United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 27, 2006 Decided June 16, 2006
No. 05-5197
BASHE ABDI YOUSUF, ET AL.,
APPELLANTS
v.
MOHAMED ALI SAMANTAR AND
DEPARTMENT OF STATE,
APPELLEES
Appeals from the United States District Court
for the District of Columbia
(No. 05mc00110)
Robert R. Vieth argued the cause for appellants. With him
on the briefs were Tara M. Lee, Lori R. Ploeger, and Michael
Traynor.
H. Thomas Byron, III, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief were Peter
D. Keisler, Assistant Attorney General, Kenneth L. Wainstein,
U.S. Attorney, and Douglas N. Letter, Attorney.
John S. Mills was on the brief for amici curiae The
Educational Fund To Stop Gun Violence and National Security
Archive in support of appellants. Meredith Fuchs, Kate A.
Martin, and Sayre Weaver entered appearances.
2
Before: GINSBURG, Chief Judge, and ROGERS and BROWN,
Circuit Judges.
Opinion for the Court filed by Chief Judge GINSBURG.
GINSBURG, Chief Judge: The drafters of the Federal Rules
of Civil Procedure believed Rule 45 was “so simple that it did
not need any discussion” at the symposia they held to introduce
the Rules in 1938. American Bar Association, Federal Rules of
Civil Procedure, Proceedings of the [American Bar Association]
Institute [on Federal Rules] at Washington, D.C. and of the
Symposium at New York City 313 (Edward H. Hammond ed.)
(1939). The dispute before us today, in which plaintiff Bashe
Abdi Yousuf and others challenge the district court’s denial of
their motion to compel compliance with a subpoena served upon
the U.S. Department of State under Rule 45, suggests the
framers underestimated the creativity of the United States when
faced with a subpoena duces tecum issued in a case to which it
is not a party. That creativity notwithstanding, we hold the
United States is a “person” within the meaning of Rule 45 -- as
it has been held to be under every Rule thus far litigated. Hence,
we reverse the judgment of the district court and remand the
case for further proceedings.
I. Background
This appeal arises from litigation pending in the United
States District Court for the Eastern District of Virginia, where
the plaintiffs, who are Somali nationals, brought suit under the
Torture Victim Protection Act, 28 U.S.C. § 1350 note, and the
Alien Tort Statute, id. § 1350, against Mohamed Ali Samantar
for acts he allegedly took as an official in the Somali
government led by President Mohamed Siad Barre. During
discovery the plaintiffs sought from the U.S. Department of
State a variety of documents related to (1) human rights abuses
3
committed by the Somali armed forces; (2) the interaction
between the United States and representatives of the Siad Barre
regime; and (3) “the formal structure and organization of the
Somali government and political system and Armed Forces.”
To this end the plaintiffs both served the State Department with
a subpoena pursuant to Rule 45 and submitted a request pursuant
to the Department’s so-called Touhy regulations, 22 C.F.R. §§
172.1-5 (setting forth agency procedures for responding to
document requests). See United States ex. rel. Touhy v. Ragen,
340 U.S. 462, 468-70 (1951) (upholding regulation prohibiting
agency employees from releasing documents without consent of
agency head).
The United States, on the Department’s behalf, objected to
the subpoena, whereupon the plaintiffs filed in the District Court
for the District of Columbia a motion to compel compliance.
See Fed. R. Civ. P. 45(c)(2)(B). The Government opposed the
motion on the grounds it was not a “person” subject to subpoena
under Rule 45; the plaintiffs had not followed proper procedures
in subpoenaing the Department; and the subpoena was unduly
burdensome. The plaintiffs then argued the Government had
forfeited its objections to the subpoena because it had not raised
them within the time limit set by Rule 45(c)(2)(B) and, in any
event, maintained the subpoena was in all respects proper.
The district court denied the plaintiffs’ motion to compel.
It began by recognizing a “longstanding interpretive
presumption,” Al Fayed v. CIA, 229 F.3d 272, 274 (D.C. Cir.
2000), that, as used in a statute, the term “person” does not
include the United States. Holding the presumption unrebutted
in this case, the court did not reach the Government’s other
objections to the subpoena. The plaintiffs now appeal.
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II. Analysis
The plaintiffs argue the district court erred in denying their
motion because (1) the Government forfeited its objections
when it failed to raise them in a timely manner and (2) the
Government is a “person” for purposes of Rule 45. With regard
to the latter point, the plaintiffs contend the district court should
not have applied the interpretive presumption to Rule 45 and,
even if the presumption is applicable, it has been overcome.
The Government in turn denies it forfeited its objections and
defends the decision of the district court.
We review the district court’s discovery orders for abuse of
discretion, Linder v. Calero-Portocarrero, 251 F.3d 178, 181
(D.C. Cir. 2001), except as to questions of law -- such as the
proper interpretation of Rule 45 -- which we decide de novo.
Eldred v. Reno, 239 F.3d 372, 374 (D.C. Cir. 2001). We must
begin our analysis, however, with the matter of our jurisdiction.
See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95
(1998).
A. Jurisdiction
At oral argument the Government asserted that, because the
State Department had not finished reviewing the plaintiffs’
document request pursuant to its Touhy regulations before the
plaintiffs filed their motion to compel compliance with the
subpoena, the Department had not as of then taken any final
action subject to judicial review. Despite the Government’s
tardiness in presenting this objection, we must consider it
because, under the Administrative Procedure Act, 5 U.S.C. §
704, without final agency action we do not have jurisdiction to
proceed.
The objection need not long detain us, however. An
5
agency’s denial of a request is final agency action for the
purpose of § 704. See, e.g., Envtl. Def. Fund v. Reilly, 909 F.2d
1497, 1504 n.97 (D.C. Cir. 1990) (holding agency’s denial of
petition for rulemaking final per § 704). Indeed, the Fourth
Circuit has held specifically that an agency’s refusal to comply
with a subpoena constitutes “final agency action ... ripe for ...
review under the APA.” COMSAT Corp. v. Nat’l Sci. Found.,
190 F.3d 269, 275 (1999). We agree. The requirement that an
agency’s action be “final” prevents improper judicial intrusion
into the administrative decisionmaking process. Ciba-Geigy
Corp. v. EPA, 801 F.2d 430, 436 (D.C. Cir. 1986). With regard
to the subpoena here at issue, that process was completed on
January 14, 2005, when the counsel for the Department of State
sent a letter taking the position that, because the Government is
not a “person” subject to Rule 45, subpoenas “are not proper
procedural devices through which to seek information from a
federal agency.” It follows that such action is final and
reviewable under the APA, regardless whether the Department
of State was then still processing the plaintiffs’ parallel request
under its Touhy regulations.
B. Forfeiture
The plaintiffs argue that the Government forfeited its
objections to the subpoena, which was served on December 22,
2004, because it did not raise those objections until January 14,
2005, which was beyond the time limit in Rule 45(c)(2)(B):
“[A] person commanded to produce and permit inspection and
copying [of documents] may, within 14 days after service of the
subpoena ... [serve a] written objection to [the] inspection or
copying.” See also Tuite v. Henry, 98 F.3d 1411, 1416 (D.C.
Cir. 1996) (discussing requirement).
The Government first contends it is not bound by Rule 45(c)
because it is not a “person” for purposes of the Rule.
6
Furthermore, the Government asserts the time limit applies only
to objections related “to the substance of the subpoena [and] ...
not to its ultimate enforcement.” Finally, the Government
argues forfeiture under Rule 45 is “not automatic” and can be
excused in the “unusual circumstances” of this case, where the
“subpoena was overbroad, the State Department is a nonparty
acting in good faith, and counsel for the government discussed
the processing of the document requests [with plaintiffs’
counsel] before this subpoena-enforcement litigation was
initiated.” As the Government further notes by way of
mitigation, the plaintiffs “served the subpoena on December 22,
2004, in the midst of the holiday period, and it was not received
by the Department of Justice [as counsel to the Department of
State] until January 13, 2005. An objection letter was sent the
very next day,” after counsel had conversed by telephone.
We begin with the Government’s argument that the time
limit set by Rule 45(c)(2)(B) applies only to objections
concerning “the substance of the subpoena,” by which it means
objections such as “privilege or relevance or burden” that go to
the “inspection or copying ... of designated materials”; from
these it distinguishes objections going to the “ultimate
enforcement” of the subpoena, the only example given being the
current objection that the Government is not subject to a
nonparty subpoena. The Government defends its distinction on
the ground that objections going to enforcement cannot “be
resolved or fleshed out before a dispute reaches the district
court.” The significance of this statement eludes us, and the
Government adduces not a single case in support of it. Such
dictum as we can find is against it. See In re DG Acquisition
Corp., 151 F.3d 75, 81 (2d Cir. 1998) (stating, relative to a
belated claim of privilege, the Rule “require[s] the recipient of
a subpoena to raise all objections at once, rather than in
staggered batches, so that discovery does not become a
‘game’”).
7
We need not accept the Government’s distinction, however,
in order to consider its present objection. For the Government
is correct that the district court may, “in unusual circumstances
and for good cause,” consider an untimely objection to a
subpoena. Concord Boat Corp. v. Brunswick Corp., 169 F.R.D.
44, 48 (S.D.N.Y. 1996); see 9 James W. Moore et al., Moore’s
Federal Practice § 45.04[2] (3d ed. 2004). Certain factors may
guide the district court’s discretion, for example, whether (1) the
subpoena is “overbroad on its face and exceeds the bounds of
fair discovery”; (2) the subpoenaed witness is a nonparty acting
in good faith; and (3) counsel for the witness was in contact with
counsel for the party issuing the subpoena prior to filing its
formal objection. Concord Boat, 169 F.R.D. at 48 (internal
quotation marks omitted); see 9 Moore et al. § 45.04[2];
Alexander v. FBI, 186 F.R.D. 21, 34-36 (D.D.C. 1998) (no
waiver where witness was non-party and subpoena was not
limited to relevant materials).
Here, the Government is a nonparty acting in good faith; the
subpoena is broad enough at least to raise a question of
overbreadth; and counsel for the Department acted promptly to
contact counsel for the plaintiffs and to file his objections
(though the State Department appears not to have acted with
equal alacrity). Therefore, we cannot say the district court here
abused its discretion in considering the Government’s
objections. And so we are obliged to do the same.
C. The Applicability of the Interpretive Presumption
Rule 45(a)(1)(C) provides that every subpoena shall:
[C]ommand each person to whom it is directed to
attend and give testimony or to produce and permit
inspection and copying of designated books,
documents or tangible things in the possession, custody
8
or control of that person ....
Fed. R. Civ. P. 45(a)(1)(C) (emphases added). The Government
argues it is not a “person” subject to this Rule, noting that
“statutes employing the [word ‘person’] are ordinarily construed
to exclude” the sovereign. United States v. Cooper Corp., 312
U.S. 600, 604 (1941). The Government analogizes this case to
Al Fayed, 229 F.3d 272, where we applied the presumption that
the Government is not a “person” and the Dictionary Act, 1
U.S.C. § 1, in construing 28 U.S.C. § 1782, which provides the
“district court of the district in which a person resides or is
found may order him ... to produce a document or other thing for
use in a proceeding in a foreign or international tribunal.” See
Linder, 251 F.3d at 180-81 (discussing Al Fayed and
recognizing open question of applicability of Rule 45 to
Government).
The plaintiffs argue the Dictionary Act and the interpretive
presumption that the Government is not a “person” are
inapplicable to Rule 45 because the Federal Rules “resulted
from a judicial act, not legislation.” Even if the presumption
does apply, they note the presumption can be overcome if “[t]he
purpose, the subject matter, the context, [and] the legislative
history ... indicate an intent, by the use of the term, to bring [the]
state or nation within the scope of the law.” Cooper Corp., 312
U.S. at 605. Here, they contend, the purpose, context, and
history of Rule 45 bespeak an intent to treat the Government as
a “person.”
At the outset, we note that we have found no caselaw
applying the Dictionary Act to the Federal Rules, and it is
doubtful, though surely not clear, whether the Rules are properly
considered an “Act of Congress” subject to that Act, 1 U.S.C. §
1. In the Rules Enabling Act, 28 U.S.C. § 723(b) (1934), the
Congress gave “the Supreme Court of the United States ... the
9
power to prescribe, by general rules,” the “process” to be
followed in the district courts of the United States. The
Congress additionally provided that the rules governing civil
procedure would not go into effect “until they shall have been
reported to Congress by the Attorney General at the beginning
of a regular session thereof and until after the close of such
session.” Id. § 723(c). Therefore, although the Congress did not
draft and did not affirmatively adopt the Federal Rules of Civil
Procedure, see 4 Charles Alan Wright & Arthur R. Miller,
Federal Practice & Procedure § 1004 (3d ed. 2002), it did
authorize their creation, and consequently it is not entirely clear
the definitions of the Dictionary Act should not apply to the
Rules.
This is not a question we need decide today, however.
Because the definition of “person” in the Dictionary Act, 1
U.S.C. § 1 (defining “person” to include “corporations,
companies, associations, firms, partnerships, societies, and joint
stock companies, as well as individuals”), upon which the
Government relies was passed in 1947, the framers of Rule 45
were not guided by it when, in 1937, they provided that a
“person” may be subpoenaed to testify or to produce documents.
Fed. R. Civ. P. 45(a)(1)(C). The definition in place at the time
the Rules were adopted was broader, stating that “in all acts
hereafter passed ... the word ‘person’ may extend and be applied
to bodies politic and corporate ... unless the context shows that
such words were intended to be used in a more limited sense.”
Act of Feb. 25, 1871, § 2, 16 Stat. 431. As the Supreme Court
explained in Will v. Michigan Department of State Police, 491
U.S. 58, 69 n.9 (1989), conflicting authorities from that time
render the definition “ambiguous” with regard to whether it
includes the States within its reach. Cf. Cooper Corp., 312 U.S.
at 605 (looking at various factors to discern intent “to bring state
or nation within the scope of the law”). Regardless whether the
plaintiffs are correct in positing broadly that the current
10
definition of “person” in the Dictionary Act does not apply to
judicially-adopted rules, therefore, we can agree more narrowly
that it does not apply to a Rule promulgated before the current
version of the Act was passed, see Will, 491 U.S. at 69-70
(applying original definition to interpret statute passed before
1947), and it does not control our analysis in this case.
Next, we agree with the plaintiffs that the district court
erred in presuming the Government is not a “person” covered by
Rule 45. As the Supreme Court made clear in Nardone v.
United States, 302 U.S. 379 (1937) (rejecting Government’s
invocation of presumption where it would have made statute
prohibiting wire-tapping presumptively inapplicable to
Government), which was issued the same day the Court adopted
the Federal Rules, at common law the Government was
presumed not to be a “person” bound by statute in only two
types of cases: (1) where the statute, “if not so limited, would
deprive the sovereign of a recognized or established prerogative
title or interest,” such as a statute of limitations; and (2) where
deeming the Government a “person” would “work obvious
absurdity as, for example, the application of a speed law to a
policeman pursuing a criminal or the driver of a fire engine
responding to an alarm.” Id. at 383-84; see also In re Vioxx
Prods. Liab. Litig., --- F.R.D. ----, 2006 WL 784878, at *6 (E.D.
La. Mar. 15, 2006) (analyzing Supreme Court cases to explain
why presumption was limited to the two situations there
identified).
Rule 45 falls into neither class. First, the Government has
no “established prerogative” not to respond when subpoenaed.
On the contrary, as Justice Frankfurter noted in his concurrence
in Touhy, the Government had agreed as early as 1900, see
Boske v. Comingore, 177 U.S. 459, 462, that records requested
for a suit in which it was not a party “could be secured by a
subpoena duces tecum to the head of the Treasury Department.”
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340 U.S. at 471-72 (quoting Brief for Appellee [in Boske v.
Comingore] at 49). Second, application of Rule 45 to the
Government would work no “obvious absurdity.” The Rules
were designed to provide a “liberal opportunity for discovery,”
Conley v. Gibson, 355 U.S. 41, 47 (1957), and, as discussed
below, there is no indication the Government should be exempt
from the obligation of a nonparty to provide its evidence
pursuant to subpoena.
Because Rule 45 neither deprives the United States of an
“established prerogative” nor works an “obvious absurdity,”
therefore, the framers of the Rules would not have understood
their use of the term “person” presumptively to exclude the
Government. Our decision in Al Fayed, the centerpiece of the
Government’s argument, is in no wise contrary. The statute
being interpreted in that case, 28 U.S.C. § 1782 (1948), unlike
Rule 45, post-dated the amendment to the Dictionary Act, 1
U.S.C. § 1 (1947), that defines the word “person,” when used in
“any Act of Congress, unless the context indicates otherwise,”
to include “corporations, companies, associations, firms,
partnerships, societies, and joint stock companies, as well as
individuals,” but makes no mention of governments. See also
United States v. United Mine Workers of Am., 330 U.S. 258, 275
(1947) (“Congress made express provision [in the Dictionary
Act], for the term [‘person’] to extend to partnerships and
corporations .... The absence of any comparable provision
extending the term to sovereign governments implies that
Congress did not desire the term to extend to them”). In Al
Fayed, therefore, the Dictionary Act as amended in 1947
required that § 1782 be interpreted so as to exclude the
Government. As we have seen, however, Rule 45 is outside the
realm governed by the 1947 amendment to the Dictionary Act,
and, as noted above, the earlier version of that Act is ambiguous.
Therefore, we follow the guidance of the Supreme Court as to
when the Government is presumed not to be a “person,” and this
12
is not such a case.
D. The “Person[s]” Subject to Rule 45
The question remains whether, the presumption aside, the
Government is a “person” bound by Rule 45. To answer this
question we turn to the customary tools of statutory
interpretation. Because the text of the Rule itself is unhelpful on
this score, we turn to the context in which the Rule resides, that
is, to the Rules as a whole.
The plaintiffs argue that because “person” is used
throughout the Rules to include the Government, that word
demands the same interpretation in Rule 45. In particular, they
point to Rule 4(i)(3)(A), which addresses a party’s failure to
serve “all persons required to be served in an action governed by
Rule 4(i)(2)(A),” which in turn governs “[s]ervice on an agency
or corporation of the United States.” The plaintiffs also direct
us to Rule 30, which allows a party to take “the testimony of any
person, including a party, by deposition” and compel “[t]he
attendance of witnesses ... by subpoena as provided in Rule 45.”
Fed. R. Civ. P. 30(a)(1). Rule 30(b)(6) is express that a party
may “in a subpoena name as the deponent a ... governmental
agency.” One district court, reading these two sections together,
recently concluded that “a party may take the deposition of a
governmental agency, whether a party or not, and compel the
attendance of [the government deponent] through the use of a
Rule 45 subpoena.” In re Vioxx, 2006 WL 784878, at *9. In the
plaintiffs’ view, Rule 30 thus makes clear the Government is a
“person” for purposes of Rule 45 as well.
The Government responds to these specific points first with
the general observation: “[I]t is ... common experience that
identical words may be used in the same statute, or even in the
same section of a statute, with quite different meanings.” Grand
13
Lodge of Int’l Ass’n of Machinists v. King, 335 F.2d 340, 344
(9th Cir. 1964). Somewhat more helpfully, the Government
suggests that, because “the rules as a whole address a wide range
of subjects, ... it would be unsurprising if the term ‘person’ were
employed to different ends in different rules.” For example, the
Government suggests we might construe Rule 30 to permit a
litigant to subpoena the Government when the Government is
itself a party to the litigation. Moreover, based upon the
Supreme Court’s instruction in Russello v. United States, 464
U.S. 16, 23 (1983) (where “Congress includes particular
language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that Congress
acts intentionally and purposely in the disparate inclusion or
exclusion”), the Government argues the ambiguity of Rule 45,
when contrasted with the specific references to the United States
in Rules 4 and 30, is fatal to the plaintiffs’ claim.
We do not disagree in principle with the Government’s
point that the meaning of the word “person” could vary from
one Rule to another. Still, we note, it is the “normal rule of
statutory construction that identical words used in different parts
of the same act are intended to have the same meaning.”
Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 570 (1995) (internal
quotation marks omitted).
With respect to the Federal Rules in particular, the Supreme
Court has instructed that, except where doing so would “produce
absurd results,” “words and phrases ... must be given a
consistent usage and be read in pari materia[;] ... to do
otherwise would attribute a schizophrenic intent to the drafters.”
Marek v. Chesny, 473 U.S. 1, 21 (1985) (first emphasis added,
internal quotation marks omitted). As we have seen, there is
nothing absurd about applying Rule 45 to the Government. That
reading, moreover, aligns the interpretation of Rule 45 with that
of every other rule in which the word “person” means more than
14
simply a natural person. (For an example of the latter sort, see
Rule 4(c)(2), providing that service may be effected by any
“person” meeting certain qualifications.) In addition to Rules
4(i)(3)(A) and 30(b)(6), see Carlson v. Tulalip Tribes of Wash.,
510 F.2d 1337, 1339 (9th Cir. 1975) (holding “United States is
a person described in Rule 19(a)(1), (2),” which governs
joinder); see also United States v. Yellow Cab Co., 340 U.S. 543,
556-57 (1951) (United States may be impleaded as third-party
defendant per Rule 14, which provides for “summons and
complaint to be served upon a person”); Roeder v. Islamic
Republic of Iran, 333 F.3d 228, 232-33 (D.C. Cir. 2003) (United
States may intervene as of right under Rule 24, which requires
“a person desiring to intervene [to] serve a motion,” see Fed. R.
Civ. P. 24(c)).
With the teaching of Marek v. Chesny in mind, we are most
loathe to depart from this “consistent usage” without a
compelling reason to believe the term “person” in Rule 45
should be understood differently than it is elsewhere throughout
the Rules or differently from one case to another depending
upon whether the United States is a party, see In re Vioxx, 2006
WL 784878, at *9. The Government attempts to offer such a
reason but its efforts fail to persuade.
First, that Rule 45 does not refer to the United States as do
Rules 4 and 30 is, contrary to the Government’s argument, of no
moment; as noted above, the United States has been held to be
a “person” within the meaning of Rule 19 although it is not
expressly named there. See Carlson, 510 F.2d at 1339. The
absence of such a reference in Rule 45, far from being
significant, is unexceptional.
Second, the Government points both to the Supreme Court’s
approval of regulations governing how an agency will respond
to document requests, see Touhy, 340 U.S. 462, and to the
15
Freedom of Information Act, 5 U.S.C. § 552(a) (providing
procedure for obtaining information from government agencies),
to show that the Government has in place “carefully calibrated
mechanisms for responding to requests for information.” From
this premise the Government argues that “silence in Rule 45
should not be construed to establish a mechanism bypassing
existing methods of requesting ... information from the
government as a nonparty.” Noting also that Touhy was decided
in 1951, 340 U.S. 462, and the FOIA was enacted in 1966, the
Government suggests that “when Rule 45 was initially adopted
in 1937, there was not even a background presumption that
government information should be disclosed when requested,”
from which it infers Rule 45 must not apply to the Government
as a nonparty.
This argument is both illogical and anachronistic. First, as
noted above, the Rules were designed in 1937 to provide a
“liberal opportunity for discovery.” Conley, 355 U.S. at 47.
Therefore, to say there was then no “background presumption
that government information should be disclosed when
requested” assumes the conclusion to the very question here at
issue. Second, the adoption, 14 and 29 years later, respectively,
of methods by which (1) an agency would respond to a subpoena
and (2) any person could obtain information from the
Government without having to give a reason for wanting it, tells
us nothing about whether parties in civil litigation had been
authorized in 1937 to subpoena the Government for information
demonstrably relevant to their cases. We do know, however,
that the Supreme Court in Touhy assumed a federal agency
could be subject to a third-party subpoena duces tecum, for
otherwise the agency would not need to promulgate regulations
for centralizing its response to such a subpoena. See 340 U.S.
at 464, 469.
Moreover, before Touhy was decided, and long before the
16
FOIA was enacted, such commentaries on the Rules as
considered the present issue suggested the Government is indeed
a “person” subject to Rule 45 regardless whether it is a party to
the litigation in which the subpoena is issued. Indeed, one
member of the Advisory Committee on Rules of Civil
Procedure, which drafted the Rules, concluded in his discussion
of “persons subject to deposition examination” -- which is to
say, according to the original version of Rule 26(a), “any person,
whether a party or not” -- that “there is probably the same right
to obtain discovery against the government and its officers and
agents as against private parties.” Edson R. Sunderland,
Discovery Before Trial Under the New Federal Rules, 15 Tenn.
L. Rev. 737, 742-43 (1939). Raoul Berger and Abe Krash later
reached the same conclusion: “[T]he terms of the third party
subpoena-deposition provisions are unqualified, and no
considerations of policy can afford an exemption to the
Government.” Government Immunity From Discovery, 59 Yale
L.J. 1451, 1465-66 (1950). The Government cites no
commentary to the contrary.
In sum, the “purpose, the subject matter, the context, [and]
the ... history [of Rule 45] ... indicate an intent, by the use of the
term [‘person’], to bring [the Government] within the scope” of
the Rule. Cooper Corp., 312 U.S. at 605.
III. Conclusion
The term “person” as used in the Federal Rules of Civil
Procedure consistently means not only natural persons and
business associations but also governments, including the United
States. Because the Government has given us no cause to ignore
the Supreme Court’s command that we interpret each Rule in
pari materia with the others, we hold the Government is a
“person” subject to subpoena under Rule 45 regardless whether
it is a party to the underlying litigation. Therefore, the
17
plaintiffs’ motion to compel should not have been denied on the
ground that Rule 45 is inapplicable to the Department of State.
The case accordingly is remanded for further proceedings
consistent with this opinion.
So ordered.