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FIRST NATL. BANK & TRUST CO. v. NCUA

August 9, 1991

FIRST NATIONAL BANK AND TRUST COMPANY, PIEDMONT STATE BANK, LEXINGTON STATE BANK, RANDOLPH BANK AND TRUST COMPANY, BANKERS TRUST OF NORTH CAROLINA, and AMERICAN BANKERS ASSOCIATION, Plaintiffs,
v.
NATIONAL CREDIT UNION ADMINISTRATION, Defendant, and AT & T FAMILY FEDERAL CREDIT UNION and CREDIT UNION NATIONAL ASSOCIATION, INC., Defendant-Intervenors



The opinion of the court was delivered by: HARRIS

 STANLEY S. HARRIS, UNITED STATES DISTRICT JUDGE

 Plaintiffs, five North Carolina banks and the American Bankers Association, challenge decisions by the National Credit Union Administration (NCUA) approving amendments to the charter of the AT & T Family Federal Credit Union (AT & T Family) expanding its field of membership. They allege that when the NCUA approved the amendments, it acted arbitrarily and capriciously, and violated the statutory requirement under the Federal Credit Union Act, 12 U.S.C. § 1751 et seq. (FCUA), that there be a "common bond of occupation or association" among the members of a federal credit union association. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. §§ 2201 and 2202, they ask that various NCUA approvals of applications by AT & T Family be declared null and void and that defendant be enjoined from approving similar amendments to AT & T Family's charter. Now before the court are defendant's motion to dismiss for lack of standing and plaintiffs' opposition thereto. For the reasons set forth below, defendant's motion is granted, and the case is dismissed.

 BACKGROUND

 The Federal Credit Union Act was passed in 1934, in the wake of the Great Depression. After the crash, access to credit had been virtually eliminated for the great majority of the working class: most potential borrowers lacked the security to acquire a loan from a bank, and other licensed money lenders were able to charge extremely high interest rates. S. Rep. No. 555, 73d Cong., 2d Sess. 3 (1934); see also 78 Cong. Rec. 7259 (1934). Without access to credit, the nation's lower and middle classes saw their buying power spiral downward. S. Rep. No. 555 at 3.

 The establishment of national credit unions, modelled after state supported organizations which had thrived through the economic chaos of the Depression, was seen as a "happy medium" between the loan shark and the bank. 78 Cong. Rec. 7259 (1934). Congress expected that members of credit unions, "with their own money and under their own management," would be able to solve their own credit difficulties. S. Rep. No. 555 at 2. It was hoped that with access to small amounts of funds at reasonable interest rates, national credit unions would return significant buying power to those otherwise unable to have it. Id. at 1. Though state-sponsored credit unions fulfilled this need in some areas, Congress felt that the nation would benefit from a federal system because it would be capable of rapid expansion and would permit the creation of credit unions in states that did not previously authorize them. Id. at 2, 3.

 The credit union is distinctive in that it is the members who own and control the organization. Members purchase shares in the credit union and exercise control over it democratically, irrespective of the number of shares held. 12 U.S.C. §§ 1757(6), 1760 (1988). Loans may be made only to members of the organization or to other credit unions. § 1757(5). Each credit union is managed by a board of directors elected annually by and from the members, and no member of the board receives any compensation for these services. § 1761. Supervision and chartering of credit unions is entrusted to the Board of the National Credit Union Administration (NCUA), a three-member panel appointed by the President upon the advice and consent of the Senate. §§ 1752a, 1754, 1756.

 At issue in this case is § 109 of the FCUA, now codified at 12 U.S.C. § 1759, which provides that members of a credit union must share "a common bond" of occupation, association, or location. The NCUA has defined a common bond as:

 
the sharing of some unifying factor or characteristic among persons that simultaneously links them together and distinguishes them from the general public. This unifying factor must be something more than an unfocused, generalized agreement on a given topic, or a common belief or philosophy on matters of general concern.

 45 Fed. Reg. 8285 (1980).

 In recent years the NCUA has interpreted the common bond requirement to allow a number of occupational or associational groups to form a credit union if each group shares its own common bond. See 12 C.F.R. § 701.1 (1991); 54 Fed. Reg. 31,169 (1989). Plaintiffs challenge decisions by the NCUA approving applications by AT & T Family to expand its membership to include employee groups that have a separate common bond from the AT & T employee group. Defendant moves to dismiss for lack of standing to sue under the FCUA, and is joined in that motion by intervenors AT & T Family and Credit Union National Association, Inc..

 DISCUSSION

 The Administrative Procedure Act (APA) grants standing to anyone "adversely affected by agency action within the meaning of the relevant statute." *fn1" 5 U.S.C. § 702. In Association of Data Processing Service Organizations v. Camp, the Supreme Court explained that a party meets this standard if "the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute . . . in question." 397 U.S. 150, 153, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970). Since Data Processing, the "zone of interests" test has been the standard by which the Court has judged questions of standing under § 702 of the APA.

 The Court clarified what it means for a complainant to be within the "zone of interests" of a statute in Clarke v. Securities Industry Ass'n, 479 U.S. 388, 93 L. Ed. 2d 757, 107 S. Ct. 750 (1987). The ultimate inquiry, it asserted, is centered upon congressional intent. Id. at 399. In view of Congress's evident intent to make agency action presumptively reviewable, a plaintiff has standing only if Congress intended for that particular class of plaintiffs to be relied upon to challenge agency action allegedly in disregard of the law. Id. The goal of the test is to exclude those plaintiffs who are more likely to frustrate than to further statutory objectives. Id. at 397, n. 12. In cases where a party is the subject of the contested regulation, it is clear that Congress intends for that party to be able to act as a "private attorney general" through bringing a suit to enforce the statute. Id. at 399. But when not the subject of the ...


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