Davis Enterprises v. United States Environmental Protection Agency

WEIS, Circuit Judge,

dissenting.

I agree with the majority that the EPA’s action here is subject to review by the courts. I dissent, however, from the holding that the agency’s action was not arbitrary and capricious.

The right of a governmental agency to withhold information and testimony from judicial proceedings is a controversial matter that is far from settled. The decision in *1189United States ex rel. Touhy v. Ragen, 340 U.S. 462, 71 S.Ct. 416, 95 L.Ed. 417 (1951), is sometimes cited for the proposition that an agency head is free to withhold evidence from a court. But the Supreme Court in Touhy specifically refused to reach that question.1 Id. at 467, 71 S.Ct. at 419. The Court held that a Justice Department official acting on orders of the Attorney General could not be held in contempt for failing to produce records. In effect, the Court created what might be termed a type of immunity for the subordinate official who otherwise would be caught in the unpleasant dilemma of refusing to obey either an order of his superior or one issued by a court. In the end, the Court concluded that the wrong person had been subpoenaed.

Touhy immunity for a subordinate was the controlling issue in cases where the governmental agency was not a party, such as Swett v. Schenk, 792 F.2d 1447 (9th Cir.1986), and Smith v. C.R.C. Builders Co., 626 F.Supp. 12 (D.Colo.1988). In the present case, by contrast, the issue of whether the EPA properly refused to permit its employee to testify is squarely before us.2

The action of the EPA in this instance rides roughshod over one of the fundamental maxims of the law — “the public has a right to every man’s evidence.” The Supreme Court has on numerous occasions reiterated Lord Hardwicke’s articulation of that long-standing common law precept. E.g., Trammel v. United States, 445 U.S. 40, 50, 100 S.Ct. 906, 912, 63 L.Ed.2d 186 (1980); United States v. Nixon, 418 U.S. 683, 709, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039 (1974); Branzburg v. Hayes, 408 U.S. 665, 688, 92 S.Ct. 2646, 2660, 33 L.Ed.2d 626 (1972); United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 730, 94 L.Ed. 884 (1950). Declining to even mention this basic tenet, the agency asserts that its own self-serving regulation grants the right to withhold testimony unless the EPA in its unreviewable discretion determines that granting permission “would clearly be in the interests of EPA.” 40 C.F.R. § 2.403.

Plaintiffs did not contest the validity or breadth of this regulation in the district court, and precedents of our Court bar consideration of an issue not presented to the trial judge in the first instance. E.g., Halderman v. Pennhurst State School & Hosp., 673 F.2d 628, 639 (3d Cir.1982) (in banc) (citing Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976)), cert. denied, 465 U.S. 1038, 104 S.Ct. 1315, 79 L.Ed.2d 712 (1984); Caisson Corp. v. Ingersoll-Rand Co., 622 F.2d 672, 680 (3d Cir.1980); Newark Morning Ledger Co. v. United States, 539 F.2d 929, 932 (3d Cir.1976). Therefore, our review is limited to whether, assuming the regulation to be valid, the agency’s action was proper. I will not lengthen the discussion here by taking issue with the majority’s application of the arbitrary and capricious standard of review, because even allowing the EPA broad discretion, the decision should not stand.

The determination of whether a given agency action is arbitrary or capricious may not take place in a vacuum — the facts and general principles of law must be considered. Differing circumstances can excuse conduct in some instances and fault it in others.

*1190In Branzburg, the Court noted Bentham’s famous exposition of the duty to produce evidence in court. Because his words are pertinent here, they bear repeating:

“Are men of the first rank and consideration — are men high in office — men whose time is not less valuable to the public than to themselves — are such men to be forced to quit their business, their functions, and what is more than all, their pleasure, at the beck of every idle or malicious adversary, to dance attendance upon every petty cause? Yes, as far as it is necessary, they and everybody.... Were the Prince of Wales, the Archbishop of Canterbury, and the Lord High Chancellor, to be passing by in the same coach, while a chimney-sweeper and a barrow-woman were in dispute about a halfpennyworth of apples, and the chimney-sweeper or the barrow-woman were to think proper to call upon them for their evidence, could they refuse it? No, most certainly.”

Branzburg, 408 U.S. at 688 n. 26, 92 S.Ct. at 2660 n. 26 (quoting 4 The Works of Jeremy Bentham 320-21 (J. Bowring ed. 1843)).

Professor Wigmore was emphatic in his support for the obligation. He wrote that society has the right to the testimony because the demand comes from “the community as a whole — from justice as an institution and from law and order as indispensable elements of civilized life.” 8 J. Wig-more, Evidence § 2192, at 73 (J. McNaughton rev. ed. 1961). The particular cause before the court may be “petty and personal, but the results that hang upon it are universal_ The pettiness and personality of the individual trial disappear when we reflect that our duty to bear testimony runs not to the parties in that present cause, but the community at large and forever.” Id.

Like most general maxims, there are exemptions from the duty to testify. Such examples as national security, self-incrimination, and business secrets come to mind. But no such considerations are present here. The EPA does not — indeed, could not — contend that the information sought here by way of testimony is privileged.

The curious feature of this case is that the data have already been disclosed to the parties, but, on the present state of the record, cannot be submitted to the jury in the state court except through the process of direct and cross-examination of the EPA employee. The EPA’s actions are paradoxical — it willingly directed an employee to perform air monitoring tests at the site of the pipeline rupture and disclose the results to the litigants, but now blocks presentation of the facts to a court of law.

A critical factor in assessing the interests of justice here is that no person can provide the evidence in question other than the employee who performed the air quality measurements. This, therefore, is not a case in which the evidence is cumulative or non-essential, or available from another witness. In these circumstances, where there is but one source of material evidence, the duty to testify becomes even more compelling.

The action of the EPA is, in a real sense, suppression of relevant and material evidence. Society has the right to insist that such a drastic step be supported by unassailable grounds — especially when it is a governmental agency that excludes facts from the courts. When an individual citizen has the duty to testify regardless of personal inconvenience or financial loss, surely a governmental agency, in the absence of a legitimate ground for exemption, should not be held to any lesser standard of civic responsibility. The administration of justice is poorly served when the government itself fails to set a proper example for its citizens.

Whether an agency’s decision was arbitrary and capricious is judged by the standards set out in Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). There, the Court explained that action is unacceptable under this level of review

“if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agen*1191cy, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.”

Id. at 43, 103 S.Ct. at 2866.

In denying the plaintiffs’ request, the EPA maintained that the testimony “would add nothing to our public mission and could be seen as taking sides in the litigation.” Letter from Regional Counsel to Attorney for Sun Pipe Line Company (July 31,1987). Moreover, “while the amount of time which this particular exercise might take may be small, the precedent it sets and the future cumulative effect of similar requests could have a significant impact on the Agency’s resources.” Id. The agency further declared that “if an employee is to testify, the testimony must further EPA’s mission.” Id.

These “explanations” arguably fail all of the criteria the Supreme Court used to determine whether an agency action is arbitrary and capricious. See Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43, 103 S.Ct. at 2866. It is enough for me, however, that the agency’s reasons completely disregard the obligation of citizens and governmental agencies to present evidence in furtherance of the proper administration of justice. It is curious indeed that the EPA’s concern about establishing a troublesome precedent ignores, as it does, a valued legal principle of several centuries standing.

Although it professes a desire to be impartial by suppressing evidence, the EPA is, in reality, taking sides. To withhold testimony that may be helpful to one side is to favor the other, but more importantly for society, is to prejudice proper resolution of the litigation. Accepting the proposition that testifying would inappropriately create the appearance of taking sides nullifies the duty to provide evidence.

Conceivably, if providing testimony requires an undue diversion of an agency’s resources, some accommodation might be necessary. But that is not a factor here. The proposal to take a one-time deposition in the EPA office rather than to have the witness present in court will reduce the time required, and will make the evidence usable in more than one case. Obviously, this procedure amounts to a substantial saving of time and shows due consideration for conserving EPA’s finite resources. Any diversion — if indeed it be that — is de minimis here. Thus, the agency’s explanations for withholding evidence may charitably be described as “non-reasons.” As a result, I must conclude that the EPA committed a clear error of judgment that requires us to reverse its decision. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971).

The action of the EPA was arbitrary and capricious, and I would require it to permit its employee to testify at the deposition as requested.

. Justice Frankfurter emphasized this point, writing in concurrence,

“[T]he decision and opinion in this case cannot afford a basis for a future suggestion that the Attorney General can forbid every subordinate who is capable of being served by process from producing relevant documents and later contest a requirement upon him to produce on the ground that procedurally he cannot be reached.”

Touhy, 340 U.S. at 472, 71 S.Ct. at 421 (Frankfurter, J., concurring).

For a discussion of the limited reach of the Touhy decision, see Note, Discovery from the United States in Suits Between Private Litigants—The 1958 Amendment of the Federal Housekeeping Statute, 69 Yale L.J. 452 (1960).

. The issue arose peripherally in Boron Oil Co. v. Downie, 873 F.2d 67 (4th Cir.1989), which involved a suit to compel an EPA On-Scene Coordinator to obey a subpoena in a civil action in state court. There, the Court of Appeals, relying on Touhy immunity, held that the district court erred in ordering the agency employee to testify. The Court in Boron Oil referred to the doctrine of sovereign immunity in reaching its decision, but that issue is not before us here.