Tullier v. U.S. Department of Defense

Full title: TONY DALE TULLIER, Plaintiff, v. U.S. DEPARTMENT OF DEFENSE, Defendant

Court: United States District Court, W.D. Texas, San Antonio Division

Date published: Jun 1, 2005

Civil Action No. SA-04-CA-1113 XR (NN) (W.D. Tex. Jun. 1, 2005)

Opinion

Civil Action No. SA-04-CA-1113 XR (NN).

June 1, 2005

MEMORANDUM AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

NANCY NOWAK, Magistrate Judge

TO: Hon. Xavier Rodriguez United States District Judge.

Introduction

The matter before the court is plaintiff/petitioner Tony Dale Tullier's "motion for order pursuant to customer challenge of provisions of Right to Financial Privacy Act of 1978 (docket entry 1)." By way of the instant motion, Mr. Tullier "moves . . . for an order preventing the Government from obtaining access to [his] financial records."¹ For the reasons which follow, I recommend that the motion be DENIED. I have jurisdiction to enter this Memorandum and Recommendation under 28 U.S.C. § 636(b) and the District Court's Order referring the motion to me to aid in its disposition by recommendation where my authority as a Magistrate Judge is statutorily constrained.²

Statement of the Case

Plaintiff/Petitioner Tony Dale Tullier is a Major in the United States Air Force.³ When Mr. Tullier was transferred from Eglin Air Force Base in Florida to Brooks-City Base in San Antonio, Texas, the government hired a moving company to move his household and personal belongings.⁴ After a fire destroyed the items in the moving truck, Mr. Tullier filed claims with both his personal insurance carrier and the government.⁵ The government believes that Mr. Tullier's claim was, at least in part, fraudulent and initiated an investigation into the claim. As part of its investigation, the government sought copies of certain of Mr. Tullier's financial records, including financial records from plaintiff's account(s) with USAA Federal Savings Bank.⁶ Mr. Tullier is requesting that the court issue an order preventing defendant/respondent from obtaining access to these financial records pursuant to the Right to Financial Privacy Act of 1978.

Analysis

The Right to Financial Privacy Act ("RFPA" or "Act") was enacted by Congress in reaction to a 1976 Supreme Court decision which held that a "bank customer had no legitimate expectation of privacy in his bank records."⁷ Under the Act, a "Government authority may obtain financial records . . ." only if:

(1) there is reason to believe that the records sought are relevant to a legitimate law enforcement inquiry;

(2) a copy of the subpena ( sic) or summons has been served upon the customer or mailed to his last known address on or before the date on which the subpena or summons was served on the financial institution together with [the notice set forth in the Act].⁸

7 Sandsend Financial Consultants v. Federal Home Loan Bank Board, 878 F.2d 875, 877 (5^th Cir. 1989), discussing United States v. Miller, 425 U.S. 435 (1976). See also Right to Financial Privacy Act, 12 U.S.C. § 3401, et seq.

8 12 U.S.C. § 3405.

In order to challenge a subpoena for financial records, a plaintiff/petitioner "must file a motion to quash that includes an affidavit or sworn statement."⁹ If the court concludes

9 Sandsend Financial Consultants, 878 F.2d, at 877.

that there is a demonstrable reason to believe that the law enforcement inquiry is legitimate and a reasonable belief that the records sought are relevant to that inquiry, it shall deny the motion . . . and . . . order such process enforced.¹⁰

10 12 U.S.C. § 3410(c). See also Sandsend Financial Consultants, 878 F.2d, at 877.

Thus, the court is engaged in a two part inquiry: (1) whether the law enforcement inquiry is legitimate; and (2) whether there is a reasonable belief that the records sought are relevant to that inquiry.

In this case, Mr. Tullier argues:

The financial records sought by the Department of Defense are not relevant to the legitimate law enforcement inquiry stated in the Customer Notice that was sent to me because the Air Force has never specifically informed me of what they actually believe is fraud in violation of Article 132 of the Uniform Code of Military Justice. . . .

My position from the beginning is that the government should inform me of which specific items they believe I have made a fraudulent claim and I would be more than happy to provide whatever evidence, financial or otherwise, to rebut their allegation.

The government should not be able to turn my private financial life upside down searching for any shred of evidence they can use to prove their case or try to create a case to justify their actions . . . I respectfully ask that the government be required to state specifically which parts of my claim they believe are fraudulent and then state specifically what areas of my financial records they believe will prove these allegations. If the government would do that, I would be happy to provide whatever information I can to prove my innocence, including financial records.¹¹

11 Docket Entry 1, Attachment 1.

Because Mr. Tullier has conceded that the law enforcement inquiry is a legitimate inquiry, the only issue before the court is whether there is a reasonable belief that the records sought are relevant to that inquiry.

In its response brief, the United States Department of Defense ("DOD") details the discrepancies between and among the various claims filed by Mr. Tullier on the loss of his personal items.¹² The DOD also outlines various items claimed by Mr. Tullier which it believes to be suspicious, such as "an unusually large number of winter clothes purchases while stationed in Florida, known to be a generally warm climate and an unusually large claim for food items purchased just prior to the move."¹³ The DOD asserts that the "requested financial records [are] relevant to the determination of whether Petitioner made the purchases of the items and in the amounts claimed to have been destroyed in the July 7, 2003 fire."¹⁴ It further argues that the

12 Docket Entry 5, at 1-3.

13 Docket Entry 5, at 3.

14 Docket Entry 5, at 4.

subpoena . . . is specific as to Petitioner, the type of financial documents to be produced and the applicable period of time for which Petitioner claims to have made the purchases for which he has no copies due to the fire.¹⁵

15 Docket Entry 5, at 6.

In fact, the subpoena is limited to the time period from January 1, 1996 to July 31, 2003, and specifies the particular kinds of records (banking and credit cards) sought.¹⁶

16 See Docket Entry, Appendix A Attachment.

The court's discretion in motions challenging the kind of subpoena at issue is "narrowly circumscribed."¹⁷ In this case, the government has established that the records sought are relevant to its legitimate law enforcement inquiry. For all these reasons, it is my recommendation that the court DENY plaintiff/petitioner's motion (docket entry 1) and order the process enforced.

17 Sandsend Financial Consultants, 878 F.2d, at 877.

Recommendation

Based on the foregoing, I recommend that plaintiff/petitioner Tony Dale Tullier's "motion for order pursuant to customer challenge of provisions of Right to Financial Privacy Act of 1978 (docket entry 1)" be DENIED.

VII. Instructions For Service And Notice of Right to Object/Appeal

The United States District Clerk shall serve a copy of this Memorandum and Recommendation on each and every party either (1) by certified mail, return receipt requested, or (2) by facsimile if authorization to do so is on file with the Clerk. According to Title 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), any party who desires to object to this report must serve and file written objections to the Memorandum and Recommendation within 10 days after being served with a copy unless this time period is modified by the District Court. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the District Court need not consider frivolous, conclusive or general objections. Such party shall file the objections with the Clerk of the Court, and serve the objections on all other parties and the Magistrate Judge. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the District Court.¹⁸ Additionally, any failure to file written objections to the proposed findings, conclusions and recommendations contained in this Memorandum and Recommendation within 10 days after being served with a copy shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.¹⁹