IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 91-2432
LAWRENCE M. BAREFORD, Individually, ET AL., Plaintiffs-Appellants,
versus
GENERAL DYNAMICS CORPORATION, ET AL., Defendants-Appellees,
and
UNITED STATES OF AMERICA, Intervenor-Appellee.
Appeal from the United States District Court for the Southern District of Texas
( September 16, 1992 )
Before HIGGINBOTHAM and DUHÉ, Circuit Judges and HUNTER,* District Judge.
HIGGINBOTHAM, Circuit Judge:
We must grapple with the federal government's invocation of
the state secret doctrine to a manufacturing and design defect suit
against the manufacturer of a military weapons system. We are
persuaded that plaintiffs would be unable to prove their case
without classified information and that the very subject matter of
* Senior District Judge of the Western District of Louisiana, sitting by designation. the trial is a state secret. We affirm the district court's
dismissal.
I.
In 1987, during the Iraqi-Iranian War, an Iraqi F-1 Mirage
fighter fired two Exocet missiles at the U.S.S. Stark, an Oliver
Hazard Perry class frigate stationed in the Persian Gulf. The
attack killed 37 crewmen on the Stark, including 23 of the
plaintiffs' decedents in this case.
The Navy's official investigation concluded that there were
four principle causes of the missiles' successful penetration of
the Stark's defenses: (1) the failure of the Stark's commander to
recognize the threat posed by the F-1 Mirage fighter; (2) improper
watch manning and standing; (3) lack of proper weapon readiness;
and (4) failure of the Stark's commander to use radar to warn the
fighter to desist its attack. The United States has espoused the
sailors' and their families' claims for death and has received over
$27 million from Iraq to compensate families for deaths of sailors
which has been distributed to the families of the deceased crewmen.
Bareford and other plaintiffs filed this action against
several defense contractors including General Dynamics asserting
that the Phalanx weapons system was defectively manufactured and
designed, that General Dynamics and other contractors fraudulently
and deceptively concealed these defects, and that the sailors'
deaths or injuries were proximately caused by these defects.
The government intervened and filed a 12(b)(6) motion to
dismiss the complaint, on the grounds that (1) the plaintiffs'
2 claims had been espoused by the U.S. government; (2) the case
presented a non-justiciable political question; and (3) the subject
of the lawsuit was a "state secret" that was privileged under the
state secret doctrine. The contractors filed a similar motion.
In response to these motions, the plaintiffs filed voluminous
pleadings and exhibits, including 2,500 pages of affidavits and
other documents. A hearing was scheduled on February 14, 1991.
One day before the hearing, the government informed the plaintiffs'
counsel that it intended to make an in camera production of
additional documents. On the same day, government attorneys
conducted in camera production before the district court judge.
The documents included an affidavit by an admiral and the
unabridged version of the Navy Department's official investigation
of the Stark incident.
The district court granted the government's motion to dismiss.
The district court found that the plaintiffs' action was barred
under the state secret privilege, because the trial of the case
would require disclosure of classified information sensitive to
national security.
II.
The privilege for state secrets allows the government to
withhold information from discovery when disclosure would be
inimical to national security. Zuckerbraun v. General Dynamics
Corp., 935 F.2d 544, 546 (2d Cir. 1991); United States v. Reynolds,
345 U.S. 1 (1953). The privilege may be invoked by the head of a
governmental department with responsibility over the matter in
3 question, and the head of the department must give personal
consideration to the matter in question. United States v.
Reynolds, 345 U.S. 1, 7-8 (1953). A government department may
intervene in litigation to which it is not a party and assert the
privilege, thereby preventing either party in the litigation from
obtaining sensitive government information in discovery.
The effect of the privilege is generally to exclude the
privileged evidence from the case. Ellsberg v. Mitchell, 709 F.2d
51, 65 (D.C. Cir. 1983), cert. denied, 465 U.S. 1038 (1984). The
plaintiff's case then goes forward without the privileged
information and would be dismissed only if the remaining
information were insufficient to make out a prima facie case.
Halkin v. Helms, 690 F.2d 977, 998-99 (D.C. Cir. 1982). Some
courts, however, have held that the privilege can lead to the
dismissal of the plaintiffs' case in two other circumstances.
First, if the privilege deprives the defendant of information that
would otherwise give the defendant a valid defense to the claim,
then the court may grant summary judgment to the defendant. In Re
United States, 872 F.2d 472, 476 (D.C. Cir.), cert. denied sub nom.
United States v. Albertson, 493 U.S. 960 (1989); Molerio v. Federal
Bureau of Investigation, 749 F.2d 815, 825 (D.C. Cir. 1984).
Second, some courts have held that the court should dismiss if the
"very subject matter of the plaintiff's action is a state secret,"
even if the plaintiff has produced non-privileged evidence
sufficient to make out a prima facie case. Farnsworth Cannon, Inc.
v. Grimes, 635 F.2d 268, 274 (4th Cir. 1980) (en banc). The reason
4 for dismissal in these circumstances is that witnesses with
knowledge of secret information may divulge that information during
trial because the plaintiffs "would have every incentive to probe
as close to the core secrets as the trial judge would permit. Such
probing in open court would inevitably be revealing." Farnsworth
Cannon, 635 F.2d at 281; cf. Bowles v. United States, 950 F.2d 154,
156 (4th Cir. 1991) ("If the case cannot be tried without
compromising sensitive foreign policy secrets, the case must be
dismissed.").
A.
We turn first to the plaintiffs' ability to prove their case
without revealing state secrets. Although originally styled as a
motion to dismiss for failure to state a claim, we will treat the
defendants' motion as a motion for summary judgment because both
parties have produced and rely upon evidence outside the pleadings.
Plaintiffs contend that they can survive summary judgment pointing
to 2,500 pages of affidavits and documents, all assertedly in the
public domain. These documents include an affidavit of the former
captain of the U.S.S. Stark, two affidavits from former employees
of General Dynamics, and information contained in Congressional
reports and other published sources. The Secretary of the Navy
asserts no privilege for this evidence.1
There is a preliminary question of whether the government has
validly invoked the state secret doctrine. Bareford asserts that
1 The government maintains that security considerations prevent the Navy Department from either confirming or denying whether the offered evidence is classified information.
5 Secretary of the Navy H. Lawrence Garrett did not personally review
the plaintiffs' documents as required by Reynolds, 345 U.S. at 7-8.
We disagree. The government does not target documents produced by
the plaintiffs, but objects to the claim which by necessity would
rely upon highly sensitive information. Secretary Garrett states
in his affidavit that he personally considered the type of evidence
necessary to this claim.2 The Secretary's review was sufficient.
Plaintiffs have succeeded in producing considerable evidence,
and present a closer issue than Zuckerbraun v. General Dynamics
Corp., 935 F.2d 544 (2d Cir. 1991). In Zuckerbraun, the claims
were almost identical to the claims in this case to recover for the
death of a sailor in the Stark incident. The defendants responded
with an affidavit from the Navy Secretary identical to the
affidavit in this case, stating that the design and operation of
the Phalanx weapons system were highly classified and sensitive
matters and that disclosure of such information in litigation would
be "inimical to national security."
The Second Circuit affirmed the dismissal of Zuckerbraun's
claim. Judge Winter, writing for the panel, noted that the
plaintiffs' claims of manufacturing and design defects at a minimum
required proof of what the Phalanx weapons system is supposed to
do, whether it was used when the Stark was hit, and, if it was,
whether the failure of the system to work was the result of the
manufacturers' negligence. The panel noted that "[t]hese questions
2 A copy of Secretary Garrett's affidavit was published as an appendix to the opinion in Zuckerbraun v. General Dynamics Corp., 935 F.2d 544, 548-53 (2d Cir. 1991).
6 cannot be resolved or even put into dispute without access to data
regarding the design, manufacture, performance, functional
characteristics, and testing of these systems and the rules of
engagement under which the Stark was operating." Zuckerbraun, 935
F.2d at 547. Because this data was subject to the privilege, the
panel concluded that "there is no evidence available to the
appellant to establish a prima facie case." Zuckerbraun, 935 F.2d
at 548.
Plaintiffs distinguish Zuckerbraun on the basis that
Zuckerbraun apparently did not offer any non-privileged information
on which to build a case. As noted in Zuckerbraun, "appellant has
not designated any sources of reliable evidence on the factual
issues going to liability". Zuckerbraun, 935 F.2d at 548. By
contrast, the plaintiffs point to their 2,500 pages of evidence--
eleven Congressional reports, letters, media articles, and eight
declarations--that they contend establishes a prima facie case of
liability.
Bareford has come forward with substantial evidence from which
a judge or jury might find problems, or even wrongdoing, by General
Dynamics in its production and testing of the Phalanx system. That
alone will not establish a prima facie case. Its claim of
manufacturing and design defects requires proof of what the Phalanx
system was intended to do and the ways in which it fails to
accomplish these goals. This question cannot be resolved without
access to detailed data regarding "the design, manufacture,
performance, functional characteristics, and testing of these
7 systems." Zuckerbraun, 935 F.2d at 547. Such an analysis of the
capabilities of an advanced Navy frigate's defensive systems is the
type of judicial disclosure of state secrets the doctrine blocks.
Bareford has come forward with evidence of the intended
operation of the Phalanx system, but it is fairly described as
evidence of the system's general performance limits, not the
necessary detailed analysis of the system's intended performance in
the situation in which the Stark incident occurred. This is
certainly more than "dockside rumor," Zuckerbraun, 935 F.2d at 548,
but would nonetheless not prove that the Phalanx system was
intended to destroy the Iraqi missile in these circumstances, much
less to prove why it failed to do so. Plaintiffs have failed to
demonstrate that this evidence is available to them as unclassified
information. Accordingly, we conclude that dismissal was
appropriate.
B.
Defendants also urge that dismissal was appropriate because
the state secret privilege would deprive them of a valid defense.
The contractors contend that "privileged state secrets are
essential to the defense to plaintiffs' claim," because "resort to
classified information would be necessary even to cross-examine
plaintiffs' witnesses on the most basic points of their testimony."
Most courts that have discussed the state secret privilege
have adopted the position that, if privileged information would
establish a valid defense, then the court ought to dismiss the
plaintiffs' case. Zuckerbraun, 935 F.2d at 547; In re United
8 States, 872 F.2d at 481; Molerio v. F.B.I., 749 F.2d 815, 821 (D.C.
Cir. 1984); Ellsberg v. Mitchell, 709 F.2d 51, 65 (D.C. Cir. 1983).
This circuit has not yet ruled on the effect of the state secret
privilege on the availability of defenses and we decline to do so
here where it is unnecessary to resolve the case before us.
C.
Even if we found that Bareford had made out a prima facie case
with unprivileged information, we conclude that the state secret
doctrine would nonetheless bar the plaintiffs' action because any
further attempt by the plaintiffs to establish a prima facie case
would threaten disclosure of important state secrets. Farnsworth
Cannon, 635 F.2d at 281; see also Bowles v. United States, 950 F.2d
154, 156 (4th Cir. 1991) (holding case must be dismissed "where no
amount of effort or care will safeguard the privileged
information"). The state secret doctrine justifies dismissal when
privileged material is central "to the very question upon which a
decision must be rendered." Fitzgerald v. Penthouse International,
Ltd., 776 F.2d 1236, 1244 (4th Cir. 1985).
In Fitzgerald, for instance, the court affirmed the district
court's dismissal, even though the plaintiff intended to produce
only non-privileged information to support his case. Fitzgerald
was a former Navy contractor who had conducted experiments with
dolphins in order to design torpedoes. Penthouse magazine
published a story that, in part, alleged that Fitzgerald had
distributed brochures describing the experiments to countries
outside the United States and that these brochures contained
9 classified information. The plaintiff brought a libel action
against Penthouse, contending that the information in the brochures
was not classified.
To prove falsity, the plaintiff intended to call an official
from the Pentagon's Branch of Security Policy to testify that the
information was not classified. The Navy, however, intervened to
invoke the state secret privilege, stating that, although the
official's testimony would ostensibly be about non-classified
information, there was a considerable danger that classified
information would leak during cross-examination. The district
court dismissed the plaintiff's action, finding that "the very
subject of this litigation is a state secret." 776 F.2d at 1243.
The Fitzgerald court referred at length to the Secretary of
the Navy's affidavit in which the Secretary stated that, while some
uses of the marine mammal program were not classified, others were
highly classified. By calling experts to testify about non-
classified uses, the court saw a danger that "state secrets could
be compromised even without direct disclosure by a witness."
Fitzgerald, 776 F.2d at 1243. For instance,
if a witness is questions about facts A and B, the witness testifies that fact A is not a military secret, and the government objects to any answer regarding fact B, by implication one might assume that fact B is a military secret.
Id. at 1243 n.10.
In Farnsworth Cannon, the plaintiffs alleged that a Navy
Department employee, Grimes, had tortiously interfered with the
plaintiffs' contractual relations with the Navy Department by
10 cancelling the plaintiffs' contracts with the Department. The
plaintiffs did not request discovery from the government and the
subject of the litigation--the defendant's motivations in
cancelling some Navy contracts--seemed remote from the content of
the state secrets contained in the contracts themselves.
Nevertheless, the en banc court vacated the original panel opinion
and held that the case presented too great a risk of disclosure of
state secrets to go to trial.
Fitzgerald and Farnsworth Cannon recognize the practical
reality that in the course of litigation, classified and
unclassified information cannot always be separated. In some
cases, it is appropriate that the courts restrict the parties'
access not only to evidence which itself risks the disclosure of a
state secret, but also those pieces of evidence or areas of
questioning which press so closely upon highly sensitive material
that they create a high risk of inadvertent or indirect
disclosures. There is little question that the design and
limitations of the Phalanx weapons system are matters "which
reasonably could be seen as a threat to the military interests . .
. of the nation." Halkin v. Helms, 690 F.2d 977, 990 (D.C. Cir.
1982). As Judge Winters noted in Zuckerbraun, "the disclosure of
secret data and tactics concerning the weapons systems of the most
technically advanced and heavily relied upon of our nation's
warships may reasonably be viewed as inimical to national
security." 935 F.2d at 547.
11 Plaintiffs would present the testimony of former Navy Captain
Brindel, commanding officer on the Stark, and of former General
Dynamics employees. These witnesses have each had access to highly
sensitive data. They would be questioned about their knowledge of
the Phalanx's operation and defects. Perhaps some of this evidence
is unclassified, as plaintiffs contend, or is contained in
Congressional reports and other public sources. But the danger
that witnesses might divulge some privileged material during cross-
examination is great because the privileged and non-privileged
material are inextricably linked. We are compelled to conclude
that the trial of this case would inevitably lead to a significant
risk that highly sensitive information concerning this defense
system would be disclosed.
The government maintains that, even if the data is available
from non-secret sources, acknowledgement of this information by
government officers would still be damaging to the government,
because the acknowledgement would lend credibility to the
unofficial data. Fitzgibbon v. Central Intelligence Agency, 911
F.2d 755, 765-66 (D.C. Cir. 1990); Alfred A. Knopf, Inc. v. Colby,
509 F.2d 1362, 1370 (4th Cir.), cert. denied, 421 U.S. 908 (1975);
and Afshar v. Department of State, 702 F.2d 1125, 1130 (D.C. Cir.
1983). These cases stand for the proposition that disclosure of
information by government officials can be prejudicial to
government interests, even if the information has already been
divulged from non-government sources. Afshar, 702 F.2d at 1130
("Official acknowledgement by an authoritative source might well be
12 new information that could cause damage to national security").
This contention has a troubling sweep, but we do not rest upon it,
because we need not.
Plaintiffs argue that dismissal of their case was an overly
harsh remedy for the potential security risk posed by the trial of
this case. Dismissal is a harsh sanction. But the results are
harsh in either direction and the state secret doctrine finds the
greater public good--ultimately the less harsh remedy--to be
dismissal. Where "assertion of the privilege precludes access to
evidence necessary for the plaintiff to state a prima facie claim,
dismissal is appropriate." Zuckerbraun, 935 F.2d at 547. No
intermediate solution such as those proposed by plaintiffs, as ably
and creatively as their counsel has put it, can fully protect the
United States' interest in keeping its state secrets undisclosed.
III.
The district court dismissed the claims on the alternative
ground that they presented a non-justiciable political question
outside the competence of the federal courts. We affirm on other
grounds. We do not address this argument and express no opinion
about its applicability.
IV.
Bareford raises two due process objections to the procedures
of the district court. First, they argue that the district court
should have provided a transcript of the proceedings that occurred
during the ex parte, in camera proceeding. Second, the plaintiffs
13 argue that the district court should have given the plaintiffs more
notice of the ex parte, in camera hearing.
Bareford's counsel was notified of the government's intent to
produce more documents to the district court in camera on the same
day that the court began its in camera review of these documents.
Bareford contends that this does not constitute adequate notice for
the plaintiffs to make a timely objection to the in camera
proceeding. The government contends that this notice was
sufficient to allow the plaintiffs' counsel to raise objections to
the in camera proceeding on the following day, when the district
court conducted the hearing on the defendants' motion to dismiss.
The government should have provided notice to allow the plaintiffs
to object to the in camera proceeding before it occurred. United
States v. Hall, 854 F.2d 1036, 1042 (7th Cir. 1988) (party should
have notice of request for in camera review adequate to allow party
to respond to request). This error does not require reversal,
however, because Bareford's claim is dismissed without relying upon
the materials produced by the government in camera. Any error was
therefore harmless.
The district court did not provide a transcript of the in
camera proceeding. This court cannot review a proceeding of which
no record was made. United States v. Southard, 700 F.2d 1, 11-12
(1st Cir.), cert. denied sub nom. Ferris v. United States, 464 U.S.
823 (1983) (district court should make transcript of in camera
proceeding). For the reasons indicated above, however, any error
in the in camera hearing was harmless.
14 V.
Plaintiffs challenge on First Amendment grounds the district
court order to the parties not to communicate any information about
the litigation to anyone except essential legal staff. This
question is moot.
AFFIRMED.