588 F.2d 319 (2nd Cir. 1978), 935, Birnbaum v. United States

Docket Nº:935, 976, 977, Dockets 77-6175, 77-6181, 77-6183.
Citation:588 F.2d 319
Party Name:201 U.S.P.Q. 623 Norman BIRNBAUM, B. Leonard Avery and Mary Rule MacMillen, Plaintiffs- Appellees, v. UNITED STATES of America, Defendant-Appellant.
Case Date:November 09, 1978
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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588 F.2d 319 (2nd Cir. 1978)

201 U.S.P.Q. 623

Norman BIRNBAUM, B. Leonard Avery and Mary Rule MacMillen,

Plaintiffs- Appellees,


UNITED STATES of America, Defendant-Appellant.

Nos. 935, 976, 977, Dockets 77-6175, 77-6181, 77-6183.

United States Court of Appeals, Second Circuit

November 9, 1978

Argued May 3, 1978.

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John M. Rogers, Atty., Dept. of Justice, Washington, D. C. (Barbara Allen Babcock, Asst. Atty. Gen., Leonard Schaitman, Atty., Dept. of Justice, Washington, D. C., and David G. Trager, U. S. Atty., E. D. N. Y., Brooklyn, N. Y., of counsel), for defendant-appellant.

Michael Krinsky, New York City (Herbert Jordan, Bill of Rights Foundation, Rabinowitz, Boudin & Standard, and K. Randlett Walster, New York City, on the brief), for plaintiff-appellee Birnbaum.

Melvin L. Wulf, New York City (Clark, Wulf & Levine, New York City, Burt Neuborne,

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NYU School of Law, New York City, Richard W. Zacks, Providence, R. I., and Joel M. Gora, American Civil Liberties Union Foundation, New York City, of counsel), for plaintiffs-appellees Avery and MacMillen.

Before MOORE, OAKES and GURFEIN, Circuit Judges.

GURFEIN, Circuit Judge:

For twenty years (from approximately 1953 to 1973), the Central Intelligence Agency ("CIA") covertly opened first class mail which American citizens sent to, or received from, the Soviet Union. Letters destined for the U.S.S.R., or originating there, were selected by agents in New York, photocopied, and then returned to postal authorities for ultimate delivery. Selection criteria were employed, but some letters were chosen at random. During the existence of the project over 215,000 pieces of mail were inspected and copied in this fashion. 1

In 1958, the Federal Bureau of Investigation ("FBI") was informed of the existence of the CIA's East Coast mail project, known by the cryptonyms HTLINGUAL and SRPOINTER, and the CIA offered to share the project's "take" with the FBI. FBI Director Hoover gave his approval, and the FBI provided the CIA with the names and categories of persons or organizations in which it had an "internal security" interest. Such lists were used as additional guides by the CIA in making selections from the United States-Soviet mail that passed through the CIA check point. D.J. Report at 13. The CIA released photocopies of some letters to the FBI in aid of that agency's mission with respect to suspected domestic subversion.

Norman Birnbaum, Mary Rule MacMillen and B. Leonard Avery, whose mail was opened and copied, separately sued the United States for compensatory damages, invoking the exclusive jurisdiction conferred on the district courts (28 U.S.C. § 1346(b)) under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 ("the Act"). 2 In the cases of Birnbaum and MacMillen, the opened letters had been intercepted en route to the U.S.S.R., in 1970 and 1973, respectively. Avery's letter had been opened in 1968, while arriving in the United States from the Soviet Union. 3

The three cases were consolidated in the District Court for the Eastern District of New York (Hon. Jack B. Weinstein, Judge). Although an advisory jury was empanelled, the District Judge, as required, tried the case himself, 28 U.S.C. § 2402, and found that the United States was liable to each plaintiff individually for damages in the amount of $1,000. The United States was also required to send a letter of apology to each plaintiff. 4 436 F.Supp. 967, 989-90 (1977). From this judgment the United States appeals.


Before the Act was passed in 1946, the United States, as sovereign, possessed complete immunity against suit for torts committed

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by its agents and employees. Feres v. United States, 340 U.S. 135, 139-40, 71 S.Ct. 153, 95 L.Ed. 152 (1950); See Tempel v. United States, 248 U.S. 121, 131, 39 S.Ct. 56, 63 L.Ed. 162 (1918); Hill v. United States, 149 U.S. 593, 598, 13 S.Ct. 1011, 37 L.Ed. 862 (1893). The only redress was by private bill in the Congress. The purpose of the Act was generally to waive the sovereign immunity of the United States for torts of its employees committed within the scope of their employment, if such torts committed in the employ of a private person would have given rise to liability under state law, 28 U.S.C. § 1346(b). Thus, recovery under the Act could only be predicated upon such a state tort cause of action. 5 Moreover, in groping for a formula that would eliminate the nuisance of private bills and yet interfere only minimally with government functions, Congress created statutory exceptions to the general waiver of immunity in the Act. Three of these are arguably applicable here: (1) 28 U.S.C. § 2680(h), excluding certain specified torts from the ambit of the Act; (2) § 2680(b), exempting from the Act any liability for loss or miscarriage of mail; (3) § 2680(a), creating an exemption from liability for acts done pursuant to a discretionary function. If the claims in suit fall within one of the statutory exceptions, the district court lacks subject matter jurisdiction. See Myers & Myers, Inc. v. U. S. Postal Service, 527 F.2d 1252, 1255 (2d Cir. 1975); Gibson v. United States, 457 F.2d 1391, 1392 & n. 1 (3d Cir. 1972); Morris v. United States, 521 F.2d 872, 874 (9th Cir. 1975).


The jurisdictional grant of the Act, 28 U.S.C. § 1346(b), gives the District Court

exclusive jurisdiction of civil actions on claims against the United States, for money damages . . . for injury or loss of property, or Personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. (Emphasis added).

The District Court, therefore, had jurisdiction of the subject matter only (1) if there was a "personal injury" as defined by state law, 6 and (2) if the acts causing the "personal injury" would give rise to liability under state law if executed by an employee of a private person.


Personal Injury

Although upon the consolidated trial it appeared that no plaintiff was touched physically or harmed financially, and that the sole damage claim was mental suffering, New York recognizes as "personal injury" mental suffering that results from a known category of tort. Battalla v. State, 10 N.Y.2d 237, 219 N.Y.S.2d 34, 176 N.E.2d 729 (1961); Ferrara v. Galluchio, 5 N.Y.2d 16, 176 N.Y.S.2d 996, 152 N.E.2d 249 (1958); Halio v. Lurie, 15 A.D.2d 62, 222 N.Y.S.2d 759 (2d Dept. 1961); See also N.Y. Gen. Con. Law § 37-a (McKinney). 7

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Basis for Liability Under State Tort Law

The District Court held in a scholarly opinion that an action in tort would lie in New York alternatively for the following: (1) invasion of the common law right to privacy; (2) injury to common law copyright and property interest in private papers; and (3) direct violation of constitutional right. We review these causes of action under the law of New York Seriatim.

Common law right to privacy

The manifold nature of what is loosely termed "the right to privacy" is well established. Both Dean W. Prosser, The Law of Torts, § 117 (4th ed. 1971), and the advisers of 3 Restatement (Second) of Torts § 652A (1977), agree that the right to privacy comprehends four Distinct rights, "which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff 'to be let alone.' " Prosser at 804.

The four privacy rights listed in the Restatement are:

  1. unreasonable intrusion upon the seclusion of another .... or

  2. appropriation of the other's name or likeness .... or

  3. unreasonable publicity given to the other's private life . . . or

  4. publicity that unreasonably places the other in a false light before the public. . . .

§ 652A (1977).

These cases all concern infringements of a single right the right to seclusion free from unreasonable intrusion by another. The activities of the Government in opening and reproducing plaintiffs' mail constituted such an intrusion. As described by the Restatement, violation of the right against intrusion may occur through "opening (one's) private and personal mail . . .." 3 Restatement, Supra, § 652B, comment b, at 378-79; Cf. LaCrone v. Ohio Bell Tel. Co., 114 Ohio App. 299, 182 N.E.2d 15 (1961) (intrusion by eavesdropping).

Appellant United States contends, however, that New York does not recognize a common law right to privacy. Appellant places its reliance principally on the famous 1902 case of Roberson v. Rochester Folding Box Company, 171 N.Y. 538, 64 N.E. 442. There, in commenting upon the seminal article by Warren and Brandeis, The Right to Privacy, 4 Harv.L.Rev. 193 (1890), a 4 to 3 majority of the New York Court of Appeals observed that "the so-called 'right of privacy' has not as yet found an abiding place in our jurisprudence," 171 N.Y. at 556, 64 N.E. at 447, and denied a remedy for the appropriation and commercial exploitation of the plaintiff's likeness.

Whatever the sweep of some of the language in the case, Roberson does not bar a cause of action for Intrusion. As indicated, the "right to privacy" includes several discrete torts within its ambit, of which appropriation is only one. As Holmes observed, "(w)e do not get a new and single principle by simply giving a single name to all the cases to be accounted for," The Common Law at 204 (1945 ed.). That the Roberson court rejected a privacy right in the context of an appropriation does not imply a rejection of a remedy for intrusion.

Moreover, the court in Roberson rested its decision on the lack of...

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