*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

**After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. SeeFed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 6 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________ BINGHAM LIVESTOCK TRANSPORTATION, INC., Plaintiff-Appellant,

v. KENNETH M. MEAD, Defendant-Appellee. No. 01-4215 (D. Utah) (D.Ct. No. 01-CV-6-ST)

____________________________ ORDER AND JUDGMENT *

Submitted on the briefs. ** Gregory G. Skordas of Gustin, Christian, Skordas & Caston, Salt Lake City, Utah; Anthony J. McMahon, Bethesda, Maryland, for Plainti ff-Appellant. Robert D. McCallum, Jr., Assistant Attorney General , Washington, D.C.; Paul M. Warner, United States Attorney, Salt Lake City, Uta h; Douglas N. Letter and Steve Frank, Department of Justice, Washington, D.C ., for Defendant-Appellee.-2-

Before HARTZ and McKAY , Circuit Judges, and BRORBY , Senior Circuit Judge.

Bingham Livestock Transportation, Inc., brought thi s action for injunctive and declaratory relief against the Inspector Genera l of the United States Department of Transportation. The United States Di strict Court for the District of Utah denied Bingham Livestock’s motion for summary judgment and granted the government’s motion to dismiss or, alternatively, f or summary judgment. Bingham Livestock appeals. Due to recent events th at occurred during the pendency of this appeal, we dismiss this appeal as moot.

Bingham Livestock is a trucking business located inUtah. Based on allegations it violated, among other things, certai n provisions of the Federal Motor Carrier Safety Regulations, 49 C.F.R. §§ 395. 3, 395.8, the Inspector General’s Office, in cooperation with the Federal B ureau of Investigation, began an investigation of Bingham Livestock’s business ac tivities. A few months later, agents from the Inspector General’s Office and othe r federal and local agencies executed a search warrant on Bingham Livestock’s pr emises. The agents seized some of Bingham Livestock’s business records during the search.1 We sua sponte designate the complaint as part of the record on appeal. SeeFed.

R. App. Proc. 10(e)(2)(C).

2Bingham Livestock also sought in its complaint an order rescinding the Inspector General’s referral of the investigation to the Department of Justice and a declaration the referral was “ultra vires.” Bingham Livestock later abandoned these claims for relief because there was no “referral to the Department of Justice.” In any event, even if Bingham Livestock still desired this relief, we nevertheless conclude this action is moot for the reasons discussed below.

-3- Bingham Livestock filed a complaint in district cou rt, 1 seeking, in relevant part, an order (1) declaring the Inspector General’ s investigation of Bingham Livestock beyond his authority; (2) declaring the I nspector General’s search of Bingham Livestock’s premises beyond his authority and in violation of the Fourth and Fifth Amendments of the United States Constitut ion; and (3) directing the Inspector General to terminate his investigation of Bingham Livestock and return the records seized during the search. 2 Bingham Livestock later filed a motion for summary judgment, arguing the Inspector General act ed beyond his authority in investigating Bingham Livestock and searching its p remises. In response, the government filed a motion to dismiss for failure to state a claim or, alternatively, for summary judgment. After a hearing on the motio ns, the district court denied Bingham Livestock’s motion for summary judgment andgranted the government’s motion. Bingham Livestock appeals, arguing the dis trict court’s order should be reversed and its business records returned.-4-

While this appeal was pending, Bingham Livestock en tered a plea agreement with the government and pleaded guilty to one count of Felony Information in violation of 18 U.S.C. § 1001. In a ddition, the government ended its investigation and returned the records it seize d during the search of Bingham Livestock’s premises to Bingham Livestock’s attorne y. As a result of these developments, the government filed a motion to dism iss this appeal as moot because the “investigation is complete and the reco rds at issue in this case [are] returned to Bingham [Livestock].”

Bingham Livestock opposes the government’s motion. It argues the government agreed, as part of the plea agreement, B ingham Livestock would be able to withdraw its guilty plea if it was successf ul on this appeal. The government and Bingham Livestock’s attorney in the criminal proceedings deny entering any agreement concerning this appeal, and the plea agreement does not reflect any such agreement. In addition, Bingham L ivestock argues it did not sign the plea agreement. After reviewing the government ’s motion and the parties’ arguments, we conclude this action is moot.

“Mootness is a threshold issue because the existenc e of a live case or controversy is a constitutional prerequisite to fed eral court jurisdiction.”-5-

McClendon v. City of Albuquerque , 100 F.3d 863, 867 (10th Cir. 1996). “In general a case becomes moot when the issues present ed are no longer ‘live’ or the parties lack a legally cognizable interest in the o utcome.” Murphy v. Hunt , 455 U.S. 478, 481 (1982) (quotation marks and citations omitted). “‘Past exposure to illegal conduct does not in itself show a present c ase or controversy regarding injunctive relief ... if unaccompanied by any conti nuing, present adverse effects.’” Beattie v. United States, 949 F.2d 1092, 1094 (10th Cir. 1991) (quoting O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974) (alterations omitted)). Likewise, “[i]t is well established that what makes a declaratory judg ment action ‘a proper judicial resolution of a “case or controversy” rather than a n advisory opinion – is [] the settling of some dispute which affects the behaviorof the defendant toward the plaintiff.’” Cox v. Phelps Dodge Corp. , 43 F.3d 1345, 1348 (10th Cir. 1994) (quoting Hewitt v. Helms , 482 U.S. 755, 761 (1987)).

Under these principles, we conclude Bingham Livesto ck’s claim for injunctive relief is moot. Bingham Livestock alrea dy achieved the explicit objective of its proposed injunction: the government ceased the investigation and returned Bingham Livestock’s business records. As a result of these developments, there is no longer a “live” controver sy.3 We also note Bingham Livestock’s “interest in attorney’s fees is insufficient to

create an Article III case or controversy where a case or controversy does not exist on the merits of the underlying claim.” Cox , 43 F.3d at 1348 n.4. Furthermore, under the circumstances of this case, Bingham Livestock’s general prayer for “[s]uch other and further relief as the Court may deem appropriate” does not preserve this action as a live case or controversy. See Thomas R.W. v. Massachusetts Dep’t of Educ. , 130 F.3d 477, 480 (1st Cir. 1997).

-6- We also conclude Bingham Livestock’s claims for dec laratory relief are moot. Because the government already ended its inv estigation and returned Bingham Livestock’s business records, a declaratoryjudgment in Bingham Livestock’s favor “would amount to nothing more than a declaration that [it] was wronged, and would have no effect on the [government’s] behavior towards [it].”
Green v. Branson , 108 F.3d 1296, 1300 (10th Cir. 1997). 3

Furthermore, we conclude the “capable of repetition , yet evading review” exception to mootness is not applicable to the fact s of this case. See Murphy , 455 U.S. at 482. The particular controversy in this ca se “is neither likely to recur nor, by nature, so ephemeral as to elude the processes o f judicial review.” Beattie , 940 F.2d at 1094 n.2. See, e.g., Murphy , 455 U.S. at 482 (stating the “capable of repetition, yet evading review exception” is limite d to cases where “(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reason able expectation that the same-7-

complaining party would be subjected to the same ac tion again” (quotation marks and citation omitted)). In light of the terms of t he plea bargain, the possibility that the government will begin a new investigation of Bingham Livestock or ( if Bingham Livestock is able to withdraw its guilty pl ea) re-open its previous investigation is simply too speculative and remote at this time to qualify for this exception. See F.E.R. v. Valdez , 58 F.3d 1530, 1533 (10th Cir. 1995) (concluding the possibility of a subsequent investigation for M edicaid fraud “too speculative to support” an exception to the mootness doctrine.)

For the reasons discussed above, we conclude this a ction is moot. We therefore GRANT the government’s motion to dismiss this appeal as moot, VACATE the judgment of the district court, and REMAND to the district court with instructions to dismiss the action as moot. See United States v. Munsingwear, Inc. , 340 U.S. 36, 39 (1950).

Entered by the Court: WADE BRORBY United States Circuit Judge