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WASHINGTON – The U.S. Court of Appeals for the District of Columbia heard the appeal of the field of membership (FOM) case brought by the American Bankers Association (ABA) against NCUA. Michael Robinson, attorney for the Department of Justice, represented NCUA in court. “I don’t see any reason, based on what I saw today, that the court of appeals will overturn the district court,” NCUA General Counsel Bob Fenner said. He commented that the judges seemed will informed about the case and understood the issues in question. Fenner added that NCUA has a strong district court ruling behind them also. “I saw nothing that shook my faith in our case,” CUNA General Counsel Eric Richard echoed. He noted that at the very opening of the oral arguments, Judge Raymond Randolph drew immediate attention to the several different legal arguments the bankers were trying to make. “This whole case has a feeling of `there they go again,’ ” Randolph said. Richard explained that this emphasized credit unions’ belief that the ABA is making several random and disconnected arguments in the hopes something will stick. CUNA and NAFCU are listed as co-defendants in the case, along with State Employees Federal Credit Union of Albany, N.Y. NAFCU President and CEO Fred Becker, a former judge advocate general himself, said, “ I think it was very encouraging.” He reiterated Richard’s remarks and added that the judges seemed to strongly attack what the bankers considered their No. 1 priority: the counting of members for the purpose of adding new groups. ABA Deputy General Counsel for Litigation Mike Crotty took a less confident approach in his description of the oral arguments. “It was a mixed bag. There was really no way to judge [which way it will go],” Crotty said. He explained that Eric Mogilnicki of Wilmer, Cutler, and Pickering, who represented the ABA in the appeal, started off with the question of how NCUA counts potential members for the purposes of adding a new group because it was the issue for which the bankers felt they had the strongest legal argument. Mogilnicki advocated that NCUA should have to count family members in the potential member pool when adding a new group to a credit union. “Congress wanted to keep credit unions small,” he argued. According to Robinson, family members of people eligible for membership do not share the common bond required for membership on their own and therefore should not be included in the potential FOM. The judges also noted that it was senseless to count children in a credit union’s FOM. The bankers’ lawyer also attempted to point to the issue of NCUA’s not providing the trial court with an official copy of the administrative record, which the bankers had previously stressed in their appeals brief. NCUA had argued in their rebuttal that presenting the court with the official administrative record was unnecessary in this instance. Richard and Fenner both said they were surprised that the ABA did not make this a bigger issue. Crotty explained that the judges basically directed the flow of the entire argument. Because the judges did not make a bigger issue of the administrative record, Fenner said he is optimistic on that point. Along with Randolph, Judges Judith Rogers and David Tatel heard the arguments. General consensus among interested parties is that a decision will be made in the next few months. [email protected]

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