Commonwealth of Puerto Rico v. U.S.

• Citation: 490 F.3d 50
• Decision Date: 15 June 2007
• Docket Number: No. 06-2449.,06-2449.
• Parties: COMMONWEALTH OF PUERTO RICO, Plaintiff, Appellant, v. UNITED STATES of America; Alberto R. Gonzales, Attorney General; Robert Mueller, Director of the FBI; Rosa Emilia Rodriguez-Vélez, U.S. Attorney for the District of Puerto Rico; and Luis S. Fraticelli, Special Agent in Charge of the FBI in Puerto Rico, Defendants, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

490 F.3d 50

COMMONWEALTH OF PUERTO RICO, Plaintiff, Appellant, v. UNITED STATES of America; Alberto R. Gonzales, Attorney General; Robert Mueller, Director of the FBI; Rosa Emilia Rodriguez-Vélez, U.S. Attorney for the District of Puerto Rico; and Luis S. Fraticelli, Special Agent in Charge of the FBI in Puerto Rico, Defendants, Appellees.

No. 06-2449.

United States Court of Appeals, First Circuit.

Heard January 11, 2007.

Decided June 15, 2007.

Salvador J. Antonetti-Stutts, Solicitor General, with whom Roberto J. Sánchez-Rámos, Secretary of Justice, Kenneth Pamias-Velázquez, Special Aide to the Secretary of Justice, Jorge R. Roig-Colón, Assistant Secretary of Justice, and Hiram A.

Meléndez-Juarbe, Legal Advisor to the Secretary of Justice, were on brief, for appellant.

Mark B. Stern, Civil Division, Department of Justice, with whom Peter D. Keisler, Assistant Attorney General, Rosa Emilia Rodriguez-Vélez, U.S. Attorney, Jonathan F. Cohn, Deputy Assistant Attorney General, and Alisa B. Klein, Civil Division, Department of Justice, were on brief, for appellees.

Before BOUDIN, Chief Circuit Judge, LIPEZ, Circuit Judge, and SHADUR,^* Senior District Judge.

LIPEZ, Circuit Judge.

This case presents a novel question: does the Commonwealth of Puerto Rico have a nonstatutory cause of action, grounded in its sovereign authority under the Constitution, to obtain information from the Federal Bureau of Investigation ("FBI") in connection with a criminal investigation into the activities of FBI employees? We conclude that it does not. Instead, under the circumstances of this case, Puerto Rico must pursue the information it seeks under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706. Further, in keeping with persuasive authority from other circuits, we hold that the FBI may assert a qualified privilege to protect sensitive law enforcement techniques and procedures from disclosure. Having considered the application of that privilege in this case, we affirm the decision of the district court holding that the FBI did not err in withholding the requested information.

I.

This appeal involves two consolidated district court cases, Nos. 06-1306 and 06-1305,¹ arising from subpoenas for FBI records issued by the Puerto Rico Department of Justice ("PRDOJ"). The relevant facts are largely undisputed; where disputes exist, we note them but find that they are immaterial to our disposition of the case.

A. Case No. 06-1306: Ojeda Subpoena

In the 1970s, Filiberto Ojeda Ríos helped found the Macheteros, an organization that advocates independence for Puerto Rico through armed struggle against the United States government. In 1983, the Macheteros stole $7.1 million from a bank in Connecticut. The FBI apprehended Ojeda in 1985, and, during his arrest, Ojeda shot an FBI agent in the face, permanently blinding the agent in one eye. Ojeda was acquitted for assaulting the agent following a trial in Puerto Rico. He then skipped bail while on trial for bank robbery and was sentenced in absentia in 1992. Fifteen years later, in September 2005, the FBI attempted to apprehend Ojeda at his residence in Hormigueros, Puerto Rico. During this intervention, Ojeda shot two FBI agents and was himself fatally wounded.

The PRDOJ commenced an investigation into the intervention. On October 4, 2005, a PRDOJ prosecutor issued a subpoena pursuant to title 34, section 1476 of the Puerto Rico Code commanding then United States Attorney Humberto Garcia to produce materials including: (1) a copy of the "Operation Order" (a document establishing the plan or rules of engagement for the FBI intervention at Ojeda's residence) (2) the name, rank, division, address, and telephone numbers of every person who participated in or made decisions regarding the intervention, as well as an organizational diagram showing these individuals' rank on the line of command; (3) various equipment, including, but not limited to, all bullet-proof vests, helmets, weapons, and vehicles involved in the intervention; (4) any inventory of the property occupied during the intervention; (5) copies of any expert reports relating to the intervention or Ojeda's death; (6) copies of any audio or video recordings of the events relating to the intervention; (7) copies of all photographs relating to the intervention; and (8) copies of any relevant general FBI protocols, including those relating to violent interventions and potentially deadly force. In subsequent correspondence, the PRDOJ explained that the requests related to a "criminal investigation" that it was conducting into Ojeda's death.

By letter dated October 17, the FBI declined to produce the requested materials, explaining that its internal regulations prohibited disclosure of records compiled for law enforcement purposes. The letter stated that the denial of the PRDOJ's request was a "final agency decision which may be reviewed by the United States District Court."

After further communications among the PRDOJ, FBI, and United States Attorney's Office, the U.S. Attorney indicated by letter dated November 9 that the FBI would allow the PRDOJ to examine some of the items listed in the subpoena, including the bulletproof vests, helmets, weapons, and vehicles used during the intervention and the photographs taken before, during, and after the intervention. The FBI stipulated that it would retain official custody of these items and that an FBI official would be present during the inspection.

The PRDOJ initially acceded to these terms, but subsequently reiterated the substance of its original demand in a letter dated January 20, 2006. The FBI refused this demand, again noting that its refusal constituted "final agency action." The PRDOJ filed suit in March 2006 to compel disclosure of the requested materials.

B. Case No. 06-1305: 444 de Diego Subpoena

Using information obtained from Ojeda's residence to establish probable cause, the FBI obtained a search warrant for a residential condominium located at 444 de Diego in San Juan, Puerto Rico. The FBI executed the warrant in February 2006, and a large group of protesters, reporters, and members of the general public gathered outside. The United States asserts that some of these individuals breached an established police line, and an FBI agent used pepper spray to keep people behind the line.

The PRDOJ issued subpoenas to U.S. Attorney Garcia and to Luis Fraticelli, Special Agent in Charge of the FBI San Juan Field Office, requesting three categories of materials: (1) the name, rank, division, address, and telephone number of the two FBI agents who allegedly used pepper spray and whose photos were attached to the subpoena; (2) official photographs of these two FBI agents; and (3) internal FBI protocols relating to the use of force and pepper spray. The PRDOJ explained that the subpoenas were "part of the criminal investigation" of the PRDOJ into "the conduct of FBI agents during the execution of a search warrant" at 444 de Diego.

The FBI moved to quash the subpoenas in federal district court. After the PRDOJ indicated, at a hearing on March 2, that "it was actually evaluating other avenues through which to get the information about the federal agents, and that it had no serious intention of enforcing the challenged subpoenas," the district court concluded that the subpoenas were "effectively mooted." The court thus withheld action on the motion to quash. Subsequently, on March 23, the PRDOJ filed suit to compel the release of the requested records.

C. Proceedings Before the District Court

Puerto Rico's complaint in No. 06-1306 sought a declaratory judgment recognizing its right "to conduct a full investigation into the events leading to the death of Mr. Ojeda Rios," and an order "permanently enjoining Defendants from withholding any information relevant to the Commonwealth's investigation and ordering Defendants to comply with the Commonwealth's requests and produce the subpoenaed information, objects and documents[.]" The complaint in No. 06-1305 sought identical relief with respect to Puerto Rico's "investigation into the events allegedly leading to the injury of members of the press and/or the public . . . on February 10, 2006, due to the alleged use of excessive force (including the alleged use of pepper spray) by FBI agents[.]"

In each complaint, Puerto Rico articulated five causes of action which entitled it to its requested relief. First, it stated that the FBI's decisions were not premised upon any federal regulation or statute. Second, it stated that the FBI's decisions exceeded any authority granted by the Housekeeping Act, 5 U.S.C. § 301. Third, it asserted a nonstatutory cause of action to vindicate its constitutional sovereign authority to enforce its criminal laws by obtaining the requested information. Fourth, it contended that APA review was "unwarranted" because such review "would impose an undue burden on the exercise of sovereign criminal authority that would run afoul of the Tenth Amendment." Finally, Puerto Rico claimed that, even if reviewed under the APA, the FBI's decision to withhold the information was arbitrary, capricious, and an abuse of discretion.

The district court consolidated the cases, the United States moved to dismiss, and Puerto Rico filed a motion for summary judgment. After considering these motions, the district court concluded that Puerto Rico had failed to establish a basis for its requested relief. The court rejected Puerto Rico's first two causes of action, explaining that, although the FBI's internal regulations did not create a substantive right to withhold the information, the regulations incorporated federal common law establishing a privilege for law enforcement materials. The court also dismissed Puerto Rico's third cause of action, holding that Puerto Rico could not assert a nonstatutory cause of action, based on its sovereign right to enforce its criminal laws, to obtain the requested materials. The court thus...