WASHINGTON-The National Community Reinvestment Coalition (NCRC) filed its rebuttal brief in its lawsuit against NCUA and the agency's chairman, Dennis Dollar, for the repeal of the Community Action Plan (CAP) via interim final rule. The CAP would have required new and existing community chartered credit unions to provide the agency information regarding how it planned to serve its entire community, including low-income members, and would have become effective December 31, 2001 had it not been repealed earlier that month. The group filed suit at the beginning of the year claiming NCUA violated the Administrative Procedures Act (APA) by not having a comment period and that NCRC is injured by not having the information gleaned from community credit unions by the CAP available to them. Judge Henry Kennedy is handling the case in the U.S. District Court for the District of Columbia. The Department of Justice, which is representing NCUA in the case, filed a brief recently requesting the dismissal of the case based on a lack of standing because the CAP information was not meant to be available to the public. However, "a motion to dismiss should be granted only if the `plaintiff[ ] can prove no set of facts in support of [its] claim which would entitle [it] to relief [Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir.1994) (citing Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979))]," NCRC's brief read. The group claims that at least some of the information would be available and some is already available to the public through other avenues. "[I]f a document contains exempt information, the agency must still release `any reasonably segregable portion' after deletion of the nondisclosable portions [Oglesby v. United States Dep't of the Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996) (citing 5 U.S.C. 552(b))]," the brief quoted. Going back to the original challenge, NCRC claimed NCUA jumped straight into issuing an interim final rule without allowing for public notice and comment without justification. "Courts in [the D.C.] circuit take a dim view of rule-making which has not been preceded by notice and comment [Analysas Corp. v. Bowles, 827 F. Supp. 20, 23 (D.D.C. 1993)]," NCRC wrote in their brief. NCRC also said that NCUA did not meet the key test for demonstrating `good cause' in vacating the normal notice and comment procedure, which includes regulation that is "impracticable, unnecessary, or contrary to the public interest [5 U.S.C. 553(b)(B); accord Methodist Hospital, 38 F.3d at 1236-37]." Early last week, CUNA and NAFCU filed a joint amici curiae, literally `friends of the court,' brief reinforcing the NCUA's position in the lawsuit filed against the agency by NCRC, calling the challenge "baseless." According to the amici brief, NCRC's point in the lawsuit, the violation of the APA is moot, because NCRC's challenge of the procedure in approving the interim final rule does not cover the final rule approved April 18 by a vote of 2-0-1, with Board Member Deborah Matz abstaining. Additionally, the brief argued that NCUA did have `good cause' to repeal the regulation because of the costly burden to credit unions, particularly, quoting the NCUA repeal in the brief, in light of the sudden credit union asset growth and uncertain economic conditions. Playing the devil's advocate, the brief said, if NCUA were in violation of the APA, "The notice and invitation for public comment that followed upon the issuance of the interim rule cured any alleged injury NCRC claims to have suffered as a result of its inability to comment on NCUA's repeal of the CAP requirement." Additionally, CUNA and NAFCU's brief accused, "Although NCRC's argument is, on its surface, a procedural one, repeated references to the advisability of a CAP requirement, which NCRC strongly favors, are woven throughout the Complaint. In fact, plaintiff's attack on NCUA's rulemaking process is little more than a thinly-veiled challenge to NCUA's substantive decision to repeal the CAP requirement." Their joint brief also addressed the substance of the regulation. "[B]anks and other financial institutions subject to CRA get CRA "credit" for investing in certain credit unions. It would be anomalous in the extreme to impose upon those credit unions – which Congress has already concluded are engaged in CRA-worthy lending activities – additional CRA-type reporting requirements," the trade groups advocated. Williams and Connolly LLP, a Washington, DC law firm, filed the brief. [email protected]