Senate Permanent Subcomm. on Investigations v. Ferrer

Decision Date16 May 2017
Docket NumberC/w 16-5274,No. 16-5232,16-5232
Citation856 F.3d 1080
Parties SENATE PERMANENT SUBCOMMITTEE ON INVESTIGATIONS, Appellee v. Carl FERRER, Appellant
CourtU.S. Court of Appeals — District of Columbia Circuit

Robert Corn-Revere argued the cause for appellant. With him on the briefs were Ronald G. London, Robert D. Luskin, Stephen B. Kinnaird, Jamie S. Gardner, Steven R. Ross, and Stanley M. Brand, Washington, DC.

Jessica Ring Amunson and Joshua M. Parker, Washington, DC, were on the brief for amici curiae DKT Liberty Project, et al. in support of appellant.

Karen A. Chesley, New York, NY, and David Boies were on the brief for amici curiae Legal Momentum, et al. in support of appellee.

Emma J. Llansó was on the brief for amici curiae Center for Democracy & Technology and Electronic Frontier Foundation in support of appellant.

Thomas E. Caballero, Assistant Counsel, Office of Senate Legal Counsel, argued the cause for appellee. With him on the brief were Patricia Mack Bryan, Senate Legal Counsel, Morgan J. Frankel, Deputy Senate Legal Counsel, and Grant R. Vinik, Assistant Senate Legal Counsel.

Before: Tatel, Srinivasan and Wilkins, Circuit Judges.

Tatel, Circuit Judge:

Carl Ferrer, Chief Executive Officer of the online advertising website Backpage.com, appeals two district court orders directing him to produce various documents in response to a subpoena issued by the Senate Permanent Subcommittee on Investigations. During the pendency of this appeal, however, Ferrer turned over some of the documents, and the Subcommittee completed its investigation and issued its final report. Given this, and given that the Subcommittee no longer seeks to enforce the subpoena, it argues that the case has become moot. Ferrer responds that the case remains live because, according to him, this court can order the Subcommittee to return, destroy, or refrain from publishing the produced documents. We disagree. Because the relief Ferrer seeks is barred by the separation of powers, including the Speech or Debate Clause, the case is now moot.

I.

In the first half of 2015, the Senate Permanent Subcommittee on Investigations began examining "businesses that directly or indirectly facilitate criminal sex trafficking conduct, including trafficking in minors." S. REP. NO. 114–214, at 6 (2016). The Subcommittee suspected that online advertisers were playing a central role in sex trafficking by "providing ... easily accessible forum[s] that match[ ] buyers of sex with anonymous traffickers selling minors and adults." Id. at 3. In particular, the Subcommittee focused on Backpage.com, a large, classified-advertising website that allows third-party users to post their own ads. At that time, Backpage featured, alongside run-of-the-mill categories like real estate, jobs, and automobiles, a section dedicated to "adult" services, which contained subcategories ranging from "escorts" and "body rubs" to "adult jobs." Subpoena Duces Tecum of Oct. 1, 2015. Ads in those sections "typically consist[ed] of a headline, a photo or photos, video, and a brief description of the services being offered." S. REP. NO. 114–214, at 4.

In April 2015, the Subcommittee asked Backpage for an explanation of its "moderation" procedures, i.e. , standards and policies Backpage says it uses to "screen, block and remove [user-supplied] ads ... to guard against any form of human trafficking or child exploitation." Letter from Steven R. Ross, Counsel to Backpage.com to Sens. Portman and McCaskill (Oct. 23, 2015); see S. REP. NO. 114–214, at 7. Backpage sent its General Counsel to be interviewed by the Subcommittee, but when the Subcommittee found her answers lacking in several respects, it sent follow-up questions and requests for information, all of which went unanswered.

On July 7, 2015, the Subcommittee issued its first subpoena duces tecum asking Backpage to produce a variety of documents. Responding through counsel, the company argued that the subpoena was overbroad and a per se violation of the First Amendment. Although the Subcommittee offered to narrow the subpoena, Backpage continued insisting that the subpoena violated the First Amendment.

Seeking to end the stalemate, the Subcommittee withdrew the initial subpoena on October 1 and then issued a new one to Backpage's CEO, Appellant Carl Ferrer. The new subpoena sought eight categories of documents, giving Ferrer until October 23 to respond or "assert any claim of privilege or other right to withhold" documents in a privilege log. See Subpoena Duces Tecum of Oct. 1, 2015.

Although Ferrer supplied a handful of documents, he refused to search for any other responsive material. He gave three reasons for doing so: the subpoena exceeded the Subcommittee's investigative authority, infringed the First Amendment rights of Backpage and its users, and sought "[im]pertinent" information. Letter from Steven R. Ross to Sens. Portman and McCaskill (Oct. 23, 2015).

The Subcommittee rejected Ferrer's objections, but extended his deadline to comply until November 12. Ferrer produced several more documents, repeated his three objections, and added that he was withholding "[c]ertain documents ... on the basis of attorney-client and/or attorney work product privilege." Letter from Steven R. Ross to Sens. Portman and McCaskill (Nov. 13, 2015).

Confronted with Ferrer's resistance, the Subcommittee sought authority from the Senate to bring a civil subpoena-enforcement action under 28 U.S.C. § 1365(a), which gives the United States District Court for the District of Columbia original jurisdiction "over any civil action brought by the Senate or any authorized ... subcommittee ... to enforce ... any subp[o]ena or order issued by the Senate or ... subcommittee of the Senate to ... any natural person." With the Senate's unanimous approval, the Subcommittee filed an enforcement application in district court. Ferrer responded with the same three objections raised in his October 23 letter—that the subpoena violated the First Amendment, pursued impertinent materials, and exceeded the scope of the Subcommittee's investigative power.

The District Court granted the Subcommittee's application on August 5, 2016, ordering Ferrer to comply with the subpoena within ten days. Ferrer immediately noticed an appeal and sought a stay in the district court, our court, and the Supreme Court, all of which denied his request.

On September 13, the day the Supreme Court denied a stay, Ferrer produced some 110,000 pages of documents, moved the district court for an extension to complete production, and, for the first time in that court, invoked attorney-client and work-product privileges as to a subset of the yet-to-be produced documents. Although the district court granted a short extension, it rejected as untimely Ferrer's assertion of privilege. Ferrer again appealed, and this court denied a stay pending appeal except with respect to the documents Ferrer claims are privileged.

Ferrer turned over all concededly non-privileged documents in late November. Some two months later, on January 10, 2017, the Subcommittee held its last hearing, issued a final report on sex trafficking (including a lengthy appendix featuring certain documents Backpage produced), and closed the investigation. Two weeks later, the Subcommittee moved to dismiss this appeal, arguing that these subsequent events had mooted the case and deprived this court of jurisdiction.

II.

Article III of the U.S. Constitution requires a controversy to remain live "at all stages of review." Decker v. Northwest Environmental Defense Center , 568 U.S. 597, 133 S.Ct. 1326, 1335, 185 L.Ed.2d 447 (2013). "For that reason, if an event occurs while a case is pending on appeal that makes it impossible for the court to grant ‘any effectual relief whatever’ to a prevailing party, the appeal must be dismissed" as moot. Church of Scientology of California v. United States , 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992) (quoting Mills v. Green , 159 U.S. 651, 653, 16 S.Ct. 132, 40 L.Ed. 293 (1895) ).

The Subcommittee argues that the case has become moot because the Subcommittee has "held its hearing, issued its final report, ... completed its investigation," and "no longer seek[s] to enforce any part of the subpoena." Subcommittee Mot. to Dismiss at 3, 12. Ferrer concedes that no controversy remains as to the privileged documents he withheld, which the Subcommittee has never received and no longer wants. Subcommittee Mot. at 12; Oral Arg. Rec. 2:45–3:05. Nonetheless, he insists, the dispute remains live because the court may still provide at least some "effectual relief" by ordering the Subcommittee to return, destroy, or refrain from further publishing and distributing the documents Ferrer produced. He also argues that even if the case has become moot, the dispute satisfies the "capable of repetition yet evading review" exception to mootness.

A.

In support of his argument that this case remains live because our court can order the Subcommittee to return or destroy the documents, Ferrer relies principally on the Supreme Court's decision in Church of Scientology , 506 U.S. at 12, 113 S.Ct. 447. In that case, the Internal Revenue Service issued an administrative summons to a state-court clerk directing him to produce tape recordings of conversations between officials of the Church of Scientology and their attorneys. Id. at 10, 113 S.Ct. 447. When the IRS filed a petition to enforce the summons in district court, the Church intervened to oppose production on the grounds that the tapes were privileged. Id. at 11, 113 S.Ct. 447. The district court ordered production of the tapes and the Church appealed, but before the appeal could be decided, the state-court clerk delivered the tapes to the IRS, at which point the appellate court dismissed the case as moot. Id. at 12, 113 S.Ct. 447. The Supreme Court reversed, explaining that the controversy remained live because "a court ... h [as] [the] power to effectuate a partial remedy by...

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