������������ �� ���� � �� L ITIGATION J OURNAL 15 You Want Info From the Feds? You Have an Uphill Battle By Amy Joseph Pedersen & P.K. Runkles-Pearson Stoel Rives LLP C Can a litigant enforce a subpoena against Department of Justice rule that required a federal official? There is no simple an- any employee of the department who was served with a subpoena for de- swer to this question, and a party who partment records to “ respectfully tries to obtain evidence from the EPA, decline ” to produce them unless the EEOC, the FTC or any other federal expressly directed otherwise by the agency should expect strong resistance Attorney General. The judge found from the government. This article pro- the agent in contempt of court, and vides tools for evaluating the legitimacy the agent appealed. of that resistance and tips for how to The U.S. Supreme Court de- proceed. cided that the DOJ ’ s internal rule was properly enacted under a The Touhy Doctrine “ housekeeping ” statute allowing The first roadblock to subpoenaing the agency head to “ prescribe documents or testimony from a federal regulations, not inconsistent with agency is the government ’ s likely conten- law ” to govern the agency. There- tion that United States ex rel. Touhy v. Ra- fore, it ruled that the agent properly gen, 340 U.S. 462 (1951), combined with refused to respond to the subpoena agency regulations, allows the agency to and should not be held in contempt. quash the subpoena. The Court did not decide the underlying Touhy began with a dramatic con- question of whether the agency head, frontation between an the Attorney General, had appropriately FBI agent and an Illinois directed the agent not to testify. In a state judge. Touhy, an concurring opinion, Justice Frankfurter inmate in an Illinois state stated that the basis for the opinion was penitentiary, brought a narrowly directed to whether the agency habeas corpus proceed- head had the last word in deciding ing against his warden al- whether to respond – not whether the Amy Pedersen leging that he had been agency head made the right decision. fraudulently convicted. Expressing its displeasure with the He subpoenaed an FBI Touhy decision, Congress in 1958 amend- present an opportunity for some creative agent who he believed ed the “ housekeeping statute ” that per- advocacy in the right case. had documents support- mits Touhy regulations to state that “ [t]his Touhy therefore can present a se- ing his claim. The agent section does not authorize withholding rious obstacle to subpoenaing a fed- refused to supRunkles- information from the public or limiting eral agency. Most federal agencies ply the documents. The P.K. Runkles-Pearson judge granted Touhy ’ s the availability of records to the public. ” have Touhy -style rules permitting them 5 U.S.C. § 301. Surprisingly, the amend- to respectfully decline to respond to motion to compel and ordered the agent ment has not significantly influenced the subpoenas, absent permission from to produce the papers. The agent refused case law in many jurisdictions and may the agency head, and they will almost the judge directly, in open court, citing a Please continue on next page
������������ �� ���� � �� L ITIGATION J OURNAL 16 Info From Feds continued from page 15 certainly respond to subpoenas with a argued (as did the unsuccessful plaintiff in receiving the testimony to determine whether the subpoena imposed an “ un- broad interpretation of Touhy , relying in Touhy ) that the rule violated the sepa- due burden ” under Federal Rule of Civil on Boron Oil Co. v. Downie, 873 F.2d 67 ration of powers because it appropriated (4th Cir. 1989), or similar cases. Boron Oil judicial authority to the agency. The Ninth Procedure 26(c) or 45(c)(3). interpreted Touhy as allowing an agency Circuit, relying on Touhy, disagreed with to avoid a subpoena simply by prescrib- the plaintiffs because it determined that Sovereign Immunity and Other ing appropriate regulations. In reaching the rule was not a blanket prohibition on Difficulties for State Court that conclusion, it relied on a number of agency testimony; it simply removed from Subpoenas policy considerations, such as the need to the agent the authority to decide whether In addition to defenses based directly he would testify. In the Ninth Circuit ’ s view, conserve government resources and mini- on Touhy, agencies may also raise a sov- the plaintiffs could challenge the agency mize government involvement in private ereign immunity defense to enforcement head ’ s decision to withhold testimony – but (and possibly controversial) matters. of a subpoena. The Ninth Circuit has held they could not do so by moving against However, the Ninth Circuit has not that a state court has no jurisdiction to the agent himself. The court suggested been as deferential in its interpreta- subpoena a federal official because of that the plaintiffs could have “ succeeded tion of Touhy. In In re Boeh , 25 F.3d 761 sovereign immunity, In re Elko County by other means in bringing the Attorney (9th Cir. 1994), families prosecuting a Grand Jury, 109 F.3d 554, 556 (9th Cir. General or the designated ‘ proper Depart- wrongful death action in federal court 1997), but has declined to extend that ment official ’ into court to contest his or against the Los Angeles Police Depart- holding to federal court subpoenas, her decision not to permit [the agent ’ s] Exxon Shipping, 34 F.3d at 778 ( “‘ The ment sought testimony from an FBI testimony. ” Id. at 764. In a footnote, the limitations on a state court ’ s subpoena agent concerning his investigation of the court suggested that the plaintiffs might and contempt powers stem from the incident and the conclusions he drew. have proceeded by an action under the sovereign immunity of the United States The agent declined to testify, invoking Administrative Procedure Act attacking and from the Supremacy Clause. Such the appropriate agency rule. The district the rule directly, or by a mandamus action limitations do not apply when a fed- court held the agent in contempt, and against the agency head to require giving eral court exercises its subpoena power he appealed. On appeal, the plaintiffs the agent permission to comply with the against federal officials. ’” (citation omit- subpoena. 1 ted)); see also FBI v. Superior Court of Cal., 507 F. Supp. 2d 1082 (N.D. Cal. 2007) Following Boeh, in Exxon Shipping Co. (describing in detail the sovereign immu- v. U.S. Department of Interior, 34 F.3d 774 nity defense as applied to subpoenas of (9th Cir. 1994), the plaintiff took the Ninth agencies). Other circuits may recognize a Circuit up on its suggestion and brought a sovereign immunity defense to a federal separate direct action against several fed- subpoena to varying degrees. See, e.g., eral agencies to compel production of in- EPA v. Gen. Elec. Co., 197 F.3d 592 (2d formation related to the Exxon Valdez oil Cir. 1999) (finding agency had sovereign spill. The action attacked the Touhy regu- immunity against enforcement of fed- lation as an impermissible expansion of eral subpoena, but that government had agency authority, outside the bounds waived immunity through Administrative of the enabling housekeeping statute. Procedure Act). The Ninth Circuit rejected the agencies ’ Litigants attempting to enforce state argument that Touhy (and the housekeep- court subpoenas also face another proce- ing statute) provided blanket protection dural hurdle. Generally, disputes in state from a subpoena and determined that court actions concerning Touhy matters an agency ’ s resistance to a subpoena was are resolved in federal court, after the reviewable by a court under the ordinary government removes the case under 28 rules of procedure. It acknowledged the government ’ s legitimate interest in not U.S.C. § 1442(a)(1). 2 Because the jurisdic- providing testimony in every civil action, tional basis for removal is the contempt but held that the court should balance charge, the court may decide whether to that interest against the litigant ’ s interest adjudicate any remaining issues involving Please continue on next page
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