* * * the rules of practice obtaining in like cases between private parties,' unless that had been the intention. Had it been otherwise, Sec. 2 of the Suits in Admiralty Act, 46 U.S.C.A. § 742, providing that a libel in personam may be brought against the United States, without more, is quite sufficient to have brought the litigation within the scope of ordinary admiralty practice. Certainly the right accorded to seamen to sue the government by the Suits in Admiralty Act would be of very little value if the government could in its character as sovereign refuse to comply with any order of the Court in procedural matters without incurring any penalty or disadvantages. Upon this point I agree fully with the excellent opinion of Judge Rifkind in Bank Line v. United States, D.C., 76 F.Supp. 801, and need not elaborate.
The final contention made by the government is that, entirely apart from any statute, the Attorney General personifying the executive branch of the government, is free to refuse disclosure of any evidence in his possession, regardless of its character, for any reason which may seem to him sufficient -- free, in the sense that compulsory process against him is beyond the constitutional power of the legislature to authorize or the Court to issue, physical compulsion being, of course, out of the question. The basis of this contention is the constitutional theory of the separateness and mutual independence of the three coordinate branches of the government.
The question is one which has arisen many times in our history but I do not think that it is presented in this case. Admiralty Rule 32C does provide that a party or witness refusing to make disclosure may be held in contempt, but this Court has not been asked for a contempt order and does not intend to enter one. Consequently, the constitutionality and validity of that particular portion of Rule 32C is not now before this Court, nor is the question of how far, if at all, an officer or employee of the executive is amenable to compulsory process.
Nor can it be said that the remedy asked for amounts to compulsion under another form. True, if the Attorney General refuses to make the disclosure the government will incur certain procedural disadvantages by way of penalty and may lose its case, but it is the government that is being sued, not the Attorney General, and the government has consented. When it enacted the Suits in Admiralty Act, Congress was in essence authorizing the payment out of the Treasury of money upon judgments obtained in such suits. It was entirely within the constitutional powers of Congress to set up any procedure it pleased by which a suitor in such case could obtain a judgment. It could have curtailed or eliminated defenses, or handicapped the government procedurally in any manner. Actually, it went no further than to provide that certain omissions and defaults in the course of a suit would have the same effect in the case of the government as in the case of a private litigant.
No doubt the Attorney General is put to a choice, but it is not in this case (nor will it be in any case) the dilemma between jeopardizing the military or diplomatic interests of the nation and running the risk of losing the lawsuit. The general policy of the common law makes such state secrets absolutely privileged and neither the Act nor the Rules indicate an intention to predicate a default upon refusal to disclose privileged matter -- though I see no reason why they might not have done so. The Attorney General's choice is merely between adhering to a general policy which involves little more than departmental routine and permitting the government to incur procedural penalties which may result in a judgment against it, a consequence to which Congress has given the government's consent.
In applying the sanctions by Rule 32C for refusal to make disclosure the Court has a wide discretion. The libellant in this case has asked for judgment by default. I do not think that in the present case this remedy is appropriate. Although Rule 55(e) of the Rules of Civil Procedure, providing that no default shall be entered against the United States unless the claim for relief is established by satisfactory evidence, does not apply to admiralty proceedings, I think the policy of the Rule is generally sound and is particularly applicable to a case like the present. I think that it would be proper to make an order refusing to allow the government in this case to oppose the libellant's claim that his injury was due to negligence on the part of the personnel of the Cedar Mills or the unseaworthiness of the vessel, or both.
An order may be presented.
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