Penalosa v. Department of Defense

Filing 12

ORDER to respond. ORDERED that, no later than April 6, 2015, Respondent shall file a sworn response to Movant's Motion. Respondent may file its response in camera, if it includes in its response the reasons which make in camera review appropriate. 12 U.S.C. § 3410(b). By Judge Raymond P. Moore on 3/17/2015. (tscha, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
The Honorable Raymond P. Moore
Civil Action No. 15-mc-00049-RM
NATHANIEL L. PENALOSA,
Movant,
v.
DEPARTMENT OF DEFENSE,
Respondent.
______________________________________________________________________________
ORDER TO RESPOND
______________________________________________________________________________
THIS MATTER is before the Court on Movant Nathaniel L. Penalosa’s Motion for Order
Pursuant to Customer Challenge Provisions of the Right to Financial Privacy Act of 1978 and
supporting Sworn Statement (collectively, “Motion”) (ECF Nos. 1, 2), filed on March 2, 2015,
pursuant to 12 U.S.C. § 3410 of the Right to Financial Privacy Act (“Act”). Movant has
received a Notice to Customer (“Notice”) from the Department of the Air Force, informing him
that the Office of the Inspector General, Department of Defense, is seeking his financial
information from USAA Federal Savings Bank. In accordance with this Court’s Order of March
3, 2015, Movant has supplemented his Motion with: (1) evidence that the Notice was served on
Movant personally on February 18, 2015, and that the Motion was mailed to the Court on
February 28, 2015; (2) evidence that the Inspector General was served by certified mail on
February 28, 2015; and (3) additional information in support of Movant’s position that the
records sought should not be disclosed.

Pursuant to 12 U.S.C. § 3410(a), within ten days of service or within fourteen days of
mailing of a subpoena, summons, or formal written request, a customer may file a motion to
quash or an application to enjoin a Government authority from obtaining financial records, with
copies served on the Government authority. Correspondingly, under 12 U.S.C. § 3405, a
Government authority may obtain financial records if certain requirements are met, including:
(1) the service or mailing of a subpoena or summons on a customer, along with the appropriate
notice; and (2) the expiration of ten days after the date of service or fourteen days after the date
of mailing of the notice, without the customer filing a motion to quash or other challenge.
In this case, Movant was personally served on February 18, 2015, and his Motion was
filed March 2, 2015. Ten days after service was February 28, 2015, the date in which Movant
mailed his Motion. February 28, 2015, however, was a Saturday. The Act is silent as to the
computation of time where the final day to act falls on a Saturday, Sunday, or legal holiday.
Rule 6(a) of the Federal Rules of Civil Procedure provides that “[t]he following rules apply in
computing any time period specified in these rules, in any local rule or court order, or in any
statute that does not specify a method of computing time.” One of the rules provides that, where
the period of time is stated in days, “include the last day of the period, but if the last day is a
Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that
is not a Saturday, Sunday, or legal holiday.” Fed. R. Civ. P. 6(a)(1)(C); see Mondragon v.
Thompson, 519 F.3d 1078, 1081 (10th Cir. 2008) (plaintiff’s § 1983 claim filed on Monday was
timely where time period for filing expired on Sunday, citing Fed. R. Civ. P. 6(a)(3)); 4B
Charles Alan Wright et al., Federal Practice and Procedure § 1163 (4th ed. 2015) (“[T]he
‘majority rule’…is that the Rule 6 exclusion of final Saturdays, Sundays, and legal holidays is
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applicable to computing time under federal statutes of limitations.”) Accordingly, Movant’s
Motion filed Monday, March 2, 2015, is timely. In light of Movant’s compliance with the
requirements of 12 U.S.C. § 3410(a), it is
ORDERED that, no later than April 6, 2015, Respondent shall file a sworn response to
Movant’s Motion. Respondent may file its response in camera, if it includes in its response the
reasons which make in camera review appropriate. 12 U.S.C. § 3410(b); and
FURTHER ORDERED that the Clerk of the Court shall mail a copy of this Order to the
Inspector General of the Department of Defense at the address stated in the Notice (ECF No. 2,
page 4 of 7) and to the U.S. Attorney’s Office in Denver, Colorado.
DATED this 17th day of March, 2015.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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