OWES v. UNITED STATES OF AMERICA

Filing 5

ORDER ON MOTION TO PREVENT GOVERNMENT ACCESS TO FINANCIAL RECORDS dismissing without prejudice 1 Motion for Order By JUDGE JOHN A. WOODCOCK, JR. (CCS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
KAIMONDRE OWES
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent

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No. 2:23-mc-00270-JAW

ORDER ON MOTION TO PREVENT GOVERNMENT ACCESS TO
FINANCIAL RECORDS
A customer of a financial institution, facing investigation for potential fraud,
moves the Court pursuant to 12 U.S.C. § 3410 for an order preventing the
Government from obtaining access to his financial records. The Court dismisses the
motion without prejudice pursuant to 12 U.S.C. § 3410(a) because the customer failed
to meet the statutory requirement of showing either that the financial records sought
were not relevant to the legitimate law enforcement inquiry or that the Government
failed to substantially comply with the provisions of the Right to Financial Privacy
Act of 1978.
I.

BACKGROUND
In June 2023, the Government sent Kaimondre Jones a letter notifying him

that his Paycheck Protection Program (PPP) loans were being investigated for
potential fraud. On August 16, 2023, pursuant to the False Claims Act (FCA), 31
U.S.C. § 3729, et seq., the Government issued a civil investigative demand to Mr.

Owes and Fundbox, Inc., a financial institution associated with him, to determine
whether Mr. Owes violated the FCA through his participation in the PPP.
In response to these demands, on September 5, 2023, Mr. Owes moved the
Court “for an order preventing the government from obtaining access to [his] financial
records.” Mot. for Order Pursuant to Customer Challenge Provisions of the Right to
Financial Privacy Act of 1978 (ECF No. 1) (Pl.’s Mot.). In support of his motion, Mr.
Owes submitted a sworn statement that claimed the financial records sought by the
Government were “not relevant to a legitimate law enforcement inquiry stated in the
Customer Notice sent to [him] because of error.” Id. Attach. 1 at 1 (Owes Aff.).
II.

LEGAL STANDARD
The Right to Financial Privacy Act of 1978 (RFPA), 12 U.S.C. § 3401 et seq.,

the statute that Mr. Owes invokes, protects customers of financial institutions from
the government obtaining their financial records without adhering to certain
procedural safeguards and giving the customer both notice and an explanation of the
purpose of the inquiry. 12 U.S.C. §§ 3402, 3407-10. The RFPA also requires financial
institutions to certify compliance with the statute before releasing the customer’s
financial records. 12 U.S.C. § 3403(b).
The RFPA allows customers to challenge a government demand pursuant to
12 U.S.C. § 3410(a). To challenge the government demand successfully, the customer
must file a motion to quash or to enjoin the government from accessing the records
along with a sworn statement declaring the applicant is the relevant customer and
the applicant’s “reasons for believing that the financial records sought are not

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relevant to the legitimate law enforcement inquiry,” that “there has not been
substantial compliance with the provisions of [the RFRA],” or both. 12 U.S.C. §
3410(a)(2).
When a customer files such a motion, courts determine if the “customer has
complied with subsection (a).” 12 U.S.C. § 3410(b). Compliance requires sufficiently
establishing some evidence that justifies a decision in the movant’s favor. H.R. Rep.
No. 1383, 9th Cong., 2d Sess. 53-54, 1978 U.S.C.C.A.N. 9273, 9325 (“all customers
need to do is make an initial showing that access may be improper . . . This section
does not require a detailed evidentiary showing . . .. However, it does require the
customer to state facts to support his position”); Hancock v. Marshall, 86 F.R.D. 209,
210-11 (D.D.C. April 9, 1980) (“Indeed, the Court is left guessing . . .. The relevant
legislative history is clear in its intention to require adjudication of a customer’s
motion only when his affidavit present a prima facie case of impropriety”). Courts
agree that the movant “has the initial burden of presenting a prima facie case that
government access to his financial records would be improper.” Salm v. NLRB, No.
08-MC-0124(JS), 2009 U.S. Dist. LEXIS 62447, at *2 (E.D.N.Y. July 20, 2009)
(quoting Panaro v. United States SEC, No. 86-cv-4122, 1987 U.S. Dist. LEXIS 16810,
at *3-4 (E.D.N.Y. Aug. 4, 1987)); accord Galloway v. United States DOT Office of
Inspector Gen., No. 1:19-mc-0101, 2019 U.S. Dist. LEXIS 159070, at *10 (N.D. Ohio
Sept. 18, 2019).

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III.

DISCUSSION
Here, Mr. Owes filed a motion to enjoin the government from accessing the

records and submitted a sworn statement. While Mr. Owes’ statement indicates he
is the relevant customer, it does not meet the latter two requirements. He does not
offer any indication that the government has not substantially complied with the
procedural safeguards of the RFPA. In fact, he leaves blank the part of his form
motion that addresses substantial compliance with the RFPA. Owes Aff. at 1. There
is no evidence or argument that Mr. Owes did not receive valid notification or that he
is otherwise claiming that the Government failed to substantially comply with the
RFPA.
This leaves Mr. Owes’ cryptic assertion that the Government sent the
Customer Notice to him “because of error.” Id. Beyond this assertion, Mr. Owes does
not attempt to argue that his financial documents are “not relevant to the legitimate
law enforcement inquiry.” Other than claiming error, Mr. Owes does not say or hint
what the error is. Mr. Owes’ uncorroborated assertion is conclusory, not evidence,
and it fails to meet the low threshold of showing that the Government’s access may
be improper. The Court, therefore, dismisses without prejudice Mr. Owes’ motion to
prevent the Government from obtaining access to his financial records. See Allison
v. United Staters DOJ Privacy Act of 1978, Nos. 7:15mc00017& 7:15-mc00018, 2015
U.S. Dist. LEXIS 105653, at *4 (W.D. Va. Aug. 12, 2015) (“[I]f ‘there is a demonstrable
reason to believe that the law enforcement inquiry is legitimate and a reasonable

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belief that the records sought are relevant to that inquiry,’ the court must deny the
motion to quash”) (citing 12 U.S.C. § 3410(a)).
IV.

CONCLUSION
The Court DISMISSES without prejudice Mr. Owes’ Motion for Order

Pursuant to Customer Challenge Provisions of the Right to Financial Privacy Act of
1978 (ECF No. 1).

SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 1st day of November, 2023.

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