Get ready for a roller coaster ride of appeals and decisions in the banking industry's challenge to occupation-based credit unions.
Coming up in the next few months: as many as six separate challenges arising from the July 31 federal appeals court ruling that occupation-based credit unions may only serve employees who share a common bond.
"This is of critical concern to credit unions," said Brenda Furlow, acting general counsel at the Credit Union National Association. "We are evaluating all options in getting the injunction and the initial decision overturned."
The most significant fight centers on an Oct. 25 injunction by Judge Thomas P. Jackson, enforcing the appeals court's July ruling. This order prohibits the National Credit Union Administration from approving field-of- membership expansions or permitting institutions to add customers who don't share a common bond with the core membership.
The credit union industry's top priority is to overturn that order because it prevents 3,586 institutions from expanding.
"Their effort is to get a stay of Judge Jackson's permanent injunction," said Michael F. Crotty, deputy general counsel for litigation at the American Bankers Association. "They want to continue to do illegal things in the futile hope that the Supreme Court is going to say that everyone is wrong and credit unions can do what they want."
NCUA plans to ask Judge Jackson to delay implementing his order until the agency can ask the appeals court and the U.S. Supreme Court to intervene.
This request, known as a stay, is generally granted when the order would cause irreversible damage. For example, a judge may stay an order allowing a developer to demolish a building.
Judge Jackson, however, indicated in his October order that credit unions would not be permanently harmed. They simply will not be able to add members while the courts consider the expected appeals. He reiterated that comment at an Oct. 31 hearing.
If Judge Jackson denies the stay, NCUA is likely to appeal to the federal court in Washington, which is not expected to stay the order either. NCUA could then appeal to the Supreme Court, but the justices rarely get involved in these procedural fights.
On a second front, NCUA is expected to ask the federal appeals court in Washington to overturn Judge Jackson's Oct. 25 order. The agency is expected to charge that the ABA waited too long to challenge the field-of- membership rule, an argument Judge Jackson rejected. This appeal could take as long as two years to resolve. The decision could then be appealed to the Supreme Court.
Of course, in the most important appeal, NCUA is expected to ask the Supreme Court to overturn the banking industry's July 31 appeals court victory.
NCUA must file this appeal by mid-December if it wants the justices to hear the case this spring. But the agency could wait and file Jan. 20, the last day of the appeals period. NCUA might do this, hoping a federal appeals court in Cincinnati decides a similar pending case in its favor.
This would set up a conflict between the lower appellate courts, almost assuring Supreme Court review. Waiting, however, would delay arguments until next fall, with a decision unlikely before January 1998.
