Linder, David v. Calero-Portocarrero

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 6, 2001 Decided June 5, 2001

No. 00-5122

David Linder, et al.,
Appellants

v.

Adolfo Calero-Portocarrero, et al.,
Appellees

Consolidated with
Nos. 00-5123 & 00-5124

Appeals from the United States District Court
for the District of Columbia
(94ms00146)
(94ms00147)
(94ms00150)

---------

 Jennifer M. Green argued the cause for appellants. With
her on the brief were Beth Stephens and Michael Ratner.

W. Mark Nebeker, Assistant U.S. Attorney, argued the
cause for appellees. With him on the brief were Wilma A.
Lewis, U.S. Attorney at the time the brief was filed, R. Craig
Lawrence and Mark E. Nagle, Assistant U.S. Attorneys.

Before: Ginsburg, Randolph, and Rogers, Circuit Judges.

Opinion for the Court filed by Circuit Judge Randolph.

Randolph, Circuit Judge: This case began as an action to
enforce subpoenas duces tecum served on various federal
agencies, including the Departments of Defense and State
and the Central Intelligence Agency. The agencies are not
parties to the Florida lawsuit generating these discovery
requests. Aspects of the case were before this court in
Linder v. Department of Defense, 133 F.3d 17 (D.C. Cir.
1998), and we assume familiarity with that opinion.

In this round, the Linders, plaintiffs in the Florida case,
object to the district court's ruling compelling the Defense
Department, the State Department, and the CIA to comply
with the expanded subpoenas on condition that the Linders
pay "half the reasonable copying and labor costs." Linder v.
Calero-Portocarrero, 180 F.R.D. 168, 177 (D.D.C. 1998); Lin-
der v. Calero-Portocarrero, 183 F.R.D. 314, 322-23 (D.D.C.
1998); Linder v. Calero-Portocarrero, 31 F. Supp. 2d 134, 136
n.4 (D.D.C. 1998). The court based its ruling on the following
language in Fed. R. Civ. P. 45(c)(2)(B): "an order to compel
production shall protect any person who is not a party or an
officer of a party from significant expense resulting from the
inspection and copying commanded." We asked at oral argu-
ment whether sovereign immunity shielded federal agencies
from third-party subpoenas under Rule 45 on the basis that
the United States is not a "person" as Rule 45 uses the term.
We called for supplemental briefing on this question in light
of Al Fayed v. CIA, 229 F.3d 272 (D.C. Cir. 2000), and
because sovereign immunity would bar our exercise of juris-
diction. Burkhardt v. Washington Metro. Area Transit
Auth., 112 F.3d 1207, 1216 (D.C. Cir. 1997).

 I.

After considering the supplemental briefs we have conclud-
ed that federal agencies cannot, in view of our precedents,
claim sovereign immunity to avoid compliance with third-
party subpoenas. Whether, as a matter of interpretation, the
word "person" in Rule 45 includes the federal government is a
non-jurisdictional question the government failed to raise in
the district court and we therefore express no opinion on it.

In authorizing parties to serve subpoenas on "persons" who
are not parties to litigation, Rule 45 states: "Every subpoena
shall ... command each person to whom it is directed to
attend and give testimony or to produce and permit inspec-
tion and copying" of documents or tangible things. Fed. R.
Civ. P. 45(a)(1)(C). The courts of appeals are not entirely in
agreement on their approach to Rule 45 when the object of
the third-party subpoena is the federal government.

In Exxon Shipping Co. v. U.S. Department of Interior, 34
F.3d 774, 778 (9th Cir. 1994), the Ninth Circuit ruled that
sovereign immunity is no bar to compelling the testimony of
federal officers under the federal discovery rules. Congress
waived the sovereign immunity of the United States with
regard to all actions that seek "relief other than money
damages" in 5 U.S.C. s 702. 34 F.3d at 779 n.9. Third-party
subpoenas do not seek damages and so the court held that
federal agencies must comply with Rule 45 subpoenas unless
the district court, exercising its discretion under the protec-
tive provisions of Rules 45 and 26, relieves them of that
obligation. Id. at 778-79.

In Comsat Corp. v. National Science Foundation, 190 F.3d
269 (4th Cir. 1999), the National Science Foundation refused
to comply with a third-party subpoena issued under Rule 45.
The Fourth Circuit, like the Ninth, concluded that 5 U.S.C.
s 702 waived the government's sovereign immunity, but held
that because the waiver appeared in the Administrative Pro-
cedure Act (APA), the standard of review set forth in that act,
and codified at 5 U.S.C. s 706, controlled. 190 F.3d at 274.
The court therefore reviewed the agency's refusal to provide
the subpoenaed material under the "arbitrary and capricious"

standard. Id. at 277-78 (recognizing its disagreement with
Exxon Shipping). The Second Circuit, agreeing with Com-
sat, has also directed a district court to review an agency's
refusal to produce documents requested under Rule 45 under
the "arbitrary and capricious" standard. EPA v. General
Elec. Corp., 197 F.3d 592, 599 (2d Cir. 1999).

We too have determined that sovereign immunity is not a
defense to a third-party subpoena. Northrop Corp. v.
McDonnell Douglas Corp., 751 F.2d 395, 398 n.2 (D.C. Cir.
1984), stated: "Since at least 1965 ... this court has assumed
the nonapplicability of sovereign immunity" to a non-party
subpoena directed at the government. We found "no cause to
upset a steady course of precedent by attempting to graft
onto discovery a broad doctrine of sovereign immunity." Id.
More recently, in Houston Business Journal, Inc. v. Office of
the Comptroller, 86 F.3d 1208, 1212 (D.C. Cir. 1996), we
stated that sovereign immunity does not insulate the federal
government from complying with a Rule 45 subpoena, be-
cause in federal court the government has waived its sover-
eign immunity for actions "seeking relief other than money
damages" in 5 U.S.C. s 702. Unlike the Fourth and Second
Circuits, we have never read the waiver contained in APA
s 702 to be limited by APA s 706. Nothing in the language
of s 702 indicates that it applies only to actions brought
under s 706, and our decisions have never so held. With
respect to Rule 45, we have consistently proceeded under the
ordinary standard of review to determine whether a district
court properly considered the motion to compel production--
inquiring whether the district court abused its discretion in
denying or compelling discovery. See Schreiber v. Society for
Savings Bancorp, Inc., 11 F.3d 217, 220 (D.C. Cir. 1993); In
re Subpoena, 967 F.2d 630, 633 (D.C. Cir. 1992).

Our doubts about the applicability of Rule 45 stemmed
from Al Fayed v. CIA, 229 F.3d 272 (D.C. Cir. 2000), a case in
which we construed 28 U.S.C. s 1782, a statute similar in
effect to Rule 45. The statute permits discovery directed to
non-parties in the federal courts by parties to proceedings
before foreign and international courts. In relevant part it
provides that the "district court of the district in which a

person resides or is found may order him to give his testimo-
ny...." 28 U.S.C. s 1782(a). Al Fayed sought discovery
from the CIA pursuant to this section. We held that the
term "person" in s 1782(a) did not include the federal govern-
ment. Al Fayed, 229 F.3d at 276-77. In a statute, "the word
'person' ... does not include a sovereign absent affirmative
evidence of such an inclusory intent." Id. at 274. This
"presumption is, of course, not a hard and fast rule of
exclusion," id. (quoting Vermont Agency of Natural Re-
sources v. United States ex rel. Stevens, 529 U.S. 765, 781
(2000) (internal quotations omitted)), but there was no reason
not to apply the presumption to s 1782, particularly in light
of the Dictionary Act, which defines statutory terms and
governs the meaning of those words "unless the context
indicates otherwise." 1 U.S.C. s 1. The Dictionary Act
defines the word "person" as "corporations, companies, asso-
ciations, firms, partnerships, societies and joint stock compa-
nies, as well as individuals," but does not mention the federal
government or its agencies. Id.

Although our past decisions have assumed that "person" in
Rule 45 included the federal government, we have never
expressly so held and our assumption may need to be reexam-
ined in light of Al Fayed. But this is not the case in which to
undertake the reexamination. Sovereign immunity provides
no defense to the government and so there is no jurisdictional
problem we need to address. Whether Rule 45's use of the
word "person" should exempt the federal government, as Al
Fayed held in regard to s 1782, is purely a question of
statutory interpretation, a question the government did not
raise before the district court. We therefore decline to
decide it. See Marymount Hosp., Inc. v. Shalala, 19 F.3d
658, 663 (D.C. Cir. 1994).

II.

The Linders offer four reasons why we ought to reverse
the district court's imposition of costs. The first is that the
court misapplied Rule 45, contradicting existing case law. As
amended in 1991, Fed. R. Civ. P. 45(c)(2)(B) provides that

when a district court compels production by a non-party the
court "shall protect" that person from "significant expense
resulting from the inspection and copying commanded." Be-
fore the amendment, costs could be shifted, but the decision
to do so was within the discretion of the district court. See
United States v. CBS, Inc., 666 F.2d 364, 371 n.9 (9th Cir.
1982). As the notes to the amendment explain, the 1991
changes were intended "to enlarge the protections afforded
persons who are required to assist the court." Fed. R. Civ. P.
45, advisory committee notes.

There are relatively few reported cases applying the new
Rule 45. In re The Exxon Valdez, 142 F.R.D. 380 (D.D.C.
1992), described the 1991 amendment as representing "a clear
change from old Rule 45(b), which gave district courts discre-
tion to condition the enforcement of subpoenas on the peti-
tioners paying for the costs of production." Id. at 383. The
court thought " 'protection from significant expense' does not
mean that the requesting party necessarily must bear the
entire cost of compliance.... There is no indication that [the
amendment] intended to overrule prior Rule 45 case law,
under which a non-party can be required to bear some or all
of its expenses where the equities of a particular case demand
it." Id. The district court here considered the factors men-
tioned in Exxon Valdez and in pre-1991 cases dealing with
cost shifting: "whether the non-party actually has an interest
in the outcome of the case, whether the non-party can more
readily bear its costs than the requesting party, and whether
the litigation is of public importance." Linder, 180 F.R.D. at
177; Linder, 183 F.R.D. at 322.

The Linders claim the court erred in concluding that fee
shifting was mandatory. But Rule 45 requires precisely
that--the district court "shall protect" a non-party from
"significant expense." Under the revised Rule 45, the ques-
tions before the district court are whether the subpoena
imposes expenses on the non-party, and whether those ex-
penses are "significant." If they are, the court must protect
the non-party by requiring the party seeking discovery to
bear at least enough of the expense to render the remainder

"non-significant." The rule is susceptible of no other inter-
pretation.

The estimated expenses of compliance here amounted to
$199,537.08. Is this amount "significant"? We have no trou-
ble concluding that it is. Compare Williams v. City of Dallas,
178 F.R.D. 103, 113 (N.D. Tex. 1998) ($9,000 estimate suffi-
ciently significant to shift costs). While a court might take
into account the financial ability of the non-party to bear
some costs (a question we do not reach today), the district
court here was well within bounds in treating expenses of
nearly $200,000 as "significant." (Whether the court should
have shifted the entire amount is beside the point in light of
the Linders' position that they will pay no expenses whatsoev-
er in order to obtain discovery.)

According to the Linders, two statutes preclude imposing
expenses on them even if Rule 45 means what we think it
means. The first is the Intelligence Authorization Act for
Fiscal Year 1998. Pub. L. No. 105-107, 111 Stat. 2252 (1997),
codified at 22 U.S.C. s 2715a. Section 307 of the Intelligence
Authorization Act states that "it is in the national interests of
the United States to provide information regarding the kill-
ing, abduction, torture, or other serious mistreatment of
United States citizens abroad," 22 U.S.C. s 2715a(a)(1), and
directs federal agencies to "take all appropriate action" to
identify information pertaining to such crimes and make it
available to the family members of the victims. Id.
s 2715a(b). The Linders believe this means they are entitled
to the subpoenaed material without charge. We think not.
The Act creates no enforceable rights on behalf of any party.
It provides no cause of action. It is simply a general state-
ment of policy. See Cort v. Ash, 422 U.S. 66, 78 (1975). It
does not refer to federal discovery rules, and it does not
address who should bear the costs of the production of
covered information. Even if the Act were enforceable, earli-
er document production in this case satisfied any obligations
the government might have under this legislation. The gov-
ernment has already provided all information generated be-
tween January 1, 1984, and December 31, 1988, concerning
Benjamin Linder, the attack in which he was killed, and

information about other contra attacks in the region in the
same time period. Linder, 183 F.R.D. at 316-17.

The Linders' second statute is the Freedom of Information
Act, or more precisely, the public interest exception in FOIA,
5 U.S.C. s 552(a)(4)(A)(iii), requiring documents to be fur-
nished to the requester at no charge or at a reduced charge
when this is in the public interest. They also rely on
s 552(a)(4)(A)(ii)(III) and argue in the alternative that, at the
most, they should only have to pay the search and duplication
costs of the documents. We see no basis for believing that
FOIA affects the cost-shifting provisions of Rule 45. Rule 45
was amended to include cost-shifting provisions in 1991--long
after the relevant FOIA sections became law. See Pub. L.
No. 99-570, s 1803, 100 Stat. 3207-48, 3207-49 (1986). If the
Linders wish to proceed under FOIA, they are of course free
to do so. Whether they then could be required to bear some
or any of the costs is not for us to say in this case.

The Linders' last argument is that our previous decision in
this case compels release of these documents at no cost.
There is nothing to this. In that opinion we dealt only with
the scope of the subpoenas, not who should bear the costs of
production. 133 F.3d at 23-25.

The judgment of the district court that the CIA and
Departments of State and Defense need not comply with
plaintiffs' subpoenas is affirmed.