The opinion of the court was delivered by: Robert L. Wilkins United States District Judge
Before the Court is Plaintiff United States' ("United States") Motion to Quash Subpoena Duces Tecum (Docket No. 2) and Defendant Thomas James Fears' ("Fears") Cross Motion to Remand to Superior Court of the District of Columbia (Docket No. 6). For the reasons set forth below, Fears' Motion to Remand is denied and the United States' Motion to Quash is granted.
Fears, an employee of the Architect of the Capitol ("AOC"), was charged in the Superior Court of the District of Columbia with one count of misdemeanor sexual abuse*fn1 in connection with a workplace incident. In the days leading up to his trial,*fn2 Fears served four subpoenas upon the AOC, seeking: 1) the complete personnel file for the complaining witness; 2) the complete personnel files for Fears; 3) all documents generated from any internal investigation pertaining to or involving Fears; and 4) all documents describing "internal procedures for investigating alleged incidents of misconduct, terminating and/or removing employees from the work place and disciplinary procedures for violating internal guidelines and/or other standards of conduct" (Ex. A to Pl.'s Notice of Removal of Subpoenas). Fears surmises that relevant and potentially exculpatory materials are among the requested documents, a hardly implausible suggestion since the AOC investigated the incident and apparently declined to discipline Fears.
The AOC immediately removed the subpoenas to this Court. The AOC now argues that it cannot be compelled to produce documents pursuant to a Superior Court subpoena because the AOC is protected by the doctrine of sovereign immunity. Fears, in turn, seeks to have this case remanded to the Superior Court and asserts that the AOC has no valid defense to the subpoenas.
A. Fears' Motion to Remand
The AOC has removed the subpoenas to this Court pursuant to 28 U.S.C. § 1442(a)(1). That section provides that:
(a) A civil action or criminal prosecution commenced in a State court against any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:
(1) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.
Under Section 1442(a)(1), which this Circuit has held applies to state subpoena proceedings, removal is proper when it is "'predicated on the allegation of a colorable federal defense.'" In re Subpoena in Collins, 524 F.3d 249, 251 (D.C. Cir. 2008) (quoting Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 412 (D.C. Cir. 1995)).
Fears does not dispute that the Superior Court of the District of Columbia is a "state court" or that the AOC is an "agency" within the meaning of the statute. Rather, he argues, removal is improper because the AOC has no "colorable federal defense" to the subpoenas. As this Court explains below, however, the AOC does enjoy sovereign immunity and that immunity has not been waived in this case. At the very least, sovereign immunity was a "colorable" defense and therefore removal was proper. See In re Collins, 524 F.3d at 251 (stating that "[a] state subpoena commanding a federal agency to produce its records or have its employees testify about information obtained in their official capacities violates federal sovereign immunity" and that a federal employee served with such a subpoena may "remove the subpoena to district court and assert sovereign immunity as a defense."). As such, Fears' Motion to Remand is denied.
B. The AOC's Motion to Quash
The AOC argues that sovereign immunity protects it from being
compelled to produce documents in response to Fears' subpoenas.
Accordingly, the AOC urges this Court to quash those subpoenas. Fears
does not dispute that the AOC enjoys sovereign immunity,*fn3
but rather argues that the immunity was waived when the
United States chose to bring a criminal prosecution against him in
Superior Court. According to Fears, not only did the institution of
the suit operate as a waiver of ...