

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 94-2262

                       CAROL SAWYER PARKS,

                      Plaintiff - Appellant,

                                v.

              FEDERAL DEPOSIT INSURANCE CORPORATION,
              AS RECEIVER FOR OLYMPIC INTERNATIONAL
                     BANK AND TRUST COMPANY,

                      Defendant - Appellee.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Edward F. Harrington, U.S. District Judge]                                                                  

                                           

                              Before

                     Torruella, Chief Judge,                                                     
                  Bownes, Senior Circuit Judge,                                                        
                    and Selya, Circuit Judge.                                                      

                                           

     David G.  Hanrahan, with whom  Ross D. Ginsberg  and Gilman,                                                                           
McLaughlin &amp; Hanrahan, were on brief for appellant.                               
     Jaclyn C. Taner, Counsel, with whom Ann S. Duross, Assistant                                                                
General Counsel,  Colleen B. Bombardier, Senior  Counsel, John P.                                                                           
Parker, Senior Attorney,  and Juanita L.  Dean, Counsel, were  on                                                        
brief for appellee, Federal Deposit Insurance Corporation.

                                           

                        September 13, 1995
                                           

          TORRUELLA,  Chief  Judge.    Plaintiff-appellant  Carol                    TORRUELLA,  Chief  Judge.                                            

Sawyer Parks filed suit  in the United States District  Court for

Massachusetts  to  enjoin   defendant-appellee  Federal   Deposit

Insurance Company ("FDIC") from  enforcing a subpoena duces tecum                                                                           

seeking  Parks'  personal  financial  papers and  records.    The

district  court  granted  the  FDIC's motion  to  dismiss  Parks'

complaint, and for summary  enforcement of the subpoena.   Parks'

appeal  of   that  decision  presents  the   following  important

question:    Does  the Fourth  Amendment's  proscription  against

unreasonable searches and seizures require the FDIC to articulate

some quantum  of  individualized suspicion  of wrongdoing  before

subpoenaing a citizen's private financial papers?  Relying on the

Supreme   Court's  long-held   distinction  between   the  Fourth

Amendment rights accorded private --  as opposed to corporate  --

papers, we answer in the affirmative.  Because the district court

did not review the subpoena under the standard we announce today,

we  reverse and  remand for  further proceedings  consistent with

this opinion.

                            BACKGROUND                                      BACKGROUND                                                

          The FDIC insures deposits in financial institutions and

is  authorized  by  statute  to  act  as  receiver   for  insured

institutions  that  fail  and  are  closed  by  their  chartering

authority.  12 U.S.C.     1811, 1821(c)(2) &amp; (3).  When  the FDIC

is appointed  receiver for a  failed institution, it  succeeds by

law  to  "all  rights, titles,  powers,  and  privileges" of  the

institution's officers  and directors with respect  to the assets

                               -2-

of the institution.  Id. at   1821(d)(2)(A).  As a receiver,  the                                 

FDIC  is authorized to collect all obligations and moneys owed to

failed  institutions  for   the  benefit  of  the   institution's

creditors and shareholders.   Id.   1821(d)(2)(B).  To facilitate                                          

this  function,  Congress  has   authorized  the  FDIC  to  issue

subpoenas and subpoenas duces tecum "for purposes of carrying out                                             

any  power,  authority,  or  duty  with  respect  to  an  insured

depository  institution (including determining  any claim against

the institution and determining and  realizing upon any assets of

any   person  in   the  course  of   collecting  money   due  the

institution). . . ."  Id.    1818(n), 1821(d)(2)(I)(i).  The FDIC                                  

is empowered to avoid fraudulent transfers, assert claims against

directors and  officers, and seek court  orders attaching assets.

Id.    1821(d)(17), 1821(k),  1821(d)(18).  In addition, Congress            

directs  the FDIC, generally, to maximize the return for the sale

of assets, and to minimize losses.  Id.   1821(d)(13)(E).                                                

          Ms. Parks was a  director of Olympic International Bank

and Trust  Company ("Olympic") from  May 1987 through  July 1990.

On June 26, 1992, Olympic was declared insolvent and the FDIC was

appointed its receiver.   On June  28, 1994, the  FDIC issued  an

Order of Investigation to  determine whether (1) former directors

and officers may be liable as a result of any actions or failures

to act which may have affected Olympic; (2) pursuit of litigation

would be  cost effective, considering the extent of the potential

defendants' ability to pay  a judgment; (3) the FDIC  should seek

to avoid  a transfer of assets;  and (4) the FDIC  should seek an

                               -3-

attachment of assets.

          On  July 28,  1994, the  FDIC issued  a subpoena  duces                                                                           

tecum to Ms. Parks requesting the following information:                

          1.   Your current financial statement and all
          financial statements listing your  assets and
          liabilities, (alone or with others).

          2.   All financial statements of your spouse.

          3.   All credit applications submitted by you
          or your spouse, alone  or with others, to any
          depository institution or any other person or
          entity.

          4.   All  records   prepared,  generated,  or
          received on or  after August 1, 1993  through
          August 1,  1994, referring or relating to the
          source  and amount of  any income received by
          you  or on  your  behalf,  including but  not
          limited  to  all wages,  salary, commissions,
          bonuses, interest and dividend  payments, and
          any other form of income received by you.

          5.   All federal, state and local tax returns
          filed by you  either individually or  jointly
          with  another,  along   with  all  forms  and
          schedules  filed  with   such  returns   from
          January 1, 1989 through April 15, 1994.

          6.   All  records   prepared,  generated,  or
          received from August  1, 1993 through  August
          1, 1994  which  refer or  relate  to  stocks,
          bonds,   securities   or  other   investments
          currently  owned  by  individually   or  with
          others,  including  but  not limited  to  any
          statements showing their value.

          7.   All  documents  that  reflect, refer  or
          relate to  any  financial, real  or  personal
          property  transactions,  including  cash,  in
          which you,  or anyone acting  on your behalf,
          or under your control or influence, have been
          involved, (except as  the attorney,  employee
          or agent of another party  on transactions in
          which you had no personal interest), having a
          value  of  $5,000  or  more,  per  person  or
          organization  per  year,  including, but  not
          limited to, the following:

                               -4-

            a. all   real   and   personal   property
            purchases,  sales  or transfers,  with or
            without consideration;
            b. all trust participants;
            c. mortgages,  trusts  or other  liens on
            security  interests obtained  or supplied
            to any third party;
            d. lawsuits; and
            e. repossessions and returns.

          8.   All documents referring  or relating  to
          any  transfer of  assets exceeding  $5,000 to
          any  entity, account, place or person located
          outside the United States of America.

          9.   All records referring or relating to any
          interest  you hold  in any  real personal  or
          other  type of  property exceeding  $5,000 in
          value not described above.

          10.  All documents referring  or relating  to
          any  transfer or  assets exceeding  $5,000 to
          any entity, account,  place or person located
          outside the United States of America.

          11.  All records referring or relating to any
          interest  you hold  in any  real  personal or
          other  type of  property exceeding  $5,000 in
          value not described above.

          Ms. Parks refused to produce the information.  Instead,

she  filed a complaint  for declaratory and  injunctive relief in

the United States District Court for Massachusetts arguing, among

other things,  that compelled  production of the  documents would

violate her rights under the Fourth Amendment.  The FDIC  filed a

motion  to dismiss the complaint, and  for summary enforcement of

the subpoena.   On the same  day that the FDIC  filed its motion,

the district court,  without the benefit of a  hearing, or even a

response from Parks, granted the FDIC's motion to dismiss and for

summary  enforcement   of  the  subpoena.     We  granted  Parks'

subsequent  motion to  stay enforcement  of the  subpoena pending

                               -5-

appeal.

                               -6-

                            DISCUSSION                                      DISCUSSION                                                

          Ms. Parks argues that  the FDIC subpoena constitutes an

"unreasonable  search"  of   her  private  financial  papers   in

violation of her rights  under the Fourth Amendment.   The Fourth

Amendment protects the "right of the people to be secure in their

persons,  houses,  papers,   and  effects,  against  unreasonable

searches  and seizures . . . ."   The Supreme Court has described

the  subpoena as a "constructive" search, Oklahoma Press Pub. Co.                                                                           

v.  Walling, 327 U.S. 186  (1945), which is  therefore subject to                     

Fourth Amendment  limitations.  Donovan v. Lone  Steer, Inc., 464                                                                      

U.S. 408, 415 (1984); United States v.  Morton Salt Co., 338 U.S.                                                                 

632, 651  (1950)  ("[T]he 'right  to  be let  alone  -- the  most

comprehensive of rights  and the right  most valued by  civilized

men,' is not confined literally to searches and seizures as such,

but extends as  well to  the orderly taking  under compulsion  of

process . . . .") (citations omitted).  It is beyond dispute that

Ms. Parks'  has  a "legitimate  expectation  of privacy"  in  her

privately held  financial papers and  records, and thus  that her

Fourth Amendment  rights are  implicated by the  FDIC's subpoena.

See United States v. Jacobsen, 466 U.S. 109, 113 (1984); Nixon v.                                                                        

Admin.  of General Serv., 433 U.S.  425, 457-58 (1976) (President                                  

has  legitimate expectation  of privacy  in his  private papers).

Cf.  United States  v. Miller,  425 U.S.  435, 440-44  (1975) (no                                       

Fourth  Amendment   interest  of  depositor   implicated  because

financial papers  ceased to be "private  papers" when transferred

                               -7-

to bank).1

          The question  then becomes whether the  subpoena issued

by the FDIC  was "reasonable"  within the meaning  of the  Fourth

Amendment.  Florida  v. Jimeno,  500 U.S. 248,  250 (1991)  ("The                                        

touchstone of  the Fourth Amendment  is reasonableness."); United                                                                           

States v. Calandra, 414 U.S. 338, 354 (1974) ("The purpose of the                            

Fourth   Amendment  is   to  prevent   unreasonable  governmental

intrusions  into the privacy  of one's person,  house, papers, or

effects.").  Our  review of  the relevant case  law persuades  us

that,   although   the  FDIC   met   the   lenient  standard   of

reasonableness for administrative subpoenas of corporate records,                                                                  

it failed  to meet the  stricter standard of  reasonableness that

applies  to  administrative  subpoenas  of  personal  papers  and                                                              

records.

                                I.                                          I.

          The FDIC asserts that the only constraints on its power

to subpoena an individual's private financial papers are that the

investigation  be   within   its  authority,   the  subpoena   be
                                                  

1  The Supreme Court has recognized that:

            Of all the rights of the citizen, few are
            of greater importance  or more  essential
            to his peace and happiness than the right
            of personal security, and  that involves,
            not merely protection  of his person from
            assault,  but  exemption  of his  private                                                               
            affairs,  books,  and  papers   from  the                                                               
            inspection   and   scrutiny  of   others.                                                              
            Without the enjoyment of this  right, all
            others would lose half their value.

Interstate Commerce Comm'n  v. Brimson, 154 U.S. 447,  479 (1894)                                                
(citation and internal quotation marks omitted; emphasis added).

                               -8-

sufficiently  definite, and the information reasonably relevant.2

The  FDIC relies on our decision in  United States v. Comley, 890                                                                      

F.2d 539, 541 (1st Cir. 1989), where we stated that:

               In  general,  an  agency  subpoena  is
            enforceable if it is for a proper purpose
            authorized  by Congress,  the information
            sought  is relevant  to that  purpose and
            adequately   described,   and   statutory
            procedures are followed in the subpoena's
            issuance.  .  .  .     "As  long  as  the
            investigation  is   within  the  agency's
            authority,  the  subpoena   is  not   too
            indefinite, and the information sought is
            reasonably  relevant, the  district court
            must enforce an administrative subpoena."

Id. at 541 (internal  citations omitted) (quoting EEOC v.  Tempel                                                                           

Steel Co., 814 F.2d 482, 485 (7th Cir. 1987)).   Comley, however,                                                                 

concerned  corporate papers,  not private  papers.   As explained

below,  the  Supreme  Court  has long  recognized  a  distinction

between the two.

          Comley relied on United States  v. Powell, 379 U.S. 48,                                                             

57-58 (1964), which concerned a challenge by a corporate taxpayer

to a request  by the IRS  to produce corporate  tax records.   In                                                        

rejecting the  taxpayer's contention that the  IRS must establish

probable  cause  of  wrongdoing  as a  prerequisite  to  judicial

enforcement  of the request, the  Powell Court relied  on the two                                                  

cases principally relied on  here by the FDIC --  Oklahoma Press,                                                                          

327 U.S. 186  and Morton Salt 338 U.S. 632.   Both cases involved                                       

corporate records, a fact  the Supreme Court evidently considered
                                                  

2  As noted previously, the FDIC is empowered to avoid fraudulent
transfers, assert claims against directors and officers, and seek
court  orders attaching  assets.   Id.     1821(d)(17),  1821(k),                                               
1821(d)(18).

                               -9-

of paramount importance in analyzing the Fourth Amendment issue.

          In   Oklahoma   Press,  several   newspaper  publishing                                         

corporations  challenged  the right  of  a  government agency  to

judicial  enforcement  of  subpoenas  duces  tecum for  corporate                                                            

records  absent a showing of wrongdoing.  In rejecting a probable

cause standard  for issuance  of an administrative  subpoena, the

Court  explained that  because  corporations are  created by  the

state,  they  "are not  entitled  to  all  of the  constitutional

protections which private individuals have."  Oklahoma Press, 327                                                                      

U.S. at 204-05.  The court made it quite plain  that its holding,

and   the  standard   it  established   for  enforcement   of  an

administrative subpoena  duces tecum under  the Fourth Amendment,                                              

was  predicated on the fact that corporate, as opposed to private

papers were at issue.

               Historically private corporations have
            been subject to  broad visitorial  power,
            both in England and in this country.  And
            it   long   has  been   established  that
            Congress may  exercise wide investigative
            power   over   them,  analogous   to  the
            visitorial  power  of  the  incorporating
            state, when their  activities take  place
            within  or  affect  interstate  commerce.
            Correspondingly it has been  settled that                                                               
            corporations  are not entitled  to all of                                                               
            the   constitutional   protections  which                                                               
            private   individuals   have   in   these                                                               
            matters.                             

Id. at 204-05 (footnotes omitted).            

          The respondent corporations  in Morton Salt  challenged                                                               

the Federal Trade Commission's ("FTC's") power to require them to

file  reports  indicating  compliance  with a  federal  court  of

appeal's  decree enforcing  an FTC  cease and  desist order.   In

                               -10-

language relied on heavily  by the FDIC  in this case, the  Court

compared the subpoena  power of an administrative  agency "to the

Grand  Jury, which does  not depend on a  case or controversy for

power to  get evidence  but can  investigate merely on  suspicion

that the  law is being  violated, or  even just because  it wants

assurance  that it  is  not."   Id. at  642-43.   The comparison,                                            

however,  was made  in  reference to  the corporate  respondent's

claim  that  the   agency  had  invaded  the  court   of  appeals

jurisdiction,  it  had nothing  to  do  with respondent's  Fourth

Amendment  claim.3   The  Court  made  this clear:  "Whether  the

Commission  has  invaded any  private  right  of respondents'  we

consider under later rubrics.  Our only concern under the present

heading  is whether the Commission's order infringes prerogatives

of the court."  Id. at 643.                            

          The Morton Salt Court did hold -- in the section of the                                   

opinion which actually concerned the Fourth Amendment -- that the

FTC need not establish  wrongdoing by the respondent corporations

in  order to subpoena their financial documents.  The Court based

this decision on the fact that corporations do not merit the same

degree of Forth Amendment protections as private individuals.

               While   they   may  and   should  have
            protection from unlawful demands  made in
            the   name   of   public   investigation,
            corporations can claim  no equality  with                                                               
            individuals  in the enjoyment  of a right                                                               
            to privacy.  They are endowed with public                                
            attributes.    They  have   a  collective
            impact  upon  society,  from  which  they
                                                  

3   The above quoted language came under a section of the opinion
entitled "Invasion of Court of Appeals Jurisdiction".

                               -11-

            derive   the   privilege  of   acting  as
            artificial entities.

Id. at 651-52 (emphasis added; internal citations omitted).            

          We  think the clear import of Oklahoma Press and Morton                                                                           

Salt   is  that   the  standard   for  judicial   enforcement  of              

administrative subpoenas of a private citizen's private papers is

stricter than that for corporate  papers.  Our research indicates

that the Supreme Court has never extended the lenient Morton Salt                                                                           

standard  for administrative  subpoenas  of corporate  records to

private  records.    Rather,  the Court  has  always  couched the

standard in the context  of the corporate status of  the subpoena

target.4  The FDIC  argues that we should nevertheless  apply the

lenient  Morton Salt standard  governing administrative subpoenas                              

of corporate papers to subpoenas for private papers because three

federal appeals courts have recently done so.  We find  the cases

cited by the FDIC unpersuasive.

          In  Resolution Trust Corp. v. Walde,  18 F.3d 943 (D.C.                                                       

Cir.  1994),  the  court implicitly  held  that  the  RTC is  not

required to articulate an  individualized suspicion of wrongdoing

when  it subpoenas  private  records  for determining  liability,

                                                  

4  For example, in  Donovan, supra, the Court stated  that, "when                                            
an administrative agency  subpoenas corporate  books or  records,                                                       
the Fourth  Amendment requires that the  subpoena be sufficiently
limited in scope, relevant in purpose,  and specific in directive
so that compliance will no be unreasonably burdensome."  464 U.S.
at 415  (quoting See v. City of Seattle, 387 U.S. 541, 544 (1967)                                                 
and citing Morton Salt, 338 U.S. at 652-53).                                

                               -12-

avoiding asset  transfers, and  freezing  assets.   Id. at  946.5                                                                

The court's discussion  of this  issue begins and  ends with  its

quoting  of the Morton Salt standard  for judicial enforcement of                                     

an administrative subpoena.   The court completely ignores Morton                                                                           

Salt's sharp  distinction between corporate  and private  papers.              

See id. at 946.  Walde,  then, is unpersuasive to the extent that                                

it  ignores  the Supreme  Court's  explicit  recognition in  both

Oklahoma  Press and  Morton  Salt that  private financial  papers                                           

deserve  stricter  Fourth  Amendment  protection  than  corporate

papers.

          In  In  re McVane,  44 F.3d  1127  (2d Cir.  1995), the                                     

Second  Circuit concluded  that  "although the  Morton Salt  case                                                                     

recognized that individuals enjoy  greater rights of privacy than

do  corporations, courts  have nevertheless  applied  the lenient

Morton  Salt test  to administrative  subpoenas seeking  personal                      

records."  Id. at 1137.  The court cited two cases as examples of                       

this  seemingly  anomalous  practice  -- Walde  and  the  Supreme                                                        

Court's decision in United States v. Stuart, 489 U.S. 353 (1989).                                                     

                                                  

5   As noted previously,  these three areas  of investigation are
authorized by statute.   The court held, however, that  the RTC's
fourth asserted  area of  investigation -- determining  the cost-
effectiveness  of a potential lawsuit -- is not authorized by its
statutory directive  to  maximize  the return  for  the  sale  of
assets, and  to  minimize  losses.   Id.  at  949;  12  U.S.C.                                                    
1821(d)(13)(E).   The court  therefore held  that when  issuing a
subpoena for this purpose,  the RTC must demonstrate at  least an
articulable suspicion of wrongdoing.  Id.  See also In Re McVane,                                                                          
44 F.3d 1127,  1139-40 (2d  Cir. 1995) (holding  that, absent  at
least an articulable suspicion  that a former director  is liable
to  the  failed  bank,   determining  the  cost-effectiveness  of
litigation  is not  a  proper  purpose  for  the  issuance  of  a
subpoena).

                               -13-

As noted, Walde  sheds little  light on this  subject because  it                         

ignores  the Morton  Salt Court's  distinction between  corporate                                   

documents and personal records.   At least, however, Walde  is on                                                                    

point; Stuart is not.                       

          Stuart concerned a treaty between the United States and                          

Canada  that  obliged  the United  States  to  obtain  and convey

information to Canadian authorities to assist them in determining

a Canadian taxpayer's income tax liability.  The respondents were

Canadian citizens  and residents who maintained  bank accounts in

the United States.  They challenged  the authority of the IRS  to

issue an administrative  summons to their bank  for their private

financial   documents,  pursuant   to   a  request   by  Canadian

authorities,  without  first determining  that  the Canadian  tax

investigation  had reached a  stage analogous  to a  domestic tax

investigation's referral  to the Justice Department  for criminal

prosecution.   489 U.S. at 357.   The Fourth Amendment  was never

raised  as a  defense by  the  respondent taxpayers;  indeed, the

Fourth Amendment is  never even mentioned in  the Stuart opinion.                                                                  

The  reason is manifest.   Because the documents  were located at

the  bank,  and  had thus  been  exposed  to  third parties,  the

respondents  had  no  reasonable  expectation  of  privacy,  and,

consequently, no Fourth Amendment interest in the documents.  See                                                                           

Securities  and Exchange Comm'n  v. O'Brien, Inc.,  467 U.S. 735,                                                           

743  (1984)  (Fourth  Amendment  does   not  protect  information

communicated to a third party); United States v. Payner, 447 U.S.                                                                 

727,  731-32  (1979) (no  legitimate  expectation  of privacy  in

                               -14-

documents  voluntarily turned  over  to bank);  United States  v.                                                                       

Miller, 425 U.S. 435, 441-43 (1975) (depositor has no expectation                

of privacy and thus no "protectable Fourth Amendment interest" in

financial records  retained by  bank).   Stuart thus provides  no                                                         

support for the proposition asserted here by the FDIC.

          The FDIC  also directs us to the Third Circuit's recent

decision in Federal  Deposit Insurance  Corp. v.  Wentz, 1995  WL                                                                 

329921 (3d Cir. 1995).  Wentz is the only administrative subpoena                                       

case we have found that contains more than a passing reference to

the distinction  between corporate and private  papers.  Contrary

to the FDIC's assertions,  however, we think it provides  as much

support for Parks' position as that of the FDIC.

          In  Wentz, the  court upheld  an FDIC  subpoena  of the                             

personal financial documents of  former officers and directors of

a failed bank.  The court began by citing the lenient Morton Salt                                                                           

test for enforcement  of an administrative  subpoena.  The  court

recognized,  however,   that   "[w]hen  personal   documents   of

individuals, as contrasted with business records of corporations,

are  the  subject  of  the  subpoena,  privacy  concerns  must be

considered."   Id. at *2 (citing Whalen v. Roe, 429 U.S. 589, 599                                                        

(1977)).  The court  then balanced the governmental need  for the

information against  the respondents'  privacy interest  in their

personal  financial  documents,  and concluded  that  the  public

interest   in  "safeguarding   the  FDIC's   legislative  mandate

outweighs the  minimal intrusion into the  privacy that surrounds

the directors' personal financial records . . . ."  Id. at *4.                                                                

                               -15-

          Wentz  recognized that  subpoenas  for  privately  held                         

financial   documents  implicate  privacy   concerns  and  should

therefore  be evaluated  by  a stricter  standard than  corporate

documents.   As  explained below,  we agree  with Wentz  that the                                                                 

proper inquiry requires a balancing between the governmental need

to search and  the privacy  interests of the  subpoena target.6  

Where we  part company with Wentz  is solely in  the mechanics of                                           

the balancing itself.  We address this issue below.7

                               II.                                         II.

          The  FDIC  asserts the  power  to  rummage through  the

financial papers of  private citizens based on  nothing more than

the hope that illegal conduct might be revealed.  We do not think

that Ms.  Parks  waived  her Fourth  Amendment  interest  in  her

private  papers by  serving  on  the  board  of  directors  of  a

federally  regulated bank.   See  In re Sealed  Case, 42  F.3d at                                                              

1418.   Moreover, we think  it inconceivable that  the Framers of

the  Constitution, who  knew so  well and  cared so  deeply about

arbitrary governmental interference in private citizen's affairs,

would  countenance  such  unbridled  power  in  the  hands  of an

administrative agency.   See Camara v. Municipal  Court, 387 U.S.                                                                 

523,  528 (1967) (the "basic purpose" of the Fourth Amendment "is
                                                  

6   Interestingly, although Wentz  did not explicitly  state that                                           
the  respondent's  privacy  interest   derived  from  the  Fourth
Amendment,  the  court  posited  what  is  essentially  a  Fourth
Amendment reasonableness test.

7  Other  federal court of  appeals cases cited  by the FDIC  are
inapposite because, like Comley,  they concern corporate records.                                         
See, e.g., Linde Thomson Langworthy Kohn &amp; Van Dyke, P.C. v. RTC,                                                                          
5 F.3d 1508 (D.C. Cir. 1993).

                               -16-

to  safeguard the  privacy  and security  of individuals  against

arbitrary invasions by government officials").  As Justice Holmes

observed:

            Anyone who respects the spirit as well as
            the letter of  the Fourth Amendment would
            be   loath   to  believe   that  Congress
            intended   to   authorize   one  of   its
            subordinate  agencies  to  sweep all  our
            traditions  into the  fire and  to direct
            fishing  expeditions into  private papers
            on the possibility that they may disclose
            evidence of crime.  We do not discuss the
            question  whether it  could  do so  if it
            tried,  as  nothing  short  of  the  most
            explicit  language  would  induce  us  to
            attribute to Congress that intent.

Federal  Trade Comm'n v. American Tobacco Co., 264 U.S. 298, 305-                                                       

06 (1924) (citation omitted).8

          The question that remains  is what quantum of suspicion

should be required for judicial  enforcement of an FDIC  subpoena

of   an   individual's   private   financial   papers.      Since

reasonableness is the touchstone,  our inquiry requires a careful

balancing  of "the  nature and  quality of  the intrusion  on the

individual's Fourth Amendment interests against the importance of

the  governmental interests  alleged  to justify  the intrusion."

United States v.  Place, 462  U.S. 696, 703  (1983); Camara,  387                                                                     

U.S.  at  534-35  (1967).   In  this  case  there are  compelling

                                                  

8    The   dissent  relies   heavily  upon  the   fact  that   an
administrative subpoena, unlike a search in the criminal context,
is not  self-executing.  Whatever relevance  this distinction may
have  in the ordinary case,  it surely has none  in this one.  As
noted previously, the district court granted the FDIC's motion to
dismiss,  and for summary enforcement of the subpoena on the same
day  the  motion  was  filed.    Ms.  Parks  thus  never  had  an
opportunity to be heard on the motion, or even to respond to it.

                               -17-

interests on both sides.   There is  a strong public interest  in

promptly resolving  the affairs of  insolvent banks on  behalf of

their creditors and depositors.  Moreover, the FDIC's legislative

mandate is  clear with respect to  avoiding fraudulent transfers,

attaching   assets,  and   generally  asserting   claims  against

directors  and officers  of  failed financial  institutions.   12

U.S.C.    1821(d)(17), 1821(d)(18), 1821(k).   On the other hand,

private  citizens have  a significant  expectation of  privacy in

their  personally held  financial papers.   Indeed,  "papers" are

specifically listed in the text of the Fourth Amendment.

          We  think the significant  public interest in resolving

the affairs  of failed institutions,  as reflected by  the FDIC's

legislative mandate, deserves considerable weight.  Consequently,

we  conclude  that the  "balancing  of  governmental and  private

interests suggests that the  public interest is best served  by a

Fourth Amendment  standard of reasonableness that  stops short of

probable cause."  New Jersey v. T.L.O., 325 U.S. 334, 341 (1985).                                                

In  such   cases,  the  Supreme   Court  has  often   utilized  a

reasonableness   standard  which   requires  the   government  to

articulate a reasonable suspicion of  wrongdoing by the target of

the search.  See, e.g., id.  at 342; Delaware v. Prouse, 440 U.S.                                                                 

873, 881 (1979);  United States v. Mart nez-Fuerte, 428 U.S. 648,                                                            

654-55 (1976); United States v. Brignoni-Ponce, 422 U.S. 873, 881                                                        

(1975); Terry v. Ohio, 392 U.S. 1 (1968).  We think this standard                               

strikes   the  appropriate  balance  between  protecting  private

citizens' private  papers and  enabling the FDIC  to fulfill  its

                               -18-

statutory mandate.9

          The district  court did  not consider whether  the FDIC

had articulated reasonable suspicion  of wrongdoing by Ms. Parks.

Moreover,  we think  that the  affidavit supplied  by one  of the

FDIC's investigators, which was on record at  the district court,

does  not provide  such an  articulable suspicion  of wrongdoing.

The affidavit simply states that the bank lost over eight million

dollars  as a result of several insider loans which were approved

or ratified by  the directors of Olympic,  including Parks, after

the  bank had  received  regulatory warnings  regarding its  loan

practices.  The investigator concludes that the nature and extent

of the losses suggests that the directors "were grossly negligent

and violated their fiduciary duty of loyalty to Olympic in making

the insider loans."

          The  affidavit articulates  a generalized  suspicion of

wrongdoing by the  bank directors,  but fails  to articulate  the

required individualized suspicion of  wrongdoing by the target of

the subpoena,  Ms. Parks.  Cf.  Ybarra v. Illinois,  444 U.S. 85,                                                            

                                                  

9    In  conducting  this  balancing,  the  Wentz  court,  supra,                                                                          
apparently  concluded  that  the  FDIC need  not  articulate  any
quantum  of suspicion because the targets of the subpoena had not
shown that the information  contained in their personal financial
records was of such a sensitive nature  that they were "likely to
suffer  any adverse  effects from  disclosure."   Wentz, 1995  WL                                                                 
329921, at *4 (quoting United States v. Westinghouse Elec. Corp.,                                                                          
638 F.2d 570, 578 (3d  cir. 1980)).  But once it  is conceded, as
it  must be,  that  a citizen  has  a legitimate  expectation  of
privacy  in  privately  held  financial papers,  see  supra,  the                                                                     
question  is  not  whether  the individual  will  suffer  adverse
effects  from disclosure,  but whether  the government  has shown                                                                
adequate justification  for searching  the documents.   This, one
would think, is the whole point of the Fourth Amendment.

                               -19-

93, 97 (1980); United States v. Lott, 870 F.2d 778, 783 (1st Cir.                                              

1989).   See also United States v.  Jaramillo, 25 F.3d 1146, 1150                                                       

(2d  Cir. 1994)  ("any  invasion of  a person's  Fourth Amendment

interests must be justified at least by 'specific and articulable

facts'  directed  to  the  person  whose  interests   are  to  be

invaded").   Similarly, in  McVane, the  court  rejected an  FDIC                                            

subpoena of  certain former  directors' familial records  because

the  FDIC  affidavit  stated   only  that  another  director  has

transferred assets  to family members.   The court  reasoned that

"the FDIC has articulated  no grounds for suspecting that  any of

these  Directors  (as  opposed   to  the  unnamed  'other  former               

director') has transferred assets to family members."  McVane, 44                                                                       

F.3d at 1139.

          The FDIC has not shown  that Parks received an  insider

loan or otherwise benefited from such a loan to another director.

Cf.  Resolution Trust  Corp.  v. Adams,  869 F.  Supp.  1, 3  n.4                                                

(D.D.C. 1994) (respondent directors paid themselves approximately

$8  million in  preferred dividends  of the  failed institution).

Nor  has the  FDIC  shown  "a  suspicious  asset  transfer  or  a

questionable payment  by the  target, or deposition  testimony of

other  former officers  and  directors"  casting  suspicion  upon

Parks.  Walde, 18 F.3d at 949.  Cf. In Re Sealed Case, 42 F.3d at                                                               

1417 (finding  articulable suspicion due to  respondent directors

involvement in unusual transfers "between two companies that they

owned within a bank  that they controlled").  Under  a reasonable

suspicion standard, if the FDIC has no "specific basis . . . upon

                               -20-

which  to suspect that the target engaged in wrongdoing, then the                                           

subpoena  cannot be enforced."   Walde, 18 F.3d  at 949 (emphasis                                                

added).  Based on the  current record, we conclude that the  FDIC

has  failed to articulate specific  facts for suspecting that Ms.

Parks has engaged in any wrongdoing with respect to her role as a

director  of Olympic.    Until the  FDIC  can do  so, the  Fourth

Amendment dictates  that her privately held  financial papers are

just that -- private.10

                            CONCLUSION                                      CONCLUSION

          The Fourth Amendment requires that  the FDIC articulate

an individualized suspicion of wrongdoing  by the petitioner as a

prerequisite to  judicial enforcement  of a subpoena  duces tecum                                                                           

seeking her privately  held financial documents.  The judgment of

the district court is therefore  reversed, and the case  remanded                                                                           

for further proceedings to determine whether the FDIC can in fact

meet this standard.

                 -- Dissenting Opinion follows --

                                                  

10   Of course, petitioner  cannot assert any  privacy claim with
respect  to any documents that  she has already  disclosed to the
public.   See  Nixon, 425  U.S. at 459  (citing United  States v.                                                                        
Dionisio, 410 U.S. 1, 14 (1973)).                  

                               -21-

          SELYA, Circuit Judge (dissenting).  I believe that this                    SELYA, Circuit Judge (dissenting).                                        

case is less exotic than the majority suggests.  The FDIC, acting

within its  statutory authority, 12  U.S.C.   1821(d),  issued an

order of  investigation to determine, inter  alia, whether former                                                           

directors and  officers of  a failed bank,  Olympic International

Bank and  Trust Co., may  be liable  as a result  of any  acts or

omissions  affecting  Olympic.    The  agency  then  directed  an

administrative  subpoena to  appellant  Parks  (a former  Olympic

director).  The record makes manifest that the agency issued this

subpoena in  good faith and for a  statutorily permitted purpose.

The  majority concedes,  ante at  7, that  the subpoena  "met the                                       

lenient  standard of  reasonableness"  imposed on  administrative

subpoenas  under  longstanding case  law.    In  my  view,  these

validations  are  sufficient.   Precedent  does  not support  the

additional  limitation  that  the  majority  today  unveils,  the

Constitution  does  not  require   that  limitation,  and  policy

considerations counsel against its imposition.

                                A                                          A

          In  the   first  place,  the   majority's  position  is

completely  unprecedented.   An  administrative  subpoena is  not

self-executing  and is, therefore, not  itself a search;  it is a

direction  to  produce  documents and/or  testimony,  subject  to

judicial review should the subpoenaed  party balk.  See  Oklahoma                                                                           

Press Pub. Co.  v. Walling, 327 U.S. 186, 195,  202 (1945); In re                                                                           

Grand  Jury Subpoena Served Upon Simon Horowitz, 482 F.2d 72, 75-                                                         

79 (2d Cir.) (Friendly,  J.), cert. denied, 414 U.S.  867 (1973).                                                    

                               -22-

In  other words, a person upon whom an administrative subpoena is

served   unlike a person subjected to, say, an actual search or a

Terry  stop    has an  opportunity to  quash the  subpoena before               

producing the information.

          At that stage, of course,  the Fourth Amendment can  be

interposed as a bar to enforcement of the subpoena.   See Donovan                                                                           

v. Lone  Steer, Inc.,  464 U.S.  408, 415 (1984).   Until  today,                              

however,  no modern federal appellate court has ever held that an

administrative subpoena which satisfies the traditional four-part

test  (that   is,  a   subpoena  issued  after   all  appropriate

administrative  steps  have been  taken,  for  a proper  purpose,

seeking information that is relevant to that purpose and which is

not within  the agency's possession) is  unenforceable or subject

to curtailment solely on the ground that  it implicates "personal

financial  records"  as  opposed  to "corporate  records."    The

decisions with which I am familiar run uniformly to the contrary.

See, e.g.,  RTC v. Frates,      F.3d     ,      (D.C. Cir.  1995)                                   

[1995 WL 471777 at  *3] (rejecting articulable suspicion standard

for enforcing RTC subpoena of personal financial records); In  re                                                                           

McVane,  44  F.3d 1127,  1136 (2d  Cir.  1995) (similar);  RTC v.                                                                        

Walde, 18 F.3d  943, 946-47  (D.C. Cir. 1994)  (similar); SEC  v.                                                                       

Knopfler,  658 F.2d 25, 26 (2d Cir. 1981) (enforcing, on standard                  

showing  for administrative  subpoenas,  SEC  subpoena issued  to

individuals for personal financial records  relating to potential

insider trading), cert. denied, 455 U.S. 908 (1982).                                        

          The majority,  without citing  a single case  on point,

                               -23-

abruptly departs from this established precedent.  The upshot  is

to   create   a   singular  benchmark   against   which   certain

administrative subpoenas henceforth will  have to be evaluated in

the  First  Circuit    and  only  in the  First  Circuit.   I  am

unwilling  to venture along this  rocky coast simply  to answer a

siren's call.

                                B                                          B

          My  principal substantive  objection to  the majority's

approach is to the notion that the Fourth Amendment distinguishes

between "personal financial records" and "corporate records" with

regard  to  administrative  subpoenas.    To  be  sure,  language

faithfully  quoted by the majority suggests  that, in an earlier,

more  genteel era,  the Supreme  Court took  care to  confine its

rulings  to  the  exigencies  of  the  particular  administrative

subpoena cases then  before it    but those  cases, whether  read

individually  or  in the  ensemble,  do  not constitute  anything

approximating a  conclusive holding that the  privacy interest in

personal  financial  records  must  always  be  accorded  greater

respect  than a  corporation's privacy  interest in  its records.

Indeed,  I  read the  language on  which  the majority  relies as

denoting nothing more  than that the Court desired at the time to

keep the question open.  And more  recent developments in the law

have blurred  whatever distinction  these earlier cases  may have

sought to preserve.

          The  proof of  the pudding  is the  long line  of cases

starting with United States v. Powell, 379 U.S. 48 (1964)   cases                                               

                               -24-

that  repeatedly have  sanctioned the  authority of  a particular

agency, the  Internal Revenue  Service (IRS), to  issue summonses

for  either personal or corporate records  on the minimal showing

that the majority  today explicitly  rejects.  See  id. at  57-58                                                                 

(explaining that the IRS need  only "show that the  investigation

will be  conducted pursuant  to a  legitimate  purpose, that  the

inquiry  may  be relevant  to the  purpose, that  the information

sought is not already within the [IRS's] possession, and that the

administrative steps  required by the Code  have been followed").

Though  Powell  itself dealt  with  a corporate  taxpayer,  it is                        

transpicuously  clear that  the  Powell standard  applies to  the                                                 

production   of  private   financial   papers  and   records   of

individuals, that is,  to the production of records pertaining to

economic or fiscal activity (which, for simplicity's sake, I will

henceforth call  financial records).   See, e.g., Ryan  v. United                                                                           

States,  379  U.S.  61,  62  (1964)  (upholding  IRS  summons  to                

individual  taxpayer "for the  reasons given in  United States v.                                                                        

Powell"); United  States v. McAnlis,  721 F.2d 334,  336-37 (11th                                             

Cir.  1983), cert. denied, 467 U.S. 1227 (1984); United States v.                                                                        

Roundtree, 420 F.2d 845, 847-51 (5th Cir. 1969).                   

          The  Powell standard remains both the  law of the land,                               

see, e.g., Tiffany  Fine Arts,  Inc. v. United  States, 469  U.S.                                                                

310, 323  (1985), and the law of this circuit, see, e.g., Copp v.                                                                        

United States, 968 F.2d 1435, 1437 (1st Cir. 1992), cert. denied,                                                                          

113 S. Ct.  1257 (1993).   What is more,  Powell is the  building                                                          

block around which, up to now, our modern administrative subpoena

                               -25-

jurisprudence has been constructed.  See, e.g., United States  v.                                                                       

Comley,  890 F.2d  539, 541  (1st Cir.  1991) (citing  Powell and                                                                       

applying Powell principles  to administrative subpoena issued  by                         

the Nuclear Regulatory  Commission); SEC v. Howatt, 525 F.2d 226,                                                            

229 (1st Cir. 1975) (same, with respect to subpoena issued by the

SEC).  There  is no  valid reason why  this standard,  undiluted,

should not  apply here.   If  Congress can authorize  the IRS  to

issue summonses calling for  the production of personal financial

records  on such a bareboned showing without running afoul of the

Fourth  Amendment, then  it  is clear  to  me that  Congress  can

authorize  other  agencies to  do the  same.   The cases  and the

commentators  bear witness  to this  verity.   See, e.g.,  SEC v.                                                                        

Kaplan, 397 F. Supp. 564, 570 (E.D.N.Y. 1975) (enforcing subpoena                

issued by SEC for personal  financial records of an  individual);

Wayne R. LaFave, Search &amp; Seizure   4.13(e), at 383 (2d ed. 1987)                                           

(acknowledging rule).

          Believing, as I  do, that an individual has  no greater

(legitimate) expectation of privacy in her financial records than

does a business, I see no reason to conduct the kind of balancing

that the majority covets  in order to test the  reasonableness of

an administrative subpoena that  seeks the production of personal

financial records.  Oklahoma Press and Morton Salt, read together                                                            

with  the  Powell-Ryan  line  of cases,  lead  inexorably  to the                                

conclusion  that, to  borrow a  leaf from Gertrude  Stein's book,

financial  records are financial  records are  financial records.

This conclusion  holds  true whether  the  records belong  to  an

                               -26-

individual  or to  an  enterprise,  and administrative  subpoenas

seeking such records  are per  se reasonable a  long as they  are

lawfully   authorized,   relevant,  sufficiently   specific,  and

procedurally unblemished.

          Let me be  perfectly clear.  I do not  suggest that the

minions of an administrative agency can roam at will, like a herd

of zebra on the veldt, through an individual's personal papers or

effects.  I am open  to the idea that  there may be a  heightened

privacy interest in certain  non-business records (e.g., personal

diaries, letters,  medical records,  and the like)  requiring, in

turn, a more finely calibrated balance between public and private

interests before a court lawfully can order such records produced

in response to a summons.  See, e.g., FDIC v. Wentz, 55 F.3d 905,                                                             

908  (3d  Cir.  1995);  see  generally  LaFave,   supra,  at  383                                                                 

(suggesting that, "[i]n the  case of private individuals, perhaps

the  mere relevance  standard  is sufficient  to protect  privacy

interests in documents related to economic activity, but arguably

purely  private  papers  should  be protected  by  requiring  the

investigatory  body   to  meet  a   more  stringent   standard").

Recognizing,  however, that  "[w]e  are not  so  outraged by  the

intrusion on privacy that  accompanies the seizure of [financial]

records as we  are by the  seizure of a  diary," Couch v.  United                                                                           

States,  409 U.S. 322,  350 (1973) (Marshall,  J., dissenting), I                

discern  no  constitutional   impediment  to  the  administrative

subpoena that the FDIC served  on Parks.  Since the record  shows

conclusively that the  FDIC issued the subpoena for  a legitimate

                               -27-

purpose (an investigation into, inter alia, whether Parks may  be                                                    

liable  to  the FDIC),11  that the  inquiry  is relevant  to that

purpose, that the information requested is not already within the

agency's  ken,  and  that  the necessary  procedural  bases  were

touched, the subpoena should be enforced.

                                C                                          C

          Apart  from the  fact  that  the  majority's  brand-new

standard  is unmoored  both from  precedent  and from  the Fourth

Amendment, the standard also  fares poorly on policy grounds.   I

will not  dwell on  this aspect,  except to  note  that the  rule

envisioned in the majority opinion is inconsistent with the bases

of the modern administrative state.

          Administrative investigations differ significantly from

criminal   investigations:      government   agencies   typically

investigate  in  order  to enforce  compliance  with  complicated

structures  of  economic  regulation.    The  ability  to  obtain

information from  regulated parties and those  persons in privity

with them typically  is vital  to the success  of the  regulatory

scheme.  See United States v. Morton Salt Co., 338  U.S. 632, 642                                                       

(1950);  Oklahoma Press,  327 U.S.  at 216;  Stephen G.  Breyer &amp;                                 

Richard B.  Stewart, Administrative  Law &amp; Regulatory  Policy 975                                                                       

(2d ed. 1985).   And it is  a fact of life  that agencies charged
                                                  

11   In this instance, it is  immaterial that the FDIC's order of
investigation listed other objects as well.   See ante at 3.  The                                                                
requirement that an administrative subpoena  must be issued for a
proper  purpose  is  satisfied in  the  case  of a  multi-purpose
subpoena as long as any one of the underlying purposes is proper.
See Tiffany Fine Arts, 469  U.S. at 324; FTC v. Carter,  636 F.2d                                                                
781, 789 (D.C. Cir. 1980).

                               -28-

with  regulating  economic   activity  often  cannot   articulate

probable cause or even reasonable  suspicion that a violation has

transpired without first examining documents reflecting a party's

economic activity.   See Kenneth  C. Davis &amp;  Richard J.  Pierce,                                  

Jr., Administrative Law  Treatise    4.1, at 138  (3d ed.  1994).                                           

This incipient problem   the need  to hitch the horse in front of

the cart   is  frequently exacerbated because the  subpoena power

has great  significance for  most administrative agencies  in the

conduct of important public business.

          Partially  for  that  reason  and partially  out  of  a

concern for  separation of powers   it is trite but true that the

Judicial Branch must respect the Executive Branch's  prerogatives

to enforce the  laws, see, e.g.,  Howatt, 521 F.2d  at 229    the                                                  

courts  historically have had  a very  circumscribed role  in the

oversight of  administrative subpoenas.  See,  e.g., Morton Salt,                                                                          

338 U.S. at 642-43; EEOC v. Bay Shipbuilding Corp., 668 F.2d 304,                                                            

308-09  (7th Cir. 1981); Goodyear Tire  &amp; Rubber Co. v. NLRB, 122                                                                      

F.2d 450, 451 (6th Cir. 1941).  To this end, judicial proceedings

regarding the enforcement  of such subpoenas  are intended to  be

relatively  informal and  summary in  nature.   See Donaldson  v.                                                                       

United States,  400 U.S. 517,  529 (1971); Bay  Shipbuilding, 668                                                                      

F.2d  at 309.   The  court's sole  function is  to ensure  that a

subpoena  is issued for a  proper purpose and  in compliance with

the law.   See Comley, 890 F.2d at 541; FTC  v. Texaco, Inc., 555                                                                      

F.2d 862, 872 (D.C. Cir.)  (en banc), cert. denied, 431 U.S.  974                                                            

(1977).  By handing the targets of agency investigations a potent

                               -29-

new weapon, cf. SEC v. Jerry T. O'Brien, Inc., 467  U.S. 735, 750                                                       

(1984)  (rejecting  a  notice  requirement  for  third-party  SEC

subpoenas in  part because  it "would substantially  increase the

ability  of  persons   who  have  something  to  hide  to  impede

legitimate  investigations  by  the  Commission"),  the  majority

facilitates   the   insertion  of   monkey   wrenches  into   the

administrative machinery, and creates  the potential not only for

delaying   agency   probes   (thereby   further   eroding  agency

effectiveness), but  also for  increasing the extent  of judicial

intrusions into the agency sphere.

          It is  clear that  Congress feared these  very dangers.

Having written the FDIC's  organic statute broadly, requiring the

agency  to  assess  the  conduct  of  officials  employed  by  or

affiliated  with  federally  insured  banks  from  a  variety  of

different perspectives, most of  which relate to the governmental

interest in  minimizing the public's exposure  to financial loss,

Congress vested generous,  easily enforceable  subpoena power  in

the FDIC so that the agency could pursue its public mission.  See                                                                           

H.R.  Rep. No.  681(I), 101st  Cong., 2d  Sess. 170,  186 (1990),

reprinted in  1990 U.S.C.C.A.N.  6472, 6576,  6592.   Without the                      

ability  to use this power  as Congress intended    including the

ability to subpoena individuals' personal financial records based

on relevance and nothing more   the FDIC likely will be hamstrung

in  its  efforts  to perform  the  full  range  of its  statutory

responsibilities.     Thus,  the  majority's  suggested  standard

(which, as I have explained, is mandated neither by precedent nor

                               -30-

by  constitutional doctrine) unaccountably undermines the ability

of  the FDIC    and  every other  administrative agency     to do

Congress's bidding, and thereby frustrates the congressional will

for no  good reason.12   See Federal Maritime  Comm'n v. Port  of                                                                           

Seattle, 521 F.2d 431,  433 (9th Cir. 1975) (explaining  that the                 

"very backbone  of an  administrative  agency's effectiveness  in

carrying  out  the  congressionally mandated  duties  of industry

regulation is the rapid exercise of the power to investigate").

                                D                                          D

          Because  I  am   convinced  that   my  colleagues   are

needlessly  infringing upon the  lawful powers  of administrative

agencies,  and  because  I  fear  the  mischief  that this  well-

intentioned effort  to resurrect  a moribund  view of the  Fourth

Amendment may produce, I respectfully dissent.

                                                  

12  This does not mean, of course, that I endorse, as a matter of
policy,  either the FDIC's  penchant for riding  roughshod or its
aggressive  use of administrative subpoenas.  But the rule of law
requires  judges  to  subrogate  such  personal  reservations  to
precedent  and reason.   After  all,  constitutional adjudication
"must be an overriding judgment founded  on something much deeper
and more  justifiable than personal  preference."  Sweezy  v. New                                                                           
Hampshire,   354  U.S.   234,   267  (1957)   (Frankfurter,   J.,                   
concurring).

                               -31-
