Gulluni v. LevyGulluni v. Levy
Elizabeth N. Mulvey, with whom Thomas M. Hoopes and Libby, Hoopes, Brooks & Mulvey P.C. were on brief, for appellant.
Michael Shih, Appellate Staff Attorney, with whom Brian M. Boynton, Principal
Matthew R. Segal, Jessica J. Lewis, Rebecca A. Jacobstein, American Civil Liberties Union Foundation of Massachusetts, Inc., and Committee for Public Counsel Services, on brief in support of neither party for Committee for Public Counsel Services and Hampden County Lawyers for Justice, amici curiae.
October 30, 2023
GELPÍ, Circuit Judge. Appellant Anthony D. Gulluni (“Gulluni“), District Attorney for Hampden County, Massachusetts, challenges the district court‘s granting of summary judgment in favor of Appellee Joshua S. Levy, Acting United States Attorney for the District of Massachusetts. Gulluni contends that the district court applied the incorrect standard in reviewing the denial by the United States Department of Justice (“DOJ“) of his request for information related to a federal police misconduct investigation. Because DOJ properly based its denial on privilege grounds and given the applicable standard under the Administrative Procedure Act (“APA“), we affirm the district court‘s decision.
I. Background
We discuss the undisputed facts as they were presented below.1 In April 2018, DOJ initiated a “pattern or practice” investigation into the Springfield, Massachusetts Police Department (“SPD“) pursuant to the Violent Crime Control and Law Enforcement Act of 1994,
2020, critically found patterns or practices of excessive force by SPD officers in violation of the Fourth Amendment. The dates of the specific instances of misconduct and the names of the persons involved were not included in the report.
Because DOJ‘s investigation involved the review of “more than 114,000 SPD documents,” Gulluni sent DOJ a letter (“Touhy request” or “request“) requesting all SPD reports and documents supporting DOJ‘s specific and general findings in an attempt to identify the SPD officers “who were the subject of DOJ‘s findings.” Gulluni specifically requested:
(1) A copy of all Springfield Police Department reports, including but not limited to incident reports, investigative reports, arrest reports, use-of-force reports, or contents of a prisoner injury file . . . determined as examples where Narcotics Bureau officers falsified reports to disguise or hide their use of force;
(2) A copy of all Springfield Police Department reports, including but not limited to incident reports, investigative reports, arrest reports, use-of-force reports, or contents of a prisoner injury file . . . determined as . . . a pattern or practice . . . [where] officers made false reports that were inconsistent with other available evidence, including video and photographs . . . [;] and
(3) A copy of all photographs or video/digital material determined as inconsistent
with any Springfield Police Department officers’ reports, including, but not limited to incident reports, investigative reports, arrest reports, use-of-force reports, or
contents of a prisoner injury file . . . (internal quotations omitted).
From Gulluni‘s perspective, his request was imperative given his constitutional duty, as District Attorney, to disclose exculpatory evidence to criminal defendants as per Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972).
After due consideration, DOJ denied Gulluni‘s request in accordance with Touhy regulations,3 asserting law enforcement and work product privileges.
In April 2022, prior to the district court‘s decision, DOJ entered into a consent decree with SPD and the City of
Springfield (“City“), but long after DOJ responded to the Touhy request. When the United States enters into a consent decree of this sort with a state or local government, the latter does not admit to the alleged violations but instead agrees to make the necessary reforms and changes to remedy such violations. See United States v. Armour & Co., 402 U.S. 673, 676, 681-82 (1971) (stating that after entering into a consent decree: “The parties waive their right to litigate issues involved in the case and thus save themselves the time, expense, and inevitable risk of litigation.“); e.g., Bos. Police Superior Officers Fed‘n v. City of Boston, 147 F.3d 13, 15 (1st Cir. 1998) (involving a consent decree to reform the Boston Police Department‘s “racial discrimination in its promotion practices“); Culbreath v. Dukakis, 630 F.2d 15, 17 (1st Cir. 1980) (concerning the Commonwealth of Massachusetts’ consent decree with four state employee labor unions to remedy “racial discrimination in the hiring and promotion practices“).4
Since the mid-1990s, police reform consent decrees, such as that between DOJ and the City, have been filed in various jurisdictions across the nation. See Gustavo A. Gelpí, Police Reform as Seen Through the Eyes of a District Judge, Fed. Law., Sept. 2016, at 58 (noting that DOJ investigations have resulted in “exponentially increased law enforcement reform nationwide“); see generally Alejandro
II. Discussion
On appeal, Gulluni contends that the district court erred in (1) applying the arbitrary and capricious standard found in
not in accordance with the law.”
For the reasons that follow, we conclude that the district court applied the correct APA standard to analyze DOJ‘s denial of Gulluni‘s Touhy request and that DOJ‘s invocation of the work product and law enforcement privileges was not arbitrary and capricious. Accordingly, we affirm on all issues.
A. The Arbitrary and Capricious Standard
Gulluni insists that the applicable standard of review for DOJ‘s denial of his Touhy request is found in
Generally,
Cases that have applied the constitutional right standard to a Touhy request denial, as opposed to the usual arbitrary and capricious standard, noted that such challenges to an agency‘s decision materially turned upon the underlying constitutional claim rather than merely possessing a would-be, ancillary constitutional obligation. Compare, e.g., People for Ethical Treatment of Prop. Owners v. U.S. Fish & Wildlife Serv., 852 F.3d 990, 996, 999-1000 (10th Cir. 2017) (applying the constitutional right standard to a claim substantially concerned with a constitutional taking), with Puerto Rico v. United States, 490 F.3d 50, 60-61 (1st Cir. 2007) (analyzing the FBI‘s decision not to release the requested information under the arbitrary and capricious standard because the claim was not constitutional in nature).
We agree with the district court that, while constitutional duties are implicated by Gulluni‘s role as District Attorney, constitutional duties alone do not trigger the application of
obligated to provide Brady material. Surely, DOJ‘s disclosure to Gulluni would ease compliance with his constitutional obligations, but Gulluni‘s ability to comply with said obligations does not turn on whether DOJ discloses the requested information.
Gulluni further argues that the constitutional right standard applies because as District Attorney, he is “asserting the constitutional right[s] of others” -- namely, Hampden County criminal defendants. However, he fails to meaningfully discuss his standing to assert those constitutional rights on behalf of others. In fact, Gulluni only cites cases that, although the constitutional right standard was applied to agency decision challenges, are entirely distinguishable from his own claim. In each of those cases, the challengers had established standing to assert the constitutional rights at issue, and more importantly, the constitutional claims were substantive in nature. People for Ethical Treatment of Prop. Owners, 852 F.3d at 990; Cook Cnty. v. Wolf, 461 F. Supp. 3d 779 (N.D. Ill. 2020); All. for Nat‘l Health U.S. v. Sebelius, 714 F. Supp. 2d 48 (D.D.C. 2010). Each party‘s Touhy claims therein were based upon constitutional violations or infringements that had occurred rather than on constitutional violations that could possibly occur. People for Ethical Treatment of Prop. Owners, 852 F.3d at 996, 999-1000 (constitutional taking occurred); Wolf, 461 F. Supp. 3d at 782, 797 (agency‘s rule violated the “equal protection component of the Fifth Amendment‘s
Due Process Clause“); All. for Nat‘l Health U.S., 714 F. Supp. 2d at 51-52, 59-60 (agency‘s health regulation violated First Amendment commercial speech rights). Yet, the issue of whether Gulluni possesses standing to bring these constitutional claims is not one we need to decide.
Here, DOJ is not prosecuting the criminal defendants Gulluni is concerned with. And any constitutional duty of Gulluni to turn over documents to a defendant whom Gulluni‘s office prosecutes does not give rise to a constitutional duty by DOJ to share its views of the documents with Gulluni or anyone else, at least where DOJ had no role in the state court prosecutions. DOJ‘s denial did not violate a constitutional right, and Gulluni‘s constitutional concerns are tentative at best -- to which Gulluni admitted as much in his brief by expressing that SPD officers may be “potential witness[es].” See generally Saleh v. Blinken, No. 22-1168, 2023 WL 5091819, at *2 (2d Cir. Aug. 9, 2023) (utilizing the constitutional right standard for a substantially constitutional issue rather than a potential constitutional issue). Further, Gulluni has other direct avenues to access the materials, enabling him to discharge his possible constitutional obligations to state criminal defendants, rather than requesting those materials from a party which these did not originate from. Suitably, the review of agency action under the arbitrary and capricious standard applies here.
B. DOJ‘s Privileges Under the Arbitrary and Capricious Standard
Before delving into DOJ‘s privilege invocations, it is worthwhile to briefly discuss the Housekeeping Act and Touhy regulations to properly review DOJ‘s decision under the arbitrary and capricious standard. “The Housekeeping Act,
Section 16.26(b) of the regulations is particularly relevant because it enumerates the factors that agencies analyze to determine whether to disclose.
of which would thereby be impaired.”
DOJ‘s denial of Gulluni‘s Touhy request will be overturned only if the decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.”
(1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977); Judulang, 565 U.S. at 64 (instructing that the agency‘s decision should be connected to the purpose and concerns of relevant law). Agencies maintain “expertise and experience . . . that no court can properly ignore.” Judulang, 565 U.S. at 53. In this light, “[w]e apply the same deferential standard to the agency‘s decision as the district court.” Cabral, 587 F.3d at 23; Puerto Rico, 490 F.3d at 61.
1. Work Product Privilege
The work product privilege, recognized by the Supreme Court in Hickman v. Taylor, is codified in the Federal Rules of Civil Procedure. 329 U.S. 495 (1947);
recognized that the sorting and segregation of documents in anticipation of litigation is protected by ordinary work product privilege as this “provides insight into opposing counsel‘s understanding of his case.” Id. at 1018-19. However, there are limits to the scope of this privilege upon a showing of a substantial need and undue hardship.
Gulluni argues that the work product privilege is so “egregiously wrong” as invoked by DOJ given it has failed to provide a “specific analysis” or a “satisfactory explanation for its refusal” to disclose. We have stated that the selection of documents may reveal opposing counsel‘s mental impressions. In re San Juan, 859 F.2d at 1018-19. Here, rather than ask for all of SPD‘s documents, Gulluni asked DOJ to only divulge exactly which documents were selected and relied upon in its report, specifically DOJ‘s assessment of SPD‘S documents, which we determine is safeguarded by the work product doctrine. Id. at 1018. DOJ reasonably explained in its October 21, 2020, letter that the documents sought “reflect[ed] the thoughts and impressions of DOJ attorneys, paralegals, and investigators.” This letter also explained why the information sought by Gulluni is privileged under its guidelines: such “disclosures would reveal the internal deliberation process within the Department of Justice.” Puerto Rico, 490 F.3d at 73 (Boudin, C.J., concurring) (looking to the
agency‘s application of “its [own] general policy” to determine whether the agency‘s decision was arbitrary and capricious). This reasoning is merited under our own precedent concerning ordinary work product privilege as the sorting of documents may allow inappropriate insight into an agency‘s investigation. In re San Juan, 859 F.2d at 1018. And while DOJ‘s reasoning may not satisfy Gulluni‘s own benchmark for a “satisfactory explanation,” we determine that DOJ‘s decision and assessment in denying Gulluni‘s request was reasonably explained, which is all that DOJ is required to do.
In addition, Gulluni argues that the SPD documents were not protected by the work product doctrine because the materials were not prepared in anticipation of litigation and were produced in SPD‘s ordinary course of business. As we have explained, Gulluni did not merely seek SPD documents as they plainly were but sought to specifically obtain DOJ‘s “determinations” of SPD‘s misconduct, which is covered by the work product doctrine. DOJ‘s selection and determination of SPD‘s unconstitutional patterns or practices was effectuated to correct such constitutional deprivations in which remedy would have occurred through either litigation or a consent decree. Therefore, it cannot be said that DOJ was unreasonable in its conclusion that its selection and determination process of SPD documents was done in anticipation of an enforcement proceeding against SPD and the City. Maine v. U.S. Dep‘t of Interior, 298 F.3d 60, 68 (1st Cir. 2002) (concluding
that the work product privilege does not only include documents prepared “primarily” or “exclusively” for litigation but also documents prepared because of “expected litigation” even if the “purpose is not to assist in litigation“) (internal quotations omitted). And even though the potential
Gulluni further argues that DOJ waived any work product privilege by releasing its public report. Gulluni cited several cases to support his position, yet each miss the mark.5 DOJ‘s act of publishing the findings report was not inconsistent with the
purpose of the work product doctrine; instead, it put the public on notice of what was discovered during DOJ‘s investigation into SPD -- an investigation that revealed SPD‘S many alleged constitutional violations. The publication of the findings report was simply the first step in DOJ‘s process of entering into negotiations with SPD. And as DOJ asserts, when the findings report was published, it was not clear whether SPD would be willing to enter into a consent decree or if litigation would have ensued. Upon review, it is transparent that the published findings report did not disclose the underlying SPD documents to anyone nor DOJ‘s thought processes. Mass. Inst. of Tech., 129 F.3d at 687 (highlighting that “disclosing material in a way inconsistent with keeping it from an adversary waives work product protection“). DOJ‘s effort to keep its analysis private is further evidenced by its intentional omission of names, dates, and specific facts underpinning its conclusions. Accordingly, DOJ‘s invocation of the work product privilege in denying Gulluni‘s Touhy request was reasonable. See Cabral, 587 F.3d at 23 (finding that denials of Touhy requests are not arbitrary and capricious when such denials are reasonable).
Gulluni also posits that any work product privilege is now mooted by the consent decree. Assuming but not deciding that that must be so, the fact remains that our review of the agency‘s decision must be “based on the reasons [the agency] gave when it
acted,” Dep‘t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1909 (2020), and therefore by implication on the information available to the agency when it made its final decision. And when DOJ denied Gulluni‘s Touhy request, there was no consent decree. It was thus entirely reasonable for DOJ to have considered its analysis of the SPD documents to be in anticipation of possible litigation and invoke the work product privilege accordingly.
Gulluni finally contends that his “legal and ethical obligation to disclose exculpatory material to [criminal] defendants” shows a “substantial need” for the materials. But Gulluni already has access to all the underlying documents on which DOJ relied in compiling its report. What he is really seeking are DOJ‘s impressions and thought processes regarding those documents.
As the district court reasoned under the deferential arbitrary and capricious standard, DOJ has made no clear error. Thus, DOJ‘s determinations concerning work product privilege were not arbitrary, capricious, or without reason, as required to overcome our deference to DOJ‘s decision.
2. Law Enforcement Privilege
Following the Supreme Court‘s recognition of a law enforcement privilege in Roviaro v. United States, 353 U.S. 53 (1957), we have recognized a privilege for law enforcement activities regarding “confidential government surveillance information” to “confidential informant[s]” to “law enforcement techniques and procedures.” United States v. Cintolo, 818 F.2d 980, 1002 (1st Cir. 1987); United States v. Perez, 299 F.3d 1, 4 (1st Cir. 2002); Puerto Rico, 490 F.3d at 64. The underlying rationale being that law enforcement functions and operations will not be effective if interference is prevalent. Roviaro, 353 U.S. at 59 (explaining that there is a “public interest in effective law enforcement“); Puerto Rico, 490 F.3d at 62-63; Perez, 299 F.3d at 3-4 (acknowledging that the law enforcement privilege “serves important ends“). Having recognized that the law enforcement privilege is not absolute, it may be overcome by a sufficient showing of authentic necessity that courts determine on a case-by-case basis. Cintolo, 818 F.2d at 1002; Puerto Rico, 490 F.3d at 64 (clarifying that courts must balance the interests between preserving law enforcement techniques and the need for disclosure). Balancing the interests between the federal and state governments “must be done with particular care.” Puerto Rico, 490 F.3d at 64. “The interest of the party seeking disclosure tends to be strongest when the information in question is highly
relevant, helpful, and unavailable from other sources.” Ass‘n for Reduction of Violence v. Hall, 734 F.2d 63, 66 (1st Cir. 1984).
In his brief, Gulluni stated that the information sought was comprised of merely “factual statements authored by the SPD” to which the privilege does not apply.6 Although we have not considered whether factual statements are relevant in determining if the law enforcement privilege applies, we need not decide that to resolve Gulluni‘s contention. Gulluni had direct access to all of the SPD documents. What he wants is DOJ‘s thoughts about those documents. So, this is hardly a request for “factual statements authored by the SPD.”
DOJ‘s denial of Gulluni‘s Touhy request was reasonable because, even though Gulluni‘s request was not aimed at specific techniques or procedures in the traditional sense, there was an ongoing enforcement proceeding and negotiations with SPD at the time that Gulluni made his Touhy request. DOJ explicitly stated in its October 21, 2020, denial letter that “disclosure of the requested materials would reveal records compiled for investigative purposes and would interfere with these ongoing law
enforcement proceedings.” Therefore, even though Gulluni did not directly seek disclosure of a particular technique or procedure, the disclosure of
Therefore, we conclude that DOJ‘s denial was not arbitrary and capricious given its reasoned consideration of Gulluni‘s request compared to its own legitimate interest in safeguarding its determinations.7
III. Conclusion
After review, we conclude that the district court did not err in applying the arbitrary and capricious standard and that
DOJ‘s decision to deny the Touhy request was not arbitrary and capricious. Thus, the judgment of the district court is affirmed.