The opinion of the court was delivered by: GRIESA
On June 20, 1978 defendant United States of America filed a motion:
". . . for an order pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure dismissing the damage claims in the Second Amended complaint with respect to informant activity for lack of subject matter jurisdiction."
The "informant activity" referred to relates to informants used by the Federal Bureau of Investigation.
The principal grounds urged in the Government's original brief on this motion were that plaintiffs' claims as to the FBI informants are barred by the discretionary function exception, and by the exception relating to claims arising out of misrepresentation and deceit and interference with contract rights, in the Federal Tort Claims Act. 28 U.S.C. §§ 2680(a) and (h). The Government also reiterated an argument which had been raised and decided against the Government on an earlier motion that the claims based on informant activity are barred by 28 U.S.C. § 2401(b) because of alleged failure to file a timely administrative claim.
While the motion was pending, the Court of Appeals handed down its decision in Birnbaum v. United States, 588 F.2d 319 (2d Cir. 1978), holding that there is no cause of action under the Federal Tort Claims Act for violations of the federal Constitution, since the Constitution is not deemed to be "the law of the place where the act or omission occurred" within the meaning of 28 U.S.C. § 1346(b). In the same opinion, however, the Court of Appeals held that surreptitious opening of mail by the CIA gave rise to a valid cause of action for invasion of privacy under the Federal Tort Claims Act, and that the cause of action was not barred by the discretionary function exception in 28 U.S.C. § 2680(a).
Following the Birnbaum decision, on November 20, 1978 the Government filed a "Supplemental Notice of Motion" alleging the following additional bases for dismissal of the damage claims against the United States for informant activity that the Federal Tort Claims Act does not waive sovereign immunity for claims arising under the constitution, and plaintiffs' claims for informant activity do not state a claim under state law. The Government's accompanying Supplemental Memorandum cited Birnbaum on the constitutional tort issue, and made certain arguments about alleged infirmities in respect to plaintiffs' claims under state law theories of prima facie tort, trespass and conversion, and invasion of privacy.
For the reasons hereafter set forth, the Government's motion is denied.
This is the second motion attacking the Federal Tort Claims Act causes of action. The first motion was filed in May 1976, and sought to forestall the filing of the First Amended Complaint, which introduced claims against the United States under the Federal Tort Claims Act. The Second Amended Complaint was filed in early July 1976 to clarify certain ambiguities in the First Amended Complaint. The Government's motion to preclude damage claims against the United States was denied on July 29, 1976.
Thereafter, in connection with plaintiffs' motion for production of informant files, the Government advanced various arguments to the District Court, the Court of Appeals, and the Supreme Court about the legal infirmity of the damage claims against the United States, particularly in relation to informant activity.
However, following the Supreme Court's denial of certiorari on the informant file motion, and contemporaneously with the initiation of contempt proceedings against the Attorney General, the Government filed its new motion seeking to dismiss for lack of subject matter jurisdiction the damage claims against the United States with respect to informant activity. Certain of the points raised particularly the argument about the statute of limitations were raised two years ago and decided against the Government. However, there are other points I. e., the arguments about the discretionary function exception, as applied to the FBI activity, the misrepresentation and deceit exception, and the alleged inapplicability of the theories of trespass, conversion and invasion of privacy which had never been made, at least to the District Court, prior to the filing of the present motion in June 1978.
The following is a summary of the allegations in the Second Amended Complaint relevant to the present motion.
Par. 3 alleges that the Socialist Workers Party ("SWP") is an unincorporated political party with members throughout the United States, having its national office in New York City. Par. 4 alleges that the Young Socialist Alliance ("YSA") is an unincorporated, nationwide organization of people 29 years of age and under, having its national office in New York City. Pars. 3 and 4 allege that the SWP and YSA engage in lawful forms of political activity, education and organizing.
Pars. 5-13 describe the individual plaintiffs as follows:
Jack Barnes Member and National Secretary of the SWP.
Barry Sheppard Member and National Organization Secretary of the SWP.
Farrell Dobbs Member and former National Secretary of the SWP, and three-times candidate of the SWP for President of the United States.
Joseph Hansen Member of the National Committee of the SWP.
Peter Camejo Member of the SWP, and 1976 candidate for President of the United States.
Willie Mae Reid Member of the SWP and 1976 candidate for Vice President of the United States.
Linda Jenness Member of the SWP and 1972 candidate for President of the United States.
Andrew Pulley Member of the SWP and 1972 candidate for Vice President of the United States.
Norman Oliver Member of the SWP and 1973 candidate for Mayor of New York City.
Evelyn Sell Member of the SWP.
Morris Starsky Member of the SWP.
Charles Bolduc Michigan organizer for the SWP during 1972 election campaign.
Certain defendants are named by official title, including the Attorney General of the United States, the Director of the Federal Bureau of Investigation, the Director of Central Intelligence, the Postmaster General, and others. Former President Nixon and former Attorney General John Mitchell and others are named as defendants individually, including three employees of the FBI, allegedly connected with the New York office John F. Malone, Arthur J. Greene, Jr., and George P. Baxtrum, Jr. There is a category of defendants designated "Unknown Agents of the United States Government." The United States of America is also named as a defendant.
Pars. 19-73B contain the allegations of alleged wrongdoing.
Par. 19 alleges that commencing in 1938 and continuously thereafter the defendant officials, including the Director of the FBI, caused agents of the United States to engage in a systematic campaign of excessive interrogation, employment discrimination and other harassment against the SWP, the YSA, their members, candidates, and supporters, and to spy upon them by warrantless electronic surveillance, unauthorized mail covers, burglary, secret government agents, and other similar means.
Par. 20 alleges that commencing in 1961 J. Edgar Hoover and others agreed to implement and expand the activities referred to in Par. 19 by establishing and operating within the FBI the "Socialist Workers Party Disruption Program" and related programs designated as COINTELPRO programs.
Par. 21 alleges that during the months July-November 1970 a group of defendants consisting of President Nixon, Attorney General Mitchell and others agreed to implement and expand the above described activities by intensifying the use of burglaries and other illegal tactics.
Par. 23 alleges that, pursuant to the agreements and plans described in Pars. 19-21, the defendant officials caused the specific activities and events described in Pars. 24-70.
Par. 26 alleges that the Director of the FBI and other defendant officials caused government informers to secretly infiltrate the SWP and YSA and induced members and supporters of SWP and YSA to become secret government informers, all for the purpose of spying, interfering with lawful organizing and political campaigning, and attempting to control and direct the activities of the SWP and YSA. Par. 27 alleges that many of the secret government informers were and are active members of the SWP and the YSA and participate in the formulation of policy and the selection of electoral candidates.
Pars. 28-32 allege that the Director of the FBI and his agents have singled out for interrogation and surveillance the SWP, the YSA, and hundreds of their members, electoral candidates, and supporters, and used pressure, threats, bribery and other enticements to induce SWP and YSA members and supporters to withdraw their support from these organizations. It is alleged that FBI agents also contacted and interrogated landlords, employers, prospective employers, families, and friends of SWP and YSA members and supporters, for the purpose of provoking hostility and discrimination against SWP and YSA members and supporters.
Pars. 33-39 allege that the FBI caused plaintiffs Sell and Starsky to be discharged from teaching positions.
Par. 40 alleges that FBI agents circulated anonymous letters concerning the SWP and YSA and their members and carried out other operations designed to provoke hostility against and within these organizations and their membership, and thereby to disrupt the SWP and YSA and prevent their growth.
Par. 41 alleges that the activities of the FBI were unrelated to detecting crime or to any ...