Forsyth v. Kleindienst

729 F.2d 267

• Court: Court of Appeals for the Third Circuit
• Decided: March 8, 1984
• Docket: Nos. 83-1812, 83-3150
• Status: Published

Opinions

OPINION OF THE COURT

A. LEON HIGGINBOTHAM, Jr., Circuit Judge.

This case involves former Attorney General John N. Mitchell’s second interlocutory appeal from a denial of both absolute and qualified immunity for his authorization of unconstitutional FBI electronic surveillances of Keith Forsyth’s telephone conversations with William Davidon. Forsyth v. Kleindienst, 599 F.2d 1203 (3d Cir.1979) (“Forsyth I"), cert. denied, 453 U.S. 913, 101 S.Ct. 3147, 69 L.Ed.2d 997 (1981), reh. denied 453 U.S. 928, 102 S.Ct. 892, 69 L.Ed.2d 1025 (1981). We remanded the first interlocutory appeal directing the district court to decide a narrow factual question in the context of the absolute immunity test we enunciated in Forsyth I. However, we declined to consider the qualified immunity defense in Forsyth I because it was a non-appealable interlocutory order. On remand, the district court denied defendant Mitchell both absolute and qualified immunity.

Mitchell’s appeal does not assert that the district court, 599 F.2d 1203, erred in the factual finding on remand or erred in its application of the Forsyth I test to that factual finding. Instead, he argues that two recent Supreme Court decisions, Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982) (“Nixon ”) and Harlow & Butterfield v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (“Harlow ”), which were decided after Forsyth I, but before the district court’s disposition of this case on remand, control this case and mandate the application of a test different from that enunciated in Forsyth I. Moreover, Mitchell argues that Harlow allows us to consider anew whether the interlocutory order denying qualified immunity may be appealed. Finally, Mitchell seeks a Writ of Mandamus on the issue of qualified immunity.

We hold that Forsyth I, as the law of the case, continues to control our disposition of this case. In our view, Nixon and Harlow simply do not demand an approach or result different from that directed by us in Forsyth I and followed by the district court on remand. Accordingly, we affirm the district court's denial of absolute immunity and dismiss, as non-appealable, Mitchell’s interlocutory appeal of the district court’s denial of qualified immunity. Finally, we deny petitioner Mitchell’s request for a Writ of Mandamus.

I.

Keith Forsyth (“Plaintiff/Appellee”) initiated this action in September, 1972 claiming that former Attorney General John N. Mitchell (“Defendant/Appellant”)¹ violated his rights under the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520 and the First, Fourth, Sixth and Ninth Amendments to the Constitution. The alleged violation stemmed from Mitchell’s authorization of a warrantless electronic surveillance in which Forsyth’s telephone conversations with William Davidon, a professor at Haverford College and allegedly a member of an organization under investigation, were overheard. Following discovery, the district court denied cross-motions for summary judgment. Forsyth v. Kleindienst, 447 F.Supp. 192 (E.D.Pa.1978). The court also rejected Mitchell’s claims of absolute immunity and qualified immunity. Id. at 198-99, 201.

Mitchell filed a motion for reconsideration and, alternatively, sought certification of the district court’s opinion for interlocutory appeal under 28 U.S.C. § 1292(b); he was unsuccessful in both attempts. A notice of appeal was subsequently filed whereupon plaintiff moved to dismiss the appeal because it was interlocutory. This court held that “the denial of defendants’ motions for summary judgment on the issue of absolute immunity is appealable under the Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949) collateral order doctrine,” but dismissed the defendant’s interlocutory appeal from the denial of qualified immunity. Forsyth I, 599 F.2d at 1208 (citation added).

On the merits of the appeal in Forsyth I, this court rejected Mitchell’s argument that “[a]s the head of an executive agency, the Department of Justice, ... he should not be held liable for what he characterizes as an error in judgment.” Id. at 1209, 1209-10. We analyzed his absolute immunity claims primarily in the context of Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978) (“Butz ”) and Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) (“Imbler ”). We interpreted Butz and Imbler as providing the shield of absolute immunity only in situations where an official charged with a constitutional violation is engaged in adjudicative or prosecutive functions. Thus, in Forsyth I, we held as follows:

Our reading of Butz and Imbler leads us to the conclusion that the Attorney General’s decision to authorize the warrant-less electronic surveillances is protected by the shield of absolute immunity when it is made in the context of a quasi-judicial function; however, when the decision arises in the context of a purely investigative or administrative function, the decision will not be protected by absolute immunity.

Forsyth I, 599 F.2d at 1215.

Accordingly, the case was remanded to the district court to decide the narrow question of whether Mitchell’s authorization of the wiretap was closely connected with the judicial process and whether the wiretap was necessary to initiate a criminal prosecution.

On that issue, a hearing was held, but Mitchell failed to present any evidence which would support a quasi-judicial purpose for the surveillance. Indeed, the district court stressed that

[pjrior to the hearing of January 8, 1982, the government filed a memorandum of law, an affidavit, and several accompanying exhibits. At no time, however, did the government present any evidence, documentary, testimonial, or otherwise, suggesting that defendant Mitchell meant anything other than what was said in his deposition.

Forsyth v. Kleindienst, 551 F.Supp. 1247, 1252 (1982).

During his deposition testimony Mitchell revealed the following uncontested facts:

[T]he Davidon wiretap had an investigatory purpose, i.e., to obtain more details about the suspected plot to destroy utility tunnels in Washington, D.C. and to kidnap National Security Council Chairman Henry Kissinger so that the Justice Department, acting through the FBI, might thwart these schemes.

Id. (emphasis added). Moreover, Mitchell admitted that he did not know whether a criminal proceeding had been initiated or whether a criminal investigation was pending regarding Davidon or the other alleged utility tunnel and Kissinger plot members at the time he authorized the wiretaps. The crucial testimony on this issue is quoted below:

Q. When you received this request [from FBI Director J. Edgar Hoover for authorization for the Davidon wiretap], did it occur to you that the information that could be obtained or would be obtained as a result of this tap could be used in a criminal prosecution?

A. It was not the point of my focus in authorizing the electronic surveillance.

Q. What was the point of your focus?

A. The gathering of information necessary to protect the national security and to get information on foreign intelligence.

Volume II Appendix (“II. App.”) at 106 (emphasis added); see also II. App. at 92-96, 104-06; 123-26; 154-55. Because Mitchell testified, without repudiation, that the wiretap was authorized for national security purposes, not for any prosecutorial quasi-judicial function, the district court took him at his word.

It concluded that “[t]he purpose of the wiretap was prevention — not prosecution,” Forsyth v. Kleindienst, 551 F.Supp. at 1252, and that “Attorney General Mitchell was not in any way weighing factors in order to determine whether and whom to prosecute.” Id. Thus, applying the Forsyth I test, which combined the “special function” tests of Butz and Imbler, the district court held that absolute immunity does not shield Mitchell from liability in the present action. Id. at 1253.

The district court also ruled against Mitchell on the issue of qualified immunity. Relying on Harlow, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982), the district court granted summary judgment to the plaintiff because it believed that defendant Mitchell did not meet the test enunciated in Harlow. The district court reasoned that because Mitchell failed to establish an objective basis for believing his action to be lawful at the time he authorized the wiretaps in question, the clearly established law made his warrantless wiretapping an unconstitutional violation of plaintiffs rights. Forsyth v. Kleindienst, 551 F.Supp. at 1261.

Applying the Forsyth I test and the “special function” approach of Butz and Imbler, the district court denied defendant Mitchell’s claim for absolute immunity. It also denied him qualified immunity and granted plaintiff summary judgment on the issue of liability.

Although the case was set for trial on the issues of damages, the district court declined to certify its decision for interlocutory appeal and denied defendants’ Motion for a Stay of Trial pending appeal. Id. at 1263-66; Vol. I Appendix (“I. App.”) at 37-45. This court granted a stay, allowed the appeal on the absolute immunity issue, and referred the appealability of the qualified immunity issue to the merits panel. Forsyth v. Kleindienst, 700 F.2d 104-10 (1983). Mitchell also filed a Petition for Mandamus on the issue of qualified immunity. That petition, No. 83-3150, has been consolidated and referred to this panel for resolution.

II. Absolute Immunity

We will consider first whether the former Attorney General John N. Mitchell should be absolutely immune from civil liability for permitting the domestic electronic surveillance of Keith Forsyth’s telephone conversations with William Davidon without prior judicial authorization. The denial of a claim of absolute immunity is an interlocutory order appealable under the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); however, this is the second time that defendant Mitchell presents this issue to us on interlocutory appeal. The last time, in Forsyth I, we enunciated a test and directed the district court to apply that test in deciding whether Mitchell was performing a quasi-judicial function in authorizing the wiretap and therefore entitled to absolute immunity-

Following our directive, the district court correctly applied the test enunciated in Forsyth I in denying Mitchell absolute immunity. Mitchell argues now that two recent intervening decisions of the Supreme Court control and make the Forsyth I test inappropriate. Mitchell concludes that under Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 341 (1982) and Harlow & Butterfield v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) we must find him absolutely immune from civil liability. Mitchell concedes, however, that but for his interpretation in Nixon and Harlow, the district court’s decision — not having been based on a clearly erroneous finding of fact or misapplication of our directive in Forsyth I — would have to be affirmed. Thus, we must decide whether the Supreme Court’s recent decisions of Nixon and Harlow require us to modify our Forsyth I test and the result in this case.

Nixon expressly concerned the scope of the former President Richard Nixon’s immunity. The finding of absolute immunity for Nixon turned on his former office as President. The Supreme Court held that the former President of the United States is protected by the doctrine of absolute immunity from damages arising from his official acts because of his unique and singular position in our constitutional system. Nixon, 102 S.Ct. at 2701. The pertinent language of its holding in Nixon is as follows:

We consider this immunity a functionally mandated incident of the President’s unique office, rooted in the constitutional tradition of the separation of powers, and supported by our history.

The President occupies a unique position in the constitutional scheme. Article II of the Constitution provides that “[t]he executive Power shall be vested in a President of the United States ...” This grant of authority establishes the President as the chief constitutional officer of the Executive Branch, entrusted with supervisory and policy responsibilities of utmost discretion and sensitivity.

In arguing that the President is entitled only to qualified immunity, the respondent relies on cases in which we have recognized immunity of this scope for governors and cabinet officers. E.g., Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895; Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90. We find these cases to be inapposite. The President’s unique status under the Constitution distinguishes him from other executive officials.

Because of the singular importance of the President’s duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government.

Nixon, 102 S.Ct. at 2701-03 (emphasis added; footnotes omitted). See also Harlow, 102 S.Ct. at 2735.

In carving out a shield of absolute immunity for the former President, the Court continued to apply the standards enunciated in Butz, 438 U.S. at 478, 98 S.Ct. at 2896 and Imbler, 424 U.S. at 409, 96 S.Ct. at 985. In Nixon the Court devoted several pages of analysis to demonstrating how its holding there was in fact consistent with Butz and Imbler. The Court distinguished between the President and cabinet officers such as the Attorney General, declaring that the President’s “unique status under the Constitution distinguishes him from other executive officials.” Nixon, 102 S.Ct. at 2702. Consequently, we reject defendant Mitchell’s assertion that Nixon controls this case and mandates a result different from that reached by the district court.

Having decided that Nixon fails to provide Mitchell with an escape from the law of the case and binding effect of Forsyth I, we turn to his reliance on Harlow for his claim of absolute immunity. Defendant Mitchell uses Harlow for support of a “special functions” analysis. In Harlow, the Court reiterated its prior recognition “that the judicial, prosecutorial, and legislative functions require absolute immunity.” Harlow, 102 S.Ct. at 2735. Therefore, the Court declined to grant the undifferentiated extension of absolute immunity to a President’s aides. Defendant concedes however in his Motion to Stay Trial pending appeal that a “special functions” argument already has been considered and “sub silentio rejected” by this court in Forsyth I. Defendant’s Motion to Stay Trial at 9.

In Forsyth I we considered and interpreted the Butz “special functions” approach to provide absolute immunity to an Attorney General engaged in a quasi-judicial function. That approach was reaffirmed by the Supreme Court in Nixon and recognized with approval in Harlow. See Harlow, 102 S.Ct. 2733; Nixon, 102 S.Ct. 2700. As Judge Sloviter observed, “[t]he references in Harlow to the absolute immunity which might be accorded on the basis of ‘special functions’ make it clear that the Court did not announce any new law but merely reiterated what it had previously said in Butz v. Economou.” Forsyth v. Kleindienst, 700 F.2d at 104, 109 (Opinion Sur Grant of Stay) (Sloviter, J., dissenting). Thus, we reject Appellant’s argument that Harlow requires a result different from that reached by the district court in its application of our Forsyth I test.

For these reasons we believe that the district court did not err in denying Mitchell’s absolute immunity claim for the unwarranted electronic surveillance of Forsyth’s telephone conversation with William Davidon.

III. Appealability of Summary Denial of Qualified Immunity

Defendant Mitchell appeals also the district court’s summary denial of his qualified immunity claim. This interlocutory appeal was previously before us in Forsyth I and we found it non-appealable.² The Supreme Court denied certiorari, Forsyth v. Kleindienst, 453 U.S. 913, 101 S.Ct. 3147, 69 L.Ed.2d 997 (1981), and denied rehearing, 453 U.S. 928, 102 S.Ct. 892, 69 L.Ed.2d 1025 (1981) on Forsyth I. As stated earlier, Forsyth I, as the law of this court, binds us unless the Supreme Court has mandated otherwise.

Mitchell argues that, at the time of our Forsyth I opinion, the doctrine of qualified immunity did not protect a defendant from the burdens of trial, but only from liability. Forsyth I, 599 F.2d at 1209. Moreover, Mitchell asserts that Harlow has reformulated the qualified immunity doctrine mandating its appealability as a final order within 28 U.S.C. § 1291. Additionally, he relies on McSurely v. McClellan, 697 F.2d 309, 315-16 (D.C.Cir.1982) (per curiam) as persuasive support for his argument.

While sharing the concern for protecting government officials from insubstantial claims, we adopt the view of Judge Sloviter “that concern over subjecting government officials to unwarranted claims is best handled through adjustment of the substantive rules of law, as the Supreme Court has recently done, and not by changing the established practice of limiting appellate review of interlocutory decisions.” Forsyth v. Kleindienst, 700 F.2d at 110 (1983) (Opinion Sur Grant of Stay) (Sloviter, J., dissenting).

Qualified or “good faith” immunity is an affirmative defense which the particular official who seeks to rely on it must plead. The pre-Harlow qualified or “good faith” immunity contained both subjective and objective elements. “The objective element involves a presumptive knowledge of and respect for ‘basic, unquestioned constitutional rights.’ ” Harlow, 102 S.Ct. at 2737, quoting Wood v. Strickland, 420 U.S. 308, 320, 95 S.Ct. 992, 999, 43 L.Ed.2d 214 (1975). The Court in Harlow indicated that the subjective element referred to “permissive intentions” and it reasoned that “[t]he subjective element of the good faith defense frequently has proved incompatible with the [Supreme Court’s] admonition in Butz [v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895] that insubstantial claims should not proceed to trial.” Harlow, 102 S.Ct. at 2737. Therefore, in Harlow, the Supreme Court dropped the subjective fact-oriented element of qualified immunity and reformulated the doctrine in terms of objective good faith.

Because of Harlow a summary judgment motion initiated by a defendant government official can now be granted despite a plaintiff’s claim that the government official lacked subjective good faith in his challenged actions. Thus, a government official may avoid insubstantial claims that are based on claims alleging the absence of subjective good faith. We interpret Harlow as encouraging the summary disposition of insubstantial claims brought against government officials, not as relaxing the rule limiting interlocutory appeals.

Moreover, we do not find Mitchell’s reliance on McSurely v. McClellan, 697 F.2d 309 (D.C.Cir.1982) (per curiam) persuasive support for allowing an interlocutory appeal of a denial of qualified immunity. McSurely holds that “appellate review of a denial of a motion for summary disposition must be available to ensure that government officials are fully protected against unnecessary trials under qualified immunity on the same basis as for absolute immunity.” Id. at 316. It emphasized that under Harlow “part of the purpose of immunity, whether absolute or qualified, is to shield government officials from ‘the risks of trial — distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service.’ ” Id., quoting Harlow v. Fitzgerald, 102 S.Ct. at 2738. Thus, the McSurely court concluded that, under Harlow, the Supreme Court “consciously sought to facilitate summary disposition of insubstantial claims against government officials.” Id.

In the case before us, however, we are without the insubstantial claims which concerned the Harlow and McSurely courts. The district court here did not defeat a defendant’s motion for summary judgment simply because a plaintiff alleged a subjective lack of good faith on the part of a defendant. Instead, the district court relied on the new objective standard enunciated in Harlow and found defendant Mitchell liable on summary judgment. Therefore, Harlow and McSurely are distinguishable from this case.

At this juncture it is again appropriate to quote from Judge Sloviter’s dissenting opinion from the majority’s decision to deny the motion to dismiss the appeal of this issue and instead refer consideration of it to the merits panel:

The pages of current legal publications are replete with justified concern about the crushing burden under which the courts of appeals are operating. [We] fear that the decision of the panel today to allow this appeal under the mantle of the Cohen collateral doctrine order and to deny the motion to dismiss [would] open the sluices to a flood of interlocutory appeals crushing us even further under a weight of our own making.

Forsyth v. Kleindienst, 700 F.2d at 110. (Opinion Sur Grant of Stay) (Sloviter, J., dissenting).

We decline to subject our colleagues to unnecessary additional burdens by opening the sluice gates; thus, mindful of our binding precedent in Forsyth I and the large number of state, local, and federal officials that often rely on claims of immunity, we will dismiss defendant’s challenge to the district court’s denial of his claim to qualified immunity. We will also deny, for the same reasons, defendant’s Petition for Writ of Mandamus.

IV.

Accordingly, we will affirm the district court’s denial of absolute immunity, dismiss the appeal of the denial of qualified immunity, and deny the Petition for Writ of Mandamus.

1 . Former Attorney General Richard G. Kleindienst and former Acting Director of the Federal Bureau of Investigation ("FBI”), L. Patrick Gray, 3rd, were also named originally as defendants. Plaintiff subsequently admitted that the complaints against them should be dismissed, and the appropriate court order was later entered. Two FBI employees, E. David Porter and Albert Cooper, also had been named defendants in an amendment to Forsyth's original complaint, but they too were dismissed.

2 . The dissent stresses the fact that this is an old case and that the facts are not disputed; and therefore, we ought put this case to rest now. However, we cannot base the appealability of cases based on the length of time that the parties have been involved in litigation.