Ronald Gillette v. Golden Grove Correctional

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 21-1047

RONALD E. GILLETTE,

Appellant

v.

WARDEN GOLDEN GROVE ADULT CORRECTIONAL

FACILITY

On Appeal from the District Court of the Virgin Islands

(Division of St. Croix)

District Court No. 1-17-cv-00042

District Judge: Honorable Wilma A. Lewis

Argued on May 11, 2022

Before: JORDAN, MATEY and ROTH, Circuit Judges

(Opinion filed: July 16, 2024)

Joseph A. DiRuzzo, III (Argued)

Daniel M. Lader

DiRuzzo & Company

401 East Las Olas Boulevard

Suite 1400

Fort Lauderdale, FL 33301

Counsel for Appellant

Bradley Hinshelwood (Argued)

United States Department of Justice

Room 7256

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

Adam Sleeper

Office of the United States Attorney

5500 Veterans Drive

Suite 260

United States Courthouse

St. Thomas, VI 00802

Angela P. Tyson-Floyd

ffice of the United States Attorney

1108 King Street

Suite 201

Christiansted, VI 00820

Counsel for Appellee

2

OPINION OF THE COURT

ROTH, Circuit Judge.

To aid his pending petition for habeas corpus in the

Virgin Islands Superior Court, Ronald Gillette subpoenaed the

United States Attorney’s Office (USAO) for the District of the

Virgin Islands for documents related to his convictions under

the laws of the Virgin Islands. The federal government is not

a party to the habeas action, and Gillette’s petition does not

challenge any convictions under federal law. When Gillette

did not receive the subpoenaed documents, he moved for

contempt. The USAO removed the proceedings to the District

Court for the District of the Virgin Islands pursuant to 28

U.S.C. §1442(a)(1) and moved to quash the subpoena. Gillette

requested appointment of counsel. The District Court granted

the motion to quash and denied Gillette’s request for counsel.

Gillette appealed.

The government argues that we lack jurisdiction of

Gillette’s appeal because the United States never waived its

sovereign immunity. According to the government, because

there was no waiver, the Superior Court lacked jurisdiction of

Gillette’s subpoena-enforcement action; thus, since the District

Court “derived” its jurisdiction from the Superior Court under

§1442(a)(1), the District Court lacked jurisdiction, as do we.

We do not agree with this interpretation of §1442(a)(1).

We hold to the contrary that we do have jurisdiction of this

3

appeal. For the reasons stated below, we will affirm on the

merits the District Court’s order quashing the subpoena.

I.

Gillette is a serial sex offender. In the 1980s in New

Mexico, he received a twenty-seven-year sentence for sex

crimes. After serving his sentence, Gillette moved to the

United States Virgin Islands, but he did not register as a sex

offender. On a tip, law enforcement found that he had been

living with a fifteen-year-old child and had engaged in sexual

contact with that child and another child. A grand jury indicted

Gillette under both federal and Virgin Islands law. At a bench

trial in the District Court, prosecuted by the USAO, Gillette

was convicted on twenty counts of territorial-law offenses.

The federal charges were dismissed. The court sentenced

Gillette to 155 years’ imprisonment. We affirmed Gillette’s

conviction on direct appeal. 1

After exhausting his direct-appeal rights, Gillette filed a

habeas petition in the Virgin Islands Superior Court. He sought

to subpoena the USAO for its case file from his prosecution,

and the Superior Court issued a subpoena duces tecum to the

USAO. As required by the Department of Justice (DOJ)’s

regulations concerning responses to subpoenas, often referred

to as Touhy regulations, 2 the USAO requested that Gillette

submit “a summary of the information” sought “and its

relevance to the [habeas] proceeding.” 3 He did not do so but

1

United States v. Gillette, 738 F.3d 63, 81 (3d Cir. 2013).

2

See United States ex rel. Touhy v. Ragen, 340 U.S. 462

(1951).

3

JA 42; see 28 C.F.R. § 16.22(d).

4

instead moved for contempt against the USAO for failing to

respond to his subpoena.

The USAO then removed the proceedings to the District

Court for the District of the Virgin Islands under § 1442(a)(1). 4

There, the USAO moved to quash the subpoena, and Gillette

requested appointment of counsel. The Magistrate Judge

granted the motion to quash and denied Gillette’s request for

counsel. The District Court affirmed the Magistrate Judge’s

order on the ground that Gillette did not comply with the DOJ’s

Touhy regulations. Gillette appealed.

II.

The government contends that it never waived its

sovereign immunity and that as a result we lack jurisdiction to

decide this appeal. The government’s immunity argument

depends on the doctrine of “derivative jurisdiction,” which

provides that, when a case is removed to federal court, the

federal court “derives” its jurisdiction from the court from

which the case was removed. 5 Gillette responds that the

government forfeited this argument by raising it for the first

time on appeal. The issue that we must decide then is whether

the doctrine of derivative jurisdiction is a limitation on the

court’s subject-matter jurisdiction, which can be raised at any

4

Section 1442(a)(1) provides generally that a civil action

brought in state court against the United States may be

removed to the “district court of the United States for the

district and division embracing the place wherein it is

pending.” 28 U.S.C. § 1442(a)(1).

5

See Witherow v. Firestone Tire & Rubber Co., 530 F.2d 160,

167–68 (3d Cir. 1976).

5

time, or whether it is a claims-processing rule that is subject to

forfeiture. 6

A.

Gillette asserts that the government forfeited its

sovereign immunity defense by not raising it in the District

Court after removing his subpoena-enforcement action

pursuant to § 1442(a)(1). 7 According to Gillette, the Superior

Court’s lack of jurisdiction was merely a defect in the removal

process. The government disagrees, arguing that derivative

jurisdiction is an essential ingredient in the court’s subject-

matter jurisdiction and that as a result it can be raised at any

time. In the past, we have discussed the doctrine of derivative

jurisdiction as a limit on the courts’ subject-matter

jurisdiction. 8 However, intervening Supreme Court decisions

require us to revisit that approach.

6

We previously addressed this issue in non-precedential

opinions. See Calhoun v. Murray, 507 F. App’x 251, 256 (3d

Cir. 2012) (“[T]he doctrine of derivative jurisdiction, despite

its perhaps improvident name, is best understood as a

procedural bar to the exercise of federal judicial power. That

is, the doctrine creates a defect in removal, but is not an

essential ingredient to federal subject matter jurisdiction.”

(quoting Rodas v. Seidlin, 656 F.3d 610, 619 (7th Cir. 2011)));

Conklin v. Kane, 634 F. App’x 69, 73 n.4 (3d Cir. 2015).

7

Gillette also argues that no issue of sovereign immunity exists

because the Superior Court is a “creature[] of the federal

government.” We need not address that argument given our

holding on the question of derivative jurisdiction.

8

See, e.g., Gleason v. United States, 458 F.2d 171, 173–74 (3d

Cir. 1972) (“If the state court lacks jurisdiction of the subject-

matter or of the parties, the federal court acquires none.”

6

Recognizing that the federal courts have often referred

to non-jurisdictional claims-processing rules as jurisdictional,

the Supreme Court recently “endeavored to bring some

discipline to use of the jurisdictional label.” 9 The Supreme

Court therefore instructs us to “treat a procedural requirement

as jurisdictional only if Congress clearly states that it is.” 10

While Congress does not need to “incant magic words” to

establish a jurisdictional rule, the “traditional tools of statutory

construction must plainly show that Congress imbued a

procedural bar with jurisdictional consequences.” 11

(quoting Lambert Run Coal Co. v. Baltimore & Ohio R.R. Co.,

258 U.S. 377, 379 (1922))). However, more recently, we have

rejected the notion that removal statutes carry jurisdictional

consequences. Korea Exch. Bank, N.Y. Branch v. Trackwise

Sales Corp., 66 F.3d 46, 49 (3d Cir. 1995) (“[T]he Supreme

Court consistently refused to treat the removal statutes as

imposing independent jurisdictional requirements.”).

9

Boechler, P.C. v. Comm’r of Internal Revenue, 596 U.S. 199,

203 (2022) (internal quotation marks omitted); see also

Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 153 (2013)

(discussing the Supreme Court’s effort to “ward off profligate

use of the term ‘jurisdiction’”); Gonzalez v. Thaler, 565 U.S.

134, 141–42 (2012); Henderson ex rel. Henderson v. Shinseki,

562 U.S. 428, 435–36 (2011).

10

Boechler, 596 U.S. at 203 (emphasis added) (internal

quotation marks omitted) (quoting Arbaugh v. Y & H Corp.,

546 U.S. 500, 515 (2006)).

11

Id. at 203 (first quoting Auburn Reg’l Med. Ctr., 568 U.S. at

153; then quoting United States v. Kwai Fun Wong, 575 U.S.

402, 410 (2015)).

7

To decide whether derivative jurisdiction is a truly

jurisdictional rule, we first look to the plain language of the

statute. Section 1442(a)(1) provides the following:

(a) A civil action or criminal prosecution that is

commenced in a State court and that is

against or directed to any of the following

may be removed by them to the district court

of the United States for the district and

division embracing the place wherein it is

pending:

(1) The United States or any agency

thereof or any officer (or any person

acting under that officer) of the United

States or of any agency thereof, in an

official or individual capacity, for or

relating to any act under color of such

office or on account of any right, title

or authority claimed under any Act of

Congress for the apprehension or

punishment of criminal or the

collection of revenue. 12

The text of this section—or, for that matter, any other subpart

of § 1442—does not plainly show that Congress intended the

statute to carry jurisdictional consequences. The section does

not speak in jurisdictional terms, nor does it place any

conditions on a federal court’s power to hear cases that have

12

28 U.S.C. § 1442(a)(1).

8

been properly removed under the statute. 13 It simply allows

the government to remove an action from state to federal court

when the United States or an officer or agency of the United

States is a party to that action. This is not the sort of clear

statement of congressional intent that the Supreme Court

requires. Instead, derivative jurisdiction appears to be a

doctrine of the courts’ own making. 14 “True jurisdictional

limitations are set by the Constitution and by Congress, not by

rules of procedure or judge-made doctrine.” 15

Our conclusion is consistent with the fundamental

principles of removal. Despite its name, removal jurisdiction

is not a type of jurisdiction “analogous to federal-question

jurisdiction and diversity-of-citizenship jurisdiction. Rather, it

is a means of bringing cases within federal courts’ original

jurisdiction into those courts.” 16 As a result, treating derivative

13

Cf. Guerra v. Consol. Rail Co., 936 F.3d 124, 133 (3d Cir.

2019).

14

Fed. Home Loan Mortg. Corp. v. Gilbert, 656 F. App’x 45,

53 (6th Cir. 2016) (Sutton, J., concurring) (noting that the

doctrine “has no constitutional or statutory basis”); Hollis v.

Fla. State Univ., 259 F.3d 1295, 1298 (11th Cir. 2001)

(describing derivative jurisdiction as a “judicially-created

theory”).

15

Metro Life Ins. Co. v. Price, 501 F.3d 271, 278 (3d Cir. 2007)

(citing Kontrick v. Ryan, 540 U.S. 443, 452 (2004)) (cleaned

up).

16

Wright & Miller, 14C Fed. Prac. & Proc. Juris. § 3721 (Rev.

4th ed.) (emphasis added). The government cites Wright &

Miller’s authoritative treatise in support of its argument that

the doctrine is jurisdictional. However, recent editions of the

treatise explain that “[t]he better view … is that derivative

9

jurisdiction as a limitation on the courts’ subject-matter

jurisdiction may produce “intractable oddities.” 17 For

example, if a federal court dismissed a case based on lack of

derivative jurisdiction, it may have refused to hear a case that

it had original jurisdiction over but that the state court did not.

The plaintiff could then of course refile in federal court, but

“the upshot would be the kind of rigmarole unworthy of a

civilized judicial system and indefensible from the standpoint

of practical judicial administration.” 18 That is particularly true

in cases where, as here, the parties litigated the action to a

decision on the merits before the federal court’s jurisdiction

was challenged.

Nor are we persuaded that the purpose of derivative

jurisdiction justifies treating it as a jurisdictional requirement.

The doctrine allows the United States to raise its sovereign

immunity defense in federal court, rather than depending on

state or territorial courts to protect the federal government’s

interests. But treating derivative jurisdiction as a claims-

processing rule does not deprive the government of the chance

to raise the defense in federal court. It merely requires the

government to do so promptly, which it often has done. 19 More

jurisdiction, despite its name, is a procedural defect rather than

a subject matter jurisdiction ingredient.” Wright & Miller, 14C

Fed. Prac. & Proc. Juris. § 3655 (Rev. 4th ed.) (internal

quotation marks omitted).

17

Fed. Home Loan Mortg. Corp., 656 F. App’x at 51 (6th Cir.

2016).

18

Id. at 52 (cleaned up).

19

See Rodas v. Seidlin, 656 F.3d 610, 624 (7th Cir. 2011)

(collecting cases and noting that “in every case we located in

which the Supreme Court discussed the matter of derivative

10

importantly, no matter how compelling, policy considerations

do not answer the operative question: whether Congress

clearly stated that § 1442(a)(1) carries jurisdictional

consequences. A rule “does not become jurisdictional

whenever it promotes important congressional objectives.” 20

For the above reasons, we hold that derivative

jurisdiction is a claims-processing rule and does not deprive us

of jurisdiction of this appeal.

B.

Nevertheless, without textual evidence of congressional

intent, the government relies on several alternative arguments.

First, it points to countervailing guidance from the Supreme

Court that a procedural rule may be treated as jurisdictional

when “a long line of Supreme Court decisions left undisturbed

by Congress attached a jurisdictional label to the

prescription.” 21 However, closer analysis of the line of

decisions cited by the government reveals that the

jurisdictional status of derivative jurisdiction has never been

clear-cut. 22 Most importantly, these decisions show that the

jurisdiction, the matter appears to have been raised promptly

upon removal, prior to adjudication on the merits.”).

20

Fort Bend Cnty. v. Davis, 139 S. Ct. 1843, 1851 (2019)

(internal quotation marks omitted) (quoting Reed Elsevier, Inc.

v. Muchnick, 559 U.S. 154, 169 n.9 (2010)).

21

Id. at 1849 (cleaned up).

22

See, e.g., Lambert Run Coal Co., 258 U.S. 377, 382 (1922)

(holding that the district court’s jurisdiction upon removal is

derivative in only “a limited sense.”).

11

doctrine has long been subject to exception. 23 True

jurisdictional rules are unyielding, so we cannot conclude that

the Supreme Court has always treated derivative jurisdiction as

such. 24

We find further support for our conclusion in our sister

courts of appeals’ treatment of derivative jurisdiction. Courts

in the majority of circuits have decided that the doctrine is a

claims-processing rule, 25 while certain courts have construed it

as jurisdictional at times and a claims-processing rule at

23

The most extensive analysis of the doctrine can be found in

Rodas v. Seidlin, 656 F.3d 610, 622–25 (7th Cir. 2011).

Among other things, the Rodas court notes that the Supreme

Court’s early formulation of the doctrine in Lambert Run is “an

almost verbatim quotation” of the decision in Fidelity Trust

Co. v. Gill Car Co., 25 F. 737 (C.C. Ohio 1885). Rodas, 656

F.3d at 623. In that case, the Circuit Court heavily qualified its

application of the doctrine. Fid. Trust Co., 25 F. at 739 (“I do

not mean to say that we measure our jurisdiction wholly by that

of the state court, and that nothing can be adjudged here which

could not have been adjudged there”).

24

See Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006)

(“subject-matter jurisdiction, because it involves a court’s

power to hear a case, can never be forfeited or waived”).

25

See, e.g., High Lonesome Ranch, LLC v. Bd. of Cnty.

Comm’rs, 61 F.4th 1225, 1240–41 (10th Cir. 2023); Rodas,

656 F.3d at 619; State of N.D. v. Fredericks, 940 F.2d 333,

336–37 (8th Cir. 1991); Morda v. Klein, 865 F.2d 782, 784 (6th

Cir. 1989); Foval v. First Nat’l Bank of Com. in New Orleans,

841 F.2d 126, 129 (5th Cir. 1988); Sorosky v. Burroughs Corp.,

826 F.2d 794, 800–01 (9th Cir. 1987).

12

others. 26 A long and undisturbed line of Supreme Court

decisions treating the doctrine as a jurisdictional rule would not

give rise to such conflicting decisions between (and within) our

sister courts of appeals. 27

We also disagree that Congress acquiesced to a

jurisdictional view of the doctrine. Congress abrogated

derivative jurisdiction under the general removal statute in

1985, but it later clarified that the abrogation applied only to

28 U.S.C. § 1441. 28 According to the government, that

selective abrogation implicitly ratified the doctrine as a

limitation on subject-matter jurisdiction when removal is

premised on any other statute. However, the fact that Congress

26

Compare Louisiana v. Sparks, 978 F.2d 226, 236 (5th Cir.

1992) (treating the doctrine as a jurisdictional rule) and In re

Elko Cty. Grand Jury, 109 F.3d 554, 555 (9th Cir. 1997)

(same), with Foval, 841 F.2d at 129 (treating the doctrine as

non-jurisdictional) and Sorosky, 826 F.2d at 801 (same).

27

See Bowles v. Russell, 551 U.S. 205 (2007). In Bowles, the

Supreme Court relied on a long line of its decisions to hold that

the time limit to take an appeal is a jurisdictional rule. Id. at

214. In doing so, the Court referred to the “consistency of [its]

holdings” as reflected in the fact that the “courts of appeals

routinely and uniformly dismiss untimely appeals for lack of

jurisdiction.” Id. at 210. The same cannot be said of derivative

jurisdiction.

28

28 U.S.C. § 1441(f) (“The court to which a civil action is

removed under this section is not precluded from hearing and

determining any claim in such civil action because the State

court from which such civil action is removed did not have

jurisdiction over that claim.”); see also Lopez v. Sentrillon

Corp., 749 F.3d 347, 350–51 (5th Cir. 2014).

13

did not abrogate the doctrine in all cases does not transform it

into a limitation on subject-matter jurisdiction when it does

apply. 29 Derivative jurisdiction can just as easily remain

applicable as a claims-processing rule, an interpretation of the

doctrine that several federal courts of appeals have endorsed. 30

C.

Because derivative jurisdiction is not an essential

ingredient for the District Court’s subject-matter jurisdiction,

the Superior Court’s lack of jurisdiction is best understood as

a defect in removal. 31 Where, as here, a case is removed to

federal court and litigated to a judgment on the merits, “the

issue in subsequent proceedings on appeal is not whether the

case was properly removed, but whether the federal district

court would have had original jurisdiction of the case had it

29

The cases that the government cites for this argument fail to

convince us otherwise. See Appellee’s Reply to Supp. Br. 2

(citing Lopez, 749 F.3d at 351 (in which the jurisdictional

status of the doctrine was not at issue because derivative

jurisdiction was raised promptly upon removal); Conklin, 634

F. App’x at 73 (explaining that derivative jurisdiction still

applies to removals under § 1442 but that it is better understood

as a non-jurisdictional claims-processing rule)).

30

See High Lonesome Ranch, 61 F.4th at 1240–41 (10th Cir.

2023) (construing the doctrine as a claims-processing rule and

observing that courts of appeals for six other circuits have

similarly construed the doctrine).

31

Rodas, 656 F.3d at 619 (“[T]he doctrine creates a defect in

removal, but is not an essential ingredient to federal subject

matter jurisdiction.”).

14

been filed in that court.” 32 There is no dispute that the District

Court would have had original jurisdiction of Gillette’s

subpoena-enforcement action: the United States waives its

sovereign immunity in non-monetary actions in federal court. 33

Therefore, we proceed to the merits.

III.

We review the District Court’s order on the motion to

quash for abuse of discretion and review its legal conclusions

de novo. 34 Gillette argues that the District Court erred on

several grounds when it quashed his subpoena for failure to

comply with the DOJ’s Touhy regulations. First, he argues that

he did not need to comply with the regulations because the

USAO was a party to his “original proceedings.” Second, he

raises broad challenges to the regulations under the

32

Grubbs v. Gen. Elec. Credit Corp., 405 U.S. 699, 702 (1972).

Because Grubbs supplies the applicable standard on appeal, we

need not address the government’s argument that it preserved

the derivative jurisdiction issue by raising it in the District

Court. Even so, it did not. The government’s motion to quash

mentioned sovereign immunity in passing, but it did not

present any substantive argument regarding the Superior Court

or District Court’s jurisdiction and instead focused on

Gillette’s failure to comply with the Touhy regulations. “We

do not regard such cursory treatment as sufficient to bring the

issue . . . before our Court on appeal.” Barna v. Bd. of Sch.

Dirs. of Panther Valley Sch. Dist., 877 F.3d 136, 148 (3d Cir.

2017).

33

5 U.S.C. § 702.

34

Wedgewood Vill. Pharmacy, Inc. v. United States, 421 F.3d

263, 268 n.5 (3d Cir. 2005).

15

Constitution and the Administrative Procedure Act (APA).

Finally, he argues that the District Court erred by denying his

request for counsel. We reject each argument.

A.

Title 5, Section 301 of the U.S. Code authorizes the

Attorney General to issue regulations concerning the “conduct

of its employees, the distribution and performance of its

business, and the custody, use, and preservation of its records,

papers, and property.” 35 Pursuant to that authority, the DOJ

has issued rules, often called Touhy regulations, that prohibit

its employees from disclosing information contained in,

relating to, or based on material contained in DOJ files as part

of any proceeding to which the United States is not a party,

without prior approval. 36

Under these regulations, a party who seeks such

information from a DOJ employee must first submit a

statement summarizing “the information sought and its

relevance to the proceeding.” 37 Once a party submits that

statement, the DOJ must decide whether and to what extent to

produce the requested information. 38 If a party disagrees with

the scope of production in response to the request, the party

may challenge the production in district court under the APA. 39

In United States ex rel. Touhy v. Ragen, the Supreme Court

35

5 U.S.C. § 301.

36

28 C.F.R. § 16.22(a).

37

28 C.F.R. § 16.22(d).

38

See 28 C.F.R. § 16.24.

39

See, e.g., Davis Enters. v. E.P.A., 877 F.2d 1181, 1186 (3d

Cir. 1989).

16

upheld the validity of this kind of regulation and refused to

hold a federal employee in contempt for declining to produce

documents in accordance with the regulations. 40 We have

similarly recognized that “a federal employee may not be

compelled to obey a subpoena contrary to the agency’s

instructions under valid regulations.” 41

Gillette subpoenaed the USAO for its case file from his

prosecution in the Virgin Islands. Pursuant to the DOJ’s Touhy

regulations, the USAO requested a summary of the information

he sought and its relevance to his habeas proceeding. Rather

than comply with that request, Gillette moved for contempt.

The District Court quashed Gillette’s subpoena based on his

failure to comply with the Touhy regulations. Because the

regulations barred the USAO from obeying the subpoena

absent Gillette’s compliance, and the regulations are valid, the

District Court did not err. 42

i.

Gillette first argues that the Touhy regulations do not

apply because the USAO was “a party to the original legal

proceedings in [his] habeas case.” 43 However, as the District

Court correctly noted, the “original proceeding” for purposes

of the Touhy regulations is the proceeding in which the

subpoena was issued. Here, that is Gillette’s habeas action

currently pending in the Virgin Islands Superior Court. The

USAO is not a party to that proceeding.

40

340 U.S. at 468–69 (1950).

41

Davis Enters., 877 F.2d at 1186.

42

See id.

43

Br. 11.

17

Gillette attempts to avoid this result by arguing that his

habeas action is inherently derivative of his underlying

criminal prosecution. Because the USAO was a party to that

proceeding, he argues that we should also consider it a party to

his habeas proceeding for purposes of the Touhy regulations.

However, Gillette does not cite any authority that supports his

interpretation of the regulations. In fact, the two decisions that

Gillette cites only confirm that we look to the proceeding in

which the subpoena was issued, rather than to any ancillary

proceeding. 44

ii.

Next, Gillette claims that the Touhy regulations violate

the separation of powers and are therefore unconstitutional as

applied. According to Gillette, if we were to enforce the DOJ’s

Touhy regulations, we would permit a party (i.e., the DOJ)

rather than the court to determine what evidence must be

produced in his habeas proceedings. Gillette’s argument fails

because it depends on the premise that the USAO is a party to

his habeas proceeding. But the USAO is not a party to that

proceeding.

44

See Alexander v. F.B.I., 186 F.R.D. 66, 71 (D.D.C. 1998)

(holding that the United States was a party, and therefore that

plaintiffs were not required to comply with applicable Touhy

regulations, because the United States voluntarily substituted

itself for named defendants in the action in which the subpoena

was issued); Bobreski v. E.P.A., 284 F.Supp.2d 67, 78–79

(D.D.C. 2003) (holding that the Secretary of Labor was not a

party under applicable Touhy regulations because the Secretary

was not a party to the administrative proceeding in which the

subpoena was issued).

18

Nor does Gillette have grounds to argue that the

regulations upset the separation of powers by allowing an

executive agency to intrude on the proper function of the

judiciary. Gillette refused to submit the requested summary to

the USAO, so the USAO never made a determination as to the

appropriate scope of production. As the Supreme Court held

in Touhy, the “constitutionality of the Attorney General’s

exercise of determinative power as to whether or on what

conditions … he may refuse to produce government papers

under his charge must await a factual situation that requires a

ruling.” 45 Nevertheless, contrary to Gillette’s claim, the Touhy

regulations prevent the District Court from wading into the

DOJ’s internal record-keeping processes and thus maintain the

separation of powers. Gillette also could have challenged the

scope of production under the APA, so the judiciary ultimately

retained authority over the production of evidence in his

proceeding.

iii.

Gillette also argues that he was not required to comply

with the Touhy regulations because they violate the APA. 46

45

340 U.S. at 469.

46

Separately, Gillette argues that the Touhy regulations violate

the Regulatory Flexibility Act (RFA) and Executive Order

(EO) 12,291. However, the RFA applies only if an agency “is

required . . . to publish a general notice of proposed

rulemaking.” 5 U.S.C. § 603. As discussed infra, rules that

govern agency organization, procedure, and practice are

exempt from the notice-and-comment process under 5 U.S.C.

§ 553(b)(A), so the RFA does not apply here. EO 12,291 is

likewise inapplicable because the DOJ implemented its Touhy

19

Gillette’s arguments rest on the fact that the regulations were

not the product of notice-and-comment rulemaking. However,

rules that govern an agency’s internal organization, procedure,

or practice are exempt from notice-and-comment requirements

under the APA. 47 The DOJ’s Touhy regulations plainly govern

its internal procedures and practices related to the disclosure of

documents. Moreover, the regulations were adopted pursuant

to 5 U.S.C. § 301, construed by the Supreme Court as a

“housekeeping statute” which authorizes only such procedural

rules. 48

Gillette responds that the Touhy regulations are

substantive and therefore subject to notice-and-comment

requirements because they required him to submit a summary

of the information he sought and its relevance to his habeas

proceedings. Not so. Procedural rules do not “shift the rights

or interests of the parties” who appear before the agency,

“although they may change the way in which the parties

regulations before the EO was effective. Compare 45 Fed.

Reg. at 83,208 (Effective Dec. 4, 1980), with 46 Fed. Reg.

13,193 (Effective Feb. 17, 1981).

47

5 U.S.C. § 553(b)(A).

48

Chrysler Corp. v. Brown, 441 U.S. 281, 310 (1979). Gillette

cites Chrysler Corp. for his claim that the Touhy regulations

violate the APA because they “imply that the DOJ may be

entitled to withhold information to some extent beyond that

which is privileged.” Br. at 30. The regulations make no such

implication. They merely establish a process for the DOJ to

review and respond to requests for documents and testimony,

a process with which Gillette refused to comply.

20

present themselves to the agency.” 49 The Touhy regulations

merely prescribe the manner in which Gillette was to present

his document request to the USAO. 50 It does not matter that

the regulations “apply externally” in that they require parties,

like Gillette, to take certain steps in order to receive the

documents that they request. 51 Procedural regulations are not

subject to the notice-and-comment requirement simply

because they have some effect on external parties. 52

Nor are the Touhy regulations arbitrary and capricious.

To evaluate this claim, we ask whether the regulations are a

reasonable exercise of agency authority under 5 U.S.C.

§ 301. 53 It is reasonable for the DOJ to require parties to

submit a summary of any documents sought because its allows

the DOJ to assess (1) the extent to which it must comply with

49

Chao v. Rothermel, 327 F.3d 223, 227 (3d Cir. 2003); see

also SBC Inc. v. F.C.C., 414 F.3d 486, 498 (3d Cir. 2005).

50

See Inova Alexandria Hosp. v. Shalala, 244 F.3d 342, 349–

50 (4th Cir. 2001) (“A rule that simply prescribes the ‘manner

in which the parties present themselves or their viewpoints to

the agency’ does not alter the rights or interest of the parties.”

(quoting JEM Broad Co. v. FCC, 22 F.3d 320, 326 (D.C. Cir.

1994)).

51

Br. 30.

52

See e.g., Pub. Citizen v. Dep’t of State, 276 F.3d 634, 640–

41 (D.C. Cir. 2002) (holding that the State Department’s “cut-

off” policy for FOIA requests was procedural and thus not

subject to notice-and-comment requirements); JEM Broad.

Co., 22 F.3d at 327 (holding that the FCC’s “hard look” rules

were procedural, even though they limited the ability of FCC

license applicants to amend their applications).

53

See Pub. Citizen, 276 F.3d at 640.

21

a party’s request 54 and (2) how the party might narrow their

request if it is not granted in full. 55 The Touhy regulations are

also consistent with the statute’s purpose of “centralizing

determination as to whether subpoena duces tecum will be

willingly obeyed or challenged.” 56

B.

Finally, Gillette appeals the District Court’s denial of

his motion for appointment of counsel under the Criminal

Justice Act, 18 U.S.C. § 3006A(a)(2)(B). That section

provides for appointment of counsel where an individual seeks

relief pursuant to 28 U.S.C. §§ 2241, 2254, or 2255 and “the

United States magistrate judge or the court determines that the

interests of justice so require.” 57

Gillette argues that he is entitled to appointed counsel

because he requires counsel to effectively present his

arguments, has met the indigency requirement, and raises non-

frivolous arguments. But Gillette does not seek relief under §§

2241, 2254, or 2255 in this action. 58 Rather, this dispute was

before the District Court, and is now before us, for the limited

purpose of resolving the USAO’s motion to quash. The

54

See 28 C.F.R. § 16.26.

55

See 28 C.F.R. § 16.24.

56

United States ex rel. Touhy v. Ragen, 340 U.S. 462, 468

(1951).

57

18 U.S.C. § 3006A(a)(2).

58

Moreover, even if we look beyond the instant action to

Gillette’s pending habeas action, he seeks relief pursuant to 5

V.I. Code Ann. tit. 5, § 1303, rather than any of the statutes

enumerated in 18 U.S.C. § 3006A(a)(2)(B).

22

District Court therefore did not err by denying Gillette’s

request for appointment of counsel.

IV.

For the foregoing reasons, we will affirm the judgment

of the District Court.

23