The opinion of the court was delivered by: LASKER
This suit is a residue of the resistance to the Vietnam war.
Plaintiffs, eight "former and present members of the "New Left'," (Complaint P 4), filed this action against the United States, several federal governmental agencies, various federal governmental officials
and the New York Telephone Company (NYT) alleging break-ins and burglaries of plaintiffs' homes and offices, physical intimidation and harassment, wiretaps, mail openings, and other forms of illegal surveillance. They seek damages and injunctive relief for alleged past and continuing violations of their rights secured by the Constitution, federal and state statutes, and the common law.
A number of motions are pending. Former President Richard Nixon moves to dismiss the complaint on the grounds that he is immune from liability; former Attorney General John Mitchell moves to dismiss the complaint against him on the grounds it is time barred; former Acting Director of the Federal Bureau of Investigation (FBI) L. Patrick Gray moves to dismiss the complaint against him on the grounds that he is not subject to the jurisdiction of New York courts; NYT moves to dismiss the complaint against it on the grounds that the state action requirement for jurisdiction over the civil rights claims against it is not satisfied; and the United States and the federal agencies move to dismiss on the grounds that the Court lacks jurisdiction over the claims against them because plaintiffs failed to exhaust their administrative remedies as required under the Federal Tort Claims Act, and because the agencies cannot be sued in their own names. All the defendants move to dismiss on the grounds that the complaint is not sufficiently specific to state a claim of constitutional or civil rights violations. Finally, Gray, Mark Felt and Edward Miller move to stay the action as to them pending the conclusion of the criminal proceedings concerning the same allegations now pending in the United States District Court for the District of Columbia.
Nixon moves to dismiss the complaint against him on the grounds that the doctrine of separation of powers makes him absolutely immune from suits for damages resulting from action he took while President. Citing a number of district and circuit court cases that have held him immune in actions seeking judicial review of his discretionary actions taken as President, as opposed to purely ministerial actions,
he argues that the development of the surveillance program alleged to have been directed against the plaintiffs was a discretionary action and is therefore not subject to judicial review.
However, each of the lower court cases cited by Nixon was decided prior to the Supreme Court decision in Butz v. Economou, 438 U.S. 478, 98 S. Ct. 2894, 57 L. Ed. 2d 895 (1978), which, together with Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974), controls the outcome of the immunity question here.
In Scheuer, the Supreme Court held that the governor of Ohio and other officials of the executive branch of that state's government enjoyed only a qualified immunity from 42 U.S.C. § 1983 liability in a suit brought by the representatives of three students killed during the Kent State University disorders. 416 U.S. at 247, 94 S. Ct. 1683.
In Butz v. Economou, 438 U.S. 478, 98 S. Ct. 2894, 57 L. Ed. 2d 895 (1978), the Court addressed the issue whether the Secretary of Agriculture and other federal officials of that Department were entitled to absolute immunity in a suit alleging that they instituted an investigation and administrative proceeding against Economou to retaliate for his criticism of the Department. The Court held that
"in a suit for damages arising from unconstitutional action, federal executive officials exercising discretion are entitled only to the qualified immunity specified in Scheuer, subject to those exceptional situations where it is demonstrated that absolute immunity is essential for the conduct of the public business."
Id. at 507, 98 S. Ct. at 2911 (footnote omitted).
In reaching this conclusion, the Court rejected the government's position that the federal officials sued in Butz were absolutely immune. The Court stated:
". . . in the absence of congressional direction to the contrary, there is no basis for according to federal officials a higher degree of immunity from liability when sued for a constitutional infringement as authorized by Bivens than is accorded state officials when sued for the identical violation under § 1983. . . . The pressures and uncertainties facing decisionmakers in state government are little if at all different from those affecting federal officials. We see no sense in holding a state governor liable but immunizing the head of a federal department; in holding the administrator of a federal hospital immune where the superintendent of a state hospital would be liable; in protecting the warden of a federal prison where the warden of a state prison would be vulnerable; or in distinguishing between state and federal police participating in the same investigation. Surely, Federal officials should enjoy no greater zone of protection when they violate Federal constitutional rules than do State officers. . . . To create a system in which the Bill of Rights monitors more closely the conduct of state officials than it does that of federal officials is to stand the constitutional design on its head."
Id. 438 U.S. at 500-01, 504, 98 S. Ct. at 2909-2910, 2911 (emphasis in original) (footnote omitted). That state and federal officials should be treated alike for purposes of immunity is not new to American jurisprudence. Chief Justice Marshall posited the same principle in United States v. Burr, 25 Fed.Cas. 30, 34 (C.D.D.Va.1807) (No. 14,692d), when discussing whether a Subpoena duces tecum could issue to the President. In rejecting the argument that the president was not subject to process because the king was not subject to it, Marshall stated
"In this respect the first magistrate of the Union may more properly be likened to the first magistrate of a state (who) might be served with a subpoena ad testificandum."
Considering together the Scheuer holding that the highest official of the state is only qualifiedly immune from suit, and the Butz ruling that state and federal officials are to be treated alike for purposes of immunity, it follows necessarily that the highest official of the United States ordinarily enjoys a qualified immunity only.
However, Butz recognized an exception to its holding that executive officials were entitled to a qualified immunity, available in those situations in which an "absolute immunity is essential for the conduct of the public business." 438 U.S. at 507, 98 S. Ct. at 2911 (footnote omitted). It is not clear whether this language refers only to the situation present in Butz, in which the jobs of the officials sued were functionally equivalent to those of judges and prosecutors, or whether it was intended to apply also to a situation, not before the Butz Court, in which the action taken by the official was executive in nature, but nevertheless merited the protection of absolute immunity because of the unusual circumstances prompting it.
Whichever may be the proper construction, the conclusion that Nixon is not absolutely immune in this case is the same. Nixon does not argue that developing the alleged surveillance program was an exercise of a judicial or prosecutorial function of his former office, nor that it was "essential to the conduct of the public business."
A further consideration by the Butz Court supports the ruling that Nixon is only qualifiedly immune here. The Butz Court reasoned that
"the cause of action recognized in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (91 S. Ct. 1999, 29 L. Ed. 2d 619) (1971), would . . . be "drained of meaning' if federal officials were entitled to absolute immunity for their constitutional transgressions. Cf. Scheuer v. Rhodes, 416 U.S., at 248 (94 S. Ct. (1683) at 1692)."
438 U.S. at 501, 98 S. Ct. at 2908. It was implicit in the Bivens ruling, according to the Butz Court, that federal officials ought not be absolutely immune from damage suits, because
"If, as the Government argues, all officials exercising discretion were exempt from personal liability, a suit under the Constitution could provide no redress to the injured citizen, nor would it in any degree deter federal officials from committing constitutional wrongs. Moreover, no compensation would be available from the Government, for the Tort Claims Act prohibits recovery for injuries stemming from discretionary acts, even when that discretion has been abused."
Id. at 505, 98 S. Ct. at 2910 (footnote omitted).
Furthermore, the Butz Court reasoned, there is no basis on which to distinguish among federal officials because of their rank or office.
"It makes little sense to hold that a Government agent is liable for warrantless and forcible entry into a citizen's house in pursuit of evidence, but that an official of higher rank who actually orders such a burglary is immune simply because of his greater authority. Indeed, the greater power of such officials affords a greater potential for a regime of lawless conduct. Extensive Government operations offer opportunities for unconstitutional action on a massive scale. In situations of abuse, an action for damages against the responsible official can be an important means of vindicating constitutional guarantees."
Id. at 505-06, 98 S. Ct. at 2910. Nor has Nixon in fact shown any reason why the elevated rank of his office distinguishes his case from that of other high level federal officials such as those sued in Butz. Halperin v. Kissinger, 196 U.S. App. D.C. 285 at 303-304, 606 F.2d 1192, 1210-11 (D.C. Cir. 1979) ("In order to accept defendant Nixon's argument that he, as a former President, is absolutely immune from this suit, we would have to hold that his status as President sets him apart from the other high Executive officials named as defendants to this action. . . . we are unable to make that distinction").
For the reasons stated, Nixon's motion to dismiss is denied.