Taylor v. Department of Air Force

• Decision Date: 02 September 1998
• Docket Number: No. Civ.A. 96-S-2273.,Civ.A. 96-S-2273.
• Citation: 18 F.Supp.2d 1184
• Parties: Lester TAYLOR, Jackie Taylor, and Tamar Jackman Smith, Plaintiffs, v. The DEPARTMENT OF THE AIR FORCE and The Department of Justice, Defendants.
• Court: U.S. District Court — District of Colorado

18 F.Supp.2d 1184

Lester TAYLOR, Jackie Taylor, and Tamar Jackman Smith, Plaintiffs, v. The DEPARTMENT OF THE AIR FORCE and The Department of Justice, Defendants.

No. Civ.A. 96-S-2273.

United States District Court, D. Colorado.

September 2, 1998.

Alison Ruttenberg, Dennis H. Mark, Waller and Mark, PC, Denver, CO, for plaintiffs.

Gregory B. Kanan, Jennifer C. Robinson, Rothgerber, Appeal, Powers & Johnson, LLP, Linda A. Surbaugh, Arthur R. Goldberg, Caroline Lewis Wolverton, Dept. of the Air Force and Dept. of Justice, U.S. Dept. of Justice, Washington, DC, for defendants.

MEMORANDUM OPINION AND ORDER

SPARR, District Judge.

THIS MATTER comes before the court on the Recommendation of United States Magistrate Judge Abram that Defendants' Motion for Summary Judgment (filed December 16, 1997) be granted in part and denied in part. The Recommendation was issued on March 16, 1998 and served by mail on March 16, 1998. On April 1, 1998, Plaintiffs filed their Objections to Magistrate's Recommendation. On April 2, 1998, Defendants filed their Objections to Magistrate Judge's Report and Recommendation. The court must make a de novo determination of those portions of the proposed findings or recommendations to which specific objection is made. 28 U.S.C § 636(b)(1); Fed.R.Civ.P. 72(b). The court has reviewed de novo the motion, the Plaintiffs Brief in Opposition (filed February 9, 1998), the Defendants' Reply Brief (filed March 2, 1998), the Recommendation, the Objections, the Defendants' Response to Plaintiffs' Objections (filed April 8, 1998), the Plaintiffs' Response to Defendants' Objections (filed April 15, 1998), the exhibits, the entire case file, and the applicable law and is sufficiently advised in the premises.

1. Standard of Review

The very purpose of a summary judgment motion is to assess whether trial is necessary. White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir.1995). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Russillo v. Scarborough, 935 F.2d 1167, 1170 (10th Cir. 1991). A "material" fact is one that might affect the outcome of the suit under the governing law. An issue of material fact is genuine if a reasonable jury could return a verdict for the non-movant. Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

The moving party bears the initial burden of showing that there is an absence of any issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991). The movant need not negate the non-movant's claim, but need only point to an absence of evidence to support the non-movant's claim. Celotex, 477 U.S. at 325, 106 S.Ct. 2548; John Hancock Mut. Life Ins. Co. v. Weisman, 27 F.3d 500, 503 (10th Cir.1994); Universal Money Ctrs., Inc. v. AT & T, 22 F.3d 1527, 1529 (10th Cir.), cert. denied, 513 U.S. 1052, 115 S.Ct. 655, 130 L.Ed.2d 558 (1994). If the moving party meets this burden, the non-moving party may not rest upon its pleadings, but must come forward with specific facts showing that there is a genuine issue for trial as to the elements essential to the non-moving party's case. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Anderson, 477 U.S. at 256, 106 S.Ct. 2505; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991); Applied Genetics Int'l. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990).

In applying the summary judgment standard, the court construes the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment. Blue Circle Cement, Inc. v. Board of County Comm'rs., 27 F.3d 1499, 1503 (10th Cir.1994); Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). However, the mere existence of some alleged factual dispute will not defeat an otherwise properly supported motion for summary judgment. FDIC v. Hulsey, 22 F.3d 1472, 1481 (10th Cir.1994) (emphasis in original). To constitute a genuine factual dispute, there must be more than a scintilla of evidence; summary judgment may be granted if the evidence is merely colorable or is not significantly probative. Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir.1993) (citation omitted). "[T]he relevant inquiry is `whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Bingaman v. Kansas City Power & Light Co., 1 F.3d 976, 980 (10th Cir.1993), quoting Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505.

2. Background

The Right To Financial Privacy Act (RFPA), 12 U.S.C. § 3401 et seq., prohibits financial institutions from providing the government with information about their customers' financial records unless the customer authorizes the release or the government obtains a valid subpoena or warrant. 12 U.S.C. § 3402; Jones v. Department of the Air Force, 947 F.Supp. 1507, 1510 (D.Colo. 1996) (citations omitted). The RFPA prescribes specific procedures by which the government may obtain financial institution records. 12 U.S.C. § 3402. The RFPA also prescribes exceptions for certain disclosures that are not prohibited. 12 U.S.C. § 3413.

The following facts are supported by the record before the court and are essentially undisputed. In 1993, the Air Force Office of Special Investigations (AFOSI) began an investigation of Lieutenant Colonel Larry O. Anderson and Master Sergeant Sylvester Bell, among others, concerning their operation of "The Desert Inn" in La Junta, Colorado. The investigation sought information about the possible theft of government funds, among other things. In 1993, Special Agent Marcus Braer of AFOSI approached Assistant United States Attorney for the District of Colorado (AUSA) Gregory Graf to discuss possible prosecution of Anderson and Bell. AUSA Graf subsequently caused grand jury subpoenas to be issued to La Junta State Bank and Trust (La Junta) and other banks for Anderson's and Bell's bank records. The subpoena to La Junta was issued on or about August 12, 1993 and sought records of Larry and Alberta Anderson. La Junta returned responses to the grand jury subpoenas to the U.S. Attorney's Office. The U.S. Attorney's Office submitted the information to the grand jury. The records were then sent to or picked up by AFOSI. Ultimately, neither Anderson nor Bell were indicted by the grand jury.

Plaintiffs in this case are former customers of La Junta. In responding to the grand jury subpoena for Anderson's records, La Junta inadvertently included copies of some of the Plaintiffs' canceled checks and deposit/withdrawal slips with Anderson's records. This occurred because Plaintiffs' bank account numbers closely followed Anderson's bank account number and some of the Plaintiffs' checks and deposit/withdrawal slips were stored on the same microfiche pages that contained Anderson's records. In duplicating the pages containing Anderson's records, La Junta also copied some of the Plaintiffs' records and sent the entire package to the U.S. Attorney's Office.

Until this case was filed, Defendants were unaware that records belonging to anyone other than Anderson had been provided by La Junta. (Exhibits D, E, and F to Defendants' Motion for Summary Judgment). Plaintiffs were never under investigation by the AFOSI or the U.S. Attorney's Office. Neither the AFOSI nor the U.S. Attorney's Office ever sought any records related to the Plaintiffs. La Junta produced a large volume of records in response to the grand jury subpoenas, with which Plaintiffs' records were inadvertently included. The government agents examining the records never saw any information related to the Plaintiffs and, in fact, had never heard of the Plaintiffs until this case was initiated.

Plaintiffs were unaware that some of their canceled checks and deposit/withdrawal slips had been submitted to the U.S. Attorney's Office and the grand jury until Anderson commenced a lawsuit against the Department of the Air Force and the Department of Justice for violations of the RFPA. In the course of her representation of Anderson, Plaintiffs' counsel received a copy of the subpoenaed La Junta records. Plaintiffs then became aware that La Junta had included some of their records with the Anderson records that were transferred to the U.S. Attorney's Office. (See Exhibit G to Defendants' Motion for Summary Judgment, Response to Interrogatory No. 3 and letter at p. 22).

Plaintiffs' complaint originally sought damages pursuant to 12 U.S.C. § 3417 for: (1) violation § 3402 for the initial receipt of the records by the U.S. Attorney's Office; (2) violation of § 3412(a) and (b) for the subsequent transfer of the records to the AFOSI agents investigating Anderson; (3) violation of § 3420(a)(4) for maintaining the records in a location other than in the sealed records of the grand jury, where the records were not used in the prosecution of a crime for which the grand jury issued an indictment or presentment of for a purpose authorized by Fed. R.Crim.P. 6(e); and (4) violation of § 3420(a) for failing to advise persons to whom disclosure was made of their obligation of secrecy.

Plaintiffs no longer seek injunctive relief because the records have been returned to the U.S. Attorney's Office. (Exhibit H to Defendants' Motion for Summary Judgment, Response to Interrogatory No. 8; Exhibit C to Defendants' Motion for Summary Judgment ¶ 7). Plaintiffs assert only violations of...