Smith v. Cromer ( 1998 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ANDREA SMITH; GREGORY WELSH;
LARRY HORNSTEIN,
Petitioners-Appellees,
No. 97-2192
v.
JAMES CROMER,
Respondent-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CA-97-1623-WMN)
Argued: January 29, 1998
Decided: October 22, 1998
Before WILKINSON, Chief Judge, PHILLIPS, Senior Circuit Judge,
and VOORHEES, United States District Judge for the
Western District of North Carolina, sitting by designation.
_________________________________________________________________
Affirmed by published opinion. Judge Voorhees wrote the majority
opinion, in which Chief Judge Wilkinson joined. Senior Judge Phil-
lips wrote a dissenting opinion.
_________________________________________________________________
COUNSEL
ARGUED: Nancy Susanne Forster, OFFICE OF THE PUBLIC
DEFENDER, Baltimore, Maryland, for Appellant. Albert David Cop-
perthite, Assistant United States Attorney, Baltimore, Maryland, for
Appellees. ON BRIEF: Lynne A. Battaglia, United States Attorney,
Baltimore, Maryland, for Appellees.
_________________________________________________________________
OPINION
VOORHEES, District Judge:
In this case, employees of the United States Department of Justice
were subpoenaed to testify in a state criminal prosecution in direct
contravention of DOJ regulations. Appellant Cromer, the defendant in
the state case, subpoenaed appellees, Assistant United States Attor-
neys ("AUSA's") Smith and Welsh and Drug Enforcement Adminis-
tration Agent Hornstein. His purpose was to compel their testimony
at trial and to compel production by the Government of his Confiden-
tial Informant file in order to facilitate preparation of his defense to
state narcotics charges. The Government removed the case from
Maryland state court to federal district court pursuant to 28 U.S.C.
§ 1442(a)(1). The district court granted the Government's motion to
institute a protective order and to quash subpoenas. Cromer filed the
instant appeal, seeking reversal of the district court's order. We affirm
the order of the district court.
I.
Appellees Andrea Smith and Gregory Welsh are Assistant United
States Attorneys for the District of Maryland, and Appellee Larry
Hornstein is a special Agent with the Drug Enforcement Administra-
tion. Appellees (hereinafter, the "Government") are employees of the
Department of Justice and are subject to rules and regulations promul-
gated by the Department of Justice regarding the release of documents
and provision of testimony in court actions. 28 C.F.R. §§ 16.21 et seq.
Appellant Cromer (hereinafter, "Cromer") served as a DEA confiden-
tial informant ("CI") from June 1994 through November 1995, until
he was indicted on two charges of delivering heroin to a state infor-
mant in November 1995.
In preparation for his criminal trial, Cromer subpoenaed Smith,
Welsh, and Hornstein for their testimony at trial and also served sub-
2
poenas duces tecum for certain documents, i.e. , "any and all letters,
memorandums, and notes written in reference to or on behalf of ...
[Cromer] ... to any judge, probation officer, parole commission, attor-
ney or pretrial detention service division in the federal and/or state
system" (to Smith and Welsh), and the entire contents of his Cooper-
ating Individual File (to Agent Hornstein).
The state court judge, Circuit Court Judge Thomas Waxter, Jr., per-
formed an in camera review of Cromer's Cooperating Individual File,
and, finding the information contained therein to be discoverable pur-
suant to Zaal v. Maryland, 326 Md. 54 (1992), ordered the Govern-
ment to produce the file to Cromer's defense attorney. In response,
the Government removed the matter to federal district court, moved
for a protective order and moved to quash the subpoenas.
Following a hearing, District Judge William M. Nickerson ana-
lyzed the competing interests of the parties and weighed Cromer's
due process rights to the evidence he sought against the Government's
prerogative to resist having its employees subpoenaed to testify in
state court. The district court found that Cromer had raised an insuffi-
cient basis to compel the Government to disclose confidential infor-
mation and that Cromer had alternative access to the information he
sought. For those reasons, and "in light of the policies underlying sov-
ereign immunity," the district court granted the Government's motion
for protective order and motion to quash the subpoenas.
II.
The issue on appeal is whether the doctrine of sovereign immunity
divests the district court of jurisdiction to enforce the subpoenas. We
agree with the district court that it does.
The Government moved to quash the subpoenas on the basis of
Justice Department regulations promulgated under the authority of the
"Housekeeping Statute," 5 U.S.C. § 301, which provides:
The head of an Executive department ... may prescribe regu-
lations for the government of his department, the conduct of
its employees, the distribution and performance of its busi-
3
ness, and the custody, use, and preservation of its records,
papers, and property. This section does not authorize with-
holding information from the public or limiting the avail-
ability of records to the public.
Regulations applicable to the production and disclosure of informa-
tion by the Justice Department in federal and state proceedings are
found at 28 C.F.R. §§ 16.21, et seq. Section 16.22(a) provides:
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 offi-
cial status without prior approval of the proper Department
official ....
The Department of Justice regulations at issue here clearly fall within
the terms of the first sentence of the Housekeeping Statute. That regu-
lation prescribes the conduct of employees, the performance of the
agency's business, and the use of its records. In re Boeh, 25 F.3d 761(9th Cir. 1994). Any doubt as to the validity of the regulation's
requirement of prior approval is foreclosed by the Supreme Court's
decision in United States ex rel. Touhy v. Ragen , 340 U.S. 462, 468
(1951), which upheld the validity of a predecessor to 28 C.F.R.
§ 16.22(a). Id. Appellees may not be forced to comply with the sub-
poenas if a valid regulation required them 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 28 C.F.R. § 16.22(a) is valid insofar as it directs
Appellees not to testify without prior approval of the proper Depart-
ment official.
In determining whether to provide information in response to a
demand, such as the subpoenas in the instant case, the Justice Depart-
ment considers, among other things, whether disclosure would reveal
a confidential source, reveal investigative records compiled for law
4
enforcement purposes, disclose investigative techniques, or interfere
with enforcement proceedings. 28 C.F.R. § 16.26(b)(4) and (5). If so,
disclosure is forbidden under the regulations, unless the Justice
Department determines that the "administration of justice requires
disclosure." 28 C.F.R. § 16.26(c). The interests to be protected pre-
sent a strong policy basis supporting the Justice Department's deter-
mination not to reveal its own information which it considers to be
critical to the effective operation of the agency.
The instant appeal originated as a motion to quash subpoenas
issued in a state court action and removed to federal district court
under 28 U.S.C. §1442. In Boron Oil Co. v. Downie, 873 F.2d 67 (4th
Cir. 1989), a private litigant filed a civil action in state court, and
sought the testimony of Downie, an EPA employee, regarding infor-
mation Downie had obtained while investigating a gas leak. Initially,
Downie agreed to testify. However, the EPA district counsel later
determined that Downie would not be allowed to testify. This deter-
mination was based upon an EPA regulation, which provides, among
other things, that requests for employees' testimony and production
of documents will be approved "... when clearly in the interests of the
EPA." 40 C.F.R. § 2.401.
The district court conducted a hearing, and enforced the subpoenas
based upon findings that the information sought was not privileged,
that Downie was in the best position to provide the information
"which was essential to the fair administration of justice in the civil
action," and that the interference and inconvenience to the EPA would
be minimal. Boron Oil Co. v. Downie, 873 F.2d at 68. The district
court rejected the defense of sovereign immunity because neither the
United States nor the EPA were named parties. This court reversed,
holding that a state court, and federal court on removal, lacked juris-
diction to compel a federal employee to testify concerning informa-
tion acquired during the course of his official duties, in a state court
civil action to which the United States was not a party. Boron Oil Co.
v. Downie, 873 F.2d at 69-71.
It is clear that a federal court's jurisdiction upon removal under 28
U.S.C. § 1442(a)(1) is derivative of the state court jurisdiction, and
where the state court lacks jurisdiction over the subject matter or the
parties, the federal court acquires none upon removal, even though in
5
a like suit originally brought in federal court, the court would have
had jurisdiction. Boron, 873 F.2d at 70. It is also clear that an action
seeking specific relief against a federal official, acting within the
scope of his delegated authority, is an action against the United
States, subject to the governmental privilege of sovereign immunity.
Boron, 873 F.2d at 69. Where an agency has not waived its immunity
to suit, the state court (and the federal court on removal) lacks juris-
diction to proceed against a federal employee acting pursuant to
agency direction. Id.In reversing the district court in Boron, this court reasoned that
"Touhy [v. Ragen, 340 U.S. 462 (1951),] is part of an unbroken line
of authority which directly supports Downie's contention that a fed-
eral employee may not be compelled to testify contrary to his federal
employer's instructions under valid agency regulations." In Touhy,
the Supreme Court had held that subordinate federal officers could
not be held in contempt for failing to comply with a court order in
reliance on a validly promulgated regulation to the contrary. Further,
we noted in Boron that the doctrine of sovereign immunity precluded
the state court--and the federal court on removal--from exercising
jurisdiction to compel Downie to testify contrary to EPA instructions,
and also denied it the authority to review and set aside the EPA's
decision and the federal regulations under which it is made. Boron,
873 F.2d at 70. For a state court (or federal court exercising removal
jurisdiction) to assert the power of judicial review over decisions
made by federal agencies while implementing their own regulations
is contrary to the Administrative Procedures Act, 5 U.S.C. § 702,
which expressly limits such review authority to the federal courts.
Boron, 873 F.2d at 71.
Other circuits which have addressed this issue likewise deny state
court access to federal agency records based upon the doctrine of sov-
ereign immunity. See, e.g., In re Elko County Grand Jury, 109 F.3d
554 (9th Cir. 1997) (state court lacked jurisdiction to compel a forest
service employee to appear and testify before grand jury in contraven-
tion of USDA regulations); Houston Bus. Journal, Inc. v. Office of the
Comptroller of the Currency, 86 F.3d 1208 (D.C. Cir. 1996) (state
court, and federal court on removal, lacked jurisdiction to compel pro-
duction of records from comptroller general when production was in
violation of agency regulations); Edwards v. United States Dept. Of
6
Justice, 43 F.3d 312 (7th Cir. 1994) (state court had no authority to
compel discovery of FBI surveillance tapes after Justice Department
denied production pursuant to 28 C.F.R. § 16.26(b)(5)); In re Boeh,
25 F.3d 761 (9th Cir. 1994) (FBI agent cannot be held in contempt
for refusing to testify absent permission of the Justice Department,
pursuant to 28 C.F.R. § 16.22(a)); Louisiana v. Sparks, 978 F.2d 226(5th Cir. 1992) (state court subpoena issued to federal parole officer
quashed on sovereign immunity grounds). These decisions, like our
decision in Boron v. Downie, reflect the principle of federal suprem-
acy in two ways: (1) by applying the doctrine of sovereign immunity
to preclude state courts, or a federal court on removal, from reviewing
federal agency action, and (2) by giving recognition to the principle
that valid federal regulations have the force and effect of federal law,
which state courts are bound to follow. Boron , 873 F.2d at 71.
The dissenting opinion argues that sovereign immunity protects a
federal official only if he is not "acting unconstitutionally or in excess
of his legal authority." Post, at 14. Thus, concludes the dissenting
opinion, if Cromer has a constitutional right of access to the informa-
tion he seeks, then the subpoenaed Justice Department employees act
unconstitutionally by refusing to comply with the subpoenas and sov-
ereign immunity is unavailable.
The dissenting opinion is correct in identifying the principle that
sovereign immunity is unavailable when "the statute or order confer-
ring power upon the officer to take action in the sovereign's name is
claimed to be unconstitutional." Larson v. Domestic & Foreign Com-
merce Corp., 337 U.S. 682, 690 (1949). The error is in believing that
it has any application in this case. In Touhy , the Supreme Court
upheld as constitutionally valid the predecessor to the current Justice
Department regulations which plainly preclude Smith, Welsh, and
Hornstein from disclosing the requested records. 340 U.S. at 468-69.
The Supreme Court also held in Touhy that pursuant to such regula-
tions, which wisely centralize disclosure decisions in superior Justice
Department officials, subordinate employees "may lawfully decline to
produce [records] in response to a subpoena duces tecum." Id. at 467(first emphasis added). The only officials before our court are Smith,
Welsh, and Hornstein--subordinate employees of the Justice Depart-
ment. Under Touhy, their refusal to comply with Cromer's subpoenas
pursuant to their superiors' orders simply cannot be termed unconsti-
7
tutional. Accordingly, these subpoena proceedings against Smith,
Welsh, and Hornstein are precluded by sovereign immunity.
Cromer argues that the Government has waived sovereign immu-
nity by engaging in partial disclosure of the information he seeks.
Specifically, AUSA Smith wrote a letter to the Maryland Parole Com-
mission which revealed that Cromer was working as a CI for the fed-
eral government; AUSA Welsh and Agent Hornstein testified on
behalf of the state at Cromer's bail hearing. Agent Hornstein provided
the CI file to the state court judge for in camera review. However, dis-
closure of factual information does not effect a waiver of sovereign
immunity as to other related matters. See Swett v. Schenk, 792 F.2d
1447, 1452 (9th Cir. 1986) (Permitting a federal employee to testify
on certain matters which are not violative of the regulations at issue
cannot be construed as an intent to waive immunity.). Cromer's argu-
ment is without merit.
It is also incorrect to conclude that the Justice Department regula-
tions, if properly "complied" with, confer some entitlement on parties
seeking the disclosure of agency records. The regulations do not pur-
port to grant any right of access to applicants. As 28 C.F.R. § 16.21(d)
makes clear, the regulations are "intended only to provide guidance
for the internal operations of the Department of Justice, and [are] not
intended to, and [do] not, and may not be relied upon to create any
right or benefit, substantive or procedural, enforceable at law by a
party against the United States."
Section 16.22(a), which governs proceedings in which the United
States is not a party, prohibits disclosure by subordinate employees
"without prior approval of the proper Department official." Sections
16.24 and 16.25 establish the exact manner in which disclosure deci-
sions must be made, including who must be involved and what factors
must be considered. If the proper official determines that disclosure
should not be permitted, the subordinate employee to whom the
request has been made is forbidden to disclose the material. See id.§ 16.28 ("[T]he employee or former employee upon whom the
demand has been made shall, if so directed by the responsible Depart-
ment official, respectfully decline to comply with the demand. See
United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951)."). Issuing
a subpoena to a subordinate employee, as Cromer did, merely sets this
8
process in motion. We reject Cromer's argument that these regula-
tions provide him any additional substantive entitlement.1
Based upon the Touhy doctrine and principles of sovereign immu-
nity, we conclude that the state court had no authority to enforce the
subpoenas, and the district court acquired none on removal. Cromer's
remedy, if any, for the Justice Department's actions in the instant case
may be found in the Administrative Procedures Act, 5 U.S.C. § 702,
which expressly limits such review authority to the federal courts.
Boron, 873 F.2d at 71.
III.
Cromer, however, contends that Boron is distinguishable from the
instant case in that the underlying cause here is a criminal one, not
civil, and that his constitutional rights to due process and confronta-
tion of witnesses should predominate over the doctrine of sovereign
immunity. This is an issue we need not decide, however, because we
find that even if some federal official were amenable to state process,
and the Roviaro analysis undertaken by the district court below were
therefore the correct one, the order of the district court would have to
be affirmed.
_________________________________________________________________
1 The dissent states that this procedure is "more elaborate and compli-
cated" than its predecessor. Post, at 27-28. The Department's ultimate
disclosure authority, however, still resides in a small number of high-
level officials. Compare 28 C.F.R. § 16.25(c) (Deputy or Associate
Attorney General) and id. § 16.24(g) (Attorney General) with Depart-
ment of Justice Order No. 3229 (May 2, 1946) ("the Attorney General,
The Assistant to the Attorney General, or an Assistant Attorney General
acting for him") (quoted in Touhy, 340 U.S. at 463 n.1). Under the cur-
rent procedure, it remains safe to "assume ... that the Attorney General
can be reached by legal process." Touhy, 340 U.S. at 472 (Frankfurter,
J., concurring).
In fact, whatever complexity the dissent discerns in the current regula-
tion results from the Department's effort to vest limited disclosure
authority in local United States Attorneys. See 28 C.F.R. §§ 16.23-16.24.
This devolution of power should actually increase public access, at least
to less sensitive information. It would be perverse to reward this effort
by eliminating all means of central control.
9
Relying on the Supreme Court's reasoning in Pennsylvania v.
Ritchie, 489 U.S. 39, 60-61 (1987), the district court below deter-
mined that as a matter of equity Cromer's due process rights should
be balanced against the government's right to protect its employees
subpoenaed to testify in state court. (JA 94-95).
The district court relied upon Florida v. Cohen , 887 F.2d 1451(11th Cir. 1989), wherein the defendant was charged in state court
with the murder of her husband. The defendant subpoenaed informa-
tion from various federal agents and agencies regarding a confidential
informant who had information on the activities of Frank Diaz, a fugi-
tive from justice who was initially a suspect in the murder. The Gov-
ernment filed motions to quash and sought a protective order.
However, the state court ordered the Government to produce the
records for an in camera review. When the Government failed to
respond to the order, the court issued a show cause order. As in the
instant case, the Government then removed the issue to federal district
court pursuant to 28 U.S.C. § 1442(a)(1).
The Cohen court performed a balancing of interests based upon
application of the factors set forth by the Supreme Court in Roviaro
v. United States, 353 U.S. 53, 62 (1957). The issue on appeal to the
Eleventh Circuit was whether the district court had struck the correct
balance when it determined that the Government's need to protect the
identity of the informant outweighed the defendant's need for the
information requested. The Eleventh Circuit remanded the case for
reevaluation based upon new information that the fugitive, the initial
murder suspect, already knew the identity of the confidential infor-
mant, and, therefore, the Government's concerns would need to be
reevaluated. As noted by the district judge in the instant case, the
Cohen court did not address the issue of sovereign immunity.
Finding the Cohen approach to be the proper one, the district court
below applied the factors identified by the Supreme Court in Roviaro
v. United States, 353 U.S. 53, 62 (1957) (courts must consider "the
particular circumstances of each case, taking into consideration the
crime charged, the possible defense, the possible significance of the
informer's testimony, and other relevant factors" in balancing the
public interest in protecting the flow of information with the individu-
al's right to prepare a defense). The district court concluded that even
10
under this approach it must grant the Government's motion to quash
the subpoenas.
Judge Nickerson reasoned that Cromer did not provide the court
with specific facts that would likely be contained in his informant file
that would establish that he was acting as a federal cooperating indi-
vidual at the time of his alleged violation. The district court found that
Cromer's desire to raise a question as to his guilt in the minds of the
jurors, based upon unrelated allegations of his efforts as a cooperator,
was an insufficient basis to compel the government to disclose confi-
dential information in violation of applicable regulations. The district
court also noted that the prior disclosures by Smith, Welsh, and Horn-
stein provided Cromer with another means to get the information in
front of the jury. Additionally, Cromer would have the opportunity to
cross examine Agent Hornstein regarding Cromer's efforts as an
informer on behalf of the DEA when Hornstein is presented as a fact
witness at the trial. For these reasons, and in light of the policies
underlying the doctrine of sovereign immunity, the district court
granted the Government's motion to quash the subpoenas. (JA 96-98).
This Court applies a de novo standard of review to the district
court's grant of a protective order, quashing state court subpoenas to
federal officials, as this issue is decided as a matter of law. West v.
Clarke, Murphy Self Employed Pension Plan, 99 F.3d 166 (4th Cir.
1996); Boron Oil Co. v. Downie, 873 F.2d 67 (4th Cir. 1989). We find
that the district court did not err in its analysis or application of the
relevant statutory and case authority.
Cromer argues that the district court erred by not reviewing his
Cooperating Individual File, in camera, prior to ruling on the Govern-
ment's motion. However, the record reveals that both parties partici-
pated in a hearing on the motion and were given ample opportunity
to present their respective positions. (JA 51-90). Cromer's attorney
offered a proffer of evidence at the hearing before Judge Nickerson
(JA 51-54), as did the Government (JA 54-55). After considering
these proffers, the district court found that Cromer had presented no
more than "unrelated allegations of his efforts as a cooperator." (JA
96). Cromer "may not require the trial court to search through the ...
file without first establishing a basis for his claim that it contains
material evidence." Ritchie, 480 U.S. at 58 n.15. We find that the
record created at the hearing, and the proffers of both parties, along
11
with the written submissions to the district court, provided a sufficient
basis for the district court's decision.
Appellant argues to this Court that his Sixth Amendment right to
compulsory process will be violated if the subpoenas issued to three
Department of Justice officials, which seek to compel their testimony
in his state criminal proceeding, are quashed. It is clear that there are
limits upon the due process which is accorded a defendant in present-
ing his defense, and, further, that the right to compulsory process is
not absolute. Washington v. Texas, 388 U.S. 14 (1967); Pennsylvania
v. Ritchie, 480 U.S. 39, 56 (1987). The district court properly bal-
anced Cromer's constitutional claims against the Government's claim
of privilege and concluded that the rights articulated by Cromer did
not override those presented by the Government. 2
IV.
Based upon a de novo review of the record, we find that the district
court did not err in its determination to quash the subpoenas. First,
and most importantly, sovereign immunity bars state compulsory pro-
cess against these federal officers. Second, even assuming it is correct
to balance the federal privilege against Cromer's articulated interests,
Cromer has failed to raise any claim sufficient to overcome the gov-
ernment's interest in protecting its confidential law enforcement
investigations. Accordingly, the Order of the district court granting
the Government's motion for a protective order, quashing the subpoe-
nas, and dismissing the instant action is affirmed.
AFFIRMED
_________________________________________________________________
2 We do not need to examine here the precise contours of the Govern-
ment's privilege, for Cromer's "unrelated allegations," (JA 96), do not
provide him any interest to weigh against the government's undisputed
interest in maintaining the secrecy of confidential informant files. See
Roviaro, 353 U.S. at 62 ("Whether a proper balance renders nondisclo-
sure erroneous must depend on the particular circumstances of each case
..."). Cromer was required to "come forward with something more than
speculation as to the usefulness of ... disclosure." United States v. Smith,
780 F.2d 1102, 1108 (4th Cir. 1985) (en banc) (interpreting the classified
information privilege).
12
PHILLIPS, Senior Circuit Judge, dissenting:
The ultimate issue in this case, though infrequently presented, is a
difficult and important one: How, if at all, may a defendant in a state
criminal prosecution obtain from unconsenting federal officials docu-
mentary information1 in their custody that may be material and favor-
able to his state-court defense? That question takes on added
complication where, as here, the defendant's contested invocation of
state subpoena processes to obtain the information is removed, as a
separate proceeding, to federal court. At that point, the issue of the
sovereign immunity of the federal officials to the state's process,
hence of the jurisdiction of the state court to issue it and, derivatively,
of the federal removal court's jurisdiction to enforce it, is raised. And,
within that sovereign immunity/jurisdictional issue, 2 there is the fur-
ther issue of the bearing upon it of the state-defendant's assertion of
constitutional entitlement to the information, countered by an asser-
tion of governmental privilege against its disclosure.
In those circumstances, what is the procedure by which a federal
removal court should address the conflicting assertions of constitu-
tional entitlement to the information on the one hand and both sover-
eign immunity and governmental privilege on the other? And, what
are the substantive principles that control decision on those issues?
I believe that neither the district court nor the majority has fully
and correctly identified and dealt with those and related issues that are
_________________________________________________________________
1 The defendant sought both to compel the officials to testify and to
produce documentary information. Because it was agreed that the offi-
cials would be available for cross-examination at trial, the only issue of
consequence concerns production of the documentary information. I
therefore address only that.
2 Though sovereign immunity to suit, being waivable, is not actually a
limitation on the subject matter jurisdiction of courts, see Idaho v. Coeur
d'Alene Tribe of Idaho, 117 S. Ct. 2028, 2033 (1997) (so noting as to
Eleventh Amendment immunity of states), it has sufficient "jurisdic-
tional" characteristics to share many of that doctrine's consequences
including, for purposes of this case, two later noted in text: the concept
of "derivative" jurisdiction and that of a court's jurisdiction to determine
its own jurisdiction.
13
presented in this case. In consequence of that failure, I believe the dis-
trict court erred in quashing the state court subpoena for lack of state
court jurisdiction to issue it. I therefore dissent from the majority
opinion and would vacate the district court's judgment and remand
for further proceedings.
I start with the controlling principles, then turn to their proper
application in this case. In the process, my disagreement with the
majority will appear.
I.
1. The invocation by a defendant in a state criminal prosecution
of state subpoena processes against an unconsenting federal official
acting in his official capacity is effectively an action against the fed-
eral government because, though non-monetary in effect, it "inter-
fere[s] with the public administration" by seeking to compel official
action at odds with the sovereign's wishes. Boron Oil Co. v. Downie,
873 F.2d 67, 71 (4th Cir. 1989) (quoting Dugan v. Rank, 372 U.S.
609, 620 (1963)).
2. As such, this separate "action" is subject to removal to federal
court under the federal officials' removal statute, 28 U.S.C. § 1442.
See Louisiana v. Sparks, 978 F.2d 226 (5th Cir. 1992).
3. Because Congress has not waived the federal government's
sovereign immunity to suit in state court, issuance of such subpoenas
by state courts is barred by that immunity unless in withholding the
information sought the official is acting unconstitutionally or in
excess of his legal authority. See Larson v. Domestic & Foreign Com-
merce Corp., 337 U.S. 682, 689-690 (1949); cf. Ex parte Young, 209
U.S. 123 (1908) (recognizing comparable exception to States' Elev-
enth Amendment immunity to suit).
4. Notwithstanding that Congress has waived the federal govern-
ment's sovereign immunity to such process in federal courts, see 5
U.S.C. § 702 (immunity waived as to suits seeking "relief other than
money damages"), removal of such a state court subpoena proceeding
to federal court does not confer any power upon the federal court not
14
possessed by the state court. See Minnesota v. United States, 305 U.S.
382, 389 (1939) (removal court's "jurisdiction" is derivative of state
court's). In consequence, the sovereign immunity issue for a federal
removal court in such a situation is whether sovereign immunity
barred issuance of the subpoena by the state court. And that turns on
whether either the unconstitutional or ultra vires conduct exceptions
could be shown to avoid the otherwise absolute bar of unwaived
immunity in the state court. Resolution of that issue by the federal
removal court is essentially an exercise of its jurisdiction to determine
its own (here "derivative") jurisdiction. See Texas & Pacific Railway
Co. v. Gulf, Colorado & Santa Fe Railway Co., 270 U.S. 266, 274
(1926).
5. A state-defendant has a Sixth Amendment right of access
under the compulsory process clause to documentary evidence in the
custody of third persons that is shown to be material, favorable to his
defense, and not merely cumulative. See Washington v. Texas, 388
U.S. 14 (1967) (recognizing compulsory process right in state-
defendants to possibly exculpating testimony of third persons despite
state-law privilege against disclosure).
6. Even such constitutionally-based rights3 to disclosure and use
of possibly exculpating evidence are not, however, absolute and may
have to yield to countering claims of privilege made either by the
prosecuting government or by third persons. Compare Davis v.
Alaska, 415 U.S. 308 (1974) (holding that Sixth Amendment confron-
tation right prevailed over state confidential proceedings privilege);
Roviaro v. United States, 353 U.S. 53 (1957) (holding that right to a
_________________________________________________________________
3 Such rights may derive in essentially parallel form, depending upon
the circumstances, from the compulsory process and confrontation
clauses of the Sixth Amendment and the Due Process Clause of the Fifth
Amendment, comprising overall what the Supreme Court has said "might
loosely be called the area of constitutionally guaranteed access to evi-
dence." United States v. Valenzuela-Bernal , 458 U.S. 858, 867-68
(1982). Where, as in this case, materials are sought from a third person
(here the federal government) rather than the prosecuting government,
the access right at issue is that of compulsory process rather than of
essentially congruent due process. See Pennsylvania v. Ritchie, 480 U.S.
39, 56 (1987) (noting essential congruence).
15
fair criminal trial overrode government-asserted informer's privilege
and required disclosure of informer's identity and information),4 with,
e.g., United States v. Jenkins, 4 F.3d 1338, 1340-41 (6th Cir. 1993)
(holding that, under circumstances, compulsory process right did not
override government-asserted informer's privilege).
7. Whether a constitutional right of access or a countering claim
of privilege prevails in a particular case must be determined by a fact-
specific judicial balancing of the conflicting interests. See Roviaro,
353 U.S. at 62 (prescribing balancing inquiry and outlining factors to
be considered in balancing fair trial interests against prosecuting gov-
ernment's informer's privilege: "the crime charged, the possible
defenses, the possible significance of the [testimony sought], and
other relevant factors").
8. An accused seeking access to documentary materials believed
to be material and favorable to his defense is constitutionally entitled,
upon making "at least some plausible showing" of the existence,
materiality, and favorable quality of the materials, to have them sub-
mitted to the trial court for an in camera inspection to determine if
they are of that nature. Ritchie, 480 U.S. at 60 (recognizing such a
threshold right under the Due Process Clause with respect to materials
in custody of prosecuting government agency); Love v. Johnson, 57
F.3d 1305, 1312-13 (4th Cir. 1995) (same). No more than a "plausible
showing" is required to trigger the right to in camera judicial inspec-
tion because of the practical impossibility in the usual case that an
accused can show more. See Ritchie, 480 U.S. at 58 n.15. If the trial
court determines that the materials are sufficiently material and favor-
able to meet the constitutional requirement, the accused then becomes
constitutionally entitled to their production for his inspection and use.
Id. at 58 (requiring new trial if post-conviction in camera review
reveals constitutional right to use of withheld materials).
9. Critical to realization of this procedural right to in camera
inspection and determination is that it be independently conducted by
_________________________________________________________________
4 Though Roviaro did not identify the source of the disclosure right it
upheld over the claim of privilege, the Court later located it in the Fifth
Amendment's Due Process Clause. See United States v. Raddatz, 447
U.S. 667, 679 (1980).
16
the court. Because "the purpose of in camera review inspection is to
supplement the government's assessment of materiality with the
impartial view provided by the trial judge," United States v. Leung,
40 F.3d 577, 583 (2d Cir. 1994), the right is not adequately protected
by the court's simply accepting the government's proffer of non-
materiality without conducting its own inspection. Id.; cf. United
States v. Nixon, 418 U.S. 683, 673 (1973) (noting in reverse situation
that in conducting in camera inspection of materials subpoenaed by
Special Prosecutor, "the District Court is not limited to representa-
tions of the Special Prosecutor as to the evidence sought").
10. If in camera review reveals entitlement to a compelled disclo-
sure to the defendant of all or portions of inspected materials, the
court may then, however, consider in a Roviaro balancing inquiry
claims of privilege barring public disclosure and use of the materials
as evidence at trial. See Ritchie, 480 U.S. at 57 & n.14 (recognizing
propriety of such a two-stage procedure where privilege claimed is a
qualified one; reserving question whether any claim of disclosure
right could prevail over unqualified non-disclosure privilege). In con-
ducting this balancing inquiry, the court may continue to protect the
confidentiality of the materials from public disclosure pending deci-
sion by the court by appropriate protective orders and by excising and
sealing the materials as deemed necessary. See Nixon, 418 U.S. at
714-16 & n.21 (describing proper procedure for protecting confidenti-
ality during adversarial proceeding to determine third-person privi-
lege claim asserted against document subpoena by Special
Prosecutor).
11. To sum up. Where an accused in state court makes a claim
of constitutional right to disclosure of documentary information in
custody of federal officials (hence to the unconstitutionality of its
withholding) and the officials counter with claims of sovereign immu-
nity and privilege, the conflicting claims are conceptually intertwined.
The sovereign immunity claim prevails, "jurisdictionally" barring
access, unless the withholding is unconstitutional, which depends in
turn upon whether the asserted constitutional right of access overrides
the privilege. Resolution of the ultimate issue whether access by legal
process is "jurisdictionally" barred by sovereign immunity or is
enforceable as a matter of constitutional right will therefore emerge
from the sequential determinations that are the objects of the first-
17
stage in camera materiality inspection and any follow-up Roviaro bal-
ancing inquiry. These then define the constitutionally mandated pro-
cedures for resolving the issues presented in this case.
II.
I now turn to the way in which these principles were overlooked
or misapplied by the district court and to the remedy required to set
the case on proper course.
Interestingly, the state court plainly started out on the right track
in applying the constitutionally-mandated procedures. At a hearing on
Cromer's "Motion for Subpoena for Tangible Evidence" that specifi-
cally identified as its target Cromer's federal"Cooperating Individual
File," the state trial judge ordered the Government to submit the file
for his in camera inspection. Without any formal reservation or objec-
tion, the Government submitted the file. Having reviewed it in
camera, the state judge, "finding information that is discoverable"
under state law, ordered that the file be made available to Cromer's
counsel for his eyes-alone review in the judge's chambers pending
further orders of the court. JA 10.
Whether the state court would have followed through in applying
the constitutionally prescribed procedures had the Government raised
sovereign immunity and non-disclosure privilege objections is
unknowable. For at this point, having tested state waters without any
formal objection and found them wanting, the Government, as was its
right, removed the proceeding to federal court under 28 U.S.C.
§ 1442. There, the Government moved immediately for quashal of the
state subpoena and a complementary protective order, contending that
enforcement of the subpoena was barred both by the government's
sovereign immunity to suit in state court and by the Justice Depart-
ment's exercise of its substantive right under Department regulations
codified at 28 C.F.R. §§ 16.21 to .29 to deny the access sought by the
subpoena. See JA 55 (transcript of hearing).
Countering, Cromer asserted constitutional entitlement to the mate-
rials under due process and compulsory process guarantees. He con-
tended that sovereign immunity was not available to bar the state
subpoenas issuance and enforcement because compelling disclosure
18
would not have the requisite effect of interfering with public adminis-
tration. Further, he argued that the Justice Department regulations
were invalid as a substantive basis for the Department's denial of
access and that aside from them the Government had asserted no priv-
ilege against disclosure. On this basis, he sought enforcement of the
state court subpoena.
The district court's understanding and resolution of these conflict-
ing contentions is not too clear to me. The court rightly perceived that
in view of Cromer's constitutional claims it should reject the Govern-
ment's base-line contention that sovereign immunity absolutely
barred issuance of the state court subpoena. See JA 95-96. Rather, the
court thought that because Cromer's "constitutional rights are at
stake," "as a matter of equity his due process rights should be bal-
anced against the Government's immunity [sic] from having its
employees subpoenaed to testify in state court." JA 95. On that view
of the matter, the court then undertook what it characterized as a
Roviaro balancing analysis. But that balancing, so far as expressed by
the court, was a cursory, essentially one-sided one. It was conducted
entirely on the basis of the motion papers before the court and the oral
arguments of counsel. Critically, it did not involve in camera inspec-
tion of the materials specifically identified in Cromer's motion seek-
ing disclosure. On one side of the matter, the court noted that Cromer
"did not provide the court with specific facts that would likely be con-
tained in his informant file that he was acting as a federal cooperating
individual at the time of his alleged violation." Then, surmising that
Cromer's purpose was "simply to raise a question as to his guilt . . .
based on unrelated allegations of his efforts as a cooperator," the
court noted that on the other side of the matter,"the Government prof-
fered that the file would show that [Cromer] was in violation of his
plea agreement at the time of the state arrest." Without indicating
how, even if that were the case, it would necessarily demonstrate that
information in the file could not be material and favorable to Cro-
mer's state-court defense, the court summarily concluded that Cro-
mer's showing was "an insufficient basis to compel the Government
to disclose confidential information."5 JA 96-97.
_________________________________________________________________
5 It is unclear what the court considered the regulations' exact legal sig-
nificance to be. By purporting to balance the interests identified in the
19
This procedure failed to accord Cromer the constitutional protec-
tions to which he was entitled under the principles summarized in
Part I of this opinion. Cromer had specifically identified for the court
a discrete file containing materials that by definition concerned his
status as a "cooperating individual" with the federal government in
matters related to drug enforcement. His suggestion that it might
therefore contain evidence material to his defense in the state drug
prosecution was all that was required to make the minimal "plausible
showing" that triggered his right to have that file subjected to inde-
pendent in camera inspection by the court. See Ritchie, 480 U.S. at
59, 60. Instead of according Cromer that essential threshold right, the
court first required a more specific showing of contents and their pre-
cise materiality than Cromer could as a practical matter know and,
accordingly, than the relevant principle requires. 6 Then, compounding
the matter, the court simply accepted the Government's countering
proffer that the file did not contain information material to any
defense available to Cromer but would instead reveal positively incul-
pating information.
_________________________________________________________________
regulations against Cromer's constitutional claim, the court implicitly
rejected the Government's contention that the regulations conferred on
Department officials an absolute, judicially unreviewable right to deny
access. Apparently--despite its cryptic use of"immunity" in describing
the governmental interests--the court considered the regulations to con-
fer mere qualified privilege subject to Roviaro balancing. As will appear,
the court was surely right in rejecting any claim of absolute privilege, but
wrong in believing that the regulations conferred even qualified privi-
lege.
6 Furthermore, as Cromer points out, the court apparently misperceived
the factual defense proffered by Cromer that might be supported by
material information in the file. The record indicates that the proffer was
not--as the court posited--that the file might show that Cromer was act-
ing under direct orders in engaging in the charged drug transactions, but
that they were undertaken as part of a DEA-approved process of gaining
access to higher-ups in the drug enterprise being investigated. JA 52, 53.
However that may be, the very fact of confusion on this score reveals the
need for an actual in camera inspection to determine whether sufficiently
identified materials contain information material and favorable to an
available defense. That such an inspection might be critical is empha-
sized by the fact that when conducted by the state court, it resulted in a
determination that disclosure was required.
20
This was error that deprived Cromer of his constitutional threshold
entitlement to have the material in the file independently inspected "to
supplement the Government's assessment of materiality with the
impartial view provided by the trial judge." Leung, 40 F.3d at 583(citation omitted). The district court's order quashing the state sub-
poena and granting the Government's complementary protective
order should therefore be vacated and the matter remanded for proper
proceedings. In those proceedings, the district court should first con-
duct an independent inspection of the file materials to determine
whether any portions might be material and favorable to any defense
that might be available to Cromer in the state court prosecution. This
would obviously require consideration of the elements of the state
offense as charged and such factual and legal defenses to it as are
available under state law and are plausibly suggested as intended
defenses by Cromer. See Roviaro 353 U.S. at 62. If on the basis of
that inspection any materials were ordered disclosed to Cromer or his
counsel, an appropriate order for further proceedings to consider any
claims of evidentiary privilege against their use should be entered. If
no information was found sufficiently material and favorable to
require disclosure without regard to any claims of privilege, the pro-
tective order and that quashing the subpoena should be reinstated. In
either event, the materials inspected should be sealed for possible
appellate review. See Love, 57 F.3d at 1313.
III.
Because I would vacate and remand for further proceedings, it is
necessary to address two critical points in the majority opinion that
are at odds with the remedy I would order. Both rely upon the sup-
posed authority of United States ex rel. Touhy v. Ragen, 340 U.S. 462(1951), as recognizing and defining the substantive and procedural
effects of the Department of Justice regulations upon which the Gov-
ernment makes its claims of immunity and privilege.
A.
The first point, implicit in the majority's approval of the district
court's Roviaro balancing, which accepted that the regulations estab-
lished an executive non-disclosure privilege, is that the regulations
could have that substantive effect. I disagree, believing that the regu-
21
lations could not, under their authorizing statute, have any such sub-
stantive effect, and that Touhy does not hold to the contrary.
Consequently, I would hold that the Justice Department regulations
themselves confer no substantive power on the Department to deny
access to properly demanded materials in its files, certainly not as a
matter of absolute, judicially unreviewable discretion, nor even as a
matter of qualified executive privilege.
The regulations at issue were promulgated pursuant to 5 U.S.C.
§ 301, which provides:
The head of an Executive department or military depart-
ment 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 sec-
tion does not authorize withholding information from the
public or limiting the availability of records to the public.
The critical regulation sections relied upon by the Government are
§ 16.22(a)7 and § 16.26(b).8
_________________________________________________________________
7 (a) In any federal or state case or matter in which the United States
is not a party, no employee or former employee of the Department
of Justice shall, in response to a demand, produce any material con-
tained 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 approval of the
proper Department official in accordance with §§ 16.24 and 16.25 of
this part.
8 (b) Among the demands in response to which disclosure will not
be made by any Department official are those demands with respect
to which any of the following factors exist:
(1) Disclosure would violate a statute, such as the
income tax laws, 26 U.S.C. 6103 and 7213, or a rule of pro-
cedure, such as the grand jury secrecy rule, F.R.Cr.P., Rule
6(e),
22
The Government contends, and the majority holds, that in combi-
nation the first sentence of § 301, as implemented by §§ 16.22(a) and
16.26(b) of the regulations, confers a right in Justice Department offi-
cials to deny on the basis of any of the § 16.26(b) factors access by
an accused such as Cromer to documentary material in its custody.
As earlier indicated, the Government's basic position seems to
have been throughout that the right thus conferred by regulation is an
absolute one whose exercise is committed to the unreviewable discre-
tion of the appropriately designated Department official. In conse-
quence, the Government contends, exercise of the right of denial in
this case had the effect of confirming (by refusing to waive?) the sov-
ereign immunity of the Department officials to the state-court sub-
poena. On that view, no Roviaro balancing of Cromer's constitutional
claim against Government interests was warranted; the judicial door
was closed by the Department's act of denying the demand.9 The
majority seems--though it is not altogether clear--not to have
accepted that extreme position. In opining that there was no error in
the Roviaro balancing done by the district court, the majority seems
to accept that the regulations conferred at most a qualified executive
_________________________________________________________________
(2) Disclosure would violate a specific regulation[,]
(3) Disclosure would reveal classified information,
unless appropriately declassified by the originating agency,
(4) Disclosure would reveal a confidential source or
informant, unless the investigative agency and the source or
informant have no objection,
(5) Disclosure would reveal investigatory records com-
piled for law enforcement purposes, and would interfere with
enforcement proceedings or disclose investigative techniques
and procedures the effectiveness of which would thereby be
impaired,
(6) Disclosure would improperly reveal trade secrets
without the owner's consent.
9 The Government, confronting the district court's rejection of its most
extreme position, contends that if balancing was in order, it was properly
conducted and led to the correct result. Or so the contention seems to go.
See Appellees' Br. at 10, 11.
23
privilege that was subject, as any privilege, to such a balancing
inquiry.
Whatever the Government's position and the majority's--whether
of absolute right or mere qualified executive privilege deriving from
these regulations--I think they are wrong.
The reason is a simple one. Section 301 was intended only to allow
agencies to regulate their internal procedures for receiving and pro-
cessing demands such as Cromer's for access to information in their
files. It was not intended to confer on an agency or any of its officials
the substantive authority either to withhold information as a matter of
absolute discretion or to promulgate and assert any form of executive
privilege against disclosure. While the regulations at issue may there-
fore validly prescribe enforceable procedures for presenting and inter-
nally processing such demands, they may not go further and lay down
substantive grounds for their denial, either as a matter of unreview-
able discretion or as a matter of qualified privilege. To the extent they
purport to do the latter, they are invalid. This is borne out by the text
and legislative history of § 301, by judicial interpretations, and by the
opinion of leading commentators.
The last sentence of § 301 speaks directly to the point: "This sec-
tion does not authorize withholding information from the public or
limiting the availability of records to the public." It was added by a
1958 amendment to § 301's precursor, 28 U.S.C.§ 22 (1952), for the
avowed purpose of counteracting perceived abuses by the executive
branch which, it was believed, had "twisted [the statute] from its orig-
inal purpose as a ``housekeeping' statute into a claim of authority to
keep information from the public," and by interpreting the statute as
a broad grant of substantive authority to withhold information, had
"let every file clerk become a censor." H.R. Rep. No. 1461, 85th
Cong., 2d Sess. 1 (1958).
Courts carefully attending this "Housekeeping" Statute's legislative
history have so construed it, some in the process holding invalid
agency regulations claimed to confer substantive non-disclosure
rights or privileges. See Chrysler Corp. v. Brown, 441 U.S. 281, 310
(1979) (noting, on basis of such a review, that§ 301 is not "a substan-
tive grant of legislative power to promulgate rules"); United States ex
24
rel. O'Keefe v. McDonnell Douglas Corp., 132 F.3d 1252, 1255-56
(8th Cir. 1998) (holding invalid, as not authorized by § 301, a sub-
stantive Justice Department regulation authorizing non-disclosure of
information obtained in defense-contractor investigation); United
States v. Henson, 123 F.3d 1226, 1237 (9th Cir. 1997) (holding that
while § 301 "does not allow an agency to refuse to disclose informa-
tion, it does allow an agency to choose who may disclose the informa-
tion and the procedure to be followed for such a disclosure")
(citations omitted); Houston Business Journal, Inc. v. Office of
Comptroller, 86 F.3d 1208, 1212 (D.C. Cir. 1996) (holding that § 301
does not "authorize[ ] a federal agency to withhold documents from
a federal court" and opining that regulations having that effect would
be invalid) (citations omitted); In re Bankers Trust Co., 61 F.3d 465,
470 (6th Cir. 1995) (holding Federal Reserve Board regulation bar-
ring release of confidential information not authorized by § 301).
Disregarding the force of these recent decisions, the majority relies
on Touhy as having authoritatively established that the current
Department regulations do have the substantive effect of an executive
privilege against document disclosure. But the Touhy Court, consider-
ing in 1951 the effect of a precursor Department order which simply
gave to the Attorney General the sole authority to release requested
information in Justice Department files, expressly declined to address
this very issue. Touhy held only that the order, as promulgated under
§ 301, was valid in relieving an FBI agent from liability for failing to
obey a subpoena duces tecum in the absence of authorization by the
Attorney General. The Court was at pains to point out that it
addressed only the Department's power under § 301 so to centralize
the release authority, that it was not addressing the substantive powers
of the Department to determine the conditions for release. Touhy, 340
U.S. at 467-9.
The decided weight of judicial authority and scholarly commentary
supports this understanding of Touhy.
As the Eighth Circuit recently pointed out, aside from the fact that
Touhy only avowedly upheld the then-governing order in its effect
upon "internal administrative procedures," it was decided before the
1958 amendment to § 301 had made it clear that agencies cannot pro-
mulgate substantive non-disclosure regulations. See O'Keefe, 132
25
F.3d at 1255, 1256; see also NLRB v. Capitol Fish Co., 294 F.2d 868,
875 (5th Cir. 1961) (observing that since 1958 it has been established
that § 301 "cannot be construed to establish authority in the executive
departments to determine whether certain papers and records are priv-
ileged"); 26 Charles Alan Wright & Kenneth W. Graham, Jr., Federal
Practice & Procedure: Evidence, § 5682 (1992) (concluding, based
upon extensive review of § 301's legislative history, cases (including
Touhy) and scholarly comment, that better view is that 1958 amend-
ment, coupled with the recently enacted Federal Rules of Evidence,
establish that § 301 confers no power to create substantive privileges
by agency regulation).10
This does not mean of course that the Government might not in this
case invoke executive privileges deriving from other legitimate
sources such as the common law informant's privilege recognized and
balanced in Roviaro. See Nixon, 418 U.S. at 709-10 (noting existence
and sources of various privileges, including executive). Whether any
such privilege might be available in respect of the materials at issue
is of course not now before this court, and indeed could only be
known at this point by the Government which has so far declined to
submit the materials for judicial inspection. In ordering remand, I
would therefore instruct that in any Roviaro balancing that might be
found required, Government claim of privilege could only be based
on sources other than these department regulations.
B.
Finally, in an apparent fall-back position, the majority suggests
that, per Touhy, the subpoena could properly have been quashed
because served upon officials not authorized by the regulations to
release the information. Aside from the fact that the Government has
not raised this issue,11 it is without merit.
_________________________________________________________________
10 The majority relies upon Boron Oil Co. v. Downie, 873 F.2d 67 (4th
Cir. 1989), as precedent in this circuit for the contrary position that, per
Touhy, the regulations do create a substantive executive non-disclosure
privilege. But Boron, a civil case, simply assumed this on the assumed
authority of Touhy, and did not directly address the issue.
11 The Government's sole position throughout has been that the agents'
refusal to produce the file information was proper on substantive grounds
of sovereign immunity and an executive privilege properly exercised
under the Department regulations.
26
Touhy still stands for the proposition that 5 U.S.C. § 301 confers
on the Department of Justice the authority by regulation to lay down
procedural rules for the making and internal processing of demands
upon it to produce documentary information in its files, including the
centralizing of authority finally to act on particular demands. Hence,
it continues to stand as precedent for its narrow holding that a Depart-
ment agent who had not been authorized to release information by the
official having power to order the release could properly decline to
obey a subpoena duces tecum issued to him. But, as indicated, Touhy
did not purport to decide the issue of the substantive power of the
official with authority under the then regulation to withhold the infor-
mation, because he was "not before the trial court." Touhy, 340 U.S.
at 467. Justice Frankfurter, specially concurring, noted the narrowness
of the holding and pointed out its implication that the official with
authority must be subject to process in order to allow an effective sub-
stantive challenge to decisions to withhold "documents within his
possession that are relevant to a judicial proceeding." Id. at 472-73(Frankfurter, J., concurring).
At the time Touhy was decided, the Department had promulgated
a simple Department of Justice Order which forbade any officer or
employee to produce requested information "except in the discretion
of the Attorney General, the Assistant to the Attorney General, or an
Assistant Attorney General Acting for him." See Touhy, 340 U.S. at463 n.1. Extrapolating from Touhy, and surely with Justice Frankfurt-
er's concurrence in mind, courts since have assumed that to the extent
Department regulations identify an official, or officials, with final
authority, that official is the only proper, but a necessarily available,
target for a subpoena duces tecum. At the time of Touhy, that official
was identifiable as a matter of record as either the Attorney General,
or his Assistant, or a properly delegated Assistant Attorney General.
And, Touhy warned, persons seeking information must subpoena the
proper official at peril of issuing one ineffectual as substantive chal-
lenge. In Touhy's immediate aftermath therefore, a person desiring to
raise such a substantive challenge was able to identify the clearly
identified ultimate decision-maker and thereby to lay the basis for the
judicial challenge that Justice Frankfurter had pointed out must be
possible.
But the simple order at issue in Touhy no longer exists. In its place,
the present regulations promulgated in 1980 lay down a much more
27
elaborate and complicated procedure--both for making and for inter-
nally processing demands upon the Department for documentary (or
other) information. Most critically, they diffuse the final authority to
release demanded information among a set of senior officials that
does not, in fact, include the Attorney General, and on internal pro-
cessing contingencies that make identification of the ultimate
decision-maker impossible at the time a subpoena is issued.
Specifically, as they now stand, the regulations at issue provide that
(1) a person such a Cromer may properly make his"demand" for doc-
umentary information by a subpoena duces tecum, see § 16.21(a)(2);
(2) served upon an "employee" of the Department who need not be
the official with final authority to determine the Department's
response, see § 16.22(a); (3) but who is then required to "immediately
notify the U.S. Attorney for the district where the issuing authority is
located," see § 16.22(b); (4) who, in turn, is required to "follow proce-
dures set forth in § 16.24," see§ 16.22(b); (5) which, in summary,
may result in a final decision on the Department's response being
made by the U.S. Attorney alone, or in combination with the appro-
priate division head, or in case of disagreement between those two,
by an Assistant Attorney General, see § 16.24; (6) with the possibil-
ity, depending upon internal developments, that decision may finally
be kicked up to the Deputy Attorney General or an Associate Attor-
ney General, see § 16.25.
By these much more elaborate and detailed procedures, the current
regulations effectively require no more of a demander such as Cromer
than that he subpoena the presumed custodian of documents, leaving
it then to internal procedures beyond his control to route the demand
to the ultimate authorizer. Because under these regulations the iden-
tity of that ultimate authority is beyond the demander's control and
knowledge, he could not be required to subpoena that person or
indeed to reach him by any other procedural device. It therefore is no
longer possible to extrapolate from Touhy (as some courts continue
erroneously to do without taking the new regulations' regime into
account) that the only proper (and an always available) target of a
subpoena duces tecum is the Attorney General or his delegate of
record.
Here Cromer did exactly what the current regulations required to
force a response by the Department to his "demand." The only thing
28
he was required to do beyond issuing a subpoena to the assumed cus-
todian or controller of the files he sought was to submit, upon request
of the U.S. Attorney, "a summary of the information sought and its
relevance to the proceeding." See § 16.22(d). This he did in his letter
to the U.S. Attorney. (No "affidavit" was required as to the docu-
ments, in contrast to testimonial evidence, see § 16.22(c)).
Concurring in Touhy, Justice Frankfurter admonished that the
Department's power by regulation to centralize its internal processes
could not be taken to the point of making it impossible for one seek-
ing information to reach some identifiable target. Id. at 473 (observ-
ing that this "would be to apply a fox-hunting theory of justice that
ought to make Bentham's skeleton rattle").12 I believe the only way
to interpret the present regulations to avoid that unacceptable conse-
quence is to treat them as having constituted any Department "em-
ployee" who is served with a subpoena as effectively the authorized
process agent for the official to whom the demand is ultimately routed
according to the prescribed Department procedures. That is exactly
the design of the regulations which rely upon that employee to set in
motion a process whose unfolding is completely beyond the knowl-
edge of the person making his demand by subpoena. I would so hold
in rejecting any claim that Cromer somehow defaulted procedurally
in targeting improper Department officials.
_________________________________________________________________
12 As an aside, perhaps to accommodate Justice Frankfurter's admoni-
tion that an effective substantive challenge to access denials must always
be possible, the majority suggests that Cromer might make such a chal-
lenge by an administrative proceeding under 5 U.S.C. § 702 to declare
invalid the final agency decision to deny access. No such theory was
urged by the Government nor considered by the district court, and it
should not be considered properly before this court. If it were, I would
disagree both with the premise that such a proceeding is needed because
a subpoena cannot serve and with the premise that it could properly serve
the purpose. Whatever the merits of a view that such a proceeding might
adequately serve in a civil action, I am satisfied that it could not constitu-
tionally serve in a criminal case. On that, I agree with Judge Norris's
demonstration of its practical infeasibility as a means for a criminal
defendant to obtain exculpatory information in advance of or during a
criminal proceeding. See In re Boeh, 25 F.3d at 770 n.4 (Norris, J., dis-
senting).
29