Bond v. U.S. Postal Serv. Fed. Credit Union

164 F.Supp.3d 740

Donna Bond, Plaintiff,

v.U.S. Postal Service Federal Credit Union, Defendant.

Civil No. PJM 15-699

United States District Court, D. Maryland.

Signed December 9, 2015

Elizabeth Denise Mackay, Esquire, Mackay Law Firm LLC, Upper Marlboro, MD, for Plaintiff.

Amy Sanborn Owen, Esquire, Nicholas Valdis Cumings, Esquire, BrigliaHundley, PC, Tysons Corner, VA, for Defendant.

OPINION

PETER J. MESSITTE, UNITED STATES DISTRICT JUDGE

Donna Bond (Bond) has sued the U.S. Postal Service Federal Credit Union (USPS-FCU), alleging violations of the Right to Financial Privacy Act (RFPA), 12 U.S.C. § 3401, et seq. , as well as a state tort claim for negligent infliction of emotional distress. The USPS-FCU has filed a Motion to Dismiss all counts. ECF No. 7. On August 3, 2015, the Court held a hearing on USPS-FCU's Motion. ECF No. 15. Bond subsequently moved for partial summary judgment. ECF No. 19. For the reasons that follow, USPS-FCU's Motion to Dismiss (ECF No. 7), which the Court treats as a Motion for Summary Judgment,¹ is GRANTED , and Bond's Motion for Partial Summary Judgment (ECF No. 19) is DENIED .

I. FACTS

The following facts are not in dispute:

Bond worked as an Investigative Analyst for the U.S. Postal Service Office of Inspector General (USPS-OIG) at its Capital Heights Metro Area Field Office in Clinton, Maryland. Compl. ¶ 9, ECF No. 1. In January 2010, she and her direct supervisor, Assistant Special Agent in Charge Mary Giberson, opened in their own names a joint personal checking and savings account at USPS-FCU. The account, however, was intended to serve as a “Sunshine Fund” to pay for special events involving coworkers, including, for instance, birthday parties and weddings. Id. ; Giberson Aff. ¶¶ 3-4, ECF No. 16. Deposits into the account came from their coworkers, although Bond and Giberson also deposited their own funds. Giberson Aff. ¶ 4. Bond and Giberson were the only employees authorized to make transactions in the account. Id. ¶¶ 3-4; see also Pl.'s Opp'n Summ. J., Bond Aff. ¶ 9, ECF No. 17-1.

In October 2013, Giberson had occasion to review a bank statement for the account, addressed jointly to her and to Bond, and noticed what she deemed to be questionable activity; several withdrawals and other transactions seemed out of the ordinary. Compl. ¶ 11; Giberson Aff. ¶ 5. Giberson suspected that Bond had made withdrawals to cover Bond's personal expenses. See Giberson Aff. ¶ 5. Accordingly, Giberson immediately began to investigate the account, speaking first to a representative for USPS-FCU, who gave her a copy of a check for the account and helped her obtain access to the online portal for the account. Id. ¶¶ 6-7. Giberson thereafter downloaded as many statements as she could from the portal, several of which suggested similarly questionable withdrawals, and communicated what she found to her supervisor, Luke Hall. Id. Giberson turned over to Hall the records she had obtained. Id.

Giberson also contacted Special Agent Michael Lamb of USPS-OIG, Special Inquiries Division, delivering to him account statements covering the period from November 2012 through September 2013. Compl. ¶ 11; Giberson Aff. ¶¶ 7-8. At the same time Giberson gave Lamb verbal permission to seek further records of the account directly from USPS-FCU, including the remaining checks and statements needed to track the funds. Giberson Aff. ¶ 9. Giberson, by affidavit, says she did this because she believed having Lamb obtain the records would save the cost she would incur if she herself returned to USPS-FCU and requested the records. Id.

On October 22, 2013, Lamb contacted a USPS-FCU employee, Don Jarboe, and requested account statements, checking account activity, and information concerning one or more deposits made to the joint account. Compl. ¶12. Giberson has stated on affidavit that these items were intended to supplement documents she herself had already delivered to Lamb. See Giberson Aff. ¶ 9. Jarboe and another USPS-FCU employee, Linda Striegel, thereafter provided Lamb with the requested financial records and account information. Compl. ¶ 12. They did so, however, without requiring either a subpoena or a written consent for the release of the records from either Giberson or Bond. Id.

On October 29, 2013, Lamb approached Bond in person and questioned her about specific transactions concerning the Sunshine Fund account. Id. ¶ 14.

From November 2013 through mid-February 2014, no further action was taken.

On February 12, 2014, however, Giberson handed Bond a proposed letter of removal, id. ¶ 18, stating that Giberson had reviewed Lamb's investigative report, had researched applicable policy, and was recommending Bond's “removal,” or termination of employment with USPS-OIG, see Giberson Aff. ¶ 11. Bond responded to the proposed removal in March 2014. Compl. ¶ 18.

On April 17, 2014, Lamb made an additional request of USPS-FCU for financial records pertaining to the account, including copies of money orders and 16 personal checks that had been deposited.² Def.'s Opp'n Mot. Partial Summ. J. (“Def.'s Opp'n”), Ex. A, ECF No. 22-1. The same USPS-FCU employees, Jarboe and Striegel, provided Lamb with the requested items. Compl. ¶ 20. Once again, however, they did so without a subpoena or without the written consent of either Giberson or Bond. Id. ¶ ¶ 19-20.

On May 27, 2014, Bond's employment was terminated by USPS-OIG. Compl. ¶ 20.

Giberson has confirmed by affidavit that, from the outset and before Lamb made any requests of USPS-FCU, she verbally consented to USPS-OIG and to Lamb, in particular, obtaining records from USPS-FCU for purposes of investigating the account. Giberson Aff. ¶ 10. Bond has never provided either verbal or written consent to release records to USPS-OIG, Bond Aff. ¶¶ 5, and, indeed, she bases her claims against USPS-FCU in this suit on Lamb's failure to obtain her written consent or at least secure a subpoena before transmitting the account records.

On March 12, 2015, Bond filed her Complaint against USPS-FCU in this Court. Count I alleges that USPS-FCU violated the RFPA when it disclosed financial records to Special Agent Lamb on October 22, 2013, without requiring either a subpoena or written authorization by Bond, and without certifying compliance with the RFPA. In Count II, she alleges that USPS-FCU violated the RFPA when it disclosed further records to Agent Lamb under similar circumstances on April 17, 2014. In Count III, Bond seeks punitive damages for alleged intentional and willful violations of the RFPA.³ In Count IV, she seeks damages for negligent infliction of emotional distress.

USPS-FCU has moved to dismiss and/or for summary judgment on Counts I, II, III, and IV. Bond has moved for partial summary judgment as to Counts I and II.

II. STANDARD OF REVIEW

Under Rule 56(a), “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). This does not mean, however, that “some alleged factual dispute between the parties” defeats the motion for summary judgment. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original). Rather, “the requirement is that there be no genuine issue of material fact.” Id. (emphasis in original). Further, “[a] party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of his pleadings, but rather must set forth specific facts showing that there is a genuine issue for trial.” Bouchat v. Baltimore Ravens Football Club, Inc. , 346 F.3d 514, 525 (4th Cir.2003) (internal quotation and citation omitted). The court may thus grant the motion when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law.” Anderson , 477 U.S. at 247, 106 S.Ct. 2505 (quoting Fed. R. Civ. P. 56(c) ).

III. RIGHT TO FINANCIAL PRIVACY ACT CLAIMS

A. The Right to Financial Privacy Act

Under the RFPA, a financial institution may not “provide to any Government authority access to or copies of, or the information contained in, the financial records of any customer” unless certain procedures are followed or certain exceptions under the statute apply. See 12 U.S.C. § 3403(a) ; see also 12 U.S.C. §§ 3405 -08 (specifying the procedures that should be followed). Government authorities and financial institutions found in violation of the Act can be held liable for (1) $100 in statutory damages, (2) actual damages, (3) punitive damages where the violation was willful or intentional, and (4) attorney's fees. 12 U.S.C. § 3417. Congress passed the RFPA in response to the Supreme Court's decision in United States v. Miller , 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976), which held that the customer of a financial institution has no Fourth Amendment expectation of privacy in the records of personal accounts. See Duncan v. Belcher , 813 F.2d 1335, 1337 (1987) (discussing the legislative history of the RFPA). Any assessment of alleged violations under the RFPA must therefore be cognizant of the motivating purpose of the Act, i.e., to protect bank customers' privacy.

B. The Parties' Arguments

USPS-FCU makes several arguments disputing its liability under the RFPA.

It first argues that the RFPA does not apply to the Sunshine Fund disclosures at issue because Bond is not a “customer” within the meaning of 12 U.S.C. § 3401(5). See Def.'s Mem. Supp. Mot. Dismiss (“Def.'s Mot. Dismiss”) 4-5, ECF No. 7-1. According to USPS-FCU, Bond is merely a nominal holder of the account, which was universally understood to be a “Sunshine Fund,” and which therefore should be treated as an account of USPS-OIG because it was created specifically to benefit USPS-OIG employees, not to benefit of one of the...