State of Maryland v. Venturella et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
STATE OF MARYLAND,
Plaintiff,
v. 	Civil No.: 1:26-cv-01024-JRR
DAVID VENTURELLA,1 	et al.,
Defendants.
MEMORANDUM OPINION
Pending before the court is the State of Maryland’s Motion for Summary Judgment
(ECF No. 6) and Defendants’ Motion to Dismiss or, in the Alternative, Cross Motion for
Summary Judgment (ECF No. 16). The court has reviewed all papers; no hearing is necessary.
Local Rule 105.6 (D. Md. 2025). 	For the reasons set forth below, Defendants’ Motion,
construed as a motion to dismiss pursuant to Rule 12(b)(1), will be granted, and the State’s
Motion will be denied as moot.
I. 	BACKGROUND
A. 	Federal Agency Disclosures of Information
Pursuant to 5 U.S.C. § 301 and following the reasoning of 	United States ex rel. Touhy
v. Ragen, 340 U.S. 462 (1951), federal agencies promulgate “regulations for . . . the distribution
and performance of [their] business, and the custody, use, and preservation of [their] records,
papers, and property.” 5 U.S.C. § 301. These 	Touhy 	regulations, as they are known, establish
the procedures parties must follow to request agency documents or information. 	COMSAT
Corp. v. Nat’l Sci. Found., 190 F.3d 269, 272 n.3 (4th Cir. 1999). The Department of Homeland
Security’s (“DHS”) 	Touhy 	regulations, codified at 6 C.F.R. §§ 5.41–5.49, govern responses to
1 	Pursuant to Federal Rule of Civil Procedure 25(d), Madam Clerk shall substitute the following Defendants:
David Venturella for Todd Lyons, Senior Official Performing the Duties of the Director, Immigration and Customs
Enforcement; and Markwayne Mullin for Kristi Noem, Secretary, U.S. Department of Homeland Security.
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“subpoenas, . . . requests for depositions, affidavits, admissions, responses to interrogatories,
document production, interviews, or . . . applicable state rules.” 6 C.F.R. § 5.41(a)(2). Parties
seeking information or documents from DHS must “set forth in writing, and with as much
specificity as possible, the nature and relevance of the official information sought,” including
a description of the documents “or other materials” requested. 	6 C.F.R. § 5.45(a). 	When
considering a request or demand for information,
Department 	officials 	and 	attorneys 	shall 	consider, 	among 	any 	other 	pertinent
considerations:
(1) 	Whether 	such 	compliance 	would 	be 	unduly 	burdensome 	or 	otherwise
inappropriate under the applicable rules of discovery or the rules of procedure
governing the case or matter in which the demand arose;
(2) 	Whether compliance is appropriate under the relevant substantive law concerning
privilege or disclosure of information;
(3) 	The public interest;
(4) 	The need to conserve the time of Department employees for the conduct of official
business;
(5) 	The need to avoid spending the time and money of the United States for private
purposes;
(6) 	The need to maintain impartiality between private litigants in cases where a
substantial government interest is not implicated;
(7) 	Whether compliance would have an adverse effect on performance by the
Department of its mission and duties; and
(8) 	The need to avoid involving the Department in controversial issues not related to
its mission.
6 C.F.R. § 5.48(a).
Further, compliance with information requests “will not ordinarily be authorized” if any
of the following circumstances exist:
(1) 	Compliance would violate a statute or a rule of procedure;
(2) 	Compliance would violate a specific regulation or Executive order;
(3) 	Compliance would reveal information properly classified in the interest of national
security;
(4) 	Compliance would reveal confidential commercial or financial information or
trade secrets without the owner's consent;
(5) 	Compliance would reveal the internal deliberative processes of the Executive
Branch; or
(6) 	Compliance would potentially impede or prejudice an on-going law enforcement
investigation.
6 C.F.R. § 5.48(b).
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B. 	Maryland Office of the Attorney General
Pursuant to Section § 20-1041 of the State Government Article of the Maryland Code,
the Maryland Attorney General may investigate and prosecute “any conduct that constitutes a
civil rights violation.” MD. 	CODE 	ANN., 	STATE 	GOV’T 	§ 	20-1041(a). 	The Attorney General may
not bring a civil rights action against the employees or entities of state or local government, or
on behalf of an individual. 	Id. 	§ 1041(b). Section 20-1044 requires the Attorney General to
investigate “whether there is reasonable cause to believe that any person committed a civil
rights violation” prior to initiating a civil action. 	Id. 	§ 	20-1044(a). 	During an investigation, the
Attorney General is permitted to subpoena witnesses, examine them under oath, and “compel
production of records, books, papers, contracts, and other documents.” 	Id. 	§ 20-1044(b).
Pursuant to § 6-106.1 of the State Government Article, the Attorney General is
permitted to investigate and prosecute “any civil or criminal suit or action that is based on the
federal government’s action or inaction that threatens the public interest and welfare” of
Maryland residents within enumerated policy areas, including “protecting the health of the
residents of the State,” “protecting civil liberties,” and “protecting the residents of the State
against illegal and unconstitutional federal immigration or travel restrictions.” 	MD. 	CODE
ANN., 	STATE 	GOV’T 	§ 	6-106.1(b)(1).
C. 	The State’s Investigation
This action arises from an investigation initiated in early 2026 by the Maryland Office
of the Attorney General (“OAG”) into allegations of civil rights violations in the Baltimore
Immigration and Customs Enforcement (“ICE”) holding facilities (“Hold Rooms”) located in
the George H. Fallon Federal Building (“Fallon Building”). 	(ECF No. 1 ¶¶ 23, 26–29.)
According to the Complaint, the Fallon Building contains five Hold Rooms with a maximum
capacity of 56 individuals. 	Id. 	¶ 24. 	Because the Hold Rooms are “short term” facilities
intended to facilitate detention for a maximum of approximately 12 hours, they are not
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equipped for basic medical, hygiene, or sleeping needs. 	Id. 	¶ 25. 	As federal immigration
enforcement efforts have escalated over the last year, federal officials report that the Hold
Rooms’ “existing detention capacity” has come under strain. 	Id. 	¶ 36.
After becoming aware of a video capturing conditions in the Hold Rooms, OAG
launched an investigation to determine whether DHS and ICE “are engaging in a pattern or
practice 	of 	civil 	rights 	violations” 	by 	subjecting 	detainees 	to 	conditions 	including
“overcrowding, extended duration of detention, failure to provide medical attention, failure to
provide sufficient food and water, failure to provide an adequate sleep environment, failure to
provide access to hygienic and sanitary conditions, and failure to provide access to legal
counsel.” 	Id. 	¶¶ 28–30.2
As part of its investigation, on January 30, 2026, OAG served an administrative
subpoena (the “Subpoena”) on “the targets of its investigation—DHS and ICE.” 	Id. 	¶ 46. (ECF
No. 1-13.) The Subpoena was submitted in compliance with DHS disclosure regulations (i.e.,
Touhy 	regulations). 	Id. 	¶ 13; 6 C.F.R. §§ 5.41-5.49. It was accompanied by a “Touhy 	letter”
wherein OAG described the “nature and relevance of the information sought” per 6 C.F.R. §
5.45(a). (ECF No. 1 ¶ 15; ECF No. 1-13.) OAG’s letter stated that the request for information
was issued pursuant to its authority under “sections 20-1041(a) and 6-106.1(b)(1) of the State
Government Article of the Annotated Code of Maryland.” 	(ECF No. 1-13 at p. 3.) 	The
Subpoena invoked the Attorney General’s authority pursuant to “the provisions of Md. Code
Ann. State Gov’t[] § 20-1044(b).” 	Id. 	at 12. Pursuant to its authority “to conduct investigations
of potential civil rights violations and actions or inactions by the federal government,” 	id. 	at 5,
OAG identified nine categories of information it asserted was relevant to its investigation of
2 	Relevant to OAG’s investigation, this court made similar findings in 	D.N.N. v. Liggins, 822 F. Supp. 3d 543 (D.
Md. 2026), supporting its grant of a preliminary injunction for a putative class of individuals detained in the same
Baltimore ICE holding facility.
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“ongoing civil violations related to immigration detention by ICE” in the Hold Rooms. 	Id. 	at
7. OAG sought the following information for the previous 12-month period:
1. 	All documents produced in discovery to the Plaintiffs in 	D.N.N. et al. v. Baker et
al., No. 1:25-cv-01613-JRR (D. Md. 2025).
2. 	All documents related to any report, assessment, or investigation conducted by
any officer or agent of the United States, or by any person on behalf of the United
States, of the conditions in or operation of the Hold Rooms in the Fallon Federal
Building within the last eighteen (18) months.
3. 	All complaints or grievances or other communications received by any agent,
agency, or contractor of the United States within the last twelve (12) months from
any person, including Detainees, their counsel or other persons acting on behalf of
Detainees, public or elected officials, or the media and any response to complaints,
grievances, or report concerning the treatment of Detainees in the Hold Rooms in
the Fallon Federal Building or the conditions in the Hold Rooms in the Fallon
Federal Building, including but not limited to:
a. Access to medical care, medications, mental health services, or health
services;
b. Access to counsel or the denial of access to counsel;
c. Use of force against detainees;
d. Food, nutrition, and hydration;
e. Sanitation and access to toilet and running water;
f. Crowding and access to proper bedding; and
g. Heating, cooling, or proper ventilation.
4. 	All documents that relate or refer to injuries, illnesses, or health care needs of
Detainees in the Hold Rooms in the Fallon Federal Building within the last twelve
(12) months, including but not limited to requests for health care by Detainees or
persons requesting on their behalf, reports, complaints or grievances, medical
records, investigative reports, or records or logs of transport to a hospital or other
medical facility for health care needs.
5. 	All documents related to the use of force against any Detainee in the Hold Rooms
in the Fallon Federal Building in the last twelve (12) months.
6. 	All contracts for services for Detainees in the Hold Rooms in the Fallon Federal
Building that were in effect or entered into in the last twelve (12) months for:
a. Medical services;
b. Food;
c. Bedding or furniture;
d. Sanitation supplies; and
e. Heating, cooling, or ventilation.
7. 	The Detention Log(s) for each Detainee in a Hold Room in the Fallon Federal
Building in the last twelve (12) months.
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8. 	To the extent not included in the Detention Logs referenced in Request 7 above,
the specific Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., provision(s)
for the removal and detention, if applicable, of any Detainee in a Hold Room in
the Fallon Federal Building in the last twelve (12) months.
9. 	The 	Holding 	Facility 	Inspection 	Logs 	for 	U.S. 	Immigration 	and 	Customs
Enforcement in the Fallon Federal Building in the last twelve (12) months.
(ECF No. 1-13 at pp. 17–18.)
On February 25, 2026, ICE denied OAG’s request “pursuant to the DHS 	Touhy
regulations.” (ECF No. 1-14 at p. 2.) In its response, ICE listed various bases for the denial,
including that some demands for documents “do not adequately describe how the information
sought is directly relevant” to OAG’s investigation and that some demands “may” implicate
privileged information. 	Id. 	at 3. Chiefly, ICE took the position that most of OAG’s requests
were “overly broad, unduly burdensome,” as well as duplicative because they “likely would be
obtainable” from documents ICE had already produced in the ongoing 	D.N.N. v. Baker
litigation, in which the State of Maryland has appeared as amicus curiae. 	Id. 	at 3–6. Indeed,
in response to each of the nine requests, ICE asserted the request was “overly broad, unduly
burdensome,” and “duplicative” based on 	D.N.N. v. Baker 	discovery. 	Id. 	In the case of seven
of the nine requests, ICE added that disclosure of the requested records “may” violate the
Privacy Act, 5 U.S.C. § 552a, or otherwise cause “an unwarranted invasion of privacy.” 	Id.
Further, in addition to its burden and duplication objections, the agency rejected OAG’s request
for information about ICE contracts for services with ICE as “lacking in specificity.” 	(ECF
No. 1-14 at p. 6.) 	OAG’s request for provisions of the Immigration and Nationality Act
(“INA”) relevant to the detention and removal of Hold Rooms detainees was rejected as “vague
and ambiguous.” 	Id.
ICE concluded its Subpoena response by informing OAG that even “assuming that your
requests . . . were modified to appropriately narrow and identify the information sought, the
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nature of the requests would likely still . . . be unduly burdensome and duplicative given the
information being exchanged during the discovery process in [D.N.N. v. Baker].” 	Id. 	at 7.
By letter of February 27, 2026, OAG responded to ICE to “identify deficiencies” in the
agency’s response. (ECF No. 1-16 at p. 2.) Therein, OAG identified 	Touhy 	factors it asserted
ICE failed to consider. 	Id. 	at 4. Additionally, OAG challenged ICE’s statement that the State
of Maryland’s status as amicus curiae in the 	D.N.N. v. Baker 	litigation would afford it access
to discovery materials, citing the confidentiality agreement and protective order entered in that
case, which restricts nonparty access to discovery. 	Id. 	at 5. OAG also argued that discovery
in another lawsuit is an insufficient substitute for production directly from ICE. 	Id. 	On March
6, 2026, in response to OAG’s deficiency letter, ICE requested additional time “to confer
internally to determine if we can implement reasonable parameters to sharing information
responsive to your 	Touhy 	request and administrative subpoena.” (ECF No. 1-15 at p. 3.) ICE
advised it “should be able to provide a further response by Monday, April 6, 2026.” 	Id. 	In
reply, OAG reiterated the “great urgency” of its request, expressing that a “monthlong delay”
was not “consistent with [ICE’s] 	Touhy 	obligations.” 	Id. 	at 2. ICE responded confirming only
that it would “stay focused on resolving this matter as soon as possible.” 	Id.
D. 	Procedural Posture
Following ICE’s response to its Subpoena and 	Touhy 	letter, OAG initiated the instant
action with its Complaint (ECF No. 1) against Defendants3 	seeking enforcement of the
Subpoena under the Administrative Procedure Act (“APA”) on three bases: 1) ICE’s refusal to
provide the requested information is contrary to law, 5 U.S.C. § 706(2)(A), (D); 2) ICE’s refusal
is arbitrary and capricious, 5 U.S.C. § 706(2)(A); and 3) ICE’s conduct constitutes “agency
action unreasonably delayed,” 5 U.S.C. § 706(1). (ECF No. 1 ¶¶ 70–98.) Sixteen days later,
3 	As originally filed, the named Defendants were Todd M. Lyons (then Director of ICE), ICE, Kristi Noem (then
Secretary of DHS), and DHS. (ECF No. 1.) Following leadership changes, Defendants are now David Venturella
(Acting Director of ICE), ICE, Markwayne Mullin (Secretary of DHS), and DHS. (ECF No 21.)
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the State moved for Summary Judgment. (ECF No. 6; the “State’s Motion.”) Defendants then
filed a Motion to Dismiss, or in the Alternative, Cross Motion for Summary Judgment (ECF
No. 16; the “Defendants’ Motion.”) The Motions are ripe for ruling.
II. 	LEGAL STANDARD4
“Rule 12(b)(1) of the Federal Rules of Civil Procedure authorizes dismissal for lack of
subject matter jurisdiction.” 	Barnett v. United States, 193 F. Supp. 3d 515, 518 (D. Md. 2016).
“The plaintiff bears the burden of establishing subject matter jurisdiction by a preponderance
of the evidence.” 	United States ex rel. Fadlalla v. DynCorp Int’l LLC, 402 F. Supp. 3d 162,
176 (D. Md. 2019) (citing 	Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999)). 	“In
determining whether jurisdiction exists, ‘the court may look beyond the pleadings and the
jurisdictional allegations of the complaint and view whatever evidence has been submitted on
the issue.’” 	Id. 	(quoting 	Khoury v. Meserve, 268 F. Supp. 2d 600, 606 (D. Md. 2003)).
Subject matter jurisdiction challenges may proceed in two ways: “either a facial
challenge, asserting that the allegations pleaded in the complaint are insufficient to establish
subject matter jurisdiction, or a factual challenge, asserting ‘that the jurisdictional allegations
of the complaint [are] not true.’” 	Mayor & City Council of Baltimore v. Trump, 416 F. Supp.
3d 452, 479 (D. Md. 2019) (quoting 	Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009)).
In a facial challenge, “the facts alleged in the complaint are taken as true, and the motion must
be denied if the complaint alleges sufficient facts to invoke subject matter jurisdiction.” 	Kerns,
585 F.3d at 192; 	see Ministry of Defence of State of Kuwait v. Naffa, 105 F.4th 154, 159 (4th
Cir. 2024) (same). 	Conversely, in a factual challenge, “the presumption of truthfulness
normally accorded a complaint’s allegations does not apply, and the district court is entitled to
decide disputed issues of fact with respect to subject matter jurisdiction.” 	Kerns, 585 F.3d at
4 	Because the court concludes that the State fails to demonstrate standing, and therefore that the court lacks
jurisdiction, it does not reach the parties’ remaining arguments per Federal Rules of Civil Procedure 12(b)(6),
12(d), and 56, or regarding APA judicial review. 	Therefore, the court recites here the legal standard pertaining
only to the 12(b)(1) argument.
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192. “In that circumstance, the court ‘may regard the pleadings as mere evidence on the issue
and may consider evidence outside the pleadings without converting the proceeding to one for
summary judgment.’” 	Trump, 416 F. Supp. 3d at 479 (quoting 	Velasco v. Gov’t of Indonesia,
370 F.3d 392, 398 (4th Cir. 2004)).
Here, Defendants raise a facial subject matter jurisdiction challenge—asserting the
State lacks standing because the “[S]ubpoena was legally invalid.” (ECF No. 16 at p. 6.)
III. 	ANALYSIS
As a threshold matter, the State must plausibly allege it is “legally entitled” to
consideration of its Subpoena under DHS 	Touhy 	regulations, and has sustained harm by the
manner of DHS’s denial. 	Dreher v. Experian Info. Sols., Inc., 856 F.3d 337, 345 (4th Cir. 2017)
(citing 	Spokeo v. Robbins, 578 U.S. 330, 341 (2016)). Although this court’s role in reviewing
and enforcing administrative subpoenas is limited, that role includes determining whether the
agency in question is “authorized to make such investigation.” 	EEOC v. American & Efird
Mills, Inc., 	964 F.2d 300, 302–303 (4th Cir. 1992).
In its Motion, the State argues that Defendants’ denial of OAG’s request for information
violates the APA. (ECF No. 6-1 at pp. 14–25.) In response (to the Complaint as well as the
State’s Motion), Defendants mount a facial challenge to the court’s subject matter jurisdiction
on grounds that the State was not authorized to issue the Subpoena in the first place. (ECF No.
16 at pp. 11 n.2, 14–16.) 	Specifically, Defendants assert that the statutory basis for the
Subpoena (as set forth on the face of the Subpoena) does not authorize OAG to subpoena a
federal agency. 	Id. 	As such, the State lacks standing to complain that ICE refused to comply.
The court agrees with Defendants.
As explained in detail below, the statute cited in the Subpoena as the basis for the State’s
authority in fact does not authorize the State to pursue enforcement action against federal
government entities. 	Therefore, the Subpoena is fatally facially defective and cannot be
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enforced by this court. 	Accordingly, the State cannot plausibly allege a cognizable or
redressable injury sufficient to confer standing.5
A. 	Standing
The Constitution extends the judicial power of Article III courts to “cases” or
“controversies.” 	U.S. 	CONST. 	ART. III, § 2, cl. 1. 	The doctrine of standing, among others,
“implements” this limit. 	Carney v. Adams, 592 U.S. 53, 58 (2020). In particular, this doctrine
requires “a plaintiff to have a ‘personal stake’ . . . in the suit he brings.” 	Holmes v. Elephant
Ins. Co., 156 F.4th 413, 420 (4th Cir. 2025) (quoting 	TransUnion LLC v. Ramirez, 594 U.S.
413, 423 (2021)).
To establish standing:
First, the plaintiff must have suffered an injury in fact that is both
concrete 	and 	particularized 	and 	actual 	or 	imminent, 	not
conjectural or hypothetical. Second, the plaintiff’s injury must
be fairly traceable to the challenged action of the defendant,
meaning that there must be a causal connection between the
injury and the conduct complained of. Third, it must be likely, as
opposed to merely speculative, that the injury will be redressed
by a favorable decision.
Dep’t. of Educ v. Brown, 600 U.S. 551, 561 (2023) (citations omitted) (quoting 	Lujan v. Defs.
of Wildlife, 504 U.S. 555, 560–61 (1992)).
This threshold is “no troublesome hurdle” and can “be cleared with the most whimsical
attempts on the way to the merits.” 	State of Maryland v. United States Dep’t of Agric., 151
F.4th 197, 208 (4th Cir. 2025) (quoting 	United States v. Texas, 599 U.S. 670, 675 (2023)). But
failure to clear the hurdle on all three prongs places a claim squarely outside the federal court’s
Article III power. 	Id. 	The party invoking the federal court’s jurisdiction bears the burden of
5 	The State’s Complaint plainly identifies DHS and ICE as the targets of its investigation and does not plausibly
allege that OAG was additionally or alternatively investigating private parties. 	(ECF No. 1 ¶¶ 2, 30, 46.) This
disqualifies Plaintiff’s contention that the Subpoena was instead a third-party subpoena. (ECF No. 17 at pp. 17–
21.) 	For the foregoing reasons, and to avoid the perils of analyzing matters not before the court (i.e., advance
rulings), the court declines to engage in legal analysis of that subject.
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establishing each element of standing “with the manner and degree of evidence required at the
successive stages of the litigation.” 	Lujan, 504 U.S. at 561.
Regarding an injury in fact, “a plaintiff must show that he or she suffered ‘an invasion
of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not
conjectural or hypothetical.’” 	Spokeo v. Robins, 578 U.S. 330, 339 (2016) (quoting 	Lujan, 504
U.S. at 560). “‘Concrete’ is not, however, necessarily synonymous with ‘tangible.’” 	Id. 	at 340.
Relevant here, “[a]n ‘informational injury’ is a type of intangible injury that can constitute an
Article III injury in fact.” 	Dreher v. Experian Info. Sols., Inc., 856 F.3d 337, 345 (4th Cir. 2017)
(quoting 	Fed. Election Comm’n v. Akins, 524 U.S. 11, 24 (1998)). 	Informational injury
qualifies as an injury in fact only if the plaintiff can allege “a ‘real’ harm with an adverse
effect.” 	United States Dep’t of Agric., 151 F.4th at 208 (quoting 	Dreher, 856 F.3d at 345). A
claim that “the federal government withheld information that the State[] had a statutory right
to receive” is “a quintessential informational injury.” 	Id.
But a “statutory violation alone” is insufficient to confer standing. 	Dreher, 856 F.3d
at 345 (citing 	Spokeo, 578 U.S. at 341). “Rather, a constitutionally cognizable informational
injury requires that a [plaintiff] lack access to information to which [it] is legally entitled 	and
that the denial of that information creates a ‘real’ harm with an adverse effect.” 	Id. 	(emphasis
in original) (quoting 	Spokeo, 578 U.S. at 340). The precise issue is whether the plaintiff can
ground the claimed injury in a right conferred by statute or rule (whether to substance or
process), not simply a general desire for statutory compliance. This requirement is linked to
the redressability prong of the standing doctrine, as the absence or infeasibility of a legal
entitlement inhibits the court’s ability to order relief. 	See United States Dept. of Agric., 151
F.4th at 212 (discussing “connection between the alleged injury and the judicial relief
requested”); 	see also 	Lawyers’ Comm’n for 9/11 Inquiry, Inc. v. Wray, 424 F. Supp. 3d 26, 34
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(D.D.C. 2020) (“It must be likely, as opposed to merely speculative, that a favorable decision
will provide redress.”)6
In the instant case, the State alleges Defendants’ denial of its Subpoena request for
information about the Baltimore Hold Rooms violates the agency’s 	Touhy 	regulations and the
APA. 	(ECF No. 1 ¶¶ 63–68.) 	By way of remedy, the State asks this court to order DHS to
properly apply its 	Touhy 	regulations to the State’s Subpoena. 	Id. 	¶¶ 70–98; 5 U.S.C. § 706(2).
Defendants counter that the State fails to plead an adequate informational injury given the
Subpoena’s defectiveness. (ECF No. 16 at p. 15.)
As described below, because the State invokes MD. 	CODE. 	ANN., 	STATE 	GOV’T 	§ 20-
1044(b) as the authority for the Subpoena,7 	any legal entitlement or right must flow from the
authority granted under that provision and related statutory scheme. (ECF No. 1-13 at p. 12.)
Redressability of the State’s alleged injury also depends on the existence of any legal
entitlement(s). 	United States Dep’t of Agric., 151 F.4th at 212. In order to assess the scope of
any such entitlement, the court turns to the statute itself.
B. 	Scope of the State’s Subpoena Authority
The State’s assertion that it has been denied information to which it is legally entitled
is premised on the authority conferred by § 20-1044(b) to subpoena a federal agency as part of
6 	The existence of “legal rights or consequences” is also required for proper APA judicial review. 	COMSAT Corp.
v. Nat’l Sci. Found., 190 F.3d 269, 274 (4th Cir. 1999) (noting that in order for agency action to be “final” and
permit APA review, it must “signal[] the consummation of an agency’s decisionmaking process 	and 	give[] rise to
legal rights or consequences”) (emphasis in original).
7 	As Defendants note, the Subpoena invokes only MD. 	CODE 	ANN. 	STATE 	GOV’T 	§ 20-1044(b) as authority to
demand documents from DHS. 	(ECF No. 1-13 at 12; ECF No. 16 at p. 11 n.2). 	In its 	Touhy 	letter, the State
additionally invokes § 6-106.1(b)(1) as grounds for the Subpoena (and OAG’s associated investigatory authority).
(ECF No. 1-13 at p. 3; ECF No. 1 at ¶ 29.) Defendants argue that by omitting the latter statute from the Subpoena,
the only legally operative statute with respect to the State’s demand for information is § 20-1044(b). The court
agrees. The Subpoena is the legal instrument the State requests the court enforce; as such, the court’s enforcement
powers are coterminous with the authority on which the Subpoena is premised. Said another way, were the court
to enforce the Subpoena on legal grounds other than those expressly set forth therein and, in doing so, find
Defendants at odds with their APA obligations, the court would appear to impose on federal agencies an obligation
that rests squarely on the State’s shoulders and to pronounce a new basis of APA violation for failure to investigate
whether the State has authority to issue its Subpoena on any basis not set forth therein. That is obviously not the
law. 	Given that the State did not contest this defense argument and subsequently presented briefing only with
respect to § 20-1044(b) and its associated provisions, 	see 	ECF Nos. 17, 24, the State effectively concedes the
point. 	See Stenlund v. Marriott Int’l Inc., 172 F. Supp. 3d 874, 887 (D. Md. 2016).
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an investigation. (ECF No. 17 at pp. 22–26.) When interpreting a state statute, federal courts
must “apply the statutory construction rules applied by the state’s highest court.” 	Fusaro v.
Howard, 19 F.4th 357, 371 n.21 (4th Cir. 2021). The “cardinal rule” of statutory interpretation
under Maryland law is to “ascertain and effectuate the intent of the legislature.” 	Moore v.
State, 388 Md. 446, 452 (2005). To that end, Maryland courts begin with the plain language
of the statute. 	Mayor of 	Oakland v. Mayor of Mountain Lake Park, 392 Md. 301, 316 (2006).
If the plain language offers multiple plausible meanings, the court “consider[s] the meaning of
the language of the statute and how that language relates to the overall meaning, setting, and
purpose of the [statute].” 	Deville v. State, 383 Md. 217, 33 (2004). But “[c]onsideration of the
statutory text in context is [the court’s] primary guide.” 	In re J.C.N., 460 Md. 371, 391 (2018).
Statutory interpretive analysis thus “avoid[s] a construction of the statute that is unreasonable,
illogical, or inconsistent with common sense.” 	Gwin v. MVA, 	385 Md. 440, 462 (2005).
As explained, § 20-1041 of the State Government Article authorizes the Attorney
General to “investigate, prosecute, and remediate . . . any conduct that constitutes a civil rights
violation.” MD. 	CODE 	ANN., 	STATE 	GOV’T 	§ 20-1041(a). However, the Attorney General may
not bring a civil rights action on behalf of an individual or against “any unit of State or local
government.” 	Id. 	at § 20-1041(b). 	Further, § 20-1044 requires the Attorney General to
investigate whether there is “reasonable cause to believe that any person committed a civil
rights violation” prior to initiating an enforcement action. 	Id. § 20-1044(a). 	The Attorney
General 	may subpoena 	witnesses or compel production of documents 	as 	part of that
investigation. 	Id. 	at § 20-1044(b). And the Attorney General may initiate an action if there is
“reasonable cause to believe that a person is engaged in” activity prohibited by state or federal
law, or state or federal constitutional provisions. 	Id. § 20-1042(a).
The State emphasizes the “any conduct” language of § 20-1041, arguing that the
legislature’s use of such broad language connotes broad investigative authority including the
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power to subpoena federal agencies. (ECF No. 17 at p. 22.) The State additionally highlights
that while § 20-1041(b) prohibits the Attorney General from bringing civil actions against state
and local government entities (and their employees), it lacks a similar carveout for the federal
government. 	Id. 	at pp. 22–23. 	Accordingly, the State argues, the legislature could have
insulated the federal government from the Attorney General’s investigative power if it wanted
to, and it chose not to do so. 	Id. 	at p. 23.
Defendants direct the court to § 20-1044, which permits the Attorney General to initiate
an action upon reasonable cause to believe “any person” is engaged in violative conduct. (ECF
No. 21 at p. 11.) 	Read in context, Defendants argue, the language of § 20-1044 evinces the
legislature’s intent to permit actions in response to “any conduct,” but only against private
parties. 	Id. 	Defendants posit that this plainly does not include the federal government, as the
federal government does not qualify as a “person.” 	Id. 	And, Defendants reason, unless there
is clear language placing the federal government within the scope of the Attorney General’s
authority under this statute, there is no basis on which to conclude that the Attorney General’s
power extends that far. 	Id. 	at pp. 12–13. 	Defendants also note that the legislature expressly
granted OAG the authority to respond to the actions of federal entities in other statutes and
omitted such a grant of authority here. 	Id. 	at pp. 14–15. 	In other words, if the legislature
intended or wanted to grant such authority in this context, it obviously knows how to do it.
In alignment with the statutory interpretation principles set out above, the court reads
the statutory scheme as a whole. 	In re J.C.N., 460 Md. at 391. At the outset, the language of
§ 20-1041 does appear to confer broad enforcement authority on the Attorney General given
its extension to “any conduct.” MD. 	CODE 	ANN., 	STATE 	GOV’T 	§ 20-1041(a). Section 20-1044,
the only provision actually cited in the Subpoena, confers investigative authority but aims the
Attorney General’s enforcement power at “any person.” 	Id. § 20-1044(a). The term “persons,”
as defined by the General Assembly, does not include the federal government or its component
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entities. 	Id. § 1-101(d) (defining “person” as “an individual, receiver, trustee, guardian,
personal representative, fiduciary, or representative of any kind and any partnership, firm,
association, corporation, or other entity”). And, as a general matter, courts do not presume the
federal government is included within the meaning of “person” absent “affirmative language
to the contrary.” 	Peck v. U.S. Dept. Lab., Admin. Rev. Bd., 996 F.3d 224, 231–32 (4th Cir.
2021) (quoting 	Return Mail, Inc. v. U.S. Postal Serv., 587 U.S. 618, 626 (2019)). The State’s
expresio unius 	argument is therefore unpersuasive. (ECF No. 17 at pp. 16–17.)
As “person” does not include federal government entities, reading § 20-1044 and § 20-
1041 together indicates that while the legislature intended to confer enforcement (and related
investigative) authority to the Attorney General on a wide scope of conduct, the statutory
scheme appears deliberately aimed at the potentially violative conduct of “person[s].”8 	Id. 	So
while the universe of violative conduct is broad, the statutory scheme focuses on violative
conduct by “person[s]” rather than all potential actors. 	Id.
Further, as noted, the General Assembly has expressly authorized the Attorney General
to initiate enforcement actions related to federal government action or inaction in other
statutory schemes. 	See, e.g., MD. 	CODE. 	ANN., 	STATE 	GOV’T 	§ 6-106.1(b)(1). Accordingly, the
court is not persuaded that the federal government falls within the Attorney General’s
enforcement power simply because the legislature did not explicitly exclude it under § 20-
1041(b).
8 	Both the State and Defendants discuss the legislative history associated with this statutory scheme. 	The State
cites a letter authored by the Attorney General discussing the statutory text and suggesting the carveouts under §
20-1041(b) were intended to prevent potential conflicts of interest with state and local government units. (ECF
No. 17 at pp. 24–25.) The State cites this letter in support of its argument that the legislature’s decision not to
prohibit actions against the federal government should indicate that OAG is permitted to initiative civil
investigations and enforcement actions against the federal government. 	Id. 	Defendant cites OAG’s testimony on
the enacting legislation, which characterizes the bill as intended to authorize enforcement against private actors.
(ECF No. 16 at p. 18.) While statutory interpretation may involve consideration of legislative history to firm up
textual frailties or resolve ambiguities, the text at issue here is neither ambiguous nor unclear.
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C. 	Third Party Subpoena Power
Adopting, though still disputing, this reading of the statute, the State maintains that
subpoenas issued by OAG pursuant to § 20-1044(b) may be directed at the federal government
in the form of third-party subpoenas as part of OAG’s investigation of private contractors
involved with operation of the Baltimore Hold Rooms. (ECF No. 17 at pp. 5–9.) 	Defendants
counter by noting that neither the Subpoena nor the State’s Complaint raises this theory, and
therefore the argument is not properly before the court. (ECF No. 21 at pp. 11–12.)
This court has previously held that “[a] plaintiff is not permitted to amend its
complaint by supplying new factual allegations in a brief in opposition to a defendant’s motion
to dismiss.” 	Bindagraphics, Inc. v. Fox Group, Inc., 377 F. Supp. 565, 577 (D. Md. 2019). In
other words, a plaintiff may not employ responsive briefing to fix or raise new claims not
grounded in the allegations of the plaintiff’s complaint. 	See, e.g., 	Mathis v. McDonough, No.
ELH–13–2597, 2014 WL 3894133, at *25 (D. Md. Aug. 7, 2014) (disallowing plaintiff from
effectively attempting to amend complaint by alleging recovery theory for the first time in
responsive brief). 	Relatedly, a plaintiff also may not advance legal theories by way of
responsive briefing in contradiction of facts alleged in the complaint. 	See 	Zachair, Ltd. v.
Driggs, 965 F. Supp. 741, 748 n.4 (D. Md. 1997) (finding “procedurally deficient” plaintiff’s
assertion of legal theories through responsive brief in contradiction of complaint factual
allegations).
Here, the State’s Complaint specifically (and only) identifies DHS and ICE as the
targets of its investigation, stating at the outset that OAG is investigating “whether ICE’s
conduct violated federal civil rights laws.” 	(ECF No. 1 	¶ 2.) The State maintains this point
throughout its Complaint. 	See id. 	¶ 30 (“OAG is investigating whether DHS and ICE are
engaging in a pattern or practice of civil rights violations . . . .”); ¶ 44 (noting that OAG “has
an interest in . . . ensur[ing] Defendants are complying” with relevant law, “even when ICE is
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not under court order to do so”); ¶ 46 (“OAG sent an administrative subpoena for documents
to the targets of its investigation—DHS and ICE.”); and 	¶ 55 (OAG seeks “evidence of what
ICE knew of conditions” in the Hold Rooms).
The State maintains it has “indeed alleged that private contractors are involved,”
directing the court to paragraph 33 of its Complaint. (ECF No. 17 at p. 8.)9 	There, the State
alleges:
In reported whistleblower allegations, a former worker at the
ICE Baltimore Field Office confirmed detained individuals’
accounts of conditions in the hold rooms, describing blankets
“covered in feces, lice, urine, and throw up;” an incident in
which a detained individual who had returned from the hospital
was placed in a restraint chair; and the field office’s failure to
provide menstruating women hygiene products. Eric Flack &
Ruth Morton, Former ICE Facility Worker ‘saw people laying in
feces’ at Baltimore Detention Center, WUSA9 (Feb. 6, 2026,
7:52 	PM),
https://www.wusa9.com/article/news/investigations/ice-
detention-facility-overcrowdingbaltimore-whistleblower-dhs-
unsanitary-trump/65-03dda8d7-49a9-4caf-b001-db5e12a04158
(last updated Feb. 7, 2026, 11:59 AM) [https://perma.cc/T6CU-
47J2].
(ECF No. 1 at ¶ 33.) The State additionally asserts in its Opposition that its investigation has
yielded evidence that conditions in the Hold Rooms are “attributable to” a private contractor,
and it is investigating that contractor’s conduct. 	(ECF No. 17 at p. 13.) The State argues these
references implicate private contractors. 	Id. 	That may well be the case, but reference to the
whistleblower report is offered as support for the State’s “interest in documenting and assessing
past civil rights violations to ensure that [DHS and ICE] are complying with civil rights law”
and to illustrate the legitimacy of the State’s inquiry and investigation. (ECF No. 1 ¶ 44.) The
State puts too much stock in its oblique pleading reference to a former worker. (ECF No. 17
9 	The State also emphasizes the language in its Subpoena (ECF No. 1-13), which requests, among other items,
information related to “contracts for services” associated with the Hold Rooms as well as information related to
the conduct of “any officer or agent” and relevant communications received by “any agent, agency, or contractor
of the United States.” (ECF No. 17 at pp. 10–11, quoting ECF No. 1-13 at pp. 17–18.) Because this language is
typical of legal documents of this nature, and appears nowhere in the Complaint itself, the court is not persuaded
that a pat reference overcomes the statutory limits and analysis set forth above.
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at p. 13.) The Complaint’s allegations and prayer for relief are plainly directed at possible civil
rights violations committed by DHS and ICE. (ECF No. 1 ¶¶ 2, 30, 44, 46, 45.) Even affording
the Complaint the benefit of reasonable inferences, an isolated reference to a report of “former
worker” at most bolsters the State’s interest in investigating the federal government; it does not
itself suffice to identify a separate target of the State’s investigation and Subpoena. 	See, e.g.,
id. 	¶¶ 32–33 (alleging detainees were “denied dialysis,” “denied medication,” provided inedible
food, and subjected to unsanitary conditions).
In summary, the State’s assertion that private contractors are targets of its investigation,
either in addition to or in place of DHS and ICE, is at odds with the posture and substance of
its Complaint (and the Subpoena). The State’s Opposition marks the first time (known to this
court) that the State asserts an affirmative, express connection between the suspected civil
rights violations and private contractors; or that its investigation has them in its crosshairs.
(ECF No. 17 at p. 15.) So, while the positions the State takes in its responsive briefing may be
“substantially 	valid,” 	they 	are 	procedurally 	incompetent 	to 	establishing 	subject 	matter
jurisdiction. 	Zachair, 965 F. Supp. at 748 n.8; 	see also 	footnote 5, 	supra.
D. 	Informational Injury
The defectiveness 	of the Subpoena 	is 	dispositive to the court’s 	subject 	matter
jurisdiction.10 	As explained, the State bears the burden of establishing standing. 	Lujan, 504
U.S. at 561. In order to plausibly allege an injury in fact, here an informational injury, the State
must plausibly allege that DHS’s actions constitute a “‘real’ harm with an adverse effect.”
United States Dep’t of Agric., 151 F.4th at 208 (quoting 	Dreher, 856 F.3d at 345). Relatedly,
the State must plausibly allege redressability; that there exists a corresponding judicial remedy.
Id. 	at 212. 	The State alleges that by denying its request for information without properly
10 	The issue of standing informs the availability of APA review, because in order to constitute a “final agency
action,” an action must give rise to “legal rights and consequences.” 	COMSAT Corp. v. Nat’l Sci. Found., 190
F.3d 269, 272 n.3 (4th Cir. 1999).
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applying the governing 	Touhy 	regulations, 6 C.F.R. § 5.41-5.49, DHS denied OAG its statutory
right to multi-factor consideration of its Subpoena. (ECF No. 1 ¶¶ 32–45.) 	Dreher, 856 F.3d
at 345.
The State, however, issued the Subpoena to a federal agency under authority of a
Maryland statute that does not authorize it to do so as a matter of law. 	The Subpoena is
therefore issued outside the OAG’s legal authority pursuant to MD. 	CODE 	ANN., 	STAT 	GOV’T 	§
20-1044(b) and related provisions. Pursuant to that particular provision of the Maryland Code,
OAG has no cognizable right to the information requested; there is no “actual harm.” 	United
States Dept. of Agric., 151 F.4th at 208 (citing 	Dreher, 856 F.3d at 345).11
Defendants’ facial challenge to this court’s subject matter jurisdiction prevails.
IV. 	CONCLUSION
For the reasons set forth herein, by separate order, Defendants’ Motion to Dismiss (ECF
No. 16) shall be granted,12 	and the State’s Motion for Summary Judgment (ECF No. 6) shall
be denied as moot.
October 15, 2026 	/S/
Julie R. Rubin
United States District Judge
11 	Even if the State could, despite the invalidity of the Subpoena, plausibly allege an injury in fact, it cannot
plausibly allege redressability. This court has no authority to enforce a Subpoena issued under ineffectual legal
authority, and therefore cannot properly confer a remedy. 	State of Maryland v. United States Dep’t of Agric., 151
F.4th 197, 208 (4th Cir. 2025) (citing 	Dreher v. Experian Info. Sols., Inc., 856 F.3d 337, 345 (4th Cir. 2017)).
Further, because the absence of a legal entitlement renders the agency action nonfinal (as DHS’s denial does not
give rise to legal rights or consequences), judicial review under the APA is inappropriate. 	COMSAT Corp., 190
F.3d at 274.
12 	Dismissal for lack of subject matter jurisdiction shall be without prejudice. 	See S. Walk at Broadlands
Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013) (“A dismissal for
lack of standing—or any other defect in subject matter jurisdiction—must be one without prejudice, because a
court that lacks jurisdiction has no power to adjudicate and dispose of a claim on the merits.”).
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