Reappointment of a Member of the National Credit Union Administration Board

(Slip Opinion)

Reappointment of a Member of the

National Credit Union Administration Board

A member of the National Credit Union Administration Board initially appointed to a

partial term is eligible for reappointment under 12 U.S.C. § 1752a(c) regardless of

whether the member’s first appointment was for the remainder of a term that became

vacant mid-term or that had no prior appointee.

December 10, 2021

MEMORANDUM OPINION FOR THE

DEPUTY COUNSEL TO THE PRESIDENT

You have asked whether a member of the National Credit Union Ad-

ministration Board (“Board”) is subject to the statutory prohibition on

reappointment, 12 U.S.C. § 1752a(c), if that member’s prior appointment

was for the remainder of a term that had not previously been filled

through an appointment by the President. Section 1752a of title 12 pro-

vides that the three members of the Board shall be appointed by the Presi-

dent, by and with the advice and consent of the Senate, to staggered terms

of six years. Id. § 1752a(b)(1), (c). A member may “continue to serve as

such after the expiration of said member’s term until a successor has

qualified,” id. § 1752a(c), but there is an express limitation on reappoint-

ment. Section 1752a(c) provides that “Board members shall not be ap-

pointed to succeed themselves except the initial members appointed for

less than a six-year term may be reappointed for a full six-year term and

future members appointed to fill unexpired terms may be reappointed for

a full six-year term.” Id.

Your question focuses on the meaning of “unexpired term” in section

1752a—namely, whether a partial term can be considered an “unexpired

term” only if a prior member was appointed at the beginning of that same

term and then vacated the office mid-term. For the reasons we explain

below, we think the answer to that question is “no,” and a member is

appointed to an “unexpired term” for purposes of section 1752a when the

appointment is for the remainder of a term that has already commenced,

regardless of whether the member’s predecessor was in office at the

beginning of that term.

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45 Op. O.L.C. __ (Dec. 10, 2021)

I.

The question arises from the pending nomination of the incumbent

Board Chairman, Todd Harper, for reappointment as a member of the

Board. 1 Chairman Harper was first appointed by the President as a

member of the Board on March 28, 2019, “for a term expiring April 10,

2021, vice Deborah Matz,” PN364, 116th Cong. (2019), https://www.

congress.gov/nomination/116th-congress/364, and he was sworn in on

April 8, 2019. Ms. Matz had been appointed to a term that expired in

2015, and when it concluded, she served in a holdover capacity until

2016. Chairman Harper is himself currently holding over as a member of

the Board, consistent with the holdover provision of the statute. 12

U.S.C. § 1752a(c). In August, the President nominated Chairman Harper

for reappointment to his current seat “for a term expiring April 10, 2027.”

PN1023, 117th Cong. (2021), https://www.congress.gov/nomination/

117th-congress/1023. In a letter dated October 21, 2021, Senator Pat

Toomey, in his capacity as Ranking Member of the Committee on Bank-

ing, Housing, and Urban Affairs, sought an explanation from Chairman

Harper as to why his nomination for reappointment did not violate the

statutory prohibition on reappointment. See Letter for Todd Harper,

Chairman, National Credit Union Administration, from Pat Toomey,

Ranking Member, Committee on Banking, Housing, and Urban Affairs,

U.S. Senate (Oct. 21, 2021) (“Ranking Member Letter”). The letter sug-

gests that the term to which Chairman Harper was appointed in 2019—

which ran from April 2015 until April 2021—was not an “unexpired

term” for purposes of section 1752a(c) because no one occupied that seat

on the Board in a non-holdover capacity between April 2015 and April

2019, when Chairman Harper was appointed.

II.

We think that an “unexpired term” under section 1752a(c) includes

both terms that become vacant mid-term and those that begin without any

1Under 12 U.S.C. § 1752a(b)(1), the President appoints individuals as members of the

Board, by and with the advice and consent of the Senate, and then “designate[s] the

Chairman.” President Biden designated Chairman Harper on January 20, 2021. See

National Credit Union Administration: The Honorable Todd M. Harper, https://www.

ncua.gov/about/leadership/honorable-todd-m-harper.

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Reappointment of a Member of the National Credit Union Administration Board

occupant serving in a non-holdover capacity. Section 1752a(c) contem-

plates that the terms of Board members shall be staggered, with one term

expiring every two years. In order to preserve the staggering, appoint-

ments to fill the seats of members must run “with the calendar,” meaning

that each member “‘must be assigned to a fixed, six-year ‘slot’ of time,’

beginning with the end of his or her predecessor’s term.” Terms of Mem-

bers of the Civil Rights Commission, 28 Op. O.L.C. 291, 292 (2004)

(“Civil Rights Commission”) (quoting United States v. Wilson, 290 F.3d

347, 353 (D.C. Cir. 2002)). Each slot of time expires on a particular date

regardless of whether a member has been appointed to fill the slot and,

therefore, an appointment made to a slot in progress is plainly an “unex-

pired term.”

Along with the D.C. Circuit, we have previously declined to distinguish

between appointments to slots on staggered boards that have been open

for the entirety of their term and those that had an occupant during the

term. In Civil Rights Commission, we concluded that the terms of mem-

bers of that staggered board ran for six years from the expiration of the

predecessors’ terms. Id. at 293. Tracking the D.C. Circuit’s conclusion in

Wilson, 290 F.3d 347, we noted that the terms on a staggered board must

be treated the same way, no matter when the previous occupant left office.

Civil Rights Commission, 28 Op. O.L.C. at 293. “For it to be otherwise

would disrupt the fixed and staggered six-year terms that run with the

calendar.” Id. at 292 (quoting Wilson, 290 F.3d at 355).

A similar analysis applies to our interpretation of “unexpired term” in

section 1752a(c). When a “term” runs with the calendar, the “term” is one

in a succession of fixed six-year slots of time, without regard to whether

the position is actually filled. Further, nothing in the statute or the legisla-

tive history suggests that Congress intended for members appointed to

partial terms to be treated differently depending on whether there was a

predecessor appointee at the beginning of the term. And we can think of

no legislative purpose that would be furthered by permitting the reap-

pointment of someone who replaced a member who resigned mid-term

and prohibiting the reappointment of someone like Chairman Harper who

was appointed to complete the tail end of a term in progress that had no

prior appointee (but that did have a holdover official who had served in

the initial part of the term). With respect to the total time that a member

would have served before the second possible appointment, the two situa-

tions are indistinguishable.

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45 Op. O.L.C. __ (Dec. 10, 2021)

III.

We recognize that there are statutes that use the phrase “unexpired

term” when discussing appointments to fill “a vacancy caused by the

death, resignation, or removal of any member prior to the expiration of

the term for which he was appointed.” Ranking Member Letter at 1 n.3

(noting that 30 U.S.C. § 823(b)(1)(B), relating to the Federal Mine Safety

and Health Review Commission, and 29 U.S.C. § 661(b), relating to the

Occupational Safety and Health Review Commission, both provide that

such vacancies “shall be filled only for the remainder of such unexpired

term”). But Congress’s using the phrase “unexpired terms” to identify

how mid-term vacancies shall be filled does not rule out the possibility

that never-occupied terms (including terms during which the predecessor

served in a holdover capacity) also may be considered “unexpired.” No

reference to “death, resignation, or removal” appears in the language at

issue here, and, in any event, these other statutory references do not

necessarily mean that Congress uses the phrase “unexpired term” only

when it intends to refer to a term to which someone previously had been

appointed. Rather, they show that Congress regularly takes steps to pre-

serve the staggering of multi-member boards throughout the government,

by underscoring that terms run with the calendar. We would read section

1752a(c) in a manner consistent with that legislative purpose.

For these reasons, we conclude that Chairman Harper’s first appoint-

ment as a member of the Board was to an “unexpired term” and he there-

fore is eligible for reappointment. Please let us know if we may provide

any further assistance.

CHRISTOPHER H. SCHROEDER

Assistant Attorney General

Office of Legal Counsel

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