Gardner v. Michigan State University Board of Trustees et al

Filing 124

MEMORANDUM OPINION ; signed by Magistrate Judge Joseph G. Scoville (Magistrate Judge Joseph G. Scoville, mmh)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ROBERT GARDNER,

)
)
Plaintiff,
)
)
v.
)
)
MICHIGAN STATE UNIVERSITY, et al., )
)
Defendants.
)
____________________________________)

Case No. 1:12-cv-1018
Honorable Paul L. Maloney

MEMORANDUM OPINION

This is a civil action brought pro se by Robert Gardner against the Michigan State
University Board of Trustees and its President. Plaintiff’s complaint alleges seven counts under
federal and state law. Part of the subject matter of this case concerns the disposition of a grant
involving the Bureau of Indian Affairs (BIA), the Pokagon Band of Potawatomi Indians and
Michigan State University. Plaintiff alleges that in December of 2011 he obtained “promises of
support and funding” from the BIA contingent on his ability to get support for his program from a
Michigan Native American tribe. He alleges that he formalized an agreement between himself, the
BIA, the Pokagon Tribe, and his supervising MSU professor. He alleges that thereafter MSU and
the Tribe breached the contract and kept the grant money for their own purposes. (Compl. ¶ II).
On March 15, 2013, plaintiff issued a subpoena duces tecum to Victor Christiansen
of the BIA requiring production of documents related to a grant awarded to the Pokagon Tribe on
September 2, 2011. After service of the subpoena, attorney William Blake, Office of the Solicitor,
U.S. Department of Interior, addressed a letter to plaintiff informing him that the BIA would not
comply with the subpoena and that plaintiff was required to follow the so-called Touhy regulations

at 43 C.F.R. §§ 2.280-2.290. Mr. Blake sent a copy of the letter to the Clerk of the Court but filed
no appearance or formal objection to the subpoena. On April 26, 2013, plaintiff filed a motion to
compel compliance with the subpoena duces tecum by Victor Christiansen or his designee Anne
Jennings. (Motion, docket # 29). On May 1, 2013, the court entered an order setting a hearing date
for July 10, 2013, and directing plaintiff to serve a copy of the court’s order on the subpoenaed
parties, with proof of service. (Order, docket # 35). On June 10, 2013, the court conducted a hearing
on plaintiff’s motion to compel. Although the respondent had been properly served with the motion,
no one from the BIA appeared at the hearing and no papers in opposition to the motion were filed.
On June 10, 2013, the court entered an order directing that Victor Christiansen, Senior Policy
Analyst for the Bureau of Indian Affairs, “comply with the subpoena duces tecum served on him by
plaintiff dated March 15, 2013, upon penalty of contempt of court. All subpoenaed documents must
be supplied to plaintiff no later than June 21, 2013.” Further, the court ordered that plaintiff serve
a copy of the court’s order on Mr. Christiansen and on Robert Hall, counsel for the deponent.
(Order, docket # 52). The entry of the enforcement order prompted the BIA’s first formal filing, in
which it requested an extension of time to respond to the court’s order enforcing the subpoena.
On July 1, 2013, the BIA filed a motion under Rule 60(b)(6) of the Federal Rules of
Civil Procedure seeking relief from the court’s order enforcing the subpoena and asking the court
to quash the subpoena duces tecum. (docket # 66). The court conducted a hearing on the motion on
September 19, 2013, at which an Assistant United States Attorney appeared on behalf of the BIA.
For the reasons below, the motion to quash the subpoena duces tecum will be denied and the
subpoena enforced.

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Discussion
As an initial matter, it was unnecessary for the BIA to invoke Rule 60(b)(6) of the
Federal Rules of Civil Procedure to seek relief from the order enforcing the subpoena. Routine
discovery orders such as orders enforcing subpoenas, are not final, appealable orders. See Fed. Ins.
Co. v. Me. Yankee Atomic Power Co., 311 F.3d 79, 81 (1st Cir. 2002).1 Under Fed. R. Civ. P. 54(b),
any order that does not end the action as to all claims and parties may be revised at any time before
the entry of a final judgment. Consequently, it was unnecessary for the BIA to invoke Rule 60(b),
which applies only to motions for relief from final judgments.
The BIA’s attempt to evade the command of a federal subpoena on the ground that
plaintiff did not properly follow the BIA’s Touhy regulations, however, is not persuasive. Virtually
every federal agency has promulgated Touhy regulations pursuant to 5 U.S.C. § 301, “commonly
known as the ‘Housekeeping Statute.’” Rimmer v. Holder, 700 F.3d 246, 262 (6th Cir. 2012). Such
regulations restrict the ability of department employees to produce documents or testify. Id. The
BIA cites 43 C.F.R. § 2.281(b), which states:
(b) No Department employee may testify or produce records in any proceeding to which this
subpart applies unless authorized by the Department under §§ 2.80 through 2.90 United
States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
43 C.F.R. § 2.281(b). The scope of the regulation is defined in 43 C.F.R. § 2.280, and subsection
(a)(4) asserts that it applies in federal judicial proceedings:
(a) This subpart describes how the Department of the Interior (including all its bureaus and
offices) responds to requests or subpoenas for:

1

By contrast, orders enforcing administrative subpoenas are final orders, because there are
no further proceedings to be conducted in the trial court. See, e.g., United States v. Van, 931 F.2d
384, 386 (6th Cir. 1991).
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***
(4) Official records or certification of such records for use in Federal, State, territorial
or Tribal judicial, legislative or administrative proceedings.
43 C.F.R. § 2.280(a)(4). Subsection (f) states: “This subpart only provides guidance for the internal
operations of the Department, and neither creates nor is intended to create any enforceable right or
benefit against the United States.” 43 C.F.R. § 2.280(f).
Federal courts generally agree that sovereign immunity precludes a state court from
enforcing a subpoena issued to a non-party federal government agency and that the same is true in
a state court action removed to federal court. See Ghorashi-Bajestani v. Bajestani, No. 1:11-cv-295,
2012 WL 5205547, at * 3 (E.D. Tenn. May 3, 2012)(collecting cases); In re Packaged Ice Antitrust
Litig., No. 08-md-1952, 2011 WL 1790189, at * 3 (E.D. Mich. May 10, 2011)(“While this Court
recognizes that legitimate issues of sovereign immunity may be implicated where federal officials
are responding to state court subpoenas, in a federal court action, sovereign immunity cannot bar a
federal court from enforcing a federal subpoena against the federal government.”)(citing Watts v.
Securities & Exch. Comm’n, 482 F.3d 501, 509 n.1 (D.C. Cir. 2007)).
The rule is different, however, for federal court subpoenas. The Eastern District’s
recent decision in In re Packaged Ice is instructive. Judge Borman notes that in the 1990s, agencies
had some success in persuading federal courts that “a proceeding under the APA, and the APA’s
‘arbitrary and capricious’ standard of review, [was] the only avenue of relief even in federal court
with respect to a federal subpoena.” 2011 WL 1790189, at * 2. The BIA relies on these early cases
and generally ignores contrary authority supplied by more recent decisions. Judge Borman noted in
In re Packaged Ice that “[t]he Sixth Circuit has not expressly decided this issue.” 2011 WL

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1790189, at * 2. He then went on to explain why Rule 45 standards rather than administrative
standards should govern the enforcement of a federal court subpoena:
This Court concludes that the Sixth Circuit would join the opinions of those courts, mostly
in this century, that have concluded that Federal Rule of Civil Procedure 45 and various
available privilege rules provide sufficient limitations on discovery to adequately address
legitimate governmental interests in objecting to a motion to compel compliance with a valid
federal court subpoena. See Watts, 482 F.3d at 508 [](holding that “a challenge to an
agency’s refusal to comply with a Rule 45 subpoena should proceed and be treated not as an
APA action but as a Rule 45 motion to compel” in which courts apply Rule 45 standards to
“quash subpoenas that call for privileged matter or would cause undue burden”); Exxon
Shipping Co. v. United States Dept. of Interior, 34 F.3d 774, 779, 780 n. 11 (9th Cir. 1994)
(holding that “district courts should apply the federal rules of discovery when deciding on
discovery requests made against government agencies, whether or not the United States is
a party,” recognizing that collateral proceedings under the APA, while authorized, are not
mandated and are often costly and time-consuming.).
In re Packaged Ice, 2011 WL 1790189, at * 2; see Beckett v. Serpas, No. 12-910, 2013 WL 796067,
at * 4 (E.D. La. Mar. 4, 2013)(“When a subpoena is issued to a nonparty federal employee by a
federal court, the courts have generally held that sovereign immunity does not preclude [enforcement
of] the subpoena and that the party seeking enforcement is not required to file a separate suit under
the Administrative Procedures Act.”).
The Sixth Circuit’s decision in In re Bankers Trust, 61 F.3d 465, 470 (6th Cir. 1995)
provides significant guidance on how the Sixth Circuit would rule on this issue. The Court of
Appeals noted that the statutory authorities allowing an agency to promulgate regulations “simply
do not give it the power to promulgate regulations in direct contravention of the Federal Rules of
Civil Procedure. . . . Section 301 [] is nothing more than a general housekeeping statute and it does
not provide ‘substantive’ rules regarding disclosure of government information. . . . To allow a
federal regulation issued by an agency to effectively override the application of the Federal Rules
of Civil Procedure and, in essence, divest a court of jurisdiction over discovery, the enabling statute
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must be more specific than a general grant of authority as found here. . . . Moreover, we find no
compelling reason to discard the relatively straightforward discovery methods outlined in the Federal
Rules of Civil Procedure simply because the [agency] has attempted to mandate a different
procedure.” Id. at 470-71.
The following statement from a D.C. Circuit case provides a concise summary of the
rule applicable to a subpoena from a federal court:
A federal-court litigant, on the other hand, can seek to obtain the production of documents
from a federal agency by means of a federal subpoena. In federal court, the federal
government has waived its sovereign immunity, see 5 U.S.C. § 702, and neither the Federal
Housekeeping Statute nor the Touhy decision authorizes a federal agency to withhold
documents from a federal court. Exxon Shipping, 34 F.3d at 777-78. To the extent that the
Comptroller’s regulation, 12 C.F.R. § 4.19 (1995), may be to the contrary, it conflicts with
Federal Rule of Civil Procedure 45 and exceeds the Comptroller’s authority under the
Housekeeping Statute. See In re Bankers Trust Co., 61 F.3d 465, 469-71 (6th Cir. 1995).
Houston Bus. Journal, Inc. v. Office of Comptroller, 86 F.3d 1208, 1212 (D.C. Cir. 1996).
In the present case, the BIA virtually ignored this court’s subpoena, in reliance on its
Touhy regulations. When plaintiff moved to compel, the agency could have and should have
appeared and asserted its regulations and any other objection it had to the subpoena. It did not do
so. Months later, the agency seeks relief on the theory that sovereign immunity deprives the court
of jurisdiction to enforce the subpoena and that the procedures set forth in the agency’s Touhy
regulations are plaintiff’s exclusive recourse. Both propositions have been rejected by the federal
courts in recent years. As these are the only objections raised in the agency’s motion for relief from

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the court’s previous order, and no objection is asserted concerning the scope of the documents
requested or their relevance to this case, the agency’s motion will be denied.

Dated: September 20, 2013

/s/ Joseph G. Scoville
United States Magistrate Judge

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