Andrea Smith Gregory Welsh Larry Hornstein v. James Cromer

159 F.3d 875, 1998 U.S. App. LEXIS 26898, 1998 WL 736384

• Court: Court of Appeals for the Fourth Circuit
• Decided: October 22, 1998
• Docket: 97-2192
• Status: Published

Opinions

Affirmed by published opinion. Judge RICHARD L. VOORHEES wrote the majority opinion, in which Chief Judge WILKINSON joined. Senior Judge PHILLIPS wrote a dissenting opinion.

OPINION

RICHARD L. VOORHEES, District Judge:

In this case, employees of the United States Department of Justice were subpoenaed to testify in a state criminal prosecution in direct contravention of DOJ regulations. Appellant Cromer, the defendant in the state case, subpoenaed appellees, Assistant United States Attorneys (“AUSA’s”) Smith and Welsh and Drug Enforcement Administration Agent Hornstein. His purpose was to compel their testimony at trial and to compel production by the Government of his Confidential Informant file in order to facilitate preparation of his defense to state narcotics charges. The Government removed the case from Maryland state court to federal district court pursuant to 28 U.S.C. § 1442(a)(1). The district court granted the Government’s motion to institute a protective order and to quash subpoenas. Cromer filed the instant appeal, seeking reversal of the district court’s order. We affirm the order of the district court.

I.

Appellees Andrea Smith and Gregory Welsh are Assistant United States Attorneys for the District of Maryland, and Appellee Larry Hornstein is a special Agent with the Drug Enforcement Administration. Appel-lees (hereinafter, the “Government”) are employees of the Department of Justice and are subject to rules and regulations promulgated by the Department of Justice regarding the release of document and provision of testimony in court actions. 28 C.F.R. § 16.21 et seq. Appellant Cromer (hereinafter, “Cromer”) served as a DEA confidential informant (“Cl”) from June 1994 through November 1995, until he was indicted on two charges of delivering heroin to a state informant in November 1995.

In preparation for his criminal trial, Cromer subpoenaed Smith, Welsh, and Hornstein for their testimony at trial and also served subpoenas duces tecum for certain documents, ie., “any and all letters, memorandums, and notes written in reference to or on behalf of ... [Cromer] ... to any judge, probation officer, parole commission, attorney or pretrial detention service division in the federal and/or state system” (to Smith and Welsh), and the entire contents of his Cooperating Individual File (to Agent Horn-stein).

The state court judge, Circuit Court Judge Thomas Waxter, Jr., performed an in camera review of Cromer’s Cooperating Individual File, and, finding the information contained therein to be discoverable pursuant to Zaal v. Maryland, 326 Md. 54, 602 A.2d 1247 (1992), ordered the Government to produce the file to Cromer’s defense attorney. In response, the Government removed the matter to federal district court, moved for a protective order and moved to quash the subpoenas.

Following a hearing, District Judge William M. Nickerson analyzed the competing interests of the parties and weighed Cromer’s due process rights to the evidence he sought against the Government’s prerogative to resist having its employees subpoenaed to testify in state court. The district court found that Cromer had raised an insufficient basis to compel the Government to disclose confidential information and that Cromer had alternative access to the information he sought. For those reasons, and “in light of the policies underlying sovereign immunity,” the district court granted the Government’s motion for protective order and motion to quash the subpoenas.

II.

The issue on appeal is whether the doctrine of sovereign immunity divests the district court of jurisdiction to enforce the subpoenas. We agree with the district court that it does.

The Government moved to quash the subpoenas on the basis of Justice Department regulations promulgated under the authority of the “Housekeeping Statute,” 5 U.S.C. § 301, which provides:

The head of an Executive department ... may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property. This section does not authorize withholding information from the public or limiting the availability of records to the public.

Regulations applicable to the production and disclosure of information by the Justice Department in federal and state proceedings are found at 28 C.F.R. § 16.21, et seq. Section 16.22(a) provides:

In any federal or state case or matter in which the United States is not a party, no employee ... of the Department of Justice shall, in response to a demand, produce any material contained in the files of the Department, or disclose any information relating to or based upon material contained in the files of the Department, or disclose any information or produce any material acquired as part of the performance of that person’s official duties or because of that person’s official status without prior approval of the proper Department official....

The Department of Justice regulations at issue here clearly fall within the terms of the first sentence of the Housekeeping Statute. That regulation prescribes the conduct of employees, the performance of the agency’s business, and the use of its records. In re Boeh, 25 F.3d 761 (9th Cir.1994). Any doubt as to the validity of the regulation’s requirement of prior approval is foreclosed by the Supreme Court’s decision in United States ex rel. Touhy v. Ragen, 340 U.S. 462, 468, 71 S.Ct. 416, 95 L.Ed. 417 (1951), which upheld the validity of a predecessor to 28 C.F.R. § 16.22(a). Id. Appellees may not be forced to comply with the subpoenas if a valid regulation required them not to comply. Ex Parte Sackett, 74 F.2d 922, 923 (9th Cir.1935); Boron Oil Co. v. Downie, 873 F.2d 67, 69 (4th Cir.1989). We are convinced, both by statute and precedent, that 28 C.F.R. § 16.22(a) is valid insofar as it directs Appel-lees not to testify without prior approval of the proper Department official.

In determining whether to provide information in response to a demand, such as the subpoenas in the instant case, the Justice Department considers, among other things, whether disclosure would reveal a confidential source, reveal investigative records compiled for law enforcement purposes, disclose investigative techniques, or interfere with enforcement proceedings. 28 C.F.R. § 16.26(b)(4) and (5). If so, disclosure is forbidden under the regulations, unless the Justice Department determines that the “administration of justice requires disclosure.” 28 C.F.R. § 16.26(c). The interests to be protected present a strong policy basis supporting the Justice Department’s determination not to reveal its own information which it considers to be critical to the effective operation of the agency.

The instant appeal originated as a motion to quash subpoenas issued in a state court action and removed to federal district court under 28 U.S.C. § 1442. In Boron Oil Co. v. Downie, 873 F.2d 67 (4th Cir.1989), a private litigant filed a civil action in state court, and sought the testimony of Downie, an EPA employee, regarding information Downie had obtained while investigating a gas leak. Initially, Downie agreed to testify. However, the EPA district counsel later determined that Downie would not be allowed to testify. This determination was based upon an EPA regulation, which provides, among other things, that requests for employees’ testimony and production of documents will be approved “... when clearly in the interests of the EPA.” 40 C.F.R. § 2.401.

The district court conducted a hearing, and enforced the subpoenas based upon findings that the information sought was not privileged, that Downie was in the best position to provide the information “which was essential to the fair administration of justice in the civil action,” and that the interference and inconvenience to the EPA would be minimal. Boron Oil Co. v. Downie, 873 F.2d at 68. The district court rejected the defense of sovereign immunity because neither the United States nor the EPA were named parties. This court reversed, holding that a state court, and federal court on removal, lacked jurisdiction to compel a federal employee to testify concerning information acquired during the course of his official duties, in a state court civil action to which the United States was not a party. Boron Oil Co. v. Downie, 873 F.2d at 69-71.

It is clear that a federal court’s jurisdiction upon removal under 28 U.S.C. § 1442(a)(1) is derivative of the state court jurisdiction, and where the state court lacks jurisdiction over the subject matter or the parties, the federal court acquires none upon removal, even though in a like suit originally brought in federal court, the court would have had jurisdiction. Boron, 873 F.2d at 70. It is also clear that an action seeking specific relief against a federal official, acting within the scope of his delegated authority, is an action against the United States, subject to the governmental privilege of sovereign immunity. Boron, 873 F.2d at 69. Where an agency has not waived its immunity to suit, the state court (and the federal court on removal) lacks jurisdiction to proceed against a federal employee acting pursuant to agency direction. Id.

In reversing the district court in Boron, this court reasoned that “[U.S. ex rel.] Touhy [v. Ragen, 340 U.S. 462, 71 S.Ct. 416, 95 L.Ed. 417 (1951),] is part of an unbroken line of authority which directly supports Downie’s contention that a federal employee may not be compelled to testify contrary to his federal employer’s instructions under valid agency regulations.” In Touhy, the Supreme Court had held that subordinate federal officers could not be held in contempt for failing to comply with a court order in reliance on a validly promulgated regulation to the contrary. Further, we noted in Boron that the doctrine of sovereign immunity precluded the state court — and the federal court on removal- — from exercising jurisdiction to compel Downie to testify contrary to EPA instructions, and also denied it the authority to review and set aside the EPA’s decision and the ; federal regulations under which it is made. Boron, 873 F.2d at 70. For a state court (or federal court exercising removal jurisdiction) to assert the power of judicial review over decisions made by federal agencies while implementing their own regulations is contrary to the Administrative Procedures Act, 5 U.S.C. § 702, which expressly limits such review authority to the federal courts. Boron, 873 F.2d at 71.

Other circuits which have addressed this issue likewise deny state court access to federal agency records based upon the doctrine of sovereign immunity. See, e.g., In re Elko County Grand Jury, 109 F.3d 554 (9th Cir.1997) (state court lacked jurisdiction to compel a forest service employee to appear and testify before grand jury in contravention of USDA regulations); Houston Bus. Journal, Inc. v. Office of Comptroller of Currency, 86 F.3d 1208 (D.C.Cir.1996) (state court, and federal court on removal, lacked jurisdiction to compel production of records from comptroller general when production was in violation of agency regulations); Edwards v. United States Dept. Of Justice, 43 F.3d 312 (7th Cir.1994) (state court had no authority to compel discovery of FBI surveillance tapes after Justice Department denied production pursuant to 28 C.F.R. § 16.26(b)(5)); In re Boeh, 25 F.3d 761 (9th Cir.1994) (FBI agent cannot be held in contempt for refusing to testify absent permission of the Justice Department, pursuant to 28 C.F.R. § 16.22(a)); Louisiana v. Sparks, 978 F.2d 226 (5th Cir.1992) (state court subpoena issued to federal parole officer quashed on sovereign immunity grounds). These decisions, like our decision in Boron v. Downie, reflect the principle of federal supremacy in two ways: (1) by applying the doctrine of sovereign immunity to preclude state courts, or a federal court on removal, from reviewing federal agency action, and (2) by giving recognition to the principle that valid federal regulations have the force and effect of federal law, which state courts are bound to follow. Boron, 873 F.2d at 71.

The dissenting opinion argues that sovereign immunity protects a federal official only if he is not “acting unconstitutionally or in excess of his legal authority.” Post, at 14. Thus, concludes the dissenting opinion, if Cromer has a constitutional right of access to the information he seeks, then the subpoenaed Justice Department employees act unconstitutionally by refusing to comply with the subpoenas and sovereign immunity is unavailable.

The dissenting opinion is correct in identifying the principle that sovereign immunity is unavailable when “the statute or order conferring power upon the officer to take action in the sovereign’s name is claimed to be unconstitutional.” Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 690, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949). The error is in believing that it has any application in this ease. In Touhy, the Supreme Court upheld as constitutionally valid the predecessor to the current Justice Department regulations which plainly preclude Smith, Welsh, and Hornstein from disclosing the requested records. 340 U.S. at 468-69, 71 S.Ct. 416. The Supreme Court also held in Touhy that pursuant to such regulations, which wisely centralize disclosure decisions in superior Justice Department officials, subordinate employees “may lawfully decline to produce [records] in response to a subpoena duces tecum.” Id. at 467, 71 S.Ct. 416 (first emphasis added). The only officials before our court are Smith, Welsh, and Hornstein — subordinate employees of the Justice Department. Under Touhy, their refusal to comply with Cromer’s subpoenas pursuant to their superiors’ orders simply cannot be termed unconstitutional. Accordingly, these subpoena proceedings against Smith, Welsh, and Hornstein are precluded by sovereign immunity.

Cromer argues that the Government has waived sovereign immunity by engaging in partial disclosure of the information he seeks. Specifically, AUSA Smith wrote a letter to the Maryland Parole Commission which revealed that Cromer was working as a Cl for the federal government; AUSA Welsh and Agent Hornstein testified on behalf of the state at Cromer’s bail hearing. Agent Hornstein provided the Cl file to the state court judge for in camera review. However, disclosure of factual information does not effect a waiver of sovereign immunity as to other related matters. See Swett v. Schenk, 792 F.2d 1447, 1452 (9th Cir.1986) (Permitting a federal employee to testify on certain matters which are not violative of the regulations at issue cannot be construed as an intent to waive immunity.). Cromer’s argument is without merit.

It is also incorrect to conclude that the Justice Department regulations, if properly “complied” with, confer some entitlement on parties seeking the disclosure of agency records. The regulations do not purport to grant any right of access to applicants. As 28 C.F.R. § 16.21(d) makes clear, the regulations are “intended only to provide guidance for the internal operations of the Department of Justice, and [are] not intended to, and [do] not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by a party against the United States.”

Section 16.22(a), which governs proceedings in which the United States is not a party, prohibits disclosure by subordinate employees “without prior approval of the proper Department official.” Sections 16.24 and 16.25 establish the exact manner in which disclosure decisions must be made, including who must be involved and what factors must be considered. If the proper official determines that disclosure should not be permitted, the subordinate employee to whom the request has been made is forbidden to disclose the material. See id. § 16.28 (“[T]he employee or former employee upon whom the demand has been made shall, if so directed by the responsible Department official, respectfully decline to comply with the demand. See United States ex rel. Touhy v. Ragen, 340 U.S. 462, 71 S.Ct. 416, 95 L.Ed. 417 (1951).”). Issuing a subpoena to a subordinate employee, as Cromer did, merely sets this process in motion. We reject Cromer’s argument that these regulations provide him any additional substantive entitlement.¹

Based upon the Touhy doctrine and principles of sovereign immunity, we conclude that the state court had no authority to enforce the subpoenas, and the district court acquired none on removal. Cromer’s remedy, if any, for the Justice Department’s actions in the instant case may be found in the Administrative Procedures Act, 5 U.S.C. § 702, which expressly limits such review authority to the federal courts. Boron, 873 F.2d at 71.

III.

Cromer, however, contends that Boron is distinguishable from the instant case in that the underlying cause here is a criminal one, not civil, and that his constitutional rights to due process and confrontation of witnesses should predominate over the doctrine of sovereign immunity. This is an issue we need not decide, however, because we find that even if some federal official were amenable to state process, and the Roviaro analysis undertaken by the district court below were therefore the correct one, the order of the district court would have to be affirmed.

Relying on the Supreme Court’s reasoning in Pennsylvania v. Ritchie, 480 U.S. 39, 60-61, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), the district court below determined that as a matter of equity Cromer’s due process rights should be balanced against the government’s right to protect its employees subpoenaed to testify in state court. (JA 94-95).

The district court relied upon Florida v. Cohen, 887 F.2d 1451 (11th Cir.1989), wherein the defendant was charged in state court with the murder of her husband. The defendant subpoenaed information from various federal agents and agencies regarding a confidential informant who had information on the activities of Frank Diaz, a fugitive from justice who was initially a suspect in the murder. The Government filed motions to quash and sought a protective order. However, the state court ordered the Government to produce the records for an in camera review. When the Government failed to respond to the order, the court issued a show cause order. As in the instant case, the Government then removed the issue to federal district court pursuant to 28 U.S.C. § 1442(a)(1).

The Cohen court performed a balancing of interests based upon application of the factors set forth by the Supreme Court in Roviaro v. United States, 353 U.S. 53, 62, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). The issue on appeal to the Eleventh Circuit was whether the district court had struck the correct balance when it determined that the Government’s need to protect the identity of the informant outweighed the defendant’s need for the information requested. The Eleventh Circuit remanded the case for reevaluation based upon new information that the fugitive, the initial murder suspect, already knew the identity of the confidential informant, and, therefore, the Government’s concerns would need to be reevaluated. As noted by the district judge in the instant case, the Cohen court did not address the issue of sovereign immunity.

Finding the Cohen approach to be the proper one, the district court below applied the factors identified by the Supreme Court in Roviaro v. United States, 353 U.S. 53, 62, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957) (courts must consider “the particular circumstances of each case, taking into consideration the crime charged, the possible defense, the possible significance of the informer’s testimony, and other relevant factors” in balancing the public interest in protecting the flow of information with the individual’s right to prepare a defense). The district court concluded that even under this approach it must grant the Government’s motion to quash the subpoenas.

Judge Nickerson reasoned that Cromer did not provide the court with specific facts that would likely be contained in his informant file that would establish that he was acting as a federal cooperating individual at the time of his alleged violation. The district court found that Cromer’s desire to raise a question as to his guilt in the minds of the jurors, based upon unrelated allegations of his efforts as a cooperator, was an insufficient basis to compel the government to disclose confidential information in violation of applicable regulations. The district court also noted that the prior disclosures by Smith, Welsh, and Hornstein provided Cromer with another means to get the information in front of the jury. Additionally, Cromer would have the opportunity to cross examine Agent Hornstein regarding Cromer’s efforts as an informer on behalf of the DEA when Hornstein is presented as a fact witness at the trial. For these reasons, and in light of the policies underlying the doctrine of sovereign immunity, the district court granted the Government’s motion to quash the subpoenas. (JA 96-98).

This Court applies a de novo standard of review to the district court’s grant of a protective order, quashing state court subpoenas to federal officials, as this issue is decided as a matter of law. West v. Clarke, Murphy Self Employed Pension Plan, 99 F.3d 166 (4th Cir.1996); Boron Oil Co. v. Downie, 873 F.2d 67 (4th Cir.1989). We find that the district court did not err in its analysis or application of the relevant statutory and case authority.

Cromer argues that the district court erred by not reviewing his Cooperating Individual File, in camera, prior to ruling on the Government’s motion. However, the record reveals that both parties participated in a hearing on the motion and were given ample opportunity to present their respective positions. (JA 51-90). Cromer’s attorney offered a proffer of evidence at the hearing before Judge Nickerson (JA 51-54), as did the Government (JA 54-55). After considering these proffers, the district court found that Cromer had presented no more than “unrelated allegations of his efforts as a cooperator.” (JA 96). Cromer “may not require the trial court to search through the ... file without first establishing a basis for his claim that it contains material evidence.” Ritchie, 480 U.S. at 58 n. 15, 107 S.Ct. 989. We find that the record created at the hearing, and the proffers of both parties, along with the written submissions to the district court, provided a sufficient basis for the district court’s decision.

Appellant argues to this Court that his Sixth Amendment right to compulsory process will be violated if the subpoenas issued to three Department of Justice officials, which seek to compel their testimony in his state criminal proceeding, are quashed. It is clear that there are limits upon the due process which is accorded a defendant in presenting his defense, and, further, that the right to compulsory process is not absolute. Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); Pennsylvania v. Ritchie, 480 U.S. 39, 56, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987). The district court properly balanced Cromer’s constitutional claims against the Government’s claim of privilege and concluded that the rights articulated by Cromer did not override those presented by the Government.²

IV.

Based upon a de novo review of the record, we find that the district court did not err in its determination to quash the subpoenas. First, and most importantly, sovereign immunity bars state compulsory process against these federal officers. Second, even assuming it is correct to balance the federal privilege against Cromer’s articulated interests, Cromer has failed to raise any claim sufficient to overcome the government’s interest in protecting its confidential law enforcement investigations. Accordingly, the Order of the district court granting the Government’s motion for a protective order, quashing the subpoenas, and dismissing the instant action is affirmed.

AFFIRMED.

1 . The dissent states that this procedure is “more elaborate and complicated” than its predecessor. Post, at 890-91. The Department’s ultimate disclosure authority, however, still resides in a small number of high-level officials. Compare 28 C.F.R. § 16.25(c) (Deputy or Associate Attorney General) and id. § 16.24(g) (Attorney General) with Department of Justice Order No. 3229 (May 2, 1946) ("the Attorney General, The Assistant to the Attorney General, or an Assistant Attorney General acting for him”) (quoted in Touhy, 340 U.S. at 463 n. 1, 71 S.Ct. 416). Under the current procedure, it remains safe to "assume ... that the Attorney General can be reached by legal process.” Touhy, 340 U.S. at 472, 71 S.Ct. 416 (Frankfurter, J., concurring).

In fact, whatever complexity the dissent discerns in the current regulation results from the Department’s effort to vest limited disclosure authority in local United States Attorneys. See 28 C.F.R. §§ 16.23-16.24. This devolution of power should actually increase public access, at least to less sensitive information. It would be perverse to reward this effort by eliminating all means of central control.

2 . We do not need to examine here the precise contours of the Government’s privilege, for Cromer’s "unrelated allegations,” (JA 96), do not provide him any interest to weigh against the government’s undisputed interest in maintaining the secrecy of confidential informant files. See Roviaro, 353 U.S. at 62, 77 S.Ct. 623 ("Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case Cromer was required to "come forward with something more than speculation as to the usefulness of ... disclosure.” United States v. Smith, 780 F.2d 1102, 1108 (4th Cir.1985) (en banc) (interpreting the classified information privilege).