Linder v. Department of Defense
| Decision Date | 16 January 1998 |
| Docket Number | 97-5034,Nos. 97-5033,97-5035 and 97-5226,s. 97-5033 |
| Citation | 133 F.3d 17 |
| Parties | , 39 Fed.R.Serv.3d 867 David LINDER, Appellant, v. DEPARTMENT OF DEFENSE, et al., Appellees. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Gabor Rona argued the cause for appellant. With him on the briefs were Jennifer M. Green, Beth Stephens, Michael Ratner and Jules Lobel.
John D. Bates, Assistant U.S. Attorney, Washington, DC, argued the cause for appellees. With him on the brief were Mary Lou Leary, U.S. Attorney, R. Craig Lawrence, W. Mark Nebeker, and Kimberly N. Brown, Assistant U.S. Attorneys.
Before: HENDERSON, RANDOLPH and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
The father of an American development worker tortured and killed by Nicaraguan contra soldiers appeals the district court's refusal to expand the scope of third-party subpoenas duces tecum issued to the Federal Bureau of Investigation, the Central Intelligence Agency, the Department of Defense, and the State Department, as well as its refusal to order those agencies to provide additional information about their withholding of certain documents under claims of privilege, including the state secrets privilege. Because the district court has yet to issue final orders with respect to the State and Defense Departments' subpoenas, we dismiss those appeals. We affirm the district court's ruling that the CIA properly invoked its statutory privileges. Finding that the district court failed to make the relevance determination required by Rule 26 of the Federal Rules of Civil Procedure, we reverse its order as to the scope of the CIA and FBI subpoenas.
After graduating from college in 1983, Benjamin Linder, a U.S. citizen and mechanical engineer, moved to Nicaragua to help bring electricity to the country's rural, undeveloped areas. Assisting in the building of dams and hydroelectric plants in the El Cua-San Jose de Bocay region, Linder began work on the construction of a weir, a small dam to measure water flow. On April 28, 1987, shortly after Linder and six other men arrived at the half-built dam, a Nicaraguan Democratic Force ("FDN") patrol, which had been waiting for Linder and his co-workers since early morning, attacked them with grenades and machine guns. Initially immobilized by non-fatal wounds to his legs and arms and stabbed thirty to forty times in his face, Linder died when a contra soldier shot him in the temple from less than two feet.
Seeking compensatory and punitive damages, Linder's parents and siblings filed a wrongful death action in the U.S. District Court for the Southern District of Florida against three contra organizations operating out of southern Florida--the United Nicaraguan Opposition and the Nicaraguan Resistance, in addition to the FDN--and four of their leaders, Adolfo Calero Portocarrero, Enrique Bermudez Varela, Aristides Sanchez Herdocia, and Indalecio Rodriguez Alaniz. Concluding that the Linders' action presented nonjusticiable political questions, the district court dismissed the complaint. Linder v. Calero Portocarrero, 747 F.Supp. 1452, 1457 (S.D.Fla.1990). Although affirming the dismissal with respect to the three organizational defendants, the Eleventh Circuit directed the case to proceed against the four individuals as a tort action under Florida law. Linder v. Portocarrero, 963 F.2d 332, 337 (11th Cir.1992).
In their complaint, the Linders plead three alternative theories of liability. The first seeks to prove defendants' direct involvement in the torture and murder of Linder:
Defendant Bermudez, and upon information and belief, defendants Calero, Sanchez, and Rodriguez, as members of the civilian-military command, ordered, authorized, approved, directed and ratified the attack on the Cua-Bocay development project, and ordered, authorized, approved, directed, and ratified the murder of Benjamin Linder and two others, on April 28, 1987.
Third Am. Compl. p 39(a). Alleging that defendants participated in a conspiracy to murder, the second and third theories rely, in contrast, on circumstantial evidence of the nature, policies, and practices of the contra organizations, as well as defendants' roles in them. Under the second theory, the Linders seek to prove that defendants were the leaders of the contra organizations; that in those hierarchical organizations, soldiers in the field obeyed orders from their leaders; that the organizations, as a matter of policy established or approved by their leaders, tortured and killed foreign development workers and prisoners of war; and that Linder's torture and killing resulted directly from those policies. Id. p 39(b). The third theory alleges that defendants led the hierarchical organizations; that defendants knew that the FDN tortured and executed defenseless and wounded individuals; that defendants failed to stop such practices, thus placing their imprimatur on them; and that Linder's killing resulted from those practices. Id. p 39(c). Of significance to one of the issues before us--the scope of the subpoenas--the district court and the Eleventh Circuit approved the inclusion in the complaint of all three theories. See Order Den. in Part and Granting in Part Defs.' Mot. to Strike Second Am. Compl. and Granting Pls.' Mot. for Att'y's Fees at 5; Linder, 963 F.2d at 336-37.
Failing to obtain relevant documents from the two surviving defendants (Calero and Rodriguez), the Linders served third-party subpoenas duces tecum on the FBI, CIA, Defense and State Departments, and two other federal agencies, the National Security Agency and the Immigration and Naturalization Service. Each subpoena requested an extensive list of documents relating to Benjamin Linder, the April 28 attack, other similar attacks in the area, defendants' role in orchestrating such attacks, and the structure, organization, finances, policies, and practices of the three contra organizations. When the agencies refused to comply, claiming both burden and privilege, the Linders filed separate motions to compel against each agency in the U.S. District Court for the District of Columbia. The district court quashed the NSA subpoena, agreeing with the agency that the Linders' request was unduly burdensome, Linder v. Calero-Portocarrero, Misc. No. 94-148, 1995 WL 901765 (D.D.C.1995), aff'd sub nom. Linder v. NSA, 94 F.3d 693 (D.C.Cir.1996), and denied the motion to compel against the INS because that agency had already complied, Linder v. Calero-Portocarrero, Misc. No. 94-151 (D.D.C. Dec. 12, 1994). In an August 2, 1994, memorandum order, the district court agreed with the other agencies that the subpoenas imposed substantial burdens, denied the motions to compel, and ordered the parties to meet and explore modifying the subpoenas.
Unable to reach agreement, the parties submitted separate proposals. Slightly narrowing the range of their request, the Linders demanded documents concerning the attack in which Linder was killed and defendants' role in it, as well as documents containing general information about the contra organizations' structures and human rights policies and practices. The agencies proposed limiting the search to information about Benjamin Linder, the April 28 attack, another attack on a nearby hydroelectric plant, the El Cua-San Jose de Bocay region generally, and the four individual defendants. In a December 12, 1994, order, the district court adopted the agencies' proposal, specifically excluding from the scope of the searches general information on the contra organizations' structures, policies, and practices.
During the next eight months, the agencies furnished the Linders with a number of documents responsive to the modified subpoenas. Claiming privilege, the agencies redacted some documents while completely withholding others.
Arguing that the agencies submitted insufficient information about the withheld documents and their claims of privilege, the Linders filed a "motion for further relief," asking the district court to order Vaughn indices and to review the documents in camera. Their motion for further relief also asked the court to expand the scope of the searches, claiming that the modified subpoenas failed to produce certain relevant information such as documents concerning contra policies towards civilians, foreigners, and other non-military targets. In opposition, the agencies filed declarations describing their compliance with the modified subpoenas, their reasons for withholding information, and their estimates of the time and effort the additional searches would require.
On December 6, 1996, the district court denied in full the Linders' motion for further relief against the FBI and the State and Defense Departments and granted in part and denied in part the motion with respect to the CIA. Rejecting the Linders' request for in camera review as both excessive and unnecessary and examining each invocation of privilege, the court found that, except for two claims by the CIA, the claims fell within legitimate exemption categories under the Freedom of Information Act, 5 U.S.C. § 552 (1994 & Supp.1996). Finding that the CIA's Directorate of Operations failed to describe or define seven documents that it completely withheld, and that its Directorate of Science and Technology failed to describe the content, general nature, creators, or copyright owners of three videotapes it withheld as well as the applicable copyright laws, the district court ordered the agency to submit more detailed documentation. As to the Linders' request for an expanded search, the district court applied FOIA analysis, finding that the agencies had made "reasonable" searches for the documents specified under the modified subpoena and that "the agencies cannot be compelled to execute additional searches simply because plaintiffs are unsatisfied with the results." The court also pointed out that...
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