§ 3410. — Customer challenges.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 12USC3410]
TITLE 12--BANKS AND BANKING
CHAPTER 35--RIGHT TO FINANCIAL PRIVACY
Sec. 3410. Customer challenges
(a) Filing of motion to quash or application to enjoin; proper court;
contents
Within ten days of service or within fourteen days of mailing of a
subpena, summons, or formal written request, a customer may file a
motion to quash an administrative summons or judicial subpena, or an
application to enjoin a Government authority from obtaining financial
records pursuant to a formal written request, with copies served upon
the Government authority. A motion to quash a judicial subpena shall be
filed in the court which issued the subpena. A motion to quash an
administrative summons or an application to enjoin a Government
authority from obtaining records pursuant to a formal written request
shall be filed in the appropriate United States district court. Such
motion or application shall contain an affidavit or sworn statement--
(1) stating that the applicant is a customer of the financial
institution from which financial records pertaining to him have been
sought; and
(2) stating the applicant's reasons for believing that the
financial records sought are not relevant to the legitimate law
enforcement inquiry stated by the Government authority in its
notice, or that there has not been substantial compliance with the
provisions of this chapter.
Service shall be made under this section upon a Government authority by
delivering or mailing by registered or certified mail a copy of the
papers to the person, office, or department specified in the notice
which the customer has received pursuant to this chapter. For the
purposes of this section, ``delivery'' has the meaning stated in rule
5(b) of the Federal Rules of Civil Procedure.
(b) Filing of response; additional proceedings
If the court finds that the customer has complied with subsection
(a) of this section, it shall order the Government authority to file a
sworn response, which may be filed in camera if the Government includes
in its response the reasons which make in camera review appropriate. If
the court is unable to determine the motion or application on the basis
of the parties' initial allegations and response, the court may conduct
such additional proceedings as it deems appropriate. All such
proceedings shall be completed and the motion or application decided
within seven calendar days of the filing of the Government's response.
(c) Decision of court
If the court finds that the applicant is not the customer to whom
the financial records sought by the Government authority pertain, or
that there is a demonstrable reason to believe that the law enforcement
inquiry is legitimate and a reasonable belief that the records sought
are relevant to that inquiry, it shall deny the motion or application,
and, in the case of an administrative summons or court order other than
a search warrant, order such process enforced. If the court finds that
the applicant is the customer to whom the records sought by the
Government authority pertain, and that there is not a demonstrable
reason to believe that the law enforcement inquiry is legitimate and a
reasonable belief that the records sought are relevant to that inquiry,
or that there has not been substantial compliance with the provisions of
this chapter, it shall order the process quashed or shall enjoin the
Government authority's formal written request.
(d) Appeals
A court ruling denying a motion or application under this section
shall not be deemed a final order and no interlocutory appeal may be
taken therefrom by the customer. An appeal of a ruling denying a motion
or application under this section may be taken by the customer (1)
within such period of time as provided by law as part of any appeal from
a final order in any legal proceeding initiated against him arising out
of or based upon the financial records, or (2) within thirty days after
a notification that no legal proceeding is contemplated against him. The
Government authority obtaining the financial records shall promptly
notify a customer when a determination has been made that no legal
proceeding against him is contemplated. After one hundred and eighty
days from the denial of the motion or application, if the Government
authority obtaining the records has not initiated such a proceeding, a
supervisory official of the Government authority shall certify to the
appropriate court that no such determination has been made. The court
may require that such certifications be made, at reasonable intervals
thereafter, until either notification to the customer has occurred or a
legal proceeding is initiated as described in clause (A).
(e) Sole judicial remedy available to customer
The challenge procedures of this chapter constitute the sole
judicial remedy available to a customer to oppose disclosure of
financial records pursuant to this chapter.
(f) Affect on challenges by financial institutions
Nothing in this chapter shall enlarge or restrict any rights of a
financial institution to challenge requests for records made by a
Government authority under existing law. Nothing in this chapter shall
entitle a customer to assert the rights of a financial institution.
(Pub. L. 95-630, title XI, Sec. 1110, Nov. 10, 1978, 92 Stat. 3703.)
References in Text
Rule 5(b) of the Federal Rules of Civil Procedure, referred to in
subsec. (a), is set out in the Appendix to Title 28, Judiciary and
Judicial Procedure.
Section Referred to in Other Sections
This section is referred to in sections 3405, 3407, 3408, 3413, 3421
of this title.