Brownfield v. Landon

• Decision Date: 28 June 1962
• Docket Number: No. 16825.,16825.
• Parties: Ralph O. BROWNFIELD, Appellant, v. Truman H. LANDON, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

113 US App. DC 248, 307 F.2d 389 (1962)

Ralph O. BROWNFIELD, Appellant, v. Truman H. LANDON, Appellee.

No. 16825.

United States Court of Appeals District of Columbia Circuit.

Argued May 11, 1962.

Decided June 28, 1962.

Certiorari Denied December 3, 1962.

Mr. Bryon N. Scott, Washington, D. C., for appellant. Mr. Robert D. Scott, Washington, D. C., also entered an appearance for appellant.

Mr. Daniel A. Rezneck, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., and Nathan J. Paulson and Joseph M. Hannon, Asst. U. S. Attys., were on the brief, for appellee.

Before WILBUR K. MILLER, Chief Judge, DANAHER and BASTIAN, Circuit Judges.

Certiorari Denied December 3, 1962. See 83 S.Ct. 291.

BASTIAN, Circuit Judge.

This is an appeal from a judgment of the District Court which granted summary judgment to the defendant appellee.

The action in this case sought damages for slander against the defendant, who was serving as Inspector General of the Air Force at the time of the alleged defamation. A brief review of the facts established beyond dispute is necessary to a decision of this case.

Sometime in May 1955 the Office of Special Investigations of the Air Force started an investigation of alleged irregular conduct on the part of certain personnel at the Middletown Air Materiel Area, Olmsted Air Force Base, Pennsylvania. The investigation centered largely around the Royal Electric Company of Dayton, Ohio, and its connection with the plaintiff appellant Brownfield, among others. At the time the investigation was initiated, plaintiff was a temporary Brigadier General of the Air Force and vice-commander for Middletown; defendant was a Lieutenant General of the Air Force and, as such, was responsible for the Office of Special Investigations as Inspector General.

Without attempting to go into the many ramifications of the investigation, it is sufficient to state that serious charges were levelled at plaintiff, relating especially to his personal participation in certain business and personal transactions involving a firm known as the Royal Electric Company. Plaintiff was reprimanded and his temporary rank of Brigadier General was terminated on October 1, 1955, at which time he reverted to his permanent rank of Colonel.

Robert E. McNett, head of the Royal Electric Company, contacted Representative Wickersham, a member of Congress from Oklahoma, who knew of the fact that Royal, as well as Brownfield, was charged with irregularities. Wickersham and McNett, as a result of a telephone request from Representative Wickersham, conferred with Lieutenant General Eckert, then Assistant Chief of Staff for Materiel with headquarters in the Pentagon. Wickersham explained that he was acting in his official capacity and as a member of the House Armed Services Committee. He added that Royal was on the debarred bidders list in connection with the charge against plaintiff, and particularly in connection with a patent which the latter had sold to Royal. General Eckert made an appointment for General Landon to meet with Wickersham and McNett. Whether or not the meeting was requested by Mr. Wickersham, Mr. McNett or General Eckert is not clear but that is immaterial, as the appointment was agreeable to both Wickersham and McNett.

Mr. Wickersham, Mr. McNett, General Landon, and a junior officer of the Air Force met on October 13, 1955, at which meeting the slanderous words were allegedly spoken. Although there is not the slightest question that the purpose of the conference was to cause a cancellation of the investigation and a restoration of Royal as an eligible bidder, some question is raised as to who first brought up plaintiff's name. We consider the answer to that question immaterial. The purpose of the conference was to discuss the investigation, the surrounding facts of which were fully known to all parties present. Since the investigation involved improprieties alleged to have arisen in connection with certain business transactions between plaintiff and Royal, it is obvious there could have been no discussion of the investigation without reference to plaintiff's activities, the two being inseparably linked. In other words, silence as to plaintiff's activities would have been equivalent to silence with respect to the investigation. And, from the time Mr. Wickersham first entered the picture until the meeting at which the alleged slander took place, the matter under discussion involved the relationship allegedly existing between Royal and plaintiff. It further appears that, in the course of this conversation, Mr. Wickersham remarked that in his opinion Congress, or one of its committees, could investigate the investigators and that General Landon's investigators were the ones who should be investigated. It was in responding to this observation concerning the integrity of the investigation that General Landon is alleged to have slandered the plaintiff.

Thereafter, and on September 4, 1959, the present suit was filed seeking damages for the alleged slander. The answer of the defendant admitted conferring with Mr. Wickersham and Mr. McNett but denied that he made the statement attributed to him, pleaded the truth of the words that he did speak, and stated "that any and all actions taken or words spoken in the premises by him were in the course and conduct of his official duties as Inspector General of the United States Air Force and are and were absolutely privileged." It is with this claim of privilege that this opinion will deal.

On November 27, 1959, the defendant filed motion for summary judgment, with accompanying affidavits and exhibits. Opposition and accompanying affidavits were filed by plaintiff. This motion was denied by District Judge Youngdahl on June 3, 1960, on the ground that material facts were in dispute, particularly those concerning the circumstances under which the defendant uttered the alleged slander.

After depositions of McNett, Brownfield, Wickersham, General Eckert, and Colonel N. E. Powel (who was present at the interview in question and who "normally * * * was always present whenever General Landon as Inspector General had an official visitor") had thereafter been taken and further exhibits filed, the defendant "on the basis of further discovery since June 3, 1960," moved the court for summary judgment "for the reason that there now exists no dispute as to the material facts and defendant is entitled to judgment as a matter of law."

In a brief memorandum, the court (Judge Matthews) announced that it found for the defendant. The District Judge relied upon two cases decided by the Supreme Court, Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), and Howard v. Lyons, 360 U.S. 593, 79 S.Ct. 1331, 3 L.Ed.2d 1454 (1959); and Gregoire v. Biddle, 177 F.2d 579 (2d Cir.1949). Accordingly, on November 21, 1961, the court entered its order granting the motion for summary judgment. This appeal followed.

We think the two Supreme Court cases adequately establish the correctness of the District Court's ruling.

Barr v. Matteo, supra, was a libel action, the libel being contained in a press release issued at the direction of the defendant, the Acting Director of the Office of Rent Stabilization, announcing his intention to suspend two subordinate officials because of the part they had played in formulating a plan for the utilization of certain agency funds. Thus, the press release was alleged by the plaintiffs to have defamed them and to have been actuated by malice. After certain intermediate proceedings not...