Horn v. Huddle ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
§
RICHARD A. HORN, §
Plaintiff, §
§ Civil Action 94-1756-RCL
v. §
§
FRANKLIN HUDDLE, JR., et al., §
Defendants. §
§
MEMORANDUM
This matter comes before the Court on various motions related to the
parties’ settlement of this case.
This case arose from allegations by plaintiff Richard Horn, who in 1993
was stationed in Rangoon, Burma, as the country attaché for the United
States Drug Enforcement Administration, that the defendants-Franklin
Huddle Jr., a State department employee, and Arthur Brown, an employee of
the Central Intelligence Agency_illegally engaged in electronic
eavesdropping of Horn’s telephone calls in violation of the Fourth
Amendment. A description of the underlying facts of the case are set forth in
the D.C. Circuit’s opinion In re Sealed Case, 494 F.3d 139 (D.C. Cir. 2007).
Following remand from the Court of Appeals for further proceedings,
this Court determined from disclosures made in 2008 that the government
had made misrepresentations to this Court that were material and
intentional. By order filed January 15, 2009, this Court referred to the
Court’s Committee on Grievances the CIA attorney identified at that time as
responsible for the government’s misconduct, and set further proceedings to
allow plaintiff to pursue other possible sanctions.
Plaintiff on June 10, 2009, filed a motion for an order to show cause
why various CIA personnel should not be found in contempt of Court and
sanctioned. Plaintiff’s motion sought sanctions against defendant Brown as
well as former ClA Director George Tenet, and ClA Office of General Counsel
attorneys, John A. Rizzo, Robert J. Eatinger, and Jeffery W. Yeates.
On the same date, plaintiff also filed a motion for attorneys’ fees
pursuant to the Equal Access to Justice Act against the United States and/or
the CIA.
Thereafter, the parties and the intervenor, the United States, reached
a settlement of the entire case, pursuant to which the plaintiff moved to
withdraw, with prejudice, both of the plaintiffs motions filed on June 10,
2009.
The United States thereupon filed a motion to vacate the July 16, 2009
opinions and orders of the Court, noting the plaintiff did not oppose the
motion to vacate as part of the complete and global resolution of this case,
including any consequences that might flow from this Court’s outstanding
interlocutory orders.
The United States filed a separate motion on the same date requesting
that the Court also vacate the January 15, 2009 and February 6, 2009
opinions and orders, noting that the continuation of any sanctions
proceedings-including any Grievance Committee inquiry-would require
litigation and further access to classified and other privileged materials, and
would defeat the effort to have a global settlement that entirely concluded
this matter and minimized the risk to the United States of any additional
possible disclosure of classified information.
Plaintiff, on the same date, filed a stipulation of dismissal, to which he
appended the settlement agreement herein. Plaintiff therewith submitted a
proposed order for the Court to dismiss this case with prejudice pursuant to
the stipulation of dismissal, The underlying settlement agreement requires
the United States to pay plaintiff $3,000,000 for damages, attorneys’ fees,
and litigation costs and expenses.
The Court subsequently received a motion by Al-Haramain Islamic
Foundation, lnc., Wendell Belew, and Asim Ghafoor, for leave to file a brief
as amici curiae in opposition to the motion of the United States to vacate the
Court’s opinions and orders of July 16, 2009, and August 26, 2009. The Court
has considered the opposition and reply memoranda, and hereby GRANTS
the motion of amici curiae to file their brief.
Nevertheless, the Court has determined that the public interest is best
served by approval of the settlement and of vacatur of the Court’s July and
August opinions and orders as requested by the United States.
The Court is mindful that a District Court’s opinions are non-
precedential and only persuasive authority. Since the July and August
L_______:_____
opinions have already been published in the Federal Supplement,l the only
consequence of an order vacating them is the possibility that they may be
considered somewhat less persuasive when the vacating order appears with
the citation. The reasoning is unaltered, to the extent it is deemed
persuasive by anyone.
The extraordinary circumstances of ending this 15 year old, hotly
contested litigation that has already consumed too much time and too many
resources for everyone concerned and the desirability of finality are sufficient
for this Court to enter an accompanying order vacating the prior July and
August opinions as requested, and dismissing this action with prejudice.
HoWever, it is not without some misgiving that the Court reaches this
decision. Another member of this Court last year approved the settlement of
another case (involving the FBI’s investigation of the anthrax mailings in late
2001) which involved payment to an individual plaintiff of almost $6,000,000
by the United States, See Hatfill v. Mukasey, et al., Civil Action No. 03-1793
(D.D.C.) (Walton, J.). lt does not appear that any government official was
ever held accountable for this huge loss to the taxpayer.
Now this Court is called upon to approve a $3,000,000 payment to an
individual plaintiff by the United States, and again it does not appear that
any government officials have been held accountable for this loss to the
taxpayer. This is troubling to the Court,
1 See Horn u. Huddle, 647 F. Supp. 2d 55 (D.D.C. 2009) (Lamberth, C.J.); Horri i).
Huddle, 636 F. Supp. 2d 10 (D.D.C. 2009) (Lamberth, C.J.).
4
This Court finds encouraging the issuance of a memorandum, dated
September 23, 2009, for the Heads of the Executive Departments and
Agencies from Attorney General Eric Holder regarding "Policies and
Procedures Governing Invocation of the State Secrets Privilege." A copy of
this memorandum is attached hereto as Appendix A. The Attorney General
therein sets forth a much more detailed structure for the proper invocation of
the state secrets privilege, which the Court applauds. Additionally,
paragraph 4C of the memorandum states that when a case raises credible
allegations of government wrongdoing, the Department of Justice “will refer
those allegations to the Inspector General of the appropriate department or
agency for further investigation, and will provide prompt notice of the
referral to the head of the appropriate department or agency." Here, the
allegations of wrongdoing by the government attorneys in this case are not
only credible, they are admitted. As to the allegations of wrongdoing that
form the basis of Horn’s claims, while the government makes no admission of
wrongdoing in the settlement, the Court is persuaded that the government
must have at least found them credible to pay the plaintiff $3,000,000 to
settle the case.
The Attorney General’s memorandum also provides that the
Department of Justice "will provide periodic reports to the appropriate
oversight committees of Congress with respect to all cases in which the
department invokes the state secrets privilege."
5
L._________________
The memorandum, however, also states that the policies and
procedures set forth therein only apply to cases in which the government
invokes the states secrets privilege after October 1, 2009. In this case the
government continued to rely, after October 1, 2009, on a previously filed
claim of states secrets privilege until the settlement herein was reached in
late October 2009. Regardless of the proper interpretation of the Attorney
General’s Memorandum of September 23, 2009, it is clear that the Attorney
General can make the referral and notifications set forth therein and so
advise this Court.
The Court requests the United States to advise the Court as to
whether it will, in this case, make the referral to the Inspectors General and
provide the notifications to the oversight committees of Congress. The Court
notes that there is disturbing evidence in a sealed motion [496] indicating
that misconduct occurred in the Inspector General’s Offices at both the State
Department and the Central Intelligence Agency. That evidence
demonstrates the benefit of notification to the oversight committees of
Congress.
If the United States makes these notifications, then it is clear that this
Court’s role should be at an end, and this Court’s opinions and orders of
January 15, 2009 and February 6, 2009 and the actions of the Court’s
Grievance Committee can be terminated.
A separate order shall issue this date.
so oRi)ERED this ?Df{aay of march 2010.
m C~
RoY©’E o. LAMBERTH
Chief Judge
United States District Court
Appendix A: Memorandum of the Attorney General regarding Policies and
Procedures Gouerning Invocation of the State Secrets Privilege
®ffire of the Atturnrt_) General
Wasliington,ll@l. E. 205311
Scptciiibcr 23, 2009
l‘vll*.}\t()R_/-\Nl)ljl\l F()R l~lEADS ()F EXE``C``UTIVE DEI’AR'I``MI_"N'I``S AND AGENC``IES
MEMORANDUl\'l FOR THE HIZADS OF DRPARTMIEN'I' COI\/!PONEN'FS
FROM: li A'l"I``ORNlE\r’ GIZNERAL
SUBJEC ; Policics and Procedures Goveniing invocation of the State Secrets Pri\'ilcuc
l ain issuing today new Department of justice policies and administrative procedures that
will provide greater accountability and reliability in the invocation ofthc state secrets privilege in
litigation. Thc Dcpannicnt is adopting these policies and procedures to strengthen public
confidence that the l.?.S. Ciovertitiicitt will invoke the privilege in court only when genuine and
significant harm to iiatioiial defense or foreign relations is at stake and only to the extent
necessary to safeguard those interests 'l``hc policies and procedures set forth in this
Memorandum arc effective as of ()ctobcr l. 2009. and the Department shall apply them in all
cases in which a go\=crtnnciit department or agency thereafter seeks to iii\t.)ke thc state secrets
privilege in litigation.
l. Standarcls for I)etcrrnination
.-\. Lcgal Standard. The Dcpartmeiit will defend an assertion of the state secrets
privilege ("pri\'ilcgc") in litigation \vheti a go\'crnniciit department or zigciic_\' seeking to
assert thc privilege nial