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.
United States Court of Appeals, First Circuit.
Heard Jan. 11, 2007. Decided June 15, 2007.
490 F.3d 50
Here, unlike in Smith, the officer did more than merely approach and propound routine questions. According to the district court, which made a supportable factual finding in this regard, Fitzpatrick commanded the driver to shut off the engine. See D. Ct. Op. at 188, 190. That command, in the circumstances of this case, may not have compelled a finding of coercion but it supports such a finding (and, thus, a finding that a seizure occurred then and there).
IV. CONCLUSION
We need go no further. The district court‘s conclusion that a seizure occurred, unaccompanied by reasonable suspicion, is consonant with the facts as found and with the record. Accordingly, we uphold the district court‘s order suppressing thе evidence in question.
Affirmed.
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.
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“),
I.
This appeal involves two consolidated district court cases, Nos. 06-1306 and 06-1305,1 arising from 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 engagement for the FBI intervention at Ojeda‘s resi-
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 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 Fratiсelli, Special Agent in Charge of the FBI San Juan Field Office, requesting three categories of materials: (1) the name, rank, division, 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
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 Cоmmonwealth‘s investigation and ordering Defendants to comply with the Commonwealth‘s requests and produce the subpoenaed 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,
The district court consolidated the cases, the United States moved to dismiss, and Puerto Rico filed a motiоn 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 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 Ricо‘s first through fourth causes of action, and, on the fifth cause of action, denied Puerto Rico‘s motion for
This appeal ensued.
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 plаce Puerto Rico “in a worse position to obtain information than private parties” who can sue the federal government and request discovery under
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 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.
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 constitutionally-based 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, 93 (1985), “[t]he Constitution leaves in the possession of each State ‘certain exclusive and very important portions of sovereign power.’ Foremost among the prerogatives of sovereignty is the power to create and enforce a criminal code.” Id. at 93 (quoting Federalist No. 9); see also Engle v. Isaac, 456 U.S. 107, 128 (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 (1979); see also Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 389 (1971) (holding that a “cause of action for damages” arises under
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 courts under
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 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 vindiсating its rights.” Id. (quoting Bd. of Gov‘rs of Fed. Reserve Sys. v. MCorp Fin., Inc., 502 U.S. 32, 43 (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). 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 review, Puerto Rico does have a means of vindicating its rights
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 (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 nеed 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 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
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.” Asarco, Inc. v. U.S. Envtl. Prot. Agency, 616 F.2d 1153, 1161 (9th Cir. 1980) (quoted in Edwards, 43 F.3d at 314).
In evaluating the FBI‘s decision, we take into account both that agency‘s internal regulations governing the release of material and the substantive law governing the law enforcement privilege.
A. Regulations
Under the Housekeeping Act,
Here, pursuant to the Housekeeping Act, the FBI has promulgated regulations explaining that, in deciding whether to release information, its officials 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.”
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, 59 (1957). There, the Court explained that the government has a qualified privilege to withhold the identities of confidential informants. Id. at 59. Such a privilege “furthers and protects the public 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.
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 оf ongoing investigations.” Id. We emphasized that the privilege could be overcome by a sufficient showing of need, and thus concluded that courts must determine on a case-by-case 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
[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.
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 (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),
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 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, 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 рreserving the confidentiality of sensitive law enforcement techniques against the requesting party‘s 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 the necessity of the materials to Puerto Rico‘s investigation. The United States responds that Puerto Rico did not
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, an in camera review of the materials, and an item-by-item 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 [
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:
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
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 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 repеatedly 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 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 agеncies 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
Having found that Puerto Rico‘s procedural claims lack merit, we turn now to the substance of 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 infоrmation 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.
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 Unitеd 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 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.” Wyo-ming 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 (1890) (U.S. Marshal immune from state murder prosecution); Livingston, 443 F.3d 1211 (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 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. Thе 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.
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. Publiс 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)));
We acknowledge Puerto Rico‘s argument that the FBI‘s decision to withhold the information raises the 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 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.
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 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 what is the next step in order to continue that investigation; if the step
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., 190 F.3d at 275). 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 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 еxist 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 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 thе scope of the law enforcement privilege for the same reasons that the names and personal information of FBI agents and the internal FBI protocols re-
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 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 judgmеnt 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 (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
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, documеnts 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 Federal Tort Claims Act,
This leaves Puerto Rico with the Administrative Procedure Act (“APA“),
Puerto Rico points to no law requiring the turnover of the materials it seeks. So far as Puerto Rico 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
Congress has authorized each agency to create housekeeping regulations governing the use of its “records, papers, and property,”
[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.”
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 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
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.”
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 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 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.
MILTON I. SHADUR
SENIOR UNITED STATES DISTRICT JUDGE