Briggs v. Goodwin

• Decision Date: 01 December 1977
• Docket Number: No. 75-1642,75-1642
• Citation: 186 U.S. App. D.C. 179,569 F.2d 10
• Parties: John BRIGGS et al. v. Guy GOODWIN, Individually and as Attorney for the U. S. Department of Justice, Appellant, William H. Stafford, Individually and as U. S. Attorney for the Northern District of Florida, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 10

569 F.2d 10

186 U.S.App.D.C. 179

John BRIGGS et al. v. Guy GOODWIN, Individually and as Attorney for the U. S.

Department of Justice, Appellant,

William H. Stafford, Individually and as U. S. Attorney for

the Northern District of Florida, et al.

No. 75-1642.

United States Court of Appeals, District of Columbia Circuit.

Argued April 13, 1976.

Decided Sept. 21, 1977.

Rehearing Denied Dec. 1, 1977.

R. John Seibert, Atty., Dept. of Justice, Washington, D. C., with whom Robert L. Keuch and Benjamin C. Flannagan, Attys., Dept. of Justice, Washington, D. C., were on the brief, for appellant. George W. Calhoun, Atty., Dept. of Justice, Washington, D. C., also entered an appearance for appellant.

Nancy Stearns, New York City, with whom Doris Peterson, Morton Stavis and Philip J. Hirschkop, New York City, were on the brief, for appellees.

Before McGOWAN, ROBINSON and WILKEY, Circuit Judges.

Opinion for the court filed by McGOWAN, Circuit Judge.

Dissenting opinion filed by WILKEY, Circuit Judge.

McGOWAN, Circuit Judge:

This case raises a difficult question concerning the precise scope of the absolute prosecutorial immunity afforded by the Supreme Court in Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). Plaintiffs-appellees brought in the District Court a civil action in tort grounded upon the Constitution, alleging injury by reason of defendant-appellant's assertedly false testimony in a hearing held in connection with a grand jury investigation of appellees' activities as members of an antiwar organization. Appellant moved to dismiss on the ground that he enjoyed absolute immunity from any damage action based upon his conduct while acting in his official capacity as a special federal prosecutor. The District Court denied this motion, and we affirm.

I

Both the facts alleged in appellees' complaint and the procedural posture of this appeal are important to our decision of it. We take appellees' allegations to be true, as we are bound to do upon review of the District Court's pretrial disposition of a motion to dismiss.

On July 7, 1972, appellant Goodwin, an attorney with the Internal Security Division of the United States Department of Justice, was appointed to serve as a Special Attorney for the investigation and prosecution of certain federal crimes which had allegedly occurred in the Northern District of Florida. Goodwin's letter of appointment was vague in its delineation of Goodwin's duties thereunder. It stated that the Department of Justice was "informed that various persons (had) violated . . . the (federal) anti-riot laws, Title XI of the Organized Crime Control Act of 1970 (dealing with the manufacture, sale, and transportation of explosives), (and the) conspiracy . . . and other Federal criminal statutes." Goodwin was instructed "to assist in the trial of the case or cases growing out of the transactions . . . mentioned in which the Government is interested."

On the day of Goodwin's appointment, subpoenas were served upon more than twenty members of a group known as the Vietnam Veterans Against the War/Winter Soldier Organization (VVAW/WSO). Some of the persons subpoenaed were in Miami, preparing for an antiwar march scheduled to coincide with the 1972 Democratic National Convention, which met from July 10 to July 13, 1972. Others were located in Texas, Arkansas, Louisiana, and Washington, D. C. All individuals subpoenaed were ordered to appear before a federal grand jury in Tallahassee, Florida, three days after service of the subpoenas, on the morning of July 10, 1972. Among those persons so subpoenaed were nine of the ten appellees in this case. (Appellee Briggs was not subpoenaed until a month later.)

Considerable confusion attended the commencement of the grand jury proceeding. Though all were members of the same organization, many of those subpoenaed had not known each other previously. Attorneys hastily retained to represent appellees had little time to consult with their clients before the grand jury began its inquiries. Recurring rumors of police and FBI infiltration of the VVAW/WSO prompted concern that one or more informants might be present among those who sought legal advice prior to their grand jury appearances. This prompted counsel to file a motion with the District Court in Tallahassee to direct Goodwin and his associates to disclose any agents or informers among those subpoenaed. The District Court's initial response was to ask counsel for a list of the witnesses in question and their counsel. This was done in the afternoon of July 12 by an oral submission on the record in open court of a list of potential grand jury witnesses (including one Emerson Poe) and their respective attorneys. The following morning the motion was taken up in open court. As movants' counsel was stating his belief that Goodwin should file an affidavit supplying the information requested by the motion, he was interrupted by the court's peremptory direction to Goodwin to take the witness stand and be sworn. The transcript shows that the court then asked Goodwin one question:

THE COURT: Mr. Goodwin, are any of witnesses represented by counsel agents or informants of the United States of America?

THE WITNESS: No, Your Honor.

THE COURT: You can step down.

(Witness excused.)

To counsel's immediately succeeding question, "Your Honor, may we be permitted to question Mr. Goodwin on this?," the court denied such permission.

None of the subpoenaed VVAW members actually testified during the four-day grand jury proceeding. Indeed, two appellees (Beverly and Jennings), along with two other VVAW members not parties to this litigation were imprisoned for contempt, when they persisted in their refusal to testify after grants of use immunity. ¹ An indictment was returned on the evening of July 13, 1972 charging six appellees (not including Beverly and Jennings) with a variety of crimes centering around an alleged conspiracy to unlawfully disrupt the 1972 Republican National Convention. ²

The Government's investigation of VVAW activity continued, and on August 7, 1972, appellee Briggs was subpoenaed to appear before the Tallahassee grand jury. Slightly more than two months later, on October 18, 1972, a superseding indictment was filed, adding appellee Briggs as a co-conspirator, and appellee Michelson as an aider and abettor of the conspiracy. Trial of the eight appellees covered by this new indictment commenced on July 31, 1973. On August 17, 1973, appellees received, pursuant to the Jencks Act, 18 U.S.C. § 3500 (1970), a series of written materials which revealed that Emerson Poe had been functioning as a paid FBI informant since January, 1972; and Poe testified, over objection, as a prosecution witness at appellees' criminal trial. Appellees allege that, prior to the July, 1972 grand jury proceeding, Poe had on several occasions relayed to federal investigators the substance of his conversations with appellee Camil, and that Poe's reporting did not cease with the return of indictments in 1972; rather, it served as an ongoing source of information concerning appellees' criminal defense strategy. Despite this disadvantage, appellees were acquitted of all criminal charges on August 31, 1973.

The complaint in the civil action was filed in the District Court for the District of Columbia on May 28, 1974. It alleged, inter alia, injury arising from appellant's representation to the Florida court that no informants were among those individuals ordered to appear before the grand jury. ³ Relying upon Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), appellees sought declaratory relief, damages, and the appointment of a special prosecutor to explore the alleged official wrongdoing. On July 22, 1974, appellant moved to dismiss on the ground that, as stated in his brief, "as a Special Attorney of the United States Department of Justice, he (is), pursuant to the doctrine of quasi-judicial immunity, absolutely immune from any damage action based upon alleged misconduct while acting in such a capacity." This motion was denied on November 20, 1974. 384 F.Supp. 1228.

On December 13, 1974, appellant filed a fresh motion to dismiss, urging that "as a witness in a Federal court he is absolutely immune from any damage action or civil suit based upon his alleged false testimony in such judicial proceeding." Alternatively, appellant asked the District Court to certify "the issue of immunity" for interlocutory appeal in accordance with the provisions of 28 U.S.C. § 1292(b) (1970). In an order dated March 4, 1975, the District Court denied appellant's motion to dismiss on the ground of witness immunity, and also expressly refused (what it interpreted as) appellant's request to certify the issue of witness immunity for interlocutory appeal under § 1292(b). However, the District Court did agree to certify the issue of quasi-judicial (or prosecutorial) immunity for such appeal, and included in its March 4 order a declaration that the "Order of November 20, 1974 . . . be and hereby is certified for interlocutory appeal . . . pursuant to 28 U.S.C. § 1292(b)." On May 27, 1975, a motions panel of this court granted appellant leave to appeal pursuant to § 1292(b). The resultant interlocutory challenge to the District Court's failure to dismiss the complaint is the matter now confronting us. ⁴

II

In Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L.Ed. 646 (1872), the Supreme Court declared that

it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own conviction, without apprehension of personal consequences to himself.

At 347 (emphasis added). Subsequent decisions have consistently adhered, either explicitly or implicitly, to the proposition that official immunity, whether absolute or qualified, extends only so far as the affected...