ORDER GRANTING MOTION TO QUASH SUBPOENA

On November 9, 1992 the court heard the Motion to Quash Subpoena filed by the Unit ed States in this removed action. Upon due consideration of the written and oral arguments of the parties and the record herein, the court grants this motion for the reasons set forth herein.

Pablo Reyes is a defendant in criminal proceedings in the Tulare County Municipal Court. Mr. Reyes is charged with disrupting a public meeting, refusing to disperse and resisting, obstructing or delaying a police officer. These charges arose out of a demonstration before the Dinuba School Board on January 6, 1992.

Joel Benevides is a mediator employed by the Community Relations Service (hereinafter CRS of the Department of Justice.)

On October 22, 1992, Tom McGuire, counsel for Mr. Reyes, issued a trial subpoena to Mr. Benevides. Mr. McGuire’s declaration in support of the subpoena states in pertinent part:

On October 30, 1992, Mr. Benevides was advised by Linda Martin-Crawford, General Counsel, that Mr. Benevides was not authorized pursuant to 28 C.F.R. § 16.22 to testify or produce documents in response to the subpoena. Apparently in response to this, Mr. Reyes then filed a motion to dismiss the charges against him on the ground that his inability to compel the testimony of Mr. Benevides deprives him of his right to a fair trial. That motion was set to be heard by the Municipal Court on November 2, 1992 at 8:30 a.m. According to the Motion to Quash before this court, defense counsel, the district attorney, the U.S. Attorney, and the Municipal Court’s scheduling deputy agreed that the United States would file a Motion to Quash the subpoena .which would be heard at the same time as Mr. Reyes’ Motion to Dismiss. The United States, acting through Assistant United States Attorney Daniel Bensing, moved the Tulare County Municipal Court to quash this subpoena. On November 4, 1992, the Honorable Ronn M. Couil-lard issued an order denying this motion, ruling in pertinent part as follows:

At the request of Mr. Bensing, Judge Couil-lard gave this order a civil number to facilitate the removal of the subpoena to the federal court. On November 6, the following document was issued by Judge Couillard:

On November 6, the United States removed the subpoena to this court pursuant to 28 U.S.C. § 1442 . On November 6, 1992, William Lucas, Acting Director of CRS, wrote to Mr. Benevides, reconfirming Ms. Martin-Ci-awford’s advice and instructing Mr. Bene-vides “that you were not and are not now authorized to testify or produce documents in [People v. Pablo Reyes ].” Mr. Lucas further states:

By letter to Mr. Bensing dated November 9, 1992, Judge Couillard states that he issued and held the bench warrant “in belief that this action may have been necessary to facilitate the action which your letter svtates will be filed today in federal court.”

The function of the CRS is set forth at 42 U.S.C. § 2000g-l:

42 U.S.C. § 2000g-2 further provides in pertinent part:

Moreover, 28 C.F.R. §§ 16.21 et seq. sets forth procedures to be followed in obtaining information and/or testimony in state court proceedings from employees of the Department of Justice. Section 16.21(a) provides in pertinent part:

Section 16.22 provides in pertinent part:

28 C.F.R. § 16.24 sets forth procedures governing the submission of the demand to the Assistant Attorney General for resolution.

A threshold issue is the subject matter jurisdiction of this court to hear this Motion to Quash in the absence of an actual order by Judge Couillard holding Mr. Benevides in contempt for refusing to testify in reliance upon the above-quoted statute and regulations. It is clear from the record before the court that Judge Couillard has every intention of doing so in the absence of a ruling from this court that he does not have the authority to do so. There is no question that contempt proceedings initiated in state court against federal officials for refusal to testify are removable pursuant to 28 U.S.C. § 1442 . Swett v. Schenk, 792 F.2d 1447, 1451 (9th Cir.1986). Consequently, this court rules that it has subject matter jurisdiction pursuant to Section 1442.

The United States’ Motion to Quash is based on two grounds.

The first is the failure of Mr. McGuire, counsel for Mr. Reyes, to comply with the regulations of the Department of Justice quoted above. There can be no question that Mr. McGuire has not done so. No affidavit setting forth a summary of the testimony sought and its relevance to the criminal action has been filed. 28 C.F.R. § 16 .-23(c). As noted, the subpoena merely states that Mr. Benevides’ testimony “is necessary to help prove the innocence of defendant.” In United States ex rel. Touhy v. Ragen, 340 U.S. 462 , 71 S.Ct. 416 , 95 L.Ed. 417 (1951), the United States Supreme Court ruled that a subordinate official of the Justice Department could not be held in contempt for refusing, in a habeas corpus proceeding brought by a state’ prisoner, to obey a subpoena duces tecum when his compliance had been prohibited by an order of a superior department official pursuant to valid federal regulations governing the release of official documents. Consequently, the state court lacks jurisdiction to use contempt procedures against Mr. Benevides in the event he refuses to testify. Swett v. Schenk, supra, 792 F.2d at 1451 .

The second ground asserted by the United States in support of this Motion to Quash is the fact that CRS has determined by disclosure of the information sought by Mr. Reyes would breach the confidentiality requirements of 42 U.S.C. § 2000g-2(b). The United States further points out that this matter has not yet been submitted to the Assistant Attorney General for resolution. The United States refers the court to City of Port Arthur, Texas v. United States, 517 F.Supp. 987 (D.D.C.1980), wherein the District of Columbia District Court refused to enforce a subpoena issued by the United States District Court for the Northern District of Texas to an employee of CRS and commanding his deposition and the production of records made in conjunction with the electoral mediation effort conducted by him in Port Arthur. The District of Columbia District Court held in pertinent part:

According to the United States, Mr. Bene-vides was not present at the school board meeting at which the disturbances occurred leading to the charges against Mr. Reyes. According to Mr. McGuire and Mr. Gonzalez, counsel for Mr. Reyes’ co-defendant, they have subpoenaed Mr. Benevides to testify that he delivered a document to the Superintendent, that the Superintendent crumpled it up and threw it in the trash, and that the document was a request by MAPA for items to be placed on the school board meeting agenda. However, Mr. McGuire and Mr. Gonzalez conceded that three other persons plus the Superintendent were present when this alleged incident took place and that MAPA members could testify as to the contents of the documents.

Given that defense counsel presented nothing to the court from which the relevance of these facts to any legitimate defense to the crimes charged may be inferred and given that these facts can be solicited from these other witnesses, the court quashes the subpoena issued to Mr. Benevides by Mr. McGuire rather than compromise the congressional mandate for confidentiality and the Department of Justice regulations for the provision of evidence by Department of Justice employees in state court actions in which neither they nor the United States are parties.

ACCORDINGLY, IT IS ORDERED that the United States’ Motion to Quash Subpoena is granted.

. 28 U.S.C. § 1442 (a)(3) provides in pertinent part: (a) A civil action or criminal prosecution commenced in a State court against any of the following persons may be removed by them to the district court of the United States for the district and division embracing the place where it is pending: (3) Any officer of the courts of the United States, for any act under color of office or in the performance of his duties.... . Moreover, the failure of defense counsel to follow these regulations in seeking testimony or evidence governed by them moots any subsequent contention that a refusal to testify because of that failure Violates a defendant's constitutional rights. United States v. Marino, 658 F.2d 1120, 1125 (6th Cir.1981); United States v. Allen, 554 F.2d 398, 406-407 (10th Cir.), cert. denied, 434 U.S. 836 , 98 S.Ct. 124 , 54 L.Ed.2d 97 (1977). . The United States argues that the proper method to be used by Mr. Reyes to challenge such a determination is to institute a separate action in federal court under the Administrative Procedures Act. See Swett v. Schenk, supra, 792 F.2d at n. 2; Davis Enterprises v. U.S. EPA, 877 F.2d 1181 , 1184-1186 (3d Cir.1989), cert. denied, 493 U.S. 1070 , 110 S.Ct. 1113 , 107 L.Ed.2d 1020 (1990). However, the court finds it unnecessary to' resolve this issue in order to rule on the Motion to Quash.