Peters v. U.S., 86-3831

• Decision Date: 02 August 1988
• Docket Number: No. 86-3831,86-3831
• Parties: Diana PETERS, Manager, Walla Walla Labor Camp, Petitioner-Appellant, v. UNITED STATES of America; Michael J. Bower, Criminal Investigator of Immigration and Naturalization Service, Petitioners-Appellees, and Jose Garcia; Maria E. Ornelas; Elias Vasquez; Guadalupe Villalobos; Trinidad Herebia, Intervenors.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 692

853 F.2d 692

57 USLW 2117

Diana PETERS, Manager, Walla Walla Labor Camp, Petitioner-Appellant, v. UNITED STATES of America; Michael J. Bower, Criminal Investigator of Immigration and Naturalization Service, Petitioners-Appellees and Jose Garcia; Maria E. Ornelas; Elias Vasquez; Guadalupe Villalobos; Trinidad Herebia, Intervenors.

No. 86-3831.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 8, 1987.

Decided Aug. 2, 1988.

Rebecca Smith, Everett, Wash., John Junke and Daniel N. Clark, Walla Walla, Wash., for petitioner-appellant and intervenors.

Ellen Sue Shapiro, Civil Div., Washington, D.C., for petitioners-appellees.

Appeal from the United States District Court for the Eastern District of Washington.

Before ALARCON ^* and BEEZER, Circuit Judges, and NIELSEN, ^** Senior District Judge.

BEEZER, Circuit Judge:

The Immigration and Naturalization Service (INS) seeks enforcement of a third-party subpoena directed at the Walla Walla Labor Camp. The third-party subpoena was issued in connection with a general criminal investigation of a group of unnamed tenants at the camp who may be undocumented aliens. The manager of the camp, Diana Peters, and tenant intervenors resist the subpoena on the grounds that it exceeds the INS's authority and violates the fourth amendment. Because we hold that 8 U.S.C. Sec. 1225(a) does not authorize the INS to issue a group "John Doe" subpoena, we quash the subpoena.

I

The Walla Walla Labor Camp provides housing for approximately 150 families engaged in farm labor. It receives funding from the Farmers Home Administration (FmHA), which requires it to maintain tenant records. ¹ The records include information about United States residency, employment, salary, unearned income, vehicles, and prior tenancy.

In November 1984, INS agent Michael Bower asked the camp for permission to examine its tenant files. He stated that he wished to inspect the files in connection with an INS program aimed at preventing undocumented aliens from receiving subsidized housing. Citing the privacy rights of its tenants, the camp refused to permit inspection of its files.

In December 1984, the INS served Diana Peters, the camp manager, with a subpoena. The subpoena ordered her to appear before "Michael J. Bower, Criminal Investigator," to give testimony in connection with "a criminal investigation proceeding" relating to "undocumented aliens residing at the Walla Walla Labor Camp concerning their immigration status in the United States." It further ordered her to bring "all records relating to persons residing at the Walla Walla Labor Camp including but not limited to Preliminary Applications for Farmworkers Housing, Applications for Farmworkers Housing, Contracts for Farmworkers Housing, any other documents that would identify those persons residing at the Walla Walla Labor Camp." Because of privacy concerns, Peters refused to comply with the subpoena.

In April 1985, the INS initiated an enforcement proceeding in the district court. The petition stated that the INS was "conducting a criminal investigation under authority of the Immigration and Nationality Act relating to undocumented aliens residing at Walla Walla Labor Camp." It further stated that Peters was directed "to give testimony and to produce books, papers and documents" in connection with the investigation of suspected undocumented aliens at the camp. Peters responded with a motion to quash, arguing that the subpoena was, inter alia, outside the INS's authority, overbroad, and contravened the fourth amendment. A number of tenants obtained leave to intervene and joined Peters' motion.

In March 1986, the district court ruled in favor of the INS. It reasoned that 8 U.S.C. Sec. 1225(a), especially as construed by United States v. Minker, 350 U.S. 179, 184-85, 76 S.Ct. 281, 285, 100 L.Ed. 185 (1956), granted the INS broad subpoena power. As to its authority to issue the subpoena without identifying particular individuals under investigation, the district court relied heavily on the Internal Revenue Service's (IRS) authority to issue "John Doe summonses." Because section 1225(a) contained no express prohibition against John Doe subpoenas, the district court in effect imputed IRS John Doe summons law onto INS subpoena law. The court was nonetheless troubled that the INS could issue a subpoena seeking information about a group of unknown individuals without a showing that it was not conducting a mere fishing expedition. Before enforcing the subpoena, therefore, the court required the INS, as the IRS must do before issuance of a John Doe summons, to demonstrate that it possessed a reasonable basis for believing that camp residents were violating the immigration laws. ²

In compliance with the court's order, the INS produced an affidavit from agent Bowers. The affidavit stated that he had arrested approximately 300 undocumented aliens at the camp in his 11-year tenure; that he had arrested 19 there in 1984; and that he had received numerous complaints regarding "illegals" at the camp during 1984-85. Finding the affidavit sufficient, the district court ordered enforcement of the subpoena. In its second order, the court conceded that it had, by analogy, imposed on the INS the same burden that the IRS is required to meet prior to its issuance of a John Doe summons under 26 U.S.C. Sec. 7609(f). Peters and the tenants timely appeal. Pending appeal, a motions panel of this court granted a stay.

II

The scope of the INS's subpoena power and the consistency of the subpoena with the fourth amendment are questions of law which we review de novo. See United States v. McConney, 728 F.2d 1195, 1200-02 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

Peters and the tenants maintain that (1) the INS has authority to issue subpoenas only in connection with specific proceedings against known individuals, and may not issue a general group subpoena against unidentified individuals in an unspecified criminal investigation; and (2) the use of the group subpoena against the labor camp files contravenes the fourth amendment. The INS responds that (1) Congress has given it broad authority to issue subpoenas for information relating to immigration status of persons residing in housing projects for farm laborers; and (2) this administrative subpoena does not infringe on the fourth amendment.

III

The threshold issue before us is whether Congress has authorized the INS to issue blanket John Doe subpoenas to enforce the Immigration and Nationality Act (Act), similar to the manner in which the IRS is authorized to seek issuance of John Doe summonses. ³ To be sure, the INS possesses broad subpoena and investigatory power. After a full review of the record, however, we conclude that it was error for the district court to impute IRS John Doe summons law onto INS subpoena law without specific authorizing legislation. Although 8 U.S.C. Sec. 1225(a) grants the INS wide subpoena authority, it is not without limits so as to allow us to infer the authority to issue group John Doe subpoenas.

Title 8, U.S.C. Sec. 1225(a) provides:

The Attorney General and any immigration officer ... shall have power to require by subpoena the attendance and testimony of witnesses ... and the production of books, papers, and documents relating to the privilege of any person to enter, reenter, reside in, or pass through the United States or concerning any matter which is material and relevant to the enforcement of this [Act] and the administration of the Service....

(Emphasis added.) Given this broad language, the INS's subpoena power encompasses both civil and criminal proceedings since both are part of the Act. See 8 U.S.C. Secs. 1251(a)(2) (civil deportation), 1306(d), 1325, 1326 (criminal prosecution for, respectively, use of counterfeit documents, entry without inspection, reentry after deportation). Although section 1225(a) appears in a part of the Act that describes the powers of INS agents at the border, the Supreme Court has reasoned [If the relevant language] had merely read "and any other matter which is material and relevant," the doctrine of ejusdem generis would appropriately be invoked to limit the subpoena power to an investigation pertaining to questions of admission and deportation. The comprehensive addition of the clause "or concerning any matter which is material and relevant to the enforcement of this Act ..." precludes such narrowing reading. "Act" encompasses the full range of subjects covered by the statute.... "[T]he title of a statute and the heading of a section cannot limit the plain meaning...."

Minker, 350 U.S. at 184-85, 76 S.Ct. at 285 (citation omitted). The Supreme Court has also recognized the broad investigatory power of administrative agencies:

Because judicial power is reluctant if not unable to summon evidence until it is shown to be relevant to issues in litigation, it does not follow that an administrative agency charged with seeing that the laws are enforced may not have and exercise powers of original inquiry. It has a power of inquisition, if one chooses to call it that, which is not derived from the judicial function. It is more analogous to the Grand Jury, which does not depend on a case or controversy for power to get evidence but can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.

United States v. Morton Salt Co., 338 U.S. 632, 642-43, 70 S.Ct. 357, 364, 94 L.Ed. 401 (1950). Despite the INS's concededly broad subpoena and investigatory authority, we are reluctant to assume the existence of the power to issue third-party subpoenas directed at unidentified targets where Congress has not provided for them specifically, nor provided procedural safeguards.

The authority of an administrative agency to issue subpoenas for investigatory purposes is created solely by statute. 3 B. Mezines, J. Stein & J. Gruff,...