Lamb v. Wallace, et al

Filing 106

ORDER denying 72 Motion to Quash (Subpoenas to FBI and U.S. Attorney) - The court hereby DIRECTS the parties to meet and confer, in person or by telephone, in an effort to reach an agreement concerning the ter ms of a protective order, if appropriate. The parties shall jointly submit, within twenty-one (21) days of this order, a motion and proposed protective order or notice informing the court of the parties' respective positions with regard to a protective order. Signed by Magistrate Judge Kimberly A. Swank on 2/12/2018. (Tripp, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:16-CV-44-FL

LARRY LAMB and ERNEST
MATTHEWS,
Plaintiffs,
v.
BLAKE WALLACE, et al.,
Defendants.

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ORDER

This matter is before the court on the Motion to Quash filed by the United
States of America (Government) [DE #72], the motion having been referred by United
States District Judge Louise W. Flanagan. Plaintiffs responded in opposition
[DE #87], and the Government replied [DE #93]. On October 19, 2017, this court
ordered Plaintiffs and the Government to submit supplemental briefing addressing
whether final agency action had been taken by the Government [DE #94], and both
the Government and Plaintiffs responded accordingly [DE ##95, 98]. The matter is
now ripe for adjudication.
BACKGROUND
Plaintiffs subpoenaed documents from the Federal Bureau of Investigation
(FBI) and the United States Attorney’s Office for the Eastern District of North
Carolina (USAO) pursuant to Rule 45 of the Federal Rules of Civil Procedure in

relation to the above-captioned civil case. Additionally, Plaintiffs included
information demonstrating their compliance with the applicable Department of
Justice (DOJ) regulations codified at 28 C.F.R. §§ 16.21–16.29.1 (Gov’t Reply at 5 n.2.)
The Government is not a party to the underlying civil action, which was filed in
federal court and, among other things, alleges various violations of Plaintiffs’ federal
constitutional rights by local and state law enforcement officers.
DISCUSSION
The Administrative Procedure Act (APA), 5 U.S.C. §§ 701 et seq., authorizes
judicial review of “final agency action.” 5 U.S.C. § 704 (“Agency action made
reviewable by statute and final agency action for which there is no other adequate
remedy in a court are subject to judicial review.”). In its supplemental brief, the
Government concedes that it took final agency action when it issued its formal
decision not to comply with Plaintiffs’ subpoenas on May 10, 2017. (Gov’t Suppl. Brief
[DE #95] at 1.)
The Government moves to quash Plaintiffs’ subpoenas on the ground that
compliance would violate DOJ’s Touhy regulations prohibiting disclosure of a
confidential source or informant. See 28 C.F.R. §§ 16.24(b)(1), 16.26(b)(4). (Gov’t
Reply at 8.) In addition to the substantive issue regarding the motion to quash, the

The FBI and USAO are part of the Department of Justice (Gov’t Reply Mot.
Quash (Gov’t Reply) [DE #93] at 8). Thus, any request for testimony or documents
from its employees regarding information obtained in the performance of their official
duties is governed by the regulations set forth at 28 C.F.R. § 16.21 et seq. (Touhy
regulations). See United States ex rel. Touhy v Ragen, 340 U.S. 462 (1951).
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Government also argues there is a jurisdictional defect in the manner in which the
issue has been raised. Specifically, the Government contends that Plaintiffs must
initiate a collateral action against the Government under the APA to invoke the
court’s jurisdiction to review the Government’s refusal to comply with the subpoenas.
(Gov’t Reply at 2–5; Gov’t Suppl. Brief at 3–4.)
I.

Separate Action under APA Not Required
As a preliminary matter, the court determines that Plaintiffs are not required

to file a separate action under the APA against the Government to vindicate their
subpoenas. Sovereign immunity, upon which the Government relies, does not
preclude the enforcement of Plaintiffs’ subpoenas.
Whether a party seeking to enforce a subpoena against a non-party federal
agency must institute a separate and independent action under the APA has
previously been discussed by this and other courts. See, e.g., Sauer Inc. v. Lexington

Ins. Agency, Inc., No. 5:13-CV-180-F, 2014 WL 5580954, at *4 (E.D.N.C. Oct. 31,
2014); Spence v. NCI Info. Sys., 530 F. Supp. 2d 739, 744 (D. Md. 2008). Analyzing
the plain text of the relevant APA provisions, 5 U.S.C. §§ 702 & 703, the Second
Circuit concluded that a “separate action for judicial review to compel compliance
with a third-party subpoena addressed to the [federal] government” is not required
when the underlying matter is already in federal court. U.S. Envtl. Prot. Agency v.

General Electric Co., 197 F.3d 592, 599 (2d Cir. 1999), amended on rehearing, 212
F.3d 689 (2d. Cir 2000). The textual analysis offered by the Second Circuit is
persuasive, and the judicial efficiency concern noted in General Electric supports that

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court’s interpretation of the APA. See Sauer, 2014 WL 5580954, at *4, and Spence,
530 F. Supp. 2d at 744 (both endorsing General Electric’s holding that a collateral
APA action is not required when underlying lawsuit originated in federal court).
In support of its position, the Government cites the following Fourth Circuit
cases, all of which emanated from state court or arbitration proceedings: COMSAT

Corp. v. Nat’l Sci. Found., 190 F.3d 269, 273–74 (4th Cir. 1999) (motion to compel
federal agency employees to produce documents in response to an arbitrator-issued
subpoena); United States v. Williams, 170 F.3d 431, 432–33 (4th Cir. 1999) (motion
to compel FBI to produce documents in response to state-court subpoena related to
state criminal proceeding); Smith v. Cromer, 159 F.3d 875, 879 (4th Cir. 1998)
(motion to compel federal prosecutors to testify in state criminal proceeding); Boron

Oil Co. v. Downie, 873 F.2d 67, 67, 70 (4th Cir. 1989) (motion to compel federal agency
employee to testify in state civil action). As the Government concedes (Gov’t Reply at
3, 5) and as the court in Spence noted, the Fourth Circuit has not addressed this issue
in the context of a non-party federal agency served with a subpoena pursuant to
Federal Rule of Civil Procedure 45 as part of a case originating in federal court,

Spence, 530 F. Supp. 2d at 744.
The Fourth Circuit cases cited above are all inapposite to the present issue
because the sovereignty concern underlying those decisions is not present when the
subpoenas stem from a proceeding initiated in federal court. In Cromer, the Fourth
Circuit explained that sovereign immunity prevents a state court, and a federal court
on removal jurisdiction pursuant to 28 U.S.C. § 1442, from enforcing a subpoena

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against a federal official. Cromer, 159 F.3d at 879. Cromer also made clear, though,
that its decision was premised on principles of federal supremacy. See Cromer, 159
F.3d at 880 (“These decisions [denying state court access to federal agency records],
like our decision in Boron v. Downie, reflect the principle of federal supremacy in two
ways: (1) by applying the doctrine of sovereign immunity to preclude state courts, or
a federal court on removal, from reviewing federal agency action, and (2) by giving
recognition to the principle that valid federal regulations have the force and effect of
federal law, which state courts are bound to follow.”).
That a collateral action is required when the subpoena emanates from a state
court or a federal court that derives its authority, upon removal, from the state court
is logical. Such courts lack authority, based on sovereign immunity, to review federal
agency action. In that circumstance, a collateral action puts the federal agency’s
refusal to comply with subpoenas before a federal court, which has authority under
the APA to order compliance with or quash the subpoenas. See Ceroni v. 4Front

Engineered Solutions, Inc., 793 F. Supp. 2d 1268, 1276 (D. Colo. 2011) (noting that in
COMSAT “[a] federal action had to be commenced to challenge the Touhy objection
because there was no underlying federal action in which to bring a discovery motion”).
“The APA waives the government's sovereign immunity from suit and permits
federal court review of final agency actions.” COMSAT, 190 F.3d at 274. Requiring
Plaintiffs to initiate a collateral action would serve no purpose whatsoever,
particularly in a district where the court’s local rules would likely mean that the
collateral action would be assigned to the same judge. See Doan v. Bergeron, No. 15-

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CV-11725-IT, 2016 WL 5346936, at *2 (D. Mass. Sept. 23, 2016) (endorsing General

Electric’s rationale for collateral APA actions and noting that under local rules “any
separate action would . . . be assigned to [the] court as a related case.”); Local Civil
Rule 40.3, E.D.N.C. (Dec. 1, 2017).
Here, the underlying matter originated in federal court, and therefore,
sovereign immunity does not preclude this court from considering whether Plaintiffs’
subpoenas should be enforced. Consistent with Sauer and Spence, and with no
contrary Fourth Circuit precedent, the court adopts as its own the reasoning of

General Electric – Plaintiffs need not initiate a collateral action to review the
Government’s refusal to comply with their subpoenas issued pursuant to Federal
Rule of Civil Procedure 45 and in compliance with the applicable Touhy regulations.
II.

Review under the Administrative Procedure Act
The Fourth Circuit has held that “[w]hen the government is not a party, the

APA provides the sole avenue for review of an agency’s refusal to permit its employees
to comply with subpoenas.” COMSAT, 190 F.3d at 274. “The APA waives sovereign
immunity and permits a federal court to order a non-party to comply with a subpoena
if the government has refused production in an arbitrary, capricious, or otherwise
unlawful manner.” COMSAT, 190 F.3d at 277. “A federal agency’s decision is
arbitrary and capricious for purposes of the APA ‘if the agency has relied on factors
which Congress has not intended it to consider, entirely failed to consider an
important aspect of the problem, offered an explanation for its decision that runs
counter to the evidence before the agency, or is so implausible that it could not be

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ascribed to a difference in view or the product of agency expertise.’” Sauer, 2014 WL
5580954, at *4 (quoting Motor Vehicles Mfrs. Ass’n of U.S. v. State Farm Mut. Auto

Ins. Co., 463 U.S. 29, 43 (1983)). “While [a reviewing court] may not supply a reasoned
basis for the agency’s action that the agency itself has not given, [the court] will
uphold a decision of less than ideal clarity if the agency’s path may reasonably be
discerned.” Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281,
285–86 (1974) (citations omitted).
A.

Factual Background

In February 1987, Leamon Grady was murdered at his home in Duplin County,
North Carolina. Plaintiffs Lamb and Matthews, in addition to Levon “Bo” Jones, were
convicted in state court of offenses related to Grady’s murder. (First Am. Compl.
[DE #41] at 6–11.) Plaintiff Lamb and Jones were convicted after trial; Plaintiff
Matthews pleaded guilty to avoid a death sentence. (Id. at 10–11.) The State’s key
witness at Jones’s and Lamb’s trials was Ms. Lovely Lorden. (Id. at 10.)
All three men unsuccessfully appealed their convictions and subsequently filed
state post-conviction proceedings. Jones also initiated federal habeas proceedings. In
2006, this court granted Jones’s habeas petition on grounds of ineffective assistance
of counsel and vacated his conviction. Jones v. Lee, No. 5:00-HC-238-BO, ECF No. 75
(E.D.N.C. Sept. 27, 2006). In August 2013, the late W. Douglas Parsons, North
Carolina Senior Resident Superior Court Judge, granted Plaintiff Lamb’s motion for
appropriate relief (MAR) and vacated his conviction. (Ex. B to Pls.’ Resp. Mot. Quash
[DE #87-3].) In May 2016, Judge Parsons granted Plaintiff Matthews’s MAR and

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vacated his conviction. (Ex. C to Pls.’ Resp. Mot. Quash [DE #87-4].) Each of these
judicial orders vacating Jones’s, Lamb’s, and Matthews’s respective convictions
depended heavily on criticism of Lorden’s credibility.2
In March 2016, Lamb filed the instant lawsuit (Compl. [DE #1]), to which
Matthews was subsequently added as a plaintiff (First Am. Compl. at 1). At its core,
the action alleges that certain local and state law enforcement officers violated
Plaintiffs’ constitutional rights through the “coaching” of Lorden as a witness in the
underlying criminal prosecutions, and through the failure to disclose that Lorden had
an extensive history as an informant for local, state, and federal law enforcement. Of
particular relevance here, Plaintiffs assert violations of their Fifth Amendment right
under Brady v. Maryland to material, exculpatory evidence during the trial phase of
the state criminal proceedings (Pls.’ Resp. Mot. Quash [DE #87] at 3) and a
freestanding Fourteenth Amendment due process claim for failure to disclose
material, exculpatory evidence regarding Lorden during post-conviction proceedings
(Pls.’ Resp. Suppl. Brief [DE #98] at 9).
Plaintiffs served the subpoenas at issue here pursuant to Rule 45 as part of the
discovery process. Plaintiffs allege particular reason to believe that Lorden had
worked as an informant for the FBI based on testimony from Attorney Ernest Conner
during an evidentiary hearing in state court regarding Plaintiff Lamb’s MAR (Ex. A
to Pls.’ Resp. Mot. Quash [DE #87-2] at 3) and based on Attorney Conner’s testimony

The state court orders vacating Plaintiffs’ convictions detail the procedural
history of Plaintiffs’ various post-conviction proceedings. (See Exs. B & C to Pls.’ Resp.
Mot. Quash.)
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and documents relating to an alleged undercover drug operation involving the FBI
and local law enforcement in 2003 (Ex. D to Pls.’ Resp. Mot. Quash [DE #87-5]). (Pls.’
Resp. Mot. Quash at 9.)
When Plaintiffs served the instant subpoenas on the FBI and USAO, they
included an Affidavit of Relevancy for the purpose of complying with DOJ’s Touhy
regulations. The Government does not dispute that Plaintiffs followed requisite

Touhy protocol in their request for documents from the FBI and USAO. (Gov’t Reply
at 5 n.2.)
B.

Analysis

The Government contends that Plaintiffs’ request for documentary evidence in
the FBI’s and USAO’s possession relating to Lovely Lorden runs afoul of valid
regulations and that Plaintiffs offered “nothing compelling” in their request for
documents. (Gov’t Reply at 8–9.) The Government resists the subpoenas not because
the identity of Lovely Lorden is confidential, but because the FBI has never admitted
that Lorden worked as an informant for it. (Gov’t Reply at 9.) Providing no further
explanation and no reason particular to this or any other case, the Government
contends that “positive disclosure of the identity of a confidential source by the FBI
is an official action that carries with it material consequences beyond the litigation
at hand.” (Gov’t Reply at 9.) The Government also resists the subpoenas on the
ground that even if Lorden did work for the FBI as an informant after Plaintiffs’
convictions, such evidence would not be relevant to Plaintiffs’ Brady-based claim. (Id.
at 10–12.)

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In contrast, Plaintiffs contend the information they seek through their
subpoenas is narrowly tailored; highly relevant and material to their lawsuit; and not
burdensome to produce since they seek only documents. (Pls.’ Resp. Mot. Quash at
10–12.) Plaintiffs also contend that the Government’s reliance on 28 C.F.R.
16.26(b)(4) is misplaced because Lovely Lorden’s identity as an informant is no longer
confidential. (Id. at 8–10.) For the reasons explained below, the Government’s
argument is unsatisfactory. Its decision refusing to cooperate with Plaintiffs’
subpoenas failed to consider important aspects of the dispute, runs counter to the
evidence presented, and misapplies DOJ’s Touhy regulations.
That Lovely Lorden served as an informant is widely known, though her
identity as an FBI informant has never been confirmed. The Government maintains
that even if an informant reveals her status as such, it remains free to refuse
disclosure based upon departmental policy and DOJ Touhy regulations. (Gov’t Reply
at 9.) The Government has identified two reasons for its refusal to disclose the
information sought by Plaintiffs’ subpoenas. First, the Government contends that
disclosure would violate the FBI’s policy against revealing confidential sources.
Second, the Government contends that 28 C.F.R. § 16.26(b)(4) prohibits disclosure of
a confidential source or informant.
DOJ’s Touhy “regulations are ‘intended only to provide guidance for the
internal operations of the Department of Justice, and [are] not intended to, and [do]
not, and may not be relied upon to create any right or benefit, substantive or
procedural, enforceable at law by a party against the United States.’” Cromer, 159

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F.3d at 880 (alterations in original) (quoting 28 C.F.R. § 16.21(d)). However, these
internal regulations, promulgated under the federal “housekeeping statute,” 5 U.S.C.
§ 301, also create no substantive rights in favor of the Government. There is no
“independent privilege to withhold government information or shield federal
employees from valid subpoenas” that arises from the regulations. General Electric,
197 F.3d at 598 (quoting Exxon Shipping Co. v. U.S. Dep't of Interior, 34 F.3d 774,
780 (9th Cir.1994)). Nor could there be, as § 301 expressly provides that it “does not
authorize withholding information from the public or limiting the availability of
records to the public.” 5 U.S.C. § 301; see also Houston Bus. Journal, Inc. v. Office of

Comptroller of Currency, 86 F.3d 1208, 1212 (D.C. Cir. 1996) (“[N]either the Federal
Housekeeping Statute nor the Touhy decision authorizes a federal agency to withhold
documents from a federal court.”).
There is no doubt that a governmental privilege exists here. In Roviaro v.

United States, 353 U.S. 53 (1957), the Supreme Court recognized an executive
privilege “to withhold from disclosure the identity of persons who furnish information
of violations of law to officers charged with enforcement of that law.” Roviaro, 353
U.S. at 59. “The privilege recognizes the obligation of citizens to communicate their
knowledge of the commission of crimes to law-enforcement officials and, by
preserving their anonymity, encourages them to perform that obligation.” Id. The
privilege is not absolute, however; it ceases once the reason for it no longer exists. Id.
at 60. “[O]nce the identity of the informer has been disclosed to those who would have
cause to resent the communication, the privilege is no longer applicable.” Id. “The

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privilege must also give way when the informant or the contents of his communication
‘is relevant and helpful to the defense of an accused, or is essential to a fair
determination of a cause.’” United States v. Smith, 780 F.2d 1102, 1107 (4th Cir.
1985) (en banc) (quoting Roviaro, 353 U.S. at 60–61).
Here, the Government’s interest in protecting the identity of its informant is
significantly eroded. Lovely Lorden’s identity as a confidential informant is widely
known and has been discussed by both the state and federal courts. Even assuming
Lorden’s role as an FBI informant has never been confirmed or denied, the FBI has
come as near as possible to making that revelation. In its own briefing, the
Government states that it conducted a search for records responsive to Plaintiffs’
subpoenas (Gov’t Mem. Supp. Mot. Quash [DE #74] at 3–4) and, following that search,
offered to issue a declaration stating that Lorden was not an FBI informant before
1993 (Gov’t Reply at 11).3 Plaintiffs refused this offer because they desired
information through 2016, the year that Plaintiff Matthews’s conviction was vacated.
(Pls.’ Resp. Suppl. Brief at 3.) The implication that Lorden worked as an informant
for the Government after 1992 is nearly irresistible given the Government’s
willingness to declare that Lorden did not work for it before 1993; the Government’s

The Government has not moved to seal this filing. It has redacted Lorden’s
name from the subpoena and accompanying affidavit of relevancy and never mentions
Lorden by name throughout its filings. However, Lorden’s identity as an informant
for law enforcement in the Grady case—and others, generally—is public knowledge.
See, e.g., Shaila Dewan, Executions Resume, as Do Questions of Fairness, N.Y.
Times, May 7, 2008, at A1; Larry Lamb: A Free Man, North Carolina Center on
Actual Innocence, https://www.nccai.org/larry-lamb/ (last visited Feb. 1, 2018).
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unwillingness to make such a declaration regarding years 1993 through 2016; and
the publicity surrounding Lorden’s status as an informant for law enforcement.
The Government’s argument about the relevancy of the subpoenaed materials
is unavailing. Plaintiffs have asserted a freestanding Fourteenth Amendment due
process claim based on Defendants’ failure to disclose information regarding Lorden’s
informant status during the post-conviction proceedings.4 (See Pls.’ Resp. Suppl. Brief
at 9.) If Lorden had been an informant for the FBI during that period and Defendants
were aware of that fact and failed to disclose it, that information would be relevant
to Plaintiffs’ claim. Indeed, given the credibility concerns regarding Lorden and her
relationship with the defendant law enforcement officers, the most potent and
reliable evidence of Lorden’s alleged work as an FBI informant would be evidence
procured from the FBI. And Lorden’s status as an informant for law enforcement—
local, state, or federal—may also be relevant to her credibility and bias as a witness
were she to testify at trial or deposition. Therefore, the Government’s argument that
the subpoenaed information is irrelevant to Plaintiff’s claims is without merit.
Furthermore, the agency’s position that compliance with Plaintiffs’ subpoena
is prohibited because it would reveal a confidential source is at odds with DOJ’s

Touhy regulations. Subsection (c) of 28 C.F.R. § 16.26 provides, in part:

Plaintiffs have alleged that Defendants deprived them “of their constitutional
rights to a fair trial and fair legal process.” (First Am. Compl. at 13, ¶ 73 (emphasis
added).) And Plaintiffs specifically identify Lorden as providing live testimony in
Jones’s habeas proceedings and in Plaintiff Lamb’s MAR hearing, in addition to
affidavits submitted post-conviction. (Pls.’ Resp. Mot. Quash at 12.)
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The Deputy or Associate Attorney General will not approve disclosure if
any of the conditions in paragraphs (b)(4) through (b)(6) of [§ 16.26]
exist, unless the Deputy or Associate Attorney General determines that
the administration of justice requires disclosure. In this regard, if
disclosure is necessary to pursue a civil or criminal prosecution or
affirmative relief, such as an injunction, consideration shall be given to:
(1) The seriousness of the violation or crime involved;
(2) The past history or criminal record of the violator or accused,
(3) The importance of the relief sought,
(4) The importance of the legal issues presented,
(5) Other matters brought to the attention of the Deputy or
Associate Attorney General.
28 C.F.R. § 16.26(c). The Government sets out in detail its application of paragraph
(b)(4) to justify its noncompliance with Plaintiffs’ subpoena but fails to provide any
explanation of this apparently relevant5 subsection of the same regulation or whether
the agency considered any of the factors in subsection (c) in determining whether the
administration of justice required disclosure. (Gov’t Reply at 6–8.)
Next, Plaintiffs’ request is narrowly tailored and not particularly burdensome.
First, Plaintiffs have only requested documents, and not the testimony of any FBI or
USAO employee. Cf. Boron Oil, 873 F.2d at 71–72 (discussing burden of compelling
federal officers to testify in court). Second, Plaintiffs have requested a narrow class
of documents. This is not an open-ended fishing expedition. Cf. Johnson v. Folino, 528
F. Supp. 2d 548, 552 (E.D. Pa. 2007) (rejecting as “a fishing expedition” habeas

See Prosecute and Prosecution, Black’s Law Dictionary (6th ed. 1990); The
Brazil, 134 F.2d 929, 931 (7th Cir. 1943) (defining ‘prosecution’ to include
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“commencing, conducting and carrying a suit to a conclusion in a court of justice”).
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petitioner’s request to compel FBI to divulge redacted names in memorandum FBI
produced in response to Rule 45 subpoena). Moreover, the FBI has already conducted
the search for records that Plaintiffs seek. (Gov’t Mem. Supp. Mot. Quash at 3–4.)
Plaintiffs have alleged a constitutional violation of great magnitude: that local
and state law enforcement contrived to fabricate evidence, obstruct justice, and
suborn perjury so that Plaintiffs would be convicted for a murder they did not commit,
and then continued to conceal that wrongdoing while Plaintiffs sat in prison.
Moreover, the posture of the case is unique in that Plaintiffs’ underlying criminal
convictions have been vacated based primarily on the dubious credibility of the
informant about whom they seek more information. The Government’s briefing in
support of its motion to quash indicates the agency’s decision was reached upon a
misapplication of its regulations, runs contrary to the evidence before it, and failed to
consider important aspects of the problem, namely the seriousness of the action
Plaintiffs have brought, the posture of that action, and the relevance to that lawsuit
of the information sought from the Government. The agency’s refusal to comply with
Plaintiffs’ subpoena was arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law, and the Government’s motion to quash is, therefore,
denied.
Bearing in mind, however, the Government’s concern about potential
consequences of disclosure as it pertains to other matters and that the information
sought by Plaintiffs may contain information that is subject to the Privacy Act, 5
U.S.C. § 552a, a protective order limiting Plaintiffs’ disclosure of any information

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