The opinion of the court was delivered by: HAIGHT
MEMORANDUM OPINION AND ORDER
Plaintiff, the Attorney General of the United States, brings this action to enjoin defendant Irish Northern Aid Committee ("INAC") from violating the provisions of the Foreign Agents Registration Act of 1938, as amended (the "Act"), 22 U.S.C. § 611 et seq., and its accompanying regulations, 28 C.F.R. § 5.1-.801. The Court has jurisdiction to issue permanent injunctive relief pursuant to 28 U.S.C. § 1345 and 22 U.S.C. § 618(f). The case is now before the Court on plaintiff's motion for summary judgment dismissing defendant's counterclaims and granting the relief sought in the complaint. Defendant opposes the motion and cross-moves for an order striking certain sections of an affidavit submitted in support of plaintiff's motion.
The general purpose of the Act is to protect the security and foreign relations of this country by requiring agents of foreign principals to identify themselves and disclose their activities. "Resting on the fundamental constitutional principle that our people, adequately informed, may be trusted to distinguish between the true and false, the (Act) is intended to label information of foreign origin so that hearers and readers may not be deceived by the belief that the information comes from a disinterested source." Viereck v. United States, 318 U.S. 236, 251, 63 S. Ct. 561, 568, 87 L. Ed. 734 (Black, J., dissenting). To accomplish these goals, the Act and the regulations promulgated thereunder specify in some detail who must register, the type and form of information that must be revealed, and the frequency with which supplemental registration statements must be filed. The Act vests initial responsibility for enforcing the Act in the Attorney General:
"Whenever in the judgment of the Attorney General any person is engaged in or about to engage in any acts which constitute or will constitute a violation of any provision of this subchapter, or regulations issued thereunder, or whenever any agent of a foreign principal fails to comply with any of the provisions of this subchapter or the regulations issued thereunder, or otherwise is in violation of the subchapter, the Attorney General may make application to the appropriate United States district court for an order enjoining such acts or enjoining such person from continuing to act as an agent of such foreign principal, or for an order requiring compliance with any appropriate provision of the subchapter or regulation thereunder. The district court shall have jurisdiction and authority to issue a temporary or permanent injunction, restraining order or such other order which it may deem proper. The proceedings shall be made a preferred cause and shall be expedited in every way."
22 U.S.C. § 618(f). In addition to these civil remedies, willful violation of any provision of the Act is a criminal offense. Id. § 618(a).
In accordance with the terms of the Act, INAC, an unincorporated association with main offices in the Bronx, first registered as an agent of a foreign principal in 1971. In its original registration statement, INAC described itself as "a voluntary group who collect what money and clothing we can and send it on for use by the oppressed people" of Northern Ireland, Jan. 1981 Statement, Exhibit B, P 4, and listed as its foreign principal the Northern Aid Committee, Belfast, Ireland. In addition, INAC's three "United States Representatives," the apparent equivalents of officers or directors, Messrs. Michael Flannery, John McCarthy, and John McGowan,
filed the required short-form registration statements.
While defendant has at least partially complied with the various requirements of the Act by filing required semi-annual reports, plaintiff complains that defendant has not filed the supplemental information, statements and documents necessary to make its registration statement and subsequent reports true and complete. Specifically, the amended complaint
alleges various violations by defendant of 22 U.S.C. § 612(a),
to wit, that defendant has failed to identify as a foreign principal the Irish Republican Army, Provisional Wing ("IRA") (P 7); that defendant has not fully identified its officers, employees, affiliates, branches, and other persons or groups acting for or in concert with it (P 8(a)); that defendant has not given the true and complete address of the Northern Aid Committee, its disclosed foreign principal (P 8(b)); that defendant has not described in detail its activities on behalf of a foreign principal (P 8(c)); that defendant has not provided an accurate accounting of its receipts and disbursements, including the source or recipient, as well as the amounts, purpose and time (PP 8(d)(e)); and that defendant has not filed accurate and complete statements regarding the preparation and dissemination of political propaganda, as that term is defined in § 1 of the Act (P 8(f)). The amended complaint further charges violations of 22 U.S.C. § 614,
in that defendant has disseminated written material containing political propaganda without first filing the statutorily mandated two copies as well as a signed statement setting forth the time, place and extent of the proposed dissemination; and has failed to label the material as required by § 614(b) (PP 10, 11). The Attorney General prays for injunctive relief compelling compliance, both with respect to future conduct and to past statements, insofar as they can be amended.
Defendant, in its amended answer, denies all allegations of the complaint, except that it admits that it is an "unincorporated committee" in the Bronx, and that on or about January 29, 1971 it complied with the directives of the Attorney General and registered as an agent of a foreign principal, thereafter filing semi-annual registration statements. In respect of these actions, defendant alleges that it did so "under duress," and "following a course of unabated harassment on the part of the plaintiff." In a series of affirmative defenses, the defendant alleges harassment and victimization by various illegal Government activities; that the Act is unconstitutional on its face and as applied to INAC; that the action is barred by laches; that the action results from illegal electronic surveillance; that defendant is exempt from the requirements of the act pursuant to 22 U.S.C. § 613(d)(3);
that the complaint fails to state a claim; and that the instant prosecution constitutes selective enforcement directed at defendant because of hostility to its beliefs and activities.
In addition, INAC asserts four counterclaims "on behalf of defendant Irish Northern Aid and its representatives." The first counterclaim alleges violations of constitutional rights by means of burglaries, illegal searches and seizures, and warrantless electronic surveillance. The second seeks damages for wiretapping. The third counterclaim alleges a cause of action under the Privacy Act of 1974, 5 U.S.C. § 552a, and claims damages for violation of that statute. The fourth counterclaim realleges the foregoing acts, and further alleges that "Defendant and its Representatives will suffer irreparable harm to their constitutional rights by virtue of such conduct." Defendant's prayer is for damages, declaratory judgment, and injunctive relief, in respect of the various causes of action set forth in the counterclaims.
In support of the instant motion, plaintiff has submitted the registration statements prepared and filed by defendant between January 1971 and January 1980; plaintiff's responses to defendant's first set of interrogatories and document requests; defendant's responses to plaintiff's interrogatories; affidavits sworn to by Matthew Higgins, John McCarthy, and Michael Flannery, officers and representatives of defendant, in which, inter alia, each invokes the fifth amendment privilege against self-incrimination to support his refusal to answer certain interrogatories propounded by plaintiff;
and an affidavit sworn to by Brian K. Ahearn on April 30, 1976 ("Ahearn affidavit"). Since August 1971, Ahearn, an attorney with the Registration Unit, Internal Security Section, Criminal Division of the Department of Justice, has been primarily responsible for and personally familiar with defendant's registration under the Act. Id. P 2. Ahearn avers that he has personally reviewed defendant's registration statements, as well as the thousands of pages of business and financial records produced by defendant pursuant to F.R.Civ.P. 34,
id. P 3, and that, in his judgment, "(defendant) has failed to comply with the disclosure and labelling requirements of the Act." Id. P 4; see § 618(f), set forth in full ante.
The Ahearn affidavit specifies numerous perceived inadequacies in defendant's original and supplemental registration statements. For example, no street address is given by defendant for its disclosed foreign principal, the Northern Aid Committee, despite its location in a major European city. Consequently, the Attorney General has been frustrated in its attempts to verify the existence of the Northern Aid Committee, a problem compounded by the absence in the files delivered to plaintiff during discovery of any correspondence between INAC and the Northern Aid Committee. Moreover, Ahearn avers that:
"To the extent that the Defendant's financial records show to whom funds were delivered none of the in excess of one million dollars raised by the Defendant appears to have gone to the Committee. Indeed it is impossible to ascertain from the records where most of the money has gone or even if it has left the country."
Id. P 6. In this connection, Ahearn cites the portions of the registration statements in which defendant has not listed the sources or recipients of, respectively, receipts or disbursements, and his own calculations which reveal discrepancies in defendant's financial statements. As an additional example of defendant's noncompliance with the Act, Ahearn refers to numerous documents produced during discovery, including letters written by and to defendant's representatives, to support his contention that defendant's true foreign principal is the IRA. If this allegation is true, defendant would clearly be in violation of the Act because it has failed to mention the IRA in its registration statements or on the labels required to be affixed to political propaganda. Ahearn further directs the Court's attention to numerous blank or inconsistent answers in the registration statements, including those relating to defendant's activities on behalf of its foreign principal. In plaintiff's view, the most obvious undisclosed activity is defendant's alleged operation and control of The Irish People newspaper. Ahearn further cites various written material, characterized by him as political propaganda, which is unaccompanied by the proper labelling or dissemination reports. The affidavit is replete with other instances of defendant's alleged violations of the Act too numerous to mention here, and Ahearn appends voluminous documents to support each example.
With respect to defendant's affirmative defenses and counterclaims, plaintiff claims that defendant has come forth with no evidentiary proof for its assertions to counter plaintiff's averments that there has been no illegal conduct on the part of the Government; that defendant's allegations are deficient as a matter of law; and with respect to the counterclaims, that they are suits against the United States Treasury barred by principles of sovereign immunity.
In the Attorney General's view, the foregoing entitles him to judgment in his favor on the complaint and counterclaims as a matter of law. F.R.Civ.P. 56.
Defendant's position is that plaintiff has not established a prima facie case and, accordingly, defendant has done little to rebut the merits of the charges contained in the complaint and Ahearn affidavit. The thrust of defendant's argument is a challenge to the admissibility and legal sufficiency of the Ahearn affidavit and accompanying exhibits, an attack accomplished in defendant's supporting affidavit through an almost line-by-line analysis of the Ahearn affidavit. Affidavit of Frank Durkan, a Member of the Firm of O'Dwyer & Bernstien, Attorneys for Defendant, sworn to June 11, 1980 ("Durkan affidavit"). Durkan asserts that the Ahearn affidavit and exhibits thereto are filled with opinion, innuendo and inadmissible hearsay, and thus not cognizable pursuant to F.R.Civ.P. 56(e) on a motion for summary judgment.
Insofar as defendant assumes the admissibility of the documents submitted by plaintiff and addresses the merits of plaintiff's arguments, defendant argues that the materials are ambiguous and may lead the trier of fact to draw conclusions different from those drawn by plaintiff. For example, Durkan denies that defendant is an agent of the IRA, and contends that plaintiff's proof requires "distinctions to be drawn between acting as an agent as opposed to a citizen's constitutionally protected expression of political beliefs and sympathies, (and) is subject to conflicting interpretations." Durkan affidavit, P 11. Similarly, defendant challenges the assertion that it manages and controls The Irish People newspaper, stating that plaintiff's allegation is based not on defendant's business records, but on "letters (produced by defendant) containing no more than intra-mural gossip and speculations among members of the defendant's various chapters." Id. P 20. Durkan opposes in the same manner the remaining allegations and proof thereof, including those relating to alleged political propaganda and inadequacies in the financial statements. With respect to the affirmative defenses and counterclaims, defendant argues that plaintiff's "pro-forma denial of unlawful surveillance of the defendant is wholly inadequate under applicable law,"
and that its claim of selective enforcement is supported by Exhibit A to the Durkan affidavit, a document relating to INAC prepared by the Federal Bureau of Investigation. Defendant has submitted no other exhibits or affidavits to support either the affirmative defenses or the counterclaims.
On the basis of the foregoing, defendant argues that there are material issues of genuine fact precluding summary judgment. That the issues raised by the complaint and answer are not conceded is obvious and, in this sense, there are disputed issues of fact. That they are dispositive issues whose resolution requires the Court to sift through the record is equally clear. Neither of these considerations, however, are sufficient to defeat summary judgment.
In deciding a motion for summary judgment, it is not a court's function to "try issues of fact: it can only determine whether there are issues to be tried," American Manufacturers Mut. Ins. Co. v. American Broadcasting-Paramount Theatres, Inc., 388 F.2d 272, 279 (2d Cir. 1967); SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir. 1978); see Babdo Sales, Inc. v. Miller-Wohl Co., 440 F.2d 962, 965 (2d Cir. 1971). Because summary judgment is a "harsh remedy," Flli Moretti Cereali v. Continental Grain Co., 563 F.2d 563, 565 (2d Cir. 1977), the court in reviewing the record must "take that view of the evidence most favorable to the opponent of the moving party." Empire Electronics Co. v. United States, 311 F.2d 175, 180 (2d Cir. 1962). Furthermore, the movant bears the burden of proving the absence of material questions of fact. Kinney Shoe Corp. v. Alitalia Airlines, 79 Civ. 919(CSH) (S.D.N.Y.1980), slip op. at 5 (citing Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975)).
But, as this Court noted in Kinney, supra:
"summary judgment is also a premiere "procedural device() capable of terminating litigation quickly, efficiently, and fairly ...' S.E.C. v. Research Automation Corp., 585 F.2d 31, 32 (2d Cir. 1978). Then Chief Judge Kaufman's opinion for the Research Automation panel was intended "primarily to illustrate the effective use of summary judgment in the appropriate case.' Id. The decision teaches that when a summary judgment motion is documented as Rule 56(c) requires:
"... an adverse party may not rest upon mere conclusory allegations or denials. The party opposing the motion must set forth "concrete particulars," Dressler v. The MV Sandpiper, 331 F.2d 130, 133 (2d Cir. 1964), and cannot make a secret of his evidence, holding it close to his chest until the trial. See Donnelly v. Guion, 467 F.2d 290, 291 (2d Cir. 1972). It is not sufficient merely to assert a conclusion without supplying supporting arguments or facts in opposition to the motion. Id. at 293. See Applegate v. Top Associates, Inc., 425 F.2d 92, 96 (2d Cir. 1970).'
"... (T)he policy favoring efficient resolution of disputes, which is the cornerstone of the summary judgment procedure, would be completely undermined if unsubstantiated assertions were sufficient to compel a trial. Accordingly, even in suits for injunctive relief, the district courts should not hesitate to grant a plaintiff's request for summary judgment when the defendant has failed to meet the requirements prescribed by Rule 56(e).' Id. at 33-34."
Three separate inquiries are mandated by the Research Automation case. The initial question is whether the motion is supported by the documents listed in Rule 56(c): the pleadings, depositions, answers to interrogatories, admissions, and affidavits. In this connection, Rule 56(e) requires that "affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Second, the court must pierce the opposition papers to determine whether they set forth facts rather than unsubstantiated assertions; a refusal to concede a point does not necessarily mean that the issue is disputed as that term is used in the context of summary judgment. Finally, if the Court determines there are no triable issues of fact, it must then determine whether the movant is entitled to judgment as a matter of law on the undisputed record. Rule 56(c). I address these questions in turn.
With respect to the first inquiry-whether plaintiff has satisfied Rule 56(c) and (e)-I conclude that the Ahearn affidavit is based on personal knowledge. As noted above, Ahearn has been actively supervising defendant's compliance since 1971 and has personally reviewed all of the defendant's documents produced during discovery. For the most part he has set forth facts readily perceivable from an examination of the registration statements and other exhibits appended to his affidavit. Insofar as those exhibits constitute inadmissible hearsay, or Ahearn's conclusory interpretations of exhibits, I have disregarded his statements, as I must. Chi-Mil Corp. v. W. T. Grant Co., 70 F.R.D. 352, 358 (E.D.Wis.1976).
Defendant asserts a wholesale challenge to those exhibits comprised of letters to and from INAC, publicity notices, advertisements, and the like, claiming that they are hearsay and therefore not permitted to be used on a motion for summary judgment. F.R.Civ.P. 56(e); F.R.E. 801-805. Of course, because the exhibits are reproductions of documents obtained from defendant's files, their authenticity cannot be seriously disputed. See F.R.E. 901. However, merely because authenticity is not a bar to admissibility does not mean that the documents cannot be excluded on some other ground, namely, hearsay.
With respect to the correspondence included in the file, those papers written on INAC's letterhead, those signed by INAC's representatives, and those that are unsigned but clearly emanating from the INAC office, are not hearsay. Under F.R.E. 801(d)(2), they constitute admissions by defendant. The same conclusion applies to statements in letters written to INAC, that were specifically adopted or incorporated by reference in INAC's reply. F.R.E. 801(d)(2)(B). The remaining correspondence included as exhibits constitutes hearsay insofar as it is offered as proof of its contents, notwithstanding defendant's implied concession that it was received from affiliated individuals and organizations.
Affiliation, without more, does not make a person an agent of a party to a lawsuit for purposes of F.R.E. 801(d)(2)(C), (D), and (E). To the extent that the correspondence to INAC is necessary to understand the correspondence from INAC, however, the former may be used by the Court for this limited purpose. That is because, in such a case, the letters to INAC are not being offered to prove the truth of the matter asserted and therefore do not constitute hearsay. F.R.E. 801(c). A similar rationale supports the admissibility of the advertisements and other releases; they are being offered by plaintiff not to prove their contents, but to demonstrate that they constitute political propaganda as defined by the Act.
Having narrowed plaintiff's proof accordingly, the conclusion remains inescapable that he has supported his motion with an uncontroverted factual affidavit and exhibits, together with the answers to interrogatories. He has made a prima facie showing that defendant has violated the Act in numerous respects, each of which will be dealt with individually.
I turn first, however, to the affirmative defenses, which, if meritorious, would be dispositive.
The facial validity of the Act has previously been upheld against first amendment challenge. Attorney General v. INAC, 346 F. Supp. 1384 (S.D.N.Y.), aff'd without opinion, 465 F.2d 1405 (2d Cir.), cert. denied, 409 U.S. 1080, 93 S. Ct. 679, 34 L. Ed. 2d 669 (1972); United States v. Peace Information Center, 97 F. Supp. 255 (D.D.C.1951); see Viereck v. United States, 318 U.S. 236, 251, 63 S. Ct. 561, 568, 87 L. Ed. 734 (1943) (Black, J., dissenting). Defendant argues, however, that as applied to it the Act violates its first amendment rights. Insofar as that claim stands without explanation, the application of the Act to this defendant does not differ in any significant way from the prosecution in Peace Information Center, supra, nor from that in Attorney General v. INAC, in which the court rejected INAC's first amendment claim.
Nor does this conclusion change when the constitutional claim is read in conjunction with defendant's allegation that it was unlawfully singled out for prosecution under the Act because of hostility to its beliefs, and in "an attempt to impede and deter defendant ... from freely exercising (its) First Amendment rights." Amended answer, P 23. In support of this affirmative defense, defendant submitted a document drafted by the FBI in September 1973, which reads in pertinent part:
"The Irish situation has become a serious problem and source of embarrassment to the U. S. The State Department is continuing to receive pressure from the GOI and State is seeking assistance to alleviate the U. S. problem; however, it is apparent that State is not aware of the investigative responsibilities of the various U. S. agencies and has turned to the FBI for assistance in alleviating this problem. Our primary investigative effort in this regard is in connection with the Foreign Agents Registration Act of 1938, as amended and we have no investigative jurisdiction with regard to the purchase of weapons and explosives or the use of the mails for soliciting contributions. It is felt that the assistance being sought by State is a task not only for the FBI, but other investigative agencies such as Customs, Bureau of Alcohol, Tobacco and Firearms, INS, CIA, etc.
"In order to assist State and to brief State on the responsibilities of the various investigative agencies, as well as to coordinate the efforts of these agencies in alleviating the Irish problem in the U. S., it is recommended that representatives from CI-3 contact the Department with regard to State's inquiry and suggest to the Department that they might desire to consider convening a conference consisting of representatives of the appropriate U. S. Government agencies.
"It is anticipated that the Department will review the responsibilities of each agency involved in the investigation of militant Irish activities in the U. S. and act as coordinator of those and U. S. efforts to prosecute those responsible for violations of U. S. statutes. It is also anticipated that State, which would attend this conference, would have an opportunity to explain its interest in detail to those in attendance and at the same time would understand the responsibilities of each interested U. S. agency in the problem."
In defendant's view, the foregoing by itself substantiates its assertion that it has been prosecuted selectively; it has neither submitted additional evidence nor requested further discovery on the issue. Plaintiff, on the other hand, contends that defendant has not ...