Who is this guy Touhy, and what am I supposed to be requesting?

• Author: Peltz, Robert D.

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One of the interesting aspects of being a lawyer is that you are always confronted with new situations and legal problems. Accordingly, I did not fully appreciate what I was in for at a federal court scheduling conference earlier last year when I indicated to the magistrate that I intended on deposing several National Park Service rangers who had investigated the death of my client's son during the course of a hike at the Big Cypress Preserve. (1) The tone of her warning, "Good luck with your Touhy request," was ominous to say the least. My initial reaction was, "Who is this guy Touhy, and what am I supposed to request?"

It turns out that Touhy was an inmate in the Illinois State penitentiary who filed a habeas corpus proceeding in federal court alleging a violation of his due process rights by the warden before I was even born. During the proceeding, Touhy served a subpoena upon an FBI agent seeking the production of various Department of Justice files, which he contended would prove that his conviction was obtained by fraud. When the FBI agent refused to turn over any of the records requested based upon administrative regulations promulgated by the Department of Justice governing the production of records, the judge found him in contempt and sentenced him to the custody of the attorney general.

The U.S. Supreme Court subsequently affirmed the circuit court's reversal of the trial judge's action, holding that Congress had given administrative agencies the authority to prescribe regulations for the custody, use, and preservation of their records by the adoption of 5 U.S.C. [section] 22 (now 5 U.S.C. [section] 301) and that the Department of Justice regulations relied upon were a valid exercise of this power. (2) Subsequently, requests for documents and witnesses became thereafter known as "Touhy requests," a nickname perpetuated by the courts in reviewing the denial of such requests.

Practical Considerations

The first step in the process is to check the agency's "Touhy" regulations. Typically, they will require a formal written request identifying the proposed agency witnesses and the areas of testimony. The regulations will also set forth a number of specific factors, which the agency is required to consider in reviewing a Touhy request. The best practice is to address specifically each of the factors set forth by the agency in the written request. (3) It is also important not to rely simply on conclusory statements of applicability, but to set forth in detail the facts supporting the reasons why it is contended that each of the specific agency factors should be construed to allow the witness to testify. (4)

Another helpful hint to keep in mind is that one does not need to live or die on the basis of their initial Touhy request. The Touhy request can be an evolving process in which the original written request is supplemented and modified during the course of discussions and communications with the agency. (5) In fact, it is a good practice to try and meet each of the agency's objections through the use of supplemental written Touhy requests, so the record that arrives at the court contains sufficient facts to support the request. (6)

Since the "default" position for most agencies is to deny the production of witnesses for actual testimony, expect to have to litigate this issue. Try to make your Touhy request as early as possible in order to leave sufficient time to complete the process prior to discovery cut offs and other court-imposed deadlines.

Scope of Judicial Review

Two differing standards for reviewing the denial of Touhy requests have developed among the circuits in cases pending in the federal courts. (7) Some courts have concluded that the issue is governed by the application of the much more liberal discovery provisions contained in the Federal Rules of Civil Procedure, which tend to favor the allowance of such testimony. Others, however, have utilized the restrictive "arbitrary and capricious" standard of the Administrative Procedure Act (APA) found in 5 U.S.C. [section] 706, (8) which more often results in upholding agency determinations refusing to allow employees to testify. Interestingly, both lines of cases cite to the 11th Circuit's opinion in Moore v. Armour Pharmaceutical Co., 927 F.2d 1194 (11th Cir. 1991), in support of their positions.

The leading case in support of utilizing the discovery provisions of the Federal Rules of Civil Procedure to define the scope of review is the Ninth Circuit's opinion in Exxon Shipping Co. v. U.S. Department of Interior, 34 F.3d 774 (9th Cir. 1994). In reversing the Department of Interior's application of its Touhy rules, the court rejected the agency's argument that it was immune from having to comply with third-party discovery requests by virtue of its sovereign immunity, since this "argument would also violate the fundamental principle that 'the public ... has a right to every man's evidence.'" (9)

The court went on to further conclude that:

Section 301 does not, by its own force, authorize federal agency heads to withhold evidence sought under a valid federal court subpoena. (10)

Neither the statute's text, its legislative history, nor Supreme Court case law supports the government's argument that [section] 301 authorizes agency heads to withhold documents or testimony from federal courts. (11)

While recognizing the broad scope of the full discovery allowed by the Federal Rules of Civil Procedure, the Ninth Circuit also acknowledged that the government had legitimate concerns regarding the use of its employee resources. After discussing the 11th Circuit's analysis in Moore of the manner in which both interests could be preserved under the Federal Rules of Civil Procedure, it held:

Section 301 does not create an independent privilege to withhold government information or shield federal employees from valid subpoenas. Rather, the district courts should apply the federal rules of discovery when deciding on a discovery request made against government agencies, whether or not the United States is a party to the underlying action. Under the balancing test authorized by the rules, courts can ensure that the unique interests of the government are adequately considered. (12)

This approach has also been adopted by the D.C. Circuit and various district courts. (13)

The Fourth Circuit has been the leading proponent of the proposition that under principles of sovereign immunity, the only authority to require a nonparty federal agency to produce witnesses following the denial of a Touhy request is through the Administrative Procedure Act, under which such denials must be evaluated using the APA's "arbitrary and capricious" standard. (14) The Second Circuit originally adopted the Fourth Circuit rule in U.S. v. General Electric, 197 F.3d 192 (2d Cir. 1999), then expressly retreated from this position on rehearing, (15) leaving the issue for a later day, which more than a decade later has still not come. (16)

Although several...