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SALT LAKE CITY-In a spin move more suited to the NBA, the ABA-American Bankers Association-is attempting to get around an earlier decision that prevented them from discovery proceedings in the Utah field of membership case, but NCUA and the intervenors are exhibiting a pretty strong defense. The defendants-NCUA, CUNA, NAFCU, the Utah League of Credit Unions, America First Federal Credit Union, Goldenwest Federal Credit Union, Tooele Federal Credit Union, and University of Utah Federal Credit Union-filed a memorandum last week in opposition to ABA’s request to insert information outside the administrative record into the Utah field of membership case. Though Judge Dale Kimball of the U.S. District Court for the District of Utah Central Division ruled the plaintiffs could not supplement the administrative record, they have filed a petition for judicial notice “to request that the Court take judicial notice of basic, undisputed facts relevant to the Bank Group’s administrative appeal of the NCUA’s decision.” If it were granted, the ABA and the other plaintiffs-the Utah Bankers Association, Bank of Utah, Liberty Bank, First Utah Bank, and Frontier Bank, FSB-would be permitted to submit evidence regarding three areas of NCUA’s decision, which the bankers feel the administrative record is lacking. “Specifically, the Bank Group requests that the Court take judicial notice of basic facts regarding (1) the Wasatch Front Regional Council (WFRC), (2) the Metropolitan Statistical Areas along the Wasatch front as established by the Executive Office of the President, Office of Management and Budget (the “OMB”), and (3) LDS Church membership by county in the State of Utah,” the bankers’ brief continued. The plaintiffs argue that Tooele’s application for the community charter including six counties only included two pages from the WFRC Web site and that the group’s Annual Report should be introduced. Additionally, the bankers want to insert relevant information from an OMB Bulletin outlining the three MSAs along the Wasatch front. Finally, ABA is asking that a newspaper article that includes LDS membership by county as supported by information obtained from the church be introduced into evidence. “The NCUA’s approval of the Tooele FCU application was based solely on information submitted to it in the Tooele FCU’s application,” the bankers’ brief read. “The NCUA’s approval of the application was reached through a closed process that did not allow any third party an opportunity to review or question the content of the application or to offer to the NCUA competing evidence or legal argument. Furthermore, a review of the administrative record in this case indicates that the NCUA made no effort to verify or investigate the facts submitted by Tooele FCU. The Bank Group maintains that the NCUA’s decision was based on information submitted by Tooele FCU that was inaccurate, incomplete and misleading.” When asked if the plaintiff’s filing was an end-run around to the earlier discovery decision in favor of the defendants, NCUA Trial Attorney John Ianno responded, “My view of it is yes. They’re attempting to have the court look at something beyond the administrative record.” NCUA and the intervenors filed a joint opposition to the ABA’s proposal stating as much. “Plaintiffs’ Petition for Judicial Review seeks to use Fed. R. Evid. 201 to circumvent the established rule requiring review of the Administrative Procedure Act (“APA”) cases to be “based on administrative record developed by the agency whose decision is being reviewed.” Plaintiffs’ petition must be denied for two reasons. First, Plaintiffs have not even attempted to satisfy the narrow exceptions for supplementation of the administrative record established by the Tenth Circuit. Second, even if the Plaintiffs were permitted to use Fed. R. Evid. 201 to supplement the administrative record-which they are not-the documents that Plaintiffs seek to add to the record do not address undisputed “adjudicative facts” subject to judicial notice under the Federal Rules of Evidence.” NCUA’s brief pointed out that Judge Dale Kimball invited the plaintiffs to “brief the issue of whether the record is adequate and see a remand for further proceedings before the agency.” However, instead of following up on that invitation, the bankers are trying to “circumvent the limited exceptions for supplementation” by requesting the judicial notice. [email protected]

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