[1]     

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

, [5]     

Argued October 18, 1995

, [6]      IN RE: SUBPOENA OF ROGER GIMBEL BY FDIC AS RECEIVER FOR FIRST NEW YORK BANK FOR BUSINESS. " />

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In Re Subpoena of Roger Gimbel, 77 F.3D 593 (2d Cir. 02/21/1996)

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

No. 866 -- August Term, 1995

Docket No. 95-6187

77 F.3d 593, 1996.C02.0000074 <http://www.versuslaw.com>

Argued October 18, 1995

IN RE: SUBPOENA OF ROGER GIMBEL BY FDIC AS RECEIVER FOR FIRST NEW YORK BANK FOR BUSINESS.

Before: MESKILL, MAHONEY and WALKER, Circuit Judges.

[8]    

Decided February 21, 1996

[9]    

ROGER GIMBEL,

Petitioner-Appellant, v.

FEDERAL DEPOSIT INSURANCE CORPORATION,

Respondent-Appellee.

Appeal from an order of the United States District Court for the Southern District of New York, Martin, J., denying appellant's motion on Fourth Amendment grounds to quash the Federal Deposit Insurance Corporation's subpoena duces tecum of his financial records and granting the FDIC's cross-motion to enforce the subpoena.

Affirmed.

ARTHUR M. HANDLER, New York City (Robert S. Goodman, Eileen P. McCarthy, Burns Handler & Burns LLP, New York City, of counsel) for Appellant.

LAWRENCE H. RICHMOND, Federal Deposit Insurance Corporation, Washington, D.C. (Ann S. DuRoss, Assistant General Counsel, Colleen B. Bombardier, Senior Counsel, Federal Deposit Insurance Corporation, Washington, D.C., of counsel), for Appellee.

MESKILL, Circuit Judge:

This is an appeal from a final order of the United States District Court for the Southern District of New York, Martin, J., denying Roger Gimbel's motion to quash a Federal Deposit Insurance Corporation (FDIC) administrative subpoena of Gimbel's personal financial records and granting the FDIC's cross-motion to enforce its subpoena.

BACKGROUND

Roger Gimbel was a director of the First New York Bank for Business (FNYBB) from 1986 until 1992 when the bank failed. The FDIC took over as receiver for the failed bank and through an administrative subpoena duces tecum seeks to determine the potential liability of Gimbel to FNYBB/FDIC and his ability to pay any judgment obtained. Gimbel argues that the FDIC subpoena must be quashed because it lacks the requisite articulation of suspicion of liability required by the Fourth Amendment, and because it seeks information irrelevant to the stated purposes of the FDIC investigation of him and thus is outside the FDIC's statutory authority. The district court found that the FDIC made an "adequate showing" to support its subpoena. We have jurisdiction pursuant to 28 U.S.C. Section(s) 1291.

The FDIC subpoena of Gimbel's personal records instructed Gimbel to provide the FDIC the following:

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

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

3. All records prepared, generated, or received on or after June 8, 1995, referring or relating to any account in any depository institution maintained by you or any member of your immediate family, or over which you or they have exercised control, or as to which you or they are or were a signatory, or in which you or they had or have a financial interest, including but not limited to: (a) checking and savings account statements; (b) records of loans made or received; (c) records of certificates of deposit and other time deposit items purchased or redeemed; (d) records of safe deposit boxes; (e) cancelled checks.

4. All records prepared, generated, or received on or after June 8, 1995, 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.

6. All records prepared, generated, or received on or after June 8, 1995, referring or relating to stocks, bonds, securities or other investments currently owned by you 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 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:

a. all real and personal property purchases, sales or transfers, with or without consideration;

b. all trust participations;

c. mortgages, trusts or other liens on security interests obtained or supplied on 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 policies which insure you against liability, unless the policy expressly excludes all coverage for directors and officers. Examples of policies which may be required to be produced include D&O insurance of a failed institution, insurance covering you as a director or officer of a corporation other than the failed institution, comprehensive general liability (CGL) policies, homeowner's policies, personal umbrella policies.

DISCUSSION

As we noted in In re McVane, 44 F.3d 1127 (2d Cir. 1995), the statute that empowers the FDIC to issue subpoenas "places few restrictions on that power." Id. at 1134. The statute provides that: The Corporation may, as conservator, receiver, or exclusive manager and 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 asset of any person in the course of collecting money due the institution), exercise any power established under section 1818(n) of this title.

12 U.S.C. Section(s) 1821(d)(2)(I)(i). Section 1818(n) provides that the FDIC shall have the power to, among other things, issue, revoke, and quash subpoenas duces tecum. 12 U.S.C. Section(s) 1818(n). The only statutory limit on the subpoena power of the FDIC is that the subpoenas be issued "'for purposes of carrying out any power, authority, or duty with respect to an insured depository institution.'" McVane, 44 F.3d at 1134 (quoting Section(s) 1821(d)(2)(I)(i)).

Limitations on the FDIC's sweeping power to subpoena the personal financial records of the former directors and officers of failed savings and loans*fn1 come from two sources. First, courts have interpreted the FDIC's seemingly unlimited grant of authority to issue subpoenas as requiring a preliminary showing of suspicion of liability of the subpoena respondent for certain inquiries. For instance, in RTC v. Walde


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