WASHINGTON-The National Community Reinvestment Coalition (NCRC) recently filed an objection with the U.S. District Court for the District of Columbia to CUNA's and NAFCU's amici curiae ("friends of the court") brief in the group's lawsuit against the NCUA. NCRC filed suit against the regulator early this year charging that the Administrative Procedures Act (APA) was violated when it issued an interim final rule repealing the controversial Community Action Plan (CAP). In its claim, NCRC said that the amici brief was not filed at the proper time, which should have been at the defendant's filing of the motion to dismiss on April 2, 2002, or within seven days thereafter. While NCRC admits that the Federal Rules of Civil Procedure and this particular court had not set ground rules for this situation, the group points out that other courts have. NCRC also charges that the association was "deprived" an opportunity to respond because CUNA and NAFCU did not file until April 23, a day after the plaintiffs filed their opposition. Most amici briefs are filed at the appellate level so timing at this point in the proceedings treads into somewhat unchartered waters. Staff Attorney with the Lawyers Committee for Civil Rights Under the Law Julie Nepveu remarked, "It's not unheard of, but there's no procedure for it." Additionally, NCRC declared that CUNA's and NAFCU's brief does not add any new information to the arguments presented in NCUA's motion. The NCRC response continues on to address substantive issues in the case, including reiterating its position that NCUA has not "cured" the alleged violation of the APA by approving a final rule repealing the CAP and that NCRC was caused injury by NCUA's sidestepping of it. "It's never a positive position to want to keep people out of court," CUNA General Counsel Eric Richard observed. He explained that it could appear as if NCRC is trying to hide something. CUNA and NAFCU have filed a joint reply brief saying they should be permitted to file the amici brief because it was filed in a timely manner and the trade associations add a "unique perspective" to the case. Staff Attorney with the Lawyers Committee for Civil Rights Under the Law Matthew Drexler responded, "It is NCRC's desire to get to the merits of that claim (that NCUA violated the APA)." He said the plaintiffs feel that the Federal government is adequately representing NCUA's position and that any information CUNA and NAFCU could bring to the case would be extraneous. As to being deprived of the opportunity to respond, the motion in support of permitting the lobby groups' brief points out that NCRC, in this latest filing, has spoken its collective mind on the amici brief. Citing legal cases, the credit union filing also notes that the court is given broad discretion in deciding who can file amicus briefs. The amici brief also states that CUNA and NAFCU have a particular interest in whether NCUA follows the APA since their member credit unions are under NCUA's authority. (In fact, when CUNA floated the idea of suing the agency themselves over the potential implementation of the CAP in September 2000, the trade association, in a comment letter to NCUA, cited APA violations in not allowing for notice and comment on the examiner guidelines concerning the CAP when the change to the Field of Membership and Chartering Manual was proposed.) "In addition, [CUNA and NAFCU] have a unique familiarity with the obligations faced by credit unions in complying with regulations such as the [CAP] requirement at issue in this matter," the brief read. Bill Donovan, NAFCU senior vice president and general counsel, commented, "Our claim is that credit unions at NAFCU and CUNA as the representatives of credit unions do, in fact, have unique perspective that can be of assistance to the court because it's those institutions that we represent that would be subject to the regulation promulgated by NCUA and that those regulations have a significant impact on the daily operations of credit unions and [we have] got far more extensive and immediate experience than would be the case for any other party to the proceedings." He added that every motion made in a U.S. district court must be taken seriously. "We're confident that we have enunciated a sound legal basis for the court to deny the NCRC motion. However, judges make their rulings based on their interpretation of the law, and until the court rules it remains an open question in this case," Donovan concluded. -

[email protected]