was assigned to this Court, sitting in Part I.
The FBI filed numerous objections and oppositions to Meisel's
miscellaneous motion. Meisel filed letter briefs in reply. On May 15,
2002, the Court held a hearing to determine its jurisdiction and address
the parties' arguments. Following that hearing, the parties supplemented
their oral arguments with additional letter briefs.
At the Hearing, also, Blumenfeld sought to intervene pursuant to Fed.
R. Civ. P. 24(a). Meisel consented to the intervention but the FBI
objected. On the record, Blumenfeld explained his interest in the
proceeding, informing the Court that he sought only "reciprocity or
parity" rights to be present at the depositions of Dennady and Begley, if
ordered. (Tr., at 39-41.) Based on these representations the FBI withdrew
its objection. (Tr., at 41-42.) The Court granted Blumenfeld's motion to
intervene. (Tr., at 44.)
The Court has reviewed the parties' submissions and provides the
following summary as a guide to their positions and arguments. Meisel
argues that it made a proper request under the Touhy Regulations and may
proceed by miscellaneous motion to commence an action pursuant to the APA
to enforce its rights. Meisel seeks deposition testimony as relief.
The FBI's primary objection is that Meisel should have proceeded by
filing a complaint, thereby commencing an action pursuant to the Federal
Rules of Civil Procedure. The FBI also opposes Meisel's motion on the
grounds that: (1) the Application is barred by the doctrine of sovereign
immunity; (2) the Application is precluded by res judicata (3) Meisel
failed to follow Touhy Regulations; and (4) there has been no final
agency action on which to base an APA action. The Court addresses each
argument in turn.
A. Commencement of an Action Pursuant to the APA
The Federal Rules of Civil Procedure instruct that the only "action"
they provide for is a civil action, Fed.R.Civ.P. 2, that can be
commenced only by filing a complaint. See Fed.R.Civ.P. 3. The Second
Circuit, however, identified a circumstance whereby an APA action may be
commenced without filing a complaint. See Environmental Protection Agency
v. General Electric Co., 197 F.3d 592 (2d. Cir. 1999) ("G.E."). In G.E.,
the Second Circuit held that "the APA allows the enforcement of a
non-party subpoena duces tecum for discovery against the government
through a motion to compel compliance." Id. at 599. In that case, General
Electric Co. ("GE") had requested documents from the Environmental
Protection Agency ("EPA") as part of its discovery efforts in a
litigation pending before the United States District Court for the
District of New Jersey. The EPA declined to honor the subpoena. When GE
moved to compel the subpoena by miscellaneous motion in the Southern
District of New York, the EPA moved to quash it because, inter alia, GE
should have filed a complaint under Federal Rule of Civil Procedure 3 to
commence an APA action and obtain the necessary waiver of sovereign
immunity. The district court agreed and dismissed GE's miscellaneous
motion. The Second Circuit, however, reversed because "the district court
interpreted `action' in section 702 of the APA in too narrow a fashion
for the purposes of this case." G.E., 197 F.3d at 599. It remanded GE's
miscellaneous motion for further proceedings.
The parties here focused their efforts on arguing and briefing the
question of whether the G.E. decision permits Meisel,
a party in a
pending state litigation, to obtain discovery from the FBI, as a third
carry to the State Litigation, by filing a miscellaneous motion seeking
testimony and documents. The FBI opposes Meisel's use of this procedure
because the expediency of proceeding by miscellaneous motion deprives the
FBI of the lengthier time schedule to answer contained in the Federal
Rules of Civil Procedure. (See Tr., at 28 ("[T]he government's main
concern here is creating precedent of allowing State Court litigants to
hail the FBI on an expedited basis in Part 1.")); see also Fed.R. Civ.
P. 12(a) (defendant who waives summons has 60 days to answer
complaint). The FBI did not identify any concrete harm or prejudice that
would result from expedited review for state court litigants as well as
federal court litigants. Rather, the FBI asserts that the distinction
between enforcing a subpeona issued by a federal court in a pending
federal litigation by miscellaneous motion and enforcing a subpoena
issued by a state court in a pending state litigation is inherently
determinative, requiring the Court to reject the Application as a Part I
matter. As support, the FBI cites cases that were removed to federal
court for enforcement of a state subpoena, only to be dismissed on the
grounds of derivative jurisdiction. See e.g., Louisiana v. Sparks,
978 F.2d 226, 235 (5th Cir. 1992); Houston Business Journal, Inc. v.
Office of the Comptroller of the Currency, 86 F.3d 1208, 1211-1212 (D.C.
Cir. 1996); Fairfield v. The Houston Business Journal, Inc., H-93-1794,
1993 WL 742740, *1 (S.D.Tex. Sept. 8, 1993); Washington Consulting Group
v. Monroe, 00MS141, 2000 WL 1195290, *1 (D.D.C. July 24, 2000).
The Court, however, perceives that the procedural posture of this
matter falls within the ambit of G.E. Meisel is a party to a pending
litigation in which it seeks discovery from an agent of the government.
Thus, Meisel's application is like GE's. The only difference is that
Meisel's litigation is pending in state court.
Unlike the petitioners in the cases cited by the FBI, Meisel filed the
Application as an action independent of the State Litigation. Meisel
alleges that it made a proper request pursuant to the Touhy Regulations
and that the FBI's denial of it was "arbitrary and capricious" and a
violation of the Privacy Act. Thus, Meisel invoked federal question
jurisdiction. See 28 U.S.C. § 1331. Neither Meisel nor the FBI
removed the Subpoenas to federal court on diversity grounds and thus the
Court's jurisdiction does not depend on that of the state court under the
doctrine of derivative jurisdiction. Accordingly, the Court finds that
Meisel properly commenced an APA action by miscellaneous motion pursuant
to Local Rule 5 and G.E., and accepts it as a Part I matter.
B. Discovery From a Non-Party Apency of the United States
1. Enforcement of State Subpoena
The FBI argues that this Court has no jurisdiction to enforce a
subpoena issued by a state court. An objection to the Court's subject
matter jurisdiction is appropriate. See United States Catholic Conference
v. Abortion Rights Mobilization, Inc., 487 U.S. 72, 76 (1988) ("[A]
nonparty witness can challenge the court's lack of subject-matter
jurisdiction in defense of a civil contempt citation, notwithstanding the
absence of a final judgment in the underlying action."). The Court's
subpoena power does not extend beyond its jurisdiction over the
underlying action. See id. (citing United States v. Morton Salt Co.,
338 U.S. 632, 642 (1950)); Fed.R.Civ.P. 45. Here, the Court has no
jurisdiction over the State Litigation. See 28 U.S.C. § 1331, 1332
and 1441. Accordingly, the Court cannot exercise its
own subpoena power over the Subpoenas as matters pending in the State
2. Res Judicata