Boron Oil Co. v. Downie, 88-3938

Citation873 F.2d 67
Decision Date24 April 1989
Docket NumberNo. 88-3938,88-3938
PartiesBORON 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.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

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.

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.

I.

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 testimony would be borne by the parties seeking his testimony.

In reaching its conclusion, the district court looked to the following "housekeeping" statute which provides the Congressional mandate to be followed by all departments seeking to invoke and apply regulations promulgated thereunder:

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. Sec. 301.

The EPA relied upon EPA Regulations promulgated at 40 C.F.R. Sec. 2.401(c), Subpart C (1986), in denying Downie permission to testify. The regulations instruct:

The purpose of this subpart is to ensure that employees' official time is used only for official purposes, to maintain the impartiality of EPA among private litigants, to ensure that public funds are not used for private purposes and to establish procedures for approving testimony or production of documents when clearly in the interests of EPA.

"[A]lthough Sec. 301 does permit centralization of responsibility in a department head to claim a privilege," the district court concluded, "it clearly does not confer a privilege to withhold information from the public."

The district court similarly rejected the defense of sovereign immunity, holding that neither the United States nor the EPA were named parties, thus, "there is no relief sought or sued against the sovereign in this case."

The district court ordered Downie to give testimony in the state court and required that the timing of his appearance make accommodation for his work schedule and that the appellees, the private litigants in the underlying civil action, bear the cost of his appearance.

II.

The EPA seeks to quash the subpoenaes on the ground that it is not subject to a subpoena issued by a state or local court, with respect to actions to which it is not a party, in the absence of a waiver of sovereign immunity. The EPA also argues that the subpoenaes must be quashed because they do not comply with the internal EPA regulations concerning state court subpoenaes, authorized by 5 U.S.C. Sec. 301 and codified at 40 C.F.R. Sec. 2.401(c).

A.

It is well established that an action seeking specific relief against a federal official, acting within the scope of his delegated authority, is an action against the United States, subject to governmental privilege of immunity. Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 688, 69 S.Ct. 1457, 1460, 93 L.Ed. 1628 (1949); 3A Moore's Federal Practice p 19.15. Downie's refusal to testify was at the behest of his EPA superior, the Acting Regional Counsel for Region 3. The EPA decision was made pursuant to regulations set forth at 40 C.F.R. Sec. 2.401. These regulations provide, inter alia, that an employee of the EPA may testify in response to a subpoena only to the extent expressly authorized by the agency.

The Supreme Court has specifically recognized the authority of agency heads to restrict testimony of their subordinates by this type of regulation. United States ex rel. Touhy v. Ragen, 340 U.S. 462, 71 S.Ct. 416, 95 L.Ed. 417 (1951). In Touhy, the Supreme Court ruled that a subordinate official of the Justice Department could not be held in contempt for refusing, in a habeas corpus proceeding by a state prisoner, to obey a subpoena duces tecum when his compliance had been prohibited by an order of a superior department official acting pursuant to valid federal regulations governing the release of official documents. As in the case sub judice, the government was not a party to the underlying action. The regulations in Touhy were promulgated under the statutory predecessor of the current "housekeeping" statute, 5 U.S.C. Sec. 301.

Touhy is part of an unbroken line of authority which directly supports Downie's contention that a federal employee may not be compelled to obey a subpoena contrary to his federal employer's instructions under valid agency regulations. The district court clearly departed from this line of cases. In Swett v. Schenk, 792 F.2d 1447, 1451-52 (9th Cir.1986), the court affirmed the trial court's dismissal of a state court's contempt proceeding against a National Transportation Safety Board's investigator who had, pursuant to valid NTSB regulations, submitted to deposition but declined to testify about other matters. The government, as in the case at bar, was not a party to the underlying action, and the litigant sought the investigator's testimony for his expert knowledge rather than for a recitation of agency records. See also Reynolds Metals Co. v. Crowther, 572 F.Supp. 288, 290-91 (D.Mass.1982) (federal district court dismissed contempt proceeding which would have compelled OSHA...

To continue reading

Request your trial
136 cases
  • Phillips v. U.S. Equal Emp't Opportunity Comm'n
    • United States
    • U.S. District Court — Northern District of California
    • September 9, 2016
    ... ... See Rockefeller , 234 F. App'x at 855-56; see also Boron Oil Co ... v ... Downie , 873 F.2d 67, 69 (4th Cir. 1989) ("[A]n action seeking specific relief against a federal official, acting within the scope of ... ...
  • Bosaw v. National Treasury Employees Union
    • United States
    • U.S. District Court — Southern District of Indiana
    • May 24, 1995
    ... ... supremacy and is designed to provide federal officers with a federal forum in which to raise defenses arising from their official duties"); Boron Oil Co. v. Downie, 873 F.2d 67, 69 (4th Cir.1989); Nationwide Investors v. Miller, 793 F.2d 1044, 1047 (9th Cir.1986) (holding removal proper even ... ...
  • Smith v. Cromer
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • October 22, 1998
    ... ... 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. § 16.22(a) is valid insofar as ... ...
  • Kasi v. Angelone
    • United States
    • U.S. District Court — Eastern District of Virginia
    • January 10, 2002
    ... ... a federal employee to testify concerning information acquired during the course of his official duties ... " Smith, 159 F.3d at 879, citing Boron Oil Co. v. Downie, 873 F.2d 67, 69-71 (4th Cir.1989). Furthermore, the Fourth Circuit, in quoting the Supreme Court, held that "pursuant to such ... ...
  • Request a trial to view additional results
1 provisions
  • 32 C.F.R. 516 app G to Part 516 Figures
    • United States
    • Code of Federal Regulations 2023 Edition Title 32. National Defense Subtitle A. Department of Defense Chapter V. Department of the Army Subchapter A. Aid of Civil Authorities and Public Relations Part 516. Litigation Subpart J. Soldiers Summoned to Serve On State and Local Juries
    • January 1, 2023
    ...we receive the required information. See, for example, United States ex rel. Touhy v. Ragen,340 U.S. 462(1951); Boron Oil Co. v. Downie, 873 F.2d 67 (4th Cir. 1989); United States v. Bizzard, 674 F.2d 1382 (11th Cir. 1982); United States v. Marino, 658 F.2d 1120 (6th Cir. 1981); United Stat......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT