United States District Court, D. Vermont
OPINION AND ORDER
William K. Sessions III District Court Judge.
before the Court is Daniel McLean's motion to quash a
subpoena issued by R.L. Vallee, Inc. (“Vallee”).
Mr. McLean is employed in the Office of United States Senator
Bernie Sanders. Vallee is a defendant in a state court civil
action, brought by private litigants, accusing it of gasoline
price fixing. In recent years, Senator Sanders has conducted
hearings and sought information from a variety of sources on
the issue of gasoline pricing in Vermont. Vallee's
subpoena to Mr. McLean seeks deposition testimony and
wide-ranging document production, including but not limited
to internal Senate communications, primarily with respect to
McLean and the Office of Senator Sanders removed the subpoena
to this Court pursuant to 28 U.S.C. §§ 1442(a) and
1446. The motion to quash argues that the subpoena is barred
by sovereign immunity and the United States
Constitution's Speech or Debate Clause. The motion also
contends that the document request is unduly burdensome. For
the reasons set forth below, the motion to quash is
mid-2012, Senator Sanders began publicly questioning the
pricing of gasoline throughout Vermont. That same year, he
wrote to the Federal Trade Commission (“FTC”)
expressing his concerns. He also held a hearing on the issue
in Burlington, Vermont. On numerous occasions, Senator
Sanders has spoken on the Senate floor and sponsored
legislation relating to the cost of gasoline. ECF No. 7 at
September 17, 2014, Mr. McLean emailed Ryan Kriger, a Vermont
Assistant Attorney General, in response to the Attorney
General's expressed desire for gasoline pricing data. ECF
No. 10-14 at 2 (“I have some ideas on how you can get
some pricing data that the AG said he was looking
for.”). On September 25, 2014, Senator Sanders met in
his Burlington office with AAG Kriger, Mr. McLean, and
Assistant Attorney General Wendy Morgan. AAG Kriger has been
deposed and was asked about his handwritten notes from that
meeting. His notes include a comment stating: “Bring
case just to make a point.” ECF No. 10-16 at 18. AAG
Kriger testified that the statement was made in “the
context of spitballing and brainstorming, ” and that he
did not “know if it was proposed seriously.”
Id. at 19. The context of the statement reflected in
AAG Kriger's notes remains uncertain.
November 2014, Attorney Joshua L. Simonds wrote to Senator
Sanders' office and stated that he was looking into
advocating for consumers on the issue of gasoline pricing.
ECF No. 10-21 at 2. Attorney Simonds also asked the Senator
to share relevant materials. Mr. McLean offered to meet with
Attorney Simonds to discuss the issue and provide him with
data. ECF No. 10-22 at 2. Between February and April, 2015,
Mr. McLean also corresponded with attorneys from the law firm
of Bailey & Glasser. In his communications with Bailey
& Glasser, Mr. McLean used his private
“gmail.com” account rather than his official
Senate email. ECF No. 10-23 at 4. One such email, in response
to a question from Bailey & Glasser, attached a copy of a
press release issued by Senator Sanders' office on July
6, 2012 relating to gasoline pricing in Vermont. ECF No.
10-24 at 2.
22, 2015, Bailey & Glasser, together with Attorney
Simonds, filed a putative class action against Vallee and
others in state court accusing the defendants of price
fixing. Between 2012 and 2014, Vallee was reportedly one of
three wholesalers who, when aggregated, owned over 50% of the
gas stations in the three counties that comprise northwest
Vermont. ECF No. 10-23 at 2-3.
to the Office of Senate Legal Counsel, all documents provided
by Mr. McLean to plaintiffs' counsel have been produced
in the course of the state court litigation. ECF No. 7 at 3.
On November 9, 2018, Vallee served a subpoena on Mr. McLean
seeking thirty categories of additional documents spanning
the time period January 1, 2009 to September 22, 2015. Mr.
McLean's pending motion asks the Court to quash that
subpoena seeks a wide range of documents, including both
internal and external Senate communications relating to gas
pricing legislation. Specifically, the subpoena commands the
production of communications regarding either R.L. Vallee or
Rodolphe (“Skip”) Vallee; communications about
competition in the gasoline business; communications about
actual or possible investigations regarding such competition;
communications about actual or possible legislative hearings
regarding such competition; communications with the Vermont
Attorney General's office; communications with the media;
meetings or communications with federal agencies about
gasoline pricing or competition; communications with other
United States Senators regarding gasoline prices and
competition; and meetings or communications with class action
counsel. The subpoena also seeks documents reflecting
communications regarding the possible 2012 or 2018 United
States Senate candidacies of either Skip Vallee or former
Vermont Governor James Douglas. ECF No. 10-2 at 4-7.
McLean first contends that the information sought by the
subpoena is barred by Congress's sovereign immunity.
Sovereign immunity protects the United States government from
suit unless the government has consented to be sued. See
FDIC v. Meyer, 510 U.S. 471, 475 (1994) (“Absent a
waiver, sovereign immunity shields the Federal Government and
its agencies from suit.”); Lehman v. Nakshian,
453 U.S. 156, 160 (1981). A waiver of sovereign immunity
cannot be implied, and must instead be unequivocally
expressed. United States v. Mitchell, 445 U.S. 535,
538 (1980) (citation omitted). The party seeking relief
against the government bears the burden of showing that its
claims fall within an applicable waiver. Makarova v.
United States, 201 F.3d 110, 113 (2d Cir. 2000).
doctrine of sovereign immunity applies with equal force to .
. . subpoenas for documents or testimony.” SEC v.
Comm. on Ways & Means of the U.S. House of
Representatives, 161 F.Supp.3d 199, 216 (S.D.N.Y. 2015)
(citing United States EPA v. Gen. Elec. Co., 197
F.3d 592, 597 (2d Cir. 1999), opinion amended on
reh'g, 212 F.3d 689 (2d Cir. 2000)); see also In
re SEC ex rel. Glotzer, 374 F.3d 184, 190 n.7 (2d Cir.
2004) (sovereign immunity bars a subpoena for testimony
because such a subpoena “constitutes an attempt to
compel the [government] to act”)). Subpoena proceedings
“fall within the protection of sovereign immunity even
though they are technically against the federal employee and
not against the sovereign.” Boron Oil Co. v.
Downie, 873 F.2d 67, 71 (4th Cir. 1989). With respect to
any waiver of sovereign immunity for subpoenas, the Second
Circuit has noted that
[t]he rules governing discovery and the issuance of subpoenas
duces tecum for the production of documents by third parties
include no express waivers of the type necessary to subject
the government to compulsion in judicial proceedings to which
it is not a party. The only express waiver to be found in