In a Qui Tam Action, Non-Intervening Government Agency Not a "Person" under Rule 45 Says D.D.C.

Westlaw has just posted an unpublished opinion by Judge Leon in U.S. ex rel. Taylor v. Gabelli, Slip Copy, 2005 WL 2375173 (D.D.C. May 3, 2005) in which he finds that the United States is not a real party in interest to a qui tam action when it elects not to intervene and thus, as a non-party, is not a “person” under FRCP Rule 45. As a result, Judge Leon held, Rule 45 provides no basis for compelling the government to respond to a subpoena. “[T]he Administrative Procedure Act ("APA"), 5 U.S.C. § 701, et seq., is the defendants' only means to challenge the non-party FCC's failure to comply with the subpoena at issue," wrote Judge Leon.

The court's holding that the government is not a real party in interest in a qui tam action when it fails to intervene is at odds with the holdings in other jurisdictions (2d and 4th Circuits) and with other judges within D.D.C. However, given that the D.C. Circuit has yet to address the issue, Judge Leon noted that he was free to follow this course, which he felt best reflected the overall intent of Congress.