Rios, Jr. v. Office of Treasury Inspector General

Filing 6

ORDER Directing TIGTA to File, No Later Than February 27, 2015, a Response to Plaintiff's Pending Motion Pusuant to the Right to Financial Privacy Act of 1978 re 1 , 3 signed by Magistrate Judge Gary S. Austin on 1/26/2015. (Martinez, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Movant,

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14-mc-00058 GSA

LEO RIOS, JR.,

v.
OFFICE OF THE TREASURY
INSPECTOR GENERAL FOR TAX
ADMINISTRATION,

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ORDER DIRECTING TIGTA TO FILE,
NO LATER THAN FEBRUARY 27, 2015, A
RESPONSE TO PLAINTIFF’S PENDING
MOTION PURSUANT TO THE RIGHT TO
FINANCIAL PRIVACY ACT OF 1978
(Docs. 1, 3)

Respondent.

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On August 28, 2014, the movant, Leo Rios, Jr. (“Movant”), filed a Motion for an Order

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Pursuant to the Customer Challenge Provisions of the Right to Financial Privacy Act of 1978

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(“RFPA”), 12 U.S.C. § 3401 et seq. (Doc. 1).1 Specifically, Plaintiff seeks an order preventing

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the Treasury Inspector General for Tax Administration (“TIGTA”) from obtaining access, via

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subpoena, to his financial records held by Wells Fargo Bank.
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The RFPA permits challenges to government subpoenas by customers of financial

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institutions. 2 See 12 U.S.C. § 3410(a). Pursuant to 12 U.S.C. § 3410(a), a customer of a

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Plaintiff filed an amended motion on October 1, 2014. (Doc. 3).
Pursuant to 12 U.S.C. § 3401(5), “ „customer‟ means any person or authorized representative of that person who

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financial institution “may file a motion to quash an administrative summons or judicial subpena,

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or an application to enjoin a Government authority from obtaining financial records pursuant to a

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formal written request,” within “ten days of service or within fourteen days of mailing” of said

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summons or subpoena, with “copies served upon the Government authority.” (Emphasis added).

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The Court has attempted to ascertain the timeliness of Plaintiff‟s motion under 12 U.S.C.

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§ 34102(a), and has obtained further documentation from Plaintiff in this regard.3 However, upon

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review of all the documentation provided by Plaintiff, the Court is unable to ascertain when the

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subpoena at issue was served on Plaintiff or when it was mailed to Plaintiff. See 12 U.S.C. §

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3410(a). Therefore the Court cannot determine whether Plaintiff has complied with the
procedural requirements outlined in 12 U.S.C. § 3410(a). See S.E.C. v. Jerry T. O’Brein, Inc.,
467 U.S. 735, 745 (1984) (“a consumer‟s ability to challenge a subpoena is cabined by strict
procedural requirements”).
Accordingly, pursuant to 12 U.S.C. § 3410(b), the Court orders the respondent, TIGTA, to

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file a sworn response to the movant‟s motion no later than February 27, 2015. The response

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shall include a declaration or other proof identifying when TIGTA‟s Subpoena Duces Tecum was

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mailed or served on the movant, so that the Court may assess the timeliness of the Movant‟s

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motion. See 12 U.S.C. § 3410(a) (“a customer of a financial institution “may file a motion to

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quash an administrative summons or judicial subpoena” within “ten days of service or within
fourteen days of mailing” of said summons or subpoena) (emphasis added).
TIGTA has not yet appeared in this action. Accordingly, the Clerk of the Court is directed

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utilized or is utilizing any service of a financial institution, or for whom a financial institution is acting or has acted as
a fiduciary, in relation to an account maintained in the person's name[.]” 12 U.S.C. § 3401(5).
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On September 5, 2014, this Court ordered Movant to file a copy of the Subpoena Duces Tecum at issue as well as
related documentation served on him by the Treasury Inspector General of Tax Administration. (Doc. 2). The
Movant filed an amended motion along with a copy of the Subpoena Duces Tecum on October 1, 2014. (Doc. 3).
The Court thereafter ordered Movant to file the related documentation that was served on him along with the
Subpoena Duces Tecum. (Doc. 4). On December 31, 2014, the Movant submitted additional documentation. (Doc.
5).

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to serve TIGTA with a copy of this order, as well as the orders previously docketed as Doc. Nos.

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2 and 4, at the following addresses: (1) Treasury Inspector General of Tax Administration

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(TIGTA), 1401 H Street, NW, Suite 469, Washington, D.C. 20005; AND (2) Special Agent Jason

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Pritchard, Office of the Treasury Inspector General for Tax Administration (TIGTA), P.O. Box
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7881, Fresno, CA 93727.

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IT IS SO ORDERED.
Dated:

January 26, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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