Living in the past: ABA brief rehashes old issues

WASHINGTON-As NCUA, CUNA, and NAFCU lawyers settle down for bedtime reading with the American Bankers Association (ABA) appeals brief for their field of membership case, they are not discovering anything new. According to CUNA General Counsel Eric Richard, most of the issues are just a “re-hash of those already considered and rejected by the district court” except for an increased emphasis on reviewing the administrative record. The bankers stated that the district court’s decision should be vacated because neither the court nor the ABA received a certified copy of the administrative record. In the ABA’s appellate brief, it writes, “It is fundamental that when a plaintiff brings a claim challenging agency action on that ground that is `arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,’ the Court must conduct a complete review of the administrative record…Indeed, it is not just that the Court failed to undertake the review required by the [Administrative Procedure Act] here; it is that the Court based its decision on representations made by NCUA concerning the rulemaking process while simultaneously denying ABA access to the underlying administrative records.” (ABA’s emphasis) “I think that most lawyers who have reviewed the brief view that as a `red herring.’ While the bankers do cite a string of cases requiring agencies to have a certified copy of administrative proceedings prior to taking final action, if you review those cases that are cited, in most, if not all of those cases, the issue at play was not a rulemaking proceeding by a federal agency, but rather an enforcement action,” NAFCU Senior Vice President and General Counsel Bill Donovan emphasized. The ABA argued that while the court based its decision on the Chevron, U.S.A., v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), the deference owed to federal agencies under that court’s decision is only warranted when the agency can demonstrate a “meaningful” notice and comment process was conducted. “To defer to the agency based on an assumption (ABA emphasis) that its rulemaking was meaningful…is contrary to precedent and common experience; federal agencies-including NCUA-sometimes dispense with the requirements of administrative law altogether, or conduct sham proceedings,” ABA said. Additionally, ABA said that Chevron was misapplied to this case. “However, we are confident that we can and will provide persuasive and complete answers to all of the issues that the bankers address in their appeal when we file our response on June 29,” Richard said. “Until then, we look forward to rebutting the bankers’ arguments in court.” Donovan agreed with Richard’s synopsis of the ABA brief. “The ABA and the American consumer would be better served if the ABA and its members focused their attention on providing the American consumer with competitive services and products instead of competing with credit unions in court,” he added. The ABA is appealing U.S District Court Judge Colleen Kollar-Kotelly’s decision in favor of the NCUA last year. The bankers sued the credit union regulator charging the agency’s chartering and field of membership policy from January of 1999, which expanded credit union field of membership authorities, exceeded the agency’s authority. The agency policy was implemented following the passage of the Credit Union Membership Access Act (CUMAA). CUMAA overturned the ABA’s successful blocking of expanded fields of membership. NAFCU and CUNA, also named as defendants in the case, will file a joint brief by June 29 to which the bankers must respond by July 13. NCUA’s brief is also due on June 29. Oral arguments are scheduled for September 5. Much of the reason the credit union defendants are so confident in their victory is that the appellate court only has to find that the agency’s interpretation of the law was reasonable. “Again and again at trial level, the judge recognized and there’s a series of case law that upholds that in order for the agencies action to be valid, it doesn’t have to be the best interpretation of the congressionally approved language, it doesn’t have to be the only interpretation of the congressionally approved language, it just has to be a reasonable interpretation of the congressionally approved language,” Donovan said. Richard clarified “Community is a very squishy concept to begin with. One person’s community is another person’s neighborhood.” The bankers filed their review request on June 29, 2000, which included subjects spanning from the size of select employee groups and impact of family/household member eligibility; interpretation of the “reasonable proximity” requirement; and voluntary mergers of healthy credit unions. Hearing the appeal will be Judge David Tatel, Judge Judith Rogers, and Judge A. Raymond Randolph, none of whom reviewed the previous, successful bankers’ lawsuit. The former two are appointees of President Bill Clinton, while Randolph is a President George H. W. Bush appointee. Recently released data shows that NCUA has approved 214 community charter conversions under Interpretive Ruling and Policy Statement (IRPS) 99-1 as amended by IRPS 00-1 and 01-1 of the Field of Membership and Chartering Manual. According to some credit union representatives, the process may be moving too slowly, to which the bankers strongly disagree. This recent count does not have any impact on the bankers’ appeal because new evidence can not be presented. “NCUA approvals can’t impact the litigation,” Richard explained, “but the litigation could have an impact on NCUA’s approvals.” [email protected]