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Birnbaum v. United States

Citation. Birnbaum v. United States, 588 F.2d 319, 201 U.S.P.Q. (BNA) 623, 47 A.L.R. Fed. 259 (2d Cir. N.Y. Nov. 9, 1978)
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Brief Fact Summary.

The United States District Court for the Eastern District of New York awarded damages to the Plaintiffs, Birnbaum and others (Plaintiffs) under the Federal Tort Claims Act (the Act). The Defendant, the United States (Defendant), appealed.

Synopsis of Rule of Law.

” The purpose of the Act, 28 U.S.C.S. Section: 2671, is generally to waive the sovereign immunity of the United States for torts of its employees committed within the scope of their employment, if such torts committed in the employ of a private person would give rise to liability under state law.
” 28 U.S.C.S. Section: 2680 (a) creates an exemption from liability for acts done pursuant to a discretionary function.
” A person is guilty of tampering with private communications when knowing that he does not have the consent of the sender or receiver, he opens or reads a sealed letter.


The CIA and the FBI covertly opened mail addressed to the Plaintiffs. The latter brought an action against the Defendant for intrusion pursuant to the Federal Tort Claims Act. In pleadings, the Plaintiffs alleged and the Defendant admitted that it opened and copied the Plaintiffs’ mail that was sent to and from the U.S.S.R. during a 20-year period. The Defendant argued that there is no right to privacy under New York law. In a court trial, the judge found for the Plaintiffs and granted damages of $1,000.00 each.


Was the government exempt from liability for intrusion of privacy on the grounds of sovereign immunity?


No. The court held that the government acted so far beyond its authority that it could not have been exercising a function that could in any proper sense be called discretionary.


The dissent takes only minor issue with the majority’s reasoning, noting, “the opening of Soviet Union-U.S.A. correspondence might well be a discretionary function or duty on the part of a federal agency,” as “The CIA is an agency created by Congress to protect our national security in the international field.” However, until Congress expands the agency’s powers, “courts will continue to be plagued with the necessity of evaluating and balancing the basic values to be resolved.”


At core, this is a case about privacy rights and the court elucidates the right of privacy as expressed in the Restatement (Second) of Torts Section: 652A: “There are four types of privacy invasions: (1) unreasonable intrusion upon the seclusion of another, (2) appropriation of another’s name or likeness, (3) unreasonable publicity given to another’s private life, and (4) publicity that unreasonably places another in a false light before the public.” Simply stated, “Violation of the right against intrusion may occur through opening one’s private and personal mail.” The government conceded the agencies had committed the act in question. Thus, the issue becomes twofold: 1) Is the U.S. Government immune from liability? 2) May the government be excused pursuant to New York State law?
The court then ticks off the exceptions by which the government would be afforded immunity: “Under the Federal Tort Claims Act (Act), 28 U.S.C.S. Section: 2680 (h), there is an exception for any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.” As the court flatly states, “The torts of trespass and invasion of privacy do not fall within the exception of the Act.” The issue then becomes one of consideration of the government’s blanket protections pursuant to discretionary functions. As the court explained, “A discretionary function can derive only from properly delegated authority. Authority generally stems from a statute or regulation, or at least, from a jurisdictional grant that brings the discretionary function within the competence of the agency. Discretion may be as elastic as a rubber band, but it, too, has a breaking point. An act that is cl
early outside the authority delegated cannot be considered as an abuse of discretion.” Additionally, the court clarified, “The term ‘discretionary function’ permits a judicial interpretation which achieves substantial justice without chilling governmental action any more than an erosion of the absolute immunity of government officials has been thought to chill such action.” The court, exercising the interpretation that is its role, found that the activity in question did not constitute a discretionary function, and thus did not fall under any exception. The court accordingly affirmed.

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