667 F.2d 708 (8th Cir. 1981), 81-1803, First Nat. Bank in Sioux Falls v. National Bank of South Dakota

Docket Nº:81-1803.
Citation:667 F.2d 708
Party Name:The FIRST NATIONAL BANK IN SIOUX FALLS, a national banking corporation, Appellant, v. NATIONAL BANK OF SOUTH DAKOTA and all its Branches using the name of First Bank of South Dakota (N.A.)-Sioux Falls, a national banking corporation and John Heimann, Comptroller of the Currency, Appellees.
Case Date:December 29, 1981
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 708

667 F.2d 708 (8th Cir. 1981)

The FIRST NATIONAL BANK IN SIOUX FALLS, a national banking

corporation, Appellant,

v.

NATIONAL BANK OF SOUTH DAKOTA and all its Branches using the

name of First Bank of South Dakota (N.A.)-Sioux Falls, a

national banking corporation and John Heimann, Comptroller

of the Currency, Appellees.

No. 81-1803.

United States Court of Appeals, Eighth Circuit

December 29, 1981

Submitted Oct. 15, 1981.

Page 709

Michael F. Pieplow (argued), Davenport, Evans, Hurwitz & Smith, Sioux Falls, S. D., for appellant.

Dorsey, Windhorst, Hannaford, Whitney & Halladay, David A. Ranheim (argued), Daniel P. O'Keefe, Minneapolis, Minn., for appellee National Bank of South Dakota.

Jeffrey L. Viken, Acting U. S. Atty., J. Paul McGrath, Acting Asst. Atty. Gen. U. S. Dept. of Justice, Ronald R. Glancz, James F. E. Gillespie, Jr. (argued), Attys., Litigation Div., Washington, D. C., for appellee Heimann.

Page 710

Before LAY, Chief Judge, McMILLIAN, Circuit Judge, and HUNTER, [*] Senior District Judge.

ELMO B. HUNTER, Senior District Judge.

The First National Bank in Sioux Falls BSiouxFallsappealsfrom the summary judgment entered by the district court 1, 517 F.Supp. 1296, affirming the Comptroller of the Currency's approval of a name change for National Bank of South Dakota (National Bank) to First Bank of South Dakota (N.A.). The district court ordered a stay of the change pending this appeal. We affirm the decision of the district court.

On appeal from the district court, the appellate court "must render an independent decision on the basis of the same administrative record as that before the district court; the identical standard of review is employed at both levels; and once appealed, the district court decision is accorded no particular deference." First National Bank of Fayetteville v. Smith, 508 F.2d 1371, 1374 (8th Cir. 1974), cert. den. 421 U.S. 930, 95 S.Ct. 1655, 44 L.Ed.2d 86 (1975). The appropriate record on review is not that made by the district court, but the administrative record already in existence. Id.; Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). Therefore, we look solely to the administrative record.

Procedural History

Appellee National Bank applied to the United States Comptroller of the Currency (Comptroller) for permission to change its name pursuant to 12 U.S.C. § 30. National Bank has eighteen branches in South Dakota, including branches in Sioux Falls and Rapid City.

In response to the published notice of the application, two competing banks objected to the name change, The First National Bank in Sioux Falls BSiouxFalls,appellant, and First National Bank of the Black Hills 2 located in Rapid City. A public hearing on the proposed change was scheduled before the Regional Director for Corporate Activities, Ninth National Bank Region. 3

At the hearing, both the applicant and the two protestants presented witnesses. National Bank's witnesses explained the business justification for the proposed change and stated that they believed there would be no substantial confusion resulting from the name change. Protestants' witnesses relied on the results of similar name changes and concluded that substantial confusion would result.

Post-hearing statements were submitted by all parties. Following this submission, the Regional Administrator and the Regional Director for Corporate Activities reviewed the entire record and provided analysis

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and recommendations. These, together with the record, were forwarded to the Division for Bank Organization and Structure in Washington, D. C. Its director, the Manager of Bank Structure Analysis, and a staff analyst reviewed the record and added their own recommendations and comments. The Comptroller's staff unanimously recommended that the application be approved. On this augmented record, the Deputy Comptroller of the Currency approved the application for name change and later issued a Supplemental Opinion outlining the reasons for his approval. The district court affirmed the Comptroller's approval.

Standard of Review

In reviewing the district court's decision affirming the Comptroller's action, there are three standards of review which must be considered. The first is the one used in reviewing an agency's decision on fact questions. We addressed this standard in First National Bank of Fayetteville v. Smith, 508 F.2d 1371, 1379 (8th Cir. 1974). 4 We relied on the standard of review set out in the Administrative Procedure Act, 5 U.S.C. § 706 (1976):

... To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall-

(2) hold unlawful and set aside agency action, findings, and conclusions found to be-

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

The scope of the "arbitrary and capricious" standard of review is more restrictive than the "substantial evidence" test, 5 and

"(a)dministrative action may be regarded as arbitrary...

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