APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. PETITION FOR WRIT OF MANDAMUS.
Weis, Higginbotham and Sloviter, Circuit Judges.
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.
Keith Forsyth ("Plaintiff/Appellee") initiated this action in September, 1972 claiming that former Attorney General John N. Mitchell ("Defendant/Appellant")*fn1 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, 93 L. Ed. 1528, 69 S. Ct. 1221 (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 "as 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, 57 L. Ed. 2d 895, 98 S. Ct. 2894 (1978) (" Butz ") and Imbler v. Pachtman, 424 U.S. 409, 47 L. Ed. 2d 128, 96 S. Ct. 984 (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 warrantless 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
prior 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.
During his deposition testimony Mitchell revealed the following uncontested facts:
The 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 "the 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 plaintiff's rights. Forsyth v. Kleindienst, 551 F. Supp. at 1261.
Applying the Forsyth I test and the "special functions" 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.
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, 93 L. Ed. 1528, 69 S. Ct. 1221 (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 ...