Petition for Writ of Certiorari — Kinoy v. Tolson

88 “892.

IN THE

Supreme Court of the United S ite

OCTOBER TERM, 1988

>

ARTHUR KINOY,

Petitioner,

—

-eretotthetnited states: CLYDE A TOLSON, as executor of

the Estate of J. Edgar Hoover; WHITNEY NORTH SEY-

MOUR, individually and as former United States Attorney

for the Southern District of New York; ‘‘ JOHN DOE,”’ indi-

vidually and as an agent of the Federal Bureau of Investiga-

tion; “*RICHARD ROE," individually and as an agent of the

Federal Bureau of Investigation; and the UNITED STATES

OF AMERICA,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

MICHAEL RATNER*

MAHLON F. PERKINS, JR.

Center for Constitutional Rights

666 Broadway

New York, New York 10012

(212) 614-6447

HENRY F. FURST

$2 Upper Montclair Plaza

Upper Montclair, NJ 07042

*Counsel of Record for Petitioner

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND C IT

Petitioner Arthur Kinoy petitions

for a writ of certiorari to review the

judgment of the Court of Appeals for the

Second Circuit entered in this proceeding

on July 1, 1988.

QUESTIONS PRESENTED

1) Whether an attorney whose

confidential communications with his

clients have been subjected to unlawful

electronic surveillance by the United

States Government in violation of the

Sixth Amendment rights of his clients may

assert the violation of his own

constitutional rights under the Fifth

Amendment as the result of such

surveillance?

2) Whether an attorney who has

standing to assert the violation of his

clients' Sixth Amendment rights as the

basis for seeking injunctive and

ii

declaratory relief may also assert such

rights as the basis for seeking

compensation for the injury he has

thereby suffered?

PARTIES TO THE PROCEEDINGS

Petitioner Arthur Kinoy, the

appellee in the Court of Appeals and the

remaining plaintiff in this action, is a

licensed attorney-at-law. The appellants

in the Court of Appeals and remaining

defendants are Clyde A. Tolson, as

executor of the Estate of J. Edgar

Hoover; Whitney North Seymour, sued

individually and as former United States

Attorney for the Southern District of New

York; and "John Doe" and “Richard Roe,"

sued individually and as agents of the

Federal Bureau of Investigation. ?}

1 John N. Mitchell, sued

individually and as former Attorney

General of the United, and recently

deceased, was not a party to the appeal.

The United States was dismissed as a

party defendant by stipulation. See p.2,

n.3, intre,

QUESTIONS PRESENTED

PARTIES TO THE PROCEEDINGS

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL PROVISIONS

STATEMENT OF THE CASE .

iii

TABLE OF CONTENTS

REASONS FOR GRANTING THE WRIT .

CONCLUSION

ii

iv

vi

iv

TABLE OF AUTHORITIES

Aiken v. Obledo. 442 F.Supp.

628, 644-45 (E.D.Cal. 1977) “te Sa ae ee ee

Bell _v. Hood, 327 U.S.

678, 684 (1946) ...4 +2422 © © «© « 2l

Bivens v. Six Unknown Named

Agents of Federal Bureau

of Narcotics, 403 U.S. 388

(1971) * *. . J > >. * >. * * > J J >. > J 20

Doe v. Bolton, 410 U.S. 179

[auras «© © eeeeseeaeéee ee & eo Re

Epperson v. Arkansas, 393 U.S.

97 (1968) * > * J . *. . >. > * . . . . 12

In re Investigation Before

April 1975 Grand Jury, 531 F.2d

600, 606, n.10 (App.D.C. 1976) .... 19

Keker v. Procunier, 398 F. Supp.

756, 760-61 (E.D. Cal. 1975) ... 14, 21

Meyer v. Nebraska, 262 U.S.

390, 399-400 (1923) .2«-e«e ce eee 10

Mitchell v. Forsyth, 472 U.S. 511

>: Sie a-Si are

Nyberg v. City of Virginia, 495 F.2d

1342 (8th Cir. 1974), cert. denied,

419 U.S. 891 (1974) : 2 2 2 «8. @ © « « Be

Singleton v. Wulff, 428 U.S.

Ss ae Oe rere: ee

Vv

Wounded Knee Legal Defense/

Offense Committee v. FBI, 507 F.2d

1264 (0th Cie. 29746) «sw so ss SS

OPINIONS W

The Court of Appeals for the Second

Circuit issued a decision on July 1, 1988

reversing a judgment of the U.S. District

Court for the Southern District of New

York which denied defendants' motion for

summary judgment. A copy of its opinion,

as yet unreported, is annexed as Appendix

A. A copy of the District Court's

Memorandum and Order of March 26, 1987

denying defendants' motion for reargument

of their summary judgment motion, also

unreported, is annexed as Appendix B.

JURISDICTION

The judgment of the Court of Appeals

was entered on July 1, 1988. On

September 22, 1988 Justice Marshall

Signed an order extending the time to

vi

file a petition for certiorari to and

including November 28, 1988. The

jurisdiction of this Court is invoked

pursuant to 28 U.S.C. Sec. 1254 (1).

CONSTITUTIONAL PROVISIONS

United States Constitution,

Amendment V:

No person shall be held to

answer for a capital, or otherwise

infamous crime, unless on a

presentment or indictment of a Grand

Jury, except in cases arising in the

land or naval forces, or in the

Militia, when in actual service in

time of War or public danger; nor

shall any person be subject for the

same offence to be twice put in

jeopardy of life or limb; nor shall

any person be compelled in any

criminal case to be a witness

against himself, nor be deprived of

life, liberty, or property, without

due process of law; nor shall

private property be taken for public

use without just compensation.

United States Constitution,

Amendment VI:

In all criminal prosecutions,

the accused shall enjoy the right to

a speedy and public trial, by an

impartial jury of the State and

district wherein the crime shall

have been committed; which district

shall have been previously

vii

ascertained by law, and to be

informed of the nature and cause of

the accusation; to be confronted

with the witnesses against him; to

have compulsory process for

obtaining witnesses in his favor,

and to have the assistance of

counsel for his defence.

STATEMENT OF THE CASE

Petitioner Arthur Kinoy is a noted

lawyer and professor of constitutional

law who has distinguished himself as an

advocate of civil rights and civil

liberties and as a criminal defense

attorney. He has served as counsel of

record in a number of landmark cases in

this Court? and in at least 150 other

reported cases. In his career as a

"people's lawyer" he has frequently been

an adversary of the federal government in

criminal as well as civil litigation.

Kinoy's confidential conversations

with his clients have been subjected to

two lengthy episodes of warrantless

electronic surveillance by the federal

2 These include Dombrowski v.

Pfister, 380 U.S. 479 (1965), Dombrowski

v. Eastland, 387 U.S. 82 (1967), Powell

v.McCormack, 395 U.S. 486 (1969), and

United States v. United States District

Court, 407 U.S. 297 (1972) ("Keith").

2

government. The first began in 1948,

while he was employed as Assistant

General Counsel in the national office of

the United Electrical, Radio and Machine

Workers of America and continued

throughout the McCarthy era until the

mid-1950's, when he had left the union

and established a private practice. The

second began in the late 1960's, the time

of the Vietnam War protests, and

continued into the early 1970's.? The

Attorney General maintained that he

ordered this wholesale eavesdropping on

the view, now discredited, that the

Executive had inherent power to eavesdrop

on any person or organization it deemed a

threat to national security. For

seventeen years the government has

3 It is ironic that at the very

time Kinoy was preparing to argue Keith

before this Court, the government was

still engaged in an all-out invasion of

his confidential communications with his

clients.

3

resisted providing all the interceptions

it nas. Despite court orders it still

withholds more than 1,000 logs (each

containing numerous conversations) of

these intercepts, which it calls

"incidental overhears." Kinoy seeks

damages for this massive violation of the

Fifth and Sixth Amendment rights

guaranteed by the Constitution to himself

and his clients.

This action was commenced in 1971 by

Kinoy and his daughter Joanne* by order

to show cause to quash a subpoena

4 Joanne Kinoy was dismissed as a

plaintiff as part of a stipulation of

settlement, approved by the District

Court on December 28, 1987, in which the

United States was dismissed as a

defendant and plaintiffs' claims for

injunctive and declaratory relief were

dismissed, all with prejudice, on the

basis of representations by defendants

that there was not currently any unlawful

surveillance of Arthur or Joanne Kinoy

and a promise by the United States

Government that it would not undertake

any electronic surveillance of Arthur or

Joanne Kinoy in the future except

pursuant to lawful authority and the

mandate of the Constitution.

4

compelling their testimony before a grand

jury. In re Kinoy, 326 F. Supp. 407

(S.D.N.Y. 1971). In 1972 the complaint

was amended to assert a claim for damages

for electronic surveillance in violation

of the First, Fourth, Fifth, Sixth, and

Ninth Amendments. The intervening years

have been largely occupied in combating

the government's stubborn resistance to

discovery, including disputes over claims

of privilege that took years to resolve.

On May 8, 1986 defendants moved for

summary judgment on the ground, inter

alia, that the complaint failed to state

a valid constitutional claim. Ata

hearing on February 4, 1987 the District

Court dismissed the claims based on

Fourth Amendment violations, finding that

defendants were entitled to qualified

immunity pursuant to Mitchell v. Forsyth,

472 U.S. 511 (1985). But it refused to

rule that defendants were also entitled

5

to qualified immunity for their alleged

violations of the Fifth and Sixth

Amendments. The court noted that the

extensive wiretapping of attorney-client

conversations created a “presumption of

use" and denied summary judgment "without

prejudice to renewal following the

completion of reasonable discovery on the

issue of what use the Government, may have

made of the interceptions of plaintiffs'

telephone conversations." Memorandum

Endorsement and Order, February 6, 1987.

Defendants promptly noticed an

appeal as of right from the denial of

qualified immunity and also moved for

reargument or, in the alternative, for

certification of the summary judgment

order and a stay of discovery pending

appeal. In its Memorandum and Order of

March 26, 1987, (App. B) the District

Court denied reargument but granted the

motions for certification and stay of

6

discovery. The court commented that the

pplication of Mitchell v. Forsyth to

Fifth and Sixth claims was one of first

impression and that this case was likely

to have "significant precedential value."

Id. at Al3. On the issue of standing,

the court found it clear that Kinoy could

maintain this action on his own behalf

and on behalf of clients whose

conversations were overheard. Id. at A

11-12.

In its decision of July 1, 1988,

reversing the District Court's denial of

summary judgment and remanding for the

entry of judgment dismissing the

complaint (App. A), the Court of Appeals

did not find it necessary to reach the

question of qualified immunity (Id. at

A6), the only issue as to which

defendants were entitled to an

interlocutory appeal as of right, but

simply held that “under the Fifth and

—

4

Sixth Amendments there is not and never

has been a recognized constitutional

right of an attorney, as distinguished

from any right of his client, to

communicate with the client free from

government intrusion when national

security interests are implicated, ..."

Id. at A8. As to any claim based on

standing to assert his clients' rights,

the court stated without discussion that

Kinoy "seeks only damages" and thus his

action "differs from those in which a

plaintiff, basing his claim at least in

part on the rights of another -- for

example, a physician's patient or an

attorney's client -- sought only

declaratory and injunctive relief."

REASONS FOR GRANTING THE WRIT

Disdaining to decide or even discuss

the issues presented to it for decision,

the Court of Appeals, without pretense

of analysis, has blithely announced a

8

startling constitutional proposition of

enormous and fearsome scope: under no

set of circumstances may an attorney

assert his right to be free of unlawful

intrusion by the government into his

relationship with his clients. It

matters not, under the court's rubric,

how pervasive the intrusions, how clearly

violative of the constitutional right to

the effective assistance of counsel, or

what injury has been inflicted on the

attorney as well as on his client, the

attorney has no redress. While the

language of the court seems to limit its

holding to cases "when national security

interests are implicated," nothing in its

cursory discussion reveals why it should

be so limited.° This unprecedented

5 The claimed national security

basis of the surveillance only has to do

with the question whether the admitted

warrantless electronic surveillance of

Kinoy's communications with his clients

was a Clearly established violation of

their Sixth Amendment rights at the time

nian

9

restriction on the constitutional right

of an attorney to preserve the sanctity

of the attorney-client relationship

surely calls for review by this Court.

It is in direct conflict with the

decision of the United States Court of

Appeals for the Eighth Circuit in Wounded

Knee Legal Defense/Offense Committee v.

FBI, 507 F.2d 1281 (8th Cir. 1974),

relied on by the District Court, and

departs from principles set forth in the

decisions of this Court that have

accorded standing to physicians to bring

suit to vindicate the constitutional

rights of their patients.

Equally novel and far-reaching in

its implications is the dismissal of

Kinoy's claims on the ground that he

seeks “only” damages. The inescapable

it occurred. That is, it is pertinent

only to the issue of qualified immunity

which the court never addressed, not to

the issue of Kinoy's right to assert a

claim growing out of a violation.

10

inference is that standing to seek relief

from prospective violations of the

constitutional rights of third parties

does not encompass any concomitant remedy

in damages for past violations. The

court below has cited no case to support

such an extraordinary theory, which runs

counter to the principles on which this

Court grants standing and is again in

direct conflict with the decision of the

Eighth Circuit in Wounded Knee.

Kinoy's Constitutional Right

To Practice Law

The due process guaranteed by the

Fifth Amendment includes the right of the

individual "to engage in any of the

common occupations of life" without

arbitrary interference by the government.

Meyer v. Nebraska, 262 U.S. 390, 399-400

(1923) (reversing the conviction of a

school teacher for teaching German to a

grade-school child). A lawyer surely has

a Fifth Amendment right to practice his

11

profession without unlawful governmental

intrusion into the attorney-client

relationship which is the profession's

very foundation. In Singleton v. Wulff,

428 U.S. 106 (1976), this Court held that

physicians whose practice included the

performance of abortions had standing to

challenge the constitutionality of a

Missouri statute prohibiting medicaid

reimbursement for abortions that are not

"medically indicated." While the Court

divided on the question whether for

prudential reasons the plaintiffs should

be permitted to assert the constitutional

rights of their patients to equal

protection, all the Justices concurred

that they had standing to assert their

own constitutional rights to practice

medicine. As put by Justice Stevens:

In this case (1) the plaintiff-

physicians have a financial stake in

the outcome of the litigation, and

(2 they claim that the statute

impairs their own constitutional

rights. They therefore clearly have

12

standing to bring this action.

428 U.S. at 121. Cf£. Doe v. Bolton, 410

U.S. 179 (1973) (physicians granted

standing to challenge Georgia statutes

limiting abortions which they alleged

chilled and deterred them from practicing

their profession); Epperson v. Arkansas,

393 U.S. 97 (1968) (school teacher

granted right to challenge Arkansas anti-

evolution statute).

In Nyberg v. City of Virginia, 495

F.2d 1342 (8th Cir. 1974), cert. denied,

419 U.S. 891 (1974), doctors had attacked

a resolution of a municipal hospital

prohibiting the use of hospital

facilities for the performing of any

abortion not necessary to preserve the

mother's life, claiming that it was an

encroachment on their constitutionally

guaranteed rights. Holding that they had

standing to maintain the action, the

court said unequivocally:

13

We think that the Supreme Court in

Roe v. Wade, 410 U.S. 113, 93 S.Ct.

705, 35 L.Ed.2d 147 (1973) and Doe

v. Bolton, 410 U.S. 179, 93 S.Ct.

739, 35 L.Ed.2d 201 (1973) has

clearly paved the way for physicians

to assert their constitutional

rights to practice medicine, which

now includes the right to advise and

perform abortions. .. . Clearly the

Claims of medical doctors to ‘freely

practice medicine according to the

highest medical standards without

arbitrary outside restraints' are

inextricably bound up with the

privacy rights of women who seek

abortions. [Citation omitted. }

495 F.2d at 1344.

The Nyberg holding as to the

professional rights of doctors was

extended a fortiori to the professional

rights of lawyers in Wounded Knee, supra.

The Wounded Knee Legal Defense/Offense

Committee, which had been formed to

provide free legal aid to the native

Americans charged with the occupation of

Wounded Knee, South Dakota, brought suit

against the FBI charging that FBI agents

had harassed and intimidated its members

in violation of their Fourth Amendment

————————————

14

rights and the Sixth Amendment rights of

their clients. In reviewing the denial

of an application for a preliminary

injunction, the court said:

At issue in the merits of the

case (not yet determined) is the

right of members of the Committee to

provide effective assistance of

counsel to their Indian clients who

wish to avail themselves of their

Sixth Amendment rights.

507 F.2d at 1284. Quoting Nyberg, it

continued:

With even stronger force it may be

said that a lawyer has standing to

challenge any act which interferes

with his professional obligation to

his client ...« «

Ibid. See, also, Keker v. Procunier, 398

F. Supp. 756, 760-61 (E.D.Cal. 1975), in

which the court stated that it could

discern no reason why attorneys should

not be afforded the same scope of

constitutional protection as is afforded

to physicians; that the right to practice

a profession necessarily includes the

right to practice according to the

15

highest standards of the profession, and

that "the foundation of the legal

practice is the right to maintain the

privacy and freedom from intrusion

essential to the attorney-client

relationship."

Petitioner submits that the cases

cited establish his independent |

constitutional right to practice law

without hindrance from unlawful intrusion

by federal or other governmental agencies

into the privacy of his relationships

with his clients, and that the holding of

the court below is in direct conflict

with those cases.

Kinoy's Standing To Assert

The Constitutional Claims Of His Clients

Separate from, though closely

associated with, Kinoy's standing to

assert the violation of his own

constitutional right to practice iaw is

his standing to vindicate the Sixth

Amendment rights of his clients. The

EEE eee

16

court's opinion is not entirely free from

ambiguity on this score. Its principal

thesis is that Kinoy possessed (and

possesses) no independent right to be

free of governmental intrusion into his

attorney-client relationships. Its

"further" thesis is that Kinoy, having

secured injunctive relief, is not

entitled to damages, his action thereby

"differing from those in which a

plaintiff, basing his claim at least in

part on the rights of another -- for

example, a physician's patient or

attorney's client -- sought only

declaratory and injunctive relief." App. A

at A8. The court then cites a string of

"standing" cases, including several of

those cited above. This would seem to

imply recognition by the court that Kinoy

had standing at least for some purposes

to assert the violation of his clients'

17

rights. ®

In any event, a number of the cases

cited above establish not only that Kinoy

may assert his own constitutional right

to practice law without molestation, but

also that he has standing to assert

claims grounded on the violation of the

constitutional rights of his clients.

In Singleton vs. Wulff, supra, the

plurality held that the physicians, apart

from standing to assert their own

constitutional rights, had standing to

assert the rights of their patients.

They satisfied both the jurisdictional

"injury in fact" test, having alleged a

sufficiently concrete interest in the

outcome of their suit to make it a

justiciable controversy, and also the

6 That would seem to be implicit in

the government's willingness to stipulate

to an injunction. For if Kinoy clearly

had no standing, there would have been no

reason whatever why it should have

subjected itself to such a restraint.

18

"prudential" test, having a relationship

with the patient that made them fully, or

very nearly, as effective a proponent of

the patient's rights as the latter, and

there being genuine, even though not

insurmountable, obstacles to the

assertion of such rights by the patient.

428 U.S. at 112-118.7 Applying these

considerations to lawyers in Wounded

Knee, supra, the Eighth Circuit held that

a lawyer has standing to challenge any

act which interferes with his

professional obligation to his client

and thereby, through the lawyer,

invades the client's constitutional

right to counsel. It requires no

citation of authorities to reaffirm

our historic commitment to effective

assistance of counsel in criminal

cases.

7 Justice Stevens concurred in the

plurality's view that the physicians had

a basis for arguing the constitutional

rights of their patients only on the

ground that they clearly had standing to

bring the action to vindicate their own

rights. Id. at 121-122. This analysis

would, of course, accord standing to

Kinoy in this action.

19

507 F.2d at 1284. Cf. In re

Investigation Before April 1975 Grand

Jury, 531 F.2d 600, 606, n.10 (App.D.Cc.

1976); Aiken v. Obledo. 442 F.Supp. 628,

644-45 (E.D.Cal. 1977) (legal services

organization has standing to challenge

administrative policy that impaired its

ability to represent its clients).

The District Court in this case

found it clear that Kinoy had standing to

maintain this action on behalf of clients

whose conversations were overheard, as

well as on his own behalf. App. B at 11-

12. This issue was among those certified

for appeal and argued by defendants on

their appeal, but it was not addressed by

the Court of Appeals except insofar as it

held that Kinoy does not have standing to

seek damages. Hence it would appear that

the District Court's holding as to

Kinoy's standing to assert the rights of

his clients remains undisturbed in all

20

other respects.

Kinoy's Standing

To Seek A Reme s

The Court of Appeals has provided

neither precedent nor reasoning for its

distinction between standing to obtain

injunctive relief and standing to obtain

damages. Indeed, in two of the cases

cited by the court as instances where

only declaratory and injunctive relief

was sought, the attorney plaintiffs did

seek damages: Wounded Knee and Keker v.

Procunier. In the former case, in

holding that jurisdiction existed to

grant injunctive relief, the court relied

in part on Bivens v. Six Unknown Named

Agents of Federal Bureau of Narcotics,

403 U.S. 388 (1971), stating that, while

in Bivens the plaintiffs sought monetary

damages against federal agents, "the role

of the courts in protecting

constitutional rights by injunctive

relief is the same." 507 F.2d at 1284.

21

And in Keker v. Procunier, although the

court took no position on the question

whether both damages and injunctive

relief might be available on the Sixth

Amendment claims in as much as the

parties had not raised the issue, it

found no difficulty in refusing to

dismiss a claim for punitive damages.

398 F. Supp. at 765-66, 768.

There can hardly be a question of

"injury in fact" where the claim is for

compensation for injuries received. If

the court may act to prevent future harm,

why may it not also redress the harm

already done? As this Court said in

Bell v. Hood, 327 U.S. 678, 684 (1946),

upholding federal jurisdiction of a claim

for damages against FBI agents for

violations of the plaintiffs'

constitutional rights and noting that it

was established practice for this Court

to sustain the jurisdiction of the

22

federal courts to issue injunctions to

protect rights safeguarded by the

Constitution:

Moreover, where federally protected

rights have been invaded, it has

been the rule from the beginning

that courts will be alert to adjust

their remedies so as to grant the

necessary relief. And it is also

well settled that where legal rights

have been invaded, and a federal

statute provides for a general right

to sue for such invasion, federal

courts may use any available remedy

to make good the wrong done.

In this case damages provide the

only meaningful remedy "to make good the

wrong done" to Kinoy and his clients by

the years of secret government spying on

the confidential communications between

them. The injunctive relief which the

court below appears to consider a

sufficient and exclusive vindication of

their rights has no more than a symbolic

value. Electronic surveillance had

already ceased by the time it came to

light, or so the government represents.

It cost the government nothing to

23

promise, after 15 years had gone by, that

it will behave itself from now on.

Damages alone can vindicate the violated

rights. Kinoy is entitled to the

opportunity to go forward with his case

to show, as he has reason to believe he

can, that the cvernment's vast

collection of intercepts was not an idle

pastime but was employed to his detriment

and that of his clients.

24

co U

For the foregoing reasons the

petition for a writ of certiorari should

be granted.

Respectfully submitted,

Michael Ratner*

Mahlon F. Perkins, Jr.

Center for Constitu-

tional Rights

666 Broadway

New York NY 10012

(202) 614-6447

Henry F. Furst

52 Upper Montclair

Plaza

Upper Montclair NJ

07042

Attorneys for

Petitioner

New York, N.Y.

November 28, 1988

*Counsel of Record for Petitioner

APPENDIX A.......... Al

APPENDIX B.......... A10

4 . rts .

ee 5 ee” ee eee

Al

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

>

Nos. 857, 859, 860—August Term 1987

Argued: March 15, 1988 Decided: July 1, 1988

Docket Nos. 87-6047, 87-6119, 87-6137

>

JOANNE and ARTHUR KINOY,

Plaintiffs-Appellees,

—against—

JOHN M. MITCHELL, individually and as former Attorney

General of the United States; ELLIOT G. RICHARD-

SON, as Attorney General of the United States; CLYDE

A. TOLSON, as executor of the Estate of J. Edgar

Hoover; CLARENCE KELLEY, as Director of the Fed-

eral Bureau of Investigation; WHITNEY NORTH SEY-

MOUR, individually and as former United States

Attorney for the Southern District of New York; JOHN

H. DOYLE, individually and as former Assistant

United States Attorney; ‘JOHN DOE,”’ individually

and as an agent of the Federal Bureau of Investigation;

**RICHARD ROE,”’ individually and as an agent of the

Federal Bureau of Investigation; and the UNITED

STATES OF AMERICA,

Defendants-Appellants.

A2

Before:

PRATT and MINER, Circuit Judges,

and JOHN M. WALKER, District Judge*

—

Appeal from an order of the United States District

Court for the Southern District of New York, Robert J.

Ward, District Judge, denying defendants’ motion for

summary judgment against plaintiff for plaintiff’s failure

to state a valid constitutional claim.

Reversed and remanded.

<>

RUDOLPH W. GIULIANI, United States Attor-

ney for the Southern District of New York

(Randy M. Mastro, Steven E. Obus, of

Counsel), for Defendants-Appellants.

HENRY F. FURST, Upper Montclair, New Jer-

sey (Jeremiah Gutman, New York, New

York, Michael Ratner, New York, New

York, of Counsel), for Plaintiff-Appellee.

>

WALKER, District Judge:

Defendants-appellants John M. Mitchell, Clyde A.

Tolson, Whitney North Seymour, John Doe and Richard

* Honorable John M. Walker, Jr., United States District Judge for

the Southern District of New York, sitting by designation.

A 3

Roe appeal from the February 4, 1987 order of the United

States District Court, Southern District of New York,

Ward, J., denying their motion for summary judgment

against plaintiff Arthur Kinoy, an attorney. Kinoy seeks

money damages for himself for the government’s warrant-

less interceptions of his conversations with clients.’

On March 26, 1987, Judge Ward certified his order for

purposes of interlocutory appeal, pursuant to 28 U.S.C.

§ 1292(b).

Appellants assert, inter alia, that summary judgment

should have been granted in their favor for Kinoy’s failure

to state a valid constitutional claim. We agree with appel-

lants and reverse.

Background

Kinoy, a noted civil rights attorney, brought this action

nearly two decades ago, alleging that on many occasions

between 1949 and 1970, his conversations with clients were

electronically intercepted by the government without judi-

cial authorization. The government denies Kinoy was ever

the direct target of these admittedly warrantless national

1 John Doyle, Elliot Richardson, Clarence Kelley, and Paul Curran

were previously dismissed as defendants in this action.

Joanne Kinoy, Arthur Kinoy’s daughter, was originally a plaintiff in

this action. On December 28, 1987, all of Joanne Kinoy’s claims

against all of the defendants were dismissed with prejudice. See Joint

Appendix [hereinafter cited as ‘‘JA’’] at 395-398.

Joanne Kinoy had moved to certify a class consisting of ‘‘all those

persons who consult and have consulted with plaintiff Arthur Kinoy as

their attorney.’” Amended Complaint at 4 4; JA at 73. No class was

ever certified and Judge Ward, at the February 4, 1987 hearing, indi-

cated that no class would be certified. JA at 27.

el

A4

security wiretaps,’ and maintains that the wiretaps were

authorized pursuant to ‘‘several national security investi-

gations,’ which concerned both ‘‘foreign security’’ and

‘domestic security.’”’

In 1970 Kinoy brought this action, alleging the govern-

ment’s violation of a long list of his and his clients’ consti-

tutional rights. The parties then endured nine years of

discovery, during which time the government made availa-

ble to both Kinoy and Judge Ward telephone logs of the

intercepted conversations.

The case lay dormant from 1979 until 1985. During that

period, the Supreme Court decided Mitchell v. Forsyth,

472 U.S. 511 (1985), which held that, for warrantless wire-

taps prior to 1972, the Attorney General was entitled to

qualified immunity in actions by persons alleging that such

wiretaps violated their Fourth Amendment rights. The

action was revived in 1985, after Kinoy’s counsel re-

sponded, upon Judge Ward’s inquiry, that Kinoy wished

to pursue the action.* Despite the fact that Kinoy’s Fourth

Amendment claims were effectively gone from the case,

Judge Ward allowed the action to go forward because

Kinoy indicated he wished to pursue his claims on Fifth

and Sixth Amendment grounds.

2 The government characterizes the interceptions of Kinoy as ‘‘inci-

dental.’’ Brief of defendants-appellants at 6. At the February 4, 1987

hearing on Kinoy’s motion to amend his complaint and defendants’

cross-mouon for summary judgment, Judge Ward stated that ‘‘[f]rom

my review of the materials, it does strike me that [Kinoy] was not the

subject of any interception but was intercepted incidentally.’’ JA 23;

See also JA 25-26.

3 JA at 16; Brief of defendants-appellants at 2.

4 Atthe February 4, 1987 hearing, Judge Ward stated, in response to

the government's motion for dismissal for failure to prosecute, that ‘‘!

think if I picked up and sua sponte entered an order just before I saw

[Kinoy’s counsel in 1985S], that would have been appropriate.’’ JA at

>

-—-—-

A5

Specifically, on February 4, 1987, Judge Ward held a

hearing on Kinoy’s motion to amend his complaint, previ-

ously amended in 1971, and defendants’ cross-motion for

Summary judgment. At the hearing, Kinoy withdrew his

motion to amend the complaint.°

Commenting on the motion for summary judgment,

Judge Ward stated at the hearing that he thought ‘‘there is

nothing left to this case,’’ and that if he were required to

write an opinion, there would be ‘‘a dismissal with sanc-

tions under Rule ll. . . .’”°

Despite his prediction of the outcome of Kinoy’s action

in the face of defendants’ motion for summary judgment,

Judge Ward denied the motion. At oral argument, Kinoy

raised his concern for the first time that the government

might have used the intercepts against his clients in some

way, perhaps using foreknowledge of Kinoy’s trial strat-

egy to fashion the government’s own trial strategy. Al-

though Kinoy had not raised the issue in his pleading, and

although, when questioned by Judge Ward, he admitted

he had no evidence of any use of the intercepts by the gov-

ernment, Kinoy argued that further discovery was neces-

Sary to settle the matter. On that basis, Judge Ward denied

defendants’ motion for summary judgment, allowing the

parties a ‘‘reasonable period to compel whatever discovery

was appropriate.’”®

5 Judge Ward stated that ‘“‘[i]Jt seems to me that the proposed

amended complaint would be the basis for Rule 11 sanctions.’’ /d. at

34.

6 Id. at 33. Judge Ward further stated that he could ‘‘spend considera-

ble time. . . outlining the deficiencies in [Kinoy’s] case. They are fatal

deficiencies.’’ Jd. Judge Ward also told Kinoy that ‘‘for six different

reasons, probably, you are out of court.’’ Jd. at 29.

Td. at 30.

8 ld. at $0.

4

A 6

Defendants now appeal from Judge Ward’s denial of

summary judgment.

Discussion

At the hearing before Judge Ward, defendants argued

principally that they enjoyed qualified immunity against

Kinoy’s Fifth and Sixth Amendment claims. Plaintiffs re-

lied upon Mitchell v. Forsyth, 472 U.S. at 530, in which

the Supreme Court held that the Attorney General pos-

sessed qualified immunity against suit for a warrantless

wiretap ‘‘aimed at gathering intelligence regarding a do-

mestic threat to national security’’, because the unconsti-

tutionality of the wiretap was not clearly established at the

time the tap was authorized. Judge Ward disagreed with

defendants, holding that ‘‘[w]ith respect to plaintiff’s

Fifth and Sixth Amendment claims, . . . defendants’

actions [are not] covered by qualified immunity.’’? On this

appeal, however, we do not need to reach this question.

At oral argument before this Court, Kinoy conceded

that his sole remaining claim is one for damages for the al-

leged violations of his own rights as an attorney. He

asserts that the warrantless interceptions of his conversa-

tions with clients violated his rights under the Fifth and

Sixth Amendments to the Constitution.

Because we hold that under the Fifth and Sixth Amend-

ments there is not and never has been a recognized consti-

tutional right of an attorney, as distinguished from any

right of his client, to communicate with the client free

from government intrusion when national security inter-

ests are implicated, Kinoy has failed to state a valid consti-

tutional claim, and his action must be dismissed.

9 Id. aé6s.

A7

In 1971, the Supreme Court held in Bivens v. Six Un-

known Named Agents of Federal Bureau of Narcotics, 403

U.S. 388, 389 (1971), that a violation of a constitutional

guarantee ‘‘by a federal agent acting under color of his au-

thority gives rise to a cause of action for damages conse-

quent upon his unconstitutional conduct.’’ The following

year, in United States v. United States District Court, 407

U.S. 297 (1972), the Supreme Court held that warrantless

wiretaps violated the Fourth Amendment in cases involv-

ing domestic threats to national security.

A predicate for recovery under Bivens, of course, is that

the plaintiff possess a constitutional right capable of viola-

tion. Kinoy argues that, as an attorney, he had a ‘‘clearly

established’’ right, Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982), to be free from government intrusion into his

conversations with clients. However, during the period of

interception, 1949 through 1970, there was no constitu-

tional guarantee that an attorney, independent of any

right of his client, might communicate with the client with-

Out government interference when national security inter-

ests were at stake.

The starting point for any analysis of a constitutional

provision is, of course, the text of the provision itself. The

Sixth Amendment provides that ‘‘[i]n all criminal prosecu-

tions, the accused shall enjoy the right . . . to have the

Assistance of Counsel for his defence.’’ Thus, the Amend-

ment, on its face, secures no right personal to the attorney.

In interpreting the Sixth Amendment, courts have not

found a constitutional right of an attorney independent of

any right of the client. In none of the cases upon which

Kinoy relies was an attorney asserting his right to be free

from government interference with client communica-

tions, without reference to the vindication of the client’s

A 8

rights. Rather, in every case, either a criminal defendant

was asserting a right to communicate confidentially with

his attorney, Or a court was concerned that interception of

attorney-client conversations had deprived a convicted de-

fendant of a fair trial. See O’Brien v. United States, 386

U.S. 345 (1967) (per curiam); Schipani v. United States,

385 U.S. 372 (1966) (per curiam); Black v. United States,

385 U.S. 26 (1966) (per curiam) (conviction reversed to en-

sure fair trial); United States v. Rosner, 485 F.2d 1213,

1223-24 (2d Cir. 1973) (defendant asserting rights), cert.

denied, 417 U.S. 950 (1974); United States v. Denno, 221

F.2d 626 (2d Cir.) (defendants asserting rights), cert. de-

nied, 349 U.S. 968 (1955); Caldwell v. United States, 205

F.2d 879, 881 (D.C. Cir. 1953) (defendant’s rights at

stake); Coplon v. United States, 191 F.2d 749 (D.C. Cir.

1951), cert. denied, 342 U.S. 926 (1952); United States v.

Orman, 417 F. Supp. 1126 (D. Col. 1976).

Further, Kinoy seeks only damages, having already se-

cured permanent injunctive relief against further unlawful

governmental electronic surveillance of him.'® Thus, this

action diffe-s from those in which a plaintiff, basing his

claim at least in part on the rights of another—for exam-

ple, a physician’s patient or attorney’s client—sought only

declaratory and injunctive relief. See Singleton v. Wuiff,

428 U.S. 106 (1976) (physician sought injunction against

enforcement of abortion statute limiting his right to prac-

tice); Doe v. Bolton, 410 U.S. 179 (1973) (same); Griswold

v. Connecticut, 381 U.S. 479 (1965) (physician asserted

patient’s rights); Jn re Investigation Before The April 1975

Grand Jury, 531 F. 2d 600 (D.C. Cir. 1976) (per curiam)

(attorney asserted his right to practice and clients’ right to

counsel); Wounded Knee Legal Defense/Offense Commit-

tee v. FBI, 507 F.2d 1281 (8th Cir. 1974) (attorney asserted

10 = J.A. at 39§-97; Reply brief of defendants-appellants at 2.

A9

client’s rights); Keker v. Procunier, 398 F. Supp. 756

(E.D. Cal. 1975); See also Planned Parenthood of Central

Missouri v. Danforth, 428 U.S. 52 (1976); Eisenstadt v.

Baird, 405 U.S. 438 (1972).

In sum, Kinoy has failed to state a valid Fifth or Sixth

Amendment cause of action. Kinoy, as an attorney, pos-

sessed no constitutional right, independent of his clients’

rights, to communicate with his clients without govern-

ment intrusion when national security interests were at

stake. Therefore, the denial of defendants’ summary judg-

ment motion against Kinoy was error.

The judgment of the District Court denying defendants’

motion for summary judgment is reversed, and the case is

remanded with a direction to enter judgment in favor of

all defendants dismissing the complaint.

A 10

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

70 CIV. 5698(RJIW)

>

JOANNE KINOY and ARTHUR KINOY,

Plaintiffs,

—against—

JOHN M. MITCHELL, et al.,

Defendants.

>

MEMORANDUM AND ORDER

On February 4, 1987, this Court denied defendants’ motion

for summary judgment. In its order, the Court found that, pur-

suant to Mitchell v. Forsyth, 472 U.S. 511 (1985), plaintiffs’

claims under the Fourth Amendment were barred by the doc-

trine of qualified immunity because it was not clearly estab-

lished at the time of the wiretaps that warrantless domestic

security wiretaps violated the Fourth Amendment. See Tr. at

19, 23-24, 28, 40-46. With respect to plaintiffs’ Fifth and Sixth

Amendment claims, however, the Court did not find defen-

dants’ actions to be covered by qualified immunity. Relying on

Mitchell v. Forsyth, supra, 472 U.S. at 530, which holds that a

district court’s denial of a claim of qualified immunity is

appealable, defendants appealed this Court’s denial of immu-

nity to the Second Circuit. See Notice of Appeal, dated March

6, 1987. Defendants now move pursuant to Rule 3(j) of the

Civil Rules of this Court for reargument of the February 4,

1987 order denying defendants’ summary judgment motion or

in the alternative request certification of the order pursuant to

28 U.S.C. § 1292(b). Defendants also seek a stay of discovery

pending resolution of defendants’ motion for reconsideration

and any subsequent appeal. For the reasons to follow, this

All

Court denies defendants’ motion for reargument, grants defen-

dants’ request for certification, and stays discovery during the

pendency of the appeal in the Second Circuit.

Motion for Reargument

The standard for granting a motion for reargument is strict in

order to dissuade repetitive arguments on issues that have

already been considered fully by the Court. Caleb & Co. v. E.].

Dupont de Nemours & Co., 624 F. Supp. 747, 748 (S.D.N.Y.

1985). Such motions, therefore, may only be granted where the

court ‘‘has overlooked ‘matters or controlling decisions’ which,

had they been considered, might reasonably have altered the

result reached by the court.’’ New York Guardian Mortgagee

Corp. v. Cleland, 473 F. Supp. 409, 420 (S.D.N.Y. 1979). In

seeking reargument, defendants contend the Court overlooked

four points:

1. that pleading deficiencies require dismissal of the

complaint;

2. that Joanne and Arthur Kinoy lack standing;

that Arthur Kinoy has not been damaged; and

4. that the action should be dismissed in the light of

Weinberg v. Mitchell, 588 F.2d 275 (9h Cir. 1978).

None of defendants’ points satisfies the standard for

granting a motion for reargument.

The Court has previously considered the sufficiency of the

complaint, finding the complaint to be adequately pleaded in

light of the fact that crucial information concerning the facts of

the government's investigation and the government's use of the

intercepted conversations is in the exclusive possession of the

defendants. See Tr. at 42-43. In addition, the Court has consid-

ered whether Joanne and Arthur Kinoy have standing. See Tr.

at 42. While it might be appropriate to dismiss Joanne Kinoy, if

none of her conversations were intercepted, it is clear to the

Court that Arthur Kinoy can maintain this action on his own

behalf and on behalf of clients whose conversations were over-

A 12

heard. See Wounded Knee Legal Defense/Offense Committee

v. F.B.J., 507 F.2d 1281, 1284 (8th Cir., 1974). The Court has

also noted the potentially limited nature of Mr. Kinoy’s dam-

ages, see Tr. at 13, 20-22, 31, 34-35, but finds that this alleged

deficiency is not fatal to plaintiffs’ action. See Carey v. Piphus,

435 U.S. 247, 266 (1978). Finally, the Court has considered the

applicability of Weinberg v. Mitchell, supra, 588 F.2d 275, to

the facts of this case and has found the case neither instructive

nor controlling on the immunity issue. Thus, the Court did not

overlook any of the above points or decisions and they are not

proper grounds for a motion for reargument.

Motion for Certification

In the alternative to their motion for reargument, defendants

seek to have the issues raised in the Court’s February 4, 1987

order certified for appellate review pursuant to 28 U.S.C.

§ 1292(b). Title 28 U.S.C. § 1292(b) provides in pertinent part:

When a district judge, in making in a civil action, an order

not otherwise appealable under this section, shall be of the

opinion that such order involves a controlling question of

law as to which there is a substantial ground for difference

of opinion and that an immediate appeal from the order

may materially advance the ultimate termination of the lit-

igation, he shall so state in writing in such order.

The Court of Appeals then has discretion to entertain or decline

to entertain this appeal.

The questions to be decided by a district judge when consid-

ering a motion for certification are (1) whether the order to be

appealed involves a controlling question of law; (2) whether

there is a substantial ground for difference of opinion with

respect to the resolution of the issue to be appealed, and (3)

whether an immediate appeal from the district court’s decision

could materially advance the ultimate termination of the litiga-

tion. Max Daetwyler Corp. v. Meyer, 575 F. Supp. 280, 282.

(E.D. Pa. 1983). When evaluating these factors, a court must

remember that certification is to be used sparingly. Section

A 13

1292(b) should be used ‘‘only in exceptional cases where ‘‘an

immediate appeal may avoid protracted and expensive litigation

and is not intended to open the floodgates to a vast number of

appeals from interlocutory orders in ordinary litigation.’’ Wm.

Passalacqua Builders, Inc. v. Resnick Developers South, Inc.,

611 F. Supp. 281, 284 (S.D.N.Y. 1985). A motion for certifica-

tion should not be granted merely because a party disagrees

with the ruling of the district court. Max Daetwyler Corp. v.

Meyer, supra, 575 F. Supp. at 282.

The order sought to be appealed in the present case involves a

controlling question of law, namely whether it was clearly

established at the time of the wiretaps in this case that warrant-

less domestic security wiretaps of an attorney and his clients

could violate the Fifth or Sixth Amendments. A question is

**controlling’’ if error in its resolution would warrant reversal

of a final judgment or dismissal, id. at 282, and if it is likely to

have precedential value. Abortion Rights Mobilization Inc. v.

Regan, 552 F. Supp. 364, 366 (S.D.N.Y. 1982). If this Court

erred in its determination that clearly established law prohibited

the wiretapping of conversations between an attorney and his

clients, defendants would be covered by qualified immunity and

the plaintiff’s action would have to be dismissed. Since the spe-

cific application of Mitchell v. Forsyth, supra, 472 U.S. 511, to

Fifth and Sixth Amendment claims is one of first impression,

this case is likely to have significant precedential value in this

Circuit and others. Thus, the first element of § 1292(b) is satis-

fied.

The second element of the certification analysis is whether

there is a substantial ground for difference of opinion on the

issue to be appealed.* The question of whether it was clearly

* Defendants assert that the controlling question of law on which

there was a substantial ground for difference of opinion was the Court’s

refusal to dismiss pursuant to Rule 41(b), Fed. R. Civ. P., on the basis of

failure to prosecute. While the Court recognizes that this might be a control-

ling question of law, it does not find that this issue raises a substantial

ground for difference of opinion. Dismissal for failure to prosecute is a mat-

ter committed to the discretion of the district court which is reviewed on an

A l4

established at the time of the Kinoy wiretaps that warrantless

domestic security wiretaps of an attorney and his clients could

violate the Fifth and Sixth Amendments is one not fully dis-

cussed by previous cases. Defendants argue that Mitchell v.

Forsyth, supra, 472 U.S. 511, and Weinberg v. Mitchell, supra,

$88 F.2d 275, are dispositive. Plaintiffs argue that United States

v. Coplon, 185 F.2d 629 (2d Cir. 1950), cert. denied, 342 U.S.

920 (1952), illustrates that the law against interceptions of

attorney-client communications was clearly established prior to

the Kinoy wiretaps. While this Court in denying summary judg-

ment has found plaintiffs’ analysis to be more persuasive than

defendants’ argument, this Court recognizes that the defen-

dants’ position is not insubstantial. See Max Daetwlyer Corp.

v. Meyer, supra, 575 F. Supp. at 283. Therefore, this Court

finds there is a ground for difference of opinion sufficient to

warrant certification of the question for appeal.

The third and final element of the certification analysis is

whether an immediate appeal from an order could materially

advance the termination of the litigation. In examining whether

immediate appeal may materially advance the ultimate termina-

tion of the litigation, a district court should assess the probabil-

ity that its decision is in error as well as the extent to which

additional time and expense may be saved by an interlocutory

appeal. Baxter Travenol Laboratories, Inc. v. LeMay, 514 F.

Supp. 1156, 1159 (S.D. Ohio 1981). With regard to this factor,

the Court feels that the facts of this action strongly support cer-

tification. The controlling question of law in -_.s case is pres-

ently before the Second Circuit by virtue of the holding in

Mitchell v. Forsyth, supra, 472 U.S. at 530, which permits an

immediate appeal in cases where a district court denies a claim

abuse of discretion standard. Romandetie v. Weetabix Company, Inc., 807

F.2d 309, 312 (2d Cir. 1986). Dismissal is ‘‘a harsh remedy to be utilized only

in extreme situations.’’ /d. Although there have been lengthy delays in the

prosecution of this litigation, this Court found that dismissal was inappro-

priate in light of the fact that the Court had not ruled on whether certain

documents were privileged, Tr. at 8, and because the Court did not give

notice to the plaintiffs that further delays would result in dismissal. Tr. at 12.

See Harding v. Federal Reserve Bank of New York, 707 F.2d 46, $0 (2d Cir.

1983).

A 15

for qualified immunity. Because defendants have made other

arguments which, if decided in defendants’ favor, would

require dismissal of the case, this Court feels certification of its

denial of summary judgment could materially advance the ter-

mination of the litigation. Since the Second Circuit will already

be considering the immunity question in this case, its consider-

ation of the remaining issues arising under the summary judg-

ment motion would promote judicial economy and avoid

piecemeal appeals. Moreover, if this Court declined to certify

the order and the Second Circuit upheld this Court’s order

denying qualified immunity with respect to the Fifth and Sixth

Amendment claims, the case would be remanded for further

discovery and a lengthy trial. This protracted litigation would

be extremely costly and burdensome for the Court and all par-

ties if, upon appeal, the Second Circuit were to find that sum-

mary judgment should have been granted for the defendants.

Accordingly, for the foregoing reasons, the defendants’

motion for reargument is denied and the defendant's motion

for certification is granted. In light of this decision, the Court

also grants defendants’ motion to stay discovery pending the

outcome of the appeal in the Second Circuit.

It is so ordered.

Dated: New York, New York

March 26, 1987

U.S.D.J.