F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 4 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
LESTER TAYLOR, JACKIE
TAYLOR, and TAMAR JACKMAN
SMITH,
Plaintiffs - Appellants, No. 98-1405
v. (D. Colorado)
UNITED STATES AIR FORCE and (D.C. No. 96-S-2273)
UNITED STATES DEPARTMENT
OF JUSTICE,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before ANDERSON , KELLY , and BRISCOE , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
This order and judgment is not binding precedent, except under the
*
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Lester Taylor, Jackie Taylor, and Tamar Jackman Smith (Plaintiffs) appeal
the district court’s order which granted summary judgment against them on their
claim that the United States Air Force and the United States Department of
Justice (Defendants) violated their rights under § 1112 of the Right to Financial
Privacy Act (“RFPA”), 12 U.S.C. § 3412. They contend that the court erred by
applying 12 U.S.C. § 3413(i) to bar their claim. We affirm.
BACKGROUND
In connection with an investigation of an Air Force officer, agents of the
Air Force Office of Special Investigations (“AFOSI”) spoke to Gregory Graf,
Assistant United States Attorney for the District of Colorado. Thereafter, Graf
caused grand jury subpoenas to be issued to La Junta State Bank and Trust for the
officers’s bank records. La Junta responded by making copies of the requested
financial records. Since Plaintiffs’ account numbers closely followed the
officer’s, copies of their checks and deposit/withdrawal slips were occasionally
stored on the same microfiche pages, and La Junta inadvertently included copies
of those records along with the officer’s. La Junta then sent all the copies it had
made to Graf’s office.
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After Graf received the records, he submitted the information to the grand
jury. 1 The records were then sent or picked up by the AFOSI, for its use in a
military proceeding against the officer, which it ultimately lost. In any event,
Plaintiffs were never under investigation, their records were never affirmatively
sought, and they were unaware that their records had been included with the
officer’s until the officer commenced an action against the Defendants for
violations of RFPA. Additionally, Defendants’ declarations attached to their
motion for summary judgment indicate that, until this case was filed, they were
unaware of the fact that Plaintiffs’ records had been included with the officer’s. 2
Upon discovering that their records had been provided to the AFOSI,
Plaintiffs brought this suit against La Junta, the Department of Justice and the
Department of the Air Force, claiming violations of RFPA. La Junta settled with
Plaintiffs, and Defendants moved for summary judgment. Although their
complaint originally claimed violations of 12 U.S.C. §§ 3402, 3412 and 3420, and
sought damages and injunctive relief pursuant to §§ 3417-3418, by the time of the
1
No indictment was returned against the officer.
2
The district court order recites this “essentially undisputed” background
fact. Appellants’ App. at 172-73. Nonetheless, Plaintiffs do dispute this fact on
appeal, contending that it would have been impossible for Defendants to have
competently prepared the case against the officer without becoming aware of
Plaintiffs’ records. However persuasive Plaintiffs’ argument may be, the date
when Defendants became aware of Plaintiffs’ records is not material to our
consideration.
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summary judgment motions, Plaintiffs had pared their claims. In the summary
judgment proceedings, Plaintiffs’ claims concerned violations of two sections
only: § 3402 (related to the manner in which Graf originally obtained the
records) and § 3412 (related to the transfer of records from Graf to the AFOSI).
Additionally, Plaintiffs had dropped their claim for injunctive relief, which had
become moot.
Reasoning that § 3402 was subject to an exception for materials obtained
pursuant to a grand jury subpoena, the magistrate judge recommended granting
Defendants’ summary judgment motion as to the § 3402 claim. Plaintiffs did not
object to that recommendation, and the district court adopted it. However, the
magistrate judge recommended denying summary judgment as to the § 3412 claim
involving the transfer of the records from Graf to the AFOSI. 3
Defendants
objected. Upon de novo review, the district court rejected the magistrate judge’s
recommendation, and it granted summary judgment to the defendants on the
§ 3412 claim. Taylor v. Department of the Air Force , 18 F. Supp. 2d 1184 (D.
Colo. 1998).
3
The magistrate judge concluded that Defendants might have violated 12
U.S.C. § 3420, which governs the manner in which grand jury records are to be
maintained and used.
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DISCUSSION
We review de novo the district court’s grant of summary judgment,
applying the same standard used by the district court, and viewing the record in
the light most favorable to the party opposing summary judgment. See McKnight
v. Kimberly Clark Corp. , 149 F.3d 1125, 1128 (10th Cir. 1998). Summary
judgment is appropriate if there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. See Celotex Corp. v.
Catrett , 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56(c).
As the district court correctly noted, generally, the RFPA does not apply “to
any subpena or court order issued in connection with proceedings before a grand
jury.” 12 U.S.C. § 3413(i). Thus, the district court concluded that, since the
records were received in response to a grand jury subpoena, Defendants were not
subject to the notice requirements of § 3412. Plaintiffs now contend that the
district court improperly characterized their records as having been provided “in
response” to a grand jury subpoena. According to the Plaintiffs’ reasoning, since
they were never the subject of the subpoena, their records could not have been
provided “in response” to it.
As the Defendants note, Plaintiffs’ present argument directly contradicts
the argument they made in their summary judgment brief before the district court.
Appellants’ App. at 153-54 (“The financial records were disclosed in response to
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a Grand Jury subpoena . . . .”). Moreover, Plaintiffs failed to object to the
magistrate judge’s identical characterization in his recommendation that their
§ 3402 claim be dismissed. Accordingly, we do not now consider the argument
on appeal. See Moore v. United States , 950 F.2d 656, 659 (10th Cir. 1991).
AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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