APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Before Hunter and Weis, Circuit Judges, and Markey, Chief Judge, Court of Customs and Patent Appeals.*fn*
This appeal is a consolidation of two related actions before different district court judges in the Eastern District of Pennsylvania.*fn1 The actions involve identical issues, virtually identical defendants and have overlapping records. The defendants, former Attorneys General of the United States, a former Director of the Federal Bureau of Investigation, and agents of the Federal Bureau of Investigation, appeal from the denial of their motions for summary judgment. First, the defendants contend that both district courts erred in holding that the defendants are not entitled to absolute immunity. Alternatively, the defendants contend that the district courts erred in not granting them qualified immunity as a matter of law.
We conclude that the district courts' denials of defendants' motions for summary judgment on the issue of absolute immunity are appealable at this time under the collateral order doctrine. Both Forsyth and Burkhart will be remanded to the respective district court to apply the test developed in this opinion to the facts of each case. On the defendants' contention that they are, in any event, entitled to qualified immunity as a matter of law, we hold that the denial of the motion for summary judgment on this issue is not a final judgment and is, therefore, not appealable at this time. Finally, we reject the individual FBI agents' contention that they are entitled to derivative absolute immunity.
These cases arise out of warrantless electronic surveillances authorized by the Attorney General and executed by FBI agents in the early 1970's. The wiretaps resulted in the overhearing of telephone conversations between the plaintiffs and members of organizations under investigation. The plaintiffs were not themselves under investigation.
Plaintiff Keith Forsyth was overheard through a tap directed against William Davidon, a professor at Haverford College, who was allegedly associated with the East Coast Conspiracy to Save Lives (ECCSL). The Philadelphia FBI office learned in June, 1970 that the ECCSL was planning to protest the Vietnam War by destroying underground utility tunnels in Washington, D.C. The FBI also had information that the ECCSL had been responsible for several raids on draft board offices. In August, 1970 the government obtained copies of letters written by Father Phillip Berrigan and Sister Elizabeth McAlister which indicated that three people, including Professor Davidon, had discussed the possibility of kidnaping National Security Advisor Henry Kissinger. On November 6, 1970, after additional investigation, Attorney General John Mitchell authorized the FBI to place a wiretap on the telephone of Professor Davidon. The tap continued with one extension until January 6, 1971. According to FBI Special Agent Fields, the purpose of the tap was primarily to gather intelligence information, although it was anticipated that information of a criminal evidentiary nature might also be obtained. The monitoring agents were instructed to record all conversations unless it was known that one of the parties to the conversation was a defendant in a federal criminal case or was an attorney for a criminal defendant. No other instructions were given to minimize the scope of the interceptions. Forsyth was overheard on three occasions.
Forsyth sued for damages under the first, fourth, sixth, and ninth amendments to the Constitution, and under 18 U.S.C. § 2520 (1976).*fn2 After discovery, including the deposing of defendant Mitchell, both sides moved for summary judgment. On February 14, 1978 the district court denied the motions for summary judgment. First, the court held that the defendants were not entitled to absolute immunity. Second, it held that there was a genuine dispute over material facts which precluded summary judgment on the issue of qualified immunity. See Fed.R.Civ.P. 56(c).
Plaintiffs in Burkhart were overheard on both the Davidon tap and a tap directed against the Black Panther Party. The Black Panther tap was originally authorized on June 1, 1970 and continued until February 10, 1971. Two reauthorizations in the interim were required because phone service to the Black Panther party headquarters was terminated and the headquarters moved to a new location. Attorney General Mitchell stated in an affidavit that he authorized the Black Panther tap because he had information that the Party had made foreign "contacts . . . for the purpose of obtaining foreign funds to support Black Panther revolutionary activities, including the advocacy of the violent overthrow of existent Federal and state government structures."
Plaintiffs in Burkhart also sued for damages for violations of their rights under the first, fourth, sixth, and ninth amendments to the Constitution, and under Title III of the Omnibus Crime Control and Safe Streets Act of 1968. See note 2 Supra. The district court first denied the defendants' claims of absolute immunity in July, 1975. Burkhart v. Saxbe, 397 F. Supp. 499 (E.D.Pa.1975). Later cross motions for summary judgment were filed, and argument was heard jointly with that in Forsyth. The district court denied both sides' motions for summary judgment on March 21, 1978. As in Forsyth, the Burkhart court found material questions of fact in dispute which precluded summary judgment on the issue of qualified immunity. Also, it refused to reverse its earlier decision denying the defendants' motion to dismiss on the issue of absolute immunity.
Plaintiffs in both actions rely on United States v. United States District Court, 407 U.S. 297, 92 S. Ct. 2125, 32 L. Ed. 2d 752 (1972), (Keith ), to establish a violation of their fourth amendment rights. There, the Supreme Court held that the fourth amendment requires that a warrant be obtained before engaging in surveillance of a domestic organization, even if the domestic organization threatens national security. In the context of this case, we have no occasion to review the district courts' holdings that the wiretaps authorized here were unconstitutional under District Court. Nor will we address the district courts' holdings that District Court is to be given retroactive effect. The sole issue before us is whether the defendants are entitled to absolute immunity.
Initially, we are presented with the plaintiffs' contention that we lack appellate jurisdiction to review the district courts' denials of defendants' motions for summary judgment. Generally, the denial of a motion for summary judgment is not appealable. Hart v. Overseas National Airways, Inc., 541 F.2d 386, 394 (3d Cir. 1976). Nevertheless, defendants contend that we have appellate jurisdiction under the final judgment rule, 28 U.S.C. § 1291 (1976).*fn3 As early as 1949 the Supreme Court in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S. Ct. 1221, 1226, 93 L. Ed. 1528 (1949), emphasized that section 1291 must be given a "practical rather than a technical construction." Under the Cohen collateral order doctrine, appellate courts have jurisdiction over orders which "finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Id. at 546, 69 S. Ct. at 1225-1226. The Supreme Court in Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S. Ct. 2454, 57 L. Ed. 2d 351 (1978), summarized the three requirements of Cohen.*fn4 To be appealable a district court's order must 1) conclusively determine the disputed question; 2) resolve an important issue completely separate from the merits of the action; and 3) be effectively unreviewable on appeal from a final judgment. Id. at 468-69, 98 S. Ct. 2454. See also United States v. MacDonald, 435 U.S. 850, 98 S. Ct. 1547, 56 L. Ed. 2d 18 (1978) (district court's order denying motion to dismiss indictment because of alleged violation of sixth amendment rights to speedy trial not appealable before trial).
The district courts' denials of the defendants' motions for summary judgment on absolute immunity must be analyzed under these three standards. Abney v. United States, 431 U.S. 651, 97 S. Ct. 2034, 52 L. Ed. 2d 651 (1977), is closely analogous to our case. There, the Supreme Court addressed the question of whether a pretrial order denying defendants' motion to dismiss on the ground of double jeopardy is a final order under section 1291. In finding appealability, the Court stressed particularly the third of the three Cohen factors that the district court's decision involved an important right which would be lost if appellate review had to await adjudication on the merits. And, in characterizing the right which the defendant would lose absent immediate review, the Court noted: "(The defendant) is contesting the very ...