Berry v. Funk

• Decision Date: 14 July 1998
• Docket Number: No. 97-5257,97-5257
• Citation: 146 F.3d 1003
• Parties: Steven K. BERRY, Appellant v. Sherman M. FUNK, et al., Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1003

146 F.3d 1003

331 U.S.App.D.C. 62

Steven K. BERRY, Appellant v. Sherman M. FUNK, et al., Appellees

No. 97-5257.

United States Court of Appeals District of Columbia Circuit.

Argued April 20, 1998.

Decided July 14, 1998.

Appeal from the United States District Court for the District of Columbia (94cv02163).

Theodore B. Olson argued the cause and filed the briefs for appellant. Michelle L. Bodley entered an appearance.

R. Craig Lawrence, Assistant United States Attorney, argued the cause for appellees, with whom Wilma A. Lewis, United States Attorney, was on the brief. John D. Bates, Assistant United States Attorney, entered an appearance.

Before: SILBERMAN, WILLIAMS, and TATEL, Circuit Judges.

SILBERMAN, Circuit Judge:

Steven K. Berry, former Acting Assistant Secretary of State for Legislative Affairs, complained that various present and former State Department officials and employees monitored his telephone conversations with Elizabeth Tamposi, former Assistant Secretary of State for Consular Affairs, and used and disclosed the contents of these calls in violation of the federal wiretap statute and the Fourth Amendment. The district court granted summary judgment for the defendants. We vacate and remand for further proceedings.

I.

The facts before us are drawn from appellant's complaint as well as a government document attached as an exhibit to the complaint entitled Special Inquiry Into the Search and Retrieval of William Clinton's Passport Files, and which under FED. R. CIV. P. 10(c) is considered a part thereof for all purposes (the government does not dispute the contents of the latter document). This case arises out of events that caused considerable controversy in the heat of the 1992 presidential campaign. It will be recalled that President Clinton's involvement with the draft during the Vietnam War was a matter of widespread attention and great confusion. Rumors floated that, while abroad, he had sought to renounce his citizenship in order to avoid military service. Although Clinton's passport records provided no substantiation for this accusation, State Department personnel reviewing these documents became concerned that Clinton's file may have been tampered with in order to eliminate embarrassing materials. (The matter was referred to the FBI, which, after a brief investigation, found no evidence of tampering.)

Appellant was involved in the "Clinton passport probe" as a result of interest expressed by Republican congressmen. He was, at the time, the Acting Assistant Secretary of State for Legislative Affairs. Performing what he viewed as his liaison responsibilities, Berry assisted Congressman Gerald Solomon in drafting a letter to the Department in which Solomon would inquire whether Clinton had ever asked about or sought dual citizenship. Berry then called Assistant Secretary of State for Consular Affairs Elizabeth Tamposi and asked her what files the Department kept or retained concerning citizenship records which would contain information about Clinton.

Two days later (and one day after Solomon's letter arrived), on September 30, 1992, Tamposi placed a telephone call to Berry through the State Department Operations Center to let him know that she had Clinton's file in her possession. ¹ The Operations Center (also known as "the Watch") is a round-the-clock communications center that performs a variety of functions, such as generating briefings on world events and serving as the focal point for handling urgent crises. The Watch also provides a communications support function. High-ranking Department officials can call the Center, and Watch Officers will connect them to other government officials. The Watch's telephone console provides its Officers with the capacity to monitor all telephone calls placed through the Operations Center. This capability is to be used to serve several interests of the State Department; it enables Watch Officers to monitor crisis situations, author memorandums of conversations between officials for State Department records, and patch others into conversations as needed.

During their September 30 conversation, Tamposi told Berry that Clinton's passport file may have been tampered with and described to him the condition of some of the documents. Three days later, on October 3, 1992, Berry placed another call to Tamposi through the Watch to discuss a second letter he was about to receive from Solomon. Tamposi told Berry that the State Department's Inspector General and the FBI were investigating the possibility that someone tampered with Clinton's file. Later that day, Berry spoke with Janet Mullins, Assistant to the President for Political Affairs. Mullins told Berry that Tamposi had attempted to contact Margaret Tutwiler, Assistant to the President for Communications, to discuss the Clinton passport file matter. She told him to relay to Tamposi that it was inappropriate for the White House to become involved in the issue and that her calls would not be returned. The next evening, October 4, 1992, Tamposi called Berry through the Watch, and Berry passed Mullins' message to Tamposi. ²

Berry alleges that his three telephone conversations with Tamposi which took place between September 30 and October 4 were intentionally monitored by Watch Officers in the Operations Center. The Operations Center Manual in effect at the time of these conversations cautioned that calls between Senior Department Officials (other than the Secretary and Deputy Secretary) "should not be monitored unless they so request." He further complains that one of the Watch Officers during the October 4 call pressed a button that caused the call to go "live," resulting in the broadcast of the conversation throughout the entire Operations Center. Berry insists that he had no knowledge that his calls were being monitored and that neither he nor Tamposi had ever consented to monitoring.

On October 15, Acting Secretary of State Lawrence Eagleburger learned that the Operations Center apparently had overheard conversations between Berry and Tamposi and was concerned that the contents of these conversations contained evidence of misconduct by Berry and/or Tamposi. Eagleburger asked the Acting Inspector General Roscoe Suddarth--the Inspector General Sherman Funk was on an overseas trip--to speak with the Watch Officers who had overheard the calls to determine if there was sufficient evidence to begin a more formal inquiry. ³ Suddarth immediately convened a meeting with John Duncan, Counsel to the Inspector General, Glyn Davies, Director of the Operations Center, and Robert Pearson, Director of the Executive Secretariat. Participants in this session were informed that the monitoring of the Berry/Tamposi telephone calls may have violated both Operations Center procedure and Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2521 (1994 & Supp. II 1996).

After interviewing Watch Officers who had overheard the Berry/Tamposi conversations, Suddarth recommended to Eagleburger that the Inspector General's Office (the Office) be authorized to open a formal administrative investigation into possible misconduct by State Department employees in the search for the Clinton passport files. Eagleburger so directed. (This, at least, is the version of events recounted in Eagleburger's affidavit. Berry's complaint and the Office's report both claim that the Office decided to open a formal investigation and merely notified Eagleburger of its decision.) The Operations Center immediately issued new guidelines for monitoring calls, which provided that "we must ask permission of the party initiating the call ... to remain on the line," but the Acting Inspector General postponed investigation of the Operations Center's monitoring until the Clinton passport file inquiry was complete. The Office's procedure was inconsistent with its normal practice of investigating alleged criminal conduct before investigating supposed administrative misconduct.

When the Office consulted the FBI for its assistance in the misconduct inquiry, the Bureau learned of the possibly illegal monitoring by Watch Officers and thereupon notified the Office that a criminal investigation by the Department of Justice would soon commence. Duncan, Counsel to the Inspector General, protested that such an investigation would harm the Office's inquiry into the Clinton passport matter. Representatives from the FBI, the Office, and the Criminal Division of the Justice Department met to resolve the dispute. Michael Shepard, Chief of the Public Integrity Section of the Criminal Division, expressed concern that if the monitoring of the Berry/Tamposi calls were illegal, it would impair the ability of the Justice Department to prosecute should criminal wrongdoing be uncovered in the Clinton passport inquiry. He advised the Office to assemble a group of investigators "untainted" by knowledge of the monitored conversations' contents to take over the Clinton investigation.

Inspector General Funk thereupon returned to Washington where he was scheduled to brief Eagleburger about the investigation the next morning. Because Funk was supposedly "untainted" and Eagleburger also wished to remain "untainted," ⁴ Funk was not told the contents of the Berry/Tamposi calls until after his meeting with the Acting Secretary. Soon after this session, the FBI began its investigation into the Watch's monitoring activities, and Funk turned over the investigation of the Clinton passport files inquiry to an "untainted" team of investigators led by Terrence Shea, Assistant Inspector General for Security Oversight. The Office claims that information from the "tainted" investigators was screened and only "untainted" information was turned over to the new team. As Funk and Suddarth were "tainted," they recused themselves from any further participation in investigative determinations, report drafting, and referrals for potential administrative...