In Re Recalcitrant Witness Richard Boeh, Julia Gomez v. Daryl Gates, and United States of America

25 F.3d 761, 94 Daily Journal DAR 7160, 94 Cal. Daily Op. Serv. 3784, 1994 U.S. App. LEXIS 12383, 1994 WL 220337

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 27, 1994
• Docket: 92-55096
• Status: Published

Opinions

Opinion by Judge CANBY; Dissent by Judge NORRIS

CANBY, Circuit Judge:

The United States and Richard Boeh,¹ an agent of the Federal Bureau of Investigation, appealed from the district court’s denial of a motion to quash a subpoena ad testificandum and two civil contempt orders issued in response to Boeh’s refusal to testify in a civil trial. The appeal was expedited pursuant to 28 U.S.C. § 1826(b). On February 18, 1992, we entered a brief order reversing all three orders of the district court, with Judge Norris indicating his dissent. Our order stated that opinions would follow; we now deliver them.

BACKGROUND

The underlying litigation arises out of an incident in which members of the Los Ange-les Police Department shot four suspects, killing three of them and critically wounding the fourth, immediately after a robbery of a fast food restaurant in Sunland, California. The surviving suspect and relatives of the deceased suspects brought a civil rights action in federal court against the police officers, Chief Daryl Gates, the City of Los Angeles, and various other officials, alleging the use of excessive force.

Shortly after the trial commenced, plaintiffs caused a subpoena to be served on Richard Boeh.² Boeh was a Special Agent of the FBI, and was the case agent for a criminal investigation of the shootings. Boeh had not been present at the incident; he was not a percipient witness to any events upon which the litigation was based. Neither Boeh nor the United States was a party to the litigation.

Plaintiffs’ purpose in serving the subpoena was to secure Boeh’s testimony regarding evidence he had collected in his investigation and his conclusions as to what had actually occurred at the scene of the shooting. The United States Attorney referred the subpoena to the Department of Justice, pursuant to 28 C.F.R. § 16.22(a) (1991), which provides:

In any federal or state ease 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 proper official in the Department denied permission for Boeh to testily, and directed Boeh to decline respectfully to obey the subpoena. The United States filed a motion on Boeh’s behalf to quash the subpoena. Before hearing the motion to quash, the district court ordered Boeh to appear in camera and answer questions that would permit the court to learn what Boeh knew about the alleged civil rights violations and to determine, among other things, what limits should be placed on Boeh’s testimony. Boeh refused to answer the court’s questions and the district court held him in civil contempt. The district court then denied the United States’ motion to quash and, in open court, ordered Boeh to testify pursuant to the subpoena. Boeh again refused and again was held in civil contempt. This appeal followed.

DISCUSSION

Boeh may not be held in contempt for failing to comply with a court order if a valid regulation required him 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 Boeh not to testify “without prior approval of the proper Department official.” The question whether that prior approval was unlawfully withheld is not, we conclude, properly before us on this appeal from contempt rulings against Boeh.

Section 16.22(a) was promulgated under the authority of the so-called “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.

The Department of Justice regulation here clearly falls within the terms of the first sentence of this statute: the regulation prescribes the conduct of employees, the performance of the agency’s business, and the use of its records. Any doubt as to the validity of the regulation’s requirement of prior approval is foreclosed, in our view, by the Supreme Court’s decision in United States ex rel. Touhy v. Ragen, 340 U.S. 462, 468, 71 S.Ct. 416, 419, 95 L.Ed. 417 (1951), which upheld the validity of a predecessor to 28 C.F.R. § 16.22(a).

In Touhy, a Department of Justice employee was subpoenaed to produce departmental records in a habeas corpus proceeding. Pursuant to the then-existing regulation, the Attorney General withheld permission for the employee to comply with the subpoena, and the employee was held in contempt. The Supreme Court held that the employee could not be held in contempt because the regulation validly withdrew from the employee and placed in the Attorney General the decision whether and on what terms to comply with the subpoena. Id. at 467-69, 71 S.Ct. at 418-19. In so holding, the Court relied on its earlier decision in Boske v. Comingore, 177 U.S. 459, 467-69, 20 S.Ct. 701, 704-05, 44 L.Ed. 846 (1900), upholding the right of the Secretary of the Treasury to withdraw from subordinates all discretion over the use and production of tax records. Boske overturned a state court’s contempt order against a tax collector who refused to respond to a subpoena duces te-cum. See also Swett v. Schenk, 792 F.2d 1447, 1451 (9th Cir.1986) (National Transportation Safety Board regulation restricting employee testimony); Ex Parte Sackett, 74 F.2d at 923-24 (similar Department of Justice regulation).

Plaintiffs argue that section 16.22(a), as applied in this case, violates the separation of powers by vesting an executive branch official with the heretofore exclusively judicial power to determine what evidence will be admitted' in a civil trial. We give no such effect to the regulation. We do not decide here that Boeh may never be required to testify or that section 16.22(a) establishes an absolute privilege. We conclude only that plaintiffs selected an improper method of attempting to compel Boeh’s testimony. Plaintiffs might have succeeded by other means in bringing the Attorney General or the designated “proper Department official” into court to contest his or her decision not to permit Boeh’s testimony.³ Once properly before the appropriate court, the Attorney General or designated official could have claimed whatever privileges might shield Boeh’s testimony and the court could then have ruled on those assertions of privilege. See Committee for Nuclear Responsibility, Inc. v. Seaborg, 463 F.2d 788, 793 (DC Cir.1971) (when the head of an agency challenges a subpoena, “the claim of privilege is one for consideration by the court”); see also NLRB v. Capitol Fish Co., 294 F.2d 868, 873-74 (5th Cir.1961) (when order is directed to head of the agency, Touhy and Boske are no longer relevant); Reynolds v. United States, 192 F.2d 987, 992-93 (3rd Cir.1951) (same), rev’d on other grounds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953). We need not decide those issues because they are not before us.⁴

Our conclusion here closely tracks the Supreme Court’s decision in Touhy. After ruling that the Attorney General’s regulation similar to section 16.22(a) had been validly promulgated under the predecessor statute to 5 U.S.C. § 301, the Court stated:

We find it unnecessary, however, to consider the ultimate reach of the authority of the Attorney General to refuse to produce at a court’s order the government papers in his possession, for the ease as we understand it raises no question as to the power of the Attorney General himself to make such a refusal. The Attorney General was not before the trial court. It is true that his subordinate ... acted in accordance with the Attorney General’s instructions and a department order. But we limit our examination to what this record shows, to wit, a refusal by a subordinate-of the Department of Justice to submit papers to the court in response to its subpoena duces tecum on the ground that the subordinate is prohibited from making such submission by his superior through Order No. 3229. The validity of the superior’s action is in issue only insofar as we must determine whether the Attorney General can validly withdraw from his subordinates the power to release department papers.

340 U.S. at 467, 71 S.Ct. at 419 (emphasis added) (footnote omitted). The Court thus réjected a separation of powers argument on the ground that it was not ruling on the Attorney General’s power to refuse to produce the subpoenaed documents. Id. at 468-69, 71 S.Ct. at 419-20. Justice Frankfurter emphasized this same point in his concurring opinion, describing the issue as “a matter of internal administration.” Id. at 471, 71 S.Ct. at 421. In accord with Touhy, we decline to reach the question of the Attorney General’s power to refuse to provide evidence where the United States is not a party.⁵

Indeed, we are compelled by our own circuit authority to reject any attempt at weighing the validity of the Attorney General’s decision in the context of a contempt proceeding against his subordinate. In Swett v. Schenk, 792 F.2d at 1452, we upheld a district court’s dismissal of a removed contempt proceeding against a subordinate federal official. We stated that we understood the appellant’s frustration with the fact that the validity of the departmental decision, under its own regulations, had never been weighed and applied to his case. Nevertheless, we held that Touhy precluded the determination of such a question in a contempt proceeding:

[T]he Touhy doctrine is jurisdictional and precludes a contempt action regardless of whether section 835.3(b) is ultimately determined to protect the requested testimony. Consequently, a consideration of the merits can play no part in our decision.

Id. (emphasis added) (footnote omitted). This ruling in Swett governs our application of Touhy to this case. See also Ex Parte Sackett, 74 F.2d at 923-24 (applying Boske and upholding Department of Justice regulation prohibiting investigating officer from testifying, despite assumed materiality of the records subpoenaed).⁶

Touhy and the case upon which it relied, Boske v. Comingore, 177 U.S. 459, 20 S.Ct. 701, 44 L.Ed. 846 (1900), both dealt with subpoenas duces tecum, while this case involves a subpoena ad testificandum. There is no difference in principle, however, between the power of the Attorney General to specify what records a subordinate may release and the power to specify what information a subordinate may release through testimony. The Court acknowledged “the usefulness, indeed the necessity, of centralizing determination as to whether subpoenas duces tecum will be willingly obeyed or challenged[.]” Touhy, 340 U.S. at 468, 71 S.Ct. at 419. The same rationale justifies the Attorney General’s power to determine whether privilege should be invoked for Boeh’s testimony. The clear import of Boske, Touhy, and Sackett is that a challenge to the Attorney General’s decision cannot be initiated by contempt orders against an agent who has been denied permission to testify.

In Swett, we applied the Touhy principle to affirm the district court’s dismissal of a contempt action against a National Transportation Safety Board investigator who had refused to testify in a state court tort action pursuant to a similar regulation. We held that the investigator could not be compelled to testify over the contrary command of the validly promulgated regulation. Swett, 792 F.2d at 1451-52 (citing 49 C.F.R. § 835.-8(a)).⁷ Numerous other courts have also applied the Touhy doctrine to subpoenas seeking testimony, rather than documentary evidence, from subordinate federal officials. United States v. Bizzard, 674 F.2d 1382, 1387 (11th Cir.), cert. denied, 459 U.S. 973, 103 S.Ct. 305, 74 L.Ed.2d 286 (1982); Giza v. Secretary of Health, Educ. & Welfare, 628 F.2d 748, 751-52 (1st Cir.1980); United States v. Allen, 554 F.2d 398, 406-07 (10th Cir.), cert. denied, 434 U.S. 836, 98 S.Ct. 124, 54 L.Ed.2d 97 (1977); Giancana v. Johnson, 335 F.2d 372, 375-76 (7th Cir.1964); Appeal of the United States Securities & Exchange Comm’n, 226 F.2d 501, 516-20 (6th Cir.1955); Hotel Employees-Hotel Ass’n Pension Fund v. Timperio, 622 F.Supp. 606, 607-08 (S.D.Fla.1985); Reynolds Metals Co. v. Crowther, 572 F.Supp. 288, 290-91 (D.Mass.1982); Marcoux v. Mid-States Livestock, 66 F.R.D. 573, 577-79 (W.D.Mo.1975); North Carolina v. Carr, 264 F.Supp. 75, 78-80 (W.D.N.C.1967), appeal dism’d, 386 F.2d 129 (4th Cir.1967); In re Mengel, 201 F.Supp. 687, 689-90 (W.D.Pa.1962); see also Davis Enterprises, 877 F.2d at 1184-88 (upholding EPA decision, challenged under APA, not to permit testimony of subordinate official); Boron Oil, 873 F.2d at 69-72 (relying primarily on sovereign immunity and the Supremacy Clause). Cf. Moore, 927 F.2d at 1197-98 (upholding under APA standard a Health and Human Services Department decision to withhold a subordinate official’s testimony; issue raised on motion to quash subpoena). We conclude that, in the absence of a direct challenge to the Attorney General’s decision to withhold permission and a ruling that permission was improperly withheld, Boeh cannot be held in contempt for refusing to testify without permission, pursuant to 28 C.F.R. § 16.22(a).⁸

The district court attempted to draw a distinction between its order requiring Boeh to reveal the contents of his prospective testimony in camera and its order compelling Boeh’s testimony in open court. For the purposes of the Touhy doctrine, we see no distinction.⁹ Both orders are infirm. The district court cannot confer authority on Boeh to testify or reveal information in camera when the Attorney General has withdrawn that authority. Section 16.22(a) clearly reserves to the Attorney General or the properly designated official the authority to make the threshold determination whether to resist disclosure of official information in the hands of the Department. Touhy’s point that the department head is entitled to enforce centralized decisionmaking applies without regard to the setting in which the information will be divulged.

Finally, we address briefly a point strongly urged by the dissent. The last sentence of the housekeeping statute provides: “This section does not authorize withholding information from the public or limiting the availability of records to the public.” 5 U.S.C. § 301. This sentence was added in 1958, and the dissent cites legislative history indicating that the amendment was adopted in response to the executive’s increasing use of the housekeeping statute as a source of executive privilege. See H.R. No. 1461, 85th Cong.2d Sess. (1958), reprinted in 1958 U.S.C.C.A.N. 3352. That point is most certainly correct, but it does not address the question presented in this case or in Touhy: how is the validity of an assertion of executive privilege to be contested? Touhy held that it is not to be contested originally in a contempt proceeding against a subordinate who has been denied permission to respond to a subpoena. The House Report discussing the 1958 amendment is replete with statements that the housekeeping statute is not to be used as a source of executive privilege, but the report never states that the purpose of the amendment is to overrule Touhy and the amendment has never been so construed by courts. If the action of a department head is contested directly, as Touhy requires, then the 1958 amendment assures that the department head may not base an assertion of privilege on the housekeeping statute.

We understand the dissenting opinion’s point that it may be more cumbersome to challenge an assertion of privilege by an APA suit or mandamus action, but Touhy, Sackett and Swett preclude litigants and courts from first pursuing the option of contempt proceedings against subordinate officials who have been denied permission to respond to a subpoena. We follow those cases, and go no further “for the case as we understand it raises no question as to the power of the Attorney General himself to make such a refusal.” Touhy, 340 U.S. at 467, 71 S.Ct. at 419.

CONCLUSION

The orders of the district court are

REVERSED.

1 . The United States, as a purported real-party-in-interest, filed the original notice of appeal in this case. Richard Boeh filed a motion to intervene in this court on February 4, 1992. The motion clearly manifests Boeh's intent to appeal from the district court’s orders, and it was brought within the time permitted for filing of a notice of appeal. We therefore treat Boeh's motion as a notice of appeal. See Rabin v. Cohen, 570 F.2d 864, 866 (9th Cir.1978). We direct the Clerk of this court to transmit the motion to the Clerk of the district court for filing as a notice of appeal with a filing date of February 4, 1992.

In light of Boeh’s status as a party to this appeal, we need not address plaintiffs' arguments that the United States lacks standing to bring this appeal.

2 . Service of the subpoena was accepted by the untad States Attorney, on behalf of Boeh.

3 . Plaintiffs could have brought a separate action to challenge the Department's decision under the Administrative Procedure Act, 5 U.S.C. §§ 701-06. See Davis Enterprises v. EPA, 877 F.2d 1181, 1184-88 (3rd Cir.1989), cert. denied, 493 U.S. 1070, 110 S.Ct. 1113, 107 L.Ed.2d 1020 (1990); Appeal of the Sun Pipe Line Co., 831 F.2d 22, 24-26 (1st Cir.1987), cert. denied, 486 U.S. 1055, 108 S.Ct. 2821, 100 L.Ed.2d 922 (1988); see also Swett, 792 F.2d at 1452 n. 2 (suggesting that the proper method for challenging an agency's denial of permission is through a direct APA action). Plaintiffs may also have been able to bring a mandamus action against the Attorney General or his designee to require the granting of permission. See 28 U.S.C. § 1361. Such an attempt was unsuccessful in Giza v. Secretary of HEW, 628 F.2d 748 (1st Cir.1980), but there the plaintiffs in a state proceeding were seeking federal mandamus to compel a federal employee to be deposed as an expert witness. The court held that mandamus would not lie because there was no duty on the part of the federal agency to supply expert testimony for plaintiffs’ state court action. Id. at 751-52. These considerations would not preclude mandamus in a federal action to seek other than expert testimony. See Note, Touhy and the Housekeeping Privilege: Dead but not Buried?, 70 Tex.L.Rev. 685, 694 (1992).

4 . We therefore disagree with the dissenting opinion that this case presents the question left open in Touhy: "may the head of a federal agency make 'a conclusive determination' not to produce evidence sought by a federal court.” Infra p. 770 (emphasis added). On the contrary, we leave open the same question left open by Touhy. We do not rule on any question of executive privilege, and we certainly do not hold the Attorney General’s withholding of permission "conclusive.” Touhy held that a contempt proceeding against a subordinate who has been denied permission to respond to a subpoena does not present the question whether the superior officer’s denial of permission was valid. Touhy, 340 U.S. at 467, 71 S.Ct. at 418-19. We decide the same.

5 . For the same reasons, we need not reach the question of the effect of the last sentence of 5 U.S.C. § 301: "This section does not authorize withholding information from the public or limiting the availability of records to the public." This sentence might affect the question whether the Attorney General can prevail in the assertion of privileges once he is properly brought before the appropriate court.

6 . We have found only one case that, in the context of a motion to quash a subpoena against a subordinate officer, ruled upon the validity of the department’s refusal to grant permission to testify. In Moore v. Armour Pharmaceutical Co., 927 F.2d 1194 (11th Cir.1991), a litigant appealed from a district court's grant of a motion to quash filed by the Department of Health and Human Services. In affirming the order quashing, the court of appeals applied APA standards and upheld the validity of the HHS' regulation against testimony by physicians of the Center for Disease Control, as applied to the case before it. Id. at 1197-98.

In all of the other cases that we have found applying the Touhy rule to preclude the enforcement of a subpoena against a subordinate official, the agency's denial of permission was simply given effect. In addition to Swett and Sackett from this circuit, see, e.g., cases cited infra, p. 765-66.

7 . The underlying litigation in Swett had been removed from state court; therefore, we could have rested our decision on either the Supremacy Clause, U.S. Const. art. VI, cl. 2, or sovereign immunity. We did not, however; we upheld the district court’s dismissal of the contempt action on the basis of the Touhy doctrine without reference to the Supremacy Clause or sovereign immunity. Swett, 792 F.2d at 1451-52. For this reason, we do not find Swett to be readily distinguishable from our case, as the dissent urges.

8 . We emphasize that Boeh was not subpoenaed as a percipient witness to the events in issue in the civil trial. We need not address the questions of application or interpretation of section 16.22(a) that might be posed in such a case.

We also have no need to address here the substantial evidentiary questions that might be raised by plaintiffs’ attempt to introduce the testimony of Boeh as a non-percipient witness. See, e.g., Fed.R.Evid. 701, 702, 802.

9 . In Touhy, the Supreme Court observed that the subordinate employee had not been asked to submit the materials in camera, but that observation was of significance only because the regulation in Touhy, unlike section 16.22(a), authorized certain in camera disclosures. See Touhy, 340 U.S. at 466, 468, 71 S.Ct. at 418, 419.