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 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. § 1782 (emphasis added). Section 1782 does not define
the term "person," and the parties dispute whether "person"
includes the sovereign and, by extension, a federal agency such
as the CIA. The CIA argues that because the word "person" is not
ordinarily construed to include the sovereign, section 1782 does
not apply to the CIA, and the court does not have subject-matter
jurisdiction over the case. Mr. Al Fayed argues that "person"
should be read as including the sovereign.
In considering whether "person" includes the sovereign, the
court must examine the language of section 1782, as "[t]he
starting point in every case involving construction of a statute
is the language itself." International Primate, 500 U.S. at 79,
111 S.Ct. 1700 (citation and internal quotation marks omitted).
In examining the language of the statute to determine the meaning
of the term "person," the court examines the manner in which
"person" is used throughout section 1782. See, e.g, United
States v. Cooper Corp., 312 U.S. 600, 606-07, 61 S.Ct. 742, 85
L.Ed. 1071 (1941) ("It is fair to assume that the term `person',
in the absence of an indication to the contrary, was employed by
the Congress throughout the Act in the same, and not in
different, senses."). In three of the instances in which the term
"person" appears, the pronouns "him" and "his" are used to refer
to the term. The use of "him" and "his" mitigates against
interpreting the antecedent noun, "person," to mean "United
States" or "agency." Cf. International Primate, 500 U.S. at 80,
111 S.Ct. 1700 (determining that it "ma[de] little sense" to read
a statute as referencing an agency rather than an individual as
the antecedent to the pronoun "him").
Further support for the CIA's argument that section 1782's
reference to a "person" does not include the sovereign is found
in the general canon that statutes using the word "person" are
usually construed to exclude the sovereign. See, e.g.,
International Primate Protection League v. Administrators
of Tulane Educ. Fund, 500 U.S. 72, 82-83, 111 S.Ct. 1700, 114
L.Ed.2d 134 (1991); Will v. Michigan Dep't of State Police,
491 U.S. 58, 64, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989); Wilson v.
Omaha Indian Tribe, 442 U.S. 653, 667, 99 S.Ct. 2529, 61 L.Ed.2d
153 (1979); United States v. United Mine Workers of America,
330 U.S. 258, 275, 67 S.Ct. 677, 91 L.Ed. 884 (1947); Galvan v.
Federal Prison Industries, 199 F.3d 461, 467 (D.C.Cir. 1999).
This rule of construction has particular force where, as here, it
is "decidedly awkward" to construe "person" as including the
sovereign. See International Primate, 500 U.S. at 83, 111 S.Ct.
1700. Nevertheless, there is "`no hard and fast rule of
exclusion,' . . . and much depends on the context, the subject
matter, legislative history, and executive interpretation."
Wilson, 442 U.S. at 667, 99 S.Ct. 2529; see also International
Primate, 500 U.S. at 83, 111 S.Ct. 1700. In this case, Mr. Al
Fayed has pointed to, and the court is aware of, nothing in the
"context, . . . subject matter, legislative history, [or]
executive interpretation" of section 1782 that would mitigate
against the application of the general canon that "person" does
not include the sovereign.
Accordingly, the court holds that the term "person," as used in
section 1782, does not include a federal agency, such as the
For the foregoing reasons, the court concluded that it did not
have subject-matter jurisdiction under section 1782 to issue a
subpoena to the CIA. Consequently, the subpoena was quashed.