The opinion of the court was delivered by: PRATT
We find that there are no genuine issues of material fact which would preclude the entry of summary judgment in this action. On May 5, 1977, Attorney General Bell was advised by telephone calls from Clarence Kelley, Director of the FBI, and by Warren Christopher, Deputy Secretary of State, that there had been a compromise of security involving classified Department of State documents. On May 6, 1977, the Attorney General was advised that an individual working clandestinely for the FBI and the CIA had served as a courier between Truong Dinh Hung, who was known not to be a United States citizen, and representatives of the Socialist Republic of Vietnam in Paris, France. The Attorney General was further advised that one of the packages which had been carried by this individual contained classified State Department documents. On May 9, 1977, the Attorney General authorized a wiretap on the telephone of Truong Dinh Hung in the District of Columbia. The Attorney General has stated that he authorized the wiretap to determine the extent of material already compromised, the source of the material, the identity and scope of Truong Dinh Hung's network and the extent of the network's activities. Affidavit of Attorney General Griffin B. Bell, P 6, attached to defendants' motion to dismiss or in the alternative for summary judgment (AG affidavit); Transcript of Testimony of Griffin B. Bell, United States v. Hung, No. 78-25-A, E.D.Va., March 20, 1978, pp. 8-9, attached to defendants' motion to dismiss or in the alternative for summary judgment. (AG testimony).
The surveillance upon the telephone of Truong Dinh Hung commenced on May 11, 1977. In August and November of 1977, the Attorney General approved renewals of the electronic surveillance. The surveillance was continued until January 31, 1978, when the indictments of Ronald Louis Humphrey and Truong Dinh Hung were returned by the Grand Jury in the United States District Court for the Eastern District of Virginia. It is undisputed that defendants did not acquire a court order to authorize this surveillance at any time during the period of surveillance.
Each of the plaintiffs alleges that he or she has been overheard in telephone conversations with Truong Dinh Hung during the period of time when there was a wiretap on his telephone. Plaintiffs also allege on information and belief that defendants have initiated warrantless wiretaps on each of their home telephones. FBI Supervisory Special Agent William J. Slicks, states, however, that the FBI has not initiated such wiretaps. Declaration of William J. Slicks, P 6, attached to defendants' motion to dismiss or in the alternative for summary judgment.
At the trial of Humphrey and Hung, the criminal defendants moved to suppress, Inter alia, evidence which was obtained through the electronic surveillance. In an opinion dated March 30, 1978, Judge Albert V. Bryan found that the surveillance was a foreign intelligence investigation and that the Fourth Amendment to the Constitution does not require a warrant for such an investigation when it is authorized by the President or the Attorney General acting under the authority of the President. United States v. Hung, supra. The Court also held that the surveillance was reasonable until July 20, 1977, but was not reasonable thereafter because the surveillance was not thereafter conducted for the primary purpose of acquiring national security intelligence. Id. On May 19, 1978, defendants Hung and Humphrey were convicted on 6 of the 7 counts contained in the indictment.
We first treat defendants' threshold argument that this Court lacks subject matter jurisdiction over this action because the amount in controversy to a legal certainty does not exceed $ 10,000. Defendants first assert that the recent Supreme Court decision in Carey v. Piphus, 435 U.S. 247, 98 S. Ct. 1042, 55 L. Ed. 2d 252 (1978), establishes that the infringement of a constitutional right will only support the award of nominal damages. Defendants next contend that a complaint should not survive a motion to dismiss unless it states a compensable claim for relief. Butz v. Economou, 438 U.S. 478, 98 S. Ct. 2894, 57 L. Ed. 2d 895 (1978). The argument that the Court lacks jurisdiction is without merit.
Plaintiffs satisfy the amount in controversy requirement for damages sought under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-20 and 47 U.S.C. § 605, (Title III). Title III provides for the recovery of liquidated damages at the rate of $ 100 per day for each day during which plaintiffs were the subject of an illegal wiretap. 18 U.S.C. § 2520. Since the wiretap at issue in this action continued for 268 days, it cannot be said to be a legal certainty that the complaint does not satisfy the amount in controversy requirement. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 299, 58 S. Ct. 586, 82 L. Ed. 845 (1938). Plaintiffs also satisfy the amount in controversy requirement for its constitutional claims. The Supreme Court decision in Carey v. Piphus, 435 U.S. 247, 98 S. Ct. 1042, 55 L. Ed. 2d 252 (1978) was limited to the narrow holding that compensatory damages will not be awarded for violation of Fifth Amendment rights when there was no showing of actual harm. The Court in Piphus expressly left open the question of whether violations of constitutional rights other than those protected by the Fifth Amendment would support the award of compensatory damages absent a showing of actual harm. Id. at 266, 98 S. Ct. 1042. In light of the express limitation of the scope of the holding, the Piphus decision should not be read as an implicit overruling of the holding in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), which held that individuals may be compensated when their Fourth Amendment rights are violated by official misconduct. Plaintiffs' claims for relief from an allegedly illegal search and seizure in violation of the Fourth Amendment therefore do state claims which may be compensated by more than nominal damages.
Since it cannot be said to a legal certainty that the amount of compensable damage for such an alleged violation to each plaintiff is less than the $ 10,000 amount in controversy requirement, we hold that this Court also has jurisdiction to consider plaintiffs' constitutional claims. Accord Dellums v. Powell, 184 U.S.App.D.C. 275, 305, 566 F.2d 167, 194 (1977), Cert. denied, 438 U.S. 916, 57 L. Ed. 2d 1161, 98 S. Ct. 3147 (1978); Tatum v. Morton, 183 U.S.App.D.C. 331, 334, 562 F.2d 1279, 1282 (1977).
As stated at the outset, defendants in support of their motion have asserted other defenses, in addition to the claim of lack of subject matter jurisdiction. While there is ample support for defendants' assertion that electronic surveillance of a foreign agent was proper without a warrant because this aspect of national security is committed to the sole authority and discretion of the President and that therefore the complaint fails to state a cognizable statutory or constitutional cause of action, we prefer to rest our decision on grounds of official immunity.
A. Tests for Absolute and Qualified Immunity
The issue of defendants' immunity can be decided independently of the issue of whether plaintiffs state legally cognizable statutory and constitutional causes of action.
We first consider whether defendants are entitled to absolute or qualified immunity for any allegedly illegal surveillance of Truong Dinh Hung. Absolute immunity generally relieves a federal official from liability for damages for all discretionary actions, including those which were motivated by malice. See, e.g., Barr v. Matteo, 360 U.S. 564, 79 S. Ct. 1335, 3 L. Ed. 2d 1434 (1959). See generally Davis, Administrative Law Treatise, § 26.00 (1976 Supp.). By contrast, qualified immunity relieves a federal official from liability for damages for discretionary activities Except those which were motivated by malice. See, e.g., Butz v. Economou, supra, at 508-517, 98 S. Ct. 2894. Absent a good faith allegation by plaintiffs that the Attorney General or those acting under his authority ...