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January 11, 1989

WILLIAM F. SESSIONS, et al., Defendants

George H. Revercomb, United States District Judge.

The opinion of the court was delivered by: REVERCOMB


 This is an action brought by individuals and organizations that have engaged in political activities which resulted in their becoming subjects of an investigation conducted by the Federal Bureau of Investigation ("FBI"). The investigation was begun early in 1983. Because of the information upon which the investigation was based, the investigation was listed by the FBI under the heading "foreign counter-intelligence/international terrorism." The current director of the FBI has stated in congressional testimony that the investigation was begun without a proper predicate, since the Bureau's paid informant, Frank Varelli, was found to be unreliable. The FBI made no assessment of his reliability at the inception. Despite this initial flaw, the investigation was quite extensive and lengthy, and continued to be so after Varelli's trustworthiness was found to be wanting. All 59 FBI field offices eventually became involved. The original topic of the investigation, which was possible links between CISPES and foreign-sponsored terrorism, was broadened to encompass the investigation of many other groups and individuals who opposed the Reagan Administration's foreign policy in Central America. The scope of the investigation was widened to include persons who attended demonstrations against U.S. policy, those who publicly opposed that policy in print or on the airwaves, were mentioned by others as being opposed to it, etc. Undercover FBI agents attended meetings and collected information. Paid informants were utilized, and Frank Varelli, mentioned above as the source of the original information concerning CISPES, became a dues-paying member of the Dallas branch of CISPES. The FBI also conducted interviews of friends, family, associates and employers of CISPES members and other subjects of the investigation. The plaintiffs' exhibits support their claim that derogatory information about CISPES and its members was distributed by FBI agents doing this investigative work. Plaintiffs are justifiably worried that this may have worked to their detriment.

 The plaintiffs seek a preliminary injunction, pursuant to Federal Rule of Civil Procedure 65, enjoining the FBI from further use and dissemination of the files and information compiled as a result of the investigation, mandating the retrieval of files and information already disseminated and causing all such materials to be sealed and deposited in the National Archives.

 There are four factors the Court must consider in determining whether to grant the extraordinary remedy of preliminary injunctive relief. These are 1) whether the plaintiff faces a real and immediate threat of irreparable injury in the absence of the award of preliminary relief; 2) the likelihood that the plaintiff will prevail on the merits of the claim; 3) the possibility of substantial harm to third parties should the Court award preliminary relief; and 4) the public interest. Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 182 U.S. App. D.C. 220, 559 F.2d 841, 842-43 (D.C. Cir. 1977). The Court will address each prong of this test in turn.

 1. Threat of Irreparable Injury.

 As the government points out in its opposition to the plaintiffs' motion, a sine qua non of preliminary injunctive relief is that there be a real and imminent threat of harm. For preliminary relief to be granted, the harm which the plaintiffs will suffer must be irreparable, that is, not susceptible to remedy during the ordinary course of litigation. This rule was elaborated in Virginia Petroleum Jobbers Association v. Federal Power Commission, 104 U.S. App. D.C. 106, 259 F.2d 921 (D.C. Cir. 1958). There, the Court of Appeals stated that

the key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended . . . are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.

 259 F.2d at 925.

 A considerable portion of the material submitted by the plaintiffs in this case concerns events which occurred during the course of the FBI investigation of CISPES. That investigation, which yielded the files which the plaintiffs would have the Court order sealed, was terminated in 1985. The harms alleged by the plaintiffs relating to the conduct of the investigation, even if they amount to illegal or unconstitutional activities, do not create a present entitlement to injunctive relief because the investigation is no longer alive, and the FBI has publicly discredited it in its entirety. Thus, even if the Court were to accept at this stage in the litigation the plaintiffs' argument that the conduct of the CISPES investigation was in violation of their rights, the preliminary equitable remedy sought by the plaintiffs is not available "where there is no showing of any real or immediate threat that the plaintiff will be wronged again. . . ." City of Los Angeles v. Lyons, 461 U.S. 95, 111, 75 L. Ed. 2d 675, 103 S. Ct. 1660 (1983). The fact that Director Sessions has come forward and testified before Congress that the investigation was baseless should suffice to quell many of the fears of those plaintiffs who are concerned that the FBI's use of derogatory information about CISPES in interviews might have injured their reputations. The Bureau has also moved to restrict access to the CISPES files. The course of this litigation should also serve a similar purpose. It seems to the Court that the Director's statements and actions, as well as the public record in court, should allay present and future concerns regarding reputation. Therefore, the Court will restrict its evaluation of the plaintiffs' claim for preliminary relief to those portions of their argument which relate to concrete present and future harms.

 The plaintiffs have submitted three declarations which address the question of present injury. The first is that of CISPES Operation Director Lent, who avers upon information and belief that the investigation has caused CISPES to lose funds, and has deterred individuals from joining CISPES. The Court finds that this declaration is conclusory and speculative. There is no basis offered in the declaration for the assertion that CISPES has lost funds because of the FBI's investigation. As the government points out, the declaration fails to set out the organization's annual receipts, leaving the Court with no basis for concluding whether CISPES has actually lost funding or not, let alone whether the FBI's investigation has caused the funds to diminish. Similarly, Mr. Lent's assertion that the investigation has deterred individuals from joining CISPES is supported by nothing more than the declarant's belief that this is so. Mr. Lent fails to offer a single example. The Court need not find that Mr. Lent's allegations are baseless in order to conclude that they do not meet the level required to justify preliminary relief. But the showing required for a preliminary injunction is that "a plaintiff must do more than merely allege imminent harm sufficient to establish standing; a plaintiff must demonstrate immediate threatened injury as a prerequisite to preliminary injunctive relief." Caribbean Marine Services Co. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988) (citations omitted). The Lent Declaration has failed to make such a demonstration.

 Similarly, the declarations of Messrs. Shea and Ryan fail to demonstrate the required "immediate threatened injury" which cannot be redressed in the ordinary course of litigation. The purport of these declarations is that the individuals named as part of the CISPES investigation suffer a present and future harm in that the existence of files identifying them with CISPES would preclude employment in the Federal service. There are at least three flaws with the attempted use of these declarations to demonstrate the level of harm required for injunctive relief.

 First, as the Government points out in its opposition, the declarations fail to take into account the effect of the disclosure restrictions already promulgated by Director Sessions, which forbid disclosure except under the authority of senior officials at FBI headquarters. These restrictions make much less likely the plaintiff's proffered scenario of mindlessly bureaucratic application of the results of the CISPES investigation. In any event, the declarations are speculative, since no plaintiff has averred that he is presently seeking employment in the Federal service, nor has any plaintiff come forward who has future or contingent plans to that effect.

 Second, the only example of a request for information the plaintiffs present occurred in 1984, i.e., while the investigation was still in progress. In that instance, the Department of Agriculture submitted a name-check request. This request did not seek, nor did it yield, information on an individual; the request concerned CISPES itself, and in response to it the FBI supplied information on the organization, not on an individual. Plaintiffs' Exhibit 39. The plaintiffs argue that this amounted to supplying derogatory information concerning an individual. In point of fact, the FBI's response was that "membership in this organization does not necessarily pose a threat to the security of the United States." Although it is difficult to argue that this is praise, it is also not obvious to the Court that the statement is "derogatory" as regards an individual member. Literally, the statement simply says that membership does not constitute a per se security threat. The Court does not find that more laudatory language should have been required of the FBI at the time the request was made, i.e., during the investigation. Furthermore, the information supplied concerned the group, not an individual. The plaintiffs have failed to allege a single instance of harm to an individual job applicant, whether during the course of the investigation, after it was terminated, or since the present disclosure restrictions went into effect. Since the plaintiffs have failed to demonstrate any present or future ...

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