Reply Brief — Olivas v. Boeh

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Sayan cout, Ba

FILED

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(20 JAN 5 1995

No. 94-53

‘Fin. OF THE GLERK

In The ee

Supreme Court of the United States

October Term, 1994

+

ALFREDO OLIVAS,

Petitioner,

RICHARD BOEH, an agent of the Federal

Bureau of Investigation,

Respondent.

*

On Petition For A Writ Of Certiorari

To The United States Court Of Appeais

For The Ninth Circuit

¢

BRIEF FOR PETITIONER IN REPLY

+

STEPHEN YAGMAN

YAGMAN & YAGMAN, FC

723 Ocean Front Walk

Venice, California 90291

(310) 452-3200

Attorneys for Petitioner,

Alfredo Olivas

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

nv)

TABLE OF AUTHORITIES

Cases

Bowsher v. Synar, 106 S.Ct. 3181 (1986)..........

County of Los Angeles v. Davis, 440 U.S. 625 (1979)

Gomez v. Gates, 804 F. Supp. 69 (C.D. Cal. 1992).

INS v. Chadha, 462 U.S. 919 (1963) .... 00.002 eee

Iron Arrow Honor Society v. Heckler, 464 U.S. 67,

SO Sree CEE nic bi ntaes peas Cost edas

Murphy v. Hunt, 455 U.S. 478 (1982).............

NLRB v. Pennsylvania Greyhound Lines, Inc., 303

Ses SR IEE ok ow icc x 64-0 a hea Oa 5 Oe Hs

NLRB v. Raytheon Co., 398 U.S. 25 (1970)........

Shillitani v. U.S., 384 U.S. 364 (1966) ............

State of North Caroline v. Carr, 386 F.2d 129 (4th Cir.

Trevino v. Gates, 23 F.3d 1480 (9th Cir. 1994).....

Trevino v. Gates, 798 F. Supp. 621 (C.D. Cal. 1992)

U.S. Bancorp Mortgage Co. v. Bonner Mall Partner-

WR ETS TE Fee CI oo cb ves eri evnncbes 6s.

U.S. Parole Comm. v. Geraghty, 445 U.S. 388 (1980)

Uae K BIPAM, SIP UB. FES (IPO canoe cc nnscnes'e

U.S. v. W.T. Grant, 345 U.S. 629 (1953)...........

U.S. v. X-Citement Video, Inc., 115 S.Ct. 464 (1994)

TABLE OF AUTHORITIES —- Continued

Page

U.S. ex rel. Touhy v. Ragen, 340 U.S. 462 (1951)....... ]

Wachs v. Trevino By and Through Cruz, 115 S.Ct. 32

CIGO) cc vegacvauivy &b6esschageuereeLeeainee 6

Weinstein v. Bradford, 423 U.S. 147 (1975)............. 6

MiIsCELLANEOUS

S UBL... Fes BO OG ions ceiccs boebe bheeckatessiteiass 9

Ped. B. Con Resi cicacn canescens eee 3

PR. Bveb.. HG. .v.cickdcces caabewisiees aan 4

Fallon, Of Justiciability, Remedies, and Public Law

Litigation: Notes on the Jurisprudence of Lyons, 59

PO. Utes Se. 8 CURED sivvex sue ddscecdaeecarsceyas 10

No. 94-534

¢

In The

Supreme Court of the United States

October Term, 1994

*

ALFREDO OLIVAS,

Petitioner,

RICHARD BOEH, an agent of the Federal

Bureau of Investigation,

Respondent.

¢

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

+

BRIEF FOR PETITIONER IN REPLY

€

The respondent opposes the Petition on the grounds that

the decision below faithfully applied this Court’s decision in

U.S. ex rel. Touhy v. Ragen, 340 U.S. 462 (1951) (Br. at 5-6)

and is not in conflict with a decision of any other circuit court

(Br. at 5), and that, in any event, the issues presented for

review are moot. (Br. at 7-8.) Because neither of these con-

tentions is correct, for the reasons set forth in the Petition,

this Court should grant certiorari.

1. Contrary to respondent’s contention, the decision of

the court below neither applies any decision of this Court,

faithfully or otherwise, nor does it at all deal with the very

narrow issues presented to the court below or to this Court.

Instead, the court below, as is set forth in Judge Norris’

dissent, framed the issue on narrow procedural grounds, and

then decided the case not on the issues raised by petitioner

2

but rather decided the procedural issues it constructed and

avoiced the issues that were tendered to it.

The court below ruled only that, in seeking to adduce

respondent’s testimony, petitioner did it the wrong way — he

sought the testimony with a subpoena, and he should have

used a different method to seek the testimony.

The court below never reached the substantive issues

before it, to wit, did the district court — not the petitioner —

(1) have the power to order respondent to advise the district

court to disclose to the district court, on the record to be

sealed, not under oath, and in camera, information required

by the court to inform its decision how to proceed with the

trial then in progress, see Appendix C filed in this Court

under seal, and (2) did the district court have the power to

order respondent to testify in open court? Neither of these

issues was reached by the court below, though the decision by

the court below in effect denied that the district court had this

power based on the manner in which respondent was brought

before the district court.

This approach to the issues made little sense, and the

court below, in effect, ruled that the district court was without

personal jurisdiction of respondent because respondent was

before the court by way of subpoena served on him. (Respon-

dent’s assertion that “The United States Attorney accepted

service [of the subpoena] on behalf of respondent... ” (Br. at

2) is inaccurate. In fact, petitioner’s counsel personally served

the subpoena on respondent by placing it in respondent’s

hand.)

There can be no question but that, having been served

personally with the subpoena ad testificandum, the district

court had personal jurisdiction of respondent, and the issue

thus clearly was presented whether vel non the district court

possessed the power to issue to respondent its orders. No

precedent of this Court, or any other court, deprived the

district court of that power, but the court below never

addressed that issue.

The district court had jurisdiction of respondent, and

when respondent refused to obey the court’s lawful orders the

3

district court unquestionably had the power to adjudge

respondent in contempt of court.

Petitioner does not challenge the sections of the C.F.R.

under which DOJ operates, or purported to operate in this

case. Petitioner duly subpoenaed respondent, was entitled to

respondent’s testimony no matter what DOJ thought of that,

and when the district court enforced petitioner’s subpoena by

making certain orders to respondent and respondent then

disobeyed those orders, the district court properly exercised

its power of contempt. The only parties before this Court are

petitioner and respondent, and the only legislative enactment

before this Court is Rule 45 of the Federal Rules of Civil

Procedure. The provisions of the C.F.R. on which respondent

relies simply are irrelevant to the district court’s exercise of

its power to enforce the provisions of Rule 45 and its power

of contempt.

Just as the court below sought to shunt this issue onto the

side track of procedural oblivion, respondent here also seeks

to shunt the instant Petition into the bin of mootness. But the

issues raised hardly are moot.

2. Because respondent’s mootness argument (Br. at 7-8)

is based on an invented false premise, and because in any

event either mootness principles do not apply, or, if they

apply, the “capable of repetition, yet evading review” excep-

tion to mootness is applicable, the issues before this Court are

not moot.

First, respondent’s contention that “the district court’s

orders were designed solely to compel respondent to testify at

the trial,” Br. at 7, is not accurate, but is respondent’s precat-

ory gloss that he constructs in order to be able to claim

mootness. Nothing at all in the record supports this baseless

assertion. In fact, the contrary is true.

The district court’s first order, that respondent tell the

district court on the record to be sealed, in chambers, but not

under oath, what respondent knew of the facts of the incident

that formed the basis for the pending trial, had nothing at all

to do with compelling testimony, but rather had to do with the

4

district ourt being able to exercise its power under F.R. Evid.

Rule 103.

Indeed, the district court stated the reasors for its first

order: “to determine the validity of the DOJ’s first order;”

Appendix C at 1, and “to make other decisions required by the

interests of justice in the case pending before the court,

should it be finally determined that Agent Boeh will not be

compelled to testify.” /d. at 2. The district court further

elaborated on its reasoning:

The court’s order was issued to enable the court to

make informed decisions about the following

issues: (1) whether the regulations upon which the

DOJ relied were valid as applied to the exercise of

discretion involved in this cases; (2) if the regula-

tions were invalid as applied, whether, within what

limits, and with what safeguards against impige-

ment on law enforcement objectives, Agent Boeb

should be compelled to testify; and (3) if Agent

Boeh were not compelled to testify, whether a mis-

trial should be declared, or other action taken to

prevent a miscarriage of justice. Specifically, the

court sought to determine whether the information

in Agent Boeb’s possession was dispositive of the

civil case.

Id. at 3. Thus, it was not the case that “the district court’s

orders were designed solely to compel respondent to testify.”

Br. at 7. Clearly, the first order was designed to enable the

court to exercise its power, under Article III of the Constitu-

tion, as a federal court.

Respondent’s disobedience of that order hardly is mooted

by any subsequent events, and the conclusion of the civil

proceeding below is not dispositive of whether the district

court had the power to make the order it made or now has the

power to punish as a contempt of court the disobedience of

that order. Indeed, were this Court to decide that the issue of

the first order is moot, there would be created what the Chief

Justice of this Court characterized as a situation that “would

produce results that were not merely odd, but positively

absurd.” U.S. v. X-Citement Video, Inc., 115 S.Ct. 464, 467

ae

5

(1994). It would be truly anomalous and absurd for respon-

dent’s refusal to obey the district court’s order to be vouched-

safe by the wholly fortuitous subsequent event of the losing

defendants in the underlying civil case having decided to pay

the judgments against them and not to appeal. Surely, the

power and integrity of a federal district court cannot rest on

such happenstance. Indeed, to hold that the first order would

have been rendered moot by this happenstance would be

equivalent of this Court reversing its recent decision dis-

claiming the use of a vacatur in U.S. Bancorp Mortgage Co.

v. Bonner Mall Partnership, 115 S.Ct. 386 (1994). As in

Bonner, because the public has an interest in the issue pre-

sented on this Petition, it would be wrong to permit an after-

the-fact happenstance to render the issue presented moot.

Second, there is no record evidence that the district

court’s contempt orders to respondent were “designed solely

{or at all] to compel respondent to testify at trial.” Br. at 7.

Indeed, as the district court stated on the record, its orders of

contempt were for the sole purpose of enabling the court of

appeals to reach the issues on the merits. (In fact, when the

interlocutory, recalcitrant witness appeal first came before the

court of appeals, the appeal was dismissed because there had

been no finding of contempt. It was only after this procedural

event that the district court adjudged contempt, and then

solely to cause the court of appeals to decide the underlying

issues of the district court’s power.)

Thus, notwithstanding that the acts the district court

ordered, if done, no longer would serve any purpose in the

case in which the acts were ordered, the issues of whether vel

non there was a contempt of the court’s power and whether

the district court still has the power to punish those contempts

are not moot. Were they moot, then the absurd result would

follow that one may with impunity disobey a federal court’s

lawful order, and get away with that, so long as sufficient

time would pass so that the district court’s orders no longer

could have any substantive purpose. Such a premise would

encourage those ordered to take action by federal courts in

civil actions to follow the practice of criminals who bide their

time in custody and who await the disbanding of grand juries.

6

Traditional mootness principles are not applicable here.

First, respondent’s testimony is sought again, before the

same district judge, on the very same topic, in a companion

case in which this Court denied certiorari. Wachs v. Trevino,

By and Through Cruz, 115 S.Ct. 32 (1994). This Court denied

certiorari to a number of Los Angeles City Council members

in Wachs, and now that case, based on the same underlying

incident, see Gomez v. Gates, 804 F. Supp. 69 (C.D. Cal.

1992); Trevino v. Gates, 798 F. Supp. 621 (C.D. Cal. 1992);

Trevino v. Gates, 23 F.3d 1480 (9th Cir. 1994), is set to go to

trial. A subpoena ad testificandum for trial has been issued

for respondent in that case. Thus, there is reason to expect

that respondent’s testimony on the same subject in future

litigation again will be sought and again be compelled. See

Murphy v. Hunt, 455 U.S. 478, 482 (1982). And, under Hunt,

there is no mootness because the issue of the district court’s

powers cannot be said to be “no longer ‘live’” or that “the

parties lack a legally cognizable interest in the outcome” of

whether or not respondent should be punished. /d. at 478.

And, under Hunt, because “a favorable decision,” ibid., would

vindicate the power of the district court, there still is a live

question to be adjudicated.

The issues are “capable of repetition, yet evading

review[,]” id. at 482, and thus this case falls within an

exception to the mootness doctrine. When the elements of

“challenged action . . . too short [in duration] to be fully

litigated prior to its cessation or expiration and. . . a reason-

able expectation that the same complaining party would be

subjected to the same action again” combine, Weinstein v.

Bradford, 423 U.S. 147, 149 (1975), the “capable of repeti-

tion, yet evading review” exception to mootness is applica-

ble.! Here, the district court is, in effect, the complaining

' “Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1979), suggests that the two

bases for finding the events capable of repetition were independent. (“The contro-

versy between the parties to this case is “capable of repetition” in two senses.’ /d., at

546.” Murphy, supra, 455 U.S. at 486 n. 3 (Justice White dissenting). Here, because

of the procedural facts of this case, and the two and one-half year delay by the court

of appeals in rendering its written disposition, there is valid reason to construe the

Se

7

party. Yet, because of the peculiar facts of this case, this

Court should not invoke the doctrine of mootness because to

do so would reward recalcitrance and delay and disserve

justice.

The procedural framework of this case posits a Gordian

Knot to be cut by this Court. Because the court below took

two and one-half years to render its written disposition in

which it then avoided deciding the issues before it, it poten-

tially foreclosed review of the issues by this Court. Were a

court of appeals again and again to do what the court of

appeals in this case did, then the issues of which review is

sought in this case never would be capable of being broughi

before this court because the underlying action in which the

power of a district court to compel testimony of a federal

agent in a civil case certainly would have concluded, thus

enabling that agent always to claim mootness. In that sce-

nario, as here, the issues of which review is sought never

would be moot, and thus, never could be decided by this

Court. That scenario, as demonstrated in this case, presents a

reason for this Court to hold that in situations such as the one

in this case, a district court’s orders compelling a witness to

provide first information and then testimony to the district

court be capable of review by this Court no matter that the

underlying proceeding has concluded. An order to testify in a

civil case made by a district court, or an order by a district

court that it be given information, in camera and to be sealed

in order to enable the district court to carry out its functions

under F.R. Evid. Rule 103, ought always to be reviewable by

this Court so that one who chooses to disobey such orders

always will do so at his or at her peril, and never will do so

with the chance of impunity. The impossibility of such review

two so-called “capable of repetition” factors to be independent and disjunctive, or to

modify the second factor so that its “same complaining party” is not given the

potential narrow meaning of “party to that litigation” so as to exclude the court from

its meaning. Indeed, the court is a party in the real sense to its invocation of its

power of contempt, and its power to elicit facts under seal in order to enable it to

discharge its constitutional duties.

8

by this Court in effect strips the federal district courts of their

inherent power to discharge their duties.

Any order in this case would be of more than academic

force, see State of North Carolina v. Carr, 386 F.2d 129, 131

(4th Cir. 1967), because such an order would punish a con-

tempt of court. No case stands for the proposition that orders

punishing a contempt are of academic force only. That the

testimony sought no longer can be of value to petitioner, or to

the court, should not operate to deprive the district court of its

ability to vindicate its own powers.

There is additional reason for this Court not to apply

mootness doctrine to decline review, because “an order .

lawful when made, does not become moot because it is

obeyed or because changing circumstances indicate that the

need for it may be less than when made.” NLRB vy. Pennsylva-

nia Greyhound Lines, Inc., 303 U.S. 261, 271 (1938). Indeed,

because “compliance with an order . . . does not render the

cause moot, depriving the Board of its opportunity to secure

enforcement[,]” NLRB v. Raytheon Co., 398 U.S. 25, 27

(1970), neither should disobedience of an order caught up in

extensive appellate delay, as here, render the disobedience of

the order moot. Application of mootness doctrine to the issues

on this Petition both makes little sense and would perpetrate

an injustice. There is a strong public interest in this Court

resolving the issue of whether vel non F.B.1. agents, like other

mortals, are subject to federal court orders, or are permitted in

effect to decide for themselves whether they will obey those

orders. These issues are likely always to be moot by the time

they reach this Court, by respondent’s reasoning, and thus, if

respondent’s reasoning is accepted, then this Court should

apply the “evading review, capable of repetition” exception to

mootness.

3. It is absolutely “essential that courts be able to com-

pel the appearance and testimony of witnesses.” Shillitani v.

U.S., 384 U.S. 364, 370 (1966). See also, U.S. v. Bryan, 339

U.S. 323, 331 (1950). And the spectre of punitive imprison-

ment, or other punitive (as opposed to coercive) action, must

remain both real and enforceable in order for the courts

credibly to have that power. Thus, it is not only the power of

ETT ee eae ee TT Ne ee eT ee oe

9

“coercive imprisonment as applied to civil contempt [which]

depends upon the ability of the contemnor to comply with the

court’s order[,]” Shillitani, supra, 384 U.S. at 364, that

attends disobedience of civil contempt. Necessarily, there is

| inherent in the contempt power the power to invoke a punitive

remedy. Petitioner has found no case that stands for the

7 proposition that only coercive, and not punitive, consequences

may attend orders to testify in civil actions that are dis-

| obeyed.

It would be fundamentally wrong to relieve from the

| power of contempt a recalcitrant witness and to permit him or

her to escape the consequences of recalcitrance by virtue of

| the fortuitous event of settlement by the parties of the dispute

in which the witness’ testimony had been sought and been

ordered. To do so would foster recalcitrance, and would

emasculate the powers of the courts.

What is left in this case is not the coercive powers of the

district court, but the punitive powers of the district court.

There is no legitimate reason to put those powers in a null

class.

4. This Court may “not impute to Congress an intent to

pass legislation that is inconsistent with the Constitution as

construed by this Court.” X-Citement, supra, 115 S.Ct. at 470.

In this case, no court could impute to Congress in its enact-

ment of the Administrative Procedure Act, 5 U.S.C. 701, et

seq., under whose so-called housekeeping provisions respon-

dent based his disobedience of the district court’s orders, an

intent to subvert or to override or to make void the powers of

the district court. This court never has ruled that the provi-

sions of Section 301 or its predecessor operate to permit the

| result here sanctioned by the court below, nor has this Court

ever considered at all the application of Section 301 or its

predecessor to testimonial matters, as opposed to documents.

See dissent of Judge Norris.

Because it cannot be said that “interim . . . events have

completely and irrevocably eradicated the effects of the

alleged violation [of the court’s orders,]” County of Los

Angeles v. Davis, 440 U.S. 625, 631 (1979); because the

integrity of the district court remains impugned; because

10

“ *(cJonvenience and efficiency are not the primary objectives

— or the hallmarks — of democratic government[,]’ ” Bowsher

v. Synar, 106 S.Ct. 3181, 3193-94 (1986) (quoting INS v.

Chadha, 462 U.S. 919, 944 [1983]); and because this Court’s

“mootness cases ... have established a powerful presumption

favoring adjudication[,]” Fallon, Of Justiciability, Remedies,

and Public Law Litigation: Notes on the Jurisprudence of

Lyons, 59 N.Y.U.L. Rev. 1, 27 (1984), this Court should grant

certiorari in this matter. There is no doubt but that if this

Court does not grant certiorari, no DOJ employee ever will

obey a federal court subpoena, and all will “be free to ‘return

to [their] old ways’ after the threat of a lawsuit has passed.”

Iron Arrow Honor Society v. Heckler, 464 U.S. 67, 104 S.Ct.

373, 375 (1983) (quoting U.S. v. W.T. Grant, 345 U.S. 629,

632 [1953]).

5. The “flexible character of Art. III mootness doctrine”

encompasses consideration of the public interest in safeguard-

ing fundamental constitutional rights, such as the right to

compel and to have testimony in a civil action, see, e.g., U.S.

Parole Comm. v. Geraghty, 445 U.S. 388, 400 (1980), and this

Court must grant certiorari in order to confine the executive

branch to its defined and proper place in our constitutional

framework so that the public interest in its independent fed-

eral judiciary will be preserved.

The Petition for Certiorari should be granted.

Respectfully submitted,

STEPHEN YAGMAN

YaGcMAN & Yacman, P.C.

723 Ocean Front Walk

Venice, California 90291

(310) 452-3200

Attorneys for Petitioner,

Alfredo Olivas

January 4, 1995

New York City