National Ass'n of Mortgage Brokers v. Board of Governors of the Federal Reserve System
770 F. Supp. 2d 283
D.D.C.2011Background
- NAMB filed a complaint march 9, 2011 seeking expedited discovery against the Board and two Board officials; action relates to a final Truth in Lending Act rule restricting loan originator compensation.
- NAIHP filed a related action two days earlier challenging the same Board Rule; both actions pending in District of Columbia.
- Courts administratively consolidated the two actions on March 11, 2011 and applied a single briefing schedule.
- NAMB sought expedited reconsideration of the consolidation order; the court denied reconsideration but kept consolidation.
- NAMB sought expedited discovery to develop the record for a preliminary injunction; the court limited discovery to the administrative record.
- The Board stated it would produce the administrative record regarding the Rule’s compensation restrictions within two weeks.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether consolidation under Rule 42(a) was proper | NAMB contends consolidation would prejudice efficiency | Court should consolidate as there are common issues and records | Consolidation approved |
| Whether the March 11, 2011 consolidation order should be reconsidered | NAMB had no opportunity to oppose consolidation | Two actions share common questions; consolidation appropriate | Reconsideration denied |
| Adequacy of the briefing schedule after consolidation | NAMB will suffer prejudice if not heard promptly | Current schedule ensures timely consideration; no demonstrated inadequacy | Briefing schedule maintained |
| Scope of expedited discovery in APA rulemaking challenges | Request full administrative record and related documents | Judicial review is based on the administrative record; discovery should be limited | Expedited discovery granted in part; limited to administrative record |
| Timing of production of the administrative record | Board to produce portions promptly; full record within two weeks |
Key Cases Cited
- Hanson v. District of Columbia, 257 F.R.D. 19 (D.D.C. 2009) (consolidation promotes judicial economy when common issues arise)
- Utah v. U.S. Dep't of Interior, 45 F. Supp. 2d 1279 (D. Utah 1999) (consolidation allowed when same issues and facts; avoid duplicative trials)
- Jacobs v. Castillo, 612 F. Supp. 2d 369 (S.D.N.Y. 2009) (same issues of law against same defendant may support consolidation)
- Miller v. U.S. Postal Serv., 729 F.2d 1033 (5th Cir. 1984) (dual actions against same party; consolidation reduces duplicative proof)
- NVE, Inc. v. U.S. Dep't of Health & Human Servs., 436 F.3d 182 (3d Cir. 2006) (strong presumption against discovery in administrative rulemaking challenges)
- Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (U.S. 1971) (administrative record-based review; consideration of prejudicial error)
- Stainback v. Secretary of the Navy, 520 F. Supp. 2d 181 (D.D.C. 2007) (administrative record scope in APA actions; limits on new evidence)
- Environmental Defense Fund v. Costle, 657 F.2d 275 (D.C. Cir. 1981) (informal rulemaking review confined to the record)