(Slip Opinion)
Designating an Acting Director of the
Bureau of Consumer Financial Protection
The statute providing that the Deputy Director of the Bureau of Consumer Financial
Protection shall “serve as acting Director in the absence or unavailability of the Direc-
tor” authorizes the Deputy Director to serve as the Acting Director when the position
of Director is vacant.
Both the Federal Vacancies Reform Act of 1998 and the statute specific to the office of
Director are available to fill a vacancy in the office of Director on an acting basis; the
office-specific statute does not displace the President’s authority to designate an acting
officer under 5 U.S.C. § 3345(a)(2) or (3).
November 25, 2017
MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT
You have asked whether the President may designate an Acting Direc-
tor of the Bureau of Consumer Financial Protection (“CFPB”) upon the
resignation of the Director. This opinion confirms the oral advice that we
gave you before the Director’s resignation took effect at the end of No-
vember 24, 2017. See Letter for the President, from Richard Cordray,
Director, CFPB (Nov. 24, 2017) (communicating resignation).
The CFPB Director is an office filled by presidential appointment, by
and with the advice and consent of the Senate. 12 U.S.C. § 5491(b)(2).
The Federal Vacancies Reform Act of 1998, 5 U.S.C. §§ 3345–3349d,
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 “is required to be made by the
President, by and with the advice and consent of the Senate,” and it is the
“exclusive means” for authorizing acting service “unless” another statute
expressly designates an officer to serve in an acting capacity or provides
an alternative means for a designation as an acting officer. 5 U.S.C.
§ 3347(a).
The CFPB has such a statute. Specifically, 12 U.S.C. § 5491(b)(5) pro-
vides that the CFPB’s Deputy Director shall “serve as acting Director in
the absence or unavailability of the Director.” While the statute is unusual
in failing expressly to reference temporary service in the case of a vacan-
cy in the office, we believe that the resignation of the Director would
satisfy the requirement of “absence or unavailability.” Therefore, the
1
Opinions of the Office of Legal Counsel in Volume 41
statute would permit a properly appointed Deputy Director to serve as the
Acting Director during a vacancy. 1
The fact that the Deputy Director may serve as Acting Director by op-
eration of the statute, however, does not displace the President’s authority
under the Vacancies Reform Act. As we have advised in our prior opin-
ions, even when the Vacancies Reform Act is not the “exclusive” means
for filling a vacancy, the statute remains an available option, and the
President may rely upon it in designating an acting official in a manner
that differs from the order of succession otherwise provided by an office-
specific statute. This interpretation of the Vacancies Reform Act is in
accord with the only federal court of appeals to address the issue. See
Hooks v. Kitsap Tenant Support Servs., Inc., 816 F.3d 550, 555–56 (9th
Cir. 2016). The President therefore may designate an Acting Director of
the CFPB under the Vacancies Reform Act. See 5 U.S.C. § 3345(a)(2),
(3).
I.
Because the Vacancies Reform Act specifies that it constitutes the “ex-
clusive means” for temporarily authorizing an acting official absent
another statutory provision, 5 U.S.C. § 3347(a), we first consider whether
12 U.S.C. § 5491(b)(5) authorizes the Deputy Director to serve as the
CFPB’s Acting Director when the Director has resigned his office.
Section 5491(b)(5) refers to the “absence or unavailability of the Direc-
tor,” but does not expressly state that it applies when the office is vacant.
This phrasing is unusual. The Report of the Senate Committee on Gov-
1 We understand that the CFPB had not had a Deputy Director since August 2015, and
so, for over two years, the CFPB functioned with an Acting Deputy Director. On Novem-
ber 24, 2017, the CFPB Director’s last day in office, he stated that he had appointed a
Deputy Director in order to take advantage of the succession provision of 12 U.S.C.
§ 5491(b)(5) upon his resignation. Because we have no other details about this appoint-
ment, we express no view about its validity. Even if the Deputy Director were properly
appointed, she did not become Acting Director; the President designated the Director of
the Office of Management and Budget (“OMB”) to perform the functions and duties of
the Director of the CFPB, effective upon the CFPB Director’s resignation. As someone
who already “serves in an office for which appointment is required to be made by the
President, by and with the advice and consent of the Senate,” the Director of OMB is
among the persons the President could select under 5 U.S.C. § 3345(a)(2) to “perform the
functions and duties of the vacant office temporarily in an acting capacity.”
2
Designating an Acting Director of the CFPB
ernmental Affairs on the Vacancies Reform Act identified forty office-
specific statutes that the committee believed would continue to provide
alternative mechanisms for acting service. S. Rep. No. 105-250, at 16–17
(1998). Each of these statutes refers to either a vacancy or a resignation.
We have, for instance, construed the succession provisions of the Depart-
ment of Justice and the Office of the Management and Budget. See Au-
thority of the President to Name an Acting Attorney General, 31 Op.
O.L.C. 208 (2007) (“Acting Attorney General”); Acting Director of the
Office of Management and Budget, 27 Op. O.L.C. 121, 121 n.1 (2003)
(“Acting Director of OMB”). The Department of Justice’s statute speaks
of service as Acting Attorney General by “reason of absence, disability, or
vacancy” in the offices of the Attorney General and the Deputy Attorney
General. 28 U.S.C. § 508(b) (emphasis added). Similarly, the Office of
Management and Budget’s succession statute speaks of the Director’s
being “absent or unable to serve or when the office of the Director is
vacant.” 31 U.S.C. § 502(b)(2) (emphasis added). Accordingly, it could
be argued that section 5491(b)(5) applies only in cases of the Director’s
transient “absence or unavailability,” and does not apply in the case of a
vacancy or a resignation.
This Office distinguished between an “absence” and a “vacancy” when
considering whether the Vice Chairman of the Federal Reserve Board
would automatically assume the duties of the Chairman upon the expira-
tion of his term. Status of the Vice Chairman of the Federal Reserve
Board, 2 Op. O.L.C. 394, 395 (1978). There, the statute provided that the
Vice Chairman would preside at meetings of the Federal Reserve Board in
the Chairman’s “absence,” but was otherwise silent on succession follow-
ing the end of the Chairman’s term. We advised that “[t]he term ‘absence’
normally connotes a failure to be present that is temporary in contra-
distinction to the term ‘vacancy’ caused, for example, by death of the
incumbent or his resignation.” Id. Accordingly, the Vice Chairman’s
authority to preside in the “absence” of the Chairman did not mean that he
would automatically assume the duties of the chairmanship upon a vacan-
cy. Rather, we determined that the President would need to designate an
acting Chairman. Id. at 396. If section 5491(b)(5) were limited to service
when the Director is “absent,” we might similarly conclude that the CFPB
statutory provision would not apply in the case of a “vacancy” in the
office of the Director.
3
Opinions of the Office of Legal Counsel in Volume 41
Section 5491(b)(5), however, speaks not only of the Director’s “ab-
sence,” but also of his “unavailability.” While the question is not free
from doubt, we believe that the provision’s reference to “unavailability” is
best read to refer both to a temporary unavailability (such as the Direc-
tor’s recusal from a particular matter) and to the Director’s being unavail-
able because of a resignation or other vacancy in office. See Acting
Attorney General, 31 Op. O.L.C. at 209 n.1 (referring to officials who
“have died, resigned, or otherwise become unavailable”) (emphasis add-
ed); Designation of Acting Solicitor of Labor, 26 Op. O.L.C. 211, 214
(2002) (describing provisions of the Vacancies Reform Act as contem-
plating “that a ‘vacancy’ occurs when the occupant dies or resigns or is
otherwise unavailable”) (emphasis added). Cf. TCF Film Corp. v. Gour-
ley, 240 F.2d 711, 714 (3d Cir. 1957) (observing, for purposes of law-of-
the-case doctrine, that a judge who “dies or resigns from the court . . .
obviously is no longer available”) (footnote omitted). This broader read-
ing of “unavailability” is consistent with how this Office has interpreted
the Vacancies Reform Act’s reference to when an officer “dies, resigns, or
is otherwise unable to perform the functions and duties of the office.”
5 U.S.C. § 3345(a). In our view, an officer is “unable to perform the
functions and duties of the office” during both short periods of unavaila-
bility, such as a period of sickness, and potentially longer ones, such as
one resulting from the officer’s removal (which would arguably not be
covered by the reference to “resign[ation]”). See Guidance on Application
of Federal Vacancies Reform Act of 1998, 23 Op. O.L.C. 60, 61 (1999)
(“In floor debate, Senators said, by way of example, that an officer would
be ‘otherwise unable to perform the functions and duties of the office’ if
he or she were fired, imprisoned, or sick.”) (citing statements by Senators
Thompson and Byrd). We think that “unavailability” should be similarly
construed, and thus that 12 U.S.C. § 5491(b)(5) would authorize a prop-
erly appointed Deputy Director of the CFPB to serve as its Acting Direc-
tor during a true vacancy in the Director position.
II.
We next consider whether 12 U.S.C. § 5491(b)(5), by authorizing the
CFPB’s Deputy Director to serve as its Acting Director, eliminates the
President’s authority under the Vacancies Reform Act to fill a vacancy in
the Director position on an acting basis. We have addressed this question
4
Designating an Acting Director of the CFPB
before in connection with similar statutes, and our answer is straight-
forward. The Vacancies Reform Act is not the “exclusive means” for the
temporary designation of an Acting Director, but it remains available to
the President as one means for filling a vacancy in the Director position.
The Vacancies Reform Act expressly addresses how it interacts with
statutes that deal with who shall act when specific offices are vacant. It
provides that its mechanisms for designating an acting officer (5 U.S.C.
§ 3345) and the accompanying time limitations (id. § 3346) are
the exclusive means for temporarily authorizing an acting official
to perform the functions and duties of any office of an Executive
agency . . . for which appointment is required to be made by the
President, by and with the advice and consent of the Senate, un-
less—
(1) a statutory provision expressly—
(A) authorizes the President, a court, or the head of an Exec-
utive department, to designate an officer or employee to per-
form the functions and duties of a specified office temporarily
in an acting capacity; or
(B) designates an officer or employee to perform the func-
tions and duties of a specified office temporarily in an acting
capacity; or
(2) the President makes an appointment to fill a vacancy in such
office during the recess of the Senate pursuant to clause 3 of sec-
tion 2 of article II of the United States Constitution.
Id. § 3347(a); see also 12 U.S.C. § 5491(a) (specifying that the CFPB
“shall be considered an Executive agency”).
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 ser-
vice. 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 “un-
less” 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
5
Opinions of the Office of Legal Counsel in Volume 41
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.
This Office has consistently adhered to this reading of section 3347.
In 2007, we concluded that the President has the authority to designate an
Acting Attorney General under the Vacancies Reform Act, even though a
separate statute specific to the position of Attorney General, 28 U.S.C.
§ 508, also provides a mechanism by which other designated officials in
the Department of Justice may “act as Attorney General” during the
“vacancy,” “absence,” or “disability” of the Attorney General. Acting
Attorney General, 31 Op. O.L.C. at 209–11. We observed that “[t]he
Vacancies Reform Act nowhere says that, if another statute [for naming
an acting officer] remains in effect, the Vacancies Reform Act may not be
used.” Id. at 209. We reached the same conclusion in 2003, when we
examined the availability of the Vacancies Reform Act in light of a sepa-
rate statute that identified several officers who could be designated as
Acting Director of the Office of Management and Budget in the event of a
vacancy in that office. Notwithstanding that office-specific alternative
mechanism, we concluded that “the Vacancies Reform Act may still be
used.” Acting Director of OMB, 27 Op. O.L.C. at 121 n.1.
A federal court of appeals adopted the same reading of section 3347.
In Hooks, an employer challenged the service of an individual designated
under the Vacancies Reform Act as Acting General Counsel of the Na-
tional Labor Relations Board. 816 F.3d at 554. The employer argued,
among other things, that the Vacancies Reform Act was not available
because a provision of the National Labor Relations Act specifically
provided for the temporary designation of an Acting General Counsel. Id.
at 555–56. The Ninth Circuit rejected that contention, concluding that,
under section 3347, “neither the [Vacancies Reform Act] nor the [Na-
tional Labor Relations Act] is the exclusive means of appointing an Act-
ing General Counsel” and that “the President is permitted to elect between
these two statutory alternatives to designate an Acting General Counsel.”
Id. at 556.
Our past opinions have recognized that the legislative history confirms
this reading of the Vacancies Reform Act. Acting Attorney General, 31
Op. O.L.C. at 209; Acting Director of OMB, 27 Op. O.L.C. at 121 n.1.
6
Designating an Acting Director of the CFPB
Discussing an earlier draft of the bill, the Senate committee noted that,
“with respect to the specific positions in which temporary officers may
serve under the specific statutes this bill retains, the Vacancies [Reform]
Act would continue to provide an alternative procedure for temporarily
occupying the office.” S. Rep. No. 105-250, at 17. The enacted version of
the statute differs from the version discussed in the Senate Report, but it
does so in ways that reinforce the conclusion that both the Vacancies
Reform Act and an office-specific statute are available to fill a vacancy on
an acting basis. The earlier version of section 3347 discussed in the Sen-
ate Report would have provided that “[s]ections 3345 and 3346 are appli-
cable” to offices to be filled by appointment of the President, by and with
the advice and consent of the Senate, “unless—(1) another statutory
provision expressly provides that . . . such provision supersedes sections
3345 and 3346; [or] (2) a statutory provision in effect on the date of
enactment of the Federal Vacancies Reform Act of 1998 expressly” des-
ignates or authorizes the designation of an acting officer. Id. at 26. That
phrasing could well have been susceptible to a reading that the Vacancies
Reform Act would cease to apply when another statute provided a mech-
anism for filling a vacancy, notwithstanding the committee’s explanation
to the contrary. But the enacted version of section 3347(a) has removed
all doubt, both by striking the language contemplating that another provi-
sion might expressly supersede the Vacancies Reform Act and by adopt-
ing the formulation that the latter is to be “exclusive” when no other
statute is available. 2
The CFPB-specific statute does state that the Deputy Director “shall”
serve as Acting Director where the Director is unavailable. 12 U.S.C.
§ 5491(b)(5). However, the Vacancies Reform Act itself, like the CFPB-
specific statute, similarly uses mandatory terms, providing that the first
assistant to a vacant office “shall perform the functions and duties” of that
office unless the President invokes his authority under the statute to direct
another official to do so. 5 U.S.C. § 3345(a)(1). Accordingly, we cannot
view either statute as more mandatory than the other. Rather, they should
be construed in parallel. Furthermore, the Senate Report lists forty office-
2 The enacted version also removed the requirement 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. As a result, the fact that section 5491(b)(5) was enacted after 1998 does
not affect our analysis.
7
Opinions of the Office of Legal Counsel in Volume 41
specific statutes to which the Vacancies Reform Act is an alternative, see
S. Rep. No. 105-250, at 16–17, and a number of those statutes similarly
employ mandatory language that, like the CFPB-specific statute, provides
that the first assistant to the vacant office “shall” serve in an acting capac-
ity. 3 Nevertheless, Congress plainly intended in those cases that the Presi-
dent could invoke the Vacancies Reform Act as “an alternative proce-
dure” and depart from the statutory order of succession. S. Rep. No. 105-
250, at 17.
The canon of statutory interpretation that “[a] specific provision con-
trols one of more general application,” Gozlon-Peretz v. United States,
498 U.S. 395, 407 (1991), does not prevent the Vacancies Reform Act
from being available here. While the CFPB-specific statute arguably is
more specific than the Vacancies Reform Act in the sense that it applies
only to the position of Director, the same is true with all of the office-
specific statutes retained by section 3347(a). Yet in the text and the legis-
lative history, Congress expressly recognized that both the Vacancies
Reform Act and office-specific statutes would be available as separate
means of temporarily authorizing individuals to serve in an acting capac-
ity. In view of executive practice before the CFPB statute was enacted,
as reflected in Acting Attorney General and Acting Director of OMB, and
in the absence of some clearer statement in the CFPB’s statute altering the
applicability of the Vacancies Reform Act, there is no reason to conclude
that Congress expected 12 U.S.C. § 5491(b)(5) to operate any differently
than any of the other office-specific statutes.
The CFPB-specific statute providing that the Deputy Director “shall . . .
serve as acting Director in the absence or unavailability of the Director,”
3 See, e.g., 15 U.S.C. § 633(b)(1) (“The Deputy Administrator shall be Acting Admin-
istrator of the [Small Business] Administration during the absence or disability of the
Administrator or in the event of a vacancy in the office of Administrator.”); 20 U.S.C.
§ 3412(a)(1) (“During the absence or disability of the Secretary [of Education], or in the
event of a vacancy in the office of the Secretary, the Deputy Secretary shall act as Secre-
tary.”); 29 U.S.C. § 552 (“The Deputy Secretary [of Labor] shall (1) in case of the death,
resignation, or removal from office of the Secretary, perform the duties of the Secretary
until a successor is appointed[.]”); 31 U.S.C. § 301(c) (“The Deputy Secretary [of the Treas-
ury] shall carry out . . . (2) the duties and powers of the Secretary when the Secretary is
absent or unable to serve or when the office of Secretary is vacant.”); 44 U.S.C. § 2103(c)
(“In the event of a vacancy in the office of the Archivist, the Deputy Archivist shall act
as Archivist until an Archivist is appointed[.]”).
8
Designating an Acting Director of the CFPB
12 U.S.C. § 5491(b)(5), satisfies section 3347(a)’s reference to “a statu-
tory provision” that “expressly . . . designates an officer or employee to
perform the functions and duties of a specified office temporarily in an
acting capacity.” 5 U.S.C. § 3347(a)(1)(B). It therefore should interact
with the Vacancies Reform Act in the same way as other, similar statutes
providing an office-specific mechanism for an individual to act in a va-
cant position. See Acting Attorney General, 31 Op. O.L.C. at 209–11;
Acting Director of OMB, 27 Op. O.L.C. at 121 n.1. Both the Vacancies
Reform Act and section 5491(b)(5) are available for filling on an acting
basis a vacancy that results from the resignation of the CFPB’s Director.
And, as with other office-specific statutes, when the President designates
an individual under the Vacancies Reform Act outside the ordinary order
of succession, the President’s designation necessarily controls. Otherwise,
the Vacancies Reform Act would not remain available as an actual alter-
native in instances where the office-specific statute identifies an order of
succession, contrary to Congress’s stated intent.
III.
Nothing about the CFPB’s statutory structure changes our analysis.
Congress has characterized the CFPB as “independent,” 12 U.S.C.
§ 5491(a), and has purported to make the Director removable only “for
inefficiency, neglect of duty, or malfeasance in office,” id. § 5491(c)(3). 4
But those indications of independence do not prevent the President from
using the Vacancies Reform Act, because Congress has specified that the
CFPB “shall be considered an Executive agency,” id. § 5491(a), which
brings it within section 3347(a), and because the CFPB’s Director does
not fall within the category of officers whom Congress has excluded from
coverage under the Vacancies Reform Act.
4 In pending litigation, the Department of Justice is contending that Congress may not
impose a for-cause restriction on the President’s power to remove the CFPB’s Director,
because he is a single-member head of an agency. See Brief for the United States as
Amicus Curiae, PHH Corp. v. Consumer Fin. Prot. Bureau, No. 15-1177 (D.C. Cir. Mar.
17, 2017). That conclusion is consistent with the panel’s decision in PHH Corp. v.
Consumer Fin. Prot. Bureau, 839 F.3d 1 (D.C. Cir. 2016), judgment vacated upon grant
of reh’g en banc (Feb. 16, 2017), as well as with earlier advice from this Office, as
reflected in, for instance, a 1994 signing statement of President Clinton. See Statement
on Signing the Social Security Independence and Program Improvement Act of 1994
(Aug. 15, 1994), 2 Pub. Papers of Pres. William J. Clinton 1471, 1472 (1994).
9
Opinions of the Office of Legal Counsel in Volume 41
In 5 U.S.C. § 3349c, Congress specified that the Vacancies Reform Act
“shall not apply” to the following officers:
(1) any member who is appointed by the President, by and with
the advice and consent of the Senate to any board, commission, or
similar entity that—
(A) is composed of multiple members; and
(B) governs an independent establishment or Government cor-
poration;
(2) any commissioner of the Federal Energy Regulatory Commis-
sion;
(3) any member of the Surface Transportation Board; or
(4) any judge appointed by the President, by and with the advice
and consent of the Senate, to a court constituted under article I of the
United States Constitution.
As that provision illustrates, Congress has indeed determined that some
positions with hallmarks of independence should not be filled on an acting
basis through the Vacancies Reform Act. But section 3349c does not
exclude the Director of the CFPB, because the CFPB is not governed by
any “entity that . . . is composed of multiple members,” id. § 3349c(1)
(emphasis added), and the Director does not appear among the other
specifically enumerated positions. 5
Even apart from the Director’s absence from section 3349c’s list of
carve-outs, the removal protections for the Director would not insulate an
Acting Director from displacement by the President under the Vacancies
Reform Act. In Swan v. Clinton, 100 F.3d 973 (D.C. Cir. 1996), the court
considered whether members of the Board of the National Credit Union
Administration, whom the court assumed to have tenure protection during
5 The fact that the Director’s position did not exist when the Vacancies Reform Act
was enacted does not change the analysis. See supra note 2. To the contrary, it reinforces
the proposition that Congress could have excluded the Director of the CFPB from cover-
age upon creating the office, but did not do so. In fact, the Senate Report on the Vacancies
Reform Act expressly noted that both the Vacancies Reform Act and an office-specific
statute would be available to fill a vacancy in the office of the Commissioner of the Social
Security Administration, another single-member agency head with certain statutory tenure
protections. See S. Rep. No. 105-250, at 16–17; see also 42 U.S.C. § 902(a)(3), (b)(4).
Thus, the exclusion for an “independent establishment” headed by a multiple-member
entity, but not by a single member, cannot be ignored.
10
Designating an Acting Director of the CFPB
their statutory terms of office, continued to have tenure protection while
serving in a holdover capacity following the expiration of their terms.
Id. at 983. It concluded that, “even if the [relevant] statute were interpret-
ed to grant removal protection to Board members during their appointed
terms . . . , this protection does not extend to holdover members.” Id. at
988. To the extent that a designation under the Vacancies Reform Act
might be regarded as comparable to a “removal” of an Acting Director of
the CFPB, a similar analysis would apply. Congress does not, by pur-
porting to give tenure protection to a Senate-confirmed officer, afford
similar protection to an individual who temporarily performs the functions
and duties of that office when it is vacant.
Nor is our conclusion affected by the drafting history of section 5491.
The version of that provision that passed the House of Representatives
would have provided that, “[i]n the event of vacancy or during the ab-
sence of the Director . . . an Acting Director shall be appointed in
the manner provided in [the Vacancies Reform Act].” Wall Street Re-
form and Consumer Protection Act of 2009, H.R. 4173, 111th Cong.
§ 4102(b)(6)(B)(i) (as passed by House of Representatives, Dec. 11,
2009). That version of the bill would not have established a position of
Deputy Director. See id. § 4106(a) (providing for the Director’s appoint-
ment of other officials). Although the enacted version of the provision
dealing with a vacancy in the Director position does not expressly refer
to the Vacancies Reform Act, there is no reason to infer that Congress
deemed the Vacancies Reform Act inapplicable. Such an inference from
the failure to enact the House-passed version “lacks persuasive signifi-
cance because several equally tenable inferences may be drawn from such
inaction, including the inference that” the enacted version of the provision
“already incorporated the offered change.” Pension Benefit Guar. Corp. v.
LTV Corp., 496 U.S. 633, 650 (1990) (internal quotation marks omitted).
In fact, that is the most plausible inference, given that the statutory back-
drop at the time included the Vacancies Reform Act. Because the enacted
provision makes the Deputy Director available to act as Director, the
Vacancies Reform Act is not the “exclusive means” for designating an
Acting Director, as indicated by the text of section 3347(a) and this
Office’s 2003 and 2007 opinions. Yet the Vacancies Reform Act contin-
ues to provide an available mechanism for the President to designate an
Acting Director of the CFPB.
11
Opinions of the Office of Legal Counsel in Volume 41
IV.
For the reasons set forth above, we conclude that the President may
designate an Acting Director of the CFPB under 5 U.S.C. § 3345(a)(2) or
(3), because both the Vacancies Reform Act and the office-specific statute
are available to fill a vacancy in that office on an acting basis.
STEVEN A. ENGEL
Assistant Attorney General
Office of Legal Counsel
12