566 F.2d 289 (D.C. Cir. 1977), 74-1899, Expeditions Unlimited Aquatic Enterprises, Inc. v. Smithsonian Inst.

Docket Nº:74-1899.
Citation:566 F.2d 289
Case Date:September 16, 1977
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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566 F.2d 289 (D.C. Cir. 1977)


corporation, Appellant, Norman Scott,



No. 74-1899.

United States Court of Appeals, District of Columbia Circuit

September 16, 1977

Argued En Banc Dec. 16, 1976.

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John J. Pyne, Washington, D.C., for appellant.

Robert E. Kopp, Atty., Dept. of Justice, Washington, D.C., for appellees. Earl J. Silbert, U. S. Atty., John A. Terry and Jeffrey T. Demerath, Asst. U. S. Attys., and Suzanne D. Murphy, Asst. Gen. Counsel, Smithsonian Institution, Washington, D.C., were on the brief. Barbara L. Herwig, Atty., Dept. of Justice, Washington, D.C., also entered an appearance for.


Opinion for the Court filed by LEVENTHAL, Circuit Judge.

Concurring opinion filed by SPOTTSWOOD W. ROBINSON, III, Circuit Judge, with whom J. SKELLY WRIGHT, Circuit Judge, joins.

Concurring (dubitante) opinion filed by WILKEY, Circuit Judge.

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LEVENTHAL, Circuit Judge:

This opinion considers the issue of the conflict between the public interest in shielding responsible government officials against the harassment of vindictive or ill-founded law suits and the interest of those whose reputations may have been injured by statements of government officials. In Barr v. Matteo, 1 the Supreme Court struck the balance in favor of the officials. We do not view that 1959 ruling as undercut by later decisions, and adhere to it.

Plaintiff, Expeditions Unlimited, brought an action for libel against Clifford Evans, Chairman of the Department of Anthropology at the Smithsonian Institution's Museum of Natural History, and against the Smithsonian Institution. The action is based on a letter by Evans in which he was critical of plaintiff's capabilities in the field of underwater archaeological excavation. The district court granted summary judgment for defendant Smithsonian Institution on governmental immunity grounds. 2 The district court granted summary judgment for defendant Evans on the grounds of his absolute privilege in making statements within the scope of his duties as a government employee. We remand for further exploration of the issue whether Evans was acting within the ambit of his employment. 3 However, we agree with the district court that if Evans was acting within the ambit of his discretion, he would have absolute immunity. We do not reinstate the view in the panel opinion that there might be only a qualified privilege. We now state our reasons.

It was the fear of chilling legitimate official conduct that motivated the Supreme Court's decision in the seminal case of Barr v. Matteo, supra. Barr also involved an action for defamation. There, the Acting Director of the Office of Rent Stabilization, a federal agency, was sued by another government employee who claimed that the Acting Director had maliciously issued a press release injurious to the employee's reputation. The Court held that once it had been established that the action taken "was within the outer perimeter of (his) line of duty," the Acting Director was entitled to absolute immunity against liability in damages even though his action was a discretionary exercise and was allegedly prompted by malice. 360 U.S. at 575, 79 S.Ct. at 1341. Justice Harlan 4 reasoned that an absolute privilege was required because

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. . . officials of government should be free to exercise their duties unembarrassed by the fear of damage suits in respect of acts done in the course of those duties suits which would consume time and energies which would otherwise be devoted to governmental service and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government.

360 U.S. at 571, 79 S.Ct. at 1339.

The federal common law rule of absolute immunity of officials sued for defamation furthers the goal of effective administration of government in the public interest. 5 A qualified immunity would be dependent upon a myriad of factors and a particularistic assessment of the facts of each case, 6 leaving an official at hazard to anticipate whether or not he is protected. "An absolute immunity defeats a suit at the outset, so long as the official's actions were within the scope of the immunity. The fate of an official with qualified immunity depends upon circumstances and motivations of his actions, as established by the evidence at trial." Imbler v. Pachtman,424 U.S. 409, 419 n. 13, 96 S.Ct. 984, 989, 47 L.Ed.2d 128 (1976). Even the need to find the time and money for a defense 7 would have a chilling, if not paralyzing, effect on an official's willingness to speak out, in the exercise of his discretion, to further the public interest.

At the time we granted rehearing en banc we were aware of Economou v. U.S. Department of Agriculture, 535 F.2d 688 (2nd Cir. 1976). 8 We disagree with Economou, and view it, indeed, as illustrating the dangers of a doctrine providing only qualified immunity. There, an administrative complaint and accompanying press release of the Department of Agriculture had alleged, on the basis of an audit, that Economou had failed to maintain the minimum prescribed capital balance required for a registered futures commission merchant. An administrative law judge issued a decision finding a violation. While the administrative proceeding was pending on appeal, Economou, alleging defamation and wrongful institution of administrative proceedings, sued various officials of the Department of Agriculture, including the administrative law judge, for $32 million in damages.

As the Economou court recognized, if Barr had governed its decision, its inquiry would have stopped if "the alleged conduct of the defendants . . . was 'within the outer perimeter of their authority' and involved the exercise of discretion." 535 F.2d at 691. Instead, the court, rejecting Barr, held that only a qualified "good faith"

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immunity was applicable, and remanded the case for further proceedings.

This rejection of Barr can only exacerbate an already serious problem of modern government the tendency of bureaucrats to sit tight rather than take action likely to rile the individuals or groups being regulated. The nation's welfare is dependent upon officials who are willing to speak forthrightly and disclose violations of the law and other activities contrary to the public interest. 9 Their voices will be stilled if they perceive or fear that the person involved has the resources or disposition to defend with all affirmative tactics. When millions may turn on regulatory decisions, there is a strong incentive to counter-attack.

In Economou, the Second Circuit suggested that Barr had been undermined by the Supreme Court's decisions in cases arising under 42 U.S.C. § 1983. We disagree. 10 The Supreme Court decisions in § 1983 cases do not overrule Barr. They rather establish the rule for cases where fundamental, constitutional rights are involved, and declare that ordinary rules of official immunity must yield when the executive is charged with exercising his special power as a government official in a way prohibited by the Constitution. In Scheuer v. Rhodes, 11 far from undercutting Barr, Chief Justice Burger cited Barr and its antecedent, Spalding v. Vilas, 12 as cases illuminating the inherent necessity of providing broad protection to executive discretionary acts in the context of defamation actions. He noted, however, that Barr and Spalding arose "in a context other than a § 1983 suit" (at 247, 94 S.Ct. at 1692.). The absolute immunity those cases granted to federal executive officials was not extended to state officials sued under § 1983; they could claim only qualified immunity. Chief Justice Burger's opinion makes the reason clear: Since § 1983 gives an action against state officials when constitutional violations are invoked, it is patently inconsistent with that federal statutory action to apply a federal common law rule of absolute immunity for executive officials subjected to suit by the statute. 13 While § 1983 retains the

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absolute immunity of officials exercising power within the judicial or quasi-judicial ambit, 14 the plain provision for suits against officials in the executive branch precludes an absolute immunity defense.

Our decision in Apton v. Wilson, 165 U.S.App.D.C. 22, 506 F.2d 83 (1974), extended the Scheuer rule of qualified immunity in § 1983 cases to an action against federal officials that involved one of our "most cherished liberties," the freedom from arbitrary arrest and detention. 165 U.S.App.D.C. at 32, 506 F.2d at 93.

The defamation action in the case at bar involves damage to business reputation an interest of no greater weight than the interest in personal reputation involved in Barr. While damage to reputation is not inconsequential, and can, under some circumstances, qualify for procedural protection under the due process clause, 15 it is not as basic to a free society as the Fourth Amendment right to be free from arbitrary search and seizure of person or property, a right so precious that a remedy in damages has been inferred from the Constitution itself. Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

Nor is Barr undercut by Doe v. McMillan, 412 U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973). That was essentially a case involving legislative immunity, under the speech or debate clause, and the Court remanded for a determination of the extent of legislative immunity. Doe involved a suit by parents for invasion of privacy from the dissemination of a congressional report that identified students in derogatory...

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