United States v. Allen

• Decision Date: 01 December 1983
• Docket Number: No. 80-C-133.,80-C-133.
• Citation: 578 F. Supp. 468
• Parties: UNITED STATES of America, Petitioner, and The Dow Chemical Company, Intervening Petitioner, v. Dr. James R. ALLEN and John Van Miller, Respondents, and James P. Wachtendonk, Mary S. Wachtendonk, Ree Anne Wachtendonk and Zachary James Wachtendonk; Robert W. Green, now deceased, and Cheryl A. Green, the widow of the veteran Robert W. Green, now deceased; Charles Chapman and Kuniko Chapman, individually and on behalf of each of the "Vietnam Veterans" who have been affected, individually and on behalf of those so unfortunate as to have been similarly affected by the toxic effects of phenoxy herbicides such as 2, 4, 5-trichlorophenoxy herbicides such as 2, 4, 5-trichlorophenoxy aliphatics manufactured, formulated, advertised, promoted, marketed and sold, individually and collectively, by the corporate Defendants in MDL381 although known to be contaminated with the toxic synthetic organic chemical 2, 3, 7, 8-tetrachlorodibenzo p-dioxin (TCDD or "dioxin"), Intervening Respondents.
• Court: U.S. District Court — Western District of Wisconsin

578 F. Supp. 468

UNITED STATES of America, Petitioner, and The Dow Chemical Company, Intervening Petitioner, v. Dr. James R. ALLEN and John Van Miller, Respondents, and James P. Wachtendonk, Mary S. Wachtendonk, Ree Anne Wachtendonk and Zachary James Wachtendonk; Robert W. Green, now deceased, and Cheryl A. Green, the widow of the veteran Robert W. Green, now deceased; Charles Chapman and Kuniko Chapman, individually and on behalf of each of the "Vietnam Veterans" who have been affected, individually and on behalf of those so unfortunate as to have been similarly affected by the toxic effects of phenoxy herbicides such as 2, 4, 5-trichlorophenoxy herbicides such as 2, 4, 5-trichlorophenoxy aliphatics manufactured, formulated, advertised, promoted, marketed and sold, individually and collectively, by the corporate Defendants in MDL381 although known to be contaminated with the toxic synthetic organic chemical 2, 3, 7, 8-tetrachlorodibenzo p-dioxin (TCDD or "dioxin"), Intervening Respondents.

No. 80-C-133.

United States District Court, W.D. Wisconsin.

June 15, 1982.

Opinion on Award of Attorneys' Fees December 1, 1983.

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Richard E. Cohen, Asst. U.S. Atty., Madison, Wis., for the United States of America.

Richard J. Lewandowski, DeWitt, Sundby, Huggett & Schumacher, S.C., Madison, Wis., for Dow Chemical Co.

Robert K. Aberg, Madison, Wis., for respondents Allen and Van Miller.

David J. Ghilardi, Madison, Wis., for intervening respondents Vietnam Veterans.

CRABB, Chief Judge.

Intervenors, James P. Wachtendonk, et al. (veterans), bring this motion for attorney's fees on behalf of both the veterans and the respondents, Allen and Van Miller. The matter was originally before the court on a petition brought by the United States to enforce administrative subpoenas issued to respondents by an Environmental Protection Agency Administrative Law Judge. The administrative law judge issued the subpoenas at the request of intervening petitioner, Dow Chemical Company, over the objection of the Office of General Counsel of the Environmental Protection Agency. The subpoenas were issued in the context of preparation for an adjudicatory hearing on possible cancellation by the government of certain herbicides manufactured by Dow. The information Dow sought by way of these subpoenas was all the notes, reports, working papers, and raw data which related to a continuing, incomplete, university study conducted by respondent Allen of the effects on primates of exposure to an herbicide that was a subject of the cancellation hearing.

In an order dated May 23, 1980, the court granted the motion of Dow Chemical Company to intervene on the side of the United States, and a similar motion by the veterans to intervene on the side of respondents; both interventions were granted as of right under Rule 24(a), Federal Rules of Civil Procedure. In granting the veterans' motion, I noted that the source of their interest in the subpoena enforcement action stemmed from their participation as class-action plaintiffs in Multi-District Litigation # 381, known as the "Agent Orange" litigation, in which Dow Chemical is a defendant. The veterans urged, and I accepted as true for the purpose of considering the intervention motion, that the Allen study was vital in the determination of whether exposure to the herbicide Dow manufactured was the proximate cause of the injuries plaintiffs complained of in the Agent Orange case, and that the study would be aborted were respondent Allen forced to obey the subpoena and release the data prior to the study's completion.

After considering the arguments of all parties, I refused to enforce the subpoenas, holding that the probative value of the information sought by Dow was minimal, because of the incompleteness of the study, and did not outweigh the substantial burden enforcement would place on respondents, a burden which could not be relieved by a protective order. United States v. Allen, 494 F.Supp. 107 (W.D.Wis.1980). In an appeal pursued only by Dow Chemical, the Court of Appeals for the Seventh Circuit affirmed the denial of the enforcement to the subpoenas. Dow v. Allen, 672 F.2d 1262 (7th Cir.1982).

DECISION

Under the "American rule," a court cannot grant a motion for attorney's fees unless there is specific statutory authorization for the award or evidence of bad faith or harassment. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975).

In an argument which implicitly recognizes this rule, the veterans and respondents Allen and Van Miller assert that authority for an attorney's fees award can be traced to section 6(d) of the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. § 136d(d),¹ a section that directs the administrative law judge to order payment of reasonable fees and expenses to witnesses required to testify. However, it is clear that section 6(d) of Federal Insecticide, Fungicide and Rodenticide Act relates to the payment of witness fees, not attorney's fees, a distinction that is reflected also in the pertinent federal regulation, 40 CFR § 164.71.²

Alternatively, the veterans and respondents Allen and Van Miller assert that authority to grant attorney's fees is provided by Rule 37(a)(4), Federal Rules of Civil Procedure. At first blush, it does not seem that this provision entitles either respondents or the intervening veterans to attorney's fees, because Rule 37 relates to sanctions applicable to discovery motions ordinarily made in the course of civil litigation. However, a more careful review of the Federal Rules of Civil Procedure discloses a route that leads ultimately to the provisions of Rule 37(a)(4). The journey begins with Rule 81(a)(3), Federal Rules of Civil Procedure, which reads in relevant part:

These rules apply to proceedings to compel the giving of testimony or production of documents in accordance with a subpoena issued by an officer or agency of the United States under statute of the United States except as otherwise provided by statute or by rules of the district court or by order of the court in the proceedings.

The next stop along the way is at Rule 45, Federal Rules of Civil Procedure, which governs the issuance of subpoenas. The Notes of the Advisory Committee on Rules following Rule 45 state that Rule 45 is not applicable to the enforcement by district courts of subpoenas issued by administrative officials. I take these comments to mean, however, that Rule 45 does not govern either the standards for issuance of an administrative subpoena that would be considered by a district court in enforcing such subpoenas, or the method of application for a subpoena, or the territorial limits on service, where these matters are regulated by the relevant substantive legislation, e.g., Federal Insecticide, Fungicide and Rodenticide Act. Otherwise, following the dictates of Rule 81(a)(3), Federal Rules of Civil Procedure, the remaining provisions of Rule 45 must control to the extent they are not preempted specifically by the Federal Insecticide, Fungicide and Rodenticide Act. The Federal Insecticide, Fungicide and Rodenticide Act is silent on the issue of awarding attorney's fees to the prevailing party in an enforcement action.

The subpoenas Dow sought were for the purpose of conducting discovery concerning the bases for the testimony respondent Allen was to give as a witness at the cancellation hearing.³ Dow did not seek the subpoenas to compel the production of documents at the hearing. An administrative subpoena issued for discovery purposes fits under the category of Rule 45(d)(1), Federal Rules of Civil Procedure; this provision directs a person to produce documents and other tangible items at the time his or her deposition is taken.

Dow might be heard to argue that because it had not scheduled Allen's deposition, Rule 45(b) applies. (Rule 45(b) governs the issuance of a subpoena duces tecum which simply commands a person to produce specified documents. An individual who objects to a subpoena under Rule 45(b) is limited to making (1) a motion to quash or modify the subpoena, apparently without an opportunity to seek an award of attorney's fees under Rule 37(a)(4), or (2) a motion that the court condition denial of the motion to quash or for modification upon advancement of the costs of producing the documents by the party seeking the subpoena.) However, Rule 45(b) governs subpoenas directing an individual to produce documents or tangible items at a trial or a hearing. Rule 45, subdivision (b), Notes of the Advisory Committee, Federal Rules of Civil Procedure. Production of documents from a non-party for discovery purposes can be compelled "only by a subpoena duces tecum issued under Rule 45(d)(1). 8 Wright & Miller § 2108 (1970)." Fisher v. Marubeni Cotton Corp., 526 F.2d 1338, 1341 (8th Cir.1975). See also Ghandi v. Police Dept. of City of Detroit, 74 F.R.D. 115, 118 n. 3 (E.D.Mich.1977); McLean v. Prudential Steamship Co., 36 F.R.D. 421, 426 (E.D.Va.1965). Thus, even though Dow did not attempt to depose respondent Allen, Rule 45(d)(1) is the appropriate provision to look to in determining whether there is statutory authority under which respondents and intervenors may be entitled to an award of attorney's fees. Rule 45(d)(1) permits a party seeking the subpoena to inspect and copy documents which contain matters within the scope of Rule 26(b), "but in that event the subpoena will be subject to the provisions of Rule 26(c) and subdivision (b) of this rule Rule 45."⁴ Rule 26(c) concerns the issuance of a protective order and authorizes the court to make any order which justice requires to protect a person from, inter alia, unduly burdensome discovery, including ordering that the discovery not be had; it also states that the provisions of Rule 37(a)(4) apply to the award of expenses.⁵ Rule 37(a)(4) states that attorney's fees may be awarded to the person who prevails.⁶ End of...