State of Utah v. Gollaher

Filing 14

MEMORANDUM DECISION and ORDER granting 11 Motion to Dismiss Defendant's removed motion to compel. Signed by Judge Dee Benson on 3/4/2019. (mas)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
STATE OF UTAH,
Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
SCOTT L. GOLLAHER,
Defendant.

Case No. 2:18-cv-309-DB
District Judge Dee Benson

Before the court is the United States’ motion to dismiss, requesting denial of Defendant
Scott Gollaher’s removed state court motion to compel compliance with a subpoena. (Dkt. No.
11.) The motion has been fully briefed by the parties, and the court has considered the facts and
arguments set forth in those filings. Pursuant to Rule 7-1(f) of the United States District Court
for the District of Utah Rules of Practice, the Court elects to determine the motion on the basis of
the written memoranda and finds that oral argument would not be helpful or necessary. DUCivR
7-1(f).
BACKGROUND
This case before the court arises from a criminal case brought by the State of Utah against
Defendant in the Third Judicial District Court in and for the County of Salt Lake, State of Utah.
Defendant is charged with one count of Sodomy on a Child, a first degree felony under Utah
Code Ann. § 76-5-403.1, and ten counts of Sexual Exploitation of a Minor, second degree
felonies under Utah Code Ann. § 76-5b-201. (Dkt. No. 13-1 at 10.)
On August 21, 2013, Defendant filed subpoenas duces tecum seeking to compel the
testimony and production of documents from Federal Bureau of Investigation (FBI) Special
Agents Jeff Ross, Randy Kim, and Eric Zimmerman (collectively, “the agents”). (Id. at 11.) On

September 26, 2013, the United States filed a Touhy memorandum seeking to limit the testimony
and production of documents sought in Defendant’s subpoenas. (Id.) Defendant filed numerous
separate subpoenas requiring production of the agents’ reports, filed notes, recordings, and
testimony. (Id. at 14.) According to Defendant, each time the agents were subpoenaed, the
United States Attorney’s Office indicated to defense counsel that the Department of Justice
(“DOJ”) did not authorize the agents to produce the requested documents and limited the scope
of the agents’ testimony. (Id.) Defendant objected to the government’s failure to comply with
his subpoenas, and the magistrate court denied Defendant’s subsequent motions, finding that it
lacked jurisdiction to grant the relief requested as to the federal agents, but stayed the criminal
case to allow Defendant to seek extraordinary relief. (Id.; Dkt. No. 11 at 2.)
On December 19, 2014, the Third Judicial District Court denied Defendant’s petition for
extraordinary relief, holding that under United States ex rel. Touhy v. Ragen, 340 U.S. 462
(1951) the state court “[did] not have jurisdiction to compel the testimony of federal employees
or to compel the production of documents from federal employees when they have not been
authorized to do so by the [DOJ] pursuant to its . . . regulations.” (Dkt. No. 11 at 3.) The trial
court’s decision was upheld by the Utah Court of Appeals. See Gollaher v. State of Utah, 405
P.3d 831 (2017). The Court of Appeals noted that Defendant’s sole remedy for challenging
DOJ’s decision is to file a federal civil action under the Administrative Procedure Act (“APA”).
Id. at 835-36. Defendant’s Petition for Writ of Certiorari with the Utah Supreme Court was
denied on November 20, 2017. Gollaher v. State, 409 P.3d 1048 (Utah 2017).
After the Utah Court of Appeals’ decision, Defendant then issued state court subpoenas
to the agents requesting the same materials. (Dkt. No. 11 at 3.) When the U.S. Attorney’s Office
informed Defendant that he would need to comply with DOJ’s Touhy regulations, Defendant

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again filed a motion to compel compliance with the subpoenas in the state court. (Id. at 3-4.)
The United States then removed this action to the U.S. District Court for the District of Utah
under 28 U.S.C. § 1442(a) and (d) to resolve the issue of Defendant’s motion to compel the three
subpoenas issued to the agents. (Dkt. No. 2.)
In its motion to dismiss, the United States argues that Defendant’s state-level motion to
compel is frivolous, and that the court should deny Defendant’s subpoenas because the state
courts lack jurisdiction to compel the agents’ compliance with the subpoenas under Touhy and
based on sovereign immunity. (Dkt. Nos. 2, 13.) Defendant responds by arguing that the
Compulsory Process Clause of the Sixth Amendment and the Due Process Clause of the Fifth
Amendment provide defendants in criminal cases the power to exercise the right of compulsory
process “without jurisdictional limitation pursuant to claims of sovereign immunity or the
Supremacy Clause.” (Dkt. No. 12.) Defendant therefore contends that the agents should be
compelled to testify and that the government should be compelled to produce the requested
investigation files. (Id. at 15.)

DISCUSSION
Civil actions or criminal prosecutions commenced in state court against or directed to
“the United States or any agency thereof or any officer (or any person acting under that officer)
of the United States . . . for or relating to any act under color of such office” may be removed to
federal district court. 28 U.S.C. § 1442(a). This case is thus properly removed and this court has
jurisdiction to hear the United States’ motion to dismiss Defendant’s state court motion to
compel.

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While Section 1442(a) allows for removal of these kinds of state court actions directed to
federal officers or agents, it does not allow a federal court to substitute its judgment for that of a
final state court judgment rendered on that issue. In Rooker v. Fidelity Trust Co., 263 U.S. 413
(1923), the U.S. Supreme Court held that “no court of the United States other than [the U.S.
Supreme Court] could entertain a proceeding to reverse or modify the judgment” of a state court
on constitutional grounds, even if the constitutional question was wrongly decided by the state
court. Accordingly, under what has become known as the Rooker-Feldman doctrine, federal
district courts have no power to overrule a final state court judgment based on the state court’s
misinterpretations or violations of the U.S. Constitution; the only federal court to which such
challenges may be brought is the U.S. Supreme Court.1
Additionally, under the doctrine of derivative jurisdiction, “ [i]f the state court lacks
jurisdiction of the subject-matter or of the parties, the federal court acquires none” upon removal
(unless the case is removed under 28 U.S.C. § 1441).2 Lambert Run Coal Co. v. Baltimore &
O.R. Co., 258 U.S. 377, 382 (1922). “[T]he majority of the circuit courts of appeals that have
addressed this issue, including the Tenth Circuit, have determined that federal courts' jurisdiction
remains derivative of state courts' jurisdiction for those cases removed under statutes other than
28 U.S.C. § 1441.” Jiron v. Christus St. Vincent Reg'l Med. Ctr., 960 F. Supp. 2d 1147, 1150
(D.N.M. 2012). Thus, if a state court determines that it lacks jurisdiction in a particular matter,

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See, e.g., District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983) (holding that U.S. district
courts “do not have jurisdiction . . . over challenges to state court decisions in particular cases arising out of judicial
proceedings even if those challenges allege that the state court’s action was unconstitutional. Review of those
decisions may be had only in [the U.S. Supreme Court].”); Anderson v. State of Colo., 793 F.2d 262, 264 (10th Cir.
1986) (affirming that U.S. district courts “do not have jurisdiction to review final state-court judgments” in judicial
proceedings).
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Cf. 28 U.S.C. § 1441(f) (“The court to which a civil action is removed under this section is not precluded from
hearing and determining any claim in such civil action because the State court from which such civil action is
removed did not have jurisdiction over that claim.”).

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and that action is removed under 28 U.S.C. § 1442, the federal district court inherits any statecourt level jurisdictional defects that existed prior to removal.
In this case, the Third Judicial District Court and the Utah Court of Appeals both relied
on Touhy to determine that the state court lacks jurisdiction to compel federal agents’ compliance
with subpoenas where the agents have not been authorized to do so by the agency pursuant to its
Touhy regulations, including in criminal cases. Under 5 U.S.C. § 301, Congress has authorized
federal agencies to “prescribe regulations” for “the conduct of its employees, the distribution and
performance of its business, and the custody, use, and preservation of its records, papers, and
property.” The DOJ has promulgated regulations pursuant to this authority that, among other
things, prohibit the unauthorized production or disclosure of information by agency employees in
state proceedings in which the United States is not a party. See 28 C.F.R. §§ 16.21 to 16.29. As
the Third Judicial District Court observed, “[t]he [DOJ] declined to expand the authorization for
testimony that had already been provided, informed Petitioner that two of the agents did not have
any documents responsive to the subpoenas, and stated that one of the agents was prohibited
from disclosing any documents pursuant to 28 C.F.R. § 16.26(b)(4)-(5).” Accordingly, the court
determined that it lacked the authority to enforce Defendant’s subpoenas, and the decision was
affirmed by the Utah Court of Appeals.
The state court’s determination regarding its lack of jurisdiction to enforce Defendant’s
subpoenas against the agents constitutes a “final state-court judgment.” Thus, under RookerFeldman this court lacks jurisdiction to review this final state-court judgment. Separately,
because the state court lacks jurisdiction to enforce the subpoenas against federal employees in
this case, this court inherits the same jurisdictional deficiency under the doctrine of derivative
jurisdiction, and does not acquire authority to enforce these subpoenas upon removal under 28

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U.S.C. § 1442. Accordingly, the court finds Defendant’s reissued subpoenas to be frivolous, and
now ORDERS that his motion to compel the subpoenas is dismissed.3
This decision does not bar a defendant from pursuing other avenues for challenging the
constitutionality of an agency’s disclosure determinations pursuant to its Touhy regulations. As
noted above, a defendant may petition the U.S. Supreme Court to review the state court’s
decision. Alternatively, after exhausting administrative remedies at the agency level, a defendant
may file an APA action4 in federal district court to challenge the constitutionality of an agency’s
disclosure determination. See Edwards v. United States Dep’t of Justice, 43 F.3d 312, 316-17
(7th Cir. 1994) (holding that review of an agency’s decision under Touhy to disclose subpoenaed
information “has to be an APA claim directed at the agency, the United States, or the employee
thereof” and “must be in federal court pursuant to 5 U.S.C. § 702, rather than in a state court that
lacks jurisdiction.”); see also In re S.E.C. ex rel. Glotzer, 374 F.3d 184, 189 (2d Cir. 2004)
(finding that “[a]bsent exhaustion, [an agency’s] decision is neither ‘final’ nor ‘subject to judicial
review.’”).

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See, e.g., Smith v. Cromer, 159 F.3d 875, 883 (4th Cir. 1998) (finding that the federal district court did not err in
its determination to quash state subpoenas against federal officers, which had been removed under 28 U.S.C.
1442(a)(1), because state compulsory process was barred against the officers).

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See generally the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706.

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CONCLUSION
For the foregoing reasons, the United States’ motion to dismiss Defendant’s removed
motion to compel is hereby GRANTED.
DATED this 4th Day of March, 2019.

BY THE COURT:

Dee Benson
United States District Judge

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