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United States v. The Institute for College Access & Success

United States District Court, District Circuit

July 26, 2013

UNITED STATES OF AMERICA, Petitioner,
v.
THE INSTITUTE FOR COLLEGE ACCESS & SUCCESS, Respondent.

MEMORANDUM OPINION

ALAN KAY, Magistrate Judge.

The United States ("Government") seeks to enforce subpoena against The Institute for College Access and Success ("TICAS"), issued by the Office of the Inspector General of the Department of Education ("ED OIG"). U.S. District Court Judge Amy Berman Jackson referred the case to the undersigned for a determination. Order of Referral [2]. Pending before the Court are the Government's Petition for Summary Enforcement of Inspector General Subpoena ("Petition") [1], with a Memorandum in Support [1-1] ("Mem."), TICAS's Answer to the Petition ("Answer") [8] with a Memorandum of Points and Authorities in Opposition ("Opp.") [8-1], and the Government's Reply to the Opposition ("Reply") [10]. The Court held a Motions Hearing on April 30, 2013. Minute Entry 4/30/2013. For the reasons outlined below, the Court DENIES the Government's Petition for Summary Enforcement of the Inspector General Subpoena against TICAS.

BACKGROUND

The Institute for College Access and Success is a nonprofit 501(c)3 organization located in Oakland, California. Decl. of Lauren Asher [8-2] at ¶ 4. Through research, public education, and lobbying, TICAS works to make higher education accessible to all communities, especially those that are underrepresented in higher education. Id. TICAS accomplishes its objectives through a variety of issue briefs, public online tools, coalition building, and advice to policy makers. Id. at ¶¶ 6-11. TICAS is independent and nonpartisan, receiving funding through a combination of sources that include foundation grants, public charities, and individual donors. Id. at ¶¶ 4, 12. TICAS does not receive any federal funding, either directly or indirectly, nor does it hold any contracts with the federal government. Id. at ¶ 12.

Mr. Robert Shireman founded TICAS and served as its president from 2004 to April 19, 2009. Decl. of Lauren Asher [8-2] at ¶ 26; Decl. of Lisa Foster [1-2] at ¶ 6. In February 2009, he was appointed as a consultant to the ED Secretary and on April 20, 2009, he became the ED Deputy Undersecretary. Decl. of Lisa Foster [1-2] at ¶ 7. He returned to a consultant role on July 4, 2010, and ceased working for the ED on February 11, 2011. Id. The Office of the Inspector General of the Department of Education is currently investigating whether former ED Deputy Undersecretary Shireman violated federal ethics law, including 18 U.S.C. § 205(a)(2). Mem. [1-1] at 1. The Government alleged that Mr. Shireman communicated with TICAS and utilized his TICAS email account during his government appointment, specifically between the dates of February 3, 2009, and February 11, 2011. Id. at 2-3. Special Agent Lisa Foster acknowledged to TICAS's counsel that TICAS was not a subject of the investigation. Decl. of Sharon Mayo [8-3] at ¶ 3.

The ED OIG issued and served a subpoena duces tecum on TICAS by mail on June 28, 2012, and TICAS accepted service through counsel. Decl. of Lisa Foster [1-2] at ¶ 9. The subpoena demanded production of the following documents

For the period of February 3, 2009, to February 11, 2011:

1. Any and all communications (including email), and documentation of correspondence, between TICAS and Robert Shireman, including but not limited to communications between Pauline Abernathy and Robert Shireman.
2. To the extent not included above, any and all documents concerning Robert Shireman and/or any U.S. Department of Education negotiated rulemaking, including but not limited to documents related to "gainful employment" or "incentive compensation."
3. Any and all communications (including emails) and documents related to the student loan repayment meeting/conference hosted by TICAS and attended by Robert Shireman in April 2010.

Attach. 1 of Decl. of Lisa Foster [1-2] at 15.

TICAS, through counsel, informed Special Agent Foster via emailed letter on July 19, 2012, that it objected to the subpoena on nine grounds but was "reviewing its systems to see what documents reasonably can be retrieved and what it will voluntarily produce." Ex. 2 of Decl. of Sharon Mayo [5-3] at 25-27. On August 8, 2010, TICAS provided emails and documents relating to the student loan repayment meeting that occurred on April 29 and 30, 2010, in response to subpoena request 3. Attach. 4 of Decl. of Lisa Foster [1-2] at 32-36. Special Agent Foster contacted TICAS's counsel on August 20, 2012, to request additional documents, and on August 22, 2012, she emailed that the ED OIG would seek judicial enforcement if TICAS did not produce documents by August 31, 2012. Decl. of Lisa Foster [1-2] at ¶¶ 16-17. TICAS's counsel confirmed that it produced the documents it intended to provide. Id. at ¶ 18. In an August 28, 2012, telephone call, TICAS counsel confirmed to Benjamin Shapiro, Assistance Counsel to the ED OIG, that TICAS continued to object to the subpoena and had voluntarily complied to the extent it was willing. Decl. of Sharon Mayo [8-3] at ¶ 22. During the hearing before this Court, the Government described the conversation between Special Agent Foster and TICAS's counsel as TICAS was told "they could treat [the subpoena] as voluntary for now, and if they did not comply, then it would become mandatory." Hearing 4/30/2013. Between the end of August 2012 and the filing of the Government's petition for enforcement on February 5, 2013, there was no communication between the parties. Decl. of Sharon Mayo [8-3] at ¶ 23.

In its Reply, the Government explicitly stated that "the subpoena should be read more narrowly than the broad brush that TICAS now attempts to use in describing the requests" and that TICAS's counsel was told "the subpoena's request for documents relating to negotiated rulemaking' should be read to be limited solely to those documents concerning Mr. Shireman." Reply [10] at 2-3. During the hearing, the Government noted that the subpoena requests "have to be taken in context not only with the subpoena itself but with the conversations that occurred [between Special Agent Foster, Government counsel, and TICAS counsel]." Hearing 4/30/2013. The Government explicitly told the Court that it was seeking the following: as to request 1, "emails between TICAS and TICAS personnel and Mr. Shireman"; as to request 2, "all documents concerning Shireman...having his name on it...and the Department of Education negotiated rulemaking, " specifically noting that the terms should be searched in combination; and as to request 3, the Government stated, "number 3 is the one that they did respond to and we believe that the response to number 3 is sufficient." Id. Based on the Government's representations during the hearing, the Court determines that the ...


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