Ramirez, In re
| Decision Date | 15 March 1989 |
| Citation | 905 F.2d 97 |
| Parties | In re INS Subpoena of Gilbert RAMIREZ Dated |
| Court | U.S. Court of Appeals — Fifth Circuit |
Mark C. Walters, Dept. of Justice, Washington, D.C., Bob Wortham, U.S. Atty., Steven M. Mason, Asst. U.S. Atty., Tyler, Tex., for appellants.
Richard A. Gump, Jr., Dallas, Tex., Lory D. Rosenberg, Cambridge, Mass., for amicus American Immigration Lawyers Ass'n. and Nat. Immigration Project.
Richard S. Fischer, Nacogdoches, Tex., for appellee.
Mary Joe Carroll, Austin, Tex., for amicus Texas Restaurant Ass'n.
Albert J. Beveridge, III, Kenneth Steven Kaufman, Washington, D.C., for amicus Nat. Restaurant Ass'n.
Appeal from the United States District Court for the Eastern District of Texas.
Before GEE, REAVLEY and GARWOOD, Circuit Judges.
Appellants United States of America and Immigration and Naturalization Service (INS) (collectively, the government) appeal the district court's order quashing the administrative subpoena of appellee Gilbert Ramirez (Ramirez) issued by the INS in furtherance of its investigation concerning compliance with the employer sanctions provisions of the Immigration Reform and Control Act of 1986 (IRCA). Although noting a potential problem respecting the district court's jurisdiction, the government contends that the district court erred on the merits in determining that INS officers lack the statutory authority to issue such a subpoena. We reverse because the district court lacked subject matter jurisdiction.
On March 15, 1989, an INS officer issued an administrative subpoena commanding Ramirez to appear before an INS officer and give testimony and produce certain documents on March 23, 1989. The subpoena reflected that it was in furtherance of an INS investigation of the compliance by a chain of restaurants owned by Ramirez and his family with the employer sanctions provisions of the IRCA. On March 21, 1989, Ramirez filed a motion to quash the subpoena with the district court. On March 23, 1989, the district court entered an order granting Ramirez' motion because the district court determined that there was no statutory authority for the INS officer's issuance of such a subpoena. In response, the government filed a notice of appeal. Other than filing its notice of appeal, the government did not appear or file any document in the district court.
Ramirez certified that he had served the United States Attorney and the INS with a copy of his motion to quash by regular mail on March 21. Although the INS apparently never received its copy of Ramirez' motion prior to the court's ruling, the government concedes that the United States Attorney's office had received its copy of the motion on March 22, 1989. 1
The threshold issue in this case is whether the district court should have dismissed Ramirez' motion to quash the INS administrative subpoena for lack of subject matter jurisdiction. Although all parties argue that the district court had jurisdiction to enter its order, the government does note that the district court's jurisdiction might be called into question by a line of cases indicating that the party subpoenaed may not challenge such an administrative subpoena until the agency initiates enforcement proceedings.
According to the government, the INS issued the subpoena in question under the authority of 8 U.S.C. Sec. 1225(a). Section 1225(a) does not authorize the INS to enforce its subpoenas in cases of noncompliance. Nor is there any provision for penalties or the like for noncompliance. Instead, the INS must request enforcement by a federal district court. See 8 U.S.C. Sec. 1225(a). 2 Where an agency must resort to judicial enforcement of its subpoenas, courts generally dismiss anticipatory actions filed by parties challenging such subpoenas as not being ripe for review because of the availability of an adequate remedy at law if, and when, the agency files an enforcement action. See, e.g., Reisman v. Caplin, 375 U.S. 440, 84 S.Ct. 508, 512-14, 11 L.Ed.2d 459 (1964); Atlantic Richfield Co. v. FTC, 546 F.2d 646, 648-49 (5th Cir.1977). See generally 13A C. Wright, A. Miller, & E. Cooper, Federal Practice & Procedure Sec. 3532.6 (2d ed. 1984). Thus, this line of cases suggests that, in order to challenge the enforceability of the INS subpoena in the present case, Ramirez should have refused to comply with the subpoena and awaited any enforcement action by the INS.
In response to Ramirez' anticipatory motion, the INS had a choice of moving to dismiss the motion for lack of jurisdiction or of filing a counterclaim for the enforcement of the subpoena. If an agency files such an enforcement counterclaim, the counterclaim establishes an independent jurisdictional ground pursuant to which a district court may rule on the enforceability of the subpoena. See Belle Fourche Pipeline Co. v. United States, 751 F.2d 332, 335 (10th Cir.1984), cert. denied, 474 U.S. 818, 106 S.Ct. 64, 88 L.Ed.2d 52 (1985).
Although conceding that it did not in fact file such a counterclaim, the government asserts in this Court that, if the INS had known of Ramirez' motion in time to react to it, it would have filed a counterclaim for enforcement of the administrative subpoena. In order to support this bare assertion, the government emphasizes that, since learning of Ramirez' challenge to the subpoena, the INS has sought to enforce the subpoena by filing a notice of appeal from the district court's order and thereafter contending in its appellate briefs that the district court had jurisdiction to rule on the subpoena's enforceability but erred in quashing the subpoena.
In essence, the government is arguing that the administrative subpoena should be enforced under some sort of constructive enforcement counterclaim doctrine. In Belle Fourche, however, a panel of the Tenth Circuit specifically rejected the assertion "that in effect the FERC [the Federal Energy Regulatory Commission] [had] counterclaimed for the enforcement of the subpoenas" in question. Id. at 335 (emphasis added). Because the government had not in fact filed an enforcement counterclaim in ...
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... ... must resort to judicial enforcement of its subpoenas, courts generally dismiss anticipatory actions filed by parties challenging such subpoenas as not being ripe for review because of the availability of an adequate remedy at law if, and when, the agency files an enforcement action." In re Ramirez, 905 F.2d 97, 98 (5th Cir.1990) (citing cases suggesting that party wishing to challenge enforceability of administrative subpoena should refuse to comply with subpoena and await enforcement action by issuing agency). Because administrative subpoenas issued by the MMS pursuant to 30 U.S.C. § 1717 ... ...
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