Machin v. Zuckert

• Decision Date: 17 January 1963
• Docket Number: No. 16732.,16732.
• Citation: 316 F.2d 336
• Parties: Jack S. MACHIN, Appellant, v. Eugene M. ZUCKERT, Secretary of the Air Force, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

316 F.2d 336 (1963)

Jack S. MACHIN, Appellant, v. Eugene M. ZUCKERT, Secretary of the Air Force, Appellee.

No. 16732.

United States Court of Appeals District of Columbia Circuit.

Argued September 13, 1962.

Decided January 17, 1963.

Supplemental Opinion March 9, 1963.

Petition for Rehearing Denied May 13, 1963.

Mr. Harry S. Wender, Washington, D. C., with whom Mr. Jules Fink, Washington, D. C., was on the brief, for appellant.

Miss Kathryn H. Baldwin, Atty., Dept. of Justice, of the bar of the Supreme Court of Wisconsin, pro hac vice, by special leave of court, with whom Asst. Atty. Gen., William H. Orrick, Jr., and Messrs. David C. Acheson, U. S. Atty., and John G. Laughlin, Jr., Atty., Dept. of Justice, were on the brief, for appellee. Mr. Jerry C. Straus, Atty., Dept. of Justice, also entered an appearance for appellee.

Before WASHINGTON, DANAHER and BURGER, Circuit Judges.

Petition for Rehearing En Banc Denied En Banc May 13, 1963.

WASHINGTON, Circuit Judge.

In this case appellant seeks the production of certain reports in the files of the Department of the Air Force, concerning an aircraft accident in which appellant was badly injured. The Secretary of the Air Force has asserted a claim of privilege. The present appeal is from an order of the United States District Court for the District of Columbia quashing a subpoena served on the Secretary.

The facts are set out in an opinion filed by Judge Matthews of the District Court on April 25, 1961. In re Zuckert, 28 F.R.D. 29. It is enough to say here that on May 17, 1956, a B-25 bomber of the United States Air Force took off from Lowry Air Force Base, Denver, Colorado. Shortly after take off, one of the pilots reported an overspeeding propeller. An attempt was made to return to base, but the aircraft crashed. Appellant Machin, one of the crew members, was the only survivor. After a period of hospitalization, he brought an action in the United States District Court for the Southern District of New York against United Aircraft Corporation, the manufacturer of the propeller assemblies, on the theory that the right propeller overspeeded and then failed to feather properly, this being his recollection of how the accident occurred. He then attempted to obtain the Aircraft Accident Investigative Report prepared by the Air Force immediately after the accident. He was permitted to see the report briefly but not to copy it or make notes from it.¹ Appellant thereafter demanded a copy of the report, by letter addressed to the then Secretary of the Air Force. On August 1, 1958, the Secretary's office declined to release the report, but offered to provide a list of names of witnesses who had testified before the Accident Investigation Board and enclosed a "releasable summary" of the report. Further negotiations followed. Plaintiff was not satisfied, and finally decided to subpoena the Secretary. A subpoena was issued in the New York action on December 13, 1960, and was served on the Secretary of the Air Force on or about January 28, 1961. The Secretary thereupon moved in the District Court for the District of Columbia that the subpoena be quashed. The motion was denied by Judge Matthews, for the reasons given in the above cited opinion. Judge Matthews pointed out that "no claim of privilege has been asserted or is being decided."

Judge Matthews' order refusing to quash the subpoena was filed on May 18, 1961. On May 23 the Secretary of the Air Force filed a formal claim of privilege and moved to vacate the order of May 18. On May 26 Judge Matthews ordered that the Secretary's motion be denied "insofar as it seeks to vacate the order of May 18, 1961," but without prejudice "to the consideration and determination of so much of the motion of May 23, 1961 as seeks to quash the subpoena on the new grounds therein asserted." Thereafter, the matter came before District Judge Walsh, who, after considering "the claim of privilege submitted by the Secretary and the memoranda and affidavits submitted in support of and in opposition to the motion" ordered that the motion to quash be granted. This appeal followed.

After hearing argument, we issued the following order to show cause:

"It appearing to the court that in United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 the United States offered to produce certain witnesses and to authorize them to testify `regarding all matters relating to the accident except as to facts and matters of a classified nature,\' and to allow them `to refresh their memories by reference to any statements made by them before Aircraft Accident Investigating Boards or Investigating Officers, as well as other pertinent and material records that are in the possession of the United States Air Force,\' see Record in the Supreme Court in that case at page 27; and it further appearing that an equivalent offer has not been made to appellant Machin; it is hereby

"ORDERED by the court that the appellee Eugene Zuckert, Secretary of the Air Force, show cause within twenty days why a similar offer should not be made to appellant Machin, namely, why appellant should not be permitted to examine by deposition any desired witnesses from the list appearing on page 41 of the Joint Appendix herein, and why the appellee should not permit any or all of such witnesses to testify as to all matters relating to the cause of the accident here involved except as to facts and matters of a classified nature, and why such witnesses should not be permitted and authorized to refresh their memories by reference to any statements made by them before Aircraft Accident Investigating Boards or Investigating Officers, as well as other pertinent and material records that are in the possession of the United States Air Force.

"Within 10 days after the service of appellee\'s answer the appellant may serve and file a reply. The answer and reply may be filed in typewritten or mimeographed form, and an original and six copies of each shall be submitted for filing."

The Secretary's response offered to appellant the relief described in our order. He later offered, in addition, to supply appellant with copies of some 34 photographs of the wrecked plane and its parts, from the files of the Air Force. Appellant strenuously urges that these measures of relief are not adequate. He insists that he be shown the investigative report, and in fact the entire Air Force file on the matter.

It is clear from the record before us that the Secretary's "Claim of Executive Privilege" was not an assertion of personal immunity from the judicial mandate embodied in the subpoena, but rather was an attempt to assert the privileged status of the documents in the Secretary's possession.² The Secretary stated:

"I have concluded that the production of the documents called for by the subpoena would prejudice the efficient operation of the Department of the Air Force and the defense interests of the United States, would be contrary to the public interest, and hence would not be warranted. Accordingly, pursuant to the authority vested in me as Secretary of the Department of the Air Force, I assert the privileged status of the reports called for by the subpoena of February 1, 1961, and must respectfully decline their production. * * *"

Certain affidavits filed by the Government in the course of the proceedings below, especially a statement by the Inspector General of the Air Force, indicated with somewhat more specificity the manner in which it is believed that disclosure will be harmful to the public interest. According to the Inspector General, the Air Force's flight safety program, a major aspect of which is the investigation of accidents, has contributed greatly to a continuously decreasing rate of accidents involving Air Force planes and personnel. The success of the program depends in large part on the ability of the investigators to get full information on the cause of any accident. Lacking the power to compel testimony, the investigators encourage frank and full cooperation by means of promises that witnesses' testimony will be used solely for the purposes of flight safety and will not be revealed to persons outside the Air...