State of Utah v. Gollaher

Appellate Case: 19-4030 Document: 010110314032 Date Filed: 03/05/2020 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 5, 2020 _________________________________ Christopher M. Wolpert Clerk of Court STATE OF UTAH,

Plaintiff,

v. No. 19-4030 (D.C. No. 2:18-CV-00309-DB) SCOTT L. GOLLAHER, (D. Utah)

Defendant - Appellant.

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UNITED STATES OF AMERICA; JEFF ROSS; RANDY KIM; ERIC ZIMMERMAN, Federal Bureau of Investigation Special Agents,

Interested Parties - Appellees. _________________________________

ORDER AND JUDGMENT* _________________________________

Before TYMKOVICH, Chief Judge, HARTZ, and BACHARACH, Circuit Judges. _________________________________

Scott Gollaher is a criminal defendant in Utah state court. After he

subpoenaed three FBI special agents (the Agents) to produce documents and testify at

* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 19-4030 Document: 010110314032 Date Filed: 03/05/2020 Page: 2

his preliminary hearing, the United States removed the matter to federal district court

under 28 U.S.C. § 1442(a)(1). A magistrate judge denied Gollaher’s motion for

appointment of counsel in the federal proceeding. Then, on motion by the United

States, the district court dismissed the proceeding, holding that it lacked jurisdiction

to enforce the subpoenas for two independent reasons. On appeal a motions panel of

this court denied Gollaher’s motion for appointment of counsel under the Criminal

Justice Act (the CJA).

Our jurisdiction arises under 28 U.S.C. § 1291. We affirm the district court’s

dismissal order because Gollaher fails to challenge on appeal one of the court’s

independent bases for holding that it lacked jurisdiction to enforce the subpoenas.

We further hold that Gollaher cannot appeal the denial of his district-court motion for

appointed counsel because he failed to object to the magistrate judge’s order denying

his motion. Finally, because Gollaher does not address the applicability of the CJA

in this appeal, we decline to reexamine the previous panel’s denial of his motion for

appointment of counsel under that statute.

I. Background

Gollaher issued subpoenas to the Agents commanding them to produce

documents and testify at the preliminary hearing in his state-court criminal case.

Relying on 5 U.S.C. § 301, 28 C.F.R. §§ 16.21 et seq., and United States ex rel.

Touhy v. Ragen, 340 U.S. 462 (1951), the United States Department of Justice (DOJ)

limited the Agents’ testimony and document production. Section 301 authorizes

federal agencies to “prescribe regulations for . . . the custody, use, and preservation 2 Appellate Case: 19-4030 Document: 010110314032 Date Filed: 03/05/2020 Page: 3

of its records, papers, and property.” 5 U.S.C. § 301. As relevant here, a DOJ

regulation provides:

In any federal or state case or matter in which the United States is not a party, no employee or former employee of the Department of Justice shall, in response to a demand, produce any material contained in the files of the Department, or disclose any information relating to or based upon material contained in the files of Department, or disclose any information or produce any material acquired as part of the performance of that person’s official duties or because of that person’s official status without prior approval of the proper Department official . . . . 28 C.F.R. § 16.22(a). In Touhy the Supreme Court upheld the validity of a similar

regulation restricting a subordinate federal employee’s disclosure of information in

response to a subpoena without the Attorney General’s approval. See 340 U.S. at 467

(“[T]he Attorney General can validly withdraw from his subordinates the power to

release department papers.”).

Gollaher moved for an order to show cause why the Agents should not be held

in contempt for failing to comply fully with the subpoenas. Concluding that it lacked

jurisdiction to enforce the subpoenas, the state criminal court denied Gollaher’s

motion. It then stayed his criminal case while Gollaher filed a civil petition for

extraordinary relief to challenge the denial of his motion to enforce the subpoenas.

See Gollaher v. State, 405 P.3d 831, 833 (Utah Ct. App. 2017). The state civil court

denied Gollaher’s petition because “plain, speedy, and adequate relief” was otherwise

available to him regarding the criminal court’s denial of his motion. Id. It further

held that “as a state district court, it did not have jurisdiction to compel the testimony

of federal employees or to compel the production of documents from federal

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employees when they have not been authorized to do so by the Department of Justice

pursuant to its regulations.” Id. (brackets, ellipsis, and internal quotation marks

omitted). The Utah Court of Appeals affirmed, see id. at 836, and the Utah Supreme

Court denied further review, see Gollaher v. State, 409 P.3d 1048 (Utah 2017).

Returning to the state criminal court, Gollaher issued new subpoenas to the

Agents seeking the same testimony and production of documents, and he moved to

compel compliance. The United States removed the new subpoena matter to federal

district court under § 1442(a)(1), which permits the removal of:

(a) A civil or criminal prosecution that is commenced in a State court and that is against or directed to . . . (1) . . . any officer . . . of the United States . . . in an official or individual capacity, for or relating to any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals .... 28 U.S.C. § 1442(a)(1). This authority extends to “any proceeding (whether or not

ancillary to another proceeding) to the extent that in such proceeding a judicial order,

including a subpoena for testimony or documents, is sought or issued.” 28 U.S.C.

§ 1442(d)(1). Gollaher moved the district court to appoint counsel to represent him

in the federal proceeding. After a magistrate judge denied his motion, Gollaher did

not file objections.

The United States moved to dismiss as frivolous Gollaher’s removed motion to

compel the Agents’ compliance with the subpoenas. It argued that under the holding

in Touhy a federal agent cannot be held in contempt for failing to comply with a

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subpoena when the federal agency has not authorized disclosure of information in

accordance with its applicable Touhy regulations. Relying on sovereign immunity

and the Supremacy Clause, U.S. Const., art.VI, cl. 2, the United States further

contended that the state court lacked jurisdiction to compel the Agents to comply

with Gollaher’s subpoenas beyond the disclosure authorized by the DOJ.

Consequently, under the doctrine of derivative jurisdiction applicable to removal,1

the United States argued that the federal district court also lacked jurisdiction to do

so. The United States further argued that if Gollaher was aggrieved by the DOJ’s

decision to limit the Agents’ testimony and preclude their production of documents,

his sole remedy was to challenge that decision in a claim in federal court under the

federal Administrative Procedures Act (APA), 5 U.S.C. § 701 et seq.

In opposition Gollaher argued that the Sixth Amendment grants him the right

to compulsory process in his state criminal case, including the right to obtain

testimony and other evidence from federal agents. He further contended that the

holding in Touhy does not apply in criminal cases. Gollaher argued that the state

criminal court therefore had jurisdiction to enforce his subpoenas to the Agents.

In its reply the United States asserted that granting Gollaher’s motion to

compel would violate the Rooker-Feldman doctrine, see Rooker v. Fidelity Trust Co.,

1 See Lambert Run Coal Co. v. Baltimore & Ohio R.R., 258 U.S. 377, 382 (1922) (“If the state court lacks jurisdiction of the subject matter . . . , the federal court [on removal] acquires none, although it might in a like suit originally brought there have had jurisdiction.”). But see 28 U.S.C. § 1441(f) (abrogating Lambert Run for removal under § 1441). 5 Appellate Case: 19-4030 Document: 010110314032 Date Filed: 03/05/2020 Page: 6

263 U.S. 413 (1923); D.C. Ct. of App. v. Feldman, 460 U.S. 462 (1983), because

Gollaher was asking a federal district court to exceed its jurisdiction by reviewing the

final state-court judgment in his petition for extraordinary relief.

The district court granted the United States motion to dismiss, agreeing that

Gollaher’s arguments in support of the new subpoenas were frivolous. It cited two

independent bases for concluding that it lacked jurisdiction to compel the Agents’

compliance with the subpoenas. First, the court held that under Rooker-Feldman it

had no jurisdiction to review the Utah court’s final judgment in Gollaher’s petition

for extraordinary relief. Second, the court “[s]eparately” held that “because the state

court lacks jurisdiction to enforce the subpoenas against federal employees in this

case, [the district] 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 U.S.C. § 1442.” Aplt. App., Vol. IV at 295-96. The district

court also noted that its decision did not bar Gollaher from challenging the

constitutionality of the DOJ’s disclosure decision in an action in federal court under

the APA.

II. Discussion

A. District Court’s Dismissal of Gollaher’s Motion to Compel

We review de novo a district court’s dismissal for lack of subject-matter

jurisdiction. See D.A. Osguthorpe Family P’ship v. ASC Utah, Inc., 705 F.3d 1223,

1231 (10th Cir. 2013) (reviewing de novo a dismissal for lack of jurisdiction under

the Rooker-Feldman doctrine). On appeal Gollaher repeats his contention that the

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state court had jurisdiction to enforce his subpoenas because (1) the holding in Touhy

does not apply to criminal cases, and (2) his Sixth Amendment right to compulsory

process in his state-court criminal case trumps the United States’ reliance on Touhy

regulations, sovereign immunity, and the Supremacy Clause.

But Gollaher has not challenged on appeal the district-court holding that it

lacked jurisdiction to compel the Agents’ compliance with the subpoenas because the

Rooker-Feldman doctrine precludes its review of the state court’s final judgment in

Gollaher’s petition for extraordinary relief. Neither of his briefs mentions

Rooker-Feldman. “When a district court dismisses a claim on two or more

independent grounds, the appellant must challenge each of those grounds.” Lebahn

v. Nat’l Farmers Union Uniform Pension Plan, 828 F.3d 1180, 1188 (10th Cir.

2016). Gollaher has failed to do so here. “In these circumstances, we must affirm.”

Id. (noting that appellant challenged the district court’s ruling on one element of his

claim but failed to address its ruling on another element).

B. Denial of Gollaher’s Motion to Appoint Counsel in the District Court2

Gollaher argues that as a criminal defendant he had a Sixth Amendment right

to appointed counsel in a proceeding within his state-court prosecution that was

2 Gollaher has been represented by his state-court counsel throughout the federal proceedings, both in the district court and on appeal in this court. The issue therefore is limited to whether Gollaher was entitled to have counsel appointed by the court. 7 Appellate Case: 19-4030 Document: 010110314032 Date Filed: 03/05/2020 Page: 8

separately removed to federal district court under § 1442. But he failed to preserve

his right to appeal this issue.

In the federal proceeding all nondispositive pretrial matters were referred to a

magistrate judge under 28 U.S.C. § 636(b)(1)(A). When Gollaher moved the court to

appoint counsel, a magistrate judge denied the motion. Gollaher did not thereafter

file with the district judge any objections to the magistrate judge’s order. See Fed. R.

Civ. P. 72(a) (“A party may serve and file objections to [a magistrate judge’s] order

[on a nondispositive matter] within 14 days after being served with a copy.”). This

failure precludes our review. “A party may not assign as error a defect in [a

magistrate judge’s] order not timely objected to.” Id. Rather, “appeals from

magistrates’ rulings must be to the district courts and . . . appellate courts are without

power to hear appeals directly from orders of federal magistrates.” Niehaus v. Kan.

Bar Ass’n, 793 F.2d 1159, 1165 (10th Cir. 1986), superseded by statute on other

grounds as stated in DeVargas v. Mason & Hanger-Silas Mason Co., 911 F.2d 1377,

1383-84 (10th Cir. 1990). Consequently, this court lacks jurisdiction to review the

magistrate judge’s denial of Gollaher’s motion to appoint counsel. See id. (because

the appellant failed to object in the district court to a magistrate judge’s order, this

court was “without power to review that order on appeal”).

C. Denial of Gollaher’s Motion to Appoint Counsel on Appeal

In this court Gollaher moved for the appointment of counsel under the CJA.

He did not cite any specific provision of the CJA, 18 U.S.C. § 3006A, entitling him

to appointed counsel. A motions panel denied Gollaher’s motion.

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In his opening brief Gollaher asserts error in the motions panel’s decision. We

can reconsider that order. See Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir.

2007) (“Motions panel decisions are tentative and subject to reexamination by the

merits panel.”). But Gollaher does not explain how the motions panel erred in

denying his request for appointment of counsel under the CJA. His brief nowhere

mentions the CJA. We therefore decline to reexamine the previous panel’s denial of

his motion for appointment of counsel on appeal. To the extent that Gollaher seeks

the appointment of counsel in this appeal on some basis other than the CJA, he must

pursue that relief by motion. See Fed. R. App. P. 27(a) (“An application for an order

or other relief is made by motion unless these rules prescribe another form.”).

Gollaher has not filed a new motion to appoint counsel, and we decline to liberally

construe his counseled opening brief as such a motion.

III. Conclusion

The district court’s judgment is affirmed. Gollaher’s motion to proceed on

appeal without prepayment of fees and costs is granted.

Entered for the Court

Harris L Hartz Circuit Judge

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