Kipperman v. McCone

• Decision Date: 26 October 1976
• Docket Number: No. C-75-1211-CBR.,C-75-1211-CBR.
• Citation: 422 F. Supp. 860
• Parties: Stephanie KIPPERMAN, on behalf of Plaintiff and all persons similarly situated, Plaintiff, v. John McCONE et al., Defendants.
• Court: U.S. District Court — Northern District of California

422 F. Supp. 860

Stephanie KIPPERMAN, on behalf of Plaintiff and all persons similarly situated, Plaintiff, v. John McCONE et al., Defendants.

No. C-75-1211-CBR.

United States District Court, N. D. California.

October 26, 1976.

COPYRIGHT MATERIAL OMITTED

Kipperman, Shawn & Keker, William A. Brockett, Jr., Friedman & Sloan, Stanley J. Friedman, Marcus S. Topel, San Francisco, Cal., for plaintiff.

Dennis G. Linder, Irwin Goldbloom, Civ. Div., Dept. of Justice, Washington, D.C., James A. Bruen, Asst. U. S. Atty., San Francisco, Cal., for defendants United States and CIA.

Richard Ernst, Ernst & Daniels, San Francisco, Cal., Donald J. Cohn, James V. Kearney, Webster & Sheffield, New York City, for defendant J. Edward Day.

Jacqueline Swords, Cadwalader, Wickersham & Taft, New York City, Charles E. Hanger, Brobeck, Phleger & Harrison, San Francisco, Cal., for defendant James Schlesinger.

Plato Cacheris, Hundley & Cacheris, Washington, D.C., Alvin H. Goldstein, Jr., Tuckman, Goldstein & Phillips, San Francisco, Cal., for defendant John Mitchell.

Paul R. Haerle, Thelen, Marrin, Johnson & Bridges, San Francisco, Cal., for defendant John McCone.

John G. Milano, Milano & Cimmet, San Francisco, Cal., Seymour Glanzer, Kenneth L. Adams, Washington, D.C., for defendant William Cotter.

Kenneth L. Adams, Dickstein, Shapiro & Morin, Washington, D.C., Martin Quinn, Pettit, Evers & Martin, San Francisco, Cal., for defendant Thomas Karamessines.

Charles R. Donnenfeld, Rodney F. Page, Cameron M. Blake, Arent, Fox, Kintner, Plotkin & Kahn, Washington, D.C., Stephen S. Mayne, Dinkelspiel, Pelavin, Steefel & Levitt, San Francisco, Cal., for defendant Richard Helms.

SECOND CORRECTED MEMORANDUM OF OPINION AND ORDER

RENFREW, District Judge.

Plaintiff brought this action on her own behalf and on behalf of all those similarly situated against the United States of America and against numerous present and former federal officials. The original complaint alleged that during the period 1955 through 1973 defendants unlawfully opened the sealed first-class mail plaintiff and other members of the class sent to and received from persons in the Soviet Union, thereby depriving plaintiff and the class members of their rights to free speech, privacy, due process of law, freedom from unreasonable searches and seizures, and communication in private via the mails. Plaintiff sought declaratory and injunctive relief, compensatory and exemplary damages, plus costs of suit and a reasonable attorney's fee.

The events giving rise to this lawsuit were first aired publicly in the Report to the President by the Commission on CIA Activities Within the United States, also known as the Rockefeller Commission Report, submitted to the President on June 6, 1975. Chapter Nine of that Report describes in detail the mail surveillance program initiated by the Central Intelligence Agency ("CIA") during the 1950s for purposes of gathering intelligence. The most extensive operation was based in New York and monitored mail sent to and received from the Soviet Union. Other mail projects during the same period were centered in San Francisco, Hawaii and New Orleans, but lasted for far briefer periods. Only the New York project handled mail to or from the Soviet Union. The Rockefeller Commission Report establishes that top officials in the Central Intelligence Agency, the Post Office Department, the Federal Bureau of Investigation, and the Department of Justice were ultimately apprised of the existence of the mail intercept program.

While the mail intercept program was in operation, all mail to and from the Soviet Union routed through New York was scanned by employees of the Central Intelligence Agency. The intercept program involved examining the envelopes of some of the letters, photographing (or "covering") a portion of those examined, and opening a smaller number of letters and analyzing their contents. During the last full year of its operation, the Soviet Union mail intercept program handled approximately 4,350,000 items, examined the outside of more than 2,300,000 items, covered approximately 33,000 items, and opened and analyzed the contents of approximately 8,700 items. Rockefeller Commission Report, at 111.

After describing the inception and operation of the CIA's mail intercept program, the Rockefeller Commission Report concluded as follows:

"While in operation, the CIA's domestic mail opening programs were unlawful. United States statutes specifically forbid opening the mail.

"The mail openings also raise Constitutional questions under the Fourth Amendment guarantees against unreasonable search, and the scope of the New York project poses possible difficulties with the First Amendment rights of free speech and press.

"Mail cover operations (examining and copying of envelopes only) are legal when carried out in compliance with postal regulations on a limited and selective basis involving matters of national security. The New York mail intercept did not meet these criteria.

"The nature and degree of assistance given by the CIA to the FBI in the New York mail project indicate that the primary purpose eventually became participation with the FBI in internal security functions. Accordingly, the CIA's participation was prohibited under the National Security Act." Id. at 115.

Following public disclosure of the existence of the mail intercept program, many individuals inquired of the CIA whether their correspondence to or from persons in other countries had been covered or opened. From January, 1975, to February 15, 1976, the CIA processed 5,518 such inquiries submitted pursuant to the Freedom of Information Act, 5 U.S.C. § 552, and 480 inquiries submitted pursuant to the Privacy Act, 5 U.S.C. § 552a. Supplemental Affidavit of Ethel Mendoza, Chief, Privacy Act Branch of the Counterintelligence Staff of the Central Intelligence Agency, executed February 25, 1976, at 1. A search of CIA's records disclosed that the names of 134 of those persons who made inquiry are contained in the mail intercept files. Ibid. A total of 566 letters and 222 mail covers were furnished to those 134 persons. Supplemental Affidavit of Ethel Mendoza, executed May 12, 1976. The remaining 5,864 persons were informed that their names do not appear in the Agency's mail intercept files.

Plaintiff was among those persons who submitted such a request for information. On May 20, 1975, the CIA informed plaintiff that it had no record of her name in the file index maintained for the mail intercept program. This was confirmed in a subsequent letter from the CIA dated June 3, 1975.

Plaintiff filed her original complaint with this Court on June 13, 1975, and, exercising her right under Rule 15(a) of the Federal Rules of Civil Procedure to file a First Amended Complaint without leave of court, filed an amended complaint on June 16, 1975. Each of the defendants moved to dismiss the complaint — advancing numerous arguments including lack of personal jurisdiction, lack of subject matter jurisdiction, lack of standing, improper venue, and sovereign immunity — or, in the alternative, for summary judgment. The Court twice permitted plaintiff to amend her complaint in her effort to oppose defendants' motions. The motions were argued at hearings held on February 9 and March 11, 1976.¹

In her Third Amended Complaint, plaintiff invokes this Court's jurisdiction under 5 U.S.C. §§ 551 et seq., 28 U.S.C. § 1331, the First, Fourth, Fifth, Ninth and Tenth Amendments to the Constitution, United States statutes and postal regulations, and the doctrine of pendent jurisdiction. Count One of the Third Amended Complaint charges defendants with conspiring to deprive plaintiff and other members of the class of their rights and with invading their privacy by operating the mail intercept program described above during the period 1953-1973. The specific conduct complained of in Count One is the mail cover operation. Plaintiff charges as follows:

"On information and belief, said acts and course of conduct included but were not limited to, the copying of the exterior of the envelopes of private, sealed, first class mail of Plaintiff, and her class sent to and from persons in foreign countries, including, but not limited to, the Soviet Union and one or more Communist countries in the Far East. Said acts, as to Plaintiff, were directed at mail sent to and from persons in the Soviet Union.

* * * * * *

"On information and belief, said acts included, but were not limited to, the above-described copying of exteriors of envelopes, and the maintenance of files and dossiers and data banks reflecting the information unlawfully acquired about Plaintiff and her class, and the reporting of such information to others." Third Amended Complaint, at 7-8.

Count Two of the Third Amended Complaint is virtually identical to Count One, except that it is concerned with the opening of mail. Count Three, in turn, focuses upon

"the diversion of first-class mail sent by Plaintiff and her class to and from certain foreign countries, including, but not limited to the Soviet Union and Communist countries in the Far East. Said mail was diverted from its normal and unlawful sic flow, and was subject to unauthorized examination of the exterior of its envelopes, and the delay of such mail for the purpose of carrying out the unlawful examination described. As to Plaintiff, such acts were limited to mail sent to and received from persons in the Soviet Union." Id. at 12.

The Third Amended Complaint alleges that two overt acts occurred in this District in furtherance of the alleged conspiracy: (1) operating the Far East mail intercept program in San Francisco; and (2) utilizing United States letter carriers "to pick up Plaintiff's mail to the Soviet Union in this District, and to transport it within this District making possible its later examination, copying or opening." Id. at 6. As a result of the conduct complained of, plaintiff claims that she and...