# Petition — Mitchell v. Forsyth > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2187%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 453 U.S. 913 ## Text —_ 2 OR eee ~ i » f : ° e9- 1120 ; AN 18 j9R9 0. Hier , CLER So rT 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 Opinions below a... eenewvennsncesenasseewes= RT aati cee cciemeetnctnctainboengiontninle Questions presented ................-..-.---sce-------ce-esecee= Constitutional and statutory provisions in- I oi Gia cesncisascceenie eae TALE LORE A DONT Se TUR oR Reasons for granting the petition .................... EL ET RT TT orien rer I, BR sins ntennnmenennae PA icin hse em ngeoion PI ES wis ecsicciierccesniienenintagiiene lial PE OD hisisiitenssinvsigahscncvtsintemaconaeaniaeal MI oii nsec esintiarcnennononaesianae 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 Dece [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2187%3A1. Public record. Not legal advice.