Opinion · Court of Appeals for the Fifth Circuit

J. W. Baldridge v. United States of America and Donald B. Nettles, Special Agent of the Internal Revenue Service

406 F.2d 526

Type
Opinion
Court
Court of Appeals for the Fifth Circuit
Jurisdiction
Federal
Date
1969-01-16
Topic
general

How later courts describe this case

  • determination regarding future admissibility of subpoenaed materials would be in the nature of an advisory opinion
  • Where appellant complied with the court order enforcing subpoena, “[t]here is nothing on this appeal for this Court to decide. The case is moot.”
  • appeal from district court order enforcing IRS subpoena became moot upon accountant for taxpayer’s compliance with the order

Citator

UpLaw has not yet analyzed J. W. Baldridge v. United States of America and Donald B. Nettles, Special Agent of the Internal Revenue Service. The absence of a flag is not a finding that it is good law.

Cited by
26 opinions
BALDRIDGE v. UNITED STATES,406 F.2d 526(5th Cir. 1969)
J.W. BALDRIDGE et al., Appellants, v. UNITED STATES of America and Donald
B. Nettles, Special Agent of the Internal Revenue Service, Appellees.
No. 26153.
United States Court of Appeals, Fifth Circuit.
January 16, 1969.
Page 527
Gerald H. Beckman, Houston, Tex., for appellants.

Mitchell Rogovin, Asst. Atty. Gen., Lee A. Jackson, Tax Div., Meyer Rothwacks, Joseph M. Howard, John M. Brant, Attys., Dept. of Justice, Washington, D.C., Morton L. Susman, U.S. Atty., James R. Gough, Asst. U.S. Atty., Houston, Tex., for appellees.
Before ALDRICH,fn*GODBOLD and DYER, Circuit Judges.
PER CURIAM:
This is an appeal from an order of the District Court entered March 20, 1968, enforcing an Internal Revenue Summons requiring the production of work papers made, used, and kept by Baldridge, an independent public accountant, in the course of preparing tax returns for the taxpayers, Charles A. Reich and his wife.

On July 31, 1968, the appellants produced the documents called for by the summons and fully complied with the order of the District Court.

There is nothing on this appeal for this Court to decide. The case is moot. Grathwohl, et al. v. United States, et al., 5 Cir. 1968,401 F.2d 166; Lawhon v. United States, 5 Cir. 1968, 390 F.2d 663.

We do not share appellants' view that their specification of errors in this case raises questions of substantial public interest which should survive mootness. Nor are we called upon, as appellants urge, to determine whether the records would be admissible in a subsequent criminal or civil trial. As we said inLawhon:
The motion for reconsideration is denied. This motion, in effect, seeks to have this court give an advisory opinion as to the admissibility in evidence of the records or their product in the event of a subsequent criminal trial. Such event may not occur. This court passes no judgment on the question whether, if the mooted records are used in a subsequent prosecution of the taxpayers, if there be one, their introduction would be forbidden as violating the constitutional rights of the defendants.


While the government concededly insisted before the District Court that the production of the records by appellants would not moot their appeal, there is no suggestion that this was a deliberate misstatement of the law. In fact, neitherLawhonnorGrathwohlwas decided or published until after the trial court's decision in this case. In any event, our determination of mootness vel non cannot be circumscribed by prognostications of counsel in the trial court.

The judgment below is vacated and the case remanded to the District Court with directions to dismiss the proceedings as moot. Troy State University v. Dickey, 5 Cir. 1968,402 F.2d 515.

Vacated, remanded with directions.
ALDRICH, Circuit Judge (dubitante).
If I had to cast the deciding vote I might find it somewhat difficult to accept that if the government seeks court relief to take from A certain property which A asserts is the property of B, in which eventuality a government taking would violate B's Fifth Amendment rights, review of the court's order is mooted and all rights of appeal are lost if A, denied a stay pending appeal, chooses to surrender the property as against electing to spend up to a year in jail. A bailee has an obligation to protect property, but not to that extent. However, I need not pursue this matter in this case, and merely note my reservations.Page 528Page 556
  1. Of the First Circuit, sitting by designation. ↩