In the

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 22-3009 

ST. VINCENT MEDICAL GROUP, INC., 

d/b/a ASCENSION MEDICAL GROUP – INDIANA, 

Plaintiff-Appellant, 

v.

UNITED STATES DEPARTMENT OF JUSTICE, 

Defendant-Appellee. 

____________________ 

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division. 

No. 1:22-mc-00011 — James P. Hanlon, Judge. 

____________________ 

ARGUED MAY 24, 2023 — DECIDED JUNE 22, 2023 

____________________ 

Before SCUDDER, ST. EVE, and KIRSCH, Circuit Judges. 

KIRSCH, Circuit Judge. Ascension Medical Group sought to 

depose a DEA agent and a federal prosecutor in state court

litigation. Their testimony would help Ascension prove that 

one of its doctors failed to disclose that he was under federal 

investigation, in violation of his employment agreement. After the Department of Justice refused to make either employee 

available for depositions, Ascension sued to compel their 
2 No. 22-3009 

testimony. The district court determined that the Department’s refusal was reasonable and entered judgment in its favor. Ascension appeals; we affirm. 

Thanks to the federal housekeeping statute, 5 U.S.C. § 301, 

each federal agency has promulgated regulations—called 

Touhy regulations, see United States ex rel. Touhy v. Ragen, 340 

U.S. 462 (1951)—governing when it will disclose information

or make its employees available for depositions. The Department of Justice is no exception; its Touhy regulations live at 

28 C.F.R. § 16.21 et seq. Ascension argues the Department 

skirted its Touhy regulations when it refused to make the prosecutor and agent available. 

The Administrative Procedure Act’s arbitrary-and-capricious standard governs challenges to an agency’s withholding 

of documents or testimony in response to a state court subpoena. Edwards v. U.S. Dep’t of Just., 43 F.3d 312, 314−17

(7th Cir. 1994) (citing 5 U.S.C. § 706(2)). Put another way: unless the Department unreasonably applies its Touhy regulations, a federal court is powerless to compel its participation 

in state court discovery. FCC v. Prometheus Radio Project, 141 

S. Ct. 1150, 1158 (2021). 

Ascension disagrees. It says that proportionality and relevance, which control civil discovery in federal courts, should 

govern whether an agency can withhold documents or testimony. See Fed. R. Civ. P. 26(b)(1). Some circuits apply those 

principles to discovery requests emanating from federal 
No. 22-3009 3

litigation.1 But when it comes to state court litigants seeking 

discovery from an agency, the circuits are unanimous: the 

APA controls.2 We see no reason to chart a new course and 

depart from Edwards or our sister circuits. The APA confers no

federal subject matter jurisdiction. See, e.g., Okere v. United 

States, 983 F.3d 900 (7th Cir. 2020). Rather, it confers statutory 

standing on Ascension and contains the waiver of sovereign 

immunity that allows a federal court to entertain a challenge 

to an agency’s interpretation and application of its Touhy regulations. 5 U.S.C. § 702; Thompson v. N. Am. Stainless, LP, 562 

U.S. 170, 177–78 (2011). In other words, without the APA, Ascension has no recourse against the Department. Thus, only

when the Department’s decision contravenes the APA’s familiar arbitrary-and-capricious standard can a district court force 

it to take part in state court discovery. 

1 Compare Linder v. Calero-Portocarrero, 251 F.3d 178, 180 (D.C. Cir. 

2001) (applying federal discovery standards because 5 U.S.C. § 702 waives 

sovereign immunity to federal nonparty subpoenas), and Exxon Shipping 

Co. v. U.S. Dep't of Interior, 34 F.3d 774, 778–79 (9th Cir. 1994) (holding that 

nonparty subpoenas under Rules 26 and 45 fall within the APA’s waiver 

of sovereign immunity for all actions seeking nonmonetary relief), with 

COMSAT Corp. v. Nat'l Sci. Found., 190 F.3d 269, 277–78 (4th Cir. 1999) 

(applying the APA’s arbitrary-and-capricious standard to agency’s refusal 

to comply with a nonparty Rule 45 subpoena), and Moore v. Armour Pharm. 

Co., 927 F.2d 1194, 1197 (11th Cir. 1991) (same). 

2 Watts v. SEC, 482 F.3d 501, 508−09, 508 n.* (D.C. Cir. 2007) (Kavanaugh, J.); Puerto Rico v. United States, 490 F.3d 50, 60−61 (1st Cir. 2007); 

Davis Enters. v. EPA, 877 F.2d 1181, 1186 (3d Cir. 1989); COMSAT Corp., 

190 F.3d at 277−78; CF Indus., Inc. v. ATF, 692 F. App’x 177, 181−82 (5th Cir. 

2017); Exxon Shipping Co., 34 F.3d at 778; see also Alltel Commc’ns, LLC v. 

DeJordy, 675 F.3d 1100, 1102−05 (8th Cir. 2012) (concluding that third-party 

subpoenas to Indian tribes are barred by sovereign immunity, just like

state court subpoenas to federal agencies). 
4 No. 22-3009 

Viewed through that highly deferential lens, the Department’s refusal must be affirmed. To prevail, Ascension needs 

to show that the Department’s application of its Touhy regulations was “arbitrary, capricious, an abuse of discretion, or 

otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).

Those regulations allow the Department to refuse disclosure 

when it determines that disclosure is unwarranted. 28 C.F.R. 

§ 16.26(c). And they prohibit disclosure when doing so 

“would reveal investigatory records compiled for law enforcement purposes[] and would interfere with enforcement

proceedings or disclose investigative techniques and procedures the effectiveness of which would thereby be impaired.” 

Id. § 16.26(b)(5). 

As the district court noted, Ascension hoped to learn 

whether, when, and to what extent the doctor knew that he 

was the subject or target of a federal investigation. It asked to 

depose a federal prosecutor and a federal agent to those ends. 

The Department considered the policy interests reflected in 

§ 16.26(b)(5) and concluded that disclosure was unwarranted. 

It explained how it arrived at that conclusion: allowing either 

deposition would interfere with the Department’s law enforcement mission by not only distracting two employees 

from their work, but by jeopardizing its ability to obtain cooperation in future investigations, too. The APA allows us to 

discard an agency’s conclusion if the path it took cannot be 

discerned. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. 

Ins. Co., 463 U.S. 29, 43 (1983). Here the dots almost connect 

themselves. Because the Department reasonably applied its 

Touhy regulations to the particulars of Ascension’s request, its 

refusal was neither arbitrary nor capricious. Underscoring all 

of this is the reality that what Ascension seeks is, as best we 

can tell, cumulative: If the doctor denies that he was under 
No. 22-3009 5

investigation, Ascension can point to the DEA proffer letter he 

signed acknowledging that he was “a subject of a federal investigation.” 

At bottom, whether to comply with a state court subpoena 

“is essentially a policy decision about the best use of the 

agency’s resources.” COMSAT, 190 F.3d at 278. The Department considered the facts and the law, made a reasoned decision, and explained itself. Ascension might prefer a different 

outcome, but it should not be surprised by today’s result. 

It points us to no case when a federal court has compelled a 

federal prosecutor to sit for a civil state court deposition. 

This will not be the first. 

AFFIRMED