Norman Birnbaum, B. Leonard Avery and Mary Rule MacMillen Plaintiffs v. United States

B. Avery, and Leonard whose mail was GURFEIN, MOORE, and Before OAKES opened copied, separately and sued the Judges. Circuit compensatory United States for damages, invoking the jurisdiction exclusive con- GURFEIN, Judge: Circuit (28 ferred on the district courts U.S.C. (from approximately twenty years For 1346(b)) under the Federal Tort Claims § Intelligence 1973), the Central Act, 28 (“the 2671-2680 Act”).2 §§ U.S.C. first class (“CIA”) covertly opened Agency In MacMillen, the cases of Birnbaum and to, or citizens sent which American mail opened the letters had been intercepted en from, Letters the Union. Soviet received U.S.S.R., route to the 1973, in 1970 and U.S.S.R., originating or for destined respectively. Avery’s letter had been in New there, by agents were selected 1968, opened in arriving while in the United returned to York, and then photocopied, from the States Soviet Union.3 delivery. for ultimate authorities postal employed, but some criteria were The three Selection cases were consolidated in the During the were chosen at random. letters District Court for the Eastern District of 215,000 pieces project (Hon. over Weinstein, existence New York Jack B. Judge). copied and in this inspected Although of mail an advisory jury empanelled, was fashion.1 Judge, required, District as tried the himself, 2402, case 28 U.S.C. and found 1958, Investiga- Bureau Federal the United was States liable to each the existence (“FBI”) was informed of tion plaintiff individually damages in the known project, East Coast mail of the CIA’s $1,000. amount of The United States was HTLINGUAL and cryptonyms by required also to send letter of apology to SRPOINTER, offered to share CIA plaintiff.4 967, each F.Supp. FBI “take” with the FBI. project’s (1977). judgment From this the United approval, and the gave Hoover his Director appeals. States the CIA with the names and provided FBI persons organizations categories of I security” interest. it had an “internal guides by Before passed were used as additional the Act was lists Such States, making sovereign, possessed selections from United as the CIA com- passed plete immunity against mail suit for torts United States-Soviet com- Study Govern- der 28 are 1. Senate Select Committee U.S.C. conceded. Birnbaum Respect Intelligence Operations copies With also mental asked for the return of all of his III, (1976) Activities, Report, sought Book at 571 bring Final letters. MacMillen a class ac- 11) Report]. (Pl.Ex. Senate Gener- [hereinafter tion. history al discussion of the of the CIA’s id., program may be found at 559- son, Michael, letter, Avery’s who sent 636; Activities Within the on CIA Commission separately sued in the District of Connecticut. States, Report to the President United His claim has withstood a motion to dismiss. Report]; Department Rockefeller [hereinafter Avery States, F.Supp. v. United Justice, Report Concerning Investigation and (D.Conn.1977) (Clarie, J.). Respect Decisions with to Cen- Prosecutorial Opening Intelligence Agency Mail Activi- tral 4. Plaintiff MacMillen’s effort to convert her (A. 179-235) in the United States [herein- ties by Judge into a suit class action was denied Report]. D. J. after F.Supp. Weinstein. at 985-86. That deni- cross-appealed. al was not they allegations have exhausted 2. Their remedies, required un- their administrative employees. Feres II by agents mitted its States, v. United jurisdictional The grant Act, Tempel see 95 L.Ed. 152 1346(b), gives U.S.C. District Court States, 248 U.S. United jurisdiction exclusive of civil actions on (1918); Hill v. United 56, 63 L.Ed. 162 against States, claims the United States, money damages for injury or L.Ed. 862 The redress property, loss of personal injury or Congress. purpose death private bill in the caused the negligent or wrong- ful act or any omission of employee of the generally the Act was to waive the sov Government while acting within the ereign immunity of the United States for scope of his office or employment, under within employees torts of its committed circumstances where the if employment, their if such torts scope of a private person, would be liable to the employ private of a per committed claimant in accordance with the law of given liability son rise to would have under the place where the act or omission oc- law, 1346(b). Thus, state 28 recov U.S.C. § (Emphasis curred. added). ery predicated the Act under could Court, The District therefore, jurisdic- had upon such a state tort cause of action.5 tion of subject only (1) matter if there Moreover, groping for a formula that “personal was a injury” as defined by state private eliminate the nuisance of would law,6 (2) if the causing acts “person- yet only minimally bills and interfere injury” al give rise to liability under functions, government Congress created state law if executed an employee of a statutory exceptions general waiver private person. immunity in the Act. Three of these are arguably applicable (1) here: 28 U.S.C. A. 2680(h), excluding specified certain torts § Personal Injury Act; (2) 2680(b), from ambit of the § Although upon the consolidated trial exempting any liability from the Act appeared that plaintiff no was touched mail; (3) 2680(a), miscarriage loss or § physically or harmed financially, and that creating an exemption liability from the sole damage claim was mental suffer pursuant discretionary acts done to a func ing, New York recognizes “personal inju

tion. If the claims in suit fall within one of ry” mental suffering that results from a statutory exceptions, the district court known category of tort. State, Battalla v. subject jurisdiction. lacks matter 237, 10 34, N.Y.2d 219 N.Y.S.2d 176 N.E.2d Service, Myers Myers, & Inc. v. U. Postal S. (1961); 729 Galluchio, Ferrara v. 5 N.Y.2d 1252, 1255(2d 1975); 527 F.2d Cir. Gibson v. 16, 176 996, 152 N.Y.S.2d N.E.2d 249 States, 1391, 457 F.2d 1392 & n. 1 Lurie, 62, Halio v. 15 A.D.2d 222 N.Y.S.2d (3d States, 1972); Cir. Morris v. United 521 1961); 759 Dept. see also N.Y. Gen. Con. 872, (9th 1975). F.2d 874 Cir. Law 37-a (McKinney).7 parties stipulated provision 5. All have York interpreted New law 7. This has been to include applied. is to be personal injury: under the rubric of mental distress, Weicker, 570, Weicker v. 53 Misc.2d (Sup.Ct.), Avery simply alleged 279 N.Y.S.2d 852 6. MacMillen and rev’d on other grounds, 138, “injured 28 (1st A.D.2d each was . 283 N.Y.S.2d under circum- Dept. 1967), aff’d, private stances where N.Y.2d the United if a 290 N.Y.S.2d person, (1968), plaintiff 237 N.E.2d privacy would be liable to in accord- invasion of [by appropriation, place Rights see ance with the law of the where N.Y.Civ. the acts Law 6; (McKinney)], MacFadden, §§ occurred.” A. see A. 174. Birnbaum claims Riddle v. (1911), and, “damage privacy, 201 N.Y. property gener- N.E. 644 to his his exclusive al, “every variety mail, injury person’s body, interest in the contents of to a his and his feelings reputation.” Reeves, protected by interests the Fourth Bonilla v. Amendment. 273, 279, Misc.2d (Sup. .” A. 17. N.Y.S.2d App. 114 Ohio (1961)

B. N.E.2d 15 (intrusion by eavesdropping). Law Liability Under State Tort Basis for contends, Appellant United States how- scholarly in a Court held The District ever, recognize that New York does not lie in an action in tort would opinion right privacy. common law Appellant alternatively following: for the York places its reliance principally on the famous right law (1) of the common invasion 1902 case of Roberson Folding v. Rochester copy- law (2) injury to common privacy; Company, Box 171 N.Y. 64 N.E. 442. property private pa- interest right and There, commenting upon the seminal ar- violation of constitu- pers; and direct Brandéis, ticle Warren and The Right to these causes of right. We review tional (1890), Privacy, 4 Harv.L.Rev. 193 a 4 to 3 under the law of New York seriatim. action majority the New Appeals York Court of ‘right observed that “the so-called priva- right privacy law Common cy’ yet abiding has not as found an place in nature of what The manifold jurisprudence,” our 171 N.Y. at 64 N.E. well right privacy” “the loosely termed remedy and denied a for the appro- Prosser, Dean W. Both established. priation exploitation and commercial Torts, (4th 1971), ed. and the Law of plaintiff’s likeness. (Second) Torts 3 Restatement advisers of (1977), priva that the agree 652A Whatever sweep of some of the lan- “which rights, four distinct cy comprehends case, guage in the Roberson does not bar a name, together by the common but are tied indicated, cause of action for intrusion. As nothing have almost in common otherwise “right the privacy” includes several dis- represents each an interference except that ambit, crete torts within its appro- of which plaintiff the ‘to be let right with the of priation observed, one. As Holmes ” Prosser at 804. alone.’ get single do not a new and principle “[w]e by simply giving single a name to all the in the Re- privacy rights The four listed for,” cases to be accounted The Common are: statement (1945 ed.). Law at 204 That the Roberson a) upon unreasonable intrusion the seclu- rejected court privacy right a in the context sion of another .... or of an appropriation does not imply rejec- a b) the name or appropriation of other’s tion remedy of a for intrusion. .... or likeness Moreover, the c) publicity given to the court in Roberson unreasonable rested life ... its decision on the lack of private precedent other’s English law for enjoining appropriation the d) unreasonably places the publicity that publication photograph of a and which did light public. the other in a false before actually plaintiff defame the injure reputation. her court was not asked to The (1977). 652A consider right to be secure in one’s infringements of These all concern cases papers as the foundation for an actionable right right to seclusion free single a —the wrong. Had there been occasion to address by intrusion another. from unreasonable question, might intrusion the court well The activities of Government upheld because, have a cause of action un- plaintiffs’ mail constituted reproducing and like-appropriation, previ- intrusion had been intrusion. As described such an ously acknowledged species as a of tort. Restatement, right against violation of the through “opening right recognized Such a had been intrusion occur before personal and American Revolution. private Entick v. [one’s] Restatement, 652B, b, Carrington, Eng.Rep. comment 95 19 How.St.Tr. 378-79; Co., (C.P.1765), cf. v. Ohio Bell Tel. the British Secretary at LaCrone of accord, Rolnick, aff’d,

Ct.1966); Dept. 1968), N.Y.S.2d 111 805, Rolnick 24 N.Y.2d (1969). 300 N.Y.S.2d 248 N.E.2d 442 (Sup.Ct.1967); Misc.2d 284 N.Y.S.2d 908 grounds, 29 rev’d on other A.D.2d non-judicial decided, search When then, State issued warrant Roberson was au procure of libel. evidence seditious His thority lacking was not that freedom from messengers plaintiff’s entered house un- intrusion at least derivatively protect authority purported of the warrant der the recently, ed. priva More the broad perused private papers. seized cy general recognition has secured the technically Though the action was a tres- which the Roberson court thought was lack home, pass to the Lord Camden read the ing respect to the limited tort of ap protections privacy broadly. of more The propriation. In the nineteen-thirties “the court commented: strongly tide set in recognition” favor of safely no law say can there is in this [W]e of the tort of invasion privacy and it was country justify the defendants in what accepted jurisdictions. Prosser, in most at done; was, they if there have 804; Note, see The Right Privacy Today, destroy society; all comforts of for (by writer); Harv.L.Rev. papers property are often the dearest Feinberg, Recent Developments the Law man can have. of Privacy, (1948) (the 48 Col.L.Rev. 713 Eng.Rep. 817-18. author court); now sits on this 1 F. Harper By 1902 there were actual cases in New James, Torts, & F. Law of 9.6 damages been York in which had awarded (1956).9 upon privacy for intrusions that were the consequence other torts. In Moore v. has, person Intrusion in more Co., R. N.Y. York Elev. times, recent been held to violation be a (1892), the Appeals N.E. 997 Court of re Rights, Federal Bill of extending the brought impairment viewed an action early recognition that opening mail without certain of a easements homeowner the warrant is a violation Fourth railway. construction of an elevated Jackson, parte Ex Amendment. damages court allowed an award of for the Nothing L.Ed. 877 could be the value property reduction in of the due more revealing spirit times, the public travelling to the fact that on the not, course, Constitution does say could elevated trains view the interiors of a single about word privacy. Compare And certain rooms. an earlier New York States, 347, Katz v. United 389 U.S. 88 S.Ct. case granted damages Common Pleas had 507, (1967) 19 576 L.Ed.2d (conceptualizing of privacy by invasion intrusion suf Fourth Amendment in of privacy) terms reposses fered in the course of an unlawful and Justice sion from a Brandeis dissenting of chattels home. Ives v. Hum Olmstead phreys, (1851).8 States, 1 E. D. Smith 196 v. United 438, 478-79, 277 U.S. 48 Moore, supra, sions, opposed York court infringe New to other sorts of following holding of of the House Lords in privacy. Compare Wojtowicz, ments su Metropolitan Duke of Buccleuch v. Bd. of pra, 860, 219, at 403 N.Y.S.2d at 374 N.E.2d at Works, App. (1872), L.R. 5 E. & I. 418 sustain (as yet recognition 130 New no York of com alia, ing damages, inter for loss of seclusion “right judicial mon law relief for invasion of abutting property when a home was taken and privacy consequence public of unreasonable public highway. converted into Moore and ity [emphasis added]). . . ..” opin Ives overruled in were not the Roberson appear prece ion still and would valid 9. Most states and the District of Columbia rec sure, dent. To be there are statements ognize privacy invasions of as actionable torts. only right recognized privacy of effect that the Prosser, 804, supra, Harper § 117 at 1 F. & F. statutory. See, g., is in New York e. Flores v. James, Torts, 682-83; see, Law of at e. 276, Co., 280, 7 Mosler Safe N.Y.2d 196 N.Y. g., Dodd, 279, U.S.App.D.C. Pearson v. 133 410 975, 977, 853, (1959); 164 S.2d N.E.2d 854 Gau 701, denied, 947, F.2d cert. 395 U.S. 89 S.Ct. Co., Inc., Broadcasting tier v. American 304 2021, (1969) (recognizing 23 465 L.Ed.2d tort of 358, 485, 354, (1952); 107 N.E.2d 487 N.Y. general); intrusion in LaCrone v. Ohio Bell Tel. Journal, Evening New York Kimmerle v. 262 Co., (Ohio supra App.) (intrusion by wiretap 99, 102, 217, 186 N.E. Wo N.Y. Co., ping); Kroger Press, 45, Sutherland v. 144 jtowicz 47, W.Va. v. Delacorte 58 A.D.2d 673, (1959) (intrusion 205, 1977), aff’d, 110 716 (1st Dept. S.E.2d search 395 206 43 N.Y.S.2d shopping 858, 218, bag). of 374 N.Y.2d 403 N.Y.S.2d N.E.2d 129 (1978). of But none these cases involved intru-

325 would now be what it was in the (1928). Justice Planta- 564, 944 72 L.Ed. S.Ct. genet period.” Colorado, 338 U.S. v. [citation omitted] in Wolf Frankfurter (1949), while 1359, 1782 93 L.Ed. . We act in the finest 25, common- 69 S.Ct. exclusionary rule of adapt law tradition when we and alter apply the refusing to produce decisional law to common-sense Weeks v. states, justice. (1914), to the 58 L.Ed. S.Ct. security pri of one’s Legislative action

announced there “[t]he po could, course, arbitrary be, intrusion against of but we abdicate our vacy function, core of the Fourth peculiarly is at the own in a field non- lice—which society.” statutory, a free when we refuse to basic to reconsider Amendment —is unsatisfactory 1361. The an old and court-made S.Ct. Id. 338 U.S. rule. intrusions has against such proscription constitutional applied in numerous

been Lancet, 349, 355, Woods v. 303 N.Y. California, See, g., e. Rochin v. contexts. (1951).11 N.E.2d 165, 172, 96 L.Ed. 183 72 S.Ct. 342 U.S. recognition A privacy of a pump to extract (use of stomach against supported York, intrusion is in New Amendment); Fourteenth violates evidence moreover, by legislative current policy, 449, 466, Alabama, 357 U.S. v. NAACP though couched it is in terms of crimi- (1958) (right to 2 L.Ed.2d nal New York Penal sanction. Law Article privately”); interests private “lawful pursue (Right 250.25(1) Privacy) provides Connecticut, 381 U.S. Griswold person guilty tampering that a (1965) (marital L.Ed.2d 510 private “[k]nowing communications when States, supra (pri v. United Katz privacy); that he does not have the consent conversation). vacy receiver, opens he sender reads a sealed letter . We do not force jurisprudence, current light of the In the remedy the implication money of a dam- New York hard to believe it is sanction, ages from the criminal for that today apply would Appeals Court go beyond finding our function in decision to of the 1902 Roberson rationale Ash, York law. New Cf. Cort v. upon priva- on intrusion an action based bar 66, 78-80, 45 L.Ed.2d 26 sharp contrast to the reluctance cy.10 In think, however, gather- We that in law, the common 1902 court to advance ing strands policy which affect our York contemporary New Court more private into prophecy, papers intrusion said, context: in another has Appeals beyond now the limit of civil as well as argument against The sum of penal indulgence.12 there is no plaintiff here is which such a claim has Mindful that our role decision in under Federal York law, Act . . . “if that Tort Claims is to ascertain state enforced. been [but] it, depart the common law rather than to from we are also objection, a valid 746-50, 279, century (1963); three-quarters Ro- 191 N.E.2d 281-84 of a since Battal In the 10. State, 239-40, berson, privacy supra, particular type of invasion la v. 10 the N.Y.2d at 219 appro- 35-37, remedy 730-31; a in that at was denied N.Y.S.2d 176 N.E.2d that at case— exploitation per- Lancet, supra, priation 351-56, of a and commercial Woods v. 303 N.Y. at N,E.2d gained photograph itself name or son’s statutory protection. 102 692-95. at —has 132, Laws, c. 1903 N.Y. 1, Rights Law 2 version N.Y.Civ. §§ [current particular 12. in in We note the manner which 50, (McKinney)]. 51 §§ Appeals the York Court New of has referred in companion provision dictum to a of the Penal Appeals has York Court of The modem New 11. (against eavesdropping) 250.05 the Law— course of an —in jurispru responded past in the to new trends opinion upheld in which it a cause developing by altering decisional law. or dence against of action intrusion under the law of the Co., See, g., 30 N.Y.2d Dow Chem. e. Dole v. District of Columbia. Nader v. General Motors 386-90, 382, 143, 148-51, 282 N.Y.S.2d 331 560, Corp., 3, 25 N.Y.2d 570 n. 307 N.Y.S.2d 288, (1972); Babcock v. Jack N.E.2d 291-94 647, 3, 765, 655 n. 255 N.E.2d n. 771 3 477-82, 743, 473, son, 240 N.Y.S.2d 12 N.Y.2d 326 “Q]aw change times reading private

aware that does of mail was a violation circumstances, through not merely and and aof common copyright law of the corre- Poly reforms.” Bernhardt v. legislative spondents under New York law. 436 Co., 198, graphic 209, 273, 350 76 F.Supp. at Judge 978-83. Weinstein con- (1956) (Frankfurter, L.Ed. 100 199 that cedes the New York courts have not State, supra. J., concurring); see Battalia v. a case directly point. had We do not accept to perceptible may A refusal a trend doubt that the New York accept courts be as a failure much to follow state law as a English Pritchard, Gee v. of doctrine 36 apply existing precedent refusal because Eng.Rep. (Ch. 1818) 670 that private letters, ambiguous. reading it is somewhat Our of if literary value, even of no protected are past cases and our of current assessment by common law copyright. Woolsey v. legal thinking judgment lead us to the Judd, Super. (4 Duer) 11 (N.Y.1855); 379 Appeals the New York Court of would rec Marsh, see Folsom v. 9 4,901, Fed.Cas. No. ognize right an action for of violation p. 342 (C.C.D.Mass.1841) (per Story, J.). be free from unreasonable intrusion.13 We is, But law common copyright in es- Court agree with District there is a sence, right a publication, of first 1 Nimmer relief against claim for in New York a Copyright on 4.02, 4.03 §§ & 4.07 private person priva for intrusion Hemingway Estate of House, v. Random another, 53 cy of and that such a claim in 464, 462, 51, Misc.2d 279 reading cludes the N.Y.S.2d and of sealed order, aff’d (Sup.Ct.), mail.14 29 A.D.2d (1st N.Y.S.2d 568 Dept.1967), aff’d on other Copyright Common Law and In- Property grounds, 23 N.Y.2d 296 N.Y.S.2d Papers terest in Private (1968), 244 N.E.2d 250 of necessity The District has includes the right suppress any Court written publica- scholarly supporting thesis by injunction.15 view that tion Hence, although one Onassis, 13. In Galella 487 F.2d n. 12 (Sup.Ct. Mise. 1952); 109 N.Y.S.2d 799 (2d 1973), (Second) Cir. we Torts, said: 218(b) Restatement Reporter’s of e; accord, Prosser, Although Note York courts have Intermeddling recognized yet right priva is a common law actionable where “impaired chattel cy, required condition, has question, been if were as to its we reach the quality ment, id.; agree or value. [material] we ." inclined to with the court Restate Pollock, again F. contra when faced Law of below that with the issue Torts 354 (12th 1923). dispossession ed. Appeals modify There was no the Court distinguish well impairment Moreover, holding here. its extent Roberson v. Carrington, supra, Co., Entick v. Folding-Box support tends to Rochester 171 N.Y. here, also, trespass action (1902), an right it as we N.E. 442 that “The so-called have seen, implies privacy yet abiding place an action that can be has not as found an defined as upon privacy. intrusion jurisprudence.” in our Since the There is substantive demise of action, today the forms of support priva we proposition need not for the look further cy for state tort right” legal protec privacy law than to “basic is a entitled to tion, Hill, 374, 415, which we Supreme have described. Time v. 385 U.S. As J., Hayden, (1967) (Fortas, Court said in Warden v. L.Ed.2d dis 1642, 1648, senting) emerging (1967): . . There an L.Ed.2d rec- distinct, ognition privacy recognized aas constitution- principal We have that the ob- ally protected right. Ingraham, ject Roe v. protec- of the Fourth Amendment 1973), (Friendly, J.). privacy Cir. F.2d 102 property, tion of rather than increasingly have pro- discarded fictional and analogous Nor is fruitful to consider the property cedural concepts barriers rested on trespass tor( common law ground chattels , [citing cases], surreptitious open- of action here. The applies This as well to the non-constitutional ing reproduction ap- of the letters without privacy. torts of propriating physically damaging them does easily trespass preemption not fit under the rubric of to of state common law of requires, on, copyright by chattels. That cause copyright revision, of action either the 1976 law of, dispossession chattel, 301(a), a any or restraint 17 U.S.C. § to relevant com- case, Wintringham Lafoy, (N.Y.Sup.Ct. copyright v. 7 Cow. 735 law mon cause of action this 1827); Wilsey, (N.Y. v. preemption Hanmer Wend. 91 since under the new law does not Sup.Ct.1837), impairment by apply arising or its intermed- to causes of action before 1978. dling, Socony-Vacuum Bailey, 301(b)(2). § Oil Co. v. id. rights separate of letters to tional is a enjoin publication ground liabili- damage suppression, their effectuate ty under state law.17 We do not believe aside) only would lie if remedy (defamation that the Federal Tort Claims Act compre- spoliation right of the to a were a there hends federal constitutional torts in its ref- actually destroyed publication which first place” erence to the “law of the under right owner’s to seek a value of the 1346(b). As described in the House Judi- Szekely Eagle statutory copyright. See ciary Report dealing Committee with the Films, (S.D.N.Y. F.Supp. Lion bill, predecessor Act’s direct see Dalehite v. aff’d, (2d Cir.), cert. 1956), 242 F.2d 266 15, 26, 346 U.S. 73 S.Ct. denied, 354 U.S. S.Ct. (1953), applicable 97 L.Ed. 1427 rules of (1957). the owner of L.Ed.2d 1437 Since decision, substantive except where other- publication, did not consent to its the letter specified, wise were to be drawn from right publication. first he did not lose his to H.Rep.2245, “local law.” 77th Cong., 2d Nimmer, copying 4.03. And the mere See Sess., at 9 Attention was focused on of the letter did not and limited distribution torts, everyday particularly neg- the sort of public that constitute a distribution ligence of damage to the value of the which automobile could cause drivers are continuing right to secure a statu owner’s guilty. though Even federal law is su- Hemingway, Estate of tory copyright. See courts, preme U.S.Const., in the state art. 279 N.Y.S.2d at supra, 53 Misc.2d VI; Katt, 386, 391, Testa v. 330 U.S. strained, any find it 55. We would 810, 91 L.Ed. 967 General Oil event, reading plain of the say Crain, 211, 226-28, Co. v. 209 U.S. none persons, tiffs’ letters several (1908), 52 L.Ed. 754 one does not think world, a whom circulated them to the specific terminology of “local law” destroys the value of the “publication” except system to describe a different from 8.23; question. 2 Nimmer cf. work federal law. In the absence any indica- Convention, art. VI Copyright Universal Congress tion that conceived of “local law” 1971) (Paris (publication “general defined as under the Act as comprehending federal (Brussels distribution”); Berne Convention constitutional glimmer a until torts — 4(4) 1948), (publication making art. involves Hood, Bell v. quantities”); available in “sufficient works L.Ed. 939 are not prepared —we (Paris 1971), art. see also Berne Convention adopt unusually reading so broad a Hence, we not find the 3(3).16 do tort of Moreover, place” requirement. “law of the infringement copyright ap of common law by adopting the “law of place” as the plicable in the instant case.

source for rules of decision under the Fed- as Tor- Rights Violation of Constitutional Act, Congress eral Tort Claims expressly tious Conduct negated any possible inference that federal courts were to any exercise “common law- also The District Court held plaintiffs’ making” federal constitu- power the violation of to fashion torts under the viewing prevent a transfer 16. That limited does not constitute the of the letter itself. Id. at transgresses Thus, publication appeared an owner’s sort of 97 N.E. at 112. the court copyright implicitly recog- copyright uninfringed by common law treat the as a limit- Libbie, (and, presumably, perusal). nized in the famous case of Baker v. ed transfer (1912). There, Mass. 97 N.E. 109 Chief Rugg distinguished right of Justice between the ruling significant only 17. This becomes if it is right an author of a letter and the of the holder right privacy held that violation of the as by treating physical letter the former Upon tort does not exist under York law. expression copyright however, in the ideas and and the assumption, that alternative we must proprietary right physical as a in the Moreover, latter question. address the as we shall later, material. The Massachusetts court then went right against see of action the United copyright would on to hold that the author’s depend upon States does not a constitutional permit “publication CIA, restraint of ... violation but rather the com- making public through printing the sense of beyond delegat- acts mission of which were multiplication copies,” but not the Agency. ed functions of the 328 libel, slander, uniformity.18 misrepresentation, deceit, in the interest of national

Act v. Compare Textile Workers Union Lincoln interference with contract rights. 923, Mills, 1 353 L.Ed.2d U.S. (1957). Although exception might this con be torts, Congress strued all as'excepting

Since restricted basis for intentional liability urge under the Act the “law of the Government not reading does that upon event, jurisdictional we think that it would be a tour de us. place,” any statute, 1346(b), to consider direct violations of the “wrong § force U.S.C. covers ful” negligent constitution as “local law” torts. as well as federal acts. See Hatah States, ley tantamount might by- rule to a United Such U.S. sovereign immunity of the of the pass Unit- Dalehite v. L.Ed. States, supra, ed States without the consent of Congress. 346 U.S. at hold, that accordingly, (dictum). Thus, the claim for S.Ct. at We 972-73 it has been may relief not be sustained on that basis. held that the of trespass torts and invasion

of privacy do fall not within exception Ill of 2680(h). Hatahley, § supra (tres See pass); Black v. Corp. America, Sheraton each Having plaintiffs found that of the 46, 54-56, 184 U.S.App.D.C. 564 F.2d personal injury as a suffered result of an (1977) 539-41 (invasion privacy).19 upon privacy intrusion the Government give private rise to a law tort B. 2680(b): Exception The Postal § York, the law of New we under' determine jurisdictional requirement initial We postal turn next to the excep 1346(b) tion, U.S.C. has been met. § which requires also little discussion. The exception relates to “[a]ny aris claim We must now consider whether ing loss, out of the miscarriage, or negligent an exception claim from Government transmission postal of letters or matter.” liability provisions under the of 28 U.S.C. 2680. We will focus three excep- The language exception § itself indi (1) 2680(h), specified tions: for certain cates it not encompass aimed to torts; (2) 2680(b), mail; miscarriage for intentional acts. Had Congress intended (3) 2680(a), discretionary bring func- integri intentional disturbance of the tions. ty of a postal letter within the exception, would not have used the term “negligent 2680(h) A. § transmission.” Nor were the letters lost or “Miscarriage” miscarried. in the context of Under this subsection of the Federal misdelivery. means Act, exception Tort Claims is an there for: Any assault, out arising hold, therefore, claim bat We postal excep- tery, arrest, imprisonment, false false tion does apply not to save the United prosecution, process, malicious abuse of liability States from in these cases.20 appeal 18. The cases on arose before the 1973 19 L.Ed.2d 361 Act, contrary. Amendments to the so we need not con Marine Insurance held any sider effect the Amendments agents should be temporarily re- that where customs had Boger, Verkull, deemed to have. Gitenstein & package moved and a mailed emer- treated Act Federal Tort Claims Intentional Torts thief, powder alds with to detect a a fluorescent Interpretative Analysis, Amendment: An package by postal subsequent loss (1976). N.C.L.Rev. postal exception. authorities fell within The claim in Marine Insurance was not 19. When the Act was amended in this temporary redress because of removal S.Rep.No.588, was assumed. Cong., 93d package, treatment of the but for its subse- 1st Sess. 3 quent postal system, “loss” from interception even if the would have occurred 20. Our decision in Ins. Marine Co. v. United place. 378 F.2d at 815. had not taken Cir.), denied, 378 F.2d 812 cert. properly delegated whether a but 2680(a): “Discretionary Function” unconsti- C. § activity tutional would come within Exception “discretionary exception. function” Nor do whether Finally, we turn to consider question posed by we reach the the Govern- is re- opening project Government’s Congress ment: whether intended to allow Tort scope of the Federal from the moved brought actions to be under the Act which an 2680(a), provides which byAct Claims challenge discretionary acts as unconstitu- exception for: that, course, tional. We note such acts act or omis- Any claim based an alleged or omissions to be unconstitution- Government, employee an sion of example, al —for violations procedural care, exercising in the execution of a due process support liability due under —would whether or not such regulation, or statute only they Act if indepen- constituted valid, or regulation be based statute or dent torts under state law. It would be an performance or or the upon the exercise unusual situation such when a concatena- a discre- perform to exercise or failure wrongs tion of would occur. But Myers cf. part of a duty or on the tionary function Service, Myers, & Inc. v. U. S. Postal employee an agency or federal at 1260 & n.8. Government, or not the discre- whether involved be abused. tion Congress has a case where This is not discretionary A only function can derive being statute that is

passed mail-opening properly delegated authority. from Au It is com challenged as unconstitutional. thority generally stems from a statute or no or ground that there is statute mon regulation, least, jurisdictional or at from a opening the mail regulation which sanctions grant brings the discretionary function by the CIA. Our procedure engaged in competence within the agency. Dis to whether only relates inquiry therefore rubber-band, cretion be as elastic as a engaging were a “dis personnel the CIA it, too, but breaking point. has a An act function,” executing rather than cretionary clearly that is outside authority delegat regulation.” policy required by “statute ed cannot be considered as an “abuse of “discretionary exception function” States, discretion." Hatahley See upon a exception based distinct from supra; Myers Myers, & Inc. v. U. S. Postal regulation. Dalehite v. Unit statute or Service, (no supra, at 1261 discretion States, supra, 346 U.S. at ed regulations); violate Griffin v. United at 966-67. States, 1974) 500 F.2d Cir. in summa We state our conclusions (same); Wiener, United Air Lines v. (1) discretionary hold: that a ry form. We (9th Cir.) (same), F.2d cert. scope one within the can function dismissed, official, or an as authority agency of an (1964).21 L.Ed.2d 549 statute, regulation, jurisdic delegated by States, Hatahley v. United horses be- (2) legislative grant; CIA’s tional longing up to Indians were rounded on the gave Agency authority no charter public range slaughter and sent to matters; by feder- (3) gather intelligence on domestic agents ground al on they with the FBI Agency’s partnership that the “abandoned” horses under a Utah statute led it to trans opening project in the mail charter; permitted such horses to be eliminat- of its gress the limitations statute, Under the ed. Utah no notice engage was there was no “discretion” Code, activities, required. Range The Federal how- so that these mail ever, notice, required together that written exception does not discretionary function Hence, question with an order to remove livestock from the we do not reach apply. contrast, regulation interpreted reserving By way in Kiiskila v. United cable discretion, 1972), including (7th the decisionmaker broad Cir. a decision 466 F.2d authority grant discretionary appli- exceptions.” “the because the at 628. was treated as Id. alleged ‘discretionary be served on the vio- function’ public range, under the Act [cita- impounding the tion precondition lator as a 76 S.Ct. at omitted].” manager range The federal made animals. vigorous policy prosecute decision to Hatahley analysis The strikingly rele- campaign destroy the Indians’ horses. bar; vant to the case at the CIA’s mail campaign years. on for several This went opening project could not have been a “dis- range at 749. The cretionary Agency act” if the lacked au- that under manager apparently determined thority to program. conduct such a We required the Utah statute he was not to must, therefore, determine the scope of the the notice mandated the Federal

give Agency’s legally delegated competence. Range Code. Supreme The Court held “both the comply notice and failure to

written Intelligence The Central Agency [there- express precedent are conditions grandchild was the with] of the Office of Strate procedures” employment the of local under gic (“OSS”), Services which conducted the Code, Range agents the and that federal United States’ intelligence successful and procedures follow the there required “are special operations campaigns during the established.” Id. at 76 S.Ct. at 750. Second World War. As the war drew to a was held “the The United States liable for close, Donovan, General William J. head of employees, willful torts” of its since 28 OSS, recommended to President Roose 1346(b) provides for liability U.S.C. velt that a central authority be formed to “wrongful” trespass. acts such Id. at as intelligence obtain from abroad and to de 180-81, 76 at 751. termine intelligence national goals. It was proposed that this agency would coordinate The Court then considered the exception intelligence activities of other depart 2680(a). in 28 It U.S.C. held that ments, services, such as the military but agents had not exercised the “due care” that the new central intelligence authority required by exception, noting “ “ police would have ‘no or law enforcement implies care’ at least some minimal ‘[d]ue ” functions, either at home or abroad.’ rights concern for the of others.” The Repprt Rockefeller at 46. disposed Court of the contention that “discretionary exception function” applied After some debate within the Executive Branch, beyond scope regula to these acts President Truman issued a di- by declaring tions acts were rective creating the Intelligence Central “[t]hese wrongful trespasses involving Group, early discretion in 1946. The Presidential Di- rective part agents on the was explicit .’’ Id. at in limiting the Group’s foreign role to intelligence S.Ct. at 752. gathering. It police, declared that law enforcement “[n]o Hatahley significant authority in sever- or internal security functions shall be exer- First, respects. al it had never been decid- cised . ..” and that Hatahley required ed before that notice was [n]othing herein shall be construed to au- under the agents Federal Code when the thorize the making of investigations in- engaged enforcing were the Utah stat- side the continental limits of the United fact, ute. even the Appeals Court of had States and its possessions, except pro- held below that no such notice was re- vided law and Presidential directives. (10th quired. 1955). 220 F.2d 666 Cir. Directive, Presidential Coordination of Second, Fed- agents engaged policy were in a Foreign eral Intelligence Activities, F.R. promulgated by range manager and in (Feb. Doc. 46-1951 1,1946); see Rockefeller force several years. Yet the Court held Report at 51. required by because the notice regulation given, policy was not judg- Intelligence Central Agency was question ment in authority without by Legislative chartered enactment in 1947. “any therefore did not concern problem scope of a The of its authority and the limita- Furthermore, patterned upon Security General National thereon tions Council Directives, Intelligence designed guide experi- recommendations and the Donovan’s CIA, permitted so-called “overt” collec- Intelligence Group. the Central ence of intelligence of foreign tion within the Unit- char- legislative of this provisions Critical e., (i. ed States collection with the knowing Security Act ter, in the National contained voluntary cooperation sources) but 102(d) (e), 61 & Pub.L.No.253 § not “clandestine” collection in the United 403(d) at 50 U.S.C. & codified Stat. (i. e., States collection without the source’s supervi- under the (e), placed Agency awareness). Report Rockefeller at 55. Security Council and of the National sion Thus, parties all involved in drafting and Agency to directed passing legislation stated expressly at intelligence relat- and evaluate correlate times, and implicitly indicated throughout, security, pro- ing to the national and [to] that the CIA not to become concerned appropriate for the dissemination vide with developing intelligence as to domestic intelligence within the Government such matters, or internal security except “for protecting intelligence sources and methods 102(d)(3). provided specifically It also § from unauthorized disclosure.” 102(d)(3), § Agency police, shall have no “[t]hat 403(d)(3). subject U.S.C. The § matter powers, or inter- subpena, law-enforcement Agency’s interest was to foreign nal-security functions.” activity, home,23 not activity at and the Agency was not to any have “internal se- provisions these is clari meaning curity 102(d)(3), functions.” § U.S.C. legislative history. to their by fied reference 403(d)(3). § Congress were concerned that Members spell Agen to out the new precisely failure noted, on, As from 1958 began the CIA to Security National Act cy’s limitations in the examine intercepted mail to satisfy might permit Agency expand to its its intelligence own need for about the U.S. security S.R., into internal matters. activities satisfy but to as well the FBI’s re- Hearings quirements on H.R.2319 Before the House for counterespionage informa- “peace in the Executive tion and data on Expenditures organizations, Comm. on anti- leaders, war Sess., 126-28, activists, black Dept., Cong., 80th 1st women’s groups.” Report Senate By at 624.24 170—75, (1947).22 Congress re mid-sixties, then, the CIA had undertaken sponded by amending pro to this issue operation an that involved broad and indis- posed Agen to define the duties of the Act inspection criminate of private mail with a and, any entry cy specifically, to restrain obtaining view to on information matters of security” “internal matters. the CIA into domestic, as well foreign, as concern. 1st H.Rep.No.961, Cong., 80th Sess. 3-4 Act, Security National There was no room in the charter for a 102(d). “policy judgment” that the CIA should in- 22. Hearings functions national now else’s were ters, Intelligence Agency’s right, sponsibility lishing tic activities of the Legislators I do not make certain that running carefully business jfc another at 438-39 military security. to check on the wanted sfc think it would be the Central around confined in this agency Central matters, (Rep. % average We have butting country to do so. Brown). Intelligence Agency and to matters of international mat- activities and the American citizen. authority, ordinary into enough people without estab- ^[*] everybody s(c domes- or re- 24. An FBI internal memorandum of 1966 illus- 23. tions, Vietnam CIA’s mail security. to assist information trates the sorts of information persons obtain covert manner. Under U.S.C. . . ‘teach-ins’ ” involved in the demonstrations, the FBI’s domestic But there is no correlative Senate written 403(e), 102(e) openings: as Report of the National the Director of the CIA request . be essential peace intelligence . at 633 ., women’s from the FBI such movements, operations garnered by racial matters. & Security Act, n.336. “regarding organiza- mandate national anti- in a may very secret two decades. sense, data on do- real gathering volve itself in this the CIA knew problems. Indeed this mestic case opening] general involves a [mail Agency An internal anyone. as well as government, failure of the including the that “there is no memorandum admitted itself, Department of Justice over the monitoring postal legal communi- basis for period of the opening programs, ever except during States cations in the United clearly to address and resolve for its ”25 emergency . time of war or national own regulation internal the constitutional legal restrictions. therefore', find, We CIA was D.J. Report appears at 5. It to us that it acting beyond authority so its far hypocritical judges would be now to exercising not have been a function could activity assess the in terms of moral cen- proper sense be any could in called sure. Hatahley, supra. “discretionary.”26 See while, Nevertheless, agents, federal Though these we hold activities of the personnel may CIA still have an abso the beyond the CIA were realm of discre- suits, lute immunity from state Butz v. tion, entirely the we share moral .cannot Economou, _U.S. _, _ & n.22, 98 Court over concern of the District these 2894, n.22, S.Ct. 2905 & 57 L.Ed.2d 895 activities, security of for the the nation was (1978); Marek, Granger (6th v. 583 F.2d 781 We assume that said to be involved. 1978); Cir. see v. Lyons, Howard 360 U.S. by well country. CIA officials meant their 593, 1331, 3 79 (1959), S.Ct. L.Ed.2d 1454 testimony Even Senate Commit- before agents’ CIA qualified official, immunity in federal by principal stating tee a that CIA arising constitutional suits out opening knew was of this illegal he the mail set of circumstances, interest, thought but it in national see Bivens v. Sen- Six Unknown 605, Report gives Agents, 388, ate at us no cause for a Named 403 1999, U.S. 91 S.Ct. homily. Attorney reported: General As the 29 (1971), may L.Ed.2d 619 well not protect them if it be in found that their mail past pro- openings

The issue involved these view, grams, Department’s in the relates “unconstitutional action on a massive _ Economou, guilt than to scale.” personal _, less to official U.S. 98 government practices extended over S.Ct. at 2910. Report involving intelligence. Keith, in at 108. matters Rockefeller Quoted domestic supra; compare Youngstown Sheet & Tube v. arguable only possibly escape 26. The from this Sawyer, 579, 863, 343 72 U.S. S.Ct. 96 L.Ed. compelling might be if it could conclusion (1952). actually President had established that au- is, moreover, proof There an absence of openings under thorized the mail his Article II acting this record that CIA under di- power foreign affairs. See United conduct presidential authority. generally, rect Sen- Curtiss-Wright Export Corp., States v. 299 U.S. Report untimely ate 304, 216, 594-99. death of 81 L.Ed. 255 S.Ct. cf. Dulles, long CIA, Allen Court, time Director of United States v. United States District 297, 2125, presidents the deaths of several 407 U.S. 92 S.Ct. successive L.Ed.2d (1972) (Keith) (leaving open question proof Nixon, make such unavailable. President whether the Fourth Amendment surviving warrant re- period, the sole President from this quirements applies to the President’s surveil- being does not recollect told about the mail power respecting “the lance activities of for- openings. Report Senate at 597-98. Nor course, eign agents). powers” Of or their these speculation presidents what our about way imply any cases do not in the Presi- knew or did not know be fruitful or in the may ignore placed by- specific dent limitation a public might Though interest. courts feel com- agency Congress powers of an on the it has pelled to delve further into that matter if an But, event, any in created statute. it has agent’s being feet were held to the fire in a particular been demonstrated above that these case, compulsion criminal no there is such were not mail activities directed against money an action States foreign powers” against “activities of or their damages. agents. And have learned that the Presi- we power special constitutional dent has no against Compare in an the instant case. judgment Fitzpatrick action

Since v. Bitzer, 445, under the FTCA will consti- United States U.S. judgment in bar in favor of the (1976),

tute a L.Ed.2d 614 and Monell Depart v. claim, gave rise to the employee whose act Serv., ment of Social however, likely, it is 28 U.S.C. (1978). 56 L.Ed.2d 611 against would be made claims for torts We hold that the exception 2680(a) than, suits, rather as Bivens United States recovery against no bar the United employee. against States. agent is as it should be. The CIA That who, a can days, might have been other IV merit, for a citation of should didate Having determined that the United ignominious alone an now be made to suffer States is liable to plaintiffs these for harm “discretionary The term financial ruin. openings, caused we must review function”, by Congress, permits left obscure the District Court’s award of in com $1000 which achieves sub judicial interpretation pensatory damages and of an apology to chilling governmen justice stantial without plaintiff. each any than an erosion of the tal action more immunity of officials absolute Government Although damages under the Act are thought to such action. Com has been chill law, governed by state Hatahley, supra, 351 Economou, supra, Gregoire pare U.S. at 76 S.Ct. at the Act limits Biddle, 1949), 177 F.2d Cir. recovery compensatory damages pro- denied, cert. 94 vides that the United States shall not be L.Ed. 1363 liable punitive damages, 28 U.S.C. York, In New seen, as we have lodged, is under the responsibility The freedom from FTCA, pro- mental disturbance is a report the careful of the At- where “ interest, tected but there must ‘guar- be a torney says belongs it a di- General —on genuineness antee of in the complacent officialdom. Com- circumstances verse and ” the Galluchio, of case.’ Ferrara v. resulting for incidental harm pensation 5 N.Y.2d at 176 N.Y.S.2d at pursuit of its securi- from the Government’s 152 N.E.2d at (quoting Prosser).27 The justly by borne the ty interests is more question is whether the testimony of the body politic by agents than of the entire Government, who, zeal, plaintiffs finding sustains a ex- mental an- patriotic out of guish law, under New York in which event delegated the limits of their ceeded outer judgment $1,000 the each authority. enduring pervasive would not be long So excessive, or whether there in the utter was no actual privacy, a breach of face of an damage, which case nominal authority, fittingly responsibili- a dam- lack of is ages of one dollar would have proper. been should assume to com- ty United States Carey Piphus, Cf. plaintiffs. pensate 55 L.Ed.2d 252 (construing discretionary to the func- approach This 1983).28 moreover, provision, congruent with tion interpretation of con- The developments easy. in the answer is not There was no statutory in- finding physical injury stitutional and law that have and no loss of municipal lia- creasingly employment. extended state and There also was no mental injury that are in the bility rights “permanent violations sense of symp- civil Ferrara, anxiety.” tort involved in toms of analogous privacy supra. Appeals permitted 28. Since cases have not arisen in 27. The in Ferrara New York in Court symp- recovery “permanent judgment damages which there in a case in which has been a anxiety” noting upon privacy, present, that for the tort of toms of intrusion there is “[i]t available, every precedent Judge case must be decided no direct as is self-evident that Wein- according peculiar stein to the facts to it.” Id. observed. 176 N.Y.S.2d at 152 N.E.2d at 253. dissident). who a finding writing of mental was to well-known whether question The That complicat- is further could have the trier anguish is sustainable of fact convinced compensable these damage. cases. there was no by two unusual features ed Indeed, First, deliberately sought testimony plaintiffs of the plaintiffs regard subjective feelings Freedom Information their was out under the both find weak tampered meager. had been The nub of their their mail testi- Act whether curiosity, mony “disappointment” to their was that each felt response direct with. government that their own information result- could do such a they received the Thus, injury. thing. anguish political in a purported strict Such rather than ed emotional, sense, plaintiffs’ acts in un- much as a member “but for” of a Senate they might openings, investigating might never committee feel covering toward anguish “injury” to suffer over the same revelation.30 The have been made Second, principally wrongs. letters to “their wounded faith in our Government’s institutions,” being transported democratic 436 F.Supp. with were interfered Union, a a loss society probably many from the closed of faith Soviet shared aware, which, expect are Americans not people compensation most who do injuries. without for such opened by police secret “consti- intellectual be Only the naive restraint. tutional” The issue down comes to whether each for the emotionally unprepared possibili- be plaintiff any injury mental suffered what- opened in the might letter ty knowledge ever from the single that a let- circumstances, those Union. Under Soviet Judge ter had been opened. As the District propo- to credit the is somewhat difficult properly charged advisory (and jury we person would be that a reasonable sition charged himself), assume plaintiffs going that a letter the mere fact shocked money damages could not recover as a vin- coming had been from the U.S.S.R. dication rights peo- American point. at some opened ple. Nor they do we think that may recov- sense, Although, plaintiffs action, er simply in a to deter future for this outrage particular brought feelings upon prohibits their punitive statute dam- information, ages we by seeking themselves do “smart money” traditional reme- —the believe, reflection, dy discourage this is a used repetitive conduct. meaningful break in the chain of causation find, however, did District Court openings any anguish links the mail to that “the emotional plaintiffs distress these suf- The was an inten suffered. fered was the that sort would be experi- be deemed tional tort and it to have enced people reasonable al- under the anguish might foreseeable that ensue been unprecedented most circumstances of these discovery. there if See Derosier v. cases.” F.Supp. at 988. we Though Co., England Tel. & Tel. 81 N.H. finding could view merely this as one Prosser, (1925); supra, A. at 263.29 damage circumstances, presumed from the plain-

More the fact that worth only dollar, troublesome is sum nominal of one cf. Carey should have been aware that their mail v. Piphus, tiffs we interpret might opened by finding generously Soviet officials more as determining MacMillen, in the of Ms. that (particularly plaintiffs, case these whose demeanor the Significantly, intelligence investigations, product could not have refus- CIA and that the 29. operations ed to Under excepted release this information the Free- of such would not be from dom of Information Act. Under the 1974 disclosure. amendments, 2(b), exception P.L. an respect disclosure with from is available an Except possibly Church, for Senator Chair- “agency conducting security national a lawful investigat- man of the Senate Select Committee intelligence investigation,” for in- confidential activities, ing intelligence personal whose own only by . . [a] formation “furnished . con- apparently mail to the Soviet Union had been 552(b)(7)(D). fidential source.” 5 U.S.C. The opened by Report See CIA. Senate at 575- use of the word “lawful” indicates that Con- gress could understood that there be unlawful judge observed, actually per- Commodity trial suffered Inc. v. Credit Corp., 275 F.2d anguish. give regard We “due (2d sonal 1960) Cir. (upholding statute opportunity of the trial court to the barring jury trial of a counterclaim by the of the judge credibility witnesses.” States). 52(a). Though question Fed.R.Civ.P. judgments on appeal, except for the close, damages money we affirm the order to send letters apology, are af- each, $1,000

judgments feeling with the firmed. The denial of the motion for a jury they represent upper limit of al- trial is also affirmed. compensation in these lowable cases.31 regard Judge’s With order MOORE, Judge Circuit (concurring in send a letter apolo that the Government part; dissenting in part): plaintiff, though each gy to such letters I Judge concur in opinion Gurfein’s both might day monetary some achieve value as reluctantly quite dubitante except as to items, collectors’ we do not view them as part thereof, IV dealing damages as to “money damages,” form of relief which I say dissent. I “reluctantly” be- 1346(b). in the Act. 28 provided U.S.C. § cause I distinguish cannot the Supreme Takisaki, (9th Moon v. 501 F.2d 389 Cir. Court’s decision in United States v. United 1974); Heym, Frankel v. 466 F.2d Court, States District 1972). Cir. 2125, 32 L.Ed.2d 752 say I “dubi- accordingly part We reverse that tante” because but for that decision I judgment ordering apology letters of might have believed that the opening of be sent. Soviet correspondence Union-U.S.A. might well be a “discretionary function or duty on V part of a federal agency” particularly cross-appeals Birnbaum on the since it matters not “whether or not the District Court ground error discretion be abused”. request jury because it denied his for a The CIA is an agency created Con- trial, which he he contends was entitled gress protect our national security in the argues under the Seventh Amendment. He international field. If the CIA’s powers statute, 28 U.S.C. expanded should be particularized, Con- trial, jury denies a violates the gress always free to so act. the mean- Constitution because this is a suit at com time the courts will plagued continue to be law meaning mon within the of the Seventh with the necessity of evaluating and balanc- against Amendment.32 the Govern “[S]uits ing the resolved, basic values to be namely, ment, requiring they do a legislative “the duty of protect Government immunity, waiver are not ‘suits at com domestic security, potential and the danger meaning mon law’ within the of the Sev posed by unreasonable surveillance to indi- enth Amendment. McElrath v. United vidual privacy and free expression”. 407 439-440, 26 L.Ed. 189.” U.S. U.S. 92 S.Ct. at 2135. Zdanok, 530, 572, Co. v. Glidden 1459, 1484, (1962) (plu 8 L.Ed.2d 671 awarded, As to the amount even a one Harlan, rality opinion J.); Cargill, see (presumably dollar sum the usual six cents affirming, cognizant discovery 31. we are that the Stat- to run from with the exercise of due diligence ute of Limitations has run unlikely now on all unfiled type most rule in this —a opening clearly claims for relief. The last mail case —the statute has run. Report occurred in Senate program and no such has there- existed provides 32. perti- The Seventh Amendment exposed public after. The matter was part: nent knowledge long Report before the Rockefeller law, In Suits at common where the value in published June even if either controversy twenty dollars, shall exceed year (CPLR 215) the New York statute of one by jury preserved of trial shall be years (CPLR 214) three should be taken infla- dollar because of now raised to one justified. plaintiffs

tion) not be the letters knew their

who had written anguish” resulted

contents. If “mental contents, their

from a revelation of their own creation. If

anguish was of recipient,

anguish was in the mind of govern- or enhanced

was not created would, therefore, opening. I

ment’s mail damages to one dollar.

restrict STOWE, Petitioner-Appellant,

Roger M. DEVOY,

Frank E. States

Marshal, Respondent-Appellee.

No. Docket 78-2085. Appeals,

United States Court of Circuit.

Second

Argued Sept.

Decided Nov.

Case Details

Case Name: Norman Birnbaum, B. Leonard Avery and Mary Rule MacMillen Plaintiffs v. United States

Court Name: Court of Appeals for the Second Circuit

Date Published: Nov 9, 1978

Citation: 588 F.2d 319

Docket Number: 935, 976, 977, Dockets 77-6175, 77-6181, 77-6183

Court Abbreviation: 2d Cir.