873 F.2d 67 (4th Cir. 1989), 88-3938, Boron Oil Co. v. Downie

Docket Nº:88-3938.
Citation:873 F.2d 67
Party Name:BORON OIL COMPANY; Vito Cutrone, Sr.; Fonda Cutrone; Sharon Lewis, Plaintiffs-Appellees, v. Jack L. DOWNIE, in his official capacity as an employee of the United States Environmental Protection Agency, Defendant-Appellant.
Case Date:April 24, 1989
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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873 F.2d 67 (4th Cir. 1989)

BORON OIL COMPANY; Vito Cutrone, Sr.; Fonda Cutrone;

Sharon Lewis, Plaintiffs-Appellees,


Jack L. DOWNIE, in his official capacity as an employee of

the United States Environmental Protection Agency,


No. 88-3938.

United States Court of Appeals, Fourth Circuit

April 24, 1989

Argued Jan. 11, 1989.

Martin William Matzen (Roger J. Marzulla, Asst. Atty. Gen., Anne S. Almy, Washington, D.C., Daniel S. Goodman, U.S. Dept. of Justice, Land & Natural Resources Div., William A. Kolibash, U.S. Atty., Wheeling, W.Va., Donnell Nantkes, Office of Gen. Counsel, Philip Yeany, Asst. Regional Counsel, U.S.E.P.A., on brief) for defendant-appellant.

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James F. Companion (Yolanda G. Lambert, Schrader, Stamp, Byrd, Byrum & Companion, Wheeling, W.Va., W. Dean De La Mater, De La Mater, Hagg & Bohach, Weirton, W.Va., on brief), for plaintiffs-appellees.

Before SPROUSE and CHAPMAN, Circuit Judges, and MOTZ, United States District Judge for the District of Maryland, sitting by designation.

CHAPMAN, Circuit Judge:

In the matter before the Court, the plaintiffs seek to compel an employee of the Environmental Protection Agency ("EPA"), Jack L. Downie ("Downie"), to testify in a state court civil action, contrary to specific instructions of his agency superiors, concerning information acquired during the course of his official duties. We hold that the state court, and the federal district court on removal, lacked jurisdiction to compel the defendant to appear and testify in a state court action to which the government is not a party. Thus, we reverse the order of the district court.


The present dispute arose when, on August 17, 1987, and August 21, 1987, Downie was served with trial subpoenas to testify in a tort action pending in the Circuit Court of Brooke County, West Virginia. Vito Cutrone, Sr., et al. v. Boron Oil Company, Civil Action No. 83-C-149-Br. Downie was subpoenaed by both parties to testify about his investigation, as an EPA On-Scene Coordinator, of an alleged gasoline leak at a Boron Oil Company service station.

Although Downie initially consented to provide trial testimony subject to approval by his superiors and the EPA had cooperated in similar proceedings prior to this incident, one day before Downie's scheduled trial appearance in state court the Acting Regional Counsel for EPA Region 3 concluded that Downie's testimony "would not clearly be in the interest of the EPA." The EPA issued a written determination that Downie not be permitted to testify.

The Circuit Court of Brooke County denied EPA's motion to quash the two trial subpoenaes and directed Downie to testify. The EPA promptly removed the subpoena proceedings (but not the underlying civil action) to the United States District Court for the Northern District of West Virginia pursuant to 28 U.S.C. Sec. 1442(a). The district court held a hearing to ascertain the nature of Downie's employment, his involvement in the underlying tort action, and the extent to which his appearance as a witness would interfere with his official duties.

The district court held that removal was proper, pursuant to North Carolina v. Carr, 386 F.2d 129 (4th Cir.1967), and that its jurisdiction on removal included authority to review the EPA's decision to prohibit Downie from testifying. The district court made factual findings that none of the information sought from Downie is alleged to be privileged, that Downie's testimony is essential to the fair administration of justice in the civil action, that Downie is the most knowledgeable person available to give an unbiased, impartial account of the events giving rise to the tort action, and that the interference and inconvenience to Downie and the EPA resulting from his giving testimony would be minimal at best. The court also noted that prior to the present action it had been the EPA's policy to cooperate fully with private citizens regarding matters of this nature, that Downie had voluntarily consented to provide trial testimony subject only to approval by his superior, that there were no written reports prepared in connection with Downie's investigation of the alleged gas leak, and that the cost and expenses to Downie and the EPA resulting from Downie's trial...

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