Harper v. Department of Defense
Filing
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ORDER - SECOND ORDER Denying 1 Motion for Order Pursuant to Customer Challenge Provisions of the Right to Financial Privacy Act. Signed by Judge Edward M. Chen on 8/8/2012. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 8/8/2012)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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CURTIS R. HARPER,
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Movant,
v.
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For the Northern District of California
United States District Court
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DEPARTMENT OF DEFENSE,
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Respondent.
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No. C-12-80167 MISC EMC
SECOND ORDER DENYING MOTION
FOR ORDER PURSUANT TO
CUSTOMER CHALLENGE
PROVISIONS OF THE RIGHT TO
FINANCIAL PRIVACY ACT
(Docket No. 1)
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On July 16, 2012, movant Curtis Harper filed a “Motion for Order Pursuant to Customer
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Challenge Provisions of the Right to Financial Privacy Act [RFPA] of 1978.” Docket No. 1; see 12
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U.S.C. § 3410. Mr. Harper contends that the government’s subpoena of his financial records from
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Delta Community Credit Union is “a malicious prosecution attempt, not related [] to a legitimate law
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enforcement enquiry,” and that therefore the Court should quash the subpoena. Docket No. 2 at 2.
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On August 2, 2012, this Court directed Defendant to file its sworn response to Mr. Harper’s motion.
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Docket No. 6. Defendant states that it is investigating “allegations that Harper defrauded the United
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States Department of Defense of approximately $162,023.00 by making and using false travel
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claims and Basic Allowance for Housing (BAH) documents while on active duty orders in violation
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of 18 U.S.C. § 641 (Larceny of Government Property/Funds) and 18 U.S.C. § 1001 (False
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Statements).” Opp., Docket No. 7, at 5. The government contends the financial records it seeks are
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relevant to its investigation because they will help establish, inter alia, what payments he made from
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and received to his bank account, whether said payments establish his residency in the state in which
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he claimed to live, and whether he intended to defraud the government. See Wojnar Decl., Docket
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No. 7-1, ¶ 1.
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Under the RFPA, a customer of a financial institution to whom an administrative summons
the sole judicial remedy available to a customer opposing the disclosure of financial records under
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the RFPA. See id. § 3410(e). “The motion must be supported by a sworn statement ‘stating the
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applicant’s reasons for believing that the financial records sought are not relevant to the legitimate
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law enforcement inquiry stated by the Government authority in its notice, or that there has not been
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substantial compliance with the provisions of [the RFPA].’” Nelson v. U.S. S.E.C., C08-80080
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MISC-JF-HRL, 2008 WL 2444794 (N.D. Cal. June 16, 2008) (citing § 3410(a)(2)). “The RFPA
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For the Northern District of California
has been served may move to quash the summons. See 12 U.S.C. § 3410(a). Section 3410 provides
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United States District Court
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provides only three grounds on which the district court may quash a subpoena: (1) the agency’s
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inquiry is not a legitimate law enforcement inquiry or (2) the records requested are not relevant to
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the agency’s inquiry or (3) the agency has not substantially complied with the RFPA.” Sandsend
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Financial Consultants, Ltd. v. Fed. Home Loan Bank Bd., 878 F.2d 875, 882 (5th Cir.1989).
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Thus, pursuant to 12 U.S.C. § 3410(c), “[i]f the court finds that . . . there is a demonstrable
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reason to believe that the law enforcement inquiry is legitimate and a reasonable belief that the
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records sought are relevant to that inquiry, it shall deny the motion or application, and, in the case of
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an administrative summons or court order other than a search warrant, order such process enforced.”
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(Emphasis added). In the instant case, Defendant has provided ample evidence that it is pursuing a
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legitimate law enforcement inquiry, and that Mr. Harper’s financial records are directly relevant to
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that inquiry. See generally Wojnar Decl. (describing investigative findings to date and explaining
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the need for financial records to corroborate or disprove the allegations). Mr. Harper’s argument
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provides no basis for challenging the legitimacy of the government’s investigation; at most, it
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indicates that he disagrees with the merits of the allegations under investigation. However, the
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government faces a minimal burden to prevail; that its allegations may be incorrect is no basis for
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denying its subpoena. See Sandsend, 878 F.2d at 882 (“An agency ‘can investigate merely on the
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suspicion that the law is being violated, or even just because it wants assurance that it is not.’”)
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(quoting United States v. Morton Salt Co., 338 U.S. 632, 642 (1950)). “So long as the material
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requested touches a matter under investigation, an administrative subpoena will survive a challenge
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that the material is not relevant.” Id. (internal citations and quotation marks omitted). Here, the
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government clears that threshold.
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Accordingly, the Court DENIES Mr. Harper’s motion to quash. The Clerk shall close the
file.
This disposes of Docket No. 1.
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IT IS SO ORDERED.
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Dated: August 8, 2012
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For the Northern District of California
United States District Court
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_________________________
EDWARD M. CHEN
United States District Judge
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