An estimated 2.68 million civilians work for federal administrative agencies.
Their work spreads across more than one hundred agencies, each with its own area of expertise.
As then-Professor Felix Frankfurter remarked in 1927 and is even more so the case today, the subject-matter expertise of administrative agencies runs “the whole gamut of human affairs.”
It’s no wonder then that parties involved in lawsuits often turn to agencies for information to help build a case or mount a defense,
even when the federal government isn’t a party to the underlying litigation.
Take, for example, a recent lawsuit against the sheriff’s office of a small county in North Carolina.
Larry Lamb, having spent two decades in prison for a crime he did not commit, alleged that the Duplin County Sheriff’s Office deprived him of his constitutional rights by coaching a witness to fabricate her testimony and failing to disclose that the witness had a long and less-than-truthful history as a criminal informant for both state and federal law enforcement.
To prove his claim, Lamb served a subpoena on the FBI requesting documents related to the Bureau’s work with the witness.
The FBI, however, flatly rejected Lamb’s subpoena, citing its own regulations for the authority to do so.
Subpoenas—like the one Lamb served on the FBI—seeking deposition testimony, trial testimony, the production of nontestimonial evidence, or some combination of the three from parties not involved in an underlying action are called nonparty subpoenas.
Generally, the relevant rules of procedure govern whether a litigant can expect a response to a nonparty subpoena, with nonparty discovery tending to be a relatively straightforward and requester-friendly process.
But when the subpoena recipient is an agency (e.g., the DOJ) or a subcomponent thereof (e.g., the FBI), the process gets more complicated.
Before an agency official can comply with a nonparty subpoena, an agency head—or an official with delegated authority—must determine that the litigant satisfied the department’s Touhy regulations.
These regulations, which are named for a midcentury Supreme Court case and differ slightly from agency to agency, govern whether an agency employee is authorized to submit to judicial process.
Agencies get the authority to promulgate Touhy regulations from the Federal Housekeeping Statute, which reads: “The head of an Executive department or military department may prescribe regulations for . . . the custody, use, and preservation of its records, papers, and property.”
The statute’s next sentence lays out what, at first blush, might look like a broad caveat but, in reality, is a narrow clarification of agencies’ authority: “This section does not authorize withholding information from the public or limiting the availability of records to the public.”
Under this statute, nearly every administrative agency has adopted Touhy regulations restricting to some degree its employees’ ability to comply with work-related subpoenas.
Touhy regulations fall into two broad categories. Regulations in the first category are procedural. For example, a party may need to submit, in addition to a subpoena, a letter providing a “summary of the information sought and its relevance to the proceeding.”
For the most part these procedural regulations are easy enough to comply with,
though they do pose obstacles for unwary litigants, especially those proceeding pro se.
Regulations in the second category are substantive. These regulations, which are the focus of this Note, tend to be extremely difficult to satisfy.
For example, a party may need to show that an agency’s compliance with a subpoena serves the “public interest” even when considered against the government’s need “to avoid spending . . . time and money . . . for private purposes” and the risk that compliance would undermine the agency’s “performance . . . of its mission and duties.”
No easy task.
If an agency determines a litigant failed to satisfy its Touhy regulations, the litigant can challenge the agency’s decision in court. But what happens next is the subject of a circuit split that’s now over twenty-five-years old.
A plurality of circuits require a litigant to challenge the agency’s subpoena noncompliance under the Administrative Procedure Act (APA). The litigant bears the burden of showing, with reference to the agency’s own regulations, that the agency’s action was arbitrary and capricious.
A minority of circuits, however, permit a litigant to proceed as if the government was any run-of-the-mill nonparty. The Federal Rules of Civil Procedure (FRCP) govern, and the agency bears the burden of showing that compliance would be unduly burdensome or require the disclosure of privileged material.
This circuit split has produced a large body of literature, with the bulk of it advocating for a particular resolution of the split.
Two untested assumptions characterize much of the subject’s literature. The first is that litigants proceeding under the FRCP prevail at a significantly greater rate than litigants proceeding under the APA.
The second is that the circuit split will be readily resolved by either an outside actor (i.e., Congress or the Supreme Court) stepping in or a lower-court-generated consensus trending toward application of the FRCP.
This Note tests these two assumptions. While the first withstands scrutiny, the second does not. Based on a logistic regression analysis, a litigant proceeding under the FRCP can expect a roughly twenty-six percentage-point greater chance of obtaining discovery against a nonparty federal agency compared to a similarly situated litigant proceeding under the APA.
But neither Congress nor the Supreme Court has shown much interest in resolving the APA–FRCP split; and the suggested trend toward employing the FRCP enjoys little support in reality.
Given these two findings, it’s time to face an odd state of affairs as the circuit split inches toward three decades of existence: The circuit split significantly undermines federal court uniformity, but its resolution doesn’t appear to be on the horizon. As a result, courts employing the plurality, APA-based approach need to take care that litigants in their jurisdictions are not disadvantaged compared to litigants in courts employing the minority, FRCP-based approach. Fortunately, this Note argues, plurality-approach courts can do just that while avoiding major departures from their precedent. Plurality-approach courts can mitigate the unfairness otherwise created by the Touhy-derived circuit split by vigilantly applying traditional tools of statutory interpretation to the Federal Housekeeping Statute and ensuring that their approach imports into the Touhy context the APA’s administrative law safeguards, not just its deferential arbitrary and capricious standard.
This Note proceeds in three Parts. Part I provides an overview of the Touhy doctrine, describing its historical development, its foundational cases, and the circuit split over its reach in the federal-civil context. Part II serves two purposes. First, it tests the two above-described assumptions (differing success rates and imminent resolution), finding support for the former but not the latter. Second, it explains how these two findings place federal courts in the middle of two key commitments: federal court uniformity and adherence to precedent. Part III then offers ways of mitigating this tension by limiting the scope of intercircuit disagreement and making APA review of Touhy decisions rigorous enough to narrow the APA–FRCP gap in discovery success rates.