More on Mohamed v. Jeppesen Dataplan: overview of the dissent

September 8, 2010

* More on Mohamed v. Jeppesen Dataplan (9th Cir. Sep. 8, 2010) (overview of the dissent)

I posted earlier today about the two opinions combining to control the outcome in Jeppesen Dataplan, and am now writing with an overview of the five-vote dissent by Judge Hawkins (starting at p. 13558 of the slip opinion). The key points:

The dissent disagrees with the Judge Fisher opinion with respect to whether the state secrets privilege can be used as a basis for dismissal of a suit at the pleading stage, arguing that it instead should function only as a limit on the discoverability or admissibility of particular items of evidence. The dissent particularly objects to the Fisher opinion’s conclusion that further litigation inevitably will require exploration of protected information, arguing that it is not proper to make such an assumption at the pleading stage.

The proper role for the privilege at the pleading stage, Judge Hawkins argues, is simply to spare parties from the effect of Federal Rule of Civil Procedure 8(b)(6). Under Rule 8(b)(6), the failure to admit or deny an allegation in a pleading is treated as an admission of the alleged fact. Judge Hawkins notes that when this issue arises with the Fifth Amendment privilege against self-incrimination, the solution is to override Rule 8(b)(6) and thus permit the party not to admit or deny a particular allegation without adverse consequence. The same should be true here, he argues. (13566) On this view, the parties should file a responsive pleading addressing whichever allegations can be addressed, and invoking the privilege as to the rest. The case then would proceed to discovery, where the privilege might again be raised as needed. The dissent does not entirely concede that the privilege can be used in this Glomar-type fashion, however. In a footnote (n. 12 p. 13567), it asserts that it “is not at all clear that the Reynolds privilege can be asserted at the pleading stage”.

The dissent goes on to assert that the privilege attaches only to particular items of evidence, not to the underlying facts themselves. (13568) On that view, there is no sense in saying that the privilege can attach to the very subject matter of an action or that prospective developments in the case necessarily will require consideration of protected information.

Two other points worth noting. First, the dissent opens with the claim that the privilege “is a judicial construct without foundation in the Constitution.” (13559) Second, the dissent concludes by noting that its preferred course would be remand for the district court to determine whether plaintiffs would be able to “establish the prima facie elements of their claims or whether Jeppesen could defend against those claims without resort to state secrets evidence.” (13572)

Mohamed v. Jeppesen Dataplan (9th Cir. Sep. 8, 2010) (en banc)

September 8, 2010

Very sorry that the post came out illegible. You can find a legible version on the blog here: