CFPB-specific provision
“does not expressly prohibit the President from” naming an acting Direc-
tor of the CFPB, “[n]or does it affirmatively require the President to
appoint a particular person.” Id. (citing 12 U.S.C. § 4512(f )). According
to the court, “[t]his silence makes it impossible to conclude that [the
CFPB-specific provision] ‘expressly’ makes the [Vacancies Reform
Act]’s appointment mechanisms unavailable” in the case of the CFPB. Id.
Although it cited section 4512(f ) as an example where Congress was not
silent about the President’s ability to designate an Acting Director, the
court did not (and had no need to) consider whether that statute went
further by displacing the Vacancies Reform Act, and its dictum did
not deny that the Vacancies Reform Act is, as explained above, equally
“affirmative[].” Consistent with our prior analysis of this question, we
conclude that, when addressing the office of FHFA Director in section
4512, Congress failed to employ the “language that [it] would have used
to expressly displace the [Vacancies Reform Act].” Id. 8
In fact, the contrary result—reading section 4512(f ) as the sole option
for presidential designation—could raise constitutional concerns by
significantly curtailing the President’s ability to choose who will lead an
event of a vacancy in the office of the Archivist.” See S. Rep. No. 105-250, at 16. As
under the FHFA Director provision, the set of individuals eligible for designation under
those two statutes is significantly narrower than those from whom the President could
choose under the Vacancies Reform Act. These examples demonstrate that “Congress
plainly intended in those cases that the President could invoke the Vacancies Reform Act
as ‘an alternative procedure’ and depart from the statutory order of succession,” even
when an office-specific statute speaks in mandatory terms. Acting Director of CFPB,
41 Op. O.L.C. __, at *8 (quoting S. Rep. No. 105-250, at 17); see also Guedes, 356
F. Supp. 3d at 143 (“The legislative history not only speaks to the issue; it confirms the
government’s interpretation. [Office]-specific statutes . . . were expected to operate
alongside the [Vacancies Reform Act], not to displace it.”).
8 FHFA differs from the CFPB in one other respect. HERA lacks a provision compara-
ble to 12 U.S.C. § 5491(a), which makes title 5 generally applicable to the CFPB. We did
not, however, rely on the presence of that provision in Acting Director of CFPB, and the
text and structure of the Vacancies Reform Act are sufficiently clear to make it applicable
(though not exclusively so) to an agency with an office-specific statute.
9
Opinions of the Office of Legal Counsel in Volume 43
executive agency. FHFA’s Deputy Directors are appointed by the Direc-
tor, who is himself appointed for a five-year term and statutorily protected
from removal without “cause.” 12 U.S.C. § 4512(b)(2), (c)(1), (d)(1),
(e)(1). The President therefore has no express or implied power to remove
the Deputies from their positions as Deputy Directors. See Keim v. United
States,
177 U.S. 290, 293 (1900) (“In the absence of specific provision
to the contrary, the power of removal from [an inferior] office is incident
to the power of appointment.”); see also Free Enterprise Fund v. Public
Co. Accounting Oversight Bd.,
561 U.S. 477, 493 (2010). In the absence
of the Vacancies Reform Act’s alternative mechanism, section 4512(f )
might oblige the President to select an Acting Director from among the
three Deputy Directors who were appointed by a departed Director from a
previous administration. And the Senate could indefinitely limit the Presi-
dent’s control over FHFA by declining to confirm his Director nominee.
Cf. Swan v. Clinton,
100 F.3d 973, 986 (D.C. Cir. 1996) (“[A]ccording
holdover Board members [of the National Credit Union Administration]
removal protection might be pushing the constitutional envelope to the
edge, because this protection could in practice serve to give the Senate
control over holdover members’ tenure in office or to preclude Presidents
from being able to replace holdover members for substantial periods
of time.”). Such interference with the President’s constitutional role as
head of the Executive Branch (U.S. Const. art. II, § 1, cl. 1) and his con-
stitutional obligation to “take Care that the Laws be faithfully executed”
(id. art. II, § 3) would be avoided if the President could also use the
Vacancies Reform Act to select an Acting Director from those whom he
has already appointed to other offices with the Senate’s advice and con-
sent, or from eligible senior agency employees.
Finally, we note that a panel of the Fifth Circuit, in a later-vacated
decision addressing the constitutionality of the FHFA Director’s tenure
protection, observed that the “statutory provisions governing how to
replace the FHFA Director may blunt the effectiveness of [the President’s
ability to control the agency through] ‘for cause’ removal. . . . [T]he
President must designate an acting Director from the ranks of Deputy
Directors[.]” Collins v. Mnuchin,
896 F.3d 640, 667 n.199 (5th Cir.),
vacated upon grant of reh’g en banc,
908 F.3d 151 (5th Cir. 2018); see
5th Cir. R. 41.3. Although the panel assumed that the President would
employ section 4512(f ) to designate an Acting Director, its opinion did
not consider the applicability of the Vacancies Reform Act. We therefore
do not read the opinion as reflecting a considered view on the matter at
issue here.
10
Designating an Acting Director of FHFA
III.
For the reasons set forth above, we conclude that, in designating an
Acting Director of FHFA, the President may choose either an incumbent
Deputy Director under 12 U.S.C. § 4512(f ) or someone who is made
eligible to be an acting officer by the Vacancies Reform Act, 5 U.S.C.
§ 3345(a)(2), (3). Under the latter, the President may select the Senate-
confirmed Comptroller of the Currency. Id. § 3345(a)(2).
CURTIS E. GANNON
Principal Deputy Assistant Attorney General
Office of Legal Counsel
11
