251 F.3d 178 (D.C. Cir. 2001)
David Linder, et al., Appellantsv.Adolfo Calero-Portocarrero, et al., Appellees
No. 00-5122, Nos. 00-5123 & 00-5124
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 6, 2001Decided June 5, 2001

Appeals from the United States District Court  for the District of Columbia (94ms00146) (94ms00147) (94ms00150)
Jennifer M. Green argued the cause for appellants.  With  her on the brief were Beth Stephens and Michael Ratner.
W. Mark Nebeker, Assistant U.S. Attorney, argued the  cause for appellees.  With him on the brief were Wilma A.  Lewis, U.S. Attorney at the time the brief was filed, R. Craig  Lawrence and Mark E. Nagle, Assistant U.S. Attorneys.
Before:  Ginsburg, Randolph, and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Randolph.
Randolph, Circuit Judge:


1
This case began as an action to  enforce subpoenas duces tecum served on various federal  agencies, including the Departments of Defense and State  and the Central Intelligence Agency.  The agencies are not  parties to the Florida lawsuit generating these discovery  requests.  Aspects of the case were before this court in  Linder v. Department of Defense, 133 F.3d 17 (D.C. Cir.  1998), and we assume familiarity with that opinion.


2
In this round, the Linders, plaintiffs in the Florida case,  object to the district court's ruling compelling the Defense  Department, the State Department, and the CIA to comply  with the expanded subpoenas on condition that the Linders  pay "half the reasonable copying and labor costs."  Linder v.  Calero-Portocarrero, 180 F.R.D. 168, 177 (D.D.C. 1998);  Linder v. Calero-Portocarrero, 183 F.R.D. 314, 322-23 (D.D.C.  1998);  Linder v. Calero-Portocarrero, 31 F. Supp. 2d 134, 136  n.4 (D.D.C. 1998).  The court based its ruling on the following  language in Fed. R. Civ. P. 45(c)(2)(B):  "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."  We asked at oral argument whether sovereign immunity shielded federal agencies  from third-party subpoenas under Rule 45 on the basis that  the United States is not a "person" as Rule 45 uses the term. We called for supplemental briefing on this question in light  of Al Fayed v. CIA, 229 F.3d 272 (D.C. Cir. 2000), and  because sovereign immunity would bar our exercise of jurisdiction.  Burkhardt v. Washington Metro. Area Transit  Auth., 112 F.3d 1207, 1216 (D.C. Cir. 1997).

I.

3
After considering the supplemental briefs we have concluded that federal agencies cannot, in view of our precedents,  claim sovereign immunity to avoid compliance with thirdparty subpoenas.  Whether, as a matter of interpretation, the  word "person" in Rule 45 includes the federal government is a  non-jurisdictional question the government failed to raise in  the district court and we therefore express no opinion on it.


4
In authorizing parties to serve subpoenas on "persons" who  are not parties to litigation, Rule 45 states:  "Every 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 or tangible things.  Fed. R.  Civ. P. 45(a)(1)(C).  The courts of appeals are not entirely in  agreement on their approach to Rule 45 when the object of  the third-party subpoena is the federal government.


5
In Exxon Shipping Co. v. U.S. Department of Interior, 34  F.3d 774, 778 (9th Cir. 1994), the Ninth Circuit ruled that  sovereign immunity is no bar to compelling the testimony of  federal officers under the federal discovery rules.  Congress  waived the sovereign immunity of the United States with  regard to all actions that seek "relief other than money  damages" in 5 U.S.C.  702.  34 F.3d at 779 n.9.  Third-party  subpoenas do not seek damages and so the court held that  federal agencies must comply with Rule 45 subpoenas unless  the district court, exercising its discretion under the protective provisions of Rules 45 and 26, relieves them of that  obligation.  Id. at 778-79.


6
In Comsat Corp. v. National Science Foundation, 190 F.3d  269 (4th Cir. 1999), the National Science Foundation refused  to comply with a third-party subpoena issued under Rule 45. The Fourth Circuit, like the Ninth, concluded that 5 U.S.C.   702 waived the government's sovereign immunity, but held  that because the waiver appeared in the Administrative Procedure Act (APA), the standard of review set forth in that act,  and codified at 5 U.S.C.  706, controlled.  190 F.3d at 274. The court therefore reviewed the agency's refusal to provide  the subpoenaed material under the "arbitrary and capricious" standard.  Id. at 277-78 (recognizing its disagreement with  Exxon Shipping).  The Second Circuit, agreeing with Comsat, has also directed a district court to review an agency's  refusal to produce documents requested under Rule 45 under  the "arbitrary and capricious" standard.  EPA v. General  Elec. Corp., 197 F.3d 592, 599 (2d Cir. 1999).


7
We too have determined that sovereign immunity is not a  defense to a third-party subpoena.  Northrop Corp. v.  McDonnell Douglas Corp., 751 F.2d 395, 398 n.2 (D.C. Cir.  1984), stated:  "Since at least 1965 ... this court has assumed  the nonapplicability of sovereign immunity" to a non-party  subpoena directed at the government.  We found "no cause to  upset a steady course of precedent by attempting to graft  onto discovery a broad doctrine of sovereign immunity."  Id.  More recently, in Houston Business Journal, Inc. v. Office of  the Comptroller, 86 F.3d 1208, 1212 (D.C. Cir. 1996), we  stated that sovereign immunity does not insulate the federal  government from complying with a Rule 45 subpoena, because in federal court the government has waived its sovereign immunity for actions "seeking relief other than money  damages" in 5 U.S.C.  702.  Unlike the Fourth and Second  Circuits, we have never read the waiver contained in APA   702 to be limited by APA  706.  Nothing in the language  of  702 indicates that it applies only to actions brought  under  706, and our decisions have never so held.  With  respect to Rule 45, we have consistently proceeded under the  ordinary standard of review to determine whether a district  court properly considered the motion to compel production-inquiring whether the district court abused its discretion in  denying or compelling discovery.  See Schreiber v. Society for  Savings Bancorp, Inc., 11 F.3d 217, 220 (D.C. Cir. 1993);  In  re Subpoena, 967 F.2d 630, 633 (D.C. Cir. 1992).


8
Our doubts about the applicability of Rule 45 stemmed  from Al Fayed v. CIA, 229 F.3d 272 (D.C. Cir. 2000), a case in  which we construed 28 U.S.C.  1782, a statute similar in  effect to Rule 45.  The statute permits discovery directed to  non-parties in the federal courts by parties to proceedings  before foreign and international courts.  In relevant part it  provides that the "district court of the district in which a person resides or is found may order him to give his testimony...."  28 U.S.C.  1782(a).  Al Fayed sought discovery  from the CIA pursuant to this section.  We held that the  term "person" in  1782(a) did not include the federal government.  Al Fayed, 229 F.3d at 276-77.  In a statute, "the word  'person' ... does not include a sovereign absent affirmative  evidence of such an inclusory intent."  Id. at 274.  This  "presumption is, of course, not a hard and fast rule of  exclusion," id. (quoting Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 781  (2000) (internal quotations omitted)), but there was no reason  not to apply the presumption to  1782, particularly in light  of the Dictionary Act, which defines statutory terms and  governs the meaning of those words "unless the context  indicates otherwise."  1 U.S.C.  1.  The Dictionary Act  defines the word "person" as "corporations, companies, associations, firms, partnerships, societies and joint stock companies, as well as individuals," but does not mention the federal  government or its agencies.  Id.


9
Although our past decisions have assumed that "person" in  Rule 45 included the federal government, we have never  expressly so held and our assumption may need to be reexamined in light of Al Fayed.  But this is not the case in which to  undertake the reexamination.  Sovereign immunity provides  no defense to the government and so there is no jurisdictional  problem we need to address.  Whether Rule 45's use of the  word "person" should exempt the federal government, as Al  Fayed held in regard to  1782, is purely a question of  statutory interpretation, a question the government did not  raise before the district court.  We therefore decline to  decide it.  See Marymount Hosp., Inc. v. Shalala, 19 F.3d  658, 663 (D.C. Cir. 1994).

II.

10
The Linders offer four reasons why we ought to reverse  the district court's imposition of costs.  The first is that the  court misapplied Rule 45, contradicting existing case law.  As  amended in 1991, Fed. R. Civ. P. 45(c)(2)(B) provides that when a district court compels production by a non-party the  court "shall protect" that person from "significant expense  resulting from the inspection and copying commanded."  Before the amendment, costs could be shifted, but the decision  to do so was within the discretion of the district court.  See  United States v. CBS, Inc., 666 F.2d 364, 371 n.9 (9th Cir.  1982).  As the notes to the amendment explain, the 1991  changes were intended "to enlarge the protections afforded  persons who are required to assist the court."  Fed. R. Civ. P.  45, advisory committee notes.


11
There are relatively few reported cases applying the new  Rule 45.  In re The Exxon Valdez, 142 F.R.D. 380 (D.D.C.  1992), described the 1991 amendment as representing "a clear  change from old Rule 45(b), which gave district courts discretion to condition the enforcement of subpoenas on the petitioners paying for the costs of production."  Id. at 383.  The  court thought " 'protection from significant expense' does not  mean that the requesting party necessarily must bear the  entire cost of compliance....  There is no indication that [the  amendment] intended to overrule prior Rule 45 case law,  under which a non-party can be required to bear some or all  of its expenses where the equities of a particular case demand  it."  Id.  The district court here considered the factors mentioned in Exxon Valdez and in pre-1991 cases dealing with  cost shifting:  "whether the non-party actually has an interest  in the outcome of the case, whether the non-party can more  readily bear its costs than the requesting party, and whether  the litigation is of public importance."  Linder, 180 F.R.D. at  177;  Linder, 183 F.R.D. at 322.


12
The Linders claim the court erred in concluding that fee  shifting was mandatory.  But Rule 45 requires precisely  that--the district court "shall protect" a non-party from  "significant expense."  Under the revised Rule 45, the questions before the district court are whether the subpoena  imposes expenses on the non-party, and whether those expenses are "significant."  If they are, the court must protect  the non-party by requiring the party seeking discovery to  bear at least enough of the expense to render the remainder "non-significant."  The rule is susceptible of no other interpretation.


13
The estimated expenses of compliance here amounted to  $199,537.08.  Is this amount "significant"?  We have no trouble concluding that it is. Compare Williams v. City of Dallas,  178 F.R.D. 103, 113 (N.D. Tex. 1998) ($9,000 estimate sufficiently significant to shift costs).  While a court might take  into account the financial ability of the non-party to bear  some costs (a question we do not reach today), the district  court here was well within bounds in treating expenses of  nearly $200,000 as "significant."  (Whether the court should  have shifted the entire amount is beside the point in light of  the Linders' position that they will pay no expenses whatsoever in order to obtain discovery.)


14
According to the Linders, two statutes preclude imposing  expenses on them even if Rule 45 means what we think it means.  The first is the Intelligence Authorization Act for  Fiscal Year 1998.  Pub. L. No. 105-107, 111 Stat. 2252 (1997),  codified at 22 U.S.C.  2715a.  Section 307 of the Intelligence  Authorization Act states that "it is in the national interests of  the United States to provide information regarding the killing, abduction, torture, or other serious mistreatment of  United States citizens abroad," 22 U.S.C.  2715a(a)(1), and  directs federal agencies to "take all appropriate action" to  identify information pertaining to such crimes and make it  available to the family members of the victims.  Id.   2715a(b).  The Linders believe this means they are entitled  to the subpoenaed material without charge.  We think not. The Act creates no enforceable rights on behalf of any party. It provides no cause of action.  It is simply a general statement of policy.  See Cort v. Ash, 422 U.S. 66, 78 (1975).  It  does not refer to federal discovery rules, and it does not  address who should bear the costs of the production of  covered information.  Even if the Act were enforceable, earlier document production in this case satisfied any obligations  the government might have under this legislation.  The government has already provided all information generated between January 1, 1984, and December 31, 1988, concerning  Benjamin Linder, the attack in which he was killed, and information about other contra attacks in the region in the  same time period.  Linder, 183 F.R.D. at 316-17.


15
The Linders' second statute is the Freedom of Information  Act, or more precisely, the public interest exception in FOIA,  5 U.S.C.  552(a)(4)(A)(iii), requiring documents to be furnished to the requester at no charge or at a reduced charge  when this is in the public interest.  They also rely on   552(a)(4)(A)(ii)(III) and argue in the alternative that, at the  most, they should only have to pay the search and duplication  costs of the documents.  We see no basis for believing that  FOIA affects the cost-shifting provisions of Rule 45.  Rule 45  was amended to include cost-shifting provisions in 1991--long  after the relevant FOIA sections became law.  See Pub. L.  No. 99-570,  1803, 100 Stat. 3207-48, 3207-49 (1986).  If the  Linders wish to proceed under FOIA, they are of course free  to do so.  Whether they then could be required to bear some  or any of the costs is not for us to say in this case.


16
The Linders' last argument is that our previous decision in  this case compels release of these documents at no cost. There is nothing to this.  In that opinion we dealt only with  the scope of the subpoenas, not who should bear the costs of  production.  133 F.3d at 23-25.


17
The judgment of the district court that the CIA and  Departments of State and Defense need not comply with  plaintiffs' subpoenas is affirmed.

