United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 9, 1997 Decided January 16, 1998
No. 97-5033
David Linder,
Appellant
v.
Department of Defense, et al.,
Appellees
__________
Consolidated with
Nos. 97-5034, 97-5035, 97-5226
________
Appeals from the United States District Court
for the District of Columbia
(No. 94ms00146)
(No. 94ms00147)
(No. 94ms00149)
(No. 94ms00150)
________
Gabor Rona argued the cause for appellant. With him on
the briefs were Jennifer M. Green, Beth Stephens, Michael
Ratner and Jules Lobel.
John D. Bates, Assistant U.S. Attorney, argued the cause
for appellees. With him on the brief were Mary Lou Leary,
U.S. Attorney, R. Craig Lawrence, W. Mark Nebeker, and
Kimberly N. Brown, Assistant U.S. Attorneys.
Before: Henderson, Randolph and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Tatel.
Tatel, Circuit Judge: The father of an American develop-
ment worker tortured and killed by Nicaraguan contra sol-
diers appeals the district court's refusal to expand the scope
of third-party subpoenas duces tecum issued to the Federal
Bureau of Investigation, the Central Intelligence Agency, the
Department of Defense, and the State Department, as well as
its refusal to order those agencies to provide additional
information about their withholding of certain documents
under claims of privilege, including the state secrets privilege.
Because the district court has yet to issue final orders with
respect to the State and Defense Departments' subpoenas, we
dismiss those appeals. We affirm the district court's ruling
that the CIA properly invoked its statutory privileges. Find-
ing that the district court failed to make the relevance
determination required by Rule 26 of the Federal Rules of
Civil Procedure, we reverse its order as to the scope of the
CIA and FBI subpoenas.
I
After graduating from college in 1983, Benjamin Linder, a
U.S. citizen and mechanical engineer, moved to Nicaragua to
help bring electricity to the country's rural, undeveloped
areas. Assisting in the building of dams and hydroelectric
plants in the El Cua-San Jose de Bocay region, Linder began
work on the construction of a weir, a small dam to measure
water flow. On April 28, 1987, shortly after Linder and six
other men arrived at the half-built dam, a Nicaraguan Demo-
cratic Force ("FDN") patrol, which had been waiting for
Linder and his co-workers since early morning, attacked
them with grenades and machine guns. Initially immobilized
by non-fatal wounds to his legs and arms and stabbed thirty
to forty times in his face, Linder died when a contra soldier
shot him in the temple from less than two feet.
Seeking compensatory and punitive damages, Linder's par-
ents and siblings filed a wrongful death action in the U.S.
District Court for the Southern District of Florida against
three contra organizations operating out of southern Flori-
da--the United Nicaraguan Opposition and the Nicaraguan
Resistance, in addition to the FDN--and four of their leaders,
Adolfo Calero Portocarrero, Enrique Bermudez Varela, Aris-
tides Sanchez Herdocia, and Indalecio Rodriguez Alaniz.
Concluding that the Linders' action presented nonjusticiable
political questions, the district court dismissed the complaint.
Linder v. Calero Portocarrero, 747 F. Supp. 1452, 1457 (S.D.
Fla. 1990). Although affirming the dismissal with respect to
the three organizational defendants, the Eleventh Circuit
directed the case to proceed against the four individuals as a
tort action under Florida law. Linder v. Portocarrero, 963
F.2d 332, 337 (11th Cir. 1992).
In their complaint, the Linders plead three alternative
theories of liability. The first seeks to prove defendants'
direct involvement in the torture and murder of Linder:
Defendant Bermudez, and upon information and belief,
defendants Calero, Sanchez, and Rodriguez, as members
of the civilian-military command, ordered, authorized,
approved, directed and ratified the attack on the Cua-
Bocay development project, and ordered, authorized, ap-
proved, directed, and ratified the murder of Benjamin
Linder and two others, on April 28, 1987.
Third Am. Compl. p 39(a). Alleging that defendants partici-
pated in a conspiracy to murder, the second and third theo-
ries rely, in contrast, on circumstantial evidence of the nature,
policies, and practices of the contra organizations, as well as
defendants' roles in them. Under the second theory, the
Linders seek to prove that defendants were the leaders of the
contra organizations; that in those hierarchical organizations,
soldiers in the field obeyed orders from their leaders; that
the organizations, as a matter of policy established or ap-
proved by their leaders, tortured and killed foreign develop-
ment workers and prisoners of war; and that Linder's torture
and killing resulted directly from those policies. Id. p 39(b).
The third theory alleges that defendants led the hierarchical
organizations; that defendants knew that the FDN tortured
and executed defenseless and wounded individuals; that de-
fendants failed to stop such practices, thus placing their
imprimatur on them; and that Linder's killing resulted from
those practices. Id. p 39(c). Of significance to one of the
issues before us--the scope of the subpoenas--the district
court and the Eleventh Circuit approved the inclusion in the
complaint of all three theories. See Order Den. in Part and
Granting in Part Defs.' Mot. to Strike Second Am. Compl.
and Granting Pls.' Mot. for Att'y's Fees at 5; Linder, 963
F.2d at 336-37.
Failing to obtain relevant documents from the two surviv-
ing defendants (Calero and Rodriguez), the Linders served
third-party subpoenas duces tecum on the FBI, CIA, Defense
and State Departments, and two other federal agencies, the
National Security Agency and the Immigration and Natural-
ization Service. Each subpoena requested an extensive list of
documents relating to Benjamin Linder, the April 28 attack,
other similar attacks in the area, defendants' role in orches-
trating such attacks, and the structure, organization, finances,
policies, and practices of the three contra organizations.
When the agencies refused to comply, claiming both burden
and privilege, the Linders filed separate motions to compel
against each agency in the U.S. District Court for the Dis-
trict of Columbia. The district court quashed the NSA
subpoena, agreeing with the agency that the Linders'
request was unduly burdensome, Linder v.
Calero-Portocarrero, Misc. No. 94-148 (D.D.C. June 28,
1995), aff'd sub nom. Linder v. NSA, 94 F.3d 693 (D.C. Cir.
1996), and denied the motion to compel against the INS
because that agency had already complied, Linder v. Calero-
Portocarrero, Misc. No. 94-151 (D.D.C. Dec. 12, 1994). In an
August 2, 1994, memorandum order, the district court agreed
with the other agencies that the subpoenas imposed substan-
tial burdens, denied the motions to compel, and ordered the
parties to meet and explore modifying the subpoenas.
Unable to reach agreement, the parties submitted separate
proposals. Slightly narrowing the range of their request, the
Linders demanded documents concerning the attack in which
Linder was killed and defendants' role in it, as well as
documents containing general information about the contra
organizations' structures and human rights policies and prac-
tices. The agencies proposed limiting the search to informa-
tion about Benjamin Linder, the April 28 attack, another
attack on a nearby hydroelectric plant, the El Cua-San Jose
de Bocay region generally, and the four individual defendants.
In a December 12, 1994, order, the district court adopted the
agencies' proposal, specifically excluding from the scope of
the searches general information on the contra organizations'
structures, policies, and practices.
During the next eight months, the agencies furnished the
Linders with a number of documents responsive to the modi-
fied subpoenas. Claiming privilege, the agencies redacted
some documents while completely withholding others.
Arguing that the agencies submitted insufficient informa-
tion about the withheld documents and their claims of privi-
lege, the Linders filed a "motion for further relief," asking
the district court to order Vaughn indices and to review the
documents in camera. Their motion for further relief also
asked the court to expand the scope of the searches, claiming
that the modified subpoenas failed to produce certain relevant
information such as documents concerning contra policies
towards civilians, foreigners, and other non-military targets.
In opposition, the agencies filed declarations describing their
compliance with the modified subpoenas, their reasons for
withholding information, and their estimates of the time and
effort the additional searches would require.
On December 6, 1996, the district court denied in full the
Linders' motion for further relief against the FBI and the
State and Defense Departments and granted in part and
denied in part the motion with respect to the CIA. Rejecting
the Linders' request for in camera review as both excessive
and unnecessary and examining each invocation of privilege,
the court found that, except for two claims by the CIA, the
claims fell within legitimate exemption categories under the
Freedom of Information Act, 5 U.S.C. s 552 (1994 & Supp.
1996). Finding that the CIA's Directorate of Operations
failed to describe or define seven documents that it complete-
ly withheld, and that its Directorate of Science and Technolo-
gy failed to describe the content, general nature, creators, or
copyright owners of three videotapes it withheld as well as
the applicable copyright laws, the district court ordered the
agency to submit more detailed documentation. As to the
Linders' request for an expanded search, the district court
applied FOIA analysis, finding that the agencies had made
"reasonable" searches for the documents specified under the
modified subpoena and that "the agencies cannot be com-
pelled to execute additional searches simply because plaintiffs
are unsatisfied with the results." The court also pointed out
that in connection with its earlier modification of the scope of
the subpoenas, it had held that "any information relevant to
plaintiffs' case could be found by the more limited search[ ]."
Concluding that the Linders failed to demonstrate a compel-
ling need or evidence of clear bad faith required to justify
additional searches that would impose an "onerous burden"
on the agencies, the district court denied their request for an
expanded search.
Responding to the December 1996 order, the CIA filed a
redacted, ex parte declaration by William H. McNair, the
information review officer of the Directorate of Operations,
which explained the general types of information protected by
the appropriate statutory privileges, the potential harm of
disclosing such information, and the particular documents
withheld. The agency also advised the court that it had
offered the Linders' counsel access to the videotapes. After
the Linders moved for leave to file out of time and for
expedited consideration of both their objections to the
McNair declaration and their request for production of docu-
ments, the district court, in an order dated June 24, 1997,
denied the motion and denied with prejudice any further
relief with regard to the CIA. Having reviewed the withheld
CIA documents in camera "out of an abundance of caution,"
the court concluded that "the CIA's assertions are both
soundly based and sufficient."
David Linder, the father, now appeals from the district
court's December 1996 and June 1997 decisions. Although he
originally appealed from the district court's December 1996
order in February 1997, we dismissed the appeal with respect
to the CIA because the district court had not finished its
consideration of that agency's privilege claims. When Linder
appealed the district court's June 1997 order regarding the
CIA, we consolidated that appeal with the earlier appeals
involving the FBI and the State and Defense Departments.
II
The FBI and the State and Defense Departments argue
that we lack jurisdiction to hear the appeals in their cases,
claiming that the district court's December 1996 order deny-
ing the Linders' motion for further relief was not a final order
for purposes of appellate jurisdiction. Because the motion for
further relief neither asked the district court to resolve the
merits of the privilege claims nor requested production of the
withheld documents, the agencies contend that these issues
remain open in the district court, i.e., that the Linders may
still seek production of specific documents and resolution of
the privilege claims. Reviewing this jurisdictional claim de
novo, see Board of Trustees of Hotel and Rest. Employees
Local 25 v. Madison Hotel, Inc., 97 F.3d 1479, 1483 (D.C. Cir.
1996), we agree with the government with respect to the
State and Defense Departments, but not the FBI.
We have held that "[a]n order denying discovery in one
district court's jurisdiction arising from litigation pending in
another jurisdiction may be appealed without awaiting final
judgment on the underlying litigation." Northrop Corp. v.
McDonnell Douglas Corp., 751 F.2d 395, 399 n.5 (D.C. Cir.
1984). Even in such cases, however, our jurisdiction remains
limited to "appeals from all final decisions of the district
courts of the United States." 28 U.S.C. s 1291 (1994). As
the Supreme Court has held, a district court order is final if it
"ends the litigation on the merits and leaves nothing for the
court to do but execute the judgment. Hence, ordinarily ...
appellate review may be had only upon an order or judgment
disposing of the whole case, and adjudicating all rights."
Catlin v. United States, 324 U.S. 229, 233 (1945) (citation
omitted).
To determine whether the district court's December 1996
order is a final, appealable judgment with respect to the FBI
and the State and Defense Departments, we begin by examin-
ing the relief the Linders sought in their motion for further
relief. In that motion, the Linders asked the agencies to do
three things:
(1) to supply plaintiffs with a list and description of
documents withheld pursuant to claims of privilege and a
declaration detailing the grounds for invoking the various
statutory or other privileges; (2) to furnish to the Court
for in camera review those documents withheld pursuant
to claims of privilege and/or lack of relevance; and (3) to
conduct a further search for documents concerning the
policy and practice of defendants' forces toward civilians,
wounded, prisoners of war and foreigners working in
Nicaragua.
Mot. Further Relief at 1. Although the Linders sought and
received final resolution of their third request (additional
searches), neither the motion itself nor the supporting memo-
randum of law requested the district court to resolve the
ultimate issue underlying their first two requests--whether
the claimed privileges in fact protected the withheld docu-
ments from disclosure--or even to order the documents'
production. Contending instead that "the agencies did not
supply complete information about the documents reviewed
... [or] submit sufficient information about their reasons for
claiming privilege," the Linders only sought information that
would enable them to assess and, if necessary, to challenge
the privilege assertions through additional motions to compel.
The district court, moreover, denied the Linders only the
specific relief they sought--Vaughn indices and in camera
review. The court's order for each agency neither resolved
the privilege claims nor determined whether the withheld
documents should be produced.
Asserting that the district court has for all practical pur-
poses rejected their claims, David Linder argues that nothing
more would be gained by further proceedings in the district
court. Although we agree with Linder that the district
court's opinion certainly suggests that the agencies properly
asserted their claims of privilege, we think that is insufficient
to transform the orders into final, appealable judgments.
Efficient judicial administration requires that a final judg-
ment clearly appear from the relief a party seeks in its
motion and the district court's response to that request in its
order. Appellate courts should not have to sort through
district court opinions to determine if they resolve all pending
claims, especially where, as here, such resolution was never
requested. By requiring the district court to "fully disasso-
ciate[ ] itself from a case or claim" before permitting a party
to appeal, Trout v. Garrett, 891 F.2d 332, 335 (D.C. Cir. 1989),
the final judgment rule avoids the "mischief of economic
waste and of delayed justice" that can accompany piecemeal
litigation. Radio Station WOW, Inc. v. Johnson, 326 U.S.
120, 124 (1945); see also Colonial Times, Inc. v. Gasch, 509
F.2d 517, 523 (D.C. Cir. 1975) (final judgment rule usually
precludes review of discovery orders).
In this case, the district court's December 1996 order,
though hinting at the court's ultimate conclusion, fails to
satisfy this bright-line test with respect to the FBI and the
State and Defense Departments. The court never formally
ruled on the merits of the privilege claims, neither ordering
nor denying production of the withheld documents. Indeed,
had the Linders challenged the validity of the State and
Defense Departments' invocation of the state secrets privi-
lege, as David Linder attempts to do in this court, the parties
and the district court would have had much "to do." Catlin,
324 U.S. at 233. As required by Ellsberg v. Mitchell, 709
F.2d 51 (D.C. Cir. 1983)--not FOIA, as the district court
seemed to think--the court would have had to examine
whether each challenged document's disclosure would threat-
en national security. Id. at 57-58. Because the privilege "is
not to be lightly invoked," the court would have had to ensure
that each agency made a "formal claim of privilege, lodged by
the head of the department which has control over the
matter, after actual personal consideration by that officer."
United States v. Reynolds, 345 U.S. 1, 7-8 (1953) (footnotes
omitted). If the agencies had formally invoked their privi-
leges, the court would have had to make sure that they either
provided some form of detailed public explanation of "the
kinds of injury to national security [they] seek[ ] to avoid and
the reason those harms would result from revelation of the
requested information," or indicated "why such an explana-
tion would itself endanger national security." Or, if neces-
sary, the court would have had to examine the privileged
materials in camera to satisfy itself that invocation of the
privilege was proper. Ellsberg, 709 F.2d at 63-64. The
district court then would have had to make serious and
substantive judgments about the government's claims:
[T]he more compelling a litigant's showing of need for
the information in question, the deeper "the court should
probe in satisfying itself that the occasion for invoking
the privilege is appropriate." ... [T]he more plausible
and substantial the government's allegations of danger to
national security, in the context of all the circumstances
surrounding the case, the more deferential should be the
judge's inquiry into the foundations and scope of the
claim.
Id. at 58-59 (quoting Reynolds, 345 U.S. at 11) (footnotes
omitted). Under all of these circumstances, the cases against
the State and Defense Departments are far from final.
The appeal from the FBI order presents a different situa-
tion. Linder appeals only the district court's refusal to
expand the scope of the search, effectively waiving, as counsel
confirmed at oral argument, his challenge to the FBI's asser-
tion of privilege. Because the district court resolved the
scope issue--i.e., it "fully disassociate[d] itself" from the
question, Trout, 891 F.2d at 335--the FBI case is now
appealable.
III
For his substantive claims against the FBI, as well as the
CIA, David Linder challenges the district court's December
1996 denial of his family's request to expand the scope of the
subpoenas to include documents concerning the policies and
practices of the contra organizations regarding civilians, the
wounded, prisoners of war, and foreigners working in Nicara-
gua. In denying the Linders' request for additional searches,
the district court referred back to its earlier determination
that a limited search was appropriate and stated that the
Linders had provided no reason why the court should alter
that decision: "The Court cannot justify the enforcement of
such extensive, time-consuming searches without a showing of
compelling need and clear bad faith on the part of the
agencies." Because the district court enjoys wide latitude in
resolving discovery issues, we review its determination of the
scope of the subpoenas for abuse of discretion. Northrop
Corp., 751 F.2d at 399. An abuse of discretion occurs when
the court applies the wrong legal standard or relies on clearly
erroneous facts. See Genesee Brewing Co. v. Stroh Brewing
Co., 124 F.3d 137, 142 (2d Cir. 1997).
Under Rule 26 of the Federal Rules of Civil Procedure,
parties to litigation may discover all relevant, non-privileged
information. A party:
may obtain discovery regarding any matter, not privi-
leged, which is relevant to the subject matter involved in
the pending action, whether it relates to the claim or
defense of the party seeking discovery or to the claim or
defense of any other party, including the existence, de-
scription, nature, custody, condition, and location of any
books, documents, or other tangible things and the iden-
tity and location of persons having knowledge of any
discoverable matter. The information sought need not
be admissible at the trial if the information sought ap-
pears reasonably calculated to lead to the discovery of
admissible evidence.
Fed. R. Civ. P. 26(b)(1). If a subpoena for relevant informa-
tion imposes an "undue burden," the court may modify the
subpoena or quash it altogether. Fed. R. Civ. P.
45(c)(3)(A)(iv). The "burden of proving that a subpoena is
oppressive is on the party moving to quash." Northrop, 751
F.2d at 403. Whether a burdensome subpoena is reasonable
"must be determined according to the facts of the case," such
as the party's need for the documents and the nature and
importance of the litigation. Id. at 407.
Applying these standards, we find two problems with the
district court's December 1996 order. First, although the
FBI submitted an affidavit estimating that the additional
search would require up to 2142 person-hours, the district
court simply assumed that the CIA, which provided no esti-
mate of its own, would face a similar burden. Without
evidence from the CIA describing the precise nature of its
burden, however, we see no way for the district court to
exercise its admittedly broad discretion or for us to review it.
Because the agency has the burden of proving oppressive-
ness, the district court cannot assume that the burden on one
agency will be the same as the burden on another.
Second, nothing in the December 1996 order indicates that
the court considered the relevance of the requested informa-
tion to the second and third theories of the Linders' case,
theories approved by both the Florida district court and the
Eleventh Circuit. Although the district court acknowledged
these theories when ordering compliance with the modified
subpoenas in December 1994, it concluded that "to the extent
that defendants, in their capacities as leaders of the contra
organizations, approved or otherwise ratified the activities
relating to the attack that caused Linder's death, or ratified
directives issued to any persons concerning the attack, such
documents will be identified in the searches proposed by the
agencies." But the Linders seek to discover more than direct
information about whether the individual defendants ap-
proved or ratified Benjamin Linder's killing. To prove their
second and third theories, they seek general information
about the organizations' policies and practices toward civil-
ians, foreigners, prisoners of war, and the wounded, informa-
tion they claim was not produced in the search for documents
directly linking the defendants to the killing. According to
David Linder, such information may very well provide the
"building blocks" his family needs to prove its case.
We thus reverse the district court's decision to limit the
scope of the FBI and CIA subpoenas. On remand, the
district court should assess the relevance of the requested
information to all three of the Linders' theories. To the
extent such information satisfies Rule 26's broad definition of
relevance, the district court may decline to order the agencies
to search for that information only if the agencies satisfy their
heavy burden of proving oppressiveness or establish some
other recognized ground for modifying or quashing subpoenas
for relevant information.
IV
This brings us finally to David Linder's challenge to the
district court's acceptance of the CIA's claims of privilege
with respect to seven documents originating from the agen-
cy's Directorate of Operations. The CIA withheld the docu-
ments based on statutory protections for information that
would reveal intelligence sources and methods, 50 U.S.C.
s 403-3(c)(5) (1994) (now codified at 50 U.S.C.A. s 403-3(c)(6)
(1991 & Supp. 1997) (as amended by Pub. L. No. 104-293, 110
Stat. 3461 (1996)), as well as information concerning the
agency's personnel, including their functions, names, and
official titles, id. s 403g. Because judges "have little or no
background in the delicate business of intelligence gathering,"
courts must give "great deference" to the Director of Central
Intelligence's determination that a classified document could
reveal intelligence sources and methods and endanger nation-
al security. CIA v. Sims, 471 U.S. 159, 176, 179 (1985).
In upholding the CIA's claims of privilege, the district
court relied on very detailed information contained in the ex
parte declaration of William McNair. Paragraphs 10-31 of
the declaration explain the potential harms to national securi-
ty from the disclosure of intelligence sources, intelligence
methods, location of covert CIA field installations, CIA em-
ployee names and organizational data, and cryptonyms and
pseudonyms. Paragraph 35, redacted from the public version
of the declaration, specifically discusses six of the withheld
documents, and paragraph 36 explains that their release
would reveal the names of CIA employees and employee
numbers, internal organizational data, locations of CIA instal-
lations, and cryptonyms. Describing the seventh document
as a "source-identifying cable that accompanied an intelli-
gence report that is a part of the releasable group of docu-
ments," paragraph 37 states that the "document does not
contain any substantive information on the Linder incident"
and that its disclosure would reveal an intelligence source,
internal organizational data, location of CIA foreign installa-
tions, and cryptonyms.
In addition to reviewing the McNair declaration in camera,
the district court examined the withheld documents. Given
the detailed information contained in the McNair declaration
and the district court's own review of the documents, we find
no abuse of discretion in the court's determination that the
CIA properly justified its statutory claims of privilege over
the seven withheld documents. See Linder, 94 F.3d at 695-
98 (accepting a similar declaration as justifying the NSA's
invocation of privilege under section 6 of the National Securi-
ty Act of 1959, Pub. L. No. 86-36, 73 Stat. 63, 64, quoted in 50
U.S.C. s 402 note (1994)); United States v. Koreh, 144 F.R.D.
218, 222 (D.N.J. 1992) (upholding a CIA claim of statutory
privilege after reviewing a similar declaration from a CIA
information review officer as well as the withheld documents
themselves).
V
We dismiss the appeals with respect to the State and
Defense Departments and affirm the district court's approval
of the CIA's privilege claims. We reverse the denial of the
Linders' request to expand the scope of the CIA and FBI
subpoenas and remand for further proceedings consistent
with this opinion.
So ordered.