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In re Subpoena to McLean

United States District Court, D. Vermont

June 4, 2019

In re Subpoena to Daniel McLean in
R.L. Vallee, Inc., et al., No. 617-6-15 Cncv Jacob R. Kent, et al.,


          William K. Sessions III District Court Judge.

         Pending 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 that issue.

         Mr. 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 granted.


         In 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 15.

         On 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.

         In 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 “” 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.

         On June 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.

         According 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.

         Vallee's 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.


         I. Sovereign Immunity

         Mr. 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).

         “The 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 ...

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