Juan Villaseñor, J.
Litigants who seek testimony or documents from a nonparty federal agency or employee must follow specific procedures set forth in federal regulations to ensure proper consideration of the request. Subpoenaing a federal agency or employee by itself is insufficient to obtain the documents or testimony sought.
Attorneys from the author’s firm represented the federal agencies involved in State v. Rodarte, U.S. Steel Corp. v. Mattingly, Haithcox v. GEO Group, Inc., Quezada v. Mink, and Altamirano v. Chemical Safety & Hazard Investment Board. These cases are d iscussed in the article. The views expressed in this article are solely those of the author and not necessarily those of the U.S. Department of Justice.
Consider the following two litigation situations:
• A defendant facing state criminal charges was arrested by a regional drug task force. Federal law enforcement agents were involved in the arrest, and the prosecution or the defense may need the agents as witnesses at trial.
• A company sued another business in federal court over a contractual dispute. The defendant company applied for and obtained a loan from a federal agency and the agency’s file on the company’s loan application may contain information relevant to the dispute.
An attorney representing a party in either situation will likely issue a subpoena to the nonparty federal agency requesting documents, or to the federal law enforcement agents to testify at the criminal trial. In circumstances involving private parties or state employees, the documents would likely be produced and the witness would likely appear to testify. But, generally, “a subpoena alone will not guarantee an appearance” or the production of documents when a federal agency or employee is concerned .In fact, the subpoena will likely be quashed for failure to comply with the federal agency’s “Touhy regulations, ”2 which are regulations promulgated by federal agencies to restrict the release of documents and testimony.3
This article discusses the two most common situations in which a litigant will encounter and have to comply with a federal agency’s Touhy regulations: (1) when requesting documents or testimony through a state court subpoena, or (2) when making such requests through a federal court subpoena. The article discusses recent developments in the law regarding Touhy compliance and offers guidance on how to comply with agencies’ Touhy regulations to ensure appropriate consideration of a request for testimony from a federal employee or a request for government documents.
State Court Subpoena
Touhy regulations frequently apply when an attorney issues a subpoena to a federal agency or employee in a state court case. In the first hypothetical discussed above, if an attorney subpoenaed federal law enforcement agents to testify at a criminal trial but did not comply with the applicable Touhyregulations4, that failure would likely result in the government appearing in state court and filing a motion to quash the subpoena5 . The government would likely argue that under the Supremacy Clause of the U.S. Constitution, the state court lacks authority to enforce the subpoena or to hold the agency or federal employee in contempt. The government would also likely contend that sovereign immunity bars the state court from ordering the federal agency or employee to comply with the subpoena.
The Supremacy Clause Argument
Supremacy Clause of the U.S. Constitution provides that
federal law is the supreme law of the land and requires
judges of every state to be bound by such laws,
notwithstanding state laws to the contrary . In the
present context, the laws of the United States that take
precedence over a state rule of civil or criminal
The Housekeeping Act authorizes the head of every executive agency to promulgate regulations regarding, among other things, the use and preservation of its agency’s records, and provides as follows:
The head of an Executive 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.8
Federal agencies have promulgated Touhy regulations pursuant to the Housekeeping Act.9 Those regulations govern the disclosure of any official documents requested from its records, or testimony by an employee arising from the employee’s official duties. Generally speaking, Touhy regulations prohibit an employee from responding to a demand for documents (like a subpoena) acquired as part of the employee’s official status unless a designated official authorizes the release. Touhy regulations that have been validly promulgated have the force and effect of any other duly enacted federal law.10 As such, a federal agency’s Touhy regulations are binding on a state court, notwithstanding a contrary state rule of criminal or civil procedure.11
Accordingly, a state court lacks the authority to compel the testimony of a federal employee, or the production of documents from a federal agency, because the federal agency’s Touhy regulations prohibit the testimony or production without authorization from the appropriate official. Enforcement of the subpoena would violate the Supremacy Clause because, by compelling a federal employee to produce documents in contravention of the applicable Touhy regulations, the state court would be overriding those regulations.
The Contempt of Court Argument
A party who subpoenas a federal official to testify and learns that the individual will not comply with the subpoena will likely seek a remedy. Contempt is a typical option in either a criminal or a civil case.12 While this is a viable remedy in many cases, Touhy regulations generally instruct the federal employee to respectfully decline to comply with the demand, 13 and in response to a contempt motion, the government usually argues that the state court may not hold the agency or its employees in contempt for the agency’s decision to decline to comply with the subpoena.
Touhy is dispositive of this issue. In United States ex rel. Touhy v. Ragen, an Illinois state prisoner filed a federal habeas corpus action against the prison warden, alleging that he was being held in violation of the Due Process Clause.14 In an effort to prove his case, the prisoner subpoenaed documents and testimony from an FBI agent.15 The agent, following the instructions of his superiors, re fused to comply with the subpoena duces tecum, and the district court held him in contempt.16
The Supreme Court reversed the contempt citation. It held that when the head of an executive agency acts under the authority of the Housekeeping Act and orders a subordinate to not comply with a subpoena, the subordinate may not be held in contempt of court.17
The Sovereign Immunity Argument
The government also often contends that sovereign immunity prevents a state court from ordering a federal agency to produce documents or take other actions. The federal government consents to be sued only when Congress “‘unequivocally expresse[s]’” its intention to waive the government’s sovereign immunity in a statute.18 “If waiver is not unequivocal from the text, the government retains its sovereign immunity.”19 Further, a “waiver of sovereign immunity cannot be implied.” Sovereign immunity is implicated when, as here, an order would compel the government to act.21
Courts consistently hold that sovereign immunity prevents a court from requiring a federal agency to produce documents when its Touhy requirements do not permit it to do so. For example, the Second Circuit held that enforcing a subpoena ducestecum against a federal agency “would compel [it] to act and therefore is barred by sovereign immunity in the absence of a waiver.”22 Other appellate decisions similarly hold that the federal government’s sovereign immunity prevents a state court from ordering a federal agency to produce records.23
Making a Federal Case Out of It
It is possible that the state court may deny the government’s motion to quash. In that case, the government would likely remove the case to federal court to adjudicate the subpoena-enforcement issue. Removal of the state court case to federal court is appropriate because it involves acts of an “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. . . .”24...