551 F.Supp. 1247 (E.D.Pa. 1982), Civ. A. 72-1920, Forsyth v. Kleindienst

Docket Nº:Civ. A. 72-1920
Citation:551 F.Supp. 1247
Party Name:Forsyth v. Kleindienst
Case Date:November 12, 1982
Court:United States District Courts, 3th Circuit, Eastern District of Pennsylvania

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551 F.Supp. 1247 (E.D.Pa. 1982)



Richard G. KLEINDIENST, et al.

Civ. A. No. 72-1920.

United States District Court, E.D. Pennsylvania.

Nov. 12, 1982

On Motion to Certify for Immediate Interlocutory Appeal Dec. 3, 1982.

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David Rudovsky, Philadelphia, Pa., for plaintiff.

Gordon W. Daiger, U.S. Dept. of Justice, Washington, D.C., for defendants.



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) ,

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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, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), and Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (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 government has also urged this Court to consider whether former Attorney General Mitchell, as the ranking Justice Department official empowered, within the executive branch, to approve warrantless national security wiretaps, enjoyed quasi-judicial absolute immunity similar to the judicial absolute immunity of a magistrate or judge approving such wiretaps. The

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government reasons that defendant Mitchell's role in approving the wiretaps, pursuant to the orders of President Lyndon Johnson, paralleled that of a magistrate (Government pre-hearing brief at 12). However, a close reading of the Third Circuit's opinion in this case indicates that the Third Circuit was well aware that Butz v. Economou contains language which may be read as creating an absolute immunity for non-judicial branch officials acting in an adjudicatory role. 438 U.S. at 512-15, 98 S.Ct. at 2913-15, 599 F.2d at 1210. However, the Circuit Court did not find the instant case to fall within this narrow subset of immunity cases. Rather, the appellate decision focused on the applicable test for determining whether defendant Mitchell was acting within a prosecutorial role and thus entitled to absolute immunity. 599 F.2d at 1211-17.

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...

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