Plaintiffs, foreign nationals, filed suit in May 2007 in United States District Court for the Northern District of California against Jeppesen DataPlan, Inc., a subsidiary of Boeing Company, for its participation in a U.S. extraordinary rendition program operated by the Central Intelligence Agency (CIA) that apprehended, transported, imprisoned, interrogated, and, in some instances, tortured the plaintiffs. Represented by the American Civil Liberties Union, plaintiffs brought action under the Alien Tort Statute, 28 U.S.C. § 1350, alleging that Jeppesen provided flight planning and logistical support of the extraordinary rendition of plaintiffs, with knowledge that its involvement would lead to unlawful apprehension, detention, and possible torture.

In October 2007, the United States moved to intervene and moved to dismiss the case, asserting the "states secret" privilege. Then-director of the CIA, General Michael Hayden, filed declarations in support of the motion to dismiss, asserting that disclosure of information could cause serious or grave damage to national security. After conducting a hearing, the district court granted the motion to intervene and to dismiss. Mohamed v. Jeppesen DataPlan, Inc., 539 F. Supp. 2d 1128 (N.D. Cal. 2008).

Plaintiffs immediately appealed to the United States Court of Appeals for the Ninth Circuit. The Ninth Circuit remanded the case, ruling that the states secret privilege in this context operated only as an evidentiary privilege, the exact parameters of which were indeterminate until plaintiffs made an actual request for discovery of specific evidence. Mohamed v. Jeppesen DataPlan, Inc., 563 F. 3d 992 (9th Cir. 2009), amended by 579 F. 3d 943 (9th Cir. 2009).

Meanwhile, Barack Obama succeeded George W. Bush as President of the United States. His administration announced new policies for invoking the states secrets privilege and reviewed the assertion of privilege in this case. Government then requested the Ninth Circuit for a rehearing en banc, which the court granted. Mohamed v. Jeppesen DataPlan, Inc., 586 F.3d 1108 (9th Cir. 2009).

Upon rehearing, an eleven judge panel of the Ninth Circuit affirmed the district court order of dismissal. Even though plaintiff's prima facie case and Jeppesen's defenses may not have depended on privileged evidence, the court found that "the facts underlying plaintiffs' claims are so infused with state secrets, " there was "no feasible way to litigate Jeppesen's alleged liability without creating an unjustifiable risk of divulging state secrets." Mohamed v. Jeppesen DataPlan, Inc., 614 F.3d 1070, 1088, 1087 (9th Cir. 2010). The Ninth Circuit then noted possible nonjudicial relief, including government-provided reparations, a Congressional investigation and legislation restraining the executive branch, Congressional legislation enacting a private bill, and Congressional legislation enacting remedial schemes to address claims like plaintffs'. Id. at 1091-92.

Plaintiffs appealed to the Supreme Court of the United States, which denied certiorari in May 2011.

Elizabeth Homan - 11/18/2013


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