                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                               JUN 6 2003
                                 TENTH CIRCUIT
                            __________________________                    PATRICK FISHER
                                                                                   Clerk

 BINGHAM LIVESTOCK
 TRANSPORTATION, INC.,

          Plaintiff-Appellant,
                                                            No. 01-4215
 v.                                                          (D. Utah)
                                                      (D.Ct. No. 01-CV-6-ST)
 KENNETH M. MEAD,

          Defendant-Appellee.
                        ____________________________

                              ORDER AND JUDGMENT *


Submitted on the briefs. **

Gregory G. Skordas of Gustin, Christian, Skordas & Caston, Salt Lake City, Utah;
Anthony J. McMahon, Bethesda, Maryland, for Plaintiff-Appellant.

Robert D. McCallum, Jr., Assistant Attorney General, Washington, D.C.; Paul M.
Warner, United States Attorney, Salt Lake City, Utah; Douglas N. Letter and
Steve Frank, Department of Justice, Washington, D.C., for Defendant-Appellee.



      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.

      **
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument.
Before HARTZ and McKAY, Circuit Judges, and BRORBY, Senior Circuit
Judge.



      Bingham Livestock Transportation, Inc., brought this action for injunctive

and declaratory relief against the Inspector General of the United States

Department of Transportation. The United States District Court for the District of

Utah denied Bingham Livestock’s motion for summary judgment and granted the

government’s motion to dismiss or, alternatively, for summary judgment.

Bingham Livestock appeals. Due to recent events that occurred during the

pendency of this appeal, we dismiss this appeal as moot.



      Bingham Livestock is a trucking business located in Utah. Based on

allegations it violated, among other things, certain provisions of the Federal

Motor Carrier Safety Regulations, 49 C.F.R. §§ 395.3, 395.8, the Inspector

General’s Office, in cooperation with the Federal Bureau of Investigation, began

an investigation of Bingham Livestock’s business activities. A few months later,

agents from the Inspector General’s Office and other federal and local agencies

executed a search warrant on Bingham Livestock’s premises. The agents seized

some of Bingham Livestock’s business records during the search.




                                         -2-
      Bingham Livestock filed a complaint in district court, 1 seeking, in relevant

part, an order (1) declaring the Inspector General’s investigation of Bingham

Livestock beyond his authority; (2) declaring the Inspector General’s search of

Bingham Livestock’s premises beyond his authority and in violation of the Fourth

and Fifth Amendments of the United States Constitution; and (3) directing the

Inspector General to terminate his investigation of Bingham Livestock and return

the records seized during the search. 2 Bingham Livestock later filed a motion for

summary judgment, arguing the Inspector General acted beyond his authority in

investigating Bingham Livestock and searching its premises. In response, the

government filed a motion to dismiss for failure to state a claim or, alternatively,

for summary judgment. After a hearing on the motions, the district court denied

Bingham Livestock’s motion for summary judgment and granted the government’s

motion. Bingham Livestock appeals, arguing the district court’s order should be

reversed and its business records returned.


      1
        We sua sponte designate the complaint as part of the record on appeal. See Fed.
R. App. Proc. 10(e)(2)(C).

      2
          Bingham Livestock also sought in its complaint an order rescinding the Inspector
General’s referral of the investigation to the Department of Justice and a declaration the
referral was “ultra vires.” Bingham Livestock later abandoned these claims for relief
because there was no “referral to the Department of Justice.” In any event, even if
Bingham Livestock still desired this relief, we nevertheless conclude this action is moot
for the reasons discussed below.


                                           -3-
      While this appeal was pending, Bingham Livestock entered a plea

agreement with the government and pleaded guilty to one count of Felony

Information in violation of 18 U.S.C. § 1001. In addition, the government ended

its investigation and returned the records it seized during the search of Bingham

Livestock’s premises to Bingham Livestock’s attorney. As a result of these

developments, the government filed a motion to dismiss this appeal as moot

because the “investigation is complete and the records at issue in this case [are]

returned to Bingham [Livestock].”



      Bingham Livestock opposes the government’s motion. It argues the

government agreed, as part of the plea agreement, Bingham Livestock would be

able to withdraw its guilty plea if it was successful on this appeal. The

government and Bingham Livestock’s attorney in the criminal proceedings deny

entering any agreement concerning this appeal, and the plea agreement does not

reflect any such agreement. In addition, Bingham Livestock argues it did not sign

the plea agreement. After reviewing the government’s motion and the parties’

arguments, we conclude this action is moot.



      “Mootness is a threshold issue because the existence of a live case or

controversy is a constitutional prerequisite to federal court jurisdiction.”


                                          -4-
McClendon v. City of Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996). “In

general a case becomes moot when the issues presented are no longer ‘live’ or the

parties lack a legally cognizable interest in the outcome.” Murphy v. Hunt, 455

U.S. 478, 481 (1982) (quotation marks and citations omitted). “‘Past exposure to

illegal conduct does not in itself show a present case or controversy regarding

injunctive relief ... if unaccompanied by any continuing, present adverse effects.’”

Beattie v. United States, 949 F.2d 1092, 1094 (10th Cir. 1991) (quoting O’Shea v.

Littleton, 414 U.S. 488, 495-96 (1974) (alterations omitted)). Likewise, “[i]t is

well established that what makes a declaratory judgment action ‘a proper judicial

resolution of a “case or controversy” rather than an advisory opinion – is [] the

settling of some dispute which affects the behavior of the defendant toward the

plaintiff.’” Cox v. Phelps Dodge Corp., 43 F.3d 1345, 1348 (10th Cir. 1994)

(quoting Hewitt v. Helms, 482 U.S. 755, 761 (1987)).



      Under these principles, we conclude Bingham Livestock’s claim for

injunctive relief is moot. Bingham Livestock already achieved the explicit

objective of its proposed injunction: the government ceased the investigation and

returned Bingham Livestock’s business records. As a result of these

developments, there is no longer a “live” controversy.




                                         -5-
       We also conclude Bingham Livestock’s claims for declaratory relief are

moot. Because the government already ended its investigation and returned

Bingham Livestock’s business records, a declaratory judgment in Bingham

Livestock’s favor “would amount to nothing more than a declaration that [it] was

wronged, and would have no effect on the [government’s] behavior towards [it].”

Green v. Branson, 108 F.3d 1296, 1300 (10th Cir. 1997). 3



       Furthermore, we conclude the “capable of repetition, yet evading review”

exception to mootness is not applicable to the facts of this case. See Murphy, 455

U.S. at 482. The particular controversy in this case “is neither likely to recur nor,

by nature, so ephemeral as to elude the processes of judicial review.” Beattie,

940 F.2d at 1094 n.2. See, e.g., Murphy, 455 U.S. at 482 (stating the “capable of

repetition, yet evading review exception” is limited to cases where “(1) the

challenged action was in its duration too short to be fully litigated prior to its

cessation or expiration, and (2) there was a reasonable expectation that the same



       3
          We also note Bingham Livestock’s “interest in attorney’s fees is insufficient to
create an Article III case or controversy where a case or controversy does not exist on the
merits of the underlying claim.” Cox, 43 F.3d at 1348 n.4. Furthermore, under the
circumstances of this case, Bingham Livestock’s general prayer for “[s]uch other and
further relief as the Court may deem appropriate” does not preserve this action as a live
case or controversy. See Thomas R.W. v. Massachusetts Dep’t of Educ., 130 F.3d 477,
480 (1st Cir. 1997).


                                            -6-
complaining party would be subjected to the same action again” (quotation marks

and citation omitted)). In light of the terms of the plea bargain, the possibility

that the government will begin a new investigation of Bingham Livestock or (if

Bingham Livestock is able to withdraw its guilty plea) re-open its previous

investigation is simply too speculative and remote at this time to qualify for this

exception. See F.E.R. v. Valdez, 58 F.3d 1530, 1533 (10th Cir. 1995) (concluding

the possibility of a subsequent investigation for Medicaid fraud “too speculative

to support” an exception to the mootness doctrine.)



      For the reasons discussed above, we conclude this action is moot. We

therefore GRANT the government’s motion to dismiss this appeal as moot,

VACATE the judgment of the district court, and REMAND to the district court

with instructions to dismiss the action as moot. See United States v.

Munsingwear, Inc., 340 U.S. 36, 39 (1950).



                                        Entered by the Court:

                                        WADE BRORBY
                                        United States Circuit Judge




                                          -7-
