Totten v. United States, 92 U.S. 105 (1876). · Go Syfert
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Totten v. United States, 92 U.S. 105 (1876). Cases Citing This Book View Copy Cite
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Public policy forbids maintaining a lawsuit if the trial would inevitably lead to the disclosure of matters the law regards as confidential.

An estate brings an action to recover unpaid compensation for services rendered by a deceased agent under a contract with the President to gather intelligence within enemy lines during wartime. The court considers whether the government can be sued to enforce such a contract. Because the nature of the employment requires absolute secrecy, the court holds that the very act of litigating the claim would necessitate the disclosure of confidential information. Public policy forbids the maintenance of a suit in a court of justice if the trial would inevitably lead to the disclosure of matters the law regards as confidential. Therefore, the claim is barred.

648 citation events (400 in the last 25 years) across 48 distinct courts.
Strongest positive: Doe v. United States, 95 Fed. Cl. 546 (Fed. Cl. 2010)
Treatment trajectory · 1903 → 2026 · click a year to view as-of
1903 1964 2026
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At page 107 Developing public policy for confidential information and privilege39 citing cases“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.”18 citing courts quote it · 36 listed here
Show 26 more citing cases
  • Zaidan v. Trump, No. 2017-0581 (D.D.C. Sept. 24, 2019).published
    Where there is a strong showing of necessity, the claim of privilege should not be lightly accepted, but even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets a…
  • Yassir Fazaga v. Fbi, 916 F.3d 1202 (9th Cir. 2019).published
    A. The State Secrets Privilege “The Supreme Court has long recognized that in exceptional circumstances courts must act in the interest of the country’s national security to prevent disclosure of state secrets, even to the point of dismiss…
  • Al-Aulaqi v. Panetta, 35 F. Supp. 3d 56 (D.D.C. 2014).published
    "The state secrets privilege is premised on the recognition that ‘in exceptional circumstances courts must act in the interest of the country’s national security to prevent disclosure of state secrets, even to the point of dismissing a cas…
  • Al-Aulaqi v. Obama, No. 2010-1469 (D.D.C. Dec. 7, 2010).published
    The state secrets privilege is premised on the recognition that "in exceptional circumstances courts must act in the interest of the country's national security to prevent disclosure of state secrets, even to the point of dismissing a case…
  • Binyam Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070 (9th Cir. 2010).published 12 cites
    “as a general principle[ ] 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 confiden- tial”
  • Amer Civil Liberties v. Natl Sec. Agcy, No. 06-2140 (6th Cir. July 6, 2007).published
    (espionage contract)
  • Richard Schneider v. City of Jackson, No. W2005-01234-COA-R3-CV (Tenn. Ct. App. June 14, 2006).published
    App. Ct. 1992). -14- regards as confidential, and respecting which it will not allow the confidence to be violated.” Totten v. United States, 92 U.S. 105, 107 (1875).
  • Legal Authorities Supporting the Activities of the Nat'l Sec. Agency Described by the President (OLC 2006).published 3 cites
    He has his agents in the form of diplomatic, consular and other officials.”); Totten v. United States, 92 U.S. 105, 106 (1876) (President “was undoubtedly authorized during the war, as commander-in-chief . . . to employ secret agents to en…
  • Tenet v. Doe, 544 U.S. 1 (2005).published 4 cites
    In fact, Totten was not so limited: “[P]ub-lic 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.” Id., at 1…
  • Doe v. Tenet, 329 F.3d 1135 (9th Cir. 2003).published 16 cites
    “[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 law itself regards as confidential, and respecting which it will…”
  • Rubin v. United States ex rel. Indep. Couns., 525 U.S. 990 (1998).published 2 cites
    (explaining how common-law courts developed lawyer-client privilege and spousal privilege between the 16th and 19th centuries)
  • Pratt v. Hercules, Inc., 570 F. Supp. 773 (D. Utah 1982).published
    “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 n…”
  • Weinberger v. Catholic Action of Hawaii/Peace Educ. Proj., 454 U.S. 139 (1981).published 2 cites
    “public policy forbids the maintenance of any suit in a court of *147 justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential, and respecting which it w…”
  • United States v. Reynolds, 345 U.S. 1 (1953).published
    S. § 161 is only a legislative recognition of an inherent executive power which is protected in the constitutional system of separation of power. 10 28 U. S. C. (1946 ed.) § 932; United States v. Yellow Cab Co., 340 U. S. 543, 553 (1951).…
  • Richard J. Ley v. Denis McDonough, No. 23-1547 (Vet. App. Jan. 2, 2025).published
    Again, while the opinion couches this discussion in terms of the Silva test's undue prong, the government's argument and the court's response in Taylor function to the effect that a justified interference would not be undue. 126 Id. 127 Id…
  • United States v. Zubaydah, No. 20-827 (U.S. July 13, 2022).published 5 cites
    See Totten v. United States, 92 U. S. 105, 107 (1876). make out [his] case without forcing a showdown on the claim of privilege.” Reynolds, 345 U. S., at 11 .
  • United States v. Zubaydah, 595 U.S. 195 (2022).published 10 cites
    See Totten v. United States, 92 U. S. 105, 107 (1876). make out [his] case without forcing a showdown on the claim of privilege.” Reynolds, 345 U. S., at 11 .
  • Jewel v. Nat'l Sec. Agency, 965 F. Supp. 2d 1090 (N.D. Cal. 2013).published
    See Totten, 92 U.S. at 107 .
  • Mohamed v. Jeppesen Dataplan, Inc., 579 F.3d 943 (9th Cir. 2009).published 2 cites
    See Totten, 92 U.S. at 106 .
  • Binyan Mohamed v. Jeppesen Dataplan Inc, 563 F.3d 992 (9th Cir. 2009).published
    See Totten, 92 U.S. at 106 .
  • El-Masri v. United States, 479 F.3d 296 (4th Cir. 2007).published 8 cites
    See Totten, 92 U.S. at 107 ; Reynolds, 345 U.S. at 11 n. 26, 73 S.Ct. 528 .
  • In re United States of Am., 872 F.2d 472 (D.C. Cir. 1989).published
  • Hudson River Sloop Clearwater, Inc. v. Dep't of the Navy, 891 F.2d 414 (2d Cir. 1989).published
  • Al-Haramain Islamic Found., Inc. v. Bush, 507 F.3d 1190 (9th Cir. 2007).published
  • Frost v. Perry, 919 F. Supp. 1459 (D. Nev. 1996).published
  • Wilson v. Libby, 498 F. Supp. 2d 74 (D.D.C. 2007).published
At page 106 Authorizing president's use of secret agents in war12 citing cases“both employer and agent must have understood that the lips of the other were to be for ever sealed respecting the relation of either to the matter.”4 citing courts quote it
  • Doe v. United States, 95 Fed. Cl. 546 (Fed. Cl. 2010).published 2 cites
    (The service stipulated by the contract was a secret service; the information sought was to be obtained clandestinely, and was to be communicated privately; the employment and the service were to be equally concealed ..…)
  • Yassir Fazaga v. Fbi, 965 F.3d 1015 (9th Cir. 2020).published 2 cites
    A. The State Secrets Privilege “The Supreme Court has long recognized that in exceptional circumstances courts must act in the interest of the country’s national security to prevent disclosure of state secrets, even to the point of dismiss…
  • Legal Authorities Supporting the Activities of the Nat'l Sec. Agency Described by the President (OLC 2006).published 3 cites
    (President “was undoubtedly authorized during the war, as commander-in-chief . . . to employ secret agents to enter the rebel lines and obtain information respecting the strength, resources, and movements of the enemy)
  • Doe v. Tenet, 329 F.3d 1135 (9th Cir. 2003).published 16 cites
    B. 48 The other element of Totten is an early expression of the evidentiary state secrets privilege: " [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…
  • Presidential Discretion to Delay Making Determinations Under the Chem. & Biological Weapons Control & Warfare Elimination Act of 1991 (OLC 1995).published
    (The President “ was undoubtedly authorized during (he [Civil] war, as commander-in-chief of the armies o f the United States, to employ secret agents to enter the rebel lines and obtain information respecting the streng…)
  • Dep't of the Navy v. Egan, 484 U.S. 518 (1988).published 2 cites
    See also United States v. Robel, 389 U. S. 258, 267 (1967); United States v. Reynolds, 345 U. S. 1, 10 (1953); Totten v. United States, 92 U. S. 105, 106 (1876).
  • Fazaga v. Fed. Bureau of Investigation, 884 F. Supp. 2d 1022 (C.D. Cal. 2012).published 2 cites
    (barring suit by Civil War spy against the United States for alleged failure to pay for espionage services because the case was predicated on the existence of an undisclosed contract for secret services with the governme…)
  • Mohamed v. Jeppesen Dataplan, Inc., 579 F.3d 943 (9th Cir. 2009).published 2 cites
    See Totten, 92 U.S. at 106 .
  • Binyan Mohamed v. Jeppesen Dataplan Inc, 563 F.3d 992 (9th Cir. 2009).published
    See Totten, 92 U.S. at 106 .
  • Wilson v. Libby, 535 F.3d 697 (D.C. Cir. 2008).published 4 cites
    See generally Totten, 92 U.S. at 106; Haig v. Agee, 453 U.S. 280 , 285 & n. 7, 101 S.Ct. 2766 , 69 L.Ed.2d 640 (1981).
Show 2 more citing cases
23 L. Ed. at 605 “suits cannot be maintained which would require a disclosure of the confidences of the confessional[.]”1 citing case1 citing court quotes it
  • State v. J.G., 990 A.2d 1122 (N.J. 2010).published
    “suits cannot be maintained which would require a disclosure of the confidences of the confessional[.]”
At page 105 “inevitably lead to the disclosure of matters which the law itself regards as confidential”1 citing case1 citing court quotes it
  • Yassir Fazaga v. Fbi, 124 F.4th 637 (9th Cir. 2024).published
    “inevitably lead to the disclosure of matters which the law itself regards as confidential”
Other citing cases5 with no pin cite or quoted language on record
Retrieving the full opinion text from the archive…
Totten, Administrator,
v.
United States
167.
Supreme Court of the United States.
Apr 10, 1876.
Published opinion
92 U.S. 105
1875 U.S. LEXIS 1732
✓ 2 Otto 105
Mr. Enoch Totten for the appellant., Mr. Assistant Attorney-General Edwin B. Smith, contra.
Field.
Cited by 214 opinions  |  Published
3 passages pin-cited by 5 cases
Pinpoint authority: #16,346 of 633,719
Citer courts: Sixth Circuit (4) · Ninth Circuit (2) · Federal Circuit (2) · Connecticut Superior Court (2)
Mr. Justice Field

delivered the opinion of the court.

This case comes before us on appeal from the Court of Claims. The action was brought to recover compensation for services alleged to have been rendered by the claimant’s intestate, William A. Lloyd, under a contract with President Lincoln, made in July, 1861, by which he was to proceed South and ascertain the number of troops stationed at different points in the insurrectionary States, procure plans of forts and fortifications, and gain such other information as might be beneficial[*106] to the government of the United States, and report the facts to the President; for which services he was to be paid $200 a month.

The Court of Claims finds that Lloyd proceeded, under the contract, within the rebel lines, and remained there during the entire period of the war, collecting, and from time to time transmitting, information to the President; and that, upon the close of the war, he was only reimbursed his expenses. But the court, being equally divided in opinion as to the authority of the President to bind the United States by the contract in question, decided, for the purposes of an appeal, against the claim, and dismissed the' petition.

We have no difficulty as to the authority of the President in the matter. He was undoubtedly authorized during the war, as commander-in-chief of the armies of the United States, to employ secret agents to enter the rebel lines and obtain information respecting the strength, resources, and movements of the enemy; and contracts to compensate such agents are so far binding upon the government as to render it lawful for the President to direct payment of the amount stipulated out of the contingent fund under his control. Our objection is not to the contract, but to the action upon it in the Court of Claims. The service stipulated by the contract was a secret service; the information sought was to be obtained clandestinely, and was to be communicated privately; the employment and the service were to be equally concealed. Both employer and agent must have understood that the lips of the other were to be for ever sealed respecting the relation of either to the matter. This condition of the engagement was implied from the nature of the employment, and is implied in all secret employments of the government in time of war, or upon matters affecting our foreign relations, where a disclosure of the service might compromise or embarrass our government in its public duties, or endanger the person or injure the character of the agent. If upon contracts of such a nature an action against the government could be maintained in the Court of Claims, whenever an agent should deem himself entitled to greater or different compensation than that awarded to him, the whole service in any case, and the manner of its discharge, with the details of deal[*107] ings Avitb individuals and officers, might be exposed, to the serious detriment of the public. A secret service, with liability to publicity in this way, would be impossible; and, as such services are sometimes indispensable to the government, its agents in those services must look for their compensation to the contingent fund of the department employing them, and to such allowance from it as those Avho dispense that fund may aAVard. The secrecy Avhich such contracts impose precludes any action for their enforcement. The publicity produced by an action Avould itself be a breach of a contract of that kind, and thus defeat a recovery.

It may be stated as a general principle, 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 laAv itself regards as confidential, and respecting which it will not allow the confidence to be violated. On this principle, suits cannot be maintained which would require a disclosure of the confidences of the confessional, or those between husband and wife, or of communications by a client to his counsel for professional advice, or of a patient to his physician for a similar purpose. Much greater reason exists for the application of the principle to cases of contract for secret services with the government, as the existence of a contract of that kind is itself a fact not to be disclosed.

Judgment affirmed.