# In Re United States of America

> Court of Appeals for the D.C. Circuit · April 14, 1989 · 872 F.2d 472

URL: https://www.frixlaw.com/law-library/cases/9478918

## Case

- **Full name:** In Re UNITED STATES of America, Petitioner
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** April 14, 1989
- **Citations:** 872 F.2d 472; 277 U.S. App. D.C. 37; 27 Fed. R. Serv. 1003; 1989 U.S. App. LEXIS 4984; 1989 WL 34571
- **Precedential status:** Published
- **Opinion:** Concurring in part by Ginsburg
- **Judges:** Mikva, Ginsburg, Rosenn
- **Cited by:** 56 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/9478918

## How later opinions describe it (automated extraction)

- stating that an item-by-item determination of the applicability of the State Secrets Privilege was appropriate because, inter alia, a portion of the requested information had already obtained by plaintiff under Freedom of Information Act, 5 U.S.C. Sec. 552 (1982)
- explaining that the privilege provides absolute protection for information the release of which would impair the Nation’s defense, disclose intelligence activities, or disrupt diplomatic relations with foreign governments
- rejecting a claim of privilege after in camera review, notwithstanding the Government’s submission of an “affidavit ostensibly describ[ing] the harms that would be dealt to our nation’s security . . . were [the] case to continue through the normal course of litigation”
- noting with approval the district court's order distinguishing cases where the subject matter of the litigation is a state secret from those where the discovery requested is the state secret

## Opinion text

D.H. GINSBURG, Circuit Judge,
concurring and dissenting:
Because any further discovery in this action would inevitably lead to disclosure of information protected by the state secrets privilege, I dissent from the judgment insofar as it fails to direct the district court to vacate the portion of its March 16, 1987 order that directs the parties to proceed with discovery. I concur in the judgment insofar as it denies a writ of mandamus directing the district court to dismiss plaintiff’s complaint. 1
I. Discovery
From my review of the affidavit of Assistant Director (Intelligence Division) Geer, submitted by the Government, I think it perfectly clear that any further discovery in this action will occasion
... disclosures [that] not only would pose a serious risk to the personal safety of those who have assisted the government in its investigations but would have an adverse impact on current foreign intelligence activities of this government, affect the conduct of foreign relations and cause serious damage to the national security.
Geer Aff. at 4, Paragraph 3. Nor can any system of item-by-item rulings by the district court be concocted so as to avoid these most untoward consequences. Unfortunately, I am unable fully to explain my disagreement with the court on these points without discussing in some detail the contents of the classified affidavit submitted by the Government for in camera review by the court, and thus the bulk of this opinion will be available only to a limited readership. I do hope, however, that it will serve to persuade the court en banc or, failing that, the Supreme Court of the error of today’s decision.
[text deleted]
II. Continuation of the Litigation
The Supreme Court has clearly stated that “public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential, and respecting which it will not allow the confidence to be violated.” Totten v. United States, 92 U.S. (2 Otto) 105, 107, 23 L.Ed. 605 (1875). See also Weinberger v. Catholic Action of Hawaii/Peace Education Project, 454 U.S. 139, 146-47 , 102 S.Ct. 197, 203-04 , 70 L.Ed.2d 298 (1981). Accordingly, on several occasions, this court has indicated that where maintenance of a claim depends upon discovery that would necessarily compromise state secrets, the claim should be dismissed outright. In Salisbury v. United States, 690 F.2d 966 (D.C.Cir.1982), for example, the district court found, and this court agreed, that “maintenance of the action depends upon production of the requested information....” Id. at 977 . The court therefore held that, “under these circumstances, dismissal is the appropriate response.” Id. See also Halkin v. Helms, 598 F.2d 1, 9 (D.C.Cir.1978) (since “plaintiffs’ suit depends upon the discovery of [privileged] information,” the proper remedy is dismissal of the suit); Halkin v. Helms, 690 F.2d 977, 990 (D.C.Cir.1982) (because plaintiffs conceded that successful invocation of the state secrets privilege made it impossible to go forward with their claims, dismissal was the appropriate remedy once the court upheld the claim of privilege). Cf. id. at 998 (where plaintiffs could not establish standing due to invocation of *481 privilege, proper remedy was to dismiss their claims).
At the same time, an action as to which a certain avenue of discovery would compromise state secrets need not be dismissed if an alternative, non-sensitive avenue of discovery is available. In United States v. Reynolds, 345 U.S. 1 , 73 S.Ct. 528 , 97 L.Ed. 727 (1953), the Supreme Court held that the Government could prevent discovery of a sensitive report sought by plaintiffs in their wrongful death case arising out of the crash of a military aircraft. The Court noted, however, that a readily available alternative to disclosure of the sensitive information existed: the Government had offered for deposition the three survivors of the contested plane crash, an offer rejected by plaintiffs in their zeal to obtain the secret report. The Court noted that the alternative discovery route “might have given respondents the evidence to make out their case without forcing a showdown on the claim of privilege, id. at 11 , 73 S.Ct. at 533 , and suggested that in the proceedings on remand “it should be possible for respondents to adduce the essential facts without resort to material touching upon military secrets.” Id.
In this case, because certain documents were released to plaintiff under the FOIA, we are somewhere between Reynolds , on the one hand, and, on the other, Totten and our own outright dismissal cases. Here, unlike in Reynolds , there are no avenues of discovery that are not blocked by the state secrets privilege * * *. Here, unlike Tot-ten and Salisbury , however, an order discontinuing discovery would not necessarily spell the end of the litigation. At oral argument, plaintiff indicated that she was prepared to proceed without any further discovery, since the information obtained through her FOIA request is sufficient to make out a prima facie case on her claims under New York tort law. Denying discovery, but letting the action go forward, is simply a less drastic solution than the outright dismissal authorized by our previous cases. See Ellsberg v. Mitchell, 709 F.2d 51, 65 (D.C.Cir.1983) (“dismissal of the relevant portion of the suit would be proper only if the plaintiffs were manifestly unable to make out a prima facie case without the requested information”). Cf. Attorney General of the U.S. v. The Irish People, Inc., 684 F.2d 928, 950 (D.C.Cir.1982) (“[E]ven if a defendant would normally be entitled to discovery, it does not follow that, if there can be no discovery in the particular case, dismissal is the only choice available to the court”) (declining to dismiss civil claim brought by Attorney General where defendant, due to successful assertion of state secrets privilege, could not gain access to documents in aid of its defense).
III. The Government’s Defenses
The Government has already advanced several lines of defense in this case, including the New York statute of limitations, various express and implied exceptions to the FTCA, and failure to state a claim under New York tort law. See Memorandum of Points and Authorities in Support of Defendant’s Motion to Dismiss, Doc. No. 22, D.D.C. No. Civ. 84-2034. Assuming that the action goes forward, the Government can re-assert each of these defenses in open court in a motion for summary judgment; none of them requires disclosure of state secrets.
In the Geer Affidavit, the Government alludes to another line of defense * * *. In order to advance this defense, the Government would need to rely on privileged materials.
In Ellsberg , this court made clear that a government party does not forfeit a meritorious defense merely because it would need to rely on privileged materials in order to assert it. Rather, the court held, the trial court may in such a situation consider the merits of the privileged defense on an ex parte, in camera basis. 709 F.2d at 69 -70 & n. 78. There is no reason why the Government in this case, to the extent that its defense rests upon materials covered by its state secret privilege, cannot use the in camera procedure suggested in Ellsberg .
This is not a case like Molerio v. Federal Bureau of Investigation, 749 F.2d 815, 825 (D.C.Cir.1984), where this court, based *482 upon its own review of the privileged materials supporting the Government’s defense, could determine that, notwithstanding circumstantial evidence supporting plaintiff’s prima facie case, plaintiff’s claim had no merit, and that it would be “a mockery of justice” to permit the action to proceed. Here it is not at all clear that the Government’s [secret] defense is dispositive (or even meritorious * * * under New York law). Thus, there is simply no reason why plaintiff cannot go forward with her claim based upon the evidence she now has, subject to the Government’s right to present any secret defense to the district court in camera.
IV. Mandamus
Mandamus is unquestionably an extraordinary remedy, “meant to be used only in the exceptional case,” Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 383 , 74 S.Ct. 145, 148 , 98 L.Ed. 106 (1953), and not as “a substitute for an appeal.” Schlagenhauf v. Holder, 379 U.S. 104, 110 , 85 S.Ct. 234, 238 , 13 L.Ed.2d 152 (1964). Equally clearly, it seems to me, mandamus is the uniquely appropriate way to correct the district court’s error in this case. We have already held that the court’s order is not appealable under 28 U.S.C. § 1291 , Albertson v. United States, No. 87-5178, slip op. (D.C.Cir. Oct. 2, 1987), and the district court has denied the Government’s request for certification under 28 U.S.C. § 1292 . Even if the Government refuses to comply with the district court’s order to proceed with discovery and is held in civil contempt, it is not at all clear that, as a party, it would have an immediate right to appeal. See In re Von Bulow, 828 F.2d 94, 98 (2d Cir.1987) (citing cases).
As the Court of Appeals for the Second Circuit recently noted, “the concern that a remedy after final judgment cannot unsay the confidential information that has been revealed” has led federal courts to favor the use of mandamus for review of interlocutory discovery orders calling for “the production of documents or testimony claimed to be privileged or covered by other more general interests in secrecy,” such as the attorney-client privilege and the common law protection for trade secrets. Id. at 99 (collecting cases). See also Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487, 492 (7th Cir.1970) (“because an appeal after disclosure of the privileged communication is an inadequate remedy, the extraordinary remedy of mandamus is appropriate”). When, in such circumstances, the court perceives “ ‘an extreme need for reversal of the district court’s mandate before the case goes to judgment,’ the writ of mandamus provides an escape hatch from the finality rule [of 28 U.S.C. § 1291 ].” Von Bulow, 828 F.2d at 97 . Accord, Colonial Times, Inc. v. Gasch, 509 F.2d 517, 526 (D.C.Cir.1975) (mandamus may issue to correct an error in a discovery order if the issue, “while important to the general course of the litigation, [is] ... collateral and thus lost to appellate review in fact if not in theory”).
The interest at issue in this case is not simply that of a private party in maintaining the continued confidentiality of an attorney-client communication, but rather the compelling interest of the United States Government in maintaining, through a privilege protected by constitutional principles of separation of powers, [highly sensitive information]. The district court, in ordering discovery to go forward, disregarded the Government’s legitimate and compelling interest in preventing disclosure of exceedingly sensitive national security information. This court should therefore grant the writ of mandamus and instruct the district court to vacate the portion of its order directing the parties to proceed with discovery.
. Substantial portions of this opinion are not being published because they rely upon classified information.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9478918. Public record. Not legal advice.