United States v. Moloney , 685 F.3d 1 ( 2012 )

United States Court of Appeals
For the First Circuit
No. 11-2511
IN RE: REQUEST FROM THE UNITED KINGDOM PURSUANT TO THE TREATY
BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE
GOVERNMENT OF THE UNITED KINGDOM ON MUTUAL ASSISTANCE IN CRIMINAL
MATTERS IN THE MATTER OF DOLOURS PRICE
UNITED STATES,
Petitioner, Appellee,
v.
ED MOLONEY; ANTHONY McINTYRE,
Movants, Appellants.
No. 12-1159
ED MOLONEY; ANTHONY McINTYRE,
Plaintiffs, Appellants,
v.
ERIC H. HOLDER, JR., Attorney General;
JACK W. PIROZZOLO, Commissioner,
Defendants, Appellees.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Boudin, Circuit Judges.
Eamonn Dornan, with whom Dornan & Associates PLLC and James J.
Cotter III were on brief, for appellants.
Barbara Healy Smith, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, and John T. McNeil,
Assistant United States Attorney, were on brief, for appellee.
July 6, 2012
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LYNCH, Chief Judge. These consolidated appeals are from
the denial, in two cases, of the efforts of two academic
researchers to prevent the execution of two sets of subpoenas
issued in May and August of 2011. The subpoenas were issued to
Boston College ("BC") by a commissioner appointed pursuant to 18
U.S.C. § 3512 and the "US-UK MLAT," the mutual legal assistance
treaty between the United States and the United Kingdom. The
subpoenas are part of an investigation by United Kingdom
authorities into the 1972 abduction and death of Jean McConville,
who was thought to have acted as an informer for the British
authorities on the activities of republicans in Northern Ireland.
This appears to be the first court of appeals decision to deal with
an MLAT and § 3512.
The May 2011 subpoenas sought oral history recordings and
associated documentation from interviews BC researchers had
conducted with two former members of the Irish Republican Army
("IRA"): Dolours Price and Brendan Hughes. BC turned over the
Hughes materials because he had died and so he had no
confidentiality interests at stake. BC moved to quash or modify
the Price subpoenas. The second set of subpoenas issued in August
2011 sought any information related to the death or abduction of
McConville contained in any of the other interview materials held
by BC. BC moved to quash these subpoenas as well.
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The district court denied both motions to quash. In re:
Request from the U.K., 831 F. Supp. 2d 435 (D. Mass. 2011). And
after undertaking in camera review of the subpoenaed materials it
ordered production. Order, In re: Request from the U.K., No. 11-
91078 (D. Mass. Dec. 27, 2011), ECF No. 38 (ordering production of
Price interviews pursuant to May subpoenas); Findings and Order, In
re: Request from the U.K., No. 11-91078, 2012 WL 194432 (D. Mass.
Jan. 20, 2012) (ordering production of other interviews pursuant to
August subpoenas). BC has appealed the order regarding the August
subpoenas, but that appeal is not before this panel. BC chose not
to appeal the order regarding the Price materials sought by the May
subpoenas.
The appellants here, Ed Moloney and Anthony McIntyre, who
unsuccessfully sought to intervene in BC's case on both sets of
subpoenas, pursue in the first appeal a challenge to the district
court's denial of their motions to intervene as of right and for
permissive intervention. Their intervention complaint largely
repeated the claims made by BC and sought declarations that the
Attorney General's compliance with the United Kingdom's request
violates the US-UK MLAT and injunctive relief or mandamus
compelling him to comply with the terms of that treaty. The effect
of the relief sought would be to impede the execution of the
subpoenas.
-4-
Having lost on intervention, Moloney and McIntyre then
filed their own original complaint, essentially making the same
claims as made in this intervenor complaint. The district court
dismissed the complaint, stating that even assuming the two had
standing, the reasons it gave in its reported decision for denial
of BC's arguments and denial of intervention applied to dismissal
of the complaint. See Order of Dismissal, Moloney v. Holder, No.
11-12331 (D. Mass. Jan. 25, 2012), ECF No. 15; Tr. of Mot. Hr'g,
Moloney v. Holder, No. 11-12331 (D. Mass. Jan. 24, 2012), ECF No.
18. Appellants freely admit that their complaint "essentially set
forth the same claim" as their complaint in intervention. In the
second appeal they challenge the dismissal of their separate civil
complaint for lack of subject matter jurisdiction and for failure
to state a claim.
I.
The factual background for these suits is not disputed.
A. The Belfast Project at Boston College
The Belfast Project ("the Project") began in 2001 under
the sponsorship of BC. An oral history project, its goal was to
document in taped interviews the recollections of members of the
Provisional Irish Republican Army, the Provisional Sinn Fein, the
Ulster Volunteer Force, and other paramilitary and political
organizations involved in the "Troubles" in Northern Ireland from
1969 forward. The purpose was to gather and preserve the stories
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of individual participants and provide insight into those who
become personally engaged in violent conflict. The Project is
housed at the John J. Burns Library of Rare Books and Special
Collections at BC.
The Project was first proposed by appellant Ed Moloney,
a journalist and writer. He later contracted with BC to become the
Project's director. Before the Project started, Robert K. O'Neill,
the Director of the Burns Library, informed Moloney that, although
he had not yet conferred with counsel on the point, he could not
guarantee that BC "would be in a position to refuse to turn over
documents [from the Project] on a court order without being held in
contempt."
Against this background, the Project attempted to guard
against unauthorized disclosure. The agreement between Moloney and
BC directed him as Project Director to require interviewers and
interviewees to sign a confidentiality agreement forbidding them
from disclosing the existence or scope of the Project without the
permission of BC. The agreement also required the use of a coding
system to maintain the anonymity of interviewees and provided that
only the Burns Librarian and Moloney would have access to the key
identifying the interviewees. Although the interviews were
originally going to be stored in Belfast, Northern Ireland, as well
as Boston, the Project leadership ultimately decided that the
interviews could only be safely stored in the United States. They
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were eventually stored in the "Treasure Room" of the Burns Library,
with extremely limited access.
The agreement between Moloney and BC requires that
"[e]ach interviewee is to be given a contract guaranteeing to the
extent American law allows the conditions of the interview and the
conditions of its deposit at the Burns Library, including terms of
an embargo period if it becomes necessary" (emphasis added). The
agreement, in this clause, expressly acknowledged that its
protections could be limited by American law. The agreement also
directs that the Project adopt an "appropriate user model, such as
Columbia University's Oral History Research Office Guidelines
statement."1
The Project employed researchers to interview former
members of the Irish Republican Army and the Ulster Volunteer
Force. Appellant Anthony McIntyre, himself a former IRA member,
was one of those researchers. McIntyre worked for the Project
under a contract governed by the terms of the agreement between
Moloney and BC. McIntyre's contract required him to transcribe and
index the interviews he conducted and to abide by the
confidentiality requirements of the Moloney agreement. McIntyre
conducted a total of twenty-six interviews of persons associated
1
As the district court noted in its opinion, researchers for
Columbia University's oral history projects apparently advise
interviewees that whatever they say is subject to release under
court orders and subpoenas. See In re: Request from the U.K., 831
F. Supp. 2d 435, 441 n.4 (D. Mass. 2011).
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with the republican side of the conflict for the Project by the
time it ended in 2006. In addition, the Project contains
interviews with fourteen members of Protestant paramilitary groups
and one member of law enforcement. There are a total of forty-one
interview series (each series may contain multiple interviews with
a single person).
Interviewees entered into donation agreements with BC,
which were signed by the interviewees and by O'Neill, the Burns
Librarian. The donation agreements transfer possession of the
interview recordings and transcripts to BC and assign to the school
"absolute title" to the materials, "including whatever copyright"
the interviewee may own in their contents. The donation agreements
have the following clause regarding access to the interview
materials:
Access to the tapes and transcripts shall be
restricted until after my death except in
those cases where I have provided prior
written approval for their use following
consultation with the Burns Librarian, Boston
College. Due to the sensitivity of content,
the ultimate power of release shall rest with
me. After my death the Burns Librarian of
Boston College may exercise such power
exclusively.
This clause does not contain the term "confidentiality" and
provides only that access will be restricted. But it does recite
that the ultimate power of release belongs to the donor during the
donor's lifetime. The donation agreements do not contain the "to
the extent American law allows" language that is contained in the
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agreement between Moloney and BC. A copy of the donation agreement
for Brendan Hughes, but not one for Dolours Price, is in the
record, but we assume both signed one.2
In 2010 Moloney published a book and released a
documentary, both entitled "Voices from the Grave, Two Men's War in
Ireland," based on Belfast Project interviews with Hughes and with
David Ervine, a former member of the Ulster Volunteer Force.3 In
addition, news reports in Northern Ireland revealed that Price had
been interviewed by academics at a Boston-area university and that
she had admitted to being involved in the murder and
"disappearances" of four persons targeted by the IRA, including
Jean McConville.
B. The US-UK MLAT Subpoenas
On March 30, 2011, the United States submitted an
application to the district court ex parte and under seal pursuant
to the US-UK MLAT and 18 U.S.C. § 3512, seeking the appointment of
an Assistant United States Attorney as commissioner to collect
2
An affidavit from McIntyre, who interviewed Price, states
that Price did sign a donation agreement, which McIntyre states
that he witnessed and also signed, and that he sent the donation
form to BC. The affidavit from O'Neill, the Burns Librarian,
states that a search of the Project's archives for Price's executed
donation agreement failed to locate it, but that there is no reason
to doubt that Price did in fact execute a donation agreement just
like the one executed by Hughes.
3
At the time the book was published, both Hughes and Ervine
had died, so under the terms of their donation agreements their
interviews could be released to the public.
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evidence from witnesses and to take such other action as necessary
to effectuate a request from law enforcement authorities in the
United Kingdom. That application remains under seal. The
application resulted from a formal request made by the United
Kingdom, pursuant to the US-UK MLAT, for legal assistance in a
pending criminal investigation in that country involving the 1972
murder and kidnapping of Jean McConville. The district court
granted the government's application on March 31, 2011, and entered
a sealed order granting the requested appointment.
The commissioner issued two sets of subpoenas for Belfast
Project materials. The first set of subpoenas were received by BC
on May 5, 2011, and were directed to the Trustees of Boston
College; Robert K. O'Neill, Director of the Burns Library; and
Thomas E. Hachey, Professor of History and Executive Director of
the Center for Irish Studies at BC. The subpoenas were issued for
the purpose of assisting the United Kingdom "regarding an alleged
violation of the laws of the United Kingdom," namely, murder,
conspiracy to murder, incitement to murder, aggravated burglary,
false imprisonment, kidnapping, and causing grievous bodily harm
with intent to cause such harm. The subpoenas did not state the
identity of the victim or victims of these crimes, and sought
recordings, written documents, written notes, and computer records
of interviews made with Brendan Hughes and Dolours Price, to be
produced on May 26, 2011.
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BC produced responsive materials related to Hughes; the
conditions of his donation agreement pertaining to the release of
his interviews had terminated with his death. The time to produce
the Price materials was extended by agreement with the U.S.
Attorney's Office until June 2, 2011.
The second set of subpoenas were received by counsel for
BC on August 4, 2011. The August subpoenas sought recordings of
"any and all interviews containing information about the abduction
and death of Mrs. Jean McConville," along with related transcripts,
records, and other materials. The August subpoenas were directed
at the 176 interviews with the remaining 24 republican-associated
interviewees who were part of the Project. These subpoenas
directed production no later than August 17, 2011.
C. The Litigation Initiated by BC
On June 7, 2011, BC moved to quash the May subpoenas. In
the alternative, BC requested that the court allow representatives
from BC access to the documents that describe the purposes of the
investigation to enable BC to specify with more particularity in
what ways the subpoenas were overbroad or that the court conduct
such a review in camera. The government opposed the motion. After
receiving the August subpoenas, BC filed a new motion to quash
addressed to both sets of subpoenas, which the government also
opposed.
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On August 31, 2011, appellants Moloney and McIntyre filed
a motion to intervene as of right and for permissive intervention,
see Fed. R. Civ. P. 24, along with their intervention complaint.
That pleading tracked the arguments made in BC's motion to quash
and also alleged that the Attorney General's compliance with the
United Kingdom's request violated the US-UK MLAT and that
enforcement of the subpoenas would violate Moloney and McIntyre's
First and Fifth Amendment rights. Moloney and McIntyre sought
declarations that the Attorney General was in violation of the
US-UK MLAT and injunctive relief or mandamus compelling him to
comply with the terms of that treaty, the effect of which would be
to impede the execution of the subpoenas. The government opposed
the motions to intervene.
On December 16, 2011, the district court issued an
opinion denying BC's motions to quash the May and August subpoenas
for the reasons stated in its opinion. In re: Request from the
U.K., 831 F. Supp. 2d at 459. As to BC's alternative request, the
court ordered BC to produce materials responsive to the two sets of
subpoenas for the court to review in camera.4 Id.
4
During a hearing held on December 22, 2011, the court
explained that it would engage in a two-part analysis, first
determining whether the produced materials fell within the scope of
the subpoenas, and second engaging in a balancing test. See Tr. of
Conf., In re: Request from the U.K., No. 11-91078 (D. Mass. Dec.
22, 2011), ECF No. 35.
-12-
The district court also denied Moloney and McIntyre's
motion to intervene as of right and their motion for permissive
intervention. Id. The court stated that no federal statute gave
Moloney and McIntyre an unconditional right to intervene under Rule
24(a)(1), "and the US-UK MLAT prohibits them from challenging the
Attorney General's decisions to pursue the MLAT request."5 Id. at
458. The district court "conclude[d] that Boston College
adequately represents any potential interests claimed by the
Intervenors. Boston College has already argued ably in favor of
protecting Moloney, McIntyre and the interviewees." Id. The court
did not separately analyze permissive intervention. Moloney and
McIntyre timely appealed the denial of their motion to intervene on
December 29, 2011.
Having reviewed in camera the interviews of Dolours Price
sought by the May subpoenas, the district court on December 27,
2011 ordered that the May subpoenas be enforced according to their
terms. See Order, In re: Request from the U.K., No. 11-91078 (D.
Mass. Dec. 27, 2011), ECF No. 38. BC and the other recipients of
the May subpoenas did not appeal this order.6
5
The district court also mentioned but did not analyze the
rule that "[a]n interest that is too contingent or speculative
. . . cannot furnish a basis for intervention as of right." In re:
Request from the U.K., 831 F. Supp. 2d at 458 (quoting Ungar v.
Arafat, 634 F.3d 46, 50-51 (1st Cir. 2011)) (internal quotation
marks omitted).
6
On December 30, 2011, this court granted Moloney and
McIntyre's motion to stay the portion of the district court's order
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Having been denied intervention, Moloney and McIntyre
filed a separate civil complaint in the district court on December
29, 2011. The same legal theories were stated in this complaint as
had been in the intervention complaint. The government moved to
dismiss plaintiffs' separate complaint for lack of subject matter
jurisdiction under Rule 12(b)(1) and for failure to state a claim
under Rule 12(b)(6).
The district court held a hearing on the motion to
dismiss on January 24, 2012, and dismissed the case from the bench.
See Tr. of Mot. Hr'g at 11, Moloney v. Holder, No. 11-12331 (D.
Mass. Jan. 24, 2012), ECF No. 18. The district court "rule[d] that
neither Mr. McIntyre nor Mr. Moloney under the Mutual Legal
Assistance Treaty and its adoption by the [S]enate and the treaty
materials has standing to bring this particular claim." Id. The
district court also stated:
Beyond that, on the merits, I am satisfied
that the Attorney General as [a] matter of law
has acted appropriately with respect to the
steps he has taken under this treaty, and I
can conceive of no different result applying
the heightened scrutiny that I think is
appropriate for these materials were this case
to go forward on the merits.7
of December 27, 2011 permitting the government to turn over the
Price interview materials to the United Kingdom, pending the
resolution of this appeal.
7
It is evident from the transcript of the hearing that the
district court considered Moloney and McIntyre's constitutional
claims as being the same as those raised by BC's motions to quash
and that the court dismissed Moloney and McIntyre's claims for the
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Id. Moloney and McIntyre timely appealed the dismissal of their
complaint on January 29, 2012.
As to BC's motion to quash the August subpoenas, on
January 20, 2012, the district court ordered BC to produce to the
government the full series of interviews and transcripts of five
interviewees and two specific interviews (but not the full
interview series) with two additional interviewees, along with
transcripts and related records.8 See Findings and Order, In re:
Request from the U.K., No. 11-91078, 2012 WL 194432 (D. Mass. Jan.
20, 2012). The court determined that the remaining interviews were
not within the subpoenas' scope.9 BC has appealed this order, and
that appeal is not before this panel. See Appeal No. 12-1236.
The American Civil Liberties Union of Massachusetts
(ACLUM) has filed an amicus curiae brief in support of appellants
Moloney and McIntyre.10
same reasons that it denied BC's motions. Tr. of Mot. Hr'g at 8-
11, Moloney v. Holder, No. 11-12331 (D. Mass. Jan. 24, 2012), ECF
No. 18.
8
The court made production contingent on the lifting of the
stay entered by this court on December 30, 2011.
9
No party raises on appeal any question whether the district
court had discretion to review the materials to determine whether
they fell within the scope of the subpoenas or acted within any
discretion it had.
10
The brief states three interests: support of the First
Amendment claim, expression of concern about disclosure of
confidential information held by others, and an expression of
concern about the government's interpretation of the US-UK MLAT.
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II.
Dismissal of the Civil Complaint's Claims Under the US-UK MLAT
and 18 U.S.C. § 3512We review de novo the dismissal of the appellants'
complaint. See Abdel-Aleem v. OPK Biotech LLC, 665 F.3d 38, 41
(1st Cir. 2012) (dismissal for lack of subject matter jurisdiction
reviewed de novo); Feliciano-Hernández v. Pereira-Castillo, 663
F.3d 527, 532 (1st Cir. 2011) (dismissal for failure to state a
claim reviewed de novo), cert. denied, 80 U.S.L.W. 3676 (U.S. June
11, 2012). We "accept[] as true all well-pleaded facts, analyz[e]
those facts in the light most hospitable to the plaintiff's theory,
and draw[] all reasonable inferences for the plaintiff." New York
v. Amgen Inc., 652 F.3d 103, 109 (1st Cir. 2011) (quoting United
States ex rel. Hutcheson v. Blackstone Med., Inc., 647 F.3d 377,
383 (1st Cir. 2011)), cert. dismissed, 132 S. Ct. 993. We are not
bound by the district court's reasoning but "may affirm an order of
dismissal on any basis made apparent from the record." Cook v.
Gates, 528 F.3d 42, 48 (1st Cir. 2008) (quoting McCloskey v.
Mueller, 446 F.3d 262, 266 (1st Cir. 2006)).
Moloney and McIntyre essentially make several arguments
of statutory error and one constitutional claim. They argue that
(1) they state a claim under the US-UK MLAT and 18 U.S.C. § 3512;
in any event, (2) they have a claim under the Administrative
Procedure Act, 5 U.S.C. § 702, and 28 U.S.C. § 1331; and that,
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regardless, (3) the district court had residual discretion which it
abused in not quashing the subpoenas. They also argue that their
claim under the First Amendment of the U.S. Constitution, brought
under federal question jurisdiction, 28 U.S.C. § 1331, was
improperly dismissed, an argument we address in part III.
Moloney and McIntyre contend they may bring suit on the
claims that the Attorney General failed to fulfill his obligations
under the US-UK MLAT and that they have a private right of action
to seek a writ of mandamus compelling him to comply with the treaty
or to seek a declaration from a federal court that he has not
complied with the treaty.11
The appellants' claims under the US-UK MLAT fail because
appellants are not able to state a claim that they have private
rights that arise under the treaty, and because a federal court has
no subject matter jurisdiction to entertain a claim for judicial
review of the Attorney General's actions pursuant to the treaty.
11
Appellants assert that the Attorney General's actions
violate the US-UK MLAT because it was not reasonable to believe
that a prosecution would take place in the underlying case; he
failed to take into account certain "essential interests" and
"public policy" in deciding whether to comply with a request under
the treaty; the crimes under investigation by the United Kingdom
were "of a political character;" and he did not consider the
implications for the peace process in Northern Ireland of complying
with the United Kingdom's request. The federal courts may not
review this decision by the Attorney General.
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A. Explanation of the Treaty and Statutory Scheme
The United States has entered into a number of mutual
legal assistance treaties ("MLATs") which typically provide for
bilateral, mutual assistance in the gathering of legal evidence for
use by the requesting state in criminal investigations and
proceedings. A description of the history and evolution of such
MLATs may be found in the Ninth Circuit's decision in In re 840
140th Ave. NE, 634 F.3d 557, 563-64 (9th Cir. 2011).
The MLAT between the United States and the United Kingdom
was signed on January 6, 1994, and entered into force on December
2, 1996. See Treaty Between the Government of the United States
and the Government of the United Kingdom of Great Britain and
Northern Ireland on Mutual Legal Assistance in Criminal Matters,
U.S.-U.K., Dec. 2, 1996, S. Treaty Doc. No. 104-2. In 2003, the
United States signed a mutual legal assistance treaty with the
European Union ("US-EU MLAT") that made additions and amendments to
the US-UK MLAT; the latter is in turn included as an annex to the
US-EU MLAT. See Agreement on Mutual Legal Assistance Between the
United States of America and the European Union, U.S.-E.U., June
25, 2003, S. Treaty Doc. No. 109-13. Both MLATs are self-executing
treaties. S. Treaty Doc. No. 109-13, at vii ("The U.S.-EU Mutual
Legal Assistance Agreement and bilateral instruments [including the
annexed US-UK MLAT] are regarded as self-executing treaties under
U.S. law . . . .").
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Article 1 of the US-UK MLAT provides that the parties to
the agreement shall assist one another in taking testimony of
persons; providing documents, records, and evidence; serving
documents; locating or identifying persons; transferring persons in
custody for testimony or other purposes; executing requests for
searches and seizures; identifying, tracing, freezing, seizing, and
forfeiting the proceeds and instrumentalities of crime; and
providing other assistance the parties' representatives may agree
upon. See US-UK MLAT, art. 1, ¶ 2.
Importantly, article 1 further states: "This treaty is
intended solely for mutual legal assistance between the Parties.
The provisions of this Treaty shall not give rise to a right on the
part of any private person to obtain, suppress, or exclude any
evidence, or to impede the execution of a request." US-UK MLAT,
art. 1, ¶ 3. This treaty expressly prohibits the creation of
private rights of action.
Article 2 concerns Central Authorities: each party's
representative responsible for making and receiving requests under
the US-UK MLAT. US-UK MLAT, art. 2, ¶ 3. The treaty states that
the Central Authority for the United States is "the Attorney
General or a person or agency designated by him." US-UK MLAT,
art. 2, ¶ 2.
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Article 3 sets forth certain conditions under which the
Central Authority of the Requested Party may refuse assistance.12
Before the Central Authority of a Requested Party denies assistance
for any of the listed reasons, the treaty states that he or she
"shall consult with the Central Authority of the Requesting Party
to consider whether assistance can be given subject to such
conditions as it deems necessary." US-UK MLAT, art. 3, ¶ 2.
12
Article 3, paragraph one states that
[t]he Central Authority of the Requested Party
may refuse assistance if:
(a) the Requested Party is of the opinion that
the request, if granted, would impair its
sovereignty, security, or other essential
interests or would be contrary to important
public policy;
(b) the request relates to an offender who, if
proceeded against in the Requested Party for
the offense for which assistance is requested,
would be entitled to be discharged on the
grounds of previous acquittal or conviction;
or
(c) the request relates to an offense that is
regarded by the Requested Party as:
(i) an offense of a political character;
or
(ii) an offense under military law of the
Requested Party which is not also an
offense under the ordinary civilian law
of the Requested Party.
US-UK MLAT, art. 3, ¶ 1.
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In article 18, entitled "Consultation," the treaty states
that
[t]he Parties, or Central Authorities, shall
consult promptly, at the request of either,
concerning the implementation of this Treaty
either generally or in relation to a
particular case. Such consultation may in
particular take place if . . . either Party
has rights or obligations under another
bilateral or multilateral agreement relating
to the subject matter of this Treaty.
US-UK MLAT, art. 18, ¶ 1.
The requests from the United Kingdom in this case were
executed under 18 U.S.C. § 3512, which was enacted as part of the
Foreign Evidence Request Efficiency Act of 2009, Pub. L. No.
111-79, 123 Stat. 2086. When the US-UK MLAT was entered into,
requests for assistance were to be executed under a different
statute, 28 U.S.C. § 1782. See S. Exec. Rep. No. 104-23, at 13
(1996) (report of the Senate Committee on Foreign Relations
accompanying the US-UK MLAT). Among other differences, § 3512
provides for a more streamlined process than under § 1782 for
executing requests from foreign governments related to the
prosecution of criminal offenses.13 Enforcement of similar MLATs
13
Section 1782 effectively requires the Attorney General as
Central Authority to respond to requests for evidence from foreign
governments by filing requests with the district court in every
district in which evidence or a witness may be found. See 155
Cong. Rec. S6810 (daily ed. June 18, 2009) (letter from Acting
Assistant Att'y Gen. Burton to Sen. Whitehouse). In practice this
requires involving multiple U.S. Attorneys' Offices and district
courts in a single case. Id. Section 3512, on the other hand,
permits a single Assistant United States Attorney to pursue
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under the provisions of § 1782 was the subject of consideration in
In re 840 140th Ave. NE, 634 F.3d 557 (9th Cir. 2011); In re
Commissioner's Subpoenas, 325 F.3d 1287 (11th Cir. 2003), abrogated
in part by Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S.
241 (2004); and In re Erato, 2 F.3d 11 (2d Cir. 1993).
B. Appellants Have No Enforceable Rights Derived from the
US-UK MLAT
Interpretation of the treaty takes place against "the
background presumption . . . that '[i]nternational agreements, even
those directly benefitting private persons, generally do not create
rights or provide for a private cause of action in domestic
courts.'" Medellín v. Texas, 128 S. Ct. 1346, 1357 n.3 (2008)
(alteration in original) (quoting 2 Restatement (Third) of Foreign
Relations Law of the United States § 907 cmt. a, at 395 (1986)).
The First Circuit and other courts of appeals have held that
"treaties do not generally create rights that are privately
enforceable in the federal courts." United States v. Li, 206 F.3d
56, 60 (1st Cir. 2000) (en banc); see also Mora v. New York, 524
F.3d 183, 201 & n.25 (2d Cir. 2008) (collecting cases from ten
circuits holding that there is a presumption that treaties do not
create privately enforceable rights in the absence of express
requests in multiple judicial districts, see 18 U.S.C.
§ 3512(a)(1); 155 Cong. Rec. S6809 (daily ed. June 18, 2009)
(statement of Sen. Whitehouse), and allows individual district
court judges to oversee and approve subpoenas and other orders (but
not search warrants) in districts other than their own, see 18
U.S.C. § 3512(f).
-22-
language to the contrary). Express language in a treaty creating
private rights can overcome this presumption. See Mora, 524 F.3d
at 188.
The US-UK MLAT contains no express language creating
private rights. To the contrary, the treaty expressly states that
it does not give rise to any private rights. Article 1, paragraph
3 of the treaty states, in full: "This treaty is intended solely
for mutual legal assistance between the Parties. The provisions of
this Treaty shall not give rise to a right on the part of any
private person to obtain, suppress, or exclude any evidence, or to
impede the execution of a request." US-UK MLAT, art. 1, ¶ 3. The
language of the treaty is clear: a "private person," such as
Moloney or McIntyre here, does not have any right under the treaty
to "suppress . . . any evidence, or to impede the execution of a
request."
If there were any doubt, and there is none, the report of
the Senate Committee on Foreign Relations that accompanied the
US-UK MLAT confirms this reading of the treaty's text:
[T]he Treaty is not intended to create any
rights to impede execution of requests or to
suppress or exclude evidence obtained
thereunder. Thus, a person from whom records
are sought may not oppose the execution of the
request by claiming that it does not comply
with the Treaty's formal requirements set out
in article 3.
S. Exec. Rep. No. 104-23, at 14.
-23-
Other courts considering MLATs containing terms similar
to the US-UK MLAT here have uniformly ruled that no such private
right exists. See In re Grand Jury Subpoena, 646 F.3d 159, 165
(4th Cir. 2011) (subject of a subpoena issued pursuant to an MLAT
with a clause identical to the US-UK MLAT's article 1, paragraph 3
"failed to show that the MLAT gives rise to a private right of
action that can be used to restrict the government's conduct");
United States v. Rommy, 506 F.3d 108, 129 (2d Cir. 2007) (defendant
who argued that evidence against him was improperly admitted
because it was gathered in violation of US-Netherlands MLAT could
not "demonstrate that the treaty creates any judicially enforceable
right that could be implicated by the government's conduct" in the
case); United States v. $734,578.82 in U.S. Currency, 286 F.3d 641,
659 (3d Cir. 2002) (article 1, paragraph 3 of US-UK MLAT barred
claimants' argument that seizure and subsequent forfeiture of money
violated the treaty); United States v. Chitron Elecs. Co. Ltd., 668
F. Supp. 2d 298, 306-07 (D. Mass. 2009) (defendant's argument that
service of criminal summons was defective under US-China MLAT,
which contained a clause identical to article 1, paragraph 3 of
US-UK MLAT, failed because "the MLAT does not create a private
right of enforcement of the treaty").
Moloney and McIntyre attempt to get around the
prohibition on the creation of private causes of action with three
arguments based on the treaty language. Appellants appear to argue
-24-
that the text of the US-UK MLAT only covers requests for documents
in the possession of the Requested Party but not for documents held
by third persons who are merely under the jurisdiction of the
government which is the Requested Party. This is clearly wrong.
Article 1, paragraph 2 of the treaty states that a form of
assistance provided for under the treaty includes "providing
documents, records, and evidence." US-UK MLAT, art. 1, ¶ 2(b). As
the Senate report explains, the treaty "permits a State to compel
a person in the Requested State to testify and produce documents
there." S. Exec. Rep. No. 104-23, at 7.
Appellants' second argument is that article 1, paragraph
3 applies only to criminal defendants who try to block enforcement.
This argument has no support in the text of the treaty. The US-UK
MLAT plainly states that the treaty does not "give rise to a right
on the part of any private person . . . to impede the execution of
a request." US-UK MLAT, art. 1, ¶ 3 (emphasis added). This
prohibition by its terms encompasses all private persons, not just
criminal defendants.
Appellants finally contend that they do not seek to
"obtain, suppress, or exclude any evidence, or to impede the
execution of a request," but instead merely to enforce the treaty
requirements before there can be compliance with a subpoena. Their
own requests for relief make it clear they are attempting to do
exactly what they say they are not.
-25-
Because the US-UK MLAT expressly disclaims the existence
of any private rights under the treaty, appellants cannot state a
claim under the treaty upon which relief can be granted.14
C. The APA Does Not Provide a Claim for Judicial Review
Appellants attempt to circumvent the US-UK MLAT's
prohibition on private rights of action by framing their suit as
one of judicial review under the APA.15 See 5 U.S.C. § 702.
It is true that § 702 of the APA provides that "[a]
person suffering legal wrong because of agency action, or adversely
affected or aggrieved by agency action within the meaning of a
relevant statute, is entitled to judicial review thereof." Id.
However, § 701(a)(1) withdraws the right to judicial review to the
14
We reject their broader contention that the US-EU MLAT
provides a basis for applying U.S. domestic law. That treaty has
a provision that reads: "The provisions of this Agreement shall not
. . . expand or limit rights otherwise available under domestic
law." US-EU MLAT, art. 3, ¶ 5. Not only is appellants' reliance
on this provision question begging, it is also misplaced. By its
terms the provision applies only to the US-EU MLAT and not to any
of the related bilateral agreements, such as the US-UK MLAT at
issue in this case.
15
The government argues that Moloney and McIntyre lack
prudential standing to bring their claims under the APA because
their asserted interests fall outside the zone of interests meant
to be protected or regulated by the US-UK MLAT. See Match-E-Be-
Nash-She-Wish Band of Pottawatomi Indians v. Patchak, Nos. 11-246,
11-247, 2012 WL 2202936, at *9 (U.S. June 18, 2012) (describing the
prudential standing test). The zone-of-interests standing question
"is an issue of statutory standing," not Article III standing.
Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 97 (1998).
We may and do bypass the question of appellants' statutory standing
and resolve the issue of whether the APA provides them with a cause
of action on the merits. See id. at 97 & n.2 (merits questions may
be decided before statutory standing questions).
-26-
extent that "statutes preclude judicial review." Id. The treaty
here by its express language precludes judicial review. Further,
"the structure of the statutory scheme, its objectives, its
legislative history, and the nature of the administrative action
involved" all dictate that no judicial review is available under
the APA. Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345 (1984).
Section 701(a)(1) thus bars federal court jurisdiction here.16
Accord Comm. of U.S. Citizens Living in Nicar. v. Reagan, 859 F.2d
929, 943 (D.C. Cir. 1988) ("[T]he APA does not grant judicial
review of agencies' compliance with a legal norm that is not
otherwise an operative part of domestic law." (citing 5 Davis,
Administrative Law Treatise § 28.1, at 256 (2d ed. 1984))).
16
Appellants admit they cannot invoke the Declaratory
Judgment Act, 28 U.S.C. § 2201, as an independent basis for
jurisdiction over their claims. See Alberto San, Inc. v. Consejo
de Titulares del Condominio San Alberto, 522 F.3d 1, 5 (1st Cir.
2008) (Declaratory Judgment Act "merely 'makes available an added
anodyne for disputes that come within the federal courts'
jurisdiction on some other basis.'" (quoting Ernst & Young v.
Depositors Econ. Prot. Corp., 45 F.3d 530, 534 (1st Cir. 1995))
(citing Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671
(1950))).
Nor are appellants entitled to a writ of mandamus under 28
U.S.C. § 1361. "Mandamus is regarded as an extraordinary writ
reserved for special situations. Among its ordinary preconditions
are that the agency or official have acted (or failed to act) in
disregard of a clear legal duty and that there be no adequate
conventional means for review." In re City of Fall River, Mass.,
470 F.3d 30, 32 (1st Cir. 2006). Such clear legal duty must be
"nondiscretionary." Eveland v. Dir. of Cent. Intelligence Agency,
843 F.2d 46, 51 (1st Cir. 1988) (per curiam) (quoting Heckler v.
Ringer, 466 U.S. 602, 616 (1984)). Here, the plain text of article
1, paragraph 3 of the US-UK MLAT precludes any legal duty --
discretionary or nondiscretionary -- under the treaty on the part
of the Attorney General to any private party.
-27-
D. The District Court Did Not Abuse Its Discretion, in Any
Event, in Denying Relief
The district court reasoned that it had discretion, under
the laws of the United States, particularly 18 U.S.C. § 3512, to
quash the subpoenas, and concluded that it would exercise its
discretion not to do so. The appellants, accordingly, argue that
they may take advantage of that discretion and that the district
court abused its discretion in not granting relief.17 The
government in this case has chosen not to address the question of
whether there is any such discretion, or, if so, the scope of it or
who may invoke it. By contrast, in a case under the US-Russia MLAT
and 28 U.S.C. § 1782, the government argued that the district court
17
Appellants' reliance on Intel Corp. v. Advanced Micro
Devices, Inc., 542 U.S. 241 (2004), fails. Moloney and McIntyre
argue that the district court should have evaluated the subpoenas
by applying the discretionary factors set forth in Intel. In that
case the Supreme Court set out "factors that bear consideration in
ruling on a § 1782(a) request" for the production of evidence for
use in a foreign tribunal. Id. at 264.
The Intel factors are not applicable in this case for two
reasons, whether or not § 3512 provides any residual discretion.
The request here was brought under 18 U.S.C. § 3512, not 28 U.S.C.
§ 1782(a). In addition, the United Kingdom's request was made
pursuant to an MLAT. The Court developed the Intel factors to
apply to a situation where 28 U.S.C. § 1782(a) provided the only
substantive standards for evaluating a request, but here such
substantive standards are provided by the US-UK MLAT. See In re
840 140th Ave. NE, 634 F.3d 557, 571 (9th Cir. 2011) (MLAT requests
brought pursuant to § 1782 use that statute's procedural mechanisms
"without importing [its] substantive limitations"); Nanda &
Pansius, Litigation of International Disputes in U.S. Courts
§ 17:53 ("The [MLAT] provides at least three advantages:
reciprocity; the reduction (if not elimination) of the court's
discretion under § 1782; and the streamlining of evidence
processes.").
-28-
lacked discretion to quash the subpoena. In re 840 140th Ave. NE,
634 F.3d at 565, 568. The Ninth Circuit agreed with the
government's position, and noted that at most the statute provides
"a procedure for executing requests, but not . . . a means for
deciding whether or not to grant or deny a request so made." Id.
at 570 (quoting In re Commissioner's Subpoenas, 325 F.3d at 1297)
(internal quotation mark omitted). In doing so, it agreed with the
Eleventh Circuit in In re Commissioner's Subpoenas.
By contrast, here, for purposes of this appeal, the
government has assumed arguendo that the district court had
discretion to quash (going beyond the issue of whether the
documents were responsive to the terms of the subpoenas) and has
argued that the court acted properly within any discretion it may
have had. So we have no occasion to pass on these assumptions and
caution that we are not deciding any of these issues. The issues
before us are more limited.
Even assuming arguendo the district court had such
discretion, a question we do not address, we see no basis to upset
the decision not to quash. The district court concluded that the
balance of interests favored the government. See Order, In re:
Request from the U.K., No. 11-91078 (D. Mass. Dec. 27, 2011), ECF
No. 38; Findings and Order, In re: Request from the U.K., No. 11-
91078, 2012 WL 194432 (D. Mass. Jan. 20, 2012). The court's
-29-
finding that any balancing favored the government was not an abuse
of discretion, assuming such discretion existed.
III.
The Constitutional Claims Were Properly Dismissed
Moloney and McIntyre's civil complaint alleged violations
of their constitutional rights under the First Amendment.18 We have
jurisdiction under 28 U.S.C. § 1331.
It is undisputed that treaty obligations are subject to
some constitutional limits. See Am. Ins. Ass'n v. Garamendi, 539
U.S. 396, 417 & n.9 (2003) (treaty obligations are "subject . . .
to the Constitution's guarantees of individual rights"). Like the
Ninth Circuit in In re 840 140th Ave. NE, we think it clear that
the Constitution does not compel the consideration under the treaty
of discretionary factors such as those contained in § 1782,
although Congress may choose to enact some in statutes. 634 F.3d
at 573.
We affirm the dismissal for failure to state a claim,
after disposing of some of the government's initial arguments.
18
Although the complaint alludes to a Fifth Amendment claim,
based on alleged risk to appellants, no such claim is pled or
briefed, and it fails. See Marrero-Rodríguez v. Municipality of
San Juan, 677 F.3d 497, 501 (1st Cir. 2012) (dismissing as not
properly pled a Fourth Amendment claim which was only mentioned on
the first page of the complaint, and was not even pled as a claim).
-30-
A. The Government's Standing Objections
The government attempts to short stop any analysis of
whether a claim is stated by arguing that neither appellant has
standing under Article III to raise a constitutional claim.
Standing has both an Article III component and a prudential
component. Katz v. Pershing, LLC, 672 F.3d 64, 71-72 (1st Cir.
2012). If the government's objections went only to prudential
standing, they could easily be bypassed in favor of a decision on
the merits. Nisselson v. Lernout, 469 F.3d 143, 150 (1st Cir.
2006) (challenges to plaintiff's standing to sue "must be addressed
first only if they call into question a federal court's Article III
power to hear the case").
"Standing under Article III of the Constitution requires
that an injury be concrete, particularized, and actual or imminent;
fairly traceable to the challenged action; and redressable by a
favorable ruling." Monsanto Co. v. Geertson Seed Farms, 130 S. Ct.
2743, 2752 (2010). At this stage, under Iqbal we credit
plaintiffs' allegations of threatened harm.19 See Katz, 672 F.3d
at 70; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). On their face,
the pleadings appear to allege the requisite Article III injury
that is fairly traceable to the issuance of the subpoenas and
redressable by a favorable ruling. To the extent the government
19
We add that the government disputes these allegations of
threatened harm to appellants, which also makes any final
resolution of the standing issue at this stage inadvisable.
-31-
asserts that the appellants lack prudential standing, we bypass the
arguments.
B. Failure to State a First Amendment Claim
We affirm the dismissal, as we are required to do by
Branzburg v. Hayes, 408 U.S. 665 (1972). As framed, the claim is
one of violation of appellants' individual "constitutional right to
freedom of speech, and in particular their freedom to impart
historically important information for the benefit of the American
public, without the threat of adverse government reaction." They
support this with an assertion that production of the subpoenaed
interviews is contrary to the "confidentiality" they say they
promised to the interviewees. They assert an academic research
privilege,20 to be evaluated under the same terms as claims of a
reporter's privilege. See Cusumano v. Microsoft Corp., 162 F.3d
708, 714 (1st Cir. 1998) ("Academicians engaged in pre-publication
research should be accorded protection commensurate to that which
the law provides for journalists.").
20
The Supreme Court, for First Amendment purposes, has
distinguished between "academic freedom" cases, on the one hand,
involving government attempts to influence the content of academic
speech and direct efforts by government to determine who teaches,
from, on the other hand, the question of privilege in the academic
setting to protect confidential peer review materials. Univ. of
Pa. v. EEOC, 493 U.S. 182, 197-98 (1990). We view appellants'
claim as falling into the second category. As such, it is far
attenuated from the academic freedom issue, and the claimed injury
as to academic freedom is speculative. Id. at 200.
-32-
Our analysis is controlled by Branzburg, which held that
the fact that disclosure of the materials sought by a subpoena in
criminal proceedings would result in the breaking of a promise of
confidentiality by reporters is not by itself a legally cognizable
First Amendment or common law injury. See 408 U.S. at 682, 690-91,
701. Since Branzburg, the Court has three times affirmed its basic
principles in that opinion. See Cohen v. Cowles Media Co., 501
U.S. 663 (1991) (First Amendment does not prohibit a plaintiff from
recovering damages, under state promissory estoppel law, if the
defendant newspaper breaches its promise of confidentiality); Univ.
of Pa. v. EEOC, 493 U.S. 182 (1990) (First Amendment does not give
a university any privilege to avoid disclosure of its confidential
peer review materials pursuant to an EEOC subpoena in a
discrimination case); Zurcher v. Stanford Daily, 436 U.S. 547(1978) (First Amendment does not provide any special protections
for newspapers whose offices might be searched pursuant to a search
warrant based on probable cause to look for evidence of a crime).
In Branzburg, the Court rejected reporters' claims that
the freedoms of the press21 and speech under the First Amendment,
or the common law, gave them the right to refuse to testify before
grand juries under subpoena with respect to information they
learned from their confidential sources. The Court held that the
strong interests in law enforcement precluded the creation of a
21
No claim of freedom of the press is involved here.
-33-
special rule granting reporters a privilege which other citizens do
not enjoy:
Fair and effective law enforcement aimed at
providing security for the person and property
of the individual is a fundamental function of
government, and the grand jury plays an
important, constitutionally mandated role in
this process. On the records now before us,
we perceive no basis for holding that the
public interest in law enforcement and in
ensuring effective grand jury proceedings is
insufficient to override the consequential,
but uncertain, burden on news gathering that
is said to result from insisting that
reporters, like other citizens, respond to
relevant questions put to them in the course
of a valid grand jury investigation or
criminal trial.
408 U.S. at 690-91; accord Cohen, 501 U.S. at 669. The Branzburg
Court "flatly rejected any notion of a general-purpose reporter's
privilege for confidential sources, whether by virtue of the First
Amendment or of a newly hewn common law privilege."22 In re Special
Proceedings, 373 F.3d 37, 44 (1st Cir. 2004). And as the Court
said in Zurcher,
Nor are we convinced, any more than we were in
Branzburg, that confidential sources will
disappear and that the press will suppress
news because of fears of warranted searches.
Whatever incremental effect there may be in
this regard if search warrants, as well as
22
The Branzburg Court "left open . . . the prospect that in
certain situations -- e.g., a showing of bad faith purpose to
harass -- First Amendment protections might be invoked by the
reporter." In re Special Proceedings, 373 F.3d 37, 45 (1st Cir.
2004) (citing Branzburg v. Hayes, 408 U.S. 665, 707-08 (1972)).
This suit does not fall within that premise. There is no plausible
claim here of a bad faith purpose to harass.
-34-
subpoenas, are permissible in proper
circumstances, it does not make a
constitutional difference in our judgment.
436 U.S. at 566 (citation omitted). As in Branzburg, there is no
reason to create such a privilege here.
The Court rejected a similar claim of First Amendment
privilege in University of Pennsylvania. The claim rejected there
was that peer review materials produced in a university setting
should not be disclosed in response to an EEOC subpoena in an
investigation of possible tenure discrimination. The Court
rejected the University's claims of First Amendment and of common
law privilege. It also rejected a requirement that there be a
judicial finding of particularized relevance beyond a showing of
relevance. 493 U.S. at 188, 194.
The issue of defending against court proceedings
requiring disclosure of information given under a promise of
confidentiality has come up in a variety of circumstances in this
circuit. Some cases involved underlying criminal proceedings as in
Branzburg. See In re Special Proceedings, 373 F.3d 37 (1st Cir.
2004) (upholding order finding reporter in civil contempt for
refusing to reveal to a special prosecutor the identity of the
person who leaked a videotape in violation of a protective order
entered in a criminal proceeding). One case did not invoke grand
jury or government criminal investigations, but rather a request
from criminal defendants. United States v. LaRouche Campaign, 841
-35-
F.2d 1176 (1st Cir. 1988) (upholding order finding television
network in civil contempt for refusing to comply with criminal
defendants' subpoena seeking "outtakes" of an interview with a key
government witness).23
Two of our precedents dealt with claims of a non-
disclosure privilege in civil cases, in which private parties both
sought and opposed disclosure; as a result, the government and
public's strong interest in investigation of crime was not an
issue. See Cusumano, 162 F.3d 708;24 Bruno & Stillman, Inc. v.
Globe Newspaper Co., 633 F.2d 583 (1st Cir. 1980).
This case is closer to Branzburg itself, buttressed by
University of Pennsylvania, than any of our circuit precedent. The
Branzburg analysis, especially as to the strength of the
governmental and public interest in not impeding criminal
investigations, guides our outcome.
The fact that a U.S. grand jury did not issue the
subpoenas here is not a ground on which to avoid the conclusion
that Branzburg controls. The law enforcement interest here -- a
23
As the Seventh Circuit recognized in McKevitt v. Pallasch,
339 F.3d 530, 532 (7th Cir. 2003), there is a circuit split on
whether under Branzburg there can ever be a reporter's privilege of
constitutional or common law dimensions. This circuit has
recognized such a possibility in United States v. LaRouche
Campaign, 841 F.2d 1176, 1181-82 (1st Cir. 1988).
24
Even if Branzburg left us free, as we think it does not,
to engage in an independent balancing utilizing the test
articulated in our decision in Cusumano, we would still affirm, for
the same reasons.
-36-
criminal investigation by a foreign sovereign advanced through
treaty obligations -- is arguably even stronger than the
government's interest in Branzburg itself. Two branches of the
federal government, the Executive and the Senate, have expressly
decided to assume these treaty obligations. In exchange, this
country is provided with valuable reciprocal rights. "The federal
interest in cooperating in the criminal proceedings of friendly
foreign nations is obvious." McKevitt v. Pallasch, 339 F.3d 530,
532 (7th Cir. 2003). The strong interests of both the United
States government and the requesting foreign government is
emphasized by language in the treaty itself, which prohibits
private parties from attempting to block enforcement of subpoenas.
See US-UK MLAT, art. 1, ¶ 3.
The Supreme Court in Branzburg stressed that "[f]air and
effective law enforcement aimed at providing security for the
person and property of the individual is a fundamental function of
government." 408 U.S. at 690. "The preference for anonymity of
those confidential informants involved in actual criminal conduct
is presumably a product of their desire to escape criminal
prosecution, and this preference, while understandable, is hardly
deserving of constitutional protection." Id. at 691. The court
also commented that "it is obvious that agreements to conceal
information relevant to commission of crime have very little to
recommend them from the standpoint of public policy." Id. at 696.
-37-
In doing so, it relied on legal history, including both English and
United States history outlawing concealment of a felony. Id. at
696-97.
Branzburg weighed the interests against disclosure
pursuant to subpoenas and concluded they were so wanting as not to
state a claim.25 The opinion discussed the situation, not merely
of reporters who promised confidentiality, but also of both
informants who had committed crimes and those innocent informants
who had information pertinent to the investigation of crimes. The
interests in confidentiality of both kinds of informants did not
give rise to a First Amendment interest in the reporters to whom
they had given the information under a promise of confidentiality.
These insufficient interests included the fear, as here, that
disclosure might "threaten their job security or personal safety or
that it will simply result in dishonor or embarrassment." Id. at
693. If the reporters' interests were insufficient in Branzburg,
the academic researchers' interests necessarily are insufficient
here.
It may be that compliance with the subpoenas in the face
of the misleading assurances in the donation agreements could have
some chilling effect, as plaintiffs assert. This amounts to an
25
Branzburg also rejected arguments of First Amendment
protection based on a notion that the press was being used as an
investigative arm of the government, imposing burdens on it. 408
U.S. at 706-07.
-38-
argument that unless confidentiality could be promised and that
promise upheld by the courts in defense to criminal subpoenas, the
research project will be less effective.26 Branzburg took into
account precisely this risk. So did the Court in rejecting the
claim in the academic peer review situation in University of
Pennsylvania. See 493 U.S. at 188, 194. The choice to investigate
criminal activity belongs to the government and is not subject to
veto by academic researchers.
We add that this situation was clearly avoidable. It is
unfortunate that BC was inconsistent in its application of its
recognition of the limits of its ability to promise
confidentiality. But that hardly assists the appellants' case.
Burns Librarian O'Neill informed Moloney before the project
commenced that he could not guarantee that BC "would be in a
position to refuse to turn over documents [from the Project] on a
court order without being held in contempt." In keeping with this
warning, Moloney's agreement with BC directed that "[e]ach
interviewee is to be given a contract guaranteeing to the extent
26
McIntyre, but not Moloney, in his affidavit states that
neither he nor the people he interviewed would have participated in
the Belfast Project had they thought that the interviews would be
subject to disclosure before their deaths and without their
permission. Burns Librarian O'Neill states in his affidavit that
"[h]ad the assurances of confidentiality not been made, it is
doubtful that any paramilitary would have participated in this oral
history project. Their stories would have died with them, and an
opportunity to document and preserve a critical part of the
historical record would have been lost forever."
-39-
American law allows the conditions of the interview and the
conditions of its deposit at the Burns Library, including terms of
an embargo period if this becomes necessary" (emphasis added).
Despite Moloney's knowledge of these limitations, the donation
agreements signed by the interviewees did not contain the
limitation required to be in them by Moloney's agreement with BC.
That failure in the donation agreement does not change
the fact that any promises of confidentiality were necessarily
limited by the principle that "the mere fact that a communication
was made in express confidence . . . does not create a
privilege. . . . No pledge of privacy nor oath of secrecy can avail
against demand for the truth in a court of justice." Branzburg,
408 U.S. at 682 n.21 (quoting 8 Wigmore, Evidence § 2286
(McNaughton rev. 1961)) (internal quotation marks omitted).
To be clear, even if participants had been made aware of
the limits of any representation about non-disclosure, Moloney and
McIntyre had no First Amendment basis to challenge the subpoenas.
Appellants simply have no constitutional claim and so that portion
of the complaint was also properly dismissed.27
27
Appellants' intervention complaint raised the same claims
as their separate civil complaint. We have affirmed that there is
no cause of action under the treaty and under the Constitution, so
there is no need for us to consider whether the district court
acted within its discretion in denying appellants' motion to
intervene. Cf. In re Grand Jury Proceedings, 708 F.2d 1571, 1575
(11th Cir. 1983) (per curiam) (holding that the district court's
denial of a petition to intervene was harmless error because the
merits of the appellant's claim were eventually considered on
-40-
IV.
We uphold the denial of the requested relief for the
reasons stated and affirm. No costs are awarded.
-- Opinion Concurring in the Judgment Follows --
appeal).
-41-
TORRUELLA, Circuit Judge (Concurring in the judgment
only). I reluctantly concur in the judgment in this case, doing so
only because I am compelled to agree that the Supreme Court in
Branzburg v. Hayes, 408 U.S. 665 (1972), and subsequent cases has
most likely foreclosed the relief that the Appellants in these
consolidated appeals seek. I write separately to emphasize my view
that, while the effect of Branzburg and its progeny is to forestall
the result that the Appellants wish to see occur, none of those
cases supports the very different proposition, apparently espoused
by the majority, that the First Amendment does not provide some
degree of protection to the fruits of the Appellants' investigative
labors. Cf. Branzburg, 408 U.S. at 681. It is one thing to say
that the high court has considered competing interests and
determined that information gatherers (here, academic researchers)
may not refuse to turn over material they acquired upon a premise
of confidentiality when these are requested via government subpoena
in criminal proceedings. It is entirely another to eagerly fail to
recognize that the First Amendment affords the Appellants "a
measure of protection . . . in order not to undermine their ability
to gather and disseminate information." Cusumano v. Microsoft
Corp., 162 F.3d 708, 714 (1st Cir. 1998).
"It is firmly established that the First Amendment's
aegis extends further than the text's proscription on laws
'abridging the freedom of speech, or the press,' and encompasses a
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range of conduct related to the gathering and dissemination of
information." Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011).
Confidentiality or anonymity, where prudent, naturally protects
those who seek to collect or provide information. Accordingly, it
is similarly well-settled that the First Amendment's protections
will at times shield "information gatherers and disseminators,"
from others' attempts to reveal their identities, unveil their
sources, or disclose the fruits of their work. See Cusumano,
162 F.3d at 714; see also McIntyre v. Ohio Elections Comm'n,
514 U.S. 334, 342 (1995) (noting "an author's decision to remain
anonymous, like other decisions concerning omissions or additions
to the content of a publication, is an aspect of the freedom of
speech protected by the First Amendment"); Talley v. California,
362 U.S. 60, 64 (1960) (noting City's ordinance banning
distribution of handbills lacking names and addresses of authors
and distributors "would tend to restrict freedom to distribute
information and thereby freedom of expression"); United States v.
LaRouche Campaign, 841 F.2d 1176, 1182 (1st Cir. 1988) ("We discern
a lurking and subtle threat to journalists . . . if disclosure of
outtakes, notes, and other unused information, even if
nonconfidential, becomes routine and casually, if not cavalierly
compelled.").
The Appellants in these consolidated cases are academic
researchers and, as such, axiomatically come within the scope of
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these protections, as recognized by this Circuit's settled law.
See Cusumano, 162 F.3d at 714 ("The same concerns [that advise
extending First Amendment protections to journalists] suggest that
courts ought to offer similar protection to academicians engaged in
scholarly research."). It is also beyond question that the content
of the materials that the government wishes to obtain may properly
be characterized as confidential: the Appellants and the Belfast
Project's custodians have gone to great lengths to prevent their
unsanctioned disclosure. See Maj. Op. at 6-7. The question then
becomes one concerning the degree of protection to which they are
entitled. The manner in which this inquiry unfolds necessarily
depends on context, not on "semantics" -- the "unthinking
allowance" of discovery requests in these circumstances, we have
warned, will inevitably "impinge upon First Amendment rights."
Cusumano, 162 F.3d at 716 (quoting Bruno & Stillman, Inc. v. Globe
Newspaper Co., 633 F.2d 583, 595-96 (1st Cir. 1980)).
Consequently, balancing the interests on either side of such a
request is both proper and essential. See id. ("[C]ourts must
balance the potential harm to the free flow of information that
might result against the asserted need for the requested
information." (quoting Bruno & Stillman, Inc., 633 F.2d at 595-
96)).
Fortunately for this Court's panel -- but unfortunately
for the Appellants -- the Supreme Court has already done the lion's
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share of the work for us. Under the mutual legal assistance treaty
between the United States and the United Kingdom, the federal
government has assumed an obligation to assist the United Kingdom
in its prosecution of domestic criminal matters -- here, a homicide
-- to the extent permitted by U.S. law. See UK-MLAT Technical
Analysis, S. Exec. Rep. No. 104-23, at 11 (noting "MLATs oblige
each country to assist the other to the extent permitted by their
laws, and provide a framework for that assistance").28
In my view, the Appellants cannot carry the day, not
because they lack a cognizable interest under the First Amendment,
28
Appellants also claim that the Attorney General's actions
are not in compliance with the US-UK-MLAT, among other reasons,
because "the crimes under investigation by the United Kingdom were
of 'a political nature.'" Pursuant to Article 3, ¶ 1(c)(i) of the
treaty the United States may refuse assistance to the United
Kingdom's request if it relates to "an offense of a political
nature." Ignoring the underlying and pervasive political nature of
the "Troubles," as the Irish-British controversy has come to be
known in Northern Ireland, is simply ignoring one hundred years of
a well-documented history of political turmoil. These came into
focus when Ireland was partitioned, and six of its Ulster counties
were constituted into Northern Ireland as an integral part of the
United Kingdom by virtue of the Government of Ireland Act of 1920.
See generally Northern Ireland Politics (Arthur Aughley & Duncan
Morrow eds.) (1996). That the academic investigations carried out
by Appellants in this case, and the evidence sought by the United
Kingdom involve "offenses of a political nature" irrespective of
how heinous we may consider them, is borne out by the terms of the
Belfast Agreement (also known as the "Good Friday Agreement")
entered into by the Government of the United Kingdom and the Irish
Republican Army, whereby almost all prisoners were released by the
British government, including many who had been convicted of
murder. See Karl S. Bottigheirmer & Arthur H. Aughley, Northern
Ireland, Encyclopaedia Britannica (2007). Unfortunately for
Appellants, they are foreclosed from pursuing their claim by virtue
of Article 1, ¶ 3 of the treaty, which prohibits private parties
from enforcing any rights thereunder.
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but because any such interest has been weighed and measured by the
Supreme Court and found insufficient to overcome the government's
paramount concerns in the present context.
Finally, with regards to the district court's denial of
the Appellants' motion to intervene as of right under Rule 24(a),
I harbor doubts as to whether Boston College could ever "adequately
represent" the interests of academic researchers who have placed
their personal reputations on the line, exposing both their
livelihoods and well-being to substantial risk in the process.
Because, for the reasons explained above, I am constrained to agree
that the Appellants are unable to assert a legally-significant
protectable interest, as Rule 24(a) commands, see Donaldson v.
United States, 400 U.S. 517, 531 (1971), any concerns I may have in
that regard are regrettably moot. See Ungar v. Arafat, 634 F.3d
46, 51 (1st Cir. 2011) ("Each of [Rule 24(a)(2)'s] requirements
must be fulfilled; failure to satisfy any of them defeats
intervention as of right.").
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