                                                                                  FILED
                                                                      United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                           Tenth Circuit

                            FOR THE TENTH CIRCUIT                           August 14, 2017
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
STATE OF UTAH,

      Plaintiff,

v.                                                          No. 16-4194
                                                    (D.C. No. 2:16-CV-00462-TS)
SHAWN CHRISTOPHER RICKS,                                      (D. Utah)

      Defendant - Appellant,

v.

IN THE MATTER OF THE STATE
COURT MOTION TO COMPEL
COMPLIANCE WITH A SUBPOENA
AGAINST THE UNITED STATES
SOCIAL SECURITY
ADMINISTRATION,

      Respondent - Appellee.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before LUCERO, HOLMES, and BACHARACH, Circuit Judges.
                  _________________________________




      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
      Shawn Ricks appeals from an order dismissing his motion to compel the Social

Security Administration (SSA) to produce the Social Security Disability records of a

non-party. Concluding this appeal is now moot, we dismiss it.

      Mr. Ricks was the defendant in criminal proceedings brought in a Utah state

court. He served a subpoena on the SSA for the disability records of his alleged

victim. The SSA refused to comply, asserting that release of the requested

information was prohibited by applicable federal regulations. In response to

Mr. Ricks’s ensuing motion to compel, the SSA removed the matter to federal district

court where it sought dismissal for lack of subject-matter jurisdiction. The federal

district court dismissed the case, holding that the SSA could not be compelled to

comply with the subpoena. Mr. Ricks appealed to this court.

      While this appeal was pending, Mr. Ricks voluntarily entered a guilty plea in

the state criminal proceedings, thus concluding those proceedings. The SSA has filed

a motion to dismiss the appeal, claiming the appeal is now moot. Mr. Ricks opposes

dismissal.

      Mootness is a legal question we consider de novo. United States v. Fisher,

805 F.3d 982, 989 (10th Cir. 2015). In considering mootness, “[t]he starting point

for [our] analysis is the familiar proposition that federal courts are without power to

decide questions that cannot affect the rights of litigants in the case before them.”

DeFunis v. Odegaard, 416 U.S. 312, 316 (1974) (internal quotation marks omitted).

But there are certain exceptions to mootness where “a case remains subject to federal

court jurisdiction notwithstanding the seeming extinguishment of any live case or

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controversy.” Brown v. Buhman, 822 F.3d 1151, 1166 (10th Cir. 2016), cert. denied,

137 S. Ct. 828 (2017).

       One exception is if the issue is deemed a wrong capable of repetition yet

evading review. This exception applies where “(1) the challenged action is in its

duration too short to be fully litigated prior to cessation or expiration; and (2) there is

a reasonable expectation that the same complaining party will be subject to the same

action again.” FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 462 (2007) (internal

quotation marks omitted). The second exception to mootness concerns “voluntary

cessation” of the defendant’s conduct. Already, LLC v. Nike, Inc., 568 U.S. 85, 92

(2013). Voluntary cessation moots a case where “the challenged action—pursuing a

claim in court—could not be resumed in this or any subsequent action and because it

[is] entirely speculative that any similar claim would arise in the future.” Id.

(internal quotation marks omitted).

       Mr. Ricks does not dispute the SSA’s assertions that the appeal is moot and no

recognized exception to the mootness doctrine applies. Nevertheless, he opposes

dismissal because the proceedings stemming from his subpoena to the SSA caused a

substantial delay in his criminal case. He requests “a narrow and unprecedented

exception” to the mootness doctrine that would assure his Sixth Amendment rights to

a speedy trial and compulsory process. Aplt. Objection to Aplee. Suggestion of

Mootness, at 4-5. Mr. Ricks has not suggested how resolving the appeal on the

merits would vindicate his Sixth Amendment rights and we do not see how it could.



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Since a favorable outcome would not affect his rights, this court is without power to

decide the merits. See DeFunis, 416 U.S. at 316.

      Although Mr. Ricks has not requested that we vacate the district court’s

judgment, we have determined that doing so is not warranted. “The question of

whether to vacate a judgment after a finding of mootness is an equitable question that

must be determined on the basis of the particular circumstances.” Schell v. OXY USA

Inc., 814 F.3d 1107, 1116 (10th Cir.) (internal quotation marks omitted), cert. denied,

137 S. Ct. 376 (2016). Where “a party—who has lost before the district court—

causes mootness and then seeks vacatur, we generally refuse to vacate the district

court’s opinion.” Id. at 1117. Mr. Ricks’s voluntary guilty plea has rendered this

appeal moot. Therefore, we decline to vacate the district court’s judgment.

      Appeal dismissed.


                                           Entered for the Court


                                           Jerome A. Holmes
                                           Circuit Judge




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