United States v. Ragen, 9916.

• Decision Date: 24 February 1950
• Docket Number: No. 9916.,9916.
• Citation: 180 F.2d 321
• Parties: UNITED STATES ex rel. TOUHY v. RAGEN, Warden, et al.
• Court: U.S. Court of Appeals — Seventh Circuit

180 F.2d 321 (1950)

UNITED STATES ex rel. TOUHY v. RAGEN, Warden, et al.

No. 9916.

United States Court of Appeals Seventh Circuit.

February 24, 1950.

Otto Kerner, Jr., U. S. Atty., John Peter Lulinski, Anthony Scariano, Asst. U. S. Attorneys, Chicago, Ill., for petitioner.

Robert B. Johnstone, Howard Bryant, James A. Howell, Chicago, Ill., for respondent.

Before MAJOR, Chief Judge, FINNEGAN and LINDLEY, Circuit Judges.

MAJOR, Chief Judge.

Roger Touhy, relator in the court below, sued out a writ of habeas corpus against Joseph E. Ragen, Warden of the Illinois State Penitentiary, Joliet, Illinois, respondent in the court below, on the ground that he had been unlawfully convicted and was being illegally detained by respondent in violation of relator's constitutional rights. While the allegations of the petition for writ of habeas corpus are of little consequence in relation to the matter before us, it may be pertinent to note that it was alleged, among other things, that certain authorities of the State of Illinois and Cook County, Illinois, conspired to convict relator of kidnapping one John (Jake the Barber) Factor, and that relator was singled out for arrest, tried and convicted for a crime which never occurred.

While the habeas corpus matter was being heard in the District Court before Honorable John P. Barnes, and on May 13, 1949, counsel for relator caused a subpoena duces tecum to be issued, directed at George R. McSwain, Special Agent in charge of the Chicago office of the Federal Bureau of Investigation, and the Honorable Tom C. Clark, Attorney General of the United States, "c/o Otto Kerner, Jr., United States Attorney." The subpoena was served upon McSwain and service on the Attorney General was attempted by serving the United States Attorney for the Northern District of Illinois. The subpoena commanded that the named persons produce before the District Court "certain records of investigation made and statements of witnesses taken and procured in connection with the alleged kidnapping of John (Jake the Barber) Factor in and about Chicago, Cook County, Illinois in the months of July and August, 1933, including specifically transcript, records, memoranda, and other data with respect to certain show ups held in the offices of the Federal Bureau of Investigation, Chicago, Illinois, on or between the dates of July 19 to July 24, 1933, inclusive, together with all copies, drafts, and vouchers relating to the said documents, and all other documents, letters, and paper writings whatsoever, that can or may afford any information or evidence in said cause."

On June 1, 1949, McSwain personally and by the District Attorney as his counsel appeared in response to the subpoena duces tecum, and Mr. Robert B. Johnstone appeared for the relator. After an extended colloquy between the respective attorneys and the court, McSwain took the witness stand. More will be said later concerning the happenings in court, but at this point it is sufficient to note that McSwain, acting under instructions from the Attorney General, declined to produce the material commanded by the subpoena, and as justification for such refusal relied upon Department of Justice Order No. 3229, and Supplement No. 2 to said order, dated June 6, 1947. The court, on June 2, 1949, in the order appealed from adjudicated McSwain guilty of contempt of court because of his refusal to produce the records called for in the subpoena and directed that he be committed to the custody of the Attorney General of the United States or his authorized representative for imprisonment "until he shall obey the Order of this Court and produce to this Court the records referred to in the Subpoena Duces Tecum or until discharged by due process of law."

Title 5 U.S.C.A. § 22, R.S.Par. 161, in effect since 1872, provides: "The head of each department is authorized to prescribe regulations, not inconsistent with law, for the government of his department, the conduct of its officers and clerks, the distribution and performance of its business, and the custody, use, and preservation of the records, papers, and property appertaining to it."

The Attorney General of the United States, on May 2, 1939, pursuant to the authority vested in him by this statutory provision, promulgated Order No. 3229, which provides:

"All official files, documents, records and information in the offices of the Department of Justice, including the several offices of United States Attorneys, Federal Bureau of Investigation, United States Marshals, and Federal penal and correctional institutions, or in the custody or control of any officer or employee of the Department of Justice, are to be regarded as confidential. No officer or employee may permit the disclosure or use of the same for any purpose other than for the performance of his official duties, except in the discretion of The Attorney General, The Assistant to The Attorney General, or an Assistant Attorney General acting for him.

"Whenever a subpoena duces tecum is served to produce any of such files, documents, records or information, the officer or employee on whom such subpoena is served, unless otherwise expressly directed by The Attorney General, will appear in court in answer thereto and respectfully decline to produce the records specified therein, on the ground that the disclosure of such records is prohibited by this regulation."

Putting aside for subsequent discussion Supplement No. 2, we shall first consider the relator's contention that Order No. 3229 is unauthorized by the statutory provision and is therefore invalid, or if it is in conformity, the statutory enactment is unconstitutional. This is on the theory, as we understand, that such a regulation is not "not inconsistent with law," as provided by the statute, for the reason that it represents an invasion by the executive department of the government upon the inherent power of the judiciary. And from a statement appearing in colloquy this appears to have been the reasoning of the District Judge.

That this contention is not sound is forcibly demonstrated by the cases, the more important of which are Boske v. Comingore, 177 U.S. 459, 20 S.Ct. 701, 44 L.Ed. 846; Rosen et al. v. United States, 245 U.S. 467, 38 S.Ct. 148, 62 L.Ed. 406; Ex parte Sackett, 9 Cir., 74 F.2d 922; Fussell et al. v. United States, 5 Cir., 100 F.2d 995, and In re Valecia Condensed Milk Co., 7 Cir., 240 F. 310 (there are many District Court opinions to the same effect). By these same cases it is equally well established that courts have no jurisdiction or power to punish executive officers or employees for obeying the orders or instructions of their superiors in adhering to regulations promulgated pursuant to statutory authority and requiring them to refuse to disclose or divulge information, records, documents or other data.

In the Boske case, supra, the Collector of Internal Revenue refused the production of certain reports made by distillers which were in his custody as an officer of the United States Treasury Department, and for such refusal was adjudged to be in contempt of court. The Collector's refusal was based upon a regulation substantially the same as Order No. 3229 here relied upon, and was promulgated under the authority of the same statutory provision. The court, in reversing the order adjudicating that the Collector was in contempt, among other things stated, 177 U.S. at page 469, 20 S.Ct. at page 705: "The papers in question, copies of which were sought from the appellee, were the property of the United States, and were in his official custody under a regulation forbidding him to permit their use except for purposes relating to the collection of the revenues of the United States. Reasons of public policy may well have suggested the necessity, in the interest of the government, of not allowing access to the records in the offices of collectors of internal revenue, except as might be directed by the Secretary of the Treasury. The interests of persons compelled, under the revenue laws, to furnish information as to their private business affairs would often be seriously affected if the disclosures so made were not properly guarded. Besides, great confusion might arise in the business of the department if the Secretary allowed the use of records and papers in the custody of collectors to depend upon the discretion or judgment of subordinates. At any rate, the Secretary deemed the regulation in question a wise and proper one, and we cannot perceive that his action was beyond the authority conferred upon him by Congress. In determining whether the regulations promulgated by him are consistent with law, we must apply the rule of decision which controls when an act of Congress is assailed as not being within the powers conferred upon it by the Constitution; that is to say, a regulation adopted under § 161 of the Revised Statutes should not be disregarded or annulled unless, in the judgment of the court, it is plainly and palpably inconsistent with law. Those who insist that such a regulation is invalid must make its invalidity so manifest that the court has no choice except to hold that the Secretary has exceeded his authority and employed means that are not at all appropriate to the end specified in the act of Congress." The court concluded, 177 U.S. at page 470, 20 S.Ct. at page 706, by stating that "the Secretary * * * may take from a subordinate, such as a collector, all discretion as to permitting the records in his custody to be used for any other purpose than the collection of the revenue, and reserve for his own determination all matters of that character." In that case, as here, the contention was made that the regulation was inconsistent with law. In denying such contention, the court stated, 177 U.S. at page 469, 20 S.Ct. at page 705: "There is certainly no statute which expressly or by necessary implication forbade the adoption of such a regulation. This being the case, we do...