Brown & Williamson Tobacco Corp. v. Williams

• Decision Date: 15 August 1995
• Docket Number: No. 94-5171,94-5171
• Citation: 62 F.3d 408
• Parties: , 64 USLW 2124 BROWN & WILLIAMSON TOBACCO CORP., Appellant, v. Merrell WILLIAMS, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 408

62 F.3d 408

314 U.S.App.D.C. 85, 64 USLW 2124

BROWN & WILLIAMSON TOBACCO CORP., Appellant, v. Merrell WILLIAMS, et al., Appellees.

No. 94-5171.

United States Court of Appeals District of Columbia Circuit.

Argued May 11, 1995.

Decided Aug. 15, 1995.

Appeal from the United States District Court for the District of Columbia (94ms0171).

Kenneth W. Starr, Washington, DC, argued the cause, for appellant. With him on the briefs were William C. Hendricks, III, and Kerrie C. Dent, Washington, D.C. Paul J. Larkin, Jr., Washington, DC, entered an appearance.

Barbara K. Bracher, Principal Asst. Gen. Counsel and Sol., Office of the Gen. Counsel, U.S. House of Representatives, Washington, DC, argued the cause, and filed the brief, for appellees.

Before: SILBERMAN, HENDERSON, and TATEL, Circuit Judges.

SILBERMAN, Circuit Judge:

Brown & Williamson appeals an order of the district court quashing subpoenas duces tecum issued to two Members of the House of Representatives. We affirm.

I.

This case grows out of another lawsuit brought in Kentucky state court in September 1993 by the Louisville law firm Wyatt, Tarrant & Coombs (Wyatt, Tarrant) against a former paralegal at the firm, Merrell Williams. Williams had worked on confidential litigation-related document production for Wyatt, Tarrant in connection with the firm's representation of Brown & Williamson Tobacco Corp. (B & W) in products liability lawsuits. About a year after leaving the firm, Williams told Wyatt, Tarrant that he had made copies of various B & W documents to which he had had access; he delivered to the firm a box claimed to contain the copies in his possession. At the same time, he threatened to seek damages for injuries allegedly caused by smoking and by his exposure during the course of his employment to information that had induced psychological suffering.

Wyatt, Tarrant responded by suing Williams for breach of contract and various torts based on his filching of B & W documents, which the firm sought to have returned. The court ordered Williams to surrender any material still in his possession and issued a temporary injunction restraining him from disclosing or using any information acquired during his employment. B & W filed a motion to intervene, which was granted several days after suit was brought. Williams filed his promised counter-suit against B & W six months later, in March 1994.

Sometime earlier, in July 1993, the House of Representatives' Subcommittee on Health and the Environment of the Committee on Energy and Commerce began hearings on the effects of tobacco products. Appellee Waxman was the chairman of that committee, and appellee Wyden apparently played a prominent role. By March 1994, the Subcommittee had turned its attention to the question of manipulation of nicotine levels by tobacco manufacturers, and on April 14, 1994, heard testimony on this subject from the CEOs of the nation's seven largest tobacco companies, including B & W. Following this hearing, on March 5, 1994, Chairman Waxman wrote B & W stating that the Subcommittee had "recently learned" that in the 1960s the company had conducted research into the pharmacological effects of nicotine and desired copies of any resulting studies and reports.

Two days later, on March 7, 1994, the first of several news stories concerning internal B & W documents appeared in the national media. And the following day, Representative Waxman stated in a radio interview that his subcommittee had recently received "documents that were evidently stolen from some law firm office that represented [B & W]." B & W then obtained an order from the Kentucky court directing Williams to appear for a deposition concerning the apparent receipt of its documents by Congress and various news reporters. The judge also issued an Order and Commission for the issuance of subpoenas duces tecum to Representatives Waxman and Wyden for "the production and inspection" of all B & W documents in the witnesses' possession as well as requiring the Congressmen to attend a deposition by B & W. ¹ On appeal, however, the appellant assures us that it does not wish to depose the Congressmen. Similar Orders and Commissions authorized subpoenas to various reporters and news organizations as well.

The Kentucky court's orders were presented to the Superior Court for the District of Columbia, which issued the subpoenas on May 18, 1994. The following day, Representatives Waxman and Wyden filed a petition for removal with the United States District Court, along with a motion to quash the subpoenas on the ground that the Speech or Debate Clause, U.S. Const., art. I, Sec. 6, cl. 1, excused them from compliance. The court determined that it enjoyed removal jurisdiction over the subpoena proceedings and, on June 6, 1994, granted the motion to quash. Maddox v. Williams, 855 F.Supp. 406, 411-13 (D.D.C.1994). The court agreed with the congressmen that the Speech or Debate Clause barred enforcement of the subpoenas. ² B & W sought, and was denied, reconsideration, and appealed.

II.

Before turning to the Speech or Debate Clause we must satisfy ourselves as to our jurisdiction. In the district court, and again here, B & W has questioned whether Representatives Waxman and Wyden, having merely been served with the subpoenas, were authorized to remove the proceedings to federal court. According to appellant, the relevant federal removal statute, 28 U.S.C. Sec. 1442(a) (1988), allows federal officers to transfer proceedings to a federal district court only when they are themselves defendants in the state court action. Under such circumstances the federal forum becomes necessary, we are told, because it is then that real concerns arise about the forum of adjudication. The congressmen are not defendants here but only subjects of subpoenas duces tecum. And while their refusal to comply may rest on assertions of federal privilege, that by itself is not enough to satisfy the statute's conditions for removal.

It is certainly true that the language of the removal statute ostensibly supports B & W's argument. The statute provides, in relevant part:

A civil action or criminal prosecution commenced in a State court against any of the following persons may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:

(1) Any officer of the United States ... for any act under color of such office ...

* * * * * *

(4) Any officer of either House of Congress, for any act in the discharge of his official duty under an order of such House.

28 U.S.C. Sec. 1442(a) (emphases added). By its terms, then, the statute confers removal jurisdiction over either a state court "civil action" or "criminal prosecution" brought "against" a federal official--as long as the "action" for which he is being questioned was undertaken "under color" of the federal office. ³ This last condition has long been interpreted to require "that federal officer removal must be predicated on the allegation of a colorable federal defense." Mesa v. California, 489 U.S. 121, 129, 109 S.Ct. 959, 965, 103 L.Ed.2d 99 (1989). That such a defense has been raised is not contested. B & W disputes appellees' contention that the Speech or Debate Clause immunizes appellees from compliance with the superior court's subpoena, but it does not deny that the immunity asserted is an at least "colorable" federal defense. See Willingham v. Morgan, 395 U.S. 402, 407, 89 S.Ct. 1813, 1816, 23 L.Ed.2d 396 (1969). ⁴

Appellant does, however, question whether it is possible to remove in the absence of some sort of proceeding against an official. The statute, it is argued, contemplates some state inquiry into an official's commission of an "act" under claim of federal office. And the superior court's subpoena order constitutes neither a "criminal prosecution" nor a "civil action." The latter, under the Federal Rules, is only created by the filing of a complaint. FED.R.CIV.P. 3. In response, the congressmen point to what they claim is the purpose of the removal statute, as described in the case law, rather than the actual language. They assert that Sec. 1442(a) was designed to carry out a congressional intent "that federal officers, and indeed the Federal Government itself, [have] the protection of a federal forum," and that therefore "[t]his policy should not be frustrated by a narrow, grudging interpretation." Willingham, 395 U.S. at 407, 89 S.Ct. at 1816. The statute serves to "ensure a federal forum in any case where a federal official is entitled to raise a defense arising out of his official duties," Arizona v. Manypenny, 451 U.S. 232, 241, 101 S.Ct. 1657, 1664, 68 L.Ed.2d 58 (1981), and "to maintain the supremacy of the laws of the United States by safeguarding officers and others acting under federal authority against peril of punishment for violation of state law." Colorado v. Symes, 286 U.S. 510, 517, 52 S.Ct. 635, 637, 76 L.Ed. 1253 (1932) (citing Tennessee v. Davis, 100 U.S. 257, 25 L.Ed. 648 (1880); Maryland v. Soper (No. 1), 270 U.S. 9, 32, 46 S.Ct. 185, 190, 70 L.Ed. 449 (1926)). In light of these broad pronouncements (among others), Sec. 1442(a) should, according to appellees, be interpreted to allow a federal officer to remove to federal court whenever he seeks to rely upon federal grounds in proceedings before a state court. The statute is not, in other words, limited to the situation where the federal officer asserts a federal excuse in defense of actions that are the focus of the state proceeding. It is also available when a federal privilege--here, the Speech or Debate Clause--is claimed to defeat an assertion of state court authority, such as the subpoenas at issue in this proceeding.

None of these Supreme Court cases, on which appellee relies, are directly on point. Willingham, for example, decided simply that the "color of office" test was satisfied by an officer's assertion of a colorable federal...