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November 12, 1982


The opinion of the court was delivered by: BRODERICK


 I. Facts and Procedural History of Case

 Plaintiff Keith Forsyth ("Forsyth") initiated this action in 1972, seeking to recover damages in connection with the federal government's electronic interception of telephone conversations that he had with Professor William Davidon ("Davidon"), the subject of a government wiretap. Plaintiff contends that these interceptions violated his rights under 18 U.S.C. § 2510, et seq. (The Omnibus Crime Control Act) and the First, Fourth and Ninth Amendments of the Constitution. Though plaintiff's complaint originally named former Attorney General Richard Kleindienst and former FBI Director L. Patrick Gray, he subsequently admitted that the claims against them should be dismissed. On February 14, 1978, the Court entered an order dismissing plaintiff's complaint as to these two defendants. The defendants remaining in this action are former United States Attorney General John Mitchell, who authorized the wiretap at issue, and two employees of the Federal Bureau of Investigation ("FBI"), who actually intercepted the conversations involving plaintiff.

 It is undisputed that the wiretap placed upon Davidon's telephone was warrantless and without court approval. The electronic surveillance was in effect during December, 1970 and January, 1971. Conversations involving Forsyth were intercepted on three occasions in early December, 1970 and were recorded by the government. None of these interceptions involved conversations between the plaintiff and his attorney. One conversation between Forsyth and Davidon was disclosed in camera to a judge presiding over a criminal proceeding in which Davidon's activities were considered. Other than this disclosure, the government made no use or disclosure of any of Forsyth's intercepted conversations with Davidon. Plaintiff and the defendants have stipulated, regarding plaintiff's private right of action pursuant to the Fourth Amendment, that Forsyth has suffered no pecuniary losses, loss of financial advantages, impairment of reputation, pain and suffering, and has neither been inhibited nor chilled in the exercise of his First Amendment rights as a consequence of being overheard in the course of the warrantless electronic surveillance at issue in this case. (Docket No. 36, filed March 2, 1976).

 After discovery was completed, both parties moved for summary judgment. In its Memorandum of February 14, 1978, the Court denied both motions, 447 F. Supp. 192 (E.D. Pa. 1978). The United States Court of Appeals for the Third Circuit subsequently remanded this case and that of Burkhart v. Saxbe, 448 F. Supp. 588 (E.D. Pa. 1978), "to conduct any additional inquiry that may be necessary and to apply the test [for determining the scope of official immunity to be accorded Attorney General Mitchell] enunciated here." Forsyth v. Kleindienst, 599 F.2d 1203, 1217 (3d Cir. 1979), cert. denied, 453 U.S. 913, 101 S. Ct. 3147, 69 L. Ed. 2d 997 (1981), reh. denied, 453 U.S. 928, 102 S. Ct. 892, 69 L. Ed. 2d 1025 (1981). The Third Circuit decision otherwise affirmed the factual findings and legal conclusions of this Court. This Court was instructed to determine, however, whether defendant Mitchell should be accorded an absolute immunity from suit in light of the Third Circuit's Forsyth test and the seminal Supreme Court cases of Butz v. Economou, 438 U.S. 478, 57 L. Ed. 2d 895, 98 S. Ct. 2894 (1978), and Imbler v. Pachtman, 424 U.S. 409, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976), or whether he is entitled to only a qualified good faith immunity. Thus, this case was remanded for determination of a narrow question. A hearing was held in this matter on January 8, 1982. At the hearing, the government submitted an additional affidavit and exhibits and asked this Court to reconsider its earlier denial of the government's summary judgment motion as well as its other legal conclusions adverse to the government. For the reasons hereinafter set forth, the Court determines that former Attorney General Mitchell is not entitled to absolute immunity under the circumstances of this case. The Court will grant plaintiff's motion as to liability only as to John Mitchell.

 II. The Test for Assessing the Scope of Defendant Mitchell's Immunity

 In Forsyth v. Kleindienst, 599 F.2d 1203 (3d Cir.1979), the Third Circuit presented an exhaustive discussion of the state of the law regarding the immunity of federal government officials sued by plaintiffs alleging that the officials had deprived them of a federal constitutional right, 599 F.2d at 1209-17. The Third Circuit stated that under Imbler v. Pachtman, supra, a government attorney possesses absolute immunity from suit for actions taken while he was acting in a prosecutorial capacity but that he possesses only a qualified good faith immunity for his actions as an administrator, investigator, or supervisor of department activities other than specific litigation. The Court recognized, however, that the distinction between these roles may not always be clear. Said the Court:

This case, dealing essentially with investigative activity, is within that gray area. We recognize that the decision of the Attorney General or a prosecuting attorney 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 attorney absolute immunity over his decision to initiate a prosecution while subjecting him to liability for securing the information necessary to make that decision would only foster uninformed decision-making and the potential for needless actions. We believe 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 exception could be distorted to include all of a prosecutors' investigative activities. We hold only that to the extent that the securing of information is necessary 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 surveillance is protected by the shield of absolute immunity when it is made in the context of a quasi-judicial function [prosecution]; however, when the decision arises in the context of a purely investigative or administrative function, the decision will not be protected by absolute immunity.

 599 F.2d at 1215 (emphasis added and citation omitted).

 The instant case was remanded to this Court to determine whether defendant Mitchell met the "prosecutorial" quasi-judicial immunity of Imbler and Butz, not whether Mitchell might receive the "adjudicatory" quasi-judicial immunity mentioned in Butz and accorded to Administrative Law Judges. If this Court were to determine this possible basis for immunity, it would conclude that defendant Mitchell was not engaged in a sufficiently adjudicatory role when approving the wiretap at issue. His decisions approving this and other electronic surveillance were merely part of the executive branch's internal procedure for instituting such surveillance. It appears to this Court that this decision-making process was placed in the hands of the Attorney General who, as the Attorney General, has the ultimate responsibility for the operations of the FBI. At the time when the Davidon wiretap was commenced, the District of Columbia was amply supplied with magistrates and judges from whom the Justice Department could have easily sought a warrant for the wiretap, requesting that the record of the proceeding be sealed in the interests of national security. Instead, the executive branch operated its own system of commencing wiretaps apart from the judiciary, with the Attorney General substituting his approval in lieu of a warrant. It would create a dangerous precedent for this Court to approve this procedure in which the Justice Department acted as its own in-house "judicial" oversight. Defendant Mitchell may only receive absolute immunity if he meets the "prosecutorial role" test enunciated by the Third Circuit.

 Imbler v. Pachtman held "only that in initiating a prosecution and in presenting the state's case, the prosecutor is immune from a civil suit for damages under [42 U.S.C.] § 1983." 424 U.S. at 431. As the Third Circuit observed, the Supreme Court in Imbler "utilized a functional approach. It suggested that even a prosecuting attorney would not be absolutely immune from suit for actions which are not closely connected with the judicial process." 599 F.2d at 1213.

 III. Defendant Mitchell's Actions in this Case

 In reviewing the record in this case, this Court must determine whether defendant Mitchell's authorization of the wiretap affecting the plaintiff was "closely connected with the judicial process" and whether it was "necessary to initiate a criminal prosecution." Based on the record in this case, the Court determines that defendant Mitchell's conduct was not so closely connected or essential to a criminal prosecution to bring him within the "quasi-judicial immunity" discussed in Imbler and Butz.

 The Court has previously reached this determination in making its first decision as to the cross-motions for summary judgment, (see 447 F. Supp. 192, 201) in which Memorandum the Court found that defendant Mitchell was not entitled to absolute immunity because he "was functioning as an administrator rather than as an officer of the court." (447 F. Supp. at 201). Implicit in the Court's ruling was a determination that Mitchell had not been acting to gather information necessary for a criminal prosecution but that he was acting in an investigative capacity so that his activities fell outside the scope of the absolute immunity discussed in Imbler v. Pachtman, supra, a decision that preceded this Court's Memorandum of February 14, 1978. In again reviewing the uncontested facts in deciding the cross-motions for summary judgment pursuant to the Third Circuit's remand, the Court once again determines that defendant Mitchell was not engaging in conduct subject to the prosecutorial absolute immunity of Imbler v. Pachtman.

 In his deposition, defendant Mitchell repeatedly stated that the Davidon wiretap had an investigatory purpose, i.e., to obtain more details about the suspected plot to destroy utility tunnels in Washington, D.C. and to kidnap National Security Council Chairman Henry Kissinger so that the Justice Department, acting through the FBI, might thwart these schemes. The purpose of the wiretap was prevention -- not prosecution. Therefore, the information gathering that took place was not "necessary to a prosecutor's decision to initiate a criminal prosecution", 599 F.2d at 1215. It appears, based on this record, that Attorney General Mitchell was not in any way weighing factors in order to determine whether and whom to prosecute. He was already quite aware of the existence of the plots and some of the individuals involved. The Justice Department sought more specific information about the operationalization of the plots so that it might prevent their success. The Justice Department already had sufficient information to seek an indictment or information against Davidon, Father Phillip Berrigan and Sister Elizabeth McAlister, the three persons who had discussed the possibility of kidnapping Henry Kissinger (see 447 F. Supp. at 195). Thus, the Davidon wiretap was not directed at obtaining evidence in order to make a criminal case against these three or any of their associates. See depositions of John N. Mitchell: October 23, 1975 at 16-20, 28-32, 48-60 (in Forsyth v. Kleindienst) and October 14, 1976 (in Burkhart v. Saxbe) at 6.

 Furthermore, Mr. Mitchell himself stated that as Attorney General he was not advised of the initiation of criminal proceedings by the Justice Department and that he did not know if a criminal investigation was pending regarding Davidon or other members involved in the utility tunnel and Kissinger plots. In his deposition of October 23, 1975 at page 30, Mr. Mitchell was asked:

Q. When you received this request [from FBI Director J. Edgar Hoover for authorization for the Davidon wiretap], did it occur to you that the information that could be obtained or would be obtained as a result of this tap could be used in a criminal proceeding prosecution?
A. It was not the point of my focus in authorizing the electronic surveillance.
Q. What was the point of your focus?
A. The gathering of information necessary to protect the national security and to get information on foreign intelligence.

 At no time in the course of this litigation has defendant Mitchell repudiated the aforementioned statements or any other portion of his deposition. After the Third Circuit's remand, this Court set a hearing for the purpose of determining whether the Attorney General authorized the wiretaps in this case for the purpose of obtaining information to initiate a criminal prosecution, or whether defendant Mitchell acted as an investigator and/or administrator (Order of December 1, 1981). Prior to the entry of this Order, several conferences were held in chambers. At these conferences and at the outset of the hearing of January 8, 1982, the Court informed both parties that they could present any evidence they wished concerning Attorney General Mitchell's purpose in approving the wiretaps. Prior to the hearing of January 8, 1982, the government filed a memorandum of law, an affidavit, and several accompanying exhibits. At no time, however, did the government present any evidence, documentary, testimonial, or otherwise, suggesting that defendant Mitchell meant anything other than what was said in his deposition. The Attorney General stated that he approved the wiretaps as part of a national security investigation. The Court has taken defendant Mitchell at his word.

 Thus, regardless of whether the Davidon wiretap was motivated by a legitimate national security concern or a good faith belief that there existed a legitimate national security concern, as the defendants contend, or was an invasion of the privacy of political dissidents conducted under the guise of national security, as the plaintiff contends, there is no doubt that defendant Mitchell has consistently taken the position that the Davidon tap "arose in the context of a purely investigative or administrative function" on his part. Applying the test set forth by the Third Circuit, this Court concludes that defendant Mitchell does not have absolute immunity from suit in this matter but is limited to a good faith immunity.

 IV. Recent Supreme Court Decisions and the Clarity of Plaintiff's Constitutional Protection Against Warrantless Electronic Surveillance

 Defendant contends that the recent Supreme Court decisions of Nixon v. Fitzgerald, 457 U.S. 731, 102 S. Ct. 2690, 73 L. Ed. 2d 349 (1982) and Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982) require a different result. However, the Fitzgerald cases, which concerned the scope of the President's absolute immunity and the scope of a government officer's qualified immunity, do not afford immunity to defendant Mitchell in this case. Nixon v. Fitzgerald held that a former President of the United States is entitled to absolute immunity from liability for damages predicated upon his official acts (102 S. Ct. at 2701). In reaching this holding, the Court continued to apply a functional test for determining the scope of immunity of government officials as developed in cases such as Butz v. Economou, 438 U.S. 478, 57 L. Ed. 2d 895, 98 S. Ct. 2894 (1978) and Imbler v. Pachtman, 424 U.S. 409, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976). Nixon v. Fitzgerald did not repudiate these cases but took pains to delineate how it was in fact consistent with the court's previous holdings regarding official immunity. See 102 S. Ct. at 2699-2702. The court determined that the President's "unique status under the Constitution distinguishes him from other executive officials." (102 S. Ct. at 2702). The court expressly distinguished the President's situation from that of cabinet officers such as the attorney general. See 102 S. Ct. at 2702. Thus, the recent Nixon v. Fitzgerald decision does not bolster the defendant's argument for absolute immunity, an argument which this Court has rejected (slip op. at pp. 8-11, supra).

 Harlow v. Fitzgerald did, however, enunciate a test for the qualified immunity of government officials that may be viewed as more favorable to the defendant. See 102 S. Ct. at 2738. However, defendant Mitchell does not meet the test for qualified immunity ...

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