United States v. Ward

Full title: UNITED STATES of America, Petitioner, v. Timothy WARD, in his official…

Court: United States District Court, N.D. Georgia, Atlanta Division

Date published: Mar 10, 2023

667 F. Supp. 3d 1150 (N.D. Ga. 2023)

Opinion

CIVIL ACTION FILE No. 1:22-CV-01653-SCJ-JKL

2023-03-10

UNITED STATES of America, Petitioner, v. Timothy WARD, in his official capacity as Commissioner of the Georgia Department of Corrections, Respondent.

Aileen Bell Hughes, Tiffany Rene Dillingham, Office of the United States Attorney, Atlanta, GA, Trishanda L. Treadwell, Department of Justice—EOUSA, Atlanta, GA, Bradford Patrick, DOJ-USAO, Savannah, GA, Christopher N. Cheng, Helen Vera, Laura L. Cowall, Matthew Nickell, Special Litigation Section Special Litigation Section, Washington, DC, Lance Simon, DOJ-USAO, Macon, GA, for Petitioner. Andrew Thomas Toler, Pro Hac Vice, Matthew B. Reeves, William R. Lunsford, Pro Hac Vice, Butler Snow LLP, Huntsville, AL, Christopher E. Lee, Maynard Nexsen, PC, Huntsville, AL, Anne Adams Hill, Pro Hac Vice, Maynard, Cooper & Gale PC, Montgomery, AL, Tina M. Piper, Department of Law, Atlanta, GA, for Respondent.

STEVE C. JONES, UNITED STATES DISTRICT JUDGE

Aileen Bell Hughes, Tiffany Rene Dillingham, Office of the United States Attorney, Atlanta, GA, Trishanda L. Treadwell, Department of Justice—EOUSA, Atlanta, GA, Bradford Patrick, DOJ-USAO, Savannah, GA, Christopher N. Cheng, Helen Vera, Laura L. Cowall, Matthew Nickell, Special Litigation Section Special Litigation Section, Washington, DC, Lance Simon, DOJ-USAO, Macon, GA, for Petitioner. Andrew Thomas Toler, Pro Hac Vice, Matthew B. Reeves, William R. Lunsford, Pro Hac Vice, Butler Snow LLP, Huntsville, AL, Christopher E. Lee, Maynard Nexsen, PC, Huntsville, AL, Anne Adams Hill, Pro Hac Vice, Maynard, Cooper & Gale PC, Montgomery, AL, Tina M. Piper, Department of Law, Atlanta, GA, for Respondent. ORDER STEVE C. JONES, UNITED STATES DISTRICT JUDGE

This matter appears before the Court on U.S. Magistrate Judge John L. Larkins III's Report and Recommendation (R&R) (Doc. No. [34])¹, to which Respondent Timothy Ward, the Commissioner of the Georgia Department of Corrections ("GDC") filed objections (Doc. No. [36]). The Department of Justice ("DOJ") responded to GDOC's objections (Doc. No. [37]).² The Court now rules on this Motion.

1 All citations are to the electronic docket unless otherwise noted, and all page numbers are those imprinted by the Court's docketing software.

2 GDOC replied in support of its objections (Doc. No. [38]). Neither Rule 72 of the Federal Rules of Civil Procedure nor this Court's local rules permit a party to submit briefs replying in support of its objections. Fed. R. Civ. P. 72(b)(1). Thus, the Court did not review GDOC's reply brief.

I. BACKGROUND

"One measure of a nation's civilization is the quality of treatment it provides person entrusted to its care." H.R. Conf. Rep. 96-897, 832 (Apr. 22, 1980). Between 1971 and 1980, DOJ brought or participated in twenty-five lawsuits that were "brought to secure basic legal and constitutional conditions in institutions housing the mentally ill, . . . the chronically and physically ill, prisoners, juvenile delinquents, and neglected children." Id. In 1980 Congress passed the Civil Rights of Institutionalized Persons Act ("CRIPA"). 42 U.S.C. 1997, et seq. The law was enacted to "[g]ive the Attorney General legal standing to enforce existing constitutional and federal statutory rights of institutionalized individuals." H.R. Conf. Rep. 96-897, 833. Thereby "codifying the authority of the Attorney General to initiate and to intervene in suits to redress serious and pervasive patterns of institutional abuse, [CRIPA] insures that institutionalized citizens will be afforded the full measure of protections guaranteed them by the constitution of the United States." Id. In 2010, Congress amended CRIPA to give DOJ subpoena power to aid in its investigations. "CRIPA does not authorize the Department of Justice to issue subpoenas . . . for access into the institution that is the target of the investigation. As a result, investigations have been hamstrung, and the effectiveness of CRIPA to remedy systemic abuse of institutionalized persons has been unnecessarily limited." 155 Cong. Rec. S10852-01, 10854 (Oct. 28, 2009).

A. Factual Background

In February 2016, DOJ opened a CRIPA investigation into whether the State of Georgia and GDC failed to protect lesbian, gay, bisexual, transgender, and intersex ("LGBTI") inmates from sexual harassment, sexual abuse, and sexual assault by GDC staff and other prisoners. Doc. No. [1-2] ("Nickell Decl."), ¶ 2. In a letter dated February 5, 2016 ("2016 Notice Letter"), DOJ advised the State of Georgia about the purpose of that investigation, stating that:

In conducting the investigation, [DOJ] will determine whether there are systemic violations of the Constitution of the United States. Specifically, we will investigate whether Georgia adequately protects transgender and gay prisoners in its custody from sexual abuse, sexual harassment, and assault by other prisoners and staff.

Doc. No. [1-6], 1. GDC participated in this investigation. See Doc. No. [14-2] ("Ammons Decl."). ¶ 7.

On September 14, 2021, DOJ notified the State of Georgia that it was expanding the investigation to determine whether the State had also failed to protect prisoners housed at close- and medium-security prisons from harm due to prisoner-on-prisoner violence ("2021 Notice Letter"). Nickell Decl. ¶ 3; Doc. No. [1-7]. The Notice also indicated that DOJ was continuing its investigation into sexual abuse, assault, and harassment of LGBTI inmates. Id. The 2021 Notice Letter stated:

In conducting the investigation, we will determine whether there are systemic violations of the Constitution of the United States. Specifically, we will investigate whether GDC is engaging in a

pattern or practice of violating the constitutional rights of convicted prisoners housed at GDC's close- and medium-security level facilities, by failing to protect them from harm due to violence by other prisoners. Additionally, we will continue to investigate whether GDC adequately protects [LGBTI] prisoners from sexual harassment, sexual abuse, and sexual assault by GDC staff and other prisoners, pursuant to our open investigation, of which we provided notice on February 5, 2016.

Doc. No. [1-7], 1. According to GDC, this request came as a surprise because, since 2016, DOJ had not requested documents or other information related to the initial investigation, sought to visit any GDC institution, or indicated that it was concerned about the safety of LGBTI inmates. Ammons Decl. ¶ 9.

On September 24, 2021, DOJ sent a request for documents to counsel for GDC, seeking information related to prisoner-on-prisoner violence and updated information about the treatment of and potential harm to LGBTI inmates. Nickell Decl. ¶ 6; Doc. No. [1-8]. GDC provided only a "small subset" of the documents requested, and some of those were produced in non-native format that did not preserve the original files' metadata. Nickell Decl. ¶¶ 7-12.

Over the following months, counsel for DOJ and GDC conferred about the September 24, 2021 request for documents; however, they reached an impasse on several issues. Nickell Decl. ¶ 13. Most critically, GDC insisted that DOJ sign a non-disclosure agreement due to the sensitive and confidential nature of documents requested by DOJ; however, despite their efforts to negotiate a mutually-acceptable agreement, they could not reach an agreement. Id. ¶¶ 14-35; Doc. No. [14-9] ("Rogers Decl."), ¶¶ 6-23.

On December 14, 2021, DOJ issued and served a subpoena on GDC, pursuant to CRIPA, formally demanding that GDC provide access to the documents sought in the September 24, 2021 request. See Nickell Decl. ¶¶ 52-53; see also Doc. No. [1-4], 1-5. On January 14, 2022, the compliance date for the subpoena, counsel for GDC emailed DOJ its objections to the subpoena. See Nickell Decl. ¶¶ 59-60; Rogers Decl. ¶ 26; see also Doc. Nos. [1-26], [1-27]. GDC offered to produce documents pursuant to a stipulated protective order similar to a protective order that DOJ had agreed to in a pending prison conditions case in the Northern District of Alabama. Rogers Decl. ¶ 27. Counsel for the parties continued to confer in an attempt to negotiate a resolution to their dispute over GDC's objections; however, their discussions again proved fruitless. See id. ¶¶ 29-42.

B. Procedural History

On March 28, 2022, DOJ filed the instant action to enforce the subpoena. Doc. No. [1]. On April 26, 2022, GDC filed a response in opposition (Doc. No. [14]), as well as a motion for entry of a protective order (Doc. No. [15]). On May 3, 2022, the United States filed a reply in support of its petition (Doc. No. [16]), and on May 10, 2022, it filed a response in opposition to GDC's Motion for a Protective Order (Doc. No. [17]). On May 24, 2022, GDC filed a reply in support of its Motion for a Protective Order. (Doc. No. [18]).

On May 25, 2022, the Magistrate ordered supplemental briefing on the issue of whether the Northern District of Georgia had subject matter jurisdiction to enforce a subpoena regarding "institutions[ ] located outside of the Northern District of Georgia." Doc. No. [21]. On June 7, 2022, the Parties filed supplemental briefing concerning this Court's authority to enforce the subpoena under CRIPA's venue provision, 42 U.S.C. § 1997a-1(b)(2). Doc Nos. [29], [30]. DOJ argued that the Court had subject matter jurisdiction to enforce the entire subpoena because CRIPA's enforcement provision speaks to venue and not to subject matter jurisdiction. Doc. No. [29], 2-4. GDC argued that the CRIPA was jurisdictional because the text of the statutes discusses an institution-by-institution approach to enforcement. Doc. No. [30], 2, 4-5. On June 10, 2022, the Magistrate held a hearing on the pending motions. Doc. No. [31].

C. R&R and Objections

On June 29, 2022, the Magistrate issued its R&R. Doc. No. [34]. First, the Magistrate found that CRIPA's enforcement statute relates to venue and is not jurisdictional. Id. at 6-13. Because CRIPA relates to venue, GDC waived an improper venue defense. Id. at 14-15. Second, the Magistrate found all remaining subpoenaed requests were enforceable, and GDC was required to produce said documents.³ Id. at 15-29. Finally, the Magistrate found that CRIPA and other federal statutes sufficiently protect GDC's interests regarding disclosing the subpoenaed information. Id. at 30-39. The Magistrate recommended that the Court grant DOJ's entire petition, except for COVID-19 vaccination rates. Id. at 39. Additionally, the Magistrate recommended that GDC's request for a protective order be denied. Id. Finally, the Magistrate ordered GDC to produce the subpoenaed documents within forty-five days after this Court ruled on the R&R. Id.

3 The Magistrate did not order GDC to produce information regarding COVID-19 vaccination rates (Request No. 26) because at oral argument DOJ argued that it would not "persist in its request for vaccination rate information." Doc. No. [34], 21.

GDC timely objected to the R&R. Doc. No. [36]. First, GDC argued that the Magistrate incorrectly found it had subject matter jurisdiction to enforce a subpoena related to out-of-district-facility-specific documents. Id. at 6-14. GDC argued that CRIPA's text only allows a district court to enforce a subpoena related to the institutions within the district court's territorial limits. Id. at 9-14. Second, GDC objected to the Magistrate's finding that the written subpoena is enforceable. Id. at 14-19. Specifically, GDC argued that the requests were broader than the scope of DOJ's investigation, and the Magistrate failed to adequately weigh the burdens on GDC in producing these documents. Id. Finally, GDC argued that the Magistrate erred in denying its request for a protective order. Id. at 20-25. Specifically, GDC argued that the R&R improperly found that CRIPA offered sufficient protection from the disclosure of documents. Id. at 22. Additionally, the Magistrate did not properly address GDC's concerns about the intentional disclosure of the information either during interviews or through a public findings letter, which is permitted under CRIPA. Id. at 23-25.

On July 28, 2022, DOJ timely filed its response to GDC's objections. Doc. No. [37]. DOJ begins its brief by asking the Court to affirm the R&R for the reasons outlined in DOJ's prior briefs and its oral argument. Id. at 2. DOJ then specifically responded to GDC's jurisdictional argument⁴ and argued that this Court has subject matter jurisdiction over this action under 28 U.S.C. § 1345, and CRIPA does not repeal such jurisdiction. Doc. No. [37], 3-8.

4 The Court finds that DOJ's choice not to respond to GDC's remaining arguments constitutes neither waiver nor acceptance of GDC's arguments. A parties' failure to raise an objection to an R&R waives the Parties' right to a district court's de novo review of the R&R (Fed. R. Civ. P. 72(b)(3)) and "waives that party's right to challenge on appeal any unobjected-to factual finding(s) or legal conclusion(s) the District Judge adopts from the Report and Recommendation." See 11th Cir. R. 3-1; 28 U.S.C. § 636(b)(1). The same is not true of a parties' choice to respond to the objections. See Fed. R. Civ. P. 72; 28 U.S.C. § 636(b)(1); 11th Cir. R. 3-1. Assuming arguendo that a failure to respond constitutes acquiescence, DOJ did not acquiesce to GDC's arguments regarding the scope of the subpoena or the protective order because it incorporated by reference the arguments it made in its prior briefs and at oral argument. Doc. No. [37], 2.

II. LEGAL STANDARD

With respect to dispositive matters, the Court must conduct a de novo review of those portions of the R&R to which Defendant has timely and specifically objected. 28 U.S.C. § 636(b)(1). The Court may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1); United States v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980).

For a party's objections to warrant de novo review, it "must clearly advise the district court and pinpoint the specific findings that [she] disagrees with." United States v. Schultz, 565 F.3d 1353, 1360 (11th Cir. 2009). The Eleventh Circuit noted that "[p]arties filing objections to a magistrate's report and recommendation must specifically identify those findings objected to. Frivolous, conclusive, or general objections need not be considered by the district court." Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988). The remainder of the R&R, to which neither party offers specific objections, will only be assessed for clear error. See Tauber v. Barnhart, 438 F.Supp.2d 1366, 1373 (N.D. Ga. 2006) ("[I]ssues upon which no specific objections are raised do not so require de novo review; the district court may, therefore 'accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge[,]' applying a clearly erroneous standard.") (quoting 28 U.S.C. § 636(b)(1)).

With respect to non-dispositive matters, the Court "may reconsider any pretrial matter . . . where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A). A finding is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Krys v. Lufthansa German Airlines, 119 F.3d 1515, 1523 (11th Cir. 1997). An order is contrary to law when it fails to apply or misapplies relevant statutes, case law, or rules of procedure. Tolz v. Geico Gen. Ins. Co., No. 08-80663-CIV, 2010 WL 384745, at *2 (S.D. Fla. Jan. 27, 2010).

III. ANALYSIS

The Court adopts in part and rejects in part the Magistrate's R&R.

A. Jurisdiction

The Court finds that it has subject matter jurisdiction to enforce subpoenas under CRIPA. "Jurisdictional statutes are to be construed 'with precision and with fidelity to the terms by which Congress has expressed its wishes.' " Palmore v. United States, 411 U.S. 389, 396, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973). Congress enacted a jurisdictional statute that "[e]xcept as otherwise provided by Act of Congress, the district courts shall have original jurisdiction over all civil actions, suits, or proceedings commenced by the United States, or by any agency or officer thereof expressly authorized to sue by Act of Congress." 28 U.S.C. § 1345. Accordingly, "28 U.S.C. § 1345 provides an independent basis for jurisdiction where the United States is the plaintiff." United States v. Yakima Tribal Court, 806 F.2d 853, 858 (9th Cir. 1986) (citation omitted). Courts have consistently found that 28 U.S.C. § 1345 grants district courts authority to enforce administrative subpoenas.⁵ See United States v. Hill, 694 F.2d 258, 267 (D.C. Cir. 1982) ("We have found no cases squarely holding that [28 U.S.C. § 1345] empower[s] the district courts to enforce administrative subpoenas; nevertheless, we have no doubt that subpoena enforcement proceedings fall within the scope of one or all of these broad grants of subject matter jurisdiction."); EEOC v. Kronos Inc., 620 F.3d 287, 295-96 (3d Cir. 2010) (holding that district courts had jurisdiction to enforce an administrative subpoena under Section 1345); E.E.O.C. v. Watkins Motor Lines, Inc., 553 F.3d 593, 595 (7th Cir. 2009) (finding that Section 1345 gave the district court subject matter jurisdiction to enforce an administrative subpoena).

5 DOJ argues that it also has jurisdiction under 28 U.S.C. § 1331. Doc. No. [29], 2. Only the D.C. Circuit opined in dicta that a district court has subject matter jurisdiction over a subpoena under 28 U.S.C. §§ 1331, 1345, and 1337. See United States v. Hill, 694 F.2d 258, 268-69 (D.C. Cir. 1982); U.S. Int'l Trade Comm. v. ASAT, Inc., 411 F.3d 245, 249 (D.C. Cir. 2005). The D.C. Circuit based this opinion on cases that held that a district court may enforce an administrative subpoena under 28 U.S.C. § 1345. Id. Even if the 28 U.S.C. § 1331's grant of subject matter jurisdiction applies here, the Court is required to undertake the same analysis as under Section 1345. See Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 809, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976) ("The District Court also would have had jurisdiction of this suit under the general federal-question jurisdiction of 28 U.S.C. s 1331. For the same reasons, the McCarran Amendment did not affect jurisdiction under s 1331 either.").

The Court finds that Section 1345 generally gives the Court subject matter jurisdiction to enforce an administrative subpoena. GDC argues that, under CRIPA, the Court does not have subject matter jurisdiction to enforce subpoenas requesting facility-specific documents if those facilities are located outside the Northern District of Georgia. Doc. No. [36], 8-14. Thus, the Court must determine whether CRIPA limited Section 1345's general grant of subject matter jurisdiction over this matter. Section 1345 is limited by either (1) an explicit repeal of the statute by an Act of Congress or (2) an implicit repeal by total irreconcilability of the two acts. See Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 808, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). "Repeal of a federal statute by implication is disfavored, and the individual arguing for repeal has the burden of showing that the statute has been repealed." United States v. Lahey Clinic Hosp., Inc., 399 F.3d 1, 9 (1st Cir. 2005). There is a strong presumption against implied repeals of federal statutes; see Kremer v. Chemical Constr. Corp., 456 U.S. 461, 468, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982); United States v. Commonwealth of Puerto Rico, 721 F.2d 832, 836 (1st Cir. 1983). And subject matter jurisdiction "should not be disturbed by mere implication from the subsequent legislation." Colorado River, 424 U.S. at 808, 96 S.Ct. 1236 (quoting Rosecrans v. United States, 165 U.S. 257, 262, 17 S.Ct. 302, 41 L.Ed. 708 (1897)).

CRIPA does not explicitly repeal Section 1345's broad jurisdictional grant. CRIPA's subpoena enforcement provision reads: "[i]n the case of contumacy or failure to obey a subpoena issued under this section, the United States district court for the judicial district in which the institution is located may issue an order requiring compliance." 42 U.S.C. § 1997a-1(b)(2). An explicit repeal occurs when the later statute explicitly identifies the earlier statute it is repealing. 1A Sutherland Statutes and Statutory Construction § 23:7 (7th ed. 2010). Congress can accomplish this identification by citing the earlier statute or referring to its subject matter, id., or even by giving the style and case number of a lawsuit that is filed under the earlier statute, Robertson v. Seattle Audubon Soc., 503 U.S. 429, 440, 112 S.Ct. 1407, 118 L.Ed.2d 73 (1992). Because CRIPA does not mention Section 1345 nor state that it supplants Section 1345's general grant of subject matter jurisdiction, the Court finds that CRIPA does not explicitly repeal Section 1345.

The Court finds that neither the statutory language nor its legislative history evidence a clear intent to impliedly repeal Section 1345's broad grant of subject matter jurisdiction. To determine whether Congress impliedly repealed subject matter jurisdiction, the Court must first look to the text of the statute and then to the statute's legislative history.⁶ United States ex rel. Borges v. Doctor's Care Med. Ctr., Inc., No. 01-8112-CIV, 2007 WL 9702639, at *7 (S.D. Fla. Jan. 29, 2007).

6 The Court notes that there is a general trend against reviewing legislative history. See CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1224-25 (11th Cir. 2001) (commenting on the unreliability of legislative history). However, in interpreting whether Congress impliedly repealed subject matter jurisdiction, courts generally review the statute's legislative history. See Colorado River, 424 U.S. at 812 & n. 19, 96 S.Ct. 1236; United States ex rel. Thistlethwaite v. Dowty Woodville Polymer, Ltd., 110 F.3d 861, 866-68 (2d Cir. 1997); Hill, 694 F.2d at 264 & n. 17; FTC v. Browning, 435 F.2d 96, 100-101 & ns. 10-13 (D.C. Cir. 1970). Additionally, in the February 28, 2023 Delaware v. Pennsylvania, opinion, Justice Jackson, who was joined by the Chief Justices and three Associate Justices, evaluated a statute's legislative history. Delaware v. Pennsylvania, 598 U.S. 115, 143 S.Ct. 696, 215 L.Ed.2d 24 (2023). Accordingly, the Court will review CRIPA's relevant legislative history.

1. Statutory Text

CRIPA's plain language does not evidence a clear repeal of the Court's subject matter jurisdiction. CRIPA authorizes DOJ to "require by subpoena access to any institution . . . and to any document, record, material, file, report, memorandum, policy, procedure, investigation, video or audio recording, or quality assurance report." 42 U.S.C. § 1977a-1(a). The statute's enforcement provision provides: "[i]n the case of contumacy or failure to obey a subpoena issued under this section, the United States district court for the judicial district in which the institution is located may issue an order requiring compliance." Id. § 1997a-1(b)(2). For the Court to find that CRIPA impliedly repealed Section 1345's broad grant of subject matter jurisdiction, "the intention of the legislature has to be clear and manifest." Radzanower v. Touche Ross & Co., 426 U.S. 148, 154, 96 S.Ct. 1989, 48 L.Ed.2d 540 (1976). There are two categories of statutes where repeals by implication have been recognized. First, "where provisions in the two acts are in irreconcilable conflict, the later act to the extent of the conflict constitutes an implied repeal of the earlier one; and [second,] if the later act covers the whole subject of the earlier one and is clearly intended as a substitute, it will operate similarly as a repeal of the earlier act." United States v. Com. of Puerto Rico, 721 F.2d 832, 836 (1st Cir. 1983) (quoting Kremer v. Chem. Constr. Corp., 456 U.S. 461, 468, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982)).

The Court finds neither category is present in this case because the Court can read CRIPA's enforcement provision relating to venue and not subject matter jurisdiction. See Kremer, 456 U.S. at 468, 102 S.Ct. 1883 (holding that statutes should be read consistently when possible). A review of similarly phrased statutes also shows that limitations in CRIPA's enforcement provision relate to venue and not jurisdiction. See Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 436, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011) (quoting citing Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 168, 130 S.Ct. 1237, 176 L.Ed.2d 18 (2010)) (" '[C]ontext, including the Court's interpretation of similar provisions in many years past, is relevant.' ") Id. at 436, 131 S.Ct. 1197

The Court first evaluates the federal venue statute. The general venue statute "do[es] not confer or deny jurisdiction; [it] assume[s] that the court in question has subject matter jurisdiction, and [it] simply limit[s] the locations in which the action may be brought." U.S. ex rel. Thistlethwaite v. Dowty Woodville Polymer, Ltd., 110 F.3d 861 (2d Cir. 1997); see also Lindahl v. Office of Personnel Mgmt., 470 U.S. 768, 793 n.30, 105 S.Ct. 1620, 84 L.Ed.2d 674 (1985) (venue "concern[s] the place where judicial authority may be exercised.").

(a) Applicability of section. --Except as otherwise provided by law-

(1) this section shall govern the venue of all civil actions brought in district courts of the United States; and

(2) the proper venue for a civil action shall be determined without regard to whether the action is local or transitory in nature.

(b) Venue in general.--A civil action may be brought in-

(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;

(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or

(3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action.

28 U.S.C. § 1391.

Although the general venue statute is concerned with the filing of an action and not the enforcement of an administrative subpoena, the Court finds that the general venue statute is instructive in understanding whether CRIPA's enforcement limitations relate to subject matter jurisdiction. Neither the general venue statute nor the CRIPA contains the word "jurisdiction;" however, both statutes expressly mention the district court's authority to hear said proceedings. Compare 42 U.S.C. § 1997a-1(b)(2) "the United States district court . . . may issue an order requiring compliance," with 28 U.S.C. § 1391(a)(1) "this section shall govern the venue of all civil actions brought in district courts of the United States." Both statutes then limit the locations where the action may take place. Compare 28 U.S.C. § 1391(b)(1) "A civil action may be brought in-(1) a judicial district in which any defendant resides"), with 42 U.S.C. § 1997a-1(b)(1) "the United States district court for the judicial district in which the institution is located may issue an order."). Given the similar structure of the statutes, the Court finds that CRIPA's limitations, like those in the general venue statute, do not relate to the Court's subject matter jurisdiction.

Similarly, the Second Circuit found that Section 3732(a) of the Federal Claims Act limits the venue for bringing a claim but does not limit the Court's subject matter jurisdiction. Section 3732(a) reads: "[a]ny action under section 3730 may be brought in any judicial district in which the defendant or, in the case of multiple defendants, any one defendant can be found, resides, transacts business, or in which any act proscribed by section 3729 occurred." Like the general venue statute, and CRIPA, Section 3732(a) does not mention the word "jurisdiction." Like CRIPA, Section 3732(a) limits the location where the action can be brought to the location expressly tied to where the target of the action is located. The Second Circuit found that "the substance and structure of § 3732(a) indicate clearly that that provision governs venue rather than subject matter jurisdiction." Dowty, 110 F.3d at 866. Because the substance and structure of CRIPA closely resembles that of Section 3732(a), the Court finds that CRIPA also relates to venue and is not jurisdictional.

Moreover, the former Fifth Circuit seems to have found that district courts have subject matter jurisdiction regarding the enforcement of subpoenas under Section 9 of the FTC. This statute reads:

Any of the district courts of the United States within the jurisdiction⁷ of which such inquiry is carried on may, in case of contumacy or refusal to obey a subpoena issued to any person, partnership, or corporation issue an order requiring such person, partnership, or corporation to appear before the Commission, or to produce documentary evidence if so ordered, or to give evidence touching the matter in question; and any failure to obey such order of the court may be punished by such court as a contempt thereof.

15 U.S.C. § 49. When interpreting the FTC statute, the former Fifth Circuit evaluated whether a court had personal jurisdiction over the defendant to enforce the subpoena but did not address subject matter jurisdiction. FTC v. Jim Walter Corp., 651 F.2d 251 (5th Cir. Unit A 1981)⁸, abrogated other grounds, Republic of Panama v. BCCI Holdings (Luxembourg) S.A., 119 F.3d 935, 943 (11th Cir. 1997). Because courts must sua sponte review their subject matter jurisdiction before issuing a substantive ruling on a case, binding precedent establishes that courts have subject matter jurisdiction over enforcement actions brought under Section 9 of the FTC.

7 The Court notes that, unlike the prior statutes, Section 9 of the FTC does mention the word "jurisdiction." See 15 U.S.C. § 49 "Any of the district courts of the United States within the jurisdiction of which such inquiry is carried on may, in case of contumacy or refusal to obey a subpoena issued to any person, partnership, or corporation issue an order requiring such person, partnership, or corporation to appear before the Commission, or to produce documentary evidence if so ordered, or to give evidence touching the matter in question; and any failure to obey such order of the court may be punished by such court as a contempt thereof."
The term "jurisdiction" as used in Section 9 of the FTC is best defined as "[a] geographic area within which political or judicial authority may be exercised." JURISDICTION, Black's Law Dictionary (11th ed. 2019). In the context of the sentence, jurisdiction is found in the prepositional phrase "within the jurisdiction." A preposition is defined as "[a]n uninflected word or a phrase that indicates relationships of location, direction, means, agency, etc. between a noun and other words in the sentence. The prepositions objection is usually a noun." PREPOSITION, Garner's Modern English Usage, at 1024 (4th ed. 2016). Whereas, jurisdiction, when referring to "[a] court's power to decide a case or issue a decree," is a noun. JURISDICTION, Black's Law Dictionary (11th ed. 2019). The Court finds that the Section 9 of the FTC's use of the word "jurisdiction" alone does not make this provision jurisdictional because as used in this sentence, "jurisdiction" refers to a particular court's location and not the court's powers. Thus, the Court finds that the limiting language in Section 9 of the FTC does not limit a court's subject matter jurisdiction.

8 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions rendered prior to the close of business on September 30, 1981 by the United States Court of Appeals for the Fifth Circuit.

Hereto, the Court finds that CRIPA does not relate to subject matter jurisdiction. Like Section 9, CRIPA limits the locations where the enforcement proceedings may occur. Because binding precedent shows that statutes limiting the enforcement's location do not relate to subject matter jurisdiction, the Court finds that CRIPA does not relate to subject matter jurisdiction.

Finally, the DC Circuit found that the limitation provisions of Section 645 of the Department of Energy Organization Act ("DOEOA") also did not divest the district court of subject matter jurisdiction to enforce the subpoenas. Section 645 expressly grants the Secretary of Energy the same power to issue subpoenas as the FTC does under Section 9 of the FTC. 42 U.S.C. § 7255. Neither Section 645 nor Section 9 of the FTC expressly limits a court's subject matter jurisdiction, even though Section 9 of the FTC does limit the location of the court where the subpoena may be enforced. The DC Circuit held that "sections 1331, 1337(a), and 1345 provide subject matter jurisdiction for proceedings to enforce subpoenas issued under [S]ection 645." Hill, 694 F.2d at 269.

Conversely, in the cases where the courts have found that Congress impliedly limited the court's subject matter jurisdiction, the statutory text couches the limitation in terms of jurisdiction. See Dowty, 110 F.3d at 865-66.

Freedom of Information Act, 5 U.S.C. § 552(a)(4)(B) ("the district court of the United States in the district in which the complainant resides . . . has jurisdiction to enjoin the agency from withholding agency records" (emphasis added)); Voting Rights Act of 1965, 42 U.S.C. § 1973l (b) ("[n]o court other than the District Court for the District of Columbia or a court of appeals . . . shall have jurisdiction" (emphasis added)); . . . Mohegan Nation of Connecticut Land Claims Settlement Act of 1994, 25 U.S.C. § 1775h(a) ("the United States District Court for the Southern District of Connecticut shall have exclusive jurisdiction" (emphasis added)); Bankruptcy Reform Act of 1994, 11 U.S.C. § 524(g)(2)(A) ("may be commenced only in the district court in which such injunction was entered, and such court shall have exclusive jurisdiction over any such proceeding" (emphasis added)).

Id. As the Dowty court highlighted, in the above statutes, Congress expressly defined which court or courts had "exclusive" jurisdiction over certain matters. The term "jurisdiction" in these cases relates directly to the court's competency because a location does not modify jurisdiction; rather, it describes whether a particular court or courts has the authority to hear the action. Compare United States v. Morton, 467 U.S. 822, 828, 104 S.Ct. 2769, 81 L.Ed.2d 680 (1984) ("Subject-matter jurisdiction defines the court's authority to hear a give type of case . . . ."), with Lindahl, 470 U.S. at 793 n.30, 105 S.Ct. 1620 (venue relates to location and "concern[s] the place where judicial authority may be exercised."); 4.C. Wright & A. Miller, Federal Prac. & Proc. § 1063 at 224 (2d ed. 1987) (venue "relates to the place at which an action may properly be brought and determined."). CRIPA does not speak to the court's authority to adjudicate these types of subpoenas. Rather, CRIPA expressly states that United States district courts have the authority to enforce the subpoena. CRIPA's textual limitation relates to the location of the Court, which may enforce the subpoena. Thus, CRIPA's limitations relate to venue and are not jurisdictional.

2. Legislative History

The legislative history does not address subject matter jurisdiction. In reviewing the legislative history, Congress does not mention CRIPA's enforcement provision; rather, the relatively sparse legislative history solely focuses on the importance of granting DOJ the power to subpoena documents from targeted institutions. See 155 Cong. Rec. S13661-01, S13694 (Dec. 21, 2009); 155 Cong. Rec. S12664-2, S12690 (Dec. 8, 2009); 155 Cong. Rec. S10852-01, 10853-54 (Oct. 28, 2009). In fact, nowhere in the legislative history does the record reflect any conversation about the Court's enforcement powers or the Court's subject matter jurisdiction. See, e.g., 155 Cong. Rec. S10852-01 at 10854 ("The bill also provides the [DOJ] with limited subpoena authority"); id. ("The absence of subpoena authority enables non-cooperating jurisdictions to obstruct and delay the Division in its mission to ensure that the Federal rights of persons in the custody of state and local officials are respected . . . The bill addresses the problem by authorizing the Department of Justice to issue subpoenas for access to any institution that is the subject of an investigation related to a violation of CRIPA."). The Congressional record clearly establishes that CRIPA was amended to aid DOJ in its investigations. Still, it is unclear that it was also designed to limit a Court's subject matter jurisdiction. Thus, Court finds that GDC has not met its burden in establishing that Congress "clearly" intended to repeal a Court's subject matter jurisdiction impliedly. Accordingly, the Court finds that neither CRIPA's text nor legislative history evidence Congress's clear intent to limit the Court's subject matter jurisdiction.

3. Venue

The Court adopts the Magistrate's findings as they relate to venue. GDC did not object to this portion of the R&R; thus, it is reviewed for clear error. Any affirmative defense of improper venue was waived because it was not timely raised.

GDC did not properly raise an objection to venue. GDC, in a footnote, stated "[f]or these reasons, neither Commissioner Ward nor GDC waive any objection to venue of this or any other action or proceeding . . .". Doc. No. [14], 10 n.3. "[A]rguments raised in passing in footnotes may be disregarded." Sony Music Entertainment v. Vital Pharmaceuticals, 2022 WL 4771858 at *13 (S.D. Fla. Sept. 14, 2022); see also Mock v. Bell Helicopter Textron, Inc., 373 F. App'x 989, 992 (11th Cir. 2010) (deeming argument waived because it was raised only in a footnote); Connor v. Midland Credit Mgmt., Inc., No. 18-23023-CIV, 2019 WL 717413, at *4, n. 1 (S.D. Fla. Feb. 20, 2019) (citing Mazzeo v. Nature's Bounty, Inc., No. 14-60580, 2014 WL 5846735, at *2 n.1 (S.D. Fla. Nov. 12, 2014)) (not considering argument raised in a footnote). Because GDC only mentioned its improper venue defense in a footnote, the Court finds that it was not properly raised.

The Court finds that failure to raise an improper venue defense when responding to a motion to enforce a subpoena constitutes waiver. Although Rule 12(h) of the Federal Rules of Civil Procedure generally only applies to defenses raised in response to a pleading⁹, the Court finds no reason that this waiver provision does not likewise apply to a proceeding to enforce a subpoena. Cf Dexia Credit Local v. Rogan, 231 F.R.D. 538, 545 (N.D. Ill. 2004) (deeming affirmative defense to personal jurisdiction waived because the non-party contesting a motion to enforce subpoena did not raise a personal jurisdiction objection in their motion). Here, GDC responded to the Motion to Enforce a Subpoena (Doc. No. [14]), filed a Motion for Protective Order (Doc. No. [15]), participated in a hearing (Doc. No. [31]), and filed various briefs (Doc. Nos. [30], [36], [37]). Despite these appearances, GDC has not properly raised the issue of improper venue to this Court. Accordingly, the Court finds GDC waived an improper venue argument and venue is appropriate in this Court.

9 "Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion: . . . (3) improper venue." Fed. R. Civ. P. 12(b)(3) (emphasis added). party waives any defense listed in Rule 12(b)(2)-(5) by: . . . (B) failing to either: (i) make it by motion under this rule; or (ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course." Fed. R. Civ. P. 12(h)(1) (emphasis added).

The Court, therefore, ADOPTS the Magistrate's finding that the Court has subject matter jurisdiction over the subject subpoena and venue is proper in this Court.

B. Enforceability of the Subpoena

The Court will now review the R&R's findings as to (1) requests for information related to all facilities, (2) requests for employee separation information and GDC SCRIBE Reports, and (3) requests for prisoner handbooks, orientation materials, etc.¹⁰ A district court's role in a proceeding to enforce an administrative subpoena is limited. See EEOC v. Kloster Cruise Ltd., 939 F.2d 920, 922 (11th Cir. 1991). "The court may inquire into (1) whether the administrative investigation is within the agency's authority, (2) whether the agency's demand is too indefinite, and (3) whether the information sought is reasonably relevant. U.S. E.E.O.C. v. Tire Kingdom, Inc., 80 F.3d 449, 450 (11th Cir. 1996). In describing the role of an administrative investigation, the Supreme Court opined,

10 Additionally, the R&R also discusses "COVID-19 vaccine reports" and "technical specifications of production." Doc. No. [34], 21, 29. GDC listed objections to the three above-listed categories of documents. The objections make no mention of the "technical specifications of production." Because GDC did not specifically object to the Magistrate's findings of this category of documents, the Court finds that GDC is not challenging that finding. After conducting a clear error review of those portions of the R&R, they are ADOPTED.

Because judicial power is reluctant if not unable to summon evidence until it is shown to be relevant to issues in litigation, it does not follow that an administrative agency charged with seeing that the laws are enforced may not have and exercise powers of original inquiry. It has a power of inquisition, if one chooses to call it that, which is not derived from the judicial function. It is more analogous to the Grand Jury, which does not depend on a case or controversy for power to get evidence but can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not. When investigative and accusatory duties are delegated by statute to an administrative body, it, too, may take steps to inform itself as to whether there is probable violation of the law.

United States v. Morton Salt Co., 338 U.S. 632, 642-43, 70 S.Ct. 357, 94 L.Ed. 401 (1950). In interpreting this holding, the Eleventh Circuit held "the role of a district court in a proceeding to enforce an administrative subpoena is sharply limited; inquiry is appropriate only into whether the evidence sought is material and relevant to a lawful purpose of the agency." Kloster, 939 F.2d at 923. The Eleventh Circuit limited the enforcement of administrative subpoenas to where "the inquiry is within the authority of the agency, the demand is not too indefinite and the information sought is reasonably relevant." Fed. Election Com'n v. Fla. for Kennedy Comm., 681 F.2d 1281, 1284 (11th Cir. 1982). Specifically, a district court must enforce an administrative subpoena where the information sought is "not plainly incompetent or irrelevant to any lawful purpose of the agency." Kloster Cruise, 939 F.2d at 922 (internal quotation and citations omitted)

"[T]he Supreme Court has cautioned against construing the EEOC's investigative authority so broadly that the relevancy requirement is rendered "a nullity." EEOC v. Royal Caribbean Cruises, Ltd., 771 F.3d 757, 760 (11th Cir. 2014) (quoting EEOC v. Shell Oil Co., 466 U.S. 54, 68-69, 104 S.Ct. 1621, 80 L.Ed.2d 41 (1984)). A district court also "may weigh such equitable criteria as reasonableness and oppressiveness in issuing a subpoena for documents." Id. (quoting EEOC v. Packard Elec. Div., Gen. Motors Corp., 569 F.2d 315, 318 (5th Cir. 1978)).

In the case sub judice, there is no argument that DOJ has administrative authority to request the subject documents. GDC argues that the subpoena is unenforceable because it requests irrelevant documents whose production will place an undue burden on GDC. Doc. No. [36], 14. The Court must evaluate whether the requested documents are relevant to DOJ's authority to investigate constitutional violations inside state-run prisons. 42 U.S.C. § 1997a-1(a). DOJ supplied GDC with two different notice letters advising of the scope of their investigation. The 2016 Notice Letter provides:

In conducting the investigation, [DOJ] will determine whether there are systemic violations of the Constitution of the United States. Specifically, we will investigate whether Georgia adequately protects transgender and gay prisoners in its custody from sexual abuse, sexual harassment, and assault by other prisoners and staff.

Doc. No. [1-6], 1. The 2021 Notice Letter provides:

In conducting the investigation, we will determine whether there are systemic violations of the Constitution of the United States. Specifically, we will investigate whether GDC is engaging in a pattern or practice of violating the constitutional rights of convicted prisoners housed at GDC's close- and medium-security level facilities, by failing to protect them from harm due to violence by other prisoners. Additionally, we will continue to investigate whether GDC adequately protects [LGBTI] prisoners from sexual harassment, sexual abuse, and sexual assault by GDC staff and other prisoners, pursuant to our open investigation, of which we provided notice on February 5, 2016.

Doc. No. [1-7], 1. The Court finds that DOJ is conducting investigations of two separate alleged constitutional violations. First, DOJ is investigating the protections for LGBTI prisoners from sexual abuse, sexual harassment, and sexual assault in all Georgia prisons. Second, DOJ is investigating constitutional violations relating to all prisoners in Georgia's close- and medium-security level facilities. The Court now reviews the challenged portions of the subpoena to determine whether they are enforceable.

1. Requests for Information Related to "All" Facilities

GDC argues that Requests 8, 9, 16, 17, and 18 seek statewide documents that are beyond the scope of DOJ's investigations. Those requests read as follows:

8. Number of budgeted security positions at each facility, broken down by title, salary range for each position title, and overall security staff budget per facility, for the current fiscal year and previous fiscal year.

9. A list of, or documentation identifying, all security, medical, mental health, or supervisory Staff who have left employment with GDC in the past year, for any reason, including each person's name, title, date their employment began with GDC, date their employment ended, and reason for departure.


. . .

16. Incident reports; any supplemental reports; any related investigation files and reports; and any related video footage, witness statements, and other supporting materials related to any prisoner housed at any GDC facility, from September 1, 2019 to the present for all of the following:

a. Homicides and suspected homicides;

b. Alleged sexual abuse;

c. Calls to GDC Special Operations, including any CERT Team or Tactical Squad calls, to respond to a riot, escape, or disturbance; and

d. Calls to outside law enforcement.

For all of the requested incident reports and investigation files, please identify any prisoners involved who GDC has identified as LGBTI or [gender-nonconforming ("GNC")].

17. All autopsy or coroners' records, or all records determining a prisoner's cause of death, for all deaths reported in Document Request 1[6].a., above.

18. Total number of prisoner-on-prisoner homicides and suspected homicides throughout GDC, listed by year and by facility, from 2011 to the present.

Doc. No. [1-5], 5-6. In support of its enforcement motion, DOJ argued that these documents are relevant to its investigation. Doc. No. [1-1]. First, DOJ argues that "[d]ocuments about prisoners who fall into high-risk groups can help identify potential victims of violence and sexual abuse." Id. at 7. Second, "[i]ncident reports and investigation records regarding violent incidents, sexual abuse, and homicides may contain allegations of violence and sexual abuse and indicate whether GDC is appropriately addressing such allegations." Id. at 7-8. Finally, "internal audits would indicate what steps GDC has taken to collect data about harms and develop corrective actions." Id. at 8. GDC responded and argued that these requests are overly broad because they seek "documentation relating to facilities that do not constitute part of the Investigation;" even though, the [2021] Notice Letter "limited the Investigation to close-and medium-security facilities." Doc. No. [14], 37. DOJ replied, arguing that the 2021 Notice Letter stated that DOJ was investigating potential violations in close- and medium-security prisons, as it applies to the whole prison population, and it was investigating the sexually motivated incidents as it relates to the LGBTI inmate population across all GDC prisons. Doc. No. [16], 13-14. GDC reiterated earlier arguments in its Objections to the R&R. Doc. No. [36], 16-17.

The Court agrees with the Magistrate that these categories of documents are relevant to DOJ's investigation. The 2021 Notice Letter states that it is adding to the scope of its investigation into constitutional violations and violations in GDC's close- and medium-security prisons; it did not state that the investigation relating to violations of LGBTI prisoners' rights was also limited to those facilities. Because the LGBTI investigation spans all facilities where LGBTI prisoners are housed, the Court finds that the requests are not irrelevant because they seek documents from facilities that are not close- or medium-security prisons. GDC also argues that it was "caught by surprise" when the 2021 Notice informed that it was a "continuation" of the 2016 investigation. Doc. No. [36], 16-17. Whether GDC was "caught by surprise" when it learned that DOJ was continuing its investigation into violations against LGBTI prisoners does not bear on the relevance of the documents as it relates to that portion of the investigation. GDC was put on notice both in 2016 and 2021 that DOJ was reviewing the treatment of LGBTI inmates in all of GDC's facilities. Accordingly, the Court finds that the scope of DOJ's investigation reaches into all of GDC's prisons and is not limited to close- and medium-security prisons.

Additionally, the Court finds that DOJ's relevance explanations meet the relatively low bar of "not [being] plainly incompetent or irrelevant to any lawful purpose of the agency." Kloster, 939 F.2d at 922. DOJ argued that all of these documents are relevant to identifying individuals whose rights were potentially violated, evaluating GDC's investigations and corrective actions, and developing a background understanding of incidents of alleged violations. The Court finds that DOJ's requests for documents relating to all facilities are relevant and enforceable. Accordingly, the Court ADOPTS the Magistrate's findings, and the petition is GRANTED regarding these requests.

2. Requests for Employee Separation Information and GDC SCRIBE Reports

GDC also objects to Request numbers 9 and 10. Request 9 seeks:

A list of, or documentation identifying, all security, medical, mental health, or supervisory Staff who have left employment with GDC in the past year, for any reason, including each person's name, title, date their employment began with GDC, date their employment ended, and reason for departure.

Doc. No. [1-5], at 5. Request No. 10 seeks "Copies of systemwide GDC Scribe reports covering all dates from September 1, 2019 to the present." Id.

With respect to the employee separation information, GDC argued that approximately 2,000 employees per year are separated from GDC. Doc. No. [14], 40. Of those 2,000 employees' separations, 400 were involuntary, and during the past two years, one was due to a violation of GDC's Prison Rape Elimination Act policies. Id. It would take GDC approximately 1,000 hours to search for the requested documents, despite the relatively small number of potentially helpful documents. Id. DOJ responded by arguing that staff terminations for any reason are relevant to DOJ's investigation of the effects of staffing shortages on potential violations. Doc. No. [16], 13. GDC raised many of the same arguments in its Objections. Doc. No. [36], 17-19. The Court finds that the employment separation documents are relevant to DOJ's Investigation into the effects of staffing shortages as they relate to potential violations. Accordingly, they are due to be produced.

Similarly, GDC argues that the request for SCRIBE documents is overly broad because SCRIBE contains information on topics including offenders who are not in GDC custody, victim disbursements from offender's accounts, offender's meals and dietary restriction, offender's medical and mental health, and dental care, and commissary purchases. Doc. No. [14], 39. Due to the SCRIBE system, GDC cannot run a single report and capture the information; rather, it estimates it would take approximately 2,000 hours to retrieve and download the requested SCRIBE reports. Id. at 39-40. DOJ argues that information in the SCRIBE reports, such as medical care, transports, or scheduled treatments, may relate to violence-related injuries. Doc. No. [16], 12-13. Again, the Court finds that the SCRIBE reports are relevant to DOJ's investigation.

The Court notes that retrieving these documents is burdensome on GDC; however, the Court finds that the importance of ensuring that constitutional violations do not occur in prisons outweighs the potential burdens to GDC. Additionally, DOJ argues that it is willing to provide GDC with financial, technical, or other assistance in the investigation. Doc. No. [1-7], 1. GDC notes that the "solution" for "simply [providing] DOJ with access to the records" is not feasible and does not alleviate the burdens on it. Doc. No. [36], 14. While simply giving DOJ access to the information may not be feasible, the Court finds that DOJ has offered to provide both financial and technical assistance in obtaining the documents. Doc. No. [1-7], 1. Thus, GDC's burden may be lessened if it uses the offered assistance. Although the Court finds that Request numbers 9 and 10 are relevant, the Court finds that it may be beneficial both to DOJ and GDC to work together to determine the scope of the production.

The Court ADOPTS the Magistrate's findings and GRANTS the petition as it relates to Requests 9 and 10.

3. Request for Prisoner Handbooks, Orientation Materials, Etc.

GDC objects to Request number 4. It seeks:

Prisoner handbook, orientation materials, prisoner education materials, posters, notices, handouts, brochures, and prisoner video presentations, including any materials informing prisoners of Policies for filing grievances, reporting [Prison Rape Elimination Act] allegations, or reporting prisoner-on-prisoner violence or fears or threats thereof.

Doc. No. [1-5], 5. GDC argues that the Request is overbroad because it seeks all posters, notices, handouts, or brochures provided to inmates, regardless of content. Doc. No. [14], 38. It also explains that it has produced 80 pages of documents responsive to this request in connection with DOJ's informal document request in October and November 2021. Id.; see also Doc. No. [1-28], 8. The United States does not explicitly respond to this argument, except generally to argue that "GDC cannot withhold responsive documents based on alleged overbreadth, burden, or disproportionality" because those "discovery-type objections" are inapplicable in a proceeding to enforce an administrative subpoena. Doc. No. [1-1], 19-20. In its Objections, GDC argues that "[t]he vast majority of documents provided to offenders relate to day-to-day activities, and not to topics of Investigation." Doc. No. [36], 17.

While broad, the Court finds that this request is "not plainly incompetent or irrelevant to any lawful purpose of the agency." Kloster, 939 F.2d at 922. CRIPA gives DOJ the power to "require by subpoena access . . . to any document, record, material, file, report, memorandum, policy . . . relating to any institution that is the subject of an investigation . . . to determine whether there are conditions which deprives person . . . of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States." 42 U.S.C. § 1997a-1(a). The Court finds that the Request asks for "any document[s] . . . relating to any institution that is the subject of an investigation." Id. Thus, the Request is not plainly irrelevant. Additionally, the Request does contain some specificity as it states that it would like "any materials informing prisoners of Policies for filing grievances, reporting [Prison Rape Elimination Act] allegations, or reporting prisoner-on-prisoner violence or fears or threats thereof." Doc. No. [1-5], 5. GDC argues that Request No. 4 is burdensome, but it does not explain in definite terms the burden it faces in producing these documents. Compare the analysis for producing SCRIBE documents, which explained the number of hours it would take to retrieve and produce those documents (Doc. No. [14], 38-40), to the analysis for Request No. 4, which states that the documents requested may not be relevant to the investigation (Doc. No. [36], 17). Given the lack of specificity regarding the size of the burden on GDC in complying with this request, the Court ADOPTS the Magistrate's findings and GRANTS the petition should be granted as it relates to Request No. 4.

The Court notes, as did the Magistrate (Doc. No. [34], 28 n.8), that this Request is broad and likely includes documents that DOJ is not truly seeking. Accordingly, the Court encourages DOJ and GDC to confer about the scope of the documents that DOJ is truly seeking.

C. Motion for a Protective Order

The Court rejects the Magistrate's findings concerning the Motion for a Protective Order. GDC objects to the Magistrate's denial of its Motion for a Protective Order. Doc. No. [36], 20-25. Rule 72(a) of the Federal Rules of Civil Procedure provides,

When a pretrial matter not dispositive of a party's claim or defense is referred to a magistrate judge to hear and decide, the magistrate judge must promptly conduct the required proceedings and, when appropriate, issue a written order stating the decision. A party may serve and file objections to the order within 14 days after being served with a copy. A party may not assign as error a defect in the order not timely objected to. The district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law.

Fed. R. Civ. P. 72(a) (emphasis added). A Motion for a Protective Order is a non-dispositive motion. See Florence v. Novo Nordisk Inc., 569 F. App'x 906, 906 (11th Cir. 2014) (reviewing non-dispositive order on a discovery protective order entered by a magistrate judge). Because the Motion for a Protective Order was non-dispositive, the Court reviews the Magistrate's determinations for clear error.

A finding is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Krys v. Lufthansa German Airlines, 119 F.3d 1515, 1523 (11th Cir. 1997). An order is contrary to law when it fails to apply or misapplies relevant statutes, case law, or rules of procedure. Tolz v. Geico Gen. Ins. Co., No. 08-80663-CIV, 2010 WL 384745, at *2 (S.D. Fla. Jan. 27, 2010). The Court finds that the Magistrate's findings regarding the need for a protective order have left this Court with a definite and firm conviction that a mistake has been committed.

"District courts have discretion to enter a protective order in conjunction with enforcing an administrative subpoena." N.L.R.B. v. Lear Corp. EEDS & Interiors, 2016 WL 11397056 at *3 (S.D. Ala. May 10, 2016). A party seeking a protective order bears the burden of establishing that it has good cause for needing one. See Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1313 (11th Cir. 2001); Landry v. Air Line Pilots Ass'n Int. 7 AFL-CIO, 901 F.2d 404, 435 (5th Cir. 1990). For good cause courts must look at "[1] the severity and the likelihood of the perceived harm; [2] the precision with which the order is drawn; [3] the availability of a less onerous alternative; and [4] the duration of the order," In re: Chiquita Brands Int'l, Inc., 965 F.3d 1238, 1251 (11th Cir. 2020).

Under the "good cause" standard, the court must balance the parties' competing interests. McCarthy v. Barnett Bank of Polk Cty., 876 F.2d 89, 91 (11th Cir. 1989); Farnsworth v. Procter & Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985). Trial courts have broad discretion "to decide when a protective order is appropriate and what degree of protection is required." Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984).

GDC objects to the Magistrate's findings primarily because the requested information contains highly sensitive information relating to GDC's safety protocols and procedures and incarcerated offenders. Doc. No. [36], 21. Additionally, GDC argues that CRIPA's protections do not offer adequate safeguards from intentional and inadvertent disclosures, such as discussing the information with offenders during the investigation or publishing a public findings letter. Id. at 22-25. The Court disagrees with the Magistrate's findings that these arguments necessarily mean that the disclosures would occur only if DOJ intentionally or inadvertently violated CRIPA. Doc. No. [34], 35-36. Additionally, the Magistrate did not address GDC's argument related to the "public findings letter." Accordingly, the Court finds that a mistake was made with respect to the Magistrate's findings regarding the Motion for a Protective Order.

The Court begins with a review of the protections afforded by CRIPA. Pursuant to CRIPA,

Any document, record, material, file, report, memorandum, policy, procedure, investigation, video or audio recording, or quality assurance report or other information obtained under a subpoena issued under this section--

(1) may not be used for any purpose other than to protect the rights, privileges, or immunities secured or protected by the Constitution or laws of the United States of persons who reside, have resided, or will reside in an institution;

(2) may not be transmitted by or within the Department of Justice for any purpose other than to protect the rights, privileges, or immunities secured or protected by the Constitution or laws of the United States of persons who reside, have resided, or will reside in an institution; and

(3) shall be redacted, obscured, or otherwise altered if used in any publicly available manner so as to prevent the disclosure of any personally identifiable information.

42 U.S.C. § 1997a-1(c). The Court finds that CRIPA does provide broad protections for the security of a target institution's documents; however, those protections do not alleviate the concerns raised by GDC.

Under CRIPA, DOJ is not authorized to "use" any of the information obtained pursuant to the subpoena unless it is used for the "purpose . . . to protect the rights, privileges, or immunities, secured by the Constitution . . . ." 42 U.S.C. § 1997a-1(c)(1). The Court finds that it is plausible, and not only "hypothetical" (Doc. No. [34], 32), that DOJ could use these documents when interviewing witnesses. See In re Abilify (Aripiprazole) Prods. Liab. Litig., 2018 WL 1858224, at * 1 (N.D. Fla. Apr. 18, 2018) (court granted request for production of documents so that "Plaintiffs would have the documents available for use at the 30(b)(6) depositions). It is well within the realm of plausibility that DOJ could use the information gained from the subpoenas to aid in witness interviews. DOJ even stated that some of the requested documents are relevant because "[d]ocuments about prisoners who fall into high-risk groups can help identify potential victims of violence and sexual abuse." Doc. No. [1-1], 7. DOJ also stated that it planned to conduct interviews with staff and prisoners. See id. at 17 ("[DOJ] requires documents related to COVID-19 vaccination rates and statistics to plan safe and effective site visits to GDC facilities and schedule and sequence interviews with staff and prisoners. Absent such site visits or interviews, the Department cannot effectively determine whether there have been violations of the Constitution or federal law.")

Because DOJ states that it intends to interview both GDC staff and prisoners and the Court is aware that attorneys often use written discovery during witness interviews, the Court finds that GDC's concerns are not hypothetical and are effectively tied to the request for a protective order. If DOJ uses the subpoenaed documents when interviewing an inmate, it would not necessarily be prohibited by CRIPA. CRIPA allows DOJ to use the subpoenaed documents to protect incarcerated individuals from potential constitutional violations. See 42 U.S.C. § 1977a-1(c)(1). A witness interview to ascertain the specifics of the alleged violations would further the purpose of uncovering systemic constitutional violations. Accordingly, the Court finds that CRIPA's protections are insufficient to safeguard against these intrusions.

Although not binding, the Court finds the Eleventh Circuit's holding in In Re: Secretary, Florida Department of Corrections, No. 20-10650-J, 2020 WL 1933170 (11th Cir. Mar. 30, 2020) instructive on this issue. During a case brought by inmates who alleged constitutional violations, the Florida Department of Corrections ("FDC") requested a protective order before it produced certain documents. Id. at *1. There, FDC "wished to designate certain requested information involving sensitive prison security and safety issues as 'Attorneys' Eyes Only,' a provision which would prohibit the information from being viewed by persons other than counsel without permission of FDC." Id. The district court issued a confidentiality order that permitted plaintiffs who were incarcerated and other groups of individuals to access all discovery without FDC permission. Id. FDC sought a writ of mandamus to compel the district court to enter an order granting the "attorney's eyes only' protective order. Id. The Eleventh Circuit found that the district court "clearly abused its discretion in denying the Motion for a Protective Order." Id. at *2. The Court reasoned that "[n]o one doubts or argues that plaintiffs' counsel would handle discovery in a reasonable manner[;]" however, "[t]he named plaintiffs are currently incarcerated prisoners whose possession of such sensitive information is a clear and obvious security risk." Id.

In the case sub judice, the Court finds that the same concerns exist. Although the concerns are not as acute as in In re Secretary (Doc. No. [34], 34]), where the inmates were the plaintiffs, the Court finds that under CRIPA it is plausible that currently incarcerated individuals may have access to sensitive information about current and former prison employees as well as safety procedures and protocols. Just as the Eleventh Circuit found, allowing currently incarcerated prisoners access to this information "is a clear and obvious security risk." The Court has no doubt that DOJ will not violate the law when investigating the alleged violations. See U.S. Dep't of Educ. V. Nat'l Collegiate Athletic Ass'n, No. 106CV-01333-JDT-TAB, 2006 WL 3198822, at *8 (S.D. Ind. Sept. 8, 2006) (quoting F.C.C. v. Schreiber, 381 U.S. 279, 296, 85 S.Ct. 1459, 14 L.Ed.2d 383 (1965) ("the Supreme Court[ ] instruct[s] that administrative agencies are entitled to the presumption 'that they will act properly and according to law.' "). However, CRIPA permits DOJ to disclose this information to inmates in certain circumstances.

Because CRIPA does not prohibit sharing the subpoenaed documents with currently incarcerated inmates, the Court finds good cause for granting a protective order in this case. The Court finds that the Magistrate made a mistake when it found that CRIPA offered adequate protection from these disclosures (Doc. No. [34], 35-36).

The Court also finds that the Magistrate did not consider GDC's argument that CRIPA does not protect from disclosing the documents in a public findings letter.¹¹ Doc. No. [18], 10. CRIPA provides that the subpoenaed information "shall be redacted, obscured, or otherwise altered if used in any publicly available manner so as to prevent the disclosure of any personally identifiable information." 42 U.S.C. § 1997a-1(c)(3). The Court finds that the requirement that personally identifiable information be redacted does not sufficiently protect against the disclosure of prison security procedures and policies. The Department of Justice website contains findings reports, summaries of findings, case summaries, and other related documents on their website.¹² See Special Litigation Section Cases and Matters Corrections, Department of Justice, https://www.justice.gov/crt/special-litigation-section-cases-and-matters (last visited Mar. 1, 2023). Thus, it is not hypothetical, but likely that DOJ will produce a findings letter regarding its investigation of GDC facilities. The Court finds that under CRIPA, DOJ is permitted to publicly disclose subpoenaed documents, so long as it redacts personally identifiable information. In In re Secretary, the Eleventh Circuit found that denial of a Motion for a Protective Order was an abuse of discretion where the "list of people who have access represents a broad swath of people who might be designated as witnesses, declarants, or consultants with no input whatsoever by the government." In re Secretary, 2020 WL 1933170, at *2.

11 The Court notes that this argument was raised for the first time in it reply brief. Doc. No. [18]. Ordinarily, "the Court will not consider new arguments raised for the first time in a Reply brief." Black Voters Matter Fund v. Raffensperger, 478 F. Supp. 3d 1278, 1303 n.15 (N.D. Ga. 2020). The Eleventh Circuit generally will not allow a district court to consider an argument raised in a reply brief without giving an opposing party an opportunity to respond. Cf. Atl. Specialty Ins. Co. A.S. v. Digit Dirt Worx, Inc., 793 F. App'x 896, 901-02 (11th Cir. 2019). In the case sub judice, the Magistrate held a hearing on the pending motions, including the Motion for a Protective Order. Doc. No. [31]. Thus, DOJ was given an opportunity to respond to GDC's argument regarding the public findings letter. Accordingly, the Court finds that the Magistrate should have considered this argument in its R&R.

12 The Court is unable to determine whether the jurisdictions listed on the website produced information voluntarily or pursuant to a subpoena. Some of the findings reports seem to be entered while the case is still under investigation. See, e.g., Alemeda County, Cal. Investigation.

In the case sub judice, the broad swaths of people who might have access to this information include the entire general public. Moreover, as shown above, DOJ has requested, and this Court has ordered GDC to produce a large amount of documents. As part of the subpoena, DOJ has requested information about GDC turnover to "indicate whether there are sufficient personnel to protect prisoners." Doc. No. [1-1], 7. Additionally, some of the requested documents "would indicate what steps GDC has taken to collect data about harms and develop corrective action." Id. at 8. The Court finds that the requested documents would likely implicate the safety and security policies and procedures that are currently in place at GDC facilities. Accordingly, the Court finds that the "extraordinary broadness of the [subpoena], the seriousness of the potential security and safety breaches," meets the good cause standard for granting a protective order.

The Court finds that the prejudice to DOJ, as it relates to timing, is minimal in light of the potential for security and safety breaches. DOJ argued that GDC's proposed definition of "confidential information" is too broad, marking the documents as confidential will create undue delays, retroactive confidentiality designations would create further delays, restrictions related to FOIA are inconsistent with the statute, the restrictions on DOJ's use of the information is too far-reaching, and the proposed protective order exceeds the scope of the subpoena. Doc. No. [17], 15-25. The Court finds that DOJ's concern about delay, while important, does not negate the seriousness of the security risks that disclosure of the documents poses. Accordingly, the Court finds that a protective order is due to be entered in this case. Thus, the Court REJECTS the Magistrate's ruling on the Motion for a Protective Order and grants the Motion.

The Court does, however, agree with DOJ that the protective order proposed by GDC is not sufficiently definite, is too broad, and exceeds the bounds of the subpoena. Additionally, the Court has serious concerns that the proposed protective order may cause DOJ to violate its FOIA obligations. Accordingly, the Court declines to enter the proposed protective order as drafted. The Court REFERS this matter back to the Magistrate for crafting an appropriate protective order. WITHIN NINTEY DAYS of the entry of this Order, the Parties are ORDERED to confer with one another, under the direction of the Magistrate to craft a mutually agreeable protective order. Failure to come to agreement will result in this Court drafting and entering a protective order. The Court defers to the Magistrate for establishing the procedures and timeline for effectuating this Order, including but not limited to entering a protective order and the timeline for GDC's production of documents.

IV. CONCLUSION

For the foregoing reasons, the Court ADOPTS IN PART AND REJECTS IN PART the Magistrate's Report and Recommendation (Doc. No. [34]).

The Court ADOPTS the Magistrate's subject matter jurisdiction findings. The Court also ADOPTS the Magistrate's findings regarding the enforceability of the subpoena.

The Court REJECTS the Magistrate's findings as they relate to the Motion for Protective Order.

The Court REFERS this matter back to the Magistrate for crafting an appropriate protective order. WITHIN NINTEY DAYS of the entry of this Order, the Parties are ORDERED to confer with one another, under the direction of the Magistrate to craft a mutually agreeable protective order. Failure to come to agreement will result in this Court drafting and entering a protective order. The Court defers to the Magistrate for establishing the procedures and timeline for effectuating this Order, including but not limited to entering a protective order and the timeline for GDC's production of documents.

IT IS SO ORDERED this 10th day of March, 2023.