The Supreme Court/The Supreme Court.iso/pc/ascii/1994/order/030294.zr

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SUPREME COURT OF THE UNITED STATES
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No. A-704
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BOB PACKWOOD, APPLICANT v. SENATE SELECT
COMMITTEE ON ETHICS
on application for stay
[March 2, 1994]

  Chief Justice Rehnquist, Circuit Justice.
  Applicant Senator Bob Packwood requests that I grant
a stay pending appeal to the Court of Appeals for
District of Columbia Circuit of a decision by the District
Court enforcing the subpoena duces tecum issued by
respondent Senate Select Committee on Ethics (Senate
Ethics Committee).  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 Medical & Surgical Ins.
Plan, 501 U. S. ___, ___ (1991) (slip op., at 2)  (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 mem-
bers of this court to grant stay applications only `upon
the weightiest considerations.'-  Fargo Women's Health
Organization v. Schafer, 507 U. S. ___, ___  (1993) (slip
op., at 2) (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 cham-
bers); 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
would grant certiorari.  Cf. United States v. Nixon, 418
U. S. 683, 702 (1974) (-Enforcement of a pretrial
subpoena duces tecum must necessarily be committed to
the sound discretion of the trial court since the necessity
for the subpoena most often turns upon a determination
of factual issues-).  Moreover, whatever merit applicant's
argument may have had initially, it has been seriously
undermined by the evidence, presented to the District
Court, that his diary transcripts and tapes have been
altered.  Regardless of the scope of respondent's initial
inquiry, surely respondent has the authority to investi-
gate attempts to obstruct that inquiry, and the evidence
of tampering very likely renders all of the requested
diary entries relevant to that investigation.
  Applicant next asserts that the subpoena violates his
Fourth Amendment right to privacy.  The District Court,
relying on our decisions in O'Connor v. Ortega, 480 U. S.
709 (1987), and Nixon v. Administrator of General
Services, 433 U. S. 425 (1977), balanced applicant's
privacy interests against the importance of the govern-
mental interests.  The Court concluded that the latter
outweighed the former.  Applicant does not quarrel with
the legal standard applied by the District Court, only
with its conclusion.  Because this claim thus also
involves only a factbound determination, I do not think
certiorari would be granted to review it.
  Finally, applicant argues that the subpoena violates
his Fifth Amendment protection against self-incrimina-
tion.  He relies primarily on Boyd v. United States, 116
U. S. 616 (1886), and argues that the Courts of Appeals
are in conflict as to whether Boyd remains controlling
with regard to the production of private papers.  We
recently denied a petition for certiorari raising this
precise issue.  See Doe v. United States, 510 U. S. ___
(1994) (No. 93-523).  Our recent denial demonstrates
quite clearly the unlikelihood that four Justices would
vote to grant review on this issue.  See South Park
Independent School Dist. v. United States, 453 U. S.
1301, 1304 (1981) (Powell, J., in chambers) (denying stay
application because it raised issues -almost identical to
those presented three years ago, when the Court voted
to deny certiorari-).
  Accordingly, the request for a stay is denied.