UNITED STATES’ AMICUS BRIEF IN RESPONSE TO DECEMBER 15, 2014 ORDER Case 2:09-cv-00208-KJM-EFB Document 235 Filed 01/30/15 Page 7 of 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Where, as here, DOJ is not a party to the litigation, DOJ’s regulations expressly prohibit employees from producing material in the absence of a “subpoena, order, or other demand . . . of a court or other authority” to DOJ and, “without prior approval of the proper [DOJ] official.” 28 C.F.R. §§ 16.21(a)(2), 16.22(a).

Houston Business Journal, 86 F.3d at 1212. See 28 C.F.R. §§ 16.21 - 16.29; see also, Edwards v. Dep't of Justice, 43 F.3d 312, 315 (7th Cir. 1994); Envtl.

PRODUCTION OF THE REQUESTED DOCUMENTS WOULD VIOLATE THE PRIVACY ACT Assuming arguendo that the Court were to conclude that § 1782 does apply to Warden Terrell, even though he is a federal employee – such that the Court has jurisdiction to entertain petitioner’s application – that application should still be denied because petitioner seeks documents that are protected by the Privacy Act. A. BOP Touhy Regulations Bar Production That Would Violate A Statute Where a BOP employee – such as Warden Terrell – who is not a party to the underlying litigation, is faced with discovery requests, his compliance is governed by 28 C.F.R. §§ 16.21 et seq. (“BOP Touhy regulations”). The statutory authority for the BOP Touhy regulations is found at 5 U.S.C. § 301, which authorizes the head of every Executive Branch agency to “prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use and preservation of its records, papers, and property.”

Such limitations do not apply when a federal court exercises its subpoena power against federal officials. Exxon, 34 F.3d at 778 (citation omitted); see also In re Elko County Grand Jury, 109 F.3d 554 (9th Cir. 1997) (state court lacks jurisdiction to issue subpoena to federal employee); Swett v. Schenk, 792 F.2d 1447, 1451 (9th Cir. 1986) (state court lacks jurisdiction to hold federal official in contempt for failure to comply with a state court order); FBI v. Superior Court of California, 507 F. Supp. 2d 1082, 1092-93 (N.D. Cal. 2007); Boron Oil Co. v. Downie, 873 F.2d 67, 70 (4th Cir. 1989) (district court lacks jurisdiction to compel federal employee to testify in state court action).1 1 Although the City of Colton references 28 C.F.R. § 16.21 et seq. (the "Touhy regulations,") in its Petition, Colton has not brought an action challenging any decision by the United States Attorney regarding a request for testimony from federal employees. Therefore, this Court need not reach the merits of Colton's request for testimony.

1The United States does not construe this as a request for information under 28 C.F.R. §§ 16.21 - 16.29, also known as the “Touhy” regulations, and in no way waives its rights under those regulations.

3 dismissed without prejudice. C. Contorinis’s Touhy Request By letter dated November 23, 2009, with an accompanying subpoena (the “Contorinis Request”) Contorinis made a request pursuant to the Department of Justice’s Touhy regulations, see 28 C.F.R. § 16.21 et seq.; United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951), seeking the production of “All documents including any reports, emails, recordings or any other type of record related to statements made by defendant Nicos Achilleas Stephanou to any government official or entity.”