Packwood v. Senate Select Comm. on Ethics,
510 U.S. 1319 (1994)

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Opinion in Chambers


ON APPLICATION FOR STAY No. A-704. Decided March 2,1994

Senator Bob Packwood's application for a stay pending appeal to the Court of Appeals of a District Court decision enforcing a subpoena duces tecum issued by respondent Senate Select Committee on Ethics is denied. Because this matter is pending before the Court of Appeals and because that court denied applicant's motion for a stay, he has an especially heavy burden. Fargo Women's Health Organization v. Schafer, 507 U. S. 1013, 1014. Resolution of two of his claims-that the subpoena is overly broad and that it violates his Fourth Amendment right to privacy-would entail factbound determinations, and thus it is unlikely that those claims raise issues on which four Members of this Court would grant certiorari. Moreover, the Court's recent denial of a petition for certiorari raising the precise issue made in applicant's third claim-that the subpoena violates his Fifth Amendment protection against self-incrimination under Boyd v. United States, 116 U. S. 616demonstrates quite clearly the unlikelihood that four Justices would vote to grant review on this issue.


Applicant Senator Bob Packwood requests that I grant a stay pending appeal to the Court of Appeals for the District of Columbia Circuit of a decision by the District Court enforcing the subpoena duces tecum issued by respondent Senate Select Committee on Ethics. The Court of Appeals recently, and unanimously, denied his emergency motion for a stay pending appeal.

The criteria for deciding whether to grant a stay are well established. An applicant must demonstrate: (1) a reasonable probability that four Justices would vote to grant certiorari; (2) a significant possibility that the Court would reverse the judgment below; and (3) a likelihood of irreparable harm, assuming the correctness of the applicant's position, if the judgment is not stayed. Barnes v. E-Systems, Inc. Group



Opinion in Chambers

Hospital Medical & Surgical Ins. Plan, 501 U. S. 1301, 1302 (1991) (SCALIA, J., in chambers). Because this matter is pending before the Court of Appeals, and because the Court of Appeals denied his motion for a stay, applicant has an especially heavy burden. "When a matter is pending before a court of appeals, it long has been the practice of Members of this Court to grant stay applications only 'upon the weightiest considerations.''' Fargo Women's Health Organization v. Schafer, 507 U. S. 1013, 1014 (1993) (O'CONNOR, J., concurring in denial of stay application) (quoting O'Rourke v. Levine, 80 S. Ct. 623, 624, 4 L. Ed. 2d, 615, 616 (1960) (Harlan, J., in chambers); see also Beame v. Friends of the Earth, 434 U. S. 1310, 1312 (1977) (Marshall, J., in chambers) (a stay applicant's "burden is particularly heavy when ... a stay has been denied by the District Court and by a unanimous panel of the Court of Appeals").

Applicant raises three challenges to the enforcement of the subpoena. First, he contends that the subpoena is impermissibly broad and seeks information beyond the defined subject matter of the pending Committee investigation. In applicant's view, the subpoena should have been limited to those documents pertaining to the Committee's initial inquiry into allegations regarding sexual misconduct; as it stands now, the subpoena, according to applicant, is tantamount to a general warrant. See Stanford v. Texas, 379 U. S. 476, 480 (1965) (holding that general warrants are clearly forbidden by the Fourth Amendment).

As we stated in Oklahoma Press Publishing Co. v. Walling, 327 U. S. 186, 209 (1946), determining whether a subpoena is overly broad "cannot be reduced to formula; for relevancy and adequacy or excess in the breadth of the subpoena are matters variable in relation to the nature, purposes and scope of the inquiry." Because resolution of applicant's claim would entail a factbound determination of the nature and scope of respondent's investigation, I do not think his claim raises an issue on which four Members of the Court

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