United States District Court, E.D. Virginia, Alexandria Division
T. S. ELLIS, III UNITED STATES DISTRICT JUDGE.
Plaintiff has been indicted in Virginia state court for possession of child pornography in violation of Va. Code § 18.2-374.1. This state prosecution is based, in part, on evidence collected by federal agents in the Department of Homeland Security ("DHS"). Plaintiff believes that DHS's investigation violated the Fourth Amendment, and he accordingly seeks documentary and testimonial information from DHS relating to its investigation in order to establish that a constitutional violation occurred. DHS, as is true of many federal agencies, requires litigants seeking to obtain information of the sort sought by plaintiff to comply with Touhy regulations, which govern the manner in which persons may subpoena documents and testimony from DHS. Because plaintiffs attempts to obtain information from DHS have not borne fruit, plaintiff launches a frontal assault on DHS's Touhy regulations, specifically by contending that DHS is hiding behind its Touhy regulations as a means of concealing its unconstitutional conduct in gathering information about plaintiff. As such, plaintiff argues that the Constitution precludes DHS from enforcing its Touhy regulations against plaintiff with respect to plaintiffs attempt to obtain information bearing on his state court prosecution, and plaintiff therefore seeks declaratory and injunctive relief to excuse his compliance with DHS's Touhy regulations.
DHS moved to dismiss plaintiffs Complaint for lack of jurisdiction and for failure to state a claim pursuant to Rules 12(b)(1) and 12(b)(6), Fed.R.Civ.P. The motion was fully briefed and argued orally. As the analysis that follows demonstrates, the proper means of raising constitutional claims of the sort plaintiff asserts here is through the Administrative Procedure Act ("APA"),  not through a broad constitutional attack on the application of the regulations generally. Moreover, even assuming this lawsuit is a proper means of obtaining the relief plaintiff seeks, the constitutional arguments he presents in this case all fail. Accordingly, DHS's motion to dismiss must be granted.
Plaintiff is under indictment in Virginia state court on charges of possession of child pornography. The Commonwealth's prosecution of plaintiff is based on certain evidence obtained under a federal search warrant. Plaintiff alleges that the Commonwealth continues to work in cooperation with defendant DHS, specifically through DHS Special Agent David Liu.
DHS has promulgated formal Touhy regulations governing whether, and under what circumstances, documentary and testimonial information from the agency may be released in official proceedings. See 6 C.F.R. § 5.41 et seq. DHS's Touhy regulations prohibit employees from providing documentary or testimonial information obtained in the performance of official duties unless the DHS Office of General Counsel authorizes the disclosure. See 6 C.F.R. § 5.44. At the same time, these regulations permit the sharing of information and materials with, inter alia, state prosecuting authorities. Id. § 5.41 (i).
On July 14, 2015, plaintiff served a state court subpoena on Special Agent Liu, containing twenty-five requests for the production of DHS documents. A second subpoena seeking to compel Special Agent Liu's testimony issued on August 19, 2015. DHS's position in the state court proceedings has been that plaintiff must comply with DHS's Touhy regulations in order to obtain the information sought. Nevertheless, by letter dated October 22, 2015, relevant agency counsel permitted Special Agent Liu to testify to limited facts.
Plaintiff filed the instant action in January 2016, challenging the application of DHS's Touhy regulations to his requests for documentary and testimonial information from DHS regarding plaintiffs pending state court charges. In essence, plaintiff argues that because DHS participated (and allegedly continues to participate) in the investigation underlying the state prosecution, DHS's invocation of its Touhy regulations in response to plaintiffs subpoenas violates plaintiffs constitutional rights. Importantly, this is neither a case challenging DHS's collection of information about plaintiff under the Fourth Amendment, nor is this a case challenging any specific decision by DHS to deny plaintiff access to testimony or documents that plaintiff deems relevant to his defense in state court. Rather, this is a case in which plaintiff contends, relying on the First, Fourth, Fifth, Sixth, and Fourteenth Amendments, that in his circumstances he is exempt from complying with DHS's Touhy regulations.
That state criminal defendants must comply with federal Touhy regulations when seeking from federal agencies information relating to the state prosecutions is well settled. In United States v. Williams, 170 F.3d 431, 434 (4th Cir. 1999), the Fourth Circuit held that the FBI's assistance with a state criminal investigation did not excuse the criminal defendant there from complying with the FBI's Touhy regulations in order to obtain information relating to the state prosecution. Indeed, the Fourth Circuit in Williams expressly rejected the argument that "because the FBI was assisting state authorities in their investigation of the state crimes...the FBI should not be allowed to require compliance with the [Touhy] regulations." Id. And moreover, the Fourth Circuit noted that "[t]he proper method for judicial review" of an adverse decision under a federal agency's Touhy regulations "is through the [APA]." In such a proceeding, the state criminal defendant "may assert his constitutional claim to the investigative information." Id.Accordingly, it is pellucid under Fourth Circuit authority that the federal government may require compliance with Touhy regulations where, as here, a state criminal defendant seeks information from a federal agency involved in the investigation underlying the state prosecution. The proper means of raising constitutional claims to federal agency information is by complying with Touhy regulations and seeking review of an adverse decision under the APA.
Plaintiff argues that relief under the APA does no good where a federal agency delays issuing a decision under its Touhy regulations in a manner that prejudices a state criminal defendant's defense. That, plaintiff argues, is precisely what DHS did in this case-in plaintiffs view, DHS delayed action on plaintiffs requests for information under the applicable Touhy regulations in hope that the state prosecution would proceed to completion before DHS acted. This argument fails; the APA provides a cause of action by which a plaintiff may seek to "compel agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706(1). Thus, before plaintiffs requests for information from DHS were denied, plaintiff was free to file a lawsuit seeking relief under the APA directing DHS to issue a final decision, which would in turn be reviewable under APA § 706(2). In short, not only is an action under the APA the appropriate means of raising constitutional challenges to federal agency decisions under Touhy regulations, but it is also the appropriate means of preventing the federal government from prejudicing a state criminal defendant's interests by delaying action on requests for information.
Even apart from Williams and the principle that plaintiffs claims should be presented by way of an APA lawsuit challenging specific final agency decisions, the constitutional claims that plaintiff asserts in this lawsuit all fail. First, plaintiff raises a substantive and procedural due process claim under the Fourth, Fifth, Sixth, and Fourteenth Amendments. See Comp.¶ 56a. Of course, due process guarantees are absent from the Fourth and Sixth Amendments, and the Fourteenth Amendment's Due Process Clause applies only to states. As such, analysis properly focuses on the Fifth Amendment. To the extent plaintiff alleges that requiring compliance with Touhy regulations amounts to a Brady violation,  Williams forecloses that argument. As the Fourth Circuit explained in Williams, "requiring that a state criminal defendant comply with [Touhy] regulations as a prerequisite to obtaining potentially exculpatory information" is not equivalent to "authorizing] [a federal agency] to withhold such information where it has participated in the investigation of the alleged crimes at issue." See Williams, 170 F.3d at 434. In other words, a Brady violation does not occur merely because a federal agency requires a state criminal defendant to request potentially exculpatory information via the process set forth in relevant Touhy regulations.
As to procedural due process, the availability of "meaningful judicial review" under the APA provides plaintiff with a means of being fully heard on any constitutional claims. See id; cf. Doolin Sec. Sav. Bank, F.S.B. v. FDIC, 53 F.3d 1395, 1404-05 (4th Cir. 1995) (finding "that the FDIC's procedures to review assessment risk classifications satisfy due process because [plaintiff] could have sought APA judicial review of the decision"). Finally, as to any substantive due process argument, executive actions-such as requiring compliance with Touhy regulations-are reviewed for whether the action is "shocking to the judicial conscience." Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846-47 (1998). To require compliance with a regulatory scheme that is subject to judicial review in order to obtain federal agency information cannot be said to rise to the level of shocking the conscience.
Plaintiff also makes an equal protection argument under the Fifth Amendment, which incorporates the Fourteenth Amendment's equal protection guarantee against the federal government through the Due Process Clause. See Boiling v. Sharpe, 347 U.S. 497, 499-500 (1954). This argument also fails. The Touhy regulations in issue distinguish state and local law enforcement authorities, with whom DHS may share information freely, from other persons or entities, who must comply with the Touhy regulations. See Comp. ¶¶ 20, 56b. This regulatory distinction is not based on a suspect classification, e.g., race or gender, and therefore is subject only to rational basis review, under which the distinction "must be upheld against [an] equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." FCC v. Beach ...