
USCA1 Opinion

	




                            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 & 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) & (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 & 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 & 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 &                   ______________          Richard B.  Stewart, Administrative  Law & 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 &  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  & 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-
