Clift v. US

• Decision Date: 30 December 1991
• Docket Number: Civ. No. N-76-37 (EBB).
• Citation: 808 F. Supp. 101
• Parties: Eugene Emerson CLIFT v. UNITED STATES of America.
• Court: U.S. District Court — District of Connecticut

808 F. Supp. 101

Eugene Emerson CLIFT v. UNITED STATES of America.

Civ. No. N-76-37 (EBB).

United States District Court, D. Connecticut.

December 30, 1991.

Eugene Emerson Clift, pro se.

H. Gordon Hall, Asst. U.S. Atty., New Haven, CT, for U.S.

RULING ON DEFENDANT'S MOTION TO DISMISS

ELLEN B. BURNS, Chief Judge.

On January 23, 1976, the Plaintiff, Eugene Emerson Clift, brought this action under the Invention Secrecy Act, 35 U.S.C. § 183, alleging that the Government has used, in exact or similar form, a cryptographic encoding device that the Plaintiff has patented under U.S. Patent No. 3,495,038, entitled "Cryptographic System."

The facts of this case are set forth in Clift v. United States, 597 F.2d 826 (2d Cir.1979), and are repeated here in part. The Plaintiff filed a patent application for a cryptographic device in March 1968. On November 6, 1968, the Commissioner of Patents issued a secrecy order on the application under 35 U.S.C. § 181.¹ In February 1969 Clift filed an administrative claim for compensation under 35 U.S.C. § 183 ² for damages caused by the imposition of the secrecy order and for the Government's use of the invention. The Government rescinded the secrecy order on June 12, 1969, and letters patent were issued in February 1970. On January 23, 1970, the Government denied the Plaintiff's administrative claim on the grounds that (i) the Government never used the invention and (ii) the Plaintiff had not submitted any evidence of damages resulting from the secrecy order.

In January 1976 the Plaintiff sued the United States under 35 U.S.C. § 183 for damages resulting from the imposition of the secrecy order and from the Government's appropriation of the invention.³ The Government has steadfastly denied any use of Clift's invention.

In November 1977 the Plaintiff filed a request for production of documents under Fed.R.Civ.P. 34. The information requested concerned the origins and design of several types of cryptographic devices used by national security and military agencies of the Government.⁴ Plaintiff contended that since these devices incorporated, in exact or similar form, his patented cryptographic system, he would need this information to prove his claim. Following the Defendant's refusal to produce the requested documents, the Plaintiff filed a motion to compel discovery under Fed.R.Civ.P. 37. In response, the Defendant, after pointing to the sensitive nature of the information, claimed that the information requested was both privileged on the basis of national security and prohibited from disclosure by statute. See 18 U.S.C. § 798.⁵ In support of its claims, the Government submitted an affidavit from Vice Admiral Inman, the then Director of the National Security Agency, which averred that the disclosure of any information about the manufacture or design of its cryptographic devices would endanger the national security of the United States.

On September 15, 1977, this Court denied Plaintiff's motion to compel discovery based upon the Government's assertion of jeopardy to the national security, which was not outweighed by the Plaintiff's showing of need. See Clift v. United States, No. N-76-37 (EBB) (D.Conn. Sept. 15, 1978) (Mem.Decision Mot.Compel Disc. at 6-7). This Court also dismissed the action because of the Plaintiff's inability to maintain his case without access to the requested documents. Id. at 9-10.

The Second Circuit Court of Appeals affirmed the order denying the motion to compel discovery without prejudice and vacated the order dismissing the complaint. Clift v. United States, 597 F.2d 826, 830 (2d Cir.1979). In vacating the order of dismissal, the Second Circuit stated that Clift could perhaps proceed with his case without the requested documents or that, at some unforeseen point in time, the disclosure of the requested documents would no longer imperil the national security. Id. Moreover, the circuit court encouraged the Government to "be as forthcoming as it can be without risk to the national interest." Id.

On December 20, 1979, this Court made certain findings for the record and stayed discovery "until the earliest time at which the Government is able, consistent with 18 U.S.C. § 798, to furnish documents properly requested in this case." Clift v. United States, No. N-76-37 (D.Conn. Dec. 20, 1979) (Finding & Order at 2).

Since that time, over eleven years ago, this Court has waited for a deus ex machina to resolve the conflicting objectives of the Invention Secrecy Act and the state secrets privilege, which are "on the one hand, to preserve secrecy and, on the other, `a strong concern that inventors be encouraged to discover inventions having military value and to submit them to the United States.'" Clift v. United States, 597 F.2d 826, 829 (2d Cir.1979) (quoting Halpern v. United States, 258 F.2d 36, 39 (2d Cir. 1958)). However, the issues at stake in this case, namely the Defendant's invocation of the state secrets privilege and the Plaintiff's inability to marshal additional nonprivileged evidence of infringement, remain essentially unchanged. The Government has, however, filed a motion to dismiss along with two supporting declarations.

On August 13, 1990, the Defendant filed the unclassified declaration of Secretary of Defense Richard B. Cheney, which, unlike the previous affidavit of Vice Admiral Inman, formally invoked the state secrets privilege. (Cheney Decl. ¶ 7). In his declaration, the Secretary averred that "information disclosing the technical characteristics of the manufactured or researched cryptographic systems constitutes military and state secrets, the disclosure of which could reasonably be expected to cause serious damage, potentially exceptionally grave damage, to the national security and foreign relations of the United States." (Cheney Decl. ¶ 3); see also id. at ¶ 4 ("The unauthorized disclosure of this U.S. cryptographic logic would seriously impair the communications security of the United States."); id. ("The disclosure of the manufactured cryptographic systems potentially puts at risk nearly every national secret over the last 30 years."); id. at ¶ 5 ("The disclosure of the technical information at issue in this case could devastate the ability of the U.S. to conduct signals intelligence.").

The Secretary also intimated that even if the United States discontinued the use of any (or all) of its present cryptographic encoding devices, it would continue to safeguard information about their design, construction, maintenance, and repair in order to preserve the secrecy of coded transmissions that may have been intercepted by foreign powers.⁶

In further support of the Secretary's invocation of the state secrets privilege, the Government, on August 13, 1990, filed the classified declaration of Vice Admiral W.O. Studeman, Director of the National Security Agency, for this Court's in camera, ex parte review. In his declaration, Vice Admiral Studeman further described the classified nature of the information sought and the improbability that it would be declassified in the foreseeable future.

The resolution of the Motion to Dismiss⁷ ultimately depends upon the validity and effect of the Government's invocation of the state secrets privilege and the Plaintiff's ability to maintain a prima facie case if the information requested remains privileged.

DISCUSSION

"The state secrets privilege is a common law evidentiary rule that protects information from discovery when disclosure would be inimical to the national security." In re United States, 872 F.2d 472, 475 (D.C.Cir.), cert. dismissed sub nom. United States v. Albertson, 493 U.S. 960, 110 S.Ct. 398, 107 L.Ed.2d 365 (1989). The privilege belongs only to the Government and may be raised even when the Government is not a party. Zuckerbraun v. General Dynamics Corp., 935 F.2d 544, 546 (2d Cir.1991) (citation omitted). To invoke the privilege successfully, "there must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer." United States v. Reynolds, 345 U.S. 1, 7-8, 73 S.Ct. 528, 532, 97 L.Ed. 727 (1953) (footnotes omitted). These formal requirements were met in the present case. In his declaration of August 10, 1990, Secretary of Defense Cheney formally invoked the privilege,⁸ specifically reciting that he had reviewed and considered, among other things, a representative sample of the documents covered by the Plaintiff's request for production.⁹ Upon review and after consideration of the nature of this case,¹⁰ the Secretary concluded that disclosure would imperil the national security. (Cheney Decl. ¶ 3); see also supra at 104. This conclusion is in accord with the more detailed (and classified) declaration of Vice Admiral Studeman.

Compliance with the formal requirements is, however, not enough, for "judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers." United States v. Reynolds, 345 U.S. at 9-10, 73 S.Ct. at 533. Hence, the "court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect." Id. at 8, 73 S.Ct. at 532 (footnotes omitted); see also Molerio v. Federal Bureau of Investigation, 749 F.2d 815, 822 (D.C.Cir.1984) ("To some degree at least, the validity of the Government's assertion must be judicially assessed.").

To discharge this obligation, while at the same time "according the `utmost deference' to the executive's expertise in assessing privilege upon grounds of national security, a court must uphold the privilege if the Government shows that `the information poses a reasonable danger to secrets of state.'" In re United States, 872 F.2d at 475 (quoting Halkin v. Helms, 598 F.2d 1, 9 (D.C.Cir.1978) (Halkin I) and Halkin v. Helms, 690 F.2d 977, 990 (D.C.Cir.1982) (Halkin II)); see also United...