685 F.3d 1 (1st Cir. 2012), 11-2511, In re Request from United Kingdom Pursuant to Treaty Between Government of United States and Government of United Kingdom on Mutual Assistance in Criminal Matters in the Matter of Dolours Price

Docket Nº:11-2511, 12-1159.
Citation:685 F.3d 1
Opinion Judge:LYNCH, Chief Judge.
Party Name:In re REQUEST FROM the UNITED KINGDOM PURSUANT TO the TREATY BETWEEN the GOVERNMENT OF the UNITED STATES of America AND The GOVERNMENT OF the UNITED KINGDOM ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS IN THE MATTER OF DOLOURS PRICE. v. Ed Moloney; Anthony McIntyre, Movants, Appellants. United States, Petitioner, Appellee, Ed Moloney; Anthony McIntyre,
Attorney:Eamonn Dornan, with whom Dornan & Associates PLLC and James J. Cotter III were on brief, for appellants. Barbara Healy Smith, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, and John T. McNeil, Assistant United States Attorney, were on brief, for appellee.
Judge Panel:Before LYNCH, Chief Judge, TORRUELLA and BOUDIN, Circuit Judges. TORRUELLA, Circuit Judge (Concurring in the judgment only).
Case Date:July 06, 2012
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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685 F.3d 1 (1st Cir. 2012)

In re REQUEST FROM the UNITED KINGDOM PURSUANT TO the TREATY BETWEEN the GOVERNMENT OF the UNITED STATES of America AND The GOVERNMENT OF the UNITED KINGDOM ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS IN THE MATTER OF DOLOURS PRICE.

United States, Petitioner, Appellee,

v.

Ed Moloney; Anthony McIntyre, Movants, Appellants.

Ed Moloney; Anthony McIntyre, Plaintiffs, Appellants,

v.

Eric H. Holder, Jr., Attorney General; Jack W. Pirozzolo, Commissioner, Defendants, Appellees.

Nos. 11-2511, 12-1159.

United States Court of Appeals, First Circuit.

July 6, 2012

Heard April 4, 2012.

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[Copyrighted Material Omitted]

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Eamonn Dornan, with whom Dornan & Associates PLLC and James J. Cotter III were on brief, for appellants.

Barbara Healy Smith, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, and John T. McNeil, Assistant United States Attorney, were on brief, for appellee.

Before LYNCH, Chief Judge, TORRUELLA and BOUDIN, Circuit Judges.

LYNCH, Chief Judge.

These consolidated appeals are from the denial, in two cases, of the efforts of two academic researchers to prevent the execution of two sets of subpoenas issued in May and August of 2011. The subpoenas were issued to Boston College (" BC" ) by a commissioner appointed pursuant to 18 U.S.C. § 3512 and the " US-UK MLAT," the mutual legal assistance treaty between the United States and the United Kingdom. The subpoenas are part of an investigation by United Kingdom authorities into the 1972 abduction and death of Jean McConville, who was thought to have acted as an informer for the British authorities on the activities of republicans in Northern Ireland. This appears to be the first court of appeals decision to deal with an MLAT and § 3512.

The May 2011 subpoenas sought oral history recordings and associated documentation from interviews BC researchers had conducted with two former members of the Irish Republican Army (" IRA" ): Dolours Price and Brendan Hughes. BC turned over the Hughes materials because he had died and so he had no confidentiality interests at stake. BC moved to quash or modify the Price subpoenas. The second set of subpoenas issued in August 2011 sought any information related to the death or abduction of McConville contained in any of the other interview materials held by BC. BC moved to quash these subpoenas as well.

The district court denied both motions to quash. In re: Request from the U.K., 831 F.Supp.2d 435 (D.Mass.2011). And after undertaking in camera review of the subpoenaed materials it ordered production. Order, In re: Request from the

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U.K., No. 11-91078 (D.Mass. Dec. 27, 2011), ECF No. 38 (ordering production of Price interviews pursuant to May subpoenas); Findings and Order, In re: Request from the U.K., No. 11-91078, 2012 WL 194432 (D.Mass. Jan. 20, 2012) (ordering production of other interviews pursuant to August subpoenas). BC has appealed the order regarding the August subpoenas, but that appeal is not before this panel. BC chose not to appeal the order regarding the Price materials sought by the May subpoenas.

The appellants here, Ed Moloney and Anthony McIntyre, who unsuccessfully sought to intervene in BC's case on both sets of subpoenas, pursue in the first appeal a challenge to the district court's denial of their motions to intervene as of right and for permissive intervention. Their intervention complaint largely repeated the claims made by BC and sought declarations that the Attorney General's compliance with the United Kingdom's request violates the US-UK MLAT and injunctive relief or mandamus compelling him to comply with the terms of that treaty. The effect of the relief sought would be to impede the execution of the subpoenas.

Having lost on intervention, Moloney and McIntyre then filed their own original complaint, essentially making the same claims as made in this intervenor complaint. The district court dismissed the complaint, stating that even assuming the two had standing, the reasons it gave in its reported decision for denial of BC's arguments and denial of intervention applied to dismissal of the complaint. See Order of Dismissal, Moloney v. Holder, No. 11-12331 (D.Mass. Jan. 25, 2012), ECF No. 15; Tr. of Mot. Hr'g, Moloney v. Holder, No. 11-12331 (D.Mass. Jan. 24, 2012), ECF No. 18. Appellants freely admit that their complaint " essentially set forth the same claim" as their complaint in intervention. In the second appeal they challenge the dismissal of their separate civil complaint for lack of subject matter jurisdiction and for failure to state a claim.

I.

The factual background for these suits is not disputed.

A. The Belfast Project at Boston College

The Belfast Project (" the Project" ) began in 2001 under the sponsorship of BC. An oral history project, its goal was to document in taped interviews the recollections of members of the Provisional Irish Republican Army, the Provisional Sinn Fein, the Ulster Volunteer Force, and other paramilitary and political organizations involved in the " Troubles" in Northern Ireland from 1969 forward. The purpose was to gather and preserve the stories of individual participants and provide insight into those who become personally engaged in violent conflict. The Project is housed at the John J. Burns Library of Rare Books and Special Collections at BC.

The Project was first proposed by appellant Ed Moloney, a journalist and writer. He later contracted with BC to become the Project's director. Before the Project started, Robert K. O'Neill, the Director of the Burns Library, informed Moloney that, although he had not yet conferred with counsel on the point, he could not guarantee that BC " would be in a position to refuse to turn over documents [from the Project] on a court order without being held in contempt."

Against this background, the Project attempted to guard against unauthorized disclosure. The agreement between Moloney and BC directed him as Project Director to require interviewers and interviewees to sign a confidentiality agreement forbidding them from disclosing the existence or scope of the Project without the permission

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of BC. The agreement also required the use of a coding system to maintain the anonymity of interviewees and provided that only the Burns Librarian and Moloney would have access to the key identifying the interviewees. Although the interviews were originally going to be stored in Belfast, Northern Ireland, as well as Boston, the Project leadership ultimately decided that the interviews could only be safely stored in the United States. They were eventually stored in the " Treasure Room" of the Burns Library, with extremely limited access.

The agreement between Moloney and BC requires that " [e]ach interviewee is to be given a contract guaranteeing to the extent American law allows the conditions of the interview and the conditions of its deposit at the Burns Library, including terms of an embargo period if it becomes necessary" (emphasis added). The agreement, in this clause, expressly acknowledged that its protections could be limited by American law. The agreement also directs that the Project adopt an " appropriate user model, such as Columbia University's Oral History Research Office Guidelines statement." 1

The Project employed researchers to interview former members of the Irish Republican Army and the Ulster Volunteer Force. Appellant Anthony McIntyre, himself a former IRA member, was one of those researchers. McIntyre worked for the Project under a contract governed by the terms of the agreement between Moloney and BC. McIntyre's contract required him to transcribe and index the interviews he conducted and to abide by the confidentiality requirements of the Moloney agreement. McIntyre conducted a total of twenty-six interviews of persons associated with the republican side of the conflict for the Project by the time it ended in 2006. In addition, the Project contains interviews with fourteen members of Protestant paramilitary groups and one member of law enforcement. There are a total of forty-one interview series (each series may contain multiple interviews with a single person).

Interviewees entered into donation agreements with BC, which were signed by the interviewees and by O'Neill, the Burns Librarian. The donation agreements transfer possession of the interview recordings and transcripts to BC and assign to the school " absolute title" to the materials, " including whatever copyright" the interviewee may own in their contents. The donation agreements have the following clause regarding access to the interview materials:

Access to the tapes and transcripts shall be restricted until after my death except in those cases where I have provided prior written approval for their use following consultation with the Burns Librarian, Boston College. Due to the sensitivity of content, the ultimate power of release shall rest with me. After my death the Burns Librarian of Boston College may exercise such power exclusively.

This clause does not contain the term " confidentiality" and provides only that access will be restricted. But it does recite that the ultimate power of release belongs to the donor during the donor's lifetime. The donation agreements do not contain the " to the extent American law allows" language that is contained in the agreement between Moloney and BC. A copy of the donation

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agreement for Brendan Hughes, but not one for Dolours Price, is in the record, but we assume both signed one.2

In 2010 Moloney published a book and released a documentary, both entitled " Voices from the Grave, Two Men's War in Ireland," based on Belfast Project interviews with...

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