Keith Forsyth v. Richard G. Kleindienst, John N. Mitchell ( 1983 )

OPINION SUR GRANT OF STAY

WEIS, Circuit Judge.

Plaintiff Forsyth has moved to dismiss this appeal as interlocutory, and defendant Mitchell has asked for a stay of trial. We will grant the stay, deny the motion to dismiss the appeal on absolute immunity, and refer the motion to dismiss the appeal on qualified immunity to the merits panel.

Keith Forsyth filed this suit against former Attorney General John Mitchell and others¹ to recover damages for alleged constitutional and statutory violations. Mitchell authorized a warrantless wiretap of one William Davidon in 1970 that resulted in government officials overhearing conversations he had with the plaintiff. The factual allegations underlying the claim are set forth in a previous opinion in this case. See Forsyth v. Kleindienst, 599 F.2d 1203,1205-06 (3d Cir.1979) (Forsyth I), cert. denied, 453 U.S. 913, 101 S.Ct. 3147, 69 L.Ed.2d 997 (1981).

In the earlier appeal, the district court had denied defendant’s motion for summary judgment on the basis of absolute immunity. We concluded that the order was appealable because the absolute immunity defense, like that of double jeopardy, see Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), protected the right not to be subjected to trial. See also Nixon v. Fitzgerald, - U.S. -, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982).

On the merits, we held 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.” 599 F.2d at 1215. The district court had held that defendant acted as an administrator rather than an officer of the court, but had “provided us with no statement of the reasons for its decision.” Id. at 1216. Consequently, we remanded to the district court for further consideration and application of the test we enunciated.

On remand, the district court again denied summary judgment to the defendant, finding that he was not entitled to absolute or qualified immunity. Finding no dispute about the fact that plaintiff had been overheard by virtue of the warrantless wiretap, the court entered summary judgment in favor of the plaintiff and against defendant on liability only. Since the record demonstrated that plaintiff had not suffered any compensatory loss, the case was set for trial on punitive damages only.

The defendant asked the district court for certification of the liability issue under 28 U.S.C. § 1292(b), and a stay pending appeal. Both motions were denied. Defendant has now appealed and seeks a delay of trial until this court has decided the issues he has raised here.

We first address plaintiff’s contention that the appeal should be dismissed as interlocutory and frivolous. Forsyth I established that a pretrial denial of summary judgment on the basis of absolute immunity is appealable. That precedent is binding on this panel, as is Nixon v. Fitzgerald. Consequently, the denial of summary judgment because of a finding by the district court that there is no absolute immunity presents us with an appealable order. We need not, and do not, decide at this juncture whether the denial of summary judgment on the ground of a lack of qualified immunity is also appealable. We note only that the question is not free from difficulty in the wake of the Supreme Court’s pronouncements on the policy underlying the qualified immunity doctrine. See Harlow v. Fitzgerald, - U.S. -, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); McSurely v. McClellan, 697 F.2d 309, 312-316 (D.C.Cir.1982) (denial of qualified immunity is appealable). That issue will be referred to the merits panel.²

As the Supreme Court has made clear, absolute immunity protects the right not to be subjected to trial — a right that is lost if appellate review awaits final adjudication. It follows therefore, that a stay must be granted or the defendant will be deprived of the benefits of adjudication before trial. The fact that the district court granted summary judgment for the plaintiff on liability cannot deprive the defendant of his right to an immediate appeal which accrued on denial of his motion for summary judgment.

The defendant contends that his wiretap authorization had a direct judicial analogue and that Harlow raises the availability of a special functions absolute immunity. In the limited time available for the disposition of this motion, we cannot conclude that the appeal from the denial of absolute immunity is frivolous.

Our conclusion is not altered by the fact that only a trial on punitive damages remains in this case. In the present posture of the litigation, it has been determined that the plaintiffs’ conversations were overheard on three occasions. Although the plaintiff sustained no loss, in the absence of immunity of the defendant, a judgment for nominal damages would be entered. Only to that extent has there been a liability finding.

There has been no determination, however, as to whether punitive damages may be recovered. To determine this issue there must be inquiry into the circumstances surrounding the defendant’s activities, his subjective intent, and the presence or absence of malice. We would expect a thorough examination of the background of the authorization, including possibly a review of what prompted the wiretaps, the advice defendant received from his subordinates, corroborating testimony from those sources;, and other similar testimony. If, after that evidence, the fact finder determines that punitive damages are due, then the issue would shift to the proper amount. In connection with this phase of the case, testimony about defendant’s financial condition would become relevant.

In sum, the inquiry into the factual issues remaining will not likely be merely a cursory one. Indeed, it may be as searching as the trial on the merits would have been in the absence of summary judgment on liability.

We share the concern of the dissent about the burdens under which this court is operating. However, we are not at liberty to disregard the clear precedent of Forsyth I on the appealability of a denial of absolute immunity.

Accordingly, defendant’s motion for a stay of proceedings in the district court is granted. The motion to dismiss the appeal from denial of absolute immunity is denied. The plaintiff’s motion to dismiss the appeal from the denial of qualified immunity is referred to the merits panel.

1 . After the notice of appeal was filed, plaintiff dismissed his claims against Albert Cooper and David Porter.

2 . The denial of qualified immunity in this case was characterized by the district court as one of law rather than fact. That holding therefore would not be affected by the trial on punitive damages. We note that the district court’s adverse ruling on the state of the law in effect at the time the wiretaps were authorized differs from that of the court of appeals in Sinclair v. Kieindienst, 645 F.2d 1080, 1084 (D.C.Cir.1981).