United States v. Reynolds, No. 21

CourtUnited States Supreme Court
Writing for the CourtVINSON
Citation345 U.S. 1,73 S.Ct. 528,97 L.Ed. 727
PartiesUNITED STATES v. REYNOLDS et al
Decision Date09 March 1953
Docket NumberNo. 21

345 U.S. 1
73 S.Ct. 528
97 L.Ed. 727
UNITED STATES

v.

REYNOLDS et al.

No. 21.
Argued Oct. 21, 1952.
Decided March 9, 1953.

Page 2

Mr. Samuel D. Slade, Washington, D.C., for petitioner.

Mr. Charles J. Biddle, Philadelphia, Pa., for respondents.

Mr. Chief Justice VINSON delivered the opinion of the Court.

These suits under the Tort Claims Act1 arise from the death of three civilians in the crash of a B—29 aircraft at

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Waycross, Georgia, on October 6, 1948. Because an important question of the Government's privilege to resist discovery2 is involved, we granted certiorari. 343 U.S. 918, 72 S.Ct. 678, 96 L.Ed. 1332.

The aircraft had taken flight for the purpose of testing secret electronic equipment, with four civilian observers aboard. While aloft, fire broke out in one of the bomber's engines. Six of the nine crew members, and three of the four civilian observes were killed in the crash.

The widows of the three deceased civilian observers brought consolidated suits against the United States. In the pretrial stages the plaintiffs moved, under Rule 34 of the Federal Rules of Civil Procedure,3 for production of the Air Force's official accident investigation report and the statements of the three surviving crew members, taken in connection with the official investigation. The Government moved to quash the motion, claiming that these matters were privileged against disclosure pursuant

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to Air Force regulations promulgated under R.S. § 161.4 The District Judge sustained plaintiffs' motion, holding that good cause for production had been shown.5 The claim of privilege under R.S. § 161 was rejected on the premise that the Tort Claims Act, in making the Government liable 'in the same manner' as a private individual6 had waived any privilege based upon executive control over governmental documents.

Shortly after this decision, the District Court received a letter from the Secretary of the Air Force, stating that 'it has been determined that it would not be in the public interest to furnish this report. * * *' The court allowed a rehearing on its earlier order, and at the rehearing the Secretary of the Air Force filed a formal 'Claim of Privilege.' This document repeated the prior claim based generally on R.S. § 161, and then stated that the Government further objected to production of the documents 'for the reason that the aircraft in question, together with the personnel on board, were engaged in a highly secret mission of the Air Force.' An affidavit of the Judge Advocate General, United States Air Force, was also filed

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with the court, which asserted that the demanded material could not be furnished 'without seriously hampering national security, flying safety and the development of highly technical and secret military equipment.' The same affidavit offered to produce the three surviving crew members, without cost, for examination by the plaintiffs. The witnesses would be allowed to refresh their memories from any statement made by them to the Air Force, and authorized to testify as to all matters except those of a 'classified nature.'

The District Court ordered the Government to produce the documents in order that the court might determine whether they contained privileged matter. The Government declined, so the court entered an order, under Rule 37(b)(2)(i), 7 that the facts on the issue of negligence would be taken as established in plaintiffs' favor. After a hearing to determine damages, final judgment was entered for the plaintiffs. The Court of Appeals affirmed,8 both as to the showing of good cause for production of the documents, and as to the ultimate disposition of the case as a consequence of the Government's refusal to produce the documents.

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We have had broad propositions pressed upon us for decision. On behalf of the Government it has been urged that the executive department heads have power to withhold any documents in their custody from judicial view if they deem it to be in the public interest.9 Respondents have asserted that the executive's power to withhold documents was waived by the Tort Claims Act. Both positions have constitutional overtones which we find it unnecessary to pass upon, there being a narrower ground for decision. Touhy v. Ragen, 1951, 340 U.S. 462, 71 S.Ct. 416, 95 L.Ed. 417; Rescue Army v. Municipal Court of Los Angeles, 1947, 331 U.S. 549, 574—585, 67 S.Ct. 1409, 1422—1427, 91 L.Ed. 1666.

The Tort Claims Act expressly makes the Federal Rules of Civil Procedure applicable to suits against the United States.10 The judgment in this case imposed liability upon the Government by operation of Rule 37, for refusal to produce documents under Rule 34. Since Rule 34 compels production only of matters 'not privileged,' the essential question is whether there was a valid claim of privilege under the Rule. We hold that there was, and that, therefore, the judgment below subjected the United States to liability on terms to which Congress did not consent by the Tort Claims Act.

We think it should be clear that the term 'not privileged' as used in Rule 34, refers to 'privileges' as that term is understood in the law of evidence. When the Secretary of the Air Force lodged his formal 'Claim of Privilege,' he attempted therein to invoke the privilege against revealing military secrets, a privilege which is well

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established in the law of evidence.11 The existence of the privilege is conceded by the court below,12 and, indeed, by the most outspoken critics of governmental claims to privilege.13

Judicial experience with the privilege which protects military and state secrets has been limited in this country.14 English experience has been more extensive, but still relatively slight compared with other evidentiary privileges.15 Nevertheless, the principles which control the application of the privilege emerge quite clearly from the available precedents. The privilege belongs to the Government and must be asserted by it; it can neither be claimed16 nor waived17 by a private party. It is not to be lightly invoked.18 There must be formal claim

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of privilege, lodged by the head of the department which has control over the matter,19 after actual personal consideration by that officer.20 The court itself must determine whether the circumstances are appropriate for the claim of privilege,21 and yet do so without forcing a disclosure of the very thing the privilege is designed to protect.22 The latter requirement is the only one which presents real difficulty. As to it, we find it helpful to draw upon judicial experience in dealing with an analogous privilege, the privilege against self-incrimination.

The privilege against self-incrimination presented the courts with a similar sort of problem. Too much judicial inquiry into the claim of privilege would force disclosure of the thing the privilege was meant to protect, while a complete abandonment of judicial control would lead to intolerable abuses. Indeed, in the earlier stages

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of judicial experience with the problem, both extremes were advocated, some saying that the bare assertion by the witness must be taken as conclusive, and others saying that the witness should be required to reveal the matter behind his claim of privilege to the judge for verification.23 Neither extreme prevailed, and a sound formula of compromise was developed. This formula received authoritative expression in this country as early as the Burr trial.24 There are differences in phraseology, but in substance it is agreed that the court must be satisfied from all the evidence and circumstances, and 'from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.' Hoffman v. United States, 1951, 341 U.S. 479, 486—487, 71...

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596 practice notes
  • Wilson v. C.I.A., Docket No. 07-4244-cv.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • November 12, 2009
    ...the interest of national security, should not be divulged.'" Doe v. CIA, 576 F.3d 95, 103 (2d Cir.2009) (quoting United States v. Reynolds, 345 U.S. 1, 10, 73 S.Ct. 528, 97 L.Ed. 727 18. We reject on similar grounds plaintiffs' contention — raised for the first time on rebuttal at oral argu......
  • Karnoski v. Trump, No. 18-35347
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 14, 2019
    ...in Cheney , that:[e]xecutive privilege is an extraordinary assertion of power "not to be lightly invoked." United States v. Reynolds , 345 U.S. 1, 7 [73 S.Ct. 528, 97 L.Ed. 727] (1953). Once executive privilege is asserted, coequal branches of the Government are set on a collision course. T......
  • Spock v. United States, No. 76 Civ. 4457 (VLB).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • December 18, 1978
    ...the one hand, as plaintiff correctly points out, the states secrets privilege is only an evidentiary privilege, United States v. Reynolds, 345 U.S. 1, 6-7, 73 S.Ct. 528, 97 L.Ed. 727 (1953), which privilege should be "construed narrowly, to permit the broadest possible discovery consistent ......
  • Attorney General of U.S., In re, Nos. 239
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • March 19, 1979
    ...97 S.Ct. 837, 51 L.Ed.2d 30 (1977); Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); United States v. Reynolds, 345 U.S. 1, 12, 73 S.Ct. 528, 97 L.Ed. 727 4 The complaint also names a former Attorney General in his personal capacity. 5 The opinion in Nixon clearly ......
  • Request a trial to view additional results
597 cases
  • Wilson v. C.I.A., Docket No. 07-4244-cv.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • November 12, 2009
    ...the interest of national security, should not be divulged.'" Doe v. CIA, 576 F.3d 95, 103 (2d Cir.2009) (quoting United States v. Reynolds, 345 U.S. 1, 10, 73 S.Ct. 528, 97 L.Ed. 727 18. We reject on similar grounds plaintiffs' contention — raised for the first time on rebuttal at oral argu......
  • Karnoski v. Trump, No. 18-35347
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 14, 2019
    ...in Cheney , that:[e]xecutive privilege is an extraordinary assertion of power "not to be lightly invoked." United States v. Reynolds , 345 U.S. 1, 7 [73 S.Ct. 528, 97 L.Ed. 727] (1953). Once executive privilege is asserted, coequal branches of the Government are set on a collision course. T......
  • Spock v. United States, No. 76 Civ. 4457 (VLB).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • December 18, 1978
    ...the one hand, as plaintiff correctly points out, the states secrets privilege is only an evidentiary privilege, United States v. Reynolds, 345 U.S. 1, 6-7, 73 S.Ct. 528, 97 L.Ed. 727 (1953), which privilege should be "construed narrowly, to permit the broadest possible discovery consistent ......
  • Attorney General of U.S., In re, Nos. 239
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • March 19, 1979
    ...97 S.Ct. 837, 51 L.Ed.2d 30 (1977); Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); United States v. Reynolds, 345 U.S. 1, 12, 73 S.Ct. 528, 97 L.Ed. 727 4 The complaint also names a former Attorney General in his personal capacity. 5 The opinion in Nixon clearly ......
  • Request a trial to view additional results
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