holding that "discretionary function can derive only from properly delegated authority"
How later courts described this case
- holding that "discretionary function can derive only from properly delegated authority"
- stating in dicta that the warrantless mail openings at issue "might” have been lawful if conducted pursuant to authorization of the President (in light of his Article II power to conduct foreign affairs)
- explaining that a personal injury can result under the FTCA even when the plaintiff was not “touched physically” and “the sole damage claim [is] mental suffering”
- finding in FTCA case that the CIA had no authority and therefore no discretion to open U.S. first class mail departing for and arriving from the Soviet Union
Written by the judges who cited it.
The opinion
MOORE, Circuit Judge
(concurring in part; dissenting in part):
I concur in Judge Gurfein’s opinion both reluctantly and quite dubitante except as to part IV thereof, dealing with damages as to which I dissent. I say “reluctantly” because I cannot distinguish the Supreme Court’s decision in United States v. United States District Court, 407 U.S. 297 , 92 S.Ct. 2125 , 32 L.Ed.2d 752 (1972); I say “dubitante” because but for that decision I might have believed that the opening of Soviet Union-U.S.A. correspondence might well be a “discretionary function or duty on the part of a federal agency” particularly since it matters not “whether or not the discretion be abused”.
The CIA is an agency created by Congress to protect our national security in the international field. If the CIA’s powers should be expanded or particularized, Congress is always free to so act. In the meantime the courts will continue to be plagued with the necessity of evaluating and balancing the basic values to be resolved, namely, “the duty of Government to protect the domestic security, and the potential danger posed by unreasonable surveillance to individual privacy and free expression”. 407 U.S. at 315 , 92 S.Ct. at 2135 .
As to the amount awarded, even a one dollar sum (presumably the usual six cents *336 now raised to one dollar because of inflation) would not be justified. The plaintiffs who had written the letters knew their contents. If “mental anguish” resulted from a revelation of their contents, the anguish was of their own creation. If the anguish was in the mind of the recipient, it was not created or enhanced by the government’s mail opening. I would, therefore, restrict the damages to one dollar.