United States v. Golden Valley Elec. Ass'n

689 F.3d 1108

12 Cal. Daily Op. Serv. 8955

2012 Daily Journal D.A.R. 10,927

UNITED STATES of America, Petitioner–Appellee,

v.GOLDEN VALLEY ELECTRIC ASSOCIATION, Respondent–Appellant.

No. 11–35195.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 28, 2012.

Filed Aug. 7, 2012.

Frank V. Russo, Office of the United States Attorney, Anchorage, AK, for the appellee.

Michael C. Kramer, Joseph W. Evans, Borgeson & Kramer, Fairbanks, AK, for the appellant.

Appeal from the United States District Court for the District of Alaska, Ralph R. Beistline, Chief District Judge, Presiding. D.C. No. 3:11–mc–00002–RRB.

Before: ALFRED T. GOODWIN, WILLIAM A. FLETCHER, and MILAN D. SMITH, JR., Circuit Judges.

OPINION

W. FLETCHER, Circuit Judge:

The United States petitioned the district court for an order enforcing a Drug Enforcement Administration (“DEA”) subpoena served on Golden Valley Electric Association (“Golden Valley”) for power consumption records concerning three customer residences. The court granted the petition and ordered compliance. Golden Valley complied with the subpoena but appealed the order. We hold that the appeal is not moot and affirm on the merits.

I. Background

Golden Valley is a member-owned cooperative providing electricity to roughly 44,000 meters in Fairbanks and other localities in the interior of Alaska. In late 2010, the DEA was investigating suspected violations of the Controlled Substances Act, 21 U.S.C. § 801 et seq., by several of Golden Valley's customers. As part of its investigation, the DEA served an administrative subpoena on Golden Valley pursuant to 21 U.S.C. § 876(a). The subpoena ordered Golden Valley to provide company records pertaining to electricity consumption at three specified customer addresses. The records subpoenaed were:

customer information including full name, address, telephone number, and any account information for customer; method of payment (credit card, debit card, cash, check) with card number and account information; to include power consumption records and date(s) service was initiated and terminated for the period 10–01–2009 through 12–14–2010, if applicable[.]

Golden Valley did not immediately comply with the subpoena.

The government petitioned the district court pursuant to § 876(c) for an order enforcing its subpoena. Golden Valley opposed the petition, primarily relying on a company policy of protecting the confidentiality of its members' records. The district court granted the petition to enforce the subpoena.

Golden Valley timely appealed the district court's order. It has now complied with the subpoena, but it has not dismissed its appeal.

II. Standard of Review

We review de novo an appeal from an order enforcing an administrative subpoena. EEOC v. Fed. Express Corp., 558 F.3d 842, 846 (9th Cir.2009). We review a question of mootness de novo. Alvarez v. Hill, 667 F.3d 1061, 1063 (9th Cir.2012).

III. Discussion

A. Mootness

As a preliminary matter, we must decide whether Golden Valley's compliancewith the district court's order has rendered its appeal moot. Neither party has raised the issue, but we have an independent duty to decide whether an appeal is moot within the meaning of the case or controversy requirement of Article III. See Renee v. Duncan, 686 F.3d 1002, 1015–16 (9th Cir.2012).

An Article III federal court has “no authority to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.” Church of Scientology of Cal. v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992) (internal quotation marks omitted). “A case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” Knox v. Serv. Employees Int'l Union, ––– U.S. ––––, 132 S.Ct. 2277, 2287, 183 L.Ed.2d 281 (2012) (internal quotation marks omitted). A case is not moot “as long as the parties have a concrete interest, however small, in the outcome of the litigation[.]” Id. (internal quotation marks and alteration omitted).

In Church of Scientology, the Supreme Court addressed the very issue before us—whether compliance with a district court's order enforcing a subpoena moots an appeal from that order. The Internal Revenue Service (“IRS”) had obtained an order enforcing a subpoena requiring the production of state-court records. 506 U.S. at 11, 113 S.Ct. 447. While the order was on appeal, copies of the records were delivered to the IRS. Id. We dismissed the appeal as moot. Id. at 12, 113 S.Ct. 447. The Supreme Court reversed, concluding that the appeal was not moot. It explained:

While a court may not be able to return the parties to the status quo ante—there is nothing a court can do to withdraw all knowledge or information that IRS agents may have acquired by examination of the tapes—a court can fashion some form of meaningful relief in circumstances such as these. Taxpayers have an obvious possessory interest in their records. When the Government has obtained such materials as a result of an unlawful [subpoena], that interest is violated and a court can effectuate relief by ordering the Government to return the records.

Id. at 12–13, 113 S.Ct. 447.

Prior to the Supreme Court's decision in Church of Scientology, we had held in several cases that an appeal was moot if the subpoenaed party had complied with an enforcement order. See, e.g., Remark v. United States, 979 F.2d 770, 771 n. 1 (9th Cir.1992); EEOC v. St. Regis Paper Co., 717 F.2d 1302, 1303 (9th Cir.1983); United States v. Silva & Silva Accountancy Corp., 641 F.2d 710, 711 (9th Cir.1981); SEC v. Laird, 598 F.2d 1162, 1163 (9th Cir.1979). As a three-judge panel, we must follow prior decisions of our court unless “intervening Supreme Court authority is clearly irreconcilable with our prior circuit authority.” Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.2003). “[T]he issues decided by the higher court need not be identical in order to be controlling.” Id. But the intervening Supreme Court precedent must “undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable.” Id.

We have previously recognized that Church of Scientology is controlling on this issue. See United States v. Rubin, 2 F.3d 974, 976 (9th Cir.1993). We take this opportunity to further clarify our case law. We conclude that the Supreme Court's decision in Church of Scientology is “clearly irreconcilable” with our prior decisions listed above. See Remark, 979 F.2d at 771 n. 1;St. Regis Paper Co., 717 F.2d at 1303;Silva, 641 F.2d at 711;Laird, 598 F.2d at 1163. The fact that these cases arose under different federal statutes does not distinguish them from Church of Scientology.Church of Scientology, 506 U.S. at 17, 113 S.Ct. 447 (relying on “earlier cases involving other statutes” to hold the appeal not moot).

Accordingly, we hold that Golden Valley's appeal is not moot despite Golden Valley's compliance with the district court's order.

B. Merits

Congress enacted the Comprehensive Drug Abuse Prevention and Control Act of 1970, inter alia, to “strengthen law enforcement tools against the traffic of illicit drugs.” Gonzales v. Raich, 545 U.S. 1, 10, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005). The statute gives the Attorney General the authority to issue administrative subpoenas to investigate drug crimes:

In any investigation relating to his functions under this subchapter [Subchapter I—Control and Enforcement] with respect to controlled substances ... the Attorney General may subp[o]ena witnesses, compel the attendance and testimony of witnesses, and require the production of any records (including books, papers, documents, and other tangible things which constitute or contain evidence) which the Attorney General finds relevant or material to the investigation.

21 U.S.C. § 876(a). Section 876(c) provides for judicial enforcement of a subpoena issued under § 876(a): “In the case of contumacy by or refusal to obey a subp[o]ena issued to any person, the Attorney General may invoke the aid of any court of the United States within the jurisdiction of which the investigation is carried on ... to compel compliance with the subp [o]ena.”

An administrative subpoena may not be “too indefinite or broad.” Peters v. United States, 853 F.2d 692, 699 (9th Cir.1988). “The critical questions are: (1) whether Congress has granted the authority to investigate; (2) whether procedural requirements have been followed; and (3) whether the evidence is relevant and material to the investigation.” EEOC v. Children's Hosp. Med. Ctr. of N. Cal., 719 F.2d 1426, 1428 (9th Cir.1983) (en banc), overruled on other grounds as recognized in Prudential Ins. Co. of Am. v. Lai, 42 F.3d 1299 (9th Cir.1994). Even if other criteria are satisfied, “a Fourth Amendment ‘reasonableness' inquiry must also be satisfied.” See Reich v. Mont. Sulphur & Chem. Co., 32 F.3d 440, 444 n. 5 (9th Cir.1994). The scope of judicial review in an administrative subpoena enforcement proceeding is “quite narrow.” Children's Hosp., 719 F.2d at 1428.

Golden Valley makes four principal arguments on appeal. First, it argues that the subpoenaed records are irrelevant to the DEA's investigation. Second, it argues that the Attorney General did not verify the existence of a pending drug investigation involving the three residences prior to issuing the subpoena. Third, it argues that the subpoena was an overly broad “John Doe” subpoena. Fourth, it argues that issuance of the subpoena violated the Fourth Amendment because the government should have obtained a search warrant or a grand jury subpoena. We take each argument in turn.

1. Relevance

“Relevancy is determined in terms of the investigation rather than in terms of evidentiary relevance.” Fed. Express Corp., 558 F.3d at 854. The relevance requirement is “not especially constraining.” Id. (internal quotation marks omitted). We ...