In re Sealed Case

• Decision Date: 29 June 2007
• Docket Number: No. 04-5313.,04-5313.
• Citation: 494 F.3d 139
• Parties: In re SEALED CASE.
• Court: U.S. Court of Appeals — District of Columbia Circuit

494 F.3d 139

In re SEALED CASE.

No. 04-5313.

United States Court of Appeals, District of Columbia Circuit.

Argued December 14, 2006.

Decided June 29, 2007.

Unsealed July 20, 2007.

Appeal from the United States District Court for the District of Columbia (No. 94cv01756).

Brian C. Leighton argued the cause and filed the briefs for appellant.

H. Thomas Byron III, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Peter D. Keisler, Assistant Attorney General, Kenneth L. Wainstein, U.S. Attorney at the time the brief was filed, and Barbara L. Herwig and Douglas Letter, Attorneys.

Before ROGERS, BROWN and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

Concurring and dissenting opinion filed by Circuit Judge BROWN.

ROGERS, Circuit Judge:

In this appeal, the court must decide whether the state secrets privilege requires the dismissal of Richard A. Horn's complaint alleging the violation of his Fourth Amendment rights. We affirm the district court's determinations that the United States properly invoked the privilege and that the complaint must be dismissed against one of the defendants. However, we hold that Horn can establish a prima facie case without using the privileged information. Accordingly, we reverse the dismissal of his complaint against the remaining defendant and remand the case to the district court to consider whether Horn's case can proceed.

I.

According to the complaint, in 1993, Horn was stationed in Rangoon, Burma, as the country attaché for the United States Drug Enforcement Agency ("DEA"). He had a strained professional relationship with the State Department Chargé d'Affaires, Franklin "Pancho" Huddle, Jr., arising from the differing policy goals of their agencies, and he believed that Huddle was seeking information to justify Horn's transfer to another station outside of Burma. When Horn discovered that Huddle had sent a classified State Department cable allegedly transcribing a telephone call that Horn had made to a subordinate from his residence, he concluded that Huddle was engaging in electronic eavesdropping in violation of the Fourth Amendment.

In 1994, Horn filed a Bivens¹ action against Huddle and a second unnamed defendant ("Defendant II"), allegedly an employee of the Central Intelligence Agency ("CIA"), whose identity is classified. The United States intervened in 2000 and asserted the state secrets privilege with respect to portions of two internal investigations by agency inspectors general ("IG reports") that had been conducted in response to Horn's allegations. The district court sustained the claim of privilege. The government filed a classified motion to dismiss the complaint on November 7, 2000 and provided a redacted copy to Horn. Horn responded with a motion to proceed with discovery under the Classified Information Procedures Act ("CIPA"), 18 U.S.C. app. III, on November 13, 2000, deferring any response to the government's motion until the district court resolved his proposal to proceed under CIPA and his prior motion seeking security clearance for his attorney's secretaries.

Nearly four years later,² on July 28, 2004, the district court granted the government's motion to dismiss the complaint pursuant to FED.R.CIV.P. 12(b)(6) and dismissed Horn's outstanding motions as moot. The district court ruled that dismissal was required on three independent grounds: (1) the plaintiff cannot make out a prima facie case absent the protected material; (2) the state secrets privilege deprives the defendants of information required in their defense; and (3) the subject matter of the plaintiff's complaint is a state secret.

Horn appeals, and our review of the dismissal of his complaint is de novo. See, e.g., Broudy v. Mather, 460 F.3d 106, 116 (D.C.Cir.2006).

II.

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, 474 (D.C.Cir.), cert. denied sub nom. United States v. Albertson, 493 U.S. 960, 110 S.Ct. 398, 107 L.Ed.2d 365 (1989). It has "its initial roots in Aaron Burr's trial for treason, United States v. Burr, 25 F. Cas. 30 (C.C.D.Va.1807), and has its modern roots in United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953)." Id. at 474-75. In Reynolds, the Supreme Court held that because the Federal Tort Claims Act ("FTCA") subjects the United States to liability only insofar as Congress has consented, and because the FTCA expressly incorporates the Federal Rules of Civil Procedure, the United States may claim a privilege against discovery of military and state secrets, pursuant to FED. R.CIV.P. 34, through a formal request "lodged by the head of the department which has control over the matter, after actual personal consideration by that officer." 345 U.S. at 6-8, 73 S.Ct. 528 (footnote omitted). The Court observed that the "constitutional overtones" were "unnecessary to pass upon, there being a narrower [statutory] ground for decision." Id. at 6, 73 S.Ct. 528. In Reynolds, "[i]t [wa]s . . . apparent that the[ ] electronic devices [that were being tested in flight when the military airplane crashed and killed the plaintiffs' spouses] must be kept secret if their full military advantage is to be exploited in the national interests." Id. at 10, 73 S.Ct. 528. The Court remanded the case to proceed without the privileged materials, id. at 12, 73 S.Ct. 528, having noted that because the surviving crew members were available for examination, "it should be possible for [the plaintiffs] to adduce the essential facts as to causation without resort to material touching upon military secrets," id. at 11, 73 S.Ct. 528.

On appeal, Horn contends that the state secrets privilege may not be invoked in a Bivens action and, alternatively, that his case may proceed with non-privileged materials, including a declassified redacted cable and other circumstantial evidence suggesting that Huddle and Defendant II violated Horn's constitutional rights. We first address Horn's challenge to the application of the privilege in a Bivens action and his alternative contention that the United States did not properly invoke the privilege. Neither contention is persuasive.

A.

Unlike the plaintiffs in Reynolds, Horn does not rely upon the FTCA's limited waiver of sovereign immunity. As a result, he contends that the privilege is unavailable to the United States. Horn's complaint invokes Bivens, which provides that "damages may be obtained for injuries consequent upon a violation of the Fourth Amendment by federal officials" notwithstanding the lack of an explicit statutory cause of action, 403 U.S. at 395-97, 91 S.Ct. 1999. The district court ruled that it was "settled, indisputable law" that the Fourth Amendment protects American citizens abroad, see, e.g., United States v. Behety, 32 F.3d 503, 510-11 (11th Cir. 1994); United States v. Mount, 757 F.2d 1315, 1317-18 (D.C.Cir.1985), and the United States does not challenge that ruling on appeal.

The distinction pressed by Horn between constitutional claims and those based on statutory grounds means that Reynolds' holding on statutory grounds does not control. Nonetheless, it hardly follows that the privilege evaporates in the presence of an alleged constitutional violation. Horn identifies no legal authority to support this conclusion. Instead, the nature of the state secrets privilege compels the conclusion that the United States may claim the privilege as to evidence relevant to a constitutional claim. Even in constitutional cases, Congress "has plenary authority over the promulgation of evidentiary rules for the federal courts." Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 31, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976); see also Hawkins v. United States, 358 U.S. 74, 78, 79 S.Ct. 136, 3 L.Ed.2d 125 (1958); Tot v. United States, 319 U.S. 463, 467, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943). The federal rules of evidence provide that claims of privilege are to be "governed by the principles of the common law . . . in the light of reason and experience." FED. R.EVID. 501; see United States v. Green, 670 F.2d 1148, 1155 n. 10 (D.C.Cir.1981). In Reynolds, the Supreme Court made clear that "the privilege against revealing military secrets . . . is well established in the law of evidence." 345 U.S. at 6-7, 73 S.Ct. 528.

Although the rules of evidence must yield when they offend the constitutional trial rights of litigants, see Tot, 319 U.S. at 467, 63 S.Ct. 1241; FED.R.EVID. 501, Horn identifies no trial right that is being abridged. In Horn's view, it is the constitutional nature of his underlying claim that entitles him to escape the binds of the federal rules. We can find no support for this position, which would essentially allow any constitutional claim to repress any rule that withholds evidence for reasons other than relevance, see, e.g., FED.R.EVID. 403, 407, 411, 802. The federal rules are premised on a distinction between substantive claims and the evidence used to prove the claims. Cf. Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965). Although evidentiary matters are governed by the rules, they cannot modify litigants' substantive rights as to either constitutional or statutory matters. See 28 U.S.C. § 2072(b); cf. Webster v. Doe, 486 U.S. 592, 603-04, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988). Thus, so long as the state secrets privilege operates as a rule of evidence, see Zuckerbraun v. Gen. Dynamics Corp., 935 F.2d 544, 546 (2d Cir. 1991); In re United States, 872 F.2d at 474, and not as a means to modify Horn's substantive constitutional rights, we hold that it may be invoked by the United States in a Bivens action. See also El-Masri v. United States, 479 F.3d 296, 300 (4th Cir.), petition for cert. filed, 75 U.S.L.W. 3663 (U.S. May 30, 2007) (No. 06-1613); Black v. United States, 62 F.3d 1115,...