Court Ordered Delay of Notice Procedure
Section 3409(a) of the Act, authorizes a court to grant ex
parte a delay of up to 90 days (which can then be extended for
periods of 90 days) of the customer notice required in cases of judicial
subpoenas, administrative summons, and formal written requests, as well as
connection with search warrants and interagency transfers of financial
In the case of grand jury subpoenas, which are exempt from the Act, 12
§ 3413(i) allows a court to order a financial institution to delay
notice to the customer that the records have been subpoenaed.|
To obtain an order delaying customer notice, the government agency must
make a showing to a magistrate or district judge that: (1) the investigation
connection with which the records are sought is within the agency's
(2) there is "reason to believe" that the records sought are relevant to the
investigation; and (3) there is "reason to believe" that customer notice
result in (a) danger to the physical safety of any person, (b) flight from
prosecution, (c) destruction of evidence, (d) intimidation of witnesses, or
some other serious jeopardy to the investigation or trial of comparable
Renewals of the delay period may be granted upon the same showing of
(See Matter of Thirty-Nine Administrative Subpoenas, 754 F.
5 (D.Mass. 1990) (The court rejected an application to delay notice on
thirty-nine administrative subpoenas because the government did not
show how disclosure would impede an investigation).
"Reason to believe," as it is used in 12 U.S.C. § 3410 and
in the Act, is a lower standard than probable cause; it would, for example,
permit access where the only information available is an anonymous "tip."
See 124 Cong. Rec. H 11737 (daily ed. October 5, 1978) (remarks of
Pattison and Rep. La Falce) ("'Reasonable belief' and 'reason to believe'
the same thing. 'Reasonable belief' does not mean 'probable cause.' We all
that probable cause is far too high a standard to meet in the early stages
In addition to permitting the government to postpone notification to
customer, any court order under this section will also prohibit the
institution from disclosing to the customer that records are being sought.
12 U.S.C. § 3409(a) provides that an application for courtordered
of customer notice may be filed in any "appropriate court." Since these
proceedings are by definition ex parte, there is no reason why
cannot be brought in the United States district court where either the
the financial institution is located. It generally would be preferable,
to obtain the order from the court which has personal jurisdiction over the
The suggested forms for an ex parte delay of notice are
DOJ-467 and delay of notice order Form DOJ-468.