JOHN W. ROBERTS, PETITIONER V. UNITED STATES OF AMERICA, ET AL.

   No. 87-906

   In the Supreme Court of the United States

   October Term, 1987

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Eleventh Circuit

   Memorandum for the Respondents in Opposition

   Petitioner contends that the court of appeals had jurisdiction over
his appeals from an order dismissing his action for the return of
property and the suppression of evidence and an order enforcing three
IRS summonses.  /1/

   1. As part of an IRS investigation of petitioner, Special Agent
Randy Taylor visited the accounting firm of Chapel & Ward, and
requested access to documents relating to petitioner.  Chapel & Ward
voluntarily gave Agent Taylor workpapers, books, and other records
(Pet. App. B11).  The IRS made copies of those documents and returned
to the accountants all original documents except a computer printout
and a workpaper that belonged to the accountants (id. at A3).
Petitioner then filed an action in the district court pursuant to
Federal Rule of Criminal Procedure 41(e) to have the copies delivered
to him and to suppress any use of the information by the IRS.  The
district court dismissed, holding that petitioner had no legitimate
expectation of privacy in the records in the hands of his accountants
and that petitioner's constitutional rights had not been violated
(Pet. App. B15, B20).

   In a separate action brought by petitioner, the district court
ordered enforcement of three IRS administrative summonses that
required the production of bank records relating to petitioner and
required accountants Chapel and Ward to give testimony pertaining to
petitioner's tax liabilities (Pet. App. C12-C15).  Both the district
court (id. at C9) and the court of appeals (id. at C1) denied motions
for a stay of the district court's enforcement order.  Before briefs
were filed in the court of appeals, all three summoned parties
complied with the IRS summonses (id. at A2).

   The court of appeals dismissed petitioner's two appeals (Pet. App.
A1-A4).  The court held that it had no jurisdiction over petitioner's
appeal from the order dismissing his Rule 41(e) action because an
order denying the suppression of evidence is interlocutory.  The court
dismissed petitioner's appeal from the order enforcing the IRS
summonses on the ground of mootness;  all summoned parties had
complied with the summonses.

   2. The court of appeals correctly dismissed petitioner's appeal
from the order dismissing his Rule 41(e) action.  It is well settled
that the dismissal of a Rule 41(e) action is immediately appealable
"(o)nly if the (action) is solely for return of property and is in no
way tied to a criminal prosecution in esse * * * ." Dibella v. United
States, 369 U.S. 121, 131-132 (1962).  Petitioner's action failed the
first part of the two-part DiBella test because it sought the
suppression of evidence and was thus not solely for the return of
property (Pet. App. A3-A4).

   Petitioner maintains (Pet. 31-35) that there is a conflict in the
circuits over the precise meaning of the first part of the DiBella
test.  Petitioner notes that some circuits inquire into the motive
underlying a Rule 41(e) action to determine whether its "primary"
purpose was to obtain the return of property (in which case its
dismissal is appealable) or to suppress the government's use of
evidence.  See, e.g., United States v. Premises Known as 608 Taylor
Ave., 584 F.2d 1297, 1300 (3rd Cir. 1978).  Petitioner contends that
these decisions conflict with the Fourth Circuit's opinion in United
States v. Regional Consulting Services, 766 F.2d 870 (1985).  The
Fourth Circuit, however, recognized no such conflict.  It carefully
noted in Regional Consulting Services that the Rule 41(e) movants in
that case did not prove that "the primary purpose of their motion"
(766 F.2d at 873 n.6) was the return of records.  Thus we believe that
no conflict in the circuits has arisen with respect to the first part
of the DiBella test.

   In any event, petitioner's motion under Rule 41(e) specifically
requested suppression as a remedy (Pet. 21-22).  Petitioner also
sought to obtain copies of documents that Agent Taylor obtained from
and then returned to Chapel & Ward.  But a motion to obtain copies of
returned records is nothing more than a motion to suppress the
contents of those records.  See Warden v. Hayden, 387 U.S. 294, 305
(1967);  Imperial Distributors, Inc. v. United States, 617 F.2d 892,
895-896 (1st Cir.) (dismissing appeal), cert. denied, 449 U.S. 891
(1980);  Hill v. United States, 346 F.2d 175 (9th Cir.) (dismissing
appeal), cert. denied, 382 U.S. 956 (1965).  Compare In re Grand Jury
Proceedings, 716 F.2d 493 (8th Cir. 1983) (denial of Rule 41(e) motion
appealable because motion primarily sought return of original
documents that were vital to movant's operation of business).
Accordingly, petitioner's Rule 41(e) action was primarily, if not
solely, designed to suppress the government's use of evidence.  The
district court's dismissal of his action therefore was not appealable
under any circuit's reasoning.

   This case does not present any issue concerning the second part of
the DiBella test (Pet. 34-48).  Petitioner does not challenge the
accepted view that the dismissal of a Rule 41(e) action is appealable
only if both parts of the test are satisfied.  Accordingly, because
petitioner's appeal does not meet the first part of the test, the
court of appeals properly did not reach the question whether
petitioner's Rule 41(e) action was tied to a criminal prosecution.

   3. The court of appeals also correctly dismissed as moot
petitioner's appeal from the order enforcing the IRS administrative
summonses.  A case becomes moot when the controversy between the
parties ceases to exist so that the court may not grant effective
relief.  See, e.g., St. Pierre v. United States, 319 U.S. 41 (1943).
In a summons-enforcement proceeding, the government seeks only to
obtain access to the summoned information;  the party challenging the
summons hopes to prevent that access.  Once the summoned parties have
complied, as in this case, the government has achieved its objective
and there is no relief that a court can grant the opposing party.  For
that reason, all but one of the courts of appeals that have considered
the question have held that compliance with an IRS summons renders
moot an appeal from an order enforcing the summons.  /2/

   The Third Circuit's decision in Gluck v. United States, 771 F.2d
750 (1985), is the only contrary circuit authority.  In Gluck, the
Third Circuit reasoned that a case is not moot after compliance with a
summons because the court can order the suppression of illegally
obtained evidence in any future civil or criminal proceeding.  This
reasoning is faulty.  See United States v. Sherlock, 756 F.2d 1145,
1147 (5th Cir. 1985).  As the Seventh Circuit correctly observed in
United States v. Kis, "(i)t would be highly speculative" to rule on
the legality of a summons "for there is no guarantee that the
Government will ever seek to use" the summoned evidence (658 F.2d at
533).  Thus a ruling on the merits in this case would simply be an
"advisory opinion." Lawhon v. United States, 390 F.2d 663 (5th Cir.
1968) (per curiam).  Petitioner may obtain a ruling on the legality of
the IRS summonses by way of a suppression motion in the event that
there is a future trial.  /3/ Cf. United States v. Blue, 384 U.S. 251,
255 (1966).

   Petitioner's appeal from the order enforcing the IRS summonses does
not remain justiciable under the doctrine that claims remain alive if
they are "capable of repetition, yet evading review." Murphy v. Hunt,
455 U.S. 478, 482 (1982);  see United States v. Kis, 658 F.2d at 533.
First, there is nothing in the record to support a finding that "there
(is) a reasonable expectation that the same complaining party (will)
be subjected to the same action again" (Murphy v. Hunt, 455 U.S. at
482).  Even if new summonses are issued and enforced, the affected
parties can obtain full appellate review by obtaining a stay or by
means of a contempt citation.  See United States v. First Family
Mortgage Corp., 739 F.2d 1275, 1277-1278 (7th Cir. 1984);  United
States v. Kis, 658 F.2d at 533;  United States v. Sweet, 655 F.2d 54,
55 (5th Cir. 1981).  This Court has recognized that a party's risking
contempt may, at times, be the only way to obtain full appellate
review of an adverse order.  /4/ See, e.g., United States v. Ryan, 402
U.S. 530, 533 (1971).  Accordingly, the court of appeals correctly
dismissed as moot petitioner's appeal in the summons-enforcement case.

   Finally, we believe that this Court's review of the circuit
conflict on the mootness question is not necessary at this time.  As
Judge Garth noted in dissent in Gluck (771 F.2d at 759-760), the Third
Circuit's holding on mootness in that case conflicts with the prior
Third Circuit decision in Vesco v. SEC, 462 F.2d 1350 (1972).  Judge
Garth has urged that this intracircuit conflict be resolved by the
court en banc (771 F.2d at 761).  There is substantial
summons-enforcement litigation within the Third Circuit, and the
government is interested in attempting to persuade that court to agree
with the unanimous view of other circuits.  Thus, the Third Circuit
may well have an opportunity soon to reconsider its mootness rule en
banc.

   It is therefore respectfully submitted that the petition for a writ
of certiorari should be denied.

   CHARLES FRIED

      Solicitor General

   JANUARY 1988

   /1/ Petitioner Roberts was the only appellant in the court of
appeals (Pet. App. B1, C2), even though several of his controlled
companies were also plaintiffs in the action for the return of
property and the suppression of evidence (id. at B6).

   /2/ See, e.g., United States v. Kis, 658 F.2d 526 (7th Cir. 1981),
cert. denied, 455 U.S. 1018 (1982);  United States v. Trails End
Motel, 657 F.2d 1169 (10th Cir. 1981);  United States v. First
American Bank, 649 F.2d 288 (5th Cir. 1981);  United States v. Silva &
Silva Accountancy Corp., 641 F.2d 710 (9th Cir. 1981);  United States
v. Aquinas College Credit Union, 635 F.2d 887 (6th Cir. 1980), cert.
denied, 450 U.S. 1042 (1981);  United States v. Arthur Andersen & Co.,
623 F.2d 720 (1st Cir.), cert. denied, 449 U.S. 1021 (1980);  United
States v. Deak-Perera Int'l Banking Corp., 610 F.2d 89 (2d Cir. 1979);
 Barney v. United States, 568 F.2d 116 (8th Cir. 1978);  Kurshan v.
Riley, 484 F.2d 952 (4th Cir. 1973).  Contrary to petitioner's
suggestion (Pet. 51), these decisions are not limited to a case where
a taxpayer, as distinguished from a third party, complies with the
summons.  See, e.g., United States v. First American Bank, supra;
United States v. Deak-Perera Int'l Banking Corp., supra;  Barney v.
United States, supra.

   /3/ Under settled precedent, the district court's enforcement order
in this case will be vacated because the case became moot before the
court of appeals ruled on the merits.  Such an order is required "to
prevent a judgment, unreviewable because of mootness, from spawning
any legal consequences(,)" and "clears the path for future
relitigation of the issues between the parties." United States v.
Munsingwear, Inc., 340 U.S. 36, 40-41 (1950);  see also Weinstein v.
Bradford, 423 U.S. 147, 149 (1975).

   /4/ Petitioner cites United States v. Arthur Andersen & Co., 623
F.2d 720 (1st Cir.), cert. denied, 449 U.S. 1021 (1980), for the
proposition that accountants cannot reasonably be expected to risk
contempt in a summons-enforcement case (Pet. 60).  In fact, the court
noted in Andersen (623 F.2d at 724) that an accounting firm has a
"sufficient incentive" to protect its client's interests because
unauthorized disclosures hinder the firm's ability to obtain
information.  In any event, petitioner's claims can be asserted when
evidence is sought to be used against him and provide no basis for
interference with the IRS's investigation of third-party records.  Cf.
United States v. Miller, 425 U.S. 435 (1976);  Couch v. United States,
409 U.S. 322 (1973).