Fitzgerald v. Penthouse Intern., Ltd.

• Decision Date: 07 November 1985
• Docket Number: No. 84-1035,84-1035
• Citation: 776 F.2d 1236
• Parties: , 19 Fed. R. Evid. Serv. 661, 12 Media L. Rep. 1330 James W. FITZGERALD, Appellant, v. PENTHOUSE INTERNATIONAL, LTD.; Meredith Printing Corporation; Meredith Corporation; Bob Guccione; Steve Chapple and Michael L. Greenwood, United States of America, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1236

776 F.2d 1236

3 Fed.R.Serv.3d 837, 19 Fed. R. Evid. Serv. 661,

12 Media L. Rep. 1330

James W. FITZGERALD, Appellant, v. PENTHOUSE INTERNATIONAL, LTD.; Meredith Printing Corporation; Meredith Corporation; Bob Guccione Steve Chapple and Michael L. Greenwood United States of America, Appellees.

No. 84-1035.

United States Court of Appeals Fourth Circuit.

Argued April 3, 1985.

Decided Nov. 7, 1985.

Thomas J. Keramidas, New London, Conn. (Michael A. Rakosky, Rakosky, Smith, Miller & Papp, P.C., New London, Conn., James T. Haviland, Howard, Kohn, Sprague & Fitzgerald, Hartford, Conn., on brief), for appellant.

Freddi Lipstein, Washington, D.C., John Philip Miller, Baltimore, Md. (Kaplan, Heyman, Baltimore, Md., Richard K. Willard, Acting Asst. Atty. Gen., Washington, D.C., J. Frederick Motz, U.S. Atty., Baltimore, Md., Barbara L. Herwig, Washington, D.C., Norman Roy Grutman; Miller, Greenspoon, Hendler & Levin, New York City, on brief), for appellees.

Before PHILLIPS, SPROUSE and ERVIN, Circuit Judges.

ERVIN, Circuit Judge:

This is an appeal from the dismissal of a libel action on the basis that continued litigation would result in the disclosure of privileged state secrets. James W. Fitzgerald initiated this action following the publication of an allegedly libelous article in Penthouse Magazine. The U.S. Navy moved to intervene on the ground that the government had a national security interest at stake in the trial which could not be adequately protected by the parties, and moved to dismiss the action on the basis that the trial would lead to disclosure of privileged state secrets. The district court granted the motions and dismissed the case. Fitzgerald now appeals. We affirm.

I.

The underlying facts in this case are adequately set forth in our previous opinions and need not be repeated in their entirety here. See Fitzgerald v. Penthouse International, Ltd., 639 F.2d 1076, 1077-78 (4th Cir.1981); Fitzgerald v. Penthouse International, Ltd., 691 F.2d 666, 668 (4th Cir.1982), cert. denied, 460 U.S. 1024, 103 S.Ct. 1277, 75 L.Ed.2d 497 (1983). Briefly, in June 1977 Penthouse Magazine published an article entitled "The Pentagon's Deadly Pets." The article concerned the alleged use of animals by the U.S. Navy and the Central Intelligence Agency for military and intelligence purposes. A portion of the article described scientist James W. Fitzgerald's work with dolphins. This section concluded with an allegedly libelous paragraph which read as follows:

Fitzgerald continued his own Florida operation. He even made overtures, possibly with CIA and Navy knowledge, to sell dolphin torpedoes or "open-ocean weapons systems" to Mexico, Peru, Colombia, Chile, Argentina, and Brazil. This private merchandising astounded one of Fitzgerald's associates, who observed: "The work in Key West had been top secret, with only a small handful of people in the whole country knowing of its existence, not to mention its purpose." Yet Fitzgerald wanted to make some fast bucks on the side by turning small countries into "instant naval powers." The Pentagon couldn't possibly object for fear of exposing its whole operation.

(J.A.36).

In November 1977, Fitzgerald filed suit against Penthouse, the magazine's publisher and printer, the author of the article and Michael Greenwood, a former CIA employee upon whom Penthouse had relied for its information on Fitzgerald's work. ¹ The suit alleged that the article libelously charged Fitzgerald with espionage. In July 1979 and again in October 1981, the district court granted summary judgment in favor of the defendants. Fitzgerald v. Penthouse International, Ltd., 525 F.Supp. 585 (D.Md.1981). In appeals from those rulings, this court reversed both times, finding that material questions of fact remained making an award of summary judgment in favor of the defendants inappropriate.

Following the second remand, the parties prepared for trial, which was scheduled for Monday, December 5, 1983. On November 22, 1983, Fitzgerald filed a Supplemental Disclosure under Fed.R.Civ.P. 26(b)(4)(A)(i) ² identifying three expert witnesses he expected to call. According to Fitzgerald's memorandum, Dr. William Von Winkle, scientist in Defense Research at the Naval Underwater Systems Center in New London, Connecticut, would "give expert testimony concerning the manner and method by which scientific work/projects acquire classification and/or degree of classification." He would also examine brochures used by Fitzgerald in marketing his dolphin research "to give an opinion as to whether or not there is anything contained therein that is classified, to what degree therein it is classified, if it is classified. His opinion is that there is nothing contained therein that is now or has been classified." Dr. William A. Carey, scientist in Defense Research at the Naval Research Laboratory, Washington, D.C., would "give expert testimony concerning the manner and method by which scientific work/projects acquire classification and/or degree of classification." Finally, Dr. Gerald L. Berkin, "Head Security Classification [sic]," at the Branch of Security Policy, Division for U.S. Navy, would examine the Fitzgerald brochures and would "testify and give opinion that nothing therein is classified." Plaintiff's Supplemental Disclosure under Fed.R.Civ.P. 26(b)(4)(A)(i) at 3-4, Fitzgerald v. Penthouse International, Ltd., No. M-77-1900 (D.Md. November 22, 1983).

When the Navy learned that Fitzgerald intended to call Berkin as an expert witness, the Navy became concerned that important military secrets would be compromised if the case proceeded to trial. On the afternoon of Friday, December 2, counsel for the Navy informed the district court that the Navy intended to file a motion to intervene in the case on the basis that the government had a national security interest at stake in the trial which could not be adequately protected by the parties. The Navy's counsel also indicated that the Navy intended to file a motion to dismiss the case on the basis that the trial would lead to the disclosure of privileged state secrets. On Monday morning, December 5, the Navy filed its motions supported by an in camera affidavit containing classified information. The district court gave Fitzgerald and Penthouse one hour to prepare for oral argument on the motions. Then, immediately following a hearing, the court granted the Navy's motions and dismissed the case in an oral opinion from the bench. ³

Fitzgerald now appeals. He argues, first, that this case cannot reasonably be seen as a threat to national security and consequently the district court erred in allowing the government to invoke the state secrets privilege; and second, that even if state secrets are involved, the remedy of complete dismissal was improper. ⁴

II.

The state secrets privilege was recognized by the Supreme Court in United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953), a wrongful death action arising under the Tort Claims Act concerning the death of three civilians in the crash of an Air Force B-29 bomber. The civilians had been observers on a flight to test secret electronic equipment. The plaintiffs sought discovery of the official accident report from the Air Force and the statements of surviving crew members. The government opposed production, and the Secretary of the Air Force filed a formal "Claim of Privilege," stating that production of the accident report was not in the public interest because "the aircraft in question, together with the personnel on board, were engaged in a highly secret mission of the Air Force." Id. at 4, 73 S.Ct. at 530. In addition, the Judge Advocate General of the Air Force filed an affidavit stating that the discovery request could not be complied with "without seriously hampering national security, flying safety and the development of highly technical and secret equipment." Id. at 4-5, 73 S.Ct. at 530-31. This affidavit also offered to produce the surviving crew members for examination by the plaintiffs regarding any non-classified matters. Id. at 5, 73 S.Ct. at 530-31. The district court ordered the government to produce the documents so that the court could evaluate the government's claim of privilege. When the government refused to do so, the district court ordered that, pursuant to its authority under Fed.R.Civ.P. 37(b)(2)(i), the facts on the question of negligence would be taken as established in the plaintiffs' favor. The government appealed, and the Third Circuit affirmed. Id.

Finding that the state secrets privilege had been properly invoked in the district court, the Supreme Court reversed. According to the Court, the state secrets privilege is not to be lightly invoked. 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. 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 7-8, 73 S.Ct. at 531-32. (footnotes omitted). While recognizing that courts must defer to properly asserted claims of the state secrets privilege, the Court also emphasized that "[j]udicial control over the evidence in a case cannot be abdicated to the caprice of executive officers." Id. at 9-10, 73 S.Ct. at 532-33.

In each case, the showing of necessity which is made will determine how far the court should probe in satisfying itself that the occasion for invoking the privilege is appropriate. Where there is a strong showing of necessity, the claim of privilege should not be lightly accepted, but even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake.

Id. at 11, 73 S.Ct. at 533-34; accord Ellsberg v. Mitchell, 709 F.2d 51, 59 nn. 37-38 (D.C.Cir.1983), cert. denied, ...