LUSBY v. ROLLS-ROYCE CORPORATION
Filing
283
ORDER denying 247 Motion for Subpoena Duces Tecum, signed by Magistrate Judge William G. Hussmann, Jr on 10/14/2011. (MDS)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
UNITED STATES OF AMERICA, ex rel.
CURTIS J. LUSBY,
Plaintiff,
v.
ROLLS-ROYCE CORPORATION,
Defendant.
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1:03-cv-680-SEB-WGH
ENTRY ON MOTION FOR SUBPOENA DUCES TECUM
This matter is before the court on Relator’s Motion for Subpoena Duces
Tecum filed August 23, 2011. (Docket Nos. 247, 252). The United State of
America filed a Statement of Interest on September 16, 2011. (Docket No. 257).
Relator filed a Reply on September 23, 2011. (Docket No. 260).
This is a qui tam suit in which Relator, Curtis Lusby, claims that
Defendant knowingly presented, or caused to be presented, to an officer or
employee of the United States Government false or fraudulent claims for
payment or approval in violation of 31 U.S.C. § 3729. In an attempt to discover
the extent to which nonconforming parts were shipped to the United States
Government, Relator sent a request to the United States Air Force seeking
documents relating to the alleged nonconforming parts pursuant to U.S. ex rel.
Touhy v. Ragen, 340 U.S. 462, 71 S.Ct. 416, 95 L.Ed. 417 (1951). After the
United States allegedly failed to satisfy a portion of Relator’s Touhy request,
Relator filed the instant Motion for Subpoena Duces Tecum. The portion of the
Touhy request which remains at issue is Relator’s request that the United States
provide:
Reviews, records, studies, investigations related to T56 turbine
section blades, vanes, and wheels conducted pursuant to failures or
deficiencies revealed during receipt inspection, maintenance and/or
operation of C-130 aircraft . . . .
(See United States’ Statement of Interest at 1).
An analysis of this issue begins with the seminal case of Touhy, in which
the Supreme Court held that subordinate federal officials may not be held in
contempt when they do not comply with a court order that would have forced
them to violate a valid federal regulation. Touhy, 340 U.S. at 467–68. Federal
employees, therefore, cannot be compelled to obey a subpoena, “even a federal
subpoena,” that acts against valid agency regulations. Edwards v. U.S. Dep’t. of
Justice, 43 F.3d 312, 317 (7th Cir. 1994). Although Relator argues that “[a]
Subpoena Duces Tecum is the correct method to effect production, rather than a
prolonged administrative process not in accordance with DOD Directive 5405.2”
(Reply at 6), he cites to no authority for that proposition. In the Seventh Circuit,
at least, “[t]he proper method for judicial review of an agency decision pursuant
to valid agency regulations is through the Administrative Procedure Act, 5 U.S.C.
§ 701 et seq.” Edwards, 43 F.3d at 315. In Edwards, a district court did
proceed to address the propriety of a subpoena issued by a state court. But that
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decision was only reviewed after “the parties and the district court . . . agreed to
recast the Federal proceeding as an APA claim.” Id. at 314.
Although, in the interests of expediting this already eight-year-old case, it
would be commendable for the parties to agree to so “recast” this dispute, the
briefs before the Magistrate Judge do not do so. The only other case found by
this Magistrate Judge from this circuit that addresses the issue is U.S. ex rel.
Lamers v. City of Green Bay, Wis., 924 F.Supp. 96, 97-98 (E.D.Wis. 1996). The
court in that case concluded that a similar subpoena must be quashed, even
when the United States had declined to intervene in the case. Lamers, 924
F.Supp. at 97.
Relator argues that this court previously approved its request for the
issuance of a subpoena. (Docket No. 204). However, that subpoena was “held in
abeyance” pending the United States Air Force’s response to the Touhy request.
(Reply Brief at 6). This Magistrate Judge construes the United States’ Statement
of Interest as both a response to Relator’s Motion for Subpoena Duces Tecum
(Docket No. 247) as well as a Motion to Quash any prior subpoena that may
have been approved by the Magistrate Judge.
As Relator points out, the Second Circuit has concluded that a separate
independent action specifically brought under the APA is not always required
and that a motion to compel in a related lawsuit allows a district court to
determine whether an agency’s action in withholding documents was a violation
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of the APA. U.S. E.P.A. v. General Elec. Co., 197 F.3d 592, 600 (2d Cir. 1999). In
this case, the United States argues in its Statement of Interest that the Air Force
acted reasonably, and that its decision is entitled to deference. (Statement of
Interest at 6-9). It could be argued that, by doing so, the United States has
essentially – though not formally – agreed to “recast” the Motion for Subpoena
Duces Tecum into a direct action under the APA.
Although it is not at all clear that the United States has “recast” the issue,
an examination of the standards for reviewing a claim under the APA is in order.
As the United States has argued:
In reviewing Relator’s claim under the APA, courts must defer
to the agency unless the claimant establishes, based solely on the
agency record, that the agency’s decision to withhold the requested
testimony or documents was “arbitrary, capricious, an abuse of
discretion or otherwise not in accordance with the law.” Anderson v.
U.S. Dep’t of Labor, 422 F.3d 1155, 1173 (10th Cir. 2005) (quoting 5
U.S.C. § 706).
In this context, an agency’s review of a Touhy request “is
essentially a policy decision about the best use of the agency’s
resources.” Comsat v. NSF, 190 F.3d at 278. Courts have stated
that, where, as here, the agency’s regulations “vest the agency with
rather broad discretion, our scope of review is severely limited.”
Davis Enter. v. EPA, 877 F.2d 1181, 1186 (3rd Cir. 1989) (internal
quotations and citations omitted). In such cases, courts are thus
“only free to determine whether the agency followed its own
guidelines or committed a clear error of judgment.” Id. Courts thus
affirm an agency’s decision where the agency recognized and applied
factors set forth in its Touhy regulations. Id.; see also Comsat v.
NSF, 190 F.3d at 277.
(Statement of Interest at 9).
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At this time, the Statement of Francisco Gonzales, Jr., indicates the United
States Air Force’s reasoning as follows:
In my capacity as the Attorney Advisor for AFSC/JA, I have reviewed
the Touhy document production request from Relator’s Counsel
(Attachment 01). The item A request is for “Reviews, records,
studies, investigations related to T56 turbine section blades, vanes,
and wheels conducted pursuant to failures or deficiencies revealed
during receipt inspection, maintenance and/or operation of C-130
aircraft.” If AFSC has any responsive documents they would only be
related to failures occurring during the operation of C-130 aircraft.
An exhaustive search of our records for engine mishaps that
reference the T56 engine reveals 498 mishaps for the period of 1994
thru 2011. The subject records are determined to be privileged and
therefore exempt from release.
Safety investigation boards’ findings, analysis and recommendations
are exempt from disclosure under the United States Code, Title 5,
Section 552(b)(5) and Department of Defense Regulation 5400.7-R
Air Force Manual C3.2.1.6. These records are not routinely
available by law to a party in litigation with the government. Release
of this information would jeopardize a significant government
interest by inhibiting its ability to conduct future safety
investigations and would have a stifling effect on the deliberative
process of Air Force officials. Board members are promised that the
information they furnish will be held in confidence and will not be
used for any purpose other than mishap prevention. By doing this,
we provide an atmosphere in which our investigators can thoroughly
explore and analyze all available information before making their
determinations. This process is essential to an effective mishap
prevention program.
The chilling effect of disclosing confidential analyses and witness
statements would greatly inhibit the ability of the Air Force to gather
and evaluate safety information, would result in the increased loss
of aircraft and crewmembers, and ultimately have a detrimental
effect on national security.
In addition to the federal law and regulations cited above, federal
case law clearly establishes the DoD’s privilege against release of
certain information obtained through the safety investigation
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process. See Machin v. Zuckert, 316 F.2d 336 (D.C. Cir.), cert. denied
375 U.S. 896 (1963); United States v. Weber Aircraft Corp., 465 U.S.
792 (1984); and Badhwar v. U.S. Department of the Air Force, 829
F.2d 182 (D.C. Cir., 1987).
(See Statement of Interest at Ex. 1). The Magistrate Judge concludes that the
reasoning of the United States Air Force in declining to provide the information
was not arbitrary and capricious, nor was it an abuse of discretion or contrary to
law. Therefore, even if this matter was “recast” as a claim under the APA, the
decision to withhold the information would be upheld.
For these reasons, the Motion for Subpoena Duces Tecum is DENIED.
SO ORDERED.
Dated: October 14, 2011
__________________________
William G. Hussmann, Jr.
United States Magistrate Judge
Southern District of Indiana
Electronic copies to:
Jeff M. Barron
BARNES & THORNBURG LLP
jeff.barron@btlaw.com
Michael R. Brunelle
BARNES & THORNBURG LLP
mbrunelle@btlaw.com
Jill Z. Julian
UNITED STATES ATTORNEY’S OFFICE
jill.julian@usdoj.gov
Edward A. McConwell Sr.
MCCONWELL LAW OFFICES
ed@mcconwell.com
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Koryn Michelle McHone
BARNES & THORNBURG LLP
kmchone@btlaw.com
Peter Abernethy Morse Jr
BARNES & THORNBURG LLP
pmorse@btlaw.com
Charles W. Ryan III
DOMBROFF GILMORE JAQUES & FRENCH, P.C.
cryan@dglitigators.com
Joseph Striewe
joestriewe@striewelaw.com
Richard P. Winegardner
BARNES & THORNBURG LLP
rwinegar@btlaw.com
Judy L. Woods
BENESCH, FRIEDLANDER, COPLAN & ARONOFF LLP
jwoods@beneschlaw.com
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