                                                                             F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                             MAY 4 1999
                                  TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 LESTER TAYLOR, JACKIE
 TAYLOR, and TAMAR JACKMAN
 SMITH,

                Plaintiffs - Appellants,                  No. 98-1405
           v.                                            (D. Colorado)
 UNITED STATES AIR FORCE and                          (D.C. No. 96-S-2273)
 UNITED STATES DEPARTMENT
 OF JUSTICE,

                Defendants - Appellees.


                             ORDER AND JUDGMENT           *




Before ANDERSON , KELLY , and BRISCOE , Circuit Judges.




       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.


       This order and judgment is not binding precedent, except under the
       *

doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Lester Taylor, Jackie Taylor, and Tamar Jackman Smith (Plaintiffs) appeal

the district court’s order which granted summary judgment against them on their

claim that the United States Air Force and the United States Department of

Justice (Defendants) violated their rights under § 1112 of the Right to Financial

Privacy Act (“RFPA”), 12 U.S.C. § 3412. They contend that the court erred by

applying 12 U.S.C. § 3413(i) to bar their claim. We affirm.



                                   BACKGROUND

      In connection with an investigation of an Air Force officer, agents of the

Air Force Office of Special Investigations (“AFOSI”) spoke to Gregory Graf,

Assistant United States Attorney for the District of Colorado. Thereafter, Graf

caused grand jury subpoenas to be issued to La Junta State Bank and Trust for the

officers’s bank records. La Junta responded by making copies of the requested

financial records. Since Plaintiffs’ account numbers closely followed the

officer’s, copies of their checks and deposit/withdrawal slips were occasionally

stored on the same microfiche pages, and La Junta inadvertently included copies

of those records along with the officer’s. La Junta then sent all the copies it had

made to Graf’s office.




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       After Graf received the records, he submitted the information to the grand

jury. 1 The records were then sent or picked up by the AFOSI, for its use in a

military proceeding against the officer, which it ultimately lost. In any event,

Plaintiffs were never under investigation, their records were never affirmatively

sought, and they were unaware that their records had been included with the

officer’s until the officer commenced an action against the Defendants for

violations of RFPA. Additionally, Defendants’ declarations attached to their

motion for summary judgment indicate that, until this case was filed, they were

unaware of the fact that Plaintiffs’ records had been included with the officer’s.   2



       Upon discovering that their records had been provided to the AFOSI,

Plaintiffs brought this suit against La Junta, the Department of Justice and the

Department of the Air Force, claiming violations of RFPA. La Junta settled with

Plaintiffs, and Defendants moved for summary judgment. Although their

complaint originally claimed violations of 12 U.S.C. §§ 3402, 3412 and 3420, and

sought damages and injunctive relief pursuant to §§ 3417-3418, by the time of the


       1
           No indictment was returned against the officer.
       2
        The district court order recites this “essentially undisputed” background
fact. Appellants’ App. at 172-73. Nonetheless, Plaintiffs do dispute this fact on
appeal, contending that it would have been impossible for Defendants to have
competently prepared the case against the officer without becoming aware of
Plaintiffs’ records. However persuasive Plaintiffs’ argument may be, the date
when Defendants became aware of Plaintiffs’ records is not material to our
consideration.

                                            -3-
summary judgment motions, Plaintiffs had pared their claims. In the summary

judgment proceedings, Plaintiffs’ claims concerned violations of two sections

only: § 3402 (related to the manner in which Graf originally obtained the

records) and § 3412 (related to the transfer of records from Graf to the AFOSI).

Additionally, Plaintiffs had dropped their claim for injunctive relief, which had

become moot.

      Reasoning that § 3402 was subject to an exception for materials obtained

pursuant to a grand jury subpoena, the magistrate judge recommended granting

Defendants’ summary judgment motion as to the § 3402 claim. Plaintiffs did not

object to that recommendation, and the district court adopted it. However, the

magistrate judge recommended denying summary judgment as to the § 3412 claim

involving the transfer of the records from Graf to the AFOSI.   3
                                                                    Defendants

objected. Upon de novo review, the district court rejected the magistrate judge’s

recommendation, and it granted summary judgment to the defendants on the

§ 3412 claim.   Taylor v. Department of the Air Force    , 18 F. Supp. 2d 1184 (D.

Colo. 1998).




      3
       The magistrate judge concluded that Defendants might have violated 12
U.S.C. § 3420, which governs the manner in which grand jury records are to be
maintained and used.

                                          -4-
                                     DISCUSSION

       We review de novo the district court’s grant of summary judgment,

applying the same standard used by the district court, and viewing the record in

the light most favorable to the party opposing summary judgment.       See McKnight

v. Kimberly Clark Corp. , 149 F.3d 1125, 1128 (10th Cir. 1998). Summary

judgment is appropriate if there is no genuine issue of material fact and the

moving party is entitled to judgment as a matter of law.     See Celotex Corp. v.

Catrett , 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56(c).

       As the district court correctly noted, generally, the RFPA does not apply “to

any subpena or court order issued in connection with proceedings before a grand

jury.” 12 U.S.C. § 3413(i). Thus, the district court concluded that, since the

records were received in response to a grand jury subpoena, Defendants were not

subject to the notice requirements of § 3412. Plaintiffs now contend that the

district court improperly characterized their records as having been provided “in

response” to a grand jury subpoena. According to the Plaintiffs’ reasoning, since

they were never the subject of the subpoena, their records could not have been

provided “in response” to it.

       As the Defendants note, Plaintiffs’ present argument directly contradicts

the argument they made in their summary judgment brief before the district court.

Appellants’ App. at 153-54 (“The financial records were disclosed in response to


                                           -5-
a Grand Jury subpoena . . . .”). Moreover, Plaintiffs failed to object to the

magistrate judge’s identical characterization in his recommendation that their

§ 3402 claim be dismissed. Accordingly, we do not now consider the argument

on appeal. See Moore v. United States , 950 F.2d 656, 659 (10th Cir. 1991).

      AFFIRMED.

                                               ENTERED FOR THE COURT



                                               Stephen H. Anderson
                                               Circuit Judge




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