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Brown v. United States Department of Veterans Affairs

United States District Court, N.D. Alabama, Southern Division

August 22, 2017

BARRIS BROWN, Plaintiff,



         This is an action under the Administrative Procedures Act, 5 U.S.C. § 551 (“APA”), in which the plaintiff seeks judicial review of the decision by the defendant U.S. Department of Veterans Affairs (“the VA”) not to allow the taking of the deposition of Dr. Ajmal Khan, an employee of the VA. Mr. Brown is a plaintiff in a personal injury action in a California state court against the manufacturer of the prescription drug Risperdal, alleging that the drug cause him an injury. Mr. Brown seeks the deposition of Dr. Khan to establish that Dr. Khan lawfully prescribed Risperdal to him and to inquire into the specifics of any warnings or other information about the drug given to Dr. Khan by the manufacturer. Pursuant to its Tuohy regulations, [1] the VA has declined to allow Dr. Khan to testify. Plaintiff faces a September 1, 2017, deadline for completion of discovery in the California action. Plaintiff now seeks review of the VA's refusal to allow the deposition, alleging that the VA's decision is arbitrary and capricious.

         I. Factual and Procedural Background

         The complaint in this action was filed originally in this court on July 14, 2017, invoking federal jurisdiction on the basis that it seeks a judicial review, under the APA, of administrative actions taken by a federal agency.[2] After the court held a conference with the parties on August 10, 2017, [3] the United States filed the informal administrative record relevant to this matter on August 15, 2017, and filed its answer on August 21, 2017.[4] The plaintiff also has filed a brief supporting the need to obtain the deposition testimony of Dr. Khan.

         Since at least November 2016, Mr. Brown has attempted to arrange for the taking of deposition testimony from Dr. Khan, as well as the production of certain documents from him. He contends that Dr. Khan treated him as a patient at the VA in Birmingham, prescribing Risperdal for him from 2005 to 2015. A subpoena for document production and testimony was issued by a California state court on November 30, 2016. In addition to Dr. Khan's testimony, it sought the production of the following categories of documents:

         Request No. 1:

YOUR entire file pertaining to PLAINTIFF, Barris D. Brown, including but not limited to all medical records, radiology records, pathology records, correspondence, notes, billing records and telephone records.

         Request No. 2:

YOUR complete and current resume or curriculum vitae, including a complete list of all publications YOU have authored or otherwise been involved in during the last twenty (20) years.

         Request No.3:

Any communication with PLAINTIFFS, and/or their counsel, or any person YOU believe is acting on their behalf.

         Request No.4:

All DOCUMENTS YOU have regarding the side effects of RISPERDAL (risperidone) provided to YOU, YOUR office or any of YOUR office staff by any of the Johnson & Johnson and Janssen entities, their officers, agents, representatives, or employees.

         Request No. 5:

All DOCUMENTS you have regarding samples of RISPERDAL (risperidone) provided to YOU, YOUR office or any of YOUR office staff by sales representatives from any of the Johnson & Johnson and Janssen entities.

         Request No. 6:

All DOCUMENTS in YOUR possession RELATING TO Risperdal and/or risperidone.

(Doc. 17, pp. 24-25). Through a series of emails, the plaintiff has communicated with the Office of General Counsel for the VA, attempting to arrange for the deposition. Counsel also forwarded to the VA an Authorization to Disclose Health and Insurance Information Pursuant to 45 CFR 164.508 (HIPAA) signed by the plaintiff on April 10, 2017.[5]

         In response to the VA's repeated refusal to authorize Dr. Khan to produce documents or testify, the plaintiff submitted a formal request for authorization under the VA's Touhy regulations on April 24, 2017. (Doc. 17, pp. 71-73) On May 31, 2017, another subpoena, identical to the November 2016 subpoenaed was issued by the California court and attached to an application for issuance of a foreign subpoena filed in the Circuit Court of Jefferson County, Alabama, on June 14, 2017. That same day, the Clerk of the Alabama circuit court issued an order for Dr. Khan to appear and testify. (Doc. 17, pp. 84-91).

         Finally, on June 27, 2017, the VA formally responded to the plaintiff's request for testimony and production of documents. (Doc. 17, pp. 102-106). The VA refused to allow Dr. Khan to testify or produce documents, concluding that doing so would not “conserve the time of VA personnel for conducting their official duties….” The response noted that the VA is not directly involved in the California matter and has no “direct or substantial interest” in it. The agency also reasoned that “pertinent information regarding Dr. Khan's treatment of the patient at issue would be recorded in the patient's medical records. The medical records are available with the written authorization of the patient, or with an appropriate court order. I further note that you have the patient's VA medical records.” Finally, the VA asserted that “no advance authorization was requested in accordance with the factors enumerated in 38 C.F.R. § 14.804. While you requested authorization after your first request was denied, you did not meet the regulatory criteria threshold for allowing any testimony.”

         II. Testimony and Production of Documents under Touhy

         The VA has promulgated regulations pursuant to the authority of the Federal Housekeeping Act, 5 U.SC. § 301[6] and Touhy. Touhy regulations “are relevant for internal housekeeping and determining who within the agency must decide how to respond to a federal court subpoena.” United States v. McGraw-Hill Companies, Inc., 2014 WL 12589667, at *2 (C.D. Cal. June 13, 2014), quoting Watts v. Securities and Exchange Commission, 482 F.3d 501, 509-10 (D.C. Cir. 2007). They do not, however, “create an independent privilege to withhold government information or shield federal employees from valid subpoenas.” Id. quoting Exxon Shipping Co. v. U.S. Dep't of Interior, 34 F.3d 774, 780 (9th Cir. 1994). Application of Touhy regulations under § 301 is intended only to provide an orderly process by which a government agency may determine whether a demand for information from it is valid and lawful. Such regulations by themselves do not create a privilege or otherwise authorize the withholding of information.[7]

         The VA's Touhy regulations can be found at 38 C.F.R. § 14.800 et seq. and are intended to establish policy related to “[t]he production or disclosure of official information or records of the Department of Veterans Affairs, ” and “[t]he testimony of present or former VA personnel relating to any official information acquired by any individual as part of that individual's performance of official duties, or by virtue of that individual's official status, in federal, state or other legal proceedings covered by these regulations.” 38 C.F.R. § 14.800 Section 14.803 directs that decisions whether to allow a VA employee to testify or to produce documents or information are guided by the factors enumerated in § 14.804. Of the fifteen decision factors set out there, [8] the VA identified in its decision letter of June 27, 2017, only two factors bearing on its decision to deny permission for Dr. Khan to testify and produce documents related to his treatment of the plaintiff. The letter states:

In reference to 38 C.F.R. § 14.801(b)(2)(I) it is noted that the Department of Veterans Affairs, the Secretary of Veterans Affairs, and the United States, are not parties to this litigation. Additionally, none of them has a direct and substantial interest. These regulations (specifically at § 14.808) essentially prohibit VA personnel from providing testimony without the special written authorization of the agency. This advance authorization should be requested in accordance with the factors enumerated in 38 C.F.R. § 14.804, which we have to date not received. If the Agency has not received a request and has not issued an authorization, the individual may not testify-he has been so directed. United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951) makes clear that where Dr. Khan has been directed pursuant to an undoubtedly valid regulation not to testify, a state court, or the federal court with derivative jurisdiction from the removal, is without power to compel him to testify. See also Codd v. Saks Fifth Avenue, No. 98 Civ. 6426 (MBM), 1998 WL 74402s *l (S.D.N.Y. Oct. 26, 1998).
Therefore, by regulation, the subpoenaed employee may not testify without written permission from the Department. 38 C.F.R. § 14.806.

(Doc. 17, p. 103). Thus, the VA seems to take the position that permission for Dr. Khan will not be granted because (1) an appropriate request for the testimony and information has not been made by the plaintiff under 38 C.F.R. ยง 14.804, and (2) that the VA and the government have no direct ...

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