WASHINGTON–In the wake of documents filed by the Justice Department arguing the president had the authority to fire members of the NCUA board, America’s Credit Unions said it is not preparing at this point to file any briefs in the case but that it continues to support an independent, three-member NCUA board.

As the CU Daily was first to report, President Trump fired NCUA Democratic board members Todd Harper and Tanya Otsuka in mid-March, leaving just one person on the board, Republican Kyle Hauptman as its single member. 

Harper and Otsuka have since filed suit, arguing the president lacks the authority to remove them, that they should be reinstated, and that any actions taken by Hauptman in their absence be nullified. 

In the motion filed by the Justice Department, which is representing NCUA in the case, it is arguing the president has the authority to fire appointees at independent agencies and that the court “…lacks the power to issue any order reinstating principal executive officers removed by the President.”

Additional Arguments

The motion further argues that although their firings deprive Harper and Otsuka of employment and salary, “such consequences ordinarily do not amount to irreparable injury.” The plaintiffs have until May 19 to file a reply and opposition to any cross-motion, while the defendants have until May 23 to provide a reply in support of any cross-motion.

America’s Credit Unions chief advocacy officer, Carrie Hunt, who is an attorney, said at present the case is at a stage where there are “multiple levels” of litigation occurring and even after a ruling it is most likely the losing side will appeal.

Considerable Uncertainty

Hunt said there is considerable uncertainty around how the courts might rule.

“There is a lot of different case law and it really depends on differing interpretations and what is in various statutes,” said Hunt. “The DOJ is arguing…there is restriction on the president’s power to remove the agencies’ leadership, Relative to that specific issue, there isn’t much, if any, case law…At one end of this scale is how courts have looked at similar issues in the past…But you can make the same argument, because the Federal Credit Union Act is silent and there is this strong presumption that those individuals should stay on the board.

“So, we are currently not weighing in on this one way or the other,” Hunt continued. “We will consider whether or not America’s Credit Unions needs to either file an amicus brief or engage, But this is a much, much bigger question and bigger picture than just NCUA.”

As for what’s ahead for the board, such as new members being appointed by the Trump Administration, at this point Hunt said no one really knows, but she repeated that the trade group does support a three-member board overseeing an independent agency.

No Safety & Soundness Concerns

In addition, while there have been some reports from inside NCUA that some people believe it needs additional personnel because many people have taken incentive packages to leave, leading to potential safety and soundness risks, Hunt said America’s Credit Unions has not seen any reasons to date for concern.