David Aaron Tenenbaum; Madeline Gail Tenenbaum v. JOHN SIMONINI, Lt. Col.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0183P (6th Cir.)
File Name: 04a0183p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
DAVID AARON TENENBAUM;
MADELINE GAIL TENENBAUM,
Plaintiffs-Appellants,
v.
JOHN SIMONINI, Lt. Col.;
ALBERT D. SNYDER; MARK P.
YOURCHOCK; ROBERT M.
RILEY, Individually and in
their Representative
Capacities as Employees for
the Various Federal Agencies
that Employ Them; and the
UNITED STATES OF AMERICA,
Defendants-Appellees.
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No. 02-2297
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 98-74473—Robert H. Cleland, District Judge.
Argued: February 6, 2004
2 Tenenbaum, et al. v. Simonini, et al. No. 02-2297
*This decision was originally issued as an “unpublished opinion”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.
Decided and Filed: May 19, 2004*
Before: BATCHELDER, GIBBONS, and COOK, Circuit
Judges.
_________________
COUNSEL
ARGUED: Jason R. Hirsch, MORGANROTH &
MORGANROTH, Southfield, Michigan, for Appellants.
Peter A. Caplan, ASSISTANT UNITED STATES
ATTORNEY, Detroit, Michigan, for Appellees. ON BRIEF:
Mayer Morganroth, Jeffrey B. Morganroth, Daniel E. Harold,
MORGANROTH & MORGANROTH, Southfield, Michigan,
for Appellants. Peter A. Caplan, ASSISTANT UNITED
STATES ATTORNEY, Detroit, Michigan, for Appellees.
_________________
OPINION
_________________
COOK, Circuit Judge. Plaintiffs-Appellants David
Tenenbaum and his wife sued various federal agency
employees and the United States, alleging that Defendants
conducted a criminal espionage investigation of Tenenbaum
solely because he is Jewish. The district court granted
Defendants’ summary judgment motion, accepting their
argument that they could not defend themselves against
Tenenbaum’s claims without disclosing information protected
by the state secrets doctrine. The Tenenbaums challenge the
summary judgment ruling, contending that (1) disclosure of
the privileged material is not critical to defending against
their religious discrimination case, and (2) the district court

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No. 02-2297 Tenenbaum, et al. v. Simonini, et al. 3
should have allowed the case to proceed by employing
evidentiary controls to protect the privileged material. We
affirm.
We review the district court’s grant of summary judgment
de novo, Stephenson v. Allstate Ins. Co., 328 F.3d 822, 826
(6th Cir. 2003), while according the government’s assertion
of the state secrets doctrine considerable deference, Ellsberg
v. Mitchell, 709 F.2d 51, 58 (D.C. Cir. 1983).
Having reviewed the materials Defendants produced under
seal, we agree with the district court that the state secrets
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
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law itself regards as confidential, and respecting which it will
not allow the confidence to be violated.”); Weston v.
Lockheed Missiles & Space, Co., 881 F.2d 814, 816 (9th Cir.
1989) (recognizing that the state secrets doctrine alone can be
the basis for dismissal of an entire case); Molerio v. FBI, 749
F.2d 815, 825 (D.C. Cir. 1984) (stating that if the state secrets
privilege so hampers the defendant in establishing a valid
defense that the trier of fact is likely to reach an erroneous
conclusion, dismissal is appropriate).
We therefore affirm the district court’s grant of summary
judgment in favor of Defendants.

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