Sleboda v. Puskas et al

Filing 95

MEMORANDUM OPINION AND ORDER denying 61 JOINT MOTION to Unseal. Signed by Judge John T. Copenhaver, Jr. on 5/26/2015. (cc: attys; R. Booth Goodwin, II, United States Attorney any unrepresented party) (tmr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
KATELYN GRACE SLEBODA,
Plaintiff,
v.

Civil Action No. 2:13-30805

GEORGE MICHAEL PUSKAS, II,
individually and in his capacity
as a police officer for the
Town of Ripley, West Virginia,
RAYMOND ANDREW WILLIAMS, in his capacity
as a police officer for the
Town of Ripley, West Virginia,
THE TOWN OF RIPLEY POLICE DEPARTMENT and
RIPLEY YOUTH SOCCER CLUB
(a Soccer Association) and
SHERRI STAHLMAN, in her capacity as
Registrar and District Representative, and
CLYDE KENNY, in his capacity as
a Police Officer of and for
The Town of Ripley Police Department
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is the renewed joint motion by all parties,
excluding George Michael Puskas, II, to unseal documents and
provide access to all investigative materials, filed March 19,
2015.

At the court’s direction, the United States responded

thereto on April 2, 2015.
There are two criminal actions previously adjudicated
that involve Mr. Puskas, namely, United States v. Puskas, 2:13-

0008, and United States v. Puskas, 2:13-164.

The plaintiff and

the defendants (“the parties”), with the exception of Mr.
Puskas, who is proceeding pro se, seek an apparent trove of
documents from the two criminal actions and beyond.

An excerpt

from the joint motion provides as follows:
Together Plaintiff and Defendants, excluding pro-se
Defendant Michael Puskas, respectfully request that
this Court’s seal on the witness lists, witness
statements, exhibits, photos, videos, cell phone
records, and investigative file contents used by the
United States attorney in the prosecution of United
States v. George Michael Puskas, II, be lifted so that
these documents may be used in the pending civil
action. The witness lists, witness statements,
exhibits, photos, videos, cell phone records, and
other evidence is [sic] relevant for purposes of 1)
demonstrating whether the allegations contained within
Plaintiff Sleboda's Second Amended Complaint are true,
and 2) impeaching the credibility or supporting the
credibility of any such claims which Plaintiff asserts
in her case for damages.
(Mot. at 1-2).

They specifically seek “the investigative file

used in Case Numbers: 2:13-CR-0008; 2-13-CR-00164-1.”

(Mem. in

Supp. at 1-2).
In support of their request, the parties recite the
familiar rules governing public access to court documents.
These rules appear inapposite inasmuch as the parties seek not
the court record, much of which is available electronically, but
rather the United States’ investigative file.

The United States

opposes the request, asserting that it fails to comply with 28
C.F.R. §§ 16.21 through 16.29, which are part of the United

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States Department of Justice ("DOJ") regulations promulgated in
light of United States ex rel. Touhy v. Ragen, 340 U.S. 462
(1951).

II.

As the United States correctly notes, there are
regulations governing requests of this nature:
(a) In any federal . . . case . . . in which the
United States is not a party, no employee . . . of the
Department of Justice shall . . . produce any material
contained in the files of the Department . . . or
disclose any information or produce any material
acquired as part of the performance of that person's
official duties . . . without prior approval of the
proper Department official in accordance with §§ 16.24
and 16.25 of this part.
(b) Whenever a demand is made upon an employee . . .
as described in paragraph (a) of this section, the
employee shall immediately notify the U.S. Attorney
for the district where the issuing authority is
located. The responsible United States Attorney shall
follow procedures set forth in § 16.24 of this part.
. . . .
(d) When information other than oral testimony is
sought by a demand, the responsible U.S. Attorney
shall request a summary of the information sought and
its relevance to the proceeding.
28 C.F.R. § 16.22.
In United States v. Williams, 170 F.3d 431 (4th Cir.
1999), a state criminal defendant charged with murder attempted

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to subpoena files from the Federal Bureau of Investigation.
stakes in Williams were exceptionally high.

The

In contrast to the

instant civil matter, the accused there contended that
exculpatory evidence was in the file he requested.

The court of

appeals nevertheless observed as follows:
By requiring that a state criminal defendant
comply with the Justice Department's regulations as a
prerequisite to obtaining potentially exculpatory
information, we in no way authorize the FBI to
withhold such information where it has participated in
the investigation of the alleged crimes at issue. Nor
do we deprive the state criminal defendant of
meaningful judicial review of the FBI's response to
such a request.
Under the Justice Department regulations, a state
criminal defendant is simply required to serve upon
agency officials, in addition to his state court
subpoena or other demand for information, a response
to the United States Attorney's request for a summary
of the information sought and its relevance to the
proceeding. If dissatisfied with the agency's
response to the request, the defendant is not without
recourse. The proper method for judicial review of the
agency's final decision pursuant to its regulations is
through the Administrative Procedure Act (“APA”). On
review, district courts have jurisdiction to set aside
agency action that is “arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with
law,” including action that is “contrary to
constitutional right, power, privilege, or immunity.”
In addition, the APA vests the district court with
authority to “compel agency action unlawfully withheld
or unreasonably delayed.” Therefore, a state criminal
defendant, aggrieved by the response of a federal law
enforcement agency made under its regulations, may
assert his constitutional claim to the investigative
information before the district court, which possesses
authority under the APA to compel the law enforcement
agency to produce the requested information in
appropriate cases.

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United States v. Williams, 170 F.3d 431, 434 (4th Cir. 1999)
(citations and footnotes omitted); Kasi v. Angelone, 300 F.3d
487, 506 (4th Cir. 2002) (“[A] state criminal defendant who
seeks investigative file materials from a federal agency must do
so under the applicable agency regulations . . . .”) (citations
omitted).
The parties’ response to the United States’ invocation
of Touhy principles is that they do not seek the records
pursuant to subpoena but directly by order of the court.

There

is no basis for drawing an exception to the regulations using
such an artifice.

The regulations are mandatory and the parties

are thus required to avail themselves of the process outlined
therein.
It is, accordingly, ORDERED that the renewed joint
motion be, and hereby is, denied.
The Clerk is directed to transmit a copy of this
written opinion and order to R. Booth Goodwin II, United States
Attorney, all counsel of record and any unrepresented parties.
ENTER:

May 26, 2015

John T. Copenhaver, Jr.
United States District Judge

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