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)2 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

Christi a nsted, VI 00820

Counsel for Appellee3 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

. T he federal government is no t 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

. T he 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 c ounsel. 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 g overnment, because there was no waiver, the Superior Court lacked jurisdi ction 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)

. W e hold to the contrary that we do have jurisdiction of this4 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

. A t a bench

trial in the Distri ct Court

, prosecuted by the USAO, Gillette

was convicted o n twenty counts of territorial

- law offenses. The federal charges were dismissed. The c ourt 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 regulation s 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 re l. Touhy v. Ragen , 340 U.S. 462 (1951)

. 3 JA 42; see 28 C.F.R. § 16.22(d).5 in stead moved for contempt against the USAO for failing to respond to his subpoena.

The USAO then remove d the proceedings to the District

Court for the District of the Virgin Islands under § 1442(a)(1). 4

There

, t he USAO moved to quash the subpoena, and Gillette requested appointment of counsel. The M agistrate J udge granted the motion to quash and denied G illette’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 appeal ed

.

II.

The g overnment contends that it never waiv e d its sovereign immunity and that as a result we lack jurisdiction to
decide this appeal

. The g overnment’s immunity argument depends on the doctrine of “derivative jurisdiction,” which provides that

, when a case is removed to federal court, the

federal cou rt “ derives ” its jurisdiction from the court from

which the case was removed

. 5 Gillette responds that the

g overnment 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)

.6 time, or w hether it is a claim s

- processing rule that is subject to

forfeiture

. 6

A.

Gillette asserts that the g overnment 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 g overnment 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, i ntervening 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, 25 6 (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.” W e need not address th at argument given our

hold ing 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

. ”7 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 instruct s 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. Bal timore & 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 statute s 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) ).8 To decid e whether derivative jurisdiction is a tru ly 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 o f 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 th is 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).9 been properly removed under the statute

. 13 It simply allows the government to remove a n action from state to federal court

when the United States or an officer or agency of the United

States is a party to th at action

. This is not the sort of clear

statement of congressional intent that the Supreme Court require s

. Instead

, derivative jurisdiction appears to be a doctrine of the courts’ own making

. 14 “ T rue 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, t reating derivative

13 Cf. Guerra v. Consol

. Rail Co. , 936 F.3d 124

, 133 (3d Cir. 2019)

. 14 Fed. Home Loan Mort g. 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, 27 8 (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 g overnment cites Wright &

Miller’s authoritative treatise in support of its argument that

the doctrine is jurisdictional

. However, recent editions of th e treatise explain that “[t]he better view

... is that derivative10 jurisdiction as a limit ation on the courts’ subject

- matter jurisdiction may produce “intractable oddities

. ” 17 For example, if a fe deral court dismisse d a case based on lack of derivative jurisdiction

, it may have refus e d to hear a case that

it ha d original jurisdiction over but that the state court did not

. T he 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 l itigate d 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 Unite d 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

process ing rule does not deprive the go vernment 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 5 1 (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 derivative11 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, w ithout textual evidence of congressional intent, t he g overnment 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

, close r analysis of the line of

decisions cited by the g overnment reveals that the jurisdictional status of derivative jurisdiction has never been

clear

- cut

. 22 Most importantly

, the se decisions show that the

jurisdiction, the mat ter 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.”).12 doctrine has long been subject to exception

. 23 T rue jurisdictional rules are unyielding

, so we cannot conclude that the Supreme Court has always treated derivative jurisdiction a s

suc h

. 24

We find further support for our conclusion in our sister

c ourt s of appeals’ t reatment 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 f ound in

Rodas v. Seidlin , 656 F.3d 610, 6 2 2

– 2 5 (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 Fid elity Trust

Co

. v. Gill Car Co

. , 25 F. 73 7 (C.C. Ohio 1885). Rodas , 656

F.3d at 623. I n that case, the Circuit Court heavily qualified its application of the doctrine. Fid. Trust Co. , 25 F. at 73 9 (“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 jurisdicti on, 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 , 124 0

– 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 (9 th Cir. 1987)

.13 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. § 14 4 1

. 28 According to the g overnment

, that

selective abrogation implicitly ratified the doctrine as a limit ation on subject

- matter jurisdiction when removal is premised on any other statute

. However, the fact that Congress

26 Compare Loui siana 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 Soro sky , 826 F.2d at 801 (same).

27 See Bowles v. Russell , 551 U.S. 205 (2007). In Bowles , the Supreme Court relied on a l ong 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 2 8 U.S.C. § 14 41(f) (“ T he 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).14 did not abrogate the doctrine in all cases does not transform it

into a limit ation on subject

- matter jurisdictio n when it does appl y

. 29 Derivative jurisdiction can just as easily remain applicable as a claims

- processing rule , a n interpretation of the

doct rine that several federal c ourts of appeals have endorsed

. 30

C

.

Because derivative jurisdiction is not a n essential ingredient for the District C ourt’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 ha ve 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 j urisdiction still applie s 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

o bserving that courts of appeals for six other circuits have similarly construe d 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.”).15 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 waive s its sovereign immunity in no n

- monetary action s in federal court. 33

Therefore , we proceed to the merits.

III.

We review the D istrict C ourt’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 proceeding s

. ” 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 t he government ’s argument that it preserved

the derivative jurisdiction issue by raising it in the District

Court. Even so, it did not. T he government’s motion to quash

mentioned sovereign immunity in passing , but it did not

present any substantive argument regarding the Superior Cour t 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).16 C onstitution 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 P ursuant 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 the se regulations, a party who seeks such

information from a DOJ employee must first submit a statement summarizing “ the information sought and i ts
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 I f 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. § 16.2 2(d).

38 See 28 C.F.R. § 16.2 4.

39 See, e.g.

, Davis Enters. v. E

. P

. A

. , 877 F.2d 1181, 1186 (3d Cir. 1989).17 upheld the validity of th is kind of regulation and refused to

hold a federal employee in contempt for declining to produce

document s 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

. R ather 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

Distric t Court did not err

. 42

i

.

Gillette first argues that th e Touhy regulations do not apply because the USAO was “a party to the original legal proceedings in [ his ] habeas case

. ” 43 However, a s the District

Court correctly noted , the “original proceeding” for purpose s 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 46 8

– 6 9 (1950).

41 Davis Enters. , 877 F.2d at 1186.

42 See id

. 43 Br. 11

.18 Gillette attempts to avoid th is 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 purpose s of the Touhy regulations

. However, Gillette does not cite any authority that support s his interpre tation of the regulation s

. In fact , the two decisions that

Gillette cite s 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 enforc e 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 t he USAO is not a party to that proceeding

.

44 See Alexander v. F.B.I. , 186 F.R.D. 66 , 71 ( D.D.C. 199 8 ) ( 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 , 7 8

– 79 (D.D.C. 2003) ( holding that the Secretary of Labor was not a party under applicable Touhy regulations because t he Secretary

was not a party to the administrative proceeding in which the subpoena was issued).19 Nor does Gillette have grounds to argue that the regulations upset the separation of powers by allow ing 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 , t he “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, contr ary to Gillette’s claim, the Touhy regulations prevent the District Court from wading into the

DOJ’s internal record

- keeping process es and t hus maintain the separation of powers. Gillette also could have challenge d 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. Howe ver, t he 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 Touhy20 Gillette’s argument s 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 re gulations plainly govern

its internal procedure s and practice s 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 require d him to submit a summary of the information he sought and its relevance to his habeas proceedings

. Not so

. P rocedural rule s 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 (Eff ective Dec. 4, 198 0), 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 th at the DOJ m ay be entitled to withhold information to some extent beyond that which is privileged.” Br. at 30. T he 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.21 present themselves to the agency.” 49 T he 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 “ appl y externally” in that they require parties

, like Gillette

, to take certain steps in order to receiv e the documents that they request

. 51 P rocedural regulation s are not subject to the notice

- and

- comment requirement simply

because they ha ve some effect on external parties

. 52

Nor are the Touhy regulations arbitrary and capricious.

To evaluate this claim

, we ask whether the regulation s 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 Ci r. 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 requirement s ) ; JEM Broad.

Co. , 22 F.3d at 3 27 (holding that the FCC’s “hard look” rule s

w ere procedural, even though they limited the ability of FCC license applicants to amend their applications ).

53 See Pub. Citizen , 276 F.3d at 640

.22 a party’s request 54 and (2) how the party might narrow their

request if it is not granted in full. 55 Th e 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 Ac t

, 18 U.S.C. § 3006A(a)(2) (B)

. Th at section provides for appointment of counsel whe re 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

interest s 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 reli ef 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, ra ther than any of the statutes enumerated in 18 U.S.C. § 3006A(a)(2)(B).23 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.