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Cardozo Law Review





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The question of judicial review of a federal agency's response to a third-party subpoena is highly litigated and yet barely addressed in academic literature. For seventy years, this issue has been governed by the Supreme Court's holding in United States ex rel. Touhy v. Ragen, a case that spawned its own vocabulary, its own legal doctrine, and its own circuit split. The confusion has left four circuit courts entrenched, the remainder waffling, and the district courts largely on their own to sort out a workable standard.

This Article establishes that the circuit courts' approaches to judicial review of an agency's noncompliance with a subpoena are largely divided over the academic question of sovereign immunity. For the Fourth and Eleventh Circuits, only the Administrative Procedure Act (APA) provides the necessary waiver of sovereign immunity that allows a court to review agency action; accordingly, review of an agency's failure to comply with a subpoena is analyzed under the APA's “arbitrary and capricious” standard. For the Ninth and D.C. Circuits, the federal courts have broad, implicit power over discovery, and Federal Rule of Civil Procedure 45 is applied as it would be in all other cases. This Article seeks to reconcile these competing lines of authority by proposing that the APA's waiver of sovereign immunity still applies when an agency runs afoul of discovery standards contained in Federal Rule 45.

This Article attempts to reunite the circuits because district court case law shows that confusion over the appropriate standard is a "distinction without a difference." For lower courts and litigants attempting to navigate the circuit split, it is worth knowing that the question largely comes down to the impact third-party subpoenas have on agency time, money, and statutory mission. By framing judicial review accordingly, consistent results can be achieved, despite the geographic location of the court.

Recommended Citation

Zoe Niesel, Terrible Touhy: Navigating Judicial Review of an Agency's Response to Third-Party Subpoenas, 41 Cardozo L. Rev. 1499 (2020).

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