Ghandi v. Police Dept. of City of Detroit

• Decision Date: 08 January 1985
• Docket Number: No. 83-1069,83-1069
• Citation: 747 F.2d 338
• Parties: Khushro GHANDI, Andrew Rotstein, Richard Magraw, Jacqueline Cotton, Matthew Moriarty, Elizabeth Moriarty, Stuart Bernsen, Randolph Wedler and Barbara Gettel, Plaintiffs-Appellants, v. POLICE DEPARTMENT OF the CITY OF DETROIT, Philip Tannian, Dale Tiderington, Garries Terrell, Melvin Gamblin, Robert Persyn, Donald McKinnon, Leland Blaim, Vernon Higgins, Philip Mercado, Edward Ball, John Minogue, Gerald Fayed, Clarence Kelley, William Saxbe and Federal Bureau of Investigation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 338

747 F.2d 338

40 Fed.R.Serv.2d 363

Khushro GHANDI, Andrew Rotstein, Richard Magraw, Jacqueline Cotton, Matthew Moriarty, Elizabeth Moriarty Stuart Bernsen, Randolph Wedler and Barbara Gettel, Plaintiffs-Appellants, v. POLICE DEPARTMENT OF the CITY OF DETROIT, Philip Tannian Dale Tiderington, Garries Terrell, Melvin Gamblin, Robert Persyn, Donald McKinnon, Leland Blaim, Vernon Higgins Philip Mercado, Edward Ball, John Minogue, Gerald Fayed Clarence Kelley, William Saxbe and Federal Bureau of Investigation, Defendants-Appellees.

No. 83-1069.

United States Court of Appeals, Sixth Circuit.

Argued April 17, 1984.

Decided Oct. 18, 1984.

Rehearing and Rehearing En Banc Denied Jan. 8, 1985.

Mayer Morganroth, Southfield, Mich., Robert Rossi (argued), Boston, Mass., for plaintiffs-appellants.

Peter L. Letsmann, Police Headquarters, William B. Daniel, Detroit, Mich., Brenda Braceful (argued), Detroit, Mich., Marc Johnston (argued), Donald Pailen, Civil Div., Before ENGEL and MERRITT, Circuit Judges, and HILLMAN, District Judge. ^*

Dept. of Justice, Appellate Staff, Washington, D.C., for defendants-appellees.

HILLMAN, District Judge.

Plaintiffs, members and former members of the National Caucus of Labor Committees (NCLC), a "leadership cadre organization" of which the U.S. Labor Party is its political electoral arm, appeal from a summary judgment dismissing their claims against the Federal Bureau of Investigation (FBI), various federal agents and officials, and several uniformed police officers of the City of Detroit Police Department. Plaintiffs also appeal the granting of an involuntary dismissal under Fed.R.Civ.P. 41(b) of their claims against the Police Department of the City of Detroit and several of its non-uniformed police officers. Finally, plaintiffs appeal the district court's orders denying plaintiffs' Rule 37 motion to compel the production of documents and granting the FBI's motion to quash a subpoena duces tecum served by the plaintiffs upon the FBI, as well as its ruling that trial exhibit 57 was inadmissible. For the reasons stated below, we affirm in part and reverse in part.

Plaintiffs filed their complaint on July 3, 1974, alleging that an FBI investigation of the NCLC, the use of defendant Higgins as a paid informant, various unlawful acts committed by Higgins as an informant, and a search of the NCLC Detroit headquarters violated plaintiffs' first, fourth, and ninth amendment rights. Beginning in 1970, the NCLC, a voluntary political association advocating socialist reforms, was the subject of an FBI domestic security investigation for its alleged subversive activities. In April, 1974, Vernon Higgins, who previously had infiltrated the Ku Klux Klan as a paid FBI informant, contacted FBI agent Gerald C. Fayed of the FBI's Troy, Michigan, office, offering to provide information concerning the NCLC in the Pontiac, Michigan area. Since the NCLC was already under investigation by the FBI, Fayed obtained authorization to pay Higgins for any information he supplied regarding the NCLC. Thereafter, Higgins proceeded to infiltrate the NCLC.

Higgins reported to the FBI numerous times during May and June, 1974, with information regarding the NCLC. He received several cash payments for his efforts. During that time, Higgins' cover apparently was secure. On one occasion he was asked to attend an NCLC meeting in New York. In addition, he was asked by Christopher Martinson, an NCLC member, to run for the Michigan legislature as a United States Labor Party candidate, and his name actually appeared on the ballot in the fall of 1974.

On June 19, 1974, Higgins admitted to Martinson that he was an FBI informant. Plaintiffs claim that after Higgins revealed this, he voluntarily accompanied them to the NCLC office in Detroit. Defendants, on the other hand, claim the NCLC tricked Higgins into a car and, against his will, took him to Detroit for further questioning. Higgins spent the night in the apartment of a Detroit NCLC member. On the morning of June 20, Higgins returned to the Detroit NCLC office where, according to plaintiffs, he was to announce at a press conference his association with the FBI.

Between 8:00 a.m. and 9:00 a.m. on June 20, Higgins was permitted to telephone his father. Instead, he called Edward Ball at the FBI office in Pontiac, Michigan, and told him he needed assistance since he was being held at the Detroit NCLC office against his will. Shortly thereafter the FBI received two more telephone calls, one from Higgins' wife, expressing concern for Higgins' safety, and the other from an Associated Press reporter, stating that the NCLC had issued a press release stating it had discovered Higgins was an FBI informant.

The FBI decided to turn the matter over to the Detroit police to obtain a search warrant. FBI agent William Jones was authorized to execute an affidavit to be used in obtaining a warrant, and Jones and several other FBI agents were authorized to accompany the Detroit police when the warrant was executed.

On the basis of Jones' affidavit, the Detroit police obtained a search warrant for the NCLC Detroit headquarters. At approximately 11:30 a.m. on June 20 several Detroit police officers and FBI agents executed the warrant, but by the time they arrived at the NCLC headquarters Higgins had been taken to the apartment where he had spent the previous night. While purportedly searching for Higgins, the agents and officers took photographs of the files and offices, and searched the NCLC members present at the scene. The NCLC members accompanying Higgins received a telephone call at the apartment, informing them of the search of their headquarters. In the confusion generated by the telephone call, Higgins escaped unharmed, and found his way back to the Detroit Police station. This lawsuit followed.

On April 11, 1974, the district court ruled that the doctrine of sovereign immunity required dismissal of plaintiffs' claims against the FBI. On January 27, 1977, the FBI filed a motion to quash a subpoena duces tecum served upon it as a non-party defendant, claiming the subpoena was improper, oppressive and irrelevant. The district court modified the subpoena by deleting five items and altering one other, and denied the FBI's motion to quash. Ghandi v. Police Dept. of City of Detroit, 74 F.R.D. 115, 125 (E.D.Mich.1977). On March 28, 1977, plaintiffs moved, pursuant to Rule 37 of the Fed.R.Civ.P., to compel production of documents which they claimed were covered by the subpoena but which the FBI had either failed to produce or had edited. The matter was referred to a magistrate who, after an in camera review of the documents produced, determined that the FBI had complied with the subpoena. Plaintiffs objected to the magistrate's ruling, and the district court, after an independent review of the documents, affirmed the magistrate's ruling on August 19, 1982.

After more than six years of discovery, the district court granted a summary judgment on behalf of the individual federal agents. On October 21, 1982, the district court also granted summary judgment in favor of the uniformed police officers, on the ground that they were merely back-up officers, not searchers. Plaintiffs then proceeded to trial against the remaining defendants, the City of Detroit Police Department and the non-uniformed police officers. On November 15, 1982, more than a year after the discovery cut-off, plaintiffs served the FBI with a new subpoena duces tecum, seeking the same documents that were covered by the original subpoena. The FBI moved to quash the subpoena as untimely. On the first day of trial, the district court heard arguments on the motion and granted the FBI's motion to quash. Further at trial, plaintiffs offered into evidence an inter-office memorandum of the Detroit Police Department recording a complaint by a member of the U.S. Labor Party regarding a police raid at the party office on November 10, 1973. The district court ruled that the document, Plaintiffs' Trial Exhibit # 57, was irrelevant, and therefore inadmissible. At the close of plaintiffs' proofs, the district court, sitting without a jury, granted the remaining City defendants' Rule 41(b) motion for involuntary dismissal. Plaintiffs appeal.

The Federal Defendants

Plaintiffs appeal the district court's ruling that the doctrine of sovereign immunity bars plaintiffs' suit against the FBI. Ghandi v. Police Dept. of City of Detroit, 66 F.R.D. 385, 388 (E.D.Mich.1975). In general, "[t]he United States, as sovereign, is immune from suit save as it consents to be sued, and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941) (citations omitted). This rule also applies When the district court dismissed plaintiffs' claims against the FBI in 1974, Congress had not yet waived the sovereign immunity of federal agencies. In 1976, however, Congress amended section 702 of the Administrative Procedure Act to allow actions seeking non-monetary relief against government agencies if the agency conduct is otherwise subject to review. In Warin v. Director, Department of the Treasury, 672 F.2d 590, 592 (6th Cir.1982), this circuit joined other circuits in holding that in amending section 702, Congress also waived sovereign immunity for equitable actions seeking nonstatutory review of agency action under 28 U.S.C. Sec. 1331. See also Sea-Land Service, Inc. v. Alaska R.R., 659 F.2d 243, 244 (D.C.Cir.1981), cert. denied, 455 U.S. 919, 102 S.Ct. 1274, 71 L.Ed. 459 (1982); Beller v. Middendorf, 632 F.2d 788, 797 (9th Cir.1980); Jaffee v. United States, 592 F.2d 712, 718-19 (3d Cir.1979). Although amended section 702 eliminates the defense of sovereign immunity in actions for specific, non-monetary relief, Congress did not alter the existing law barring the recovery of money damages against the United States....