The opinion of the court was delivered by: David G. Larimer United States District Judge
The issue in this case is whether a Department of Justice ("DOJ") official was arbitrary and capricious in directing an FBI agent to decline to testify or produce documents in a New York State court proceeding. This action was commenced under the Administrative Procedure Act, 5 U.S.C. §§ 701-706. Plaintiff seeks a finding from this Court that the DOJ official, Acting United States Attorney Kathleen M. Mehltretter ("Mehltretter"), arbitrarily and capriciously precluded FBI Special Agent Mark Thompson ("Agent Thompson") from responding to specific inquiries posited by plaintiff's counsel.
Plaintiff, Joseph Miller, Jr. ("Miller"), a police officer with the Elmira Police Department, was charged by indictment in Chemung County Court with serious offenses relating to the theft of money and property from the Property Clerk's Office at the Elmira Police Department. Eventually, on March 18, 2004, Chemung County Court Judge Michael Buckley dismissed the indictment against Miller in the "interests of justice," N.Y. CRIM. P.L.§ 210.40. As required by New York statute, under CPL § 160.50(1)(d), whenever a charge is dismissed, a sealing order issues which, among other things, precluded law enforcement agencies from disseminating their documents concerning the prosecution. In fact, a written sealing order was generated by the Clerk in this case.
In a nutshell, plaintiff contends that in spite of that sealing order, former Chief of Police James Waters ("Chief Waters"), and others connected with the Elmira Police Department, caused certain files and records to be turned over to federal officials, in the hopes that a federal prosecution might ensue.
Because of these allegations, a contempt proceeding against Chief Waters was commenced before Judge Buckley in Chemung County Court. There were several days of testimony and numerous exhibits received before Judge Buckley. It was clear that Judge Buckley was interested in the circumstances under which Agent Thompson got certain records, whether he got them from Chief Waters, whether Chief Waters occasioned the New York State Police to turn over their records and, ultimately, whether Chief Waters was in contempt of the sealing order if he engaged in any of those activities.
It is clear that Judge Buckley believed Agent Thompson's testimony to be highly relevant. He so ruled and a subpoena was issued by the Court for Agent Thompson to testify. On July 1, 2005, plaintiff's attorney sent a detailed letter (Dkt. #8, Ex. D, Mehltretter Aff., ex. A) to Mehltretter setting forth the substance of the testimony that he wished to elicit from Agent Thompson.
The Government moved to quash the subpoena before Judge Buckley (Dkt. #8, Ex. D). In support of the Government's motion, Mehltretter responded seriatim, to each of plaintiff's counsel's requests (Dkt. #8, Ex. E). Some were not objected to and Agent Thompson testified as to those matters. As to many of the requests, though, which Judge Buckley deemed to be relevant, Mehltretter, through Assistant United States Attorney Christopher V. Taffe,*fn1 directed Agent Thompson not to testify before Judge Buckley. The state contempt proceeding, therefore, has been stayed to allow plaintiff's counsel to commence this proceeding to review Mehltretter's decision.
Currently pending are the parties' cross-motions for summary judgment (Dkts. ## 7 and 17).
The starting point for analyzing the issues presented before this Court is the doctrine of sovereign immunity. It is well settled that "the United States and its agencies may not be subject to judicial proceedings unless there has been an express waiver of [sovereign] immunity." E.P.A. v. General Elec. Co., 197 F.3d 592, 597 (2d Cir.1999) ("EPA I") (citing Block v. North Dakota ex rel. Bd. of Univ. and School Lands, 461 U.S. 273, 287 (1983)); see also In re S.E.C. ex rel. Glotzer, 374 F.3d 184, 190 (2d Cir.2004) ("Absent a waiver of sovereign immunity, a federal agency, as representative of the sovereign, cannot be compelled to act.") (internal quotation marks omitted).
In the case at bar, plaintiff seeks to compel Mehltretter to authorize Agent Thompson's testimony concerning matters within the scope of the County Court subpoena. To maintain this action and to obtain the relief requested, there must be a waiver of sovereign immunity.
This waiver of immunity is found in the Administrative Procedure Act ("APA"), at 5 U.S.C. § 702, which provides that:
An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States.
The United States, therefore, has consented to be sued under the circumstances presented in this case. See Glotzer, 374 F.3d at 190 ("a motion to compel agency compliance with a subpoena qualifie[s] as an 'action' seeking review of 'agency action' for purposes of APA § 702, and, therefore,. a federal court's consideration of such a motion [does] not violate sovereign immunity.") (citing and upholding EPA I, 197 F.3d at 599); Abdou v. Gurrieri, No. 05-CV-3946, 2006 WL 2729247 (E.D.N.Y. Sept. 25, 2006) (reviewing under APA § 702 the decision of the DOJ not to produce documents pursuant to subpoena, and holding that such proceedings did not violate sovereign immunity).
Review of Agency Action Under the APA
The United States' consent to be sued, however, is limited. Pursuant to § 706 of the APA, a federal court may "hold unlawful and set aside agency action, findings, and conclusions" only if it finds them to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(a). "[T]he scope of review under the 'arbitrary and capricious' standard is narrow and a court is not to substitute its own judgment for that of the agency." Motor Veh. Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Furthermore, the agency action under review is "entitled to a presumption of regularity." Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971), abrogated on other grounds, Califano v. Sanders, 430 U.S. 99 (1977).
The Second Circuit has characterized the court's review under the APA as "particularly deferential." Envtl. Def. v. E.P.A., 369 F.3d 193, 201 (2d Cir.2004). In this respect, the court "may not assess the wisdom of an agency's choice; inquiry is limited instead to whether the [agency] has made a clear error of judgment." Falk v. Sec'y of the Army, 870 F.2d 941, 945 (2d Cir.1989). Moreover, the burden of persuasion is on the party challenging the agency's decision. Frisby v. U.S. Dep't of Hous. and Urban Dev., 755 F.2d 1052, 1055 (3d Cir.1985).
The DOJ's Touhy Regulations
In the instant case, Mehltretter decided not to authorize Agent Thompson's testimony regarding specific matters within the scope of the County Court subpoena. Her decision was based on the application and interpretation of the DOJ's "Touhy" regulations, set forth at 28 C.F.R. § 16.21 et seq.*fn2
Pertinent in this case are 28 C.F.R. §§ 16.22 and 16.26. Section 16.22(a) provides that, In any federal or state case or matter in which the United States is not a party, no employee or former 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 . . . .
Section 16.26 then enumerates the factors the DOJ official must consider in determining whether production or disclosure should be made pursuant to a demand,*fn3 and provides as follows:
(a) In deciding whether to make disclosures pursuant to a demand, Department officials and attorneys should consider:
(1) Whether such disclosure is appropriate under the rules of procedure governing the case or matter in which the demand arose, and
(2) Whether disclosure is appropriate under the relevant substantive law concerning privilege.
(b) Among the demands in response to which disclosure will not be made by any Department official are those demands with respect to which any of the following factors exist:
(1) Disclosure would violate a statute, such as the income tax laws, 26 U.S.C. 6103 and 7213, or a rule of procedure, such as the grand jury secrecy rule, F.R.Cr.P., Rule 6(e),
(2) Disclosure would violate a specific regulation; (3) Disclosure would reveal classified information, unless appropriately declassified by the originating agency,
(4) Disclosure would reveal a confidential source or informant, unless the investigative agency and the source or informant have no objection,
(5) Disclosure would reveal investigatory records compiled for law enforcement purposes, and would interfere with enforcement proceedings or disclose investigative techniques and procedures the effectiveness of which would thereby be impaired,
(6) Disclosure would improperly reveal trade secrets without the owner's consent.
Subpoenaed Testimony and Documents
The subpoena here sought testimony and documents from Agent Thompson regarding events that occurred during a three-moth time period between March 2, 2004 and May 31, 2004. In all, plaintiff's requests concerned 13 discrete areas of inquiry ("Requests 1-13"). ...