Ronald E. Gillette v. WARDEN GOLDEN GROVE ADULT CORRECTIONAL FACILITY On Appeal from the District Court of…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 21-1047
RONALD E. GILLETTE,
Appellant
v.
WARDEN GOLDEN GROVE ADULT CORRECTIONAL
FACILITY
On Appeal from the District Court of the Virgin Islands
(Division of St. Croix)
District Court No. 1-17-cv-00042
District Judge: Honorable Wilma A. Lewis
Argued on May 11, 2022
Before: JORDAN, MATEY and ROTH, Circuit Judges
(Opinion filed: July 16, 2024)

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Joseph A. DiRuzzo, III (Argued)
Daniel M. Lader
DiRuzzo & Company
401 East Las Olas Boulevard
Suite 1400
Fort Lauderdale, FL 33301
Counsel for Appellant
Bradley Hinshelwood (Argued)
United States Department of Justice
Room 7256
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
Adam Sleeper
Office of the United States Attorney
5500 Veterans Drive
Suite 260
United States Courthouse
St. Thomas, VI 00802
Angela P. Tyson-Floyd
ffice of the United States Attorney
1108 King Street
Suite 201
Christiansted, VI 00820
Counsel for Appellee

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OPINION OF THE COURT
ROTH, Circuit Judge.
To aid his pending petition for habeas corpus in the
Virgin Islands Superior Court, Ronald Gillette subpoenaed the
United States Attorney’s Office (USAO) for the District of the
Virgin Islands for documents related to his convictions under
the laws of the Virgin Islands. The federal government is not
a party to the habeas action, and Gillette’s petition does not
challenge any convictions under federal law. When Gillette
did not receive the subpoenaed documents, he moved for
contempt. The USAO removed the proceedings to the District
Court for the District of the Virgin Islands pursuant to 28
U.S.C. §1442(a)(1) and moved to quash the subpoena. Gillette
requested appointment of counsel. The District Court granted
the motion to quash and denied Gillette’s request for counsel.
Gillette appealed.
The government argues that we lack jurisdiction of
Gillette’s appeal because the United States never waived its
sovereign immunity. According to the government, because
there was no waiver, the Superior Court lacked jurisdiction of
Gillette’s subpoena-enforcement action; thus, since the District
Court “derived” its jurisdiction from the Superior Court under
§1442(a)(1), the District Court lacked jurisdiction, as do we.
We do not agree with this interpretation of §1442(a)(1).
We hold to the contrary that we do have jurisdiction of this

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appeal. For the reasons stated below, we will affirm on the
merits the District Court’s order quashing the subpoena.
I.
Gillette is a serial sex offender. In the 1980s in New
Mexico, he received a twenty-seven-year sentence for sex
crimes. After serving his sentence, Gillette moved to the
United States Virgin Islands, but he did not register as a sex
offender. On a tip, law enforcement found that he had been
living with a fifteen-year-old child and had engaged in sexual
contact with that child and another child. A grand jury indicted
Gillette under both federal and Virgin Islands law. At a bench
trial in the District Court, prosecuted by the USAO, Gillette
was convicted on twenty counts of territorial-law offenses.
The federal charges were dismissed. The court sentenced
Gillette to 155 years’ imprisonment. We affirmed Gillette’s
conviction on direct appeal.1
After exhausting his direct-appeal rights, Gillette filed a
habeas petition in the Virgin Islands Superior Court. He sought
to subpoena the USAO for its case file from his prosecution,
and the Superior Court issued a subpoena duces tecum to the
USAO. As required by the Department of Justice (DOJ)’s
regulations concerning responses to subpoenas, often referred
to as Touhy regulations,2 the USAO requested that Gillette
submit “a summary of the information” sought “and its
relevance to the [habeas] proceeding.”3 He did not do so but
1 United States v. Gillette, 738 F.3d 63, 81 (3d Cir. 2013).
2 See United States ex rel. Touhy v. Ragen, 340 U.S. 462
(1951).
3 JA 42; see 28 C.F.R. § 16.22(d).

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instead moved for contempt against the USAO for failing to
respond to his subpoena.
The USAO then removed the proceedings to the District
Court for the District of the Virgin Islands under § 1442(a)(1).4
There, the USAO moved to quash the subpoena, and Gillette
requested appointment of counsel. The Magistrate Judge
granted the motion to quash and denied Gillette’s request for
counsel. The District Court affirmed the Magistrate Judge’s
order on the ground that Gillette did not comply with the DOJ’s
Touhy regulations. Gillette appealed.
II.
The government contends that it never waived its
sovereign immunity and that as a result we lack jurisdiction to
decide this appeal. The government’s immunity argument
depends on the doctrine of “derivative jurisdiction,” which
provides that, when a case is removed to federal court, the
federal court “derives” its jurisdiction from the court from
which the case was removed.5 Gillette responds that the
government forfeited this argument by raising it for the first
time on appeal. The issue that we must decide then is whether
the doctrine of derivative jurisdiction is a limitation on the
court’s subject-matter jurisdiction, which can be raised at any
4 Section 1442(a)(1) provides generally that a civil action
brought in state court against the United States may be
removed to the “district court of the United States for the
district and division embracing the place wherein it is
pending.” 28 U.S.C. § 1442(a)(1).
5 See Witherow v. Firestone Tire & Rubber Co., 530 F.2d 160,
167–68 (3d Cir. 1976).

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time, or whether it is a claims-processing rule that is subject to
forfeiture.6
A.
Gillette asserts that the government forfeited its
sovereign immunity defense by not raising it in the District
Court after removing his subpoena-enforcement action
pursuant to § 1442(a)(1).7 According to Gillette, the Superior
Court’s lack of jurisdiction was merely a defect in the removal
process. The government disagrees, arguing that derivative
jurisdiction is an essential ingredient in the court’s subject-
matter jurisdiction and that as a result it can be raised at any
time. In the past, we have discussed the doctrine of derivative
jurisdiction as a limit on the courts’ subject-matter
jurisdiction.8 However, intervening Supreme Court decisions
require us to revisit that approach.
6 We previously addressed this issue in non-precedential
opinions. See Calhoun v. Murray, 507 F. App’x 251, 256 (3d
Cir. 2012) (“[T]he doctrine of derivative jurisdiction, despite
its perhaps improvident name, is best understood as a
procedural bar to the exercise of federal judicial power. That
is, the doctrine creates a defect in removal, but is not an
essential ingredient to federal subject matter jurisdiction.”
(quoting Rodas v. Seidlin, 656 F.3d 610, 619 (7th Cir. 2011)));
Conklin v. Kane, 634 F. App’x 69, 73 n.4 (3d Cir. 2015).
7 Gillette also argues that no issue of sovereign immunity exists
because the Superior Court is a “creature[] of the federal
government.” We need not address that argument given our
holding on the question of derivative jurisdiction.
8 See, e.g., Gleason v. United States, 458 F.2d 171, 173–74 (3d
Cir. 1972) (“If the state court lacks jurisdiction of the subject-
matter or of the parties, the federal court acquires none.”

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Recognizing that the federal courts have often referred
to non-jurisdictional claims-processing rules as jurisdictional,
the Supreme Court recently “endeavored to bring some
discipline to use of the jurisdictional label.”9 The Supreme
Court therefore instructs us to “treat a procedural requirement
as jurisdictional only if Congress clearly states that it is.”10
While Congress does not need to “incant magic words” to
establish a jurisdictional rule, the “traditional tools of statutory
construction must plainly show that Congress imbued a
procedural bar with jurisdictional consequences.”11
(quoting Lambert Run Coal Co. v. Baltimore & Ohio R.R. Co.,
258 U.S. 377, 379 (1922))). However, more recently, we have
rejected the notion that removal statutes carry jurisdictional
consequences. Korea Exch. Bank, N.Y. Branch v. Trackwise
Sales Corp., 66 F.3d 46, 49 (3d Cir. 1995) (“[T]he Supreme
Court consistently refused to treat the removal statutes as
imposing independent jurisdictional requirements.”).
9 Boechler, P.C. v. Comm’r of Internal Revenue, 596 U.S. 199,
203 (2022) (internal quotation marks omitted); see also
Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 153 (2013)
(discussing the Supreme Court’s effort to “ward off profligate
use of the term ‘jurisdiction’”); Gonzalez v. Thaler, 565 U.S.
134, 141–42 (2012); Henderson ex rel. Henderson v. Shinseki,
562 U.S. 428, 435–36 (2011).
10 Boechler, 596 U.S. at 203 (emphasis added) (internal
quotation marks omitted) (quoting Arbaugh v. Y & H Corp.,
546 U.S. 500, 515 (2006)).
11 Id. at 203 (first quoting Auburn Reg’l Med. Ctr., 568 U.S. at
153; then quoting United States v. Kwai Fun Wong, 575 U.S.
402, 410 (2015)).

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To decide whether derivative jurisdiction is a truly
jurisdictional rule, we first look to the plain language of the
statute. Section 1442(a)(1) provides the following:
(a) A civil action or criminal prosecution that is
commenced in a State court and that is
against or directed to any of the following
may be removed by them to the district court
of the United States for the district and
division embracing the place wherein it is
pending:
(1) The United States or any agency
thereof or any officer (or any person
acting under that officer) of the United
States or of any agency thereof, 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 criminal or the
collection of revenue.12
The text of this section—or, for that matter, any other subpart
of § 1442—does not plainly show that Congress intended the
statute to carry jurisdictional consequences. The section does
not speak in jurisdictional terms, nor does it place any
conditions on a federal court’s power to hear cases that have
12 28 U.S.C. § 1442(a)(1).

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been properly removed under the statute.13 It simply allows
the government to remove an action from state to federal court
when the United States or an officer or agency of the United
States is a party to that action. This is not the sort of clear
statement of congressional intent that the Supreme Court
requires. Instead, derivative jurisdiction appears to be a
doctrine of the courts’ own making.14 “True jurisdictional
limitations are set by the Constitution and by Congress, not by
rules of procedure or judge-made doctrine.”15
Our conclusion is consistent with the fundamental
principles of removal. Despite its name, removal jurisdiction
is not a type of jurisdiction “analogous to federal-question
jurisdiction and diversity-of-citizenship jurisdiction. Rather, it
is a means of bringing cases within federal courts’ original
jurisdiction into those courts.”16 As a result, treating derivative
13 Cf. Guerra v. Consol. Rail Co., 936 F.3d 124, 133 (3d Cir.
2019).
14 Fed. Home Loan Mortg. Corp. v. Gilbert, 656 F. App’x 45,
53 (6th Cir. 2016) (Sutton, J., concurring) (noting that the
doctrine “has no constitutional or statutory basis”); Hollis v.
Fla. State Univ., 259 F.3d 1295, 1298 (11th Cir. 2001)
(describing derivative jurisdiction as a “judicially-created
theory”).
15 Metro Life Ins. Co. v. Price, 501 F.3d 271, 278 (3d Cir. 2007)
(citing Kontrick v. Ryan, 540 U.S. 443, 452 (2004)) (cleaned
up).
16 Wright & Miller, 14C Fed. Prac. & Proc. Juris. § 3721 (Rev.
4th ed.) (emphasis added). The government cites Wright &
Miller’s authoritative treatise in support of its argument that
the doctrine is jurisdictional. However, recent editions of the
treatise explain that “[t]he better view … is that derivative

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jurisdiction as a limitation on the courts’ subject-matter
jurisdiction may produce “intractable oddities.”17 For
example, if a federal court dismissed a case based on lack of
derivative jurisdiction, it may have refused to hear a case that
it had original jurisdiction over but that the state court did not.
The plaintiff could then of course refile in federal court, but
“the upshot would be the kind of rigmarole unworthy of a
civilized judicial system and indefensible from the standpoint
of practical judicial administration.”18 That is particularly true
in cases where, as here, the parties litigated the action to a
decision on the merits before the federal court’s jurisdiction
was challenged.
Nor are we persuaded that the purpose of derivative
jurisdiction justifies treating it as a jurisdictional requirement.
The doctrine allows the United States to raise its sovereign
immunity defense in federal court, rather than depending on
state or territorial courts to protect the federal government’s
interests. But treating derivative jurisdiction as a claims-
processing rule does not deprive the government of the chance
to raise the defense in federal court. It merely requires the
government to do so promptly, which it often has done.19 More
jurisdiction, despite its name, is a procedural defect rather than
a subject matter jurisdiction ingredient.” Wright & Miller, 14C
Fed. Prac. & Proc. Juris. § 3655 (Rev. 4th ed.) (internal
quotation marks omitted).
17 Fed. Home Loan Mortg. Corp., 656 F. App’x at 51 (6th Cir.
2016).
18 Id. at 52 (cleaned up).
19 See Rodas v. Seidlin, 656 F.3d 610, 624 (7th Cir. 2011)
(collecting cases and noting that “in every case we located in
which the Supreme Court discussed the matter of derivative

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importantly, no matter how compelling, policy considerations
do not answer the operative question: whether Congress
clearly stated that § 1442(a)(1) carries jurisdictional
consequences. A rule “does not become jurisdictional
whenever it promotes important congressional objectives.”20
For the above reasons, we hold that derivative
jurisdiction is a claims-processing rule and does not deprive us
of jurisdiction of this appeal.
B.
Nevertheless, without textual evidence of congressional
intent, the government relies on several alternative arguments.
First, it points to countervailing guidance from the Supreme
Court that a procedural rule may be treated as jurisdictional
when “a long line of Supreme Court decisions left undisturbed
by Congress attached a jurisdictional label to the
prescription.”21 However, closer analysis of the line of
decisions cited by the government reveals that the
jurisdictional status of derivative jurisdiction has never been
clear-cut.22 Most importantly, these decisions show that the
jurisdiction, the matter appears to have been raised promptly
upon removal, prior to adjudication on the merits.”).
20 Fort Bend Cnty. v. Davis, 139 S. Ct. 1843, 1851 (2019)
(internal quotation marks omitted) (quoting Reed Elsevier, Inc.
v. Muchnick, 559 U.S. 154, 169 n.9 (2010)).
21 Id. at 1849 (cleaned up).
22 See, e.g., Lambert Run Coal Co., 258 U.S. 377, 382 (1922)
(holding that the district court’s jurisdiction upon removal is
derivative in only “a limited sense.”).

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doctrine has long been subject to exception.23 True
jurisdictional rules are unyielding, so we cannot conclude that
the Supreme Court has always treated derivative jurisdiction as
such.24
We find further support for our conclusion in our sister
courts of appeals’ treatment of derivative jurisdiction. Courts
in the majority of circuits have decided that the doctrine is a
claims-processing rule,25 while certain courts have construed it
as jurisdictional at times and a claims-processing rule at
23 The most extensive analysis of the doctrine can be found in
Rodas v. Seidlin, 656 F.3d 610, 622–25 (7th Cir. 2011).
Among other things, the Rodas court notes that the Supreme
Court’s early formulation of the doctrine in Lambert Run is “an
almost verbatim quotation” of the decision in Fidelity Trust
Co. v. Gill Car Co., 25 F. 737 (C.C. Ohio 1885). Rodas, 656
F.3d at 623. In that case, the Circuit Court heavily qualified its
application of the doctrine. Fid. Trust Co., 25 F. at 739 (“I do
not mean to say that we measure our jurisdiction wholly by that
of the state court, and that nothing can be adjudged here which
could not have been adjudged there”).
24 See Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006)
(“subject-matter jurisdiction, because it involves a court’s
power to hear a case, can never be forfeited or waived”).
25 See, e.g., High Lonesome Ranch, LLC v. Bd. of Cnty.
Comm’rs, 61 F.4th 1225, 1240–41 (10th Cir. 2023); Rodas,
656 F.3d at 619; State of N.D. v. Fredericks, 940 F.2d 333,
336–37 (8th Cir. 1991); Morda v. Klein, 865 F.2d 782, 784 (6th
Cir. 1989); Foval v. First Nat’l Bank of Com. in New Orleans,
841 F.2d 126, 129 (5th Cir. 1988); Sorosky v. Burroughs Corp.,
826 F.2d 794, 800–01 (9th Cir. 1987).

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others.26 A long and undisturbed line of Supreme Court
decisions treating the doctrine as a jurisdictional rule would not
give rise to such conflicting decisions between (and within) our
sister courts of appeals.27
We also disagree that Congress acquiesced to a
jurisdictional view of the doctrine. Congress abrogated
derivative jurisdiction under the general removal statute in
1985, but it later clarified that the abrogation applied only to
28 U.S.C. § 1441.28 According to the government, that
selective abrogation implicitly ratified the doctrine as a
limitation on subject-matter jurisdiction when removal is
premised on any other statute. However, the fact that Congress
26 Compare Louisiana v. Sparks, 978 F.2d 226, 236 (5th Cir.
1992) (treating the doctrine as a jurisdictional rule) and In re
Elko Cty. Grand Jury, 109 F.3d 554, 555 (9th Cir. 1997)
(same), with Foval, 841 F.2d at 129 (treating the doctrine as
non-jurisdictional) and Sorosky, 826 F.2d at 801 (same).
27 See Bowles v. Russell, 551 U.S. 205 (2007). In Bowles, the
Supreme Court relied on a long line of its decisions to hold that
the time limit to take an appeal is a jurisdictional rule. Id. at
214. In doing so, the Court referred to the “consistency of [its]
holdings” as reflected in the fact that the “courts of appeals
routinely and uniformly dismiss untimely appeals for lack of
jurisdiction.” Id. at 210. The same cannot be said of derivative
jurisdiction.
28 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.”); see also Lopez v. Sentrillon
Corp., 749 F.3d 347, 350–51 (5th Cir. 2014).

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did not abrogate the doctrine in all cases does not transform it
into a limitation on subject-matter jurisdiction when it does
apply.29 Derivative jurisdiction can just as easily remain
applicable as a claims-processing rule, an interpretation of the
doctrine that several federal courts of appeals have endorsed.30
C.
Because derivative jurisdiction is not an essential
ingredient for the District Court’s subject-matter jurisdiction,
the Superior Court’s lack of jurisdiction is best understood as
a defect in removal.31 Where, as here, a case is removed to
federal court and litigated to a judgment on the merits, “the
issue in subsequent proceedings on appeal is not whether the
case was properly removed, but whether the federal district
court would have had original jurisdiction of the case had it
29 The cases that the government cites for this argument fail to
convince us otherwise. See Appellee’s Reply to Supp. Br. 2
(citing Lopez, 749 F.3d at 351 (in which the jurisdictional
status of the doctrine was not at issue because derivative
jurisdiction was raised promptly upon removal); Conklin, 634
F. App’x at 73 (explaining that derivative jurisdiction still
applies to removals under § 1442 but that it is better understood
as a non-jurisdictional claims-processing rule)).
30 See High Lonesome Ranch, 61 F.4th at 1240–41 (10th Cir.
2023) (construing the doctrine as a claims-processing rule and
observing that courts of appeals for six other circuits have
similarly construed the doctrine).
31 Rodas, 656 F.3d at 619 (“[T]he doctrine creates a defect in
removal, but is not an essential ingredient to federal subject
matter jurisdiction.”).

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been filed in that court.”32 There is no dispute that the District
Court would have had original jurisdiction of Gillette’s
subpoena-enforcement action: the United States waives its
sovereign immunity in non-monetary actions in federal court.33
Therefore, we proceed to the merits.
III.
We review the District Court’s order on the motion to
quash for abuse of discretion and review its legal conclusions
de novo.34 Gillette argues that the District Court erred on
several grounds when it quashed his subpoena for failure to
comply with the DOJ’s Touhy regulations. First, he argues that
he did not need to comply with the regulations because the
USAO was a party to his “original proceedings.” Second, he
raises broad challenges to the regulations under the
32 Grubbs v. Gen. Elec. Credit Corp., 405 U.S. 699, 702 (1972).
Because Grubbs supplies the applicable standard on appeal, we
need not address the government’s argument that it preserved
the derivative jurisdiction issue by raising it in the District
Court. Even so, it did not. The government’s motion to quash
mentioned sovereign immunity in passing, but it did not
present any substantive argument regarding the Superior Court
or District Court’s jurisdiction and instead focused on
Gillette’s failure to comply with the Touhy regulations. “We
do not regard such cursory treatment as sufficient to bring the
issue . . . before our Court on appeal.” Barna v. Bd. of Sch.
Dirs. of Panther Valley Sch. Dist., 877 F.3d 136, 148 (3d Cir.
2017).
33 5 U.S.C. § 702.
34 Wedgewood Vill. Pharmacy, Inc. v. United States, 421 F.3d
263, 268 n.5 (3d Cir. 2005).

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Constitution and the Administrative Procedure Act (APA).
Finally, he argues that the District Court erred by denying his
request for counsel. We reject each argument.
A.
Title 5, Section 301 of the U.S. Code authorizes the
Attorney General to issue regulations concerning the “conduct
of its employees, the distribution and performance of its
business, and the custody, use, and preservation of its records,
papers, and property.”35 Pursuant to that authority, the DOJ
has issued rules, often called Touhy regulations, that prohibit
its employees from disclosing information contained in,
relating to, or based on material contained in DOJ files as part
of any proceeding to which the United States is not a party,
without prior approval.36
Under these regulations, a party who seeks such
information from a DOJ employee must first submit a
statement summarizing “the information sought and its
relevance to the proceeding.”37 Once a party submits that
statement, the DOJ must decide whether and to what extent to
produce the requested information.38 If a party disagrees with
the scope of production in response to the request, the party
may challenge the production in district court under the APA.39
In United States ex rel. Touhy v. Ragen, the Supreme Court
35 5 U.S.C. § 301.
36 28 C.F.R. § 16.22(a).
37 28 C.F.R. § 16.22(d).
38 See 28 C.F.R. § 16.24.
39 See, e.g., Davis Enters. v. E.P.A., 877 F.2d 1181, 1186 (3d
Cir. 1989).

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upheld the validity of this kind of regulation and refused to
hold a federal employee in contempt for declining to produce
documents in accordance with the regulations.40 We have
similarly recognized that “a federal employee may not be
compelled to obey a subpoena contrary to the agency’s
instructions under valid regulations.”41
Gillette subpoenaed the USAO for its case file from his
prosecution in the Virgin Islands. Pursuant to the DOJ’s Touhy
regulations, the USAO requested a summary of the information
he sought and its relevance to his habeas proceeding. Rather
than comply with that request, Gillette moved for contempt.
The District Court quashed Gillette’s subpoena based on his
failure to comply with the Touhy regulations. Because the
regulations barred the USAO from obeying the subpoena
absent Gillette’s compliance, and the regulations are valid, the
District Court did not err.42
i.
Gillette first argues that the Touhy regulations do not
apply because the USAO was “a party to the original legal
proceedings in [his] habeas case.”43 However, as the District
Court correctly noted, the “original proceeding” for purposes
of the Touhy regulations is the proceeding in which the
subpoena was issued. Here, that is Gillette’s habeas action
currently pending in the Virgin Islands Superior Court. The
USAO is not a party to that proceeding.
40 340 U.S. at 468–69 (1950).
41 Davis Enters., 877 F.2d at 1186.
42 See id.
43 Br. 11.

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Gillette attempts to avoid this result by arguing that his
habeas action is inherently derivative of his underlying
criminal prosecution. Because the USAO was a party to that
proceeding, he argues that we should also consider it a party to
his habeas proceeding for purposes of the Touhy regulations.
However, Gillette does not cite any authority that supports his
interpretation of the regulations. In fact, the two decisions that
Gillette cites only confirm that we look to the proceeding in
which the subpoena was issued, rather than to any ancillary
proceeding.44
ii.
Next, Gillette claims that the Touhy regulations violate
the separation of powers and are therefore unconstitutional as
applied. According to Gillette, if we were to enforce the DOJ’s
Touhy regulations, we would permit a party (i.e., the DOJ)
rather than the court to determine what evidence must be
produced in his habeas proceedings. Gillette’s argument fails
because it depends on the premise that the USAO is a party to
his habeas proceeding. But the USAO is not a party to that
proceeding.
44 See Alexander v. F.B.I., 186 F.R.D. 66, 71 (D.D.C. 1998)
(holding that the United States was a party, and therefore that
plaintiffs were not required to comply with applicable Touhy
regulations, because the United States voluntarily substituted
itself for named defendants in the action in which the subpoena
was issued); Bobreski v. E.P.A., 284 F.Supp.2d 67, 78–79
(D.D.C. 2003) (holding that the Secretary of Labor was not a
party under applicable Touhy regulations because the Secretary
was not a party to the administrative proceeding in which the
subpoena was issued).

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Nor does Gillette have grounds to argue that the
regulations upset the separation of powers by allowing an
executive agency to intrude on the proper function of the
judiciary. Gillette refused to submit the requested summary to
the USAO, so the USAO never made a determination as to the
appropriate scope of production. As the Supreme Court held
in Touhy, the “constitutionality of the Attorney General’s
exercise of determinative power as to whether or on what
conditions … he may refuse to produce government papers
under his charge must await a factual situation that requires a
ruling.”45 Nevertheless, contrary to Gillette’s claim, the Touhy
regulations prevent the District Court from wading into the
DOJ’s internal record-keeping processes and thus maintain the
separation of powers. Gillette also could have challenged the
scope of production under the APA, so the judiciary ultimately
retained authority over the production of evidence in his
proceeding.
iii.
Gillette also argues that he was not required to comply
with the Touhy regulations because they violate the APA.46
45 340 U.S. at 469.
46 Separately, Gillette argues that the Touhy regulations violate
the Regulatory Flexibility Act (RFA) and Executive Order
(EO) 12,291. However, the RFA applies only if an agency “is
required . . . to publish a general notice of proposed
rulemaking.” 5 U.S.C. § 603. As discussed infra, rules that
govern agency organization, procedure, and practice are
exempt from the notice-and-comment process under 5 U.S.C.
§ 553(b)(A), so the RFA does not apply here. EO 12,291 is
likewise inapplicable because the DOJ implemented its Touhy

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Gillette’s arguments rest on the fact that the regulations were
not the product of notice-and-comment rulemaking. However,
rules that govern an agency’s internal organization, procedure,
or practice are exempt from notice-and-comment requirements
under the APA.47 The DOJ’s Touhy regulations plainly govern
its internal procedures and practices related to the disclosure of
documents. Moreover, the regulations were adopted pursuant
to 5 U.S.C. § 301, construed by the Supreme Court as a
“housekeeping statute” which authorizes only such procedural
rules.48
Gillette responds that the Touhy regulations are
substantive and therefore subject to notice-and-comment
requirements because they required him to submit a summary
of the information he sought and its relevance to his habeas
proceedings. Not so. Procedural rules do not “shift the rights
or interests of the parties” who appear before the agency,
“although they may change the way in which the parties
regulations before the EO was effective. Compare 45 Fed.
Reg. at 83,208 (Effective Dec. 4, 1980), with 46 Fed. Reg.
13,193 (Effective Feb. 17, 1981).
47 5 U.S.C. § 553(b)(A).
48 Chrysler Corp. v. Brown, 441 U.S. 281, 310 (1979). Gillette
cites Chrysler Corp. for his claim that the Touhy regulations
violate the APA because they “imply that the DOJ may be
entitled to withhold information to some extent beyond that
which is privileged.” Br. at 30. The regulations make no such
implication. They merely establish a process for the DOJ to
review and respond to requests for documents and testimony,
a process with which Gillette refused to comply.

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present themselves to the agency.”49 The Touhy regulations
merely prescribe the manner in which Gillette was to present
his document request to the USAO.50 It does not matter that
the regulations “apply externally” in that they require parties,
like Gillette, to take certain steps in order to receive the
documents that they request.51 Procedural regulations are not
subject to the notice-and-comment requirement simply
because they have some effect on external parties.52
Nor are the Touhy regulations arbitrary and capricious.
To evaluate this claim, we ask whether the regulations are a
reasonable exercise of agency authority under 5 U.S.C.
§ 301.53 It is reasonable for the DOJ to require parties to
submit a summary of any documents sought because its allows
the DOJ to assess (1) the extent to which it must comply with
49 Chao v. Rothermel, 327 F.3d 223, 227 (3d Cir. 2003); see
also SBC Inc. v. F.C.C., 414 F.3d 486, 498 (3d Cir. 2005).
50 See Inova Alexandria Hosp. v. Shalala, 244 F.3d 342, 349–
50 (4th Cir. 2001) (“A rule that simply prescribes the ‘manner
in which the parties present themselves or their viewpoints to
the agency’ does not alter the rights or interest of the parties.”
(quoting JEM Broad Co. v. FCC, 22 F.3d 320, 326 (D.C. Cir.
1994)).
51 Br. 30.
52 See e.g., Pub. Citizen v. Dep’t of State, 276 F.3d 634, 640–
41 (D.C. Cir. 2002) (holding that the State Department’s “cut-
off” policy for FOIA requests was procedural and thus not
subject to notice-and-comment requirements); JEM Broad.
Co., 22 F.3d at 327 (holding that the FCC’s “hard look” rules
were procedural, even though they limited the ability of FCC
license applicants to amend their applications).
53 See Pub. Citizen, 276 F.3d at 640.

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a party’s request54 and (2) how the party might narrow their
request if it is not granted in full.55 The Touhy regulations are
also consistent with the statute’s purpose of “centralizing
determination as to whether subpoena duces tecum will be
willingly obeyed or challenged.”56
B.
Finally, Gillette appeals the District Court’s denial of
his motion for appointment of counsel under the Criminal
Justice Act, 18 U.S.C. § 3006A(a)(2)(B). That section
provides for appointment of counsel where an individual seeks
relief pursuant to 28 U.S.C. §§ 2241, 2254, or 2255 and “the
United States magistrate judge or the court determines that the
interests of justice so require.”57
Gillette argues that he is entitled to appointed counsel
because he requires counsel to effectively present his
arguments, has met the indigency requirement, and raises non-
frivolous arguments. But Gillette does not seek relief under §§
2241, 2254, or 2255 in this action.58 Rather, this dispute was
before the District Court, and is now before us, for the limited
purpose of resolving the USAO’s motion to quash. The
54 See 28 C.F.R. § 16.26.
55 See 28 C.F.R. § 16.24.
56 United States ex rel. Touhy v. Ragen, 340 U.S. 462, 468
(1951).
57 18 U.S.C. § 3006A(a)(2).
58 Moreover, even if we look beyond the instant action to
Gillette’s pending habeas action, he seeks relief pursuant to 5
V.I. Code Ann. tit. 5, § 1303, rather than any of the statutes
enumerated in 18 U.S.C. § 3006A(a)(2)(B).

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District Court therefore did not err by denying Gillette’s
request for appointment of counsel.
IV.
For the foregoing reasons, we will affirm the judgment
of the District Court.

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