661 F.2d 1243 (D.C. Cir. 1981), 80-1302, Black Panther Party v. Smith

Docket Nº:80-1302.
Citation:661 F.2d 1243
Party Name:The BLACK PANTHER PARTY, et al., Appellants, v. William French SMITH, Attorney General of the United States, et al.
Case Date:July 08, 1981
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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661 F.2d 1243 (D.C. Cir. 1981)

The BLACK PANTHER PARTY, et al., Appellants,


William French SMITH, Attorney General of the United States, et al.

No. 80-1302.

United States Court of Appeals, District of Columbia Circuit

July 8, 1981

Argued Feb. 13, 1981.

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Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 76-2205).

Bruce J. Terris, Washington, D. C., with whom Susan B. Drake, Washington, D. C., was on the brief, for appellants.

Larry L. Gregg, Atty. Dept. of Justice, Washington, D. C., with whom Alice Daniel, Asst. Atty. Gen., Washington, D. C., at the time the brief was filed, Thomas S. Martin, Acting Asst. Atty. Gen., Washington, D. C., at the time the brief was filed, and Barbara H. Herwig and R. Joseph Sher, Attys., Dept. of Justice, Washington, D. C., were on the brief, for all appellees except George C. Moore and William C. Sullivan.

William L. Stauffer, Jr., Washington, D. C., for appellee George C. Moore.

Bennett Boskey, Washington, D. C., entered an appearance for appellee Edward Levi.

Before WRIGHT, MACKINNON, and GINSBURG, Circuit Judges.

Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.

Opinion concurring in part and dissenting in part filed by Circuit Judge MACKINNON.

J. SKELLY WRIGHT, Circuit Judge:

In this appeal we confront a number of issues relating to pretrial procedure, including the important question whether civil litigants may refuse to respond to interrogatories on the ground of constitutional privilege. The case began when the Black Panther Party (the Party), Huey P. Newton, and other individuals sued the United States and various government officials, alleging that they had unlawfully conspired to destroy the Party. 1 After presiding over several years of bitterly fought discovery battles, the District Court granted a government motion to dismiss the Party's action. 2 It reasoned that dismissal was appropriate because the Party had: (1) unjustifiably claimed a First Amendment privilege and refused to answer several interrogatories that would have required it to reveal the names of Party members whose names were not known to the public; (2) failed to clarify answers to interrogatories that the District Court believed to be inconsistent or evasive; and (3) disobeyed a discovery order requiring individual Party officers to respond to interrogatories originally served on the Party itself. 3 The District

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Court also dismissed Huey Newton, ruling that he had improperly asserted the Fifth Amendment privilege against self-incrimination when he refused to answer several interrogatories. 4 Finally, it dismissed all other plaintiffs. 5

The Party, Newton, and the other plaintiffs now challenge these dismissals. They also appeal the District Court's decision to award to appellees the costs and attorney fees incurred in bringing the motion to dismiss, 6 the decision to grant summary judgment in favor of government officials who held office after 1973, 7 and the decision to deny a motion for an extension of time in which to file for class action certification. 8 For the reasons stated below, we reverse the dismissals, the decision to award attorneys fees and costs, and the decision to grant summary judgment. We affirm the denial of the motion for an extension of time in which to file for class certification. The case is remanded for further proceedings consistent with our decision.


A. The Complaint

Plaintiffs-appellants are the Party, Newton, the Party's founder, and various other Party members and supporters. 9 In December 1976 they filed a complaint seeking declaratory and injunctive relief on behalf of themselves and two classes: all individuals who had been or continued to be members of the Party, and all individuals who had provided political or financial assistance to the Party. 10 The Party and Newton also sought money damages. 11 Defendants-appellees are the United States and various government officials, including past and present Directors of the Central Intelligence Agency and the Federal Bureau of Investigation, Attorneys General, Secretaries of the Treasury, Postmasters General, and Commissioners of the Internal Revenue Service. 12 Present officials were sued in their official and individual capacities.

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Past government officials were sued only in their individual capacities. 13

In their complaint appellants alleged that since 1968 the appellees and other unknown government employees had engaged in a continuing conspiracy to destroy the Black Panther Party, in violation of the Constitution and various statutes. 14 They stated that they first learned of the existence of this conspiracy in 1976, when the Senate Select Committee to Study Government Operations with Respect to Intelligence Activities published a report entitled Intelligence Activities and the Rights of Americans, S.Rep. No. 755, 94th Cong., 2d Sess., Books II and III (Senate Report). 15 According to appellants, this report reveals that the FBI formed a special counterintelligence program called COINTELPRO primarily to "expose, disrupt, misdirect, discredit or otherwise neutralize the activities of black nationalists." 16 Appellants suggested that through this program the FBI orchestrated efforts to undermine the Party. 17

Appellants conceded that they lacked specific details about the nature and scope of the conspiracy against the Party; they stated that they hoped to obtain further information through use of discovery. 18 Relying in part on information provided in the Senate Report, however, they were able to allege a number of specific activities. 19 They complained of unlawful mail openings, warrantless wiretaps and break-ins, and burglaries. 20 Appellants contended that the government, with the assistance of local law enforcement agencies, harassed and even assassinated Party officers, members, and supporters. 21 They further suggested that appellees had incited dissension within the Party through use of anonymous letters, paid informants, and agents provocateurs. 22 They alleged that appellees also instigated violent confrontations between the Black Panthers and other black organizations. 23 Finally, they claimed that appellees deterred contributions to the Party, crippled the Party newspaper, The Black Panther, discouraged press coverage of Party activities, and sabotaged the Party's public service programs. 24

At the conclusion of their complaint appellants asked the District Court to enter a declaratory judgment finding that appellees had violated their constitutional and statutory

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rights. They also requested that appellees be enjoined from taking any further action to undermine the Party or harm its members and supporters. The Party and Newton each asked for $50 million in compensatory damages and $50 million in punitive damages. 25

B. Proceedings Below

Discovery battles and other pretrial disputes consumed almost three years. 26 On May 26, 1977 the District Court denied appellees' motions to dismiss and directed the action to proceed to discovery. It also denied appellants' motion for an extension of time in which to move for class action certification, invoking Local Rule 1-13(b), Rules of the United States District Court for the District of Columbia. 27 Local Rule 1-13(b) provides that motions for class action certification must be made within 90 days of the filing of the complaint. 28 Appellants filed a request for production of documents during the same month. They withdrew this request shortly thereafter in favor of a second request. 29 Later, after appellees complained about the breadth of the second request and moved for a protective order, appellants filed a superseding third request. 30 At the same time the parties agreed that discovery would take place in "waves." During the initial wave they planned to limit their discovery to requests for documents and interrogatories; they would have an opportunity to take depositions during subsequent waves. 31

In July 1977, before initiating any discovery, the government officials who had held office after 1973 moved for summary judgment on the ground that they could not have been involved in any of the acts alleged. They filed affidavits setting forth the dates on which they assumed office and disclaiming any knowledge of or participation in a conspiracy against appellants. 32 Appellants responded with an affidavit of counsel under Rule 56(f) of the Federal Rules of Civil Procedure, stating that they needed further discovery before they could respond to appellees' motion for summary judgment. 33 They also noted that the affidavits of three of the post-1973 officials, former Postmaster General Benjamin Bailar, former Attorney General Edward Levi, and former Internal Revenue Service Commissioner

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William Williams, raised new issues of material fact, since they seemed to concede involvement in investigations of the Black Panther Party. Finally, appellants noted that their complaint alleged a continuing conspiracy, and that at least one overt act had occurred after 1973. 34 The District Court decided to grant this motion in July 1978, observing that the officials' affidavits supported their claims of noninvolvement, and that appellants had failed to file an evidentiary submission of their own, even though they had been given "ample opportunity" to take discovery since filing their affidavit of counsel. 35

Appellees served 244 interrogatories on the Party on January 31, 1978. Three months later they served 82 interrogatories on Huey Newton. 36 On June 12, 1978 appellees moved to dismiss the Party and Newton under Rule 37(d), Federal Rules of Civil Procedure, because their responses to the interrogatories were late. Appellants responded by stating that answers would be filed by July...

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