Smith v. Cromer

Citation159 F.3d 875
Decision Date22 October 1998
Docket NumberNo. 97-2192,97-2192
PartiesAndrea SMITH; Gregory Welsh; Larry Hornstein, Petitioners-Appellees, v. James CROMER, Respondent-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

ARGUED: Nancy Susanne Forster, Office of Public Defender, Baltimore, Maryland, for Appellant. Albert David Copperthite, Assistant United States Attorney, Baltimore, Maryland, for Appellees. ON BRIEF: Lynne A. Battaglia, United States Attorney, Baltimore, Maryland, for Appellees.

Before WILKINSON, Chief Judge, PHILLIPS, Senior Circuit Judge, and VOORHEES, United States District Judge for the Western District of North Carolina, sitting by designation.

Affirmed by published opinion. Judge RICHARD L. VOORHEES wrote the majority opinion, in which Chief Judge WILKINSON joined. Senior Judge PHILLIPS wrote a dissenting opinion.

OPINION

RICHARD L. VOORHEES, District Judge:

In this case, employees of the United States Department of Justice were subpoenaed to testify in a state criminal prosecution in direct contravention of DOJ regulations. Appellant Cromer, the defendant in the state case, subpoenaed appellees, Assistant United States Attorneys ("AUSA's") Smith and Welsh and Drug Enforcement Administration Agent Hornstein. His purpose was to compel their testimony at trial and to compel production by the Government of his Confidential Informant file in order to facilitate preparation of his defense to state narcotics charges. The Government removed the case from Maryland state court to federal district court pursuant to 28 U.S.C. § 1442(a)(1). The district court granted the Government's motion to institute a protective order and to quash subpoenas. Cromer filed the instant appeal, seeking reversal of the district court's order. We affirm the order of the district court.

I.

Appellees Andrea Smith and Gregory Welsh are Assistant United States Attorneys for the District of Maryland, and Appellee Larry Hornstein is a special Agent with the Drug Enforcement Administration. Appellees (hereinafter, the "Government") are employees of the Department of Justice and are subject to rules and regulations promulgated by the Department of Justice regarding the release of document and provision of testimony in court actions. 28 C.F.R. § 16.21 et seq. Appellant Cromer (hereinafter, "Cromer") served as a DEA confidential informant ("CI") from June 1994 through November 1995, until he was indicted on two charges of delivering heroin to a state informant in November 1995.

In preparation for his criminal trial, Cromer subpoenaed Smith, Welsh, and Hornstein for their testimony at trial and also served subpoenas duces tecum for certain documents, i.e., "any and all letters, memorandums, and notes written in reference to or on behalf of ... [Cromer] ... to any judge, probation officer, parole commission, attorney or pretrial detention service division in the federal and/or state system" (to Smith and Welsh), and the entire contents of his Cooperating Individual File (to Agent Hornstein).

The state court judge, Circuit Court Judge Thomas Waxter, Jr., performed an in camera review of Cromer's Cooperating Individual File, and, finding the information contained therein to be discoverable pursuant to Zaal v. Maryland, 326 Md. 54, 602 A.2d 1247 (1992), ordered the Government to produce the file to Cromer's defense attorney. In response, the Government removed the matter to federal district court, moved for a protective order and moved to quash the subpoenas.

Following a hearing, District Judge William M. Nickerson analyzed the competing interests of the parties and weighed Cromer's due process rights to the evidence he sought against the Government's prerogative to resist having its employees subpoenaed to testify in state court. The district court found that Cromer had raised an insufficient basis to compel the Government to disclose confidential information and that Cromer had alternative access to the information he sought. For those reasons, and "in light of the policies underlying sovereign immunity," the district court granted the Government's motion for protective order and motion to quash the subpoenas.

II.

The issue on appeal is whether the doctrine of sovereign immunity divests the district court of jurisdiction to enforce the subpoenas. We agree with the district court that it does.

The Government moved to quash the subpoenas on the basis of Justice Department regulations promulgated under the authority of the "Housekeeping Statute," 5 U.S.C. § 301, which provides:

The head of an Executive 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.

Regulations applicable to the production and disclosure of information by the Justice Department in federal and state proceedings are found at 28 C.F.R. § 16.21, et seq. Section 16.22(a) provides:

In any federal or state case or matter in which the United States is not a party, no employee ... of the Department of Justice shall, in response to a demand, produce any material contained in the files of the Department, or disclose any information relating to or based upon material contained in the files of the Department, or disclose any information or produce any material acquired as part of the performance of that person's official duties or because of that person's official status without prior approval of the proper Department official....

The Department of Justice regulations at issue here clearly fall within the terms of the first sentence of the Housekeeping Statute. That regulation prescribes the conduct of employees, the performance of the agency's business, and the use of its records. In re Boeh, 25 F.3d 761 (9th Cir.1994). Any doubt as to the validity of the regulation's requirement of prior approval is foreclosed by the Supreme Court's decision in United States ex rel. Touhy v. Ragen, 340 U.S. 462, 468, 71 S.Ct. 416, 95 L.Ed. 417 (1951), which upheld the validity of a predecessor to 28 C.F.R. § 16.22(a). Id. Appellees may not be forced to comply with the subpoenas if a valid regulation required them not to comply. 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 it directs Appellees not to testify without prior approval of the proper Department official.

In determining whether to provide information in response to a demand, such as the subpoenas in the instant case, the Justice Department considers, among other things, whether disclosure would reveal a confidential source, reveal investigative records compiled for law enforcement purposes, disclose investigative techniques, or interfere with enforcement proceedings. 28 C.F.R. § 16.26(b)(4) and (5). If so, disclosure is forbidden under the regulations, unless the Justice Department determines that the "administration of justice requires disclosure." 28 C.F.R. § 16.26(c). The interests to be protected present a strong policy basis supporting the Justice Department's determination not to reveal its own information which it considers to be critical to the effective operation of the agency.

The instant appeal originated as a motion to quash subpoenas issued in a state court action and removed to federal district court under 28 U.S.C. § 1442. In Boron Oil Co. v. Downie, 873 F.2d 67 (4th Cir.1989), a private litigant filed a civil action in state court, and sought the testimony of Downie, an EPA employee, regarding information Downie had obtained while investigating a gas leak. Initially, Downie agreed to testify. However, the EPA district counsel later determined that Downie would not be allowed to testify. This determination was based upon an EPA regulation, which provides, among other things, that requests for employees' testimony and production of documents will be approved "... when clearly in the interests of the EPA." 40 C.F.R. § 2.401.

The district court conducted a hearing, and enforced the subpoenas based upon findings that the information sought was not privileged, that Downie was in the best position to provide the information "which was essential to the fair administration of justice in the civil action," and that the interference and inconvenience to the EPA would be minimal. Boron Oil Co. v. Downie, 873 F.2d at 68. The district court rejected the defense of sovereign immunity because neither the United States nor the EPA were named parties. This court reversed, holding that a state court, and federal court on removal, lacked jurisdiction to compel a federal employee to testify concerning information acquired during the course of his official duties, in a state court civil action to which the United States was not a party. Boron Oil Co. v. Downie, 873 F.2d at 69-71.

It is clear that a federal court's jurisdiction upon removal under 28 U.S.C. § 1442(a)(1) is derivative of the state court jurisdiction, and where the state court lacks jurisdiction over the subject matter or the parties, the federal court acquires none upon removal, even though in a like suit originally brought in federal court, the court would have had jurisdiction. Boron, 873 F.2d at 70. It is also clear 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 the governmental privilege of sovereign immunity. Boron, 873 F.2d at 69. Where an agency has not waived its immunity to suit, the state court (and the federal court on removal) lacks jurisdiction to proceed against a federal employee acting pursuant to agency direction. Id.

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