In rе Recalcitrant Witness Richard BOEH, Julia GOMEZ, et al., Plaintiffs-Appellees, v. Daryl GATES, et al., Defendants, and United States of America, Respondent-Appellant
No. 92-55096
United States Court of Appeals, Ninth Circuit
Argued and Submitted Feb. 14, 1992. Decided May 27, 1994.
25 F.3d 761
Stephen Yagman, Marion R. Yagman, Yagman & Yagman, P.C., Venice, CA, for plaintiffs-appellees.
Before: CANBY, NORRIS and LEAVY, Circuit Judges.
Opinion by Judge CANBY; Dissent by Judge NORRIS
CANBY, Circuit Judge:
The United States and Richard Boeh,1 an agent of the Federal Bureau of Investigation, appealed from the district court‘s denial of a motion to quash a subpoena ad testificandum and two civil contempt orders issued in response to Boeh‘s refusal to testify in a civil trial. The appeal was expedited pursuant to
The underlying litigation arises out of an incident in which members of the Los Angeles Police Department shot four suspects, killing three of them and critically wоunding the fourth, immediately after a robbery of a fast food restaurant in Sunland, California. The surviving suspect and relatives of the deceased suspects brought a civil rights action in federal court against the police officers, Chief Daryl Gates, the City of Los Angeles, and various other officials, alleging the use of excessive force.
Shortly after the trial commenced, plaintiffs caused a subpoena to be served on Richard Boeh.2 Boeh was a Special Agent of the FBI, and was the case agent for a criminal investigation of the shootings. Boeh had not been present at the incident; he was not a percipient witness to any events upon which the litigation was based. Neither Boeh nor the United States was a party to the litigation.
Plaintiffs’ purpose in serving the subpoena was to secure Boeh‘s testimony regаrding evidence he had collected in his investigation and his conclusions as to what had actually occurred at the scene of the shooting. The United States Attorney referred the subpoena to the Department of Justice, pursuant to
In any federal or state case or matter in which the United States is not a party, no employee ... of the Department of Justice shall, in response to a demand, produce any material contained in the files of the Department, or disclose any information relating to or based upon material contained in the files of the Department, or disclose any information or produce any material acquired as part of the performance of that person‘s official duties or because of that person‘s official status without prior approvаl of the proper Department official....
The proper official in the Department denied permission for Boeh to testify, and directed Boeh to decline respectfully to obey the subpoena. The United States filed a motion on Boeh‘s behalf to quash the subpoena. Before hearing the motion to quash, the district court ordered Boeh to appear in camera and answer questions that would permit the court to learn what Boeh knew about the alleged civil rights violations and to determine, among other things, what limits should be placed on Boeh‘s testimony. Boeh refused to answer the court‘s questions and the district court held him in civil contempt. The district court then denied the United States’ motion to quash and, in open court, ordered Boeh to testify pursuant to the subpoena. Boeh again refused and again was held in сivil contempt. This appeal followed.
DISCUSSION
Boeh may not be held in contempt for failing to comply with a court order if a valid regulation required him not to comply. Ex Parte Sackett, 74 F.2d 922, 923 (9th Cir. 1935); Boron Oil Co. v. Downie, 873 F.2d 67, 69 (4th Cir. 1989). We are convinced, both by statute and precedent, that
Section 16.22(a) was promulgated under the authority of the so-called “housekeeping statute,”
The head of an Executive department ... may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property. This seсtion does not authorize withholding information from the public or limiting the availability of records to the public.
The Department of Justice regulation here clearly falls within the terms of the first sentence of this statute: the regulation prescribes the conduct of employees, the performance of the agency‘s business, and the use of its records. Any doubt as to the validity of the regulation‘s requirement of prior ap
In Touhy, a Department of Justice employee was subpoenaed to produce departmental records in a habeas corpus proceeding. Pursuant to the then-existing regulation, the Attorney General withheld permission for the employee to comply with the subpoena, and the employee was held in contempt. The Suprеme Court held that the employee could not be held in contempt because the regulation validly withdrew from the employee and placed in the Attorney General the decision whether and on what terms to comply with the subpoena. Id. at 467-69. In so holding, the Court relied on its earlier decision in Boske v. Comingore, 177 U.S. 459, 467-69 (1900), upholding the right of the Secretary of the Treasury to withdraw from subordinates all discretion over the use and production of tax records. Boske overturned a state court‘s contempt order against a tax collector who refused to respond to a subpoena duces tecum. See also Swett v. Schenk, 792 F.2d 1447, 1451 (9th Cir. 1986) (National Transportation Safety Board regulation restricting employee testimony); Ex Parte Sackett, 74 F.2d at 923-24 (similar Department of Justice regulation).
Plaintiffs argue that section 16.22(a), as applied in this case, violates the separation of powers by vesting an executive branch official with the heretofore exсlusively judicial power to determine what evidence will be admitted in a civil trial. We give no such effect to the regulation. We do not decide here that Boeh may never be required to testify or that section 16.22(a) establishes an absolute privilege. We conclude only that plaintiffs selected an improper method of attempting to compel Boeh‘s testimony. Plaintiffs might have succeeded by other means in bringing the Attorney General or the designated “proper Department official” into court to contest his or her decision not to permit Boeh‘s testimony.3 Once properly before the appropriate court, the Attorney General or designated official could have claimed whatever privileges might shield Boeh‘s testimony and the court could then have ruled on those assertions of privilеge. See Committee for Nuclear Responsibility, Inc. v. Seaborg, 463 F.2d 788, 793 (DC Cir. 1971) (when the head of an agency challenges a subpoena, “the claim of privilege is one for consideration by the court“); see also NLRB v. Capitol Fish Co., 294 F.2d 868, 873-74 (5th Cir. 1961) (when order is directed to head of the agency, Touhy and Boske are no longer relevant); Reynolds v. United States, 192 F.2d 987, 992-93 (3rd Cir. 1951) (same), rev‘d on other grounds, 345 U.S. 1 (1953). We need not decide those issues because they are not before us.4
Our conclusion here closely tracks the Supreme Court‘s decision in Touhy. After ruling that the Attorney General‘s regulation similar to section 16.22(a) had been validly promulgated under the predecessor statute to
We find it unnecessary, however, to consider the ultimate reach of the authority of the Attorney General to refuse to produce at a court‘s order the government papers in his possession, for the case as we understand it raises no question as to the power of the Attorney General himself to make such a refusal. The Attorney General was not before the trial cоurt. It is true that his subordinate ... acted in accordance with the Attorney General‘s instructions and a department order. But we limit our examination to what this record shows, to wit, a refusal by a subordinate of the Department of Justice to submit papers to the court in response to its subpoena duces tecum on the ground that the subordinate is prohibited from making such submission by his superior through Order No. 3229. The validity of the superior‘s action is in issue only insofar as we must determine whether the Attorney General can validly withdraw from his subordinates the power to release department papers.
340 U.S. at 467 (emphasis added) (footnote omitted). The Court thus rejected a separation of powers argument on the ground that it was not ruling on the Attorney General‘s power to refuse to produce the subpoenaed documents. Id. at 468-69. Justice Frankfurter emphasized this same point in his concurring opinion, describing the issue as “a matter of internal administration.” Id. at 471. In accord with Touhy, we decline to reach the question of the Attorney General‘s power to refuse to provide evidence where the United States is not a party.5
Indeed, we are compelled by our own circuit authority to reject any attempt at weighing the validity of the Attorney General‘s decision in the context of a contempt proceeding against his subordinate. In Swett v. Schenk, 792 F.2d at 1452, we upheld a district court‘s dismissal of a removed contempt proceeding against a subordinate federal official. We stated that we understood the appellant‘s frustration with the fact that the validity of the departmental decision, under its own regulations, had never been weighed and applied to his case. Nevertheless, we held that Touhy precluded the determination of such a question in a contempt proceeding:
[T]he Touhy doctrine is jurisdictional and precludes a contempt action regardless of whether section 835.3(b) is ultimately determined to protect the requested testimony. Consequently, a consideration of the merits can play no part in our decision.
Id. (emphasis added) (footnote omitted). This ruling in Swett governs our application of Touhy to this case. See also Ex Parte Sackett, 74 F.2d at 923-24 (applying Boske and upholding Department of Justice regulation prohibiting investigating officer from testifying, despite assumed materiality of the records subpoenaed).6
In Swett, we applied the Touhy principle to affirm the district court‘s dismissal of a contempt action against a National Transportation Safety Board investigator who had refused to testify in a state court tort action pursuant to a similar regulation. We held that the investigator could not be compelled to testify over the contrary command of the validly promulgated regulation. Swett, 792 F.2d at 1451-52 (citing
The district court attempted to draw a distinction between its order requiring Boeh to reveal the contents of his prospective testimony in camera and its order compelling Boeh‘s testimony in open court. For the purposes of the Touhy doctrine, we see no distinction.9 Both orders are infirm. The
Finally, we address briefly a point strongly urged by the dissent. The last sentence of the housekeeping statute provides: “This section does not authorize withholding information from the public or limiting the availability of records to the public.”
We understand the dissenting opinion‘s point that it may be more cumbersome to challenge an assertion of privilege by an APA suit or mandamus action, but Touhy, Sackett and Swett preclude litigants and courts from first pursuing the option of contempt proceedings against subordinate officials who have been denied permission to respond to a subpoena. We follow those cases, and go no further “for the case as we understand it raises no question as to the power of the Attorney General himself to make such a refusal.” Touhy, 340 U.S. at 467.
CONCLUSION
The orders of the district court are REVERSED.
NORRIS, District Judge dissenting:
This case presents the question whether an employee of a federal agency may lawfully refusе to obey a subpoena ad testificandum in reliance upon an agency regulation promulgated pursuant to the federal housekeeping statute,
I
The plaintiffs in this civil rights action allege that officers of the Los Angeles Police Department used excessive force in fatally shooting three suspects and wounding a fourth following a robbery of a fast food restaurant. On the first day of trial, plaintiffs subpoenaed FBI agent Richard Boeh as a witness. The government moved to quash the subpoena primarily on the ground that Agent Boeh had not been authorized to testify as required by the Department of Justice‘s housekeeping regulation. Before ruling on the motion to quash, the district court ordered Boeh to appear in camera and answer questions that would enable the court to decide whether Agent Boeh should be required to testify, and if so, tо what extent. When Boeh refused to answer any questions, the court denied the motion to quash and ordered Boeh to testify in open court. When Boeh again refused, the district court held him in contempt both for refusing to answer the court‘s questions in camera and for re
On appeal, the government seeks to reverse the contempt orders on the ground that the district court had no jurisdiction to hold Boeh in contempt because the Department of Justice‘s housekeeping regulation prohibited him from disclosing any information acquired in performing his official duties.1 As the government puts it, “[t]he only question before this Court is whether the district court hаd jurisdiction to hold Agent Boeh in contempt.” Appellant‘s Opening Brief at 8.
The government argues that the district court had no power to hold Agent Boeh in contempt as a recalcitrant witness because he was not authorized to testify under
II
A
The government relies principally on United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951), in support of its contention that § 301 authorized the Attorney General‘s actions. Touhy, however, does not control this case. The question addressed in Touhy was whether a Justice Department official could refuse to obey a subpoena duces tecum ordering the production of agency papers in his possession. In refusing to obey, the subordinate official relied upon a Justice Department regulation thаt barred employees from producing records unless they had express authority to do so. In resolving the issue, the Court distinguished between a far-reaching question, (1) “whether it is permissible for the Attorney General to make a conclusive determination not to produce records,” and a narrow one, (2) “whether his subordinates in accordance with the order may lawfully de
The Court considered only the narrow question, holding that an agency head could withhold from subordinates the authority to produce documents in response to a subpoena duces tecum. The Court declined to reach the far-reaching question:
We find it unnecessary, however, to consider the ultimate reach of the authority of the Attorney General to refuse to produce at a court‘s order the government papers in his possession, for the case as we understand it raises no question as to the power of the Attorney General himself to make such a refusal. The Attorney General was not before the trial court.
Thus Touhy did not hold that the Attorney General can arrogate to himself the authority to override the subpoena power of Article III courts by withholding evidence within his administrative control. Touhy instead held that the Attorney General may, “as a matter of internal administration,” Touhy, 340 U.S. at 471 (Frankfurter, J., concurring), promulgate regulations under the housekeeping statute designating which agency personnel are authorized to produce agency records. If an agency head withholds from subordinates authority to produce documents that have been subpoenaed, as the Attorney General did in Touhy, the agency head himself may still be subpoenaed. Because Touhy left undecided the question whether the Attorney General himself could lawfully refuse to obey a court order to produce the documents, Touhy, 340 U.S. at 467, see also id. at 472 (Frankfurter, J., concurring), it left intact the judicial power to subpoena evidence, whether documentary or testimonial, that the courts determine is needed to decide cases. Just as Touhy did not decide whether “it is permissible for the Attorney General to make a conclusive determination not to produce records,” id. at 467, it did not decide whether the Attorney General could make a conclusive determination not to allow the testimony of a subordinate.
In this case, the Attorney General made just such a conclusive determination, thereby presenting us with the far-reaching question not decided in Touhy. To understand why this case presents the question left unanswered in Touhy requires a review of the difference between a subpoena duces tecum and a subpoena ad testificandum—the difference, if you will, between documentary evidence and live testimony. The ability to producе documents in response to a subpoena duces tecum is impersonal. It is, as Justice Frankfurter said, a matter of “internal administration” as to who is authorized by an agency head to produce documents. Which agency employees may produce documents is a matter suitable for treatment in agency regulations promulgated pursuant to the “housekeeping” statute. Because the head of an agency cannot divest herself of the authority to control internal documents, she always has the ability to herself comply with a subpoena duces tecum served upon her. Her personal knowledge of the contents of the documents is irrelevant; all that matters is that they are within her control.
In contrast, the ability to produce testimony is personal. Because the testimony must be based upon the witness’ personal knowledge, it cаn only be produced by the witness himself. Only Agent Boeh can comply with the subpoena ad testificandum at issue here. Moreover, nobody other than Agent Boeh himself may be subpoenaed to produce Agent Boeh‘s testimony. Not even the Attorney General herself can be subpoenaed for that purpose. The Federal Rules of Civil and Criminal Procedure recognize this reality, and make clear that a subpoena may issue only for the testimony of the “person to whom it is directed.”
B
Just as Touhy does not control this case, nor do the other cases cited by the government. Most, like Touhy, involve subpoenas duces tecum.5 The rest are inapposite for they involve the power of state courts to subpoena federal officials. Our decision in Swett v. Schenk, 792 F.2d 1447 (9th Cir. 1986), falls in this category.6 Swett involved a California Superior Court‘s subpoena of a National Transportation Safety Board investigator. The state court‘s subsequent contempt action was removed to district court and dismissed. We held that “the state court lacked jurisdiction to use contempt procedures against [the investigator].” Id. at 1451 (emphasis added). If the state court lacked the power to subpoena federal officials and to cite them for contempt, then so did the district court, because “removal jurisdiction is derivative [and] the district court acquired no jurisdiction on removal.” Id. The limitations on a state court‘s subpoena and contempt powers stem from the sovereign immunity of the United States and from the Supremacy Clause. Boron Oil Co. v. Downie, 873 F.2d 67, 71 (4th Cir. 1989). Such limitations do not apply when a federal court exercises its subрoena powers against federal officials. Because the instant case involves a federal court subpoena, Swett is inapposite.
In sum, because neither Touhy nor Swett nor any other case is controlling authority, we are not barred by stare decisis from deciding the question presented here.
III
I now turn to the heart of the matter: does the housekeeping statute in fact authorize agency heads to adopt an executive privilege immunizing subordinates from the sub
The head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property. This section does not authorize withholding information from the public or limiting the availability of records to the public.
The legislative history оf § 301 reinforces this reading of the text. See Conroy v. Aniskoff, 507 U.S. 511, 516 (1993) (examining legislative history even in case where text is unambiguous and unequivocal). The original version of the housekeeping statute did not include the statement that the statute does not authorize withholding information from the public. That sentence was added in 1958. The House report accompanying the amendment explained in some detail that the proposed amendment was a response to the executive‘s increasing use of the housekeeping statute as a basis for withholding information from the public. H.R. No. 1461, 85th Cong.2d Sess. (1958), reprinted in 1958 U.S.C.C.A.N. 3352. According to the House report, the original housekeeping statute was only intended to “help General Washington get his administration underway by spelling out the authority for executive officials to set up offices and file Government documents.” Id. at 3352. Over timе, however, agencies began citing the statute as authority for their decision to withhold information from the public, particularly litigants and the press. Id. Congress opposed this use of the statute, instead thinking that executive privileges must be based on specific congressional authorization after a congressional determination that a particular area of information must be closed to the public. Id. According to Congress, the housekeeping statute had “become a convenient blanket to hide anything Congress may have neglected or refused to include under specific secrecy laws.” Id. at 3353. This result, said the report, “would have aroused Madison, Jefferson, Mason and the rest of the statesmen who put so much trust in popular rights to information.” Id. (quoting congressional witness’ testimony). In sum, says the report, “concealment has been the result of the application” of the housekeeping statute, and “the purpose of this bill is to correct that situation.” Id. While I am cognizant of the criticism that legislative history is frequently indeterminate, Conroy, 507 U.S. at 519 (Scalia, J., concurring), this is not such a case. Here, the legislative history is as crystal clear as the text of the statute itself: both compel the conclusion that § 301 does not
I note in closing that my reading of § 301 does not prevent an agency head from asserting various privileges. To the contrary, this appeal would probably have been unnecessary had the government allowed Boeh to testify in camera and then interposed objections or claims of privilege on a question-by-question basis, giving the district court thе opportunity to rule whether the witness should be compelled to provide specific testimony. Just such an approach was suggested by the district court in response to the government‘s claim that if Agent Boeh testified he would be forced to violate the secrecy of the grand jury and disclose the identity of a confidential informant. Said the district court, “I made it crystal clear to you that you can stand there right next to [Agent Boeh] if he wants to claim the ... privilege, and every time there‘s a specific question asked, if you think it would violate any of the specific prohibitions, you have only to tell me. It‘s easy enough, but you haven‘t done that.” January 30, 1992 Transcript at 14. Instead of allowing the court to hear Boeh‘s testimony and rule on whether it was privileged, the government simply made the blanket assertion that § 16.22(a) deprived the district сourt of “jurisdiction” to enforce its subpoena. This the government cannot do. While the government retains its authority to assert various privileges, it cannot, as it tried to do here, fashion additional privileges out of the cloth of the housekeeping statute.
IV
The government‘s attempt to deprive the district court of its Article III authority to subpoena Agent Boeh violates the fundamental principle that “the public ... has a right to every man‘s evidence.” United States v. Bryan, 339 U.S. 323, 331 (1950) (quoting Wigmore, Evidence § 2192 (3d ed.)). Exceptions “to the demand for every man‘s evidence are not lightly created nor expansively construed, for they are in derogation of the search for the truth.” Nixon, 418 U.S. at 710. As an encroachment on the Article III judicial power, the exception claimed by the Attorney General here raises serious separation of powers questions. See id. at 707 (unqualified privilege conflicts with function of the courts under Article III). Even assuming Congress has the authority to grant such power to the executive, we should not impute such an intent to Congress unless it is clearly expressed. Here, Congress has not only declined to express such intent, it has, in both the text and legislative history of the statute, clearly expressed a contrary intent.
In sum, the housekeeping statute does not authorize agency heads to create a form of executive privilege that immunizes subordinates from the reach of an Article III court‘s power to issue subpoenas ad testificandum. Accordingly, I would affirm the district court‘s orders denying the motion to quash and holding Agent Boeh in contempt of court.