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United States v. Institute For College Access & Success

United States District Court, D. Columbia.

March 19, 2014

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

Page 107

For United States of America, Petitioner: Darrell C. Valdez, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington , DC.

For Institute For College Access & Success, Respondent: Laura J. Butte, ARNOLD & PORTER LLP, Washington , DC; Sharon Douglas Mayo, PRO HAC VICE, ARNOLD & PORTER LLP, San Francisco , CA.

Page 108

MEMORANDUM OPINION

AMY BERMAN JACKSON, United States District Judge.

Petitioner United States of America filed a petition seeking to enforce an administrative subpoena issued to respondent The Institute for College Access and Success (" TICAS" ) by the Office of Inspector General of the United States Department of Education (" OIG" ) pursuant to the Inspector General Act of 1978, 5 U.S.C. app. 3 § 6(a)(4). Pet. for Summ. Enforcement of Inspector General Subpoena [Dkt. # 1]. The subpoena seeks documents and emails from TICAS that might shed light on the OIG's investigation of former Department of Education Deputy Undersecretary Robert Shireman. See Mem. in Supp. of Pet. for Summ. Enforcement of Inspector General Subpoena (" Pet. Mem." ) at 1 [Dkt. # 1-1]. TICAS opposed enforcement. Answer to Pet. for Summ. Enforcement of Inspector General Subpoena (" TICAS's Answer" ) [Dkt. # 8].

On February 5, 2013, the Court referred the case to a Magistrate Judge pursuant to Federal Rule of Civil Procedure 72(a) and Local Rule 72.2(a). Order Referring Case to Mag. Judge [Dkt. # 2]. The Magistrate Judge ruled that the motion to enforce the subpoena should be denied for three reasons: 1) OIG exceeded its authority under the Inspector General Act when it issued a subpoena to a nonprofit organization that does not contract with the federal government or receive federal funds; 2) the second request was overbroad; and 3) the subpoena was ambiguous with respect to whether TICAS's compliance was mandatory. See generally Mag. Judge Mem. & Op. (" MJ Mem." ) [Dkt. # 12]; Mag. Judge Order [Dkt. # 11]. The United States filed timely written objections to the ruling, Objections to Mag. Judge's Order & Mem. Op. (" U.S. Obj." ) [Dkt. # 16], and TICAS filed a response to those objections and also reasserted a First Amendment objection to the subpoena that the Magistrate Judge did not address. Mem. of Points & Authorities in Opp. to Gov't Object. (" TICAS's Resp." ) [Dkt. # 18].

After careful review of the Magistrate Judge's ruling, the government's objections, and TICAS's response to those objections, the Court finds that the ruling is contrary to law and clearly erroneous, and therefore, it will not adopt it. For the reasons set forth below, the Court finds OIG's subpoena to be enforceable, and it will grant the United States' petition for summary enforcement and direct TICAS to comply with the subpoena.

BACKGROUND [1]

TICAS is a nonprofit organization that focuses on making higher education more accessible and affordable to people of all backgrounds. TICAS's Resp. at 2; see

Page 109

also Decl. of Laura Asher, Ex. 2 to TICAS's Answer (" Asher Decl." ) ¶ 4 [Dkt. # 8-2]. It achieves this goal by promoting public awareness about student loan legislation and by advocating for student loan legislation reform on behalf of students and their families. Asher Decl. ¶ ¶ 4-6. TICAS has also played an active role in at least four agency negotiated rulemaking procedures involving student loan issues.[2] Id. ¶ 15; TICAS's Resp. at 3 (" Engagement in the regulatory process has been a core element of TICAS' work for many years." ). The organization is funded entirely by foundations, charities, and individual donations. TICAS does not receive federal funds, either directly or indirectly; it does not participate in federal programs; and it does not contract with the federal government. Asher Decl. ¶ 12; see also TICAS's Resp. at 2.

Robert Shireman was the founder of TICAS, and he served as the organization's president from 2004 to April 19, 2009. Asher Decl. ¶ 26; Decl. of Lisa Foster, Ex. 2 to Pet. for Summ. Enforcement of Inspector General Subpoena (" Foster Decl." ) ¶ 6 [Dkt. # 1-2]. He served as a consultant to the Secretary of the Department of Education starting in February 2009 and then became the Deputy Undersecretary of the Department in April of that year. Foster Decl. ¶ 7. In July 2010, Shireman returned to his consulting role, and he ended his employment with the Department on February 11, 2011. Id.

The Inspector General of the Department of Education is currently conducting an investigation into Shireman's activities during his employment with the Department. Pet. Mem. at 1. Specifically, OIG is looking into possible violations of federal ethics laws -- including 18 U.S.C. § 205(a)(2) -- based on alleged communications that took place between Shireman and TICAS between February 2009 and February 2011. See id. at 2-3. OIG has made it clear that Shireman is the focus of its concern, and ...


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