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Doan v. Bergeron

United States District Court, D. Massachusetts

September 23, 2016

KIM ANH THI DOAN, Plaintiff-Petitioner,
v.
UZANNE BERGERON, et al., Defendants-Respondents.

          MEMORANDUM & ORDER

          Indira Talwani United States District Judge

         I. Introduction

         Kim Anh 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.

         II. Discussion

         a. Doan Properly Used a Subpoena to Seek Documents from DHS

         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.

         Under 5 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.

         DHS' 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.

         b. The Dispute Over DHS's Obligations in Responding to the Subpoena May Be Addressed By this Court as Part of the Pending Litigation

         DHS 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.

         In 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 Department”).

         Considering 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.

         Accordingly, little purpose other than delay would be served by requiring Doan to file a new action, and no separate action is required here.

         c. The Controversy Before ...


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