United States District Court, W.D. New York
DECISION AND ORDER
FRANK P. GERACI JR. CHIEF JUDGE
to the Right to Financial Privacy Act of 1978
(“RFPA”), 12 U.S.C. §§ 3401-3422
(2012), Jihan Davis (“Movant”) seeks an order
preventing the National Credit Union Administration
(“NCUA”) from obtaining access to her financial
records at Bank of America, N.A. and quashing the NCUA's
administrative subpoena requiring the production of those
records from Bank of America. Movant asserts that (1) the
subpoenaed records are not relevant to a legitimate law
enforcement inquiry; and (2) the NCUA failed to substantially
comply with the RFPA. See ECF No. 1, at 2. For the
reasons that follow, Movant's Motion for Order (ECF No.
1) is GRANTED IN PART and DENIED IN PART.
about July 13, 2015, Movant was hired to work as a branch
manager at Lexington Avenue Federal Credit Union
(“Lexington Avenue”), a federally insured credit
union supervised by the NCUA. ECF No. 4, at 2; see
also 12 U.S.C. §§ 1752, 1756 (2012). In 2016,
Lexington Avenue flagged irregularities in the data reported
from Movant's branch. ECF No. 4, at 2. After
investigating the discrepancies, Lexington Avenue determined
that Movant had been signing cash out of the vault,
indicating that it was deposited somewhere, and then not
depositing it in the indicated location. Id.
Movant's employment was subsequently terminated on or
about August 31, 2016. Id. at 3.
NCUA Board ultimately issued an Order of Investigation under
12 U.S.C. §§ 1784(b) and 1786(p) to determine
the extent of any unsafe or unsound practices, breaches of
fiduciary duty, or violations of law or regulations by former
Lexington Avenue branch supervisor Jihan Davis; any resulting
gain or other benefit to her; any loss or other harm to
Lexington Avenue; the nature of her intent and/or personal
dishonesty in any such misconduct; as well as any other
suspected misconduct, resulting gains or benefits, intention
or personal dishonesty by or to any other
institution-affiliated party that may come to light during
the investigation of the former branch supervisor.
Id. The Order of Investigation named NCUA Trial
Attorney Rob F. Robine as one of the Officers to Conduct the
Investigation, and he issued a subpoena to depose Movant.
Id. During her deposition, Movant testified:
(1) that she had never handled more than a “couple
hundred” dollars outside of the employment context; (2)
that she maintains an account at Bank of America; (3) that in
or around March of 2016 she purchased a new vehicle with an
approximately $10, 000 down payment; (4) that the source of
the down payment was savings and a tax refund check; (5) that
she lives paycheck; (6) that she did not recall depositing
$19, 200 in cash into her account at Bank of America on
February 29, 2016; and (7) that she would have noticed a
deposit of that amount into the Bank of America account.
Id. at 4. After obtaining that deposition testimony,
Mr. Robine issued the now-contested subpoena on October 13,
2017 and mailed Movant a copy with the requisite customer
notice, as outlined in 12 U.S.C. § 3405(2). Id.
Although Mr. Robine sent the copy via Certified Mail, as of
October 26, 2017, it had not been delivered to Movant.
Id. In response, Mr. Robine mailed another copy of
the subpoena and notice that day via U.S. Mail, followed by
an emailed copy of both on October 30, 2017. Id. The
subpoena requested production of the requested documents by
October 30, 2017, see ECF No. 4-2, but-as of
December 13, 2017-the NCUA had not received Movant's
account records from Bank of America, ECF No. 4, at 4.
filed the instant Motion on November 6, 2017. ECF No. 1. She
challenges enforcement of the NCUA's administrative
subpoena on two grounds: she claims that (1) the records
sought are not relevant to a legitimate law enforcement
inquiry; and (2) the NCUA did not substantially comply with
the RFPA in notifying her that the records had been
subpoenaed. See Id. at 1.
RFPA sets forth the manner in which bank customers may
challenge government access to their financial accounts.
See 12 U.S.C. § 3410(a), (e); Lerman v.
SEC, 928 F.Supp.2d 798, 801-02 (S.D.N.Y. 2013) (citing
cases). Under its terms, a customer must file a motion to
quash or application to enjoin “[w]ithin ten days of
service or within fourteen days of mailing a subpena [sic],
summons, or formal written request.” 12 U.S.C. §
3410(a). The customer must include
an affidavit or sworn statement (1) stating that the
applicant is a customer of the financial institution from
which financial records pertaining to him have been sought;
and (2) stating the applicant's reasons for believing
that the financial records sought are not relevant to the
legitimate law enforcement inquiry stated by the Government
authority in its ...