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No. 07-685

 

In the Supreme Court of the United States

COMMONWEALTH OF PUERTO RICO, PETITIONER

v.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
JEFFREY S. BUCHOLTZ
Acting Assistant Attorney
General
MARK B. STERN
ALISA B. KLEIN
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

 

 

 

QUESTION PRESENTED

Whether the Commonwealth of Puerto Rico may compel the federal government to provide it with infor mation and materials concerning federal law enforce ment operations, for the purpose of investigating those federal operations.

In the Supreme Court of the United States

No. 07-685

COMMONWEALTH OF PUERTO RICO, PETITIONER

v.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The decision of the court of appeals (Pet. App. 1-49) is reported at 490 F.3d 50. The decision of the district court (Pet. App. 52-92) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on June 15, 2007. A petition for rehearing was denied on August 29, 2007 (Pet. App. 94). The petition for a writ of certiorari was filed on November 21, 2007. The jurisdic tion of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Federal agencies, including the Department of Justice (Department), have promulgated regulations that prohibit an agency employee from responding to a subpoena without agency permission. Such regulations are known as Touhy regulations, a reference to this Court's decision upholding the validity of such regula tions. United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).

The Department's current Touhy regulations, codi fied at 28 C.F.R. 16.21 et seq., prohibit employees from producing material relating to their official duties with out prior approval of the proper Justice Department official. 28 C.F.R. 16.22(a). The regulations set forth a non-exclusive list of instances in which approval should be denied, 28 C.F.R. 16.26(b), including instances in which "[d]isclosure would reveal investigatory re cords compiled for law enforcement purposes, and would interfere with enforcement proceedings or disclose in vestigative techniques and procedures the effective- ness of which would thereby be impaired," 28 C.F.R. 16.26(b)(5).

2. This case arises out of the efforts of the Federal Bureau of Investigation (FBI) to apprehend a fugitive, Filiberto Ojeda Ríos (Ojeda). In the 1970s, Ojeda helped found the Macheteros, an organization that advo cates independence for Puerto Rico through armed struggle against the United States government. Pet. App. 3. In 1983, the Macheteros stole $7.1 million from a bank in Connecticut. Ibid. When the FBI appre hended Ojeda in 1985, he shot an FBI agent in the face, permanently blinding the agent in one eye. Ibid. Fol lowing a trial in Puerto Rico, Ojeda was acquitted of assaulting the agent. Ibid. He skipped bail while on tri al for bank robbery and was sentenced in absentia in 1992. Ibid. Fifteen years later, in September 2005, the FBI attempted to apprehend Ojeda at his residence in Hormigueros, Puerto Rico. Ibid. Ojeda shot two FBI agents and was fatally wounded. Ibid.

Based on information obtained from Ojeda's resi dence, the FBI obtained a search warrant for a residen tial condominium in San Juan, Puerto Rico. Pet. App. 5. When the FBI executed the search warrant in February 2006, a large group of protesters, reporters, and mem bers of the public gathered outside. Ibid. Some of those individuals breached an established police line, and an FBI agent used pepper spray to keep people behind the line. Ibid.

The Commonwealth of Puerto Rico (Commonwealth) seeks to investigate those FBI operations. In October 2005, a Commonwealth prosecutor issued a subpoena pursuant to Puerto Rico law, directing the United States Attorney to produce materials including: (1) a copy of the "Operation Order" establishing the plan or rules of engagement for the FBI raid on Ojeda's residence; (2) the name, rank, division, address, and telephone number of every person who participated in, knew of, or made any decision regarding the operation, as well as an orga nizational diagram showing the rank of these individuals in the line of command; (3) various equipment, including but not limited to all bullet-proof vests, helmets, weap ons, and vehicles involved in the raid; (4) any inventory of the property seized during the raid; (5) copies of any expert reports relating to the raid or Ojeda's death; and (6) copies of any relevant general FBI protocols, includ ing those relating to violent interventions and poten tially deadly force. Pet. App. 3-4. In subsequent corre spondence, the Commonwealth stated that the requests related to a "criminal investigation" into Ojeda's death. Id. at 4.

The Commonwealth issued similar subpoenas de manding the production of materials pertaining to the FBI's execution of the search warrant in February 2006. Pet. App. 5. The Commonwealth demanded: (1) the name, rank, division, address, and telephone number of the two FBI agents who allegedly used pepper spray; (2) official photographs of those agents; and (3) internal FBI protocols relating to the use of force and pepper spray. Id. at 5-6.

The FBI declined to produce the requested materi als, explaining that the Department's Touhy regulations prohibit the disclosure of records compiled for law en forcement purposes. Pet. App. 4, 29. The FBI indi cated, however, that Commonwealth prosecutors would be allowed to examine the bulletproof vests, helmets, weapons, and vehicles used during the raid and the pho tographs taken before, during, and after the raid, as long as the FBI retained official custody of the items and an FBI official was present during the inspection. Id. at 4-5.

3. The Commonwealth brought suit in district court, seeking a declaratory judgment that it has a 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 or dering Defendants to comply with the Commonwealth's request and produce the subpoenaed information, ob jects, and documents." Pet. App. 6-7. The Common wealth sought identical relief with respect to its "inves tigation into the events allegedly leading to the injury of members of the press and/or the public . . . on Febru ary 10, 2006, due to the alleged use of excessive force (including the alleged use of pepper spray) by FBI ag ents." Id. at 7.

The district court dismissed the complaints. Pet. App. 52-93. Noting the FBI's interest in maintaining the confidentiality of sensitive law enforcement tech niques, the court held that the FBI's decision to with hold materials relating to the Ojeda raid was not arbi trary or capricious under the Administrative Procedure Act (APA), 5 U.S.C. 551 et seq. Pet. App. 8. With re spect to the subpoena relating to the execution of the search warrant, the court held that there had been no final agency action because the Commonwealth, which had indicated that it did not intend to enforce the sub poena, had failed to take steps to secure a final agency decision. Id. at 6, 84-85.

4. The court of appeals affirmed. Pet. App. 1-49. The court first rejected the Commonwealth's contention that its sovereign interests entitle it to pursue a "non statutory" cause of action independent of the APA. Id. at 9-18. The court explained that, "when a state's inter est in investigating the agents of a federal law enforce ment entity arguably conflicts with that federal entity's need to protect certain information relating to law en forcement activities, Congress has provided a mecha nism-the APA-for resolving these conflicts." Id. at 17.

With respect to both subpoenas, the court of appeals determined that the FBI had acted reasonably in declin ing to produce its sensitive law enforcement materials. Pet. App. 18-43. The court explained that disclosure of the materials pertaining to the Ojeda raid "would reveal how the FBI goes about capturing a fugitive who is be lieved to be dangerous, the number and types of person nel used by the FBI in such operations, the way the FBI collects evidence, the FBI's internal operating proce dures in a variety of law enforcement settings, and the way in which law enforcement information is gathered." Id. at 33 (quotation marks omitted). It explained that disclosure of the names and other personal information concerning individual FBI agents would jeopardize the agents' ability to conduct covert operations and expose the agents to harassment. Id. at 36-37, 42. The court concluded that the FBI's interest in maintaining the secrecy of its law enforcement materials was not over come by the Commonwealth's interest in investigating the FBI's operations. Id. at 37-39.1

Concurring, Chief Judge Boudin noted that, because the APA provides the only relevant waiver of sovereign immunity, and no law requires the disclosure of the doc uments that the Commonwealth seeks, the Common wealth has, "at best, * * * an APA suit to challenge agency action as arbitrary and capricious." Pet. App. 43-46. He explained that, while the Commonwealth "is free to conduct criminal investigations," it "is not free to bring a federal or state lawsuit to obtain by court pro cess, at the behest of a state agency, documents and ex hibits controlled by the United States, unless Congress has so provided." Id. at 44. Chief Judge Boudin ob served that the FBI's interest in withholding law en forcement materials "is self-evident and is reflected in both the [Freedom of Information Act (FOIA), 5 U.S.C. 552] categorical exemption [for law enforcement re cords] * * * and in judicial recognition of a law en forcement privilege." Id. at 47.

Senior District Judge Shadur, sitting by designation, also concurred, noting that "the Commonwealth's legiti mate interest in pursuing a possible criminal prosecu tion cannot override the legitimate policy concerns of the United States, as the ultimate sovereign, in not un duly exposing its own law enforcement techniques and personnel against its wishes." Pet. App. 49.

5. The court of appeals denied the Commonwealth's petition for rehearing and rehearing en banc without recorded dissent. Pet. App. 94.

ARGUMENT

The decision of the court of appeals is correct and does not conflict with any decision of this Court or any other court of appeals. The petition for a writ of certio rari should be denied.

1. The Commonwealth contends (Pet. 21-30) that the FBI's decision to withhold its sensitive law enforcement materials should have been subject to de novo review, rather than deferential review under the APA. As the court of appeals held, however, the APA, including its arbitrary-and-capricious standard of review, provides the only potential basis for review. Pet. App. 12-18; id. at 44-46 (Boudin, C.J., concurring). The Common wealth's asserted "nonstatutory" cause of action (Pet. 25) simply does not exist. As Chief Judge Boudin ex plained, the Commonwealth "is free to conduct criminal investigations," but "[i]t is not free to bring a federal or state lawsuit to obtain by court process, at the behest of a state agency, documents and exhibits controlled by the United States, unless Congress has so provided." Pet. App. 44. Here, the APA contains the only applicable cause of action and waiver of sovereign immunity.2

Although the Commonwealth alleges (Pet. 21-26) a conflict among the circuits, the cases that it cites are inapposite because they concerned federal district court subpoenas that were governed by the Federal Rules of Civil Procedure. In both Exxon Shipping Co. v. Depart ment of the Interior, 34 F.3d 774 (9th Cir. 1994), and Linder v. Calero-Portocarrero, 251 F.3d 178 (D.C. Cir. 2001), federal district courts issued subpoenas in con nection with underlying litigation. Exxon held that such subpoenas are governed by the general discovery rules set forth in the Federal Rules of Civil Procedure. 34 F.3d at 779. Linder assumed, without deciding, that the federal government is a "person" within the meaning of Rule 45 of the Federal Rules of Civil Procedure, and it therefore applied Rule 45 standards to a subpoena served on federal agencies. 251 F.3d at 180-181.

By contrast, as the Commonwealth admits (Pet. 22 n.6), here there is no underlying litigation and no dis trict court subpoena. Instead, the Puerto Rico Depart ment of Justice purported to issue subpoenas pursuant to Puerto Rico law. See Pet. 9 n.2. The Federal Rules of Civil Procedure thus have no application to these sub poenas, rendering Exxon and Linder inapposite. In deed, Exxon expressly distinguished the federal-court subpoena in that case from subpoenas issued by state courts. 34 F.3d at 778. In the circumstances of this case, therefore, if a federal agency declines to produce documents requested by a state prosecutor's subpoena, "the sole remedy * * * is to file a collateral action in federal court under the APA." Pet. App. 18-19 n.6 (quot ing Houston Bus. Journal, Inc. v. Office of the Comp troller of the Currency, 86 F.3d 1208, 1211-1212 (D.C. Cir. 1996)).

2. The Commonwealth alternatively contends (Pet. 31-38) that the court of appeals erred in determining that the FBI reasonably withheld the law enforcement materials sought by the Commonwealth. That fact- bound issue does not warrant this Court's review. The decision below does not conflict with any decision of an other court of appeals and, indeed, it appears that the issue has never arisen before. See Pet. App. 2 (noting that this case presents "a novel question").

In any event, the decision below is correct. There can be no doubt that the materials sought by the Com monwealth are protected by the law enforcement privi lege. This privilege, which is "rooted in common sense as well as common law," recognizes that "law enforce ment operations cannot be effective if conducted in full public view." Pet. App. 23 (quoting Black v. Sheraton Corp. of Am., 564 F.2d 531, 542 (D.C. Cir. 1977)). Con gress itself "recognized the necessity for such a privi lege in the Freedom of Information Act," which exempts from disclosure documents whose production would "in terfere with enforcement proceedings" or "endanger the life or physical safety of law enforcement personnel." Black, 564 F.2d at 546 & n.9 (quoting 5 U.S.C. 552(b)(7) (1970)). As this Court has explained, in enacting the FOIA exemption, "Congress recognized that law en forcement agencies had legitimate needs to keep certain records confidential, lest the agencies be hindered in their investigations." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 224 (1978).

Although the Commonwealth does not take issue with these established principles, it suggests (Pet. 35-37) that the federal government's interest in maintaining the confidentiality of its law enforcement records must yield to the Commonwealth's interest in investigating the operations of the FBI. The Commonwealth declares that "[t]here is an anomaly in the assertion of a public interest 'privilege' by one governmental entity in order to keep information from another governmental entity that is itself invested with the authority 'to investigate in the public interest.'" Pet. 34 (quoting United States v. O'Neill, 619 F.2d 222, 230 (3d Cir. 1980)). But that argument inverts the principles of federal supremacy on which O'Neill rested. O'Neill declared that "[t]here is an anomaly in the assertion of a public interest 'privi lege' by the City to justify withholding information from a federal Commission charged by Congress to investi gate in the public interest the possible denial of equal protection by, inter alia, local governmental units." O'Neill, 619 F.2d at 230 (emphases added). That case provides no support for the Commonwealth's assertion of unconstrained power to investigate the operations of the federal government.

Finally, the court of appeals correctly determined that the Commonwealth's contention (Pet. 27) that the district should have conducted an in camera examina tion of the materials sought, undertaken an item-by-item balancing of the interests at stake, and considered mea sures such as a protective order, was not made to the district court and was therefore forfeited. Pet. App. 28- 29, 30-31. Moreover, while the Commonwealth objects (Pet. 35) to "categorical" determinations of privilege, the Commonwealth itself made no attempt to differentiate among the materials, and instead sought a broad perma nent injunction barring the federal government "from withholding any information relevant to the Common wealth's investigation, and ordering Defendants to com ply with the Commonwealth's requests and produce the subpoenaed information, objects and documents." Pet. App. 6a-7a.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
JEFFREY S. BUCHOLTZ
Acting Assistant Attorney
General
MARK B. STERN
ALISA B. KLEIN
Attorneys

 

 

FEBRUARY 2008

 

 

1 The court of appeals assumed, without deciding, that there was final agency action with respect to the subpoena pertaining to the exe cution of the search warrant. Pet. App. 39-42.

2 The Commonwealth's reliance (Pet. 17-18) on Maryland v. Soper, 270 U.S. 36 (1926), is misplaced. In Soper, federal employees testified voluntarily, of their own free will, in the course of a state investigation, and this Court upheld the state courts' jurisdiction to prosecute them for testifying falsely. Id. at 39-40, 43. Soper does not suggest, in any

 

way, that the States (or Puerto Rico) may compel federal officials to testify or otherwise produce evidence for purposes of state or local investigations.