WASHINGTON-The American Bankers Association (ABA) has submitted the last of its briefs prior to oral arguments in their lawsuit against the NCUA and others scheduled for September 5. NAFCU Senior Vice President and General Counsel Bill Donovan remarked of the brief that it simply “rehashes stale arguments” and remained confident in a credit union victory. Upon reviewing the brief that was submitted late Friday evening, CUNA General Counsel Eric Richard commented, “I would say we’re still going to win.” He added that the brief presented no surprises. The ABA brief accused NCUA of attempting “to promote the interests of large credit unions in a manner that is arbitrary and capricious and at odds with the legislative intent of the CUMAA [Credit Union Membership Access Act].” According to the ABA, NCUA’s brief and the joint brief by the trade associations do not address their complaint, namely the agency’s rulemaking process. The ABA also alleges that the credit unions’ reading of CUMAA promotes “unfettered growth” of large credit unions. The brief states that NCUA ignored congressionally established limits on multiple common bond credit unions and the “local area” requirement for community-chartered credit unions. The ABA noted that banker concerns and lawsuits led to the “local” restriction. How NCUA counts potential group members is also called into play. The ABA argues that the agency must count family members and others indirectly eligible for membership in its counts. “They are either ineligible to join or they are members of the group,” the ABA specified. Additionally, the bankers charge that NCUA has created a better environment for credit unions to add new groups and merge, but more difficult for smaller groups to create new credit unions. The bankers even rely on former NCUA Chairman Norm D’Amours’ own words when he said at the December 17, 1998 board meeting that the agency’s policy discourages groups of less than 3,000 members from starting a new credit union. The group argued that while Congress directed NCUA to develop a more restrictive approach to granting community credit union charters, NCUA has encouraged community charters. The brief also resurrected the ABA’s argument that the District court did not have all the proper information because the NCUA failed to submit the administrative record of its rulemaking, stating a “challenge to agency rulemaking (ABA emphasis) under the APA (Administrative Procedures Act) requires the court to `review the administrative record directly.’” Both the briefs from the NCUA and from CUNA/NAFCU and others counter that the agency was not required to submit the record. One thing Richard mentioned that was new was the bankers’ request to suspend the community charters approved since IRPS 99-1 while the appellate court makes its decision. Until now, he said the ABA had been “very circumspect in their remedy.” The ABA also questioned NCUA’s use of race and ethnicity to define a local community, which the defendants termed moot because the provisions are no longer part of the agency’s regulations. -scooke@cutimes.com