Khaja v. Husna

Filing 16

ORDER granting 4 Motion to Quash; denying 9 Motion to Compel; granting 13 Motion to Amend/Correct; denying as moot 14 Motion to Quash. Signed by US Magistrate Judge James E. Gates on 4/9/2013. Copy sent to the defendant via US Mail. (Edwards, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
5:13-CV-25-BO
DABEERUDDIN KHAJA,
Plaintiff,
v.
FATIMA HUSNA,
Defendant.

)
)
)
)
)
)
)
)
)

ORDER

This matter is a proceeding relating to a subpoena for documents and testimony (see D.E.
6-1 at 6-7) issued from Wake County District Court on 11 December 2012 to David Russell
(“Russell”) as District Liaison to United States Representative David E. Price by plaintiff
Dabeeruddin Khaja (“plaintiff”) in a divorce proceeding by him against defendant Fatima Husna
(“defendant”). The information sought by the subpoena concerns communications between
Representative Price’s office and defendant and between Price’s office and any federal agency or
other third party relating to plaintiff or defendant. Russell, a nonparty in the state case, removed
the subpoena proceeding to this court on 10 January 2013 (see D.E. 6-1 at 2-4), 1 pursuant to 28
U.S.C. § 1442 (as amended effective 2 Jan. 2013), and filed a motion to quash the subpoena
(D.E. 4). Defendant, who is pro se, 2 also filed a motion to quash (D.E. 14). Plaintiff filed a
motion to compel (D.E. 9). The motions were referred to the undersigned for determination,
pursuant to 28 U.S.C. § 636(b)(1)(A). (See Minute Entries dated 15 Feb. 2013 and 8 Apr. 2013).
1

The notice of removal, together with copies of the subpoena and the objections to it, were originally filed at D.E. 1,
but re-filed at D.E. 6-1 pursuant to the deficiency notice from the Clerk dated 18 Jan. 2013.

2

Defendant filed a motion (D.E. 13) to correct the docket sheet to list her as pro se and delete the listing of her
former attorney in the underlying state divorce case as her counsel in this case. The motion is well taken; the
attorney in the state case never entered an appearance in this proceeding. Defendant’s motion to correct the docket
sheet, which was referred to the undersigned for determination (see Minute Entry dated 8 Apr. 2013), is therefore
ALLOWED and the Clerk is DIRECTED to revise the docket sheet as defendant requests, using the updated contact
information provided in her motion.

Although plaintiff contends that § 1442 does not authorize removal of proceedings such
as this, it plainly does so. Specifically, subsection (a)(1) provides for removal of “[a] civil action
. . . that is commenced in a State court and that is against or directed to . . . [t]he United States or
any agency thereof or any officer (or any person acting under that officer) of the United States or
of any agency thereof, in an official or individual capacity, for or relating to any act under color
of such office.” 28 U.S.C. § 1442(a)(1). Russell is a person acting under an officer of the United
States in his official capacity, and the subpoena relates to acts under color of his office.
Subsection (d) defines “civil action” to include “any proceeding (whether or not ancillary to
another proceeding) to the extent that in such proceeding a judicial order, including a subpoena
for testimony or documents, is sought or issued.” Id. § 1442(d).
Under well-established principles, sovereign immunity precludes the relief plaintiff
seeks:
[A]n order of a state court seeking to compel a federal official to comply with a
state court subpoena is an action against the United States, subject to the
governmental privilege of sovereign immunity. Unless such immunity is waived,
the state court lacks jurisdiction to proceed against a federal employee acting
pursuant to agency direction. And because a federal court’s jurisdiction upon
removal under 28 U.S.C. § 1442(a)(1) is derivative of the state court jurisdiction,
the federal court can acquire no jurisdiction to enforce a state court subpoena or
order upon removal.
United States v. Williams, 170 F.3d 431, 433 (4th Cir. 1999) (internal quotations and citations
omitted) (citing, e.g., Boron Oil Co. v. Downie, 873 F.2d 67, 70 (4th Cir. 1989)). The doctrine of
sovereign immunity applies to officials of Congress acting in their official capacities. See, e.g.,
Rockefeller v. Bingaman, 234 Fed. Appx. 852, 855 (10th Cir. 2007).
Here, Russell has not waived sovereign immunity. To the contrary, he expressly objected
to the subpoena on this ground, among others, pursuant to House of Representatives Rule VIII
2

(“House Rule VIII”), 3 which requires that the issuance of a subpoena be “a proper exercise of
jurisdiction by the court.” House Rule VIII, cl. 3; (Russell’s Obj. to Sub. (D.E. 6-1 at 9-11) ¶ 1);
see also House Rule VIII, cl. 8 (“Nothing in this rule shall be construed to deprive, condition, or
waive the constitutional or legal privileges or rights applicable or available at any time to a
Member . . . or employee of the House . . . or the right of such Member . . . or employee . . . to
assert such privileges or rights before a court in the United States.”). Russell also asserts
sovereign immunity as a basis for his motion to quash. (Russell’s Mem. (D.E. 5) 4-6; Russell’s
Reply Mem. (D.E. 11) 2-3). Notably, plaintiff appears to concede that sovereign immunity
would bar the relief he seeks if the subpoena proceeding were removable under § 1442, which, as
discussed, it clearly is. (Pl.’s Mem. 2 (“Mr. Russell’s arguments regarding the applicability of
sovereign immunity and House Rule VIII obtain only if the Federal Court properly holds
jurisdiction for removal pursuant to 28 U.S.C. § 1442.”)); see Welch v. United States, 409 F.3d
646, 651 (4th Cir. 2005) (holding that a party seeking relief against the federal government has
the “burden to show that an unequivocal waiver of sovereign immunity exists”). The doctrine of
sovereign immunity precludes this court—and, of course, the state court from which this court
derives its jurisdiction in this proceeding—not only from exercising jurisdiction to compel
Russell to comply with the subpoena over his objections to it, but also the authority to review
and set aside the objections and the House rule pursuant to which they were made. See Boron
Oil Co., 873 F.2d at 70.
IT IS THEREFORE ORDERED as follows:
1.

The motion by Russell to quash (D.E. 4) is ALLOWED and the subpoena is

QUASHED.
3

The House Rules for the current Congress, the One Hundred Thirteenth, can be found at:
http://clerk house.gov/legislative/house-rules.pdf.

3

application, the court is not able to determine whether defendant is entitled to appointment of
counsel. The appointment of counsel is therefore DENIED without prejudice to reconsideration of
such appointment after the filing of a new Financial Affidavit which contains the missing

2.

information.

3.

Defendant’s motion to quash (D.E. 14) is DENIED AS MOOT.
Plaintiff’s motion to compel (D.E. 9) is DENIED. 4

This order shall of filed 2013.
This the 9th day be Aprilunder seal.
SO ORDERED, this 23rd day of May 2011.

_________________________
James E. Gates
United States Magistrate Judge

4

See n. 2 above regarding the disposition of defendant’s motion to correct the docket sheet.

4