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 governor Anibal Acevedo Vila and Senator Jorge DeCastro Font

 

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In The

Supreme Court of the United States

--------------------------------- ♦---------------------------------

COMMONWEALTH OF PUERTO RICO,

Petitioner,

v.

UNITED STATES OF AMERICA, et al.,

Respondents.

--------------------------------- ♦---------------------------------

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The First Circuit

--------------------------------- ♦---------------------------------

PETITION FOR A WRIT OF CERTIORARI

--------------------------------- ♦---------------------------------

ROBERTO J. SÁNCHEZ-RÁMOS

Secretary of Justice

SALVADOR J. ANTONETTI-STUTTS

Solicitor General

KENNETH PAMIAS-VELÁZQUEZ

Special Aide to the

Secretary of Justice

JORGE R. ROIG-COLÓN

Assistant Secretary of Justice

HIRAM A. MELÉNDEZ-JUARBE

Legal Advisor to the

Secretary of Justice

DEPARTMENT OF JUSTICE

COMMONWEALTH OF PUERTO RICO

P.O. Box 9020191

San Juan, PR 00902-0192

(787) 724-2165

TREVOR W. MORRISON

Counsel of Record

116 Myron Taylor Hall

Ithaca, NY 14853

(607) 255-9023

================================================================

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

i

QUESTIONS PRESENTED

1. Whether a State’s suit to obtain from the

federal government specific information and materials,

for the purposes of determining whether federal

officers or any other individuals have violated state

criminal law, is governed by the deferential standard

of review contained in the Administrative Procedure

Act.

2. Whether the federal government’s blanket

assertion of a “law enforcement privilege” is sufficient

to defeat a State’s request for the materials as part of

its own law enforcement efforts.

ii

PARTIES TO THE PROCEEDINGS

The petitioner is the Commonwealth of Puerto

Rico.

The respondents are the United States of America;

Michael Mukasey, Attorney General; Robert

Mueller, Director of the Federal Bureau of Investigation;

Rosa Emilia Rodríguez-Vélez, United States

Attorney for the District of Puerto Rico; and Luis S.

Fraticelli, Special Agent in Charge of the Federal

Bureau of Investigation in Puerto Rico.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................................ i

PARTIES TO THE PROCEEDING ..................... ii

TABLE OF CONTENTS ...................................... iii

TABLE OF AUTHORITIES................................. v

PETITION FOR A WRIT OF CERTIORARI ....... 1

OPINIONS BELOW............................................. 1

JURISDICTION................................................... 1

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED....................................... 1

INTRODUCTION ................................................ 2

STATEMENT OF THE CASE.............................. 5

REASONS FOR GRANTING THE PETITION... 14

I. The States’ Control Over Their Criminal

Laws Requires Clarification...................... 14

II. The Availability Of Judicial Review Not

Subject To APA Deference Requires Clarification

....................................................... 21

A. The Courts of Appeals are divided

over whether the APA’s deferential

standard of review governs suits such

as this one............................................ 21

B. The deference entailed in APA

§ 706(2)(A) is entirely inappropriate

in a case involving a sovereign’s control

of its criminal law......................... 26

iv

TABLE OF CONTENTS – Continued

Page

III. The Scope And Application Of The Law

Enforcement Privilege Requires Clarification

......................................................... 31

A. The Courts of Appeals disagree as to

the scope of the law enforcement

privilege, and are not clear as to its

application here................................... 31

B. The First Circuit erred in its broad,

categorical application of the law enforcement

privilege.............................. 34

CONCLUSION..................................................... 38

APPENDIX A, Opinion of the U.S. Court of

Appeals for the First Circuit, issued on June

15, 2007 ..........................................................App. 01

APPENDIX B, Opinion and Order of the U.S.

District Court for the District of Puerto Rico,

issued on September 26, 2006 .......................App. 52

APPENDIX C, Order of the U.S. Court of Appeals

for the First Circuit denying Petition

for Rehearing and Suggestion for Rehearing

En Banc, issued on August 29, 2007 .............App. 94

v

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Alden v. Maine, 527 U.S. 706 (1999)..........................19

Arizona v. Manypenny, 451 U.S. 232 (1981)........15, 27

Bd. of Governors of Fed. Reserve Sys. v. MCorp

Fin. Inc., 502 U.S. 32 (1991).......................28, 29, 30

Black v. Sheraton Corp. of America, 564 F.2d

531 (D.C. Cir. 1977).................................................33

Brecht v. Abrahamson, 507 U.S. 619 (1993)..............15

Chevron U.S.A., Inc. v. Natural Resources Def.

Council, 467 U.S. 837 (1984) ..................................29

City of Jackson v. Jackson, 235 F. Supp. 2d 532

(S.D. Miss. 2002) .....................................................16

City of New York v. Beretta U.S.A. Corp., 222

F.R.D. 51 (E.D.N.Y. 2004) .......................................37

Commonwealth of Puerto Rico v. United States,

490 F.3d 50 (1st Cir. 2007)........................................1

COMSAT Corp. v. National Science Found.,

190 F.3d 269 (4th Cir. 1999) .................21, 23, 26, 27

Cunningham v. Neagle, 135 U.S. 1 (1890).................16

Engle v. Isaac, 456 U.S. 107 (1982)............................15

Escobedo v. Illinois, 378 U.S. 478 (1964)...................17

Exxon Shipping Co. v. U.S. Dep’t of Interior, 34

F.3d 774 (9th Cir. 1994) ..................21, 22, 23, 24, 26

vi

TABLE OF AUTHORITIES – Continued

Page

Flowers v. Warden, 677 F. Supp. 1275 (D.

Conn.), rev’d on other grounds, 853 F.2d 131

(2d Cir. 1988)...........................................................17

Heath v. Alabama, 474 U.S. 82 (1985).........................4

Idaho v. Horiuchi, 253 F.3d 359 (9th Cir.),

vacated as moot, 266 F.3d 979 (9th Cir. 2001) .......16

Imbler v. Pachtman, 424 U.S. 409 (1976)..................17

In re Dep’t. of Investig. of the City of New York,

856 F.2d 481 (2d Cir. 1988) ...............................31, 33

In re Sealed Case, 856 F.2d 268 (D.C. Cir. 1988).......31

In re SEC ex rel. Glotzer, 374 F.3d 184 (2d Cir.

2004) ..................................................................21, 24

In re U.S. Dep’t of Homeland Sec., 459 F.3d 565

(5th Cir. 2006) .............................................31, 33, 37

Leedom v. Kyne, 358 U.S. 184 (1958).........................28

Linder v. Calero-Portocarrero, 251 F.3d 178

(D.C. Cir. 2001)......................................21, 22, 23, 24

Maryland v. Soper, 270 U.S. 36 (1926) 4, 17, 18, 36, 37

Massachusetts v. EPA, 127 S. Ct. 1438 (2007)...........26

Mesa v. California, 489 U.S. 121 (1989) ................4, 16

R.I. Dep’t of Envtl. Mgmt. v. United States, 304

F.3d 31 (1st Cir. 2002).............................................28

Roviaro v. United States, 353 U.S. 53 (1957) ......31, 32

Schiller v. City of New York, 244 F.R.D. 273

(S.D.N.Y. 2007)........................................................37

vii

TABLE OF AUTHORITIES – Continued

Page

Swanner v. United States, 406 F.2d 716 (5th

Cir. 1969) .................................................................33

U.S. Term Limits, Inc. v. Thornton, 514 U.S.

779 (1995) ................................................................15

United States ex rel. Drury v. Lewis, 200 U.S. 1

(1906).......................................................................16

United States v. Cintolo, 818 F.2d 980 (1st Cir.

1987) ........................................................................31

United States v. O’Neill, 619 F.2d 222 (3d Cir.

1980) ..................................................................31, 34

Willingham v. Morgan, 395 U.S. 402 (1969)..............16

FEDERAL CONSTITUTION AND STATUTES

U.S. Const. Amd. X.......................................................1

5 U.S.C. § 702 .......................................2, 21, 22, 23, 24

5 U.S.C. § 706(2)(A) ............................................passim

28 U.S.C. § 1254 ...........................................................1

28 U.S.C. § 1442(a) .....................................................16

Act of Feb. 4, 1815, ch. 31, § 8, 3 Stat. 195, 198-

99 .............................................................................15

Act of Mar. 3, 1817, ch. 109, §§ 2, 6, 3 Stat. 396,

397 ...........................................................................16

Act of Mar. 2, 1833, ch. 57, §§ 2-3, 4 Stat. 632,

633-34 ......................................................................16

Act of Mar. 3, 1863, ch. 81, § 5, 12 Stat. 755,

756-57 ......................................................................16

viii

TABLE OF AUTHORITIES – Continued

Page

Act of May 11, 1866, ch. 80, §§ 3-4, 14 Stat. 46,

46 .............................................................................16

Act of Feb. 5, 1867, ch. 27, 14 Stat. 385.....................16

Act of Mar. 3, 1911, ch. 231, § 33, 36 Stat. 1087,

1097 .........................................................................16

STATE STATUTES

34 P.R. Laws Ann. § 1476 .............................................9

OTHER AUTHORITIES

The Federalist No. 51 ...................................................5

1

PETITION FOR A WRIT OF CERTIORARI

Petitioner the Commonwealth of Puerto Rico

respectfully petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals

for the First Circuit.

--------------------------------- ♦---------------------------------

OPINIONS BELOW

The opinion of the First Circuit is reported at 490

F.3d 50 and is reprinted at App. 1-49. The opinion of

the district court is unreported and is reprinted at

App. 52-92.

--------------------------------- ♦---------------------------------

JURISDICTION

The First Circuit issued its decision on June 15,

2007. The Commonwealth’s timely petition for rehearing

and suggestion of rehearing en banc was

denied on August 29, 2007. App. 94. This Court has

jurisdiction under 28 U.S.C. § 1254.

--------------------------------- ♦---------------------------------

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

The Tenth Amendment to the United States

Constitution provides: “The powers not delegated to

the United States by the Constitution, nor prohibited

by it to the States, are reserved to the States respectively,

or to the people.”

2

The waiver of sovereign immunity contained in

the Administrative Procedure Act (APA) provides, in

pertinent part:

A person suffering legal wrong because of

agency action . . . is entitled to judicial review

thereof. An action in a court of the United

States seeking relief other than money damages

and stating a claim that an agency or an

officer or employee thereof acted or failed to

act in an official capacity or under color of legal

authority shall not be dismissed nor relief

therein be denied on the ground that it is

against the United States or that the United

States is an indispensable party.

5 U.S.C. § 702.

The APA also provides that a federal court called

upon to review agency action shall “hold unlawful

and set aside agency action, findings, and conclusions

found to be . . . arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” 5

U.S.C. § 706(2)(A).

--------------------------------- ♦---------------------------------

INTRODUCTION

This case presents fundamental questions about

the sovereign power of the States and the Commonwealth

of Puerto Rico to enforce their criminal laws.

It involves two consolidated district court cases, each

arising out of the issuance of a subpoena for Federal

Bureau of Investigation (FBI) records by the Puerto

3

Rico Department of Justice (PRDOJ). The PRDOJ

issued those subpoenas in an effort to investigate

whether any individuals, be they private citizens or

federal officers, violated Puerto Rico criminal law on

two separate occasions. The first involved the shooting

death of a Puerto Rico resident and the shooting

of one or more federal officers during an FBI intervention.

The second involved the pepper spraying of a

group of protestors and journalists by federal officers.

To determine whether Puerto Rico’s criminal laws

were violated during either of those incidents, the

PRDOJ requested various materials and information

from the FBI, including the names of the officers

involved, physical items used by the officers at the

events, and applicable FBI protocols and guidelines

governing the events. The FBI has refused the vast

majority of those requests. See infra n.3 (describing

the limited exceptions to the FBI’s general refusals).

Petitioner the Commonwealth of Puerto Rico

thereafter initiated proceedings in federal court,

seeking injunctions ordering the FBI to provide the

requested materials and information. The district and

circuit courts have declined to do so. The First Circuit

concluded that the federal judiciary’s only role in this

context is to review the FBI’s disclosure refusal under

the Administrative Procedure Act’s “arbitrary and

capricious” standard, 5 U.S.C. § 706(2)(A), an extremely

deferential form of review. Beyond that, the

First Circuit upheld the FBI’s across-the-board assertion

of “law enforcement privilege” with respect to the

requested materials and information, even though

4

the district court had not engaged in any in camera

review of the materials. The First Circuit’s treatment

of these issues deepens two separate disagreements

among the lower federal courts, regarding (1) the

applicability of the APA’s standard of review in contexts

such as this, and (2) the scope and application of

the law enforcement privilege.

The law in these areas is all the more uncertain –

and the cost of uncertainty much greater – where, as

here, the litigant adverse to the federal government is

no private party but a sovereign in the federal system,

seeking to investigate potential violations of its

criminal laws. The “power to create and enforce a

criminal code” is “[f]oremost among the prerogatives

of sovereignty.” Heath v. Alabama, 474 U.S. 82, 93

(1985). That sovereign prerogative extends to the

investigation and, where appropriate, prosecution of

federal officers for violating state criminal law. See,

e.g., Mesa v. California 489 U.S. 121 (1989) (affirming

the remand to state court of misdemeanormanslaughter

charges against federal postal officers);

Maryland v. Soper, 270 U.S. 36 (1926) (ordering the

remand to state court of state criminal charges

against federal prohibition officers). States cannot

exercise that authority, however, if they cannot

gather the information necessary to determine

whether their criminal laws have been violated and,

if so, whether a prosecution is warranted.

The decision below effectively precludes States

from doing just that. The result is uncertainty about

the extent to which the States retain control over the

5

administration of their criminal laws, as well as a

severe chilling of the States’ willingness and ability to

provide the check on federal power that the Founders

envisaged. See The Federalist No. 51 (James Madison)

(explaining that the Constitution is structured so

that “[t]he different governments will control each

other,” the better to “secur[e] . . . the rights of the

people”). The Court should grant certiorari to clarify

the existence and scope of this critical facet of state

sovereignty.

--------------------------------- ♦---------------------------------

STATEMENT OF THE CASE

A. Factual Background

This case involves two separate cases, consolidated

on appeal. Each arises out of the PRDOJ’s

issuance of a subpoena for materials and information

held by the FBI. We will discuss the facts of each case

in turn.

1. The Ojeda-Ríos Shooting. On September 23,

2005, FBI agents converged on a residence near

Hormigueros, Puerto Rico in an attempt to apprehend

Filiberto Ojeda-Ríos. App. 56. Ojeda-Ríos was one of

the founders of the Macheteros, an organization that

supports the pursuit of Puerto Rican independence by

various means, including armed struggle. App. 3. In

1990, while awaiting trial on robbery charges in

Connecticut, Ojeda-Ríos cut off his electronic monitoring

device and absconded. App. 56. He thereby became

a federal fugitive.

6

In September 2005, having determined Ojeda-

Ríos’s whereabouts in Puerto Rico, the FBI set in

motion plans to apprehend him. On the afternoon of

September 23, 2005, a team of FBI agents converged

on the Hormigueros residence, where they believed

Ojeda-Ríos to be hiding. A gunfight ensued.

A subsequent report by the Office of the Inspector

General in the U.S. Department of Justice (OIG)

determined that the gunfight lasted about two minutes,

that Ojeda-Ríos fired 19 rounds, and that at

least eight different FBI agents fired approximately

104 rounds. See Office of the Inspector General, U.S.

Department of Justice, A Review of the September

2005 Shooting Incident Involving the Federal Bureau

of Investigation and Filiberto Ojeda Ríos: Executive

Summary 15, 27 (Aug. 2006), available at http://www.

usdoj.gov/special/s0608/exec.pdf (hereinafter OIG

Report). The OIG concluded that “the FBI fired three

shots through the front door of the residence that

may have violated the [FBI’s] Deadly Force Policy.”

Id. at 28. Although the OIG stated that none of those

shots struck Ojeda-Ríos or his spouse (who was in the

residence during the gunfight and fled shortly thereafter),

1 it also noted that its own investigation was

limited by the fact that “the agents who we believe

1 The federal government initially took Ojeda-Ríos’s spouse

into custody, but then released her without pursuing any

charges. The Commonwealth of Puerto Rico’s investigation

encompasses any possible criminal conduct by anyone involved

in the incident, including Ojeda-Ríos’s spouse.

7

may have fired these shots declined to provide voluntary

follow-up interviews to the OIG.” Ibid.

The OIG stated that Ojeda-Ríos remained in the

residence after the shooting ended, and that he

responded to the entreaties of an FBI negotiator

outside the residence by saying that he wanted to

talk to a particular local news journalist. Id. at 17.

According to the OIG, Ojeda-Ríos held out the possibility

of his surrender if he was allowed to speak with

the journalist. Ibid. (“At some point, Ojeda responded,

‘I am not going to negotiate with any of you until you

bring the journalist Jesus Dávila. Then we can talk

about my surrender.’ ”). The dialog ended at that

point.

The OIG determined that the shot that killed

Ojeda-Ríos was fired at approximately 6:08 p.m., over

90 minutes after the initial exchange of gunfire had

ended. Id. at 16, 18. The OIG concluded that the fatal

shot was fired by an FBI sniper positioned outside the

house, with a view through the kitchen window. Id. at

18. The sniper reportedly told the OIG that he saw a

person open a refrigerator inside the house and then

crouch down, holding a gun in his left hand. Ibid. The

sniper then apparently fired three rounds in quick

succession, one of which hit Ojeda-Ríos. Id. at 18, 24.

The sniper reportedly told his FBI colleagues over the

radio that he thought he hit his target. Id. at 20.

In the early evening of September 23, the United

States Attorney’s Office in Puerto Rico informed the

PRDOJ that Ojeda-Ríos was likely dead or injured as

8

a result of a gunshot, and requested PRDOJ to send

local prosecutors to the Hormigueros residence. Id. at

21. Once local officials arrived at the scene, however,

FBI agents prevented them from entering the residence.

Moreover, although the OIG later found that

no sounds or movements were detected in the residence

following the sniper’s shots, id. at 20, the FBI

did not enter the residence until the following afternoon,

id. at 22. Upon entering, they found Ojeda-Ríos

lying dead on the floor. Ibid.

The Puerto Rico Institute of Forensic Sciences

subsequently performed an autopsy. According to the

OIG, the doctor in charge of the autopsy estimated

that Ojeda-Ríos “expired from loss of blood approximately

15 to 30 minutes after being shot.” Id. at 24.

The OIG also noted that the doctor “opined that

Ojeda could have survived the wound if he had received

immediate first aid and surgical care.” Ibid.

Although the OIG Report ultimately “did not

conclude that any of the actions of FBI officials constituted

misconduct,” id. at 42, it did “identif[y] a

number of deficiencies in the FBI’s conduct of the

Ojeda surveillance and arrest operation,” id. at 39.

The OIG found that “several of [the responsible FBI

officials’] decisions . . . reflected an inadequate assessment

of the known circumstances, or were either

contrary to or inconsistent with applicable FBI guidelines.”

Id. at 42.

Shortly after Ojeda-Ríos’s death, the PRDOJ

began a criminal investigation into the events leading

9

up to it. On October 4, 2005, the PRDOJ issued a

subpoena directing the United States Attorney in

Puerto Rico to produce certain materials and information

pertinent to its investigation.2 The requested

materials and information included (1) a copy of the

FBI’s “Operation Order” governing the Hormigueros

intervention; (2) the name, rank, and other identifying

information of each federal officer who participated

in or made decisions regarding the intervention; (3)

various equipment used by the federal officers involved,

including weapons; (4) any inventory of the

Hormigueros property; (5) copies of any expert reports

relating to the intervention or to Ojeda-Ríos’s death;

(6) copies of any photographs or recordings of the

intervention; and (7) copies of any relevant FBI

protocols, including those related to violent interventions

and the use of deadly force. App. 4.

The FBI refused to allow the PRDOJ access to

the vast majority of the requested materials.3 Of

2 The subpoena was issued pursuant to section 1 of the

Commonwealth of Puerto Rico’s Act No. 3 of March 18, 1954, 34

P.R. Laws Ann. § 1476, which provides:

Any person summoned as a witness by any prosecuting

attorney or magistrate shall be bound to appear and testify

or produce books, records, correspondence, documents,

or other evidence required of him in any criminal

investigation, proceeding, or process.

3 The only exceptions were the bulletproof vests, helmets,

weapons, and vehicles used in the intervention, as well as

photographs taken before, during, and after the intervention.

The FBI stated that it would grant the PRDOJ limited inspection

of those materials but that the FBI would maintain custody

(Continued on following page)

10

particular significance, the FBI refused to provide

any information about the FBI agents involved in

Ojeda-Ríos’s death (who are, along with Ojeda-Ríos’s

spouse, the only living witnesses of the event) or the

protocols and orders governing the intervention. The

Commonwealth of Puerto Rico ultimately filed suit in

federal district court to compel disclosure of the

requested materials and information.

2. The Events at 444 de Diego. Using information

obtained during the intervention at the Hormigueros

property, the FBI obtained a search warrant

for a residence at 444 de Diego in San Juan. App. 5.

The FBI executed the warrant in February 2006.

While the search was proceeding, a crowd of protestors,

journalists, and members of the general public

gathered outside the residence. Ibid. A number of

journalists in the crowd later filed formal complaints

with the PRDOJ, alleging that federal agents injured

them while they were covering the search. They

provided photographs and a video that they had

taken of two FBI agents who, the journalists alleged,

had used pepper spray against them.

To investigate whether there had been any

criminal wrongdoing during the incident, the PRDOJ

again issued subpoenas directing the United States

Attorney and the FBI special agent in charge of the

Puerto Rico field office to produce three categories of

of them at all times, and that an FBI official would be present

throughout the inspection. App. 4-5.

11

materials and information: (1) the name, rank, and

other identifying information of the two FBI agents

who allegedly used pepper spray during the incident;

(2) official photographs of those two agents; and (3)

copies of any relevant FBI protocols governing the use

of force and pepper spray.

The FBI moved to quash the subpoenas in federal

district court. After holding a hearing on the motion,

the district court issued an order declining to quash

the subpoenas but also not dismissing the motion to

quash. The Commonwealth of Puerto Rico thereafter

filed suit in federal district court to compel disclosure

of the requested materials.

B. Proceedings Below

The above-mentioned suits invoked the district

court’s federal question jurisdiction (see 28 U.S.C.

§ 1331) and asserted five different causes of action.

Most pertinently here, they asserted a nonstatutory

cause of action to vindicate the Commonwealth’s

sovereign authority to enforce its criminal laws. App.

7. In the alternative, the complaints asserted that, to

the extent the complaints had to be evaluated under

the APA, the FBI’s refusal to produce the requested

materials was arbitrary, capricious, and an abuse of

discretion under 5 U.S.C. § 706(2)(A). Ibid. As for

relief, the Commonwealth sought a declaration that

the federal defendants’ refusal to produce the requested

materials and information constituted an

unconstitutional impairment of the Commonwealth’s

12

sovereign authority, as well as an injunction ordering

the defendants to produce the subpoenaed information.

App. 6-7.

The district court consolidated the cases, and the

federal government moved to dismiss. App. 62-63.

The court determined that the Commonwealth’s

sovereign authority to enforce its criminal laws did

not support a nonstatutory cause of action to obtain

the requested materials. App. 81. Accordingly, the

court dismissed the nonstatutory components of the

two suits. The court also granted summary judgment

for the federal government on the Commonwealth’s

APA claims. App. 91. It concluded that the FBI’s

refusal to comply with the Ojeda-Ríos subpoenas was

neither arbitrary nor capricious. With respect to the

444 de Diego subpoenas, the court decided that there

had been no final agency action and thus that the

FBI’s refusal to comply with the subpoenas was not

subject to judicial review. App. 85.

The First Circuit affirmed. App. 1-49. The court

first determined that federal sovereign immunity did

not pose an obstacle to the Commonwealth’s nonstatutory

cause of action, reasoning that Congress had

waived that immunity for purposes of suits like these.

But it concluded that such an action was nonetheless

unavailable because the APA provided “a means of

vindicating [the Commonwealth’s] right[ ]” to enforce

its criminal laws, and because “the existence of the

APA as a means for reviewing the FBI’s actions at

least implies that nonstatutory review is inappropriate.”

App. 16-17. In short, the court concluded that

13

“when a state’s interest in investigating the agents of

a federal law enforcement entity arguably conflicts

with that federal entity’s need to protect certain

information relating to law enforcement activities,

Congress has provided a mechanism – the APA – for

resolving these conflicts.” App. 17.

Applying the APA, the First Circuit concluded

that the FBI’s refusal to produce the requested materials

was not “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.”

App. 18 (quoting 5 U.S.C. § 706(2)(A)). The court

found that the federal government was entitled to

assert what it termed a “qualified” law enforcement

privilege against having to disclose information about

“law enforcement techniques and procedures.” App.

26. And although it suggested that this privilege is

“subject to balancing the federal government’s interest

in preserving the confidentiality of sensitive law

enforcement techniques against the requesting

party’s interest in disclosure,” App. 26-27, the court

ultimately upheld the federal government’s assertion

of privilege across the board. App. 43. Thus, the

privilege was upheld without any judge, district or

circuit, actually engaging in any in camera inspection

of the materials in question, much less any concrete

and particularized weighing of the interests for and

against disclosure of the discrete items and information

in question.

In reaching its conclusion, the First Circuit

professed an awareness of the Commonwealth’s

argument that “the FBI’s decision to withhold the

14

[requested] information raises the possibility that a

federal agency may thwart state criminal proceedings

against one of its own employees.” App. 37-38. Noting

that federal officers are not immune from state

prosecution except for actions taken “within the scope

of official duties,” the court stated that it was

“troubl[ed]” by the prospect of thwarting legitimate

state investigations and prosecutions in this manner.

App. 38. But it concluded that those worries were

unfounded in this case. In so holding, the court relied

in part on the fact that, with respect to the Ojeda-

Ríos shooting, the federal OIG Report “did not conclude

that any of the actions of FBI officials constituted

misconduct.” App. 38-39 (quoting OIG Report at

42). In other words, the court saw the OIG Report as

an adequate though “imperfect substitute” for the

Commonwealth’s own independent and informed

judgment about whether its criminal laws had been

violated. App. 39. Accordingly, the court saw no

arbitrariness in subordinating the Commonwealth’s

control over its laws to the FBI’s blanket assertions of

privilege.

--------------------------------- ♦---------------------------------

REASONS FOR GRANTING THE PETITION

I. States’ Control over Their Criminal Laws

Requires Clarification.

The decision below raises two discrete questions

meriting this Court’s plenary review. We discuss them

below in Parts II and III, infra. Both questions,

15

however, implicate the same basic issue that is at the

heart of this case, and that itself provides a compelling

reason for granting the petition. Put simply, that

issue is whether States retain the sovereign authority

to determine for themselves whether their criminal

laws have been violated and, if so, whether to prosecute

those responsible.

The Framers of the Constitution “split the atom

of sovereignty,” U.S. Term Limits, Inc. v. Thornton,

514 U.S. 779, 838 (1995) (Kennedy, J., concurring),

such that “[t]he States,” not the federal government,

“possess primary authority for defining and enforcing

the criminal law.” Brecht v. Abrahamson, 507 U.S.

619, 635 (1993) (quoting Engle v. Isaac, 456 U.S. 107,

128 (1982)). In recognition of that preeminence, this

Court has implemented “a strong judicial policy

against federal interference with state criminal

proceedings.” Arizona v. Manypenny, 451 U.S. 232,

243 (1981) (citations and internal quotation marks

omitted). Historically, that policy of federal noninterference

has applied even where, as here, the

potential suspects or defendants include federal

employees.

Ever since the Founding, States have retained

substantial authority to prosecute federal officers for

violating state criminal law. Congress has long recognized

that authority. Starting as early as 1815, it

from time to time enacted measures providing for the

removal to federal court of certain state prosecutions

(and civil suits) against certain federal officers. See,

e.g., Act of Feb. 4, 1815, ch. 31, § 8, 3 Stat. 195, 198-99;

16

Act of Mar. 3, 1817, ch. 109, §§ 2, 6, 3 Stat. 396, 397;

Act of Mar. 2, 1833, ch. 57, §§ 2-3, 4 Stat. 632, 633-34;

Act of Mar. 3, 1863, ch. 81, § 5, 12 Stat. 755, 756-57,

amended by Act of May 11, 1866, ch. 80, §§ 3-4, 14

Stat. 46, and Act of Feb. 5, 1867, ch. 27, 14 Stat. 385;

Act of Mar. 3, 1911, ch. 231, § 33, 36 Stat. 1087, 1097.

Congress ultimately included a removal provision

covering all federal officers in the Judicial Code of

1948, see Willingham v. Morgan, 395 U.S. 402, 406

(1969), and a version of that provision remains in

effect today, see 28 U.S.C. § 1442(a). The very existence

of these removal provisions confirms the power

of the States to bring criminal actions against federal

officers.4

4 Removal is not available in all state prosecutions of

federal officers; the defendant must raise a colorable federal

defense to qualify. Mesa v. California, 489 U.S. 121, 139 (1989).

That allegation may also create the basis for defeating the

underlying charges, see Cunningham v. Neagle, 135 U.S. 1, 75

(1890), though such a defense certainly does not exist in all

cases. See United States ex rel. Drury v. Lewis, 200 U.S. 1, 7

(1906) (“The general jurisdiction, in time of peace, of the civil

courts of a state over persons in the military service of the

United States, who are accused of a capital crime or of any

offence against the person of a citizen, committed within the

state, is, of course, not denied.”); Idaho v. Horiuchi, 253 F.3d

359, 366 (9th Cir.) (en banc) (Kozinski, J.) (“[A] state may

prosecute federal agents if they have acted unlawfully in

carrying out their duties.”), vacated as moot, 266 F.3d 979

(2001); City of Jackson v. Jackson, 235 F. Supp. 2d 532, 534 (S.D.

Miss. 2002) (“Supremacy Clause immunity is not absolute. . . .

[A] state may prosecute federal agents if they have acted

unlawfully in carrying out their duties.”). But whatever the

contours of the officer’s defenses, the critical point for present

(Continued on following page)

17

The authority to prosecute naturally entails the

authority to investigate. See Imbler v. Pachtman, 424

U.S. 409, 430-31 & n.33 (1976) (recognizing “aspects

of the prosecutor’s responsibility that cast him in the

role of an . . . investigative officer,” and noting that

“[p]reparation, both for the initiation of the criminal

process and for a trial, may require the obtaining,

reviewing, and evaluating of evidence”); Escobedo v.

Illinois, 378 U.S. 478, 492 (1964) (affirming “the

powers of the police to investigate an unsolved crime

. . . by gathering information from witnesses and by

other proper investigative methods”) (internal citations

and quotation marks omitted); Flowers v. Warden,

677 F. Supp. 1275, 1280 (D. Conn.) (“Pursuant to

its police powers, the state investigates, prosecutes,

tries and punishes criminal misconduct.”), rev’d on

other grounds, 853 F.2d 131 (2d Cir. 1988). The fact

that the subjects of the investigation are federal

officers does not displace this basic principle. Thus in

Maryland v. Soper, 270 U.S. 36 (1926), a case involving

the state prosecution of federal prohibition officers

for homicide and for obstruction of justice and

perjury, the Court stressed that without regard to

whether the officers might be able to raise a federal

defense against any of the charges, the State had the

authority, in the first instance, to investigate whether

any of its laws had been broken. “The right of the

purposes is that States have always retained the basic authority

to decide in the first place whether to pursue criminal charges

against federal officers.

18

state to inquire into suspected crime in its territory,”

the Court explained, “justifies the use of investigation

by its officers and the questioning of suspected persons

under oath,” including of the “federal officers

under suspicion.” Id. at 42. This is a matter of “right”;

it is not merely at the sufferance of the federal authorities.

Ibid. Put simply, a State’s sovereign control

of its laws includes the right to question federal

suspects and to otherwise investigate potential violations

of its laws.

The decision below threatens to undo this dimension

of our federalism. At every turn, the Commonwealth

of Puerto Rico has been denied access to the

information it needs to determine whether any of its

laws were violated during either of the incidents in

question, and by whom. In the case of the Ojeda-Ríos

shooting, the First Circuit acknowledged that allowing

the FBI to withhold the information in question

“raise[d] the possibility that a federal agency may

thwart state criminal proceedings against one of its

own employees.” App. 37-38. But it deemed those

concerns adequately answered by the fact that the

OIG Report – a report commissioned and produced by

an office within the very federal agency whose employees

were responsible for the shooting – “did not

conclude that any of the actions of FBI officials constituted

misconduct.” App. 38-39 (quoting OIG Report

at 42). The OIG Report provided no such adequate

answers, however. First, the OIG did not reach an

affirmative finding that the officers involved committed

no misconduct during the Ojeda-Ríos incident; it

19

simply “did not conclude” that there had been misconduct.

Second, by the OIG’s own admission, its

investigation was hampered by its need to rely on the

voluntary cooperation of the FBI officers involved. On

certain key issues the officers simply “declined” the

OIG’s request for follow-up statements or other

clarifications, leaving the OIG with unanswered

questions. OIG Report at 25, 28. Third, even with the

limitations just mentioned, the OIG “identified a

number of deficiencies in the FBI’s conduct of the

Ojeda surveillance and arrest operation,” id. at 39,

including “inadequate assessment of the known

circumstances” and violation of “or inconsisten[cy]

with applicable FBI guidelines,” id. at 42. At the very

least, then, the OIG Report confirms that the events

leading up to and during the Ojeda-Ríos shooting

provide substantial cause for concern. Given that, the

First Circuit’s willingness to displace the Commonwealth’s

own sovereign authority to investigate

possible violations of its laws is especially worrisome.

Indeed, whatever the quality of the OIG Report’s

findings, the critical point is that no federal entity –

agency, office, or court – has the authority to dictate

to a State what to conclude with respect to potential

violations of its laws. Cf. Alden v. Maine, 527 U.S.

706, 715 (1999) (States “are not relegated to the role

of mere provinces or political corporations”). The

power to investigate possible violations and to bring

charges where appropriate belongs to the State alone.

The decision below flies in the face of this basic

principle of state sovereignty, casting the principle

20

itself in doubt. This Court’s review is necessary to

confirm States’ continued, meaningful authority over

their criminal laws.

To be clear, the Commonwealth does not come

before this Court having already determined to file

criminal charges (against a federal officer or anyone

else) in connection with either of the underlying

events at issue here. Nor does the Commonwealth

deny that, if it were to pursue criminal charges

against any federal officers in these matters, the

officers could potentially assert immunity to the

extent that they were acting within the bounds of

their lawful federal authority. It is far too soon to

know whether any such assertion might prevail, and

that very uncertainty illustrates what is at stake in

this case. Fundamentally, this case is about: the

Commonwealth’s – indeed, any State’s5 – authority to

gather evidence regarding events of concern within

its jurisdiction precisely so that it can determine

whether its laws have been violated, who might be

responsible for the violations, what if any defenses or

5 The First Circuit’s decision does not draw any distinction

between the sovereign authority of the Commonwealth of Puerto

Rico and the authority of any State of the Union. Moreover, the

United States has conceded that, for purposes of the issues

presented in this case, the Commonwealth stands on the same

footing as any State. See Ct. App. Appendix at 249, 274 (“The

governmental status of the Commonwealth is immaterial.”); id.

at 245, 266 (“The Commonwealth of Puerto Rico attempts to

assert rights which no sovereign, whether state or foreign

nation, may properly assert. . . .”).

21

immunities they might be able to assert, and, finally,

what if any criminal charges are appropriate. Denying

the States that authority nullifies a critical component

of their sovereignty.

II. The Availability of Judicial Review Not

Subject to APA Deference Requires Clarification.

A. The Courts of Appeals are Divided Over

Whether the APA’s Deferential Standard

of Review Governs Suits Such as This

One.

In concluding that the Commonwealth’s suit is

subject to the APA’s deferential standard of review,

the First Circuit deepened a disagreement among the

courts of appeals. The Court should grant certiorari

to resolve the disagreement.

The APA waives the federal government’s sovereign

immunity from federal court “action[s] seeking

relief other than money damages” on account of a

federal agency’s or employee’s alleged unlawful

conduct. 5 U.S.C. § 702. The courts of appeals (including

the First Circuit below, see App. 11) are in general

agreement that this waiver covers attempts to compel

agency compliance with subpoenas. See, e.g., In re

SEC ex rel. Glotzer, 374 F.3d 184, 189-90 (2d Cir.

2004); COMSAT Corp. v. National Science Found.,

190 F.3d 269, 274 (4th Cir. 1999); Exxon Shipping Co.

v. U.S. Dep’t of Interior, 34 F.3d 774, 779 n.9 (9th Cir.

1994); Linder v. Calero-Portocarrero, 251 F.3d 178,

22

181 (D.C. Cir. 2001).6 They are divided, however, on

the question whether and in what circumstances such

“action[s]” are subject to the deferential review

imposed by 5 U.S.C. § 706(2)(A).

Some courts, including the Ninth and D.C. Circuits,

do not confine suits of this sort to review under

APA § 706(2)(A). See Exxon, 34 F.3d 774; Linder, 251

F.3d 178. In Exxon, a suit to compel a number of

federal agencies to comply with discovery requests

relating to a separate civil action between private

parties, the Ninth Circuit held that although the

agencies’ initial refusals constituted the kind of

agency action eligible for review under APA

§ 706(2)(A), the plaintiffs were not confined to such

review. See 34 F.3d at 780 n.11. A suit seeking APA

review was possible but not required. Requiring APA

review, the court observed, could be “inconvenient to

litigants” and might “effectively eviscerate any right to

the requested testimony.” Ibid. (internal quotation

marks and alterations omitted). Thus the court found no

bar to the exercise of what amounted to nonstatutory

6 In each of the cases just cited, the plaintiff ’s subpoena or

other request for information was made in order to advance its

position in a separate judicial or arbitral proceeding. No such

separate action has yet been filed here; the Commonwealth first

needs access to the information in question in order to determine

whether its laws have been broken and whether any

charges should be filed. But none of the cases hold that § 702’s

waiver of sovereign immunity covers only circumstances where a

separate action is pending, nor is there any reason to confine it

in that way.

23

review of the plaintiff ’s claims. In that posture, the

claims were to be resolved according to the ordinary

rules governing discovery requests, including any

privileges the government might assert. See id. at

780. The deference to federal agency decisions entailed

in APA-style review was not warranted.

Similarly in Linder, an action to enforce subpoenas

served on various federal agencies in connection

with a separate case to which the government was

not a party, the D.C. Circuit emphasized that it had

“never read the waiver contained in APA § 702 to be

limited by APA § 706.” 251 F.3d at 181. Noting that

“[n]othing in the language of § 702 indicates that it

applies only to actions under § 706,” the court instead

applied “the ordinary standard of review to determine

whether a district court properly considered the

motion to compel production.” Ibid. As in Exxon, then,

the court resolved the issue before it without granting

the federal government the deference ordinarily

called for by the APA.

In stark conflict with the Ninth and D.C. Circuits,

the Fourth Circuit treats APA § 706’s deferential

standard as a “limitation upon th[e] waiver” of

sovereign immunity contained in § 702. COMSAT,

190 F.3d at 277. Thus, the court in COMSAT held

that where a federal agency is subpoenaed in connection

with an arbitration to which the government is

not a party, a suit against the agency to enforce the

subpoena must be governed by § 706. Id. at 271, 277.

In the court’s view, “[w]hen an agency is not a party

to an action, its choice of whether or not to comply

24

with a third-party subpoena is essentially a policy

decision about the best use of the agency’s resources.”

Id. at 278. Applying § 706, the court determined that

a reviewing court may set aside such a decision only

if it is “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with the law.” Id. at 274.

The Fourth Circuit adopted its approach “in full

recognition” that it is irreconcilable with the Ninth

Circuit’s Exxon decision, stating simply that it “decline[

d] to follow th[at] holding.” Id. at 277. The D.C.

Circuit’s later decision in Linder explicitly confirmed

and further entrenched the split. See 251 F.3d at 180

(discussing the conflict between the Fourth and Ninth

Circuits and aligning itself with the latter). More

recently, the Second Circuit has recognized the disagreement

but has declined to take a position on the

issue. See In re SEC ex rel. Glotzer, 374 F.3d at 190-91

(citing Exxon and Linder and recognizing that “some

of our sister circuits have affirmatively held that APA

§ 706 does not apply to motions to compel agency

compliance with subpoenas,” but adhering to an

earlier decision declining to take a position on the

issue). In short, the disagreement among the circuits

on this issue is well-recognized, sharp, and mature.

The decision of the First Circuit in this case only

adds to the inconsistency among the circuits. Although

it concluded that the Commonwealth’s suit

was subject to APA § 706(2)(A), it did so for reasons

other than those relied upon by the Fourth Circuit.

Rather than treating APA § 702’s waiver as categorically

limited to review under § 706, the First Circuit

25

held that § 706(2)(A) applied unless the Commonwealth

could satisfy what it described as a two-part

test for entitlement to nonstatutory review. App. 15.

As it articulated that test, nonstatutory review is

available (1) “only if its absence would wholly deprive

the party of a meaningful and adequate means of

vindicating its rights,” and (2) only so long as “Congress

. . . ha[s] [not] clearly intended to preclude

review of the agency’s particular determination.” Ibid.

(internal quotation marks and citations omitted). As

we discuss below, the First Circuit’s application of the

two-part test was based upon a misreading of this

Court’s precedents. But whatever its merits, the First

Circuit’s analysis compounded an already entrenched

disagreement among the circuits, creating what

amounts to a three-way split over how to address the

issue.

There is, in short, pervasive disagreement among

the courts of appeals about how to treat a federal suit

to compel agency compliance with subpoenas or other

informational requests relating to separate proceedings

or investigations. The disagreement is of substantial

consequence in this case. Under the approach

adopted by the Ninth and D.C. Circuits, the Commonwealth

would not have to overcome the heavy

deference to federal agency decision making that APA

§ 706(2)(A) entails. In contrast, the First Circuit’s

approach (and the Fourth Circuit’s, which is even more

extreme) effectively treats the relevant federal agency

– here, the FBI – as the principal decision maker. As

we discuss in the next section, that treatment is

26

fundamentally at odds with state sovereign control

over state criminal law. The point here, though, is

that it is an approach in irreconcilable tension with

that of the Ninth and D.C. Circuits. The Court should

grant the petition to relieve that tension by clarifying

the law in this area.

B. The Deference Entailed in APA § 706(2)(A)

Is Entirely Inappropriate in a Case Involving

a Sovereign’s Control of Its

Criminal Law.

As the Ninth Circuit recognized in Exxon, applying

the APA’s standards to a suit to compel federal

compliance with a subpoena or other informational

request risks imposing undue burdens on the party

seeking the information, and might even “effectively

eviscerate any right” to the information itself. 34 F.3d

at 780 n.11 (internal quotation marks and alterations

omitted). That risk is all the more grave when the

party seeking the information is a sovereign in the

federal system, and when it needs the information in

order to decide whether and how to administer its

criminal laws. Cf. Massachusetts v. EPA, 127 S. Ct.

1438, 1454 (2007) (“States are not normal litigants for

the purposes of invoking federal jurisdiction.”).

The Fourth Circuit’s opinion in COMSAT illustrates

the problem. That case involved a private

plaintiff attempting to obtain information from the

federal government in order to improve its position in

a separate proceeding against another private entity.

27

Describing the case as pitting a private litigant’s

interests against the “public” interests of the federal

agency, the court determined that “the decision to

permit employee testimony is committed to the

agency’s discretion.” 190 F.3d at 278. “[A] third party

subpoena will [not],” the court insisted, “provide the

private litigant with guaranteed access, at public

expense, to the testimonial evidence of agency employees.”

Ibid.

However accurate an appraisal of the competing

interests in that case, the Fourth Circuit’s description

does not capture the values at stake in a suit by a

State to enforce its sovereign control of its criminal

laws. Cases like this one do not involve private litigants

attempting to deploy public resources to their

advantage in a private dispute; they involve a sovereign

seeking the information it needs to exercise its

exclusive authority to decide whether and how to

enforce its criminal laws. To commit the information

disclosure decision to a federal agency’s discretion

would be to say that the agency – here, the FBI – can

decide whether a State may enforce its criminal laws.

It would entail an abandonment of the “strong judicial

policy against federal interference with state

criminal proceedings.” Manypenny, 451 U.S. at 243.

The same problem plagues the First Circuit’s

application of the two-part test it identified for the

availability of nonstatutory review. As an initial matter,

it is far from clear that the test should govern cases like

this at all. This Court’s cases on nonstatutory review

are concerned principally with determining whether

28

judicial review should be available in the absence of

final agency action, and thus in an earlier posture

than the law would ordinarily allow. See, e.g., Bd. of

Governors of Fed. Reserve Sys. v. MCorp Fin. Inc., 502

U.S. 32, 44 (1991) (denying nonstatutory review in

part on the ground that “Congress intended to deny

the District Court jurisdiction to review and enjoin

the Board’s ongoing administrative proceedings”); see

also R.I. Dep’t of Envtl. Mgmt. v. United States, 304

F.3d 31, 42 (1st Cir. 2002) (describing the Court’s

nonstatutory review cases, including Leedom v. Kyne,

358 U.S. 184 (1958), as recognizing “a narrow exception

to the general rule of exhaustion for review of

administrative action”). But everyone concedes that

final agency action is present in at least one of the

two underlying cases at issue here (the one involving

the FBI’s refusal to disclose information relating to

the Ojeda-Ríos shooting).7 The FBI’s refusal to comply

with the PRDOJ’s subpoenas is final; there are no

other avenues of potential administrative relief. By

its terms, therefore, the two-part test employed by

the First Circuit should not apply here.

Even if the two-part test does extend to this case,

the First Circuit’s application of it seriously misconceives

the interests at stake. The first part of the test

7 The Commonwealth maintains that the FBI’s refusal to

disclose information relating to the 444 de Diego incident,

followed by the filing of a motion to quash the subpoena requesting

information relating to the incident, also entailed the

requisite final agency action.

29

asks whether precluding nonstatutory review would

deny the plaintiff of a “meaningful and adequate

opportunity for judicial review.” MCorp, 502 U.S. at

43. The First Circuit answered that question in the

negative on the ground that APA § 706(2)(A) provides

“a means of vindicating [the Commonwealth’s]

rights.” App. 16. As already described, however, APA

§ 706(2)(A) applies in circumstances where the federal

agency has principal policymaking authority. It

is premised on the proposition that the agency is the

institution with the greatest institutional expertise in

the area and that such expertise justifies granting

the agency broad discretion to balance competing

interests as it sees fit. See generally Chevron U.S.A.,

Inc. v. Natural Resources Def. Council, 467 U.S. 837

(1984). The First Circuit’s analysis in this case rested

on just such a premise: It substantially deferred to

the FBI’s refusal to produce the requested materials

and information on the ground that the refusal was

“essentially a policy decision about the best use of the

agency’s resources.” App. 19 (internal quotation

marks and citations omitted).

Such “agency deference” is entirely out of order in

this context. First, as discussed in Part III, infra,

resolving the disclosure issue in this case ultimately

requires the construction and application of the

judicially created doctrine of “law enforcement privilege.”

That privilege is a creature of judicial creation.

Neither Congress nor the courts have delegated to

any federal agency the primary authority to articulate

or apply the privilege. Thus, judicial resolution of

30

the assertion of law enforcement privilege ought to

entail de novo consideration. The deferential standard

of review prescribed by the APA is entirely

inappropriate in this context.

Second, agency deference is especially inappropriate

in cases, like this one, implicating the investigation

and possible prosecution of state criminal law

violations. The State alone has the authority to decide

whether, when, and against whom to enforce its

criminal laws. In the context of judicial review of a

State’s attempts to obtain the information it needs to

enforce its laws, any rule that would require deference

to the nondisclosure decisions of a federal agency

would “deprive [the State] of a meaningful and adequate

means of vindicating” its control over its laws.

MCorp, 502 U.S. at 43.

To be sure, as discussed below, the courts may be

called upon to weigh a State’s request for certain

materials or information against the federal government’s

interest in nondisclosure as reflected in, for

example, an assertion of law enforcement privilege.

But that review must not be governed by APA

§ 706(2)(A), lest a federal agency be given primacy

over both the federal courts (which are responsible for

construing and applying the law enforcement privilege

they have created) and the States (which must

be granted preeminent oversight of their own laws).

31

III. The Scope and Application of the Law

Enforcement Privilege Requires Clarification.

A. The Courts of Appeals Disagree as to

the Scope of the Law Enforcement

Privilege, and Are Not Clear as to Its

Application Here.

In Roviaro v. United States, 353 U.S. 53, 59

(1957), this Court recognized a qualified privilege in

the federal government to “withhold from disclosure

the identity of persons who furnish information of

violations of law to officers charged with enforcement

of that law.” In the five decades since Roviaro was

decided, the lower courts have expanded this limited

privilege in numerous and varied ways, often embracing

a much broader concept that has become known

as a “law enforcement privilege.” See, e.g., United

States v. Cintolo, 818 F.2d 980, 983-84 (1st Cir. 1987);

In re Dep’t. of Investig. of the City of New York, 856

F.2d 481 (2d Cir. 1988); United States v. O’Neill, 619

F.2d 222, 229-30 (3d Cir. 1980); In re U.S. Dep’t of

Homeland Sec., 459 F.3d 565, 568-69 (5th Cir. 2006);

In re Sealed Case, 856 F.2d 268, 272 (D.C. Cir. 1988).

The proper contours of the privilege in this area are

now quite uncertain. This Court’s review is required

to bring clarity to the law.

The privilege described in Roviaro has no application

to a case such as this. As the Court there

explained,

32

The purpose of the privilege is the furtherance

and protection of the public interest in

effective law enforcement. The privilege recognizes

the obligation of citizens to communicate

their knowledge of the commission of

crimes to law-enforcement officials and, by

preserving their anonymity, encourages them

to perform that obligation. The scope of the

privilege is limited by its underlying purpose.

Thus, where the disclosure of the contents

of a communication will not tend to

reveal the identity of an informer, the contents

are not privileged.

353 U.S. at 59-60. Understood this way, the privilege

is concerned with not deterring innocent citizens from

coming forward to tell the government what they

know about criminal activity. That concern is not

present where, as here, the privilege is invoked to

conceal information about individuals who themselves

may be guilty of criminal wrongdoing, thus impeding

the efforts of a government with jurisdiction to investigate

and prosecute such wrongdoing. If “[t]he scope

of the privilege is limited by its underlying purpose,”

id. at 60, then the privilege recognized in Roviaro

simply has no application here, and the Court should

confirm that.

Beyond the narrow Roviaro privilege, the lower

courts have embraced different versions of a law

enforcement privilege. The D.C. Circuit has recognized

a privilege protecting “a public interest in

minimizing disclosure of documents that would tend

to reveal law enforcement investigative techniques or

33

sources.” Black v. Sheraton Corp. of America, 564

F.2d 531, 545 (D.C. Cir. 1977). The Second Circuit has

articulated a similar privilege designed to “prevent

disclosure of law enforcement techniques and procedures,

to preserve the confidentiality of sources, to

protect witness and law enforcement personnel, to

safeguard the privacy of individuals involved in an

investigation, and otherwise to prevent interference

with an investigation.” In re Dep’t of Investig. of City

of New York, 856 F.2d at 484.

Other courts describe the privilege more narrowly.

The Fifth Circuit, for example, acknowledges

“the existence of a law enforcement privilege beyond

that allowed for identities of confidential informants

[i.e., the Roviaro privilege],” but it relates the privilege

to “information about ongoing criminal investigations”

by the federal government. In re U.S. Dept.

of Homeland Sec., 459 F.3d at 569, 568 (emphasis

added). “[T]he purpose of the privilege in the Fifth

Circuit is to protect from release documents relating

to an ongoing criminal investigation,” thereby safeguarding

the integrity of such investigations as they

proceed. Id. at 569 n.2. It does not appear, however,

that the Fifth Circuit would extend the privilege to

circumstances where, as here, there is no ongoing

federal investigation. See Swanner v. United States,

406 F.2d 716, 719 (5th Cir. 1969) (stating that “pendency

of a criminal investigation is a reason for denying

discovery of investigative reports,” but that the

reason “would not apply indefinitely”). That poses

an important conflict with the broader privilege

34

recognized by other courts. Clarification from this

Court is in order.

More fundamentally, the facts of this case expose

a deeper uncertainty regarding the scope and application

of the privilege. Until the First Circuit issued its

decision below, cases implicating the law enforcement

privilege generally involved attempts by private

litigants to access federal law enforcement records

and other materials. Neither this Court’s decision in

Roviaro nor the leading lower court decisions expanding

the privilege addressed a sovereign State’s request

for information as part of the administration of

its own criminal laws. Plainly, the interests and

values at stake are very different in such cases.

Indeed, as the Third Circuit has recognized, “[t]here

is an anomaly in the assertion of a public interest

‘privilege’ ” by one governmental entity in order to

keep information from another governmental entity

that is itself invested with the authority “to investigate

in the public interest.” O’Neill, 619 F.2d at 230.

Whether, how, and to what extent a generalized law

enforcement privilege ought to apply in such circumstances

is entirely unclear. The core state interests at

stake cry out for answers from this Court.

B. The First Circuit Erred in its Broad,

Categorical Application of the Law Enforcement

Privilege.

Although it purported to “balanc[e] the federal

government’s interest in preserving the confidentiality

35

of sensitive law enforcement techniques against the

requesting party’s interest in disclosure,” App. 26-27,

in fact the First Circuit categorically rejected the

Commonwealth’s disclosure requests and applied the

privilege across the board. With respect to information

about the Ojeda-Ríos shooting, the First Circuit

determined that disclosure of the FBI’s operation

order and related protocols and procedures “ha[d] the

potential to thwart future FBI operations by publicizing

the internal operations of that agency.” App. 33.

And although it recognized that the Commonwealth’s

separate request for the names of the federal officers

involved was “distinct from information about FBI

protocols and techniques,” it concluded that the

privilege also covered that information because “the

individuals at issue are not suspected of criminal

activity unrelated to the operation that implicates

those protocols and techniques.” App. 36. This was no

balancing at all, but was instead a categorical embrace

of the FBI’s assertions without any serious

attention to the Commonwealth’s sovereign interests.

The most conspicuous flaw in the First Circuit’s

analysis is its failure to credit the Commonwealth’s

sovereign interest in investigating possible violations

of its laws. The court stated that whereas privilege

assertions are normally litigated in the context of the

cases prompting the requesting party’s need for the

information in question, “[h]ere . . . there is no underlying

litigation; the ‘need’ is Puerto Rico’s assertion

that the requested materials might be of aid to a

criminal investigation.” App. 34. That need was

36

further lessened here, the court suggested, because

(1) the federal OIG had already investigated the

Ojeda-Ríos shooting, and (2) the Commonwealth’s

power to punish federal officers for violating its laws

is limited by the rule that “federal officials are generally

immune from state prosecution for actions performed

within the scope of their official duties.” App.

34-35. Yet neither of those points diminishes the

Commonwealth’s genuine and legitimate need for the

information it has requested.

As this Court confirmed in Soper, a State has

“the right . . . to inquire into suspected crime in its

territory,” and that right “justifies the use of investigation

by its officers and the questioning of . . . federal

officers under suspicion.” 270 U.S. at 42. If such

investigations yield prosecutions, the defendants may

be able to invoke federal officer immunity to avoid

some or all of the charges. But the possibility of

immunity cannot preclude state investigation in the

first place. The reason, as the First Circuit acknowledged

even as it reached that precise result, is that

such a broad privilege could easily “extend beyond the

scope of the immunity actually available to the officers,”

thus “withhold[ing] information about acts not

taken in the course of their official duties.” App. 35-

36. Preventing the State from accessing critical

information about events facially within its criminal

jurisdiction – here, a death (the Ojeda-Ríos shooting)

and the use of force against journalists (the 444 de

Diego incident) – makes it impossible for the State to

know whether state law was violated, as well as

37

whether federal immunity shields those responsible

for the violations. A sovereign in the federal system

has the “right” (Soper, 270 U.S. at 42) to answer those

questions for itself – not simply to accept the findings

of a federal agency. By not acknowledging the full

dimensions of that sovereign right, the First Circuit

failed to engage in anything approaching an appropriate

balancing of the interests.

Finally, balancing the interests at stake should

involve the consideration of far more specific information

than the First Circuit relied upon. The proponent

of law enforcement privilege “must make a clear and

specific showing” of the precise harms that disclosure

of each category of information would entail. Schiller

v. City of New York, 244 F.R.D. 273, 281 (S.D.N.Y.

2007). The district court, in turn, should judge the

adequacy of that showing by engaging in its own in

camera examination of the materials in question. See

In re U.S. Dept. of Homeland Sec., 459 F.3d at 570.

And the court should consider employing measures

short of complete nondisclosure, such as a protective

order governing how and by whom the material may

be used. See, e.g., City of New York v. Beretta U.S.A.

Corp., 222 F.R.D. 51, 66 (E.D.N.Y. 2004) (finding that

“the imposition of a protective order would negate the

conditions underlying the application of the law

enforcement privilege”). None of that took place here.

A proper weighing of the interests in this case

would surely have yielded for the Commonwealth at

least some of the information it seeks. At a minimum,

this Court should clarify how the interests implicated in

38

an assertion of law enforcement privilege should be

weighed, and then remand this case for such weighing.

--------------------------------- ♦---------------------------------

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

ROBERTO J. SÁNCHEZ-RÁMOS

Secretary of Justice

SALVADOR J. ANTONETTI-STUTTS

Solicitor General

KENNETH PAMIAS-VELÁZQUEZ

Special Aide to the

Secretary of Justice

JORGE R. ROIG-COLÓN

Assistant Secretary of Justice

HIRAM A. MELÉNDEZ-JUARBE

Legal Advisor to the

Secretary of Justice

DEPARTMENT OF JUSTICE

COMMONWEALTH OF PUERTO RICO

P.O. Box 9020191

San Juan, PR 00902-0192

(787) 724-2165

TREVOR W. MORRISON

Counsel of Record

116 Myron Taylor Hall

Ithaca, NY 14853

(607) 255-9023

November 2007

App. 1

490 F.3d 50

United States Court of Appeals, First Circuit.

COMMONWEALTH OF PUERTO RICO,

Plaintiff, Appellant,

v.

UNITED STATES of America; Alberto R. Gonzales,

Attorney General; Robert Mueller, Director of the

FBI; Rosa Emilia Rodriguez-Vélez, U.S. Attorney for

the District of Puerto Rico; and Luis S. Fraticelli,

Special Agent in Charge of the FBI in Puerto Rico,

Defendants, Appellees.

No. 06-2449.

Heard Jan. 11, 2007.

Decided June 15, 2007.

Salvador J. Antonetti-Stutts, Solicitor General,

with whom Roberto J. Sánchez-Rámos, Secretary of

Justice, Kenneth Pamias-Velázquez, Special Aide to

the Secretary of Justice, Jorge R. Roig-Colón, Assistant

Secretary of Justice, and Hiram A. Meléndez-

Juarbe, Legal Advisor to the Secretary of Justice,

were on brief, for appellant.

Mark B. Stern, Civil Division, Department of

Justice, with whom Peter D. Keisler, Assistant Attorney

General, Rosa Emilia Rodriguez-Vélez, U.S.

Attorney, Jonathan F. Cohn, Deputy Assistant Attorney

General, and Alisa B. Klein, Civil Division,

Department of Justice, were on brief, for appellees.

App. 2

Before BOUDIN, Chief Circuit Judge, LIPEZ,

Circuit Judge, and SHADUR,* Senior District Judge.

LIPEZ, Circuit Judge.

This case presents a novel question: does the

Commonwealth of Puerto Rico have a nonstatutory

cause of action, grounded in its sovereign authority

under the Constitution, to obtain information from

the Federal Bureau of Investigation (“FBI”) in connection

with a criminal investigation into the activities

of FBI employees? We conclude that it does not.

Instead, under the circumstances of this case, Puerto

Rico must pursue the information it seeks under the

Administrative Procedure Act (“APA”), 5 U.S.C.

§§ 701-706. Further, in keeping with persuasive

authority from other circuits, we hold that the FBI

may assert a qualified privilege to protect sensitive

law enforcement techniques and procedures from

disclosure. Having considered the application of that

privilege in this case, we affirm the decision of the

district court holding that the FBI did not err in

withholding the requested information.

I.

This appeal involves two consolidated district

court cases, Nos. 06-1306 and 06-1305,1 arising from

* Of the Northern District of Illinois, sitting by designation.

1 The events in No. 06-1306 occurred before those in No. 06-

1305, so we will discuss No. 06-1306 first despite its higher

docket number.

App. 3

subpoenas for FBI records issued by the Puerto Rico

Department of Justice (“PRDOJ”). The relevant facts

are largely undisputed; where disputes exist, we note

them but find that they are immaterial to our disposition

of the case.

A. Case No. 06-1306: Ojeda Subpoena

In the 1970s, Filiberto Ojeda Ríos helped found

the Macheteros, an organization that advocates

independence for Puerto Rico through armed struggle

against the United States government. In 1983, the

Macheteros stole $7.1 million from a bank in Connecticut.

The FBI apprehended Ojeda in 1985, and,

during his arrest, Ojeda shot an FBI agent in the

face, permanently blinding the agent in one eye.

Ojeda was acquitted for assaulting the agent following

a trial in Puerto Rico. He then skipped bail while

on trial for bank robbery and was sentenced in absentia

in 1992. Fifteen years later, in September 2005,

the FBI attempted to apprehend Ojeda at his residence

in Hormigueros, Puerto Rico. During this

intervention, Ojeda shot two FBI agents and was

himself fatally wounded.

The PRDOJ commenced an investigation into the

intervention. On October 4, 2005, a PRDOJ prosecutor

issued a subpoena pursuant to title 34, section

1476 of the Puerto Rico Code commanding then

United States Attorney Humberto Garcia to produce

materials including: (1) a copy of the “Operation

Order” (a document establishing the plan or rules of

App. 4

engagement for the FBI intervention at Ojeda’s

residence); (2) the name, rank, division, address, and

telephone numbers of every person who participated

in or made decisions regarding the intervention, as

well as an organizational diagram showing these

individuals’ rank on the line of command; (3) various

equipment, including, but not limited to, all bulletproof

vests, helmets, weapons, and vehicles involved

in the intervention; (4) any inventory of the property

occupied during the intervention; (5) copies of any

expert reports relating to the intervention or Ojeda’s

death; (6) copies of any audio or video recordings of

the events relating to the intervention; (7) copies of

all photographs relating to the intervention; and (8)

copies of any relevant general FBI protocols, including

those relating to violent interventions and potentially

deadly force. In subsequent correspondence, the

PRDOJ explained that the requests related to a

“criminal investigation” that it was conducting into

Ojeda’s death.

By letter dated October 17, the FBI declined to

produce the requested materials, explaining that its

internal regulations prohibited disclosure of records

compiled for law enforcement purposes. The letter

stated that the denial of the PRDOJ’s request was a

“final agency decision which may be reviewed by the

United States District Court.”

After further communications among the

PRDOJ, FBI, and United States Attorney’s Office, the

U.S. Attorney indicated by letter dated November 9

that the FBI would allow the PRDOJ to examine

App. 5

some of the items listed in the subpoena, including

the bulletproof vests, helmets, weapons, and vehicles

used during the intervention and the photographs

taken before, during, and after the intervention. The

FBI stipulated that it would retain official custody of

these items and that an FBI official would be present

during the inspection.

The PRDOJ initially acceded to these terms, but

subsequently reiterated the substance of its original

demand in a letter dated January 20, 2006. The FBI

refused this demand, again noting that its refusal

constituted “final agency action.” The PRDOJ filed

suit in March 2006 to compel disclosure of the requested

materials.

B. Case No. 06-1305: 444 de Diego Subpoena

Using information obtained from Ojeda’s residence

to establish probable cause, the FBI obtained a

search warrant for a residential condominium located

at 444 de Diego in San Juan, Puerto Rico. The FBI

executed the warrant in February 2006, and a large

group of protesters, reporters, and members of the

general public gathered outside. The United States

asserts that some of these individuals breached an

established police line, and an FBI agent used pepper

spray to keep people behind the line.

The PRDOJ issued subpoenas to U.S. Attorney

Garcia and to Luis Fraticelli, Special Agent in Charge

of the FBI San Juan Field Office, requesting three

categories of materials: (1) the name, rank, division,

App. 6

address, and telephone number of the two FBI agents

who allegedly used pepper spray and whose photos

were attached to the subpoena; (2) official photographs

of these two FBI agents; and (3) internal FBI

protocols relating to the use of force and pepper spray.

The PRDOJ explained that the subpoenas were “part

of the criminal investigation” of the PRDOJ into “the

conduct of FBI agents during the execution of a

search warrant” at 444 de Diego.

The FBI moved to quash the subpoenas in federal

district court. After the PRDOJ indicated, at a hearing

on March 2, that “it was actually evaluating other

avenues through which to get the information about

the federal agents, and that it had no serious intention

of enforcing the challenged subpoenas,” the

district court concluded that the subpoenas were

“effectively mooted.” The court thus withheld action

on the motion to quash. Subsequently, on March 23,

the PRDOJ filed suit to compel the release of the

requested records.

C. Proceedings Before the District Court

Puerto Rico’s complaint in No. 06-1306 sought a

declaratory judgment recognizing its right “to conduct

a full investigation into the events leading to the

death of Mr. Ojeda Rios,” and an order “permanently

enjoining Defendants from withholding any information

relevant to the Commonwealth’s investigation

and ordering Defendants to comply with the Commonwealth’s

requests and produce the subpoenaed

App. 7

information, objects and documents[.]” The complaint

in No. 06-1305 sought identical relief with respect to

Puerto Rico’s “investigation into the events allegedly

leading to the injury of members of the press and/or

the public . . . on February 10, 2006, due to the alleged

use of excessive force (including the alleged use

of pepper spray) by FBI agents[.]”

In each complaint, Puerto Rico articulated five

causes of action which entitled it to its requested

relief. First, it stated that the FBI’s decisions were

not premised upon any federal regulation or statute.

Second, it stated that the FBI’s decisions exceeded

any authority granted by the Housekeeping Act, 5

U.S.C. § 301. Third, it asserted a nonstatutory cause

of action to vindicate its constitutional sovereign

authority to enforce its criminal laws by obtaining the

requested information. Fourth, it contended that APA

review was “unwarranted” because such review

“would impose an undue burden on the exercise of

sovereign criminal authority that would run afoul of

the Tenth Amendment.” Finally, Puerto Rico claimed

that, even if reviewed under the APA, the FBI’s

decision to withhold the information was arbitrary,

capricious, and an abuse of discretion.

The district court consolidated the cases, the

United States moved to dismiss, and Puerto Rico filed

a motion for summary judgment. After considering

these motions, the district court concluded that

Puerto Rico had failed to establish a basis for its

requested relief. The court rejected Puerto Rico’s first

two causes of action, explaining that, although the

App. 8

FBI’s internal regulations did not create a substantive

right to withhold the information, the regulations

incorporated federal common law establishing a

privilege for law enforcement materials. The court

also dismissed Puerto Rico’s third cause of action,

holding that Puerto Rico could not assert a nonstatutory

cause of action, based on its sovereign right to

enforce its criminal laws, to obtain the requested

materials. The court thus concluded that Puerto

Rico’s request was subject to judicial review under the

provisions of the APA, thereby rejecting Puerto Rico’s

fourth cause of action. Finally, on Puerto Rico’s fifth

and final cause of action, the court applied the APA’s

framework for review. Noting the FBI’s interest in

maintaining the confidentiality of sensitive law

enforcement techniques, it found that the FBI’s

decision with respect to the Ojeda subpoena was

neither arbitrary nor capricious. With respect to the

444 de Diego subpoena, the court concluded that

there had been no final agency action, and thus the

FBI’s failure to release the information was not

subject to judicial review. In sum, the court dismissed

Puerto Rico’s first through fourth causes of action,

and, on the fifth cause of action, denied Puerto Rico’s

motion for summary judgment and granted summary

judgment to the United States.

This appeal ensued.

App. 9

II.

On appeal, Puerto Rico first contends that its

sovereign right to enforce its criminal laws provides it

with a nonstatutory cause of action to obtain the

information it seeks from the FBI. It explains that,

under our federal constitutional system, a state has a

“judicially cognizable interest in the preservation of

[its] own sovereignty,” which includes its “ability to

punish wrongdoers and enforce its criminal laws”

and, more specifically, “to prosecute federal agents if

they have acted unlawfully in carrying out their

duties.”2 Consequently, “any impermissible federal

interference with such constitutional sovereignty is

amenable to resolution by a federal district court

under its equitable powers.” Puerto Rico concludes

that “[a] direct cause of action for equitable relief is

the only avenue to properly vindicate a State’s constitutional

claim of sovereign[ ] authority to enforce its

criminal laws.”

Although Puerto Rico acknowledges that agency

decisions are normally reviewed under the APA, it

argues that such review is inappropriate because: (1)

“[i]t is unfounded to subject a State’s sovereign penal

authority to an administrative process that will be

followed by an extremely limited form of judicial

review”; (2) such review will place Puerto Rico “in a

worse position to obtain information than private

2 The parties agree that Puerto Rico is situated identically

to a state for purposes of this appeal.

App. 10

parties” who can sue the federal government and

request discovery under Federal Rule of Civil Procedure

26; and (3) APA review would allow the federal

government to “commandeer[ ] state prosecutorial

powers by deciding what information the State

should consider in its investigations.”3

As in all suits against the federal government, we

must first consider whether sovereign immunity bars

this claim. “It is long settled law that, as an attribute

of sovereign immunity, the United States and its

agencies may not be subject to judicial proceedings

unless there has been an express waiver of that

immunity.” EPA v. Gen. Elec. Co., 197 F.3d 592, 597

(2d Cir.1999). The APA waives sovereign immunity

under certain conditions:

A person suffering legal wrong because of

agency action . . . is entitled to judicial review

thereof. An action in a court of the

United States seeking relief other than

3 With respect to the “commandeering” issue, Puerto Rico

does not develop its argument other than to cite to New York v.

United States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120

(1992), and Printz v. United States, 521 U.S. 898, 117 S.Ct. 2365,

138 L.Ed.2d 914 (1997), which established that the federal

government may not “commandeer” state governments by

compelling state officials to enact or administer a federal

regulatory program. In light of the lack of developed argumentation,

we find it unnecessary to address this claim. See Ryan v.

Royal Ins. Co. of Am., 916 F.2d 731, 734 (1st Cir.1990) (explaining

that issues “adverted to on appeal in a perfunctory manner,

unaccompanied by some developed argumentation, are deemed

to have been abandoned”).

App. 11

money damages and stating a claim that an

agency or an officer or employee thereof

acted or failed to act in an official capacity or

under color of legal authority shall not be

dismissed nor relief therein be denied on the

ground that it is against the United States or

that the United States is an indispensable

party.

5 U.S.C. § 702.4 This waiver is for “ ‘all equitable

actions for specific relief against a Federal agency or

officer acting in an official capacity,’ “Trudeau v. Fed.

Trade Comm’n, 456 F.3d 178, 186 (D.C.Cir.2006)

(quoting Sea-Land Serv., Inc., v. Alaska R.R., 659

F.2d 243, 244 (D.C.Cir.1981)), and thus “ ‘applies to

any suit whether under the APA or not.’ ” Id. at 186

(D.C.Cir.2006) (quoting Chamber of Commerce v.

Reich, 74 F.3d 1322, 1328 (D.C.Cir.1996)); see also

Hostetter v. United States, 739 F.2d 983, 985 (4th

Cir.1984) (“In section 702 Congress has waived the

defense of sovereign immunity in such nonstatutory

review cases in which nonmonetary relief is

sought. . . . ”); Jaffee v. United States, 592 F.2d 712,

719 (3d Cir.1979) (“By waiving sovereign immunity in

suits for ‘relief other than money damages,’ the

Congress sought to ‘facilitate nonstatutory judicial

4 At least one court has held that a state qualifies as a

“person” within the meaning of the APA, see Md. Dep’t of Human

Res. v. Dep’t of Health & Human Servs., 763 F.2d 1441, 1445 n. 1

(D.C.Cir.1985), and the government does not argue otherwise

here.

App. 12

review of Federal administrative action. . . . ’ ” (citation

omitted)).

Although this persuasive authority indicates that

sovereign immunity would pose no bar to Puerto

Rico’s claim for nonmonetary relief, the question

remains whether Puerto Rico has the nonstatutory

cause of action it invokes. In prior cases involving

subpoenas issued by state entities, courts have held

that the party requesting the subpoena must proceed

under the APA. Houston Bus. Journal, Inc. v. Office of

Comptroller of the Currency, 86 F.3d 1208, 1212

(D.C.Cir.1996) (“[A] state-court litigant must request

the documents from the federal agency pursuant to

the agency’s regulations. . . . If the agency refuses to

produce the requested documents, the sole remedy for

the state-court litigant is to file a collateral action in

federal court under the APA.”); Edwards v. U.S. Dep’t

of Justice, 43 F.3d 312, 316 (7th Cir.1994) (“The

subpoenas were in effect a request for information

from an executive department. . . . The subpoena is

treated as an administrative demand.”(citations

omitted)).

Puerto Rico asserts, however, that its suit is an

exception to this principle due to its constitutionallybased

sovereign authority to enforce its criminal

laws. It is uncontroverted that states may enact and

enforce criminal laws, and that this power is constitutional

in nature. As the Supreme Court explained in

Heath v. Alabama, 474 U.S. 82, 106 S.Ct. 433, 88

L.Ed.2d 387 (1985), “[t]he Constitution leaves in the

possession of each State ‘certain exclusive and very

App. 13

important portions of sovereign power.’ Foremost

among the prerogatives of sovereignty is the power to

create and enforce a criminal code.” Id. at 93, 106

S.Ct. 433 (quoting Federalist No. 9); see also Engle v.

Isaac, 456 U.S. 107, 128, 102 S.Ct. 1558, 71 L.Ed.2d

783 (1982) (“The States possess primary authority for

defining and enforcing the criminal law. . . . Federal

intrusions into state criminal trials frustrate . . . the

States’ sovereign power to punish offenders. . . . ”).

When a party claims that a violation of its constitutional

rights has occurred and it has “no effective

means other than the judiciary to enforce these

rights, [that party] must be able to invoke the existing

jurisdiction of the courts for the protection of [its]

justiciable constitutional rights.” Davis v. Passman,

442 U.S. 228, 242, 99 S.Ct. 2264, 60 L.Ed.2d 846

(1979); see also Bivens v. Six Unknown Named Agents

of Fed. Bureau of Narcotics, 403 U.S. 388, 389, 91

S.Ct. 1999, 29 L.Ed.2d 619 (1971) (holding that a

“cause of action for damages” arises under the Constitution

when federal officers violate Fourth Amendment

rights). Where, as here, a state has asserted a

right that is constitutional in nature, “we are bound

by a strong presumption in favor of providing the

state some vehicle for vindicating its rights.” R.I.

Dep’t of Envtl. Mgmt. v. United States (“RIDEM”), 304

F.3d 31, 41 (1st Cir.2002).

In the context of agency action, parties occasionally

invoke the principles of “nonstatutory review.”

Nonstatutory review is available pursuant to the

general “federal question” jurisdiction of the federal

App. 14

courts under 28 U.S.C. § 1331 in situations where

“Congress makes no specific choice of [the court in

which judicial review is to occur] in the statute pursuant

to which the agency action is taken, or in

another statute applicable to it.” Five Flags Pipe Line

Co. v. Dep’t of Transp., 854 F.2d 1438, 1439

(D.C.Cir.1988). “The basic premise behind nonstatutory

review is that, even after the passage of the APA,

some residuum of power remains with the district

court to review agency action that is ultra vires.

RIDEM, 304 F.3d at 42. Thus, if “a plaintiff is unable

to bring his case predicated on either a specific or a

general statutory review provision, he may still be

able to institute a non-statutory review action.”

Reich, 74 F.3d at 1327 (citing Clark Byse & Joseph V.

Fiocca, Section 1361 of the Mandamus and Venue Act

of 1962 and “Nonstatutory” Judicial Review of Federal

Administrative Action, 81 Harv. L.Rev. 308, 321

(1967)). Puerto Rico claims that the FBI acted outside

the scope of its legal authority in withholding the

requested materials, in violation of the Constitution,

and that the Constitution itself provides a basis for

nonstatutory review of that violation.

In RIDEM, we evaluated a similar claim for

nonstatutory review that was “constitutional in

scope.” 304 F.3d at 41. There, the state of Rhode

Island brought suit to assert that its sovereign immunity

(a “constitutionally protected sovereign

interest”) entitled it to enjoin an administrative

proceeding that the Department of Labor had initiated

against it. Id. at 36. We noted that the Supreme

App. 15

Court has established two “critical factors [that] must

be present to invoke nonstatutory review.” RIDEM,

304 F.3d at 42. First, such review may occur only if its

absence would “ ‘wholly deprive the party of a meaningful

and adequate means of vindicating its . . .

rights.’ ” Id. (quoting Bd. of Gov’rs of Fed. Reserve Sys.

v. MCorp. Fin., 502 U.S. 32, 43, 112 S.Ct. 459, 116

L.Ed.2d 358 (1991)). Second, “Congress must not have

clearly intended to preclude review of the agency’s

particular determination.” Id. at 42-43 (citing Bd. of

Gov’rs, 502 U.S. at 44, 112 S.Ct. 459). We then applied

these two factors and concluded that Rhode

Island had a direct, nonstatutory cause of action to

enjoin an administrative proceeding on the ground of

sovereign immunity, even though the APA requires

that parties exhaust their administrative remedies

before seeking judicial review. Id. at 43. We explained

that Rhode Island had no other avenue for vindicating

its right to immunity from suit and that Congress

had not explicitly precluded its action. Id. Moreover,

we emphasized that “general equitable considerations”

favored a nonstatutory action, including the

fact that Rhode Island had claimed the violation of “a

clear right that is constitutional in nature” and that

its “immunity would be effectively lost absent judicial

review.” Id.

Puerto Rico’s situation differs materially from

that of Rhode Island in RIDEM. Critically, with

respect to the first requirement for nonstatutory

App. 16

review, Puerto Rico does have a means of vindicating

its rights without nonstatutory review: the APA.5

Within that judicial review framework, Puerto Rico

may assert its sovereign interest in enforcing its

criminal laws as a consideration in our review of the

agency’s decision. Thus, we cannot conclude that

Puerto Rico’s rights “would be effectively lost absent

judicial review.” Id. at 43 (citing Morales v. Trans

World Airlines, 504 U.S. 374, 381, 112 S.Ct. 2031, 119

L.Ed.2d 157 (1992)). Likewise, with respect to the

second requirement, although Congress has not

explicitly prohibited nonstatutory review in a case

such as this, the existence of the APA as a means for

5 Although RIDEM is the only case the parties have cited

that involves a sovereign entity attempting to assert its constitutionally-

based sovereign prerogatives, other cases support the

notion that the absence of another avenue for the parties to

vindicate their rights is a necessary condition for nonstatutory

review. For example, in Leedom v. Kyne, 358 U.S. 184, 190-91,

79 S.Ct. 180, 3 L.Ed.2d 210 (1958), the Court held that the

president of a union had a nonstatutory cause of action to file

suit against the National Labor Relations Board to set aside the

NLRB’s certification, in violation of 29 U.S.C. § 159(b)(1), of a

bargaining unit including both professional and nonprofessional

employees. The Court explained that a critical factor in allowing

the union president to bring suit despite the lack of explicit

statutory authorization was that “ ‘absence of jurisdiction of the

federal courts’ would mean ‘a sacrifice or obliteration of a right

which Congress’ has given professional employees, for there is

no other means, within their control to protect and enforce that

right.” Id. at 190, 79 S.Ct. 180 (quoting Switchmen’s Union of N.

Am. v. Nat’l Mediation Bd., 320 U.S. 297, 300, 64 S.Ct. 95, 88

L.Ed. 61 (1943)).

App. 17

reviewing the FBI’s actions at least implies that

nonstatutory review is inappropriate.

We recognize that nonstatutory review might

have allowed Puerto Rico to obtain a more favorable

standard of review and to circumvent certain of the

APA’s procedural requirements. However, in considering

Puerto Rico’s demand for a more favorable standard

of judicial review on constitutional grounds, we

must be mindful of the Supremacy Clause, which “is

designed to ensure that states do not ‘retard, impede,

burden, or in any manner control’ the execution of

federal law.” New York v. Tanella, 374 F.3d 141, 147

(2d Cir.2004) (quoting McCulloch v. Maryland, 17

U.S.(4 Wheat.) 316, 436, 4 L.Ed. 579 (1819)). We are

not suggesting that the Supremacy Clause alone

provides the basis for rejecting Puerto Rico’s theory of

a nonstatutory cause of action to obtain law enforcement

information from the FBI. But Puerto Rico

portrays its sovereign authority over law enforcement

as paramount in the analysis. That cannot be so.

The Supremacy Clause reminds us that the federal

government also has a critical interest in carrying

out its own law enforcement responsibilities. In most

instances, federal and state law enforcement interests

are complementary. However, when a state’s

interest in investigating the agents of a federal law

enforcement entity arguably conflicts with that

federal entity’s need to protect certain information

relating to law enforcement activities, Congress has

provided a mechanism – the APA – for resolving

these conflicts. Puerto Rico has not convinced us that

App. 18

this congressional choice was somehow constitutionally

insufficient and hence Puerto Rico must have a

nonstatutory cause of action to vindicate its law

enforcement interests. To the contrary, for the reasons

we have expressed, we conclude that the judicial

review provided by the APA for the denial of information

by a federal agency is compatible with Puerto

Rico’s sovereign authority under the Constitution for

the enforcement of its criminal laws.

III.

Under the APA, we will overturn the FBI’s decision

not to release the requested information only if it

was “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.” 5 U.S.C.

§ 706(2)(A). The fact that Puerto Rico made its request

for information in the form of a subpoena from

the PRDOJ does not affect the nature of our review

under the APA. The subpoenas were “in effect a

request for information from an executive department,”

and, consequently, “the subpoena[s] are

treated as an administrative demand.” Edwards v.

U.S. Dep’t of Justice, 43 F.3d 312, 316 (7th Cir.1994)

(explaining that a subpoena initiates the administrative

process); see also 28 C.F.R. § 16.21.6

6 We note that, where a subpoena is issued to a non-party

federal government agency in conjunction with litigation in state

court, the state court may not enforce the subpoena against the

federal government due to federal sovereign immunity, and the

(Continued on following page)

App. 19

In applying the arbitrary and capricious standard

of review, we are deferential to the agency’s

decision. In general, an agency’s “choice of whether or

not to comply with a third-party subpoena is essentially

a policy decision about the best use of the

agency’s resources.” COMSAT Corp. v. Nat’l Sci.

Found., 190 F.3d 269, 278 (4th Cir.1999). We review

de novo the decision of the district court because that

court, “ ‘limited to the administrative record, is in no

better position to review the agency than the court of

appeals.’ ” Edwards, 43 F.3d at 314 (quoting Asarco,

Inc. v. U.S. Envtl. Prot. Agency, 616 F.2d 1153, 1161

(9th Cir.1980)).

In evaluating the FBI’s decision, we take into

account both that agency’s internal regulations

federal courts have consistently held that they lack jurisdiction

to enforce the subpoena in cases where the government has

removed the subpoena proceedings to federal court. See Smith v.

Cromer, 159 F.3d 875, 879 (4th Cir.1998); Houston Bus. Journal,

86 F.3d at 1211-12; Louisiana v. Sparks, 978 F.2d 226, 235 (5th

Cir.1992). Instead, courts have explained that, to obtain federal

judicial review of a federal agency’s refusal to release information,

“a state-court litigant must request the documents from the

federal agency pursuant to the agency’s regulations,” and that if

“the agency refuses to produce the requested documents, the sole

remedy for the state-court litigant is to file a collateral action in

federal court under the APA.” Houston Bus. Journal, 86 F.3d at

1212. Here, of course, the subpoena was not issued pursuant to

any underlying litigation. However, the same principle – that a

party wishing to obtain information from the federal government

must file a request pursuant to the agency’s regulations,

and may seek judicial review only under the APA – applies in

the present case as well.

App. 20

governing the release of material and the substantive

law governing the law enforcement privilege.

A. Regulations

Under the Housekeeping Act, 5 U.S.C. § 301,

federal agencies may promulgate regulations establishing

conditions for the disclosure of information.

The Supreme Court upheld the validity of such

regulations in United States ex rel. Touhy v. Ragen,

340 U.S. 462, 468, 71 S.Ct. 416, 95 L.Ed. 417 (1951),

explaining that it is appropriate for the head of an

agency “to prescribe regulations not inconsistent with

law for ‘the custody, use, and preservation of the

records, papers, and property appertaining to’ ” the

agency’s business. Within the administrative review

process, “[t]he regulations ‘provide guidance for the

internal operations of the [agency],’ ” but do not

create a substantive defense to disclosure. Kwan Fai

Mak v. FBI, 252 F.3d 1089, 1092 (9th Cir.2001) (quoting

28 C.F.R. § 16.21(d)). In other words, “the regulations

do not ‘create an independent privilege’

authorizing the Department of Justice to withhold

information.” Id. (quoting Exxon Shipping Co. v. U.S.

Dep’t of Interior, 34 F.3d 774, 780 (9th Cir.1994)).

Rather, they “simply set forth administrative procedures

to be followed when demands for information

are received.” Id.

Here, pursuant to the Housekeeping Act, the FBI

has promulgated regulations explaining that, in

deciding whether to release information, its officials

App. 21

should consider “[w]hether disclosure is appropriate

under the rules of procedure governing the case” and

“[w]hether [the] disclosure is appropriate under the

relevant substantive law concerning privilege.”

28 C.F.R. § 16.26(a)(1), (2). Situations in which

disclosure will not be made include those where

“[d]isclosure would reveal investigatory records

compiled for law enforcement purposes, and would

interfere with enforcement proceedings or disclose

investigative techniques and procedures the effectiveness

of which would thereby be impaired.” Id.

§ 16.26(b)(5).

As we have explained, the Touhy regulations are

only procedural, and do not create a substantive

entitlement to withhold information. Thus, the FBI’s

compliance with the regulations cannot be a sufficient

justification for withholding requested materials.

Instead, our review of the reasonableness of the

agency’s decision focuses on the substantive law

concerning privilege, to which we now turn.

B. Law Enforcement Privilege

The Supreme Court first recognized a qualified

privilege for certain information related to law

enforcement activities in Roviaro v. United States,

353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957).

There, the Court explained that the government has

a qualified privilege to withhold the identities of

confidential informants. Id. at 59, 77 S.Ct. 623. Such

a privilege “further[s] and protect[s][ ] the public

App. 22

interest in effective law enforcement,” encouraging

citizens to communicate their knowledge of crimes by

preserving their anonymity. Id. The Court also noted

that “[t]he scope of the privilege is limited by its

underlying purpose. Thus, where the disclosure of the

contents of a communication will not tend to reveal

the identity of an informer, the contents are not

privileged.” Id. at 60, 77 S.Ct. 623.

Since Roviaro, we have recognized a privilege for

law enforcement materials in other circumstances. In

United States v. Cintolo, 818 F.2d 980, 983-84 (1st

Cir.1987), the FBI, with judicial authorization, had

monitored conversations between the defendant and

various confederates via hidden microphones placed

within an apartment. The district court refused to

allow the defense to question witnesses “concerning

the precise location of the electronic surveillance

devices” on the ground that such questioning would

“jeopardize future criminal investigations.” Id. at

1002. In upholding the district court’s decision, we

first noted that other circuits had found that the

privilege could cover “sensitive investigative techniques.”

Id. We then recognized a qualified privilege

for the “disclosure of confidential government surveillance

information,” explaining that “discoverability of

this kind of information will enable criminals to

frustrate future government surveillance and perhaps

unduly jeopardize the security of ongoing investigations.”

Id. We emphasized that the privilege could be

overcome by a sufficient showing of need, and thus

App. 23

concluded that courts must determine on a case-bycase

basis whether a party has “demonstrated an

authentic ‘necessity,’ given the circumstances, to

overbear the qualified privilege.” Id.

Other circuits have explicitly acknowledged a

broader privilege for law enforcement materials. The

D.C. Circuit has explained that the privilege for

investigatory materials is “rooted in common sense as

well as common law,” noting that “law enforcement

operations cannot be effective if conducted in full

public view” and that the public has an interest in

“minimizing disclosure of documents that would tend

to reveal law enforcement investigative techniques or

sources.” Black v. Sheraton Corp. of Am., 564 F.2d

531, 542, 545 (D.C.Cir.1977). Similarly, in In re

Department of Investigation of the City of New York,

856 F.2d 481 (2d Cir.1988), the Second Circuit explained:

[T]he law enforcement privilege [ ] has been

recognized in the absence of a statutory

foundation, and [ ] is largely incorporated

into the various state and federal freedom of

information acts. The purpose of this privilege

is to prevent disclosure of law enforcement

techniques and procedures, to preserve

the confidentiality of sources, to protect witness

and law enforcement personnel, to safeguard

the privacy of individuals involved in

an investigation, and otherwise to prevent

interference with an investigation.

App. 24

Id. at 483-84 (citations and footnotes omitted); see

also United States v. Amodeo, 44 F.3d 141, 147 (2d

Cir.1995) (citing In re Dep’t of Investigation ). Most

recently, the Fifth Circuit acknowledged “the existence

of a law enforcement privilege beyond that

allowed for identities of confidential informants” in a

case involving documents containing “information

about ongoing criminal investigations – including

investigative leads, law enforcement methods and

techniques, internal investigative memoranda, and

identifying information relating to witnesses and law

enforcement personnel, including undercover operatives.”

In re U.S. Dep’t of Homeland Sec., 459 F.3d

565, 569, 568 (5th Cir.2006). The court remanded for

the district court to make an in camera determination

regarding the privilege, noting that the rationale for

such a privilege is “even more compelling now” because

“in today’s times the compelled production of

government documents could impact highly sensitive

matters relating to national security.” Id. at 569.

Although Puerto Rico has not made a request for

information under the federal Freedom of Information

Act (FOIA), 5 U.S.C. § 552,7 the provisions of this

statute also provide guidance in determining the

appropriate scope of the privilege. The law enforcement

exemption to FOIA shields from disclosure

7 The United States notes this omission but also acknowledged

at oral argument that FOIA would not be an appropriate

vehicle for all of the materials that Puerto Rico sought in its

subpoena.

App. 25

documents whose production would, inter alia, “interfere

with enforcement proceedings” or “endanger the

life or physical safety of any individual.” Id.

§ 552(b)(7); see also Ctr. for Nat’l Sec. Studies v. U.S.

Dep’t. of Justice, 331 F.3d 918, 925-26 (D.C.Cir.2003)

(explaining that, in enacting 5 U.S.C. § 552(b)(7)(A)

“ ‘Congress recognized that law enforcement agencies

had legitimate needs to keep certain records confidential,

lest the agencies be hindered in their investigations’

” (quoting NLRB v. Robbins Tire & Rubber

Co., 437 U.S. 214, 232, 98 S.Ct. 2311, 57 L.Ed.2d 159

(1978))).

Puerto Rico argues that the law enforcement

privilege, whatever its source and scope, must yield to

a state’s sovereign authority to investigate violations

of its criminal laws. However, it cites no case supporting

such a sweeping proposition.8 But the absence of

8 Puerto Rico offers one circuit court case involving an

“intergovernmental privilege dispute” and suggests that the

privilege is less compelling in such a situation. In United States

v. O’Neill, 619 F.2d 222 (3d Cir.1980), the United States had

moved to enforce a subpoena duces tecum against the Philadelphia

Police Department. Although the court did comment that

“[t]here is an anomaly in the assertion of a public interest

‘privilege’ by the City to justify withholding information from a

federal Commission charged by Congress to investigate in the

public interest the possible denial of equal protection by, inter

alia, local government units,” id. at 230, its decision focused

primarily on the fact that the Police Department had not

properly asserted the privilege and emphasized the lack of

Supreme Court precedent supporting a “broad amorphous

Government privilege” to protect “material relating to ongoing

civil and criminal investigations,” id. at 229.

App. 26

such authority does not minimize the legitimate

interests of Puerto Rico in securing information

relevant to its criminal investigations. The important

questions are how far the law enforcement privilege

should extend and how, in the face of Puerto Rico’s

demand for information, the privilege should be

applied in this case.

Given the persuasive authority from other circuits,

the law enforcement exemption set forth in

FOIA, and “the public interest in effective law enforcement,”

Roviaro, 353 U.S. at 59, 77 S.Ct. 623, we

deem it appropriate to extend the privilege we previously

recognized for “confidential government surveillance

information,” Cintolo, 818 F.2d at 1002, to “law

enforcement techniques and procedures,” In re Dep’t

of Investigation, 856 F.2d at 484.9 Indeed, the justification

we cited in Cintolo – that disclosing the location

of surveillance information would jeopardize

future surveillance operations – applies similarly to

the information about techniques and protocols that

Puerto Rico has requested here. Their disclosure

would also jeopardize future criminal investigations.

We emphasize that this qualified privilege is subject

to balancing the federal government’s interest in

preserving the confidentiality of sensitive law enforcement

techniques against the requesting party’s

9 Under Federal Rule of Evidence 501, federal courts retain

the power to develop common law privileges on a case-by-case

basis. See United States v. Gillock, 445 U.S. 360, 367, 100 S.Ct.

1185, 63 L.Ed.2d 454 (1980).

App. 27

interest in disclosure.10 That balancing must be done

with particular care in situations, such as this one,

involving conflicts between the federal and state

governments.

Having recognized, in principle, a qualified

privilege for law enforcement techniques and procedures,

we turn now to the task of evaluating under

the APA the FBI’s response to the specific information

requests of Puerto Rico.

IV.

A. Procedural Challenges

Before we address the substance of the FBI’s

decision not to disclose the requested materials, we

must resolve an array of procedural objections that

Puerto Rico has raised to the assertion of privilege in

the proceedings below. Puerto Rico first complains

that the privilege was not properly invoked because

the FBI did not submit an affidavit from the head of

the agency, the district court did not perform an in

camera review of the materials that were the subject

of the subpoena, and the assertion of privilege was

not accompanied by the FBI’s item-by-item balancing

of the harm to federal law enforcement interests and

10 Certain procedures, such as in camera review of the

requested materials and particularized assertion of the relevant

interests, may aid in a court’s assessment of these interests. We

will discuss the applicability of such procedures in this case

infra at Section IV.A.

App. 28

the necessity of the materials to Puerto Rico’s investigation.

The United States responds that Puerto Rico

did not raise these objections in the district court and

therefore has waived them.

Before the district court, Puerto Rico stated, in

its opposition to the United States’ motion to dismiss,

that “Defendants’ failure to properly assert, at the

time they decided not to disclose, the list of privileges

that they now pretend to raise constitutes a waiver of

all such privileges.” In other words, Puerto Rico

insisted that the United States could not offer reasons

to the district court for withholding the information

that it had not given to Puerto Rico when it

denied the Commonwealth’s demand for information.

In its motion for summary judgment, Puerto Rico

further contended that the decision not to release the

materials was arbitrary and capricious because it is

premised exclusively on a regulation that does not

create a privilege. Defendants’ wholly conclusory

assertion that disclosure of the information is not

warranted under the regulations simply lacks any

valid explanation for the denial. Defendants did not

assert a substantive privilege for the Court to consider,

or even offer a valid explanation for the refusal

to disclose. Defendants did not even purport to substantiate

or justify their denial with an analysis of

the pertinent factors.

Puerto Rico did not, however, identify for the

district court’s consideration the specific procedures it

now requests: an affidavit from the head of the FBI,

App. 29

an in camera review of the materials, and an item-byitem

balancing of the interests at stake in disclosure

of the materials.

We must also consider the manner in which the

United States asserted the privilege. In its October

17, 2005 letter denying the request for information

with respect to the Ojeda subpoena, the FBI explained

that “[a] determination has been made not to

disclose any of the information, objects and documents

requested by the PRDOJ” because such disclosure

“would involve the conditions enumerated in [28

C.F.R.] § 16.26(b)(5).”11 With respect to the 444 de

Diego subpoena, the United States’ motion to quash

explained that disclosure of the internal protocols

“would reveal investigative and enforcement techniques”

and that disclosure of the identities and

official photographs of the FBI agents would violate

their privacy rights and “pose a serious security

threat.”

After Puerto Rico filed its complaint, the United

States’ motion to dismiss articulated further grounds

for the assertion of the law enforcement privilege

with respect to the materials requested in the Ojeda

subpoena:

11 As noted, 28 C.F.R. § 16.26(b)(5) states that disclosure

will not be made when it “would reveal investigatory records

compiled for law enforcement purposes, and would interfere

with enforcement proceedings or disclose investigative techniques

and procedures the effectiveness of which would thereby

be impaired.”

App. 30

A person possessing these documents would

learn, inter alia, how the FBI goes about capturing

a fugitive who is believed to be dangerous,

the number and types of personnel

used by the FBI in such operations, the way

the FBI collects evidence, the FBI’s internal

operating procedures in a variety of sensitive

law enforcement settings, and the way in

which law enforcement information (such as

the location of Mr. Ojeda Rios) is gathered.

The United States further noted that most of the

materials are also protected by the investigatory files

privilege, and finally emphasized that the privacy

interests of its agents favored nondisclosure of their

names and other personal information. It made

similar arguments with respect to the materials

requested in the 444 de Diego subpoena, explaining

that “the release of internal FBI protocols . . . would

reveal law enforcement techniques” and that “[t]he

release of the identity, rank, and division of the FBI

agents could also reveal law enforcement techniques,

by revealing the manner in which the FBI staffs

these types of operations.”

We acknowledge that the procedures Puerto Rico

references for the first time on appeal may enhance

the ability of a district court to evaluate fully and

fairly the interests at stake in a case such as this.

Judging these interests in the abstract seems problematic.

Here, however, Puerto Rico failed to request

before the district court the procedures it now specifies.

This failure constitutes a waiver of any objection

premised on the absence of those procedures. See

App. 31

Persson v. Scotia Prince Cruises, Ltd., 330 F.3d 28, 33

(1st Cir.2003). Moreover, the circumstances here

mitigate the risk that the absence of such procedures

caused an unfair result. The United States clearly

and repeatedly asserted the law enforcement privilege

as its ground for refusing to disclose the requested

information, and it articulated more specific

reasons with respect to the various categories of

materials. There was no mistaking the basis for the

FBI’s refusal to provide the information. Finally, as

the United States explains, Puerto Rico requested

broad categories of information (i.e., all internal FBI

protocols relating to certain types of operations).

Those generalities did not help Puerto Rico establish

the “authentic ‘necessity,’ ” Cintolo, 818 F.2d at 1002,

for the information it sought.

Puerto Rico also contends that the United States

has waived any law enforcement privilege that may

exist by disclosing some of the requested information

in a detailed, two hundred page report.12 Again,

Puerto Rico failed to raise this objection before the

district court, and again Puerto Rico has waived it.13

12 See U.S. Department of Justice, Office of the Inspector

General, A Review of the September 2005 Shooting Incident

Involving the FBI and Filiberto Ojeda Ríos, August 6, 2006,

available at http://www.usdoj.gov/oig/special/s0608/full-report.pdf.

13 Although the report was released after the parties filed

their motions, Puerto Rico still had ample time to raise this

issue before the district court. The court did not issue a ruling

until September 26, 2006, nearly two months after the report

was released. Indeed, the court cited the report in its opinion.

App. 32

In any event, the claim lacks merit. Courts have held

in the context of executive privilege that “release of a

document only waives these privileges for the document

or information specifically released, and not for

related materials.” In re Sealed Case, 121 F.3d 729,

741 (D.C.Cir.1997); see also Smith v. Cromer, 159 F.3d

875, 880 (4th Cir.1998) (explaining that “disclosure of

factual information does not effect a waiver of sovereign

immunity as to other related matters”). This

limited approach to waiver serves important interests

in open government by “ensur[ing] that agencies do

not forego voluntarily disclosing some privileged

material out of the fear that by doing so they are

exposing other, more sensitive documents.” In re

Sealed Case, 121 F.3d at 741.

The United States has been reasonably forthcoming

in releasing information related to the Ojeda

intervention. The FBI allowed Puerto Rico to inspect

bulletproof vests, helmets, weapons, and vehicles

used during the intervention and the photographs

taken before, during, and after the intervention.

Moreover, the Office of the Inspector General also

released a report detailing the findings of its investigation

into the intervention. See supra note 12. It

would be illogical to punish the United States for its

voluntary disclosure of these materials by also forcing

it to disclose other information that it has deemed

privileged.

Having found that Puerto Rico’s procedural

claims lack merit, we turn now to the substance of

App. 33

the FBI’s decision to withhold the requested materials.

B. Ojeda Subpoena

The FBI refused to produce the materials specified

in the Ojeda subpoena, which included the “Operation

Order,” identifying information for the agents

involved in the intervention, reports and recordings

related to the intervention, and a wide array of

information regarding FBI protocols and operating

procedures. As its basis for asserting the privilege

with respect to this information, the United States

explains that the requested materials include information

about sensitive law enforcement techniques

that must remain confidential to allow the FBI to

operate effectively.

As the district court explained, the disclosure of

these materials would reveal

how the FBI goes about capturing a fugitive

who is believed to be dangerous, the number

and types of personnel used by the FBI in

such operations, the way the FBI collects

evidence, the FBI’s internal operating procedures

in a variety of law enforcement settings,

and the way in which law enforcement

information is gathered.

Disclosure of such information has the potential to

thwart future FBI operations by publicizing the

internal operations of that agency.

App. 34

Given the qualified nature of the privilege,

however, the critical question is whether Puerto Rico

has shown a necessity for the information sufficient

to overcome this qualified privilege. In favor of disclosure,

Puerto Rico’s chief argument is its interest in

asserting its sovereign authority to investigate and

prosecute its criminal laws. It explains that such

authority is constitutional in nature, and thus deserves

greater weight in our balancing calculus. It

also emphasizes that no alternative means exists to

obtain the information it seeks. Finally, Puerto Rico

contends that an overbroad reading of the privilege is

tantamount to granting federal officers immunity

from even preliminary criminal investigations.

In response, the United States first explains that

the balancing of interests typically takes place in the

course of underlying criminal or civil litigation, in

which the court must weigh the policy of the privilege

against the particular litigation need of a party. Here,

however, there is no underlying litigation; the “need”

is Puerto Rico’s assertion that the requested materials

might be of aid to a criminal investigation. The

United States also notes that the Department of

Justice has already undertaken an investigation of

the intervention and published a detailed report of its

findings. Finally, in response to Puerto Rico’s claim

that failure to release the information would foreclose

investigation of the officers, the United States emphasizes

that federal officials are generally immune

from state prosecution for actions performed within

App. 35

the scope of their official duties, and thus the privilege

would merely reflect an existing immunity.

With respect to this last point, the contentions of

the parties deserve some elaboration. Courts have

explained that “Supremacy Clause immunity governs

the extent to which states may impose civil or criminal

liability on federal officials for alleged violations

of state law committed in the course of their federal

duties.” Wyoming v. Livingston, 443 F.3d 1211, 1213

(10th Cir.2006). Such disputes “permit of no easy

answers,” but “the supremacy of federal law precludes

the use of state prosecutorial power to frustrate

the legitimate and reasonable exercise of federal

authority.” Id. Thus, federal officials are generally

granted Supremacy Clause immunity from state

prosecution for actions taken in the course of their

official duties. See, e.g., In re Neagle, 135 U.S. 1, 75,

10 S.Ct. 658, 34 L.Ed. 55 (1890) (U.S. Marshal immune

from state murder prosecution); Livingston,

443 F.3d 1211 (10th Cir.2006) (federal officials immune

from state prosecution for trespass); New York

v. Tanella, 374 F.3d 141, 142 (2d Cir.2004) (DEA

agent who shot an unarmed suspect immune from

state prosecution). However, such immunity is limited

to actions that were “reasonably necessary for the

performance of [the officials’] duties.” Livingston, 443

F.3d at 1227-28. In the present situation, the privilege

that the United States now asserts could conceivably

extend beyond the scope of the immunity

actually available to the officers if the privilege was

App. 36

used to withhold information about acts not taken in

the course of their official duties.

The sovereign interests at stake on both sides –

Puerto Rico’s interest in enforcing its criminal laws

and the United States’ interest in protecting the

internal operations of the FBI – make our balancing

of the interests particularly difficult in this case. We

recognize that any decision will necessarily compromise

one of these interests to some degree. On balance,

however, we conclude that the FBI’s decision

not to release the requested materials was reasonable

under the deferential standard of review prescribed

by the APA. The FBI has a legitimate interest in

maintaining the secrecy of sensitive law enforcement

techniques.

We recognize that, in addition to general information

about FBI protocols and techniques, Puerto

Rico also has requested names and other personal

information about individual FBI agents. Superficially,

this identifying information seems distinct

from information about FBI protocols and techniques

involved in the shooting death of Ojeda. However, the

individuals at issue are not suspected of criminal

activity unrelated to the operation that implicates

those protocols and investigative techniques. Obtaining

this identifying information would allow Puerto

Rico to interview the individuals in question. Inevitably,

those interviews would involve inquiries relating

to the FBI protocols and techniques that fall within

the privilege.

App. 37

Moreover, as the district court noted in its opinion,

disclosing certain information about the agents

“would reveal the number and types of personnel

used by the FBI” to conduct operations such as the

Ojeda intervention. If agents’ names, official photographs

and other personal information are made

available, as requested by Puerto Rico, these agents

will be less successful at conducting covert operations.

Finally, courts have explained that “individuals,

including government employees and officials,

have privacy interests in the dissemination of their

names. Public disclosure of the names of FBI agents

and other law enforcement personnel . . . could subject

them to embarrassment and harassment in the

conduct of their official duties and personal affairs.”

Massey v. FBI, 3 F.3d 620, 624 (2d Cir.1993) (citation

omitted) (upholding the nondisclosure of FBI agents’

names under Exemption 7 of FOIA); see also Jones v.

FBI, 41 F.3d 238, 246-47 (6th Cir.1994) (holding that

“federal law enforcement officials ‘have the right to be

protected against public disclosure of their participation

in law enforcement investigations’ ” (quoting

Ingle v. Dep’t of Justice, 698 F.2d 259, 269 (6th

Cir.1983))); Lesar v. U.S. Dep’t of Justice, 636 F.2d

472, 487 (D.C.Cir.1980) (“As several courts have

recognized, [FBI] agents have a legitimate interest in

preserving the secrecy of matters that conceivably

could subject them to annoyance or harassment in

either their official or private lives.”).

We acknowledge Puerto Rico’s argument that the

FBI’s decision to withhold the information raises the

App. 38

possibility that a federal agency may thwart state

criminal proceedings against one of its own employees

by refusing to disclose information that might

lead to prosecution. That is a troubling possibility. As

we have explained, although federal officials generally

receive immunity from prosecution, such immunity

obtains only when they are acting within the

scope of official duties. The FBI’s refusal to produce

the requested materials may preclude a determination

of whether the actions at issue here were within

that scope.

However, other circumstances present here

minimize the likelihood that wrongdoing was improperly

concealed. First, the FBI acceded to some of

Puerto Rico’s requests for information, agreeing to

allow Puerto Rico to inspect most of the physical

evidence from the intervention and photographs of

the premises taken before, during, and after the

intervention. Moreover, the Office of the Inspector

General (“OIG”) – an entity entirely independent

from the FBI – conducted a searching investigation of

the events and made public a detailed two hundred

page report of its findings. See supra note 12. In

preparing the report, the OIG interviewed over sixty

individuals, including all of the agents who planned,

participated in, or had knowledge of the operation;

reviewed thousands of pages of documents, including

operation plans and orders, investigative files, intelligence

reports, and FBI policies and procedures;

reviewed forensic reports; and consulted with experts

in tactical police operations. The report “identified a

App. 39

number of deficiencies in the FBI’s conduct of the

Ojeda surveillance and arrest operation” and made

“ten recommendations dealing with these findings”;

however, it “did not conclude that any of the actions

of FBI officials constituted misconduct.” We acknowledge

that these safeguards are an imperfect substitute

for Puerto Rico’s ability to obtain information to

conduct its own investigation; however, the availability

of this substitute reinforces our conclusion that

the FBI’s decision to withhold the other materials

was not arbitrary.

In sum, we find no error in the FBI’s refusal to

release the information Puerto Rico requested in the

Ojeda subpoena.

C. 444 de Diego Subpoena

Under the APA, a party must obtain a “final

agency decision” prior to seeking judicial review of an

agency action. 5 U.S.C. § 704; Bennett v. Spear, 520

U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281

(1997). Here, Puerto Rico served the 444 de Diego

subpoena on the FBI on February 20, 2006. The FBI

then filed a motion to quash the subpoena on February

28. Puerto Rico contends that this motion to

quash the 444 de Diego subpoena was the equivalent

of a final agency action, while the United States

asserts that it was not.

In its opinion ruling in favor of the United States,

the district court held that no final agency action had

taken place. It explained that, at the March 2 hearing

App. 40

on the United States’ motion to quash, Puerto Rico

stated that “right now there is no intention to file any

contempt proceedings” and that it “currently was

going to be evaluating which is the next step in order

to continue that investigation; if the step is administrative,

if it is federal judicial or if it is state judicial.”

The district court then advised Puerto Rico that it

must exhaust its administrative remedies and obtain

a final agency action in order to file suit. Puerto Rico’s

next action, however, was to file the complaint in this

action on March 23. Consequently, the district court

explained that Puerto Rico “has not submitted anything

into the record indicating that the government

made a final decision,” implicitly holding that the

motion to quash could not itself constitute a final

agency action, and thus no final agency action had

taken place.

The issue of whether the United States’ motion to

quash the subpoena was final agency action is a

thorny one. Courts have held that “an agency’s refusal

to comply with a subpoena constitutes ‘final

agency action . . . ripe for . . . review under the APA.’

Yousuf v. Samantar, 451 F.3d 248, 251 (D.C.Cir.2006)

(quoting COMSAT Corp. v. Nat’l Sci. Found., 190 F.3d

269, 275 (4th Cir.1999)). Indeed, in United States v.

Williams, 170 F.3d 431, 434 n. 4 (4th Cir.1999), “the

government asserted and [the party requesting

information] did not dispute that the United States

Attorney’s response to a subpoena constitutes final

agency action for purposes of the APA.” No court has

held, however, that filing a motion to quash is the

App. 41

equivalent of a refusal to comply. Moreover, at the

hearing on the motion to quash, Puerto Rico’s acknowledgment

that it was exploring other avenues of

obtaining the materials it had requested, including

administrative avenues, suggests that Puerto Rico

itself did not believe that it had obtained final agency

action.

The issue of whether there was final agency

action implicates the jurisdiction of the federal courts,

and such final action is normally a prerequisite to

judicial review. Cobell v. Kempthorne, 455 F.3d 301,

304 (D.C.Cir.2006). However, we have held that cases

exist in which we may exercise “hypothetical jurisdiction”

– that is, cases “in which we may – and should –

bypass the jurisdictional question” because the jurisdictional

issue is complex but the outcome on the

merits is straightforward. See, e.g., Royal Siam Corp.

v. Chertoff, 484 F.3d 139, 141 (1st Cir.2007). In exercising

such hypothetical jurisdiction, “we have distinguished

between Article III jurisdiction (which may

never be bypassed) and statutory jurisdiction (which

may occasionally be bypassed).” Id. Here, the question

of whether there has been final agency action is

one that implicates statutory, rather than constitutional,

jurisdiction. See Air Brake Systems, Inc. v.

Mineta, 357 F.3d 632, 638 (6th Cir.2004) (“[T]he

jurisdictional question here is one of statutory interpretation:

[was there] ‘final’ agency action for which

no other adequate judicial remedy exists?”); Ciba-

Geigy Corp. v. EPA, 801 F.2d 430, 442 (D.C.Cir.1986)

(discussing “the statutory jurisdictional issue of

App. 42

whether [there was] ‘final agency action’ ”). Thus,

given the difficulty of the jurisdictional issue here, we

conclude that it is appropriate to bypass that issue

and proceed to the more straightforward task of

resolving the merits.

The materials requested by Puerto Rico in the

444 de Diego subpoena are substantially similar to

the materials already discussed with respect to the

Ojeda subpoena: (1) the name, rank, division, address,

and telephone number of two FBI agents; (2)

an official photograph of each of the two FBI agents;

and (3) internal FBI protocols relating to the use of

force and pepper spray. These materials fall within

the scope of the law enforcement privilege for the

same reasons that the names and personal information

of FBI agents and the internal FBI protocols

requested in the Ojeda subpoena fell within that

privilege, and Puerto Rico has offered no more compelling

reasons for disclosure in the case of the materials

requested in the 444 de Diego subpoena. Thus,

assuming that Puerto Rico obtained final agency

action with respect to its request for these materials,

the FBI was neither arbitrary nor capricious in

withholding such information.

V.

After careful review, we conclude that Puerto

Rico cannot assert a nonstatutory cause of action,

grounded in its constitutional sovereign authority to

enforce its criminal laws, to obtain the materials it

App. 43

seeks. Instead, we find Puerto Rico’s request for these

materials subject to review under the APA. Moreover,

we hold that a qualified privilege applies to the law

enforcement materials Puerto Rico has requested

here: sensitive law enforcement protocols and techniques

and the names and other personal information

of the FBI agents involved in the two operations. In

light of this privilege and the applicable Touhy regulations,

we conclude that the FBI’s response to the

Ojeda subpoena and the 444 de Diego subpoena was

neither arbitrary nor capricious. Thus, the judgment

of the district court is affirmed.

So ordered.

BOUDIN, Chief Judge, concurring.

It has been long settled that the United States

cannot be sued, either in federal court or in any state

forum, unless it has waived sovereign immunity.

Lehman v. Nakshian, 453 U.S. 156, 160, 101 S.Ct.

2698, 69 L.Ed.2d 548 (1981). States and comparable

entities are treated no differently than any other

litigant. Indeed, the lower courts have repeatedly

held that, absent a waiver, the United States cannot

be forced to obey a subpoena issued by a state court,

state grand jury, or state legislative committee.14

14 See, e.g., United States v. Williams, 170 F.3d 431, 433 (4th

Cir.), cert. denied,525 U.S. 854, 120 S.Ct. 135, 145 L.Ed.2d 115

(1999); In re Elko County Grand Jury, 109 F.3d 554, 556 (9th

Cir.), cert. denied, 522 U.S. 1027, 118 S.Ct. 625, 139 L.Ed.2d 606

(1997) (sovereign immunity bars enforcement of state grand jury

(Continued on following page)

App. 44

Puerto Rico’s lawsuit in federal court, seeking to

enforce the state’s demand for a turnover of documents

and exhibits belonging to or in the custody of

the FBI, is itself barred by sovereign immunity unless

it falls within an exception – which normally must be

created by Congress. This is not an instance of discovery

in aid of a federal lawsuit to which the United

States has otherwise consented (e.g., a Tucker Act

suit against the United States) or to which it is

otherwise susceptible to discovery (e.g., a federal

criminal prosecution).

So far as Puerto Rico is asserting an implied

exception to federal sovereign immunity for state

criminal investigations, the proposition is without

case support and is at odds with a catalogue of cases.

See note 14, above. Puerto Rico is free to conduct

criminal investigations. It is not free to bring a federal

or state lawsuit to obtain by court process, at the

behest of a state agency, documents and exhibits

controlled by the United States, unless Congress has

so provided.

The United States has waived sovereign immunity

in a number of different statutes, including the

subpoena of federal official); Houston Bus. Journal, Inc. v. Office

of the Comptroller of the Currency, 86 F.3d 1208, 1212

(D.C.Cir.1996); State of La. v. Sparks, 978 F.2d 226, 234-35 (5th

Cir.1992); Boron Oil Co. v. Downie, 873 F.2d 67, 71 (4th

Cir.1989); United States v. McLeod, 385 F.2d 734, 751 (5th

Cir.1967); United States v. Owlett, 15 F.Supp. 736, 742

(M.D.Pa.1936).

App. 45

Federal Tort Claims Act, 28 U.S.C. § 1346(b) (2000)

(certain torts), the Tucker Act, id. § 1346(a) (contracts),

and the Freedom of Information Act, 5 U.S.C.

§ 552 (2000) (access to many documents). Puerto Rico

does not invoke the FOIA, presumably because one of

its exceptions limits requests for criminal investigative

materials.15 5 U.S.C. § 552.

This leaves Puerto Rico with the Administrative

Procedure Act (“APA”), 5 U.S.C. § 702. The APA can

be viewed both as a residual waiver of sovereign

immunity permitting judicial review of federal action

– though not an award of damages – where there is

no other prescribed remedy; and as a federal cause of

action where an agency acts contrary to law or in a

manner that is arbitrary or irrational (unless the

matter is one committed to agency discretion by law,

id.§ 701(a)(2)). See H.R. Rep. 94-1656, at 4-12 (1976).

Puerto Rico points to no law requiring the turnover

of the materials it seeks. So far as Puerto Rico

15 The Freedom of Information Act excepts from disclosure

“records or information compiled for law enforcement purposes,

but only to the extent that the production of such law enforcement

records or information (A) could reasonably be expected to

interfere with enforcement proceedings, . . . (D) could reasonably

be expected to disclose the identity of a confidential source . . . ,

(E) would disclose techniques and procedures for law enforcement

investigations or prosecutions, or would disclose guidelines

for law enforcement investigations or prosecutions if such

disclosure could reasonably be expected to risk circumvention of

the law, or (F) could reasonably be expected to endanger the life

or physical safety of any individual.” 5 U.S.C. § 552(b)(7).

App. 46

asserts its own sovereign interest in law enforcement,

this interest creates no cause of action – state or

federal – that permits Puerto Rico to constrain the

United States. See U.S. Const. Art. VI, cl. 2;

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 436,

4 L.Ed. 579 (1819) (“the states have no power . . . to

retard, impede, burden, or . . . control” the execution

of federal powers); cf. In re Neagle, 135 U.S. 1, 75, 10

S.Ct. 658, 34 L.Ed. 55 (1890).

Congress has authorized each agency to create

housekeeping regulations governing the use of its

“records, papers, and property,” 5 U.S.C. § 301, and

the Department’s pertinent regulations forbid disclosure

of any information where [d]isclosure would

reveal investigatory records compiled for law enforcement

purposes, and would interfere with enforcement

proceedings or disclose investigative

techniques and procedures the effectiveness of which

would thereby be impaired,

unless the “administration of justice requires

disclosure.” 28 C.F.R. § 16.26(b)(5), (c). Yet

the Department’s regulations, by their explicit

terms, create no substantive rights in

litigants, 28 C.F.R. § 16.21(d), and so create

no legal obligation enforceable under the

APA.

This leaves Puerto Rico, at best, with an APA suit

to challenge agency action as arbitrary and capricious.

Some courts have recognized an action under

App. 47

the APA to challenge the reasonableness of the

agency’s action in withholding documents.16 Whether

this is a plausible claim – given the explicit treatment

of document requests under the FOIA – might be

debated. But the present case would turn out the

same way even if such an APA claim survived the

precept lex specialis derogat legi generali. In re Lazarus,

478 F.3d 12, 19 (1st Cir.2007).

There is nothing arbitrary or capricious about the

Department’s policy of refusing to reveal “records

compiled for law enforcement purposes” that would

“disclose investigative techniques and procedures the

effectiveness of which would thereby be impaired.” 28

C.F.R. § 16.26. The Department’s legitimate interest

is self-evident and is reflected in both the FOIA

categorical exception, see note 15, above, and in

judicial recognition of a law enforcement privilege,

Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct.

623, 1 L.Ed.2d 639 (1957).

Nor did the Department act arbitrarily or capriciously

in applying its general policy in this case. As

the district court found, the materials sought by

16 “If the agency refuses to produce the requested documents,

the sole remedy for the state-court litigant is to file a

collateral action in federal court under the APA.” Houston Bus.

Journal, 86 F.3d at 1212. See also COMSAT Corp. v. Nat’l Sci.

Found., 190 F.3d 269, 274 (4th Cir.1999); Williams, 170 F.3d at

434; Edwards v. U.S. Dep’t of Justice, 43 F.3d 312, 316-17 (7th

Cir.1994); Boron Oil, 873 F.2d at 71; cf. Gen. Elec., 197 F.3d at

598-99, modified on reh’g, 212 F.3d at 690.

App. 48

Puerto Rico and withheld by the Department would

reveal the identities of FBI agents, “how the FBI goes

about capturing a fugitive who is believed to be

dangerous, the number and types of personnel used

by the FBI in such operations, the way the FBI

collects evidence, the FBI’s internal operating procedures

in a variety of law enforcement settings, and

the way in which law enforcement information is

gathered.”17

That in this case the materials might be protected

under the federal law enforcement privilege is

icing on the cake, but the Department’s action would

be reasonable even without the privilege. When the

United States tries a defendant in its own courts, no

issue of sovereign immunity is presented: disclosure

obligations depend on federal criminal rules and

precedents and, ordinarily, material in government

hands must be produced in response to such requirements

or a defense subpoena unless privileged.

By contrast, when Puerto Rico is seeking materials

in an action not otherwise properly in federal

court, the United States has no independent obligation

to turn over government materials regardless of

17 These materials included the “operation order” relating to

the FBI raid on Ojeda’s residence; the identities and photographs

of the agents involved in the raid and those responsible

for using pepper spray; information gathered during the FBI’s

occupation of Ojeda’s residence; copies of expert reports, photographs,

and recordings related to the raid; and internal protocols

concerning violent and arrest interventions and use of force.

App. 49

whether they are privileged; at most, it must avoid

action that is arbitrary and capricious and can do so

on the basis of a reasonable general policy. The Department’s

refusal to release the information in this

case was not arbitrary and capricious and that is the

end of the matter.

SHADUR, District Judge, concurring.

In this instance the thoughtful opinions by Judge

Lipez and Chief Judge Boudin put me in mind of the

old saw about the politician who says of a controversial

issue, “Some of my friends are in favor of X, and

some of my friends are in favor of Y, and I’m in favor

of my friends.” Both opinions reach the same destination,

albeit by different routes, and at the end of

the day I share their common conclusion that the

Commonwealth’s legitimate interest in pursuing a

possible criminal prosecution cannot override the

legitimate policy concerns of the United States, as the

ultimate sovereign, in not unduly exposing its own

law enforcement techniques and personnel against its

wishes.

In that respect Congress has permissibly acted to

limit judicial review of those policy concerns to the

standards applicable under the APA, and the Commonwealth

has not surmounted the high hurdle that

statute prescribes. Hence I concur in the conclusion

reached in each of the two opinions.

App. 50

United States Court of Appeals

For the First Circuit

-----------------------------------------------------------------------

No. 06-2449

COMMONWEALTH OF PUERTO RICO,

Plaintiff, Appellant,

v.

UNITED STATES OF AMERICA;

ALBERTO R. GONZALES, Attorney General;

ROBERT MUELLER, Director of the FBI;

ROSA EMILIA RODRIGUEZ-VÉLEZ, U.S. Attorney

for the District of Puerto Rico; and

LUIS S. FRATICELLI, Special Agent

in Charge of the FBI in Puerto Rico,

Defendants, Appellees.

-----------------------------------------------------------------------

JUDGMENT

Entered: June 15, 2007

This cause came on to be heard on appeal from

the United States District Court for the District of

Puerto Rico and was argued by counsel.

Upon consideration whereof, it is now here

ordered, adjudged and decreed as follows: The judgment

of the district court is affirmed.

App. 51

Certified and issued as Mandate

under Fed. R. App. P. 41.

Richard Cushing Donovan, Clerk

/s/ CMP

Deputy Clerk

Date: 9/13/07

By the Court:

RICHARD CUSHING DONOVAN

Richard Cushing Donovan, Clerk

[cc: Mr. Roig Colon, Mr. Antonetti-Stutts, Mr. Pamias

Velaquez, Mr. Melendez, Mr. Sanchez-Ramos,

Mr. Fernandez-Torres, Mr. Stern, Ms. Klein, Mr.

Perez-Sosa, Ms. Rodriguez-Velez & Mr. Cohn.]

App. 52

2006 WL 2795576

United States District Court, D. Puerto Rico.

COMMONWEALTH OF PUERTO RICO, Plaintiff

v.

UNITED STATES of America, et al., Defendants.

Civil Nos. 06-1305 (JAF), 06-1306(JAF).

Related to Misc. No. 06-049 (JAF).

Sept. 26, 2006.

Jorge R. Roig-Colon, P.R. Department of Justice –

Federal Litigation, Kenneth Pamias-Velazquez, Department

of Justice of P.R., San Juan, PR, for Plaintiff.

Miguel A. Fernandez-Torres, United States

Attorney’s Office, San Juan, PR, for Defendants.

OPINION AND ORDER

JOSÉ ANTONIO FUSTÉ, Chief District Judge.

I.

Background

Plaintiff, the Commonwealth of Puerto Rico,

brings this action against the following Defendants:

(1) the United States of America; (2) Alberto R. Gonzales,

in his official capacity as the United States

Attorney General; (3) Robert Mueller, in his official

capacity as the Director of the Federal Bureau of

Investigations (FBI); (4) Rosa Emilia Rodríguez-

Vélez, in her capacity as the United States Attorney

App. 53

for the District of Puerto Rico;1 and (5) Luis S. Fraticelli,

in his official capacity as Special Agent in

Charge of the FBI in Puerto Rico, asking this court:

(a) to declare Defendants’ refusal to disclose Department

of Justice (DOJ) agency records pertaining to

two controversial FBI operations as violative of the

housekeeping statute, 5 U.S.C. § 301 (1996 &

Supp.2006), regulations promulgated by DOJ pursuant

to the housekeeping statute, 28 C.F.R. §§ 16.21-

16.29, and its sovereign right to pass and enforce

criminal laws as established in the United States

Constitution; and (b) to permanently enjoin Defendants

from withholding any information that Plaintiff

requests pertaining to two FBI operations. Docket

Document No. 1; Civ. No. 06-1306, Docket Document

No. 1. Defendants move to dismiss Plaintiff ’s complaint,

arguing that Plaintiff fails to state claims

upon which relief can be granted because the federal

government has properly invoked a privilege recognized

by the housekeeping statute and related DOJ

regulations that protect agency records from disclosure

when their release would reveal sensitive law

enforcement investigative techniques. Docket Document

Nos. 23, 25. Plaintiff opposes Defendants’ motion,

Docket Document No. 29, and moves for

summary judgment in its favor. Docket Document No.

30. Defendants oppose Plaintiff ’s summary judgment

1 Humberto S. García originally appeared in the caption of

this case, and will be referred to throughout, as the United

States Attorney for the District of Puerto Rico. He retired,

however, and has been succeeded by Rodríguez.

App. 54

motion, Docket Document No. 32, and reply to Plaintiff

’s opposition to their motion to dismiss. Docket

Document No. 35.

Plaintiff ’s complaint is divided into five causes of

action. Docket Document No. 1; Civ. No. 06-1306,

Docket Document No. 1. We grant Defendants’ motion

to dismiss as to Plaintiff ’s first four causes of action

which, inter alia, challenge the constitutionality of

the housekeeping statute and related DOJ regulations,

question whether these laws recognize the law

enforcement investigative technique privilege at all,

and suggest that it is entitled to non-statutory judicial

review of Defendants’ decision to invoke the

investigative techniques privilege. Docket Document

No. 1; Civ. No. 06-1306, Docket Document No. 1; See,

infra, sections IV.A, IV.B, IV.C. As to Plaintiff ’s fifth

and final cause of action, which asks for judicial

review of whether Defendants have correctly invoked

the investigative techniques privilege to protect the

records requested in this case under the Administrative

Procedure Act (APA), 5 U.S.C. §§ 551 et seq.

(1996 & Supp.2006), we also dismiss this, granting

summary judgment in Defendants’ favor. Docket

Document No. 1; Civ. No. 06-1306, Docket Document

No. 1, See, infra, section IV.D.

II.

Factual and Procedural Synopsis

This case concerns two information requests Plaintiff

made of the federal government, and Defendants’

App. 55

refusal to disclose all of the requested records. This

factual summary is derived from the case records

pertaining to two complaints filed by Plaintiff on

March 23, 2006, one for each of the denied information

requests. Docket Document Nos. 1, 11, 23, 25, 26,

29, 30, 35, 37, 38. Though these two complaints were

originally assigned individual case numbers, they

were consolidated under Civ. No. 06-1305 on March

24, 2006, because they presented near-identical legal

issues. Civ. No. 06-1306, Docket Document No. 7.

A. Ojeda Information Requests

We gather the following factual background from

papers and documents on file, as well as from the

DOJ’s Inspector General’s Report on the Ojeda raid.

See U.S. DOJ, Office of the Inspector General, A

Review of the September 2005 Shooting Incident

Involving the FBI and Filiberto Ojeda Ríos, August.

6, 2006, Available at: http://www.usdoj.gov/oig/special/

s0608/full__report.pdf. The parties have referred to

this document in their filings. Docket Document Nos.

37, 38. By making this statement of facts we do not

claim that these facts are beyond controversy or that

they have been definitively established.

Filiberto Ojeda-Ríos helped found the Macheteros,

an organization that seeks to gain Puerto Rico’s

independence by armed struggle against the United

States government, in the mid-1970s. In the years

that followed, the Macheteros claimed responsibility

for various murders and bombings around the island,

App. 56

and have conducted robberies to finance their activities.

One such robbery occurred on September 12,

1983, when the Macheteros stole $7.1 Million from a

Wells Fargo facility in West Hartford, Connecticut;

the theft was one of the largest bank robberies in U.S.

history.

On August 30, 1985, while executing a warrant to

arrest Ojeda in Puerto Rico, FBI agents received no

response when they announced themselves at Ojeda’s

residence. Once the agents entered, however, Ojeda

opened fire and shot one of the federal agents in the

face, permanently blinding him in one eye. After a

standoff, Ojeda was subdued by agents. Ojeda was

first put on trial in Puerto Rico for assaulting the FBI

agents during the arrest, and was acquitted. While

out on bond pending final disposition and sentence in

Connecticut for the bank robbery, Ojeda cut off his

electronic monitoring device and skipped bail. Ojeda

was sentenced for the bank robbery charge in Connecticut

in 1992 in absentia.

Nearly fifteen years later, FBI intelligence revealed

that Ojeda was living in Hormigueros, Puerto

Rico, and the agency began an operation on or around

September 23, 2006, to apprehend him. In the course

of the FBI’s raid of his estate, Ojeda opened fire and

shot an agent in his abdomen. Another agent was also

shot, but ultimately escaped injury because of his

bullet-proof vest. Ojeda himself was shot. On orders

from superiors in Washington, D.C., however, FBI

agents did not enter the Ojeda residence until the

App. 57

next day, by which time Ojeda had died from his

injury.

Puerto Rico DOJ (“PRDOJ”) almost immediately

began an investigation into the Ojeda raid, and to

that end, on October 4, 005, Defendant Fraticelli was

served with a subpoena for the production of related

information and objects. Michael Faries, Chief Division

Counsel with the FBI in Puerto Rico, responded

by letter to Pedro G. Goyco-Amador, Prosecutor

General of the Commonwealth, on October 5, 2005,

reminding him that DOJ regulations, 28 C.F.R.

§§ 16.21-16.29, laid out specific requirements and

procedures for requesting agency records. This regulatory

framework, according to Faries, required Goyco

to “furnish an affidavit or statement to the United

States Attorney’s Office, District of Puerto Rico,”

setting forth a summary of “the particular documents

or testimony requested and their relevance to the

proceedings” for which they are needed.

On October 7, 2005, Puerto Rico Attorney General

Roberto J. Sánchez-Ramos sent the necessary

affidavit to United States Attorney Humberto S.

García in order to complete the Commonwealth’s

information request. In all, PRDOJ requested that

the FBI produce twenty-three categories of information

and materials. Among the items the PRDOJ

demanded were: (1) a copy of the “Operation Order”

relating to the FBI raid on Ojeda’s residence; (2) the

name, rank, division, address, and telephone number

of every person who participated in, knew of, or took

any decision regarding the operation; (3) nearly all

App. 58

equipment, vehicles, and weapons involved in the

raid; (4) information gathered during the FBI’s occupation

of Ojeda’s property; (5) copies of expert reports,

photographs, video and audio recordings relating to

the FBI’s raid; and (6) general protocols for violent

and arrest interventions.

On October 17, 2005, García responded by letter

to Sánchez that the FBI would not surrender any of

the information, objects, and documents sought by

the subpoenas, noting that DOJ regulations precluded

disclosure when it “would reveal investigatory

records compiled for law enforcement purposes, and

would interfere with enforcement proceedings or

disclose investigative techniques and procedures the

effectiveness of which would thereby be impaired.” 28

C.F.R. § 16.26(b)(5) This, García wrote, was a “final

agency decision which may be reviewed by the United

States District Court.”

In subsequent communications between García

and Sánchez, however, García urged Sánchez not to

worry that the FBI’s decision necessarily rendered

the requested objects and information undiscloseable

in perpetuity. There were some items, for instance,

García wrote in an October 21, 2005, letter to

Sánchez, that could possibly be released “once [an

investigation by the DOJ Office of the Inspector

General] as well as other investigations are completed.”

App. 59

In response to the FBI’s refusal to immediately

produce information and objects, PRDOJ threatened

judicial action in a letter dated November 2, 2005.

García wrote Sánchez again on November 9,

2005, indicating his frustration with PRDOJ’s impatience.

In that letter, though, García consented to

permit PRDOJ access to examine certain items listed

in its subpoena, including: (1) the bullet proof vests

and helmets damaged during the intervention; (2) the

weapons fired in the intervention; (3) the vehicle used

to enter Ojeda’s residence; and (4) the photographs

taken before, during, and after the intervention.

García conditioned Plaintiff ’s access to these items,

however, on an FBI official’s presence during inspection.

García further insisted that the FBI would at all

times retain official custody of the items and PRDOJ

would have to share its conclusions with the Office of

the Inspector General (OIG). As to the remaining

items listed in the subpoena, García insisted that

they remained undiscloseable. In the event that his

attempts to compromise were insufficient, García

reminded Plaintiff that the APA provided an opportunity

for judicial review of the agency’s decision.

Plaintiff accepted García’s invitation to examine

the vests, helmets, weapons, vehicle, and photographs.

On January 20, 2006, however, Plaintiff

issued another angry letter to García requesting that

he produce additional agency records – contact information

for “those individuals who can shed the most

light into the chronology and nature of the events

that transpired on the field during the intervention

App. 60

with Mr. Ojeda Ríos, as well as regarding the key

decisions concerning the manner and conduct of said

intervention” – within one week, by January 27,

2006. On January 26, 2006, García sent Plaintiff a

letter refusing this demand, referencing the gency’s

earlier and oft-repeated invocations of 28 C.F.R.

§ 16.26(b)(5).

Plaintiff filed a lawsuit in this court on March 23,

2006, seeking declaratory and injunctive relief from

Defendants’ refusal to release the requested records.

Civ. No. 06-1305, Docket Document No. 1.

B. 444 De Diego Information Requests

In the aftermath of the Ojeda raid, FBI agents

retrieved information from his residence which was,

in turn, used by the agency to help establish the

probable cause necessary to obtain additional search

warrants relating to their investigation of several

specific criminal activities being planned by the

Macheteros. As FBI agents executed one of these

search warrants at a residential condominium located

at 444 de Diego, in the Río Piedras area of San Juan,

Puerto Rico, on February 10, 2006, a large group of

protesters, reporters, and curious members of the

general public clustered outside. Apparently, some of

these citizens are claimed to have breached an established

police line despite FBI agents’ orders to the

contrary. Eventually, an FBI agent used pepper spray

to drive the surging public back behind what they

understood was the police line.

App. 61

Plaintiff began an investigation into these

events, issuing subpoenas on February 17, 2006,

against García and Fraticelli for the production of

certain information, documents, and objects pertaining

to the FBI’s search of 444 de Diego. The subpoenas,

which preemptively included an affidavit similar

to the one required in the context of the Ojeda information

request summarizing the documents requested

and their relevance to the proceedings,

ordered production of the requested materials by

February 28, 2006. The three categories of requested

materials were: (1) the name, rank, division, address,

and telephone number of two FBI agents who allegedly

used pepper spray and whose photos were attached

to the subpoena; (2) official photographs of

these two FBI agents; and (3) internal FBI protocols

relating to the use of force and pepper spray.

Facing possible criminal contempt charges for

failing to respond, García and Fraticelli filed a motion

in this court to quash the subpoenas on February 28,

2006. Misc. No. 06-49, Docket Document No. 1. Plaintiff

sent a letter to United States Attorney General

Alberto Gonzales on March 1, 2006, asking for his

help in getting the FBI to respond to the subpoenas.

Plaintiff opposed García and Fraticelli’s motion to

quash the subpoenas on March 2, 2006. Misc. No. 06-

49, Docket Document No. 3. We convened a hearing

that same day, during which the federal government’s

lawyers reminded Plaintiff that it had to follow DOJ

regulations, which meant pursuing an agency decision

through the proper regulatory framework set

App. 62

forth in 28 C.F.R. §§ 16.21-16.29, in order to properly

requisition the records at issue. Misc. No. 06-49,

Docket Document No. 2. Plaintiff indicated that it was

evaluating other avenues to get information about the

444 de Diego search, and that it had no serious intention

of enforcing the challenged subpoenas at that

time. Misc. No. 06-49, Memorandum Order, Docket

Document No. 4. Given this court’s view that Plaintiff

had “effectively mooted” the issue before it by disavowing

an intent to enforce the subpoenas, we

declined to rule on Plaintiff ’s motion to quash. Id.2

The next step Plaintiff took with respect to the

444 de Diego information request was to file the

instant lawsuit on March 23, 006, seeking declaratory

and injunctive relief from Defendants’ failure to

release the requested records. Docket Document No.

1.

C. Cases Reassigned, Consolidated

Plaintiff ’s complaint seeking Ojeda raid information

was originally assigned to Judge Domínguez.

2 Much has been made by observers of the court process

about the fact that our Memorandum Order of March 2, 2006,

Misc. No. 06-049, Docket Document No. 4, made factual findings

without receiving evidence. However, it is evident that that is

not the case. Our factual narrative, like that in the present case,

is open to precise substantiation if and when any of these

controversies reach a trial on the merits. Ascribing any purpose

to those narratives other than a simple informative background

is totally misplaced.

App. 63

Observing that it implicated many of the same legal

issues as Misc. No. 06-49, an action over which the

undersigned had retained jurisdiction, Judge Domínguez

reassigned the case to the undersigned on

March 24, 2006. Docket Document No. 3. That same

day, and in recognition of the fact that Plaintiff ’s

complaint seeking Ojeda raid information implicated

the same legal issues as Plaintiff ’s complaint seeking

444 de Diego information, the undersigned consolidated

those two actions into one. Docket Document

No. 6.

Defendants moved to dismiss this case in its

entirety on May 23, 006. Docket Document Nos. 23,

25. Plaintiff opposed the motion on June 7, 2006,

Docket Document No. 29, and filed a motion for

summary judgment that same day. Docket Document

No. 30. Defendants opposed Plaintiff ’s summary

judgment motion on June 20, 2006, Docket Document

No. 32, and replied to Plaintiff ’s opposition to their

motion to dismiss on June 28, 2006. Docket Document

No. 35.

III.

Standards

A. Motion to Dismiss Standard

Under Federal Rule of Civil Procedure 12(b)(6), a

defendant may move to dismiss an action against

him based solely on the pleadings for the plaintiff ’s

“failure to state a claim upon which relief can be

App. 64

granted.” FED.R.CIV.P. 12(b)(6). In assessing a motion

to dismiss, “we accept as true the factual averments

of the complaint and draw all reasonable

inferences therefrom in the plaintiffs’ favor.” Educadores

Puertorriqueños en Acción v. Hernández, 367

F.3d 1, 62 (1st Cir.2004) (citing LaChapelle v. Berkshire

Life Ins. Co., F.3d 507, 508 (1st Cir.1998)); see

also Wash. Legal Found. v. Mass. Bar Found., 993

F.2d 962, 971 (1st Cir.1993). We then determine

whether the plaintiff has stated a claim under which

relief can be granted.

We note that a plaintiff must only satisfy the

simple pleading requirements of Federal Rule of Civil

Procedure 8(a) in order to survive a motion to dismiss.

Swierkiewicz v. Sorema N.A., 534 U.S. 06

(2002); Morales-Villalobos v. García-Llorens, 316 F.3d

51, 52-53 (1st Cir.2003); DM Research, Inc. v. Coll. of

Am. Pathologists, 170 F.3d 53, 55-56 (1st Cir.1999). A

plaintiff need only set forth “a short and plain statement

of the claim showing that the pleader is entitled

to relief,” FED.R.CIV. P. 8(a)(2), and need only give

the respondent fair notice of the nature of the claim

and petitioner’s basis for it. Swierkiewicz, 534 U.S. at

512-515. “Given the Federal Rules’ simplified standard

for pleading, ‘[a] court may dismiss a complaint

only if it is clear that no relief could be granted under

any set of facts that could be proved consistent with

the allegations.’ ” Id. at 514 (quoting Hishon v. King

& Spalding, 467 U.S. 69, 73 (1984)).

App. 65

B. Summary Judgment Standard

The standard for summary judgment is straightforward

and well-established. A district court should

grant a motion for summary judgment “if the pleadings,

depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material

fact and that the moving party is entitled to a

judgment as a matter of law.” FED.R.CIV.P. 56(c). A

factual dispute is “genuine” if it could be resolved in

favor of either party, and “material” if it potentially

affects the outcome of the case. Calero-Cerezo v. U.S.

Dep’t of Justice, 355 F.3d 6, 19 (1st Cir.2004).

The moving party carries the burden of establishing

that there is no genuine issue as to any material

fact, though the burden “may be discharged by ‘showing’

– that is, pointing out to the district court – that

there is an absence of evidence to support the nonmoving

party’s case.” Celotex Corp. v. Catrett, 477

U.S. 317, 325 (1986). The burden has two components:

(1) an initial burden of production that shifts

to the nonmoving party if satisfied by the moving

party; and (2) an ultimate burden of persuasion that

always remains on the moving party. Id. at 331.

The non-moving party “may not rest upon the

mere allegations or denials of the adverse party’s

pleading, but . . . must set forth specific facts showing

that there is a genuine issue for trial.” FED.R.CIV.P.

56(e). Summary judgment exists “to pierce the boilerplate

of the pleadings and assess the proof in order to

App. 66

determine the need for trial.” Euromodas, Inc. v.

Zanella, 368 F.3d 11, 17 (1st Cir.004) (citing Wynne v.

Tufts Univ. Sch. of Med., 976 F.2d 791, 794 (1st

Cir.1992)).

IV.

Legal Analysis

Defendants have refused to produce the documents

Plaintiff requested pursuant to the housekeeping

statute and the DOJ’s Touhy regulations.

Plaintiff ’s complaint challenging Defendants’ decision

alleges five causes of action, Docket Document No. 1,

and we shall analyze each of these in turn.

A. Do the Housekeeping Statute or the Touhy

Regulations Create a Substantive Privilege

to Protect DOJ Information?

Plaintiff ’s first and second causes of action claim

entitlement to declaratory and injunctive relief

ordering Defendants to produce all requested information,

objects, and documents (“information”). First,

Plaintiff argues that the housekeeping statute, 5

U.S.C. § 301, does not create or authorize DOJ to

create through regulations, any independent privileges

that could preclude disclosure of agency records.

Docket Document No. 1. Alternatively, Plaintiff argues

that, even if it were legitimate for Defendants to

invoke such a privilege to protect agency records generally,

the DOJ’s Touhy regulations, 28 C.F.R. §§ 16.21-

16.29, explicitly bar Defendants from applying the

App. 67

privilege to a request for DOJ records made by Commonwealth

law enforcement officials. Id.

According to the Supreme Court, housekeeping

statutes have enjoyed a “long and relatively uncontroversial

history” of “grant[ing] authority to the

agency to regulate its own affairs.” Chrysler Corp. v.

Brown, 441 U.S. 281, 309 (1979). Indeed, their roots

“go back to the beginning of the Republic, when

statutes were enacted to give heads of early Government

departments authority to govern internal

department affairs.” Id.; see also Act of July 27, 1789,

ch.4 1 Stat. 29 (Department of Foreign Affairs); Act of

August. 27, 1789, ch. 7, 1 Stat. 50 (Department of

War) (“[T]he Secretary for the department . . . shall

. . . be entitled to have the custody and charge of all

records, books and papers . . . ). The modern-day

housekeeping statute – the statute at issue in this

case – was last amended in 1958, and provides that:

[t]he head of an Executive department . . .

may prescribe regulations for the government

of his department, the conduct of his

employees, the distribution and performance

of its business, and the custody, use, and

preservation of its records, papers, and property.

. . .

U.S.C. § 301.

The DOJ, in accordance with its authority to

manage its own records, has promulgated regulations

outlining the procedure that must be followed when the

agency or one of its employees receives a subpoena for

App. 68

the “production or disclosure” of DOJ records. 28

C.F.R. § 16.21(a) (“This subpart sets forth procedures

to be followed with respect to the production or disclosure

of any material contained in the files of the

Department . . . [i]n all federal and state proceedings

in which the United States is not a party . . . when a

subpoena . . . is issued for such material . . . ”). The

DOJ regulations are commonly known as Touhy

regulations after the 1951 Supreme Court case with

the same name. In that case, United States ex rel. v.

Touhy, a habeas petitioner subpoenaed FBI records

pertaining to his conviction. 340 U.S. 462, 463-64

(1951). The Attorney General, acting pursuant to

agency regulations placing such decision-making in

his hands (“Touhy regulations”), ordered his subordinates

not to respond to the subpoena. Id. at 464. The

Supreme Court held that an FBI agent refusing to

answer a subpoena under such circumstances could

not be found guilty of contempt. Id. at 468. According

to the Court, the Attorney General, as the centralized

DOJ decision-maker for such information demands,

could “validly withdraw from his subordinates the

power to release department papers.” Id. at 467. The

Touhy Court further commented on the wisdom of

regulations placing such agency determinations in

the hands of one single person: “When one considers

the variety of information contained in the files of any

government department and the possibilities of harm

from unrestricted disclosure in court, the usefulness,

indeed the necessity, of centralizing determination as

to whether a subpoena duces tecum will be willingly

obeyed or challenged is obvious.” Id. at 468.

App. 69

The DOJ’s Touhy regulations hold that no agency

employee “shall, in response to a demand, produce

any material contained in the files of the Department.”

28 C.F.R. § 16.22(a). Instead, the employee

“shall immediately notify the U.S. Attorney for the

district where the issuing authority is located.” 28

C.F.R. § 16.22(b). When the subpoena seeks information

other than oral testimony, the responding U.S.

Attorney, in turn, “shall request a summary of the

information sought and its relevance to the proceeding.”

28 C.F.R. § 16.22(c).

The responding U.S. Attorney must then determine

whether to release the requested records and

may be required to collaborate in this regard with the

custodian of the records at issue. 28 C.F.R. §§ 16.24(a),

(b)(1), (d)(1), (f). Among the factors the U.S. Attorney

must consider in deciding whether to make disclosures

pursuant to a request is “[w]hether disclosure is

appropriate under the relevant substantive law

concerning privilege.” 28 C.F.R. § 16.26(a)(2). The

Touhy regulations further explain that “[a]mong the

demands in response to which disclosure will not be

made are those demands with respect to which . . .

[d]isclosure would reveal investigatory records compiled

for law enforcement purposes, and would

interfere with enforcement proceedings or disclose

investigative techniques and procedures the effectiveness

of which would thereby be impaired.” 28 C.F.R.

§ 16.26(b)(5). Plaintiff argues that Touhy’s mention of

this investigative technique privilege is improper, and

that by extension, Defendants’ invocation of the

App. 70

investigative technique privilege to protect DOJ

records is, therefore, also improper. Docket Document

Nos. 1, 11, 29.

Plaintiff is correct insofar as it means to say that

DOJ Touhy regulations do not themselves create

privileges to protect information. In fact, in 1958,

Congress amended 5 U.S.C. § 301 to explicitly emphasize

that nothing in the statute itself, and, therefore,

nothing in the Touhy regulations promulgated

thereunder, may “authorize withholding information

from the public or limiting the availability of records

to the public.” 5 U.S.C. § 301; See also Chrysler Corp.

v. Brown, 441 U.S. 281, 310 (1979) (emphasizing that

§ 301 “is a ‘housekeeping statute,’ authorizing rules of

agency organization, procedure, or practice, as opposed

to ‘substantive rules’ ”); Kwan Fai Mak v. FBI,

252 F.3d 1089, 1092 (9th Cir.001) (“[T]he regulations

do not create an independent privilege authorizing

the Department of Justice to withhold information.

Nor could they, because the statutory authority for

them, 5 U.S.C. § 301, makes clear [that they may

not].”) (quotations omitted); Exxon Shipping Co. v.

United States, 34 F.3d 774, 776 (9th Cir.94) (“Section

301 does not, by its own force, authorize federal

agency heads to withhold evidence sought under a

valid federal subpoena.”).

However, even though the housekeeping statute

and the Touhy regulations do not themselves create

substantive privileges, the federal government can

invoke substantive privileges existing independently

of those laws to protect information demanded

App. 71

through the Touhy process. See United States ex rel.

Touhy v. Ragen, 340 U.S. 462, 473 (1951) (J. Frankfurter,

concurring) (noting, even though the issue was

not before the Court, that “[i] t will of course be open

to [the Attorney General] to raise those issues of

privilege from testimonial compulsion”); Exxon Shipping

Co., 34 F.3d at 780 (recognizing that the federal

government is “free to raise any possible claims of

privilege from testimonial compulsion that may

rightly be available to it”). As discussed, the DOJ’s

Touhy regulations permit the U.S. Attorney to consider

“[w]hether disclosure is appropriate under the

relevant substantive law concerning privilege,” 28

C.F.R. § 16.26(a)(2), and specifically mention that

certain records may be sensitive because their disclosure

may “interfere with enforcement proceedings or

disclose investigative techniques and procedures the

effectiveness of which would thereby be impaired.” 28

C.F.R. § 16.26(b)(5). The mention of substantive

privilege in the Touhy regulations, then, does not

constitute regulatory creation of those substantive

privileges, but rather regulatory recognition of their

existence. We must, therefore, dismiss Plaintiff ’s

claim that they are entitled to declaratory and injunctive

relief in this case because of Plaintiff ’s belief that

the housekeeping statute and the DOJ’s Touhy regulations

impermissibly create a privilege for Defendants

to invoke to protect the requested records from

disclosure.

Plaintiff alternatively argues that even if we find

that privileges exist to protect agency records requested

App. 72

through the Touhy process generally, Touhy regulations

explicitly bar Defendants from invoking such

privileges against information requests made by

Commonwealth of Puerto Rico law enforcement. In

support of this argument, Plaintiff cites a DOJ Touhy

regulation that reads: “Nothing in this subpart is

intended to impede the appropriate disclosure, in the

absence of a demand, of information by Department

law enforcement agencies to federal, state, local and

foreign law enforcement, prospective, or regulatory

agencies.” 28 C.F.R. 16.1(c).

There is a dearth of case law interpreting 28

C.F.R. § 16.21(c). It appears, however, that Plaintiff

fails to state a claim for declaratory or injunctive

relief thereunder because § 16.21(c)’s plain language

does not establish what Plaintiff purports it does, i.e.,

a categorical rule that the DOJ can never withhold

information from a state law enforcement agency.

Section 16.21(c) states that the DOJ’s Touhy regulations

are not meant to impede the “appropriate

disclosure” of agency records requested by federal,

state, local, or foreign law enforcement agencies. If

§ 16.21(c)’s use of the word “appropriate” is to have

any meaning – and we think that it must – then there

must be instances where the DOJ’s information

disclosure to a fellow law enforcement agency would

be appropriate as well as instances where the DOJ’s

information disclosure to a fellow law enforcement

agency would be inappropriate. Thus, we find that

Plaintiff has failed to establish valid claims for either

of its first two causes of action.

App. 73

B. Does the Invocation of Privilege Under the

Housekeeping Statute or the Touhy Regulations

Unconstitutionally Abrogate Plaintiff’s

Sovereign Right to Enforce its Criminal

Laws?

Plaintiff ’s third cause of action alleges that

Defendants’ invocation of a substantive privilege to

protect its records from disclosure constitutes an

unconstitutional abrogation of Puerto Rico’s sovereign

right to enforce its criminal law. Docket Document No.

1. It is well established that “[f]oremost among the

prerogatives of [State] sovereignty is the power to

create and enforce a criminal code.” Heath v. Alabama,

474 U.S. 82, 93 (1985). This authority even

extends to federal agents who have committed criminal

acts in circumstances where they are not protected

by qualified immunity. See United States ex rel.

Drury v. Lewis, 200 U.S. 1, 7 (1906) (holding that

state could prosecute soldiers for murder when they

allegedly unlawfully shot a suspect after he had

surrendered); but c.f. Cunningham v. Neagle, 135

U.S. 1 (1890) (holding that a federal law enforcement

agent enjoys Supremacy Clause immunity from state

criminal prosecution when his violation of state law

arises from reasonable execution of his official duties).

There is, therefore, no question that Plaintiff is

within its rights to criminally investigate a federal

agent that it reasonably suspects may have committed

a crime while acting outside the scope of his or

her official duties. The subpoenas at issue in this case

are allegedly incident to such an investigation, and

we have no doubt that Defendants’ refusal to comply

App. 74

with the subpoenas makes that investigation more

complicated.

Citing this complication, Plaintiff argues that

Defendants’ refusal to produce the requested documents

in this case, made pursuant to the housekeeping

statute and the Touhy regulations, unconstitutionally

infringes upon Plaintiff ’s sovereign right to enforce

its criminal laws. In support of its position, Plaintiff

cites case law evincing two strands of Supreme Court

doctrine regarding the balance of federal and state

sovereignty. Docket Document No. 11, 29. The Court’s

holding in United States v. Morrison, for instance,

supports a check on Congress when it attempts to

claim powers specifically denied to it by the framers,

such as a general police power superceding that of the

states. 529 U.S. 598 (2000) (“The Constitution requires

a distinction between what is truly national

and what is truly local.”). The Court’s holding in New

York v. United States, on the other hand, delimits the

federal government’s ability to forcibly commandeer

state resources to achieve federal aims. 505 U.S. 144

(1992).

In Morrison, the Supreme Court invalidated a

provision of the federal Violence Against Women Act

(VAWA) establishing a civil remedy for victims of

gender-motivated violence. 529 U.S. 598 (2000).

Observing how attenuated gender-motivated violence’s

impact is on interstate commerce, the Court

concluded that the VAWA provision is not a justifiable

exercise of Congress’ legislative authority under the

Commerce Clause. Id. at 614-19. To rule otherwise,

App. 75

according to the Court, would be “to obliterate the

Constitution’s distinction between national and local

authority.” Id. at 615. The housekeeping statute and

the Touhy regulations, however, do not present the

same risk. Instead, they set forth a procedural

framework by which the federal government responds

to information demands submitted to it by any interested

party. We recognize that the federal government’s

claim of privilege in this case is frustrating for

Plaintiff, but we simply do not see how it unconstitutionally

intrudes upon Plaintiff ’s sovereign right to

conduct criminal investigations. To be sure, it may

make Plaintiff ’s criminal investigation more difficult

than it might otherwise be, but the same may be said

of other testimonial privileges recognized by the law.

Plaintiff also cites to New York v. United States, a

case in which the Supreme Court invalidated a federal

law requiring the states to either regulate their

radioactive waste disposal or take title to it. 505 U.S.

144 (1992). Based on an analysis of the federalist

principles embodied in Article I and the Tenth

Amendment of the United States Constitution, the

Court held that it was unconstitutional for the federal

government to compel states to adopt legislative

programs in order to further federal interests. Id. at

167-68 (explaining alternative, constitutional ways

the federal government could achieve the same ends,

e.g., by conditioning the receipt of federal funds on a

state’s willingness to craft desired regulations). “[T]he

Act commandeers the legislative processes of the

States by directly compelling them to enact and

App. 76

enforce a federal regulatory program, an outcome

that has never been understood to lie within the

authority conferred upon Congress by the Constitution.”

Id. at 176 (internal citations omitted). Taking

the Court’s holding into account, we fail to see, and

Plaintiff fails to explain, how it applies to Defendants’

refusal to release the requested information. It is

unclear how Defendants’ decision could run afoul of

the Constitution when it does not compel Plaintiff to

do anything at all.

Having concluded that Defendants’ decision not

to disclose agency records does not implicate Puerto

Rico’s sovereign right to enforce its criminal laws

under the United States Constitution, we dismiss

Plaintiff ’s third cause of action.

C. Does the APA Govern the Judicial Review of

Defendants’ Decision Not to Release the Records

Requested by Plaintiff?

We must next consider whether the APA governs

judicial review of Defendants’ decision not to release

its records. Plaintiff argues in its fourth cause of

action that we should conduct non-statutory judicial

review of Defendant’s decision, and that the APA can

apply only as an absolutely last resort. Docket Document

No. 1. According to Defendants, however, their

decision is subject to review only under the APA.

Docket Document No. 23.

It was established, even before the APA was

passed, that sovereign immunity does not bar suits

App. 77

seeking non-statutory judicial review for nonmonetary,

specific relief against federal government

officials where the officials’ challenged actions are

alleged to be unconstitutional or beyond their statutory

authority. Clark v. Library of Congress, 750 F.2d

89, 102 (D.C.Cir.1984) (listing cases); see also Chamber

of Commerce v. Reich, 74 F.3d 1322, 1327

(D.C.Cir.1996) (if a plaintiff is unable to bring his

case predicated on either a specific or a general

statutory review provision, he may still be able to

institute a non-statutory review action). Plaintiff

presumably prefers non-statutory judicial review

based on the hope that it might offer more liberal

procedural requirements than the APA, and perhaps

a more liberal judicial review standard. To proceed

with an APA action in this case, for instance, Plaintiff

would have to show that DOJ made a final agency

decision with respect to its information requests. 5

U.S.C. § 704 (“Every agency action made reviewable

by statute and every final agency action . . . shall be

subject to judicial review.”). Defendants do, in fact,

contest whether Plaintiff has obtained such a final

agency decision with respect to one of the information

requests at issue in this case. Docket Document No.

29; see infra, section IV.D. Moreover, a successful APA

action would hinge on whether DOJ’s refusal to

disclose the requested records was an “arbitrary and

capricious” decision in light of housekeeping statute

and Touhy regulation standards. 5 U.S.C. § 706(2)(A);

see infra, section IV.D. This “arbitrary and capricious”

judicial review standard is extremely deferential to

the agency.

App. 78

In support of its suggestion that judicial review

of Defendants’ decision to withhold records is not

governed by the APA, Plaintiff refers us to Leedom v.

Kyne, a Supreme Court case holding that a United

States District Court had general jurisdiction to hear

a lawsuit against the National Labor Relations Board

for placing professional employees into a bargaining

group with non-professional employees in clear

violation of federal law, even though the NLRB’s

action was not eligible for any statutory judicial

review. 358 U.S. 184, 190 (1958). If no judicial review

were available under federal courts’ general jurisdiction

when the federal government acted to deprive

rights in excess of its delegated powers, the Court

reasoned, laws passed by Congress would be unenforceable

and robbed of their vitality. Id.

Plaintiff also invokes a similar ruling by the First

Circuit in Rhode Island Department of Environmental

Management v. United States to further justify its

position that its claim need not be under the APA and

that it may proceed under the court’s equitable powers

and in the general federal jurisdiction of 28 U.S.C.

§ 1331. 304 F.3d 31 (1st Cir.2002). In that case, a

Rhode Island state agency that had been haled before

a federal administrative law judge (ALJ) argued that

sovereign immunity protected it from defending itself

in that federal forum. Id. at 39 n. 2. After the ALJ

rejected the sovereign immunity argument, the state

agency filed a federal lawsuit seeking judicial review,

and the district court ruled in the state’s favor. Id. at

36.

App. 79

The First Circuit, while holding that the ALJ had

never made a “final agency decision” reviewable by

the district court under the APA, endorsed the district

court’s non-statutory judicial review of the ALJ’s

determination anyway, noting that the question of

whether the state was protected by sovereign immunity

would have otherwise remained ineligible for

judicial review until after the ALJ entered a final

decision in the administrative dispute, that is to say,

until well after the state’s sovereign interest in “prevent[

ing] the indignity of [being] subject[ed] . . . to the

coercive process of judicial tribunals” had already

been compromised. Id. at 41 (internal quotations and

citations omitted).

While Leedom and Rhode Island indeed present

peculiar instances where non-statutory judicial

review of agency action was permitted, they do not

stand for the proposition that a United States District

Court is authorized to allow non-statutory review

whenever a party requests it. Rather, non-statutory

judicial review of the kind seen in Leedom and Rhode

Island is only available within “painstakingly delineated

procedural boundaries.” See Boire v. Greyhound

Corp., 376 U.S. 473, 481 (1964). Furthermore, the

Supreme Court has set forth the factors that must be

present to invoke non-statutory review. Rhode Island,

304 F.3d at 42-43. One factor that must be present is

a showing that the denial of judicial review of a nonfinal

agency decision would “wholly deprive the

[party] of a meaningful and adequate means of vindicating

its rights.” Bd. Of Governors of Fed. Reserve

App. 80

System v. Mcorp Fin. Inc., 502 U.S. 32, 43 (1991). It is

this factor that was central to the Supreme Court’s

decision in Leedom, where the professional employees

had no other recourse through which to obtain judicial

review, and central to the First Circuit’s decision

in Rhode Island, where the state’s sovereign immunity

would not survive intact if it had been forced to

wait to seek judicial intervention until the federal

administrative proceeding had already run its course

against it.

By contrast, there is no indication that denial of

non-statutory review of Defendants’ decision to withhold

would deprive Plaintiff of a meaningful and

adequate means of vindicating its rights. It is very

clear Plaintiff has a means of vindicating its rights:

Through the APA. Kwan Fai Mak v. FBI, 252 F.3d

1089, 1091 n. 5 (9th Cir.2001) (“[T]he proper procedure

for the party seeking to compel disclosure in

such circumstances is to file a separate action in

federal court under the APA.”); COMSAT Corp. v.

Nat’l Sci. Found., 190 F.3d 269, 271 (4th Cir.1999)

(“[W]hen the government is not a party to the underlying

action, an agency’s refusal to comply with a

subpoena must be reviewed under the standards