Koopmann et al v. United States Department of Transportation et al
Filing
28
OPINION AND ORDER re: 25 MOTION for Summary Judgment NOTICE OF MOTION FOR SUMMARY JUDGMENT OR TO COMPEL THE DEPOSITION OF ROBERT GARRIS. filed by Timothy Kidd, Victor Pirnik, Gary Koopmann, 23 MOTION to Dismiss. MOTION for Summary Judgment . filed by Elaine Chao, National Highway Traffic Safety Administration, United States Department of Transportation, Heidi King, Otto G. Matheke, III. Whether Defendants can prevent Plaintiffs from deposing Garris by way of a Rule 45 motion in Pirnik, however, does not call for delaying the disposition of this case, in which Plaintiffs challenge Defendants' Denial Letter on the ground that it was arbitrary and capricious and in excess of statutory jur isdiction. Because the Court concludes that the Denial Letter was both, Defendants' motion to dismiss or, in the alternative, for summary judgment, is DENIED, while Plaintiffs' cross-motion for summary judgment is GRANTED. The Clerk of Court is directed to terminate Docket Nos. 23 and 25 and to close this case. SO ORDERED. (Signed by Judge Jesse M. Furman on 8/16/2018) (ne) Transmission to Orders and Judgments Clerk for processing.
Case 1:18-cv-03460-JMF Document 28 Filed 08/16/18 Page 1 of 17
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
GARY KOOPMANN, TIMOTHY KIDD, and VICTOR :
PIRNIK,
:
:
Plaintiffs,
:
:
-v:
:
UNITED STATES DEPARTMENT OF
:
TRANSPORTATION et al.,
:
:
Defendants.
:
:
---------------------------------------------------------------------- X
08/16/2018
18-CV-3460 (JMF)
OPINION AND ORDER
JESSE M. FURMAN, United States District Judge:
The United States Department of Transportation (“USDOT”), like most federal agencies,
has enacted a set of regulations — known as “Touhy regulations” after the Supreme Court case
that spawned them — governing when its employees may be called by private parties to testify in
court. On their face, USDOT’s regulations apply to both “current” and “former” employees.
The principal question is this case is whether application of the regulations to “former”
employees is lawful, as the statute pursuant to which the regulations were enacted — the
Housekeeping Statute, 5 U.S.C. § 301 — speaks only of “employees.” The case arises out of
another case, Pirnik v. Fiat Chrysler Automobiles N.V., 15-CV-7199 (JMF) (S.D.N.Y.)
(“Pirnik”), in which Plaintiffs here bring securities-fraud claims against Fiat Chrysler
Automobiles (“FCA”) and other defendants. In an effort to obtain evidence concerning FCA’s
communications with the National Highway Traffic Safety Administration (“NHTSA”), a part of
USDOT, Plaintiffs sought to depose a former NHTSA employee, and USDOT — invoking its
Touhy regulations — denied the request. Pursuant to the Administrative Procedure Act
Case 1:18-cv-03460-JMF Document 28 Filed 08/16/18 Page 2 of 17
(“APA”), 5 U.S.C. §§ 500 et seq., Plaintiffs bring this suit to challenge that denial as “arbitrary,
capricious, an abuse of discretion, and in excess of [USDOT’s] statutory jurisdiction.” (Docket
No. 1 (“Compl.”) ¶ 59). Defendants now move to dismiss or, in the alternative, for summary
judgment; Plaintiffs cross-move for summary judgment. (Docket Nos. 23, 25).
Based on the text, structure, and purpose of the Housekeeping Statute, the Court
concludes that USDOT’s Touhy regulations are unlawful to the extent that they apply to former
employees. Accordingly, and for the other reasons stated below, Plaintiffs’ motion for summary
judgment is GRANTED, and Defendant’s motion is DENIED.
LEGAL BACKGROUND
“The antecedents” of today’s Housekeeping Statute “go back to the beginning of the
Republic, when statutes were enacted to give heads of early Government departments authority
to govern internal department affairs.” Chrysler Corp. v. Brown, 441 U.S. 281, 309 (1979).
Those early laws “were consolidated into one statute in 1874 and the current version of the
statute was enacted in 1958.” Id. The current version provides in full as follows:
The head of an Executive department or military department may prescribe
regulations for the government of his department, the conduct of its employees,
the distribution and performance of its business, and the custody, use, and
preservation of its records, papers, and property. This section does not authorize
withholding information from the public or limiting the availability of records to
the public.
5 U.S.C. § 301. Pursuant to that statute, USDOT promulgated regulations “governing the
testimony of an employee in legal proceedings.” Testimony of Employees of the Department
and Production of Records in Legal Proceedings, 49 C.F.R. § 9.1(a) (2017). These regulations
—commonly known as “Touhy regulations” after the Supreme Court’s decision in United States
ex rel. Touhy v. Ragen, 340 U.S. 462 (1951) — establish “procedures to be followed when an
employee is issued a subpoena, order or other demand . . . by a court or other competent
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authority, or is requested by a private litigant, to provide testimony or produce records
concerning information acquired in the course of performing official duties or because of the
employee’s official status.” 49 C.F.R. § 9.1(a). Generally speaking, they prohibit any USDOT
employee from “provid[ing] testimony or produc[ing] any material contained in the files of the
Department, or disclos[ing] any information or produc[ing] any material acquired as part of the
performance of that employee’s official duties.” Id. § 9.5.
In a case between private litigants, however, when an employee receives a subpoena or
other demand to testify or produce records, “agency counsel, in his or her discretion, may grant
the employee permission to testify or produce records” — but “only if the purposes of this part
are met or agency counsel determines that an exception is appropriate.” Id. § 9.11(b). Section
9.1(b), in turn, identifies five “purposes of this part”: (1) “[c]onserv[ing] the time of employees
for conducting official business”; (2) “[m]inimiz[ing] the possibility of involving the Department
in controversial issues not related to its mission”; (3) “[m]aintain[ing] the impartiality of the
Department among private litigants”; (4) “[a]void[ing] spending the time and money of the
United States for private purposes”; and (5) “protect[ing] confidential, sensitive information and
the deliberative processes of the Department.” Id. § 9.1(b). Finally, Section 9.1(c) defines when
an “exception” may be appropriate — namely, “when the deviation will not interfere with
matters of operational or military necessity, and when agency counsel determines that” (1) the
exception “is necessary to prevent a miscarriage of justice”; (2) “[t]he Department has an interest
in the decision that may be rendered in the legal proceeding”; or (3) “[t]he exception is in the
best interest of the Department or the United States.” Id. § 9.1(c).
Most significant for purposes of this case, USDOT’s Touhy regulations define
“employee” to include “any current or former officer or employee of the Department.” Id. § 9.3
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(emphasis added). Notably, until 1993, the definition of “employee” did not include the words
“or former.” In that year, however, USDOT amended its regulations to (among other things)
extend to the testimony of former employees. See Testimony of Employees of the Department
and Production of Records in Legal Proceedings (“Notice of Proposed Rulemaking”), 57 Fed.
Reg. 9224 (March 17, 1992) (proposing the amendment); Testimony of Employees of the
Department and Production of Records in Legal Proceedings (“Notice of Final Rule”), 58 Fed.
Reg. 6719 (Feb. 2, 1993). In USDOT’s final notice of the new language, the agency explained
that it “believes that it possesses ample authority under the broad language of 5 U.S.C. [§] 301 to
enlarge the definition of Department employees in its regulations.” Notice of Final Rule, 58 Fed.
Reg. at 6722. Further, USDOT wrote, “5 U.S.C. [§] 301 does not exclude former employees or
contractors from the realm of its coverage.” Id.
FACTUAL BACKGROUND
In Pirnik, Plaintiffs claim that “FCA and certain of its officers and executives repeatedly
assured investors that FCA was compliant with vehicle safety and emissions regulations.”
(Compl. ¶ 12). Plaintiffs allege that these representations were materially false and/or
misleading because FCA ignored various safety obligations and misled federal regulators,
including NHTSA. Accordingly, at least some of Plaintiffs’ allegations in Pirnik turn on FCA’s
compliance and communication with NHTSA. (Id.).
On February 6, 2018, Plaintiffs’ counsel issued a subpoena to Robert Garris, a former
NHTSA employee. (Id. ¶¶ 1, 21). Garris had worked in NHTSA’s Recall Management
Division, where he conducted investigations regarding the performance of safety recalls initiated
by vehicle manufacturers, including a recall initiated by FCA. (Id. ¶¶ 14-15). Pursuant to the
USDOT’s Touhy regulations, Plaintiffs’ counsel submitted a request to NHTSA to take Garris’s
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deposition. (Id. ¶ 23). On March 6, 2018, NHTSA denied that request by letter, stating that it
“seeks to delve behind the formal record,” that Garris would “have little or no [relevant]
knowledge,” and that Plaintiffs could obtain evidence of communications between NHTSA and
the FCA defendants from the FCA defendants themselves. (Compl., Ex. 2 (“Denial Letter”), at
3-4). NHTSA acknowledged that Garris was “a former employee” and that his testifying would
thus “not divert him from performing any governmental duties,” but concluded that other
NHTSA employees would “have to take time away from their official duties to prepare for the
deposition, as well as travel to them.” (Id. at 4). Balancing the “stated need for the testimony of
Mr. Garris” against the purposes of USDOT’s regulations, NHTSA therefore denied the request.
(Id. at 5).
LEGAL STANDARDS
The APA authorizes a reviewing court to “hold unlawful and set aside agency action,
findings, and conclusions found to be . . . arbitrary [or] capricious,” “contrary to constitutional
right,” “in excess of statutory jurisdiction,” or “without observance of procedure required by
law.” 5 U.S.C. § 706(2)(A)-(D). Where, as here, “a party seeks review of agency action under
the APA, the district judge sits as an appellate tribunal,” and “[t]he entire case on review is a
question of law.” Am. Biosci., Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001) (internal
quotation marks omitted); see also Just Bagels Mfg. v. Mayorkas, 900 F. Supp. 2d 363, 372 n.7
(S.D.N.Y. 2012). While the usual summary judgment standard under Rule 56 of the Federal
Rules of Civil Procedure does not apply in such cases, see Ass’n of Proprietary Colls. v. Duncan,
107 F. Supp. 3d 332, 344 (S.D.N.Y. 2015) (citing UPMC Mercy v. Sebelius, 793 F. Supp. 2d 62,
67 (D.D.C. 2011), summary judgment is nonetheless “generally appropriate,” as “[t]he question
whether an agency’s decision is arbitrary and capricious” or in excess of statutory jurisdiction “is
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a legal issue amenable to summary disposition,” Noroozi v. Napolitano, 905 F. Supp. 2d 535,
541 (S.D.N.Y. 2012) (internal quotation marks omitted).
DISCUSSION
As noted, the principal question presented here is whether USDOT’s Touhy regulations
are consistent with the Housekeeping Statute. That question is governed by the “familiar twostep process” set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.
(“Chevron”), 467 U.S. 837, 845 (1984). Cmty. Health Sys., Inc. v. Burwell, 113 F. Supp. 3d 197,
211 (D.D.C. 2015); accord Ass’n of Proprietary Colls., 107 F. Supp. 3d at 358. Under Chevron,
the Court must first ask “whether Congress has directly spoken to the precise question at issue.”
Chevron, 467 U.S. at 842. That is, using “traditional tools of statutory construction,” the Court
must ascertain if “Congress had an intention on the precise question at issue” that “must be given
effect.” Id. at 843 n.9. “If the intent of Congress is clear, that is the end of the matter; for the
court, as well as the agency, must give effect to the unambiguously expressed intent of
Congress.” Id. at 842-43; see also, e.g., Kingdomware Techs., Inc. v. United States, 136 S. Ct.
1969, 1976 (2016) (“If the statutory language is unambiguous and ‘the statutory scheme is
coherent and consistent . . . [t]he inquiry ceases.’” (quoting Barnhart v. Sigmon Coal Co., 534
U.S. 438, 450 (2002)). If, however, “the statute is silent or ambiguous with respect to the
specific issue,” the Court proceeds to the second step of the Chevron analysis, asking “whether
the agency’s answer is based on a permissible construction of the statute.” Chevron, 467 U.S. at
843. A court may not defer to an interpretation that is “arbitrary, capricious, or manifestly
contrary to the statute.” Kar Onn Lee v. Holder, 701 F.3d 931, 936 (2d Cir. 2012) (internal
quotation marks omitted).
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Thus, the Court’s initial task is to determine — based on “the statutory text, structure, and
purpose as reflected in its legislative history,” Catskill Mountains Chapter of Trout Unltd., Inc. v.
Envtl. Prot. Agency, 846 F.3d 492, 512 (2d Cir. 2017) — whether the Housekeeping Statute
authorizes USDOT to establish rules with respect to the testimony of “former” employees. First,
the statutory term “employees” is most naturally read to mean those having an existing
employment relationship with the agency in question — i.e., current employees. Black’s Law
Dictionary, for example, defines “employee” as “[s]omeone who works” — present tense — “in
the service of another person (the employer) under an express or implied contract of hire, under
which the employer has the right to control the details of work performance.” Black’s Law
Dictionary (10th ed. 2014) (emphasis added). Along the same lines, dictionary.com defines
“employee” as “a person working for another person or a business firm for pay.”
https://www.dictionary.com/browse/employee?s=t (last visited August 14, 2018). And those
definitions accord with common sense and ordinary usage. See United States v. Kinzler, 55 F.3d
70, 72 (2d Cir. 1995) (stating that, in interpreting a statute, a court should give words their
“ordinary, contemporary, common meaning” (internal quotation marks omitted)). If a business
posts a sign on a door stating “Employees Only,” it would plainly be unreasonable for a former
employee to construe that as an invitation and enter. Indeed, a former employee who did so
could undoubtedly be charged with trespassing, and could not be heard to complain that the sign
was ambiguous, let alone an invitation to enter. See, e.g., State v. Laviollette, 826 P.2d 684, 685
(Wash. 1992) (en banc) (discussing the burglary conviction of a former employee who entered
into his former employer’s building “through an employee’s entrance marked ‘Employees
Only’”).
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The more natural reading of “employees” to mean current employees alone is reinforced
by the Housekeeping Statute as a whole. For one thing, the statute does not refer simply to
“employees,” but to “the conduct of [the agency’s] employees.” 5 U.S.C. § 301 (emphasis
added). Given the breadth of the term “conduct,” it is sensible, if not necessary, to read
“employees” narrowly; to do otherwise would suggest a grant of authority to federal agencies
that goes well beyond what history and reason would suggest. On top of that, the narrower
construction of “employees” is support by “the established interpretative canons of noscitur a
sociis and ejusdem generis,” which provide that “where general words follow specific words in a
statutory enumeration, the general words are construed to embrace only objects similar in nature
to those objects enumerated by the preceding specific words.” Wash. State Dep’t of Soc. &
Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371, 384-85 (2003) (internal
quotation marks and brackets omitted); Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307 (1961)
(“The maxim noscitur a sociis . . . is often wisely applied where a word is capable of many
meanings in order to avoid the giving of unintended breadth to the Acts of Congress.”). Put
differently, “a word is known by the company it keeps,” Yates v. United States, 135 S. Ct. 1074,
1085 (2015) (plurality opinion), and here, that company suggests that Congress did not intend for
the “employees” to include former employees. In addition to “the conduct of its employees,” the
Housekeeping Statute authorizes each agency head to prescribe regulations “for the government
of his department, . . . the distribution and performance of its business, and the custody, use, and
preservation of its records, papers, and property.” 5 U.S.C. § 301. With the possible exception
of the last item — “the custody, use, and preservation of its records, papers, and property” —
those items are plainly temporally limited to the present, and indicate that the statute is intended
to give an agency authority to regulate its own day-to-day affairs. Nothing in the statute as a
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whole suggests that Congress intended for its grant of authority to extend to regulation of the
conduct of anyone who was ever employed by the agency without any temporal limitation.
The Court could stop there, but as it happens the purpose of the statute as reflected in its
history points in the same direction. That history was recounted by the Supreme Court in
Chrysler Corp. As noted, the Court traced the antecedents of today’s Housekeeping Statute
“back to the beginning of the Republic, when statutes were enacted to give heads of early
Government departments authority to govern internal departmental affairs.” Chrysler Corp., 441
U.S. at 309; see also id. at 309 n.39 (“‘The law has been called an office “housekeeping” statute,
enacted to help General Washington get his administration underway by spelling out the
authority for executive officials to set up offices and file Government documents.’” (quoting
H.R. Rep. No. 85-1461 (“House Report”) at 1 (1958), reprinted in 1958 U.S.C.C.A.N. 3352).
The statute was amended most recently in 1958 due to “congressional concern that agencies were
invoking § 301 as a source of authority to withhold information from the public.” Id. at 310.
Specifically, committee reports and remarks on the floor reveal Congress’s belief “that [§ 301]
originally was adopted in 1789 to provide for the day-to-day office housekeeping in the
Government departments, but through misuse it has become twisted into a claim of authority to
withhold information.’” Id. at 310 n.41 (quoting House Report at 12). To “return” the statute
“to what appears to have been the original purpose for which it was enacted in 1789,” Congress
thus added a second sentence, providing that it “does not authorize withholding information from
the public or limiting the availability of records to the public.” House Report at 1. “Given this
long and relatively uncontroversial history, and the terms of the statute itself,” the Court
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summarized, the Housekeeping Statute “seems to be simply a grant of authority to the agency to
regulate its own affairs.” Chrysler Corp., 441 U.S. at 309.1
In short, the text, structure, and purpose of the Housekeeping Statute all compel the
conclusion that the phrase “conduct of its employees” refers to current employees alone and,
thus, that USDOT’s regulations regulating when “employees” may testify are invalid to the
extent they purport to apply to former employees. Notably, the few courts to have considered the
issue presented here have all reached the very same conclusion. See La. Dep’t of Transp. & Dev.
v. United States Dep’t of Transp., No. 15-CV-2638 (RGJ), 2015 WL 7313876 (W.D. La. Nov.
20, 2015); see also Gulf Oil Corp. v. Schlesinger, 465 F. Supp. 913, 917 (E.D. Pa. 1979) (stating
in dictum that former employees could be deposed because agency regulations to the contrary
were “based upon 5 U.S.C. § 301, which on its face applies only to employees and not former
employees of government agencies and departments”); Gulf Grp. Gen. Enters. Co. W.L.L. v.
United States, 98 Fed. Cl. 639, 644 (2011) (stating in dictum that the agency’s Touhy regulations
could not be applied to former employees because “the language of the statute at 5 U.S.C. § 301
authorizes prescribing regulations for ‘the conduct of its employees,’ that is, present
employees”). In fact, Louisiana Dep’t of Transportation & Development involved the very same
USDOT regulations at issue here. Looking to the Black’s Law Dictionary definitions of
“employee” and “public employee,” the United States District Court for the Western District of
Contrary to Defendants’ suggestion, the Supreme Court’s decision in Touhy cannot be
read to suggest that one purpose of the statute is to “enabl[e] the executive branch to act as a
gatekeeper for the disclosure of government information.” (Docket No. 24 (“Defs.’ Br.”), at 1112). Separate and apart from the fact that such a reading would be at odds with the 1958
amendment, the question presented in Touhy was merely one of internal organization —
whether, in accordance with the version of the Housekeeping Statute then in effect, a department
head could assume authority for deciding whether a “subordinate[]” should obey or challenge a
subpoena. 340 U.S. at 467-68.
1
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Louisiana concluded that “the term ‘employee,’ in its common usage, contemplates someone
who works, i.e, currently works, or is currently employed, not someone retired from
employment.” 2015 WL 7313876, at *7. The Court acknowledged the “interests and concerns”
raised by the agency in response to the plaintiff’s Touhy request, but ultimately concluded that it
was “bound by the plain terms of the” statute. Id. “The term ‘employees’ is not ambiguous,” the
Court declared, “and, thus, USDOT has no authority to extend that definition to the conduct of
former employees.” Id.
In arguing that USDOT’s regulations are authorized by the Housekeeping Statute,
Defendants make two arguments, neither of which is ultimately persuasive. The first, and by far
more substantial, relies on the Supreme Court’s decision in Robinson v. Shell Oil Co., 519 U.S.
337 (1997), and lower court decisions concerning the meaning of “employees” in various
employment statutes. (Defs.’ Br. 11-15). The question in Robinson was “whether the term
‘employees,’ as used in § 704(a) [of Title VII of the Civil Rights Act of 1964, which prohibits
retaliation], includes former employees,” such that the petitioner could “bring suit against his
former employer for postemployment actions allegedly taken in retaliation for petitioner’s
having” filed a claim of discrimination under the statute. 519 U.S. at 339. The Court observed
that, “[a]t first blush, the term ‘employees’ in § 704(a) would seem to refer to those having an
existing employment relationship with the employer in question.” Id. at 341. Significantly,
however, the Court concluded that “[t]his initial impression” did “not withstand scrutiny in the
context of § 704(a).” Id. “First,” the Court reasoned, “there is no temporal qualifier” in either
Section 704(a) or in Title VII’s definition of the term “employee” that “would make plain that
§ 704(a) protects only persons still employed at the time of the retaliation.” Id. at 341-42. In so
reasoning, the Court distinguished Walters v. Metropolitan Educational Enterprises, Inc., 519
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U.S. 202 (1997), which had “held that the term ‘employees’” in another section of Title VII was
limited “to those persons with whom an employer has an existing employment relationship.”
519 U.S. at 341 n.2. The section in Walters, the Court explained, included “words specify[ing]
the time frame in which the employment relationship must exist, and thus the specific context of
that section did not present the particular ambiguity at issue in the present case.” Id.
In addition, the Robinson Court observed that “a number of other provisions in Title VII
use the term ‘employees’ to mean something more inclusive or different than ‘current
employees.’” Id. at 342. For instance, the Court noted, several provisions authorize the
“‘reinstatement or hiring of employees.’” Id. (quoting 42 U.S.C. §§ 2000e-5(g)(1), 2000e16(b)). “[B]ecause one does not ‘reinstat[e]’ current employees, that language necessarily refers
to former employees. Likewise, one may hire individuals to be employees, but one does not
typically hire persons who already are employees.” Id. The Court acknowledged that “there are
sections of Title VII where, in context, use of the term ‘employees’ refers unambiguously to a
current employee.” Id. at 343. “But those examples,” the Court held, “at most demonstrate that
the term ‘employees’ may have a plain meaning in the context of a particular section — not that
the term has the same meaning in all other sections and in all other contexts.” Id. It follows that
“the term standing alone is necessarily ambiguous and each section must be analyzed to
determine whether the context gives the term a further meaning that would resolve the issue in
dispute.” Id. Accordingly, the Court looked to “[t]he broader context provided by other sections
of the statute” and the remedial purpose of Title VII generally to resolve the ambiguity. Id at
345-46. “[E]xclusion of former employees from the protection of § 704(a),” the Court ultimately
concluded, “would undermine the effectiveness of Title VII by allowing the threat of
postemployment retaliation to deter victims of discrimination from complaining . . . , and would
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provide a perverse incentive for employers to fire employees who might bring Title VII claims.”
Id. at 346. Accordingly, “employees” in Section 704(a) includes former employees.
Robinson and the lower court cases of a similar ilk cited by Defendants do “tend to rebut
a claim that the term ‘employee’ has some intrinsically plain meaning.” Id. at 344 n.4; see also
NLRB v. Hearst Publ’ns, Inc., 322 U.S. 111, 124 (1944) (observing that the word “employee” “is
not treated by Congress as a word of art having a definite meaning” (internal quotation marks
omitted)). But they also establish that use of the term “employee” can “refer[] unambiguously to
a current employee.” Robinson, 519 U.S. at 343; see Smith v. BellSouth Telecomms., Inc., 273
F.3d 1303, 1310 (11th Cir. 2001) (cautioning against relying on cases interpreting the term
“employees” in the context of a different statute, noting that “statutes differ in their language,
their purposes, and their scope of protection” and that “[t]he term ‘employee’” may have
different meanings in different acts, or even in different provisions of the same act”). And
ultimately they reinforce, rather than undermine, the Court’s conclusion that use of “employees”
in the Housekeeping Statute is one such instance. After all, to resolve the ambiguity in “the term
standing alone,” Robinson, 519 U.S. at 343, the Robinson Court looked first to “the specific
context in which [the] language is used, and the broader context of the statute as a whole,” id. at
341-45, and ultimately to the “broader context of Title VII and the primary purpose of § 704(a),”
id. at 345-46. And here, as discussed above, those sources reinforce the conclusion that the term
“employees” in the context of the Housekeeping Statute is unambiguous and does not extend as
far as the term does in Section 704(a) of Title VII.
Indeed, it is striking that all of the cases cited by Defendants, including Robinson,
involved laws intended to protect employees in the workplace. See Robinson, 519 U.S. at 339
(Title VII); EEOC v. Cosmair, Inc., L’Oreal Hair Care Div., 821 F.2d 1085, 1088 (5th Cir.
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1987) (Age Discrimination in Employment Act); Dunlop v. Carriage Carpet Co., 548 F.2d 139,
140-41 (6th Cir. 1977) (Fair Labor Standards Act); Castellano v. City of N.Y., 142 F.3d 58, 67-70
(2d Cir. 1998) (Americans with Disabilities Act); Smith, 273 F.3d at 1307-13 (Family and
Medical Leave Act); Duckworth v. Pratt & Whitney, Inc., 152 F.3d 1, 6, 10-11 (1st Cir. 1998)
(same); see also Pantchenko v. C.B. Dolge Co., 581 F.2d 1052, 1054-55 (2d Cir. 1978) (Title
VII). Not surprisingly, courts in those cases have tended to eschew “a narrow construction” of
the term “employee” on the ground that such a construction “would not give effect to the
statute’s purpose, which is to furnish a remedy against an employer’s use of discrimination in
connection with a prospective, present, or past employment relationship to cause harm to
another.” Pantchenko, 581 F.2d at 1055; see, e.g., Dunlop, 548 F.2d at 142 (relying on “the
broad purposes and clear policies of the Fair Labor Standards Act” to conclude that the term
“employee” in that statute’s anti-retaliation provision includes a former employee). By contrast,
the Housekeeping Statute is “simply a grant of authority to the agency to regulate its own
affairs,” Chrysler Corp., 441 U.S. at 309, and there is no similar reason to construe its use of the
term “employees” as broadly. In fact, construing the statute to mean that a person who works for
a federal agency, however briefly, is forever subject to that agency’s regulatory authority would
raise a host of practical — if not constitutional — questions. Cf. United States v. Marchetti¸466
F.2d 1309, 1317 (4th Cir. 1972) (recognizing that the First Amendment sets limits on the
government’s authority to regulate the speech of a former federal employee). Absent a clearer
indication in the statute, there is no basis to conclude that Congress intended such a result.
Defendants second argument is more easily rejected. They contend that USDOT’s
“power to apply its Touhy regulations to former employees is also grounded in section 301’s
grant of authority to each agency to regulate the ‘use . . . of [agency] property,’” as the term
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“property” includes “even intangible property, such as patents, trademarks, and information
learned in the course of government employment.” (Defs.’ Br. 16). But that novel reading of the
Housekeeping Statute cannot be squared with the 1958 amendment, which clarified that the
statute “does not authorize withholding information from the public or limiting the availability of
records to the public.” 5 U.S.C. § 301.2 Moreover, taken to its logical conclusion, it would
authorize federal agencies to promulgate regulations covering not only former employees, but
anyone who became privy to “official government information” — including members of the
press (or other branches of the federal government). That would be absurd and, again, would
raise a host of practical — if not constitutional — questions. And once again, absent a clearer
indication in the statute, there is no basis to conclude that Congress intended such a result.
CONCLUSION
In sum, the text, structure, and purpose of the Housekeeping Statute lead to only one
reasonable conclusion: that the term “employees” in the statute refers solely to current
employees. It follows that USDOT’s Touhy regulations are invalid to the extent that they extend
to former employees and that the Denial Letter — which was based on those regulations — was
arbitrary and capricious and in excess of statutory jurisdiction. See 5 U.S.C. § 706.
That does not necessarily mean, however, that Plaintiffs are entitled to depose Garris in
Pirnik. That is because Defendants could conceivably challenge the subpoena pursuant to Rule
Contrary to Defendants’ suggestion (Defs.’ Br. 17), neither Bancorp v. FDIC, No. 99CV-3799 (JCL), 1999 WL 1332312 (D.N.J. Nov. 10, 1999), nor Pleasant Gardens Realty Corp.
v. H. Kohnstamm & Co., 08-CV-5582 (JHR/JS), 2009 WL 2982632 (D.N.J. Sept. 10, 2009), held
that the Housekeeping Statute’s reference to “property” authorizes agencies to regulate the
testimony of former employees. Neither case involved a challenge to Touhy regulations as
inconsistent with the Housekeeping Statute. In fact, neither case even cited, let alone discussed,
the statute. Moreover, the Housekeeping Statute was not the sole basis for the regulations at
issue in Bancorp, see Organization and Functions, Availability and Release of Information,
Contracting Outreach Program, 63 Fed. Reg. 62927-02 (Nov. 10, 1998), as it is here.
2
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45 of the Federal Rules of Civil Procedure, which authorizes a court to “quash or modify a
subpoena” on various grounds. Fed. R. Civ. P. 45(d)(3)(A). In fact, the parties brief the question
of whether Rule 45 would justify quashing the subpoena for Garris’s testimony (see Defs. Br. 22;
Docket No. 26, at 14-22), albeit only because some courts have held that Rule 45 — rather than
the APA — provides the relevant standard to assess the merits of an agency’s refusal to complay
with a subpoena. See, e.g., In re SEC ex rel. Glotzer, 374 F.3d 184, 190-92 (2d Cir. 2004)
(discussing cases). In light of that, and the fact that this Court is presiding over Pirnik as well,
there is an argument for just deciding the issue here. But, strictly speaking, the proper means to
raise an objection under Rule 45 would be by motion in Pirnik. Moreover, while the Court has
no doubt that Defendants have standing to challenge the subpoena to Garris on one Rule 45
ground that they invoke — namely, that it calls for disclosure of information protected by the
deliberative-process privilege, which is held by the Government, see, e.g., Pleasant Gardens
Realty Corp., 2009 WL 2982632, at *2-5 & n.10; see also, e.g., Mir v. Med. Bd. of Cal., No. 12CV-2340 (GPC) (DHB), 2016 WL 3406118, at *3 (S.D. Cal. June 21, 2016) (“[T]he Executive
Director for [the agency] . . . has standing to assert the [deliberative-process] privilege.”) — it is
less obvious that Defendants (as opposed to Garris) have standing to do so on the other ground
they press — namely, that it “subjects a person to undue burden,” Fed. R. Civ. P.
45(d)(3)(A)(iv). Thus, the Court declines to consider the Rule 45 issue in this case. Instead, the
parties shall promptly confer and submit letters, not to exceed five single-spaced pages and
within one week of the date of this Opinion and Order, addressing (1) whether the Court
should (a) deem Defendants to have made a Rule 45 motion to quash or modify the subpoena to
Garris in the Pirnik action and (b) decide that motion based on the parties’ briefing in this action
or allow new or additional briefing (mindful that doing so will result in further delay); and (2)
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whether Defendants have standing to challenge the subpoena on the ground that it “subjects a
person to undue burden” within the meaning of Rule 45(d)(3)(A)(iv).
Whether Defendants can prevent Plaintiffs from deposing Garris by way of a Rule 45
motion in Pirnik, however, does not call for delaying the disposition of this case, in which
Plaintiffs challenge Defendants’ Denial Letter on the ground that it was arbitrary and capricious
and in excess of statutory jurisdiction. Because the Court concludes that the Denial Letter was
both, Defendants’ motion to dismiss or, in the alternative, for summary judgment, is DENIED,
while Plaintiffs’ cross-motion for summary judgment is GRANTED.
The Clerk of Court is directed to terminate Docket Nos. 23 and 25 and to close this case.
SO ORDERED.
Date: August 16, 2018
New York, New York
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