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Turner v. U.S. Department of The Treasury

United States District Court, E.D. California

April 3, 2015

BRUCE TURNER, Plaintiff,
v.
U.S. DEPARTMENT OF THE TREASURY, Defendant.

ORDER AUTHORIZING SERVICE OF COMPLAINT ON DEFENDANT ORDER DIRECTING CLERK TO FORWARD SERVICE DOCUMENTS TO PLAINTIFF FOR COMPLETION AND RETURN WITHIN THIRTY DAYS

SHEILA K. OBERTO, Magistrate Judge.

I. INTRODUCTION

On January 5, 2014, Plaintiff Bruce Turner ("Plaintiff") filed a complaint against the U.S. Department of the Treasury seeking access to documents pursuant to 5 U.S.C. § 552(a)(4)(B). Plaintiff is currently incarcerated and is proceeding in forma pauperis and pro se. For the reasons set forth below, Plaintiff's complaint states a cognizable claim for access to agency documents pursuant to the Freedom of Information Act ("FOIA").

II. BACKGROUND

Plaintiff alleges that he filed a FOIA request with the Financial Crimes Enforcement Network ("FinCen"), a bureau of the United States Department of the Treasury. Plaintiff requested records concerning himself: bank records from Bank of America regarding his savings account for the period of January 1993 through December 1994; reproduction of checks and other instruments; record of transactions; receipt of funds; and a copy of the currency Transaction Report in the sum of $100, 000. (Doc. 1, p. 6.)

On December 8, 2014, Plaintiff received a letter from the FinCen denying Plaintiff's October 5, 2014, appeal of the agency's denial of his FOIA request. The letter informed Plaintiff that he could obtain judicial review in a district court where he resides pursuant to 5 U.S.C. § 552(a)(4)(B).

III. DISCUSSION

A. Legal Standard

"FOIA entitles private citizens to access government records." Minier v. Cent. Intelligence Agency, 88 F.3d 796, 800 (9th Cir. 1996). "The Supreme Court has interpreted the disclosure provisions broadly, noting that the act was animated by a philosophy of full agency disclosure.'" Lion Raisins v. U.S. Dep't of Agric., 354 F.3d 1072, 1079 (9th Cir. 2004) (quoting John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989)). FOIA, however, contains nine exemptions which a government agency may invoke to protect certain documents from public disclosure. See id. "Unlike the disclosure provisions of FOIA, its statutory exemptions must be narrowly construed.'" Id. (internal quotation and citation omitted).

The agencies resisting public disclosure have "the burden of proving the applicability of an exemption." Minier, 88 F.3d at 800. "That burden remains with the agency when it seeks to justify the redaction of identifying information in a particular document as well as when it seeks to withhold an entire document." U.S. Dep't of State v. Ray, 502 U.S. 164, 173 (1991). An agency "may meet its burden by submitting a detailed affidavit showing that the information logically falls within the claimed exemptions." Minier, 88 F.3d at 800 (internal quotation marks and citations omitted).

B. Screening Standard

Title 28 of the United States Code, Section 1915A provides that "[t]he court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity." 28 U.S.C. § 1915A(a). "On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." Id. at § 1915A(b)(1)-(2).

In determining whether a complaint fails to state a claim, the Court uses the same pleading standard used under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). "[T]he pleading standard Rule 8 announces does not require detailed factual allegations, ' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 557). "[A] complaint [that] pleads facts that are merely consistent with' a defendant's liability... stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557). Although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555).

C. Plaintiff's Complaint States a Cognizable Claim under FOIA

Pursuant to 5 U.S.C. § 552(a)(4)(B),

On complaint, the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia, has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant

Because Plaintiff has requested and has been denied access to agency documents, Plaintiff has pled a cognizable claim under the FOIA for full disclosure of the requested agency documents. As to FOIA's exhaustion requirement, Plaintiff has alleged that he completed the appeal process, and attached the denial letter of December 8, 2014, to his complaint.

IV. CONCLUSION AND ORDER

Plaintiff's claim against the U.S. Department of the Treasury pursuant to FOIA is cognizable.

Accordingly, IT IS HEREBY ORDERED that:

1. The Clerk of the Court is DIRECTED to send Plaintiff a USM-285 form, one summons, an instruction sheet, a notice of submission of documents form, and one copy of the complaint filed on January 5, 2015;
2. Within thirty (30) days from the date of service of this order, Plaintiff is DIRECTED to complete the attached notice of submission of documents and to submit the completed notice to the Court with the following documents:
a. The completed summons;
b. One completed USM-285 form for the defendant listed above;
c. One copy of the endorsed complaint filed in this Court; and
3. Service upon the Defendant is appropriate when the service documents are submitted to the Court and forwarded to the United States Marshal. Plaintiff need not attempt service on defendant.

IT IS SO ORDERED.

INSTRUCTIONS FOR COMPLETING FORM USM-285

After the court has issued an order granting your application to proceed without prepayment of fees and directing that service of process be made by the United States Marshal, you must complete an original USM-285 form for each individual defendant named in your action.

1. PLAINTIFF: Print your name.
2. COURT CASE NUMBER: Print the complete case number listed on your complaint.
3. DEFENDANT: Print the name of one defendant on each separate form.
4. TYPE OF PROCESS: Print "Summons and Complaint."
5. SERVE AT: Enter the name and address for service of one defendant on each individual USM-285 form.
6. SEND NOTICE OF SERVICE TO REQUESTER AT: Enter your name and mailing address.
7. NUMBER OF PROCESS TO BE SERVED WITH THIS FORM - 285: 1.
8. NUMBER OF PARTIES TO BE SERVED IN THIS CASE: Enter the number of defendants you have named in your suit.
9. CHECK FOR SERVICE ON U.S.A.: Check ONLY if the defendant listed on the form is an entity of the U.S. Government.
10. Sign and date the form, check the box marked "PLAINTIFF" and enter your telephone number (if one is available).

[] If you are the plaintiff and are currently incarcerated, you must return the completed USM-285 forms to the Clerk's Office at 2500 Tulare Street, Room 1501, Fresno, CA 93721, together with the following:

1. An original Summons for each defendant to be served;
2. A file-endorsed copy of the complaint to be served on each individual defendant;
3. A copy of the order directing service by the U.S. Marshal to be served on each individual defendant;
4. One copy of the complaint and one copy of the order directing service for the U.S. Marshal's file.
5. The completed "Notice of Submission of Documents" form enclosed herewith.
PLEASE NOTE that only the defendants against whom the court has determined you have a cognizable claim will be served.

9 If you are the plaintiff in pro per, you must return the completed USM-285 forms to the Clerk's Office at 2500 Tulare Street, Room 1501, Fresno, CA 93721, together with the following:

1. An original Summons for each defendant to be served;
2. A copy of each summons to be served on each individual defendant;
3. A copy of the complaint to be served on each individual defendant;
4. A copy of the order directing service by the U.S. Marshal to be served on each individual defendant;
5. One copy of each summons, one copy of the complaint and one copy of the order directing service for the U.S. Marshal's file.

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Plaintiff hereby submits the following documents in compliance with the court's order filed __________________.

______ completed USM-285 forms
______ copies of the complaint/amended complaint
______ completed Summons forms

____________________________________________________________________

TO BE COMPLETED BY THE CLERK:

The above documents were forwarded to U.S. Marshal

INSTRUCTIONS FOR SERVICE OF PROCESS BY U.S. MARSHAL

Please type or print legibly, insuring readability of all copies. DO NOT DETACH ANY COPIES. Submit one complete set of this form (USM-285) and one copy of each writ for each individual, company, corporation, etc., to be served or property to be seized or condemned. The applicable fees for such service(s) (T28, USC Sec. 1921 establishes the fees for service of process by the U.S. Marshal) may be required prior to said service.

For service of any process upon an officer or agent of the United States Government, submit a copy of the writ and a set of Form USM-285 for each officer or agent upon whom service is desired. Submit three (3) additional copies of the writs for service upon the Government of the United States. The U.S. Marshal will serve one (1) upon the U.S. Attorney and will forward two (2) to the Attorney General of the United States. (When the applicable box is checked, completion of the final signature block by the U.S. Marshal or his Deputy always certifies service on the U.S. Attorney and the Attorney General, regardless of whether other defendants on the writ were served.) Failure to provide any of the copies will delay service of the writ.

Complete all entries above the double line. Mark all applicable check boxes and use the "Special Instructions" to advise of any information that will assist the U.S. Marshal in expediting service.

If more than one writ and USM-285 is submitted on a single case, the U.S. Marshal will receipt for all of them on the first USM-285. You will receive for your records the last (No. 5) "Acknowledgment of Receipt" copy for all the USM-285 forms you submit. When the writ is served, you will receive the No. 3 Notice of Service copy. This copy will be identical to the return to the Clerk of the Court.

Upon completion of all services (if the Marshals fees were not requested or tendered in advance or if additional fees are indicated), you will receive a "Billing Statement" (copy 4 of USM-285) from the United States Marshal. (NOTE: Copy 4 should be returned, by you, to the U.S. Marshal, together with your payment of the amount owed.

Additional supplies of the USM-285 may be obtained from the Clerk of the U.S. District Court or U.S. Marshal, without cost.

EXHIBIT A

OFFICE OF THE DIRECTOR

Dear Mr. Turner:

This letter responds to your October 5, 2014 appeal of the decision of the Financial Crimes Enforcement Network (FinCEN) concerning your Freedom of Information Act (FOIA)/Privacy Act (PA) request that FinCEN received on August 25, 2014. Your FOIA/PA request sought the following records concerning yourself: bank records from Bank of America regarding your savings account for the period of January 1993 through December 1994; reproduction of checks and other instruments; record of transactions; receipt of funds; and a copy of a Currency Transaction Report you state was submitted by Bank of America in the sum of $100, 000.00.

In response to your request, FinCEN conducted a thorough search of its non-Bank Secrecy Act records, and found no releasable records pertaining to you. Additionally, FinCEN stated that a search of its Bank Secrecy Act records was not conducted because, "[i]f such records exist, they would be exempt from disclosure under the FOIA in accordance with 5 U.S.C. 552(b)(3), which covers records specifically exempted from disclosure by statute." FinCEN further stated that 31 U.S.C. 5319 specifically exempts records collected under the Bank Secrecy Act from disclosure under the FOIA. Finally, FinCEN noted that "if such BSA records exist, they would be maintained in a FinCEN Database that has been exempted from the access provisions of the Privacy Act in accordance with 5 U.S.C. 552a(j)(2) and/or (k)(2)."

The basis of your appeal is that exemption from disclosure under the PA does not prevent disclosure under the FOIA, and you cite the cases of Shapiro v. Drug Enforcement Administration, 762 F.2d 611 (7th Cir. 1985), and Miller v. United States, 630 F.Supp. 347 (E.D.N.Y. 1986) to support your appeal. We agree that exemption from disclosure under the PA does not prevent disclosure under the FOIA. However, as noted in the Miller case, a court must still consider whether a federal agency has properly withheld information pursuant to a FOIA exemption.

After an impartial review by the Office of Chief Counsel of the decision of our Disclosure Officer, it has been concluded that FinCEN's September 15, 2014 response and the related search of non-Bank Secrecy Act records were appropriate. As stated previously, Bank Secrecy Act records are exempt from disclosure under the FOIA in accordance with 5 U.S.C. 552(b)(3), which covers records specifically exempted from disclosure by statute. The statutory provision that specifically exempts records collected under the Bank Secrecy Act from disclosure is 31 U.S.C. 5319.

Accordingly, we deny your appeal in full. You may obtain judicial review of this determination in the U.S. District Court for the judicial district in which you reside or have a principal place of business, the judicial district in which the requested records are located, or the District of Columbia, in accordance with 5 U.S.C. § 552(a)(4)(B).


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