United States District Court, M.D. Tennessee, Nashville Division
MEMORANDUM OPINION AND ORDER
H.SHARP UNITED STATES DISTRICT JUDGE
before the Court is Defendant Tennessee Walking Horse
Breeders' and Exhibitors' Association's
(“TWHBEA”) Motion for Reimbursement. (Docket No.
30). Plaintiff United States of America (“United
States”) filed a Response. (Docket No. 36). For the
following reasons, the Court will grant Defendant
TWHBEA's Motion for Reimbursement subject to the
is a non-profit corporation that “maintains a private
registry system for Tennessee Walking Horses that contains
information such as a horse's registration records,
ownership information, leasing records, and records
reflecting the transfer of ownership of title.” (Docket
No. 6 at 2). Much of this information is maintained in a
digital system called iPeds (Internet Pedigree System).
Animal and Plant Health Inspection Service
(“APHIS”) is part of the United States Department
of Agriculture and “maintains an active inspection and
enforcement presence at the Tennessee Walking Horse shows to
detect ‘soring[.]'” (Docket No. 36 at 1).
Soring is “a practice of deliberately injuring horses
to alter their gait that violates the Horse Protection
Act[.]” (Id.). When the APHIS initiated an
investigation concerning horses that had been deemed
“sore, ” it issued eight subpoenas to TWHBEA,
requesting certain information for over 200 horses, such as
the ownership history and iPeds horse information. (Docket
No. 36 at 3; Docket No. 30 at 2). These subpoenas were issued
between September 2015 and February 2016. (Docket No. 1 at
February 2016 and November 2016, the parties argued about
TWHBEA's lack of compliance with the eight subpoenas, as
TWHBEA requested fees for the cost of compliance. Seemingly
in an effort to assist TWHBEA with the cost of compliance,
the United States informed TWHBEA that it would be willing to
accept only the information available on the iPeds
database-the iPeds horse information and owner history.
(Docket No. 36 at 3).
November 8, 2016, the Court granted the United States'
Petition to Enforce Eight Administrative Subpoenas and
allowed the TWHBEA the ability “to make application for
reimbursement of the costs of compliance once compliance is
complete.” (Docket No. 27). A deadline for TWHBEA to
comply with the subpoenas was set for December 19, 2016.
(Docket No. 29). A box of information complying with the
subpoenas was received by the United States on December 20,
2016. (Docket No. 36-3 at 1). Subsequently, TWHBEA filed the
currently pending Motion for Reimbursement of the costs
associated with this, in the amount of $8, 926.31. (Docket
No. 30 at 3).
of the Federal Rules of Civil Procedure governs the use of
subpoenas in the discovery process. It states that a court
“must protect a person who is neither a party nor a
party's officer from significant expense resulting from
compliance” with a subpoena. Fed.R.Civ.P.
45(d)(2)(B)(ii). Although the United States argues that Rule
45 of the Federal Rules of Civil Procedure does not apply to
administrative subpoenas, the 1991 amendments make clear that
subpoenas issued by administrative agencies are encompassed
in the Rule:
Although the subpoena is in a sense the command of the
attorney who completes the form, defiance of a subpoena is
nevertheless an act in defiance of a court order and exposes
the defiant witness to contempt sanctions. . . . In CAB
v. Hermann, 353 U.S. 322 (1957), the Court approved as
established practice the issuance of administrative
subpoenas as a matter of absolute agency right. And in
NLRB v. Warren Co., 350 U.S. 107 (1955), the Court
held that the lower court had no discretion to withhold
sanctions against a contemnor who violated such subpoenas.
The 1948 revision of Rule 45 put the attorney in a position
similar to that of the administrative agency, as a public
officer entitled to use the court's contempt power to
investigate facts in dispute.
Fed. R. Civ. P. 45 note (1991) (emphasis added).
United States also argues that TWHBEA is not a nonparty to
the litigation, and therefore Rule 45(d)(2)(B)(ii) does not
apply. (Docket No. 36 at 6). However, because the targets of
the underlying investigation were the horses' owners, and
the United States has not alleged that TWHBEA itself
committed any wrongdoing in regards to the
“soring” of horses, the Court finds TWHBEA to be
a nonparty, and thus Rule 45(d)(2)(B)(ii) is applicable.
the Court has the power to require reimbursement of
TWHBEA's costs to comply with the subpoena, given that
there were eight different subpoenas requesting information
for over 200 horses. However, the Court finds the hourly rate
of $100 for TWHBEA's employees too high. The Court will
order that the United States reimburse TWHBEA for the costs
of compliance at an hourly rate of $50, which is equitable in
light of the repeated attempts of the United States to confer
with TWHBEA to narrow down the scope of the subpoenas and
lessen the workload imposed upon TWHBEA. Furthermore, the
Court will not require reimbursement for the extra costs
associated with tasks the United States did not require, such
as the “file backers” and “copy
paper.” (Docket No. 35). Adding the hours worked by the