WATSON et al v. KINGDOM OF SAUDI ARABIA

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UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
BENJAMIN WATSON, JR., et al.,
Plaintiffs,
v. 	Case No.: 3:21cv329/MCR/ZCB
KINGDOM OF SAUDI ARABIA,
Defendant.
_____________________________/
ORDER
This case 	arises from a terrorist attack at 	Naval Air Station
Pensacola on December 6, 2019. The terrorist, Mohammed Al-Shamrani,
was a member of the Royal Saudi Air Force. Plaintiffs are survivors and
representatives of deceased victims of the attack. 	They sued Defendant
Kingdom of Saudi Arabia, raising a variety of claims arising out of the
attack. 	This Court dismissed those claims under the Foreign Sovereign
Immunities Act. (Doc. 72). Plaintiffs appealed, and the Eleventh Circuit
remanded the case for further proceedings on one claim. 	(Doc. 80).
Plaintiffs have been granted jurisdictional discovery on that claim. (Doc.
90).
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As part of the jurisdictional discovery, Plaintiffs served a Touhy
request 	and 	subpoena 	on 	the 	U.S. 	Department 	of 	Justice 	(the
“Department”), seeking the following materials:
• 	Documents that reflect the factual basis for, or otherwise
support or relate to, the public statements by the FBI and
Department 	of 	Justice 	that, 	based 	on 	a 	review 	of 	Al-
Shamrani’s electronic devices: (a) he had been radicalized
since 2015; (b) he had joined the Royal Saudi Air Force to
carry 	out 	a 	special 	operation; 	and 	(c) 	he 	had 	been
communicating 	with 	Al-Qaeda 	in 	the 	Arabian 	Peninsula
(AQAP) prior to entering the United States.
• 	Documents that reflect the factual basis for, or otherwise
support or relate to, the public statements by the FBI and
Department of Justice that: (a) Al-Shamrani was motivated
by jihadist ideology; and (b) 17 members of the Saudi military
who were training in the United States possessed jihadi or
anti-American content.
• 	Documents provided by, or reflecting information provided by,
the Kingdom of Saudi Arabia to the FBI or Department of
Justice concerning Al-Shamrani’s radicalization, extremist
beliefs, or associations.
• 	Documents 	reviewed, 	relied 	upon, 	or 	requested 	by 	the
Department 	of 	Justice 	in 	investigating 	Al-Shamrani’s
radicalization, including but not limited to materials obtained
from 	foreign 	governments, 	digital 	devices, 	social 	media
accounts, 	or 	screening 	and 	vetting 	records.
(Doc. 98-1 at 11).
The Department subsequently denied Plaintiffs’ Touhy request and
moved to quash the subpoena. 	(Docs. 98, 98-2). 	Plaintiffs responded in
opposition, and the Department replied. (Docs. 102, 106). The Court also
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held an 	in camera 	hearing during which the Department proffered
evidence in support of its denial of the Touhy request. (Docs. 107, 113).
I.
Under 	the 	federal 	“Housekeeping 	Statute,” 	5 	U.S.C. 	§ 	301,
executive branch agencies may issue regulations governing the testimony
of agency employees and the disclosure of agency information. 	The
Supreme Court upheld such regulations in United States ex. rel. Touhy v.
Ragen, 340 U.S. 462 (1951). 	In the years since, agency regulations
promulgated under the Housekeeping Statute have come to be called “an
agency’s Touhy regulations.” 	Westchester Gen. Hosp., Inc. v. Dep’t of
Health & Human Servs., 443 F. App’x 407, 409 n.1 (11th Cir. 2011)
(cleaned up).
The 	Department 	of 	Justice 	has 	promulgated 	its 	own 	Touhy
regulations, and they can be found at 28 C.F.R. § 16.21 et seq. 	These
regulations govern “with respect to the production or disclosure of any
material contained in the files of the Department, any information
relating to material contained in the files of the Department, or any
information acquired by any person while such person was an employee
of the Department . . . .” 28 C.F.R. § 16.21(a). The Eleventh Circuit has
recognized that the Department’s regulations “are valid” and can serve
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as a basis for not complying with a subpoena. United States v. Blair, 174
F.4th 1309, 1318 (11th Cir. 2026).
To obtain testimony or information from the Department, “a party
must file a request pursuant to the agency’s regulations[.]” 	Cabral v.
U.S. Dep’t of Justice, 587 F.3d 13, 22-23 (1st Cir. 2009). 	Such requests
are 	referred 	to 	as 	“Touhy 	requests.” 	Id. 	at 	22-23. 	Under 	the
Department’s regulations, a Touhy request for disclosure of information
must be supported by “a summary of the information sought and its
relevance to the proceeding.” 	28 C.F.R. § 16.22(d). 	Once the request is
received, it is referred to the appropriate Department official—here, the
U.S. Attorney for the Northern District of Florida—for a disclosure
determination. 28 C.F.R. § 16.22(a), (b).
In making the disclosure determination, the Department official
must consider if disclosure is warranted under (1) the applicable rules of
procedure, and (2) the relevant substantive law regarding privilege. 	28
C.F.R. 	§§ 	16.24(b)(2)-(3), 	16.26(a)-(b). 	Additionally, 	the 	regulations
prohibit disclosure if doing so would (1) violate a statute or rule of
procedure, “such as the grand jury secrecy rule”; (2) violate a regulation;
(3) reveal classified information; (4) reveal a confidential source or
informant; (5) “reveal investigatory records compiled for law enforcement
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purposes, and would interfere with enforcement proceedings or disclose
investigative techniques and procedures the effectiveness of which would
thereby be impaired”; or (6) reveal trade secret information. 28 C.F.R. §
16.26(b)(1)-(6). If the official determines that disclosure is unwarranted
under the regulations, then the Touhy request will be denied.
The denial of a Touhy request is “agency action” that is subject to
judicial 	review 	under 	the 	Administrative 	Procedure 	Act 	(APA).
Westchester Gen. Hosp., 443 F. App’x at 410. This means that a reviewing
court “may only set aside agency action that is arbitrary, capricious, an
abuse 	of 	discretion, 	or 	otherwise 	not 	in 	accordance 	with 	law.”
Conservation All. of St. Lucie Cnty., Inc. v. U.S. Dep’t of Transportation,
847 F.3d 1309, 1320 (11th Cir. 2017) (cleaned up). 	The arbitrary and
capricious standard of review is “exceedingly deferential” and “examines
whether the agency decision was based on a consideration of the relevant
factors 	and 	whether 	there 	has 	been 	a 	clear 	error 	of 	judgment.”
Westchester Gen. Hosp., 443 F. App’x at 410 (cleaned up).
Under the arbitrary and capricious standard, a “reviewing court is
not 	authorized 	to 	substitute 	its 	judgment 	for 	that 	of 	the 	agency
concerning the wisdom or prudence of the proposed action.” 	Fund for
Animals, Inc. v. Rice, 85 F.3d 535, 542 (11th Cir. 1996). 	A party
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attempting to show that an agency action was arbitrary and capricious
has 	a 	steep 	hill 	to 	climb 	because 	“[a]long 	the 	standard 	of 	review
continuum,” this standard gives a reviewing court “the least latitude in
finding grounds for reversal[.]” 	Id. 	at 541-42; 	see also Legal Env’t
Assistance Found. v. U.S. E.P.A., 276 F.3d 1253, 1265 (11th Cir. 2001)
(stating that “a party seeking to have a court declare an agency action to
be arbitrary and capricious carries a heavy burden indeed” (cleaned up)).
II.
Here, the responsible Department official denied Plaintiffs’ Touhy
request. 	(Doc. 	98-2). 	The 	Department’s 	denial 	letter 	stated 	that
disclosure was unwarranted under 28 C.F.R. § 16.26(a)(2) because of the
law enforcement investigatory privilege. 	(Id. at 2). 	The denial letter
further 	stated 	that 	disclosure 	was 	prohibited 	under 	28 	C.F.R. 	§
16.26(b)(1), (3), and (5), because disclosure would violate grand jury
secrecy, disclose classified information, and reveal “investigatory records
compiled for [] law enforcement purposes, and would interfere with
enforcement 	proceedings 	or 	disclose 	investigative 	techniques 	and
procedures the effectiveness of which would thereby be impaired.” 	(Id.
at 2-3). 	After sending Plaintiffs the denial letter, the Department filed
the current motion to quash the subpoena that accompanied Plaintiffs’
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Touhy request. 	(Doc. 98). 	In its motion and reply, the Department
argues that its denial of the 	Touhy 	request was not arbitrary and
capricious. (Docs. 98, 106). Plaintiffs disagree. (Doc. 102).
As explained above, the issue before the Court today is not whether
the Department should have denied the Touhy request. 	Instead, the
narrow question the Court must answer is: Was the Department’s denial
of Plaintiffs’ Touhy request so flawed as to warrant the “arbitrary and
capricious” label? Having carefully considered the arguments of counsel
and the information in the record (including the evidence provided during
the 	in 	camera 	hearing), 	the 	answer 	to 	the 	question 	is 	“no.” 	The
Department’s denial was not arbitrary and capricious, an abuse of
discretion, or otherwise contrary to law. 	Instead, the Department’s
determination was based on reasonable consideration of the relevant
factors.
A.
The Department concluded under 28 C.F.R. § 16.26(a)(2) that
disclosing the information sought by Plaintiffs was protected by the law
enforcement privilege. 	Under 28 C.F.R. § 16.26(a)(2), before making a
disclosure, 	the 	Department 	is 	required 	to 	consider 	if “disclosure 	is
appropriate under the relevant substantive law concerning privilege.”
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One privilege recognized by the substantive law is the law enforcement
investigative privilege, which is a qualified privileged originating in
federal common law. 	Callaway v. Adcock, No. 2:20cv598, 2021 WL
8316453, at *1 (M.D. Ala. Feb. 11, 2021). 	This privilege “is based
primarily on the harm to law enforcement efforts which might arise from
the public disclosure of investigatory files.” 	Id. (cleaned up). 	And it is
designed 	“to 	prevent 	disclosure 	of 	law 	enforcement 	techniques 	and
procedures, to preserve the confidentiality of sources, to protect witness
and law enforcement personnel, to safeguard the privacy of individuals
involved in an investigation, and otherwise to prevent interference with
an investigation.” 	Id. 	This privilege also recognizes that “in today’s
times the compelled production of government documents could impact
highly sensitive matters of national 	security.” 	In re 	U.S. 	Dep’t of
Homeland Sec., 459 F.3d 565, 569 (5th Cir. 2006).
The information before the Court shows that the terrorist attack
led to an extensive and wide-ranging law enforcement investigation.
That investigation remains open. 	Information gathered during the
investigation relates to sensitive matters of national security. 	The
Department 	has 	reasonably 	concluded 	that 	potential 	harm 	to 	law
enforcement 	efforts 	might 	arise 	from 	disclosing 	the 	information
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requested by Plaintiffs. After careful consideration, the Court finds that
the 	Department’s 	reliance 	on 	the 	law 	enforcement 	privilege 	was
reasonable, based on consideration of relevant factors, and not a clear
error of judgment. 	“In short, given the breadth of the law enforcement
privilege and the [information] sought by [Plaintiffs], the Court cannot
conclude that DOJ’s decision to” deny the Touhy request “was a clear
error of judgment.” 	Pitts v. United States, ---F. Supp. 3d---, 2026 WL
915679, at *5 (N.D. Ga. Mar. 26, 2026). 	Thus, Plaintiffs have not
succeeded 	in 	showing 	that 	the 	Department 	acted 	arbitrarily 	and
capriciously by denying the Touhy request under 28 C.F.R. § 16.26(a)(2)
based on the law enforcement investigative privilege.1
B.
The same is true with respect to the Department’s decision to deny
disclosure under 28 C.F.R. § 16.26(b)(1), (3), and (5). 	Under 28 C.F.R. §
16.26(b), a Department official “will not” disclose information if doing so
would (1) “violate . . . a rule of procedure, such as the grand jury secrecy
1 Because the Department did not act arbitrarily and capriciously by
denying the Touhy request based on the law enforcement investigative
privilege under 28 C.F.R. § 16.26(a)(2), it is unnecessary to discuss the
Department’s reliance on the factors set forth in 28 C.F.R. § 16.26(b)(1)-
(6). 	Nonetheless, the Court will discuss those provisions in the interest
of completeness and because they have been discussed by the parties.
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rule, F.R.Cr.P. 6(e), . . . (3) . . . reveal classified information, unless
appropriately declassified by the originating agency, . . . [or] (5) . . . reveal
investigatory records compiled for law enforcement purposes, and would
interfere 	with 	enforcement 	proceedings 	or 	disclose 	investigative
techniques and procedures the effectiveness of which would thereby be
impaired.” 	Based on the information before the Court, the Department
did not act arbitrarily and capriciously by denying Plaintiffs’ Touhy
request for those reasons.2
2 Although an agency cannot rely on its Touhy regulations “to establish
authority in the executive departments to determine whether certain
papers and records are privileged,” N.L.R.B. v. Capitol Fish Co., 294 F.2d
868, 	875 	(5th 	Cir. 	1961), 	that 	is 	not 	what 	happened 	here. 	The
Department, in § 16.26(b)(1)-(6), has not created a new privilege nor has
it promulgated substantive rules authorizing nondisclosure. 	Instead,
each of the provisions in (b)(1)-(6) refers to a substantive rule, existing
outside the Touhy regulations, that justifies nondisclosure. For example,
§ 	16.26(b)(1) 	refers 	to 	Rule 	6(e) 	of 	the 	Federal 	Rules 	of 	Criminal
Procedure, which makes grand jury materials secret. 	And § 16.26(b)(4)
refers to the informant’s privilege (recognized in Roviaro v. United States,
353 U.S. 53 (1957)), which prohibits disclosure of information relating to
a confidential informant. 	Similarly, § 16.26(b)(6) refers to the law of
trade secrets, which prevents the disclosure of protected trade secret
information. 	The Touhy regulations did not independently create the
legal basis for nondisclosure on any of the grounds listed in § 16.26(b);
rather, the regulations simply require the Department to consider those
existing legal rules and to not disclose information covered by any of
those existing rules. 	And this Court is today reviewing whether the
Department 	acted 	arbitrarily 	and 	capriciously 	by 	finding 	that
nondisclosure would run afoul of one of those existing rules. 	See St.
Vincent Med. Group, Inc. v. U.S. Dep’t of Justice, 71 F.4th 1073, 1075-76
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The 	“long-established 	policy” 	of 	grand 	jury 	secrecy 	has 	been
codified in Rule 6(e). 	Pitch v. United States, 953 F.3d 1226, 1232 (11th
Cir. 2020) (en banc). 	Rule 6(e) “mandates that various persons who
participate before the grand jury,” including Department of Justice
attorneys, “must not disclose a matter occurring before the grand jury . .
. .” Id. at 1234. The secrecy requirement applies “not only to information
drawn from transcripts of grand jury proceedings, but also to anything
which may tend to reveal what transpired before the grand jury.” 	In re
Grand Jury Investigation, 610 F.2d 202, 216 (5th Cir. 1980) (cleaned up).3
Shortly after the terrorist attack occurred, a federal grand jury
investigation was opened. 	That extensive and wide-ranging grand jury
investigation remains open.4 In their Touhy request, Plaintiffs requested
(7th Cir. 2023) (finding the Department did not act arbitrarily and
capriciously by relying on § 16.26(b)(5) to deny a Touhy request); see also
Pitts, 2026 WL 915679, at *6 (same); In re September 11 Litigation, 621
F. Supp. 2d 131, 145 (S.D.N.Y. 2009) (citing 28 C.F.R. § 16.26(b) and
stating that the “government’s decision that the depositions requested
are likely to interfere with its continuing investigation and compromise
national 	security 	is 	reasonable 	and 	appropriate, 	not 	arbitrary 	and
capricious”).
3 The Eleventh Circuit has “adopted as binding precedent all decisions of
the former Fifth Circuit handed down before October 1, 1981.” 	United
States v. Spearman, 178 F.4th 1295, 1307 n.7 (11th Cir. 2026).
4 	In 	any 	event, 	the 	grand 	jury 	secrecy 	rule 	does 	not 	require 	an
investigation to be open or ongoing. The secrecy rule applies “even after
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documents related to the investigation of the terrorist, his radicalization,
his communications with others, and the contents of his digital devices
and accounts. 	(Doc. 98-1 at 3-11). 	That is the very type of information
that the grand jury received as part of its investigation into the terrorist
attack.5
With 	respect 	to 	the 	issue 	of 	classified 	information, 	the
determination 	of 	whether 	information 	is 	classified 	falls 	within 	the
purview of the Executive Branch and not the Judicial Branch. 	United
States v. Collins, 720 F.2d 1195, 1198 n.2 (11th Cir. 1983). Thus, it is not
this Court’s role to make a classification decision, or to second-guess the
Executive 	Branch’s 	classification 	decision. 	See 	United 	States 	v.
Moussaoui, 65 F. App’x 881, 887 n.5 (4th Cir. 2003) (refusing to review
and reject classification decisions made by the Executive Branch). Here,
the Department has informed the Court (without divulging the classified
information itself) that compliance with Plaintiffs’ Touhy request would
the grand jury has concluded its operations.” United States v. Aisenberg,
358 F.3d 1327, 1348 (11th Cir. 2004).
5 To the extent Plaintiffs have argued that the Department improperly
relied on grand jury secrecy because some of the information sought by
Plaintiffs has been publicly disclosed by other people, that argument is
unpersuasive. 	See Aisenberg, 358 F.3d at 1351 (rejecting argument that
grand jury secrecy fails to apply where “much of this information is
already public through other means”).
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reveal classified information, including classified investigative methods,
procedures, and tools. 	Given the nature of the attack (a terrorist act by
a member of a foreign military on U.S. soil) and the extensive scope of
the investigation, the Court finds a rational basis for the Department’s
conclusion that disclosure of the requested information would reveal
classified information. 	See Sierra Club v. Van Antwerp, 526 F.3d 1353,
1360 (11th Cir. 2008) (“The court’s role is to ensure that the agency came
to 	a 	rational 	conclusion, 	not 	to 	conduct 	its 	own 	investigation 	and
substitute its own judgment for the administrative agency’s decision.”
(cleaned up)).
Similarly, it was rational for the Department to conclude under 28
C.F.R. § 16.26(b)(5) that complying with Plaintiffs’ request would disclose
law 	enforcement 	investigatory 	records 	and 	would 	interfere 	with
enforcement proceedings or disclose and impair investigative techniques
and procedures. As mentioned above, the terrorist attack resulted in an
extensive and wide-ranging law enforcement investigation that remains
open. The information before the Court shows that the Department had
a rational basis for concluding that complying with Plaintiffs’ Touhy
request would result in the disclosure of law enforcement records, as well
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as 	the 	disclosure 	and 	impairment 	of 	investigative 	techniques 	and
procedures.
At bottom, the Court is satisfied that the Department’s denial of
Plaintiffs’ Touhy request has a sufficient evidentiary basis. 	And the
Court 	is 	satisfied 	that 	in 	making 	the 	denial 	determination, 	the
Department considered relevant factors, acted rationally, and did not
make a “clear error of judgment.” 	Conservation All., 847 F.3d at 1320
(“[A court’s] inquiry is limited by law to whether the agency’s decision
was based on a consideration of the relevant factors and, ultimately,
whether it made a clear error of judgment.”).
III.
Attempting to avoid the conclusion that the Department’s decision
was not arbitrary and capricious, Plaintiffs have pointed to several
opinions arising out of the 3M Combat Arms MDL. 	(See Doc. 102 at 8,
10). 	But the 3M opinions Plaintiffs cite (i.e., In re 3M Combat Arms
Earplug Prods. Liab. Litig., No. 3:19md2885, 2020 WL 6274824 (N.D.
Fla. Oct. 26, 2020)), are distinguishable from the current situation.
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The 3M opinions involved Touhy denials by the Department of
Defense6 based on procedural objections such as undue burden and lack
of reasonable time to comply. 2020 WL 6274824, at *4. Those are vastly
different reasons to deny a Touhy request than the reasons articulated
by the Department of Justice in today’s case. Here, the Touhy denial was
focused on the type of information requested, legal rules implicated by
the 	Touhy 	request, 	and 	the 	potential 	harm 	that 	could 	result 	from
disclosure. 	It was not based on a procedural objection or a concern
regarding 	the 	burden 	Department 	of 	Justice 	employees 	would 	be
required to bear to comply with the subpoena. Because this is not a case
involving a vague invocation of the “too busy” excuse that “invites an
impermissible blanket ban on all requests for testimony,” 	id. at *5
(cleaned up), the 3M opinions are distinguishable and do not support
Plaintiffs’ argument in this case.
6 The Department of Defense has different Touhy regulations than the
Department of Justice.
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IV.
For the reasons above, the Department of Justice’s motion to quash
(Doc. 	98) 	is 	GRANTED, 	and 	Plaintiffs’ 	subpoena 	(Doc. 	98-1) 	is
QUASHED.
SO ORDERED this 15th day of July 2026.
/s/ Zachary C. Bolitho
Zachary C. Bolitho
United States Magistrate Judge
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