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10/21/83 Bertram Zweibon, Et Al., v. John N. Mitchell

October 21, 1983

BERTRAM ZWEIBON, ET AL., APPELLANTS

v.

JOHN N. MITCHELL, INDIVIDUALLY AND AS ATTORNEY GENERAL OF THE UNITED STATES, ET AL. 1983.CDC.276



Before Harlow, qualified immunity was denied an official who

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Appeal from the United States District Court for the District of Columbia.

APPELLATE PANEL:

Edwards, Circuit Judge, MacKinnon, Senior Circuit Judge, and Swygert,* Senior Circuit Judge, United States Court of Appeals for the Seventh Circuit. Opinion for the Court filed by Senior Circuit Judge MacKinnon. Dissenting opinion filed by Senior Circuit Judge Swygert.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MACKINNON

MacKINNON, Senior Circuit Judge:

This is our fourth foray into this protracted litigation. Past history notwithstanding, this decision should dispose of the matter.

Appellants, members of the Jewish Defense League , brought this action in 1971 against John N. Mitchell, *fn1 who as Attorney General authorized warrantless electronic surveillance of the JDL during 1970 and 1971. Appellants now challenge the district court's order, entered after our third remand, which dismissed their complaint pursuant to Fed. R. Civ. P. 37(b) for their refusal to comply with deposition notices. Because we find that Mitchell is entitled to qualified immunity under the Supreme Court's recent decision in Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982), we affirm the decision of the district court without reaching the question whether dismissal was an appropriate sanction. I. FACTUAL BACKGROUND

The facts of this case need only be sketched here, as they are set out in exhaustive detail in our opinion in Zweibon v. Mitchell (Zweibon I), 516 F.2d at 594 (D.C. Cir. 1975) (en banc), cert. denied, 425 U.S. 944, 48 L. Ed. 2d 187, 96 S. Ct. 1684 (1976). In 1970 and 1971, the telephones of the JDL were tapped by the FBI, which acted without a warrant under a specific directive from Mitchell. *fn2 Mitchell, in turn, had responded to official requests for such authorization from J. Edgar Hoover, who adverted to Soviet complaints about sometimes violent JDL demonstrations against Soviet personnel and installations in New York. *fn3 Electronic surveillance was sought in order to forestall deterioration in American-Soviet relations and to avoid threatened retaliation against American citizens in Russia. See id. at 608-09 & nn.20-23; Zweibon v. Mitchell, 363 F. Supp. 936, 939-42 (D.D.C. 1973). Against the advice of his legal counselors, *fn4 Mitchell authorized the warrantless taps on September 15, 1970. *fn5

The first wiretap was in place during the month of October 1970. Zweibon I, 516 F.2d at 609. The volume of JDL protests increased during the last

On May 12, 1971, indictments were returned against a number of JDL members -- including five of the appellants in this action -- on federal charges under the Gun Control Act of 1968. *fn6 Prosecutors disclosed the existence of the taps on June 18, 1971, during pretrial proceedings in two consolidated criminal cases stemming from the indictments. *fn7 In apparent violation of Mitchell's own directive against overhearing conversations of a federal criminal defendant or his attorney, *fn8 the taps continued after indictment and even after their disclosure by the prosecution. *fn9 There is, however, no evidence to suggest that Mitchell knew surveillance had not been terminated upon indictment as he had previously directed. *fn10 See Zweibon I, 516 F.2d at 610-11 & n.34. II. PROCEDURAL HISTORY

Shortly after the surveillance was revealed, appellants filed this action for damages allegedly flowing from the overhearings. The taps were alleged to have violated appellants' rights under both the Fourth Amendment and Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. ยงยง 2510-20 (1976). The action was promptly stayed pending the Supreme Court's decision in United States v. United States District Court (Keith), 407 U.S. 297, 92 S. Ct. 2125, 32 L. Ed. 2d 752 (1972). On June 19, 1972, the Supreme Court decided Keith, holding that there exists no exception from the warrant requirement for surveillance justified solely on the basis of domestic threats to the national security. Id. at 321. The Court expressly left open, however, "the issues which may be involved with respect to activities of foreign powers or their agents," id. at 322 (footnote omitted), and it did not articulate precise definitions of "domestic" and "foreign" threats to national security. See id. at 309 n.8.

A year later, the district court granted Mitchell's motion for summary judgment. 363 F. Supp. 936 (D.D.C. 1973). The court distinguished Keith as "dealing only with the domestic aspects of our national security," id. at 943, and concluded that warrantless surveillance of the JDL was a lawful "exercise of the President's constitutional authority to conduct the nation's foreign relations and his power to protect the national security." Id. at 942. The court also ruled that Title III of the Omnibus Crime Control and Safe Streets Act did not address itself to "national security surveillances" that have "foreign aspects." Id. at 943.

This court, sitting en banc, reversed. Zweibon I, 170 U.S. App. D.C. 1, 516 F.2d 594 (1975). Although all eight judges found the wiretaps to be illegal, the appeal spawned six separate opinions on the constitutional and statutory issues. *fn11 We remanded for consideration of affirmative defenses not yet reached by the district court.

On remand appellants filed a demand for a jury trial on the remaining issues. The district court struck the demand (see III App. 193), apparently on the ground that it was untimely. See Defendants' Motion to Strike Plaintiffs' Demand for Jury Trial (III App. 192). Upon appellants' subsequent petition for mandamus, we concluded that appellants had not waived their right to demand a jury trial on the affirmative defense of good faith immunity. In re Zweibon (Zweibon II), 184 U.S. App. D.C. 167, 565 F.2d 742 (D.C. Cir. 1977) (per curiam).

While the mandamus petition was pending, Mitchell revived his motion for summary judgment. See Defendants' Renewed Motion for Summary Judgment (III App. 348). He argued that the decisions in Keith and Zweibon I should not be given retroactive application to either the statutory or the constitutional claims. The district court agreed and granted his renewed motion for summary judgment. Zweibon v. Mitchell, 444 F. Supp. 1296, 1298-1300 (D.D.C. 1978).

We again reversed. Zweibon v. Mitchell (Zweibon III), 196 U.S. App. D.C. 265, 606 F.2d 1172 (D.C. Cir. 1979), cert. denied, 453 U.S. 912, 69 L. Ed. 2d 997, 101 S. Ct. 3147 (1981). While agreeing with the district court that our application in Zweibon I of Title III to unconstitutional national security surveillance "represented a sharp break in the law which should be restricted to prospective effect," id. at 1182, we found that equitable considerations weighed in favor of applying Keith and Zweibon I retroactively to the constitutional claims. Id. at 1177-81. Despite the existence of contradictory lower court rulings, we rejected Mitchell's claim that the outcome in Keith and Zweibon I was not clearly foreshadowed. Id. at 1179. However, we observed that while

contradictory lower court rulings might not establish that a decision was not clearly foreshadowed and should not have retroactive effect, . . . such a split of decisions might provide reasonable grounds for taking actions based on one or the other position for official immunity purposes.

Id. at 1181 n.49 (emphasis added). We explicitly noted that any concerns we might entertain for the fairness of retroactivity in this case were allayed by the potential availability of the good faith immunity defense. See id. at 1180-82 & nn.49-50. Accordingly, we again remanded for consideration of Mitchell's good faith defense.

On the third remand, the district court held a status conference. At that time, counsel for Mitchell was permitted, with the qualified consent of appellants, see note 13 infra, to proceed with discovery. Record of Status Call, supra note 1, at 13 (IV App. 78). Counsel advised that paper and deposition discovery would be sought, with a view to filing a new motion for summary judgment based on an expanded record following the disposition of Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982), which had just been argued before the Supreme Court. *fn12 See Record of Status Call, supra note 1, at 5-8, 12 (IV App. 70-73, 77). In particular, counsel declared his intention to depose all the appellants. *fn13 Id. at 10 (IV App. 75). Counsel for appellants objected to these proposed depositions as burdensome and unnecessary, but the court refused to circumscribe appellee's discovery at that time. Id. at 12-13 (IV App. 77-78).

During December 1981, deposition notices, interrogatories, and requests for admissions were served on all appellants. Docket Entries at 6-8 (IV App. 11-13). Appellants responded to the paper discovery but moved for a protective order quashing the notices of deposition. Motion for Protective Order (IV App. 54). Appellants contended that the proposed schedule was too intensive and the information sought by appellee was irrelevant to the remaining issues in the case. See Memorandum in Support of Plaintiffs' Motion for Protective Order (IV App. 55-65). Mitchell responded by arguing, inter alia, that depositions aimed at revealing the "true nature" of appellants' conduct with respect to Soviet installations might be relevant to the objective reasonableness of his decision to authorize the surveillance. See Defendant's Opposition to Plaintiffs' Motion for a Protective Order at 5-6 (IV App. 113-14). Mitchell also contended that ...


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