Kemp v. Gay

• Decision Date: 01 November 1991
• Docket Number: No. 90-5175,90-5175
• Citation: 947 F.2d 1493
• Parties: Jack KEMP, Secretary of Housing and Urban Development, Appellee, v. Gerald GAY, President, Land's Edge Enterprises, Inc., and Land's Edge Enterprises, Inc., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1493

947 F.2d 1493

292 U.S.App.D.C. 124

Jack KEMP, Secretary of Housing and Urban Development, Appellee, v. Gerald GAY, President, Land's Edge Enterprises, Inc., and Land's Edge Enterprises, Inc., Appellants.

No. 90-5175.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 27, 1991.

Decided Nov. 1, 1991.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 90-01218).

Marshall E. Anders, Stroudsburg, Pa., with whom Gerald F. Ivey, Washington, D.C., was on the brief, for appellants.

W. Mark Nebeker, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., and Rebecca J. Holtz, Attorney, Office of General Counsel, U.S. Dept. of Housing and Urban Development, Washington, D.C., were on the brief, for appellee.

Before MIKVA, Chief Judge, SENTELLE and HENDERSON, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.

KAREN LeCRAFT HENDERSON, Circuit Judge:

The appellants, Gerald Gay and Land's Edge Enterprises, Inc. ("Land's Edge"), seek reversal of a district court order enforcing an administrative subpoena on the grounds that (1) the district court and this court lack subject-matter jurisdiction because venue properly lies only in the Middle District of Pennsylvania and (2) Gay's fifth amendment privilege protects him from complying with the subpoena. For the following reasons, we affirm the district court's order.

According to the appellee, in November 1988, the Interstate Land Sales Registration Division of the United States Department of Housing and Urban Development (the Division) received three consumer complaints regarding sales of real property in Monroe County, Pennsylvania, by Land's Edge d/b/a Old Coach Builders. On January 17, 1989, the Division sent a letter to Gay, president of Land's Edge, requesting that he complete an enclosed questionnaire to enable the Division to determine Land's Edge's status under the Interstate Land Sales Full Disclosure Act, 15 U.S.C. §§ 1701 et seq., ("the Act"). The Act requires that developers selling lots in interstate commerce register with the Division and prohibits fraudulent practices in such sales. By letter dated February 15, 1989, Marshall E. Anders, a lawyer representing Land's Edge, advised the Division that his client was not a developer within the scope of the Act and that therefore the Division had no jurisdiction over Land's Edge and the questionnaire would not be completed.

On August 18, 1989, the Division issued a subpoena duces tecum et subpoena ad testificandum directing Gay to produce specified documents by September 29, 1989, at the Division's Washington, D.C., office and to appear before a Division investigator at 10:00 a.m. on October 26, 1989 at the same location. The subpoena was served by certified mail on August 25, 1989.

Anders responded to the subpoena in a letter dated September 19, 1989, advising the Division the appellants would produce many of the requested documents but would be unable to do so until some time between the due date and the date set for the hearing. In response to that letter, which did not contest the location of the hearing in Washington, the Division officially changed the due date for the documents to October 13, 1989, and sent a detailed letter to Anders explaining the specific document requests.

On October 16, 1989, the Division wrote a letter to Anders informing him that the documents, as yet unproduced, were overdue. On October 20, 1989, Anders responded with a letter setting forth his positions regarding the individual subpoena requests and concluding: "I would also advise that Mr. Gay has a problem appearing on October 26, 1989 and until such time as the question of the information to be supplied by the subpoena is resolved, I see no need for him to appear, especially in light of the fact that he will be taking the Fifth Amendment." Nevertheless, Gay did appear at the Division's Washington office on October 26, 1989. He was accompanied by Anders and invoked his fifth amendment privilege in response to almost every question asked him. Following that proceeding, on October 30, 1989, Anders again wrote the Division, repeating his positions on the subpoena requests.

On April 6, 1990, the appellee filed a motion for an order requiring compliance with the subpoena in the United States District Court for the District of Columbia. By order filed May 25, 1990, the district court granted the motion. That order required that

(1) "[o]n or before Monday, June 18, 1990," Gay "produce and deliver ... all books, papers, correspondence, memoranda and other records and documents described in the Secretary's administrative subpoena,"

(2) Gay appear at the Division's Washington office on Wednesday, July 18, 1990, "to specifically answer under oath the questions attached as Attachment A to this Order, that were posed to Mr. Gay on October 26, 1989, which this Court deems to be innocuous and to which no threat of self-incrimination is evident,"

(3) Gay "as corporate custodian, shall also answer under oath the questions concerning the identification and authentification of the subpoenaed corporate records and questions posed to him on October 26, 1989, concerning the corporate entities, which this Court deems to be innocuous on their face and do not appear to request information that would tend to incriminate Mr. Gay personally or to link Mr. Gay personally to any criminal violation, more specifically described as those questions found in the Transcript (Exh. K to Declaration of Roger G. Henderson) commencing on page 11, line 8 through page 79, line 3, relating to the corporations ... and the documents requested in the subpoena pertaining to such corporations,"

(4) Gay "answer such additional questions at the retaking of his testimony relating to the subpoenaed documents which were not asked of him on October 26, 1989 and may assert his Fifth Amendment privilege only in response to individual questions which may tend to incriminate him personally," and

(5) if Gay intended to invoke his fifth amendment privilege as to "any of the previously identified questions," he provide to the court and to the Division, before June 18, 1990, a "written statement under oath, explaining why a response to an individual question might tend to incriminate him."

Gay filed an appeal of that order and obtained from this court a stay of enforcement pending disposition of the appeal. For the following reasons, we affirm the district court's order.

I.

At the outset, we consider a matter not raised by the parties, namely, whether the enforcement order is final and appealable under 28 U.S.C. § 1291. Because that issue is jurisdictional, we must address it before reaching the merits of the appeal. See IAM Nat'l Pension Fund Benefit Plan A v. Cooper Indus., Inc., 789 F.2d 21, 24 n. 4 (D.C.Cir.) (citing Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 379, 101 S.Ct. 669, 676, 66 L.Ed.2d 571 (1981), cert. denied, 479 U.S. 971, 107 S.Ct. 473, 93 L.Ed.2d 417 (1986).

In a succession of decisions, the United States Supreme Court has held that a district court's ruling on a subpoena's validity is not enforceable unless and until the subpoenaed party defies an enforcement order and is cited for contempt. See, e.g., United States v. Ryan, 402 U.S. 530, 91 S.Ct. 1580, 29 L.Ed.2d 85 (1971); Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940); Alexander v. United States, 201 U.S. 117, 26 S.Ct. 356, 50 L.Ed. 686 (1906). Under this general rule, it is only after entry of contempt that the underlying discovery dispute becomes "ripe for appellate review." Ryan, 402 U.S. at 532, 91 S.Ct. at 1582; see also Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 377, 101 S.Ct. 669, 675, 66 L.Ed.2d 571 (1981). The rationale for this rule of ripeness was explained in Ryan:

[W]e have consistently held that the necessity for expedition in the administration of the criminal law justifies putting one who seeks to resist the production of desired information to a choice between compliance with a trial court's order to produce prior to any review of that order, and resistance to that order with the concomitant possibility of an adjudication of contempt if his claims are rejected on appeal.

402 U.S. at 532-33, 91 S.Ct. at 1582. Nevertheless, the rule is subject to certain exceptions, among them appeals involving administrative subpoenas. ¹ Since the late nineteenth century, the Supreme Court has repeatedly found reviewable appeals from orders upholding administrative subpoenas. See, e.g., Reisman v. Caplin, 375 U.S. 440, 449, 84 S.Ct. 508, 513, 11 L.Ed.2d 459 (1964); Ellis v. ICC, 237 U.S. 434, 35 S.Ct. 645, 59 L.Ed. 1036 (1915); Harriman v. ICC, 211 U.S. 407, 29 S.Ct. 115, 53 L.Ed. 253 (1908); ICC v. Baird, 194 U.S. 25, 24 S.Ct. 563, 48 L.Ed. 860 (1904); ICC v. Brimson, 154 U.S. 447, 14 S.Ct. 1125, 38 L.Ed. 1047 (1894). ² In Ellis v. ICC, 237 U.S. 434, 35 S.Ct. 645, 59 L.Ed. 1036 (1915), the Court explained the reasons for distinguishing between judicial and administrative subpoenas:

This is an appeal from an order of the district court, made upon a petition of the appellee, the Interstate Commerce Commission, filed under the act to regulate commerce, § 12, c. 104, 24 Stat. 379, 383. The order directs the appellant to answer certain questions propounded and to produce certain documents called for by the appellee. There is no doubt that this appeal lies. The order is not like one made to a witness before an examiner or on the stand in the course of a proceeding inter alios in court.... It is the end of a proceeding begun against the witness.

237 U.S. at 442, 35 S.Ct. at 646 (citations omitted). In Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940), the Court elaborated on the distinction drawn in Ellis:

One class of cases dealing with the duty of witnesses to testify...