In Re Recalcitrant Witness Richard Boeh, Julia Gomez v. Daryl Gates, and United States of America , 25 F.3d 761 ( 1994 )

NORRIS, District Judge

dissenting:

This case presents the question whether an employee of a federal agency may lawfully refuse to obey a subpoena ad testificandum in reliance upon an agency regulation promulgated pursuant to the federal housekeeping statute, 5 U.S.C. § 301.

I

The plaintiffs in this civil rights action allege that officers of the Los Angeles Police Department used excessive force in fatally shooting three suspects and wounding a fourth following a robbery of a fast food restaurant. On the first day of trial, plaintiffs subpoenaed FBI agent Richard Boeh as a witness. The government moved to quash the subpoena primarily on the ground that Agent Boeh had not been authorized to testify as required by the Department of Justice’s housekeeping regulation. Before ruling on the motion to quash, the district court ordered Boeh to appear in camera and answer questions that would enable the court to decide whether Agent Boeh should be required to testify, and if so, to what extent. When Boeh refused to answer any questions, the court denied the motion to quash and ordered Boeh to testify in open court. When Boeh again refused, the district court held him in contempt both for refusing to answer the court’s questions in camera and for refusing to testify in open court. In denying the government’s motion to quash, the district court said, “[t]he Justice Department has made a decision to put its own interests above the interest of justice in this case.” January 23, 1992 Transcript at 14.

On appeal, the government seeks to reverse the contempt orders on the ground that the district court had no jurisdiction to hold Boeh in contempt because the Department of Justice’s housekeeping regulation prohibited him from disclosing any information acquired in performing his official duties.¹ As the government puts it, “[t]he only question before this Court is whether the district court had jurisdiction to hold Agent Boeh in contempt.” Appellant’s Opening Brief at 8.

The government argues that the district court had no power to hold Agent Boeh in contempt as a recalcitrant witness because he was not authorized to testify under 28 C.F.R. § 16.22(a),² a regulation promulgated pursuant to the so-called “housekeeping statute,” 5 U.S.C. § 301.³ I believe § 301 provides no authority for agency heads to create a form of executive privilege to withhold evidence from the courts. The housekeeping statute was intended to give agency heads the authority to prescribe regulations for the administration of the agency, and nothing more. To interpret it as authorizing agencies to withhold evidence from federal courts not only goes far beyond the text and purpose of the statute, it raises a serious separation of powers question. As the Supreme Court has said, “judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers.” United States v. Reynolds, 345 U.S. 1, 9-10, 73 S.Ct. 528, 533, 97 L.Ed. 727 (1953). That is exactly the effect of the stand taken by the Attorney General in this case. If allowed to stand, today’s decision “would upset the constitutional balance of ‘a workable government’ and gravely impair the role of the courts under Art. III.” United States v. Nixon, 418 U.S. 683, 707, 94 S.Ct. 3090, 3107, 41 L.Ed.2d 1039 (1974).

II

A

The government relies principally on United States ex rel. Touhy v. Ragen, 340 U.S. 462, 71 S.Ct. 416, 95 L.Ed. 417 (1951), in support of its contention that § 301 authorized the Attorney General’s actions. Touhy, however, does not control this -case. The question addressed in Touhy was whether a Justice Department official could refuse to obey a subpoena duces tecum ordering the production of agency papers in his possession. In refusing to obey, the subordinate official relied upon on a Justice Department regulation that barred employees from producing records unless they had express authority to do so. In resolving the issue, the Court distinguished between a far-reaching question, (1) “whether it is permissible for the Attorney General to make a conclusive determination not to produce records,” and a narrow one, (2) “whether his subordinates in accordance with the order may lawfully de-dine to produce them in response to a subpoena duces tecum.” Id. at 467, 71 S.Ct. at 419.

The Court considered only the narrow question, holding that an agency head could withhold from subordinates the authority'to produce documents in response to a subpoena duces tecum. The Court declined to reach the far-reaching question: •

We find it unnecessary, however, to consider the ultimate reach of the authority of the Attorney General to refuse to produce at a court’s order the government papers in his possession, for the case as we understand it raises no question as to the power of the Attorney General to himself make such a refusal. The Attorney General was not before the trial court.

Id.

Thus Touhy did not hold that the Attorney General can arrogate to himself the authority to override the subpoena power of Article III courts by withholding evidence within his administrative control. Touhy instead held that the Attorney General may, “as a matter of internal administration,” Touhy, 340 U.S. at 471, 71 S.Ct. at 421 (Frankfurter, J., concurring), promulgate regulations under the housekeeping statute designating which agency personnel are authorized to produce agency records. If an agency head withholds from subordinates authority to produce documents that have been subpoenaed, as- the Attorney General did in Touhy, the agency head himself may still be subpoenaed. Because Touhy left undecided the question whether the Attorney General himself could lawfully refuse to obey a court order to produce the documents, Touhy, 340 U.S. at 467, 71 S.Ct. at 418-19, see also id. at 472, 71 S.Ct. at 421 (Frankfurter, J., concurring), it left intact the judicial power to subpoena evidence, whether documentary or testimonial, that the courts determine is needed to decide cases. Just as Touhy did not decide whether “it is permissible for the Attorney General to make a conclusive determination not to produce records,” id. at 467, 71 S.Ct. at 418-19, it did not decide whether the Attorney General could make a conclusive determination not to allow the testimony of a subordinate.

In this case, the Attorney General made just such a conclusive determination, thereby presenting us with the far-reaching question not decided in Touhy. To understand why this case presents the question left unanswered in Touhy requires a review of the difference between a subpoena duces tecum and a subpoena ad testificandum — the difference, if you will, between documentary evidence and live testimony. The ability to produce documents in response to a subpoena duces tecum is impersonal. It is, as Justice Frankfurter said, a matter of “internal administration” as to who is authorized by an agency head to produce documents. Which agency employees may produce documents is a matter suitable for treatment in agency regulations promulgated pursuant to the “housekeeping” statute. Because the head of an agency cannot divest herself of the authority to control internal documents, she always has the ability to herself comply with a subpoena duces tecum served upon her. Her personal knowledge of the contents of the documents is irrelevant; all that matters is that they are within her control.

In contrast, the ability to produce testimony is personal. Because the testimony must be based upon the witness’ personal knowledge, it can only be produced by the -witness himself. Only Agent Boeh can comply with the subpoena ad testificandum at issue here. Moreover, nobody other than Agent Boeh himself may be subpoenaed to produce Agent Boeh’s testimony. Not even the Attorney General herself can be subpoenaed for that purpose. The Federal Rules of Civil and Criminal Procedure recognize this reality, and make clear that a subpoena may issue only for the testimony of the “person to whom it is directed.” Fed.R.Civ.P. 45(a)(1)(C); Fed.R.Crim.P. 17(a). This is not a subpoena duces tecum case. The Attorney General cannot produce Agent Boeh’s testimony as though it were a document.- When the subpoena is ad testificandum, there can be no pinch hitters. The Attorney General has the authority to control the production of agency documents, but the Attorney General has no power to compel a subordinate to obey a subpoena ad testificandum. The most the Attorney General can do is discipline him for insubordination if he refuses to testify. But the Attorney General cannot use the ultimate weapon of contempt to enforce the subpoena; he cannot put Agent Boeh in jail for refusing to testify. Because an agency head cannot produce a subordinate’s testimony the way he can produce agency documents, the far-reaching question left open in Touhy is squarely presented by the Attorney General’s refusal to authorize Agent Boeh to testify: may the head of a federal agency make “a conclusive determination” not to produce evidence sought by a federal court?⁴

B

Just as Touhy does not control this ease, nor do the other cases cited by the government. Most, like Touhy, involve subpoenas duces tecum.⁵ The rest are inapposite for they involve the power of state courts to subpoena federal officials. Our decision in Swett v. Schenk, 792 F.2d 1447 (9th Cir.1986), falls in this category.⁶ Swett involved a California Superior Court’s subpoena of a National Transportation Safety Board investigator. The state court’s subsequent contempt action was removed to district court and dismissed. We held that “the state court lacked jurisdiction to use contempt procedures against [the investigator].” 792 F.2d at 1451 (emphasis added). If the state court lacked the power to subpoena federal officials and to cite them for contempt, then so did the district court, because “removal jurisdiction is derivative [and] the district court acquired no jurisdiction on removal.” Id. The limitations on a state court’s subpoena and contempt powers stem from the sovereign immunity of the United States and from the Supremacy Clause. Boron Oil Co. v. Downie, 873 F.2d 67, 71 (4th Cir.1989). Such limitations do not apply when a federal court exercises its subpoena powers against federal officials. Because the instant ease involves a federal court subpoena, Swett is inapposite.

In sum, because neither Touhy nor Swett nor any other case is controlling authority, we are not barred by stare decisis from deciding the question presented here.

Ill

I now turn to the heart of the matter: does the housekeeping statute in fact authorize agency heads to adopt an executive privilege immunizing subordinates from the subpoena power of Article III courts? Consider first the text of the statute. Hughey v. United States, 495 U.S. 411, 415, 110 S.Ct. 1979, 1982, 109 L.Ed.2d 408 (1990) (“As in all cases involving statutory interpretation, we look first to the language of the statute itself.”). Says Congress,

The head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property. This section does not authorize withholding information from the public or limiting the availability of records to the public.

5 U.S.C. § 301 (emphasis added). True to its purpose as a housekeeping statute, the text does nothing more than give agency heads the authority they need to govern their agencies: to regulate employees, manage agency business, and control agency papers and property. Painted in broad strokes, the statute contemplates great executive discretion. But that discretion is not unbounded, for it is explicitly restricted in a critical respect: “This section does not authorize, withholding information from the public or limiting the availability of records to the public.” Withholding information from the public is, of course, precisely what the Attorney General is trying to do in this case. Here, by refusing to authorize Agent Boeh to respond to the court’s subpoena, the Attorney General has tried to deny plaintiff Gomez, a member of the public, access to the information that only Agent Boeh can provide — his personal knowledge of matters relevant to Gomez’ civil rights action. The text of the housekeeping statute thus expressly forbids an agency head from doing what the Attorney General is trying to do here. The statute cannot be read as authorizing agency heads to adopt regulations creating an executive privilege not to testify. It cannot be read as supporting the government’s argument that an agency head can, by not authorizing a subordinate to testify, strip the district court of Article III power to' enforce its subpoena.

The legislative history of § 301 reinforces this reading of the text. ■ See Conroy v. Aniskoff, - U.S. -, -, 113 S.Ct. 1562, 1566, 123 L.Ed.2d 229 (1993) (examining legislative history even in case where text is unambiguous and unequivocal). The original version of the housekeeping statute did not include the statement that the statute does not authorize withholding information from the public. That sentence was added in 1958. The House report accompanying the amendment explained in some detail that the proposed amendment was a response to the executive’s increasing use of the housekeeping statute as a basis for withholding information from the public. H.R. No. 1461, 85th Cong.2d Sess. (1958), reprinted in 1958 U.S.C.C.A.N. 3352. According to the House report, the original housekeeping statute was only intended to “help General Washington get his administration underway by spelling out the authority for executive officials to set up offices and file Government documents.” Id. at 3352. Over time, however, agencies began citing the statute as authority for their decision to withhold information from the public, particularly litigants and the press. Id. Congress opposed this use of the statute, instead thinking that executive privileges must be based on specific congressional authorization after a congressional determination that a particular area of information must be closed to the public. Id. According to Congress, the housekeeping statute had “become a convenient blanket to hide anything Congress may have neglected or refused to include under specific secrecy laws.” Id. at 3353. This result, said the report, “would have aroused Madison, Jefferson, Mason and the rest of the statesmen who put so much trust in popular rights to information.” Id. (quoting congressional witness’ testimony). In sum, says the report, “concealment has been the result of the application” of the housekeeping statute, and “the purpose of this bill is to correct that situation.” Id. While I am cognizant of the criticism that legislative history is frequently indeterminate, Conroy, at -, 113 S.Ct. at 1567 (Scalia, J., concurring), this is not such a ease. Here, the legislative history is as crystal clear as the text of the statute itself: both compel the conclusion that. § 301 does not support the government’s claim that an agency head may withhold testimony from a court at its discretion.⁷

I note in closing that my reading of § 301 does not prevent an agency head from asserting various privileges. To the contrary, this appeal would probably have been unnecessary had the government allowed Boeh to testify in camera and then interposed objections or claims of privilege on a question-by-question basis, giving the district court the opportunity to rule whether the witness should be compelled to provide specific testimony. Just such an approach was suggested by the district court in response to the government’s claim that if Agent Boeh testified he would be forced to violate the secrecy of the grand jury and disclose the identity of a confidential informant. Said the district court, “I made it crystal clear to you that you can stand there right next to [Agent Boeh] if he wants to claim the ... privilege, and every time there’s a specific question asked, if you think it would violate any of the specific prohibitions, you have only to tell me. It’s easy enough, but you haven’t done that.” January 30, 1992 Transcript at 14. Instead of allowing the court to hear Boeh’s testimony and rule on whether it was privileged, the government simply made the blanket assertion that § 16.22(a) deprived the district court of “jurisdiction” to enforce its subpoena. This the government cannot do. While the government retains its authority to assert various privileges, it cannot, as it tried to do here, fashion additional privileges out of the cloth of the housekeeping statute.

IV

The government’s attempt to deprive the district court of its Article III authority to subpoena Agent Boeh violates the fundamental principle that “the public ... has a right to every man’s evidence.” United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 730, 94 L.Ed. 884 (1950) (quoting Wigmore, Evidence § 2192 (3d ed.)). Exceptions “to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for the truth.” Nixon, 418 U.S. at 710, 94 S.Ct. at 3108. As an encroachment on the Article III judicial power, the exception claimed by the Attorney General here raises serious separation of powers questions. See id. at 707, 94 S.Ct. at 3107 (unqualified privilege conflicts with function of the courts under Article III). Even assuming Congress has the authority to grant such power to the executive, we should not impute such an intent to Congress unless it is clearly expressed. Here, Congress has not only declined to express such intent, it has, in both the text and legislative history of the statute, clearly expressed a contrary intent.

In sum, the housekeeping statute does not authorize agency heads to create a form of executive privilege that immunizes subordinates from the reach of an Article III court’s power to issue subpoenas ad testifi-candum. Accordingly, I would affirm the district court’s orders denying the motion to quash and holding Agent Boeh in contempt of court.

1 . Before the district court the government also argued that Agent Boeh should not be required to testify because his testimony would have been inadmissible on a variety of evidentiary grounds. On appeal, the government does not rely upon these other points raised in its motion to quash. Nor could it. By refusing to answer even foundational questions by the court in camera, Agent Boeh provided no evidentiary basis for the court to decide questions such as whether Boeh’s testimony would be inadmissible hearsay. Apparently the government expected the district court to rely on faith, not evidence, in quashing the subpoena on those grounds.

2 . The regulation says: "In any federal or state case or matter in which the United States is not a party, no employee ... of the Department of Justice shall, in response to a demand, produce any material contained in the files of the Department, or disclose any information relating to or based upon material contained in the files of the Department, or disclose any information or produce any material acquired as part of the performance of that person's official duties or because of that person's official status without prior approval of the proper Department official....”

3 .The statute reads in its entirety: "The head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property. This section does not authorize withholding information from the public or limiting the availability of records to the public.”

4 . The majority maintains that it does not reach the question left open in Touhy because its holding is limited to the conclusion that "plaintiffs selected an improper method of attempting to compel Boeh’s testimony.” Opinion at 764. See also Opinion at 764 n. 4. According to the majority, Gomez has available to him alternative means of obtaining Boeh's testimony, either by filing a mandamus action against the Attorney General or by filing suit under the Administrative Procedure Act (APA) seeking a declaratory judgment invalidating the application of the housekeeping regulation. See Opinion at 764 n. 3.

Neither route is an acceptable substitute to the time-honored means of obtaining a witness’s testimony by serving him with a subpoena ad testifi-candum, backed up by the court's power of contempt. If Gomez had a right to Boeh's testimony, he had a right to obtain it when he needed it, which in this case was immediately, while the trial was still going on. Forcing Gomez to file a separate mandamus action or a cumbersome APA suit in the middle of his civil rights trial is so burdensome that it effectively eviscerates his right to obtain Boeh’s testimony.

5 . Boske v. Comingore, 177 U.S. 459, 20 S.Ct. 701, 44 L.Ed. 846 (1900), is also a document production case, which held that the Secretary of the Treasury "may take from a subordinate ... all discretion as to permitting the records in his custody to be used for any other purpose than the collection of revenue, and reserve for his own determination all matters of that character.” Id. at 470, 20 S.Ct. at 705. As Justice Frankfurter noted, “[tjhere is not a hint in the Boske opinion that the Government can shut off an appropriate judicial demand for such papers.” Touhy, 340 U.S. at 472, 71 S.Ct. at 421. Other cases cited by the government are also document production cases and rest on the narrow holdings of Touhy and Boske. See Ex Parte Sackett, 74 F.2d 922 (9th Cir.1935); Saunders v. Great Western Sugar Co., 396 F.2d 794 (10th Cir.1968); Smith v. C.R.C. Builders Co., 626 F.Supp. 12 (D.Colo.1983). In Sackett, we explicitly noted that "[wjhether or not the Attorney General could be compelled to produce such records in response to a subpoena or to testify concerning them is a matter which is not involved [in this case].” 74 F.2d at 924.

6 . See also Boron Oil Co. v. Downie, 873 F.2d 67, 70-71 (4th Cir.1989); Reynolds Metals Co. v. Crowther, 572 F.Supp. 288, 291 (D.Mass.1982) ("[I]t is unnecessary to determine under what circumstances a federal court could compel a federal employee to give testimony contrary to instructions from the head of a department.”).

7 . Every commentator that I am aware of shares this reading of § 301. See Note, Touhy and the Housekeeping Privilege: Dead but not Buried?, 70 Tex.L.Rev. 685, 689 (1992) (the proposition that "a government agency may withhold documents or testimony at its discretion [] simply is not good law and hasn't been since 1958."); Note, Every Man’s Evidence and the Ivory Tower Agencies: How May a Civil Litigant Obtain Testimony From an Employee of a Nonparty Federal Agency?, 59 Geo.Wash.L.Rev. 1647, 1656 (1991) (after the 1958 amendment "the Housekeeping Statute does not authorize nondisclosure regulations”) (emphasis in original); Gerald Wetlaufer, Justifying Secrecy: An Objection to the General Deliberative Privilege, 65 Ind.LJ. 845, 869 (1990) ("By this Act, Congress eliminated any broad privilege-in-effect that might have been approved by Justice Reed's decision in Touhy.")', Don Lively, Government Housekeeping Authority: Bureaucratic Privileges Without a Bureaucratic Privilege, 16 Harv.C.R.-C.L.L.Rev. 495, 500 (1981) ("As the legislative history accompanying the 1958 amendment to the housekeeping statute shows, Congress intended that the statute itself should not double as a form of privilege.”).