UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ STATE OF UTAH, Plaintiff,

v. SCOTT L. GOLLAHER, Defendant - Appellant.

------------------------------ UNITED STATES OF AMERICA; JEFF ROSS; RANDY KIM; ERIC ZIMMERMAN, Federal Bureau of Investigation Special Agents, Interested Parties - Appellees. No. 19-4030 (D.C. No. 2:18-CV-00309-DB) (D. Utah)

________________ _________________ 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 prod uce documents and testify at

* After examining the briefs and appellate record, th is 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 This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel.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. FILED United States Court of Appeals Tenth Circuit 

### March 5, 2020 Christopher M. Wolpert Clerk of Court2 his preliminary hearing, the United States re moved the matter to federal district court under 28 U.S.C. § 1442(a)(1). A magist rate judge denied Gollaher’s motion for appointment of counsel in the federal proceeding. Then, on motion by the United States, the district court di smissed 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 a ppointment of counsel under the Criminal
Justice Act 

### (the CJA). Our jurisdiction arises under 28 U.S.C. § 129 1. 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 magist rate judge’s order denying his motion. Finally, because Gollaher does not address the appli cability of the CJA in this appeal, we decline to reexamine the previous pane l’s denial of his motion for appointment of counsel under that statute. I. Background Gollaher issued subpoenas to the Ag ents commanding them to produce documents and testify at the preliminary hearing in his st ate-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 Stat es Department of Justice (DOJ) limited the Agents’ testimony and documen t production. Section 301 authorizes federal agencies to “prescri be regulations for . . . the custody, use, and preservation3 of its records, papers, and property.” 5 U.S.C. § 301. As re levant here, a DOJ regulation provides: In any federal or state case or ma tter in which the United States is not a party, no employee or former em ployee of the Department of Justice shall, in response to a demand, produc e any material contained in the files of the Department, or disclose any information relating to or based upon material contained in the files of De partment, or disclose any information or produce any material acquired as part of the performance of that person’s official duties or because of that pe rson’s official status without prior approval of the proper Depa rtment official . . . . 28 C.F.R. § 16.22(a). In Touhy the Supreme Court upheld the validity of a similar regulation restricting a subordi nate federal employee’s disc losure 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 cau se 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 crimin al court denied Gollaher’s motion. It then stayed hi s criminal case while Gollahe r 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 crimin al court’s denial of his motion. Id. It further held that “as a state district court, it di d not have jurisdiction to compel the testimony of federal employees or to compel th e production of documents from federal4 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 Cour t 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 ne w subpoenas to the Agents seeking the same testimony and pr oduction of documents, and he moved to compel compliance. The United States re moved the new subpoena matter to federal district court under § 1442(a)(1), which permits the removal of: (a) A civil or criminal prosecution th at is commenced in a State court and that is against or directed to . . . (1) . . . any officer . . . of the Unite d 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 apprehensi on or punishment of criminals

. . . . 28 U.S.C. § 1442(a)(1). This authority ex tends to “any proceeding (whether or not ancillary to another proceeding) to the extent that in such proceeding a judicial order, including a subpoena for testimo ny 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 magist rate 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’ complian ce with the subpoenas. It argued that under the holding
in Touhy a federal agent cannot be held in c ontempt for failing to comply with a5 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 cour t lacked jurisdiction to comp el the Agents to comply with Gollaher’s subpoenas beyond the disclosure authorized by the DOJ. Consequently, under the doctrine of deriva tive jurisdiction applicable to removal, 1 the United States argued that the federal district court al so 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 thei r production of documents, his sole remedy was to challe nge that decision in a clai m in federal court under the federal Administrative Procedures Ac t (APA), 5 U.S.C. § 701 et seq. In opposition Gollaher argued that the Si xth Amendment grants him the right to compulsory process in his state crim inal case, including the right to obtain testimony and other evidence from federal ag ents. 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 assert ed 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 subj ect matter . . . , the federal court [on removal] acquires non e, 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).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 jurisdic tion by reviewing the final state-court judgme nt in his petition for extraordinary relief. The district court granted the United St ates motion to dismiss, agreeing that Gollaher’s arguments in suppor t of the new subpoenas were frivolous. It cited two independent bases for concluding that it l acked 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 c ourt’s final judgment in Gollaher’s petition for extraordinary relief. Sec ond, the court “[s]eparately” he ld that “because the state court lacks jurisdiction to enforce the subp oenas against federal employees in this case, [the district] court i nherits the same jurisdictiona l 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 di d not bar Gollaher from challenging the constitutionality of the DOJ’s disclosure d ecision 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) (reviewin g de novo a dismissal for la ck of jurisdiction under the Rooker-Feldman doctrine). On appeal Gollaher repeats his contention that the7 state court had jurisdiction to enforce hi s 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 ca se 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 su bpoenas because the Rooker-Feldman doctrine precludes its review of th e state court’s fi nal judgment in Gollaher’s petition for extraordinary relief . Neither of his briefs mentions Rooker-Feldman. “When a district court dism isses a claim on two or more independent grounds, the appellant must challenge each of those grounds.” Lebahn v. Nat’l Farmers Uni on Uniform Pension Plan , 828 F.3d 1180, 1188 (10th Cir. 2016). Gollaher has failed to do so here. “In these circumst ances, we must affirm.” Id. (noting that appellant challenged the dist rict 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 Court 2 Gollaher argues that as a criminal de fendant he had a Sixth Amendment right to appointed counsel in a proceeding with in his state-court prosecution that was

2 Gollaher has been represented by hi s 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.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 we re 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 objecti ons to the magistrate judge’s order. See Fed. R. Civ. P. 72(a) (“A party may serve and file objections to [a magi strate judge’s] order [on a nondispositive matter] within 14 days af ter 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 deni al of Gollaher’s moti on to appoint counsel. See id. (because the appellant failed to object in the district court to a ma gistrate judge’s order, this court was “without power to re view that order on appeal”). C. Denial of Gollaher’s Motion to Appoint Counsel on Appeal In this court Gollaher moved for the a ppointment 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 pa nel denied Gollaher’s motion.9 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 tentat ive 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 c ounsel 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 ot her 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 pr escribe another form.”). Gollaher has not filed a new motion to appo int counsel, and we decline to liberally construe his counseled openi ng brief as such a motion. III. Conclusion The district court’s judgment is affi rmed. Gollaher’s mo tion to proceed on appeal without prepayment of fees and costs is granted.

Entered for the Court

Harris L Hartz Circuit Judge