Tenenbaum v. United States Department of Defense , 407 F. App'x 4 ( 2010 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0774n.06
Case No. 09-1992 FILED
Dec 20, 2010
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
DAVID AARON TENENBAUM and )
MADELINE GAIL TENENBAUM, )
)
Plaintiffs-Appellants, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF MICHIGAN
UNITED STATES DEPARTMENT OF )
DEFENSE, et al., )
)
Defendants-Appellees. )
)
_______________________________________ )
BEFORE: BATCHELDER, Chief Judge; MOORE and COLE, Circuit Judges.
ALICE M. BATCHELDER, Chief Judge. David and Madeline Tenenbaum (the
“Tenenbaums”) appeal the district court’s dismissal of their lawsuit, filed pursuant to 42 U.S.C. §
1983, against Appellees, various government officials and entities who, the Tenenbaums claim,
deprived them of their constitutional right to access the courts when Appellees allegedly filed false
affidavits asserting the state-secrets privilege. Invocation of that privilege led to the dismissal of a
prior § 1983 lawsuit brought by the Tenenbaums. Because we find that the Tenenbaums are
collaterally estopped from relitigating the district court’s application of the state-secrets doctrine in
the prior case, we AFFIRM the judgment of the district court.
BACKGROUND
Mr. Tenenbaum is a civilian employee of the United States Army Automotive Armaments
Command (“TACOM”) who, from February 1997, to February 1998, was subjected to an intense and
No. 09-1992, Tenenbaum v. U.S. Dept. of Defense
intrusive investigation (the “Investigation”) into allegations that he had revealed classified
information to the Israeli government. On October 14, 1998, the Tenenbaums filed their first lawsuit
(the “1998 Lawsuit”) against certain of the present defendants (the “1998 Defendants”) for violation
of their civil rights in connection with the Investigation. The 1998 Defendants moved for dismissal,
claiming that they would be unable to mount a defense to the Tenenbaums’ claims because the
evidence necessary to their defense comprised state secrets.
In connection with their motion to dismiss, the 1998 Defendants submitted two sealed briefs,
along with a large volume of sealed documents supporting the state-secrets claim, and signed
affidavits by then-Attorney General John Ashcroft (“Ashcroft”), then-Deputy Secretary of Defense
Paul Wolfowitz (“Wolfowitz”), and Uldric Fiore (“Fiore”), then the Army Litigation Division Chief.
After an in camera review of the supporting documentation, the court found that the 1998 Defendants
could not defend the 1998 Lawsuit without resorting to use of state secrets and that the state-secrets
doctrine therefore required dismissal of all claims. The Tenenbaums appealed and, after reviewing
the sealed materials in support of the state-secrets assertion, we affirmed. Tenenbaum v. Simonini,
372 F.3d 776 (6th Cir. 2004).
On March 14, 2006, Senator Carl Levin made a formal request to the Office of the Inspector
General at the Department of Defense that an investigation of the Tenenbaum matter be conducted.
On July 13, 2008, the Department of Defense submitted its completed report (the “Report”) to
Senator Levin by way of the Senate Armed Services Committee. The Report presents certain factors
that raised concerns regarding the possibility that Mr. Tenenbaum was engaged in espionage. The
Report details the history of the Investigation, and concludes, among other things, that: (1) Mr.
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Tenenbaum was subjected to inappropriate treatment; (2) the Investigation deviated from established
policies and procedures; (3) the Investigation was improperly used as a cover for a
counterintelligence investigation; and (4) Mr. Tenenbaum’s religion was a factor in the decision to
commence the Investigation.
The Report also contains several relevant qualifications. For example, while the Report
states that investigators “reviewed relevant classified and unclassified records, including records
relating to the affidavits of [Wolfowitz] and [Ashcroft],” it also declares that investigators “did not
review the actions taken by the Department of Justice or the FBI” and therefore “were unable to
perform a comprehensive review of the state secrets documents related to the case dismissal.” The
Report further states that it “should not be construed as commenting on the judicial decisions
rendered in civil litigation.”
On February 19, 2009, the Tenenbaums filed the present action. In their Complaint, the
Tenenbaums allege that the 1998 Defendants, along with Ashcroft, Wolfowitz, and Fiore
(collectively, the “2009 Defendants”), knowingly lied when they asserted the state-secrets privilege
in the 1998 Lawsuit. The Tenenbaums argue that the Report proves that no evidence ever existed
against Mr. Tenenbaum, and that the intense scrutiny Mr. Tenenbaum suffered was solely the result
of religious discrimination by the 1998 Defendants and others, The Tenenbaums further argue that
the 2009 Defendants could not have legitimately believed the state-secrets privilege applied in the
1998 Lawsuit.
The 2009 Defendants moved to dismiss the present case as barred by res judicata, collateral
estoppel, and the statute of limitations, and on the grounds that the district court lacked personal and
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subject matter jurisdiction and that the Tenenbaums failed to state a claim. The district court
expressly rejected the 2009 Defendants’ personal and subject matter jurisdiction claims, and did not
rule on the Tenenbaums’ res judicata and failure-to-state-a-claim arguments.1 The district court
concluded, however, that collateral estoppel precluded relitigation of the validity of the state-secrets
doctrine. The district court therefore granted the 2009 Defendants’ motion to dismiss, and the
Tenenbaums filed this appeal.
ANALYSIS
As an initial matter, we are prepared to concede that during the Investigation the Tenenbaums
were forced to endure a highly unusual amount of scrutiny and intrusion into their lives. We are also
prepared to assume, for the purposes of this appeal, that Mr. Tenenbaum’s religion played a role in
the decision to investigate him. However, as the following analysis shows, any sympathy for the
Tenenbaums’ regrettable experiences cannot alter the district court’s proper conclusion that collateral
estoppel applies to bar the Tenenbaums’ present case.
Whether collateral estoppel is applicable is a mixed question of law and fact which we review
de novo. Wolfe v. Perry, 412 F.3d 707, 716 (6th Cir. 2005). “Issue preclusion, or collateral estoppel,
bars subsequent relitigation of a fact or issue where that fact or issue was necessarily adjudicated in
a prior cause of action and the same fact or issue is presented in a subsequent suit.” Cobbins v. Tenn.
Dep’t of Transp., 566 F.3d 582, 589 (6th Cir. 2009). Before the doctrine of collateral estoppel may
be applied to bar relitigation of an issue, four requirements must be met: (1) the precise issue must
have been raised and litigated in the prior action; (2) the determination of the issue must have been
1
The 2009 Defendants do not challenge these portions of district court’s decision.
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necessary to the outcome of the prior action; (3) the prior proceedings must have resulted in a final
judgment on the merits; and (4) the party against whom estoppel is sought must have had a full and
fair opportunity to litigate the issue in the prior proceeding. Id. at 589-90.
The present action consists of a single claim, that the 2009 Defendants deprived the
Tenenbaums of their constitutional right to meaningful access to the courts by the false invocation
of the state-secrets doctrine in the 1998 Lawsuit. But that precise issue was directly addressed by
the district court and this court in dismissing the 1998 Lawsuit, when it was determined that the
state-secrets privilege had been properly invoked by the government and invocation of the privilege
denied the 1998 Defendants any defense. The Tenenbaums’ claims regarding invocation of the state-
secrets privilege were therefore raised and litigated during the 1998 Lawsuit and were necessary to
the final resolution of the case; the first three requirements for collateral estoppel have been satisfied.
The Tenenbaums argue, however, that collateral estoppel should not apply in this case
because they were not allowed to fully and fairly litigate the state-secrets doctrine during the 1998
Lawsuit. The Tenenbaums were represented by counsel during the entirety of the 1998 Lawsuit,
which was litigated both before the district court and before us, but the Tenenbaums argue that they
were deprived of the opportunity to fully litigate the issue because the 2009 Defendants “submitted
false statements and sealed materials to the Courts to support their frivolous assertion of the state-
secrets privilege in order to mislead and deceive the Courts into dismissing the 1998 Lawsuit.”
The Tenenbaums’ evidence for the alleged falsity of the sealed materials submitted during
the 1998 Lawsuit is the findings of the Report. As discussed by the district court, however, any
claim that the 2009 Defendants engaged in any falsehoods during the 1998 Lawsuit goes to the
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merits of the prior lawsuit, not to whether the Tenenbaums had the opportunity to fully and fairly
litigate the assertion of the state-secrets privilege. Nevertheless, even if we were to accept the
Tenenbaums’ faulty premises, namely that (1) the alleged falsity of the sealed materials is relevant
to the question of whether collateral estoppel applies, and (2) the conclusions of the Report are
binding on this court, the Report would still be insufficient to overcome the application of collateral
estoppel. By its own terms, the Report makes clear that investigators did not conduct a
comprehensive review of the sealed documents and disclaims any intent to criticize or comment on
the assertion of the state-secrets doctrine in the 1998 Lawsuit. There is simply no evidence that the
Department of Defense’s investigators even reviewed, let alone found false, the documents that were
submitted under seal to the district court and this court during the 1998 Lawsuit. We find, therefore,
that the Tenenbaums had a full and fair opportunity to litigate the state-secrets question during the
1998 Lawsuit and that collateral estoppel bars relitigation of that question in the present case.
The Tenenbaums argue, in the alternative, that collateral estoppel should not be rigidly
applied here because doing so would contravene public policy and result in manifest injustice. Tipler
v. E.I. duPont deNemours & Co., 443 F.2d 125, 128 (6th Cir. 1971). The Tenenbaums argue that
there is an overriding public policy in favor of access to the courts, and that application of collateral
estoppel would allow the 2009 Defendants to get away with their allegedly false and fraudulent
invocation of the state-secrets privilege. As set forth above, however, the Report does not establish
that the sealed materials in the 1998 Lawsuit were false, and the Tenenbaums’ “manifest injustice”
argument also fails.
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CONCLUSION
Accordingly, we AFFIRM the judgment of the district court.
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