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SMITH v. NIXON

July 31, 1987

Hedrick Smith, et al., Plaintiffs,
v.
Richard M. Nixon, et al., Defendants



The opinion of the court was delivered by: SMITH, JR.

 JOHN LEWIS SMITH, JR., U.S.D.J.

 Introduction

 The single question before the Court is whether the plaintiffs may obtain equitable relief on their request for expungement of all previously nonpublicized transcripts or summaries of an 89-day government wiretap on their home telephone in 1969. The wiretap had purportedly been conducted pursuant to a presidentially approved surveillance program instituted for the purpose of identifying government employees who had been leaking sensitive classified national security information to the press. The circumstances surrounding the wiretap are fully detailed in the earlier opinions in this case and need not be reiterated here. See generally Smith v. Nixon, 449 F. Supp. 324 (D.D.C. 1978), rev'd, 196 U.S. App. D.C. 276, 606 F.2d 1183 (D.C. Cir. 1979), cert. denied, 453 U.S. 912, 69 L. Ed. 2d 997, 101 S. Ct. 3147 (1981); motion to dismiss granted, 582 F. Supp. 709 (D.D.C. 1984) and 582 F. Supp. 716 (D.D.C. 1984), aff'd in part and rev'd in part, 257 U.S. App. D.C. 52, 807 F.2d 197 (D.C. Cir. 1986). It suffices to say for the purposes of this opinion that the wiretaps were conducted illegally. See Smith v. Nixon, 257 U.S. App. D.C. 52, 807 F.2d 197, 204 (D.C. Cir. 1986) ("Smith II") (stating: "There is no dispute that the challenged wiretap was illegal (albeit not in violation of clearly established law).") (citing, United States v. United States District Court, 407 U.S. 297, 321, 92 S. Ct. 2125, 2138, 2139, 32 L. Ed. 2d 752 (1979)) (ruling that Fourth Amendment requires prior judicial approval for national security surveillance operations). See also Halperin v. Kissinger, 257 U.S. App. D.C. 35, 807 F.2d 180, 185 (D.C. Cir. 1986) ("Halperin II").

 After a careful review of the authorities and arguments submitted by the parties, the Court has concluded that expungement of the surveillance transcripts is appropriate relief in light of the illegal nature of the wiretap and the resulting harm to the plaintiffs.

 Discussion

 Plaintiffs originally sued several former and current federal officials for damages and equitable relief alleging that the government wiretap of their home telephone violated their First, Fourth, and Ninth Amendment rights and Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. ┬ž 2510 et seq. The damages claim was decided adversely against the plaintiffs in part because the defendant's conduct in instituting a warrantless wiretap was not in violation of "clearly established" law. Smith v. Nixon, 582 F. Supp. 709 at 715. As such, the Court concluded that the defendants were shielded from liability under the qualified immunity doctrine. Id.

 It was not until three years after the wiretaps were conducted against plaintiffs that the Supreme Court laid down its first definitive ruling on the applicability of the warrant clause of the Fourth Amendment to national security wire surveillance operations. See United States v. United States District Court, 407 U.S. 297, 92 S. Ct. 2125, 32 L. Ed. 2d 752 (1972) (Keith); Sinclair v. Kleindienst, 207 U.S. App. D.C. 155, 645 F.2d 1080, 1084-1085 (D.C. Cir. 1981); see also Halperin II, supra, 807 F.2d 180 at 185. Consequently, because of the uncertain nature of the law at the time the wiretap was conducted, the defendants were protected from liability for any constitutional violations pursuant to the standards announced by the Supreme Court in Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2735, 73 L. Ed. 2d 396 (1982) as follows:

 
government official performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

 See Smith v. Nixon, supra, 582 F. Supp. 709, 715 (D.D.C. 1984); Sinclair, supra; accord Zweibon v. Mitchell, 231 U.S. App. D.C. 398, 720 F.2d 162, 173 (D.C. Cir. 1983) ("Zweibon IV"). See also Procunier v. Navarette, 434 U.S. 555, 565, 98 S. Ct. 855, 861, 55 L. Ed. 2d 24 (1978); Wood v. Strickland, 420 U.S. 308, 321, 95 S. Ct. 992, 1000, 43 L. Ed. 2d 214 (1975).

 While there is now little serious question that public officials have qualified immunity against civil actions founded on principles that had not yet been announced at the time the challenged official conduct took place, see Harlow, Sinclair, supra, there remains the question of what other relief is available to an aggrieved party under those later announced principles. On this point, the Court agrees with the plaintiffs' assertion that while the qualified immunity of a public official acts as a bar to a suit for damages, it does not constitute a defense to a request for equitable relief such as that sought here. See National Treasury Employees v. Nixon, 160 U.S. App. D.C. 321, 492 F.2d 587, 609 (D.C. Cir. 1974):

 
A good faith defense in a suit for damages brought against any federal official as an individual is seemingly established by Bivens v. Six Unknown Agents. . . but that defense is not assertable in the face of a quest limited to injunctive, declarative or mandamus relief."

 Accord Briggs v. Goodwin, 186 U.S. App. D.C. 179, 569 F.2d 10, 15 n.4 (D.C. Cir. 1977).

 Defendants do not seriously contest this proposition; rather, they argue that because the Supreme Court did not clarify the warrant requirements for wire surveillances until three years after the wiretap in this case was conducted, the wiretap was a fortiori constitutional. See Reply to Plaintiffs' Opposition at pp. 3-4 (citing, Smith II, 257 U.S. App. D.C. 52, 807 F.2d 197 (D.C. Cir. 1986)). In reaching this conclusion, defendants apparently rely on the Court of Appeals' observation that, "There is no dispute that the challenged wiretap was illegal (albeit not in violation of clearly established law). Id. at 204 (emphasis added). However, when speaking of the fact that the wiretap was not in violation of "clearly established" law, it is abundantly clear that the Court of Appeals was referring solely to the standard for establishing qualified immunity ...


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