Boeh, In re

• Decision Date: 14 February 1992
• Docket Number: No. 92-55096,92-55096
• Citation: 25 F.3d 761
• Parties: In re Recalcitrant Witness Richard BOEH, Julia GOMEZ, et al., Plaintiffs-Appellees, v. Daryl GATES, et al., Defendants, and United States of America, Respondent-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 761

25 F.3d 761

62 USLW 2752

In re Recalcitrant Witness Richard BOEH,

Julia GOMEZ, et al., Plaintiffs-Appellees, v. Daryl GATES, et al., Defendants, and United States of America, Respondent-Appellant.

No. 92-55096.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 14, 1992. ^*

Decided May 27, 1994.

Steven E. Zipperstein, Sean R. Berry and Mark D. Larsen, Asst. U.S. Attys., Los Angeles, CA, for respondent-appellant.

Stephen Yagman, Marion R. Yagman, Yagman & Yagman, P.C., Venice, CA, for plaintiffs-appellees.

Appeal from the United States District Court for the Central District of California.

Before: CANBY, NORRIS and LEAVY, Circuit Judges.

Opinion by Judge CANBY; Dissent by Judge NORRIS

CANBY, Circuit Judge:

The United States and Richard Boeh, ¹ an agent of the Federal Bureau of Investigation, appealed from the district court's denial of a motion to quash a subpoena ad testificandum and two civil contempt orders issued in response to Boeh's refusal to testify in a civil trial. The appeal was expedited pursuant to 28 U.S.C. Sec. 1826(b). On February 18, 1992, we entered a brief order reversing all three orders of the district court, with Judge Norris indicating his dissent. Our order stated that opinions would follow; we now deliver them.

BACKGROUND

The underlying litigation arises out of an incident in which members of the Los Angeles Police Department shot four suspects, killing three of them and critically wounding the fourth, immediately after a robbery of a fast food restaurant in Sunland, California. The surviving suspect and relatives of the deceased suspects brought a civil rights action in federal court against the police officers, Chief Daryl Gates, the City of Los Angeles, and various other officials, alleging the use of excessive force.

Shortly after the trial commenced, plaintiffs caused a subpoena to be served on Richard Boeh. ² Boeh was a Special Agent of the FBI, and was the case agent for a criminal investigation of the shootings. Boeh had not been present at the incident; he was not a percipient witness to any events upon which the litigation was based. Neither Boeh nor the United States was a party to the litigation.

Plaintiffs' purpose in serving the subpoena was to secure Boeh's testimony regarding evidence he had collected in his investigation and his conclusions as to what had actually occurred at the scene of the shooting. The United States Attorney referred the subpoena to the Department of Justice, pursuant to 28 C.F.R. Sec. 16.22(a) (1991), which 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 official status without prior approval of the proper Department official....

The proper official in the Department denied permission for Boeh to testify, and directed Boeh to decline respectfully to obey the subpoena. The United States filed a motion on Boeh's behalf to quash the subpoena. Before hearing the motion to quash, the district court ordered Boeh to appear in camera and answer questions that would permit the court to learn what Boeh knew about the alleged civil rights violations and to determine, among other things, what limits should be placed on Boeh's testimony. Boeh refused to answer the court's questions and the district court held him in civil contempt. The district court then denied the United States' motion to quash and, in open court, ordered Boeh to testify pursuant to the subpoena. Boeh again refused and again was held in civil contempt. This appeal followed.

DISCUSSION

Boeh may not be held in contempt for failing to comply with a court order if a valid regulation required him not to comply. Ex Parte Sackett, 74 F.2d 922, 923 (9th Cir.1935); Boron Oil Co. v. Downie, 873 F.2d 67, 69 (4th Cir.1989). We are convinced, both by statute and precedent, that 28 C.F.R. Sec. 16.22(a) is valid insofar as it directs Boeh not to testify "without prior approval of the proper Department official." The question whether that prior approval was unlawfully withheld is not, we conclude, properly before us on this appeal from contempt rulings against Boeh.

Section 16.22(a) was promulgated under the authority of the so-called "housekeeping statute," 5 U.S.C. Sec. 301, which provides:

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

The Department of Justice regulation here clearly falls within the terms of the first sentence of this statute: the regulation prescribes the conduct of employees, the performance of the agency's business, and the use of its records. Any doubt as to the validity of the regulation's requirement of prior approval In Touhy, a Department of Justice employee was subpoenaed to produce departmental records in a habeas corpus proceeding. Pursuant to the then-existing regulation, the Attorney General withheld permission for the employee to comply with the subpoena, and the employee was held in contempt. The Supreme Court held that the employee could not be held in contempt because the regulation validly withdrew from the employee and placed in the Attorney General the decision whether and on what terms to comply with the subpoena. Id. at 467-69, 71 S.Ct. at 418-19. In so holding, the Court relied on its earlier decision in Boske v. Comingore, 177 U.S. 459, 467-69, 20 S.Ct. 701, 704-05, 44 L.Ed. 846 (1900), upholding the right of the Secretary of the Treasury to withdraw from subordinates all discretion over the use and production of tax records. Boske overturned a state court's contempt order against a tax collector who refused to respond to a subpoena duces tecum. See also Swett v. Schenk, 792 F.2d 1447, 1451 (9th Cir.1986) (National Transportation Safety Board regulation restricting employee testimony); Ex Parte Sackett, 74 F.2d at 923-24 (similar Department of Justice regulation).

is foreclosed, in our view, by the Supreme Court's decision in United States ex rel. Touhy v. Ragen, 340 U.S. 462, 468, 71 S.Ct. 416, 419, 95 L.Ed. 417 (1951), which upheld the validity of a predecessor to 28 C.F.R. Sec. 16.22(a).

Plaintiffs argue that section 16.22(a), as applied in this case, violates the separation of powers by vesting an executive branch official with the heretofore exclusively judicial power to determine what evidence will be admitted in a civil trial. We give no such effect to the regulation. We do not decide here that Boeh may never be required to testify or that section 16.22(a) establishes an absolute privilege. We conclude only that plaintiffs selected an improper method of attempting to compel Boeh's testimony. Plaintiffs might have succeeded by other means in bringing the Attorney General or the designated "proper Department official" into court to contest his or her decision not to permit Boeh's testimony. ³ Once properly before the appropriate court, the Attorney General or designated official could have claimed whatever privileges might shield Boeh's testimony and the court could then have ruled on those assertions of privilege. See Committee for Nuclear Responsibility, Inc. v. Seaborg, 463 F.2d 788, 793 (DC Cir.1971) (when the head of an agency challenges a subpoena, "the claim of privilege is one for consideration by the court"); see also NLRB v. Capitol Fish Co., 294 F.2d 868, 873-74 (5th Cir.1961) (when order is directed to head of the agency, Touhy and Boske are no longer relevant); Reynolds v. United States, 192 F.2d 987, 992-93 (3rd Cir.1951) (same), rev'd on other grounds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953). We need not decide those issues because they are not before us. ⁴ Our conclusion here closely tracks the Supreme Court's decision in Touhy. After ruling that the Attorney General's regulation similar to section 16.22(a) had been validly promulgated under the predecessor statute to 5 U.S.C. Sec. 301, the Court stated:

We find it unnecessary, however, to consider the ultimate reach of the authority of the Attorney General to refuse to produce at a court's order the government papers in his possession, for the case as we understand it raises no question as to the power of the Attorney General himself to make such a refusal. The Attorney General was not before the trial court. It is true that his subordinate ... acted in accordance with the Attorney General's instructions and a department order. But we limit our examination to what this record shows, to wit, a refusal by a subordinate of the Department of Justice to submit papers to the court in response to its subpoena duces tecum on the ground that the subordinate is prohibited from making such submission by his superior through Order No. 3229. The validity of the superior's action is in issue only insofar as we must determine whether the Attorney General can validly withdraw from his subordinates the power to release department papers.

340 U.S. at 467, 71 S.Ct. at 419 (emphasis added) (footnote omitted). The Court thus rejected a separation of powers argument on the ground that it was not ruling on the Attorney General's power to refuse to produce the subpoenaed documents. Id. at 468-69, 71 S.Ct. at 419-20. Justice Frankfurter emphasized this same point in his concurring opinion, describing the issue as "a matter of internal administration." Id. at 471, 71 S.Ct. at 421. In...