# United States v. Barrett

> Court of Appeals for the Fifth Circuit · February 24, 1988 · 837 F.2d 1341

URL: https://www.frixlaw.com/law-library/cases/8956545

## Case

- **Full name:** UNITED STATES of America and Michael O. Hanson, Special Agent of the Internal Revenue Service v. Bernard M. BARRETT, Jr., as President of Plastic and Reconstructive Surgeons, P.A., Houston, Texas
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** February 24, 1988
- **Citations:** 837 F.2d 1341; 1988 WL 7850
- **Precedential status:** Published
- **Opinion:** Dissent by Rubin
- **Judges:** Brown, Clark, Davis, Garwood, Gee, Higginbotham, Johnson, Jolly, Jones, King, Politz, Reavley, Rubin, Williams
- **Cited by:** 39 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled — as noted by a later court.
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8956545

## How later opinions describe it (automated extraction)

- holding that district courts cannot place conditions on enforcement of a summons, but must simply decide “whether to enforce or not to enforce the summons”
- affirming district courts' discretionary authority to "ensur[e] that the government has complied with the four Powell criteria, and that its process is not being abused."
- affirming district courts’ discretionary authority to “ensurfe] that the government has complied with the four Powell criteria, and that its process is not being abused.”
- noting that summons enforcement "proceedings are intended to be summary in nature”

## Opinion text

ALVIN B. RUBIN, Circuit Judge,
with whom E. GRADY JOLLY, Circuit Judge, joins dissenting:
Respectfully, I conclude that this case is moot, and that we therefore lack jurisdiction. As the majority opinion notes, we have repeatedly held that an appeal from an order enforcing a summons becomes moot once a taxpayer complies with the summons. That rule is not altered by the fact that panels of this court have in the past “consistently treated the issues of (1) whether the enforcement order was properly rendered and (2) whether an enforcement order can be conditionally enforced as distinct issues on appeal.” 1 We can and should reach the second question only if we conclude that the validity of the enforcement order is still an issue.
Whether “the conditional enforcement issue ... attack[s] the validity of the district court’s order to enforce the summons” 2 is not the question. The validity of the enforcement order, conditional or not, can no longer be contested. The summons has been issued, it has been complied with, and whether this court should now modify an order that has already been obeyed is simply a dead issue.
The opinion dissenting from the decision on the merits argues that the issue is not moot because the issue was raised in the court, briefed and argued on appeal, and counsel for both sides seek its decision. That was the situation in Burke v. Barnes, 3 but the Supreme Court found that the adequacy of the presentation of the issue and the parties’ avidity for its decision did not prevent the case from having become moot.
Because the majority opinion overturns our decision in Texas Heart, because even those of my colleagues who dissent are eager to consider the correctness of that opinion, and because we have convened the full panoply of an en banc court to consider this case, I understand the sentiment that we should decide the substantive issue it presents. My colleagues must indeed feel that, having thus laboriously marched up the hill, we should not now discard all that effort and march down again. Nevertheless, I would resist the temptation to expatiate on a question that is not truly before us.
. 837 F.2d at 1348.
. Id., 837 F.2d at 1348.
. — U.S. -, 107 S.Ct. 734 , 93 L.Ed.2d 732 (1987).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8956545. Public record. Not legal advice.