United States District Court, W.D. Tennessee, Eastern Division
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT, DENYING PLAINTIFF'S CROSS-MOTION FOR SUMMARY
JUDGMENT, AND DENYING PLAINTIFF'S MOTION TO SUPPLEMENT
THOMAS ANDERSON UNITED STATES DISTRICT CHIEF JUDGE.
February 10, 2017, Plaintiff Rolf Hazlehurst filed a
complaint seeking judicial review of the final agency action
of the Centers for Disease Control and Prevention
(“CDC”), denying his request for permission to
depose Dr. William Thompson, an employee of the CDC. (ECF No.
1.) The complaint was filed pursuant to the Administrative
Procedure Act (“APA”), 5 U.S.C. § 701,
et seq. Plaintiff contends that the denial of his
request was arbitrary and capricious. Plaintiff seeks a
judgment declaring that he may depose Dr. Thompson and an
injunction prohibiting the CDC from stopping the
scheduling conference held on May 1, 2017, the parties agreed
that the matter should be decided on the briefs, and a joint
administrative track scheduling order was entered that same
day. (ECF Nos. 25, 26.) On May 15, 2017, Defendant CDC filed
a copy of the administrative record. (ECF No. 27.) Defendant
has filed a motion for summary judgment (ECF No. 28), and, in
response, Plaintiff filed a cross-motion for summary
judgment. (ECF No. 30.) Defendant has filed its response to
Plaintiff's cross-motion. (ECF No. 35.) Additionally,
Plaintiff has filed a motion to supplement the administrative
record. (ECF No. 29.) Defendant has filed a response opposing
Plaintiff's motion to supplement. (ECF No. 34.)
reasons set forth below, Defendant's motion for summary
judgment is GRANTED, Plaintiff's cross-motion for summary
judgment is DENIED, and Plaintiff's motion to supplement
the administrative record is DENIED.
to 5 U.S.C. § 301, a federal agency may enact procedures
for responding to subpoenas and other requests for testimony.
Agencies may “prescribe regulations of the government
of [its] department, the conduct of its employees, the
distribution and performance of its business, and the
custody, use, and preservation of its records, papers, and
property.” Id. These regulations are known as
Touhy regulations, and requests made under them are
called Touhy requests. See United States ex rel.
Touhy v. Ragen, 340 U.S. 462 (1951) (upholding
agencies' authority to create such regulations).
“When a litigant seeks to obtain documents from a
non-party federal governmental agency, ” for use in a
state court action, the “state-court litigant must
request the documents from the federal agency pursuant to the
agency's [Touhy] regulations . . . . If the
agency refuses to produce the requested documents, the sole
remedy for the state-court litigant is to file a collateral
action in federal court under the APA.” Rimmer v.
Holder, 700 F.3d 246, 262 (6th Cir. 2012) (quoting
Houston Bus. Journal, Inc. v. Office of the
Comptroller of the Currency, 86 F.3d 1208, 1211-12
(D.C. Cir. 1996)).
Touhy regulations of the Department of Health and
Human Services (“DHHS”) are found at 45 C.F.R.
§§ 2.1-2.6. Section 2.1 provides in pertinent part
that the “availability of Department employees to
testify in litigation not involving federal parties is
governed by the Department's policy to maintain strict
impartiality with respect to private litigants and to
minimize the disruption of official duties.” 45 C.F.R.
§ 2.1(b). Additionally:
No employee or former employee of the DHHS may provide
testimony or produce documents in any proceedings to which
this part applies concerning information acquired in the
course of performing official duties or because of the
person's official relationship with the Department unless
authorized by the Agency head pursuant to this part based on
a determination by the Agency head, after consultation with
the Office of the General Counsel, that compliance with the
request would promote the objectives of the Department.
45 C.F.R. § 2.3. The procedures under which a party may
request the testimony of a DHHS employee are set forth in
All requests for testimony by an employee or former employee
of the DHHS in his official capacity and not subject to the
exceptions set forth in § 2.1(d) of this part must be
addressed to the Agency head in writing and must state the
nature of the requested testimony, why the information sought
is unavailable by any other means, and the reasons why the
testimony would be in the interest of the DHHS or the federal
45 C.F.R. § 2.4(a). Thus, a party requesting testimony
from a current DHHS employee, such as Dr. Thompson, must
state in writing: (1) the nature of the testimony sought; (2)
why it is unavailable through other means; and (3) why the
testimony would be in the interest of the DHHS or the federal
September 9, 2016, Plaintiff sought permission to depose Dr.
Thompson, pursuant to the Touhy regulations of the
DHHS. Plaintiff sought testimony from Dr. Thompson as part of
his medical malpractice action against The Jackson Clinic
Professional Association (“the Jackson Clinic”)
and Dr. E. Carlton Hays pending in the Circuit Court of
Madison County, Tennessee.Plaintiff alleges that certain
violations of the applicable standard of care by Dr. Hays and
the Jackson Clinic in the administration of vaccines to his
son caused his son to develop autism.
of his duties as a CDC employee, Dr. Thompson co-authored a
2004 study entitled Age at First Measles-Mumps-Rubella
Vaccination in Children with Autism and School-matched
Control Subjects: A Population-Based Study in Metropolitan
Atlanta (“the MMR Study”). Plaintiff
contends that Dr. Thompson's deposition is necessary
because the state court defendants are relying on the MMR
Study to show that their alleged negligence was not a
cause-in-fact of Plaintiff's son's autism. According
to Plaintiff, Dr. Thompson's deposition testimony may
cast doubt on the validity of the data used in the MMR Study
and whether the assumptions and conclusions drawn from that
data are reliable.
Thompson had no involvement in the facts giving rise to the
state court litigation and cannot be deposed as a fact
witness. Neither Dr. Thompson nor the CDC is a party to the
state court action.
September 22, 2016, CDC Director Thomas R. Frieden denied
Plaintiff's Touhy request on the grounds that
(1) the information Plaintiff seeks from deposing Dr.
Thompson is available by other means; (2) Plaintiff's
request failed to adequately explain how Dr. Thompson's
deposition in private litigation would promote the objectives
and interests of the DHHS or the CDC; and (3) compliance with
Plaintiff's request would disrupt DHHS operations by
requiring a current CDC employee to forego his official
duties to participate in private litigation, which would
hinder the CDC's ability to control the spread of
infectious diseases and compromise its impartiality in future
state court litigation, investigations, and lawsuits.
Director Frieden consulted with the Office of the General
Counsel prior to making his decision.
filed this action on February 10, 2017, seeking review of