David W. Lupica v. Tovmas Grigoryan et al

Filing 4

MINUTES (IN CHAMBERS) by Magistrate Judge Karen E. Scott re Plaintiff's Application for Entry of Protective Order 1 . Accordingly, on or before February 21, 2017, Plaintiff shall show cause, in writing, why this Court has subject matter jurisdiction over this matter, even though the underlying civil action is pending in state court. (See document for details.) (jdo)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

SAMC-17-00006-JLS (KESx)

Title

David W. Lupica v. Tovmas Grigoryan, et al.

Date

February 14, 2017

Karen E. Scott, United States Magistrate Judge

Present: The Honorable

Jazmin Dorado

n/a

Deputy Clerk

Court Reporter / Recorder

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

n/a

n/a

Proceedings:

(In Chambers) re Plaintiff’s Application for Entry of Protective Order
Regarding Touhy Disclosures

On February 9, 2017, Plaintiff David W. Lupica filed an Application for Entry of Protective
Order Regarding Touhy1 Disclosures. (Dkt. 1.) Plaintiff has a pending civil lawsuit against Defendants
in the Los Angeles County Superior Court, case no. BC547049. (Id. at 2.) He seeks information from the
FBI regarding its investigation of Defendant Tovmas Grigoryan, as well as testimony from an
investigating FBI agent. (Id. at 5.)
After Plaintiff served the FBI with a subpoena duces tecum, the FBI responded that “you must
supply us with a federal court order, a waiver, or some other basis for production consistent with the
Privacy Act.” (Id. at 16) (emphasis added). Plaintiff now asks this Court to issue an order requiring
disclosure of the information, as well as a protective order governing that disclosure.
The Privacy Act forbids federal agencies from disclosing records that contain private information
about individuals, except with the individual’s consent or, inter alia, “pursuant to the order of a court of
competent jurisdiction.” 5 U.S.C. § 522a(b)(11); see also 28 C.F.R. § 16.22, et seq. (Department of
Justice procedures for considering demands for information). In Laxalt v. McClatchy, 809 F.2d 885
(D.C. Cir. 1987), the D.C. Circuit held that such requests are governed by “the relevance standard of
Rule 26(b)(1) of the FRCP.” Id. at 48; see also Hall v. Housing Auth. of Cty. of Marin, 2013 WL
5695813, at *2 (N.D. Cal. 2013) (following Laxalt).

1

United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). In Touhy, the Supreme Court held
that an employee of a government agency could not be held in contempt for failing to comply with a
subpoena, “because [a department] regulation [a predecessor to 28 C.F.R. § 16.22] validly withdrew
from the employee and placed in the Attorney General the decision whether and on what terms to
comply with the subpoena.” In re Boeh, 25 F.3d 761, 764 (9th Cir. 1994), cert. denied, 513 U.S. 1109
(1995).
CV-90 (10/08)

CIVIL MINUTES - GENERAL

Page 1 of 2

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

SAMC-17-00006-JLS (KESx)

Title

February 14, 2017

David W. Lupica v. Tovmas Grigoryan, et al.

Date

This Court has a duty to determine sua sponte that it has subject-matter jurisdiction. See Fed. R.
Civ. P. 12(h)(3). Plaintiff asserts, “Federal district courts are generally considered courts of competent
jurisdiction for purposes of § 522a(b)(11).” (Dkt. 1 at 6.) He does not cite any authority for this
principle, or cite any case in which a federal district court applied the Privacy Act to a subpoena issued
as part of ongoing litigation in a state court. State courts are equally competent to apply federal law, and
federal courts generally abstain from intervening in ongoing state court litigation. See generally
Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 431 (1982) (“Younger v.
Harris, [401 U.S. 37 (1971)] and its progeny espouse a strong federal policy against federal-court
interference with pending state judicial proceedings absent extraordinary circumstances.”).2
Accordingly, on or before February 21, 2017, Plaintiff shall show cause, in writing, why this
Court has subject matter jurisdiction over this matter, even though the underlying civil action is pending
in state court.

Initials of Clerk

jd

2

Some case law indicates that, if the agency has issued a final decision refusing to respond to
the subpoena, Plaintiff might be able to file a separate federal action challenging the agency’s decision
under the Administrative Procedure Act (“APA”). See Boeh, 25 F.3d at 764 n.3; Davis v. Enters. v.
EPA, 877 F.2d 1181, 1184-88 (3d Cir. 1989), cert. denied, 493 U.S. 1070 (1990). Plaintiff does not
appear to be initiating a new action for review under the APA, however.
CV-90 (10/08)

CIVIL MINUTES - GENERAL

Page 2 of 2