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In Re: Request From the United Kingdom Pursuant To the Treaty Between v. Ed Moloney; Anthony Mcintyre

July 6, 2012

IN RE: REQUEST FROM THE UNITED KINGDOM PURSUANT TO THE TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF THE UNITED KINGDOM ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS IN THE MATTER OF DOLOURS PRICE UNITED STATES, PETITIONER, APPELLEE,
v.
ED MOLONEY; ANTHONY MCINTYRE, MOVANTS, APPELLANTS. ED MOLONEY; ANTHONY MCINTYRE, PLAINTIFFS, APPELLANTS,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL; JACK W. PIROZZOLO, COMMISSIONER, DEFENDANTS, APPELLEES.



APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. William G. Young, U.S. District Judge]

The opinion of the court was delivered by: Lynch, Chief Judge.

Before Lynch, Chief Judge, Torruella and Boudin, Circuit Judges.

These consolidated appeals are from the denial, in two cases, of the efforts of two academic researchers to prevent the execution of two sets of subpoenas issued in May and August of 2011. The subpoenas were issued to Boston College ("BC") by a commissioner appointed pursuant to 18 U.S.C. § 3512 and the "US-UK MLAT," the mutual legal assistance treaty between the United States and the United Kingdom. The subpoenas are part of an investigation by United Kingdom authorities into the 1972 abduction and death of Jean McConville, who was thought to have acted as an informer for the British authorities on the activities of republicans in Northern Ireland. This appears to be the first court of appeals decision to deal with an MLAT and § 3512.

The May 2011 subpoenas sought oral history recordings and associated documentation from interviews BC researchers had conducted with two former members of the Irish Republican Army ("IRA"): Dolours Price and Brendan Hughes. BC turned over the Hughes materials because he had died and so he had no confidentiality interests at stake. BC moved to quash or modify the Price subpoenas. The second set of subpoenas issued in August 2011 sought any information related to the death or abduction of McConville contained in any of the other interview materials held by BC. BC moved to quash these subpoenas as well.

The district court denied both motions to quash. In re: Request from the U.K., 831 F. Supp. 2d 435 (D. Mass. 2011). And after undertaking in camera review of the subpoenaed materials it ordered production. Order, In re: Request from the U.K., No. 11-91078 (D. Mass. Dec. 27, 2011), ECF No. 38 (ordering production of Price interviews pursuant to May subpoenas); Findings and Order, In re: Request from the U.K., No. 11-91078, 2012 WL 194432 (D. Mass. Jan. 20, 2012) (ordering production of other interviews pursuant to August subpoenas). BC has appealed the order regarding the August subpoenas, but that appeal is not before this panel. BC chose not to appeal the order regarding the Price materials sought by the May subpoenas.

The appellants here, Ed Moloney and Anthony McIntyre, who unsuccessfully sought to intervene in BC's case on both sets of subpoenas, pursue in the first appeal a challenge to the district court's denial of their motions to intervene as of right and for permissive intervention. Their intervention complaint largely repeated the claims made by BC and sought declarations that the Attorney General's compliance with the United Kingdom's request violates the US-UK MLAT and injunctive relief or mandamus compelling him to comply with the terms of that treaty. The effect of the relief sought would be to impede the execution of the subpoenas.

Having lost on intervention, Moloney and McIntyre then filed their own original complaint, essentially making the same claims as made in this intervenor complaint. The district court dismissed the complaint, stating that even assuming the two had standing, the reasons it gave in its reported decision for denial of BC's arguments and denial of intervention applied to dismissal of the complaint. See Order of Dismissal, Moloney v. Holder, No. 11-12331 (D. Mass. Jan. 25, 2012), ECF No. 15; Tr. of Mot. Hr'g, Moloney v. Holder, No. 11-12331 (D. Mass. Jan. 24, 2012), ECF No. 18. Appellants freely admit that their complaint "essentially set forth the same claim" as their complaint in intervention. In the second appeal they challenge the dismissal of their separate civil complaint for lack of subject matter jurisdiction and for failure to state a claim.

I.

The factual background for these suits is not disputed.

A. The Belfast Project at Boston College

The Belfast Project ("the Project") began in 2001 under the sponsorship of BC. An oral history project, its goal was to document in taped interviews the recollections of members of the Provisional Irish Republican Army, the Provisional Sinn Fein, the Ulster Volunteer Force, and other paramilitary and political organizations involved in the "Troubles" in Northern Ireland from 1969 forward. The purpose was to gather and preserve the stories of individual participants and provide insight into those who become personally engaged in violent conflict. The Project is housed at the John J. Burns Library of Rare Books and Special Collections at BC.

The Project was first proposed by appellant Ed Moloney, a journalist and writer. He later contracted with BC to become the Project's director. Before the Project started, Robert K. O'Neill, the Director of the Burns Library, informed Moloney that, although he had not yet conferred with counsel on the point, he could not guarantee that BC "would be in a position to refuse to turn over documents [from the Project] on a court order without being held in contempt."

Against this background, the Project attempted to guard against unauthorized disclosure. The agreement between Moloney and BC directed him as Project Director to require interviewers and interviewees to sign a confidentiality agreement forbidding them from disclosing the existence or scope of the Project without the permission of BC. The agreement also required the use of a coding system to maintain the anonymity of interviewees and provided that only the Burns Librarian and Moloney would have access to the key identifying the interviewees. Although the interviews were originally going to be stored in Belfast, Northern Ireland, as well as Boston, the Project leadership ultimately decided that the interviews could only be safely stored in the United States. They were eventually stored in the "Treasure Room" of the Burns Library, with extremely limited access.

The agreement between Moloney and BC requires that "[e]ach interviewee is to be given a contract guaranteeing to the extent American law allows the conditions of the interview and the conditions of its deposit at the Burns Library, including terms of an embargo period if it becomes necessary" (emphasis added). The agreement, in this clause, expressly acknowledged that its protections could be limited by American law. The agreement also directs that the Project adopt an "appropriate user model, such as Columbia University's Oral History Research Office Guidelines statement."*fn1

The Project employed researchers to interview former members of the Irish Republican Army and the Ulster Volunteer Force. Appellant Anthony McIntyre, himself a former IRA member, was one of those researchers. McIntyre worked for the Project under a contract governed by the terms of the agreement between Moloney and BC. McIntyre's contract required him to transcribe and index the interviews he conducted and to abide by the confidentiality requirements of the Moloney agreement. McIntyre conducted a total of twenty-six interviews of persons associated with the republican side of the conflict for the Project by the time it ended in 2006. In addition, the Project contains interviews with fourteen members of Protestant paramilitary groups and one member of law enforcement. There are a total of forty-one interview series (each series may contain multiple interviews with a single person).

Interviewees entered into donation agreements with BC, which were signed by the interviewees and by O'Neill, the Burns Librarian. The donation agreements transfer possession of the interview recordings and transcripts to BC and assign to the school "absolute title" to the materials, "including whatever copyright" the interviewee may own in their contents. The donation agreements have the following clause regarding access to the interview materials:

Access to the tapes and transcripts shall be restricted until after my death except in those cases where I have provided prior written approval for their use following consultation with the Burns Librarian, Boston College. Due to the sensitivity of content, the ultimate power of release shall rest with me. After my death the Burns Librarian of Boston College may exercise such power exclusively.

This clause does not contain the term "confidentiality" and provides only that access will be restricted. But it does recite that the ultimate power of release belongs to the donor during the donor's lifetime. The donation agreements do not contain the "to the extent American law allows" language that is contained in the agreement between Moloney and BC. A copy of the donation agreement for Brendan Hughes, but not one for Dolours Price, is in the record, but we assume both signed one.*fn2

In 2010 Moloney published a book and released a documentary, both entitled "Voices from the Grave, Two Men's War in Ireland," based on Belfast Project interviews with Hughes and with David Ervine, a former member of the Ulster Volunteer Force.*fn3 In addition, news reports in Northern Ireland revealed that Price had been interviewed by academics at a Boston-area university and that she had admitted to being involved in the murder and "disappearances" of four persons targeted by the IRA, including Jean McConville.

B. The US-UK MLAT Subpoenas

On March 30, 2011, the United States submitted an application to the district court ex parte and under seal pursuant to the US-UK MLAT and 18 U.S.C. § 3512, seeking the appointment of an Assistant United States Attorney as commissioner to collect evidence from witnesses and to take such other action as necessary to effectuate a request from law enforcement authorities in the United Kingdom. That application remains under seal. The application resulted from a formal request made by the United Kingdom, pursuant to the US-UK MLAT, for legal assistance in a pending criminal investigation in that country involving the 1972 murder and kidnapping of Jean McConville. The district court granted the government's application on March 31, 2011, and entered a sealed order granting the requested appointment.

The commissioner issued two sets of subpoenas for Belfast Project materials. The first set of subpoenas were received by BC on May 5, 2011, and were directed to the Trustees of Boston College; Robert K. O'Neill, Director of the Burns Library; and Thomas E. Hachey, Professor of History and Executive Director of the Center for Irish Studies at BC. The subpoenas were issued for the purpose of assisting the United Kingdom "regarding an alleged violation of the laws of the United Kingdom," namely, murder, conspiracy to murder, incitement to murder, aggravated burglary, false imprisonment, kidnapping, and causing grievous bodily harm with intent to cause such harm. The subpoenas did not state the identity of the victim or victims of these crimes, and sought recordings, written documents, written notes, and computer records of interviews made with Brendan Hughes and Dolours Price, to be produced on May 26, 2011.

BC produced responsive materials related to Hughes; the conditions of his donation agreement pertaining to the release of his interviews had terminated with his death. The time to produce the Price materials was extended by agreement with the U.S. Attorney's Office until June 2, 2011.

The second set of subpoenas were received by counsel for BC on August 4, 2011. The August subpoenas sought recordings of "any and all interviews containing information about the abduction and death of Mrs. Jean McConville," along with related transcripts, records, and other materials. The August subpoenas were directed at the 176 interviews with the remaining 24 republican-associated interviewees who were part of the Project. These subpoenas directed production no later than August 17, 2011.

C. The Litigation Initiated by BC

On June 7, 2011, BC moved to quash the May subpoenas. In the alternative, BC requested that the court allow representatives from BC access to the documents that describe the purposes of the investigation to enable BC to specify with more particularity in what ways the subpoenas were overbroad or that the court conduct such a review in camera. The government opposed the motion. After receiving the August subpoenas, BC filed a new motion to quash addressed to both sets of subpoenas, which the government also opposed.

On August 31, 2011, appellants Moloney and McIntyre filed a motion to intervene as of right and for permissive intervention, see Fed. R. Civ. P. 24, along with their intervention complaint. That pleading tracked the arguments made in BC's motion to quash and also alleged that the Attorney General's compliance with the United Kingdom's request violated the US-UK MLAT and that enforcement of the subpoenas would violate Moloney and McIntyre's First and Fifth Amendment rights. Moloney and McIntyre sought declarations that the Attorney General was in violation of the US-UK MLAT and injunctive relief or mandamus compelling him to comply with the terms of that treaty, the effect of which would be to impede the execution of the subpoenas. The government opposed the motions to intervene.

On December 16, 2011, the district court issued an opinion denying BC's motions to quash the May and August subpoenas for the reasons stated in its opinion. In re: Request from the U.K., 831 F. Supp. 2d at 459. As to BC's alternative request, the court ordered BC to produce materials responsive to the two sets of subpoenas for the court to review in camera.*fn4 Id.

The district court also denied Moloney and McIntyre's motion to intervene as of right and their motion for permissive intervention. Id. The court stated that no federal statute gave Moloney and McIntyre an unconditional right to intervene under Rule 24(a)(1), "and the US-UK MLAT prohibits them from challenging the Attorney General's decisions to pursue the MLAT request."*fn5 Id. at 458. The district court "conclude[d] that Boston College adequately represents any potential interests claimed by the Intervenors. Boston College has already argued ably in favor of protecting Moloney, McIntyre and the interviewees." Id. The court did not separately analyze permissive intervention. Moloney and McIntyre timely appealed the denial of their motion to intervene on December 29, 2011.

Having reviewed in camera the interviews of Dolours Price sought by the May subpoenas, the district court on December 27, 2011 ordered that the May subpoenas be enforced according to their terms. See Order, In re: Request from the U.K., No. 11-91078 (D. Mass. Dec. 27, 2011), ECF No. 38. BC and the other recipients of the May subpoenas did not appeal this order.*fn6

Having been denied intervention, Moloney and McIntyre filed a separate civil complaint in the district court on December 29, 2011. The same legal theories were stated in this complaint as had been in the intervention complaint. The government moved to dismiss plaintiffs' separate complaint for lack of subject matter ...


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