Clark v. United States, 78 Civ. 2244(MEL).

• Citation: 481 F. Supp. 1086
• Decision Date: 08 January 1980
• Docket Number: No. 78 Civ. 2244(MEL).,78 Civ. 2244(MEL).
• Parties: Judith CLARK, Jennifer Dohrn, Dana Biberman, Natalee Rosenstein, Franklin Apfel, Eve Rosahn, Jane Spielman, and Judy Greenberg, Plaintiffs, v. UNITED STATES of America; L. Patrick Gray, Individually and as former Acting Director of the Federal Bureau of Investigation; W. Mark Felt, Individually and as former Assistant Director of the Federal Bureau of Investigation; Edward S. Miller, Individually and as former Assistant Director of the Federal Bureau of Investigation; John J. Kearney, Individually and as former Special Agent of the Federal Bureau of Investigation; J. Wallace Laprade, Individually and as former Assistant Director of the Federal Bureau of Investigation; William Webster, Individually and as Director of the Federal Bureau of Investigation; Federal Bureau of Investigation; John Does, whose names are fictitious being presently unknown to plaintiffs at this time, Individually and as former and current agents and employees of the Federal Bureau of Investigation; John Mitchell, Individually and as former Attorney General of the United States; Griffin Bell, Individually and as Attorney General of the United States; Department of Justice; William F. Bolger, Individually and as Postmaster General of the United States; United States Postal Service; New York Telephone Company; Richard M. Nixon, Individually and former President of the United States, Defendants.
• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York

481 F. Supp. 1086

Judith CLARK, Jennifer Dohrn, Dana Biberman, Natalee Rosenstein, Franklin Apfel, Eve Rosahn, Jane Spielman, and Judy Greenberg, Plaintiffs, v. UNITED STATES of America; L. Patrick Gray, Individually and as former Acting Director of the Federal Bureau of Investigation; W. Mark Felt, Individually and as former Assistant Director of the Federal Bureau of Investigation; Edward S. Miller, Individually and as former Assistant Director of the Federal Bureau of Investigation; John J. Kearney, Individually and as former Special Agent of the Federal Bureau of Investigation; J. Wallace Laprade, Individually and as former Assistant Director of the Federal Bureau of Investigation; William Webster, Individually and as Director of the Federal Bureau of Investigation; Federal Bureau of Investigation; John Does, whose names are fictitious being presently unknown to plaintiffs at this time, Individually and as former and current agents and employees of the Federal Bureau of Investigation; John Mitchell, Individually and as former Attorney General of the United States; Griffin Bell, Individually and as Attorney General of the United States; Department of Justice; William F. Bolger, Individually and as Postmaster General of the United States; United States Postal Service; New York Telephone Company; Richard M. Nixon, Individually and former President of the United States, Defendants.

No. 78 Civ. 2244(MEL).

United States District Court, S. D. New York.

November 19, 1979.

On Motion for Certification for Interlocutory Appeal January 8, 1980.

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Susan V. Tipograph, Susan Y. Kunstler, Derek Edley, New York City, for plaintiffs.

Robert B. Fiske, Jr., U. S. Atty. for the Southern District of New York, New York City, for defendants United States of America, the Federal Bureau of Investigation, the Department of Justice, the United States Postal Service, Richard Nixon, John Mitchell, Griffin Bell, William Bolger and William Webster; William J. Hibsher, Asst. U. S. Atty., New York City, of counsel.

George E. Ashley, New York City, for defendant New York Telephone Co.; Frank R. Natoli, Michael F. X. Manning, New York City, of counsel.

Leonard, Cohen, Gettings & Sher, Washington, D. C., for defendant W. Mark Felt; Brian P. Gettings, Washington, D. C., of counsel.

Diuguid, Siegel & Kennelly, Washington, D. C., for defendant Edward S. Miller; Thomas A. Kennelly, Washington, D. C., of counsel.

Rogers, Hoge & Hills, New York City, Frank, Bernstein, Conaway & Goldman, Baltimore, Md., for defendant L. Patrick Gray, III; James B. Swire, Robert B. Levin, Baltimore, Md., of counsel.

Windels, Marx, Davies & Ives, New York City, for defendant John J. Kearney; J. Daniel Mahoney, J. Dennis McGrath, New York City, of counsel.

LASKER, District Judge.

This suit is a residue of the resistance to the Vietnam war.

Plaintiffs, eight "former and present members of the `New Left'," (Complaint ¶ 4), filed this action against the United States, several federal governmental agencies, various federal governmental officials¹ and the New York Telephone Company (NYT) alleging break-ins and burglaries of plaintiffs' homes and offices, physical intimidation and harassment, wiretaps, mail openings, and other forms of illegal surveillance. They seek damages and injunctive relief for alleged past and continuing violations of their rights secured by the Constitution, federal and state statutes, and the common law.

A number of motions are pending. Former President Richard Nixon moves to dismiss the complaint on the grounds that he is immune from liability; former Attorney General John Mitchell moves to dismiss the complaint against him on the grounds it is time barred; former Acting Director of the Federal Bureau of Investigation (FBI) L. Patrick Gray moves to dismiss the complaint against him on the grounds that he is not subject to the jurisdiction of New York courts; NYT moves to dismiss the complaint against it on the grounds that the state action requirement for jurisdiction over the civil rights claims against it is not satisfied; and the United States and the federal agencies move to dismiss on the grounds that the Court lacks jurisdiction over the claims against them because plaintiffs failed to exhaust their administrative remedies as required under the Federal Tort Claims Act, and because the agencies cannot be sued in their own names. All the defendants move to dismiss on the grounds that the complaint is not sufficiently specific to state a claim of constitutional or civil rights violations. Finally, Gray, Mark Felt and Edward Miller move to stay the action as to them pending the conclusion of the criminal proceedings concerning the same allegations now pending in the United States District Court for the District of Columbia.

I. Nixon Immunity

Nixon moves to dismiss the complaint against him on the grounds that the doctrine of separation of powers makes him absolutely immune from suits for damages resulting from action he took while President. Citing a number of district and circuit court cases that have held him immune in actions seeking judicial review of his discretionary actions taken as President, as opposed to purely ministerial actions,² he argues that the development of the surveillance program alleged to have been directed against the plaintiffs was a discretionary action and is therefore not subject to judicial review.

However, each of the lower court cases cited by Nixon was decided prior to the Supreme Court decision in Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), which, together with Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), controls the outcome of the immunity question here.

In Scheuer, the Supreme Court held that the governor of Ohio and other officials of the executive branch of that state's government enjoyed only a qualified immunity from 42 U.S.C. § 1983 liability in a suit brought by the representatives of three students killed during the Kent State University disorders. 416 U.S. at 247, 94 S.Ct. 1683.

In Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), the Court addressed the issue whether the Secretary of Agriculture and other federal officials of that Department were entitled to absolute immunity in a suit alleging that they instituted an investigation and administrative proceeding against Economou to retaliate for his criticism of the Department. The Court held that

"in a suit for damages arising from unconstitutional action, federal executive officials exercising discretion are entitled only to the qualified immunity specified in Scheuer, subject to those exceptional situations where it is demonstrated that absolute immunity is essential for the conduct of the public business."³

Id. at 507, 98 S.Ct. at 2911 (footnote omitted).

In reaching this conclusion, the Court rejected the government's position that the federal officials sued in Butz were absolutely immune. The Court stated:

". . . in the absence of congressional direction to the contrary, there is no basis for according to federal officials a higher degree of immunity from liability when sued for a constitutional infringement as authorized by Bivens than is accorded state officials when sued for the identical violation under § 1983. . . . The pressures and uncertainties facing decisionmakers in state government are little if at all different from those affecting federal officials. We see no sense in holding a state governor liable but immunizing the head of a federal department; in holding the administrator of a federal hospital immune where the superintendent of a state hospital would be liable; in protecting the warden of a federal prison where the warden of a state prison would be vulnerable; or in distinguishing between state and federal police participating in the same investigation. Surely, federal officials should enjoy no greater zone of protection when they violate federal constitutional rules than do state officers. . . . To create a system in which the Bill of Rights monitors more closely the conduct of state officials than it does that of federal officials is to stand the constitutional design on its head."

Id. 438 U.S. at 500-01, 504, 98 S.Ct. at 2909-2910, 2911 (emphasis in original) (footnote omitted). That state and federal officials should be treated alike for purposes of immunity is not new to American jurisprudence. Chief Justice Marshall posited the same principle in United States v. Burr, 25 Fed.Cas. 30, 34 (C.D.D.Va.1807) (No. 14,692d), when discussing whether a subpoena duces tecum could issue to the President. In rejecting the argument that the president was not subject to process because the king was not subject to it, Marshall stated

"In this respect the first magistrate of the Union may more properly be likened to the first magistrate of a state who might be served with a subpoena ad testificandum."

Id. at 34.

Considering together the Scheuer holding that the highest official of the state is only qualifiedly immune from suit, and the Butz ruling that state and federal officials are to be treated alike for purposes of immunity, it follows necessarily that the highest official of the United States ordinarily enjoys a qualified immunity only.

However, Butz recognized an exception to its holding that executive officials were entitled to a qualified immunity, available in those situations in which an "absolute immunity is essential for the conduct of the public business." 438 U.S. at 507, 98 S.Ct. at 2911 (footnote omitted). It is not clear whether this language refers only to the situation present in Butz, in which the jobs of the officials sued were functionally equivalent to those of judges and prosecutors, or whether it was intended to apply also to a situation, not before the Butz Court, in which the action taken by the official was executive in nature, but nevertheless merited the...