Nuby v. South Boston Savings

• Court: Court of Appeals for the First Circuit
• Decided: October 5, 1998
• Docket: 98-1294
• Status: Unpublished

Opinion

[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit

No. 98-1294

THEODORE F. NUBY, SR.,

Plaintiff, Appellant,

v.

SOUTH BOSTON SAVINGS BANK,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Selya, Circuit Judge, Campbell, Senior Circuit Judge, and Lynch, Circuit Judge.

Theodore F. Nuby, Sr. on brief pro se. James E. Harvey, Jr., John F. Brosnan, and O'Malley and Harveyon brief for appellee.

September 23, 1998

Per Curiam. Appellant Theodore Nuby appeals from the district court's judgment dismissing his action pursuant to 28 U.S.C. 1915(e). Appellee South Boston Savings Bank, however, argues that appellant's May 13, 1997 notice of appeal was filed too late to bring up for review the judgment of dismissal which was entered on the docket on January 6, 1997. See Fed. R. App. P. 4(a)(1) (where the United States or an agency or officer thereof is not a party, a litigant has 30 days within which to file a notice of appeal). We disagree and reach the merits of the dismissal. See Fiore v. Washington County Community Mental Health Ctr., 960 F.2d 229 (1st Cir. 1992)(en banc). This action lacked an arguable legal basis and so we affirm. Simply, the Right to Financial Privacy Act does not apply to appellant's situation because it pertains only to federal agencies. See 12 U.S.C. 3401(3) (defining the kind of "government authority" subject to the Act's requirements as limited to "any agency or department of the United States, or any officer, employee, or agent thereof") (emphasis added). Thus, requests for bank records by state agencies are not covered by the Act. See In re Grand Jury Applications, 536 N.Y.S.2d 939, 943 (N.Y. Sup. Ct. 1988) (the Act does not restrict access to bank records by state authorities); Nicholsv. Council on Judicial Complaints, 615 P.2d 280, 283 (Okla. 1980) (only federal agencies are restricted by the requirements of the Act). As a result, appellant has no cause of action against the South Boston Savings Bank (or, for that matter, the Massachusetts Department of Welfare) under the Act. The district court's judgment of dismissal is affirmed.