(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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