The Corrupted Government of Puerto Rico

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The Corrupted

Government of Puerto Rico

Its involvement is not only with the criminal mortgage banking

It’s also using public resources defending terrorists

Read the following appeal before the U.S. Supreme Court and learn more about it

Click here to see the federal indictments against the

governor Anibal Acevedo Vila and Senator Jorge DeCastro Font

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In The

Supreme Court of the United States

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COMMONWEALTH OF PUERTO RICO,

Petitioner,

UNITED STATES OF AMERICA, et al.,

Respondents.

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On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The First Circuit

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PETITION FOR A WRIT OF CERTIORARI

--------------------------------- ♦---------------------------------

ROBERTO J. SÁNCHEZ-RÁMOS

Secretary of Justice

SALVADOR J. ANTONETTI-STUTTS

Solicitor General

KENNETH PAMIAS-VELÁZQUEZ

Special Aide to the

Secretary of Justice

JORGE R. ROIG-COLÓN

Assistant Secretary of Justice

HIRAM A. MELÉNDEZ-JUARBE

Legal Advisor to the

Secretary of Justice

DEPARTMENT OF JUSTICE

COMMONWEALTH OF PUERTO RICO

P.O. Box 9020191

San Juan, PR 00902-0192

(787) 724-2165

TREVOR W. MORRISON

Counsel of Record

116 Myron Taylor Hall

Ithaca, NY 14853

(607) 255-9023

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

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether a State’s suit to obtain from the

federal government specific information and materials,

for the purposes of determining whether federal

officers or any other individuals have violated state

criminal law, is governed by the deferential standard

of review contained in the Administrative Procedure

Act.

2. Whether the federal government’s blanket

assertion of a “law enforcement privilege” is sufficient

to defeat a State’s request for the materials as part of

its own law enforcement efforts.

PARTIES TO THE PROCEEDINGS

The petitioner is the Commonwealth of Puerto

Rico.

The respondents are the United States of America;

Michael Mukasey, Attorney General; Robert

Mueller, Director of the Federal Bureau of Investigation;

Rosa Emilia Rodríguez-Vélez, United States

Attorney for the District of Puerto Rico; and Luis S.

Fraticelli, Special Agent in Charge of the Federal

Bureau of Investigation in Puerto Rico.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................................ i

PARTIES TO THE PROCEEDING ..................... ii

TABLE OF CONTENTS ...................................... iii

TABLE OF AUTHORITIES................................. v

PETITION FOR A WRIT OF CERTIORARI ....... 1

OPINIONS BELOW............................................. 1

JURISDICTION................................................... 1

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED....................................... 1

INTRODUCTION ................................................ 2

STATEMENT OF THE CASE.............................. 5

REASONS FOR GRANTING THE PETITION... 14

I. The States’ Control Over Their Criminal

Laws Requires Clarification...................... 14

II. The Availability Of Judicial Review Not

Subject To APA Deference Requires Clarification

....................................................... 21

A. The Courts of Appeals are divided

over whether the APA’s deferential

standard of review governs suits such

as this one............................................ 21

B. The deference entailed in APA

§ 706(2)(A) is entirely inappropriate

in a case involving a sovereign’s control

of its criminal law......................... 26

TABLE OF CONTENTS – Continued

Page

III. The Scope And Application Of The Law

Enforcement Privilege Requires Clarification

......................................................... 31

A. The Courts of Appeals disagree as to

the scope of the law enforcement

privilege, and are not clear as to its

application here................................... 31

B. The First Circuit erred in its broad,

categorical application of the law enforcement

privilege.............................. 34

CONCLUSION..................................................... 38

APPENDIX A, Opinion of the U.S. Court of

Appeals for the First Circuit, issued on June

15, 2007 ..........................................................App. 01

APPENDIX B, Opinion and Order of the U.S.

District Court for the District of Puerto Rico,

issued on September 26, 2006 .......................App. 52

APPENDIX C, Order of the U.S. Court of Appeals

for the First Circuit denying Petition

for Rehearing and Suggestion for Rehearing

En Banc, issued on August 29, 2007 .............App. 94

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Alden v. Maine, 527 U.S. 706 (1999)..........................19

Arizona v. Manypenny, 451 U.S. 232 (1981)........15, 27

Bd. of Governors of Fed. Reserve Sys. v. MCorp

Fin. Inc., 502 U.S. 32 (1991).......................28, 29, 30

Black v. Sheraton Corp. of America, 564 F.2d

531 (D.C. Cir. 1977).................................................33

Brecht v. Abrahamson, 507 U.S. 619 (1993)..............15

Chevron U.S.A., Inc. v. Natural Resources Def.

Council, 467 U.S. 837 (1984) ..................................29

City of Jackson v. Jackson, 235 F. Supp. 2d 532

(S.D. Miss. 2002) .....................................................16

City of New York v. Beretta U.S.A. Corp., 222

F.R.D. 51 (E.D.N.Y. 2004) .......................................37

Commonwealth of Puerto Rico v. United States,

490 F.3d 50 (1st Cir. 2007)........................................1

COMSAT Corp. v. National Science Found.,

190 F.3d 269 (4th Cir. 1999) .................21, 23, 26, 27

Cunningham v. Neagle, 135 U.S. 1 (1890).................16

Engle v. Isaac, 456 U.S. 107 (1982)............................15

Escobedo v. Illinois, 378 U.S. 478 (1964)...................17

Exxon Shipping Co. v. U.S. Dep’t of Interior, 34

F.3d 774 (9th Cir. 1994) ..................21, 22, 23, 24, 26

TABLE OF AUTHORITIES – Continued

Page

Flowers v. Warden, 677 F. Supp. 1275 (D.

Conn.), rev’d on other grounds, 853 F.2d 131

(2d Cir. 1988)...........................................................17

Heath v. Alabama, 474 U.S. 82 (1985).........................4

Idaho v. Horiuchi, 253 F.3d 359 (9th Cir.),

vacated as moot, 266 F.3d 979 (9th Cir. 2001) .......16

Imbler v. Pachtman, 424 U.S. 409 (1976)..................17

In re Dep’t. of Investig. of the City of New York,

856 F.2d 481 (2d Cir. 1988) ...............................31, 33

In re Sealed Case, 856 F.2d 268 (D.C. Cir. 1988).......31

In re SEC ex rel. Glotzer, 374 F.3d 184 (2d Cir.

2004) ..................................................................21, 24

In re U.S. Dep’t of Homeland Sec., 459 F.3d 565

(5th Cir. 2006) .............................................31, 33, 37

Leedom v. Kyne, 358 U.S. 184 (1958).........................28

Linder v. Calero-Portocarrero, 251 F.3d 178

(D.C. Cir. 2001)......................................21, 22, 23, 24

Maryland v. Soper, 270 U.S. 36 (1926) 4, 17, 18, 36, 37

Massachusetts v. EPA, 127 S. Ct. 1438 (2007)...........26

Mesa v. California, 489 U.S. 121 (1989) ................4, 16

R.I. Dep’t of Envtl. Mgmt. v. United States, 304

F.3d 31 (1st Cir. 2002).............................................28

Roviaro v. United States, 353 U.S. 53 (1957) ......31, 32

Schiller v. City of New York, 244 F.R.D. 273

(S.D.N.Y. 2007)........................................................37

vii

TABLE OF AUTHORITIES – Continued

Page

Swanner v. United States, 406 F.2d 716 (5th

Cir. 1969) .................................................................33

U.S. Term Limits, Inc. v. Thornton, 514 U.S.

779 (1995) ................................................................15

United States ex rel. Drury v. Lewis, 200 U.S. 1

(1906).......................................................................16

United States v. Cintolo, 818 F.2d 980 (1st Cir.

1987) ........................................................................31

United States v. O’Neill, 619 F.2d 222 (3d Cir.

1980) ..................................................................31, 34

Willingham v. Morgan, 395 U.S. 402 (1969)..............16

FEDERAL CONSTITUTION AND STATUTES

U.S. Const. Amd. X.......................................................1

5 U.S.C. § 702 .......................................2, 21, 22, 23, 24

5 U.S.C. § 706(2)(A) ............................................passim

28 U.S.C. § 1254 ...........................................................1

28 U.S.C. § 1442(a) .....................................................16

Act of Feb. 4, 1815, ch. 31, § 8, 3 Stat. 195, 198-

99 .............................................................................15

Act of Mar. 3, 1817, ch. 109, §§ 2, 6, 3 Stat. 396,

397 ...........................................................................16

Act of Mar. 2, 1833, ch. 57, §§ 2-3, 4 Stat. 632,

633-34 ......................................................................16

Act of Mar. 3, 1863, ch. 81, § 5, 12 Stat. 755,

756-57 ......................................................................16

viii

TABLE OF AUTHORITIES – Continued

Page

Act of May 11, 1866, ch. 80, §§ 3-4, 14 Stat. 46,

46 .............................................................................16

Act of Feb. 5, 1867, ch. 27, 14 Stat. 385.....................16

Act of Mar. 3, 1911, ch. 231, § 33, 36 Stat. 1087,

1097 .........................................................................16

STATE STATUTES

34 P.R. Laws Ann. § 1476 .............................................9

OTHER AUTHORITIES

The Federalist No. 51 ...................................................5

PETITION FOR A WRIT OF CERTIORARI

Petitioner the Commonwealth of Puerto Rico

respectfully petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals

for the First Circuit.

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OPINIONS BELOW

The opinion of the First Circuit is reported at 490

F.3d 50 and is reprinted at App. 1-49. The opinion of

the district court is unreported and is reprinted at

App. 52-92.

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JURISDICTION

The First Circuit issued its decision on June 15,

2007. The Commonwealth’s timely petition for rehearing

and suggestion of rehearing en banc was

denied on August 29, 2007. App. 94. This Court has

jurisdiction under 28 U.S.C. § 1254.

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CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

The Tenth Amendment to the United States

Constitution provides: “The powers not delegated to

the United States by the Constitution, nor prohibited

by it to the States, are reserved to the States respectively,

or to the people.”

The waiver of sovereign immunity contained in

the Administrative Procedure Act (APA) provides, in

pertinent part:

A person suffering legal wrong because of

agency action . . . is entitled to judicial review

thereof. 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 or that the United

States is an indispensable party.

5 U.S.C. § 702.

The APA also provides that a federal court called

upon to review agency action shall “hold unlawful

and set aside agency action, findings, and conclusions

found to be . . . arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” 5

U.S.C. § 706(2)(A).

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INTRODUCTION

This case presents fundamental questions about

the sovereign power of the States and the Commonwealth

of Puerto Rico to enforce their criminal laws.

It involves two consolidated district court cases, each

arising out of the issuance of a subpoena for Federal

Bureau of Investigation (FBI) records by the Puerto

Rico Department of Justice (PRDOJ). The PRDOJ

issued those subpoenas in an effort to investigate

whether any individuals, be they private citizens or

federal officers, violated Puerto Rico criminal law on

two separate occasions. The first involved the shooting

death of a Puerto Rico resident and the shooting

of one or more federal officers during an FBI intervention.

The second involved the pepper spraying of a

group of protestors and journalists by federal officers.

To determine whether Puerto Rico’s criminal laws

were violated during either of those incidents, the

PRDOJ requested various materials and information

from the FBI, including the names of the officers

involved, physical items used by the officers at the

events, and applicable FBI protocols and guidelines

governing the events. The FBI has refused the vast

majority of those requests. See infra n.3 (describing

the limited exceptions to the FBI’s general refusals).

Petitioner the Commonwealth of Puerto Rico

thereafter initiated proceedings in federal court,

seeking injunctions ordering the FBI to provide the

requested materials and information. The district and

circuit courts have declined to do so. The First Circuit

concluded that the federal judiciary’s only role in this

context is to review the FBI’s disclosure refusal under

the Administrative Procedure Act’s “arbitrary and

capricious” standard, 5 U.S.C. § 706(2)(A), an extremely

deferential form of review. Beyond that, the

First Circuit upheld the FBI’s across-the-board assertion

of “law enforcement privilege” with respect to the

requested materials and information, even though

the district court had not engaged in any in camera

review of the materials. The First Circuit’s treatment

of these issues deepens two separate disagreements

among the lower federal courts, regarding (1) the

applicability of the APA’s standard of review in contexts

such as this, and (2) the scope and application of

the law enforcement privilege.

The law in these areas is all the more uncertain –

and the cost of uncertainty much greater – where, as

here, the litigant adverse to the federal government is

no private party but a sovereign in the federal system,

seeking to investigate potential violations of its

criminal laws. The “power to create and enforce a

criminal code” is “[f]oremost among the prerogatives

of sovereignty.” Heath v. Alabama, 474 U.S. 82, 93

(1985). That sovereign prerogative extends to the

investigation and, where appropriate, prosecution of

federal officers for violating state criminal law. See,

e.g., Mesa v. California 489 U.S. 121 (1989) (affirming

the remand to state court of misdemeanormanslaughter

charges against federal postal officers);

Maryland v. Soper, 270 U.S. 36 (1926) (ordering the

remand to state court of state criminal charges

against federal prohibition officers). States cannot

exercise that authority, however, if they cannot

gather the information necessary to determine

whether their criminal laws have been violated and,

if so, whether a prosecution is warranted.

The decision below effectively precludes States

from doing just that. The result is uncertainty about

the extent to which the States retain control over the

administration of their criminal laws, as well as a

severe chilling of the States’ willingness and ability to

provide the check on federal power that the Founders

envisaged. See The Federalist No. 51 (James Madison)

(explaining that the Constitution is structured so

that “[t]he different governments will control each

other,” the better to “secur[e] . . . the rights of the

people”). The Court should grant certiorari to clarify

the existence and scope of this critical facet of state

sovereignty.

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STATEMENT OF THE CASE

A. Factual Background

This case involves two separate cases, consolidated

on appeal. Each arises out of the PRDOJ’s

issuance of a subpoena for materials and information

held by the FBI. We will discuss the facts of each case

in turn.

1. The Ojeda-Ríos Shooting. On September 23,

2005, FBI agents converged on a residence near

Hormigueros, Puerto Rico in an attempt to apprehend

Filiberto Ojeda-Ríos. App. 56. Ojeda-Ríos was one of

the founders of the Macheteros, an organization that

supports the pursuit of Puerto Rican independence by

various means, including armed struggle. App. 3. In

1990, while awaiting trial on robbery charges in

Connecticut, Ojeda-Ríos cut off his electronic monitoring

device and absconded. App. 56. He thereby became

a federal fugitive.

In September 2005, having determined Ojeda-

Ríos’s whereabouts in Puerto Rico, the FBI set in

motion plans to apprehend him. On the afternoon of

September 23, 2005, a team of FBI agents converged

on the Hormigueros residence, where they believed

Ojeda-Ríos to be hiding. A gunfight ensued.

A subsequent report by the Office of the Inspector

General in the U.S. Department of Justice (OIG)

determined that the gunfight lasted about two minutes,

that Ojeda-Ríos fired 19 rounds, and that at

least eight different FBI agents fired approximately

104 rounds. See Office of the Inspector General, U.S.

Department of Justice, A Review of the September

2005 Shooting Incident Involving the Federal Bureau

of Investigation and Filiberto Ojeda Ríos: Executive

Summary 15, 27 (Aug. 2006), available at http://www.

usdoj.gov/special/s0608/exec.pdf (hereinafter OIG

Report). The OIG concluded that “the FBI fired three

shots through the front door of the residence that

may have violated the [FBI’s] Deadly Force Policy.”

Id. at 28. Although the OIG stated that none of those

shots struck Ojeda-Ríos or his spouse (who was in the

residence during the gunfight and fled shortly thereafter),

1 it also noted that its own investigation was

limited by the fact that “the agents who we believe

1 The federal government initially took Ojeda-Ríos’s spouse

into custody, but then released her without pursuing any

charges. The Commonwealth of Puerto Rico’s investigation

encompasses any possible criminal conduct by anyone involved

in the incident, including Ojeda-Ríos’s spouse.

may have fired these shots declined to provide voluntary

follow-up interviews to the OIG.” Ibid.

The OIG stated that Ojeda-Ríos remained in the

residence after the shooting ended, and that he

responded to the entreaties of an FBI negotiator

outside the residence by saying that he wanted to

talk to a particular local news journalist. Id. at 17.

According to the OIG, Ojeda-Ríos held out the possibility

of his surrender if he was allowed to speak with

the journalist. Ibid. (“At some point, Ojeda responded,

‘I am not going to negotiate with any of you until you

bring the journalist Jesus Dávila. Then we can talk

about my surrender.’ ”). The dialog ended at that

point.

The OIG determined that the shot that killed

Ojeda-Ríos was fired at approximately 6:08 p.m., over

90 minutes after the initial exchange of gunfire had

ended. Id. at 16, 18. The OIG concluded that the fatal

shot was fired by an FBI sniper positioned outside the

house, with a view through the kitchen window. Id. at

18. The sniper reportedly told the OIG that he saw a

person open a refrigerator inside the house and then

crouch down, holding a gun in his left hand. Ibid. The

sniper then apparently fired three rounds in quick

succession, one of which hit Ojeda-Ríos. Id. at 18, 24.

The sniper reportedly told his FBI colleagues over the

radio that he thought he hit his target. Id. at 20.

In the early evening of September 23, the United

States Attorney’s Office in Puerto Rico informed the

PRDOJ that Ojeda-Ríos was likely dead or injured as

a result of a gunshot, and requested PRDOJ to send

local prosecutors to the Hormigueros residence. Id. at

21. Once local officials arrived at the scene, however,

FBI agents prevented them from entering the residence.

Moreover, although the OIG later found that

no sounds or movements were detected in the residence

following the sniper’s shots, id. at 20, the FBI

did not enter the residence until the following afternoon,

id. at 22. Upon entering, they found Ojeda-Ríos

lying dead on the floor. Ibid.

The Puerto Rico Institute of Forensic Sciences

subsequently performed an autopsy. According to the

OIG, the doctor in charge of the autopsy estimated

that Ojeda-Ríos “expired from loss of blood approximately

15 to 30 minutes after being shot.” Id. at 24.

The OIG also noted that the doctor “opined that

Ojeda could have survived the wound if he had received

immediate first aid and surgical care.” Ibid.

Although the OIG Report ultimately “did not

conclude that any of the actions of FBI officials constituted

misconduct,” id. at 42, it did “identif[y] a

number of deficiencies in the FBI’s conduct of the

Ojeda surveillance and arrest operation,” id. at 39.

The OIG found that “several of [the responsible FBI

officials’] decisions . . . reflected an inadequate assessment

of the known circumstances, or were either

contrary to or inconsistent with applicable FBI guidelines.”

Id. at 42.

Shortly after Ojeda-Ríos’s death, the PRDOJ

began a criminal investigation into the events leading

up to it. On October 4, 2005, the PRDOJ issued a

subpoena directing the United States Attorney in

Puerto Rico to produce certain materials and information

pertinent to its investigation.2 The requested

materials and information included (1) a copy of the

FBI’s “Operation Order” governing the Hormigueros

intervention; (2) the name, rank, and other identifying

information of each federal officer who participated

in or made decisions regarding the intervention; (3)

various equipment used by the federal officers involved,

including weapons; (4) any inventory of the

Hormigueros property; (5) copies of any expert reports

relating to the intervention or to Ojeda-Ríos’s death;

(6) copies of any photographs or recordings of the

intervention; and (7) copies of any relevant FBI

protocols, including those related to violent interventions

and the use of deadly force. App. 4.

The FBI refused to allow the PRDOJ access to

the vast majority of the requested materials.3 Of

2 The subpoena was issued pursuant to section 1 of the

Commonwealth of Puerto Rico’s Act No. 3 of March 18, 1954, 34

P.R. Laws Ann. § 1476, which provides:

Any person summoned as a witness by any prosecuting

attorney or magistrate shall be bound to appear and testify

or produce books, records, correspondence, documents,

or other evidence required of him in any criminal

investigation, proceeding, or process.

3 The only exceptions were the bulletproof vests, helmets,

weapons, and vehicles used in the intervention, as well as

photographs taken before, during, and after the intervention.

The FBI stated that it would grant the PRDOJ limited inspection

of those materials but that the FBI would maintain custody

(Continued on following page)

particular significance, the FBI refused to provide

any information about the FBI agents involved in

Ojeda-Ríos’s death (who are, along with Ojeda-Ríos’s

spouse, the only living witnesses of the event) or the

protocols and orders governing the intervention. The

Commonwealth of Puerto Rico ultimately filed suit in

federal district court to compel disclosure of the

requested materials and information.

2. The Events at 444 de Diego. Using information

obtained during the intervention at the Hormigueros

property, the FBI obtained a search warrant

for a residence at 444 de Diego in San Juan. App. 5.

The FBI executed the warrant in February 2006.

While the search was proceeding, a crowd of protestors,

journalists, and members of the general public

gathered outside the residence. Ibid. A number of

journalists in the crowd later filed formal complaints

with the PRDOJ, alleging that federal agents injured

them while they were covering the search. They

provided photographs and a video that they had

taken of two FBI agents who, the journalists alleged,

had used pepper spray against them.

To investigate whether there had been any

criminal wrongdoing during the incident, the PRDOJ

again issued subpoenas directing the United States

Attorney and the FBI special agent in charge of the

Puerto Rico field office to produce three categories of

of them at all times, and that an FBI official would be present

throughout the inspection. App. 4-5.

materials and information: (1) the name, rank, and

other identifying information of the two FBI agents

who allegedly used pepper spray during the incident;

(2) official photographs of those two agents; and (3)

copies of any relevant FBI protocols governing the use

of force and pepper spray.

The FBI moved to quash the subpoenas in federal

district court. After holding a hearing on the motion,

the district court issued an order declining to quash

the subpoenas but also not dismissing the motion to

quash. The Commonwealth of Puerto Rico thereafter

filed suit in federal district court to compel disclosure

of the requested materials.

B. Proceedings Below

The above-mentioned suits invoked the district

court’s federal question jurisdiction (see 28 U.S.C.

§ 1331) and asserted five different causes of action.

Most pertinently here, they asserted a nonstatutory

cause of action to vindicate the Commonwealth’s

sovereign authority to enforce its criminal laws. App.

7. In the alternative, the complaints asserted that, to

the extent the complaints had to be evaluated under

the APA, the FBI’s refusal to produce the requested

materials was arbitrary, capricious, and an abuse of

discretion under 5 U.S.C. § 706(2)(A). Ibid. As for

relief, the Commonwealth sought a declaration that

the federal defendants’ refusal to produce the requested

materials and information constituted an

unconstitutional impairment of the Commonwealth’s

sovereign authority, as well as an injunction ordering

the defendants to produce the subpoenaed information.

App. 6-7.

The district court consolidated the cases, and the

federal government moved to dismiss. App. 62-63.

The court determined that the Commonwealth’s

sovereign authority to enforce its criminal laws did

not support a nonstatutory cause of action to obtain

the requested materials. App. 81. Accordingly, the

court dismissed the nonstatutory components of the

two suits. The court also granted summary judgment

for the federal government on the Commonwealth’s

APA claims. App. 91. It concluded that the FBI’s

refusal to comply with the Ojeda-Ríos subpoenas was

neither arbitrary nor capricious. With respect to the

444 de Diego subpoenas, the court decided that there

had been no final agency action and thus that the

FBI’s refusal to comply with the subpoenas was not

subject to judicial review. App. 85.

The First Circuit affirmed. App. 1-49. The court

first determined that federal sovereign immunity did

not pose an obstacle to the Commonwealth’s nonstatutory

cause of action, reasoning that Congress had

waived that immunity for purposes of suits like these.

But it concluded that such an action was nonetheless

unavailable because the APA provided “a means of

vindicating [the Commonwealth’s] right[ ]” to enforce

its criminal laws, and because “the existence of the

APA as a means for reviewing the FBI’s actions at

least implies that nonstatutory review is inappropriate.”

App. 16-17. In short, the court concluded that

“when a state’s interest in investigating the agents of

a federal law enforcement entity arguably conflicts

with that federal entity’s need to protect certain

information relating to law enforcement activities,

Congress has provided a mechanism – the APA – for

resolving these conflicts.” App. 17.

Applying the APA, the First Circuit concluded

that the FBI’s refusal to produce the requested materials

was not “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.”

App. 18 (quoting 5 U.S.C. § 706(2)(A)). The court

found that the federal government was entitled to

assert what it termed a “qualified” law enforcement

privilege against having to disclose information about

“law enforcement techniques and procedures.” App.

26. And although it suggested that this privilege is

“subject to balancing the federal government’s interest

in preserving the confidentiality of sensitive law

enforcement techniques against the requesting

party’s interest in disclosure,” App. 26-27, the court

ultimately upheld the federal government’s assertion

of privilege across the board. App. 43. Thus, the

privilege was upheld without any judge, district or

circuit, actually engaging in any in camera inspection

of the materials in question, much less any concrete

and particularized weighing of the interests for and

against disclosure of the discrete items and information

in question.

In reaching its conclusion, the First Circuit

professed an awareness of the Commonwealth’s

argument that “the FBI’s decision to withhold the

[requested] information raises the possibility that a

federal agency may thwart state criminal proceedings

against one of its own employees.” App. 37-38. Noting

that federal officers are not immune from state

prosecution except for actions taken “within the scope

of official duties,” the court stated that it was

“troubl[ed]” by the prospect of thwarting legitimate

state investigations and prosecutions in this manner.

App. 38. But it concluded that those worries were

unfounded in this case. In so holding, the court relied

in part on the fact that, with respect to the Ojeda-

Ríos shooting, the federal OIG Report “did not conclude

that any of the actions of FBI officials constituted

misconduct.” App. 38-39 (quoting OIG Report at

42). In other words, the court saw the OIG Report as

an adequate though “imperfect substitute” for the

Commonwealth’s own independent and informed

judgment about whether its criminal laws had been

violated. App. 39. Accordingly, the court saw no

arbitrariness in subordinating the Commonwealth’s

control over its laws to the FBI’s blanket assertions of

privilege.

--------------------------------- ♦---------------------------------

REASONS FOR GRANTING THE PETITION

I. States’ Control over Their Criminal Laws

Requires Clarification.

The decision below raises two discrete questions

meriting this Court’s plenary review. We discuss them

below in Parts II and III, infra. Both questions,

however, implicate the same basic issue that is at the

heart of this case, and that itself provides a compelling

reason for granting the petition. Put simply, that

issue is whether States retain the sovereign authority

to determine for themselves whether their criminal

laws have been violated and, if so, whether to prosecute

those responsible.

The Framers of the Constitution “split the atom

of sovereignty,” U.S. Term Limits, Inc. v. Thornton,

514 U.S. 779, 838 (1995) (Kennedy, J., concurring),

such that “[t]he States,” not the federal government,

“possess primary authority for defining and enforcing

the criminal law.” Brecht v. Abrahamson, 507 U.S.

619, 635 (1993) (quoting Engle v. Isaac, 456 U.S. 107,

128 (1982)). In recognition of that preeminence, this

Court has implemented “a strong judicial policy

against federal interference with state criminal

proceedings.” Arizona v. Manypenny, 451 U.S. 232,

243 (1981) (citations and internal quotation marks

omitted). Historically, that policy of federal noninterference

has applied even where, as here, the

potential suspects or defendants include federal

employees.

Ever since the Founding, States have retained

substantial authority to prosecute federal officers for

violating state criminal law. Congress has long recognized

that authority. Starting as early as 1815, it

from time to time enacted measures providing for the

removal to federal court of certain state prosecutions

(and civil suits) against certain federal officers. See,

e.g., Act of Feb. 4, 1815, ch. 31, § 8, 3 Stat. 195, 198-99;

Act of Mar. 3, 1817, ch. 109, §§ 2, 6, 3 Stat. 396, 397;

Act of Mar. 2, 1833, ch. 57, §§ 2-3, 4 Stat. 632, 633-34;

Act of Mar. 3, 1863, ch. 81, § 5, 12 Stat. 755, 756-57,

amended by Act of May 11, 1866, ch. 80, §§ 3-4, 14

Stat. 46, and Act of Feb. 5, 1867, ch. 27, 14 Stat. 385;

Act of Mar. 3, 1911, ch. 231, § 33, 36 Stat. 1087, 1097.

Congress ultimately included a removal provision

covering all federal officers in the Judicial Code of

1948, see Willingham v. Morgan, 395 U.S. 402, 406

(1969), and a version of that provision remains in

effect today, see 28 U.S.C. § 1442(a). The very existence

of these removal provisions confirms the power

of the States to bring criminal actions against federal

officers.4

4 Removal is not available in all state prosecutions of

federal officers; the defendant must raise a colorable federal

defense to qualify. Mesa v. California, 489 U.S. 121, 139 (1989).

That allegation may also create the basis for defeating the

underlying charges, see Cunningham v. Neagle, 135 U.S. 1, 75

(1890), though such a defense certainly does not exist in all

cases. See United States ex rel. Drury v. Lewis, 200 U.S. 1, 7

(1906) (“The general jurisdiction, in time of peace, of the civil

courts of a state over persons in the military service of the

United States, who are accused of a capital crime or of any

offence against the person of a citizen, committed within the

state, is, of course, not denied.”); Idaho v. Horiuchi, 253 F.3d

359, 366 (9th Cir.) (en banc) (Kozinski, J.) (“[A] state may

prosecute federal agents if they have acted unlawfully in

carrying out their duties.”), vacated as moot, 266 F.3d 979

(2001); City of Jackson v. Jackson, 235 F. Supp. 2d 532, 534 (S.D.

Miss. 2002) (“Supremacy Clause immunity is not absolute. . . .

[A] state may prosecute federal agents if they have acted

unlawfully in carrying out their duties.”). But whatever the

contours of the officer’s defenses, the critical point for present

(Continued on following page)

The authority to prosecute naturally entails the

authority to investigate. See Imbler v. Pachtman, 424

U.S. 409, 430-31 & n.33 (1976) (recognizing “aspects

of the prosecutor’s responsibility that cast him in the

role of an . . . investigative officer,” and noting that

“[p]reparation, both for the initiation of the criminal

process and for a trial, may require the obtaining,

reviewing, and evaluating of evidence”); Escobedo v.

Illinois, 378 U.S. 478, 492 (1964) (affirming “the

powers of the police to investigate an unsolved crime

. . . by gathering information from witnesses and by

other proper investigative methods”) (internal citations

and quotation marks omitted); Flowers v. Warden,

677 F. Supp. 1275, 1280 (D. Conn.) (“Pursuant to

its police powers, the state investigates, prosecutes,

tries and punishes criminal misconduct.”), rev’d on

other grounds, 853 F.2d 131 (2d Cir. 1988). The fact

that the subjects of the investigation are federal

officers does not displace this basic principle. Thus in

Maryland v. Soper, 270 U.S. 36 (1926), a case involving

the state prosecution of federal prohibition officers

for homicide and for obstruction of justice and

perjury, the Court stressed that without regard to

whether the officers might be able to raise a federal

defense against any of the charges, the State had the

authority, in the first instance, to investigate whether

any of its laws had been broken. “The right of the

purposes is that States have always retained the basic authority

to decide in the first place whether to pursue criminal charges

against federal officers.

state to inquire into suspected crime in its territory,”

the Court explained, “justifies the use of investigation

by its officers and the questioning of suspected persons

under oath,” including of the “federal officers

under suspicion.” Id. at 42. This is a matter of “right”;

it is not merely at the sufferance of the federal authorities.

Ibid. Put simply, a State’s sovereign control

of its laws includes the right to question federal

suspects and to otherwise investigate potential violations

of its laws.

The decision below threatens to undo this dimension

of our federalism. At every turn, the Commonwealth

of Puerto Rico has been denied access to the

information it needs to determine whether any of its

laws were violated during either of the incidents in

question, and by whom. In the case of the Ojeda-Ríos

shooting, the First Circuit acknowledged that allowing

the FBI to withhold the information in question

“raise[d] the possibility that a federal agency may

thwart state criminal proceedings against one of its

own employees.” App. 37-38. But it deemed those

concerns adequately answered by the fact that the

OIG Report – a report commissioned and produced by

an office within the very federal agency whose employees

were responsible for the shooting – “did not

conclude that any of the actions of FBI officials constituted

misconduct.” App. 38-39 (quoting OIG Report

at 42). The OIG Report provided no such adequate

answers, however. First, the OIG did not reach an

affirmative finding that the officers involved committed

no misconduct during the Ojeda-Ríos incident; it

simply “did not conclude” that there had been misconduct.

Second, by the OIG’s own admission, its

investigation was hampered by its need to rely on the

voluntary cooperation of the FBI officers involved. On

certain key issues the officers simply “declined” the

OIG’s request for follow-up statements or other

clarifications, leaving the OIG with unanswered

questions. OIG Report at 25, 28. Third, even with the

limitations just mentioned, the OIG “identified a

number of deficiencies in the FBI’s conduct of the

Ojeda surveillance and arrest operation,” id. at 39,

including “inadequate assessment of the known

circumstances” and violation of “or inconsisten[cy]

with applicable FBI guidelines,” id. at 42. At the very

least, then, the OIG Report confirms that the events

leading up to and during the Ojeda-Ríos shooting

provide substantial cause for concern. Given that, the

First Circuit’s willingness to displace the Commonwealth’s

own sovereign authority to investigate

possible violations of its laws is especially worrisome.

Indeed, whatever the quality of the OIG Report’s

findings, the critical point is that no federal entity –

agency, office, or court – has the authority to dictate

to a State what to conclude with respect to potential

violations of its laws. Cf. Alden v. Maine, 527 U.S.

706, 715 (1999) (States “are not relegated to the role

of mere provinces or political corporations”). The

power to investigate possible violations and to bring

charges where appropriate belongs to the State alone.

The decision below flies in the face of this basic

principle of state sovereignty, casting the principle

itself in doubt. This Court’s review is necessary to

confirm States’ continued, meaningful authority over

their criminal laws.

To be clear, the Commonwealth does not come

before this Court having already determined to file

criminal charges (against a federal officer or anyone

else) in connection with either of the underlying

events at issue here. Nor does the Commonwealth

deny that, if it were to pursue criminal charges

against any federal officers in these matters, the

officers could potentially assert immunity to the

extent that they were acting within the bounds of

their lawful federal authority. It is far too soon to

know whether any such assertion might prevail, and

that very uncertainty illustrates what is at stake in

this case. Fundamentally, this case is about: the

Commonwealth’s – indeed, any State’s5 – authority to

gather evidence regarding events of concern within

its jurisdiction precisely so that it can determine

whether its laws have been violated, who might be

responsible for the violations, what if any defenses or

5 The First Circuit’s decision does not draw any distinction

between the sovereign authority of the Commonwealth of Puerto

Rico and the authority of any State of the Union. Moreover, the

United States has conceded that, for purposes of the issues

presented in this case, the Commonwealth stands on the same

footing as any State. See Ct. App. Appendix at 249, 274 (“The

governmental status of the Commonwealth is immaterial.”); id.

at 245, 266 (“The Commonwealth of Puerto Rico attempts to

assert rights which no sovereign, whether state or foreign

nation, may properly assert. . . .”).

immunities they might be able to assert, and, finally,

what if any criminal charges are appropriate. Denying

the States that authority nullifies a critical component

of their sovereignty.

II. The Availability of Judicial Review Not

Subject to APA Deference Requires Clarification.

A. The Courts of Appeals are Divided Over

Whether the APA’s Deferential Standard

of Review Governs Suits Such as This

One.

In concluding that the Commonwealth’s suit is

subject to the APA’s deferential standard of review,

the First Circuit deepened a disagreement among the

courts of appeals. The Court should grant certiorari

to resolve the disagreement.

The APA waives the federal government’s sovereign

immunity from federal court “action[s] seeking

relief other than money damages” on account of a

federal agency’s or employee’s alleged unlawful

conduct. 5 U.S.C. § 702. The courts of appeals (including

the First Circuit below, see App. 11) are in general

agreement that this waiver covers attempts to compel

agency compliance with subpoenas. See, e.g., In re

SEC ex rel. Glotzer, 374 F.3d 184, 189-90 (2d Cir.

2004); COMSAT Corp. v. National Science Found.,

190 F.3d 269, 274 (4th Cir. 1999); Exxon Shipping Co.

v. U.S. Dep’t of Interior, 34 F.3d 774, 779 n.9 (9th Cir.

1994); Linder v. Calero-Portocarrero, 251 F.3d 178,

181 (D.C. Cir. 2001).6 They are divided, however, on

the question whether and in what circumstances such

“action[s]” are subject to the deferential review

imposed by 5 U.S.C. § 706(2)(A).

Some courts, including the Ninth and D.C. Circuits,

do not confine suits of this sort to review under

APA § 706(2)(A). See Exxon, 34 F.3d 774; Linder, 251

F.3d 178. In Exxon, a suit to compel a number of

federal agencies to comply with discovery requests

relating to a separate civil action between private

parties, the Ninth Circuit held that although the

agencies’ initial refusals constituted the kind of

agency action eligible for review under APA

§ 706(2)(A), the plaintiffs were not confined to such

review. See 34 F.3d at 780 n.11. A suit seeking APA

review was possible but not required. Requiring APA

review, the court observed, could be “inconvenient to

litigants” and might “effectively eviscerate any right to

the requested testimony.” Ibid. (internal quotation

marks and alterations omitted). Thus the court found no

bar to the exercise of what amounted to nonstatutory

6 In each of the cases just cited, the plaintiff ’s subpoena or

other request for information was made in order to advance its

position in a separate judicial or arbitral proceeding. No such

separate action has yet been filed here; the Commonwealth first

needs access to the information in question in order to determine

whether its laws have been broken and whether any

charges should be filed. But none of the cases hold that § 702’s

waiver of sovereign immunity covers only circumstances where a

separate action is pending, nor is there any reason to confine it

in that way.

review of the plaintiff ’s claims. In that posture, the

claims were to be resolved according to the ordinary

rules governing discovery requests, including any

privileges the government might assert. See id. at

780. The deference to federal agency decisions entailed

in APA-style review was not warranted.

Similarly in Linder, an action to enforce subpoenas

served on various federal agencies in connection

with a separate case to which the government was

not a party, the D.C. Circuit emphasized that it had

“never read the waiver contained in APA § 702 to be

limited by APA § 706.” 251 F.3d at 181. Noting that

“[n]othing in the language of § 702 indicates that it

applies only to actions under § 706,” the court instead

applied “the ordinary standard of review to determine

whether a district court properly considered the

motion to compel production.” Ibid. As in Exxon, then,

the court resolved the issue before it without granting

the federal government the deference ordinarily

called for by the APA.

In stark conflict with the Ninth and D.C. Circuits,

the Fourth Circuit treats APA § 706’s deferential

standard as a “limitation upon th[e] waiver” of

sovereign immunity contained in § 702. COMSAT,

190 F.3d at 277. Thus, the court in COMSAT held

that where a federal agency is subpoenaed in connection

with an arbitration to which the government is

not a party, a suit against the agency to enforce the

subpoena must be governed by § 706. Id. at 271, 277.

In the court’s view, “[w]hen an agency is not a party

to an action, its choice of whether or not to comply

with a third-party subpoena is essentially a policy

decision about the best use of the agency’s resources.”

Id. at 278. Applying § 706, the court determined that

a reviewing court may set aside such a decision only

if it is “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with the law.” Id. at 274.

The Fourth Circuit adopted its approach “in full

recognition” that it is irreconcilable with the Ninth

Circuit’s Exxon decision, stating simply that it “decline[

d] to follow th[at] holding.” Id. at 277. The D.C.

Circuit’s later decision in Linder explicitly confirmed

and further entrenched the split. See 251 F.3d at 180

(discussing the conflict between the Fourth and Ninth

Circuits and aligning itself with the latter). More

recently, the Second Circuit has recognized the disagreement

but has declined to take a position on the

issue. See In re SEC ex rel. Glotzer, 374 F.3d at 190-91

(citing Exxon and Linder and recognizing that “some

of our sister circuits have affirmatively held that APA

§ 706 does not apply to motions to compel agency

compliance with subpoenas,” but adhering to an

earlier decision declining to take a position on the

issue). In short, the disagreement among the circuits

on this issue is well-recognized, sharp, and mature.

The decision of the First Circuit in this case only

adds to the inconsistency among the circuits. Although

it concluded that the Commonwealth’s suit

was subject to APA § 706(2)(A), it did so for reasons

other than those relied upon by the Fourth Circuit.

Rather than treating APA § 702’s waiver as categorically

limited to review under § 706, the First Circuit

held that § 706(2)(A) applied unless the Commonwealth

could satisfy what it described as a two-part

test for entitlement to nonstatutory review. App. 15.

As it articulated that test, nonstatutory review is

available (1) “only if its absence would wholly deprive

the party of a meaningful and adequate means of

vindicating its rights,” and (2) only so long as “Congress

. . . ha[s] [not] clearly intended to preclude

review of the agency’s particular determination.” Ibid.

(internal quotation marks and citations omitted). As

we discuss below, the First Circuit’s application of the

two-part test was based upon a misreading of this

Court’s precedents. But whatever its merits, the First

Circuit’s analysis compounded an already entrenched

disagreement among the circuits, creating what

amounts to a three-way split over how to address the

issue.

There is, in short, pervasive disagreement among

the courts of appeals about how to treat a federal suit

to compel agency compliance with subpoenas or other

informational requests relating to separate proceedings

or investigations. The disagreement is of substantial

consequence in this case. Under the approach

adopted by the Ninth and D.C. Circuits, the Commonwealth

would not have to overcome the heavy

deference to federal agency decision making that APA

§ 706(2)(A) entails. In contrast, the First Circuit’s

approach (and the Fourth Circuit’s, which is even more

extreme) effectively treats the relevant federal agency

– here, the FBI – as the principal decision maker. As

we discuss in the next section, that treatment is

fundamentally at odds with state sovereign control

over state criminal law. The point here, though, is

that it is an approach in irreconcilable tension with

that of the Ninth and D.C. Circuits. The Court should

grant the petition to relieve that tension by clarifying

the law in this area.

B. The Deference Entailed in APA § 706(2)(A)

Is Entirely Inappropriate in a Case Involving

a Sovereign’s Control of Its

Criminal Law.

As the Ninth Circuit recognized in Exxon, applying

the APA’s standards to a suit to compel federal

compliance with a subpoena or other informational

request risks imposing undue burdens on the party

seeking the information, and might even “effectively

eviscerate any right” to the information itself. 34 F.3d

at 780 n.11 (internal quotation marks and alterations

omitted). That risk is all the more grave when the

party seeking the information is a sovereign in the

federal system, and when it needs the information in

order to decide whether and how to administer its

criminal laws. Cf. Massachusetts v. EPA, 127 S. Ct.

1438, 1454 (2007) (“States are not normal litigants for

the purposes of invoking federal jurisdiction.”).

The Fourth Circuit’s opinion in COMSAT illustrates

the problem. That case involved a private

plaintiff attempting to obtain information from the

federal government in order to improve its position in

a separate proceeding against another private entity.

Describing the case as pitting a private litigant’s

interests against the “public” interests of the federal

agency, the court determined that “the decision to

permit employee testimony is committed to the

agency’s discretion.” 190 F.3d at 278. “[A] third party

subpoena will [not],” the court insisted, “provide the

private litigant with guaranteed access, at public

expense, to the testimonial evidence of agency employees.”

Ibid.

However accurate an appraisal of the competing

interests in that case, the Fourth Circuit’s description

does not capture the values at stake in a suit by a

State to enforce its sovereign control of its criminal

laws. Cases like this one do not involve private litigants

attempting to deploy public resources to their

advantage in a private dispute; they involve a sovereign

seeking the information it needs to exercise its

exclusive authority to decide whether and how to

enforce its criminal laws. To commit the information

disclosure decision to a federal agency’s discretion

would be to say that the agency – here, the FBI – can

decide whether a State may enforce its criminal laws.

It would entail an abandonment of the “strong judicial

policy against federal interference with state

criminal proceedings.” Manypenny, 451 U.S. at 243.

The same problem plagues the First Circuit’s

application of the two-part test it identified for the

availability of nonstatutory review. As an initial matter,

it is far from clear that the test should govern cases like

this at all. This Court’s cases on nonstatutory review

are concerned principally with determining whether

judicial review should be available in the absence of

final agency action, and thus in an earlier posture

than the law would ordinarily allow. See, e.g., Bd. of

Governors of Fed. Reserve Sys. v. MCorp Fin. Inc., 502

U.S. 32, 44 (1991) (denying nonstatutory review in

part on the ground that “Congress intended to deny

the District Court jurisdiction to review and enjoin

the Board’s ongoing administrative proceedings”); see

also R.I. Dep’t of Envtl. Mgmt. v. United States, 304

F.3d 31, 42 (1st Cir. 2002) (describing the Court’s

nonstatutory review cases, including Leedom v. Kyne,

358 U.S. 184 (1958), as recognizing “a narrow exception

to the general rule of exhaustion for review of

administrative action”). But everyone concedes that

final agency action is present in at least one of the

two underlying cases at issue here (the one involving

the FBI’s refusal to disclose information relating to

the Ojeda-Ríos shooting).7 The FBI’s refusal to comply

with the PRDOJ’s subpoenas is final; there are no

other avenues of potential administrative relief. By

its terms, therefore, the two-part test employed by

the First Circuit should not apply here.

Even if the two-part test does extend to this case,

the First Circuit’s application of it seriously misconceives

the interests at stake. The first part of the test

7 The Commonwealth maintains that the FBI’s refusal to

disclose information relating to the 444 de Diego incident,

followed by the filing of a motion to quash the subpoena requesting

information relating to the incident, also entailed the

requisite final agency action.

asks whether precluding nonstatutory review would

deny the plaintiff of a “meaningful and adequate

opportunity for judicial review.” MCorp, 502 U.S. at

43. The First Circuit answered that question in the

negative on the ground that APA § 706(2)(A) provides

“a means of vindicating [the Commonwealth’s]

rights.” App. 16. As already described, however, APA

§ 706(2)(A) applies in circumstances where the federal

agency has principal policymaking authority. It

is premised on the proposition that the agency is the

institution with the greatest institutional expertise in

the area and that such expertise justifies granting

the agency broad discretion to balance competing

interests as it sees fit. See generally Chevron U.S.A.,

Inc. v. Natural Resources Def. Council, 467 U.S. 837

(1984). The First Circuit’s analysis in this case rested

on just such a premise: It substantially deferred to

the FBI’s refusal to produce the requested materials

and information on the ground that the refusal was

“essentially a policy decision about the best use of the

agency’s resources.” App. 19 (internal quotation

marks and citations omitted).

Such “agency deference” is entirely out of order in

this context. First, as discussed in Part III, infra,

resolving the disclosure issue in this case ultimately

requires the construction and application of the

judicially created doctrine of “law enforcement privilege.”

That privilege is a creature of judicial creation.

Neither Congress nor the courts have delegated to

any federal agency the primary authority to articulate

or apply the privilege. Thus, judicial resolution of

the assertion of law enforcement privilege ought to

entail de novo consideration. The deferential standard

of review prescribed by the APA is entirely

inappropriate in this context.

Second, agency deference is especially inappropriate

in cases, like this one, implicating the investigation

and possible prosecution of state criminal law

violations. The State alone has the authority to decide

whether, when, and against whom to enforce its

criminal laws. In the context of judicial review of a

State’s attempts to obtain the information it needs to

enforce its laws, any rule that would require deference

to the nondisclosure decisions of a federal agency

would “deprive [the State] of a meaningful and adequate

means of vindicating” its control over its laws.

MCorp, 502 U.S. at 43.

To be sure, as discussed below, the courts may be

called upon to weigh a State’s request for certain

materials or information against the federal government’s

interest in nondisclosure as reflected in, for

example, an assertion of law enforcement privilege.

But that review must not be governed by APA

§ 706(2)(A), lest a federal agency be given primacy

over both the federal courts (which are responsible for

construing and applying the law enforcement privilege

they have created) and the States (which must

be granted preeminent oversight of their own laws).

III. The Scope and Application of the Law

Enforcement Privilege Requires Clarification.

A. The Courts of Appeals Disagree as to

the Scope of the Law Enforcement

Privilege, and Are Not Clear as to Its

Application Here.

In Roviaro v. United States, 353 U.S. 53, 59

(1957), this Court recognized a qualified privilege in

the federal government to “withhold from disclosure

the identity of persons who furnish information of

violations of law to officers charged with enforcement

of that law.” In the five decades since Roviaro was

decided, the lower courts have expanded this limited

privilege in numerous and varied ways, often embracing

a much broader concept that has become known

as a “law enforcement privilege.” See, e.g., United

States v. Cintolo, 818 F.2d 980, 983-84 (1st Cir. 1987);

In re Dep’t. of Investig. of the City of New York, 856

F.2d 481 (2d Cir. 1988); United States v. O’Neill, 619

F.2d 222, 229-30 (3d Cir. 1980); In re U.S. Dep’t of

Homeland Sec., 459 F.3d 565, 568-69 (5th Cir. 2006);

In re Sealed Case, 856 F.2d 268, 272 (D.C. Cir. 1988).

The proper contours of the privilege in this area are

now quite uncertain. This Court’s review is required

to bring clarity to the law.

The privilege described in Roviaro has no application

to a case such as this. As the Court there

explained,

The purpose of the privilege is the furtherance

and protection of the public interest in

effective law enforcement. The privilege recognizes

the obligation of citizens to communicate

their knowledge of the commission of

crimes to law-enforcement officials and, by

preserving their anonymity, encourages them

to perform that obligation. The scope of the

privilege is limited by its underlying purpose.

Thus, where the disclosure of the contents

of a communication will not tend to

reveal the identity of an informer, the contents

are not privileged.

353 U.S. at 59-60. Understood this way, the privilege

is concerned with not deterring innocent citizens from

coming forward to tell the government what they

know about criminal activity. That concern is not

present where, as here, the privilege is invoked to

conceal information about individuals who themselves

may be guilty of criminal wrongdoing, thus impeding

the efforts of a government with jurisdiction to investigate

and prosecute such wrongdoing. If “[t]he scope

of the privilege is limited by its underlying purpose,”

id. at 60, then the privilege recognized in Roviaro

simply has no application here, and the Court should

confirm that.

Beyond the narrow Roviaro privilege, the lower

courts have embraced different versions of a law

enforcement privilege. The D.C. Circuit has recognized

a privilege protecting “a public interest in

minimizing disclosure of documents that would tend

to reveal law enforcement investigative techniques or

sources.” Black v. Sheraton Corp. of America, 564

F.2d 531, 545 (D.C. Cir. 1977). The Second Circuit has

articulated a similar privilege designed to “prevent

disclosure of law enforcement techniques and procedures,

to preserve the confidentiality of sources, to

protect witness and law enforcement personnel, to

safeguard the privacy of individuals involved in an

investigation, and otherwise to prevent interference

with an investigation.” In re Dep’t of Investig. of City

of New York, 856 F.2d at 484.

Other courts describe the privilege more narrowly.

The Fifth Circuit, for example, acknowledges

“the existence of a law enforcement privilege beyond

that allowed for identities of confidential informants

[i.e., the Roviaro privilege],” but it relates the privilege

to “information about ongoing criminal investigations”

by the federal government. In re U.S. Dept.

of Homeland Sec., 459 F.3d at 569, 568 (emphasis

added). “[T]he purpose of the privilege in the Fifth

Circuit is to protect from release documents relating

to an ongoing criminal investigation,” thereby safeguarding

the integrity of such investigations as they

proceed. Id. at 569 n.2. It does not appear, however,

that the Fifth Circuit would extend the privilege to

circumstances where, as here, there is no ongoing

federal investigation. See Swanner v. United States,

406 F.2d 716, 719 (5th Cir. 1969) (stating that “pendency

of a criminal investigation is a reason for denying

discovery of investigative reports,” but that the

reason “would not apply indefinitely”). That poses

an important conflict with the broader privilege

recognized by other courts. Clarification from this

Court is in order.

More fundamentally, the facts of this case expose

a deeper uncertainty regarding the scope and application

of the privilege. Until the First Circuit issued its

decision below, cases implicating the law enforcement

privilege generally involved attempts by private

litigants to access federal law enforcement records

and other materials. Neither this Court’s decision in

Roviaro nor the leading lower court decisions expanding

the privilege addressed a sovereign State’s request

for information as part of the administration of

its own criminal laws. Plainly, the interests and

values at stake are very different in such cases.

Indeed, as the Third Circuit has recognized, “[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.” O’Neill, 619 F.2d at 230.

Whether, how, and to what extent a generalized law

enforcement privilege ought to apply in such circumstances

is entirely unclear. The core state interests at

stake cry out for answers from this Court.

B. The First Circuit Erred in its Broad,

Categorical Application of the Law Enforcement

Privilege.

Although it purported to “balanc[e] the federal

government’s interest in preserving the confidentiality

of sensitive law enforcement techniques against the

requesting party’s interest in disclosure,” App. 26-27,

in fact the First Circuit categorically rejected the

Commonwealth’s disclosure requests and applied the

privilege across the board. With respect to information

about the Ojeda-Ríos shooting, the First Circuit

determined that disclosure of the FBI’s operation

order and related protocols and procedures “ha[d] the

potential to thwart future FBI operations by publicizing

the internal operations of that agency.” App. 33.

And although it recognized that the Commonwealth’s

separate request for the names of the federal officers

involved was “distinct from information about FBI

protocols and techniques,” it concluded that the

privilege also covered that information because “the

individuals at issue are not suspected of criminal

activity unrelated to the operation that implicates

those protocols and techniques.” App. 36. This was no

balancing at all, but was instead a categorical embrace

of the FBI’s assertions without any serious

attention to the Commonwealth’s sovereign interests.

The most conspicuous flaw in the First Circuit’s

analysis is its failure to credit the Commonwealth’s

sovereign interest in investigating possible violations

of its laws. The court stated that whereas privilege

assertions are normally litigated in the context of the

cases prompting the requesting party’s need for the

information in question, “[h]ere . . . there is no underlying

litigation; the ‘need’ is Puerto Rico’s assertion

that the requested materials might be of aid to a

criminal investigation.” App. 34. That need was

further lessened here, the court suggested, because

(1) the federal OIG had already investigated the

Ojeda-Ríos shooting, and (2) the Commonwealth’s

power to punish federal officers for violating its laws

is limited by the rule that “federal officials are generally

immune from state prosecution for actions performed

within the scope of their official duties.” App.

34-35. Yet neither of those points diminishes the

Commonwealth’s genuine and legitimate need for the

information it has requested.

As this Court confirmed in Soper, a State has

“the right . . . to inquire into suspected crime in its

territory,” and that right “justifies the use of investigation

by its officers and the questioning of . . . federal

officers under suspicion.” 270 U.S. at 42. If such

investigations yield prosecutions, the defendants may

be able to invoke federal officer immunity to avoid

some or all of the charges. But the possibility of

immunity cannot preclude state investigation in the

first place. The reason, as the First Circuit acknowledged

even as it reached that precise result, is that

such a broad privilege could easily “extend beyond the

scope of the immunity actually available to the officers,”

thus “withhold[ing] information about acts not

taken in the course of their official duties.” App. 35-

36. Preventing the State from accessing critical

information about events facially within its criminal

jurisdiction – here, a death (the Ojeda-Ríos shooting)

and the use of force against journalists (the 444 de

Diego incident) – makes it impossible for the State to

know whether state law was violated, as well as

whether federal immunity shields those responsible

for the violations. A sovereign in the federal system

has the “right” (Soper, 270 U.S. at 42) to answer those

questions for itself – not simply to accept the findings

of a federal agency. By not acknowledging the full

dimensions of that sovereign right, the First Circuit

failed to engage in anything approaching an appropriate

balancing of the interests.

Finally, balancing the interests at stake should

involve the consideration of far more specific information

than the First Circuit relied upon. The proponent

of law enforcement privilege “must make a clear and

specific showing” of the precise harms that disclosure

of each category of information would entail. Schiller

v. City of New York, 244 F.R.D. 273, 281 (S.D.N.Y.

2007). The district court, in turn, should judge the

adequacy of that showing by engaging in its own in

camera examination of the materials in question. See

In re U.S. Dept. of Homeland Sec., 459 F.3d at 570.

And the court should consider employing measures

short of complete nondisclosure, such as a protective

order governing how and by whom the material may

be used. See, e.g., City of New York v. Beretta U.S.A.

Corp., 222 F.R.D. 51, 66 (E.D.N.Y. 2004) (finding that

“the imposition of a protective order would negate the

conditions underlying the application of the law

enforcement privilege”). None of that took place here.

A proper weighing of the interests in this case

would surely have yielded for the Commonwealth at

least some of the information it seeks. At a minimum,

this Court should clarify how the interests implicated in

an assertion of law enforcement privilege should be

weighed, and then remand this case for such weighing.

--------------------------------- ♦---------------------------------

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

ROBERTO J. SÁNCHEZ-RÁMOS

Secretary of Justice

SALVADOR J. ANTONETTI-STUTTS

Solicitor General

KENNETH PAMIAS-VELÁZQUEZ

Special Aide to the

Secretary of Justice

JORGE R. ROIG-COLÓN

Assistant Secretary of Justice

HIRAM A. MELÉNDEZ-JUARBE

Legal Advisor to the

Secretary of Justice

DEPARTMENT OF JUSTICE

COMMONWEALTH OF PUERTO RICO

P.O. Box 9020191

San Juan, PR 00902-0192

(787) 724-2165

TREVOR W. MORRISON

Counsel of Record

116 Myron Taylor Hall

Ithaca, NY 14853

(607) 255-9023

November 2007

App. 1

490 F.3d 50

United States Court of Appeals, First Circuit.

COMMONWEALTH OF PUERTO RICO,

Plaintiff, Appellant,

UNITED STATES of America; Alberto R. Gonzales,

Attorney General; Robert Mueller, Director of the

FBI; Rosa Emilia Rodriguez-Vélez, U.S. Attorney for

the District of Puerto Rico; and Luis S. Fraticelli,

Special Agent in Charge of the FBI in Puerto Rico,

Defendants, Appellees.

No. 06-2449.

Heard Jan. 11, 2007.

Decided June 15, 2007.

Salvador J. Antonetti-Stutts, Solicitor General,

with whom Roberto J. Sánchez-Rámos, Secretary of

Justice, Kenneth Pamias-Velázquez, Special Aide to

the Secretary of Justice, Jorge R. Roig-Colón, Assistant

Secretary of Justice, and Hiram A. Meléndez-

Juarbe, Legal Advisor to the Secretary of Justice,

were on brief, for appellant.

Mark B. Stern, Civil Division, Department of

Justice, with whom Peter D. Keisler, Assistant Attorney

General, Rosa Emilia Rodriguez-Vélez, U.S.

Attorney, Jonathan F. Cohn, Deputy Assistant Attorney

General, and Alisa B. Klein, Civil Division,

Department of Justice, were on brief, for appellees.

App. 2

Before BOUDIN, Chief Circuit Judge, LIPEZ,

Circuit Judge, and SHADUR,* Senior District Judge.

LIPEZ, Circuit Judge.

This case presents a novel question: does the

Commonwealth of Puerto Rico have a nonstatutory

cause of action, grounded in its sovereign authority

under the Constitution, to obtain information from

the Federal Bureau of Investigation (“FBI”) in connection

with a criminal investigation into the activities

of FBI employees? We conclude that it does not.

Instead, under the circumstances of this case, Puerto

Rico must pursue the information it seeks under the

Administrative Procedure Act (“APA”), 5 U.S.C.

§§ 701-706. Further, in keeping with persuasive

authority from other circuits, we hold that the FBI

may assert a qualified privilege to protect sensitive

law enforcement techniques and procedures from

disclosure. Having considered the application of that

privilege in this case, we affirm the decision of the

district court holding that the FBI did not err in

withholding the requested information.

This appeal involves two consolidated district

court cases, Nos. 06-1306 and 06-1305,1 arising from

* Of the Northern District of Illinois, sitting by designation.

1 The events in No. 06-1306 occurred before those in No. 06-

1305, so we will discuss No. 06-1306 first despite its higher

docket number.

App. 3

subpoenas for FBI records issued by the Puerto Rico

Department of Justice (“PRDOJ”). The relevant facts

are largely undisputed; where disputes exist, we note

them but find that they are immaterial to our disposition

of the case.

A. Case No. 06-1306: Ojeda Subpoena

In the 1970s, Filiberto Ojeda Ríos helped found

the Macheteros, an organization that advocates

independence for Puerto Rico through armed struggle

against the United States government. In 1983, the

Macheteros stole $7.1 million from a bank in Connecticut.

The FBI apprehended Ojeda in 1985, and,

during his arrest, Ojeda shot an FBI agent in the

face, permanently blinding the agent in one eye.

Ojeda was acquitted for assaulting the agent following

a trial in Puerto Rico. He then skipped bail while

on trial for bank robbery and was sentenced in absentia

in 1992. Fifteen years later, in September 2005,

the FBI attempted to apprehend Ojeda at his residence

in Hormigueros, Puerto Rico. During this

intervention, Ojeda shot two FBI agents and was

himself fatally wounded.

The PRDOJ commenced an investigation into the

intervention. On October 4, 2005, a PRDOJ prosecutor

issued a subpoena pursuant to title 34, section

1476 of the Puerto Rico Code commanding then

United States Attorney Humberto Garcia to produce

materials including: (1) a copy of the “Operation

Order” (a document establishing the plan or rules of

App. 4

engagement for the FBI intervention at Ojeda’s

residence); (2) the name, rank, division, address, and

telephone numbers of every person who participated

in or made decisions regarding the intervention, as

well as an organizational diagram showing these

individuals’ rank on the line of command; (3) various

equipment, including, but not limited to, all bulletproof

vests, helmets, weapons, and vehicles involved

in the intervention; (4) any inventory of the property

occupied during the intervention; (5) copies of any

expert reports relating to the intervention or Ojeda’s

death; (6) copies of any audio or video recordings of

the events relating to the intervention; (7) copies of

all photographs relating to the intervention; and (8)

copies of any relevant general FBI protocols, including

those relating to violent interventions and potentially

deadly force. In subsequent correspondence, the

PRDOJ explained that the requests related to a

“criminal investigation” that it was conducting into

Ojeda’s death.

By letter dated October 17, the FBI declined to

produce the requested materials, explaining that its

internal regulations prohibited disclosure of records

compiled for law enforcement purposes. The letter

stated that the denial of the PRDOJ’s request was a

“final agency decision which may be reviewed by the

United States District Court.”

After further communications among the

PRDOJ, FBI, and United States Attorney’s Office, the

U.S. Attorney indicated by letter dated November 9

that the FBI would allow the PRDOJ to examine

App. 5

some of the items listed in the subpoena, including

the bulletproof vests, helmets, weapons, and vehicles

used during the intervention and the photographs

taken before, during, and after the intervention. The

FBI stipulated that it would retain official custody of

these items and that an FBI official would be present

during the inspection.

The PRDOJ initially acceded to these terms, but

subsequently reiterated the substance of its original

demand in a letter dated January 20, 2006. The FBI

refused this demand, again noting that its refusal

constituted “final agency action.” The PRDOJ filed

suit in March 2006 to compel disclosure of the requested

materials.

B. Case No. 06-1305: 444 de Diego Subpoena

Using information obtained from Ojeda’s residence

to establish probable cause, the FBI obtained a

search warrant for a residential condominium located

at 444 de Diego in San Juan, Puerto Rico. The FBI

executed the warrant in February 2006, and a large

group of protesters, reporters, and members of the

general public gathered outside. The United States

asserts that some of these individuals breached an

established police line, and an FBI agent used pepper

spray to keep people behind the line.

The PRDOJ issued subpoenas to U.S. Attorney

Garcia and to Luis Fraticelli, Special Agent in Charge

of the FBI San Juan Field Office, requesting three

categories of materials: (1) the name, rank, division,

App. 6

address, and telephone number of the two FBI agents

who allegedly used pepper spray and whose photos

were attached to the subpoena; (2) official photographs

of these two FBI agents; and (3) internal FBI

protocols relating to the use of force and pepper spray.

The PRDOJ explained that the subpoenas were “part

of the criminal investigation” of the PRDOJ into “the

conduct of FBI agents during the execution of a

search warrant” at 444 de Diego.

The FBI moved to quash the subpoenas in federal

district court. After the PRDOJ indicated, at a hearing

on March 2, that “it was actually evaluating other

avenues through which to get the information about

the federal agents, and that it had no serious intention

of enforcing the challenged subpoenas,” the

district court concluded that the subpoenas were

“effectively mooted.” The court thus withheld action

on the motion to quash. Subsequently, on March 23,

the PRDOJ filed suit to compel the release of the

requested records.

C. Proceedings Before the District Court

Puerto Rico’s complaint in No. 06-1306 sought a

declaratory judgment recognizing its 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 ordering Defendants to comply with the Commonwealth’s

requests and produce the subpoenaed

App. 7

information, objects and documents[.]” The complaint

in No. 06-1305 sought identical relief with respect to

Puerto Rico’s “investigation into the events allegedly

leading to the injury of members of the press and/or

the public . . . on February 10, 2006, due to the alleged

use of excessive force (including the alleged use

of pepper spray) by FBI agents[.]”

In each complaint, Puerto Rico articulated five

causes of action which entitled it to its requested

relief. First, it stated that the FBI’s decisions were

not premised upon any federal regulation or statute.

Second, it stated that the FBI’s decisions exceeded

any authority granted by the Housekeeping Act, 5

U.S.C. § 301. Third, it asserted a nonstatutory cause

of action to vindicate its constitutional sovereign

authority to enforce its criminal laws by obtaining the

requested information. Fourth, it contended that APA

review was “unwarranted” because such review

“would impose an undue burden on the exercise of

sovereign criminal authority that would run afoul of

the Tenth Amendment.” Finally, Puerto Rico claimed

that, even if reviewed under the APA, the FBI’s

decision to withhold the information was arbitrary,

capricious, and an abuse of discretion.

The district court consolidated the cases, the

United States moved to dismiss, and Puerto Rico filed

a motion for summary judgment. After considering

these motions, the district court concluded that

Puerto Rico had failed to establish a basis for its

requested relief. The court rejected Puerto Rico’s first

two causes of action, explaining that, although the

App. 8

FBI’s internal regulations did not create a substantive

right to withhold the information, the regulations

incorporated federal common law establishing a

privilege for law enforcement materials. The court

also dismissed Puerto Rico’s third cause of action,

holding that Puerto Rico could not assert a nonstatutory

cause of action, based on its sovereign right to

enforce its criminal laws, to obtain the requested

materials. The court thus concluded that Puerto

Rico’s request was subject to judicial review under the

provisions of the APA, thereby rejecting Puerto Rico’s

fourth cause of action. Finally, on Puerto Rico’s fifth

and final cause of action, the court applied the APA’s

framework for review. Noting the FBI’s interest in

maintaining the confidentiality of sensitive law

enforcement techniques, it found that the FBI’s

decision with respect to the Ojeda subpoena was

neither arbitrary nor capricious. With respect to the

444 de Diego subpoena, the court concluded that

there had been no final agency action, and thus the

FBI’s failure to release the information was not

subject to judicial review. In sum, the court dismissed

Puerto Rico’s first through fourth causes of action,

and, on the fifth cause of action, denied Puerto Rico’s

motion for summary judgment and granted summary

judgment to the United States.

This appeal ensued.

App. 9

II.

On appeal, Puerto Rico first contends that its

sovereign right to enforce its criminal laws provides it

with a nonstatutory cause of action to obtain the

information it seeks from the FBI. It explains that,

under our federal constitutional system, a state has a

“judicially cognizable interest in the preservation of

[its] own sovereignty,” which includes its “ability to

punish wrongdoers and enforce its criminal laws”

and, more specifically, “to prosecute federal agents if

they have acted unlawfully in carrying out their

duties.”2 Consequently, “any impermissible federal

interference with such constitutional sovereignty is

amenable to resolution by a federal district court

under its equitable powers.” Puerto Rico concludes

that “[a] direct cause of action for equitable relief is

the only avenue to properly vindicate a State’s constitutional

claim of sovereign[ ] authority to enforce its

criminal laws.”

Although Puerto Rico acknowledges that agency

decisions are normally reviewed under the APA, it

argues that such review is inappropriate because: (1)

“[i]t is unfounded to subject a State’s sovereign penal

authority to an administrative process that will be

followed by an extremely limited form of judicial

review”; (2) such review will place Puerto Rico “in a

worse position to obtain information than private

2 The parties agree that Puerto Rico is situated identically

to a state for purposes of this appeal.

App. 10

parties” who can sue the federal government and

request discovery under Federal Rule of Civil Procedure

26; and (3) APA review would allow the federal

government to “commandeer[ ] state prosecutorial

powers by deciding what information the State

should consider in its investigations.”3

As in all suits against the federal government, we

must first consider whether sovereign immunity bars

this claim. “It is long settled law that, as an attribute

of sovereign immunity, the United States and its

agencies may not be subject to judicial proceedings

unless there has been an express waiver of that

immunity.” EPA v. Gen. Elec. Co., 197 F.3d 592, 597

(2d Cir.1999). The APA waives sovereign immunity

under certain conditions:

A person suffering legal wrong because of

agency action . . . is entitled to judicial review

thereof. An action in a court of the

United States seeking relief other than

3 With respect to the “commandeering” issue, Puerto Rico

does not develop its argument other than to cite to New York v.

United States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120

(1992), and Printz v. United States, 521 U.S. 898, 117 S.Ct. 2365,

138 L.Ed.2d 914 (1997), which established that the federal

government may not “commandeer” state governments by

compelling state officials to enact or administer a federal

regulatory program. In light of the lack of developed argumentation,

we find it unnecessary to address this claim. See Ryan v.

Royal Ins. Co. of Am., 916 F.2d 731, 734 (1st Cir.1990) (explaining

that issues “adverted to on appeal in a perfunctory manner,

unaccompanied by some developed argumentation, are deemed

to have been abandoned”).

App. 11

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 or

that the United States is an indispensable

party.

5 U.S.C. § 702.4 This waiver is for “ ‘all equitable

actions for specific relief against a Federal agency or

officer acting in an official capacity,’ “Trudeau v. Fed.

Trade Comm’n, 456 F.3d 178, 186 (D.C.Cir.2006)

(quoting Sea-Land Serv., Inc., v. Alaska R.R., 659

F.2d 243, 244 (D.C.Cir.1981)), and thus “ ‘applies to

any suit whether under the APA or not.’ ” Id. at 186

(D.C.Cir.2006) (quoting Chamber of Commerce v.

Reich, 74 F.3d 1322, 1328 (D.C.Cir.1996)); see also

Hostetter v. United States, 739 F.2d 983, 985 (4th

Cir.1984) (“In section 702 Congress has waived the

defense of sovereign immunity in such nonstatutory

review cases in which nonmonetary relief is

sought. . . . ”); Jaffee v. United States, 592 F.2d 712,

719 (3d Cir.1979) (“By waiving sovereign immunity in

suits for ‘relief other than money damages,’ the

Congress sought to ‘facilitate nonstatutory judicial

4 At least one court has held that a state qualifies as a

“person” within the meaning of the APA, see Md. Dep’t of Human

Res. v. Dep’t of Health & Human Servs., 763 F.2d 1441, 1445 n. 1

(D.C.Cir.1985), and the government does not argue otherwise

here.

App. 12

review of Federal administrative action. . . . ’ ” (citation

omitted)).

Although this persuasive authority indicates that

sovereign immunity would pose no bar to Puerto

Rico’s claim for nonmonetary relief, the question

remains whether Puerto Rico has the nonstatutory

cause of action it invokes. In prior cases involving

subpoenas issued by state entities, courts have held

that the party requesting the subpoena must proceed

under the APA. Houston Bus. Journal, Inc. v. Office of

Comptroller of the Currency, 86 F.3d 1208, 1212

(D.C.Cir.1996) (“[A] state-court litigant must request

the documents from the federal agency pursuant to

the agency’s regulations. . . . If the agency refuses to

produce the requested documents, the sole remedy for

the state-court litigant is to file a collateral action in

federal court under the APA.”); Edwards v. U.S. Dep’t

of Justice, 43 F.3d 312, 316 (7th Cir.1994) (“The

subpoenas were in effect a request for information

from an executive department. . . . The subpoena is

treated as an administrative demand.”(citations

omitted)).

Puerto Rico asserts, however, that its suit is an

exception to this principle due to its constitutionallybased

sovereign authority to enforce its criminal

laws. It is uncontroverted that states may enact and

enforce criminal laws, and that this power is constitutional

in nature. As the Supreme Court explained in

Heath v. Alabama, 474 U.S. 82, 106 S.Ct. 433, 88

L.Ed.2d 387 (1985), “[t]he Constitution leaves in the

possession of each State ‘certain exclusive and very

App. 13

important portions of sovereign power.’ Foremost

among the prerogatives of sovereignty is the power to

create and enforce a criminal code.” Id. at 93, 106

S.Ct. 433 (quoting Federalist No. 9); see also Engle v.

Isaac, 456 U.S. 107, 128, 102 S.Ct. 1558, 71 L.Ed.2d

783 (1982) (“The States possess primary authority for

defining and enforcing the criminal law. . . . Federal

intrusions into state criminal trials frustrate . . . the

States’ sovereign power to punish offenders. . . . ”).

When a party claims that a violation of its constitutional

rights has occurred and it has “no effective

means other than the judiciary to enforce these

rights, [that party] must be able to invoke the existing

jurisdiction of the courts for the protection of [its]

justiciable constitutional rights.” Davis v. Passman,

442 U.S. 228, 242, 99 S.Ct. 2264, 60 L.Ed.2d 846

(1979); see also Bivens v. Six Unknown Named Agents

of Fed. Bureau of Narcotics, 403 U.S. 388, 389, 91

S.Ct. 1999, 29 L.Ed.2d 619 (1971) (holding that a

“cause of action for damages” arises under the Constitution

when federal officers violate Fourth Amendment

rights). Where, as here, a state has asserted a

right that is constitutional in nature, “we are bound