Paton v. La Prade

Citation524 F.2d 862
Decision Date14 October 1975
Docket NumberNos. 74-2237 and 75-1063,No. 74-2237,No. 75-1063,74-2237,75-1063,s. 74-2237 and 75-1063
PartiesLori PATON, a minor under 18, suing by her father, Arthur Paton, and William Gabrielson, Appellants in, v. J. Wallace LA PRADE, Special Agent In Charge, Federal Bureau of Investigation, Newark, New Jersey, et al., Appellants in
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Melvin L. Wulf, American Civil Liberties Union Federation, New York City, Frank Askin, William J. Bender, Rutgers Constitutional Litigation Clinic, Newark, N. J., for appellants.

Jonathan L. Goldstein, U. S. Atty., Jack C. Keeney, Acting Asst. Atty. Gen Before VAN DUSEN, ROSENN and WEIS, Circuit Judges.

David L. Keuch, David H. White, Attys., Dept. of Justice, Washington, D. C., for appellees.


ROSENN, Circuit Judge.

Plaintiffs, Lori Paton, a 16 year old student at West Morris Mendham High School, and William Gabrielson, chairman of the school's Social Studies Department, brought this civil action seeking declaratory and injunctive relief and compensatory and punitive damages. Their complaint alleged that the defendants, J. Wallace La Prade, special agent in charge of the Newark FBI office, "John Doe" (now identified as John Patrick Devlin), a special agent attached to the Newark office, and Clarence M. Kelley, director of the FBI, violated plaintiffs' statutory and constitutional rights.


The allegations of the complaint and various papers submitted in connection with defendants' motion for summary judgment reveal the following facts. In early 1973, the Assistant Postmaster General, acting upon a written request by the Acting Director of the FBI, placed a mail cover upon the Socialist Workers Party headquarters in New York City. Each morning the cover was in effect the foreman of delivery would record any information appearing on the exterior of letters addressed to the Socialist Workers Party and forward the information through the New York Postal Inspector to the New York FBI office. According to the foreman, the cover required only a few minutes to complete and did not delay delivery of the letters. He claims that he neither opened nor otherwise obtained information from inside the envelope, contentions disputed by plaintiffs.

In February 1973, Paton was enrolled in a social studies course, "Left-to-Right," which examined the contemporary political spectrum. The course was created by Gabrielson as part of the social studies curriculum and was taught by Frank Salkoff. As part of an assignment for the course, Paton wrote a letter to the Socialist Labor Party seeking information about its policies but inadvertently addressed it to the Socialist Workers Party.

Paton's name and address were ascertained as a result of the mail cover and duly reached the New York FBI office. The information then was forwarded to the Newark FBI office in a memorandum noting only that Paton had been in "contact" with the national office of the Socialist Workers Party without revealing the nature of the contact. The Newark office determined that it lacked any information about Paton and detailed Agent Devlin for further investigation.

Devlin first consulted the local area directories and determined that one Arthur Paton resided at the same address as Lori. He then inquired at the local credit bureau and learned the present and previous addresses of Mr. Paton and his wife, and Mr. Paton's present and previous places of employment.

Devlin's next step was to contact the local Chief of Police, Edward Strait, who informed Devlin that he had no record of any arrests or convictions of any member of the Paton family with the possible exception of a charge of contempt against Mr. Paton for failure to appear in response to a dog summons. Devlin and Strait disagree over the remaining details of their meeting. Devlin testified at deposition that Strait informed him that Lori was a member of the Paton family and already had graduated from high school. Strait testified, however, that he informed Devlin that he knew Arthur Paton but did not know Lori. According to Strait, he suggested that Devlin contact the local high school only when informed of Lori's age but suggested the wrong high school due to her address.

In any event, Devlin proceeded to West Morris Mendham High School, interviewed its principal and vice-principal, and learned the reason for the mailing of the letter. Devlin filed a report of his activities in a memorandum dated May 4, 1973, which concluded:

In view of the fact that the subject is a high school student who apparently contacted the National Office of the SWP in New York for information for one of her courses and, due to the fact that she is not believed to be involved in subversive matters, it is recommended that this case be closed administratively.

The FBI's record of the investigation, on file in the Newark office, consists of four documents recounting each step in the inquiry. In addition, the Newark name index file contains a card on Paton with the filing symbol, "SM-SWP" (Subversive Matter-Socialist Workers Party), which identifies the larger investigation of which the individual inquiry was a part. According to FBI officials, the filing symbol connotes no adverse information.

Immediately after Devlin's departure, the school officials notified Gabrielson of the visit who in turn informed a journalism class publishing a student newspaper. An article about Agent Devlin's visit to the school appeared in the next issue of the paper. The investigation became well known in the school, in the community, and in the country.

On June 13, 1973, counsel for Paton wrote to La Prade requesting the reasons for the FBI investigation and if, as a result, any files had been compiled about Paton. La Prade replied that Paton was "not the subject of an investigation by the Bureau" and provided no information about any records.

On July 24, 1973, plaintiffs instituted suit in the District of New Jersey. Their complaint alleged that the FBI unconstitutionally had intercepted Paton's letter which resulted in an improper investigation of her and a compilation and maintenance of a file on her. The complaint sought $65,000 in compensatory and punitive damages from La Prade and "John Doe." The complaint also sought certification as a class action. It demanded a declaratory judgment that "the surveillance and interception by the defendants of the lawful correspondence of plaintiffs and all other persons similarly situated with the (Socialist Workers Party) 1 and all other lawful political groups violates" 18 U.S.C. § 1702 (1970) 2 and the first and other amendments to the Constitution, and that "the collection, maintenance and storage of information by the defendants about the lawful correspondence of plaintiffs and all other persons similarly situated" was likewise unconstitutional. Injunctive relief prohibiting the FBI from engaging in such activities in the future and directing the FBI to destroy all files concerning Paton also was sought. Plaintiffs demanded a jury trial.

On April 22, 1974, plaintiffs moved for leave to file an amended complaint and name additional party-defendants. The motion sought to add as party-defendants Agent Devlin, identified in the original complaint as "John Doe," and other FBI agents and the postal inspector involved in the investigation. The motion also sought to add two causes of action. The first alleged that La Prade's answer to the letter of Paton's counsel, by concealing information to discourage plaintiffs from attempting to enforce their legal rights, violated 18 U.S.C. § 1001 (1970), regulations implementing the Freedom of Information Act, and the common law of New Jersey. Plaintiffs demanded $10 compensatory damages and $10,000 exemplary damages. The second new cause of action alleged that the wrongful conduct of defendants resulted from a conspiracy to deprive Paton of her civil rights in violation of 42 U.S.C. § 1985 (1970).

On January 14, 1974, the district court denied plaintiffs' motion to certify the case as a class action. The court found, as explicated in a later opinion, that plaintiffs' claims were not typical of those of the members of the proposed class. 382 F.Supp. 1118 (D.N.J.1974).

Upon motions by plaintiffs seeking a preliminary injunction and by defendants seeking a summary judgment, the district court ordered that the "Paton FBI file should be removed from the custody of the Government and destroyed." 382 F.Supp. at 1122. The court granted defendants' motion for summary judgment on all other issues on the ground that plaintiffs had suffered no legally cognizable injury. Id. at 1121-22. As a result of this ruling, the court found it "unnecessary to address the instant procedural and discovery motions or the substantive question of the legality of the . . . mail cover." Id. at 1122.

Plaintiffs appeal the grant of defendants' motion for summary judgment and the denial of their motions to compel further discovery and to amend the complaint. Defendants cross-appeal the order directing expungement of Paton's files. We find merit in both sides' contentions, vacate the judgment of the district court, and remand.


We turn first to the appeal of the order of expungement. 3 Plaintiffs contend that defendants lack the adverse interest necessary to appeal since their only objection to expunging the file was a lack of authority which the court's order has remedied. We believe plaintiffs' argument borders on the frivolous. Defendants have contended that their investigation of Paton was lawful and that the retention of the file was appropriate and necessary. The order of expungement adversely affected defendants' interests and therefore is appealable.

On the other hand, defendants contend that Paton lacks standing to contest the maintenance of her file because its retention does not cause her...

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