Yousuf v. Samantar, 05-5197.

• Citation: 451 F.3d 248
• Decision Date: 16 June 2006
• Docket Number: No. 05-5197.,05-5197.
• Parties: Bashe Abdi YOUSUF, et al., Appellants v. Mohamed Ali SAMANTAR and Department of State, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

451 F.3d 248

Bashe Abdi YOUSUF, et al., Appellants v. Mohamed Ali SAMANTAR and Department of State, Appellees.

No. 05-5197.

United States Court of Appeals, District of Columbia Circuit.

Argued February 27, 2006.

Decided June 16, 2006.

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.

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 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, 71 S.Ct. 416, 95 L.Ed. 417 (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.

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, 118 S.Ct. 1003, 140 L.Ed.2d 210 (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 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. 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...