Avery v. United States

• Decision Date: 15 June 1977
• Docket Number: Civ. No. H-76-286.
• Citation: 434 F. Supp. 937
• Parties: Michael AVERY v. UNITED STATES of America.
• Court: U.S. District Court — District of Connecticut

434 F. Supp. 937

Michael AVERY v. UNITED STATES of America.

Civ. No. H-76-286.

United States District Court, D. Connecticut.

June 15, 1977.

COPYRIGHT MATERIAL OMITTED

Frank Cochran, Conn. Civil Liberties Union, Hartford, Conn., Donald R. Holtman, Connolly, Holtman & Losee, West Hartford, Conn., for plaintiff.

Frank H. Santoro, Asst. U. S. Atty., Peter C. Dorsey, U. S. Atty., New Haven, Conn., for defendant.

RULING ON MOTION TO DISMISS

CLARIE, Chief Judge.

The plaintiff, Michael Avery, has brought this action against the United States of America, seeking money damages for injuries allegedly sustained by him as a result of the wrongful acts of government intelligence agents. The plaintiff claims that the Central Intelligence Agency (CIA) invaded his rights by illegally opening his mail, and asserts that damages for such an invasion are cognizable under the government's general waiver of sovereign immunity, the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680.

The defendant has moved to dismiss the complaint pursuant to Rule 12(b) of the F.R.Civ.P., for lack of subject matter jurisdiction and for failure to state a claim upon which relief might be granted. The Court finds that the government has waived sovereign immunity under the FTCA¹ so as to encompass the acts complained of, and the Court accordingly denies the defendant's motion to dismiss.

FACTS

The circumstances underlying plaintiff's complaint are as follows:² The CIA is an agency of the United States, charged with correlating, evaluating and disseminating intelligence data relating to the national security. 50 U.S.C. § 403(d). During the period from 1953 to 1973 the CIA engaged in a comprehensive surveillance program, code-named HTLINGUAL, which concerned mail passing between the United States and the U.S.S.R.³

At its inception in 1953, HTLINGUAL was limited in scope to simple mail-cover surveillance, but it gradually expanded into an extensive mail opening and mail reading operation. By 1959 the following developments had occurred: at least partial approval of the operation had been secured from the Postmaster General; a formal counterintelligence project had been approved within the CIA; a liaison with the Federal Bureau of Investigation had been established; a laboratory for technical study of opened mail was operating at the project's New York City facility; all mail covers passing through the facility were being photographed; and HTLINGUAL was opening more than 13,000 letters per year.

The project continued through the 1960's, but encountered increasing resistance from officials of the Post Office Department and others. These pressures ultimately brought about the termination of the project in 1973, at the direction of Director of Central Intelligence James R. Schlesinger.

Over its twenty year lifespan, HTLINGUAL had access to over 28,000,000 pieces of mail. More than 215,000 letters were opened, read and photographed. Copies of these letters were kept on file, in a computerized record system, and many of the letters were made available to the FBI as intelligence information to evaluate with regard to possible anti-American activities.

The CIA never sought or obtained judicial approval of HTLINGUAL's mail openings, either by warrant or otherwise, although tampering with the mails has long constituted a criminal violation under federal statute.⁴ Lawful means with judicial supervision could conceivably have been made available to the CIA, to serve its legitimate intelligence purposes, but no such means were sought.

The plaintiff has been informed by the government under the Freedom of Information Act that six letters written or received by him were intercepted and opened as part of HTLINGUAL. He has fulfilled the procedural prerequisites of an FTCA suit, see 28 U.S.C. § 2675, before bringing the instant action.⁵

ISSUE

The question presented by the defendant's motion to dismiss is whether the Congress has authorized suits against the United States based upon acts of the kind herein alleged.

DISCUSSION OF THE LAW

Under the doctrine of sovereign immunity, the government is immune from suits by its citizens, except by its own consent. See generally 2 F. Harper & F. James, The Law of Torts 1607-1613 (1956) (Harper & James). Until 1946, the United States, as a sovereign body, was not generally liable for the wrongful or negligent acts of its agents or employees. This was changed radically in 1946 by the enactment of the Federal Tort Claims Act, as Title IV of the Legislative Reorganization Act, 60 Stat. 842, 28 U.S.C. § 2671 et seq.

The FTCA eliminated, in broad terms, the United States' previous immunity from liability in tort. It designated the federal courts as the forum for determining government liability

"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." 28 U.S.C. § 1346(b).

The terms of the FTCA, however, placed limits on potential governmental tort liability. Some of these limitations are inherent in § 1346(b) itself, particularly the requirement that, for the government to be vicariously liable for the torts of an employee, such employee must act "within the scope of his office or employment". Other limitations on FTCA liability are expressed in specific statutory exceptions. See 28 U.S.C. § 2680.

Subsection (a) of Section 2680 generally excepts from action under the FTCA, claims based upon non-negligent acts of employees of the government in the execution of a statute or regulation, as well as claims

"based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a).

The remainder of § 2680, subsections (b) through (n), makes more specific exceptions to FTCA liability, for particular kinds of government activities or torts. Two of those exceptions, subsections (b) and (h), are significant in the instant case. Section 2680(b) provides that FTCA actions shall not lie for "any claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter." Section 2680(h) similarly retains government immunity from

"any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights. ..." 28 U.S.C. § 2680(h).

The government argues that, between these four limitations on its liability under the FTCA — "the scope of employment," "discretionary function", "postal matter" and "intentional tort" exceptions — the United States has withheld permission to sue, and has retained its traditional sovereign immunity, as to the torts alleged.

(a) Scope of Employment

Under § 1346(b), government liability for the torts of its employees is limited to acts committed "within the scope of their office or employment". The government argues that if, as alleged, the CIA agents involved here were knowingly committing criminal violations in the formulation and implementation of HTLINGUAL, then they were not acting within the scope of employment of any government employee. Illegal activities, they argue, could not possibly be within any employee's authority. Thus, the government cannot be held liable under § 1346(b) for these acts.

The thrust of this argument rests upon a misinterpretation of the term "scope of employment," the purpose of which is to incorporate a limit upon the doctrine of respondeat superior under the FTCA. Under the latter doctrine employers are held vicariously liable for the torts of their employees, but such vicarious liability is limited to torts committed by employees acting within the scope of their employment. This is so because it would be inequitable to hold the employer liable for torts not committed in the furtherance of his own interests. However, this limitation does not mean that the employer cannot be liable for acts not specifically authorized by him; otherwise, there would be no vicarious liability for even negligent wrongs of the employee, which were not directly commanded. See generally 2 Harper & James, supra, at 1374-1382 (1956); Ira S. Bushey & Sons v. United States, 276 F.Supp. 518 (S.D.N.Y. 1967), aff'd, 398 F.2d 167 (2d Cir. 1968). Moreover, it has come to be accepted that even willful torts are not necessarily outside the employee's scope of employment, even though malicious or criminal in nature. See 2 Harper & James, supra, at 1389-1392 (1956). The central question, however, in deciding whether or not an employee-tortfeasor acted within the scope of his employment is not whether he acted pursuant to an explicit or implicit authorization from his employer. Rather, the relevant question is whether the employee acted from a personal motive or with a motivation to serve his employer's interests. See, e. g., 2 Harper & James, supra, at 1374-1375; W. Prosser, Law of Torts, 460-461, 464-466 (4th ed. 1971).

In cases decided under the FTCA, the "scope of employment" limitation has barred government liability for intentional and legally unauthorized wrongs committed by government agents. Hatahley v. United States, 351 U.S. 173, 76 S.Ct. 745, 100 L.Ed. 1065 (1956), concerned the actions of federal range managers who wrongfully and discriminatorily removed and destroyed horses belonging to the plaintiff Navaho Indians, which horses the plaintiffs had allowed to graze freely on the range. The federal agents had acted in violation of regulations which limited their authority to remove grazing livestock from the range. In opposition to government...