(Slip Opinion)

1

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 designates 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/presidentdonald-j-trump-announces-intent-designate-individual-key-administration-post-2/.
Opinions of the Office of Legal Counsel in Volume 43

2

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”), Congress established FHFA as “an independent agency of the Federal Government” and charged it with supervising and regulating the following 

mortgage-financing institutions: the Federal National Mortgage Association (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 Mission and Goals. Id. § 4512(c)−(e).

The five-year term of FHFA Director Melvin L. Watt expired on January 6, 2019, and he chose to resign rather than hold over until his successor 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 potentially available for naming an Acting Director of FHFA. First, HERA 

provides that, “[i]n the event of the death, resignation, sickness, or ab-
Designating an Acting Director of FHFA

3

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 Director, 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 Comptroller 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 Vacancies 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 understanding 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.
Opinions of the Office of Legal Counsel in Volume 43

4

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, Congress 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 Vacancies 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 
Designating an Acting Director of FHFA

5

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 particular 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 appointing 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 Vacancies Reform Act to designate an Acting Attorney General, notwithstanding 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 individuals 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 Designation of Michael Hager, Assistant Secretary of Veterans Affairs, to serve as Acting Director, Office of Personnel Management (Aug. 11, 2008, effective Aug. 14, 2008); Presidential 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).
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6

Since our Acting Director of CFPB opinion, several district courts have 

agreed that the Vacancies Reform Act remains available for acting designations, notwithstanding the simultaneous applicability of office-specific 

statutes, in the course of rejecting challenges to the President’s designations of an Acting Director of the CFPB5 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 interaction 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 composed 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 exclusive 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 singlemember 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).
Designating an Acting Director of FHFA

7

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 available 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 implication are disfavored and that Congress will specifically address preexisting 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 
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8

(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 implied 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 understanding of financial management or oversight, and have a demonstrated understanding 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 applicability of the Vacancies Reform Act to the office of the FHFA Director, the President may choose to “direct a person who serves in” a Senateconfirmed 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 Administrator . . . 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 
Designating an Acting Director of FHFA

9

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 regarding 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 Director 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 comparable 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.
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10

executive agency. FHFA’s Deputy Directors are appointed by the Director, 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 President’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 constitutional 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 consent, 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.
Designating an Acting Director of FHFA

11

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 Senateconfirmed Comptroller of the Currency. Id. § 3345(a)(2).

CURTIS E. GANNON

Principal Deputy Assistant Attorney General

Office of Legal Counsel