BIRNBAUM V. U.S.

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP04M01816R000502000002-2
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 24
• Document Creation Date: December 21, 2016
• Document Release Date: September 15, 2008
• Sequence Number: 2
• Publication Date: August 17, 1977
• Content Type: MISC

Approved For Release 2008/09/15: CIA-RDP04M01816R000502000002-2
BIRNBAUM v. U. S.
Cite as 436 F.Supp. 967 (1977)
is not yet due, the (late when it will become
due shall be stated. If the claim is contin-
gent or unliquidated, the nature of the un-
certainty shall. be stated. If the claim is
secured, the security shall he described.
The claimant shall deliver two copies of the
claim to the Clerk to enable the Clerk to
mail one copy to the Administrator.
All persons interested in the estate are
required, WITHIN THIRTY DAYS FROM
THE DATE OF THE FIRST PUBLICA-
TION OF THIS NOTICE to file any objec-
tions they may have that challenge the
qualifications of the Administrator, or the
venue or jurisdiction of the Court.
ALL CLAIMS, DEMANDS, AND OB-
JECTIONS NOT SO FILED WILL BE
FOREVER BARRED.
Date of the first publication
tice of Administration:
Frederick R. Short, Jr.
As Administrator of the
Estate of Ahmad Jama,
Deceased Seaman
967
cover damage; under Federal 't'ort Claims
Act as result of action of Central Intelli-
gence Agency in intercepting, opening and
copying certain first-class mail which was
sent or received by plaintiffs. The District
Court, Weinstein, J., held that: (I) action of
CIA in opening, reading and copying first-
class mail without warrant and without
probable cause for warrantless search was
illegal under First and Fourth Amendments
as well as applicable federal statutes; (2)
Federal Tort Claims Act exceptions for dis-
cretionary act;, claims arising out of mis-
carriage of letters, and certain specified
intentional torts were not applicable to
plaintiffs' claims; (3) New York would rec-
ognize common-law right of privacy suffi-
ciently to compensate plaintiffs for CIA's
action; (4) doctrine of common-law copy-
right protected plaintiffs; (5) violation of
plaintiffs' constitutional rights was ground
of liability under New York law; (6) plain-
tiffs' suit was not certifiable as class action,
and (7) plaintiffs were each entitled to
award of $1,000 provided that Government
furnished each plaintiff with suitable letter
of regret and assurance of nonrecurrence;
25% of such award would be paid to plain-
tiffs' counse! as attorney fees.
V.
al., Defendants.
B. Leonard AVERY, Plaintiff,
V.
UNI'T'ED STATES of America et
al., Defendants.
V.
Defendant.
United States District Court,
E. I). New York.
Aug. 17, 1977.
Plaintiffs, individually and as a class,
brought anion :against United States to re-
1. Constitutional Law ca82
Post Office c-43
Searches and Seizures 7(l0)
Action of (Central Intelligence Agency
in opening, reading and copying first-class
mail without a warrant and without proba-
ble cause for wjarrantless search was illegal
under First and Fourth Amendments as
well as applicable federal statutes. 18 U.S.
C.A. ?? 241, 371, 1702; U.S.C.A.Const.
Amends. 1, 4.
2. United States X78(12)
There is n o discretion under Our system
to conceive, plan and execute an illegal
program; federal official cannot have dis-
cretion to behave unconstitutionally.
:3. United States X78(12)
Federal 'Pert Claims Act exception for
discretionary :alcts did not defeat, district
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 Approved For Release 2008/09/15: CIA-RDP04MO1816R000502000002-2
4:36 FEDERAL SUPPLEMENT
court's jurisdiction over plaintiffs' chums
against the United States arising out of
illegal action of Central Intelligence Agen-
cy in opening, reading and copying first-
class mail without a warrant and without
probable cause for warrantless search. 28
U.S.C.A. ?? 1346(h), 2680, 2680(a).
4. United States 0-78(5)
Federal Tort Claims Act exception for
claims arising out of "Joss, miscar'ri tge, or
negligent transmission of letters" had no
application to plaintiffs' claims against
United States arising out,of illegal action of
Central Intelligence Agencyi in opening,
reading and copying first-class mail without
a warrant and without probable cause for
warrantless search. 28 U.S.C.A. ?? 1346(b),
2680(h).
5. United States C=78(51,
Invasion of privacy, common-law or
constitutional, is not mentioned in provision
of Federal Tort Claims Act exempting
Government from suit for specified inten-
tional torts, and for that reason is not ex-
cluded. 28 U.S.C.A. ? 2680(h).'
6. United States c-78(5)
Parties may sue under Federal Tort
Claims Act for intentional wrong. 28 U.S.
C.A. ?? 1346(h), 2680(h).
7. United States 0-78(5)
Provision of Federal Tort Claims Act
exempting Government from suit for speci-
fied intentional torts did not bar plaintiffs'
claims against United States arising out of
illegal action of Central Intelligence Agen-
cy in opening, reading and copying first-
class mail without a warrant and without
probable cause for warrantless search, in
view of fact that suits for invasions of
constitutional right of privacy were not
mentioned in list of intentional torts con-
tained in such provision. 28 U.S.C.A.
? 2680(h).
8. United States c=78(3)
Congressional policy underlying Feder-
al Tort Claims Act is to hold the United
States liable under state law principles to
the same extent as similarly situated pri-
vate individuals. 28 U.S.C.A. ? 1346(h).
9. United States 0~78(14)
't'rial court hearing action brought un-
der Federal Tort Claims Act must look to
whole law of state where tort occurred,
including that state's law of conflicts. 28
U.S.C.A. ? 1346(h).
10. Torts c 8.5(l)
In context of actionable torts, the gen-
eral rubric "right of privacy" encompasses
four concepts: (1) intrusion upon seclusion
of another; (2) appropriation of other's
name or likeness; (3) publicity given to
other's private life of a sort which is offen-
sive and not of legitimate public concern;
and (4) publicity which places other in a
false light before public.
11. Torts c-8.5(4)
Tort of invasion of privacy is commit-
ted whenever intrusive act is committed,
even if tort-feasor'never reveals either the
fact of invasion or any information about
.plaintiff to third persons.
12. Torts 0=8.50)
Common-law right of privacy extends
beyond plaintiff's immediate physical envi-
ronment. and is infringed by examinations
of bank accounts or of personal records
under false pretenses, or by opening of
mail.
13. Federal Courts 0-384
Federal court, determining law of the
state, cannot blindly follow outmoded case
law, but must make reasoned attempt to
determine how state courts would now de-
cide the issue before it.
14. Torts