696 F. App'x 542

2d Cir.

2017

Georg F.W. SCHAEFFLER, Schaeffler Holding GmbH & Co. KG, INA-Holding Schaeffler GmbH & Co. KG, and Schaeffler Holding, LP, Petitioners-Appellants v. UNITED STATES of America, Respondent-Appellee.

16-2831-cv

United States Court of Appeals, Second Circuit.

August 29, 2017

542

complaint only corrected the caption to include the names of all the defendants. We conclude, however, that any error was harmless. The deficiency in Wright‘s complaint was not a lack of adequate factual allegations but rather a lack of entitlement to the relief sought. Accordingly, granting leave to amend would have been futile.

We have considered Wright‘s remaining arguments and conclude them to be without merit. Accordingly, we AFFIRM the district court‘s judgment.

For Appellants: TODD WELTY, (Mark P. Thomas, Laura L. Gavioli, M. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Miller Baker, Charles R. Quigg, on the brief), McDermott Will & Emery LLP, Dallas, TX, Washington, D.C.

For Appellee: REBECCA S. TINIO, Assistant United States Attorney (Christopher Connolly, Assistant Unitеd States Attorney, on the brief), for Joon H. Kim, Acting United States Attorney for the Southern District of New York, New York, NY.

Present: PETER W. HALL, CHRISTOPHER F. DRONEY, Circuit Judges, LAURA TAYLOR SWAIN, District Judge.^*

SUMMARY ORDER

Georg F.W. Schaeffler, Schaeffler Holding GmbH & Co. KG, INA-Holding Schaeffler GmbH & Co. KG, and Schaeffler Holding, LP (collectively, “Schaeffler“) appeal an order of the United States District Court for the Southern District of New York dismissing the case for lack of subject matter jurisdiсtion. Schaeffler had filed a petition to quash a summons issued by the Internal Revenue Service (“IRS“) in aid of an ongoing examination into Schaeffler‘s domestic income tax liabilities. The IRS withdrew the summons and filed a motion to dismiss, which the district court granted, holding that the case was moot. We assume the parties’ familiarity with thе underlying facts, the procedural history, the district court‘s rulings, and the arguments presented on appeal.

We review ”de novo the district court‘s conclusion that ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍[petitioners‘] claims are moot.” Cty. of Suffolk v. Sebelius, 605 F.3d 135, 139 (2d Cir. 2010). Mootness is a constitutional limitаtion on the power of federal courts. “[A] case is moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969) (internal quotations omitted). “When a case becomes moot, the federal courts lack subject matter jurisdiction over the action.” Fox v. Bd. of Trustees of the State Univ. of New York, 42 F.3d 135, 140 (2d Cir. 1994) (internal quotation marks omitted). Schaeffler appears to concede that, absent an exception to the mootness doctrine, this case became moot when the IRS withdrew its summons.

On appeal, Schaeffler presses only the “voluntary cessation of illegal activity” еxception. “[A]s a general rule, ‘voluntary cessation of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍allegedly illegal conduct does not dеprive the tribunal of power to hear and determine the case, i.e., does not make the case moot.‘” Los Angeles Cty. v. Davis, 440 U.S. 625, 631 (1979) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953)); see also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (“[A] defendant‘s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality оf the practice.“). Such a case does become moot, however, if “(1) there is no reasоnable expectation that the alleged violation will re-cur and (2) interim relief or events have сompletely and irrevocably eradicated the effects of the alleged violation.” MHANY Mgmt., Inc. v. Cty. of Nassau, 819 F.3d 581, 603 (2d Cir. 2016).

Here, we conclude that the “voluntary cessation” exception does not apply. Schaefflеr does not challenge the lawful authority of the IRS to issue the summons. See 26 U.S.C. § 7602. Rather, Schaeffler contends that by summonsing some documents that may or may not be subject to the attorney-client or work-product рrivileges, the summons became “illegal.” We cannot endorse such a tortured understanding of illegality. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍If the IRS wеre to exercise its lawful authority and issue a summons in the future, privilege issues could be litigated then. Doing so here, in the absence of a summons, would result in an impermissible advisory opinion.

We also do not believе that the IRS was here engaged in procedural maneuvering aimed at defeating a judicial determination of the privilege status of the documents. The IRS appears to have taken this action in resрonse to Schaeffler‘s insistence that any stipulation of dismissal include an agreement that all of the summonsed documents are privileged. Our earlier opinion in this case does not necessarily support such a proposition, so it was not unreasonable for the IRS to decline to agree. We do not give much credence to Schaeffler‘s speculation about how events may play out in thе future should the IRS seek such documents again. Schaeffler‘s series of “what ifs” regarding the series of events bеginning with the withdrawal of the summons do not lead us to conclude that the IRS acted with any improper motive.

But еven if the “voluntary cessation” exception would otherwise apply, the IRS has met its formidable burden in demonstrating mootness. First, the IRS has repeatedly assured us, including through representations made at oral argument, that it will not reissue a summons in this action as to the documents at issue, or any summons, as the case is effectively closed. We take the IRS at its word. Second, the IRS having withdrawn the summons, Schaeffler is not obliged to turn оver any documents. All potential effects of the summons have thus been fully eradicated.

We have considered Schaeffler‘s remaining arguments ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and find them to be without merit.

Accordingly, the order of the district court is AFFIRMED.

Notes

Judge Laura Taylor Swain, of the United States District Court for the Southern District of New York, sitting by designation.

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