Torres-Estrada v. Garcia-Garcia, Civil No. 14–1829 FAB.

• Decision Date: 08 April 2015
• Docket Number: Civil No. 14–1829 FAB.
• Citation: 99 F.Supp.3d 232
• Parties: Elvin TORRES–ESTRADA, Plaintiff, v. Ramon M. GARCIA–GARCIA, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

99 F.Supp.3d 232

Elvin TORRES–ESTRADA, Plaintiff

v.Ramon M. GARCIA–GARCIA, et al., Defendants.

Civil No. 14–1829 FAB.

United States District Court, D. Puerto Rico.

Signed April 8, 2015.

Lydia Lizarribar–Buxo, Lizarribar Masini Law Office, San Juan, PR, for Plaintiff.

Fidel A. Sevillano–Del–Rio, United States Attorneys Office, District of Puerto Rico, San Juan, PR, for Defendants.

MEMORANDUM AND ORDER

BESOSA, District Judge.

Before the Court is the United States' motion to quash a Commonwealth court subpoena issued to Timothy Henwood in his official capacity as an Assistant United States Attorney by the plaintiff in a Commonwealth court civil case. (Docket No. 10.) For the reasons set forth below, the Court GRANTS the motion and QUASHES the subpoena.

BACKGROUND

Plaintiff Elvin Torres–Estrada (“Torres”) is suing his former attorney, Ramon M. Garcia–Garcia (“Garcia”), for breach of contract and damages in Commonwealth court. (Docket No. 10 at p. 1.) Garcia represented Torres in this court in Criminal Case Nos. 09–173(PG) and 11–045(PG). Id. On June 3, 2013, in the course of the Commonwealth court proceedings, Torres issued a deposition notice upon Assistant United States Attorney Timothy Henwood (“AUSA Henwood”), one of the prosecutors in the two criminal cases against him. (Docket No. 10–1.) On July 17, 2013, now retired Assistant United States Attorney Isabel Muñoz–Acosta (“AUSA Muñoz”) wrote a letter to Torres's attorney in response to the deposition notice, informing her that “[t]he Department of Justice [ (“DOJ”) ] has not authorized the appearance of AUSA Henwood to this deposition” and, therefore, “his appearance must be excused.” The letter clearly informed Torres' attorney of the regulations promulgated by the DOJ which establish the procedure for disclosure of testimony by DOJ officials like AUSA Henwood. (Docket No. 10–2 at p. 1.)

On October 17, 2013, a full three months after AUSA Muñoz's letter to Torres' attorney, the Commonwealth court issued a notice and summons for AUSA Henwood to appear for his deposition on October 25, 2013. (Docket No. 10–3 at pp. 6–8.) Torres then served a second deposition notice upon AUSA Henwood, this time delineating specific questions to be asked and topics to be covered. Id. at pp. 1–5. On October 22, 2013, the United States, a non-party in the Commonwealth court case, moved to vacate the summons and to excuse AUSA Henwood's appearance at his deposition, setting forth the specific legal reasons supporting its request. (Docket No. 10–4.) In response, Torres requested that the Commonwealth court order the taking of AUSA Henwood's deposition and impose sanctions upon the United States Attorney's Office. (Docket No. 10–5.)

On September 9, 2014, the Commonwealth court held a status conference on the deposition issue. (Docket No. 10–6.) At the conference, Torres maintained that he had complied with the procedural requirements for obtaining AUSA Henwood's testimony, as set forth by the Code of Federal Regulations.¹ Id. at p. 3. Assistant United States Attorney Fidel Sevillano–Del Rio (“AUSA Sevillano Del Rio”), appearing on AUSA Henwood's behalf, opposed Torres's arguments and suggested that the case be removed to federal court. Id. at p. 2. Because Garcia did not appear at the hearing, the Commonwealth court ordered him to provide notice of his intent to call AUSA Henwood as a witness and to show compliance with the administrative process for requesting the DOJ's permission to do so. See id. at p. 4.

On October 14, 2014, Garcia gave notice of his interest in having AUSA Henwood serve as a witness in the Commonwealth court case and sought additional time to show administrative compliance. (Docket No. 10–7.) On November 4, 2014, pursuant to the Commonwealth court's directive, Garcia's attorney wrote to the United States Attorney's Office to “provide notice that [AUSA] Henwood ha[d] been designated as a potential witness,” and to comply with the Code of Federal Regulations' procedural requirements for obtaining AUSA Henwood's testimony. (Docket No. 10–8 at p. 3.)²

On November 14, 2014, the United States removed the proceedings related to AUSA Henwood's subpoena to this Court pursuant to 28 U.S.C. § 1442 for the limited purpose of moving to quash the subpoena issued by the Commonwealth Court. (Docket No. 1.) On January 21, 2015, the United States filed its motion to quash. (Docket No. 10.) The United States' motion remains unopposed.

DISCUSSION

The United States urges the Court to quash a the Commonwealth court-issued deposition subpoena that would require AUSA Henwood to testify in a state civil proceeding as to matters concerning his work as a federal prosecutor. (Docket No. 10.) The United States argues that, without a waiver, the doctrine of sovereign immunity prohibits any court, state or federal, from compelling an employee of the United States to comply with a state court subpoena.See id. at pp. 2–3. Moreover, relying on United States ex rel. Touhy v. Ragen, 340 U.S. 462, 71 S.Ct. 416, 95 L.Ed. 417 (1951), the United States argues that the United States Attorney's decision to refuse AUSA Henwood permission to testify was a valid agency decision and may only be challenged in an action pursuant to the Administrative Procedure Act, 5 U.S.C. § 701 et seq. See id. at pp. 6–9. The Court agrees with the United States and addresses these related arguments in turn.

“[A]s the sovereign, the United States is immune from suit without its consent.” Muirhead v. Mecham, 427 F.3d 14, 17 (1st Cir.2005). “That consent usually takes the form of an express waiver of its sovereign immunity.” Id. A waiver of sovereign immunity “ ‘must be unequivocally expressed.’ ” Id. (quoting United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969) ). Absent an applicable waiver, courts lack jurisdiction to entertain claims against the United States. Id. Thus, the Court must determine whether this case—which does not involve the government's ability to be sued, but rather a federal court's ability to compel a non-party government official, AUSA Henwood, to produce evidence, in the form of deposition testimony—implicates sovereign immunity, and, if so, whether the government has waived its sovereign immunity.

A suit nominally aimed at a government official will be considered one against the sovereign if “the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration, or if the effect of the judgment would be to restrain the Government from acting, or to compel it to act. ” Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963) (emphasis added) (internal citations and quotation marks omitted). “Even though the government is not a party to the underlying action, the nature of the subpoena proceeding against a federal employee to compel him to testify about information obtained in his official capacity is inherently that of an action against the United States.” Boron Oil Co. v. Downie, 873 F.2d 67, 70–71 (4th Cir.1989). A subpoena served on a federal official acting within the scope of his delegated authority, therefore, is an action against the United States, subject to governmental privilege of immunity. See Commonwealth of Puerto Rico v. United States, 490 F.3d 50, 57, 61 n. 6 (1st Cir.2007).

Torres seeks AUSA Henwood's testimony in a civil Commonwealth court case against his former criminal defense attorney because of knowledge AUSA Henwood acquired in the course of his official duties as a federal prosecutor. See Docket No. 10–3. The Court finds that the Commonwealth court's subpoena proceeding against AUSA Henwood is inherently an action against the United States and thus implicates sovereign immunity. Indeed, federal courts have applied the doctrine of sovereign immunity in situations analogous to this case. See Boron Oil, 873 F.2d at 71 (listing cases); see also Smith v. Cromer, 159 F.3d 875, 879 (4th Cir.1998) (same). Without addressing the issue directly, the First Circuit Court of Appeals has noted that “where a subpoena is issued to a non-party federal government agency in conjunction with litigation in state court, the state court may not enforce the subpoena against the federal government due to federal sovereign immunity.” Puerto Rico, 490 F.3d at 61 n. 6. Sovereign immunity, therefore, prohibits the Commonwealth court from enforcing the subpoena against AUSA Henwood.

When a federal officer removes a case to federal court pursuant to 28 U.S.C. § 1442, as happened in this case, the federal court's jurisdiction is derivative of the state court's jurisdiction. See Arizona v. Manypenny, 451 U.S. 232, 241–43, 101 S.Ct. 1657, 68 L.Ed.2d 58 (1981) ; accord Cromer, 159 F.3d at 879 (“[W]here the state court lacks jurisdiction over the subject matter or the parties, the federal court acquires none upon removal, even though in a like suit originally brought in federal court, the court would have had jurisdiction.”). Indeed, federal courts have consistently held that they lack jurisdiction to enforce a subpoena in cases where the government has removed the subpoena proceedings to federal court. See Puerto Rico, 490 F.3d at 61 n. 6 (listing cases); cf. Edwards v. U.S. Dep't. of Justice, 43 F.3d 312, 316 (7th Cir.1994) (“[I]f the state court lacks the jurisdiction to enforce the subpoenas, the district court will be in no better position than the state court in enforcing the subpoenas once the case is removed to federal court.”); Demers v. Buonanno, Civ. No. 12–676(ML), 2012 WL 5930223, at *5 (D.R.I. Nov. 2, 2012), report and recommendation adopted, 2012 WL 5940568 (D.R.I. Nov. 27, 2012) (“The subpoena power of a federal court cannot be more extensive than its jurisdiction.... [T]he federal court cannot wield equitable or inherent power when it lacks jurisdiction to enforce a state court subpoena in the first place.”). Thus, because the Commonwealth court is without jurisdiction to enforce a subpoena against AUSA Henwood, this Court is...