United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 14, 2008 Decided April 29, 2008 

No. 07-5358 

IN RE: SUBPOENA IN COLLINS ET AL. 

DAVID VOYLES, 

APPELLEE

V. 

SMITHKLINE BEECHAM CORPORATION, D/B/A GLAXOSMITHKLINE INC., 

APPELLANT

Appeal from the United States District Court 

for the District of Columbia 

(No. 07ms00333) 

 Lauren S. Reeder argued the cause for appellant. With 

her on the briefs was James K. Vines.

 Kenneth Adebonojo, Assistant U.S. Attorney, argued the 

cause for appellee. With him on the brief were Jeffrey A. 

Taylor, U.S. Attorney, and R. Craig Lawrence, Assistant U.S. 

Attorney. 
2 

 Before: HENDERSON, BROWN and KAVANAUGH, Circuit 

Judges. 

Opinion for the Court filed by Circuit Judge BROWN. 

Circuit Judge HENDERSON concurs in the judgment. 

BROWN, Circuit Judge: GlaxoSmithKline (GSK) appeals 

a district court order quashing a subpoena commanding David 

Voyles, a Smithsonian employee, to testify at a deposition. 

GSK planned to ask him about his personal observations of a 

co-worker’s behavior. Because GSK’s request for information does not violate federal sovereign immunity, we reverse 

and remand to the district court for further proceedings. 

I 

Bobby Collins committed suicide and his family claims 

“Paxil,” an anxiety-disorder drug made by GSK, is to blame. 

The Collins family sued GSK in Pennsylvania state court, alleging Paxil radically changed Collins’ behavior and led him 

to take his own life. GSK asserts Paxil caused no such 

change. To help prove it, GSK wants to depose Voyles, 

Collins’ supervisor at the Smithsonian, about Collins’ behavior before he began taking Paxil. During an informal interview, Volyes told GSK that Collins didn’t get along well with 

his co-workers and his mood changed dramatically from one 

day to the next. 

Through interviews with other employees, GSK learned 

Christine Nicholson, the Smithsonian’s Associate General 

Counsel, advised them not to speak with GSK without her 

approval. Believing GSK’s inquiries implicated federal sovereign immunity, Nicholson instructed Smithsonian employees not to comply with any state court subpoena. However, 

Nicholson allowed GSK to informally interview another 
3 

Smithsonian employee in her presence, and she did not object 

to any of GSK’s questions. When GSK told her it would depose Voyles, Nicholson warned GSK that she would have the 

subpoena proceedings removed to federal district court and 

move to quash it. 

Undeterred, GSK obtained a commission from the Pennsylvania court to depose Voyles. That court sent the commission to the Superior Court of the District of Columbia, which 

issued a subpoena on August 14, 2007 commanding Voyles to 

testify at a deposition two weeks later. 

On August 24, the United States Attorney removed the 

proceedings to federal district court on Voyles’ behalf. The 

government moved to quash the subpoena, claming that 

Voyles’ observations were official Smithsonian information 

because Voyles only saw Collins at work; therefore, sovereign immunity barred the district court from enforcing the 

subpoena. Moreover, despite GSK’s repeated assurances that 

it would schedule the deposition at a time and place convenient to the Smithsonian, the government claimed practical reasons—the potential flood of importunate requests—also made 

the subpoena improper. 

Without explanation, the district court granted the government’s motion to quash on October 12, 2007 in a onesentence minute order. GSK now appeals that order.1

II 

The government claims sovereign immunity deprived the 

Superior Court of power to enforce the subpoena, and because 

the district court’s jurisdiction on removal was derivative, the 

district court properly quashed the subpoena. We assume this 

 1

 Voyles is nominally the party asserting sovereign immunity. 

But where convenient, we refer to the government as the party because it argued on Voyles’ behalf. 
4 

is why the district court quashed the subpoena. Since neither 

party disputes the underlying facts, we review de novo the 

issue of whether sovereign immunity applies. See Peninsula 

Asset Mgmt. (Cayman) Ltd. v. Hankook Tire Co., 476 F.3d 

140, 143 (2d Cir. 2007) (per curiam). 

A 

We first address whether removal was proper. Voyles is 

currently the Associate Director of Finance for the Smithsonian’s Office of Facilities, Engineering and Operations. At 

the time he observed Collins, he was the Chief of the Security 

Services Division for the Office of Protection Services. In 

relevant part, 28 U.S.C. § 1442(a)(1) permits “any officer ... 

of the United States or of any agency thereof,” or “any person 

acting under that officer,” to remove a “civil action” against 

“any act under color of such office.” 

“[A]gency” includes any “independent establishment ... 

of the United States ..., unless the context shows that such 

term was intended to be used in a more limited sense.” 28 

U.S.C. § 451. Since the Smithsonian is an “independent establishment of the United States” within the Federal Tort 

Claims Act’s definition of “[f]ederal agency,” Expeditions 

Unlimited Aquatic Enters., Inc. v. Smithsonian Inst., 566 F.2d 

289, 296 (D.C. Cir. 1977) (en banc opinion reinstating panel 

opinion), we conclude the Smithsonian is an “agency” of the 

United States under § 1442(a)(1). 

Thus, as a “person acting under” an officer of the Smithsonian, Voyles may remove a “civil action” against his actions “under color of such office.” We have interpreted “civil 

action” as including state subpoena proceedings. Brown & 

Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 413–14 

(D.C. Cir. 1995). An “act under color of such office” requires 

removal to “be predicated on the allegation of a colorable 

federal defense.” Id. at 413 (quoting Mesa v. California, 489 

U.S. 121, 129 (1989)). 
5 

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. See Houston Bus. Journal, Inc. v. Office of 

the Comptroller of the Currency, 86 F.3d 1208, 1211 (D.C. 

Cir. 1996). When a subpoena nominally directed at an 

agency employee seeks such information, courts nonetheless 

regard the subpoena as directed at the agency. See Boron Oil 

Co. v. Downie, 873 F.2d 67, 70–71 (4th Cir. 1989); Sharon 

Lease Oil Co. v. FERC, 691 F. Supp. 381, 383–84 (D.D.C. 

1988). The employee may therefore remove the subpoena to 

district court and assert sovereign immunity as a defense. 

Just so here: Voyles claimed the subpoena requires him to 

testify “about facts [he] observed by virtue of his official duties and in his official capacity as a federal employee.” Notice of Removal of Subpoena 2, Aug. 24, 2007. Whether the 

subpoena will actually require Voyles to testify about such 

facts is a question we address next. 

B 

Although we have decided the Smithsonian is an “independent establishment of the United States” within the 

FTCA’s definition of “[f]ederal agency,” we have never decided whether it is entitled to sovereign immunity. Forman v. 

Small, 271 F.3d 285, 295 (D.C. Cir. 2001). But cf. Misra v. 

Smithsonian Astrophysical Observatory, 248 F.3d 37, 39 (1st 

Cir. 2001) (“The Smithsonian is a federal agency which enjoys sovereign immunity from suit.”). In Expeditions Unlimited we expressly did “not reach the issue of the Institution’s 

immunity status at common law.” 566 F.2d at 296. And we 

need not engage in this “complex and speculative inquiry,” 
6 

see id. at 299 & n.22, because if the Smithsonian is entitled to 

immunity, the subpoena would not violate that immunity.2

GSK claims it will ask Voyles only about observations he 

made in his individual capacity. See Larson v. Domestic & 

Foreign Commerce Corp., 337 U.S. 682, 689 (1949) (“If the 

officer purports to act as an individual and not as an official, a 

suit directed against that action is not a suit against the sovereign.”). In response, the government does not claim Voyles 

made those observations to fulfill his duties as a Smithsonian 

employee. Nor does the government claim his observations 

will reveal information in Smithsonian records or about the 

workings of the Smithsonian. 

The government’s sole argument is that Voyles only interacted with Collins at work; therefore, all of his observations are Smithsonian information. Compelling Voyles to 

divulge this information, says the government, makes the 

subpoena effectively against the United States. However, that 

argument elides the distinction between observations a federal 

employee makes in “exercising the powers delegated to him 

by the sovereign,” id. at 693, and observations he makes 

merely because he is present in the workplace. 

Observations a federal employee makes to carry out his 

job responsibilities are unquestionably government information. For example, observations an EPA employee made for 

an official investigation he conducted were “obtained in his 

official capacity,” and a subpoena directing him to testify 

about those observations was “inherently that of an action 

 2

 We need not decide whether the Smithsonian is entitled to 

immunity because the federal defense need only be “colorable” at 

the time of removal. And here, the federal defense was indeed colorable since we have noted “[s]everal elements” of the Smithsonian’s design suggesting “it does have sovereign immunity.” 

Forman, 271 F.3d at 295. 
7 

against the United States.” Boron Oil Co., 873 F.2d at 68, 71. 

Similarly, a subpoena compelling a FERC employee to testify 

at a deposition “about FERC matters obtained ... while acting 

as a FERC employee,” operated against FERC. Sharon Lease 

Oil Co., 691 F. Supp. at 383. But no job is all work. As any 

well-worn watercooler will attest, people often observe and 

form personal opinions about their co-workers and share them 

with their colleagues. The government cannot credibly assert 

control over these observations and opinions unless they 

would reveal information in government records or about the 

workings of government. And, of course, the government has 

made no such claim here. 

Finally, the government warns that enforcing the subpoena will open the “floodgates,” ominously predicting state 

courts will indiscriminately pluck federal employees to testify 

in state-court matters. But this is implausible. Sovereign 

immunity may protect observations a federal employee makes 

to satisfy his job responsibilities, or that will reveal information in government records or about the workings of government. Beyond that, however, an employee’s casual observations of a co-worker’s behavior are not protected. Accordingly, the Superior Court, and the district court on removal, 

had jurisdiction to enforce the subpoena commanding Voyles 

to testify. 

We therefore reverse the district court’s order quashing 

the subpoena, and remand for further proceedings. Although 

the district court retains jurisdiction over the subpoena proceedings, it may, in its discretion, remand the proceedings to 

the Superior Court. See Dist. of Colum. v. Merit Sys. Prot. 

Bd., 762 F.2d 129, 132–33 (D.C. Cir. 1985). 

So ordered.