Case No. 93-SDW-4

In the Matter of:

RICHARD W. EMORY, JR.
   Complainant

    v.

U.S. ENVIRONMENTAL PROTECTION AGENCY
   Respondent

   This is a whistleblower action brought under the employee protection provisions of seven federal environmental protection statutes: the Clean Water Act (CWA), also known as the Water Pollution Control Act, 33 U.S.C. §1367; the Energy Reorganization Act ("ERA"), 42 U.S.C. §5851; the Clean Air Act ("CAA"), 42 U.S.C. §7622; the Safe Drinking Water Act, 42 U.S.C. §300j-9(i)("SWA"); the Solid Waste Disposal Act ("SWDA"), as amended by the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §6971; the Toxic Substances Control Act ("TSCA"), 15 U.S.C. §2601; and the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. §9610. Complainant, Richard Emory, is a former acting director of the Criminal Enforcement Counsel Division ("CECD") of the Office of Criminal Enforcement of the respondent, the United States Environmental Protection Agency ("EPA"). He asserts that he has suffered retaliation in his employment because of his work in documenting alleged mishandling by the United States Department of Justice (DOJ) of criminal cases involving enforcement of the federal environmental laws under EPA's jurisdiction. The matter is scheduled for a hearing before me commencing January 18, 1994.

   On October 12, 1993, pursuant to F.R. Civ. P. 45 and 29 C.F.R. §18.24(c), attorneys from the Civil Division of DOJ filed a motion to quash complainant's subpoena duces tecum dated October 1, 1993, to Mr. Barry Hartman, former Deputy Assistant Attorney General and former Acting Assistant Attorney General, Environmental and Natural Resources Division, DOJ. Mr. Hartman is currently with a private law firm in Washington, D.C. The subpoena requires him to

give deposition testimony and produce documents. It states that he will be expected to testify regarding his knowledge of alleged improprieties in the EPA criminal enforcement program. The documents to be produced include any regarding the decision to remove complainant Emory from his position as acting director of CECD and regarding congressional investigations of alleged improprieties in EPA's criminal enforcement program.

   As the grounds for the motion to quash the subpoena, DOJ states that complainant has failed to request and obtain DOJ authorization for Mr. Hartman's testimony and production of documents pursuant to its regulations at 28 C.F.R. §§16.21-16.29. No privilege is asserted with respect to any aspect of his testimony or documents. Complainant opposes the motion, arguing that these regulations are internal DOJ procedures, that neither statutory nor common law authority requires submission to these procedures to compel the testimony of a former DOJ employee, but that, assuming these regulations do apply, all requirements have been met. Complainant requests that Mr. Hartman be required to submit himself for deposition, and that DOJ be required to produce documents responsive to the subpoena.

   The regulations which DOJ invokes are so-called housekeeping regulations issued pursuant to 5 U.S.C. §301, which provides:

The head of an Executive Department of military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use and preservation of its records, papers and property. This section does not authorize withholding information from the public or limiting the availability of records to the public.

   The validity of regulations issued pursuant to this section is based on the principle that, as a matter of internal management, an agency must be able to centralize and control release of its records by such means as reserving authority to make disclosure to the agency head. NLRB v. Capitol Fish Company, 294 F.2d 868, 873 & n.8, 875 (5th Cir. 1961). Such regulations do not authorize withholding information or limiting the availability of records to the public. Committee for Nuclear Responsibility, Inc. v. Seaborg, 463 F.2d 788, 793 (D.C. Cir. 1971). They do not enact a privilege. Capitol Fish, supra, 294 F. 2d at 875; Marcoux v. Mid-States Livestock, 66 FRD 573, 576, 578-9 (1975). As mentioned, DOJ has not asserted any claim that the testimony or documents sought are privileged.

   Such housekeeping regulations are intended to minimize government involvement in controversial matters unrelated to official business or in which the government has no genuine interest. Boron Oil Co. v. Downie, 873 F.2d 67, 71 (4th Cir. 1989); Reynold Metal Co. v. Crowther, 572 F.Supp. 288, 290 (D. Mass. 1982). This is not such a case. Rather, it is directly related to the official government business of the Environmental Protection Agency, the Department of Justice and the Department of Labor (DOL). These agencies all have responsibilities for enforcement of the nation's environmental protection laws.

   The Secretary of Labor's charge is to assist in implementing federal environmental standards by protecting from retaliation employees who report violations or otherwise participate in proceedings resulting from the administration and enforcement of such laws. See e.g. Secretary of Labor's decision in Conley v. McClellan Air Force Base, 84-WPC-1 (September 7, 1993), slip op. at 3-4. This case is before me pursuant to this charge. The Secretary of Labor has a statutory duty to investigate and hear complaints under the employee discrimination provisions of the seven federal environmental protection statutes invoked here. Full and complete disclosure of all relevant facts is indispensable to the effective fulfillment of this duty. The DOJ regulations do not justify denial of the disclosure sought here.

   The DOJ regulations require prior approval for disclosure by the appropriate DOJ official in federal and state proceedings: (1) "in which the United States is a party;" and (2) "in which the United States is not a party, including any proceedings in which DOJ is representing a government employee solely in that employee's individual capacity ... ." §16.21(a). When the United States is not a party, current and former DOJ employees are generally prohibited from production or disclosure without prior approval. §16.22. When the United States is a party, DOJ attorneys "in charge of any case or matter in which the United States is a party" are generally authorized to make disclosure without prior approval. §16.23.

   DOJ argues that §16.22 -- but not §16.23 -- applies because the United States is not a "named" party and EPA is represented by one of its own attorneys, rather than a Department of Justice attorney. There is no citation of authority for this proposition and such an interpretation cannot be reasonably derived from the language of §16.22. The environmental protection statutes at issue here, when referring to the "United States" or "federal government, expressly include individual federal agencies and their officials. See CWA, 33 U.S.C. §1323(a); CAA, 42 U.S.C. §§7418(a), 7602(e); SWA, 42 U.S.C.

§§300f(11),(12), 3003-6(a); SDWA, 42 U.S.C. §§6903(4), 6961; CERCLA, 46 U.S.C. §§9607, 9620(a); ERA, 42 U.S.C. §2014(a),(1). DOJ does not dispute that respondent EPA is an agency of the United States or that EPA's attorney Mr. Guerrero is employed by the United States government to defend the EPA in the federal administrative proceedings before me. Cf. Sierra Club v. Costle, 657 F.2d 298, 405-6 (D.C. Cir. 1981) (EPA is part of the executive branch of the United States). I also note that, in U.S. Dept. of Energy v. Ohio, 503 U.S.__, 112 S. Ct. 1627, 118 L.Ed. 2d 255 (1992), although the United States was, as here, not a "named" party, the Supreme Court nevertheless determined that the sovereign immunity of the United States protected the named federal agency, the Department of Energy, from civil fines imposed by the state of Ohio for violations of CWA and RCRA. The United States is a party to this proceeding and §16.22 therefore does not apply.

   Since I find that the United States is a party, it is necessary to consider whether §16.23 requires prior approval by DOJ of Mr. Hartman's testimony and document production. On its face, §16.23 applies only to currently employed DOJ attorneys in their work on cases assigned to them. A comparison of the language of §16.22(a), which is directed to "employee[s] or former employee[s]" with §16.23(a), which is directed to "attorney[s] only, compels the conclusion that DOJ knew how to include former employees in its regulations and chose not to do so in the case of DOJ attorneys covered by §16.23. See United States v. Feeney, 501 F.Supp. 1337, 1347, 1349 (D. Colo. 1980) (DOJ cannot limit or restrict the testimony of individuals who are not current DOJ employees). Mr. Hartman is a former DOJ attorney and this is not his case. I find that §16.23 therefore does not apply to him.

   In summary, I cannot accept DOJ's broad reading of its regulations at 28 C.F.R. 16.21-16.29. Properly read, they do not apply here and cannot justify quashing the subpoena to Mr. Hartman. Complainant's request that DOJ be required to produce documents responsive to the subpoena is, however, beyond the scope of the subpoena, which is addressed to Mr. Hartman only. Because he is a former employee of DOJ, he may have custody and control of copies of responsive documents retained in connection with his former employment. It is these documents only which must be produced when Mr. Hartman appears to give his deposition pursuant to this Order.

   The motion of Barry Hartman to quash the subpoena of October 1, 1993, is hereby DENIED, and Mr. Hartman is directed to comply with the subpoena.

      EDITH BARNETT
      Administrative Law Judge

DATED: December 3, 1993

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