Opinion
Misc. Action No. 05-110 (RBW).
May 3, 2005
MEMORANDUM OPINION
This matter stems from a case currently pending in the United States District Court for the Eastern District of Virginia ("Eastern District"). The plaintiffs seek to compel the United States Department of State ("State Department") to comply with a subpoena for documents issued pursuant to Federal Rule of Civil Procedure 45. Plaintiffs' Motion to Compel Compliance With A Rule 45 Subpoena ("Pls.' Mot.) at 1. Currently before the Court are (1) the plaintiffs' Memorandum in Support of Plaintiffs' Motion to Compel Compliance With A Rule 45 Subpoena ("Pls.' Mem."); (2) the defendant's Memorandum in Opposition to Motion to Compel Compliance With A Rule 45 Subpoena ("State Dept.'s Mem."); and (3) the plaintiffs' Reply Memorandum in Support of Motion to Compel Compliance With A Rule 45 Subpoena ("Pls.' Reply"). For the following reasons, this Court denies the plaintiffs' motion to compel.
The case pending in the Eastern District of Virginia is captioned Bashe Abdi Yousuf v. Mohamed Ali Samantar, Civil Action 1:04 CV 1360 (E.D. Va. Nov. 10, 2004).
The State Department is not a party to the action pending in the Eastern District of Virginia.
I. Background
The plaintiffs filed a complaint in the United States District Court for the Eastern District of Virginia asserting claims under the Torture Victim Protection and Alien Tort Claims Acts, 28 U.S.C. § 1350 (respectively "TVPA" and "ATCA"), Pls.' Mem. at 1, and alleging that the defendant, Mohamed Ali Samantar, is responsible for acts of torture, murders, war crimes and other crimes against humanity that occurred while Samantar occupied several "high-ranking" positions "in the notorious regime headed by Somalia's President Mohamed Siad Barre" during the 1980s. Id. at 2. According to the plainitffs, Samantar was or should have been aware of the alleged atrocities. Id.Shortly after discovery in the underlying case commenced, plaintiffs' counsel sent the State Department a request for documents pursuant to its regulation promulgated in accordance with United States ex. rel. Touhy v. Ragen, 340 U.S. 462 (1951). In addition, the plaintiffs also served the State Department with a subpoena for documents pursuant to Rule 45. See Pls.' Mem., Ex. B. Both seek to obtain an array of documents separated into three categories, namely, (1) documents relating to human rights abuses committed by the Somali Armed Forces or security services in the 1980s, (2) documents associated with the formal structure and organization of the Somali government, political system and military, as well as (3) documents related to United States interaction with representatives of the Siad Barre regime. Id. Thereafter, on March 10, 2005, the plaintiffs filed the motion to compel that is subject of this opinion, alleging that the State Department has "declined to assert any timely objections to the subpoena, but has yet to produce a single document in response, or to commit to a timetable for producing responsive documents." Pls.' Mot. at 1.
Named after the Supreme Court's decision in United States ex. rel. Touhy v. Ragen, the Touhy regulations allow federal agencies to establish centralized procedures for responding to subpoenas and requests for testimony. See 5 U.S.C. § 301 (2004).
II. Standard of Review
In general, parties "may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action . . . [or which] appears reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1). "Discovery may be obtained from non-parties pursuant to Rule 45, but that non-party can move to quash a subpoena by demonstrating that the subpoena 'requires disclosure of privileged or other protected matter and no exception or waiver applies, or subjects [the non-party] to undue burden.'"In re Providian Fin. Corp. Sec. Litig., 222 F.R.D. 22, 25 (D.D.C. 2004) (quoting Fed.R.Civ.P. 45(c)(3)). In addition, Rule 45 provides that if an objection to the production of material sought pursuant to the subpoena is made, "the party serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compel the production." Fed.R.Civ.P. 45(c)(2)(B). However, "such 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." Id.
When the government is a party to litigation, it is without a doubt subject to the discovery rules of the Federal Rules of Civil Procedure. See United States v. Procter Gamble Co., 356 U.S. 677, 681 (1958) ("The Government as a litigant is, of course, subject to the rules of discovery."). However, when discovery is sought from the government as a third-party, for example by way of a subpoena pursuant to Rule 45, the federal courts have not been consistent in their application of the rules of discovery. See Linder v. Calero-Portocarrero, 251 F.3d 178, 181-82 (D.C. Cir. 2001) (contrasting the broad approach the Ninth Circuit has taken with respect to applying the federal discovery rules to the government with the more restrictive approach of the Second and Fourth Circuits). In this Circuit, "past decisions have assumed that 'person' in Rule 45 included the federal government, [but the District of Columbia Circuit has] never expressly so held," and it has expressed the possible need to review this assumption in light of recent decisions. Id. at 181 (emphasis added).
III. The Parties' Arguments
A. Plaintiffs' Arguments
The plaintiffs posit that the State Department is not immune from a subpoena properly issued pursuant to Rule 45. Pls.' Mem. at 4. The plaintiffs' claim that the State Department has expressed its position to the contrary believing that it is not considered a "person" as this term is used in Rule 45. According to the plaintiffs, the State Department "seems to have reached this new position by an unsupported extension of Al-Fayed v. CIA, 229 F.3d 272, 275-77 (D.C. Cir. 2000)." Id. However, the plaintiffs opine that the District of Columbia Circuit's holding in Al-Fayed is specifically limited to the interpretation of the word "person" as used in 28 U.S.C. § 1782 (2004). Moreover, the plaintiffs advance two reasons for their argument that Al-Fayed does not apply to subpoenas issued pursuant to Rule 45. First, they claim that "by its terms the Dictionary Act, [ 1 U.S.C. § 1,] upon which the Al-Fayed court based its ruling, only applies to acts of Congress, not the Federal Rules of Civil Procedure." Pls.' Mem. at 5. Furthermore, the plaintiffs contend that "even if the Dictionary Act were to apply to the Rule, the definition in that Act must give way to a more reasonable meaning if 'the context indicates otherwise.'" Id. In addition, the plaintiffs posit that Rule 30(b)(6) mandates the conclusion that the State Department cannot avoid a Rule 45 subpoena. Id. Finally, the plaintiffs contend that the implications arising from the decision in Touhy do not "supplant the federal subpoena power," and therefore, "the State Department is not immune from the federal court third-party discovery process, [and] it must comply with subpoenas that satisfy Rule 45." Id. at 7.
"Section 1782 provides a mechanism for international or foreign tribunals or persons interested in proceedings before such tribunals to enlist a federal court to acquire testimony, documents or other items." Al-Fayed, 229 F.3d at 273.
Additionally, the plaintiffs argue that because "[t]he State Department was properly served with the subpoena on December 22, 2004, but did not serve its objections until January 14, 2005," the State Department has waived its right to object to the subpoena for failure to serve a written objection within 14 days of service pursuant to Fed.R.Civ.P. 45(c)(2)(B). Pls.' Mem. at 8.
B. State Department's Arguments
The State Department maintains that "a subpoena issued pursuant to Rule 45 may not be used to seek discovery from an agency of the Federal Government because the term 'person' as used in that Rule is ordinarily, and presumptively, construed not to include the sovereign." State Dept.'s Mem. at 2 (citing Al Fayed, 229 F.3d at 276-77; Linder, 251 F.3d at 181-82). To further support its argument, the State Department cites to an unreported decision issued by a member of this Court, Lerner v. District of Columbia, Civil Action No. 00-1590, Memorandum Opinion (D.D.C. January 5, 2005) (Kessler, J.), which held that the decision inAl Fayed "compels the conclusion that the term 'person' in Rule 45 does not include the federal government." Id. at 9-10.
In addition, the State Department contends that the plaintiffs' argument that the Dictionary Act is not applicable to the Federal Rules of Civil Procedure is meritless because Al-Fayed did not base its decision "solely on the Dictionary Act, but rather 'more generally' on the 'longstanding interpretive presumption that 'person' does not include the sovereign." Id. at 3. Moreover, the State Department alleges that part of the holding inLinder, specifically that "federal agencies cannot . . . claim sovereign immunity to avoid compliance with third-party subpoenas," 251 F.3d at 180, "has no bearing on the argument made here," because "[t]he [State] Department does not argue that sovereign immunity renders it immune from service of a federal court subpoena, but rather that ordinary principles of statutory construction should be applied to reach the conclusion that Rule 45 does not apply to the federal government." State Dept.'s Mem. at 3-4.
Additionally, the State Department argues that the plaintiffs failed to adhere to the agency's procedures as prescribed by 22 C.F.R. § 172 (the Touhy regulation), because the plaintiffs judicially challenged the actions of the State Department in response to their Touhy request before the agency issued a final decision pursuant to its regulations. State Dept.'s Mem. at 6 (citing 5 U.S.C. § 704 to note that judicial review only applies to final agency decisions).
IV. Analysis
A. Applicability of Rule 45 to the State Department
Rule 45 provides, in relevant part, that "[e]very subpoena shall . . . command each person to whom it is directed to attend and give testimony or to produce and permit inspection and copying" of documents. Fed.R.Civ.P. 45(a)(1)(C). It is clear in this Circuit "that federal agencies cannot . . . claim sovereign immunity to avoid compliance with third party subpoenas." Linder, 251 F.3d at 180. The State Department's argues, however, that the term "person" in Rule 45 does not apply to the federal government and thus it need not comply with a Rule 45 subpoena. Al Fayed, 229 F.3d at 274. To support this argument, the government relies on Al Fayed, 229 F.3d at 274 and Linder, 251 F.3d at 180-81.
In Al Fayed, the appellant filed a motion to compel the Central Intelligence Agency to comply with a subpoena for documents pursuant to 28 U.S.C. § 1782. The district court quashed the subpoena and an appeal ensued. Al Fayed, 229 F.3d at 273. On appeal, the District of Columbia Circuit held that the United States was not covered by the term "person" as used in 28 U.S.C. § 1782. Id. at 275. In making this determination, the Circuit Court recognized and applied the Supreme Court's "long-standing interpretive presumption that 'person' does not include the sovereign." Id. (quoting Vermont Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 1858, 1867 (2000)). The court also noted that "[t]he presumption is not a 'hard and fast rule of exclusion,'" and it "may be disregarded only upon some statutory intent to the contrary." Id. (citingVermont Agency of Natural Res., 529 U.S. at 1867). Finding that the presumption had not been rebutted, the Circuit Court affirmed the district court's ruling quashing the appellant's subpoena.Id. at 276-77. Based upon the holding in Al Fayed, the Circuit Court later opined in Linder that "[a]lthough [its] past decisions have assumed that 'person' in Rule 45 included the federal government, [it has] never expressly so held and [its] assumption may need to be reexamined in light of Al Fayed."Linder, 251 F.3d at 181 (emphasis added). However, the court declined to decide the issue of "whether Rule 45's use of the word 'person' should exempt the federal government" because the government did not raise that particular question before the district court. Id.
In deciding an issue very similar to the one presented in this case, Judge Kessler, in Lerner, concluded that nothing offered by the plaintiff in that case overrode the longstanding presumption that the term "person" does not include the sovereign and that the Circuit Court's holding in Al Fayed compelled the conclusion that Rule 45 did not apply to the federal government.Lerner, Civil Action No. 00-1590, Memorandum Opinion at 11-12 ("[T]he Court concludes it lacks jurisdiction to subpoena the federal government because the 'requisite affirmative indications' that the term 'person' in Rule 45 includes the federal government are absent."). Indeed, Judge Kessler held that "our Circuit's reasoning in [Al Fayed] is dispositive and . . . compels the conclusion that the term 'person' in Rule 45 does not include the federal government." Id. at 9-10. This Court agrees with Judge Kessler.
Although the question in this case is the scope of the term "person" as used in the Federal Rules of Civil Procedure, as opposed to a statute, the plaintiffs have not provided any justification for not applying the aforementioned presumption in this case, and this Court can fathom no reason to deviate from the Circuit's reasoning in Al Fayed. Thus, this Court is compelled to conclude that a federal government agency is not a "person" within the meaning of Rule 45 and thus cannot enforce a Rule 45 subpoena served on such an agency. Moreover, the plaintiffs' attempts to rebut this presumption are insufficient. The plaintiffs' argument that "[t]he government's narrow and conservative construction of Rule 45 . . . cannot be squared with Rule 1 of the Federal Rules of Civil Procedure, which expressly states that the rules 'shall be construed and administered to secure the just, speedy and inexpensive determination of every action,'" Pls.' Reply at 5 (citing Fed.R.Civ.P. 1), is not convincing. It must be rejected because the language of Rule 45 is clear.
Moreover, the plaintiffs reliance on Federal Rule of Civil Procedure 30(b)(6) as support for their position that a Rule 45 subpoena may properly be directed to a governmental agency is meritless. Id. at 2. The plaintiffs seek to use the authorization of Rule 30(b)(6) as the basis for the Court concluding that the term person as used in Rule 45 encompasses governmental agencies. Id. However, there is a clear distinction between Rule 30 and Rule 45 that the plaintiffs have ignored. Namely, Rule 30 and Rule 45 serve separate purposes. Rule 45 deals with subpoenas exclusively, while Rule 30 deals with subpoenas in the limited context of their application to oral depositions. Compare Fed.R.Civ.P. 30(b)(6) with Fed.R.Civ.P. 45. In addition, if Rule 45 was intended to extend to the federal government, then the language of the Rule could have mirrored that of Rule 30, which clearly applies to the federal government. See, e.g., Fed.R.Civ.P. 30(b)(6) (providing the opportunity to subpoena a "governmental agency");cf. Russello v. United States, 464 U.S. 16, 23 (1983) ("[W]here 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.").
Rule 30 allows any party to "take the testimony of any person, including a party, by deposition upon oral examination." Fed.R.Civ.P. 30(a)(1). The Rule specifically provides that "[a] party may in the party's notice and in a subpoena name as the deponent a . . . governmental agency. . . ." Fed.R.Civ.P. 30(b)(6).
In light of the ruling in Al Fayed, this Court concludes that the plaintiffs cannot employ Rule 45 to subpoena documents from the State Department. The Court reaches this conclusion because the plaintiffs have offered no authority which establishes an intent to override the presumption that "person" does not refer to the sovereign with respect to Rule 45.
B. Is Adherence to the Touhy Regulations Required?
"When an agency is not a party to an action, its choice of whether or not to comply with a third-party subpoena is essentially a policy decision about the best use of the agency's resources." COMSAT Corp. v. Nat'l Sci. Found., 190 F.3d 269, 278 (4th Cir. 1999). Named after the Supreme Court's decision inTouhy, 340 U.S. at 462, the Touhy regulations authorize federal agencies to establish centralized procedures for responding to subpoenas and requests for testimony. See 5 U.S.C. § 301. "[I]n the context of an agency's response to a third-party subpoena, 'the proper method for judicial review of the agency's final decision pursuant to its regulations is through the Administrative Procedure Act [("APA")].'" COMSAT Corp., 190 F.3d at 278 (citing United States v. Williams, 170 F.3d 431, 434 (4th Cir. 1999)); see also Houston Bus. Journal, Inc. v. Office of the Comptroller, 86 F.3d 1208, 1212 n. 4 (D.C. Cir. 1996) (indicating that where a federal agency has enacted regulations pursuant to Touhy, "the litigant must proceed under the APA, and the federal court will review the agency's decision not to permit its employee to testify under an 'arbitrary and capricious' standard").
In Touhy, the question was whether "a subordinate official in the Department of Justice of the United States" could "refuse to obey by a subpoena duces tecum ordering production of papers of the Department in his possession . . . based upon a regulation issued by the Attorney General." Touhy, 340 U.S. at 463. The Supreme Court held that "[w]hen one considers the variety of information contained in the files of any government department and the possibilities of harm from unrestricted disclosure in court, the usefulness, indeed the necessity, of centralizing determination as to whether subpoenas duces tecum will be willingly obeyed or challenged is obvious." Touhy, 340 U.S. at 468. Thus, the Court upheld the regulations issued by the Attorney General.
Here, the State Department argues that the plaintiffs have failed to adhere to its regulations and process of dealing with requests for documents because they judicially challenged the actions of the State Department in response to their Touhy request before the agency issued a final decision pursuant to its regulations. State Dept.'s Mem. at 6 (citing 5 U.S.C. § 704). In response, the plaintiffs argue that "[c]ase law applying theTouhy decision long has recognized that government agencies remain subject to the federal court subpoena process." Pls.' Mem. at 7 (citing Houston Bus. Journal, 86 F.3d at 1212). The plaintiffs further opine that language in Houston Business Journal supports their position that if an agency's Touhy regulation conflicts with Rule 45, then that regulation is invalid. Pls.' Reply at 7. Thus, the plaintiffs posit that since Rule 45 controls their request for the production of the documents, the Touhy regulations must be disregarded. Id. at 8.
Contrary to the plaintiffs' contention, this Court has already concluded that Rule 45 is not the proper mechanism to request documents from the federal government. Thus, because the legal premise upon which the plaintiffs rely has already been rejected by this Court, the Court must also reject this argument as well. Indeed, the State Department has a process in place to address a request of this type, see 22 C.F.R. § 172.1, and the plaintiffs must permit the Department to complete this process due to the possible harm that could result from unrestricted disclosure of documents and the voluminous number of the documents identified in response to the broad request made by the plaintiffs.
The Lerner decision supports this Court's holding. There, the Court stated that "[w]hether Plaintiff seeks testimony or production of documents from the [agency], [they] must comply with the [agency's] Touhy regulations." Lerner, Civil Action No. 00-1590, Memorandum Opinion at 7 (emphasis added). See also Edwards v. DOJ, 43 F.3d 312, 317 (7th Cir. 1994) (holding that "Touhy is part of an unbroken chain of authority that supports the contention that a federal employee cannot be compelled to obey a subpoena, even a federal subpoena, that acts against valid agency regulations.")
The current posture of this case prevents this Court from making any determination as to whether the State Department has properly complied with its Touhy regulations. Such a determination can only be made after a final agency decision has been issued, and an action is filed under the Administrative Procedure Act challenging the agency's decision. See COMSAT Corp., 190 F.3d at 278.
V. Conclusion
Based on the foregoing analysis, the Court concludes that the plaintiffs cannot employ Rule 45 to compel the federal government to produce documents when it is not involved in the litigation as a party. The plaintiffs have offered no authority supporting their contention that the term "person" in Rule 45 extends to the federal government, and this Court will not read into Rule 45 what its drafters did not explicitly include. Moreover, the State Department's Touhy regulations provide an adequate mechanism under which the plaintiffs may seek to acquire agency documents. Accordingly, the plaintiffs' motion must be denied.An Order consistent with this Court's ruling accompanies this Memorandum Opinion.