Petition — Mitchell v. Forsyth

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In the Supreme Court of the United States

OcTOBER TERM, 1979

JOHN N. MITCHELL, ET AL., PETITIONERS

v.

KEITH FORSYTH

JOHN N. MITCHELL, PETITIONER

Vv.

KATHERINE W. BURKHART, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

WADE H. MCCREE, JR.

Solicitor General

ALICE DANIEL

Assistant Attorney General

KENT L. JONES

Assisiant io the Solicitor General

BARBARA L. HERWIG

GORDON W. DAIGER

LARRY L. GREGG

Attorneys

Department of Justice

Washington, D.C. 20530

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CITATIONS

Cases:

Abney v. United States, 431 U.S. 651........

Butz v. Economou, 488 U.S. 478 ............--

Cohen v. Beneficial Industrial Loan Corp.,

BEE TE siticiecnck ccclntecctecemipeninoieeein

Doe v. McMillan, 412 U.S. 306 ..................

Heine v. Raus, 399 F.2d 786 ..............------

Helstoski v. Meanor, No. 78-546 (June 18,

TUB) cvescnincsccesdncicntnl eae

Imbler v. Pachtman, 424 U.S. 409 ............

Johnson v. Alldredge, 488 F.2d 820, cert.

Gented,, 429 UB. TED nck es

Spaulding v. Nielsen, 599 F.2d 728 ..........

or)

10

12

II

Cases—Continued Page

United States v. United States District

I 6, 8

Wood v. Strickland, 420 U.S. 308 ............ 10

Constitution and statutes:

United States Constitution:

Firat Amendment ................................ 5

Fourth Amendment .......................... 3, 5, 6, 8

ee ee 5

Foreign Intelligence Surveillance Act of

1978, Pub. L. No. 95-511, Section 201

TS I snc enccsosecce 3

Omnibus Crime Control and Safe Streets

Act of 1968, Title III, 18 U.S.C. 2510-

5

ST: | 3

an 9

23 USC. 1292(b) 9

In the Supreme Court of the United States

OCTOBER TERM, 1979

No.

JOHN N. MITCHELL, ET AL., PETITIONERS

Vv.

KEITH FORSYTH

JOHN N. MITCHELL, PETITIONER

Vv.

KATHERINE W. BURKHART, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

The Solicitor General, on behalf of John N. Mit-

chell, E. Davis Porter, and Albert Cooper, petitions

for a writ of certiorari to review the judgment of

the United States Court of Appeals for the Third

Circuit in these consolidated cases.

(1)

2

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra,

la-34a) is reported at 599 F.2d 1203. The opinions of

the district courts (App. D, infra, 40a-65a; App. E,

infra, 66a-118a) are reported at 447 F. Supp. 192 and

448 F. Supp. 588.

JURISDICTION

The judgment of the court of appeals (App. B,

infra, 35a-37a) was entered on May 22, 1979. A peti-

tion for rehearing was denied on August 24, 1979

(App. C, infra, 38a-39a). On November 14, 1979, Mr.

Justice Brennan extended the time for filing a peti-

tion for a writ of certiorari to and including January

21, 1980. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether the Attorney General is absolutely im-

mune from personal damages liability for acting

pursuant to the President’s authority to order elec-

tronic surveillance of persons for national security

purposes.

2. Whether federal law enforcement officers are

absolutely immune from personal damages liability

for acting at the direction of the Attorney General

to install and monitor an electronic surveillance for

national security purposes.

3

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. The Fourth Amendment to the United States

Constitution provides:

The right of the people to be secure in their

persons, houses, papers, and effects, against un-

reasonable searches and seizures, shall not be vio-

lated, and no warrants shall issue, but upon

probable cause, supported by oath or affirmation,

and particularly describing the place to be

searched, and the persons or things to be seized.

2. At the time of the events leading to this liti-

gation, 18 U.S.C. 2511(38)' provided, in pertinent

part:

Nothing contained in this chapter * * *

shall limit the constitutional power of the Presi-

dent to take such measures as he deems necessary

to protect the Nation against actual or poten-

tial attack or other hostile acts of a foreign

power, to obtain foreign intelligence information

deemed essential to the security of the United

States, or to protect national security informa-

tion against foreign intelligence activities. Nor

shall anything contained in this chapter be

deemed to limit the constitutional power of the

President to take such measures as he deems

necessary to protect the United States against

118 U.S.C. 2511(3) was repealed by Section 201(c) of the

Foreign Intelligence Surveillance Act of 1978, Pub. lL. No.

95-511, 92 Stat. 1797. This statute, which establishes pro-

cedures for the conduct of surveillance for national security

purposes, was enacted nine years after the events that gave

rise to this litigation.

Ms

4

the overthrow of the Government by force or

other unlawful means, or against any other clear

and present danger to the structure or existence

of the Government. The contents of any wire or

oral communication intercepted by authority of

the President in the exercise of the foregoing

powers may be received in evidence in any trial

hearing, or other proceeding only where such in-

terception was reasonable, and shall not be other-

wise used or disclosed except as is necessary to

implement that power.

STATEMENT

1, These two cases, which were consolidated by

the court of appeals, “involve identical issues, vir-

tually identical defendants and have overlapping

records” (App. A, infra, 2a). The cases began,

however, as separate proceedings in the district

court.

a. Forsyth

In June 1970, the Philadelphia office of the FBI

learned from a member of the East Coast Conspiracy

to Save Lives (ECCSL) that the group was plan-

ning to protest the Vietnam War by destroying un-

derground utility tunnels in Washington, D.C. The

FBI also learned that ECCSL was responsible for

several raids on draft board offices and that three

members of the group, including William Davidon, a

professor at Haverford College, had discussed the

possibility of kidnaping National Security Advisor

Henry Kissinger (App. A, infra, 3a-4a; App. D,

infra, 48a).

5

In November, 1970, after additional investigation,

Attorney General John Mitchell authorized a wire-

tap on Davidon’s telephone. The purpose of the wire-

tap was to “gather[] intelligence-type information

under circumstances where it was also anticipated

that information of a criminal evidentiary nature

might be obtained” (App. D, infra, 44a). During

the maintenance of the wiretap, conversations be-

tween Davidon and respondent Keith Forsyth were

overheard and recorded (id. at 40a-41a).

After respondent Forsyth learned of the wiretap,

he instituted this action in the United States District

Court for the Eastern District of Pennsylvania

against Attorney General Mitchell and two FBI em-

ployees whe had installed and maintained the elec-

tronic surveillance.? Respondent sought damages for

the overhearing of his telephone conversations, claim-

ing that the warrantless electronic surveillance vio-

lated Title III of the Omnibus Crime Control and

Safe Streets Act of 1968, 18 U.S.C. 2510-2520, and

the First, Fourth and Ninth Amendments to the

Constitution (App. D, infra, 40a-41a).

After extensive discovery, petitioners moved for

summary judgment on the ground that they were

entitled either to absolute immunity or to qualified

2 Respondent also named as defendants former Attorney

General Richard Kleindienst and former FBI Director L.

Patrick Gray. The claims against these defendants were

voluntarily dismissed in the district court (App. D, infra,

4lan.2).

6

immunity as a matter of law.* The district court

denied the motion. The court held that the Attorney

General was not entitled to an absolute immunity

under Imbler v. Pachtman, 424 U.S. 409 (1976),

because he was not functioning as a prosecutor. The

court further held that neither the Attorney Gen-

eral nor the other defendants were entitled to a

qualified immunity as a matter of law because “there

are genuine issues of material fact in connection with

the defendants’ affirmative defense of good faith”

(App. D, infra, 65a), although the court did not

specify what those issues might be.

b. Burkhart

The electronic surveillance involved in the Forsyth

case also formed the basis for several of the charges

in Burkhart. Respondents Burkhart, Chomsky, Gold,

Portnoy and Putter also had conversations that were

overheard during monitoring of the wiretap installed

on the Davidon telephone. They brought this action

in the United States District Court for the Eastern

District of Pennsylvania seeking damages under the

Fourth Amendment and Title III against Attorney

General Mitchell for authorizing that wiretap (App.

E, infra, 69a).*

5 Petitioners also argued (i) that they may not be sub-

jected to damages liability under the Constitution because

United States v. United States District Court, 407 U.S. 297

(1972), should not be applied retroactively and (ii) that the

statutory requirements and remedies in Title III are inappli-

cable to national security electronic surveillances. These

contentions were rejected by the district court (App. D, infra,

47a-57a) and were not raised on appeal. See note 8, infra.

* Respondents in Burkhart also named as defendants former

Attorney General William Saxbe and former FBI Director

7

In addition, respondents Gold, Portnoy and Markel

alleged that certain of their conversations over a tele-

phone registered to the Philadelphia chapter of the

Black Panther Party were overheard during elec-

tronic surveillance authorized by Attorney General

Mitchell. This surveillance, which was conducted

from June 1970 to February 1971 (App. E, infra,

68a n.5), was authorized after the Attorney General

had received information indicating that the Black

Panther Party had made contact with foreign

governments to obtain funds “to support Black

Panther revolutionary activities, including the ad-

vocacy of the violent overthrow of existent lederal

and state government structures” (App. A, infra,

6a).

On petitioner Mitchell’s motion for summary judg-

ment, the district court concluded that the investi-

gation of ECCSL and Black Panther Party activity

was supported by “probable cause * * * to believe that

[these] activities * * * were a threat to the national

security and that electronic surveillance of the head-

quarters in order to gather intelligence information

about those activities was warranted” (App. E,

infra, 85a).5 The court held, however, that under

Clarence Kelley. Although the claims against these officers

have not formally been dismissed, the district court held that

there is “no basis for holding these defendants liable” (App.

E, infra, 110a). See also App. A, infra, 13a n.6.

5 With regard to the ECCSL activities, the district court

noted (App. E, infra, 81a):

Through the use of an informant, the FBI uncovered

what appeared to be a plot by suspected members of the

8

United States v. United States District Court, supra,

the failure to obtain a warrant for these national

security surveillances violated the Fourth Amend-

ment.® The court concluded that the Attorney Gen-

eral was not absolutely immune from personal dam-

ages liability for constitutional violations occurring

in the authorization of national security surveillances

(App. E, infra, 113a n.33). Finally, the court re-

ECCSL to kidnap Henry Kissinger, then National Security

Advisor to the President, and simultaneously destroy

the heating systems of certain federal buildings located

in Washington, D.C. In addition, the FBI furnished

Mitchell with background information concerning the

activities of William Davidon and the basis for its con-

clusion that he was an active member and central figure

in the ECCSL. Based on this information, Mitchell

approved the FBI’s request to place a wiretap on

Davidon’s residence telephone.

The court explained that the threat to national security from

ECCSL activity was substantial because (id. at 82a) :

the intended victim of the kidnap plot was the President’s

senior national security advisor, who was engaged at that

time in high level, extremely sensitive negotiations with

North Vietnam, a hostile foreign government. It would

be ludicrous to suggest that because the plot to kidnap

that official constituted a violation of federal law, the

national security purpose for conducting the surveillance

was either nonexistent or irrelevant.

® The court held, on the other hand, that Title III is inap-

plicable to warrantless national security electronic surveil-

lances, relying on this Court’s conclusion in United States v.

United States District Court, supra, 407 U.S. at 306, that

Congress in Title III “simply did not legislate with respect to

national security surveillances” (App. E, infra, 106a).

jected the claim that petitioner was entitled to a

qualified immunity as a matter of law, stating that

the existence of a good faith defense “should be

determined on the basis of evidence adduced at trial

rather than on a motion for summary judgment” (id.

at 114a).

2. On appeal from the denial of the motions for

summary judgment,’ the court of appeals held that it

had jurisdiction over petitioners’ claim that they were

entitled to absolute immunity but lacked jurisdiction

over the claim that they were entitled to a qualified

immunity.*® On the merits, the court held that, under

7 Petitioners asked the trial judges to certify interlocutory

appeals of their orders denying summary judgment pursuant

to 28 U.S.C. 1292(b). This request was denied in Burkhart

and was not ruled upon in Forsyth (App. A, infra, 10a).

Accordingly, petitioners filed notices of appeal pursuant to

28 U.S.C. 1291.

8 The court of appeals ruled that the refusal to grant a sum-

mary judgment motion based on a claim of absolute immunity

is an appealable collateral order within its jurisdiction under

28 U.S.C. 1291 (App. A, infra, 12a). The court noted that

the purpose of absolute immunity “is to grant the defend-

ant the right not to be subjected to trial, not just the right

not to be found guilty” (id. at 9a). The court therefore

concluded that the denial of a claim of absolute immunity

is appealable under the doctrine of Cohen v. Beneficial Indus-

trial Loan Corp., 337 U.S. 541, 546 (1949), because the right

not to be subjected to trial “is irretrievably lost if appellate

review must await final adjudication on the merits” (App.

A, infra, 12a). See Helstoski v. Meanor, No. 78-546 (June

18, 1979) ; Abney v. United States, 431 U.S. 651 (1977).

The court held, however, that it lacked jurisdiction over

petitioners’ claim of qualified immunity because that issue did

not separately satisfy the requirements of the collateral order

doctrine (App. A, infra, 12a). Although we disagree with

10

Butz v. Economou, 438 U.S. 478, 515 (1978), the

Attorney General is not absolutely immune from per-

sonal damages liability for his official acts except

when performing functions analogous to those of a

prosecutor (App. A, infra, 25a-29a). The court re-

manded the cases to the district court for a determi-

nation whether, in authorizing the electronic sur-

veillances challenged by respondents, the Attorney

General was exercising a prosecutorial function or

was engaged in “a purely investigative or administra-

tive function” (id. at 29a).

The court also rejected the claim that the defendant

FBI officers are entitled to “absolute immunity from

suit derivatively from the absolute immunity accorded

to the Attorney General” (id. at 3la). The court

held that law enforcement officers do not have an

immunity that derives from the immunity of the

superiors at whose direction they act. Instead, the

court held that these officers are entitled to only a

good faith qualified immunity under the standards of

Schever v. Rhodes, 416 U.S. 232 (1974) (App. A,

infra, 32a-33a).°

this conclusion as applied to a claim that a defendant is en-

titled to a qualified immunity as a matter of law, we do not

seek review of this aspect of the court of appeals’ decision.

® The court of appeals relied for this conclusion on its prior

decision in Johnson V. Alldredge, 488 F.2d 820 (3d Cir. 1973),

cert. denied, 419 U.S. 882 (1974). In Johnson, the court held

that, although a prison warden was entitled to an absolute

immunity in the context of that case, prison guards were

entitled to only a qualified immunity “even though they were

merely implementing the policies formulated by the warden”

(App. A, infra, 32a).

11

REASONS FOR GRANTING THE PETITION

This case presents important and unsettled ques-

tions concerning the immunity of the Attorney Gen-

eral and of law enforcement officers who act at his

direction. The question of the scope of the immunity

afforded to the Attorney General in authorizing elec-

tronic surveillance for national security purposes is

presented in our petition for a writ of certiorari in

Kissinger v. Halperin, No. 79-880 (iiled Dec. 7, 1979),

along with a complete statement of the reasons why

that question warrants this Court’s review.” The

scope of the derivative immunity to be afforded to

officers who act at the Attorney General’s direction

necessarily turns, at least in part, on the nature of

the immunity afforded the Attorney General.” We

10 We are providing counsel for respondents with a copy of

our petition in Kissinger. We have filed petitions raising

the same or similar issues in Mitchell v. Zweibon, No. 79-881

(filed Dec. 7, 1979), and Nixon v. Smith, No. 79-882 (filed Dec.

7, 1979).

11 The derivative immunity of officers who act on behalf of

the President is discussed at pages 20-22 and note 10 of our

petition in Kissinger and is an issue before the Court in that

case. The decision of the court of appeals in this case that

law enforcement officers are not entitled to a derivative

immunity when acting at the directions of a superior in con-

ducting a search (App. A, infra, 32a-33a), conflicts with Heine

v. Raus, 399 F.2d 785, 790 (4th Cir. 1968) (“Recognition of an

absolute privilege of the subordinate by attribution of the

superior * * * appears to be a necessary corollary of the

superior’s privilege”), and is inconsistent with Doe v. Mc-

Millan, 412 U.S. 306, 320 (1973) (Public Printer is absolutely

immune from damages liability for carrying out functions

that, if performed by a Congressman, would be within the

12

therefore believe that the disposition of this petition

should be deferred pending disposition of the petition

in Kissinger.

CONCLUSION

The petition for a writ of certiorari should be

disposed of as appropriate in light of Kissinger v.

Halperin.

Respectfully submitted.

WADE H. McCREE, JR.

Solicitor General

ALICE DANIEL

Assistant Attorney General

KENT L. JONES

Assistant to the Solicitor General

BARBARA L. HERWIG

GORDON W. DAIGER

LARRY L. GREGG

Attorneys

JANUARY 1980

protection of the Speech or Debate Clause). See also Spaulding

Vv. Nielsen, 599 F.2d 728, 729 (5th Cir. 1979) (probation

officer is absolutely immune from damages liability because he

acts “at the direction of the court’).

la

APPENDIX A

UNITED STATES COURT OF APPEALS

THIRD CIRCUIT

Nos. 78-1611, 78-1847

KEITH FORSYTH, APPELLEE

v.

, RICHARD G. KLEINDIENST, Individuaily and as At-

torney General of the United States, L. PATRICK

GRAY, 3rd, Individually and as Acting Director,

Federal Bureau of Investigation, JOHN N. MIT-

CHELL, Individually and as former Attorney Gen-

eral of the United States, JOHN DOE and RICHARD

ROE, ALBERT COOPER and DAVID PORTER.

APPEAL OF JOHN N. MITCHELL, E. DAVIS

PORTER, and ALBERT COOPER

KATHERINE W. BURKHART, JUDITH CHOMSKY, EVA

GOLD, DINA PORTNOY, CANDY PUTTER, JOSHUA

(JOSH) MARKEL, APPELLEES

Vv.

WILLIAM SAXBE, Individually and as Attorney Gen-

eral of the United States, CLARENCE KELLEY, Di-

rector, Federal Bureau of Investigation, JOHN N.

MITCHELL, Individually and as former Attorney

General of the United States, JOHN DOE, and

RICHARD ROE

APPEAL OF JOHN N. MITCHELL, CLARENCE

KELLEY, and WILLIAM SAXBE

Argued Feb. 28, 1979

Decided May 22, 1979

2a

Before HUNTER and WEIS, Circuit Judges, and

MARKEY, Chief Judge, Court of Customs and Patent

Appeals. *

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

This appeal is a consolidation of two related ac-

tions before different district court judges in the

Eastern District of Pennsylvania.’ The actions in-

volve identical issues, virtually identical defendants

and have overlapping records. The defendants, for-

mer Attorneys General of the United States, a former

Director of the Federal Bureau of Investigation, and

agents of the Federal Bureau of Investigation, appeal

from the denial of their motions for summary judg-

ment. First, the defendants contend that both dis-

trict courts erred in holding that the defendants are

not entitled to absolute immunity. Alternatively, the

defendants contend that the district courts erred in

not granting them qualified immunity as a matter

of law.

We conclude that the district court’s denials of de-

fendants’ motions for summary judgment on the is-

sue of absolute immunity are appealable at this time

under the collateral order doctrine. Both Forsyth and

* Honorable Howard T. Markey, Chief Judge of the United

States Court of Customs and Patent Appeals, Washington,

D.C., sitting by designation.

1 Forsyth v. Kleindienst is reported at 447 F.Supp. 192

(E.D.Pa. 1978). Burkhart v. Saxbe is found at 448 F.Supp.

588 (E.D.Pa. 1978).

3a

Burkhart will be remanded to the respective district

court to apply the test developed in this opinion to

the facts of each case. On the defendants’ contention

that they are, in any event, entitled to qualified im-

munity as a matter of law, we hold that the denial

of the motion for summary judgment on this issue

is not a final judgment and is, therefore, not appeal-

able at this time. Finally, we reject the individual |

FBI agents’ contention that they are entitled to de-

rivative absolute immunity.

I.

These cases arise out of warrantless electronic sur-

veillances authorized by the Attorney General and

executed by FBI agents in the early 1970’s. The

wiretaps resulted in the overhearing of telephone

conversations between the plaintiffs and members of

organizations under investigation. The plaintiffs were

not themselves under investigation.

Forsyth

Plaintiff Keith Forsyth was overheard through a

tap directed against William Davidon, a professor at

Haverford College, who was allegedly associated with

the East Coast Conspiracy to Save Lives (ECCSL).

The Philadelphia FBI office learned in June, 1970

that the ECCSL was planning to protest the Vietnam

War by destroying underground utility tunnels in

Washington, D.C. The FBI also had information that

the ECCSL had been responsible for several raids on

draft board offices. In August, 1970 the government

4a

obtained copies of letters written by Father Phillip

Berrigan and Sister Elizabeth McAlister which in-

dicated that three people, including Professor Davi-

don, had discussed the possibility of kidnapping Na-

tional Security Advisor Henry Kissinger. On No-

vember 6, 1970, after additional investigation, At-

torney General John Mitchell authorized the FBI to

place a wiretap on the telephone of Professor Davi-

don. The tap continued with one extension until Jan-

uary 6, 1971. According to FBI Special Agent Fields,

the purpose of the tap was primarily to gather in-

telligence information, although it was anticipated

that information of a criminal evidentiary nature

might also be obtained. The monitoring agents were

instructed to record all conversations unless it was

known that one of the parties to the conversation was

a defendant in a federal criminal case or was an at-

torney for a criminal defendant. No other instruc-

tions were given to minimize the scope of the inter-

ceptions. Forsyth was overheard on three occasions.

Forsyth sued for damages under the first, fourth,

sixth, and ninth amendments to the Constitution, and

under 18 U.S.C. § 2520 (1976).? After discovery, in-

2 Section 2520 of Title 18 (1976) provides a private cause

of action and damages for violations of Title III of the Omni-

bus Crime Control and Safe Streets Act of 1968 (Wire Inter-

ception and Interception of Oral Communications). 18 U.S.C.

§§ 2510-2520 (1976). It provides:

Recovery of civil damages authorized

Any person whose wire or oral communication is inter-

cepted, disclosed, or used in violation of this chapter

shall (1) have a civil cause of action against any person

5a

cluding the deposing of defendant Mitchell, both sides

moved for summary judgment. On February 14,

1978 the district court denied the motions for sum-

mary judgment. First, the court held that the defend-

ants were not entitled to absolute immunity. Second,

it held that there was a genuine dispute over ma-

terial facts which precluded summary judgment on

the issue of qualified immunity. See Fed.R.Civ.P. 56

(c).

Burkhart

Plaintiffs in Burkhart were overheard on both the

Davidon tap and a tap directed against the Black

Panther Party. The Black Panther tap was origi-

nally authorized on June 1, 1970 and continued until

February 10, 1971. Two reauthorizations in the in-

terim were required because phone service to the

Black Panther party headquarters was terminated

and the headquarters moved to a new location. At-

torney General Mitchell stated in an affidavit that he

who intercepts, discloses, or uses, or procures any other

person to intercept, disclose, or use such communications,

and (2) be entitled to recovery from any such person—

(a) actual damages but not less than liquidated damages

computed at the rate of $100 a day for each day of viola-

tion or $1,000, whichever is higher;

(b) punitive damages; and

(c) a reasonable attorney’s fee and other litigation costs

reasonably incurred.

A good faith reliance on a court order or legislative

authorization shall constitute a complete defense to any

civil or criminal action brought under this chapter or

under any other law.

6a

authorized the Black Panther tap because he had

information that the Party had made foreign “con-

tacts .. . for the purpose of obtaining foreign funds

to support Black Panther revolutionary activities, in-

cluding the advocacy of the violent overthrow of ex-

istent Federal and state government structures.”

Plaintiffs in Burkhart also sued for damages for

violations of their rights under the first, fourth,

sixth, and ninth amendments to the Constitution, and

under Title III of the Omnibus Crime Control and

Safe Streets A-t of 1968. See note 2 supra. The

district court first denied the defendants’ claims of

absolute immunity in July, 1975. Burkhart v. Saxbe,

397 F.Supp. 499 (E.D.Pa. 1975). Later cross mo-

tions for summary judgment were filed, and argu-

ment was heard jointly with that in Forsyth. The

district court denied both sides’ motions for summary

judgment on March 21, 1978. As in Forsyth, the

Burkhart court found material questions of fact in

dispute which precluded summary judgment on the

issue of qualified immunity. Also, it refused to re-

verse its earlier decision denying the defendants’ mo-

tion to dismiss on the issue of absolute immunity.

Plaintiffs in both actions rely on United States v.

United States District Court, 407 U.S. 297, 92 S.Ct.

2125, 32 L.Ed.2d 752 (1972), (Keith), to establish a

violation of their fourth amendment rights. There,

the Supreme Court held that the fourth amendment

requires that a warrant be obtained before engaging

in surveillance of a domestic organization, even if the

domestic organization threatens national security. In

Ta

the context of this case, we have no cccasion to review

the district courts’ holdings that the wiretaps au-

thorized here were unconstitutional under District

Court. Nor will we address the district courts’ hold-

ings that District Court is to be given retroactive

effect. The sole issue before us is whether the de-

fendants are entitled to absolute immunity.

II.

Initially, we are presented with the plaintiffs’ con-

tention that we lack appellate jurisdiction to review

the district courts’ denials of defendants’ motions for

summary judgment. Generally, the denial of a mo-

tion for summary judgment is not appealable. Hart

v. Overseas National Airways, Inc., 541 F.2d 386,

394 (3d Cir. 1976). Nevertheless, defendants con-

tend that we have appellate jurisdiction under the

final judgment rule, 28 U.S.C. § 1291 (1976).*° As

early as 1949 the Supreme Court in Cohen v. Bene-

ficial Industrial Loan Corp., 337 U.S. 541, 546, 69

S.Ct. 1221, 1226, 93 L.Ed. 1528 (1949), emphasized

that section 1291 must be given a “practical rather

than a technical construction.” Under the Cohen

collateral order doctrine, appellate courts have juris-

diction over orders which “finally determine claims of

right separable from, and collateral to, rights as-

8 Section 1291 of Title 28 (1976) provides in part:

The courts of appeals shall have jurisdiction of appeals

from all final decisions of the district courts of the United

States .. . except where a direct review may be had in

the Supreme Court.

8a

serted in the action, too important to be denied review

and too independent of the cause itself to require that

appellate consideration be deferred until the whole

case is adjudicated.” Jd. at 546, 69 S.Ct. at 1225-

1226. The Supreme Court in Coopers & Lybrand v.

Livesay, 437 U.S. 468, 98 S.Ct. 2454, 57 L.Ed.2d 351

(1978), summarized the three requirements of Co-

hen. To be appealable a district court’s order must

1) conclusively determine the disputed question; 2)

resolve an important issue completely separate from

the merits of the action; and 3) be effectively unre-

viewable on appeal from a final judgment. Zd. at

468-69, 98 S.Ct. 2454. See also United States v. Mac-

Donald, 435 U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18

(1978) (district court’s order denying motion to dis-

miss indictment because of alleged violation of sixth

amendment rights to speedy trial not appealable be-

fore trial).

The district courts’ denials of the defendants’ mo-

tions for summary judgment on absolute immunity

must be analyzed under these three standards. Abney

v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52

L.Ed.2d 551 (1977), is closely analogous to our case.

There, the Supreme Court addressed the question of

whether a pretrial order denying defendants’ motion

to dismiss on the ground of double jeopardy is a

final order under section 1291. In finding appeal-

4In Livesay the Court applied the Cohen collateral order

doctrine to devermine that the denial of a motion for class

certification is not appealable under 28 U.S.C. § 1291 before

trial.

9a

ability, the Court stressed particularly the third of

the three Cohen factors—that the district court’s de-

cision involved an important right which would be

lost if appellate review had to await adjudication on

the merits. And, in characterizing the right which

the defendant would lose absent immediate review,

the Court noted: “[The defendant] is contesting the

very authority of the Government to hale him into

court to face trial on the charge against him... The

elements of that claim are completely independent of

his guilt or innocence.” Id. at 659-60, 97 S.Ct. at

2040.

We agree with the defendants’ argument that the

rights protected by the double jeopardy clause and

the doctrine of absolute immunity are similar. The

underlying purpose of each is to grant the defendant

the right not to be subjected to trial, not just the

right not to be found guilty. A case quite similar

to that before us is Briggs v. Goodwin, 186 U.S.App.

D.C. 179, 569 F.2d 10 (1977) (Wilkey, J. writing

for the majority on the issue of appealability), cert.

denied, 437 U.S. 904, 98 S.Ct. 3089, 57 L.Ed.2d 1133

(1978). There, the court considered the appealability

of the denial of a defendant’s motion to dismiss be-

cause he was, as a witness in a criminal proceeding,

absolutely immune from prosecution under the doc-

trine of quasi-judicial immunity. In finding appellate

jurisdiction the court, also stressing the third of the

three Cohen criteria, noted that the purpose of abso-

lute immunity is “as much to protect the relevant

persons from a trial on their actions as it is to protect

them from the outcome of trial.” Jd. at 59. The court

10a

interpreted Abney as formulating the following test:

“whether the relevant rights that were the subject of

the pretrial order would be ‘significantly undermined’

if appellate review had to await final action in the

case.” Id. See also McSurely v. McClellan, 172 U.S.

App.D.C. 364, 521 F.2d 1024, 1032 (1975), en bane,

180 U.S.App.D.C. 101, 553 F.2d 1277 (1976), cert.

dismissed as improvidently granted, 438 U.S. 189, 98

S.Ct. 3116, 57 L.Ed.2d 704 (1978) (on appeal from

denial of motion to dismiss for absolute immunity

under the Speech & Debate Clause, “the question of

appealability does not turn on the correctness of an

appellant’s claim[s]”’).

Furthermore, defendants here are not precluded

from relying on the collateral order doctrine merely

because they were unsuccessful in their attempts to

have the question of absolute immunity certified un-

der 28 U.S.C. § 1292(b) (1976).° A section 1292(b)

motion was filed in each action: the motion was de-

nied in Burkhart and was not ruled upon in Forsyth.

Simply stated, the collateral order doctrine and sec-

5 Section 1292(b) of Title 28 (1976) provides in 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 substantial ground

for difference of opinion and that an immediate appeal

from the order may materially advance the ultimate

termination of the litigation, he shall so state in writing

in such order. The Court of Appeals may thereupon, in

its discretion, permit an appeal to be taken from such

order, if application is made to it within ten days after

the entry of the order.

lla

tion 1292(b) serve different goals. Section 1292(b)

permits the district court to certify an order to the

appellate court if the court is “of the opinion that

such order involves a controlling question of law as

to which there is substantial ground for difference

of opinion and that an immediate appeal from the

order may materially advance the ultimate termi-

nation of the litigation.” 28 U.S.C. § 1292(b). Thus,

institutional efficiency is a major purpose of the certi-

fication provision. Milbert v. Bison Laboratories,

Inc., 260 F.2d 431, 483 (3d Cir. 1958) (used in ex-

ceptional cases where an intermediate appeal would

avoid protracted and expensive litigation). Accord,

Kraus v. Board of County Road Commisioners for

Kent County, 364 F.2d 919, 922 (6th Cir. 1966)

(purpose to avoid protracted and expensive litiga-

tion); E. F. Hutton & Co. v. Brown, 305 F.Supp.

371, 402-03 (D.C.Tex.1969) (purpose to shorten

time, effort, and expense exhausted between filing of

lawsuit and its termination). A central goal of the

collateral order doctrine, however, is to prevent the

loss of rights merely because appellate review is de-

layed until the litigation has run its full course in

the lower court. As noted in Briggs, “[s]ince the

discretion of the trial judge whether to certify is

itself unreviewable, the value of immediate review in

the ‘small class’ of cases where it is warranted under

the collateral order doctrine could be irretrievably

lost if [the] view that denial of certification per se

bars interlocutory review were to prevail.” 569 F.2d

at 60.

12a

We hold that the denial of the defendants’ motions

for summary judgment on the issue of absolute im-

munity is appealable under the Cohen collateral order

doctrine. Appellate review at this time will con-

clusively determine the disputed question and will

resolve an important issue completely separate from

and collateral to the question of the defendants’ guilt

or innocence. Moreover, the denial of absolute im-

munity is effectively unreviewable on appeal. Since

the right which absolute immunity protects is the

right not to be subjected to trial, it is irretrievably

lost if appellate review must await final adjudication

on the merits. See McSurely v. McClellan, 172 U.S.

App.D.C. 364, 521 F.2d 1024 (1975), en bane, 180

U.S.App.D.C. 101, 553 F.2d 1277 (1976), cert. dis-

missed, 438 U.S. 189, 98 S.Ct. 3116, 57 L.Ed.2d 704

(1978).

Finally, we reject the defendants’ suggestion that

we take this opportunity to review the district courts’

denials of their motions for summary judgment on

the issue of qualified immunity. The Supreme Court

in Abney, while upholding appellate jurisdiction over

the double jeopardy claim, concluded that an appel-

late court lacked jurisdiction over the defendant’s

accompanying contention that the district court erred

in refusing to dismiss the indictment for failure to

state an offense. The Court held that “such claims

are appealable if, and only if, they too fall within

Cohen’s collateral-order exception to the final-

judgment rule.” 431 U.S. at 663, 97 S.Ct. at 2042.

Though the defendants may ultimately prevail on

13a

the issue of qualified immunity, they do not seriously

contend that the denials of their motions for sum-

mary judgment on that issue are appealable under

the three requirements of Cohen.

IIl

We are presented, then, with the defendants’ con-

tention that they are entitled to absolute immunity.

We recognize, as did the defendants, that the avail-

ability of absolute immunity to the individual agents

who executed the surveillances may rest on different

considerations from those urged by former Attorney

General Mitchell.° Thus, we analyze the two problems

separately.

6 We have omitted from our discussion any mention of the

defendants who were high level federal officials other than

former Attorney General Mitchell. In Forsyth the district

court dismissed the claims against defendants former At-

torney General Richard G. Kleindienst and former Director

of the FBI L. Patrick Gray. Plaintiffs have not challenged

the dismissal.

In Burkhart two of the defendants, former Attorney

General William Saxbe and former Director of the FBI

Clarence Kelley, have apparently not been formally dis-

missed. However, neither Saxbe nor Kelley was in office at

the time the surveillances occurred. Burkhart noted that there

is no basis for holding them liable for violating the fourth

amendment rights of the plaintiffs. Plaintiffs are left only

with a claim against Saxbe and Kelley for illegal use or dis-

closure of the taped material, an offense arising under 18

U.S.C. § 2520. See note 2 swpra. On these issues, the district

court stated: “Defendants, Saxbe and Kelley, having taken

office subsequent to the termination of the wiretaps in ques-

tion and there being no support on the record for plaintiffs’

allegations of use and disclosure, I see no basis for holding

14a

Former Attorney General Mitchell contends that he

is absolutely immune from civil liability for his de-

cision to authorize the warrantless electronic surveil-

lances. As the head of an executive agency, the

Department of Justice, he argues that he should not

be held liable for what he characterizes as an error

in judgment. His argument stresses that the wire-

taps which gave rise to these suits occurred in 1970

and 1971, but that the Supreme Court did not defi-

nitely decide until 1972 that the warrantless elec-

tronic surveillance of domestic organizations violated

the fourth amendment. See United States v. United

States District Court, 407 U.S. 297, 92 S.Ct. 2125,

32 L.Ed.2d 752 (1972). He argues that his only

error was a failure to predict accurately what the

Supreme Court would later hold. Also, he directs us

to the possibility of harassing lawsuits which he

contends would hamper the effective discharge of the

duties of the Attorney General if we were to hold

that he is not entitled to absolute immunity.

The Supreme Court considered the scope of im-

munity for the heads of federal executive agencies

in Butz v. Economou, 488 U.S. 478, 98 S.Ct. 2894,

57 L.Ed.2d 895 (1978). There, Economou brought

suit against a number of officials in the Department

of Agriculture. The corporation which the plaintiff

controlled, Arthur N. Economou and Co., had been

registered with the Department of Agriculture as a

these defendants liable.” 448 F.Supp. at 607 (footnote omit-

ted). Because of their uncertain status, we do not discuss

them individually. We note, however, that the principles de-

veloped by this opinion would apply equally to them.

15a

commodity futures commission merchant. The De-

partment sought to revoke the registration, contend-

ing that the plaintiff had failed to maintain the

required financial reserve. A hearing was heid, and

the Chief Hearing Examiner sustained the adminis-

trative complaint. His decision was affirmed by the

Department’s Judicial Officer. Economou contended

that the administrative proceeding had been initiated

in retaliation for his sharp criticism of the Com-

modity Exchange Authority. He sought damages

against several officials in the Department of Agri-

culture—including the Secretary, the Judicial Officer,

the Chief Hearing Examiner, and the Department

attorney who had presented the Department’s objec-

tions—for violations of his due process and first

amendment rights. The district court granted the

defendants’ motion to dismiss on the ground of abso-

lute immunity, and the Second Circuit reversed, rea-

soning that Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct.

1683, 40 L.Ed.2d 90 (1974), established that officials

of the executive branch exercising discretionary func-

tions would be adequately protected by only a quali-

fied immunity.

The Supreme Court reversed. While remanding

for further proceedings, the Court held that the Secre-

tary, and the other Agriculture Department officials

involved in the administrative proceeding, might be

entitled to absolute immunity from suit. The Court

first distinguished Barr v. Matteo, 360 U.S. 564, 79

S.Ct. 1835, 3 L.Ed.2d 1434 (1959), and in the proc-

ess, cut much of the force out of the Attorney Gen-

eral’s argument here. The defendant in Barr, the

16a

acting director of an executive agency, claimed abso-

lute immunity from a malicious defamation suit

brought by two former employees. The Supreme

Court’s plurality opinion held that the official was

absolutely immune since the issuance of the defama-

tory press release was “within the outer perimeter

of [the defendant’s] line of duty” and was “an ap-

propriate exercise of the discretion which an officer

of that rank must possess if the public service is to

function effectively.” 360 U.S. at 575, 79 S.Ct. at

1341. The Court succinctly stated its rationale for

granting absolute immunity:

It has been thought important that officials of

government should be free to exercise their duties

unembarrassed by the fear of damage suits in

respect of acts done in the course of those duties

—suits which would consume time and energies

which would otherwise be devoted to government

service and the threat of which might apprecia-

bly inhibit the fearless, vigorous, and effective

administration of policies of government.

Id. at 571, 79 S.Ct. at 1339. In balancing the depri-

vation to the individual denied a remedy against the

interest of governmental efficiency, the Court recog-

nized that “there may be occasional instances of actual

injustice which will go unredressed, but we think

that price a necessary one to pay for the greater

good.” Id. at 576, 79 S.Ct. at 1342.

The plaintiffs in Barr alleged defamation, a cause

of action arising under state tort law; in Butz, the

Court was presented with allegations of constitu-

tional deprivations. This distinction, in the Supreme

Court’s view, was crucial:

17a

[W]e are confident that Barr did not purport to

protect an official who has not only committed a

wrong under local law, but has also violated those

fundamental principles of fairness embodied in

the Constitution. Whatever level of protection

from state interference is appropriate for fed-

eral officials executing their duties under federal

law, it cannot be doubted that these officials, even

when acting pursuant to congressional authoriza-

tion, are subject to the restraints imposed by the

Federal Constitution.

53 S.Ct. at 2905 (footnote omitted). Thus, the con-

siderations central to the result in Barr—the need to

protect an official exercising his discretion and the

need to limit harassing suits which would impair the

vigorous discharge of his duties—are insufficient to

justify the grant of absolute immunity to high of-

ficials of executive agencies when violations of federal

constitutional law, as opposed to state tort law, are

asserted.

Having distinguished Barr v. Matteo, the Supreme

Court looked to Scheuer v. Rhodes, 416 U.S. 2382, 94

S.Ct. 1688, 40 L.Ed.2d 90 (1974), to supply the

governing legal principles. There it had confronted

the scope of immunity available to a state governor

sued under 42 U.S.C. § 1983 for suppressing a civil

disturbance in an unconstitutional manner. Butz

characterized Scheuer as resolving the problem of

‘how best to reconcile the plaintiff’s right to com-

pensation with the need to protect the decision mak-

ing processes of an executive department.” The re-

sult of the balance in Scheuer was to grant the state

18a

governor only a qualified, or good faith, immunity

from suit.’ Butz extended Scheuer to provide the

general rule for federal officials as well.®

Butz and Scheuer undermine the Attornel General’s

policy arguments here. First, he contends that his

prediction that warrantless electronic surveillance

would not be held to violate the fourth amendment

was essentially a discretionary act for which he should

not be held liable. We have noted, however, that

Barr’s holding that federal officials exercising discre-

tionary functions are absolutely immune from suit

under state tort law does not apply in the face

of allegations of constitutional deprivations. The

Butz Court balanced the competing considerations:

“Scheuer and other cases have recognized that it is

not unfair to hold liable the official who knows or

7 The Supreme Court defined “good faith” for the purposes

of establishing qualified immunity from a suit based on § 1983

in Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d

214 (1975). The Court held that an official would not be

immune from liability if he knew or should have known that

the action he took would violate the constitutional rights of

the plaintiff, or if he took the action with the malicious inten-

tion to cause a deprivation. Jd. at 322, 95 S.Ct. 992.

8 The Butz Court reasoned:

The constitutional injuries made actionable by § 1983

are of no greater magnitude than those for which fed-

eral officials may be responsible. The pressures and un-

certainties facing decisionmakers in state government

are little if at all different from those affecting federal

officials. . . . Surely, federal officials should enjoy no

greater zone of protection when they violate federal con-

stitutional rules than do state officers.

98 S.Ct. at 2908 (emphasis in original).

19a

should know he is acting outside the law, and that

insisting on an awareness of clearly established con-

stitutional limits will not unduly interfere with the

exercise of official judgment.” 98 S.Ct. at 2911. More

fundamentally, the Attorney General’s justification

that the law was unsettled when he authorized the

warrantless surveillance does not distinguish between

absolute and qualified immunity. If he can establish

that the law was unsettled, and that he acted without

malice, he will prevail on his claim of qualified im-

munity. See Wood v. Strickland, 420 U.S. 308, 95

S.Ct. 992, 43 L.Ed.2d 214 (1975) ; Scheuer v. Rhodes,

416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).

See also note 7 supra. As we have stressed, the ques-

tion before us is not ultimate liability; rather it is

whether the Attorney General should be protected

even from the burden of defending himself at trial.

Second, the Attorney General contends that he is

entitled to absolute immunity because a lesser level

of protection would permit an Attorney General to be

subject to frivolous, harassing lawsuits which would

chill the vigorous discharge of his duties. Butz, how-

ever, was unconcerned with this problem. The Court

noted that “[i]nsubstantial lawsuits can be quickly

terminated by federal courts alert to the possibilities

of artful pleading” and that “firm application of the

Federal Rules of Civil Procedure will ensure that

federal officials are not harassed by frivolous law-

suits.” 98 S.Ct. at 2911.

20a

IV.

The Supreme Court in Butz held that “in a suit

for damages arising from unconstitutional action,

federal executive officials exercising discretion are

entitled only to the qualified immunity specified in

Scheuer, subject to those exceptional situations where

it is demonstrated that absolute immunity is essential

for the conduct of the public business.” 98 S.Ct. at

2911. We read the holding as placing a heavy burden

on the defendants to demonstrate a need for protec-

tion greater than that provided by qualified immun-

ity.” As our starting point we must undertake “a

considered inquiry into the immunity historically ac-

corded the relevant official at common law and the

interests behind it.” Jd., quoting Imbler v. Pachtman,

424 U.S. 409, 421, 96 S.Ct. 984, 990, 47 L.Ed.2d 128

(1976).

In IJmbler the Supreme Court granted absolute

immunity to a state prosecutor from a suit under

42 U.S.C. § 1983 charging him with the knowing

use of perjured testimony. The plaintiff contended

that the state prosecutor could not, as a member of

the executive branch, claim quasi-judicial absolute

® The Court in Butz noted:

Our system of jurisprudence rests on the assumption

that all individuals, whatever their position in govern-

ment, are subject to federal law: ... In light of this

principle, federal officials who seek absolute exemption

from personal liability for unconstitutional conduct must

bear the burden of showing that public policy requires

an exemption of that scope.

98 S.Ct. at 2910-2911.

2la

immunity. The Supreme Court rejected the plain-

tiff’s argument. It stated that its earlier decisions

on section 1983 immunities did not rest solely on the

branch of government in which the defendant worked.

424 U.S. at 421, 96 S.Ct. 894. After determining

that a prosecutor was entitled at common law to

absolute immunity from suit, the Court examined

the common law rule in light of section 1983. In

upholding the grant of absolute immunity, it noted

that a state prosecutor would be particularly unable

to defend himself from a potential flood of section

1983 suits; that the ultimate fairness of the criminal

justice system might be upset by subjecting prosecu-

tors to suit; and that the inherent independence of

the judicial system provides procedures to check ex-

cessive prosecutorial zeal and determine whether the

accused has received a fair trial. 424 U.S. at 425-28,

96 S.Ct. 894.

The Attorney General here relies on Jmbler. He

analogizes his position to that of a state prosecuting

attorney, and argues that because their positions are

similar, he too should be entitled to the shield of abso-

lute immunity. The Attorney General’s claim to ab-

solute immunity, therefore, is measured by that ex-

tended to the state prosecutor in Jmbler. We search,

then, for the boundaries to that immunity.

At the outset, the Attorney General cannot effec-

tively contend that his functions are coextensive with

those of a prosecuting attorney. Though as a short-

hand expression he has been called the nation’s “chief

prosecuting attorney,” his duties and responsibilities

are far greater than those of the ordinary prosecu-

22a

tor.° The distinction is important because the

Supreme Court in Butz and Imbler intended a func-

tional test rather than one based on status or title.”

Butz particularly stressed the .eed to make an in-

quiry into the particular decision challenged to de-

termine whether an official is entitled to absolute

immunity. There, the Secretary of Agriculture had

the statutory power to initiate proceedings whenever

he had reason to believe that a person had violated

the statute or the rules, regulations, or orders of the

Secretary of Agriculture or the Commission. 7 U.S.C.

§ 9.° The Court noted that “[t]he decision to initiate

10 For example, the Attorney General is charged with the

duty of giving legal advice to the President, 28 U.S.C. § 511

(1976) ; to the heads of other executive departments, id. at

§ 512; and to the Secretaries of military departments, id. at

§ 513. His purely administrative duties range from provid-

ing for the publication and distribution of his opinions, id. at

§ 521, to appropriating money for the meals and lodging of

bailiffs, id. at §524. Moreover, the Federal Bureau of In-

vestigation is within the Department of Justice, id. at § 531.

And, the Attorney General has the power to appoint officials

to detect and prosecute crimes against the United States and

to conduct other investigations regarding official matters un-

der the control of the Department of Justice, id. at § 533.

11 The Eighth Circuit in Tigue v. Swaim, 585 F.2d 909 (8th

Cir. 1978), similarly read Butz as demanding a functional

approach: “Butz demands a particularized inquiry into the

functions an official performs and the circumstances under

which they are performed prior to the granting of absolute

immunity,” not merely an inquiry into the status or title of

the official claiming the protection.

12 The statute has since been amended to provide that the

Commission, and not the Secretary, has the power to initiate

proceedings. 7 U.S.C. §9, as amended by Act of Oct. 23,

1974, Pub.L.No. 93-463, 88 Stat. 1392.

28a

administrative proceedings against an individual or

corporation is very much like the prosecutor’s decision

to initiate or move forward with a criminai prosecu-

tion.” 98 S.Ct. at 2915. In granting the Secretary

absolute immunity over the decision to institute ad-

ministrative proceedings, the Court held: “agency

officials performing certain functions analogous to

those of a prosecutor should be able to claim absolute

immunity with respect to such acts.” Id. (emphasis

supplied) *

13 The Attorney General urges that an important factor in

the Butz decision to grant absolute immunity against a suit

challenging a decision by the Secretary to initiate the admin-

istrative proceeding was the existence of checks, other than

private damages actions, on the Secretary’s conduct. Thus,

in Butz the Court stressed that “legal remedies already avail-

able to the defendant in such a proceeding provide sufficient

checks on agency zeal.” 98 S.Ct. at 2916. More generally,

“the safeguards built into the judicial process tend to reduce

the need for private damage actions as a means of controlling

uncunstitutional conduct.” 98 S.Ct. at 2914. The Attorney

General argues that there are sufficient checks on his decision

to authorize warrantless electronic wiretaps that he, too,

should be immune from private remedy. He points out that

the Attorney General is an officer of the court, subject to

professional discipline, and that Congress has the power to

overturn his judicial interpretations.

We are not necessarily persuaded by the Attorney General’s

argument. The checks to which he directs our attention are

not analogous to the multitude of independent checks and

safeguards operating inherently, without the need of special

invocation, in the judicial system. It is because of the

“features of the judicial process” that “there is a less press-

ing need for individual suits to correct constitutional error.”

Butz, 98 S.Ct. at 2914. The plaintiffs here were not the sub-

24a

Imbler v. Pachtman, as well, utilized a functional

approach. It suggested that even a prosecuting at-

torney would not be absolutely immune from suit for

actions which are not closely connected with the

judicial process. The Supreme Court’s holding was

narrow: “We hold only that in initiating a prosecu-

tion and in presenting the State’s case, the prosecutor

is immune from a civil suit for damages under

§ 1983.” 424 U.S. at 431, 96 S.Ct. at 995. The

Court emphasized that the prosecutor’s activities

“were intimately associated with the judicial phase

of the criminal process,” and therefore, were “func-

tions to which the reasons for absolute immunity

apply with full force.” Jd. at 430, 96 S.Ct. at 995.

While leaving open the question of whether a prose-

cutor is entitled to absolute immunity for other ac-

tions, Justice Powell made the following comments:

We recognize that the duties of the prosecutor in

his role as an advocate for the State involve ac-

tions preliminary to the initiation of a prosecu-

tion and actions apart from the courtroom... .

These include questions of whether to present a

case to a grand jury, whether to file an infor-

mation, whether and when to prosecute, whether

to dismiss an indictment against particular de-

fendants, which witnesses to call, and what other

evidence to present. Preparation, both for the

initiation of the criminal process and for a trial,

jects of criminal investigations. If they are denied an oppor-

tunity to present their case by the doctrine of absolute im-

munity the defendants’ allegedly unconstitutional conduct may

never be subject to judicial scrutiny in any forum.

25a

may require the obtaining, reviewing, and evalu-

ating of evidence. At some point, and with re-

spect to some decisions, the prosecutor no doubt

functions as an administrator rather than as an

officer of the court. Drawing a proper line be-

tween these functions may present difficult ques-

tions, but this case does not require us to antici-

pate them.

424 U.S. at 481 n. 33, 96 S.Ct. at 995 n. 33.

Cases in other circuits both before and after Jm-

bler have distinguished between a prosecutor’s quasi-

judicial functions on the one hand and his investiga-

tive and administrative functions on the other, grant-

ing absolute immunity to the former and relegating

the latter to qualified immunity. In Apton v. Wilson,

165 U.S.App.D.C. 22, 506 F.2d 83 (1974), plaintiffs

contended that the Attorney General, other high rank-

ing Department of Justice officials, and members of

the District of Columbia Police Department violated

their fourth amendment rights. Specifically, plaintiffs

complained that they were detained without probable

cause during the May Day demonstrations in 1971.

The D.C. Circuit held that the Attorney Gerieral was

not entitled to absolute immunity for his part in

directing the May Day police activity. The Court

reasoned that “the absolute immunity often accorded

prosecuting attorneys cannot shield the defendants in

this case, for the prosecutor’s absolute protection, like

that of the judge from which it is derived, is both

justified and bounded by the judicial traditions and

procedures that limit and contain the danger of

abuse.” Jd. at 93 (footnotes omitted). The court

26a

held that in the course of directing police investiga-

tive activity, the Attorney General would not be

entitled to absolute immunity. See Guerro v. Mul-

hearn, 498 F.2d 1249 (1st Cir. 1974) (absolute

immunity does not relate to acts done in the prose-

cutor’s investigatory role) ; Hampton v. City of Chi-

cago, 484 F.2d 602 (7th Cir. 1973), cert. denied,

415 U.S. 917, 94 S.Ct. 1418, 39 L.Ed.2d 471 (1974)

(states attorney not absolutely immune for planning

and executing illegal raid) ; McCray v. Maryland, 456

F.2d 1 (4th Cir. 1972); Dodd v. Spokane County,

Washington, 393 F.2d 330, 335 (9th Cir. 1968).

See also Jennings v. Shuman, 567 F.2d 1213, 1221 &

n. 15 (3d Cir. 1977), which questions the correctness

of the scope of immunity afforded in Briggs v. Good-

win, 186 U.S.App.D.C. 179, 569 F.2d 10, 19-20

(1977), cert. denied, 437 U.S. 904, 98 S.Ct. 3089, 57

L.Ed.2d 1133 (1978).

This court has not been squarely presented with

the problem of the scope of immunity for prosecu-

torial conduct which lies outside of the advocatory

function but within a prosecutor’s duties as an ad-

ministrator or investigator. In Brawer v. Horowitz,

535 F.2d 8380 (38d Cir. 1976), we were confronted

with plaintiff’s contentions that a federal prosecutor

had knowingly used perjured testimony. We held:

“TA] federal prosecutor is absolutely immune from

suit where the allegations relate solely to his initiat-

ing and presenting a criminal case. The allegations

of the complaint implicating [the defendant-federal

prosecutor] all related to his actions in his role as

27a

an advocate, rather than as an administrator or in-

vestigator.” Id. at 834, citing Imbler v. Pachtman,

424 U.S. at 481 & n. 33, 96 S.Ct. 984. In Helstoski

v. Goldstein, 552 F.2d 564 (8d Cir. 1977), this court

in a per curiam opinion considered the immunity

available to a federal prosecutor against a suit al-

leging that he deliberately leaked false information

about the plaintiff to damage the plaintiff’s political

prospects. While finding it unnecessary to decide

whether absolute immunity protects a U.S. Attorney’s

administrative and investigative functions, we held

that for some conduct a prosecutor may only be

entitled to only qualified immunity: “It would ap-

pear that [the deliberate leaking of false informa-

tion], if it occurred would lie outside of the rationale

for absolute immunity set forth in Jmbler.” Id. at

566.

Thus, the advocatory/investigative distinction has

been cited with approval in this court.* We hold that

14 Defendants contend that this court rejected the advoca-

tory /investigative distinction in Cambist Films, Inc. v. Dug-

gan, 475 F.2d 887 (3d Cir. 1973). There, a state prosecuting

attorney was sued for his actions in investigating a violation

of the laws of Pennsylvania. The court, granting the prosecu-

tor absolute immunity, held: “Obviously, this case in no way

approaches the ‘clear absence of jurisdiction’ standard re-

quired for possible liability on the part of the prosecutor.”

Id. at 889. We distinguish Cambist on two grounds. First,

Cambist involved a common law tort action. Any statement

on the scope of immunity from allegations of constitutional

deprivations is only dicta in that opinion. Second, Cambist

cites Robichaud v. Ronan, 351 F.2d 533 (9th Cir. 1965), as

defining the distinction between “excess of jurisdiction” and

, 28a

where the activities of the Attorney General depart

from those which cast him in his quasi-judicial role,

the protection of absolute immunity will not be avail-

able. Helstoski v: Goldstein, 552 F.2d 564 (8d Cir.

1977).

Justice Powell noted in Jmbler that drawing the

line between protected and unprotected conduct will

be difficult. 424 U.S. at 431 n. 33, 96 S.Ct. 984.

This case, dealing essentially with investigative ac-

tivity, is within that gray area. We recognize that

the decision of the Attorney General, or a prosecut-

ing attorney, to initiate a prosecution is not made in

a vacuum. On occasion, the securing of additional

information may be necessary before an informed

decision can be made. To grant a prosecuting at-

torney absolute immunity over his decision to initiate

a prosecution while subjecting him to liability for

securing the information necessary to make that de-

cision would only foster uninformed decisionmaking

and the potential for needless actions. We believe

“complete absence of jurisdiction.” Robichaud, however,

stands squarely for the proposition that:

[W]hen a prosecuting attorney acts in some capacity

other than his quasi-judicial capacity, then the reason

for his immunity— integral relationship between his acts

and the judicial process—ceases to exist. If he acts in

the role of a policeman, then why should he not be liable,

as is the policeman, if in so acting, he has deprived the

plaintiff of rights, privileges, or immunities secured by

the Federal Constitution and laws?

851 F.2d at 586. See also Bauers Vv. Heisel, 361 F.2d 581, 591

(3d Cir. 1966), cert. denied, 386 U.S. 1021, 87 S.Ct. 1867, 18

L.Ed.2d 457 (1967).

29a

that the right to make the decision without being

subject to suit must include some limited right to

gather necessary information. At the same time, we

are sensitive to the possibility that this narrow ex-

ception could be distorted to include all of a prosecu-

tor’s investigative activities. We hold only that to

the extent that this securing of information is neces-

sary to a prosecutor’s decision to initiate a criminal

prosecution, it is encompassed within the protected,

quasi-judicial immunity afforded to the decision itself.

¥;

Our reading of Butz and Imbler leads us to the

conclusion that the Attorney General’s decision to

authorize the warrantless electronic surveillances is

protected by the shield of absolute immunity when

it is made in the context of a quasi-judicial function ;

however, when the decision arises in the context of a

purely investigative or administrative function, the

decision will not be protected by absolute immunity.”

We foresee that a iimited factual inquiry may in

some cases be necessary to determine in what role

15In language which may bear on the resolution of this

issue, the Supreme Court in Butz pointed out:

It makes little sense to hold that a Government agent

is liable for warrantless and forcible entry into a citi-

zen’s house in pursuit of evidence, but that an official of

higher rank who actually orders such a burglary is im-

mune simply because of his greater authority. Indeed,

the greater power of such officials affords a greater

potential for a regime or lawless conduct.

98 S.Ct. at 2910.

80a

the challenged function was exercised. We recognize

that this may result in some dilution of the protection

of absolute immunity. However, this approach is

necessary to protect fully the government official per-

forming a protected function; at the same time, we

must permit a private remedy to those whose consti-

tutional rights were violated by an official acting out:

side the scope of absolute immunity.”

In Forsyth the district court found that “in au-

thorizing the warrantless wiretap in this case, the

Attorney General was functioning as an adminis-

trator rather than as an officer of the court,” and

denied the claim of absolute immunity. 447 F.Supp.

at 201. However, the court has provided us with no

statement of the reasons for its decision that the au-

thorization of the warrantless wiretaps in this case

falls within the Attorney General’s administrative

function. As we have noted, if the decision to au-

thorize the wiretaps was made by the Attorney Gen-

eral in an attempt to secure information to deter-

16 Plaintiffs have also asserted a cause of action under 18

U.S.C. § 2520 (1976) for illegal interception of wire communi-

cations. See note 2 supra. Detcndants’ claim of absolute

immunity for violations of federal statutory law certainly

can fare no better than their claim for immunity against

constitutional torts.

Moreover, defendants can find no aid in the statute itself.

It provides: “A good faith reliance ona... legislative au-

thorization shall constitute a complete defense to any civil

_.. action brought under this chapter... .” (emphasis sup-

plied) The greatest scope of protection which the defendants

could derive from the words of the statute is a qualified, or

good faith, immunity. See Zweibon v. Mitchell, 170 U.S.App.

D.C. 1, 516 F.2d 594 (1975) (en banc), cert. denied, 425 U.S.

944, 96 S.Ct. 1684, 48 L.Ed.2d 187 (1976).

3la

mine whether to initiate a criminal prosecution, then

he is entitled to absolute immunity from suit chal-

lenging that decision. Without a statement of the

district court’s analysis, we are unable to determine

whether the Attorney General’s conduct meets that

test. Therefore, we must remand to the district

court for additional consideration. In Burkhart, the

district court initially ruled on the immunity issue

by denying defendants’ motion to dismiss or, in the

alternative, for judgment on the pleadings. The court

found it sufficient that the plaintiffs had made allega-

tions that the Attorney General had authorized the

wiretaps in the course of supervising an investigation.

397 F.Supp. at 503 n. 4. Later, on a motion for

summary judgment, the district court refused to re-

consider its earlier decision denying the motion to

dismiss on the ground of absolute immunity. 448

F.Supp. at 608 n. 33. The opinion does not disclose,

however, whether the court made any inquiry into

the circumstances surrounding the authorization.

Therefore, we must remand Burkhart, as well, to the

district court for an initial determination on the

availability of absolute immunity in light of the evi-

dence developed.

VI.

Finally, we must deal with the contention of the

individual FBI agents that they are entitled to abso-

lute immunity from suit for conducting the electronic

surveillances. They argue that they are entitled to

absolute immunity from suit derivatively from the

absolute immunity accorded to the Attorney General.

32a

Further, they argue that they were merely following

the orders of their superior and should not be put

to the test of either disobeying authority or being

subject to liability.

Their argument is not persuasive. In Johnson v.

Alldredge, 488 F.2d 820 (3d Cir. 1973), cert. denied,

419 U.S. 882, 95 S.Ct. 148, 42 L.Ed.2d 122 (1974),

this court rejected the concept of derivative absolute

immunity. There, we held that a prison warden was

absolutely immune from suit.’ However, we granted

the prison guards only qualified immunity, even

though they were merely implementing the policies

formulated by the warden. Johnson again demon-

strates that a decision on the scope of immunity de-

pends on the functions performed by the particular

official. Derivative absolute immunity would be in-

consistent with that approach.

Butz places a heavy burden on the official claiming

absolute immunity to demonstrate “exceptional cir-

17 We recognize that the primary holding in Johnson, that

the prison warden was absolutely immune from suit, may no

longer be valid. The prison warden had formulated a prison

regulation which was held to violate the constitutional rights

of the plaintiff. Relying on Barr v. Matteo, 360 U.S. 564, 79

S.Ct. 1835, 3 L.Ed.2d 1434 (1959), we held that the warden

was entitled to absolute immunity because the formulation of

regulations was a discretionary act and was within the outer

perimeter of his duties. As we discussed above, however,

Butz teaches that the Barr v. Matteo test does not apply

when the official is charged with constitutional violations.

Nevertheless, to determine entitlement to absolute immunity,

we analyzed the warden and the guards separately under the

Barr test. Our implicit rejection of derivative absolute im-

munity survives Butz.

33a

cumstances” which would justify such a high level

of protection. The agents have made no attempt to

bring themselves within the Butz test. They do not

claim a common law immunity from suit. Indeed,

they concede the well established rule that federal

law enforcement officers are entitled only to qualified,

or good faith, immunity. The special considerations

which lead us to grant absolute immunity to a prose-

cutor’s decision to initiate and present a criminal

action are simply not present when a federal law

enforcement officer is charged with constitutional

violations.

Moreover, we wish to emphasize that we have not

left the FBI agents defenseless. If they acted in

“good faith” in following the instructions of their

superiors, then they will prevail. See Scheuer v.

Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90

(1974) ; see also Wood v. Strickland, 420 U.S. 308, 94

S.Ct. 1688, 40 L.Ed.2d 90 (1975) (defining “good

faith” for purpose of qualified immunity). On the

other hand, if they knew or should have known that

their actions were violating the plaintiffs’ constitu-

tional rights, then they will not be allowed to hide

behind the cloak of institutional loyalty.

VII.

We hold that the Attorney General will be abso-

lutely immune from suit for his decision to authorize

the warrantless electronic surveillances only if his

decision was made in the performance of a function

that is intimately related to the judicial process.

34a

We believe that a determinution of the role in which

the decision was made may require some inquiry

into the circumstances surrounding the decision. As

Justice Powell recognized, a prosecutor’s quasi-

judicial activities are not limited to those which take

place in the courtroom. The decision to initiate a

criminal prosecution, which we believe includes some

limited right to gather information necessary to make

that decision, is one such protected function. We are

unable to determine from the record whether the

district courts in Forsyth and Burkhart applied the -

appropriate legal test. Therefore, we must remand

both cases to the district courts to conduct any addi-

tional inquiry that may be necessary and to apply

the test enunciated here. Finally, we hold that the

individual FBI agents are not entitled to derivative

absolute immunity, and therefore, we will affirm the

district courts on that issue.

Each side shall bear its own costs.

35a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 78-1611

KEITH FORSYTH, APPELLEE

v.

RICHARD G. KLEINDIENST, Individually and as Attor-

ney General of the United States, L. PATRICK GRAY,

83RD, Individually and as Acting Director, Federal

Bureau of Investigation, JOHN N. MITCHELL, In-

dividually and as former Attorney General of the

United States, JOHN DOE and RICHARD ROE, AL-

BERT COOPER and DAVID PORTER

JOHN N. MITCHELL, E. DAVIS PORTER, and

ALBERT COOPER, APPELLANTS

(D.C. Civil No. 72-1920)

86a

No. 78-1847

KATHERINE W. BURKHART, JUDITH CHOMSKY, EVA

GOLD, DINA PoRTNOY, CANDY PUTTER, JOSHUA

(JOSH) MARKEL, APPELLEES

Vv.

WILLIAM SAXBE, Individually and as Attorney Gen-

eral of the United States; CLARENCE KELLEY, .Di-

rector, Federal Bureau of Investigation; JoHN N.

MITCHELL, Individually and as former Attorney

General of the United States; JoHN Dor; and

RICHARD ROE,

JOHN N. MITCHELL, CLARENCE KELLEY, and

WILLIAM SAXBE, APPELLANTS

(D.C. Civil No. 74-0826)

APPEAL FROM THE UNITED STATES DISTRICT CoURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Present: HUNTER and WEIS, Circuit Judges and

MARKEY, Chief Judge, Court of Customs

and Patent Appeals *

* Honorable Howard T. Markey, Chief Judge of the United

States Court of Customs and Patent Appeals, Washington,

D.C., sitting by designation.

37a

JUDGMENT

These causes came on to be heard on the records

from the United States District Court for the East-

ern District of Pennsylvania and were argued by

counsel on February 23, 1979.

On consideration whereof, it is now here ordered

and adjudged by this Court that the orders of the

said District Court filed February 14, 1978 in our

No. 78-1611, and March 22, 1978 in our No. 78-1847,

be, and the same are hereby affirmed insofar as the

issue of derivative absolute immunity is concerned,

and the causes be, and the same are hereby remanded

to the said District Court for further proceedings in

accordance with the opinion of this Court. Each

side to bear its own costs.

ATTEST:

/s/ Thomas F. Quinn

THOMAS F’. QUINN

Clerk

May 22, 1979

Certified as a true copy and issued in lieu of a

formal mandate on September 5, 1979.

Test: THOMAS F. QUINN

Clerk

United States Court of Appeals

for the Third Circuit

38a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 78-1611

KEITH FORSYTH

v8.

RICHARD G. KLEINDIENST, Individually, et al. JOHN

N. MITCHELL, E. DAVID PORTER, and ALBERT

COOPER, APPELLANTS

No. 78-1847

KATHERINE W. BURKHART, et al.

vs.

WILLIAM SAXBE, Individually, et al. JoHN N. MIT-

CHELL, CLARENCE KELLEY, and WILLIAM SAXBE,

APPELLANTS

SUR PETITION FOR REHEARING

Present: SEITZ, Chief Judge, ALDISERT, ADAMS,

GIBBONS, ROSENN, HUNTER, WEIS, GARTH

and HIGGINBOTHAM

The petition for rehearing filed by APPELLANTS

in the above entitled case having been submitted to

the judges who participated in the decision of this

court and to all the other available circuit judges

89a

of the circuit in regular active service, and no judge

who concurred in the decision having asked for re-

hearing, and a majority of the circuit judges of the

circuit in regular active service not having voted

for rehearing by the court in banc, the petition for

rehearing is denied.

By the Court,

/s/ James Hunter, III

JAMES HUNTER, III

Judge

Dated: August 24, 1979

40a

APPENDIX D

UNITED STATES DISTRICT COURT

E. D. PENNSYLVANIA

Civ. A. No. 72-1920

KEITH FORSYTH

v.

RICHARD G. KLEINDIENST, Individually and as Attor-

ney General of the United States, L. PATRICK GRAY,

3RD, Individually and as Acting Director, Federal

. Bureau of Investigation, JoHN N. MITCHELL, In-

dividually and as former Attorney General of the

United States, JoHN DoE and RICHARD ROE

Feb. 14, 1978

MEMORANDUM

RAYMOND J. BRODERICK, District Judge.

Plaintiff, Keith Forsyth, initiated this civil action

in 1972 to recover damages in connection with the

federal government’s electronic interception of tele-

phone conversations, which he claims violated his

rights under 18 U.S.C. § 2510-2520 and the First,

Fourth and Ninth Amendments of the Constitution

of the United States." The defendants remaining in

1 The plaintiff had originally alleged a violation of his rights

under 47 U.S.C. § 605, but now concedes that he has no cause

4la

this action? are former Attorney General of the

United States John Mitchell, who authorized the wire-

tap, and two Federal Bureau of Investigation em-

ployees, who intercepted the conversations. The plain-

tiff bases his cause of action upon the undisputed

facts that the wiretap placed upon the telephone of

William Davidon was warrantless and without court

approval, and that during this surveillance, conver-

sations of the plaintiff were overheard and recorded.*

Discovery in this case has been completed, although

at the defendants’ request many of the documents and

briefs have been filed with the Court in camera.

Presently before the Court are cross-motions for sum-

mary judgment on the issue of liability. Having

heard oral argument, we now determine that both

these motions will be denied on the ground that

there exists a genuine issue of material fact.

of action thereunder. He has also agreed that the Sixth

Amendment claim asserted in the complaint should be dis-

missed for failure of proof.

2In his complaint the plaintiff had included as defendants

former Attorney General Richard Kleindienst and former

FBI Director L. Patrick Gray. He has admitted, however,

that his claims against them should be dismissed.

3The disclosure of this electronic surveillance was made

by the United States in response to an 18 U.S.C. § 2520

motion to suppress filed March 15, 1972, in the then pending

criminal action United States v. William Anderson, Criminal

No. 602-71 (D.N.J.).

42a

The defendants claim that they are entitled to

summary judgment on the basis of the record fo:

the following reasons:

1. Title III of the Omnibus Crime Control and

Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520 is

not applicable to national security electronic sur-

veillances ;

2. United States v. United States District Court,

407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972),

should not be applied retroactively to give plaintiff

a cause of action;

3. The defendants have an absolute immunity in

this action for damages; and

4, The defendants’ affirmative good faith defense

has been established by the record.

On the other hand, the plaintiff contends that he is

entitled to summary judgment on the following

grounds:

1. The electronic surveillance in question violated

Title VIII of the Omnibus Crime Control and Safe

Streets Act of 1968, 18 U.S.C. §§ 2510-2520, as well

as the Fourth Amendment;

2. United States v. United States District Court,

407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972),

should be given retroactive application; and

3. The defendants have no absolute immunity and

have failed to establish an affirmative defense of good

faith.

43a

Material Facts As To Which There Is No Genuine

Issue.

The pleadings, answers to interrogatories and the

deposition of former Attorney General Mitchell filed

in this case contain the following material facts as

to which there does not appear to be a genuine issue.

In June, 1970, the Philadelphia office of the FBI

learned from a member of the East Coast Conspiracy

to“Save Lives (ECCSL) that the group was planning

to damage underground heating systems in Washing-

ton, D.C. to demonstrate its opposition to the war in

Vietnam. At that time the FBI was also informed

that ECCSL was responsible for several draft board

raids. The FBI began an investigation into these

alleged activities.

On August 21, 1970, the same person informed

the FBI that at least three people, including Pro-

fessor William Davidon of Haverford College, had

discussed the possibility of kidnapping Henry Kis-

singer. The Government was furnished with copies

of letters in which the idea was considered. These

letters were written by two members of ECCSL,

Father Phillip Berrigan and Sister Elizabeth Mc-

Alister. This information was relayed to the At-

torney General, Dr. Kissinger and Presidential As-

sistant John Ehrlichman in a memorandum by FBI

Director J. Edgar Hoover on September 4, 1970. The

Philadelphia office of the FBI was assigned primary

responsibility for the criminal investigation and was

directed to prepare a comprehensive report concern-

ing ECCSL.

44a

On October 12, 1970, the Philadelphia office of the

FBI requested the Department of Justice to evaluate

the report it had prepared “for a prosecutive opin-

ion.” At that time the Philadelphia office was “con-

sidering electronic surveillance feasibility for William

Davidon.” On November 13, 1970, a Department of

Justice report concluded that there was a “reasonably

good prosecutable case against eleven individuals”

with respect to the draft board case, but that there

was “not sufficient evidence to obtain a conviction”

for the conspiracy to kidnap Dr. Kissinger or to

damage the utility system in Washington, D.C.

On November 6, 1970, at the request of the FBI,

Attorney General Mitchell authorized the wiretap on

Davidon that is the subject of this lawsuit. This tap

was placed and continued with one extension, until

January 6, 1971. The sworn answers of FBI Special

Agent Fields reveal that in the view of the Federal

Bureau of Investigation, the electronic surveillance

upon which plaintiff’s conversations were overheard

was instituted for the purpose of gathering intelli-

gence-type information under circumstances where it

was also anticipated that information of a criminal

evidentiary nature might be obtained. He further

stated that under the guidelines which had been is-

sued to FBI field offices concerning electronic surveil-

lance authorized by the Attorney General for na-

tional security intelligence gathering purposes, moni-

toring personnel were instructed to monitor and rec-

ord conversations unless it was known that a par-

ticular individual speaking on the surveilled telephone

45a

line was a defendant in a federal criminal case or an

attorney for a defendant in a federal case. With re-

spect to the national security electronic surveillance

on which plaintiff’s conversations were overheard,

neither the subject of that surveillance nor other

individuals whose conversations were expected to be

overheard were defendants or attorneys for defend-

ants in a federal criminal case, and therefore no

particular instructions were given the two FBI em-

ployees ‘“‘to minimize the interception of communica-

tions not relevant to the alleged purposes for the in-

terceptions.” The plaintiff was overheard on three

occasions.

A federal grand jury in Harrisburg, Pennsylvania

began hearing evidence on December 13, 1970 regard-

ing a plan to destroy underground utility tunnels in

Washington, D.C. and to kidnap Dr. Henry Kissinger.

In 1971 true bills were found in connection with two

indictments, the prosecution of which became known

as the trial of the Harrisburg Eight.

The Warrantless Electronic Surveillance In This Case

Violated The Fourth Amendment.

Since 1967, when the United States Supreme Court

handed down its decision in Katz v. United States,

389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967),

there has been little doubt that, except for certain

well-delineated exceptions,* a warrant is necessary

for electronic surveillance of criminal activity unre-

* See, Katz, 389 U.S. at 357-58, 88 S.Ct. 507.

46a

lated to the national security interest. Furthermore,

since 1972 when the Supreme Court decided United

States v. United States District Court, 407 U.S. 297,

92 S.Ct. 2125, 32 L.Ed.2d 752 (1972), there has

been little doubt that a warrant is also necessary in

matters involving the national security interest, ex-

cept for surveillances based on threats to the national

security involving foreign powers.’ It follows, there-

fore, that the warrantless electronic surveillance

placed on the telephone of William Davidon in No-

vember 1970 was unconstitutional. The memorandum

by which the Attorney General personally authorized

this wiretap claimed that it was necessary to protect

the national security interest in connection with the

activities of a domestic organization. The Govern-

ment made no claim that a foreign power was in-

volved. Since District Court, there is no question

that such a warrantless electronic surveillance is un-

constitutional. In this civil action for damages,

wherein the plaintiff claims that he was overheard

on the warrantless wiretap, the issue presented is

whether the plaintiff is entitled to recover monetary

damages under either 18 U.S.C. §$§ 2510-2520 or the

Fourth Amendment.

5 United States v. Butenko, 494 F.2d 593 (3d Cir. (en

banc), cert. denied, 419 U.S. 881, 95 S.Ct. 147, 42 L.Ed.2d

121 (1974). But see, Zweibon Vv. Mitchell, 170 U.S.App.D.C.

1, 516 F.2d 594 (1975) (en banc), cert. denied, 425 U.S. 944,

96 S.Ct. 1684, 48 L.Ed.2d 187 (1976).

47a

District Court Should Not Be Given Nonretroactive

Application.

The defendants take the position that no liability

on plaintiff’s Fourth Amendment claim should be

imposed in this civil litigation because under Chevron

Oil v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d

296 (1971), District Court should be given only

prospective application. In Chevron Oil, the United

6 We are not dealing with a criminal case and therefore do

not consider Supreme Court decisions in that area. Justice

Harlan characterized the Supreme Court’s application of the

nonretroactivity doctrine in criminal cases in Desist v. United

States, 394 U.S. 244, 256-57, 89 S.Ct. 1030, 1038, 22 L.Ed.2d

248 (1969) (dissenting opinion) :

In the four short years since we embraced the notion

that our constitutional decisions in criminal cases need

not be retroactively applied, Linkletter v. Walker, 381

U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), we have

created an extraordinary collection of rules to govern

the application of that principle. We have held that

certain ‘new’ rules are to be applied to all cases then

subject to direct review, Linkletter v. Walker, supra;

Tehan v. United States ex rel. Shott, 382 U.S. 406, 86

S.Ct. 459, 15 L.Ed.2d 453 (1966) ; certain others are to

be applied to all those cases in which trials have not yet

commenced, Johnson v. New Jersey, 384 U.S. 719, 86

S.Ct. 1772, 16 L.Ed.2d 882 (1966) ; certain others are

to be applied to all those cases in which the tainted evi-

dence has not yet been introduced at trial, Fuller v.

Alaska, 3983 U.S. 80, 89 S.Ct. 61, 21 L.Ed.2d 212 (1968) ;

and still others are to be applied only to the party in-

volved in the case in which the new rule is announced

and to all future cases in which the proscribed official

conduct has not yet occurred. Stovall v. Denno, 388 US.

298, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) ; De Stefano

v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308

(1968).

48a

States Supreme Court set out the criteria for decid-

ing when a decision should be given nonretroactive

application in a civil case:

First, the decision to be applied nonretroactively

must establish a new principle of law, either by

overruling clear past precedent on which litigants

may have relied .. . or by deciding an issue of

first impression whose resolution was not clearly

foreshadowed .. . . Second, it has been stressed

that ‘we must... weigh the merits and demerits

in each case by looking to the prior history of the

rule in question, its purpose and effect, and

whether retrospective operation will further or

retard its operation.’ Linkletter v. Walker,

supra, 381 U.S. at 629, 85 S.Ct. 1731. Finally,

we [must] weigh the inequity, imposed by retro-

active application for “[w]here a decision of this

Court could produce substantial inequitable re-

sults if applied retroactively, there is ample basis

in our cases for avoiding the “injustice or hard-

ship” by holding of non-retroactivity.” Cipriano

v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897,

23 L.Ed.2d 647 (1969). Id. at 106-07, 92 S.Ct.

at 355."

As to whether District Court overruled a “clear past

precedent,” we find that prior to District Court, there

was no clear rule of law which wauld have au-

thorized the warrantless electronic surveillance in the

instant case. Thus, District Court did not overrule

™For an excellent discussion of this portion of Chevron

Oil, see Judge Gibbons’ analysis in Kacher v. Pittsburgh Nat'l

Bank, 545 F.2d 842, 849-52 (3d Cir. 1976) (dissenting

opinion).

49a

any clear past precedent. Whether District Court

decided “an issue of first impression whose resolution

was not clearly foreshadowed” in November 1970

when the wiretap in this case was placed, presents a

more difficult question. Prior to the decision in Dis-

trict Court in June 1972, several federal courts had

been presented with the precise question decided in

District Court, but they had reached divergent con-

clusions. On one hand, Judge Hoffman held in United

States v. Dellinger, 69 CR 180 at 20 (N.D.IIl. Feb.

20, 1970):

because the matter of when electronic surveil-

lance is reasonably necessary to investigations

carried out to protect the national security is a

matter not suitable for a judicial determination,

but is rather best left to the authorization of the

President or his chief legal officer, the Attorney

General, I conclude that electronic surveillance in

national security cases is not subject to the war-

rant requirements of the Fourth Amendment.

(emphasis added).

And Chief Judge Stanley of the District of Kansas

stated on the record in United States v. O’Neal, KC-

CR-1204 on September 1, 1970:

all of the [warrantless] interceptions, the wire-

taps, in this case, .. . were legally obtained with-

in the inherent constitutional power of the Presi-

dent because of his responsibility to gather intel-

ligence information having to do with matters

vital to national security . . . (emphasis added).

On the other hand, Judge Ferguson stated in

United States v. Smith, 321 F.Supp. 424, 429 (C.D.

50a

Cal. 1971), on January 8, 1971, just two days after

the Davidon tap was removed:

[t]his court is forced to conclude that in wholly

domestic situations there is no national security

exemption from the warrant requirement of the

Fourth Arnendment. (emphasis added).

Shortly thereafter, the district court judge in Dis-

trict Court stated in response to the Government’s

claim that the President, acting through the Attorney

General, is clothed with the power to authorize war-

rantless wiretaps for domestic security purposes:

[i]n the opinion of this Court, the position of the

Attorney General is untenable. Jt is supported

neither historically, nor by the language of the

Omnibus Crime Act. Such power held by one

individual was never contemplated by the fram-

ers of our Constitution and cannot be tolerated

today. United States v. Sinclair, 321 F.Supp.

1074, 1079 (D.Mich.1971), aff'd sub nom. United

States v. United States District Court, 407 U.S.

297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972) (em-

phasis added).

The most relevant Supreme Court case prior to

District Court was Katz, wherein the Court made it

clear that a warrant was necessary for all types

(even nontrespassory) of electronic surveillance of

criminal activity unrelated to the national security

interest. In Katz, Justice Stewart stated in the ma-

jority opinion:

[w ]hether safeguards other than prior authoriza-

tion by a magistrate would satisfy the Fourth

5la

Amendment in a situation involving the national

security is a question not presented by this case.

389 U.S. at 359 n. 23, 88 S.Ct. at 515.

Although six other Justices agreed with the decision

of the Court, three felt compelled to write concurring

opinions in order to express their views on this issue.

Justice White wrote: |

[w]e should not require the warrant procedure

and the magistrate’s judgment if the President

of the United States or his chief legal officer, has

considered the requirements of national security

and authorized electronic surveillance as reason-

able. Id. at 364, 88 S.Ct. at 518.

Justice Douglas, with Justice Brennan joining, wrote:

[neither the President nor the Attorney Gen-

eral is a magistrate. In matters where they be-

lieve national security may be involved they are

not detached, disinterested, and neutral as a

court or magistrate must be. Under the separa-

tion of powers created by the Constitution, the

Executive Branch is not supposed to be neutral

and disinterested. Rather it should vigorously

investigate and prevent breaches of national se-

curity and prosecute those who violate the per-

tinent federal laws. The President and Attorney

General are properly interested parties, cast in

the role of adversary, in national security cases.

They may even be the intended victims of sub-

versive action. Since spies and saboteurs are as

entitled to the protection of the Fourth Amend-

ment as suspected gamblers like petitioner, [we]

cannot agree that where spies and saboteurs are

52a

involved adequate protection of the Fourth

Amendment rights is assured when the President

and Attorney General assume both the position

of adversary-and-prosecutor and disinterested,

neutral magistrate. Jd. at 359-60, 88 S.Ct. at

516.

In view of our determination in connection with the

second and third criteria for nonretroactivity, we do

not find it necessary to decide the question of whether

District Court decided “an issue of first impression

whose resolution was not clearly foreshadowed” in

1970.°

The second criterion for nonretroactivity set forth

in Chevron Oil is whether application will further or

retard the purpose of the ruling. The purpose of the

rule enunciated in District Court was to protect peo-

ple from unwarranted intrusions into their privacy

by the administrative arm of their government. De-

nying nonretroactivity will not retard, but should

encourage vigilance and solicitude for the Fourth

Amendment rights of persons, particularly in close

cases.

The third and final criverion for nonretroactivity

in Chevron Oil is whether there will be injustice or

hardship to the parties. In this case, as we herein-

after determine, the defendants will be afforded an

opportunity to establish a good faith defense. Obvi-

8 The use of warrantless electronic surveillance by previous

Presidents and Attorneys General is discussed in District

Court, supra, 407 U.S. at 310, 92 S.Ct. 2125 and in Zweibon,

170 U.S.App.D.C. at 23, 516 F.2d at 616.

53a

ously, retroactive application is not inequitable to the

plaintiff. Thus, none of the parties will suffer an

unjust hardship if District Court is retroactively ap-

plied. In view of our determination that the second

and third criteria of Chevron Oil have not been met,

we conclude that the record in this civil case does

not support a holding of nonretroactivity pursuant to

Chevron Oil.®

® Nonretroactive application of new Fourth Amendment

doctrines is frequently mandated in criminal cases. See, e.g.,

Desist v. United States, 394 U.S. 244, 247-48, 89 S.Ct. 1030,

22 L.Ed.2d 248 (1969). Nevertheless, District Court was not

given nonretroactive application when the electronic surveil-

lance at issue in this case was challenged in the criminal trial

of United States v. Ahmad, 335 F.Supp. 1198, 1200 (M.D.Pa.

1971), wherein Judge Herman ruled the wiretap illegal under

District Court, and, therefore, ordered the fruits of the sur-

veillance suppressed. Furthermore, the Third Circuit, when

presented with these determinations, stated, 499 F.2d 851,

853 n. 2 (3d Cir. 1974):

Judge R. Dixon Herman, who presided over the [Har-

risburg Eight] case, found that there had been an unau-

thorized and illegal wiretap.”

2 The electronic surveillance apparently had been per-

formed without a court order in accordance with a

Presidential determination that national security was in-

volved. Judge Herman relied on the decision of the Court

of Appeals in United States v. United States District

Court, 444 F.2d 651 (6th Cir. 1971), later affirmed by

the United States Supreme Court at 407 U.S. 297, 92 S.Ct.

2125, 32 L.Ed.2d 752 (1972) in deciding that the wiretap

was illegal.

54a

The Electronic Surveillance In This Case Is Subject

To The Procedures And Remedies Of 18 U.S.C.

§§ 2510-2520.

The defendants contend that the national security

electronics surveillance in this case does not violate

any of the provisions of Title III of the Omnibus

Crime Control and Safe Streets Act of 1968, 18

U.S.C. §§ 2510-2520. The basis of their contention is

that § 2511(3) of the Act exempts electronic surveil-

lances conducted for national security purposes. Sec-

tion 2511(38) provides:

(3) Nothing contained in this chapter...

shall limit the constitutional power of the Presi-

dent to take such measures as he deems neces-

sary to protect the Nation against actual or

potential attack or other hostile acts of a for-

eign power, to obtain foreign intelligence infor-

mation deemed essential to the security of the

United States, or to protect national security

information against foreign intelligence activi-

ties. Nor shall anything contained in this chap-

ter be deemed to limit the constitutional power

of the President to take such measures as he

deems necesary to protect the United States

against the overthrow of the Government by

force or other unlawful means, or against any

other clear and present danger to the-structure

or existence of the Government... .

The United States Supreme Court stated in District

Court that the purpose of § 2511(3) was to “provide

that the Act shall not be interpreted to limit or dis-

turb such power as the President may have under the

55a

Constitution. In short, Congress simply left presiden-

tial powers where it found them.” 407 U.S. at 303,

92 S.Ct. at 2130.

The question as to whether electronic surveillance

for national security purposes became subject in 1968

to the procedures and remedies of 18 U.S.C. §§ 2510-

2520 was determined by the District of Columbia

Circuit in Zweibon v. Mitchell, 170 U.S.App. D.C. 1,

516 F.2d 597 (1975) (en banc), cert. denied, 425

U.S. 944, 96 S.Ct. 1684, 48 L.Ed.2d 187 (1976). In

an opinion for the plurality by Judge Wright, the

court held that electronic surveillance of the type in-

volved in the instant case is subject to both the pro-

cedures and the remedies provided by the Act.” In

his opinion Judge Wright reasoned:

10 Judge Wright described the responsibility of the judiciary

in the area of electronic surveillance for “national security”

as follows:

Undoubtedly the President, our Chief Executive and

Commander-in-Chief of our Armed Forces, is imbued by

the Constitution with vast and indispensable powers for

dealing with the vital problems generated by our rela-

tions with foreign powers, including the duty to protect

this country from foreign aggression or subversion. The

very existence of such tremendous power, however, ren-

ders it susceptible to abuse and endangers those funda-

mental personal liberties which the Government was

instituted to secure for its citizens and whose exercise

elevates the nation to a statute worthy of defense. Thus,

although the attempt to claim Executive prerogatives or

infringe liberty in the name of security and order may

be motivated by the highest of ideals, the judiciary must

remain vigilantly prepared to fulfill its own responsibility

to channel Executive action within constitutional bounds.

170 U.S.App.D.C. at 8-9, 516 F.2d at 604-05 (footnotes

omitted).

56a

Since we do not believe the [District Court]

case held the standards and procedures of Title

III to be inapplicable when a purported national

security surveillance is involved, we must look

to the language and legislative history of Section

2511(3) to determine congressional intent in its

enactment. Section 2511(1) unequivocally de-

clares that ‘[e]xcept as specifically provided in

this chapter,’ interception of ‘any wire or oral

communication’ is illegal. Section 2511(3), how-

ever, only states that ‘[n]othing contained in

this chapter * * * shall limit the constitutional

power of the President’ to take the actions he

deems necessary in the field of national security.

Since Section 2511(3) is merely a disclaimer

that ‘constitutional’ actions by the President are

not to be invalidated under the statute, it is rea-

sonable to assume that Congress intended to pro-

hibit ‘unconstitutional’ Executive surveillance,

which would therefore be ‘in violation of this

chapter’ within the comprehension of the dam-

ages provision of Title III. Thus, even if the

procedures of Title III were inapplicable to na-

tional security wiretapping, the remedies of Title

III should apply to unconstitutional exercises of

presidential power.

An analysis of the legislative history of Title

III also indicates that it would be reasonable to

interpret Section 2511(3) as a statement that

the question reserved in Katz should be left for

judicial resolution, but that, to the extent the

President does not have the constitutional power

to engage in warrantless surveillance activities,

the procedures and remedies of Title III are fully

operative. This interpretation is fully consistent

57a

with the [District Court] Court’s understanding

of the legislative history of Section 2511(3) and

the two-decade struggle in Congress concerning

wiretap legislation.

Id. at 67-68, 516 F.2d at 663-64 (emphasis supplied

in part). Accord, Kinoy v. Mitchell, 331 F.Supp.

379, 382 (S.D.N.Y. 1971).

We agree with Zweibon that the procedures and

remedies of Title III apply to all electronic surveil-

lance which must, by virtue of the Fourth Amend-

ment, be conducted pursuant to a warrant. Since, as

we have heretofore pointed out, a warrant was con-

stitutionally required under the circumstances of this

case, it would appear that the remedies provided in

Title III should be made available to the plaintiff,

unless the defendants establish an affirmative good

faith defense, as hereinafter discussed."

The Defendants Are Limited To An Affirmative Good

Defense.

The defendants seek to avoid liability by asserting

that they have an absolute immunity from suit for

discretionary acts done within the scope of their au-

thority because they are high ranking government offi-

cials. They contend that this is the law in the Third

Circuit and cite three pre-1975 cases: Skehan v.

11 Although it does not appear that the defendants are

contending that the nonretroactivity doctrine of Chevron Oil

should be applied to nullify the effect of Title III in this case,

it is nevertheless our opinion that the reasons hereinbefore

stated for the retroactive application of District Court would

likewise be applicable here.

58a

Board of Trustees of Bloomsburg State College, 501

F.2d 31, 43 (3d Cir. 1974), vacated, 421 U.S. 983,

95 S.Ct. 1986, 44 L.Ed.2d 474 (1975); Fidtler v.

Rundle, 497 F.2d 794, 802 (3d Cir. 1974) ; and John-

son v. Alldredge, 488 F.2d 820, 824 (1974). How-

ever, as the Third Circuit stated in Skehan v. Board

of Trustees of Bloomsburg State College, 538 F2d 53,

59-60 (3d Cir.) (en banc), cert. denied, 429 U.S. 979,

97 S.Ct. 490, 50 L.Ed.2d 588 (1976) :

[u]pon ... consideration we conclude that Wood

v. Strickland [420 U.S. 308, 95 S.Ct. 992, 43

L.Ed.2d 214 (1975)] significantly modified the

law of immunity upon which we relied in affirm-

ing the district court .... It was our view

[then] that if the government officials perform-

ing discretionary government duties acted within

the scope of their official responsibilities, they

were immune from damage actions....

Wood v. Strickland, supra, demonstrates that

we erred in assuming that there still existed an

unqualified, common law immunity covering non-

judicial . . . government officials performing

adjudicatory functions.

It therefore appears that government officials, even

high ranking government officials such as the Attor-

ney General of the United States, no longer have

available to them the defense of absolute immunity

on the ground that they were performing discre-

tionary duties within the scope of their official re-

sponsibilities.

We must determine, however, whether the Attor-

ney General, who, next to the President, is our na-

59a

tion’s highest executive officer directly responsible

for the administration of justice, is entitled to an ab-

solute immunity in connection with his authorization

of the unconstitutional electronic surveillance in this

case. Fortunately Jmbler v. Pachtman, 424 U.S. 409,

96 S.Ct. 984, 47 L.Ed.2d 128 (1976) provides some

guidance for the resolution of this issue. In Jmbler,

the United States Supreme Court decided that a state

prosecuting attorney who acted within the scope of

his duties by initiating and pursuing a criminal

prosecution was entitled to absolute immunity. In

arriving at its determination that a prosecutor does

have absolute immunity in the performance of acts

“intimately associated with the judicial phase of the

criminal process,” the Court placed reliance upon

Yaselli v. Goff, 12 F.2d 396 (2d Cir. 1926), aff'd

per curiam, 275 U.S. 508, 48 S.Ct. 155, 72 L.Ed. 395

(1927), in which absolute immunity was granted to

a special assistant to the Attorney General of the

United States in connection with an action of mailici-

ous prosecution based on an indictment and prosecu-

tion. In delineating the boundaries of its holding,

however, the Court stated:

[w]e agree with the Court of Appeals that re-

spondent’s activities were intimately associated

with the judicial phase of the criminal process,

and thus were functions to which the reasons for

absolute immunity apply with full force. We

have no occasion to consider whether like or simi-

lar reasons require immunity for those aspects

of the prosecutor’s responsibility that cast him in

the role of an administrator or investigative of-

60a

ficer rather than that of advocate. We hold only

that in initiating a prosecution and in presenting

the State’s case, the prosecutor is immune from

a civil suit for damages under § 1983. 424 U.S.

at 430, 96 S.Ct. at 995.

Here we are concerned with actions of the Attorney

General in authorizing a warrantless wiretap. As

the Imbler Court stated in a footnote:

[p]reparation, both for the initiation of the

criminal process and for a trial, may require the

obtaining, reviewing, and evaluating of evidence.

At some point, and with respect to some deci-

sions, the prosecutor no doubt functions as an

administrator rather than as an officer of the

court. Drawing a proper line between these func-

tions may present difficult questions, but this case

does not require us to anticipate them. Jd. at

431 n. 33, 96 S.Ct. at 995 n. 33.

It is therefore our opinion that in authorizing the

warrantless wiretap in this case, the Attorney Gen-

eral was functioning as an administrator rather than

as an officer of the court. We must conclude that the

Attorney General is not entitled to absolute immunity

in connection with this warrantless electronic sur-

veillance.

The Defendants May Assert A Good Faith Affirma-

tive Defense To Plaintiff's Fourth Amendment

Claim. :

In Zweibon, decided prior to the Supreme Court’s

pronouncements in Jmbier, the District of Columbia

Circuit Court determined that in a civil action for

6la

damages, the Attorney General was entitled to assert

a good faith defense in connection with his authori-

zation of a warrantless wiretap.” We shall follow

the lead of our learned colleague, Judge VanArts-

dalen, in Burkhart v. Saxbe, 397 F.Supp. 499, 502

(E.D.Pa.1975) and hold that the Attorney General

and the two FBI agents, the defendants who remain

in this case, are permitted a good faith defense to the

plaintiff’s Fourth Amendment claim. The burden is

therefore on the defendants, as stated in Skehan, to

come forward and convince the trier of fact by a pre-

ponderance of the evidence that (1) they did not

know and reasonably need not have known that their

actions would constitute a violation of plaintiff’s con-

stitutional rights; and (2) they acted without a

malicious intention to deprive the plaintiff of his

constitutional rights or cause him to suffer other

injury.

The Defendants May Assert A Good Faith Affirma-

tive Defense To Plaintiff's Statutory Claim.

We are also presented with the question whether

there is any defense available to the defendants in

connection with the plaintiff’s claim for damages

pursuant to Title III of the Omnibus Crime Control

and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520.

Zweibon is the only case specifically discussing this

issue which has been called to our attention. In

Zweibon, after holding that the electronic surveil-

12 See also, Halperin v. Kissinger, 424 F.Supp. 838, 842,

844 n. 8, 845 (D.D.C. 1976); Hallinan v. Mitchell, 418

F.Supp. 1056, 1057 (N.D.Cal. 1976).

62a

lance authorized in 1970 by the Attorney General

without a court order was illegal, the court concluded

that Congress intended that the defendants should

have a good faith defense to the statutory claim,

although § 2520 of Title 18 specifically provides:

A good faith reliance on a court order or on the

provisions of section 2518(7) of this chapter

shall constitute a complete defense to any civil

or criminal action brought under this chapter.”

18 Title 18 U.S.C. § 2518(7) provides:

Notwithstanding any other provision of this chapter,

any investigative or law enforcement officer, specially

designated by the Attorney General or by the principal

prosecuting attorney of any State or subdivision thereof

acting pursuant to a statute of that State, who reason-

ably determines that—

(a) an emergency situation exists with respect to

conspiratorial activities threatening the national security

interest or to conspiratorial activities characteristic of

organized crime that requires a wire or oral communica-

tion to be intercepted before an ord authorizing such

interception can with due diligence be obtained, and

(b) there are grounds upon which an order could be

entered under this chapter to authorize such interception,

may intercept such wire or oral communication if an

application for an order approving the interception is

made in accordance with this section within forty-eight

hours after the interception has occurred, or begins to

occur. In the absence of an order, such interception shall

immediately terminate when the communication sought

is obtained or when the application for the order is

denied, whichever is earlier. In the event such applica-

tion for approval is denied, or in any other case where

the interception is terminated without an order having

been issued, the contents of any wire or oral communica-

tion intercepted shall be treated as having been obtained

in violation of this chapter, and an inventory shall be

served as provided for in subsection (d) of this section

on the person named in the application.

68a

In accordance with Zweibon, we hold that the de-

fendants shall have the opportunity to present the

same good faith defense to the plaintiff’s statutory

claim, as heretofore set forth from the Skehan

decision.

A Genuine Issue Of Material Fact Exists.

The defendants urge this Court to enter summary

judgment in their favor. It is their position that the

record establishes their good faith affirmative defense.

Other than the pleadings and briefs, the only doc-

uments which have been filed are defendants’ answers

to interrogatories and the deposition of John Mitchell.

The plaintiff opposes this motion, but has filed no

affidavits or depositions. As heretofore determined,

the defendants have the burden of establishing by a

preponderance of the evidence that (1) they did not

know and reasonably need not have known that con-

ducting the warrantless wiretap in this case was

unconstitutional; and (2) they acted without malici-

ous intention to (a) deprive the plaintiff of his con-

stitutional rights or (b) cause him to suffer other

injury. Skehan, supra.

In connection with the defendant’s motion for sum-

mary judgment, the law is clear that the defendants

have the burden of demonstratifg that there is no

genuine issue of material fact. Fairbanks, Morse &

Co. v. Consolidated Fisheries Co., 190 F.2d 817, 824

(3d Cir. 1951), quoted with approval in Ettinger v.

Johnson, 556 F.2d 692, 696 (3d Cir. 1977). More-

over, in considering the motion for summary judg-

64a

ment, the Court must view the evidence in a light

most favorable to the party opposing the motion.

Goodman v. Mead Johnson & Company, 534 F.2d

566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038,

97 S.Ct. 732, 50 L.Ed.2d 748 (1977). In consider-

ing the evidence contained in the deposition of John

Mitchell and the defendants’ answers to interrogato-

ries in a light most favorable to the plaintiff, it is

apparent that there are genuine issues of material

fact concerning the good faith defense of the de-

fendants. As the Third Circuit in GAF v. Amchem

Products, Inc., 570 F.2d 457 at 461 (8d Cir. 1978)

pointed out: “[a] factfinder might draw a different

inference, but on a motion for summary judgment

the inference favorable to [the party opposing the

motion] must prevail.” Furthermore, as stated in

Toebelman v. Missouri-Kansas Pipe Line Company,

130 F.2d 1016, 1018 (8d Cir. 1974), “[t]he evidence

contradicting or impeaching that of the movant...

may appear in the movant’s own evidentiary ma-

terials.” Finally, Wright & Miller, Federal Practice

& Procedure § 2712, at 278-82 (1973), quoted with

approval in Rosenthal v. Rizzo, 555 F.2d 390, 393

(8d Cir. 1977), provides: “[a] motion for summary

judgment lies only when there is no genuine issue of

material fact; summary judgment is not a substitute

for the trial of fact issues.”

With respect to the plaintiff’s motion for summary

judgment, we find that in viewing the evidence in

the deposition and answers to interrogatories in a

‘light favorable to the defendants, the plaintiff has

65a

likewise failed to carry his burden of demonstrating

that there is no genuine issue of material fact.

Furthermore, after making its determination that

the defendants in Skehan were entitled to a good

faith defense, the Court remanded the case for ‘‘find-

ings of fact with respect to the [good faith] im-

munity of each defendant.” Accordingly, an order

will be entered denying the parties’ cross-motions for

summary judgment on the ground that there are

genuine issues of material fact in connection with the

defendants’ affirmative defense of good faith.

66a

APPENDIX E

United States District Court

EK. D. Pennsylvania

Civ. A. No. 74-826

KATHERINE W. BURKHART et al.

v.

WILLIAM B. SAXBE et al.

March 21, 1978

MEMORANDUM OPINION AND ORDER

VanARTSDALEN, District Judge.

Presently before the court are plaintiffs’ motion for

partial summary judgment and defendants’ cross mo-

tion for complete summary judgment. Many factual

contentions are not disputed, but others will require

a fact finder’s determination. The procedural posture

of the case, however, permits clarification of some of

the prevalent legal issues at this stage of the litiga-

tion thereby establishing an appropriate foundation

for the ultimate disposition of the controversy. Rule

56(d), Federal Rules of Civil Procedure.

I,

A. Factual Background

This case arises indirectly from a series of crim-

inal and civil cases which were generated by the

67a

social turbulence of the late sixties and early seven-

ties. During the course of the discovery proceedings

in Philadelphia Resistance v. John Mitchell, C.A.

71-1738 (E.D.Pa.), the parties ascertained that cer-

tain of the plaintiffs’ telephone conversations were

overheard by agents of the Federal Bureau of In-

vestigation (FBI) who were at the time monitoring

certain wiretaps* placed pursuant to authorization

by the then Attorney General of the United States,

John Mitchell. No prior court authorization for the

wiretaps was obtained.

The plaintiffs, Burkhart, Chomsky, Gold, Portnoy

and Putter were overheard during the course of the

electronic surveillance of the telephone registered to

one William Davidon (the Davidon tap) who was sus-

1The criminal and civil litigation which forms the his-

torical background to this present action is documented in

the following opinions: Burkhart v. Saxbe, 397 F.Supp. 499

(E.D. Pa. 1975); Philadelphia Resistance V. Mitchell, 63

F.R.D. 125 (E.D. Pa. 1972) ; Philadelphia Resistance Vv. Mit-

chell, 58 F.R.D. 189 (E.D. Pa. 1972). See also, United States

v. Ahmad, 347 F.Supp. 912 (M.D. Pa. 1972), modified sub

nom. United States v. Berrigan, 482 F.2d 171 (3d Cir. 19738) ;

United States v. Ahmad, 335 F.Supp. 1198 (M.D. Pa. 1971) ;

United States v. Ahmad, 329 F.Supp. 292 (M.D. Pa. 1971) ;

United States v. Ahmad, 53 F.R.D. 194 (M.D. Pa. 1971).

2 There are two companion cases which also resulted from

these wiretaps and which raise identical legal issues. Forsyth

v. Kleindienst, 447 F.Supp. 192, C.A. 72 1920 (E.D. Pa.) ;

McAlister v. Kleindienst, C.A. 72 (1977 (E.D. Pa.).

3 John Mitchell was Attorney General from January 20,

1969 to March 2, 1972. William Saxbe was Attorney General

from January 4, 1974 to February 3, 1975. Clarence Kelly

has been director of the FBI since July 9, 1973.

2

68a

pected of being an active member of an organization

known as the East Coast Conspiracy to Save Lives

(ECCSL). The plaintiffs, Gold, Portnoy and Markel ‘

were overheard during the course of the electronic

surveillance of the telephone registered to the Phila-

delphia chapter of the Black Panther Party (the

Black Panther tap).

Pursuant to information compiled through the in-

vestigative processes of the FBI and furnished to

the United States Department of Justice, Attorney

General Mitchell authorized the FBI to initiate and

conduct, without a warrant or prior judicial ap-

proval, the two wiretaps at issue in this case. The

Black Panther tap was originally authorized on

June 1, 1970 and reauthorized on June 25, 1970,

August 15, 1970, September 22, 1970, November 11,

1970 and finally terminated on February 10, 1971.°

The Davidon tap was authorized on November 6,

1970, reauthorized on December 7, 1970 and termi-

nated on January 6, 1971.°

* The plaintiff, Markel, was added to this lawsuit by stipu-

lation of the parties dated, March 22, 1976. The suit was

originally filed on April 1, 1974.

5 The surveillance was actually conducted during the follow-

ing time periods: July 13, 1970 to July 14, 1970; August 25,

1970 to November 10, 1970; November 23, 1970 to January

11, 1971; January 16, 1971 to February 10, 1971. Certain of

the reauthorizations were necessitated by the fact that the

phone service was discontinued and the headquarters moved

to a new location and thereafter reinstated when the head-

quarters returned to the original site.

* The surveillance was actually conducted from November

24, 1970 to January 6, 1971.

69a

The plaintiffs were admitedly not the targets of

these investigations and a review of the logs of these

taps containing plaintiffs’ conversations suggest that

the information contained therein was not relevant

to the claimed purpose of the surveillance.

The plaintiffs claim that these warrantless wire-

taps violated their fourth amendment right to be

secure against unreasonable searches and seizures as

well as the provisions of Title III of the Omnibus

Crime Control and Safe Streets Act, 18 U.S.C.

§§ 2510-2520. The defendants respond, inter alia,

on the grounds that the wiretaps were authorized by

the Attorney General for national security purposes

and <herefore were exempt from the provisions of

Title III, and did not require prior judicial approval.

Defendants further assert they are clothed with offi-

cial immunity.

B. Legal background

A determination of whether the defendants’ con-

duct was unlawful, and, even if unlawful, whether

they are nonetheless immune from liability by reason

of a good faith, reasonable belief that such action

was not unlawful, requires an historical analysis of

the state of the law during the period in question.

In 1967, the Supreme Court decided two major

cases that established the limitations imposed by the

fourth amendment upon the use of electronic and

other technologically sophisticated listening devices by

law enforcement officers in conducting investigations.

The first case was Berger v. New York, 388 U.S. 41,

7%

70a

87 S.Ct. 1878, 18 L.Ed.2d 1040 (1967); the second,

Katz v. United States, 389 U.S. 347, 88 S.Ct. 507,

19 L.Ed.2d 576 (1967). In Berger, the petitioner

was convicted of a conspiracy to bribe state officials.

Agents of the district attorney’s office had obtained

a court authorization to plant an electronic listening

device (a “bug’’) in the offices of two suspected co-

conspirators. The authorization was based on a New

York statute, § 813-a of the New York Code of Crim-

inal Procedure. The overheard conversations were

received in evidence at trial, over objection. In hold-

ing the New York statute invalid because of its

overbreadth, the court ruled that authorization to

conduct an unconsented entry upon another’s prop-

erty in order to gather evidence through a surrepti-

tiously placed listening device, may be granted only

under the “most precise and discriminate circum-

stances.” Berger, supra, 388 U.S. at 56-57, 87 S.Ct.

at 1882. The court set forth general guidelines.

There must be a satisfactory showing of a particu-

larized need for such surveillance, and of the specific

type of information sought. Jd. The authorization

should describe with particularity the type of conver-

sations to be overheard so as to allow the officers

conducting the surveillance to ascertain when the ob-

jective has been satisfied. The authorization must be

limited in time and scope, in order to protect against

unlimited interference with the suspects’ rights of

privacy. When the objective is obtained, the surveil-

lance must be promptly terminated. Upon gompletion

of the surveillance, a return should be made to the

T1la

authorizing official detailing the carrying out of the —

authorization and specifying the conversations over-

heard or otherwise seized. A state may not authorize

an intrusive surveillance “until it has reason to be-

lieve that a specific crime has been or is being com-

mitted.” Jd. at 59, 87 S.Ct. at 1883.

Katz v. United States, supra, held that the fourth

amendment protected against warrantless nontres-

passory wiretaps as violative of a person’s right of

privacy. Katz involved a wiretap placed upon a pub-

lic telephone. The Supreme Court ruled that the

exclusionary rule precluded use of the overheard

conversations at trial. Katz thus overruled the long

standing rule of Olmstead v. United States, 277 U.S.

438, 48 S.Ct. 564, 72 L.Ed. 944 (1928), that non-

trespassory wiretapping did not violate the fourth

amendment.

Critically relevant to the present case is footnote

23 to the Katz opinion, supra 389 U.S. at 358-359,

S.Ct. at 515, which states:

Whether safeguards other than prior authori-

zation by a magistrate would satisfy the Fourth

Amendment in a situation involving national se-

curity is a question not presented by this case.

See also the discussion as to “national security” and

“executive branch” wiretaps in the concurring opin-

ions of Justices Douglas and Brennan, id. 389 U.S.

at 359, 88 S.Ct. 507, and the separate concurring

opinion of Justice White, id. at 362, 88 S.Ct. 507.

Following the Berger and Katz decisions, Congress

enacted Title III of the Omnibus Crime Control and

72a

Safe Streets Act, 18 U.S.C. §§ 2510-2520.’ The stat-

ute, in substance, prohibits the interception and use

or disclosure of wire or oral communications, § 2511,

except where it is specifically authorized for the pur-

pose of investigating certain classes of crimes, § 2516,

and then only after full compliance with the elaborate

procedures specified in § 2518. Aside from criminal

penalties, any person whose wire or oral communica-

tions are intercepted, disclosed or used in violation

of the Act, may recover actual damages in a civil

action to be computed at not less than One Hundred

Dollars ($100) a day for each day of the violation

not to exceed One Thousand Dollars ($1,000), plus

any punitive damages and reasonable costs and at-

torney’s fees, § 2520. However, the defendant in any

civil or criminal action brought pursuant to this or

any other statute prohibiting the interception of wire

or oral communications is accorded a complete defense

if he acted in good faith reliance upon a court order

or legislative authorization, § 2520.

Pervasive as this statute is in the area of electronic

surveillance, Congress nonetheless included the fol-

lowing proviso regarding the President’s constitu-

tional power to utilize these investigative tools for

the purposes of protecting the national security and

conducting the nation’s affairs, 18 U.S.C. § 2511(3):

7U.S. Code Cong. and Admin. News, pp. 2112, 2113 (90th

Cong. 1968), which sets forth the legislative history, suggests

that Title III was enacted in response to the decisions in

Berger and Katz which radically changed the law relevant

to governmental electronic eavesdropping.

73a

Nothing contained in this chapter . . . shall

limit the constitutional power of the President to

take such measures as he deems necessary to

protect the Nation against actual or potential

attack or other hostile acts of a foreign power,

to obtain foreign intelligence information

deemed essential to the security of the United

States, or to protect national security informa-

tion against foreign intelligence activities. Nor

shall anything contained in this chapter be

deemed to limit the constitutional power of the

President to take such measures as he deems

necesssry to protect the United States against

the overthrow of the Government by force or

other unlawful means, or against any other clear

and present danger to the structure or existence

of the Government. The contents of any wire or

oral communication intercepted by authority of

the President in the exercise of the foregoing

powers may be received in evidence in any trial,

hearing, or other proceeding only where such in-

terception was reasonable, and shall not be

otherwise used or disclosed except as is neces-

sary to implement that power.

In the years following the Berger and Katz deci-

sions and the enactment of Title III, the President,

through his delegate, the Attorney General, continued

the earlier prevalent practice of authorizing warrant-

less electronic surveillance where he deemed such

necessary or appropriate to secure the nation against

internal or external threats.* During this period the

8 The Supreme Court recognized in United States v. United

States District Court, 407 U.S. 297, 310-311 n. 10, 92 S.Ct.

2125, 38 L.Ed.2d 752 and the defendants have alleged and

74a

warrantless wiretaps at the center of this litigation

were authorized by the Attorney General and con-

ducted by the defendants ostensibly for ‘national

security.”

The issue expressly left unanswered in the Katz

decision, and further complicated by Congress’s en-

actment of the proviso embodied in 18 U.S.C. § 2511

(8) upon which defendant Mitchell relied in con-

tinuing the practice established by his predecessors,’

finally reached the Supreme Court in United States

v. United States District Court, 407 U.S. 297, 92

S.Ct. 2125, 82 L.Ed.2d 752 (1972) (hereinafter

Keith). The case involved a criminal prosecution in

which one of the defendants, charged with conspiracy

to destroy government property, namely, the offices of

the Central Intelligence Agency, had been the sub-

ject of electronic surveillance. The government filed

an affidavit which stated, essentially, that the wire-

tap had been conducted without prior judicial ap-

argued throughout this litigation, that successive Presidents

since 1940 have authorized the use of electronic surveillance

for national security purposes. President Roosevelt author-

ized Attorney General Jackson to conduct wiretapping in

situations involving a foreign threat to this nation and At-

torney Generals Tom Clark and Herbert Brownell advised

and urged Presidents Truman and Eisenhower, respectively,

of the necessity for electronic surveillance in internal security

matters. See United States v. United States District Court,

444 F.2d 651 (6th Cir. 1971) (Appendix), aff’d. 407 U.S.

297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972).

® See Affidavit of John N. Mitchell attached to defendants’

motion for summary judgment and depositions dated October

23, 1975 and October 14, 1976.

75a

proval, to gather information necessary to protect

the nation from certain domestic security threats.

The district court,’ reviewing the logs of the inter-

ceptions, 7m camera, determined that the wiretaps

violated the fourth amendment and ordered the gov-

ernment to fully disclose the contents of those logs to

the defendant as required by Alderman v. United

States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176

(1969). The Court of Appeals for the Sixth Cir-

cuit refused to issue a writ of mandamus and up-

held the district court’s order requiring full disclo-

sure of the overheard conversations.

The government’s position was essentially that the

wiretaps in question were authorized by the Attorney

General pursuant to the President’s constitutional

power to protect the national security from threats

by domestic organizations ind did not require prior

judicial approval. The government relied upon the

President’s constitutional duty to protect the nation,

U.S.Const., Art. II, § 1, contending that warrantless

10 United States v. Sinclair, 321 F.Supp. 1074 (E.D. Mich.

1971).

11 Alderman requires the government to disclose to a de-

fendant, charged with a criminal offense, any conversations

in which he participated or which were conducted on his

premises and which were overheard by the government dur-

ing the course of an illegal surveillance. The purpose of this

required disclosure is to afford the defendant a fair hearing

to determine whether the illegal surveillance tainted any

other evidence produced during the criminal prosecution.

12 United States v. United States District Court, 444 F.2d

651 (6th Cir. 1971).

76a

wiretaps were historically recognized by prior admin-

istrations and expressly recognized by Congress in

adopting 18 U.S.C. § 2511(8).

Confronted with the issue left open in Katz, the

Supreme Court rejected the government’s claim that

electronic surveillance for domestic national security

purposes was outside the protective umbrella of the

fourth amendment. In so doing, the Court inter-

preted the language of § 2511(3) as an expression

of Congress’s neutral position with regard to whether

the President is constitutionally endowed with the

power to eavesdrop, without prior judicial approval,

on persons who are deemed by the President to con-

stitute a threat to the nation’s security. Having de-

termined that Title III constituted neither a recogni-

tion nor limitation on whatever constitutional power

the President may enjoy to authorize and conduct

such surveillance, the remaining question was to de-

termine the appropriate boundaries, if any, of such

power.

Reciting the depth and characteristics of the fourth

amendment as construed over the course of almost

two centuries, the Court, applying a balancing test,

held that the potential danger posed to the individ-

ual’s right to be free from unwarranted and un-

reasonable searches and seizures, outweighed the

government’s need to conduct warrantless electronic

surveillances in protecting domestic security. Con-

sidering that domestic national security cases often

involve first as well as fourth amendment values,

the Court determined that prior judicial approval in

the form of a warrant issued upon a proper showing

77a

by the government does not place an undue burden

upon the government’s duty to proteéf the nation’s

security from domestic subversion. The Court also

rejected the government’s contentions that a judicial

officer would be unable to assimilate and comprehend

the numerous complex and subtle factors necessary

to determine whether a national security threat exists

and that disclosure of such confidential information

would substantially increase the danger to the na-

tional security and the lives of those individuals in-

volved in its protection. The Court expressly limited

the decision to domestic security surveillance leaving

unanswered the scope of the President’s power to

conduct electronic surveillance where the threat to

national security emanates from a foreign source.”

Keith, 407 U.S. at 308, 92 S.Ct. 2125. This question,

however, has been confronted by both the Court of

Appeals for the Third Circuit and the District of

Columbia.

In United States v. Butenko, 494 F.2d 593 (3d

Cir.) (en banc), cert. denied, 419 U.S. 881, 95 S.Ct.

147, 42 L.Ed.2d 121 (1974), the court was compelled

to decide the legality of a warrantless surveillance

18 There is no clear line of demarcation between domestic

and foreign security threats. As the court recognized,

No doubt there are cases where it will be difficult to

distinguish between “domestic” and “foreign” unlawful

activities directed against the government of the United

States where there is collaboration in varying degrees

between domestic groups or organizations and agents or

agencies of foreign powers.

Keith, 407 U.S, at 309, n. 8, 92 S.Ct. at 2133.

78a

in the context of an Alderman proceeding. The de-

fendant was prosecuted for communicating informa-

tion relating to the national defense to a foreign

government and the electronic surveillance was con-

sidered necessary to protect against a foreign threat.

The court held that prior judicial approval was un-

necessary to comport with the fourth amendment re-

quirements, where the purpose of the wiretap is solely

to protect against threats to our national security

emanating from foreign sources. Id. at 605.

The Court of Appeals for the District of Columbia

Circuit, in a civil suit for damages,” held that even

where the wiretap was installed to gather informa-

tion necessary to protect this country’s relations with

a foreign government, the tap, nonetheless, consti-

tuted surveillance of a domestic organization and,

therefore, came within the controlling doctrine of the

Keith decision requiring the government to first ob-

tain a judicial warrant before proceeding with the

surveillance. Zweibon v. Mitchell, 170 U.S. App.D.C.

1, 516 F.2d 594 (1975), cert. denied, 425 U.S. 944,

96 S.Ct. 1684, 48 L.Ed.2d 187 (1976)."

14 See note 11, supra.

15 The suit was instituted by the Jewish Defense League

(JDL) to recover damages for the alleged violations of their

civil rights as a result of the government’s wiretapping their

phones without a warrant. The defendants claimed that the

surveillance was necessary because officials of the Soviet

Union had expressed serious concern as a result of certain

public threats of violence aimed against them by members

of the JDL.

16 Zweibon, unlike Keith and Butenko, confronted the ques-

tion of warrantless national security wiretapping in the con-

text of civil litigation and was therefore compelled to consider

79a

Il.

A. National Security.

Was the electronic surveillance conducted in this

case for the purpose of investigating perceived

threats to this nation’s security? If, as the plaintiffs’

urge, these wiretaps were solely for the purpose of

gathering evidence to support a criminal prosecution

and/or for the purpose of political harassment and

intimidation, then the defendants’ conduct in au-

thorizing and conducting this surveillance, without

full compliance with the provisions of 18 U.S.C.

§ 2518 would be actionable under 18 U.S.C. § 2520 as

well as the fourth amendment. See Bivens v. Six

Unknown Named Agents of the Federal Bureau of

Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d

619 (1971). On the other hand, if the purpose of

the surveillance was to protect against a perceived

threat to national security, it becomes necessary to

reach the question of whether the defendants’ actions

were violative of either Title III or the fourth amend-

ment. Finally, even if violative of Title III or the

fourth amendment, are defendants nonetheless im-

mune from liability?

Both parties have propounded extended arguments

on the standard this court should apply in evaluating

the Attorney General’s assertion that the surveillance

was necessary for national security purposes. The

the defendants’ claim of immunity as well as the appropriate

remedy to be applied in the event liability were to be imposed.

The case is procedurally analogous to the present litigation.

80a

threshold question on a motion for summary judgment

is whether this issue presents a disputed factual ques-

tion material to the litigation. It seems clear that the

question of whether the surveillance was conducted

for national security purposes is factual and is ma-

terial to the ultimate resolution of the litigation.”

But cf. Rosenthal v. Rizzo, 555 F.2d 390 (8d Cir.)

(Aldisert, J. dissenting), cert. denied, 484 U.S. 892,

98 S.Ct. 268, 54 L.Ed.2d 178 (1977). I need not re-

iterate the proper analysis to be employed by the

court in considering a motion for summary judg-

ment. See Ettinger v. Johnson, 556 F.2d 692, 696-

697 (8d Cir. 1977). In this case there is a genuine

dispute as to the existence of a national security

17 Viewing this as a factual question raises certain problems

in the context of civil litigation. In its criminal counterpart,

validity of the government’s claim is determined by the court

either in the context of a pre-search judicial review to deter-

mine probable cause or a post search Alderman proceeding.

If it were necessary to submit this factual question to a jury,

the government’s contentions in Keith as to the complexity

of the underlying information and the risk inherent in the

increased exposure of this confidential information would

warrant careful consideration. The suggestions in Keith for

eliminating these problems ranging from in camera submis-

sion of the confidential information to the designation of a

special court capable of assimilating and comprehending the

information would, of course, be unavailable in a civil trial.

None of the cases involving civil litigation of this nature

have expressly confronted this problem. See Zweibon, 516

F.2d at 607-611; Halperin v. Kissinger, 424 F.Supp. 838

(D.D.C. 1976) ; Hallinan v. Mitchell, 418 F.Supp. 1056 (N.D.

Cal. 1976) ; Sinclair v. Kleindienst, C.A. 610-73 (D.D.C., filed

Sept. 28, 1977) (unpublished).

Sla

predicate for the authorization of these particular

wiretaps.

The deposition of John Mitchell (dated October 23,

1975), supported by the exhibits attached to defend-

ants’ answers to plaintiffs’ interrogatories, estab-

lishes that the FBI had developed information per-

taining to certain activities of the ECCSL and that

this information formed the basis for Mitchell’s con-

clusion that the nation’s security was being threat-

ened and that electronic surveillance would be help-

ful in minimizing that danger.

The information was developed during the course

of investigating the burglary of certain draft board

and FBI field offices in 1970. Through the use of an

informant, the FBI uncovered what appeared to be

a plot by suspected members of the ECCSL to kidnap

Henry Kissinger, then National Security Advisor to

the President, and simultaneously destroy the heating

systems of certain federal buildings located in Wash-

ington, D.C.%* In addition, the FBI furnished Mit-

chell with background information concerning the

activities of William Davidon and the basis for its

conclusion that he was an active member and central

figure in the ECCSL. Based on this information,

Mitchell approved the FBI’s request to place a wire-

tap on Davidon’s residence telephone.

18This plan was discussed in correspondence between

Father Philip Berrigan and Sister Elizabeth McAlister, self-

proclaimed leaders of the anti-Vietnam war movement during

this period. The letters are partially reprinted in United

States v. Berrigan, 482 F.2d at 177-179.

82a

The plaintiffs argue that the primary purpose of

this tap was to gather evidence to support a criminal

prosecution against members of the ECCSL in order

to suppress their criticism of the government’s Viet-

nam policy. They urge that because the primary pur-

pose was for a criminal investigation, the defend-

ants’ claim of national security should be rejected.

It may well be that one of the purposes and cer-

tainly one of the possible results of this investigation

was ultimately to prosecute those individuals involved

in the alleged conspiracy; nonetheless, that alone

would not alter the fact that there may have been

a bona fide threat to the national security. No doubt

one of the most effective means of halting subversive

activity aimed at the violent disruption of the gov-

ernment is to criminally prosecute those involved

in such unlawful activity. However, simply because

the preceived threat to the nation may result in the

prosecution of those from whom the threat emanates

does not require that the government’s national se-

curity claim be rejected.

In this instance, the intended victim of the kidnap

plot was the President’s senior national security ad-

visor, who was engaged at that time in high level,

extremely sensitive negotiations with North Viet-

nam, a hostile foreign government. It would be ludi-

crous to suggest that because the plot to kidnap that

official constituted a violation of federal law, the na-

tional security purpose for conducting the surveil-

liance was either nonexistent or irrelevant. See

Zweibon, 516 F.2d at 612 n. 39.

83a

The basis for authorization of the Black Panther

tap is fully set forth in the affidavit of John Mitchell

attached to the defendants’ motion for summary

judgment and the exhibits referred to therein. The

affidavit states, inter alia:

Pursuant to the above described authority, and

as indicated in Exhibits B, C, D, E, and F pre-

viously filed herein in connection with Defend-

ants’ Answers In Camera to Plaintiffs’ Inter-

rogatories te Defendants, I authorized warrant-

less electronic (telephone) surveillance on the

offices of the Black Panther Party in Philadel-

phia, Pennsylvania, which appeared to be the

headquarters of that organization for the state

of Pennsylvania. I initially approved that sur-

veillance on June 1, 1970, deeming it necessary

for the collection of intelligence information to

protect the functions and structure of the Gov-

ernment and the security of the Nation because:

(a) the Black Panther Party had repeatedly ad-

vocated the violent overthrow of the Govern-

ment of the United States and had made per-

sistent and serious threats in that regard; (b)

the Black Panther Party had affiliated groups or

chapters in 39 major cities in the United States

and an organizational mechanism for coordin-

ated activity, giving it an apparent capability

to carry out its threats on a significant scale;

(c) Black Panther Party members had had fre-

quent contacts, both abroad and in the United

States, with representatives of foreign govern-

ments having a demonstrated hostility to the

United States; and (d) because I believed that

the Black Panther Party was receiving funds for

84a

its domestic activities from foreign government

sources.

I based my belief in the need for the warrantless

electronic surveillance on the Philadelphia headquar-

ters of the Black Panther Party on information set

forth in Federal Bureau of Investigation requests

for the surveillances, which were submitted as Ex-

hibits B, C, D, E, and F in connection with Defend-

ants’ Answers In Camera to Plaintiffs’ Interroga-

tories to Defendants, on meetings with and briefings

by the Director of the Federal Bureau of Investiga-

tion, and Black Panther Party literature which had

been provided to me. This information reflected that,

for example, (1) Black Panther Party leader Eld-

ridge Cleaver had resided in or visited Cuba, Algeria,

North Korea, the Soviet Union, North Vietnam, and

the Peoples Republic of China; (2) Black Panther

Party members had met in Sweden with representa-

tives of the North Vietnamese government; and (3)

Black Panther Party members had met with repre-

sentatives of the Cuban government. This informa-

tion supported my belief that these contacts were for

the purpose of obtaining foreign funds to support

Black Panther Party revolutionary activities, includ-

ing the advocacy of the violent overthrow of existing

Federal and state government structures. The threat

of such a revolutionary overthrow was preceived

[sic] by me to be especially serious in view of (1)

the large number of Black Panther Party chapters

in this country, (2) the large number of Black Pan-

85a

ther Party members, (3) the numerous threats of

personal attack that were being directed by the Black

Panther Party against local law enforcement officers

and even against the President of the United States,

and (4) the seditious plan which had been prepared

by the Black Panther Party to overthrow the govern-

ment of the state of Illinois, a copy of which I have

appended hereto as Exhibit A.

A review of the affidavit and deposition of John

Mitchell ** in conjunction with the supporting exhibits

substantiates that probable cause existed to believe

that activities of the Black Panther Party were a

threat to the national security and that electronic

surveillance of the headquarters in order to gather

intelligence information about those activities was

warranted. Furthermore, the information supplied to

Mitchell by the FBI suggested the possibility that the

Black Panther Party was receiving support from cer-

tain foreign sources.

I note that whether this constitutes a surveillance

for foreign security rather than domestic security

purposes is a difficult question * which need not at

this time be finally resolved. If it was a “foreign

security” surveillance, Butenko, supra, holds that a

warrant was not required.” However, for the pur-

19 Deposition of John N. Mitchell, dated October 14, 1976.

20 See note 18 supra; Zweibon, 516 F.2d at 618 n. 42.

21 Tf it were determined that the surveillance was necessi-

tated by a foreign threat then under the holding in Butenko,

no warrant would have been required. On the other hand,

86a

poses of this opinion, this tap, like the Daviddon tap,

will be considered a “domestic security” surveillance

within the perimeters of the Keith decision.

Although a review of the present record, as dis-

cussed above, suggests that there was a sufficient

basis for the Attorney General to conclude that the

nation’s security was threatened, I am reluctant to

conclude, absent a fully developed record, that the

wiretaps in question were, in fact, solely for that

purpose or that the use of electronic surveillance was

the only or least intrusive means of acquiring the

information necessary to protect against this alleged

threat. I will, therefore, deny both plaintiffs’ motion

and defendants’ cross motion for summary judgment,

and require a full evidentiary hearing to determine

whether these wiretaps were, in fact, for the purpose

of protecting this nation from a bona fide threat to

its internal security or whether defendants claim is

merely a pretext for gathering information about

certain political dissidents.

The existence of a genuinely disputed, material

issue of fact is a bar to summary judgment which

might alleviate the need for any further discussion

of the present motions. However, if it is determined

if it is considered a domestic security surveillance then, like

the Daviddon tap, it becomes necessary to determine whether

prior judicial approval was required by the subsequent deci-

sion in Keith. In either event, the surveillance was not solely

for criminal or political information gathering purposes and

the plaintiffs’ claim that the failure to follow Title III’s pro-

cedures must result in summary judgment in their favor, at

this juncture, will be denied.

87a

that the fourth amendment is applicable to this case,

then the defendants’ failure to secure prior judicial

approval would be actionable even if, in fact, this

surveillance was conducted for national security pur-

poses. Therefore, a resolution of the question as to

whether or not the defendants were constitutionally

and statutorily required to seek judicial approval

prior to initiating this surveillance even assuming a

national security predicate, may alleviate the need

for testing the factual basis for defendants’ national

security claim.

B. Warrant Requirement

Assuming that the wiretaps in question were con-

ducted for the purpose of gathering information to

protect against unlawful activities considered to be a

domestic threat to the nation’s security, did the sur-

veillance, conducted without prior judicial approval,

violate either the provisions of Title III for which a

specific statutory remedy is provided and/or the plain-

tiffs’ fourth amendment rights for which they may

recover damages pursuant to the implied cause of

action established by Bivens, supra? The answer to

this question depends upon whether the defendants

were required, at the time, to secure a warrant before

initiating the surveillance.

1. Fourth Amendment

At the time these taps were installed, the scope of

the President’s constitutional power to authorize and

88a

conduct warrantless wiretapping for national security

purposes had not been delineated by the Supreme

Court. It was not until almost a year and a half

after these taps were terminated that the Supreme

Court in Keith, supra, definitively settled the conflict

between the fourth amendment and the President’s

constitutional power to protect the nation.

The defendants argue that the warrant require-

ment would derive only from a retroactive application

of the Keith decision which they urge would be im-

proper under the test for retroactivity enunciated in

Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349,

30 L.Ed.2d 296 (1971).” In Chevron, the Supreme

Court set forth the factors to be considered in deter-

mining a question of retroactivity.

First, the decision to be applied nonretroac-

tively must establish a new principal of law,

either by overruling clear past precedent on

which litigants may have relied, or by deciding

an issue of first impression whose resolution was

not clearly foreshadowed. Second, it has been

22 For a general discussion of the rules governing retro-

activity which have evolved from the numerous Supreme

Court decisions. See Justice Harlan’s dissent in Desist v.

United States, 394 U.S. 244, 256-69, 89 S.Ct. 1030, 22 L.Ed.2d

248 (1968) (dissenting opinion). Although that discussion

centers on retroactivity in the context of criminal litigation,

the Court apparently has not distinguished between civil and

criminal cases or constitutional and nonconstitutional issues

in developing this area of jurisprudence. See Chevron Oil Co.

v. Huson, 404 U.S. 97, 105-106, 92 S.Ct. 349, 30 L.Ed.2d 296

(1971) ; Linkletter v. Walker, 381 U.S. 618, 626-627, 85 S.Ct.

1731, 14 L.Ed.2d 601 (1964).

89a

stressed that “we must . . . weigh the merits

and demerits in each case by looking to the

prior history of the rule in question, its purpose

and effect, and whether retrospective operation

will further or retard its operation.” Finally,

we have weighed the inequity imposed by retro-

active application, for “[w]here a decision of

this Court could produce substantial inequitable

results if applied retroactively, there is ample

basis in our cases for avoiding the ‘injustice or

hardship’ by a holding of nonretroactivity.”

(citations omitted), zd. at 106-107, 92 S.Ct. at 355.

The defendants rely essentially upon the footnote

in the Katz decision, the proviso embodied in § 2511

(3) of Title III, both of which are quoted supra, and

the practices of predecessor administrations as estab-

lishing that prior to the decision in Keith, warrant-

less wiretapping for national security purposes was a

constitutionally permissible practice. They argue,

therefore, that Keith resolved an issue of first im-

pression which constituted an abrupt change in the

law, the retroactive application of which would result

in substantial inequitable hardship without further-

ing the purpose or effect of the newly enunciated

rule.

The defendants’ reliance upon prior Executive ac-

tion, the footnote by the Supreme Court and the

statutory proviso, as indicia of an established con-

trolling principle of constitutional dimension is mis-

placed. At best, these indicia establish only that prior

to the decision in Keith, the law was unsettled. The

e

<

90a

courts which had the occasion to consider the con-

vergence of the Executive’s power and the limitations

of the fourth amendment prior to the Supreme Court’s

ruling in Keith, reached differing conclusions.“ Fur-

28 See United States v. Clay, 480 F.2d 165 (5th Cir. 1970)

(rev'd on other grounds, 403 U.S. 698, 29 L.Ed.2d 810 (1971)

(surveillance for purpose of gathering foreign intelligence

information does not require prior judicial approval) ; United

States v. Dellinger, No. 69 Cr. 180 (N.D. Ill., Feb. 20, 1970)

(warrant not required prior to surveillance for “national

security” purposes) ; United States v. O’Neal, Cr. No. KC-CR-

1204 (D. Kan. Sept. 1, 1970) (warrant not required prior to

surveillance for “national security” purposes) ; United States

v. Butenko, 318 F.Supp. 66 (D. N.J. 1970), aff’d 494 F.2d

593 (3d Cir.) (en banc), cert. denied, 419 U.S. 881, 95 S.Ct.

147, 42 L.Ed.2d 121 (1974) (surveillance for purpose of

gathering foreign intelligence information does not require

prior judicial approval) ; United States v. Brown, 317 F.Supp.

531 (E.D. La. 1971) (warrant not required for foreign se-

curity surveillance) ; United States v. Smith, 321 F.Supp. 424

(C.D. Calif. 1971) (warrant required prior to conducting

surveillance of domestic organization threatening national

security) ; United States v. Sinclair, 321 F.Supp. 1074 (E.D.

Mich.), aff’d sub nom. United States v. United States District

Court, 444 F.2d 651 (6th Cir. 1971), aff’d 407 U.S. 297, 92

S.Ct. 2125, 32 L.Ed.2d 752 (1972) (judicial approval re-

quired prior to conducting electronic surveillance for domestic

threat to national security) ; United States v. Hilliard, Cr.

No. 69-181 (N.D. Calif. May 4, 1971) (warrant required

prior to surveillance for domestic security purposes) ; United

States v. Donghi, Cr. No. 1970-81 (W.D.N.Y. May 14, 1971)

(warrant required prior to surveillance for domestic security

purposes) ; United States v. Hershkovitz, 71 Cr. 399 E.L.P.

(S.D. N.Y. Sept. 14, 1971) (noted distinction between war-

rant requirement for surveillance of domestic or foreign

threats to national security) ; United States v. Hoffman, 334

F.Supp. 504 (D.D.C. 1971) (warrantless surveillance of do-

mestic security threat illegal). The cases generally distin-

guished between threats emanating from domestic sources

9la

thermore, despite continued executive prodding, Con-

gress consistently refused to statutorily authorize

such conduct and with the passage of the comprehen-

sive statutory scheme governing electronic surveil-

lance embodied within Title II

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