UNITED STATES OF AMERICA, APPLICANT, V. LILLIE ALBERTSON
   No. A-936
   In The Supreme Court Of The United States
   October Term, 1988
   Emergency Application For A Stay Pending Petition For A Writ Of
Certiorari To The United States Court Of Appeals For The District Of
Columbia Circuit
   Petition For A Writ Of Certiorari, Of All Proceedings In The
District Court
   Pursuant to Rules 43 and 44 of the Rules of this Court and 28
U.S.C. 1651, the Acting Solicitor General, on behalf of the United
States of America, applies to this Court for a stay, pending the
filing and disposition of a petition for a writ of certiorari, of all
proceedings in the district court, particularly the district court's
order of May 15, 1989, directing the United States to answer the
complaint "within ten days of the date of this order." App. B, infra.
The court of appeals, while granting a 30 day stay of discovery,
refused to grant a stay of other proceedings or, in particular, a stay
of the order compelling the government to answer the complaint.  App.
A, infra.  The Acting Solicitor General has authorized the filing of a
petition for a writ of certiorari, which is due for filing by July 13,
1989.
   In this unique state secrets privilege case, the Attorney General
has determined that the United States can neither answer the complaint
nor proceed further with litigation without inevitably compromising
national security information concerning extremely sensitive
intelligence sources and methods.  App. D, infra (Attorney General's
declaration).  The district court initially denied the claim of
privilege and ordered the government to proceed with discovery.  The
United States unsuccessfully sought to appeal the denial of the
privilege under the collateral order doctrine.  The government then
filed in the court of appeals a petition for a writ of mandamus to
review the denial of the claim of privilege.  The court denied the
petition after full hearing, over a partial dissent by Judge D. H.
Ginsburg.  App. C, infra (Rosenn, J. sitting by designation, and
Mikva, J;  D. H. Ginsburg, dissenting in part and concurring in part).
   The government thereafter filed in the district court a
supplemental memorandum in support of a pending stay motion in order
to seek further appellate review.  The district court denied the
motion in part, ordering the government to answer within ten days of
the date of its order filed May 15, 1989.  The court granted a limited
stay of discovery pending issuance of a mandate by the court of
appeals.  App. B, infra.  The government immediately filed in the
court of appeals an emergency motion for a stay of all district court
proceedings and, specifically, of the order to file an answer to the
complaint.  By order filed May 23, 1989, the court of appeals, over
Judge Ginsburg's dissent, denied the requested stay with respect to
filing an answer.  App. A, infra.  /1/
   Unless this Court stays the district court's outstanding order to
file an answer to the complaint, the government will be forced to risk
inevitable compromise of the precise information it seeks to protect
by the claim of privilege.  Not only will this compromise irreparably
harm the national security interests of this country but it will also
thwart this Court's ability to provide effective relief to the United
States.  The obviously serious nature of the government's interest in
protecting sensitive national security information warrants
preservation of the status quo pending this Court's review.  Moreover,
expedited consideration of this application is needed because the
district court ordered the United States to file an answer to the
complaint "within ten days of the filing of" its May 15, 1989 order --
that is, by May 25, 1989.  Because discovery has been stayed for at
least 30 days, respondent will suffer no harm if the answer is also
stayed pending the filing and disposition of a petition for writ of
certiorari.
                               STATEMENT
   In this suit under the Federal Tort Claims Act, 28 U.S.C. 1346(b),
2671 et seq., plaintiff seeks damages for injuries to her deceased
husband and to herself as a result of an alleged investigation of them
by the Federal Bureau of Investigation from 1950-1964.  Plaintiff's
decedent, William Albertson, was a high official in the Communist
Party of the United States of America (CPUSA) during that time, until
he and his wife were expelled from the Party in 1964, allegedly after
a note was found in William Albertson's handwriting that purported to
be an informer's report to the FBI.  Plaintiff claims that the FBI's
investigation of the Albertsons was prompted by their CPUSA activities
and was thus politically motivated.  The litigation directly
implicates classified information about the foreign security
imperatives for actions involving the Albertsons, other foreign
intelligence and counterintelligence activities, and sensitive sources
and methods used in such activities, as well as classified information
relating to the Executive's judgment about the threat posed by CPUSA
as the agent of a foreign power.  Accordingly, the Attorney General
has asserted in this action a public formal claim of privilege
supported by a detailed classified Declaration of James H. Geer,
Assistant Director of the FBI, Intelligence Division.  /2/
   Based on the Attorney General's claim of privilege, the government
moved to dismiss the action.  The government asserted that it could
not answer the complaint without revealing privileged information,
that discovery could not proceed without jeopardizing disclosure of
privileged information, and that neither party would be able to make
its case without the privileged information.  The district court
denied the motion without explicitly addressing the claim of privilege
on March 16, 1987, and ordered discovery to proceed.  /3/
   The government unsuccessfully sought to appeal the court's ruling
under the collateral order doctrine.  Albertson v. United States, D.C.
Cir. No. 87-5178, Order entered October 2, 1987.  Thereafter, the
government filed a petition for a writ of mandamus in the court of
appeals.  That court ordered the district court to review the
classified in camera Geer Declaration and to explain its decision.
The district court adhered to its prior ruling, explaining its reasons
in a memorandum opinion filed on March 22, 1988.  After additional
briefing and oral argument on the mandamus petition, a divided panel
of the court of appeals denied the petition.
   The majority held that the government had failed to demonstrate
exceptional circumstances warranting issuance of the writ.  In the
court's view, the litigation could proceed with the government raising
item-by-item objections or claims of privilege.  Contrary to the
Attorney General's claim of privilege, the majority, like the district
court, believed that this is not a case where "the very subject matter
of (the) litigation is itself a state secret." Slip op. 11, citations
omitted (App. C, infra).  The panel therefore deferred to the district
court's view that it could control discovery to protect the national
security.  In holding that the action could proceed, the majority thus
implicitly rejected the claim of privilege.
   Judge Ginsburg concurred in the denial of the writ of mandamus with
respect to the portion of the district court's order refusing to
dismiss the complaint.  He dissented, however, from the denial of the
writ insofar as the court failed to direct the district court to
vacate the portion of its order permitting discovery.  The reasons for
his conclusion that discovery should not proceed are explained in a
portion of his opinion that is based on the classified Geer
Declaration and that, therefore, is largely withheld from publication.
 /4/ In the public portion of his opinion, Judge Ginsburg stated that
he thought it "perfectly clear" (dissent slip op. 1) that any further
discovery would risk harm to individuals and to the current foreign
intelligence activities of the government.  He further stated that "no
system of item-by-item rulings by the district court (can) be
concocted so as to avoid these most untoward consequences" (ibid.) and
that "there are no avenues of discovery that are not blocked by the
state secrets privilege" (id. at 15).
   Judge Ginsburg agreed with the majority that dismissal would not be
required even if the privilege were sustained.  Relying on plaintiff's
counsel's representation at oral argument that she could establish her
prima facie case without further discovery, Judge Ginsburg indicated
that he would permit plaintiff to proceed.  In his view, if the
government's defense implicated privileged information, the government
would have to make its defense ex parte in camera.
   On April 25, 1989, the United States filed in the district court a
supplemental memorandum in support of a stay of proceedings pending
appeal.  That memorandum supplemented a motion for a stay of
proceedings that had been filed on April 17, 1987, but that had never
been ruled on.  /5/ On May 10, 1989, plaintiff filed an opposition to
the motion for stay and moved to compel the United States to file an
answer to the complaint.  In an order dated and filed May 15, 1989,
the district court ordered the United States to answer the complaint
"within 10 days of the filing of this order." /6/
   The government then filed in the court of appeals an emergency
motion to stay all district court proceedings, including specifically
the requirement that it answer the complaint.  On May 23, 1989, the
court of appeals, while granting a stay of discovery for 30 days,
denied the motion with respect to filing the answer, over a dissent by
Judge D.H. Ginsburg.  App. A, infra.
                               ARGUMENT
   Standard for Granting a Stay Pending Certiorari.
   This Court or any Circuit Justice may grant a stay pending the
filing and disposition of a petition for a writ of certiorari pursuant
to 28 U.S.C. 1651 and Rule 44.1 of the Rules of this Court.  See
Johnson v. Stevenson, 353 U.S. 801 (1948);  Republic State Central
Committee v. Ripon Society, 409 U.S. 1222, 1227 (1972) (Rehnquist,
J.).  Such a stay is to be granted if the applicant demonstrates (1)
that there is a "reasonable probability" that four Justices will
consider the issues sufficiently meritorious to grant certiorari;  (2)
that there is a "fair prospect" that a majority of the Court will
conclude that the decision below on the merits was erroneous;  and (3)
that irreparable injury would result from denial of a stay.  Rostker
v. Goldberg, 448 U.S. 1306, 1308 (1980) (Brennan, J., in chambers).
Moreover, in close cases, it may be appropriate to balance the
equities by exploring the relative harms to the parties and to the
public at large.  Ibid.  See also John Doe Agency v. John Doe Corp.,
109 S.Ct. 852, 853 (1989) (Marshall, J., in chambers);
Gregory-Portland Independent School Dist. v. United States, 448 U.S.
1342 (1980) (Rehnquist, J. in chambers).  The United States satisfies
the criteria for a stay pending certiorari in this case.
   1. The reasonable probability that certiorari will be granted.
This is the first case of which we are aware in which a court has
effectively rejected on the merits a claim of state secrets privilege,
properly asserted by the head of the agency (here, the Attorney
General).  Because this claim of privilege is asserted over matters
concerned with national security, and in this case over matters
concerning current intelligence activities, sources, and methods,
courts have traditionally accorded such claims the "utmost deference."
See Department of the Navy v. Egan, 108 S.Ct. 818, 825 (1988);  United
States v. Nixon, 418 U.S. 683, 710 (1974).  This Court has not
hesitated to accept for review cases involving risks to national
security information, particularly where the exposure of intelligence
sources and methods is at issue.  See, e.g., CIA v. Sims, 471 U.S. 159
(1985);  Snepp v. United States, 444 U.S. 507 (1980);  Haig v. Agee,
453 U.S. 280 (1981);  Webster v. Doe, 108 S. Ct. 2047 (1988).  There
is, therefore, a strong probability that at least four Justices will
vote to grant certiorari on the question whether the claim of
privilege should have been upheld.
   The government contends that it cannot even answer the complaint
without exposing matters subject to the claim of privilege and that
discovery and trial of the action inevitably would reveal the very
information sought to be protected by the privilege.  It therefore
argued that this case must be dismissed because further proceedings
would certainly lead to the exposure of privileged matters.  Long ago,
in Totten v. United States, 92 U.S. 105, 107 (1875), this Court held
that public policy requires dismissal of an action where the trial
would inevitably expose matters that in the interest of national
security should not be exposed.  See also Weinberger v. Catholic
Action of Hawaii/Peace Education Project, 454 U.S. 139 (1981).  The
lower courts' refusal to dismiss this action, where trial would expose
sensitive and privileged information, is at odds with the Totten rule.
   Moreover, in the circumstances of this case, requiring the
government to answer this complaint, or submit to discovery, forces
the government to litigate on terms to which it has not consented.
The imposition of any sanction on the government for its refusal to
answer or proceed with litigation, based on its claim of privilege,
results in a penalty for the government's assertion of a privilege in
the public interest.  Thus, the orders of the lower courts requiring
the government to proceed with this litigation, particularly the
district court's pending order to file an answer, raise serious and
substantial questions about the proper scope of the Federal Tort
Claims Act.  /7/ In short, the inconsistency with the well-settled
principle of Totten, as well as the questions about the scope of the
FTCA, are issues of critical importance to the government, and there
is a reasonable probability that four Justices would grant certiorari
to consider them.
   2. The fair prospect that the decision below will be found to be
erroneous.  a. Although the courts below did not expressly state that
they rejected the claim of privilege, their belief that the litigation
can continue with item-by-item objections and claims of privilege
constitutes a misunderstanding of the claim of privilege that is here
asserted and, therefore, necessarily an implicit rejection of it.  The
Attorney General did not assert a privilege over particular documents
that can be effectively reviewed on an item-by-item basis.  Instead,
based on the nature of allegations in the complaint, he asserted the
privilege over matters that inevitably will be exposed by further
proceedings.  Judge Ginsburg's persuasive dissent explains in great
detail, based on the classified Geer Declaration, why the claim of
state secrets privilege, as asserted, must be recognized.  He also
explains how discovery inevitably will compromise sensitive
information subject to this claim of privilege.  His public conclusion
that "there are no avenues of discovery that are not blocked by the
state secrets privilege" (dissent slip op. 15) is fully supported by
the classified discussion in his opinion and by the classified Geer
Declaration.
   Although, in the opinions on denial of mandamus, neither the
majority nor Judge Ginsburg explicitly addressed the government's
inability to answer the complaint, Judge Ginsburg recognized the
government's compelling need to protect the very information that
would, as a matter of fact, be compromised by an answer.  Dissent,
classified typescript version, esp. at 9;  see id. at 8, 11-12, esp.
at 12, lines 22-26 (referring to classified Geer Decl. Paragraph 16,
at 20-22);  see also Geer Decl. Paragraph 17, lines 12-16.  Moreover,
Judge Ginsburg's dissent from the May 23rd denial of the stay of the
order to answer effectively recognizes that the claim of privilege
extends to the answer as well as to other proceedings.  It cannot be
overemphasized that the filing of an answer would pose the identical
risk to national security that would be posed by discover, i.e., it
would force the government to reveal the very matters it seeks to
protect by the state secrets privilege.
   In the government's filings to date, all of which have been
unclassified, counsel have endeavored to explain that current
intelligence activities as well as intelligence sources and methods
would be compromised by any exploration of matters subject to the
claim of state secrets privilege in this case.  In doing so, the
govenment has relied extensively on the classified Geer Declaration
and has referred the courts to the relevant paragraphs of that
document.  We have determined that this approach does not adequately
permit us to explain in a clear enough way the problems created by the
claim of state secrets privilege in this case with respect to
answering the complaint as well as discovery and trial.  Accordingly,
we have prepared a classified Supplemental Memorandum in Support of
the United States' Emergency Application for a Stay Pending
Certiorari.  That memorandum will be provided, with the other relevant
classified documents, to the Chief Justice by the Department Security
Officer pending the availability of secure storage facilities at the
Court.  The memorandum does not contain legal argument;  rather, it
explains in detail why the government cannot file an answer to the
complaint without compromising privileged matters.  Judge Ginsburg's
classified dissent contains a similarly detailed explanation of why
discovery cannot proceed.  Like Judge Ginsburg, we hope that the
classified explanations will persuade the Court of the error of the
lower courts in effectively rejecting the claim of privilege by
ordering the government to answer to complaint.
   b. Because there is a strong probability that a majority of the
Court will sustain the claim of privilege, there is also a strong
probability that a majority of the Court will agree with Judge
Ginsburg that mandamus is uniquely appropriate in this situation.  The
court of appeals' reluctance to grant the mandamus petition rests in
part on its perception of the different posture of this claim of
privilege from that of all other state secrets privilege cases it has
decided, since all of those cases involved appeals after final
judgment.  Slip op. 9-10.  In those case, however, the state secrets
privilege had been upheld entirely or substantially enough to allow
the action to reach final judgment.  Ibid.  Here, for the first time,
the claim of state secrets privilege has been rejected on the merits,
and the government contends that it cannot answer and the action
cannot proceed without jeopardizing highly sensitive information;
thus it is not possible to obtain a final judgment in this unique
situation.  (No default judgment may be entered against the United
States.  See Fed. R. Civ. Proc. 55(e).) As Judge Ginsburg observed
(dissent slip op. 18), this is precisely the situation where mandamus
is needed:  extremely sensitive information is claimed to be
privileged and a classified explanation is provided demonstrating the
reasonable danger that further proceedings will compromise the
confidentiality of that information.
   Consistent with the explanation provided in the Geer Declaration in
this case, the government moved to dismiss the action.  In denying the
motion to dismiss, the courts below have effectively denied the
underlying claim of privilege.  We have explained that this claim of
privilege is unlike any the courts have faced before.  See Revised
Petition for Mandamus 11;  Petitioner's Supplemental Memorandum 14-15;
 see esp. Geer Decl. Paragraph 19 and n.4.  It is not possible,
without compromising the claim of privilege itself, to relegate the
government to asserting the privilege on an item-by-item basis either
in the context of discovery or in the submission of an answer to the
complaint.
   Given that the district court refused to certify the question of
the scope of the privilege for appeal and that the court of appeals
held the denial of the claim of privilege was not an appealable order,
mandamus was and is the only available avenue to obtain review of
these extremely sensitive issues.  Accordingly, there is a strong
probability that the Court would hold that mandamus should have
issued.
   c. Finally, there is also a "fair prospect" that a majority of the
Court will decide that the lower courts' refusal to dismiss this
action is erroneous.  This Court has stated that "public 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
law itself regards as confidential, and respecting which it will not
allow the confidence to be violated." Totten v. United States, 92 U.S.
at 107.  The Court reinforced that venerable principle in modern times
in United States v. Reynolds, 345 U.S. 1 (1953), and Weinberger v.
Catholic Action of Hawaii/Public Education Project, 454 U. S. at
146-147.  It is the inevitable disclosure of privileged information
through trial or discovery that determines whether dismissal is
required, not which party is unable to establish its litigating
position:  if either party is disabled in litigating because of the
loss of privileged information, dismissal is required.  Here, because
the claim of privilege precludes answering the complaint, as well as
discovery and trial, the action cannot proceed without exposing
privileged matters.  /8/
   The court of appeals' decision in Ellsberg v. Mitchell, 709 F.2d
51, 65 (D.C. Cir. 1983), cert. denied sub nom. Russo v. Mitchell, 465
U.S. 1038 (1984), is a deviation from the public policy expressed in
Totten as a legal principle, and the court's reliance on Ellsberg to
permit this case to proceed is erroneous.  /9/ The in camera fact
finding contemplated in Ellsberg, a case brought against federal
officials in their individual capacities and not against the United
States, was limited to a "circumscribed and manageable" question of
law:  whether the wiretaps in issue were foreign intelligence taps
(709 F.2d at 60-70).  Regardless of the appropriateness of the in
camera procedure to the facts of Ellsberg, that solution is completely
inappropriate here.  The matters that would have to be presented for
ex parte in camera consideration in this case comprise the core of
plaintiff's claims.  The issues are not "circumscribed and
manageable," and such a procedure is fraught with the same risk posed
by any litigation of the case.  Because any in camera proceedings
would, of necessity, be ex parte, either the neutral role of the court
or the adversary system itself, or both, will inevitably be distorted.
 Moreover, requiring the government to litigate in camera may mean
that it will be forced to disclose more sensitive national security
information than it otherwise would;  and in camera procedures do not
completely eliminate the risk that privileged information may be
compromised.  See Ellsberg v. Mitchell, 709 F.2d at 57 n. 31;  see
also Clift v. United States, 597 F.2d 826, 829 (2d Cir. 1979);  Alfred
A. Knopf, Inc. v. Colby, 509 F.2d 1362, 1369 (4th Cir.), cert. denied,
421 U.S. 908 (1975).  Furthermore, if the government put on an in
camera defense, any judgment on the merits would very likely convey
information about the defense and would therefore violate the
privilege protecting the defense.
   In addition to the risks to national security information posed by
in camera litigation, such a procedure exposes the government to suit
on terms to which it has not consented.  See note 7, supra.  In
seeking to protect sensitive information, the government might be more
cautious, at its peril, in presenting only information that it
believes is absolutely necessary to its defense.  If liability is
imposed because of that kind of litigating decision, the effect is to
penalize the government for asserting the state secrets privilege.  As
the court of appeals itself has observed, however, in consenting to
suit the United States "has never consented to an increase in its
exposure to liability when it is compelled, for reasons of national
security, to refuse to release relevant evidence." Ellsberg v.
Mitchell, 709 F.2d at 64 (emphasis in original).  See also United
States v. Reynolds, 345 U.S. at 12.  Plainly, the suggestion in
Ellsberg of in camera disposition on the merits should not be extended
to cases like this.  Accordingly, there is at least a "fair prospect"
that a majority of the Court would hold that the failure to dismiss
this action was error.
   3. Irreparable Injury.  As is clear from Judge Ginsburg's
dissenting opinion, as well as the classified Geer Declaration, any
further proceedings concerning discovery in this action will
irreparably endanger sensitive national security concerns, and thus
discovery has been stayed for at least 30 days.  The need for a stay
from this court is immediate with respect to the district court's
pending order that the United States file an answer, in which it must
either admit or deny the allegations plaintiff makes.  If the
government fails to answer, it risks the possibility of being held in
contempt, or the district court's deeming the allegations of the
complaint admitted, or the possibility of some other sanction.  Any
sanction, however, operates as a penalty for the government's
legitimate assertion of the state secrets privilege and is contrary to
all precedent.  See, e.g., United States v. Reynolds, 345 U.S. at 12;
Salisbury v. United States, 690 F.2d 966, 975 (D.C. Cir. 1982).  If
the government files an answer in camera, it not only risks compromise
of privileged information but it also begins a course that will, in
this case, become an extensive process of secret litigation that is at
odds with the adversary system.  Either step -- filing an answer or
proceeding with discovery -- poses a reasonable danger that highly
sensitive national security information will be exposed.  Once such
exposure occurs, it cannot be called back, and the harm to national
security cannot be undone.  Not only is it inevitable that sensitive
and privileged information will be exposed if the government is forced
to answer the complaint, as the classified Geer Declaration explains,
but the harm that flows from such exposure will be irreversible.
   A stay of the answer will also preserve the vital public policy
interest of full and independent review:
      (T)he Constitution and laws entitle litigants to have their
      cases independently reviewed by an appellate tribunal.
      Meaningful review entails having the reviewing court take a
      fresh look at the decision of the trial court before it becomes
      irrevocable.  Appellants' right of appeal here will become moot
      unless the stay is continued pending determination of the
      appeals.  Once the documents are surrendered pursuant to the
      lower court's order, confidentiality will be lost for all time.
      The status quo could never be restored.
Providence Journal Co. v. FBI, 595 F.2d 889, 890 (1st Cir. 1979)
(emphasis added).  The same reasoning applies for review of appellate
decisions by this Court:  "Perhaps the most compelling justification
for a Circuit Justice to upset an interim decision by a court of
appeals (is) to protect this Court's power to entertain a petition for
certiorari before or after the final judgment of the court of
Appeals." John Doe Agency v. John Doe Corp., 109 S.Ct. at 853-854,
quoting New York v. Kleppe, 429 U.S. 1307, 1310 (1976) (Marshall, J.,
in chambers).  In this case, district court proceedings, and
specifically the filing of an answer, would inevitably risk the
disclosure of privileged matters that, if disclosed, would moot
further review of the court of appeals' denial of mandamus.  The
irreparable injury, therefore, plainly warrants issuance of a stay.
   4. Balance of Hardships.  Failure to grant a stay would, as we have
shown, irrevocably harm the United States by risking inevitable
disclosure of highly sensitive information.  Given that discovery has
been stayed, requiring the government to file an answer will not
advance this litigation and will not harm respondent.  The short delay
to respondent occasioned by the stay of discovery cannot outweigh the
loss to the government of its ability to protect state secrets and to
preserve its right to meaningful further review by this Court if we
are required to answer the complaint.  The balance of hardship plainly
favors issuance of a stay of all proceedings.
   5. The Public Interest.  The public interest asserted by the
government also favors a stay of all proceedings.  As Judge Ginsburg
observed, "(t)he interest at issue in this case is not simply that of
a private party in maintaining the continued confidentiality of an
attorney-client communication, but rather the compelling interest of
the United States Government in maintaining, through a privilege
protected by constitutional principles of separation of powers,
(highly sensitive information)." Dissent slip op. at 18.  The
privilege is asserted in the public interest to protect this Nation's
security through protecting the confidentiality of its intelligence
sources and methods.  As this Court observed in Snepp v. United
States, 444 U.S. at 509 n.3, "(t)he Government has a compelling
interest in protecting both the secrecy of information important to
our national security and the appearance of confidentiality so
important to the effective operation of our foreign intelligence
service." This compelling public interest plainly supports issuance of
a stay of all proceedings pending certiorari.
                              CONCLUSION
   For the foregoing reasons, a stay of all district court proceedings
pending the filing and disposition of a petition for writ of
certiorari should be granted.
   Respectfully submitted.
   WILLIAM C. BRYSON
      Acting Solicitor General
   MAY 1989
   /1/ The court has granted a limited stay of discovery conditioned
on the government's filing a petition for writ of certiorari within 30
days from the date of the order.
   /2/ A copy of the Attorney General's public claim of state secrets
privilege is attached as appendix D to this Application.  The
classified in camera Geer Declaration will be provided directly to the
Chief Justice by the Department of Justice Court Security Officer
until arrangements can be made for the safe storage of classified
material at the Court.
   /3/ No discovery has in fact taken place.  On April 17, 1987, the
United States filed a motion to stay all proceedings pending appellate
review, and that motion remained pending until May 15, 1989, when the
district court ordered the government to answer the complaint.  The
same order stayed discovery pending issuance of a mandate from the
court of appeals.  The court of appeals order of May 23, 1989, stays
discovery for 30 days from the date of that order unless extended for
good cause or unless a petition for a writ of certiorari is filed
within that time.  App. A, infra.
   /4/ The FBI has reviewed the opinion for derivative classification
marking and has determined that some information may be disclosed.
The full text of Judge Ginsburg's opinion will be provided directly to
the Chief Justice by the Department of Justice Court Security Officer
until safe storage facilities are available at the Court.
   /5/ That motion was filed in conjunction with a motion for
certification of an interlocutory appeal.  The motion for
certification was denied on March 29, 1988.
   /6/ As stated above, the district court's order stays discovery
only pending the issuance of a mandate by the court of appeals, but no
mandate issues in a mandamus proceeding.  See D.C. Circuit Rule
15(b)(3).
   /7/ "(W)hen the government is a defendant, as under the Tort Claims
Act, an adverse finding cannot be rendered against it as the price of
asserting an evidentiary privilege.  This is not one of the terms upon
which Congress has consented that the United States be subjected to
liability." E. Cleary et al., McCormick on Evidence Section 109, at
234 (2d ed. 1972).
   /8/ The government does not take the position that every case in
which a claim of state secrets privilege is sustained requires
dismissal.  Dismissal is necessary only in those extremely rare cases
where the privilege extends to the core of the action itself and where
litigation necessarily risks compromise of privileged matters.  See,
e.g., Farnsworth Cannon, Inc. v. Grimes, 635 F.2d 268 (4th Cir. 1980);
 Fitzgerald v. Penthouse International Ltd., 776 F.2d 1236 (4th Cir.
1985);  cf. Totten v. United States, supra;  Weinberger v. Catholic
Action of Hawaii/Peace Education Project, supra.  If loss of
privileged information does not disable either party from proceeding,
dismissal is not necessary.  See e.g., United States v. Reynolds,
supra;  Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395 (D.C.
Cir. 1984).  This case falls in that limited category where the heart
of the action is itself a state secret.
   /9/ Similarly, Molerio v. FBI, 749 F.2d 815 (D.C. Cir. 1984), where
the court of appeals rendered a decision on the merits based on the
classified declaration supporting a claim of state secrets privilege,
deviates from the policy against maintenance of suits the trial of
which will inevitably lead to the disclosure of privileged
information.