UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


AL FAYED, MOHAMED

v.

CIA


00-5150a

D.C. Cir. 2000


*	*	*


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


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


* * *


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


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 


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 


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 




__________

n 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 




__________

n 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


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


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


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.




__________

n 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.