Al Fayed v. Central Intelligence Agency

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 6, 2000 Decided October 13, 2000

No. 00-5150

Mohamed Al Fayed,
Appellant

v.

Central Intelligence Agency,
Appellee

Appeal from the United States District Court
for the District of Columbia
(No. 99ms00043)

David E. Kendall argued the cause for appellant. With
him on the briefs was Paul C. Rauser.

H. Thomas Byron, III, Attorney, U.S. Department of
Justice, argued the cause for appellee. With him on the brief
were David W. Ogden, Acting Assistant Attorney General,

Mark B. Stern, Attorney, and Wilma A. Lewis, U.S. Attor-
ney.

Before: Williams, Sentelle and Rogers, Circuit Judges.

Opinion for the Court filed by Circuit Judge Williams.

Williams, Circuit Judge: Appellant Al Fayed is the father
of Dodi Fayed, who was killed in an automobile crash in Paris
together with Princess Diana and the car's driver, Henri
Paul. French juges d'instruction investigating the deaths
declined to pursue criminal charges, but Al Fayed has exer-
cised his right under French law to appeal that decision; he
hopes also to exercise his right to present new evidence in the
appeal. During the initial French proceeding, he filed an ex
parte application in the district court here under 28 U.S.C.
s 1782, seeking the issuance of a subpoena to the Central
Intelligence Agency for documents relating to the crash. (Al
Fayed also sought a subpoena of the Defense Intelligence
Agency, but he and that agency have resolved their differ-
ences.) Section 1782 provides for discovery in the federal
courts at the behest of foreign and international tribunals and
persons interested in proceedings before such tribunals.

The district court granted the application and issued the
subpoena. Al Fayed moved to compel compliance and the
CIA moved to quash. The district court denied Al Fayed's
motion and granted the CIA's. Interpreting the use of
"person" in s 1782 (as used to define those subject to discov-
ery, not those seeking discovery) to exclude the sovereign, it
held that it lacked jurisdiction to issue the subpoena. In re:
Al Fayed, 91 F. Supp. 2d 137, 140-41 (D.D.C. 2000). Al
Fayed appealed. Because he has not shown any affirmative
reason to overcome the presumption that "person" does not
include the government, we affirm.

* * *

Section 1782 provides a mechanism for international or
foreign tribunals, or persons interested in proceedings before
such tribunals, to enlist the federal courts to acquire testimo-
ny, documents, or other items:

 (a) The district court of the district in which a person
resides or is found may order him to give his testimony
or statement or to produce a document or other thing
for use in a proceeding in a foreign or international
tribunal, including criminal investigations conducted be-
fore formal accusation. The order may be made pursu-
ant to a letter rogatory issued, or request made, by a
foreign or international tribunal or upon the application
of any interested person and may direct that the testi-
mony or statement be given, or the document or other
thing be produced, before a person appointed by the
court.... To the extent that the order does not pre-
scribe otherwise, the testimony or statement shall be
taken, and the document or other thing produced, in
accordance with the Federal Rules of Civil Procedure.

A person may not be compelled to give his testimony
or statement or to produce a document or other thing in
violation of any legally applicable privilege.

(b) This chapter does not preclude a person within the
United States from voluntarily giving his testimony or
statement, or producing a document or other thing, for
use in a proceeding in a foreign or international tribunal
before any person and in any manner acceptable to him.

28 U.S.C. s 1782 (emphasis added). No court has yet re-
solved whether the "person[s]" subject to subpoena in s 1782
include the federal government. Compare In re Al Fayed,
210 F.3d 421, 422-23 (4th Cir. 2000) (even assuming s 1782
covered the government, the district court properly exercised
its discretion to deny Al Fayed's application for a subpoena of
the National Security Agency); In re Kevork, 788 F.2d 566,
568 (9th Cir. 1986) (affirming issuance of subpoena to three
FBI agents under s 1782 at behest of Ontario Supreme
Court, but issue of statute's coverage of government was not
raised).

Plainly s 1782 neither excludes nor includes the sovereign
explicitly. The Dictionary Act, whose definitions govern the
meaning of acts of Congress "unless the context indicates
otherwise," says that the word "person" includes "corpora-

tions, companies, associations, firms, partnerships, societies,
and joint stock companies, as well as individuals." 1 U.S.C.
s 1. The Supreme Court has construed prior similar lan-
guage to exclude the United States, United States v. United
Mine Workers of America, 330 U.S. 258, 275 (1947),1 and to
find that "person" excludes states, Will v. Michigan Dep't of
State Police, 491 U.S. 58, 69-70 & nn. 8-9 (1989), but does
include municipalities, Monell v. New York City Dep't of
Social Services, 436 U.S. 658, 688-89 (1978) (construing "per-
son" to include municipalities in statute enacted when Dictio-
nary Act said that the word encompassed "bodies politic and
corporate").

More generally, the Court has repeatedly held that the
word "person" in a statute does not include a sovereign
government absent affirmative evidence of such an inclusory
intent. It applied the principle just this year in Vermont
Agency of Natural Resources v. United States ex rel. Stevens,
120 S. Ct. 1858 (2000), when it decided that a state or state
agency was not a person within the meaning of the False
Claims Act's provision exposing to liability "[a]ny person"
presenting a false claim to employees or officials of the
United States government. Id. at 1866. The Court invoked
its "longstanding interpretative presumption that 'person'
does not include the sovereign." Id. Although it acknowl-
edged that "[t]he presumption is, of course, not a 'hard and
fast rule of exclusion,' " it said that the principle "may be
disregarded only upon some affirmative showing of statutory
intent to the contrary." Id. at 1867. See also International
Primate Protection League v. Administrators of Tulane
Educ. Fund, 500 U.S. 72, 82-83 (1991) (noting that statutes
employing the word "person" are typically interpreted to
exclude the sovereign and holding that the federal govern-
ment is not a "person" under statute providing removal
authority); Will v. Michigan Dep't of State Police, 491 U.S. at

__________
1 The version of the Dictionary Act in effect in 1932 when
Congress passed the Norris-LaGuardia Act (construed in United
Mine Workers) said that "the word 'person' may extend and be
applied to partnerships and corporations." 1 U.S.C. s 1 (1926).

64; United States v. Cooper Corp., 312 U.S. 600, 604 (1941);
cf. Galvan v. Federal Prison Indus., Inc., 199 F.3d 461, 468
(D.C. Cir. 1999) (holding that use of the word "person" in the
False Claims Act does not constitute waiver of the federal
government's sovereign immunity).

Al Fayed suggests that the principle is inapplicable here
because the case poses no risk of monetary relief against the
sovereign--only the issuance of a subpoena; he notes that the
Court has sometimes urged concepts of sovereign immunity
in support of the principle. See, e.g., Will v. Michigan Dep't
of State Police, 491 U.S. at 64. But his own brief undermines
the theory, acknowledging that sovereign immunity principles
come into play when parties seek judicial action to compel
compliance with a subpoena. See, e.g., COMSAT Corp. v.
National Science Foundation, 190 F.3d 269, 277 (4th Cir.
1999). Because of concerns over judicial interference with
executive discretion, the sovereign immunity doctrine played
an active (if hotly disputed) role in suits seeking non-
monetary relief, see, e.g., Larson v. Domestic & Foreign
Commerce Corp., 337 U.S. 682, 695-96, 703-04 (1949); Land
v. Dollar, 330 U.S. 731, 738-39 (1947), until Congress waived
it for all non-monetary claims in the 1976 amendment of 5
U.S.C. s 702. Act of Oct. 21, 1976, Pub. L. No. 94-574, 90
Stat. 2721. That waiver occurred long after the original
enactment of what is now s 1782, and well after its last major
amendment in 1964.2 Act of Oct. 3, 1964, Pub. L. No. 88-619,
s 9(a), 78 Stat. 995, 997. Whatever the ultimate application
of sovereign immunity, it seems naive to say that any sover-
eign immunity basis for the interpretive presumption has
vanished merely because a waiver may ultimately be applica-
ble. As the district court here observed (in a different
context), the proposition that the federal government has

__________
2 1996 saw a minor addition. To provide assistance to the
International Tribunals for Rwanda and (former) Yugoslavia, Con-
gress added the phrase "including criminal investigations conducted
before formal accusation" after "proceeding in a foreign or interna-
tional tribunal" in the first sentence. National Defense Authoriza-
tion Act for Fiscal Year 1996, Pub. L. No. 104-106, Div. A, Tit.
XIII, Subtit. E, s 1342 (b), 110 Stat. 186, 486 (1996).

waived sovereign immunity from a federal-court subpoena by
virtue of 5 U.S.C. s 702 must rest on the "premise that a
federal-court subpoena implicates sovereign immunity." In
re: Al Fayed, 91 F. Supp. 2d at 139.

In any event, the Supreme Court applies the constructional
principle against finding "person" to include a sovereign even
in the absence of sovereign immunity or comity concerns. It
did so, for example, in Breard v. Greene, 523 U.S. 371, 378
(1998), holding that Paraguay was not a "person" entitled to
sue under 42 U.S.C. s 1983, and in United States v. Cooper
Corp., 312 U.S. at 604-05, holding that the United States was
not a "person" entitled to bring treble damage actions under
s 7 of the Sherman Act. But compare Georgia v. Evans, 316
U.S. 159, 161-62 (1942) (holding that states were "person[s]"
entitled to sue for treble damages under s 7 of the Sherman
Act because they, unlike the federal government, had no
other mechanisms to enforce the Act's provisions).

The Court has identified a range of sources for grounds to
overcome the presumption: "[O]ur conventional reading of
'person' may therefore be disregarded if '[t]he purpose, the
subject matter, the context, the legislative history, [or] the
executive interpretation of the statute ... indicate an intent,
by the use of the term, to bring state or nation within the
scope of the law.' " International Primate, 500 U.S. at 83
(internal citation omitted). In this case none of these sources
indicates an intent to override the presumption.

Al Fayed's strongest shot at countervailing the canon is
Rule 45 of the Federal Rules of Civil Procedure, governing
the issuance and enforcement of subpoenas. He notes that
s 1782 expressly directs application of the Federal Rules, and
argues that the word "person" as it appears in Rule 45
includes the federal government. But in fact the meaning of
"person" in Rule 45 is not so simple. Where the government
is a party to a suit it is, unsurprisingly, subject to the rules.
See United States v. Proctor & Gamble Co., 356 U.S. 677, 681
(1958). But as to discovery against the government when it
is not a party, the courts are in some disarray. The Ninth
Circuit has ruled broadly that the federal discovery rules

apply to the government even as a non-party, Exxon Ship-
ping Co. v. United States Dep't of Interior, 34 F.3d 774, 780
(9th Cir. 1994), but at least two circuits, the Second and
Fourth, have taken a more restrictive approach. Rejecting
Exxon and viewing 5 U.S.C. s 702 as the only applicable
waiver of sovereign immunity, they have applied the Adminis-
trative Procedure Act, with the result that review of an
agency's response to a subpoena proceeds as an ordinary
APA case, with all the standard deference principles. United
States Environmental Protection Agency v. General Electric
Co., 197 F.3d 592, 598 (2d Cir. 1999); COMSAT Corp. v.
National Science Foundation, 190 F.3d 269, 277-78 (4th Cir.
1999). See also Moore v. Armour Pharmaceutical Co., 927
F.2d 1194, 1197-98 (11th Cir. 1991). Cf. Houston Business
Journal, Inc. v. Office of the Comptroller of the Currency, 86
F.3d 1208, 1212 (D.C. Cir. 1996) (assuming application of
waiver under 5 U.S.C. s 702); Northrop Corp. v. McDonnell
Douglas Corp., 751 F.2d 395, 398 n.2 (D.C. Cir. 1984) (where
no party raised possible sovereign immunity issue, the court
noted prior cases that "assumed the nonapplicability of sover-
eign immunity" to a subpoena directed against the govern-
ment as a non-party and declined to analyze the assumption).
Thus s 1782's cross-reference to the Federal Rules can hard-
ly be said to send a contextual signal that might overcome the
standard presumption.

Even if the government as a non-party were subject to
discovery like any other party under the rules, we note that
this alone could not create jurisdiction if s 1782 did not. The
Federal Rules of Civil Procedure "shall not be construed to
extend or limit the jurisdiction of the United States district
courts." Fed. R. Civ. P. 82. The district court must have
jurisdiction under s 1782 before the discovery rules become
operative. See United States Catholic Conference v. Abor-
tion Rights Mobilization, Inc., 487 U.S. 72, 76 (1988) ("[T]he
subpoena power of a court cannot be more extensive than its
jurisdiction."); Dery v. Wyer, 265 F.2d 804, 808 (2d Cir. 1959)
("A rule of procedure, of course, however convenient and
salutary it may be, is without efficacy to extend the jurisdic-
tion of a court.").

 Al Fayed also seeks support in the general purpose of
s 1782 and its legislative history. One can certainly formu-
late the goals of the statute at a high level of generality, and
on occasion Congress has done so for s 1782 (as it does for
many statutes). A Senate Judiciary Committee report sup-
porting the 1964 amendment, for example, expressed the goal
of "providing equitable and efficacious procedures for the
benefit of tribunals and litigants involved in litigation with
international aspects," and thereby "invit[ing] foreign coun-
tries similarly to adjust their procedures." S. Rep. No. 1580,
at 2 (1964), reprinted in 1964 U.S.C.C.A.N. 3782, 3783. See
also Lancaster Factoring Co. Ltd. v. Mangone, 90 F.3d 38, 41
(2d Cir. 1996) (relying on the report); Malev Hungarian
Airlines v. United Technologies Int'l Inc., 964 F.2d 97, 100
(2d Cir. 1992) (same). But the breadth of the goals as a
general matter does little or nothing to answer the question
before us--whether Congress intended, in pursuit of those
goals, to impose responsibilities and burdens on federal agen-
cies. Nor do we find any help in Al Fayed's point that the
successive amendments, since the statute's origin in 1855,
have given it "increasingly broad applicability." See Lancas-
ter Factoring Co. Ltd. v. Mangone, 90 F.3d at 41. In fact the
1863 Act restricted the initial 1855 statute,3 but regardless of
the direction of the successive changes, none addressed the
issue here.

As Al Fayed has provided no affirmative evidence to dis-
turb the presumption that "person" excludes the sovereign,
we affirm the district court's order quashing the subpoena.

So ordered.

__________
3 The 1855 statute authorized federal courts, upon receipt of
letters rogatory from foreign courts, to compel witnesses to testify.
Act of March 2, 1855, ch. 140, s 2, 10 Stat. 630. In 1863, the initial
statute was restricted to allow federal courts to obtain testimony
only in "suit[s] for the recovery of money or property ... in any
foreign country with which the United States are at peace, and in
which the government of such foreign country shall be a party or
shall have an interest." Act of March 3, 1863, ch. 95, s 1, 12 Stat.
769.