# Sun Oil Co. v. United States > United States Court of Claims · April 16, 1975 · 514 F.2d 1020 URL: https://www.frixlaw.com/law-library/cases/8595224 ## Case - **Full name:** SUN OIL COMPANY AND THE SUPERIOR OIL COMPANY v. THE UNITED STATES MARATHON OIL COMPANY, INTERVENOR - **Court:** United States Court of Claims - **Decided:** April 16, 1975 - **Citations:** 514 F.2d 1020; 206 Ct. Cl. 742; 19 Fed. R. Serv. 2d 1453; 1975 U.S. Ct. Cl. LEXIS 25 - **Precedential status:** Published - **Opinion:** Concurrence by Nichols - **Judges:** Bennett, Cowen, Davis, Nichols, Skelton - **Cited by:** 27 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8595224 ## How later opinions describe it (automated extraction) - noting that “[p]resumption favors the validity of official military acts,” including those of a military records correction board, absent evidence to the contrary ## Opinion text Nichols, Judge, concurring: 1 concur in the result. The court proposes a course of action that is rational in the circumstances, and fair to both sides. I cannot join in all the reasoning but come to the same end by another route. The theory is as I understand it as follows: First, we reject Mr. Nixon’s claim of absolute privilege. Whether his claim can be treated as one for a qualified privilege, or rejected entirely, is considered as moot because the same action should be taken in either case. If the claim is valid for qualified privilege, we checkmate it with a holding of “necessity”. In either case, our duty is the same. Even where no privilege *754 is involved, we must safeguard important and sensitive Government papers against irresponsible fisbing expeditions. The examination of the disputed documents in chambers in presence of counsel on all three sides, and excision of irrelevant and prejudicial material, would be a fair and reasonable measure, qualified privilege or none. I have difficulty with the court’s determination of “necessity”, which I find to be premature. In the first place, it may be that the disputed documents will be found merely cumulative in their probative effect with documents already discovered. In that event, there is not “necessity”. Weiss v. United States, 180 Ct. Cl. 863 (1967), 187 Ct. Cl. 1 , 408 F. 2d 416 (1969). We said at 180 Ct. Cl. 870 : * * * The privilege here is not absolute and must yield to compelling necessity. The court, through one of its judges, offered the Government the opportunity to save the privilege by opening up other means for the court to ascertain the facts it had to have. The Government endeavored to comply with this suggestion but we hold it has not succeeded in doing so. * * * The defendant has opened up “other means” here but plaintiffs apparently believe they can prove still more if they have full discovery. It will therefore be requisite to compare the documents now in controversy with those already discovered to see what the former add. The trial judge should do this after remand to him. Our determination of “necessity” besides being premature in the above particular, seems to me to give unintended countenance to a technique of attacking administrative decisions by impugning the motives of those who make them, that I think, we are seeing too much of in courts of law. I recognize a possibility that the four disputed documents may reveal a breach of plaintiffs’ legal rights, according to any lawyer’s ideas, a possibility made real by the facts recited. The court has taken care not to pronounce too much, but any determination of “necessity” implies some judgment as to substantive law. I would prefer that announcement of the legal consequences of the documents should follow and not precede a revelation of their contents. This is the ordinary order and legal pronouncements made without regard *755 to it are apt to come back and haunt us. I would have the trial judge determine “necessity”, subject of course to review by us, after he has seen the controverted documents and knows what they will show. In Weiss, we determined “necessity” in course of reviewing a trial judge’s decision on the same issue, without either of us seeing the documents, but neither he nor we had the light we have received since as to the rights and duties of a court in face of a qualified privilege. There may be situations still where the court must determine “necessity” without seeing the documents, but I do not think this case is one of them. As I read United, States v. Nixon, 418 U.S. 683 , 94 S. Ct. 3090 (1974), the Supreme Court did not determine “necessity” ml non in general or as to any particular document. The instructions to the trial judge in fn. 21, 418 U.S. at 715 , 94 S. Ct. at 3111 , mention that he is to determine relevance and admissibility and make excisions where appropriate. It may be in the context of a criminal proceeding the non-necessity of merely cumulative material is not a factor. The other elements of “necessity” are incorporated in relevance and admissibility. If I am wrong in the above, however, I will add I don’t think we have before us, anyway, a claim of privilege by one legally qualified to make it. I agree that no ex-President can assert an absolute privilege but deny that he can assert a qualified privilege. Of course it is true that an incumbent President might wrongly refuse to claim privilege for his predecessor’s papers when it should be claimed, assuming as I do that the privilege serves a useful purpose even where, as here, military or diplomatic secrets are not involved. Conversely, an ex-President may claim privilege in a distorted or one-sided manner, or not claim it when it should be claimed, if the claim is his to make. He may be more concerned with another try at the Presidency, or with his place in history, than he is with the public interest. The right to claim privilege is not really a privilege in the ordinary sense. It is a duty. The duty must devolve, if it is to be exercised in the public interest, on the person who is currently under oath to gee that the laws are faithfully executed, i.e., the current in *756 cumbent. I would hold we have no valid claim of privilege before us. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8595224. Public record. Not legal advice.