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IN RE FAYED

April 10, 2000

IN RE APPLICATION OF MOHAMED AL FAYED.


The opinion of the court was delivered by: Kennedy, District Judge.

MEMORANDUM OF DECISION

On February 5, 1999, pursuant to 28 U.S.C. § 1782 ("section 1782"), this court granted Mohamed Al Fayed's ("Mr. Al Fayed") ex parte application for the issuance of a subpoena to the Central Intelligence Agency ("CIA").*fn1 Subsequently, Mr. Al Fayed filed a motion to compel compliance with the subpoena, and the CIA filed a motion to quash the subpoena. On March 29, 2000, after considering the parties' motions and the record of the case, the court issued an order vacating in part its prior order; granting the CIA's motion to quash; denying Mr. Al Fayed's motion to compel; and quashing the subpoena. This memorandum sets forth the court's rationale for its March 29, 2000 order.

I. BACKGROUND

This case arises from the deaths of Diana, Princess of Wales ("Princess Diana"); Mr. Al Fayed's son, Dodi Fayed; and their driver, Henri Paul, in a highly-publicized automobile crash in August 1997. The crash is the subject of a French investigatory proceeding that is, according to Mr. Al Fayed's counsel, currently pending appeal. In January 1999, pursuant to section 1782, Mr. Al Fayed applied to this court for the issuance of a subpoena to the CIA for documents to be used in the French proceeding. The court granted Mr. Al Fayed's ex parte application, and a subpoena was issued to the CIA.

The CIA refused to comply with the subpoena, and Mr. Al Fayed filed a motion to compel compliance. In response, the CIA argued that the court should quash the subpoena because, inter alia, Mr. Al Fayed had made a virtually identical document request under the Freedom of Information Act, 5 U.S.C. § 552, et seq. ("FOIA"); the subpoena sought privileged, or otherwise protected, information; and the subpoena was overbroad and unduly burdensome. The CIA later raised the argument that the court should quash the subpoena because section 1782 neither explicitly references the sovereign nor waives the CIA's sovereign immunity, and thus, according to the CIA, the court lacks subject-matter jurisdiction over the case.

II. LEGAL ANALYSIS

The court may not proceed to the merits of the case without first satisfying itself that it has subject-matter jurisdiction and that sovereign immunity does not bar the action. See, e.g., Galvan v. Federal Prison Industries, Inc., 199 F.3d 461, 463 (D.C.Cir. 1999). These are distinct, but interrelated concepts. Sovereign immunity is jurisdictional: a court's jurisdiction to entertain a suit against the sovereign is circumscribed by the limits of the legislature's waiver of sovereign immunity. See, e.g., Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994); United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941); see also Galvan, 199 F.3d at 463. Sovereign immunity is, however, a threshold issue that can be addressed separately from subject-matter jurisdiction, and can be addressed "even where subject matter jurisdiction is uncertain." Galvan, 199 F.3d at 463.

Turning to the question of sovereign immunity, the court considers whether this case, which does not involve the government's ability to sue or be sued, but rather a federal court's ability to compel a non-party government agency to produce evidence, implicates sovereign immunity, and, if so, whether the government has waived its sovereign immunity. In Northrop Corporation v. McDonnell Douglas Corporation, 751 F.2d 395 (D.C.Cir. 1984), the Court of Appeals for this Circuit found the sovereign immunity defense inapplicable to a federal-court subpoena issued to a non-party government agency. In that case, in the course of litigation between two private parties, federal subpoenas were issued to the Department of Defense, the State Department, and the Departments of the Air Force and the Navy seeking documents relating to the sale of military equipment to several foreign countries. The district court quashed the subpoenas, and McDonnell Douglas appealed. On appeal, the Court of Appeals raised sua sponte the issue "whether sovereign immunity might bar an action to enforce a subpoena directed against the government when . . . the government [was] not itself a party to the litigation." Id. at 398 n. 2. The Court of Appeals noted that although no federal court had ever explicitly addressed that issue, "[s]ince at least 1965, . . . this court has assumed the nonapplicability of sovereign immunity to such a subpoena." Id. (citations omitted). "Rather," the Court of Appeals explained, "courts have proceeded on the basis that the government has a set of special privileges — e.g., executive privilege, state secrets, deliberative process — which it may invoke to prevent disclosures that would be inimical to national security or its internal deliberations." Id. Declining to engage in a comprehensive survey of the topic, the Court of Appeals concluded as follows: "we find no cause in the present case to upset a steady course of precedent by attempting to graft onto discovery law a broad doctrine of sovereign immunity." Id.

The Court of Appeals for this Circuit modified its approach to the enforceability of federal subpoenas to non-party government agencies in Houston Business Journal Inc. v. Office of Comptroller of Currency, 86 F.3d 1208, 1212 (D.C.Cir. 1996). In Houston Business Journal, the Court of Appeals stated that "[a] federal-court litigant . . . can seek to obtain the production of documents from a federal agency by means of a federal subpoena. In federal court, the federal government has waived its sovereign immunity, see 5 U.S.C. § 702. . . ." Id. at 1212. Implicit in the Court of Appeals' statement that "the federal government has waived its sovereign immunity" from a federal-court subpoena is the premise that a federal-court subpoena implicates sovereign immunity. In this sense, the Court of Appeals' approach in Houston Business Journal differs from its approach in Northrop.*fn2 Under either approach, however, sovereign immunity does not bar the enforcement of a federal subpoena to a non-party federal agency. Thus, sovereign immunity does not require that this court's subpoena to the CIA be quashed.

This does not end the court's jurisdictional inquiry: although sovereign immunity does not bar the enforcement of the subpoena, the issue remains whether this court had the authority to issue the subpoena. Cf. Houston Bus. Journal, 86 F.3d at 1212 (holding that the federal government does not have sovereign immunity from a federal-court subpoena, but that the federal court lacked subject-matter jurisdiction in that case to issue the subpoena). As the United States Supreme Court explained in United States Catholic Conference v. Abortion Rights Mobilization, Inc., "the subpoena power of a court cannot be more extensive than its jurisdiction. It follows that if a district court does not have subject-matter jurisdiction over the underlying action, and the process was not issued in aid of determining that jurisdiction, then the process is void. . . ." 487 U.S. 72, 76, 108 S.Ct. 2268, 101 L.Ed.2d 69 (1988).

The court thus turns to question whether it had jurisdiction to issue the subpoena to the CIA, and concludes that it did not. It is well-established that "[f]ederal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, . . . which is not to be expanded by judicial decree. . . . It is to be presumed that a cause lies outside this limited jurisdiction, . . . and the burden of establishing the contrary rests upon the party asserting jurisdiction. . . ." Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (internal citations omitted). In this case, the party bringing this action, Mr. Al Fayed, relied solely upon section 1782.

Section 1782 provides in pertinent part:

(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. . . . The order may be made pursuant 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 testimony or statement be given, or the document or other thing be produced, before a person appointed by the court. By virtue of his appointment, the person appointed has power to administer any necessary oath and take the testimony or statement. . . . .
A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of ...

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