United States of America v. Tennessee Walking Horse Breeders' and Exhibitors' Association

Filing 40

MEMORANDUM AND ORDER: For the foregoing reasons, Defendant's Motion for Reimbursement 30 is GRANTED in the amount of $4,412.50. It is SO ORDERED. Signed by Chief Judge Kevin H. Sharp on 4/4/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) Modified text on 4/4/2017 (hb).

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
TENNESSEE WALKING HORSE
BREEDERS’ AND EXHIBITORS’
ASSOCIATION,

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Case No. 1:16-cv-0044
Judge Sharp

Defendant.
MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant Tennessee Walking Horse Breeders’ and
Exhibitors’ Association’s (“TWHBEA”) Motion for Reimbursement. (Docket No. 30). Plaintiff
United States of America (“United States”) filed a Response.

(Docket No. 36).

For the

following reasons, the Court will grant Defendant TWHBEA’s Motion for Reimbursement
subject to the following changes.
BACKGROUND
TWHBEA is a non-profit corporation that “maintains a private registry system for
Tennessee Walking Horses that contains information such as a horse’s registration records,
ownership information, leasing records, and records reflecting the transfer of ownership of title.”
(Docket No. 6 at 2). Much of this information is maintained in a digital system called iPeds
(Internet Pedigree System).
The Animal and Plant Health Inspection Service (“APHIS”) is part of the United States
Department of Agriculture and “maintains an active inspection and enforcement presence at the
Tennessee Walking Horse shows to detect ‘soring[.]’” (Docket No. 36 at 1). Soring is “a

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practice of deliberately injuring horses to alter their gait that violates the Horse Protection Act[.]”
(Id.). When the APHIS initiated an investigation concerning horses that had been deemed
“sore,” it issued eight subpoenas to TWHBEA, requesting certain information for over 200
horses, such as the ownership history and iPeds horse information. (Docket No. 36 at 3; Docket
No. 30 at 2). These subpoenas were issued between September 2015 and February 2016.
(Docket No. 1 at 6-10).
Between February 2016 and November 2016, the parties argued about TWHBEA’s lack
of compliance with the eight subpoenas, as TWHBEA requested fees for the cost of compliance.
Seemingly in an effort to assist TWHBEA with the cost of compliance, the United States
informed TWHBEA that it would be willing to accept only the information available on the
iPeds database—the iPeds horse information and owner history. (Docket No. 36 at 3).
On November 8, 2016, the Court granted the United States’ Petition to Enforce Eight
Administrative Subpoenas and allowed the TWHBEA the ability “to make application for
reimbursement of the costs of compliance once compliance is complete.” (Docket No. 27). A
deadline for TWHBEA to comply with the subpoenas was set for December 19, 2016. (Docket
No. 29). A box of information complying with the subpoenas was received by the United States
on December 20, 2016. (Docket No. 36-3 at 1). Subsequently, TWHBEA filed the currently
pending Motion for Reimbursement of the costs associated with this, in the amount of $8,926.31.
(Docket No. 30 at 3).
ANALYSIS
Rule 45 of the Federal Rules of Civil Procedure governs the use of subpoenas in the
discovery process. It states that a court “must protect a person who is neither a party nor a
party’s officer from significant expense resulting from compliance” with a subpoena. Fed. R.

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Civ. P. 45(d)(2)(B)(ii). Although the United States argues that Rule 45 of the Federal Rules of
Civil Procedure does not apply to administrative subpoenas, the 1991 amendments make clear
that subpoenas issued by administrative agencies are encompassed in the Rule:
Although the subpoena is in a sense the command of the attorney who completes
the form, defiance of a subpoena is nevertheless an act in defiance of a court order
and exposes the defiant witness to contempt sanctions. . . . In CAB v. Hermann,
353 U.S. 322 (1957), the Court approved as established practice the issuance of
administrative subpoenas as a matter of absolute agency right. And in NLRB v.
Warren Co., 350 U.S. 107 (1955), the Court held that the lower court had no
discretion to withhold sanctions against a contemnor who violated such
subpoenas. The 1948 revision of Rule 45 put the attorney in a position similar to
that of the administrative agency, as a public officer entitled to use the court’s
contempt power to investigate facts in dispute.
Fed. R. Civ. P. 45 note (1991) (emphasis added).
The United States also argues that TWHBEA is not a nonparty to the litigation, and
therefore Rule 45(d)(2)(B)(ii) does not apply. (Docket No. 36 at 6). However, because the
targets of the underlying investigation were the horses’ owners, and the United States has not
alleged that TWHBEA itself committed any wrongdoing in regards to the “soring” of horses, the
Court finds TWHBEA to be a nonparty, and thus Rule 45(d)(2)(B)(ii) is applicable.
Consequently, the Court has the power to require reimbursement of TWHBEA’s costs to
comply with the subpoena, given that there were eight different subpoenas requesting
information for over 200 horses.

However, the Court finds the hourly rate of $100 for

TWHBEA’s employees too high.

The Court will order that the United States reimburse

TWHBEA for the costs of compliance at an hourly rate of $50, which is equitable in light of the
repeated attempts of the United States to confer with TWHBEA to narrow down the scope of the
subpoenas and lessen the workload imposed upon TWHBEA. Furthermore, the Court will not
require reimbursement for the extra costs associated with tasks the United States did not require,
such as the “file backers” and “copy paper.” (Docket No. 35). Adding the hours worked by the
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supervisor to the hours worked by the two employees, the Court concludes that it took 88.25
hours to comply with the subpoenas. (Id.). At $50 per hour, this amounts to $4,412.50 awarded
to TWHBEA in reimbursement costs.
CONCLUSION
For the foregoing reasons, Defendant’s Motion for Reimbursement is GRANTED in the
amount of $4,412.50.
It is SO ORDERED.

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KEVIN H. SHARP
UNITED STATES DISTRICT JUDGE

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