* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist 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. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 27 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
VICKIE BRISCO,

Petitioner,

v. NATIONAL CREDIT UNION ADMINISTRATION,

Respondent. No. 04-9546 (Agency No. 04-INS-001) (Petition for Review)

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 dem and for the return of funds allegedly held in accounts at a credit union that was involuntarily-2-

liquidated. Finding no error in light of the appli cable standard of review, we deny the petition for review. Brisco had several share accounts and outstanding l oans at Roosevelt County Credit Union in Portales, New Mexico. The c redit union was involuntarily liquidated by the NCUA on June 30, 20 02. Admin. R. at 184. Brisco first sought the return of $85,000 she alleg edly 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 e xtensive 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 despi te three missing statements from 1993 and 1994. Id. at 42. Based on this reconstruction, AMAC conclud ed that Brisco’s share accounts were outbalanced by her del inquent loans, that she had a negative share balance at the time of the liquidati on, and that she was not entitled to any recovery. See id. at 53-57. Although Brisco alleged that a number of withdrawal s 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-3-

documentation. Accordingly, AMAC denied her demandfor 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 Admin istrative 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 reviewis “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 arational 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 fact ors which Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision th at runs counter to the evidence before the agency, or is so implausible that it cou ld not be ascribed to a difference in view or the product of agency expertise.’” Thomas Brooks Chartered v.-4-

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 maxi mum of $100,000. 12 U.S.C. § 1787(k)(1). Upon a finding that an ins ured 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 deposit or, the NCUA Board has discretion to require proof of claims, “and may app rove 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 reimbursem ent, 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 burd en before this court to show that the NCUA Board’s action was arbitrary, caprici ous, 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 rec onstruction of her accounts with specific evidence. While she questions certai n transactions, she has not demonstrated that AMAC failed to consider her chall enges or that its-5-

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 co nclusory claims are insufficient. We conclude that the NCUA Board’s de cision is reasonable and is supported by substantial evidence. The petition for review is denied.

Entered for the Court

Carlos F. Lucero Circuit Judge