Commonwealth of PR v. United States

United States Court of Appeals
For the First Circuit
No. 06-2449

COMMONWEALTH OF PUERTO RICO,

Plaintiff, Appellant,

v.

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.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, Chief U.S. District Judge]

Before

Boudin, Chief Circuit Judge,

Lipez, Circuit Judge,

and Shadur,* Senior District Judge.

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

*
Of the Northern District of Illinois, sitting by designation.
Attorney General, and Alisa B. Klein, Civil Division, Department of
Justice, were on brief, for appellees.

June 15, 2007
 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.

I.

This appeal involves two consolidated district court

cases, Nos. 06-1306 and 06-1305,1 arising from subpoenas for FBI

records issued by the Puerto Rico Department of Justice ("PRDOJ").

The relevant facts are largely undisputed; where disputes exist, we

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.

-3-
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 engagement for the FBI

intervention at Ojeda's residence); (2) the name, rank, division,

address, and telephone numbers of every person who participated in

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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 bullet-proof 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 some of the items listed in the subpoena, including the

bulletproof vests, helmets, weapons, and vehicles used during the

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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, address, and telephone number of the two FBI agents

who allegedly used pepper spray and whose photos were attached to

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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 information,

objects and documents[.]" The complaint in No. 06-1305 sought

identical relief with respect to Puerto Rico's "investigation into

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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 FBI's internal

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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.

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 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

2
The parties agree that Puerto Rico is situated identically
to a state for purposes of this appeal.

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information than private 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 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

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 (1992), and Printz v. United States, 521 U.S.
898 (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").

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 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 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

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.

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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 the 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 constitutionally-based

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 (1985), "[t]he

Constitution leaves in the possession of each State 'certain

exclusive and very important portions of sovereign power.'

Foremost among the prerogatives of sovereignty is the power to

create and enforce a criminal code." Id. at 93 (quoting Federalist

No. 9); see also Engle v. Isaac, 456 U.S. 107, 128 (1982)("The

States possess primary authority for defining and enforcing the

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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 (1979); see also Bivens v. Six Unknown

Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 389

(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 by a strong presumption in

favor of providing the state some vehicle for vindicating its

rights." R.I. Dep't of Envtl. Mgmt. v. United States ("RIDEM"),

304 F.3d 31, 41 (1st Cir. 2002).

In the context of agency action, parties occasionally

invoke the principles of "nonstatutory review." Nonstatutory

review is available pursuant to the general "federal question"

jurisdiction of the federal courts under 28 U.S.C. § 1331 in

situations where "Congress makes no specific choice of [the court

in which judicial review is to occur] in the statute pursuant to

which the agency action is taken, or in another statute applicable

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to it." Five Flags Pipe Line Co. v. Dep't of Transp., 854 F.2d

1438, 1439 (D.C. Cir. 1988). "The basic premise behind

nonstatutory review is that, even after the passage of the APA,

some residuum of power remains with the district court to review

agency action that is ultra vires." RIDEM, 304 F.3d at 42. Thus,

if "a plaintiff is unable to bring his case predicated on either a

specific or a general statutory review provision, he may still be

able to institute a non-statutory review action." Reich, 74 F.3d

at 1327 (citing Clark Byse & Joseph V. Fiocca, Section 1361 of the

Mandamus and Venue Act of 1962 and "Nonstatutory" Judicial Review

of Federal Administrative Action, 81 Harv. L. Rev. 308, 321

(1967)). Puerto Rico claims that the FBI acted outside the scope

of its legal authority in withholding the requested materials, in

violation of the Constitution, and that the Constitution itself

provides a basis for nonstatutory review of that violation.

In RIDEM, we evaluated a similar claim for nonstatutory

review that was "constitutional in scope." 304 F.3d at 41. There,

the state of Rhode Island brought suit to assert that its sovereign

immunity (a "constitutionally protected sovereign interest")

entitled it to enjoin an administrative proceeding that the

Department of Labor had initiated against it. Id. at 36. We noted

that the Supreme Court has established two "critical factors [that]

must be present to invoke nonstatutory review." RIDEM, 304 F.3d at

42. First, such review may occur only if its absence would

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"'wholly deprive the party of a meaningful and adequate means of

vindicating its . . . rights.'" Id. (quoting Bd. of Gov'rs of Fed.

Reserve Sys. v. McCorp. Fin., 502 U.S. 32, 43 (1991)). Second,

"Congress must not have clearly intended to preclude review of the

agency’s particular determination." Id. at 42-43 (citing Bd. of

Gov'rs, 502 U.S. at 44). We then applied these two factors and

concluded that Rhode Island had a direct, nonstatutory cause of

action to enjoin an administrative proceeding on the ground of

sovereign immunity, even though the APA requires that parties

exhaust their administrative remedies before seeking judicial

review. Id. at 43. We explained that Rhode Island had no other

avenue for vindicating its right to immunity from suit and that

Congress had not explicitly precluded its action. Id. Moreover,

we emphasized that "general equitable considerations" favored a

nonstatutory action, including the fact that Rhode Island had

claimed the violation of "a clear right that is constitutional in

nature" and that its "immunity would be effectively lost absent

judicial review." Id.

Puerto Rico’s situation differs materially from that of

Rhode Island in RIDEM. Critically, with respect to the first

requirement for nonstatutory review, Puerto Rico does have a means

of vindicating its rights without nonstatutory review: the APA.5

5
Although RIDEM is the only case the parties have cited that
involves a sovereign entity attempting to assert its
constitutionally-based sovereign prerogatives, other cases support

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Within that judicial review framework, Puerto Rico may assert its

sovereign interest in enforcing its criminal laws as a

consideration in our review of the agency's decision. Thus, we

cannot conclude that Puerto Rico's rights "would be effectively

lost absent judicial review." Id. at 43 (citing Morales v. Trans

World Airlines, 504 U.S. 374, 381 (1992)). Likewise, with respect

to the second requirement, although Congress has not explicitly

prohibited nonstatutory review in a case such as this, the

existence of the APA as a means for reviewing the FBI's actions at

least implies that nonstatutory review is inappropriate.

We recognize that nonstatutory review might have allowed

Puerto Rico to obtain a more favorable standard of review and to

circumvent certain of the APA’s procedural requirements. However,

in considering Puerto Rico's demand for a more favorable standard

of judicial review on constitutional grounds, we must be mindful of

the notion that the absence of another avenue for the parties to
vindicate their rights is a necessary condition for nonstatutory
review. For example, in Leedom v. Kyne, 358 U.S. 184, 190-91
(1958), the Court held that the president of a union had a
nonstatutory cause of action to file suit against the National
Labor Relations Board to set aside the NLRB’s certification, in
violation of 29 U.S.C. § 159(b)(1), of a bargaining unit including
both professional and nonprofessional employees. The Court
explained that a critical factor in allowing the union president to
bring suit despite the lack of explicit statutory authorization was
that "'absence of jurisdiction of the federal courts' would mean 'a
sacrifice or obliteration of a right which Congress' has given
professional employees, for there is no other means, within their
control to protect and enforce that right." Id. at 190 (quoting
Switchmen's Union of N. Am. v. Nat'l Mediation Bd., 320 U.S. 297,
300 (1943)).

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the Supremacy Clause, which "is designed to ensure that states do

not 'retard, impede, burden, or in any manner control' the

execution of federal law." New York v. Tanella, 374 F.3d 141, 147

(2d Cir. 2004)(quoting McCulloch v. Maryland, 17 U.S. (4 Wheat.)

316, 436 (1819)). We are not suggesting that the Supremacy Clause

alone provides the basis for rejecting Puerto Rico's theory of a

nonstatutory cause of action to obtain law enforcement information

from the FBI. But Puerto Rico portrays its sovereign authority

over law enforcement as paramount in the analysis. That cannot be

so. The Supremacy Clause reminds us that the federal government

also has a critical interest in carrying out its own law

enforcement responsibilities. In most instances, federal and state

law enforcement interests are complementary. However, 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. Puerto Rico has not convinced us that

this congressional choice was somehow constitutionally insufficient

and hence Puerto Rico must have a nonstatutory cause of action to

vindicate its law enforcement interests. To the contrary, for the

reasons we have expressed, we conclude that the judicial review

provided by the APA for the denial of information by a federal

agency is compatible with Puerto Rico's sovereign authority under

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the Constitution for the enforcement of its criminal laws.

III.

Under the APA, we will overturn the FBI’s decision not

to release the requested information only if it was "arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance

with law." 5 U.S.C. § 706(2)(A). The fact that Puerto Rico made

its request for information in the form of a subpoena from the

PRDOJ does not affect the nature of our review under the APA. The

subpoenas were "in effect a request for information from an

executive department," and, consequently, "the subpoena[s] are

treated as an administrative demand." Edwards v. U.S. Dep't of

Justice, 43 F.3d 312, 316 (7th Cir. 1994)(explaining that a

subpoena initiates the administrative process); see also 28 U.S.C.

§ 16.21.6

6
We note that, where a subpoena is issued to a non-party
federal government agency in conjunction with litigation in state
court, the state court may not enforce the subpoena against the
federal government due to federal sovereign immunity, and the
federal courts have consistently held that they lack jurisdiction
to enforce the subpoena in cases where the government has removed
the subpoena proceedings to federal court. See Smith v. Cromer,
159 F.3d 875, 879 (4th Cir. 1998); Houston Bus. Journal, 86 F.3d at
1211-12; Louisiana v. Sparks, 978 F.2d 226, 235 (5th Cir. 1992).
Instead, courts have explained that, to obtain federal judicial
review of a federal agency's refusal to release information, "a
state-court litigant must request the documents from the federal
agency pursuant to the agency’s regulations," and that 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." Houston Bus. Journal, 86 F.3d at
1212. Here, of course, the subpoena was not issued pursuant to any
underlying litigation. However, the same principle — that a party

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 In applying the arbitrary and capricious standard of

review, we are deferential to the agency's decision. In general,

an agency's "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." COMSAT Corp. v. Nat'l Sci. Found., 190 F.3d

269, 278 (4th Cir. 1999). We review de novo the decision of the

district court because that court, "'limited to the administrative

record, is in no better position to review the agency than the

court of appeals.'" Edwards, 43 F.3d at 314 (quoting Asarco, Inc.

v. U.S. Envtl. Prot. Agency, 616 F.2d 1153, 1161 (9th Cir. 1980)).

In evaluating the FBI's decision, we take into account

both that agency's internal regulations governing the release of

material and the substantive law governing the law enforcement

privilege.

A. Regulations

Under the Housekeeping Act, 5 U.S.C. § 301, federal

agencies may promulgate regulations establishing conditions for the

disclosure of information. The Supreme Court upheld the validity

of such regulations in United States ex rel. Touhy v. Ragen, 340

U.S. 462, 468 (1951), explaining that it is appropriate for the

head of an agency “to prescribe regulations not inconsistent with

wishing to obtain information from the federal government must file
a request pursuant to the agency's regulations, and may seek
judicial review only under the APA — applies in the present case as
well.

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law for ‘the custody, use, and preservation of the records, papers,

and property appertaining to'" the agency’s business. Within the

administrative review process, "[t]he regulations 'provide guidance

for the internal operations of the [agency],'" but do not create a

substantive defense to disclosure. Kwan Fai Mak v. FBI, 252 F.3d

1089, 1092 (9th Cir. 2001)(quoting 28 C.F.R. § 16.21(d)). In other

words, "the regulations do not 'create an independent privilege'

authorizing the Department of Justice to withhold information."

Id. (quoting Exxon Shipping Co. v. U.S. Dep't of Interior, 34 F.3d

774, 780 (9th Cir. 1994)). Rather, they "simply set forth

administrative procedures to be followed when demands for

information are received." Id.

Here, pursuant to the Housekeeping Act, the FBI has

promulgated regulations explaining that, in deciding whether to

release information, its officials should consider "[w]hether

disclosure is appropriate under the rules of procedure governing

the case" and "[w]hether [the] disclosure is appropriate under the

relevant substantive law concerning privilege." 28 C.F.R.

§ 16.26(a)(1), (2). Situations in which disclosure will not be

made include those where "[d]isclosure would reveal investigatory

records compiled for law enforcement purposes, and would interfere

with enforcement proceedings or disclose investigative techniques

and procedures the effectiveness of which would thereby be

impaired." Id. § 16.26(b)(5).

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 As we have explained, the Touhy regulations are only

procedural, and do not create a substantive entitlement to withhold

information. Thus, the FBI's compliance with the regulations

cannot be a sufficient justification for withholding requested

materials. Instead, our review of the reasonableness of the

agency's decision focuses on the substantive law concerning

privilege, to which we now turn.

B. Law Enforcement Privilege

The Supreme Court first recognized a qualified privilege

for certain information related to law enforcement activities in

Roviaro v. United States, 353 U.S. 53 (1957). There, the Court

explained that the government has a qualified privilege to withhold

the identities of confidential informants. Id. at 59. Such a

privilege "further[s] and protect[s] [ ] the public interest in

effective law enforcement," encouraging citizens to communicate

their knowledge of crimes by preserving their anonymity. Id. The

Court also noted that "[t]he 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." Id. at 60.

Since Roviaro, we have recognized a privilege for law

enforcement materials in other circumstances. In United States v.

Cintolo, 818 F.2d 980, 983-84 (1st Cir. 1987), the FBI, with

judicial authorization, had monitored conversations between the

-22-
defendant and various confederates via hidden microphones placed

within an apartment. The district court refused to allow the

defense to question witnesses "concerning the precise location of

the electronic surveillance devices" on the ground that such

questioning would "jeopardize future criminal investigations." Id.

at 1002. In upholding the district court's decision, we first

noted that other circuits had found that the privilege could cover

"sensitive investigative techniques." Id. We then recognized a

qualified privilege for the "disclosure of confidential government

surveillance information," explaining that "discoverability of this

kind of information will enable criminals to frustrate future

government surveillance and perhaps unduly jeopardize the security

of ongoing investigations." Id. We emphasized that the privilege

could be overcome by a sufficient showing of need, and thus

concluded that courts must determine on a case-by-case basis

whether a party has "demonstrated an authentic 'necessity,' given

the circumstances, to overbear the qualified privilege." Id.

Other circuits have explicitly acknowledged a broader

privilege for law enforcement materials. The D.C. Circuit has

explained that the privilege for investigatory materials is "rooted

in common sense as well as common law," noting that "law

enforcement operations cannot be effective if conducted in full

public view" and that the public has an interest in "minimizing

disclosure of documents that would tend to reveal law enforcement

-23-
investigative techniques or sources." Black v. Sheraton Corp. of

Am., 564 F.2d 531, 542, 545 (D.C. Cir. 1977). Similarly, in In re

Department of Investigation of the City of New York, 856 F.2d 481

(2d Cir. 1988), the Second Circuit explained:

[T]he law enforcement privilege [ ] has been
recognized in the absence of a statutory
foundation, and [ ] is largely incorporated
into the various state and federal freedom of
information acts. The purpose of this
privilege is 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.

Id. at 483-84 (citations and footnotes omitted); see also United

States v. Amodeo, 44 F.3d 141, 147 (2d Cir. 1995)(citing In re

Dep't of Investigation). Most recently, the Fifth Circuit

acknowledged "the existence of a law enforcement privilege beyond

that allowed for identities of confidential informants" in a case

involving documents containing "information about ongoing criminal

investigations — including investigative leads, law enforcement

methods and techniques, internal investigative memoranda, and

identifying information relating to witnesses and law enforcement

personnel, including undercover operatives." In re U.S. Dep’t of

Homeland Sec., 459 F.3d 565, 569, 568 (5th Cir. 2006). The court

remanded for the district court to make an in camera determination

regarding the privilege, noting that the rationale for such a

-24-
privilege is "even more compelling now" because "in today’s times

the compelled production of government documents could impact

highly sensitive matters relating to national security." Id. at

569.

Although Puerto Rico has not made a request for

information under the federal Freedom of Information Act (FOIA), 5

U.S.C. § 552,7 the provisions of this statute also provide guidance

in determining the appropriate scope of the privilege. The law

enforcement exemption to FOIA shields from disclosure documents

whose production would, inter alia, "interfere with enforcement

proceedings" or "endanger the life or physical safety of any

individual." Id. § 552(b)(7); see also Ctr. for Nat’l Sec. Studies

v. U.S. Dep’t. of Justice, 331 F.3d 918, 925-26 (D.C. Cir.

2003)(explaining that, in enacting 5 U.S.C. § 552(b)(7)(A)

"'Congress recognized that law enforcement agencies had legitimate

needs to keep certain records confidential, lest the agencies be

hindered in their investigations'" (quoting NLRB v. Robbins Tire &

Rubber Co., 437 U.S. 214, 232 (1978))).

Puerto Rico argues that the law enforcement privilege,

whatever its source and scope, must yield to a state’s sovereign

authority to investigate violations of its criminal laws. However,

7
The United States notes this omission but also acknowledged
at oral argument that FOIA would not be an appropriate vehicle for
all of the materials that Puerto Rico sought in its subpoena.

-25-
it cites no case supporting such a sweeping proposition.8 But the

absence of such authority does not minimize the legitimate

interests of Puerto Rico in securing information relevant to its

criminal investigations. The important questions are how far the

law enforcement privilege should extend and how, in the face of

Puerto Rico's demand for information, the privilege should be

applied in this case.

Given the persuasive authority from other circuits, the

law enforcement exemption set forth in FOIA, and "the public

interest in effective law enforcement," Roviaro, 353 U.S. at 59, we

deem it appropriate to extend the privilege we previously

recognized for "confidential government surveillance information,"

Cintolo, 818 F.2d at 1002, to "law enforcement techniques and

procedures," In re Dep’t of Investigation, 856 F.2d at 484.9

8
Puerto Rico offers one circuit court case involving an
"intergovernmental privilege dispute" and suggests that the
privilege is less compelling in such a situation. In United States
v. O’Neill, 619 F.2d 222 (3d Cir. 1980), the United States had
moved to enforce a subpoena duces tecum against the Philadelphia
Police Department. Although the court did comment that "[t]here is
an anomaly in the assertion of a public interest 'privilege' by the
City to justify withholding information from a federal Commission
charged by Congress to investigate in the public interest the
possible denial of equal protection by, inter alia, local
government units," id. at 230, its decision focused primarily on
the fact that the Police Department had not properly asserted the
privilege and emphasized the lack of Supreme Court precedent
supporting a "broad amorphous Government privilege" to protect
"material relating to ongoing civil and criminal investigations,"
id. at 229.
9
Under Federal Rule of Evidence 501, federal courts retain
the power to develop common law privileges on a case-by-case basis.

-26-
Indeed, the justification we cited in Cintolo — that disclosing the

location of surveillance information would jeopardize future

surveillance operations — applies similarly to the information

about techniques and protocols that Puerto Rico has requested here.

Their disclosure would also jeopardize future criminal

investigations. We emphasize that this qualified 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.10

That balancing must be done with particular care in situations,

such as this one, involving conflicts between the federal and state

governments.

Having recognized, in principle, a qualified privilege

for law enforcement techniques and procedures, we turn now to the

task of evaluating under the APA the FBI's response to the specific

information requests of Puerto Rico.

See United States v. Gillock, 445 U.S. 360, 367 (1980).
10
Certain procedures, such as in camera review of the
requested materials and particularized assertion of the relevant
interests, may aid in a court’s assessment of these interests. We
will discuss the applicability of such procedures in this case
infra at Section IV.A.

-27-
 IV.

A. Procedural Challenges

Before we address the substance of the FBI’s decision not

to disclose the requested materials, we must resolve an array of

procedural objections that Puerto Rico has raised to the assertion

of privilege in the proceedings below. Puerto Rico first complains

that the privilege was not properly invoked because the FBI did not

submit an affidavit from the head of the agency, the district court

did not perform an in camera review of the materials that were the

subject of the subpoena, and the assertion of privilege was not

accompanied by the FBI's item-by-item balancing of the harm to

federal law enforcement interests and the necessity of the

materials to Puerto Rico’s investigation. The United States

responds that Puerto Rico did not raise these objections in the

district court and therefore has waived them.

Before the district court, Puerto Rico stated, in its

opposition to the United States’ motion to dismiss, that

"Defendants’ failure to properly assert, at the time they decided

not to disclose, the list of privileges that they now pretend to

raise constitutes a waiver of all such privileges." In other

words, Puerto Rico insisted that the United States could not offer

reasons to the district court for withholding the information that

it had not given to Puerto Rico when it denied the Commonwealth's

demand for information. In its motion for summary judgment, Puerto

-28-
Rico further contended that the decision not to release the

materials was arbitrary and capricious

because it is premised exclusively on a
regulation that does not create a privilege.
Defendants’ wholly conclusory assertion that
disclosure of the information is not warranted
under the regulations simply lacks any valid
explanation for the denial. Defendants did not
assert a substantive privilege for the Court
to consider, or even offer a valid explanation
for the refusal to disclose. Defendants did
not even purport to substantiate or justify
their denial with an analysis of the pertinent
factors.

Puerto Rico did not, however, identify for the district court's

consideration the specific procedures it now requests: an affidavit

from the head of the FBI, an in camera review of the materials, and

an item-by-item balancing of the interests at stake in disclosure

of the materials.

We must also consider the manner in which the United

States asserted the privilege. In its October 17, 2005 letter

denying the request for information with respect to the Ojeda

subpoena, the FBI explained that "[a] determination has been made

not to disclose any of the information, objects and documents

requested by the PRDOJ" because such disclosure "would involve the

conditions enumerated in [28 U.S.C.] § 16.26(b)(5)."11 With respect

11
As noted, 28 U.S.C. § 16.26(b)(5) states that disclosure
will not be made when it "would reveal investigatory records
compiled for law enforcement purposes, and would interfere with
enforcement proceedings or disclose investigative techniques and
procedures the effectiveness of which would thereby be impaired."

-29-
to the 444 de Diego subpoena, the United States’ motion to quash

explained that disclosure of the internal protocols "would reveal

investigative and enforcement techniques" and that disclosure of

the identities and official photographs of the FBI agents would

violate their privacy rights and "pose a serious security threat."

After Puerto Rico filed its complaint, the United States'

motion to dismiss articulated further grounds for the assertion of

the law enforcement privilege with respect to the materials

requested in the Ojeda subpoena:

A person possessing these documents would
learn, inter alia, how the FBI goes about
capturing a fugitive who is believed to be
dangerous, the number and types of personnel
used by the FBI in such operations, the way
the FBI collects evidence, the FBI’s internal
operating procedures in a variety of sensitive
law enforcement settings, and the way in which
law enforcement information (such as the
location of Mr. Ojeda Rios) is gathered.

The United States further noted that most of the materials are also

protected by the investigatory files privilege, and finally

emphasized that the privacy interests of its agents favored

nondisclosure of their names and other personal information. It

made similar arguments with respect to the materials requested in

the 444 de Diego subpoena, explaining that "the release of internal

FBI protocols . . . would reveal law enforcement techniques" and

that "[t]he release of the identity, rank, and division of the FBI

-30-
agents could also reveal law enforcement techniques, by revealing

the manner in which the FBI staffs these types of operations."

We acknowledge that the procedures Puerto Rico references

for the first time on appeal may enhance the ability of a district

court to evaluate fully and fairly the interests at stake in a case

such as this. Judging these interests in the abstract seems

problematic. Here, however, Puerto Rico failed to request before

the district court the procedures it now specifies. This failure

constitutes a waiver of any objection premised on the absence of

those procedures. See Persson v. Scotia Prince Cruises, Ltd., 330

F.3d 28, 33 (1st Cir. 2003). Moreover, the circumstances here

mitigate the risk that the absence of such procedures caused an

unfair result. The United States clearly and repeatedly asserted

the law enforcement privilege as its ground for refusing to

disclose the requested information, and it articulated more

specific reasons with respect to the various categories of

materials. There was no mistaking the basis for the FBI's refusal

to provide the information. Finally, as the United States

explains, Puerto Rico requested broad categories of information

(i.e., all internal FBI protocols relating to certain types of

operations). Those generalities did not help Puerto Rico establish

the "authentic 'necessity,'" Cintolo, 812 F.2d at 1002, for the

information it sought.

-31-
 Puerto Rico also contends that the United States has

waived any law enforcement privilege that may exist by disclosing

some of the requested information in a detailed, two hundred page

report.12 Again, Puerto Rico failed to raise this objection before

the district court, and again Puerto Rico has waived it.13 In any

event, the claim lacks merit. Courts have held in the context of

executive privilege that "release of a document only waives these

privileges for the document or information specifically released,

and not for related materials." In re Sealed Case, 121 F.3d 729,

741 (D.C. Cir. 1997); see also Smith v. Cromer, 159 F.3d 875, 880

(4th Cir. 1998)(explaining that "disclosure of factual information

does not effect a waiver of sovereign immunity as to other related

matters"). This limited approach to waiver serves important

interests in open government by "ensur[ing] that agencies do not

forego voluntarily disclosing some privileged material out of the

fear that by doing so they are exposing other, more sensitive

documents." In re Sealed Case, 121 F.3d at 741.

12
See U.S. Department of Justice, Office of the Inspector
General, A Review of the September 2005 Shooting Incident Involving
the FBI and Filiberto Ojeda Ríos, August 6, 2006, available at
http://www.usdoj.gov/oig/special/s0608/full_report.pdf.
13
Although the report was released after the parties filed
their motions, Puerto Rico still had ample time to raise this issue
before the district court. The court did not issue a ruling until
September 26, 2006, nearly two months after the report was
released. Indeed, the court cited the report in its opinion.

-32-
 The United States has been reasonably forthcoming in

releasing information related to the Ojeda intervention. The FBI

allowed Puerto Rico to inspect bulletproof vests, helmets, weapons,

and vehicles used during the intervention and the photographs taken

before, during, and after the intervention. Moreover, the Office

of the Inspector General also released a report detailing the

findings of its investigation into the intervention. See supra

note 12. It would be illogical to punish the United States for its

voluntary disclosure of these materials by also forcing it to

disclose other information that it has deemed privileged.

Having found that Puerto Rico's procedural claims lack

merit, we turn now to the substance of the FBI's decision to

withhold the requested materials.

B. Ojeda Subpoena

The FBI refused to produce the materials specified in the

Ojeda subpoena, which included the "Operation Order," identifying

information for the agents involved in the intervention, reports

and recordings related to the intervention, and a wide array of

information regarding FBI protocols and operating procedures. As

its basis for asserting the privilege with respect to this

information, the United States explains that the requested

materials include information about sensitive law enforcement

techniques that must remain confidential to allow the FBI to

operate effectively.

-33-
 As the district court explained, the disclosure of these

materials would reveal

how the FBI goes about capturing a fugitive
who is believed to be dangerous, the number
and types of personnel used by the FBI in such
operations, the way the FBI collects evidence,
the FBI's internal operating procedures in a
variety of law enforcement settings, and the
way in which law enforcement information is
gathered.

Disclosure of such information has the potential to thwart future

FBI operations by publicizing the internal operations of that

agency.

Given the qualified nature of the privilege, however, the

critical question is whether Puerto Rico has shown a necessity for

the information sufficient to overcome this qualified privilege.

In favor of disclosure, Puerto Rico's chief argument is its

interest in asserting its sovereign authority to investigate and

prosecute its criminal laws. It explains that such authority is

constitutional in nature, and thus deserves greater weight in our

balancing calculus. It also emphasizes that no alternative means

exists to obtain the information it seeks. Finally, Puerto Rico

contends that an overbroad reading of the privilege is tantamount

to granting federal officers immunity from even preliminary

criminal investigations.

In response, the United States first explains that the

balancing of interests typically takes place in the course of

-34-
underlying criminal or civil litigation, in which the court must

weigh the policy of the privilege against the particular litigation

need of a party. Here, however, there is no underlying litigation;

the "need" is Puerto Rico's assertion that the requested materials

might be of aid to a criminal investigation. The United States

also notes that the Department of Justice has already undertaken an

investigation of the intervention and published a detailed report

of its findings. Finally, in response to Puerto Rico's claim that

failure to release the information would foreclose investigation of

the officers, the United States emphasizes that federal officials

are generally immune from state prosecution for actions performed

within the scope of their official duties, and thus the privilege

would merely reflect an existing immunity.

With respect to this last point, the contentions of the

parties deserve some elaboration. Courts have explained that

"Supremacy Clause immunity governs the extent to which states may

impose civil or criminal liability on federal officials for alleged

violations of state law committed in the course of their federal

duties." Wyoming v. Livingston, 443 F.3d 1211, 1213 (10th Cir.

2006). Such disputes "permit of no easy answers," but "the

supremacy of federal law precludes the use of state prosecutorial

power to frustrate the legitimate and reasonable exercise of

federal authority." Id. Thus, federal officials are generally

granted Supremacy Clause immunity from state prosecution for

-35-
actions taken in the course of their official duties. See, e.g.,

In re Neagle, 135 U.S. 1, 75 (1890)(U.S. Marshal immune from state

murder prosecution); Livingston, 443 F.3d 1211 (10th Cir.

2006)(federal officials immune from state prosecution for

trespass); New York v. Tanella, 374 F.3d 141, 142 (2d Cir.

2004)(DEA agent who shot an unarmed suspect immune from state

prosecution). However, such immunity is limited to actions that

were "reasonably necessary for the performance of [the officials']

duties." Livingston, 443 F.3d at 1227-28. In the present

situation, the privilege that the United States now asserts could

conceivably extend beyond the scope of the immunity actually

available to the officers if the privilege was used to withhold

information about acts not taken in the course of their official

duties.

The sovereign interests at stake on both sides — Puerto

Rico's interest in enforcing its criminal laws and the United

States' interest in protecting the internal operations of the FBI

— make our balancing of the interests particularly difficult in

this case. We recognize that any decision will necessarily

compromise one of these interests to some degree. On balance,

however, we conclude that the FBI's decision not to release the

requested materials was reasonable under the deferential standard

of review prescribed by the APA. The FBI has a legitimate interest

in maintaining the secrecy of sensitive law enforcement techniques.

-36-
 We recognize that, in addition to general information

about FBI protocols and techniques, Puerto Rico also has requested

names and other personal information about individual FBI agents.

Superficially, this identifying information seems distinct from

information about FBI protocols and techniques involved in the

shooting death of Ojeda. However, the individuals at issue are not

suspected of criminal activity unrelated to the operation that

implicates those protocols and investigative techniques. Obtaining

this identifying information would allow Puerto Rico to interview

the individuals in question. Inevitably, those interviews would

involve inquiries relating to the FBI protocols and techniques that

fall within the privilege.

Moreover, as the district court noted in its opinion,

disclosing certain information about the agents "would reveal the

number and types of personnel used by the FBI" to conduct

operations such as the Ojeda intervention. If agents’ names,

official photographs and other personal information are made

available, as requested by Puerto Rico, these agents will be less

successful at conducting covert operations. Finally, courts have

explained that "individuals, including government employees and

officials, have privacy interests in the dissemination of their

names. Public disclosure of the names of FBI agents and other law

enforcement personnel . . . could subject them to embarrassment and

harassment in the conduct of their official duties and personal

-37-
affairs." Massey v. FBI, 3 F.3d 620, 624 (2d Cir. 1993)(citation

omitted)(upholding the nondisclosure of FBI agents’ names under

Exemption 7 of FOIA); see also Jones v. FBI, 41 F.3d 238, 246-47

(6th Cir. 1994)(holding that “federal law enforcement officials

'have the right to be protected against public disclosure of their

participation in law enforcement investigations'" (quoting Ingle v.

U.S. Dep’t of Justice, 698 F.2d 259, 269 (6th Cir. 1983))); Lesar

v. U.S. Dep’t of Justice, 636 F.2d 472, 487 (D.C. Cir. 1980)(“As

several courts have recognized, [FBI] agents have a legitimate

interest in preserving the secrecy of matters that conceivably

could subject them to annoyance or harassment in either their

official or private lives.”).

We acknowledge Puerto Rico's argument that the FBI's

decision to withhold the information raises the possibility that a

federal agency may thwart state criminal proceedings against one of

its own employees by refusing to disclose information that might

lead to prosecution. That is a troubling possibility. As we have

explained, although federal officials generally receive immunity

from prosecution, such immunity obtains only when they are acting

within the scope of official duties. The FBI's refusal to produce

the requested materials may preclude a determination of whether the

actions at issue here were within that scope.

However, other circumstances present here minimize the

likelihood that wrongdoing was improperly concealed. First, the

-38-
FBI acceded to some of Puerto Rico’s requests for information,

agreeing to allow Puerto Rico to inspect most of the physical

evidence from the intervention and photographs of the premises

taken before, during, and after the intervention. Moreover, the

Office of the Inspector General ("OIG") — an entity entirely

independent from the FBI — conducted a searching investigation of

the events and made public a detailed two hundred page report of

its findings. See supra note 12. In preparing the report, the OIG

interviewed over sixty individuals, including all of the agents who

planned, participated in, or had knowledge of the operation;

reviewed thousands of pages of documents, including operation plans

and orders, investigative files, intelligence reports, and FBI

policies and procedures; reviewed forensic reports; and consulted

with experts in tactical police operations. The report "identified

a number of deficiencies in the FBI’s conduct of the Ojeda

surveillance and arrest operation" and made "ten recommendations

dealing with these findings"; however, it "did not conclude that

any of the actions of FBI officials constituted misconduct." We

acknowledge that these safeguards are an imperfect substitute for

Puerto Rico’s ability to obtain information to conduct its own

investigation; however, the availability of this substitute

reinforces our conclusion that the FBI's decision to withhold the

other materials was not arbitrary.

In sum, we find no error in the FBI’s refusal to release

-39-
the information Puerto Rico requested in the Ojeda subpoena.

C. 444 de Diego Subpoena

Under the APA, a party must obtain a "final agency

decision" prior to seeking judicial review of an agency action. 5

U.S.C. § 704; Bennett v. Spear, 520 U.S. 154, 177-78 (1997). Here,

Puerto Rico served the 444 de Diego subpoena on the FBI on February

20, 2006. The FBI then filed a motion to quash the subpoena on

February 28. Puerto Rico contends that this motion to quash the

444 de Diego subpoena was the equivalent of a final agency action,

while the United States asserts that it was not.

In its opinion ruling in favor of the United States, the

district court held that no final agency action had taken place.

It explained that, at the March 2 hearing on the United States'

motion to quash, Puerto Rico stated that "right now there is no

intention to file any contempt proceedings" and that it "currently

was going to be evaluating which is the next step in order to

continue that investigation; if the step is administrative, if it

is federal judicial or if it is state judicial." The district

court then advised Puerto Rico that it must exhaust its

administrative remedies and obtain a final agency action in order

to file suit. Puerto Rico's next action, however, was to file the

complaint in this action on March 23. Consequently, the district

court explained that Puerto Rico “has not submitted anything into

the record indicating that the government made a final decision,”

-40-
implicitly holding that the motion to quash could not itself

constitute a final agency action, and thus no final agency action

had taken place.

The issue of whether the United States’ motion to quash

the subpoena was final agency action is a thorny one. Courts have

held that "an agency’s refusal to comply with a subpoena

constitutes 'final agency action . . . ripe for . . . review under

the APA.'" Yousuf v. Samantar, 451 F.3d 248, 251 (D.C. Cir.

2006)(quoting COMSAT Corp. v. Nat'l Sci. Found., 190 F.3d 269, 275

(4th Cir. 1999)). Indeed, in United States v. Williams, 170 F.3d

431, 434 n.4 (4th Cir. 1999), "the government asserted and [the

party requesting information] did not dispute that the United

States Attorney's response to a subpoena constitutes final agency

action for purposes of the APA." No court has held, however, that

filing a motion to quash is the equivalent of a refusal to comply.

Moreover, at the hearing on the motion to quash, Puerto Rico’s

acknowledgment that it was exploring other avenues of obtaining the

materials it had requested, including administrative avenues,

suggests that Puerto Rico itself did not believe that it had

obtained final agency action.

The issue of whether there was final agency action

implicates the jurisdiction of the federal courts, and such final

action is normally a prerequisite to judicial review. Cobell v.

Kempthorne, 455 F.3d 301, 304 (D.C. Cir. 2006). However, we have

-41-
held that cases exist in which we may exercise "hypothetical

jurisdiction" — that is, cases "in which we may — and should —

bypass the jurisdictional question" because the jurisdictional

issue is complex but the outcome on the merits is straightforward.

See, e.g., Royal Siam Corp. v. Chertoff, 2007 WL 1228792 at *4 (1st

Cir. Apr. 27, 2007). In exercising such hypothetical jurisdiction,

"we have distinguished between Article III jurisdiction (which may

never be bypassed) and statutory jurisdiction (which may

occasionally be bypassed)." Id. Here, the question of whether

there has been final agency action is one that implicates

statutory, rather than constitutional, jurisdiction. See Air Brake

Systems, Inc. v. Mineta, 357 F.3d 632, 638 (6th Cir. 2004)("[T]he

jurisdictional question here is one of statutory interpretation:

[was there] 'final' agency action for which no other adequate

judicial remedy exists?"); Ciba-Geigy Corp. v. EPA, 801 F.2d 430,

442 (D.C. Cir. 1986)(discussing "the statutory jurisdictional issue

of whether [there was] 'final agency action'"). Thus, given the

difficulty of the jurisdictional issue here, we conclude that it is

appropriate to bypass that issue and proceed to the more

straightforward task of resolving the merits.

The materials requested by Puerto Rico in the 444 de

Diego subpoena are substantially similar to the materials already

discussed with respect to the Ojeda subpoena: (1) the name, rank,

division, address, and telephone number of two FBI agents; (2) an

-42-
official photograph of each of the two FBI agents; and (3) internal

FBI protocols relating to the use of force and pepper spray. These

materials fall within the scope of the law enforcement privilege

for the same reasons that the names and personal information of FBI

agents and the internal FBI protocols requested in the Ojeda

subpoena fell within that privilege, and Puerto Rico has offered no

more compelling reasons for disclosure in the case of the materials

requested in the 444 de Diego subpoena. Thus, assuming that Puerto

Rico obtained final agency action with respect to its request for

these materials, the FBI was neither arbitrary nor capricious in

withholding such information.

V.

After careful review, we conclude that Puerto Rico cannot

assert a nonstatutory cause of action, grounded in its

constitutional sovereign authority to enforce its criminal laws, to

obtain the materials it seeks. Instead, we find Puerto Rico's

request for these materials subject to review under the APA.

Moreover, we hold that a qualified privilege applies to the law

enforcement materials Puerto Rico has requested here: sensitive law

enforcement protocols and techniques and the names and other

personal information of the FBI agents involved in the two

operations. In light of this privilege and the applicable Touhy

regulations, we conclude that the FBI's response to the Ojeda

subpoena and the 444 de Diego subpoena was neither arbitrary nor

-43-
capricious. Thus, the judgment of the district court is affirmed.

So ordered.

- Concurring Opinions Follow -

-44-
 BOUDIN, Chief Judge, concurring. It has been long

settled that the United States cannot be sued, either in federal

court or in any state forum, unless it has waived sovereign

immunity. Lehman v. Nakshian, 453 U.S. 156, 160 (1981). States

and comparable entities are treated no differently than any other

litigant. Indeed, the lower courts have repeatedly held that,

absent a waiver, the United States cannot be forced to obey a

subpoena issued by a state court, state grand jury, or state

legislative committee.14

Puerto Rico's lawsuit in federal court, seeking to

enforce the state's demand for a turnover of documents and exhibits

belonging to or in the custody of the FBI, is itself barred by

sovereign immunity unless it falls within an exception--which

normally must be created by Congress. This is not an instance of

discovery in aid of a federal lawsuit to which the United States

has otherwise consented (e.g., a Tucker Act suit against the United

States) or to which it is otherwise susceptible to discovery (e.g.,

a federal criminal prosecution).

14
See, e.g., United States v. Williams, 170 F.3d 431, 433 (4th
Cir.), cert. denied, 525 U.S. 854 (1999); In re Elko County Grand
Jury, 109 F.3d 554, 556 (9th Cir.), cert. denied, 522 U.S. 1027
(1997) (sovereign immunity bars enforcement of state grand jury
subpoena of federal official); Houston Bus. Journal, Inc. v. Office
of the Comptroller of the Currency, 86 F.3d 1208, 1212 (D.C. Cir.
1996); State of La. v. Sparks, 978 F.2d 226, 234-35 (5th Cir.
1992); Boron Oil Co. v. Downie, 873 F.2d 67, 71 (4th Cir. 1989);
United States v. McLeod, 385 F.2d 734, 751 (5th Cir. 1967); United
States v. Owlett,, 15 F. Supp. 736, 742 (M.D. Pa. 1936).

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 So far as Puerto Rico is asserting an implied exception

to federal sovereign immunity for state criminal investigations,

the proposition is without case support and is at odds with a

catalogue of cases. See note 14, above. Puerto Rico is free to

conduct criminal investigations. It is not free to bring a federal

or state lawsuit to obtain by court process, at the behest of a

state agency, documents and exhibits controlled by the United

States, unless Congress has so provided.

The United States has waived sovereign immunity in a

number of different statutes, including the Federal Tort Claims

Act, 28 U.S.C. § 1346(b) (2000) (certain torts), the Tucker Act,

id. § 1346(a) (contracts), and the Freedom of Information Act, 5

U.S.C. § 552 (2000) (access to many documents). Puerto Rico does

not invoke the FOIA, presumably because one of its exceptions

limits requests for criminal investigative materials.15 5 U.S.C.

§ 552.

15
The Freedom of Information Act excepts from disclosure
"records or information compiled for law enforcement purposes, but
only to the extent that the production of such law enforcement
records or information (A) could reasonably be expected to
interfere with enforcement proceedings, . . . (D) could reasonably
be expected to disclose the identity of a confidential source . .
. , (E) would disclose techniques and procedures for law
enforcement investigations or prosecutions, or would disclose
guidelines for law enforcement investigations or prosecutions if
such disclosure could reasonably be expected to risk circumvention
of the law, or (F) could reasonably be expected to endanger the
life or physical safety of any individual." 5 U.S.C. § 552(b)(7).

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 This leaves Puerto Rico with the Administrative Procedure

Act ("APA"), 5 U.S.C. § 702. The APA can be viewed both as a

residual waiver of sovereign immunity permitting judicial review of

federal action--though not an award of damages--where there is no

other prescribed remedy; and as a federal cause of action where an

agency acts contrary to law or in a manner that is arbitrary or

irrational (unless the matter is one committed to agency discretion

by law, id. § 701(a)(2)). See H.R. Rep. 94-1656, at 4-12 (1976).

Puerto Rico points to no law requiring the turnover of

the materials it seeks. So far as Puerto Rico asserts its own

sovereign interest in law enforcement, this interest creates no

cause of action--state or federal--that permits Puerto Rico to

constrain the United States. See U.S. Const. Art. VI, cl. 2;

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 436 (1819) ("the

states have no power . . . to retard, impede, burden, or . . .

control" the execution of federal powers); cf. In re Neagle, 135

U.S. 1, 75 (1890).

Congress has authorized each agency to create

housekeeping regulations governing the use of its "records, papers,

and property," 5 U.S.C. § 301, and the Department's pertinent

regulations forbid disclosure of any information where

[d]isclosure would reveal investigatory records
compiled for law enforcement purposes, and would
interfere with enforcement proceedings or
disclose investigative techniques and procedures

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 the effectiveness of which would thereby be
impaired,

unless the "administration of justice requires disclosure." 28

C.F.R. § 16.26(b)(5), (c). Yet the Department's regulations, by

their explicit terms, create no substantive rights in litigants,

28 C.F.R. § 16.21(d), and so create no legal obligation enforceable

under the APA.

This leaves Puerto Rico, at best, with an APA suit to

challenge agency action as arbitrary and capricious. Some courts

have recognized an action under the APA to challenge the

reasonableness of the agency's action in withholding documents.16

Whether this is a plausible claim--given the explicit treatment of

document requests under the FOIA--might be debated. But the

present case would turn out the same way even if such an APA claim

survived the precept lex specialis derogat legi generali. In re

Lazarus, 478 F.3d 12, 19 (1st Cir. 2007).

There is nothing arbitrary or capricious about the

Department's policy of refusing to reveal "records compiled for law

enforcement purposes" that would "disclose investigative techniques

16
"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." Houston Bus.
Journal, 86 F.3d at 1212. See also Comsat Corp. v. Nat'l Sci.
Found., 190 F.3d 269, 274 (4th Cir. 1999); Williams, 170 F.3d at
434; Edwards v. U.S. Dep't of Justice, 43 F.3d 312, 316-17 (7th
Cir. 1994); Boron Oil, 873 F.2d at 71; cf. Gen. Elec., 197 F.3d at
598-99, modified on reh'g, 212 F.3d at 690.

-48-
and procedures the effectiveness of which would thereby be

impaired." 28 C.F.R. § 16.26. The Department's legitimate

interest is self-evident and is reflected in both the FOIA

categorical exception, see note 16, above, and in judicial

recognition of a law enforcement privilege, Roviaro v. United

States, 353 U.S. 53, 59 (1957).

Nor did the Department act arbitrarily or capriciously in

applying its general policy in this case. As the district court

found, the materials sought by Puerto Rico and withheld by the

Department would reveal the identities of FBI agents, "how the FBI

goes about capturing a fugitive who is believed to be dangerous,

the number and types of personnel used by the FBI in such

operations, the way the FBI collects evidence, the FBI's internal

operating procedures in a variety of law enforcement settings, and

the way in which law enforcement information is gathered."17

That in this case the materials might be protected under

the federal law enforcement privilege is icing on the cake, but the

Department's action would be reasonable even without the privilege.

When the United States tries a defendant in its own courts, no

17
These materials included the "operation order" relating to
the FBI raid on Ojeda's residence; the identities and photographs
of the agents involved in the raid and those responsible for using
pepper spray; information gathered during the FBI's occupation of
Ojeda's residence; copies of expert reports, photographs, and
recordings related to the raid; and internal protocols concerning
violent and arrest interventions and use of force.

-49-
issue of sovereign immunity is presented: disclosure obligations

depend on federal criminal rules and precedents and, ordinarily,

material in government hands must be produced in response to such

requirements or a defense subpoena unless privileged.

By contrast, when Puerto Rico is seeking materials in an

action not otherwise properly in federal court, the United States

has no independent obligation to turn over government materials

regardless of whether they are privileged; at most, it must avoid

action that is arbitrary and capricious and can do so on the basis

of a reasonable general policy. The Department's refusal to

release the information in this case was not arbitrary and

capricious and that is the end of the matter.

-50-
 SHADUR, District Judge, concurring. In this instance the

thoughtful opinions by Judge Lipez and Chief Judge Boudin put me in

mind of the old saw about the politician who says of a

controversial issue, “Some of my friends are in favor of X, and

some of my friends are in favor of Y, and I’m in favor of my

friends.” Both opinions reach the same destination, albeit by

different routes, and at the end of the day I share their common

conclusion that the Commonwealth’s legitimate interest in pursuing

a possible criminal prosecution cannot override the legitimate

policy concerns of the United States, as the ultimate sovereign, in

not unduly exposing its own law enforcement techniques and

personnel against its wishes.

In that respect Congress has permissibly acted to limit

judicial review of those policy concerns to the standards

applicable under the APA, and the Commonwealth has not surmounted

the high hurdle that statute prescribes. Hence I concur in the

conclusion reached in each of the two opinions.

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