Peroff v. Manuel

• Decision Date: 27 October 1976
• Docket Number: Civ. A. No. 76-341.
• Citation: 421 F. Supp. 570
• Parties: Franklin PEROFF, Plaintiff, v. Philip MANUEL and Elbert T. Phelps, Defendants.
• Court: U.S. District Court — District of Columbia

421 F. Supp. 570

Franklin PEROFF, Plaintiff, v. Philip MANUEL and Elbert T. Phelps, Defendants.

Civ. A. No. 76-341.

United States District Court, District of Columbia.

October 27, 1976.

Harvey M. Katz, Washington, D. C., for plaintiff.

Robert N. Ford, Asst. U. S. Atty., Washington, D. C., for Philip Manuel.

MEMORANDUM

GASCH, District Judge.

This is an action for money damages which was properly removed by one of the defendants from Superior Court pursuant to 28 U.S.C. § 1442(a)(1).¹ The plaintiff in this action is a former organized crime figure who has turned government informant and congressional witness. Defendants Manuel and Phelps are, respectively, an investigator for the Senate Permanent Subcommittee on Investigations (hereinafter "Subcommittee") and a private medical doctor with an office at Georgetown Medical Center. Plaintiff's complaint charges defendants with blackmail, negligence, willful infliction of mental and physical distress and assault, all in connection with the defendants' alleged breach of the confidentiality of plaintiff's alias.

Defendant Manuel has moved to dismiss or, alternatively, for summary judgment, accompanying his motion with several affidavits. Plaintiff, in his opposition to the motion, relies upon his own affidavit. For the reasons set forth below, the Court finds that defendant Manuel's motion for summary judgment should be granted and that the action remaining as to defendant Phelps should be remanded to the Superior Court of the District of Columbia.

FACTUAL BACKGROUND

Plaintiff is a former organized crime figure who has operated as an undercover agent for several government law enforcement agencies. His informant activities and subsequent testimony reportedly have contributed to the convictions of numerous international crime figures and the exposing of large international criminal conspiracies. In October of 1973, plaintiff apparently contacted the Subcommittee with the purpose of volunteering his testimony in exchange for government protection for himself and his family. That protection was ultimately arranged after plaintiff became the central figure in the Subcommittee's investigation of the role or organized crime in the proliferation of counterfeit or stolen securities.

During late 1973 and the first half of 1974, defendant Manuel and other Subcommittee investigators were in almost constant contact with plaintiff. They engaged in the activities of interviewing him, corroborating his statements, and generally preparing him for his testimony before the Subcommittee. Of particular interest, the parties agree, was information known to plaintiff which suggested that officials of a federal agency (the Drug Enforcement Administration) might have allegedly "covered up" and abruptly aborted an investigation of the suspected criminal activity of Robert Vesco, a reported close friend of then-President Nixon. When it became clear, in December, 1973, that plaintiff and his family might be exposed to great danger because of plaintiff's expected testimony, they were placed under the protective custody of the United States Marshal's Service. It was at that time that plaintiff began using an alias provided him by the government.²

On or about March 30, 1974, defendant Manuel somehow became aware that plaintiff was in need of emergency medical care and made an arrangement for plaintiff to be treated by defendant Phelps. The facts surrounding this arrangement, and those facts surrounding the subsequent alleged conduct of the defendants with regard to the confidentiality of plaintiff's assumed name, are in dispute.

Plaintiff's version of the events in controversy is as follows: He says that as the date of his scheduled testimony before the Subcommittee approached, he became increasingly nervous, but that after he communicated this apprehension to defendant Manuel and another Subcommittee investigator, he scoffed at their suggestion that he should have medical attention and maintained that he needed nothing more than a mild tranquilizer. Subsequently, plaintiff asserts, he received a telephone call from defendant Phelps who, he says, addressed him by his alias and said that defendant Manuel (with whom defendant Phelps was admittedly acquainted) had requested that he offer some medical attention to plaintiff. Plaintiff contends that this action was prompted by a telephone call made by defendant Manuel to plaintiff's wife, wherein she was allegedly advised that plaintiff was in need of medical attention and was prevailed upon to urge plaintiff to seek or be receptive to same. Plaintiff says that he was examined by defendant Phelps and experienced relief from any symptoms after taking the tranquilizer medication prescribed by him. (Although plaintiff nowhere mentions such facts, it is undisputed that he received extensive care from defendant Phelps, for both a colitis condition and a subsequently discovered nodule on his lung.)

Plaintiff contends that he was later informed by defendant Manuel that defendant Phelps needed to know plaintiff's true identity (Franklin Peroff) in order that his prior medical records could be consulted. Thereafter, plaintiff asserts, he was informed by defendant Phelps that defendant Manuel had indeed revealed this information to him.

When a dispute later arose over the bill for defendant Phelps' medical services,³ plaintiff declined to pay that bill on the advice, he says, of the attorney handling his then-pending malpractice suit against defendant Phelps.⁴ Plaintiff asserts that he subsequently received a telephone call from an individual who identified himself as "Mr. Lord" (apparently one Daniel Lord, General Manager of "Credit Recovery Bureau, Inc.")⁵ and said that he worked for a collection agency allegedly retained by defendant Phelps for the purpose of collecting this bill. Plaintiff asserts that this "Mr. Lord" stated to him that he had been told of plaintiff's true identity by defendant Manuel and that certain named members of international crime syndicates would be likewise informed unless the bill was immediately paid.⁶

Plaintiff states that subsequent to this conversation there were "two clear attempts to kill" him, which led him to relocate himself and his family at his own expense (apparently spurning the government's informant relocation program) and to abandon a business enterprise in which he assertedly had invested heavily. (Plaintiff's Affidavit, ¶ 10).

Defendant Manuel's version of the facts of the case disagrees with the above in many respects. He contends, for example, that it was plaintiff's wife who first contacted him, in late March, 1974, to state that plaintiff was seriously ill and in need of the immediate medical attention of a gastroenterologist. Moreover, he contends that after making a preliminary arrangement for plaintiff to receive treatment at a Public Health hospital in Baltimore, he was informed by plaintiff's wife that her husband refused such accommodations and that she therefore wanted defendant Manuel to assist in the location of a private physician who could treat plaintiff on an emergency basis. Defendant Manuel says that he consequently arranged for plaintiff to be treated by defendant Phelps, with whom he was acquainted through a mutual athletic interest.

Defendant Manuel insists that he at no time divulged plaintiff's true identity to defendant Phelps, nor did he attempt at any time to solicit plaintiff's permission to divulge said identity in connection with defendant Phelps' reported need to consult prior medical records. Rather, he asserts that defendant Phelps had advised him that plaintiff had of his own volition during the course of his medical treatment divulged his true identity to defendant Phelps, as well as relating to him many other aspects of his past and present activities.

Defendant Manuel further maintains that his only two connections with the attempted collection of defendant Phelps' bill arose when he attempted on one occasion to persuade plaintiff to pay defendant Phelps "a little something every month,"⁷ and upon another occasion when Mr. Lord unsuccessfully requested his aid in approaching plaintiff.⁸ Finally, defendant Manuel attests that he never divulged plaintiff's true identity or whereabouts to Mr. Lord, nor did he ever engage in a conspiracy or in any individual acts of threat or blackmail against plaintiff.

THE MERITS

Defendant Manuel has raised a number of arguments in support of his alternative motions, including such issues as contributory negligence and general governmental immunity. These issues need not be reached, however, because the Court finds the somewhat narrower doctrine of congressional immunity, when considered in conjunction with plaintiff's evidentiary burden as the opponent of the summary judgment motion, to be dispositive of the claim against defendant Manuel.

Defendant Manuel argues that the claims against him are completely barred by the constitutional doctrine of congressional immunity under the Speech or Debate Clause, Art. I, § 6 of the Constitution, and places heavy reliance upon the case of McSurely v. McClellan, 172 U.S.App.D.C. 364, 521 F.2d 1024 (1975). There the Court of Appeals for this Circuit emphasized that the Speech or Debate Clause must be liberally construed and reaffirmed the well-settled principle that it provides an "absolute bar to interference" with the acts of legislators within the "legitimate legislative sphere." Id. at 1035-36. It is clear that such protection extends to "civil as well as criminal actions." Eastland v. United States Serviceman's Fund, 421 U.S. 491, 502-03, 95 S.Ct. 1813, 1821, 44 L.Ed.2d 324 (1975); see Gravel v. United States, 408 U.S. 606, 621-22, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972). Further, there can be no question but that for purposes of this protection congressional aides and the Congressmen for whom they work are "treated as one," see, e. g., Gravel v. United States, 408 U.S. 606, 616,...