WASHINGTON-The defendants in a lawsuit brought by the American Bankers Association and others have briefed the court on the improperness of allowing for discovery in essentially what is an appellate case. According to the brief filed by NCUA, CUNA, NAFCU, the Utah League of Credit Unions, and three Utah credit unions, it is not appropriate for the ABA to request discovery-essentially a trial procedure-in an appellate case. According to the brief, quoting the Tenth Circuit Court, “Reviews of agency action in the district courts must be processed as appeals.” Judge Dale Kimball, who is presiding over the case. has even relied on this decision (Olenhouse v. Commodity Credit Corporation) to support one of his own in the past (Southern Utah Wilderness Alliance v. Dabney). Therefore, “NCUA should present the administrative record for its actions approving the applications of the three Credit Unions. The parties thereafter should file briefs on the merits.Then a final hearing should be set as soon thereafter as the Court’s own schedule permits,” the brief for the credit union organizations suggested.

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