Tenenbaum v. Simonini

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Tenenbaum, et al. v. Simonini, et al. No. 02-2297
ELECTRONIC CITATION: 2004 FED App. 0183P (6th Cir.)
File Name: 04a0183p.06 Decided and Filed: May 19, 2004*

Before: BATCHELDER, GIBBONS, and COOK, Circuit
UNITED STATES COURT OF APPEALS Judges.
FOR THE SIXTH CIRCUIT _________________
_________________
COUNSEL
DAVID AARON TENENBAUM; X
ARGUED: Jason R. Hirsch, MORGANROTH &
MADELINE GAIL TENENBAUM, - MORGANROTH, Southfield, Michigan, for Appellants.
Plaintiffs-Appellants, - Peter A. Caplan, ASSISTANT UNITED STATES
- No. 02-2297
- ATTORNEY, Detroit, Michigan, for Appellees. ON BRIEF:
v. > Mayer Morganroth, Jeffrey B. Morganroth, Daniel E. Harold,
, MORGANROTH & MORGANROTH, Southfield, Michigan,
- for Appellants. Peter A. Caplan, ASSISTANT UNITED
JOHN SIMONINI, Lt. Col.; - STATES ATTORNEY, Detroit, Michigan, for Appellees.
ALBERT D. SNYDER ; MARK P. -
YOURCHOCK ; ROBERT M. - _________________
RILEY, Individually and in -
- OPINION
their Representative
- _________________
Capacities as Employees for -
the Various Federal Agencies - COOK, Circuit Judge. Plaintiffs-Appellants David
that Employ Them; and the - Tenenbaum and his wife sued various federal agency
UNITED STATES OF AMERICA , - employees and the United States, alleging that Defendants
Defendants-Appellees. - conducted a criminal espionage investigation of Tenenbaum
- solely because he is Jewish. The district court granted
N Defendants’ summary judgment motion, accepting their
Appeal from the United States District Court argument that they could not defend themselves against
for the Eastern District of Michigan at Detroit. Tenenbaum’s claims without disclosing information protected
No. 98-74473—Robert H. Cleland, District Judge. by the state secrets doctrine. The Tenenbaums challenge the
summary judgment ruling, contending that (1) disclosure of
Argued: February 6, 2004 the privileged material is not critical to defending against
their religious discrimination case, and (2) the district court

*
This decision was originally issued as an “unpublished opinion”
filed on M ay 19, 2004. On June 4, 2004, the court designated the opinion
as one recommend ed for full-text publication.

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should have allowed the case to proceed by employing law itself regards as confidential, and respecting which it will
evidentiary controls to protect the privileged material. We not allow the confidence to be violated.”); Weston v.
affirm. Lockheed Missiles & Space, Co., 881 F.2d 814, 816 (9th Cir.
1989) (recognizing that the state secrets doctrine alone can be
We review the district court’s grant of summary judgment the basis for dismissal of an entire case); Molerio v. FBI, 749
de novo, Stephenson v. Allstate Ins. Co., 328 F.3d 822, 826 F.2d 815, 825 (D.C. Cir. 1984) (stating that if the state secrets
(6th Cir. 2003), while according the government’s assertion privilege so hampers the defendant in establishing a valid
of the state secrets doctrine considerable deference, Ellsberg defense that the trier of fact is likely to reach an erroneous
v. Mitchell, 709 F.2d 51, 58 (D.C. Cir. 1983). conclusion, dismissal is appropriate).
Having reviewed the materials Defendants produced under We therefore affirm the district court’s grant of summary
seal, we agree with the district court that the state secrets judgment in favor of Defendants.
doctrine applies because a reasonable danger exists that
disclosing the information in court proceedings would harm
national security interests, or would impair national defense
capabilities, disclose intelligence-gathering methods or
capabilities, or disrupt diplomatic relations with foreign
governments. Ellsberg, 709 F.2d at 56-57; United States v.
Reynolds, 345 U.S. 1, 10 (1953) (holding that courts may
accept the government’s assertion of the state secrets
privilege if they are satisfied that there is a “reasonable
danger” that disclosing the evidence will expose information
that “in the interest of national security, should not be
divulged.”).
We further conclude that Defendants cannot defend their
conduct with respect to Tenenbaum without revealing the
privileged information. Because the state secrets doctrine
thus deprives Defendants of a valid defense to the
Tenenbaums’ claims, we find that the district court properly
dismissed the claims. Kasza v. Browner, 133 F.3d 1159,
1166 (9th Cir. 1998) (“[I]f 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.” (citation and
internal quotation marks omitted)); see also Totten v. United
States, 92 U.S. 105, 107 (1875) (“[P]ublic policy forbids the
maintenance of any suit in a court of justice, the trial of which
would inevitably lead to the disclosure of matters which the