# Reply Brief — Olivas v. Boeh

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1995
- **Citation:** 513 U.S. 1109

## Text

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0495%3A3. Public record. Not legal advice.