931 F.2d 956 (D.C. Cir. 1991), 90-5251, Office of Thrift Supervision Dept. of Treasury v. Dobbs

Docket Nº:90-5251.
Citation:931 F.2d 956
Party Name:OFFICE OF THRIFT SUPERVISION, DEPARTMENT OF the TREASURY v. Walter DOBBS, Appellant.
Case Date:May 03, 1991
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 956

931 F.2d 956 (D.C. Cir. 1991)

OFFICE OF THRIFT SUPERVISION, DEPARTMENT OF the TREASURY

v.

Walter DOBBS, Appellant.

No. 90-5251.

United States Court of Appeals, District of Columbia Circuit.

May 3, 1991

Argued Feb. 25, 1991.

Appeal from the United States District Court for the District of Columbia.

Scott E. Bartel, Bartel Eng Miller & Torngren, Sacramento, Cal., for appellant.

Alexander Weir III, Senior Enforcement Atty., Dept. of the Treasury, with whom Harris Weinstein, Chief Counsel, Dept. of the Treasury, was on the brief, Washington, D.C., for appellee. Aaron B. Kahn, Atty., Dept. of Treasury, Washington, D.C., also entered an appearance for appellee.

Page 957

Before MIKVA, Chief Judge, and D.H. GINSBURG and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge:

In this case, appellant Walter Dobbs challenges a district court decision enforcing a subpoena against him. Because appellant has complied with the subpoena, there is no live controversy before this Court, and we find the appeal to be moot.

  1. BACKGROUND

    In the course of investigating Gold River Savings Bank, the Office of Thrift Supervision of the Department of the Treasury ("OTS") issued a subpoena duces tecum against appellant Dobbs, requiring him to provide certain documents and to appear for a deposition in Fair Oaks, California. Dobbs filed a motion with OTS to quash the subpoena, but OTS denied the motion. Dobbs then provided to OTS the documents requested under the subpoena, and agreed to be deposed in Fair Oaks.

    OTS later notified Dobbs's counsel that the deposition would be held in San Francisco, California, rather than in Fair Oaks. When Dobbs objected to this change, OTS sought enforcement of the subpoena in the United States District Court for the District of Columbia. The district court rejected Dobbs's arguments that the court lacked both subject matter and in personam jurisdiction, and granted OTS's petition to enforce the subpoena. Following this proceeding, Dobbs complied with the OTS subpoena. Dobbs now appeals the district court's enforcement decision to this Court.

  2. DISCUSSION

    A subpoena is not an appealable final order. See Cobbledick v. United States, 309 U.S. 323, 330, 60 S.Ct. 540, 543, 84 L.Ed. 783 (1940); United States v. Ryan, 402 U.S. 530, 532, 91 S.Ct. 1580, 1581, 29 L.Ed.2d 85 (1971). To obtain review of a subpoena, a party must refuse to comply with the subpoena, be held in contempt by the trial court, and appeal the finding of contempt to the appellate court. Id. at 533, 91 S.Ct. at 1582. In the context of an administrative subpoena, the administrative agency must request a district court to enforce its subpoenas. See, e.g., Cudahy Packing Co. v. Holland, 315 U.S. 357, 360, 62 S.Ct. 651, 653, 86 L.Ed. 895 (1942); Reisman v. Caplin, 375 U.S. 440, 445-46, 84 S.Ct. 508, 511-12, 11 L.Ed.2d 459 (1964). The resulting enforcement order is an appealable final order normally tested on appeal after noncompliance and contempt. FTC v. Texaco, Inc., 555 F.2d 862, 873 n. 21 (D.C.Cir.), cert. denied, 431 U.S. 974, 97 S.Ct. 2939, 53 L.Ed.2d 1072 (1977).

    Appellant Dobbs is appealing such an enforcement decision in the present case. However, between the time of the district court decision and this appeal, Dobbs complied with the subpoena, appearing for the requested deposition in San Francisco, California. Numerous courts have held that an appeal from enforcement of a subpoena becomes moot once the party has complied with the subpoena. See, e.g...

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