The opinion of the court was delivered by: HAROLD H. GREENE
On May 17, 1994, at the request of Brown and Williamson Tobacco Corporation (B & W), a major manufacturer of tobacco products, the Superior Court of the District of Columbia issued subpoenas for the testimony of and the production of documents by two Members of Congress -- Henry Waxman, Chairman of the Subcommittee on Health and the Environment of the House Committee on Energy and Commerce, and Ron Ryden, a member of that subcommittee.
Similar subpoenas were served on various media companies and their reporters, including CBS, Inc. and Linda Douglas.
According to the congressional defendants, the media defendants, and press reports
filed with the Court, the documents at issue suggest that B & W may have known as long ago as 1963 that tobacco smoking might be responsible for serious health hazards and was addictive, but that it may nevertheless have denied the existence of such problems even in the face of a major report of the Surgeon General of the United States
and the conclusions of various scientific panels.
B & W, it is asserted in defendants' papers, never publicly revealed the existence of the 1963 studies, and its spokesmen (and those of other tobacco companies) consistently continued to claim that no such problems existed or were known to the companies.
Although the record is not entirely clear, it appears that the documents B & W seeks from the congressional and the media defendants may connect B & W's management with knowledge of the hazards of cigarette smoking from the 1960s on.
The Waxman subcommittee is presently engaged in investigating the issues of health hazards and tobacco addiction. It is in this factual context that B & W secured from Judge Wine in Kentucky the order described below, and it is on the basis of that order that the D.C. Superior Court issued the subpoenas referred to above. The order and thus the subpoenas require Chairman Waxman and Representative Ryden to appear on a date and at a time certain at the offices of King & Spaulding, counsel for B & W,
"for the purpose of inspection and copying of all alleged B & W and affiliated companies' documents in the possession, custody, and control of these [Members of Congress] or any subordinate or agent or representative . . . and which were referred to in" certain newspaper articles or radio broadcasts.
Judge Wine's order further prohibits "counsel for any . . . party" other than B & W to examine such Members of Congress about the contents of the documents or "any impressions or conclusions of the witness or any other person relating thereto." Inasmuch as the documents are said by Judge Wine and B & W to constitute the only relevant topic at the deposition, the restriction means that no one other than B & W counsel may examine the Members of Congress.
The congressional defendants and some of the media defendants have since moved in this Court to quash the subpoenas, and B & W has filed papers challenging both this Court's jurisdiction with respect thereto and the substance of defendants' arguments on the motions to quash. The Court set a briefing schedule, and on June 3, 1994, it heard oral argument from the interested parties. This Opinion disposes of all the issues pending before the Court.
A. Little need be said regarding the jurisdictional issues as they pertain to the news media segment of this dispute. The media defendants have not sought formally to remove the controversy from the Superior Court to this Court,
and there is substantial doubt whether any basis exists for such removal.
In the absence of a valid removal, this Court of course lacks jurisdiction over the motion to quash the subpoenas filed by CBS and Linda Douglas. That motion is accordingly denied for lack of jurisdiction.
B. A different result obtains with respect to B & W's claim that the federal courts, including this Court, lack jurisdiction over the matters raised with respect to the Members of Congress.
28 U.S.C. § 1442 provides for the removal of a civil action against "any officer of the United States . . . for any act under color of such office."
This statute is designed to provide federal officials with a federal forum in which to raise defenses arising from their federal official duties. Willingham v. Morgan, 395 U.S. 402, 405, 23 L. Ed. 2d 396, 89 S. Ct. 1813 (1969). More specifically, as the Fifth Circuit has phrased it, in enacting this law the Congress recognized that "federal officers are entitled to, and the interest of national supremacy requires, the protection of a federal forum in those actions commenced in state court that could arrest, restrict, impair, or interfere with the exercise of federal authority by federal officials." Murray v. Murray, 621 F.2d 103, 106 (5th Cir. 1980).
B & W argues that the federal courts may become involved in the consideration of state court proceedings against federal officials only if the particular proceeding is technically designated as a civil or criminal action. While a literal reading of the statute may support this argument, the courts have long interpreted it to include matters, such as subpoenas, that are only incidents of civil and criminal actions, yet have the same interference effect as that recognized in Willingham and Murray, supra, e.g., Boron Oil Co. v. Downie, 873 F.2d 67 (4th Cir. 1989) (federal party removal of subpoena proceedings proper even though the underlying civil action was not removed); State of Florida v. Cohen, 887 F.2d 1451, 1453 (11th Cir. 1989) ("section 1442(a)(1) permits the removal not only of those actions commenced in state court that potentially expose a federal official to civil liability or criminal penalty for an act performed in the past under color of office, but also the removal of civil matters that seek to either prohibit or require certain actions by a federal official in the future"); Environmental Enterprises Inc. v. United States Environmental Protection Agency, 664 F. Supp. 585 (D.D.C. 1987) (subpoenas to EPA quashed which were issued by D.C. Superior Court ordering testimony and production of documents in connection with a state civil action in which EPA was not a party); Sharon Lease Oil Co. v. F.E.R.C., 691 F. Supp. 381, 385 (D.D.C. 1988) (court quashed subpoena on basis that state court had no jurisdiction to compel non-party federal official to testify or produce documents). The Court concludes that, in view of the case law, the B & W position which would restrict removals to full-fledged civil and criminal actions, is lacking in merit.
Indeed, as a matter of logic, history, and common sense there is no basis for distinguishing for these purposes between a civil or criminal action, on the one hand, and a subpoena or other order commanding acts to be performed by federal officials, on the other. The interference with the functioning and the jurisdiction of such federal officials as Members of Congress, Members of the Cabinet, and other federal agency employees is as great in the one category as in the other, and removal to a federal forum is therefore as appropriate in the one category as in the other.
The Court concludes that the removal was proper, and that it has jurisdiction of the motion to quash filed on ...