NCUA and the Supreme Court

There is a case before the Supreme Court this term that could influence credit unions’ options when they disagree with an NCUA action or ruling.

In the 1984 Chevron case, the Court’s decision gave deference to a federal agency’s interpretation, as well as enforcement, of the law.

As described below this precedent and the authority it gave federal agencies is now the subject of an appeal that might curtail the scope of that decision. The case is described below.

How Might this Affect Credit Unions

If the Court’s decision were to limit the agency “deference” practice  from Chevron, it would create better opportunities for credit unions to challenge NCUA actions.

A recurring example of the agency’s unilateral interpretations are its determinations of the adequacy of a credit union’s loss allowance and hence its net worth/PCA ratio.

A classic example is NCUA’s conservatorship of Arrowhead Central Credit Union in 2010.  The agency said the credit union was severely undercapitalized with a net worth ratio of only 3%.  However that ratio was because the agency disputed the adequacy of the credit union’s allowance account.  Examiners required significantly more allowance expense.  Subsequent events showed management’s original estimate was exactly on target.

NCUA celebrated the credit union’s miraculous turnaround in May 2013 pointing to a net worth of 10.5% up from the 3% estimate when conserved 36 months earlier. The situation was another example of regulatory misjudgments from which there has been no external appeal.

Ironically the legacy of this account’s over-funding continues today. Arrowhead’s coverage ratio (allowance account/delinquent loans) is 940% or roughly 800% higher than the industry average.

Even NCUA board members who interpret the law as they read it have no standing.   Board member Mark McWatters,  a lawyer, presented his legal analysis opposing  the agency’s risk based capital proposals as not authorized by statue. His reasoning was “overruled” twice by a simple board vote, 2 to 1.

Rebalancing Unilateral Decision Making

The Chevron precedent has inhibited credit unions from challenging NCUA’s judgments and actions in court.   For example the so-called merger of the TCCUSF with the NCUSIF to use the funds for natural person loses was specifically prohibited in Congress’s  legislative language with the bill.  This was pointed out to the board, the IG and  NCUA’s auditor in letters and formal comments, but to no avail.

Should the Chevron precedent be modified, it could result in a better balance between the judgments of the regulator  and the rights of credit union’s to challenge those determinations.

Agency deference

by Jonathan Turley, Shapiro Professor of Public Interest Law, George Washington University. (Jan 1, 2022)

While not often discussed with the “matinee” cases of the term, one case on the docket could bring sweeping impacts across various areas — from the environment to financial regulations to public health. American Hospital Association (AHA) v. Becerra raises a highly technical question of a U.S. Department of Health and Human Services rule that cut outpatient drug reimbursements to hospitals. The rule is based on an agency interpretation of vague statutory provisions — an interpretation that was defended under the deference afforded to agency decisions.

 The case is technically about outpatient care for Medicare Part B recipients; however, for some justices, particularly Samuel Alito and Neil Gorsuch, it is all about Chevron and agency deference.

 Chevron USA Inc. v. Natural Resources Defense Council Inc. is a 1984 administrative law case that has come to embody the role of federal agencies in not just enforcing but creating law. The “Chevron Doctrine” has insulated agency decisions for decades from substantive review, giving federal agencies an overwhelming degree of authority in our system of government.

 For some of us, the dominance of federal agencies has become equivalent to a fourth branch of government. The question is whether a critical mass has formed on the court to substantially curtail that decision. If so, AHA v. Becerra could be a torpedo in the water for the Chevron Doctrine.

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