Frost v. Perry

Decision Date06 March 1996
Docket NumberNo. CV-S-94-714-PMP (RLH).,CV-S-94-714-PMP (RLH).
Citation919 F. Supp. 1459
PartiesHelen FROST; et al., Plaintiffs, v. William PERRY, Secretary of the United States Department of Defense; et al., Defendants.
CourtU.S. District Court — District of Nevada



Jonathan Turley, The National Law Center George Washington University, Washington, DC, for plaintiffs.

David Anderson, Neil Koslowe, U.S. Department of Justice, Environmental Defense Section, Washington, DC, for defendants.


PRO, District Judge.

Before the Court is the Defendants' Motion for Summary Judgment (# 70), filed June 16, 1995. Plaintiffs filed an Opposition to Defendants' Motion for Summary Judgment (# 92) on July 12, 1995. Defendants filed their Reply (# 115) on July 26, 1995.

In accordance with the Local Rules, Defendants also filed a Statement of Uncontested Material Facts in Support of Motion for Summary Judgment (# 78) on June 23, 1995. Plaintiffs filed under seal a Statement of Contested Material Facts in Opposition to the Motion for Summary Judgment (# 133) on August 7, 1995. Plaintiffs also filed Affidavits (## 134 & 135) under seal as exhibits to the Statement (# 133).

Also before the Court is the Plaintiffs' Motion for Consideration of Exhibits in Support of Plaintiffs' Statement of Contested Material Facts (# 204), filed February 16, 1996. Defendants filed under seal an Opposition (# 210) on March 4, 1996.

Also before the Court is the Plaintiffs' Motion to File First Amended Complaint (# 146), filed September 12, 1995. Defendants filed their Memorandum in Opposition to Plaintiffs' Motion to File an Amended Complaint (# 159) on October 5, 1995. Plaintiffs filed a Reply (# 166) on October 23, 1995.

Defendants filed a Notice of Untimely Filing by Plaintiffs of Motion to File an Amended Complaint (# 175) on November 8, 1995. Plaintiffs then filed a Motion (1) to Strike Defendants' Notice of Untimely Filing and (2) for a Judicial Ruling on Consultation Certification (# 176) under seal on November 13, 1995. Defendants filed an Opposition (# 187) on November 29, 1995, and Plaintiffs filed a Reply (# 191) on December 19, 1995.

I. Background

This is a citizen suit brought under § 7002 of the Resource Conservation and Recovery Act ("RCRA"), codified at 42 U.S.C. § 6972. Plaintiffs are former workers at a classified site operated by the United States Air Force near the Groom Dry Lake Bed in Nevada that is the subject of this litigation. For the purposes of this litigation and because of its classified status, the Air Force site is referred to as "the operating location near Groom Lake."

Plaintiffs bring eleven claims for relief.1 Plaintiffs allege violations of RCRA in the storage, treatment, and disposal of hazardous waste at the operating location near Groom Lake, and seek declaratory and injunctive relief, civil penalties, attorney's fees and costs.2

II. Motion for Summary Judgment

Defendants move for summary judgment on the basis of the national security issues present in this lawsuit. Defendants assert that national security prevents Plaintiffs from establishing a prima facie case for any of their claims. On February 21, 1995, the Secretary of the Air Force, Sheila Widnall, invoked the military and state secrets privilege over information involving the operating location near Groom Lake that relates to the following: (1) program names; (2) mission; (3) capabilities; (4) military plans, weapons, or operations; (5) intelligence sources and methods; (6) scientific or technological matters; (7) certain physical characteristics; (8) budget, finance, and contracting relationships; (9) personnel matters; and (10) security sensitive environmental data. See Unclassified Declaration of Secretary Widnall.

A. Standard

Pursuant to Federal Rule of Civil Procedure 56, summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

The party moving for summary judgment has the initial burden of showing the absence of a genuine issue of material fact. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Zoslaw v. MCA Distributing Corp., 693 F.2d 870, 883 (9th Cir.1982), cert. denied, 460 U.S. 1085, 103 S.Ct. 1777, 76 L.Ed.2d 349 (1983). Once the movant's burden is met by presenting evidence which, if uncontroverted, would entitle the movant to a directed verdict at trial, the burden then shifts to the respondent to set forth specific facts demonstrating that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). If the factual context makes the respondent's claim implausible, that party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986); California Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir.1987), cert. denied, 484 U.S. 1006, 108 S.Ct. 698, 699, 98 L.Ed.2d 650 (1988).

If the party seeking summary judgment meets this burden, then summary judgment will be granted unless there is significant probative evidence tending to support the opponent's legal theory. First Nat'l Bank v. Cities Service Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 1593, 20 L.Ed.2d 569 (1968), reh'g denied, 393 U.S. 901, 89 S.Ct. 63, 21 L.Ed.2d 188 (1968); Commodity Futures Trading Com. v. Savage, 611 F.2d 270 (9th Cir.1979). Parties seeking to defeat summary judgment cannot stand on their pleadings once the movant has submitted affidavits or other similar materials. Affidavits that do not affirmatively demonstrate personal knowledge are insufficient. British Airways Board v. Boeing Co., 585 F.2d 946, 952 (9th Cir.1978), cert. denied, 440 U.S. 981, 99 S.Ct. 1790, 60 L.Ed.2d 241 (1979), reh'g denied, 441 U.S. 968, 99 S.Ct. 2420, 60 L.Ed.2d 1074 (1979). Likewise, "legal memoranda and oral argument are not evidence and do not create issues of fact capable of defeating an otherwise valid motion for summary judgment." Id.

A material issue of fact is one that affects the outcome of the litigation and requires a trial to resolve the differing versions of the truth. See Admiralty Fund v. Hugh Johnson & Co., 677 F.2d 1301, 1305-06 (9th Cir. 1982); Admiralty Fund v. Jones, 677 F.2d 1289, 1293 (9th Cir.1982).

All facts and inferences drawn must be viewed in the light most favorable to the responding party when determining whether a genuine issue of material fact exists for summary judgment purposes. Poller v. CBS, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962). After drawing inferences favorable to the respondent, summary judgment will be granted only if all reasonable inferences defeat the respondent's claims. Admiralty Fund v. Tabor, 677 F.2d 1297, 1298 (9th Cir.1982).

The trilogy of Supreme Court cases cited above establishes that "summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp., 477 U.S. at 327, 106 S.Ct. at 2555 (quoting Fed.R.Civ.P. 1); see also Avia Group International, Inc. v. L.A. Gear California, Inc., 853 F.2d 1557, 1560 (Fed.Cir.1988).

B. Military and State Secrets Privilege

The military and state secrets privilege is a common law evidentiary privilege that allows the United States to withhold from discovery military secrets when disclosure would be harmful to national security. Bentzlin v. Hughes Aircraft Co., 833 F.Supp. 1486, 1495 (C.D.Cal.1993). The privilege is described in United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953).

The privilege belongs to the Government and must be asserted by it; it can neither be claimed nor waived by a private party. It 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.

United States v. Reynolds, 345 U.S. 1, 7-8, 73 S.Ct. 528, 532, 97 L.Ed. 727 (1953) ("Reynolds"). While "the term `military or state secrets' is amorphous in nature, it should be defined in the light of reason and experience, much in the same way that the term `national defense' has been defined ... i.e., a generic concept of broad connotations, referring to the military and naval establishments and the related activities of national preparedness." Jabara v. Kelley, 75 F.R.D. 475, 483 n. 25 (E.D.Mich.1977) (internal citations and quotations omitted). The privilege has been held to apply to "information that would result in impairment of the nation's defense capabilities, disclosure of intelligence-gathering methods or capabilities, and disruption of diplomatic relations with foreign governments, or where disclosure would be inimical to national security." Black v. United States, 62 F.3d 1115, 1118 (8th Cir. 1995) (internal citations and quotations omitted), petition for cert. filed, (Nov. 13, 1995).

To properly invoke the military and state secrets privilege, the head of the department which has control over the matter, after actual personal consideration, must formally claim the privilege. Reynolds, 345 U.S. at 7-8, 73 S.Ct. at 532; see also Frost v. Perry, 161 F.R.D. 434, 438 (D.Nev.1995) (citin...

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