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EPA v. General Elec. Co.

ELR Citation: 30 ELR 20211
Nos. No. 98-6279, 197 F.3d 592/49 ERC 1877/(2d Cir., 12/14/1999)

The court holds that although a subpoena duces tecum issued by a manufacturer against the U.S. Environmental Protection Agency (EPA) to produce certain discovery documents in a lawsuit in which it was not a party is barred by sovereign immunity, the Administrative Procedure Act (APA) waives that immunity. The court first holds that the subpoena was validly addressed to and served on the appropriate EPA decisionmaker in accordance with EPA regulations. It was clearly understood that the subpoena was addressed to the designated office, without regard to the individual named. Moreover, office holders frequently change in the government, and it was the present holder of the office who in fact responded to the subpoena. The court next holds that enforcement of the subpoena would compel EPA to act and, therefore, is barred by sovereign immunity. A judicial proceeding is considered brought against the sovereign if the result could serve to restrain the government from acting, or to compel it to act. The court, however, holds that the APA provides an express waiver and allows the enforcement of a nonparty subpoena duces tecum for discovery against the government through a motion to compel compliance. Thus, the district court erred in holding that the nonparty subpoena could only be enforced through an independent lawsuit. Such an action would be inadequate because it would result in time-consuming additional litigation that would either render the resulting discovery moot for the original litigation or unnecessarily delay that action. The court, thus, remands the case so that EPA's refusal to comply with the subpoena can be reviewed under the utility company's motion to enforce.

Counsel for Appellee
David S. Jones, Ass't U.S. Attorney
U.S. Attorney's Office
One St. Andrew's Plaza, New York NY 10007
(212) 637-2200

Counsel for Appellant
Virginia A. Seitz
Sidley & Austin
1722 I St. NW, Washington DC 20006
(202) 736-8271

Before Jacobs and Sack, JJ.