Brisco v. National Credit Union Administration , 130 F. App'x 266 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 27 2005
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
VICKIE BRISCO,
Petitioner,
v. No. 04-9546
(Agency No. 04-INS-001)
NATIONAL CREDIT UNION (Petition for Review)
ADMINISTRATION,
Respondent.
ORDER AND JUDGMENT *
Before LUCERO , McKAY , and ANDERSON , Circuit Judges.
Vickie Brisco petitions for review of a decision of the National Credit
Union Administration (“NCUA”) Board denying her demand for the return of
funds allegedly held in accounts at a credit union that was involuntarily
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
liquidated. Finding no error in light of the applicable standard of review, we
deny the petition for review.
Brisco had several share accounts and outstanding loans at Roosevelt
County Credit Union in Portales, New Mexico. The credit union was
involuntarily liquidated by the NCUA on June 30, 2002. Admin. R. at 184.
Brisco first sought the return of $85,000 she allegedly held on deposit, and later
increased her demand to $95,000. Id. at 32, 59. The NCUA, the liquidating
agent, through its Asset Management and Assistance Center (AMAC), construed
her demand as a claim for share insurance. After extensive correspondence,
AMAC reconstructed Brisco’s accounts from April 1, 1991, through August 13,
2002, based on quarterly credit union statements. Id. at 42, 46-51. AMAC was
able to reconstruct Brisco’s account activity despite three missing statements from
1993 and 1994. Id. at 42. Based on this reconstruction, AMAC concluded that
Brisco’s share accounts were outbalanced by her delinquent loans, that she had a
negative share balance at the time of the liquidation, and that she was not entitled
to any recovery. See id. at 53-57.
Although Brisco alleged that a number of withdrawals and transfers had
been made without her authorization, she failed to provide documentation to
support her claims. Regardless, AMAC investigated Brisco’s claim of
unauthorized transactions, determining that it was refuted by the available
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documentation. Accordingly, AMAC denied her demand for the return of funds.
Brisco appealed to the NCUA Board, which conducted an independent review of
her accounts and upheld NCUA’s decision to deny her claim. Id. at 184-86.
Brisco then filed this petition for review.
We review the NCUA Board’s decision under the Administrative Procedure
Act (APA), 5 U.S.C. §§ 701-706. 12 U.S.C. § 1787(d)(4). Under the APA, we
will set aside a final agency action “only if it is arbitrary, capricious, otherwise
not in accordance with law, or not supported by substantial evidence.” Am.
Colloid Co. v. Babbitt , 145 F.3d 1152, 1154 (10th Cir. 1998). Our review is
“highly deferential.” Valley Cmty. Pres. Comm’n v. Mineta , 373 F.3d 1078, 1084
(10th Cir. 2004) (quotation omitted). Our duty is “to ascertain whether the
agency examined the relevant data and articulated a rational connection between
the facts found and the decision made.” Cliffs Synfuel Corp. v. Norton , 291 F.3d
1250, 1257 (10th Cir. 2002) (quotation omitted). An agency’s action is not
arbitrary and capricious unless it “‘relied on factors which Congress did not
intend it to consider, entirely failed to consider an important aspect of the
problem, offered an explanation for its decision that runs counter to the evidence
before the agency, or is so implausible that it could not be ascribed to a difference
in view or the product of agency expertise.’” Thomas Brooks Chartered v.
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Burnett , 920 F.2d 634, 644 (10th Cir. 1990) (quoting Motor Vehicle Mfrs. Ass’n
v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43 (1983)).
Accounts in a credit union are insured up to a maximum of $100,000.
12 U.S.C. § 1787(k)(1). Upon a finding that an insured federal credit union is
bankrupt or insolvent, the NCUA Board closes and liquidates the credit union. Id.§ 1787(a)(1)(A). When claims are made by a depositor, the NCUA Board has
discretion to require proof of claims, “and may approve or reject such claims for
insured deposits.” Id. § 1787(d)(2). “[I]n determining the amount due to any
member, there shall be added together all accounts [after deducting offsets] in the
credit union maintained by him for his own benefit either in his own name of in
the names of others.” Id. § 1787(k)(1). As the depositor seeking reimbursement,
Brisco bore the burden to substantiate her claim for funds, see id. § 1787(d)(2);
12 C.F.R. § 745.202(c)(1). She also bears the burden before this court to show
that the NCUA Board’s action was arbitrary, capricious, or not supported by
substantial evidence. See AllCare Home Health, Inc. v. Shalala , 278 F.3d 1087,
1089 (10th Cir. 2001).
We have reviewed the record in light of the parties’ briefs on appeal.
Brisco was, and is, unable to controvert AMAC’s reconstruction of her accounts
with specific evidence. While she questions certain transactions, she has not
demonstrated that AMAC failed to consider her challenges or that its
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reconstruction of her accounts is not supported by substantial evidence. She has
pointed to no specific evidence tending to show that alleged improprieties at the
credit union affected her account balances. Her conclusory claims are
insufficient. We conclude that the NCUA Board’s decision is reasonable and is
supported by substantial evidence.
The petition for review is denied.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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