Senate Permanent Subcommittee on Investigations v. Ferrer, No. 16-5232 (D.C. Cir.) May 16, 2017.
Ferrer, Chief Executive Officer of the Backpage website, was directed by court order to respond to a subpoena issued by the Senate Pemanent Subcommittee on Investigations. Ferrar has objected ot dismissal of his appal as moot. Although the hearings have concluded and the committee’s resport issue, Ferrer argues that the subcommitee can be ordered byt eh court to take or to rfrai from takig action concerning documents Ferrer produced.
The power that Ferrer envisions does not reside with the court: separation of powers principles prohibit judicial interference in legislative matters in their ordinary course. Although Ferrer could preserve judicial review by refusing to comply and being found to be in contempt, compliance with the subpoena commits the matter squarely to the legislature.
Ferrer’s request to apply the exception to the mootness doctrine for matters that are susceptible of repetition but which evade review is unavailing, the D.C. Circuit found. More than a mere possibility of repetition of the same issue is needed to apply this doctrine. With all the Senate subcommittee’s work concluded, speculation that the fact pattern would repeat itself is simply that — speculation — and will not support the court’s continued jurisdiction.