United States District Court, D. Massachusetts
MEMORANDUM & ORDER
Talwani United States District Judge
Thi Doan's Amended Complaint alleged that she was being
unlawfully detained in Immigration and Customs Enforcement
(“ICE”) custody, and had been denied adequate
medical care and involuntarily medicated. First Am. Compl.
[#77]. While various motions to dismiss were pending, Doan
served a subpoena on the Department of Homeland Security
(“DHS”), a non-party to this action. Now before
the court are DHS' Motion to Quash Subpoena
[#167] and Doan's Cross-Motion to Compel Compliance
with Subpoena [#172]. The motions are ALLOWED IN PART
and DENIED IN PART.
Doan Properly Used a Subpoena to Seek Documents from DHS
argues that Doan may not utilize a subpoena to obtain
documents from DHS as a non-party, and should instead have
complied with DHS' Touhy regulations. This argument sets
up a false choice.
U.S.C. § 301, “federal agencies may promulgate
regulations establishing conditions for the disclosure of
information.” Puerto Rico v. United States,
490 F.3d 50, 61 (1st Cir. 2007). Such regulations are known
as Touhy regulations for the Supreme Court's decision in
United States ex rel. Touhy v. Ragen, 340 U.S. 462,
468 (1951) upholding the validity of such regulations.
Touhy regulations specifically recognize, however, that a
demand for information from the agency may be made by a
subpoena under the Federal Rules. 6 C.F.R. §§
5.41(a)(2), 5.43; see also Puerto Rico, 490 F.3d at
61 (“The subpoenas were ‘in effect a request for
information from an executive department, ' and,
consequently, ‘the subpoena[s] are treated as an
administrative demand.'”) (quoting Edwards v.
U.S. Dep't of Justice, 43 F.3d 312, 316 (7th Cir.
1994)). Accordingly, DHS may not simply ignore the subpoena,
but instead, must follow the agency's regulations for
responding “when demands for information are
received.” Puerto Rico, 490 F.3d at 62.
The Dispute Over DHS's Obligations in Responding to the
Subpoena May Be Addressed By this Court as Part of the
contends that Doan's sole recourse in addressing
DHS's obligations to respond to the subpoena was to file
a separate claim under the Administrative Procedure Act.
Cabral v. U.S. Dep't of Justice, 587 F.3d 13
(1st Cir. 2009), the First Circuit heard a consolidated
appeal of an underlying action and a separate challenge to
the government's refusal under the Touhy regulations to
produce documents. The court was silent on the issue of
whether the actions needed to have proceeded separately in
the district court, as the district court had suggested. But,
that the appeals were consolidated suggests, as a practical
matter, an efficiency in considering the challenge to the
government's production of documents in the same federal
action for which the documents are sought. The majority of
courts explicitly addressing the issue have held that no
separate action is required. See U.S. EPA v. Gen. Elec.
Co., 197 F.3d 592, 599 (2d Cir. 1999) (opinion amended
on rehearing as to separate issue) (“the district court
erred in deciding that the action referred to in [the APA] is
a lawsuit, an independent, self-sufficient, legal proceeding
commenced by a plaintiff's filing a complaint. . . . In
our view, the APA allows the enforcement of a non-party
subpoena duces tecum for discovery against the government
through a motion to compel compliance”) (internal
quotations omitted); Ceroni v. 4Front Engineered
Solutions, Inc., 793 F.Supp.2d 1268, 1277 (D. Col. 2011)
(“[W]here as here there is an underlying federal action
and the subpoenas in dispute were issued in connection with
that underlying action, the defendant is not required to file
a separate an ancillary APA lawsuit to resolve the discovery
dispute”); Barnett v. Ill. State Bd., No.
02-C-2401, 2002 WL 1560013, at *1 (N.D. Ill. July 2, 2002)
(“[A] motion to compel directed against the [non-party]
Department does the job of bringing the APA ‘action,
' 5 U.S.C. § 703, before the court equally as well
as, if not better than, a separate APA claim against the
the dispute regarding the subpoena in the instant action,
rather than requiring Doan to file a separate action, is also
appropriate where DHS brought the dispute before the court in
the first instance with its motion to quash, and Doan filed
its cross-motion to compel together with its opposition to
DHS' motion to quash. Moreover, under Local Rule 40.1(g),
any separate action would, in any event, be assigned to this
court as a related case.
little purpose other than delay would be served by requiring
Doan to file a new action, and no separate action is required
The Controversy Before ...