Hazlehurst v. Centers for Disease Control

Filing 37

ORDER GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT, DENYING PLAINTIFFS CROSS-MOTION FOR SUMMARY JUDGMENT, AND DENYING PLAINTIFFS MOTION TO SUPPLEMENT THE RECORD. Signed by Chief Judge S. Thomas Anderson on 7/18/17. (Anderson, S. Thomas)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
ROLF HAZLEHURST,
Plaintiff,
vs.
CENTERS FOR DISEASE CONTROL,
Defendant.

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Case No: 1:17-cv-02095-STA-egb

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT,
DENYING PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT, AND
DENYING PLAINTIFF’S MOTION TO SUPPLEMENT THE RECORD
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On February 10, 2017, Plaintiff Rolf Hazlehurst filed a complaint seeking judicial review
of the final agency action of the Centers for Disease Control and Prevention (“CDC”), denying
his request for permission to depose Dr. William Thompson, an employee of the CDC. (ECF
No. 1.) The complaint was filed pursuant to the Administrative Procedure Act (“APA”), 5
U.S.C. § 701, et seq.

Plaintiff contends that the denial of his request was arbitrary and

capricious. Plaintiff seeks a judgment declaring that he may depose Dr. Thompson and an
injunction prohibiting the CDC from stopping the deposition.1
At a scheduling conference held on May 1, 2017, the parties agreed that the matter should
be decided on the briefs, and a joint administrative track scheduling order was entered that same

1

If the Court were to conclude that the denial was arbitrary and capricious, Plaintiff is not
entitled to injunctive and declaratory relief; instead, the proper remedy would be to remand the
matter to the CDC for further consideration. See OhioHealth Corp. v. U.S. Dep’t of Veteran
Affairs, 2014 WL 4660092 at *7 (S.D. Ohio Sept. 17, 2014) (remanding Touhy denial because
“[i]t is not the Court’s place …to issue a new decision based on a de novo inquiry of this matter.
Instead, the proper remedy is to remand this issue back to the VA for further investigation and
explanation”).

day. (ECF Nos. 25, 26.) On May 15, 2017, Defendant CDC filed a copy of the administrative
record. (ECF No. 27.) Defendant has filed a motion for summary judgment (ECF No. 28), and,
in response, Plaintiff filed a cross-motion for summary judgment. (ECF No. 30.) Defendant has
filed its response to Plaintiff’s cross-motion. (ECF No. 35.) Additionally, Plaintiff has filed a
motion to supplement the administrative record. (ECF No. 29.) Defendant has filed a response
opposing Plaintiff’s motion to supplement.2 (ECF No. 34.)
For the reasons set forth below, Defendant’s motion for summary judgment is
GRANTED, Plaintiff’s cross-motion for summary judgment is DENIED, and Plaintiff’s motion
to supplement the administrative record is DENIED.
Background
Pursuant to 5 U.S.C. § 301, a federal agency may enact procedures for responding to
subpoenas and other requests for testimony. Agencies may “prescribe regulations of the
government of [its] 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.” Id.
These regulations are known as Touhy regulations, and requests made under them are called
Touhy requests. See United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951) (upholding
agencies’ authority to create such regulations). “When a litigant seeks to obtain documents from
a non-party federal governmental agency,” for use in a state court action, the “state-court litigant
must request the documents from the federal agency pursuant to the agency’s [Touhy]
regulations . . . . If the agency refuses to produce the requested documents, the sole remedy for
the state-court litigant is to file a collateral action in federal court under the APA.” Rimmer v.

2

On July 7, 2017, the Court entered an agreed order temporarily sealing Plaintiff’s motion to
supplement the record until such time as that matter can be fully briefed. (ECF No. 36.)
2

Holder, 700 F.3d 246, 262 (6th Cir. 2012) (quoting Houston Bus. Journal, Inc. v. Office of the
Comptroller of the Currency, 86 F.3d 1208, 1211–12 (D.C. Cir. 1996)).
The Touhy regulations of the Department of Health and Human Services (“DHHS”) are
found at 45 C.F.R. §§ 2.1–2.6.3 Section 2.1 provides in pertinent part that the “availability of
Department employees to testify in litigation not involving federal parties is governed by the
Department’s policy to maintain strict impartiality with respect to private litigants and to
minimize the disruption of official duties.” 45 C.F.R. § 2.1(b). Additionally:
No employee or former employee of the DHHS may provide testimony or
produce documents in any proceedings to which this part applies concerning
information acquired in the course of performing official duties or because of the
person’s official relationship with the Department unless authorized by the
Agency head pursuant to this part based on a determination by the Agency head,
after consultation with the Office of the General Counsel, that compliance with
the request would promote the objectives of the Department.
45 C.F.R. § 2.3. The procedures under which a party may request the testimony of a DHHS
employee are set forth in Section 2.4(a):
All requests for testimony by an employee or former employee of the DHHS in
his official capacity and not subject to the exceptions set forth in § 2.1(d) of this
part must be addressed to the Agency head in writing and must state the nature of
the requested testimony, why the information sought is unavailable by any other
means, and the reasons why the testimony would be in the interest of the DHHS
or the federal government.
45 C.F.R. § 2.4(a). Thus, a party requesting testimony from a current DHHS employee, such as
Dr. Thompson, must state in writing: (1) the nature of the testimony sought; (2) why it is
unavailable through other means; and (3) why the testimony would be in the interest of the
DHHS or the federal government.
On September 9, 2016, Plaintiff sought permission to depose Dr. Thompson, pursuant to
the Touhy regulations of the DHHS. Plaintiff sought testimony from Dr. Thompson as part of his
3

The CDC is a “component agency” of the DHHS. (Frieden Resp., p. 10, ECF No. 27.)
3

medical malpractice action against The Jackson Clinic Professional Association (“the Jackson
Clinic”) and Dr. E. Carlton Hays pending in the Circuit Court of Madison County, Tennessee.4
Plaintiff alleges that certain violations of the applicable standard of care by Dr. Hays and the
Jackson Clinic in the administration of vaccines to his son caused his son to develop autism.
As part of his duties as a CDC employee, Dr. Thompson co-authored a 2004 study
entitled Age at First Measles-Mumps-Rubella Vaccination in Children with Autism and Schoolmatched Control Subjects: A Population-Based Study in Metropolitan Atlanta (“the MMR
Study”). Plaintiff contends that Dr. Thompson’s deposition is necessary because the state court
defendants are relying on the MMR Study to show that their alleged negligence was not a causein-fact of Plaintiff’s son’s autism. According to Plaintiff, Dr. Thompson’s deposition testimony
may cast doubt on the validity of the data used in the MMR Study and whether the assumptions
and conclusions drawn from that data are reliable.
Dr. Thompson had no involvement in the facts giving rise to the state court litigation and
cannot be deposed as a fact witness. Neither Dr. Thompson nor the CDC is a party to the state
court action.
On September 22, 2016, CDC Director Thomas R. Frieden denied Plaintiff’s Touhy
request on the grounds that (1) the information Plaintiff seeks from deposing Dr. Thompson is
available by other means; (2) Plaintiff’s request failed to adequately explain how Dr.
Thompson’s deposition in private litigation would promote the objectives and interests of the
DHHS or the CDC; and (3) compliance with Plaintiff’s request would disrupt DHHS operations
by requiring a current CDC employee to forego his official duties to participate in private
litigation, which would hinder the CDC’s ability to control the spread of infectious diseases and

4

The state court action is set for trial on July 31, 2017.
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compromise its impartiality in future state court litigation, investigations, and lawsuits. Director
Frieden consulted with the Office of the General Counsel prior to making his decision.
Plaintiff filed this action on February 10, 2017, seeking review of Director Frieden’s
decision.
Motion to Supplement the Administrative Record
The administrative record filed by Defendant CDC consists of (1) Plaintiff’s letter of
September 9, 2016, requesting that the CDC Director approve Dr. Thompson’s deposition
testimony and (2) Director Frieden’s letter of September 22, 2016, refusing to approve the
request. (ECF No. 27.) Attached to Plaintiff’s request letter is an order from the state court
granting Plaintiff’s motion for continuance in the underlying state court action to allow Plaintiff
additional time to obtain Dr. Thompson’s testimony. (Id.)
Plaintiff seeks to supplement the administrative record to include various documents that
he contends are related to Dr. Thompson’s alleged allegations of scientific misconduct as to
whether vaccines can cause autism, including a “whistleblower document” filed by Dr.
Thompson with Congress on September 9, 2014. (Sealed Exh. I , ECF No. 29-2.) Plaintiff
argues that the exhibits should be added to the administrative record “in order to provide a more
complete picture for judicial review of the information actually available to CDC at the time of
its Touhy denial.” (Pl’s Memo., p. 2, ECF No. 29-1.) According to Plaintiff, all of these
documents were available to the CDC at the time of the denial of the request and contradict the
CDC’s statement that vaccines do not cause autism. (Id. at pp. 5-6.) Director Frieden based his
denial, in part, on the premise that evidence shows that vaccines do not cause autism.
The motion is denied for several reasons. First, Plaintiff did not file a certificate of
consultation with his motion as required by Local Rule 7.2(a)(1)(B) and as restated in the

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scheduling order. (Schd. Order, p. 1, ECF No. 26 (“Pursuant to Local Rule 7.2(a)(1)(B), the
parties are required to consult prior to filing any motion (except motions filed pursuant to Fed. R.
Civ. P. 12, 56, 59, and 60).”)). Accordingly, because Plaintiff’s counsel failed to consult with
Defendant’s counsel before seeking the relief requested, the motion is denied.
Additionally, the motion is untimely, and Plaintiff has failed to offer any explanation for
the untimeliness. As noted by Defendant CDC, DHHS’s regulations do not limit the length of a
Touhy request or what materials may be included, and Plaintiff has not explained why the
materials he now seeks to have the Court review were not included in his Tuohy request. Nor
were the materials attached to the complaint, although Plaintiff did quote from portions of some
of the material. (ECF No. 1.) The date set in the scheduling order for filing the administrative
record was May 15, 2017. (Schd. Order, p. 1, ECF No. 26.) Defendant CDC timely filed the
administrative record (ECF No. 27), but Plaintiff did not file his motion to supplement until June
21, 2017, more than a month after the deadline for filing the administrative record. Again,
Plaintiff has offered no explanation for his tardiness. C.f. Coal. for Advancement of Reg’l
Transp. v. Fed. Highway Admin., 576 F. App’x 477, 487 (6th Cir. 2014) (“[P]laintiff had an
opportunity to review the draft Administrative Record before it was finalized and did not identify
any information that was missing at that time.”)
The Court declines to excuse Plaintiff’s failure to submit the proffered exhibits with his
original Touhy request or with the complaint or prior to the deadline for filing the administrative
record established by the scheduling order. Therefore, the motion is also denied on the ground of
untimeliness.
Finally, Plaintiff has not met his burden of establishing any reason that would support
supplementation of the administrative record. He has submitted no evidence showing that the

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proffered exhibits were before Director Frieden when he denied Plaintiff’s Touhy request or that
these exhibits were negligently or intentionally omitted by the CDC from the administrative
record. As explained in Latin Americans for Soc. & Econ. Dev. v. Adm’r of Fed. Highway
Admin., 756 F.3d 447 (6th Cir. 2014),
Normally, a court’s review of an agency action under the APA to determine
whether the agency decision was arbitrary and capricious is limited to the
administrative record, which includes materials compiled by the agency at the
time its decision was made. However, certain circumstances justify
supplementation of the administrative record. Such circumstances include when
an agency has deliberately or negligently excluded certain documents from the
record, or when a court needs certain “background” information to determine
whether the agency has considered all relevant factors. The burden is on the
plaintiff to justify supplementation of the record and plaintiff must make a
“strong showing” of bad faith.
Id. at 464-65 (citations omitted) (emphasis added). See also Harkness v. Sec’y of Navy, 858 F.3d
437, 451 (6th Cir. 2017) (emphasizing that a “strong showing of bad faith” is required); S. Forest
Watch, Inc. v. Jewell, 2015 WL 1457978 at *2 (E.D. Tenn. Mar. 30, 2015), aff’d 817 F.3d 965
(6th Cir. 2016) (same).

This Court must presume that the CDC properly designated the

administrative record absent clear evidence to the contrary. See United States v. Martin, 438
F.3d 621, 634 (6th Cir. 2006) (noting that agency action is entitled to a presumption of regularity
that may be overcome only by “clear evidence”).
Plaintiff has offered no evidence that any of the proffered exhibits were directly before
Director Frieden when he reviewed Plaintiff’s request. Although Plaintiff reasons that, because
the exhibits were generally available to the CDC, they were indirectly before Director Frieden,
he has pointed to nothing in the record to support his reasoning. Instead, Plaintiff merely argues
that, because these exhibits relate to allegations made by Dr. Thompson, they must have been
considered by Director Frieden. Plaintiff’s argument is not persuasive. Defendant points out and
the Court agrees that accepting Plaintiff’s argument would impose the untenable position on
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agency decision makers whereby they would be presumed to have knowledge of every document
that might touch on an issue currently before that decision maker. See Westchester Gen. Hosp. v.
Dep’t of Health & Human Servs., 770 F. Supp. 2d 1286, 1298 (S.D. Fla. 2011), aff’d 443 F.
App’x 407 (11th Cir. 2011) (explaining that the court was “aware of no requirement imposed by
any statute, regulation, or binding judicial opinion requiring the Department to make an
exhaustive analysis of - to even consider if not specifically brought to its attention by the
requesting party - all possibly relevant material in making its [Tuohy] determination, and to
detail this exhaustive analysis in its denial letter.”)
There is no factual support for Plaintiff’s conclusion that the CDC omitted the exhibits
from the administrative record intentionally, negligently, or in bad faith. Thus, Plaintiff has not
overcome the strong presumption that the administrative record filed with the Court is complete.
“[P]laintiff must identify reasonable non-speculative grounds for its belief that the documents
were considered by the agency and not included in the record.” See Hickey v. Chadick, 2009 WL
3064445 at * 2 (S.D. Ohio Sept. 18, 2009) (citations omitted) (denying plaintiff’s motion to
supplement because there was no factual support for plaintiff’s argument that the agency
deliberately and negligently excluded certain documents from the administrative record).
Nor does the Court need the proffered exhibits as “background” information to determine
whether the agency has considered all relevant factors. In his response to Plaintiff’s request,
Director Frieden thoroughly discussed the relevant factors. Moreover, one of the proffered
exhibits is a “pre-decisional draft” that would be of limited or no use to the Court in its review
because it is not in a final form. (Sealed Exh. D, ECF No. 29-2.)
Plaintiff argues that the Court should allow the proffered exhibits to be made part of the
record because they show that “vaccines do cause at least some cases of autism.” (Pl’s Sealed

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Mot. p. 6, ECF No. 29-1.) This Court’s role in the present action is to determine whether or not
Director Frieden’s decision was arbitrary and capricious – not whether vaccines cause autism.
“There is no occasion for a judicial probe beyond the confines of a record which affords enough
explanation to indicate whether the agency considered all relevant factors. If anything, a judicial
venture outside the record can only serve either as background information, or to determine the
presence of the requisite fullness of the reasons given; and it can never ... examine the propriety
of the decision itself.” Hickey, 2009 WL 3064445 at *4 (citation omitted). See also Kroger Co.
v. Reg’l Airport Auth. of Louisville & Jefferson Cnty., 286 F.3d 382, 387 (6th Cir. 2002) (citation
omitted) (reiterating that, in reviewing an agency action under the APA, the court considers “the
administrative record already in existence, not some new record made initially in the reviewing
court”).
Plaintiff has not rebutted “the presumption of administrative regularity” necessary in
order for the Court to grant the motion to supplement. See Bullwinkel v. U.S. Dep’t of Energy,
2013 WL 384902 at *2 (W.D. Tenn. Jan. 16, 2013) (quoting Sara Lee Corp. v. Am. Bakers
Ass’n, 252 F.R.D. 31, 33 (D.D.C. 2008)). Accordingly, the motion to supplement is denied. See
Weiss v. Kempthorne, 2009 WL 2095997 at *2 (W.D. Mich. July 13, 2009) (“Supplementation of
the record is an unusual action that is rarely appropriate.”).
Motions for Summary Judgment
Under the APA, when a district court is reviewing final agency action, the usual rules
governing summary judgment do not apply. See City of Cleveland v. Ohio, 508 F.3d 827, 838
(6th Cir. 2007). Instead, a district court’s review is limited to whether the agency’s action was
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id.; see
also 5 U.S.C. § 706(2)(a) (“The reviewing court shall...hold unlawful and set aside agency

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action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.”). A determination of whether an agency’s action was
arbitrary, capricious, or an abuse of discretion must be made on the basis of the administrative
record. See 5 U.S.C. § 706 (“the court shall review the whole record or those parts of it cited by a
party”).
Review under the arbitrary and capricious standard is narrow; the reviewing court may
not substitute its judgment for that of the agency even if the court might otherwise disagree with
the agency’s decision. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 375-77
(1989). An agency’s decision is arbitrary and capricious when the agency relied on factors that
Congress did not intended it to consider, “entirely failed to consider an important aspect of the
problem, offered an explanation for its decision that runs counter to the evidence before the
agency, or is so implausible that it could not be ascribed to a difference in view or the product of
agency expertise.” Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658
(2007). “Agency action is ‘not in accordance with the law’ when it is in conflict with the
language of the statute relied upon by the agency.” City of Cleveland, 508 F.3d at 838 (citing 5
U.S.C. § 706(2)(A)).
In the present case, the parties have filed competing motions for summary judgment, with
Plaintiff contending that the decision denying his request to depose Dr. Thompson was arbitrary
and capricious and should be overturned and Defendant CDC contending that the decision was
not arbitrary and capricious and should be upheld. The Court finds that the motion for summary
judgment of the CDC should be granted and the motion for summary judgment of Plaintiff
should be denied.

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Plaintiff’s request letter stated that testimony from Dr. Thompson regarding his work on
the MMR Study was relevant to his pending state court malpractice action because the state court
defendants had “cited the MMR Study conducted by Dr. Thompson as support for their assertion
that the Defendants’ negligence was not a cause in fact [of Plaintiff’s son’s] regressive autism.”
(Pl’s Req. Lett., p. 3, ECF No. 27.) According to the letter, Dr. Thompson’s testimony was
necessary “to determine if the underlying data used in that study was valid, and if the
assumptions made and conclusions drawn from the raw data was reliable, since the underlying
data is no longer available.” (Id. at p. 4.) Plaintiff planned to submit Dr. Thompson’s testimony
to the state court for consideration “in ruling on Daubert challenges to expert testimony.” (Id. at
p. 3.)
As an initial matter, the Court rejects Plaintiff’s argument that Defendant CDC’s
response to his request letter was “nothing more than the usual boilerplate and conclusory
unsupported arguments typically offered by agencies that erect a wall impossible for any litigant
to scale.” (Pl’s Mot., p. 9, ECF No. 30-1.) To the contrary, Director Frieden offered detailed
and case-specific reasons for declining Plaintiff’s request as discussed below. C.f. OhioHealth
Corp., 2014 WL 4660092 at *5 (“The VA”s denial letters consisted largely of generalized
assertions that did not appear to take into account the arguments and affidavits submitted in
support of Plaintiffs’ Touhy requests.”)
Prior to stating his reasons for the denial, Director Frieden explained that “DHHS
employees do not participate, give depositions or trial testimony, or provide consultations in their
official capacities in private litigation or other proceedings in which the United States is not a
party, absent authorization by the agency.” (Frieden Resp., p. 10, ECF No. 27.) The principles
underlying the DHHS’s Touhy regulations are minimizing the disruption of employees’ official

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duties and the necessity of DHHS to maintain “strict impartiality in disputes between litigants.”
(Id.) Director Frieden then concluded that Plaintiff’s request did not satisfy DHHS’s Touhy
regulations for several reasons.
Director Frieden rejected Plaintiff’s contention that Dr. Thompson’s deposition was the
only way to obtain certain information regarding the MMR Study. Instead, the underlying data
from the MMR Study was available to be reviewed and opined on by Plaintiff’s own experts,
rather than using a CDC employee to analyze the data. Director Frieden provided a link for
Plaintiff to find more information on how to access the public-use database.
Although Plaintiff maintains that the data from the MMR Study is not available because
interested parties must complete a proposal request form before receiving access to the data, as
noted by Defendant, this requirement does not make the data unavailable. Plaintiff has submitted
no evidence that he ever tried and failed to obtain the data or conduct the analysis that he seeks
to elicit by deposing Dr. Thompson.
Plaintiff contends that Dr. Thompson’s allegations render any publically available data
useless because the MMR Study’s authors intentionally destroyed data and altered scientific
research. However, this contention was not presented in the Touhy request. Instead, the request
merely claimed that the conclusions drawn from the CDC studies were flawed and that, based on
comments by Dr. Thompson, there was destruction of some information. Plaintiff did not meet
his burden of presenting all relevant information to Director Frieden so he could make an
informed decision regarding the Touhy request instead of presenting generic arguments. See
Westchester Gen. Hosp., 770 F. Supp. at 1290 (affirming agency denial of Touhy request and
pointing out that the request “mostly parrots the language of DHHS’s regulations but fails to

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actually set forth any detail”). The Court finds that Director’s Frieden’s denial of Plaintiff’s
request on this ground was not arbitrary and capricious.
Next, Director Frieden determined that Dr. Thompson’s deposition would not further the
interest of the United States in promoting public health. Director Frieden acknowledged “that
allegations have been made about aspects of one of the studies” but noted that the “CDC is
currently reviewing those allegations regarding the [MMR] study’s scientific review process and
conclusions drawn” and affirmed that the “CDC still considers the studies to be valid and to
provide further evidence, along with a large body of other scientific studies, that vaccines do not
cause autism.” (Frieden Resp., p. 11, ECF No. 27.) Director Frieden explained that private
litigation was “not the proper forum to address those concerns.” (Id.)

Instead, DHHS’s

“objective of ensuring the integrity of its scientific work and resulting publications is better
addressed through normal scientific and other processes and is not served by providing testimony
in an individual case.” (Id.)
The Court finds that this reasoning is not arbitrary and capricious because, as correctly
noted by Defendant, accepting Plaintiff’s argument would create a situation whereby any
disagreement about conclusions reached in a government-sponsored study would be sufficient to
allow a private litigant to compel the testimony of a federal employee. See Teva Parenteral
Meds., Inc. v. U.S. Dep’t of Health and Human Servs., 2012 WL 4788053 at *4 (D.D.C. Oct. 9,
2012) (“[I]f the CDC were to determine that the interests advocated by plaintiffs here preventing the spread of disease and identifying unsafe healthcare practices - satisfy the Touhy
requirements, then any litigation even tangentially related to the spread of infectious disease
would also be in the interest of the CDC. Plaintiffs have not established how permitting the CDC

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employees to testify serves anyone’s interests other than Plaintiffs’ interest in bolstering their
case in the pending state court proceedings.”)
Plaintiff relies on In re Vioxx Products Liability Litigation, 235 F.R.D. 334, 336-37 (E.D.
La. 2006), in support of his argument that it is in the public’s interest for an agency to produce a
whistleblower for a deposition during private litigation. Plaintiff’s reliance on this case is
misplaced. Pursuant to the FDA’s Touhy regulations, the In re Vioxx plaintiffs sought to depose
an FDA doctor. In rejecting the agency’s arguments that the deposition would divert FDA
resources and involve the FDA in private litigation, the court emphasized the fact that the FDA
had previously allowed the doctor to appear on television, be interviewed by magazines and
newspapers regarding his opinions about the drug, and give speeches at professional meetings
about the FDA’s involvement with Vioxx.

Id. at 345-46.

Moreover, the FDA routinely

produced employees for depositions in other cases. Id. at 345. Here, there is no evidence that the
CDC has ever given approval for Dr. Thompson to appear on behalf of the agency on television
or in any other media format to discuss the information Plaintiff wants to elicit through
deposition testimony.
Plaintiff also contends that Dr. Thompson’s deposition in the state court litigation is
proper under Rule 26 of the Tennessee Rules of Civil Procedure, which allows for the discovery
of relevant information. However, as Director Frieden noted in his response to Plaintiff’s request,
it is the DHHS’s policy to comply with a state’s procedural and substantive rules only when it is
“subject to the jurisdiction of a court or other tribunal.” 45 C.F.R. § 2.1(b). Defendant CDC is
not a party to the state court action and, therefore, is not bound by the Tennessee Rules of Civil
Procedure.

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Plaintiff has failed to show that Director Frieden’s decision that Dr. Thompson’s
deposition would not promote the federal interest in public health was arbitrary and capricious.
See Westchester Gen. Hosp., Inc., 770 F. Supp. 2d at 1290 (finding that plaintiff’s Touhy request
was properly denied by DHHS because it was “unclear how permitting [the employee’s]
testimony serves anyone’s interest other than [Plaintiff’s] interest in bolstering its case in the
state . . . action”).
Finally, Director Frieden relied on the ground that he could not view Plaintiff’s “request
in isolation, but must consider the cumulative impact of allowing such a request,” as the “CDC
receives numerous requests for testimony in litigation, administrative proceedings, and public
hearings related to the work” it performs. (Frieden Resp., p. 11, ECF No. 27.) Director Frieden
noted that the CDC “simply cannot accommodate all such requests for testimony and conduct its
essential work on important public health matters.” (Id.) The cumulative impact, explained
Director Frieden, of allowing CDC employees to sacrifice their official responsibilities in order
to testify in private litigation would “result in a potentially staggering loss to the agency’s efforts
in the prevention and control of infectious diseases, which are the leading cause of death
worldwide.” (Id.)
Director Frieden could properly rely on his concern about the cumulative impact of
allowing employees and the accompanying drain on the CDC’s resources to testify in private
litigation as a reason for denying Plaintiff’s request. See Teva Parenteral, 2012 WL 4788053 at
*5 (citing COMSAT Corp. v. Nat’l Science Found., 190 F.3d 269, 278 (4th Cir. 1999)) (finding
that the CDC’s Touhy denial did not violate the APA because it was based on the agency’s valid
concern about the cumulative impact of allowing employees to testify in private litigation).
Director Frieden “was acting within his discretion [in determining] that Plaintiffs’ arguments in

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favor of disclosure did not overcome the agency’s presumption against providing employee
testimony in private litigation.” Westchester, 770 F. Supp. 2d at 1298-99 (citations omitted)
(“[A]ny given request may seem small in isolation, but an agency has an interest in protecting
itself against the cumulative disruption to its duties that would come with routinely granting
requests for testimony.”).
Plaintiff contends that this would be a one-time deposition. However, Plaintiff’s Touhy
request did not propose any dates or times for Dr. Thompson’s deposition and did not explain
why the deposition would be a one-time occurrence. See Moore v. Armour Pharm. Co., 927 F.2d
1194,1197-98 (11th Cir. 1991) (rejecting plaintiffs’ contention that a deposition would be a “one
time thing” and holding that “[t]he plaintiffs’ interest in getting the deposition of Dr. Evatt
simply cannot compare to the government’s interest in maximizing the use of its limited
resources in dealing with a national health crisis. Each day that Dr. Evatt and other doctors
employed by the CDC spend giving deposition testimony is a day they are kept from doing
research that might save numerous lives”). See also Nat. Res. Def. Council v. Cty. of Dickson
Tennessee, 2010 WL 11478994 at *8 (N.D. Ga. July 20, 2010) (quoting Envtl. Enters., Inc. v.
EPA, 664 F. Supp. 585, 586 (D.D.C. 1987)) (“[I]f the EPA authorized Hill or his staff to be
deposed in private litigation where the EPA is not a party, “the officials might find themselves
spending all of their time doing nothing but complying with [subpoenas] and thus they would
have little opportunity to pursue their important governmental responsibilities.”).
The Court finds that the denial of permission to depose Dr. Thompson was not arbitrary
and capricious. Director Frieden adequately considered the relevant factors, and his decision
contains no clear error of judgment. Even if the Court might have reached a different decision,
the Court must give substantial deference to the agency’s decision when it is not arbitrary and

16

capricious and is supported by the administrative record, as in the present case. Accordingly,
Defendant CDC’s motion for summary judgment is GRANTED, and Plaintiff’s cross-motion for
summary judgment is DENIED. Judgment will be entered for Defendant CDC.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE
Date: July 18, 2017.

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