The
Corrupted
Government
of Puerto Rico
Its
involvement is not only with the criminal
mortgage banking
It’s also
using public resources defending terrorists
Read the
following appeal before the U.S. Supreme Court and learn more about it
Click here
to see the federal indictments against the
governor Anibal Acevedo Vila and Senator Jorge DeCastro Font
================================================================
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
established for final agency actions by the [APA] . . . ”);
Smith v. Cromer, 159 F.3d 875, 881 (4th Cir.1998)
(“[The] remedy, if any, for the Justice Department’s
[refusal to release information] in the instant case
may be found in the [APA] . . . ”); In re Elko County
Grand Jury v. Siminoe, 109 F.3d 554, 557 n. 1 (9th
Cir.1997) (“The appropriate means for challenging [a
App. 81
federal agency’s] decision under Touhy is an action
under the Administrative Procedure Act in federal
court.”). The APA expressly provides Plaintiff with a
meaningful and adequate opportunity for judicial
review of Defendants’ action.
In addition, we disagree with Plaintiff ’s final
argument regarding the inapplicability of the APA to
the present case. Plaintiff cites to a footnote in Exxon
Shipping Co. v. United States Department of Interior,
which states that, in some instances, “APA proceedings
can be costly, time-consuming, inconvenient to
litigants, and may effectively eviscerate any right to
the requested testimony.” 34 F.3d 774, 780 n. 11 (9th
Cir.1994) (internal quotations omitted) (citing to In re
Recalcitrant Witness, 25 F.3d 761 (9th Cir.1994)). This
argument is misplaced. The Exxon Shipping Co.
footnote contemplates the potential inadequacy of the
APA only in a limited circumstance; namely, when a
plaintiff ’s access to a government witness’ testimony
would be precluded if forced to wait for an APA action
to ripen. This narrow exception to the general rule
that the APA governs review of all agency action does
not apply to the case at hand. We, therefore, dismiss
Plaintiff ’s fourth cause of action requesting nonstatutory
judicial review of Defendants’ decision not
to release the agency records requested in this case.
App. 82
D. Is Defendants’ Decision Not to Release the
Requested Records “Arbitrary and Capricious”
Under the APA?
The Administrative Procedure Act, which was
first passed in 1946, sets forth rules by which agencies
exercising congressionally delegated executive,
legislative, and judicial powers execute those functions.
See Steven P. Croley, The Administrative Procedure
Act and Regulatory Reform: A Reconciliation,
10 ADMIN. L.J. AM. U. 35, 36 (1996). It also grants
individuals the right to judicial review of agency
action. 5 U.S.C. § 702. The original text of § 702 of the
APA, the provision granting individuals the right to
judicial review of agency action, provided that “[a]
person suffering legal wrong because of agency action,
or adversely affected or aggrieved by agency
action within the meaning of a relevant statute, is
entitled to judicial review thereof.” S.Rep. No. 94-996,
pp. 19-20 (1976) (S.Rep.). A 1976 amendment to that
law added language stating that “[a]n 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 denied on the
ground that it is against the United States . . . ” 5
U.S.C. § 702. (1996 & Supp.2006). As amended, then,
§ 702 waives the federal government’s sovereign
immunity defense with regard to lawsuits seeking
non-monetary relief for improper Federal administrative
action. Clark v. Library of Congress, 750 F.2d 89,
App. 83
102 (D.C.Cir.1984); see also David A. Webster, Beyond
Sovereign Immunity: 5 U.S.C. § 702 Spells Relief, 49
OHIO ST. L.J. 725, 726 (1988) (discussing how courts
have interpreted what constitutes a “non-monetary
relief” lawsuit under § 702).
The scope of judicial review for agency action is
set forth by § 706 of the APA, which states that the
reviewing court may reverse an agency’s action only if
it was “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with the law.”3 5 U.S.C.
§ 706(2)(A) (1996 & Supp.2006). Judicial review is
accordingly “severely limited,” and courts are only
free to determine whether the agency followed its
own guidelines or committed a clear error of judgment.”
Davis Enter. v. EPA, 877 F.2d 1181, 1186 (3d
3 Even if we were to determine that
Defendants arbitrarily
or capriciously misapplied DOJ’s Touhy regulations,
however,
we are not entirely sure that the APA
empowers us to compel
release of the requested information in
the present case, for the
Touhy regulations make
clear that they “are intended only to
provide guidance for the internal
operations of the Department
of Justice, and [are] not intended to, and
[do] not, and may not
be relied upon to create any right or
benefit, substantive or
procedural, enforceable at law by a party
against the United
States.” 28 C.F.R. § 16.21(d); Compare
Smith v. Cromer, 159
F.3d 875, 880 (4th Cir.1998) (“It is . . .
incorrect to conclude that
the Justice Department regulations, if
properly ‘complied’ with,
confer some entitlement on parties seeking
the disclosure of
agency records. The regulations do not
purport to grant any
right of access to applications.”), with
Kasi v. Angelone, 300 F.3d
487, 506 (4th Cir.2002) (stating that a
district court may, under
the APA, “compel the law enforcement
agency to produce the
requested information in appropriate
cases”).
App. 84
Cir.1989). We may not substitute our own judgment
for that of an agency. Id. at 1186.
A plaintiff may not seek substantive judicial
review of an agency’s decision until the contested
agency decision is “final.” 5 U.S.C. § 704 (“Every
agency action made reviewable by statute and every
final agency action . . . shall be subject to judicial
review.”). The Supreme Court has held that an
agency action is considered “final” only when the
action signals the consummation of the agency’s
decisionmaking process and gives rise to legal consequences.
See Bennett v. Spear, 520 U.S. 154, 156
(1997). Although Defendants concede that Plaintiff
has secured a final decision with respect to its Ojeda
information requests, Defendants argue that Plaintiff
has not secured a final decision with respect to its 444
de Diego information request and, therefore, the
Plaintiff ’s claim regarding the 444 de Diego request
must be dismissed. Docket Document No. 23.
In fact, Plaintiff has not submitted anything into
the record indicating that the government made a
final decision on its demand with regard to its 444 de
Diego requests. This is a bizarre procedural omission
on Plaintiff ’s part, given that it was publicly advised
during our March 2, 2006, hearing that it must follow
the Touhy process in order to achieve a final agency
decision. Misc. No. 06-49, Docket Document No. 7.
Moreover, Plaintiff was obviously fully aware of this
requirement from its experience making its Ojeda
information requests. Rather than cure its procedural
deficiencies, Plaintiff instead chose to simply file this
App. 85
lawsuit three weeks later demanding access to the
444 de Diego records. Thus, because Plaintiff has
failed to secure a final decision regarding the 444 de
Diego information requests, we cannot move to the
substantive merits of the government’s withholding.
Plaintiff tries to wave away the procedural
shortcomings of its 444 de Diego information requests
in its summary judgment motion by pointing to a
letter it received from the FBI’s General Counsel,
Valerie Caproni, on April 7, 2006, stating that “all
matters pertaining to [the 444 de Diego information
request] will be resolved by the District Court. It is
the opinion of this office that no further action should
be taken by the FBI pending such resolution.” Docket
Document No. 30, Exh. 2. Plaintiff argues that this
letter constitutes final agency action and that the
substantive merits of Defendants’ refusal to release
444 de Diego information is, therefore, subject to
judicial review under the APA. Plaintiff ’s invocation
of Caproni’s April 7, 2006, letter as a final agency
decision reviewable under the APA is unacceptable,
however, for Plaintiff filed its complaint against
Defendants on March 23, 2006 – approximately two
weeks before the Caproni letter was written. Ultimately,
then, we find that Plaintiff ’s claim under the
APA that the government improperly withheld the
444 de Diego information fails.
We now move to the last issue in this litigation,
which is whether Defendants’ decision to invoke the
law enforcement investigatory techniques privilege
against the disclosure of all requested Ojeda records
App. 86
was arbitrary.4 Docket Document No. 25. Defendants
claim that the investigatory techniques privilege is
the basis for withholding all requested Ojeda records.
Docket Document No. 25. As discussed, Defendants
concede that their refusal to release the Ojeda records
is a final agency decision, and reviewing courts may
reverse final agency decisions if they are “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with the law.” 5 U.S.C. 706.
The investigatory techniques privilege is “based
primarily on the harm to law enforcement efforts
which might arise from public disclosure of . . . investigatory
files.” United States v. Winner, 641 F.2d 825,
831 (10th Cir.1981) (discussing how the Deputy
Attorney General may invoke the law enforcement
privilege to protect DOJ records from release in the
context of a Touhy demand) (citing Black v. Sheraton
Corp., 564 F.2d 531 (D.C.Cir.1977)).
Defendants assert that the release of the Ojeda
records that Plaintiff requested “would [reveal], inter
alia, how the FBI goes about capturing a fugitive who
4 Defendants originally also invoked a
privilege protecting
law enforcement investigatory files from
release when they
could reveal sensitive information
relating to an ongoing
government investigation. Docket
Document No. 25. On September
6, 2006, after the DOJ’s Office of the
Inspector General
completed its investigation and issued an
extensive report
regarding the FBI operation to arrest
Ojeda, Defendants
indicated to this court that they would
thereafter exclusively
rely on the law enforcement privilege to
protect the requested
DOJ records from release. Docket
Document No. 38.
App. 87
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.” Docket Document No. 25.
The records Plaintiff requested include the “operation
order” relating to the attempt to apprehend Ojeda;
detailed information about every person involved in
the operation (including name, rank, and division);
lists compiled during the operation; FBI organizational
charts; and multiple internal protocols. It is
easy to see from the nature of these records that they
would reveal what Defendants claim they would
reveal. We cannot, therefore, say that Defendants’
strong interest in ensuring that such revealing information
regarding sensitive investigative techniques
remain confidential is arbitrary or capricious.
Pinpointing the government’s strong interest in
nondisclosure is only the first part of our review. The
investigative techniques privilege is qualified in that
the government’s interest in nondisclosure must
outweigh Plaintiff ’s need for access to the Ojeda
information. Black v. Sheraton Corp. of America, 564
F.2d 531, 545 (D.C.Cir.1977); United States v. Lilly,
185 F.R.D. 113, 115 (D. Mass 1999) (citing Cintolo,
818 F.2d at 1002). Plaintiff ’s interest in the Ojeda
records stems from its need for evidence to conduct a
local investigation into whether federal agents are
subject to criminal prosecution for their actions
during the September 28, 2006, FBI raid during
App. 88
which Ojeda was shot and killed. Docket Document
No. 28. Defendants, however, aver that Plaintiff ’s
interest in this regard has been greatly diluted by the
fact that Plaintiff has presented no basis for believing
that the incidents here fall into the rare class of cases
where a state may prosecute a federal officer. Docket
Document No. 32. Indeed, the DOJ’s Office of the
Inspector General has already conducted an extensive
investigation into the federal agents’ actions during
the raid and published a 237-page report, available
for public consumption, extensively detailing how the
federal agents involved in the Ojeda raid acted within
their authority and responsibility. 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.
We find that Defendants have not made a “clear error
in judgment” by invoking the investigatory techniques
privilege. Davis, 877 F.2d at 1186. Given that
an extensive governmental investigation has already
taken place reviewing and ultimately certifying the
propriety of the federal agents’ actions during the
raid,5 we cannot say that Defendants have arbitrarily
discounted Plaintiff ’s need to access the Ojeda records
and conduct yet another investigation. Thus, we
conclude that the government’s interest in protecting
its investigative techniques is paramount in this case.
5 Prompted in part by a request by
Puerto Rico Governor
Aníbal Acevedo Vilá. Docket Document No. 1, Exh. A.
App. 89
Indeed, the First Circuit has cautioned that where
investigative techniques may be revealed, “the potential
price to be paid by law enforcement is heavy, and
should not be assessed without good reason.” United
States v. Cintolo, 818 F.2d 980, 1002 (1st Cir.1987).
Moreover, we are certain that today’s result
reaches the correct decision not only because compelled
disclosure of Defendants’ Ojeda records is not
required under the law, but also because Defendants
have shown themselves to be extremely reasonable in
negotiating with Plaintiff to grant it as much access
to the requested information as possible without
compromising the government’s interest in protecting
its sensitive investigative techniques. Defendants
have, for instance, granted Plaintiff substantial
access to some of the requested information – the
bullet proof vests and helmets damaged during the
intervention, the weapons fired in the intervention,
the vehicle used to enter Ojeda’s residence, and the
photographs taken before, during, and after the
intervention – so long as Plaintiff ’s agents did not
assume physical custody of the information, and so
long as federal agents were present with Plaintiff ’s
agents as they studied the information. Civ. No. 06-
1306, Docket Document No. 1, Exh. L. This, we think,
shows that Defendants have not unthinkingly, unyieldingly,
or arbitrarily rejected Plaintiff ’s request
for the records at issue but, rather, have made a
measured effort to share as much information as
possible with a state law enforcement agency without
compromising the effectiveness of their techniques.
App. 90
Plaintiff complains that Defendants have waived
the investigative technique privilege and are, therefore,
foreclosed from invoking it to protect the Ojeda
information for the first time in the context of this
litigation. Docket Document No. 29. We need not delve
too deeply into this allegation, for it is simply not
true. The case record contains letters from García,
which were submitted to this court as attachments to
Plaintiff ’s own complaint, repeatedly invoking the
investigative technique privilege relied upon by the
government in this case. See Civ. No. 06-1306, Docket
Document
No. 1, Exhs. E, G.
Plaintiff also argues that the investigatory technique
privilege only exists to protect government
information from criminals who might frustrate
future government surveillance. Docket Document No.
29. Such concern, according to Plaintiff, is inapplicable
in the present case given that it is a “sister law
enforcement agency,” and not a criminal. We think
that Plaintiff ’s argument misapprehends that the
investigative technique privilege does not only operate
to prevent the release of sensitive agency records
directly into the hands of a criminal, but also prevents
any unrestricted dissemination of sensitive
agency records to any person or entity in order to best
protect the integrity and effectiveness of the agency’s
investigative practices. Indeed, Defendants have
noted Puerto Rico officials’ marked eagerness to talk
to the press about the progress of its controversial
information requests. Civ. No. 06-1306, Docket Document
No. 1, Ex. K. Defendants’ hesitance to release
App. 91
sensitive records to Plaintiff is therefore well-founded,
and we certainly cannot find it arbitrary.
Given our determination that Defendants have
validly claimed the investigative techniques privilege
to protect the Ojeda records in this case, we must
deny Plaintiff ’s motion for summary judgment in its
favor and grant summary judgment for Defendants.
Although Defendants have not moved for summary
judgment, we find it appropriate to grant relief to a
nonmovant. See Nat’l Expositions, Inc. v. Crowley
Maritime Corp., 824 F.2d 131, 133 (1st Cir.1987) (“[A]
district court has the legal power to render summary
judgment . . . in favor of the party opposing a summary
judgment motion even though he has made no
formal cross-motion under rule 56.”); 11 Moore’s
Federal Practice § 56.10[2][b] (Matthew Bender 3d
ed.). Plaintiff ’s own position is that there is no genuine
issue of material fact as to this issue, and Plaintiff
had adequate opportunity to present related evidence
in the context of its own summary judgment motion.
With this dismissal of the balance of Plaintiff ’s fifth
cause of action, no causes of action remain against
the Defendants, and Plaintiff ’s complaint has been
dismissed in its entirety.
V.
Conclusion
For the reasons stated herein, we GRANT Defendants’
motion to dismiss as to Plaintiff ’s first
four causes of action, DENY Plaintiff ’s summary
App. 92
judgment motion as to the fifth, and, instead GRANT
summary judgment to Defendants regarding Plaintiff
’s fifth cause of action. Judgment shall be entered
accordingly.
IT IS SO ORDERED.
App. 93
UNITED STATES DISTRICT COURT
DISTRICT OF PUERTO RICO
COMMONWEALTH OF
PUERTO RICO,
Plaintiff,
v.
UNITED STATES OF
AMERICA, et al.,
Defendants
Civil No. 06-1305 (JAF)
Consolidated With:
Civil No. 06-1306 (JAF)
Related To:
Misc. No. 06-049 (JAF)
JUDGMENT
(Filed Sept. 26, 2006)
On the basis of the terms and conditions of an
Opinion and Order subscribed by the court today,
judgment is entered dismissing the present consolidated
cases in their entirety.
Miscellaneous Case No. 06-049 (JAF) shall also
stand closed.
San Juan, Puerto Rico, this 26th day of September,
2006.
s/
José Antonio Fusté
JOSE
ANTONIO FUSTE
Chief U. S. District Judge
App. 94
UNITED STATES COURT OF APPEALS
FOR THE 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.
(Filed Aug. 29, 2007)
ORDER entered by Chief Judge Michael Boudin,
Judge Juan R. Torruella, Judge Sandra L. Lynch,
Judge Kermit V. Lipez, Judge Jeffrey R. Howard,
Judge Milton I. Shadur* of the Northern District of
Illinois, sitting by designation. The petition for rehearing
having been denied by the panel of judges
who decided the case, and the petition for rehearing
en banc having been submitted to the active judges of
this court and a majority of the judges not having
voted that the case be heard en banc, it is ordered
that the petition for rehearing and the petition for
rehearing en banc be denied.