IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

RODERICK JOHNSON, : CIVIL ACTION

: NO. 04-2835

Petitioner, :

:

v. :

:

LOUIS FOLINO ET AL., :

:

Respondents. :

M E M O R A N D U M

EDUARDO C. ROBRENO, J. December 10, 2007

Before the Court is a motion to compel the FBI to

produce an unredacted copy of a memorandum previously produced to

Petitioner in redacted form. The FBI opposes the motion,

arguing, first, that this Court lacks jurisdiction over the

dispute and, second, that even if the Court can decide the

matter, it should not grant the motion. The Court concludes that

it does have jurisdiction to decide the motion and that the

motion should be denied.

I. BACKGROUND

Roderick Johnson was convicted of the first-degree

murder of Jose Bernard Martinez in the Berks County Court of

Common Pleas and sentenced to life imprisonment. The testimony

of George Robles played an important role in Johnson’s

conviction. Johnson’s petition for habeas corpus alleges that at

least one of the police officers investigating the Martinez

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murder had a corrupt relationship with Robles, who was heavily

involved in illegal drug activities. Johnson claims that Robles

testified against him because of Robles’ relationship with the

police. In essence, he wished to guarantee preferential

treatment for himself and his drug gang and he sought to do so by

offering the police evidence against Johnson.

The habeas petition claims that, on July 14, 2003,

Robles made statements indicating that the Commonwealth possessed

exculpatory evidence that had not been previously produced to

Petitioner. This evidence is as follows: Robles was in a group

called the Nyte Life Clique (“NLC”), in which he was known as

“Gambino.” The NLC enabled Robles to “run the streets for a

number of years.” Robles remembered smoking marijuana with

Criminal Investigator (“CI”) Angel Cabrera in the presence of CI

Bruce Dietrich. Robles had an ongoing corrupt relationship with

members of the Reading police force and he had a corrupt motive

to assist the police by testifying against Johnson.

Johnson’s PCRA petition was accompanied by affidavits

from George Robles, Edwin Ruiz (a relative of Robles), and two

defense investigators who claim to have been threatened by

Robles. Johnson also submitted the affidavit of Joseph Thornton,

a defense investigator who interviewed Berks County Chief County

Detective Joseph Stajkowski. Stajkowski provided support for the

assertion that Detectives Cabrera and Dietrich were involved in

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drug trafficking; Johnson argued that Stajkowski’s statement

corroborated Johnson’s claim that Robles had a corrupt

relationship with the police.

II. JOHNSON’S MOTION TO COMPEL

Johnson moves to compel the FBI’s compliance with a

subpoena issued on January 31, 2007. The subpoena requested FBI

records related to George Robles or documenting investigations or

complaints about Bruce Dietrich and other named investigators

from the Reading Police Department. See Ex. 10, Pet.’s Mot. to

Compel (doc. no. 68). In response to the subpoena, the FBI

produced two documents, only one of which is in dispute now. It

is a memorandum dated January 2, 1990; it discusses a police

investigation involving one or more Reading police officers. The

document was redacted to eliminate the names and identifying

information of individuals who were not named in Johnson’s

subpoena. See Ex. 11, Pet.’s Mot. to Compel. 

Petitioner moves to compel production of an unredacted

copy of the January 2, 1990 memorandum. In response, the FBI

raises two objections. First, the FBI argues that this Court

lacks jurisdiction to decide this discovery dispute because

petitioner failed to bring a separate action seeking review of a

final agency decision under the Administrative Procedures Act

(“APA”), 5 U.S.C. § 701 et seq. Second, the FBI argues that,

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The FBI cites U.S. ex rel. Touhy v. Ragen, 340 U.S. 462 1

(1951), in support of its assertion of immunity from compulsion

to testify. However, Touhy does not provide the asserted

immunity. In Touhy, the Court examined the validity of a Justice

Department regulation that provided that no DOJ employee would

produce documents in response to a subpoena without prior

approval from the Attorney General. The Court held that the

regulation was a valid exercise of the Attorney General’s power,

pursuant to 5 U.S.C. § 22, to “prescribe regulations not

inconsistent with the law for ‘the custody, use and preservation

of the records, papers and property appertaining to’ the

Department of Justice.” 340 U.S. at 469 (citing the Housekeeping

Statute, 5 U.S.C. § 22). Justice Frankfurter’s concurrence

specifically emphasized that the Court’s decision did not reach

the issue of whether the Attorney General himself might be immune

from an order compelling the production of information. Instead

the Court held only that an employee, faced with the choice of

either disobeying a court order to produce a document or

disobeying his superior’s order to withhold the document, would

not be held in contempt if he opted to obey his superior. See

U.S. v. Gen. Elec. Co., 197 F.3d 592, 595-96 (2d Cir. 1999)

(rejecting the exact argument made by the FBI regarding the

meaning of Touhy; holding that the Touhy Court “specifically

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even if this Court may decide the instant dispute, Johnson has

failed to establish that his need for an unredacted copy of the

memorandum outweighs the privacy concerns raised by the FBI.

A. Jurisdiction

The Court has jurisdiction to determine this discovery

dispute; petitioner need not file an ancillary proceeding under

the APA. 

Court of appeals that have considered the issue agree

that sovereign immunity does not prevent the enforcement of a

subpoena issued by a federal court against the federal government

or its agencies. To the contrary, courts have concluded that 1

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declined to consider the question of whether the appropriate

decisionmaker could refuse altogether to produce the subpoenaed

documents); Moore v. Armour Pharm. Co., 927 F.2d 1194, 1197 (9th

Cir. 1994) (interpreting Touhy as allowing department head to

regulate employees’ production of documents).

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the APA waives sovereign immunity when the relief sought from the

federal government is other than monetary relief, for example,

when the relief sought is the production of information. See

Linder v. Calero-Portocarrero, 251 F.3d 178, 181 (D.C. Cir. 2001)

(“sovereign immunity is not a defense to a third-party

subpoena”); U.S. EPA v. Gen. Elec., 197 F.3d 592 (2d Cir. 1999)

(same); COMSAT Corp. v. Nat’l Sci. Found., 190 F.3d 269, 274 (4th

Cir. 1999) (same); Exxon Shipping Co. v. U.S. Dep’t of Interior,

34 F.3d 774 (9th Cir. 1994) (same); Moore v. Armour Pharm. Co.,

927 F.2d 1194 (11th Cir. 1991) (exercising jurisdiction over

challenge to cabinet department’s refusal to produce documents

requested by third-party subpoena). 

Courts further agree that a motion to compel or motion

to quash provides an appropriate context for the consideration of

a discovery dispute arising in a federal case in which the

Government is not a party. In General Electric, the Second

Circuit held that a party seeking to enforce a subpoena against a

non-party federal agency may do so via motion to compel. 197

F.3d at 598-99. “[A] separate action . . . does not provide the

exclusive opportunity for judicial review.” Id. In other words,

the Second Circuit explicitly rejected the FBI’s argument that

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Johnson must file a separate action. Other courts, while not

explicitly addressing the question of whether a party must file a

separate action, have proceeded to adjudicate discovery disputes

between a party and a non-party government entity without

requiring the party to file a separate action. See, e.g., Moore,

927 F.2d 1194; Linder, 251 F.3d 178; Miskiel v. Equitable Life

Assurance Soc’y, 1999 WL 95998 (E.D. Pa. Feb. 24, 1999).

The FBI relies on Davis Enterprises v. U.S. EPA, 877

F.2d 1181 (3d Cir. 1989), for the proposition that Johnson must

bring a separate action to challenge the FBI’s refusal to comply

with his subpoena. However, the FBI’s reliance on Davis is

misplaced. In Davis, private homeowners filed a class action in

Pennsylvania state court against Davis Enterprises and other

corporations for damage caused to the plaintiffs’ homes by a

gasoline spill. The defendants sought testimony from an EPA

employee regarding the results of tests conducted by the EPA

after the spill. When the EPA refused to allow its employee to

be deposed in the state court matter, the defendants filed suit

against the EPA in federal court, alleging that the refusal to

allow the deposition was an abuse of discretion. The Eastern

District of Pennsylvania and the Third Circuit reviewed the

discovery dispute in the context of the separate action,

ancillary to the suit for which discovery was sought. However,

this was necessary because the discovery request originated in

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state court; without a separate action, the federal courts had no

involvement in or jurisdiction over the state court discovery

dispute.

Because Davis arose out of a state court litigation, it

has no bearing on whether a separate action is necessary to

review a discovery dispute arising in a federal case. 

B. Standard of Review

The question of what standard a court should apply in

reviewing an agency’s refusal to comply with a subpoena is

unsettled. The Third Circuit has not yet considered the

question. The Fourth and Eleventh Circuits review the agency’s

decision under the APA’s arbitrary and capricious standard

because the APA contains the waiver of sovereign immunity that

allows review of the decision at all. COMSAT Corp., 190 F.3d

269; Moore, 927 F.2d at 1198. On the other hand, the D.C. and

Ninth Circuits conduct an analysis under Federal Rule of Civil

Procedure 45, balancing the interests favoring disclosure against

the interests asserted against disclosure. Linder, 251 F.3d at

181-82; Exxon, 34 F.3d at 780. The Second Circuit initially

adopted the arbitrary and capricious standard, but, on

reconsideration, vacated its decision and reserved the question

for the future. Gen. Elec., 212 F.3d at 689-90, amending 197

F.3d 592 (2d Cir. 1999).

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The Court need not decide this question today. As

described below in Section II.C., even if the Court adopts the

less deferential Rule 45 analysis, the motion to compel will not

be granted. 

C. Merits

The motion to compel will be denied. Johnson has

failed to show that his need for the redacted information is so

great as to 1) make the FBI’s refusal to release the information

arbitrary and capricious or 2) outweigh the legitimate concerns

raised by the FBI under a Rule 45 analysis.

Assuming without deciding that a Rule 45 analysis

governs, Johnson is not entitled to the redacted information. 

Rule 45 provides that a court may quash a subpoena if it

“requires disclosure of privileged or other protected matter, if

no exception or waiver applies” or if it “subjects a person to

undue burden.” Fed. R. Civ. P. 45(3)(A)(iii), (iv). The FBI

argues that the redacted information is protected by the Privacy

Act because it discloses the names and other identifying

information of persons unrelated to Johnson’s petition.

The Privacy Act provides that “[n]o agency shall

disclose any record . . . to any person . . . except pursuant to

a written request by, or with the prior written consent of, the

individual to whom the record pertains, unless disclosure of the

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record would be . . . pursuant to the order of a court of

competent jurisdiction.” 5 U.S.C. § 552a(b)(11). “The Privacy

Act . . . does not create a qualified discovery privilege . . . .

Nor does the Act create any other kind of privilege or bar that

requires a party to show actual need as a prerequisite to

invoking discovery.” Laxalt v. McClatchy, 809 F.2d 885, 888

(D.C. Cir. 1987); Weakhee v. Norton, 621 F.2d 1080, 1082 (10th

Cir. 1980) (same); Clavir v. U.S., 84 F.R.D. 612, 614 (S.D.N.Y.

1979) (same); Forrest v. U.S., 1996 WL 171539, at *2 (E.D. Pa.

Apr. 11, 1996) (same).

However, the Privacy Act’s protection of certain

information is still relevant to a court’s exercise of discretion

in resolving discovery disputes. Statutory protections for

certain information “reflect a congressional judgment that

certain delineated categories of documents may contain sensitive

data which warrants a more considered and cautious treatment. In

the context of discovery of government documents in the course of

civil litigation, the courts must accord the proper weight to the

policies underlying these statutory protections, and . . .

compare them with the factors supporting discovery in a

particular lawsuit.” Laxalt, 809 F.2d at 889. 

The disputed memorandum appears to state that an

individual approached Officer Dietrich in an attempt to sell

Dietrich cocaine because the would-be seller believed Dietrich to

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be corrupt. Apparently Dietrich knew the individual from

childhood, but described their relationship as solely one of

exchanging greetings in public. At some point, Dietrich agreed

to respond favorably if he was approached again; he would try to

set up a purchase. A plausible interpretation of the memo is

that Dietrich reported the incident to his superiors as soon as

he was approached about buying drugs and that his involvement was

part of a legitimate investigation. George Robles is not

mentioned in the memo at all.

It is unlikely that the redacted names are relevant to

Johnson’s petition. The basis of Johnson’s petition is an

allegedly corrupt relationship between Robles and the Reading

police officers who investigated Johnson’s cases. However,

Robles is not even mentioned in the FBI memo - Johnson offered no

reason to believe that the individuals named in the memo had any

connection to Robles or would know anything about Robles’

relationship with the police. Johnson’s attorneys argued that

Johnson should be able to contact the persons named in the memo

to determine, for example, why the would-be seller believed

Dietrich to be dirty. However, with no suggestion that the

seller knew Robles and nothing in the memo to show that the

seller’s information about Dietrich had any basis in fact,

compelling production of the names in the memo would be indulging

Petitioner in a fishing expedition.

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The motion to compel will be denied. An appropriate

order follows.

Case 2:04-cv-02835-ER Document 90 Filed 12/12/07 Page 11 of 12
 IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

RODERICK JOHNSON, : CIVIL ACTION

: NO. 04-2835

Petitioner, :

:

v. :

:

JEFFREY BEARD ET AL., :

:

Respondents. :

O R D E R

AND NOW, this 10TH day of December 2007, it is hereby

ORDERED that Petitioner’s motion to compel the FBI’s production

of an unredacted copy of the January 2, 1990 memorandum is

DENIED.

AND IT IS SO ORDERED.

 S/Eduardo C. Robreno 

EDUARDO C. ROBRENO, J.

Case 2:04-cv-02835-ER Document 90 Filed 12/12/07 Page 12 of 12