Glass v. Ickes

• Decision Date: 26 August 1940
• Docket Number: No. 7460.,7460.
• Parties: GLASS v. ICKES, Secretary of the Interior.
• Court: U.S. Court of Appeals — District of Columbia Circuit

117 F.2d 273 (1940)

GLASS v. ICKES, Secretary of the Interior.

No. 7460.

United States Court of Appeals for the District of Columbia.

Decided August 26, 1940.

C. L. Dawson and L. Karlton Mosteller, both of Washington, D. C., for appellant.

Nathan R. Margold, Solicitor, and Frederick L. Kirgis and Harry M. Edelstein of the Solicitor's Office, Interior Department, all of Washington, D. C., for appellee.

Before GRONER, Chief Justice, and EDGERTON and VINSON, Associate Justices.

VINSON, Associate Justice.

This is an appeal from a judgment of the District Court dismissing the appellant's complaint on the ground that it failed to state a cause of action.

The appellant's action is one for defamation, and is based on an allegedly libelous press release issued by the appellee, present Secretary of the Interior (referred to herein as the Secretary). The material allegations of the complaint are as follows: On November 23, 1938, the Secretary "wilfully and maliciously published, released, circulated and delivered to the Press Associations * * * and to divers other persons, and caused to be published to the world, a false and defamatory written memorandum press release * * *" which reads as follows:

"United States "Department of the Interior "Memorandum for the Press "For Release November 23, 1938

"Oil operators being `personally' invited on a `Strictly confidential' basis to contribute some $5,000 to an oil lobbying fund sought by John D. Glass, Tyler, Texas, lawyer, were advised by Secretary of the Interior Harold L. Ickes today to investigate.

"Making information which had come to him public, Secretary Ickes said:

"`Mr. Glass has been barred from practice before the Department. The Courts to date have refused Mr. Glass' prayer that this action be enjoined. I suggest that oil operators given an opportunity by Mr. Glass to kick in to his fund stop, look, and listen before they finance this proposed one-man lobby.'"

"The present letters are being circulated under Mr. Glass' professional letter head and over his signature reciting that he is engaged in an effort to secure `immediate reforms in the Connally Hot Oil Act enforcement' to eliminate what he described as `discriminations.' These letters which go to oil operators set forth that he desires legislation to benefit various persons engaged in the oil business including `small independent units.' He also advocates legislation to end prosecuting violators under felony statutes and substitutes misdemeanor prosecutions. Mr. Glass states that he proposes to enlist senators and representatives in support of his proposals, and recites that he has gotten certain publications to support his stand and concludes:

"`I have much personal interest in this matter and had intended to pursue it without any material financial assistance. But my present income is so limited that it now appears that to properly carry forward this campaign will require help to the extent of about $5,000. I am therefore writing this to you and to several other oil operators who I believe should be interested. I ask that you please give it your careful consideration, and if you believe my efforts are worth while, that you kindly communicate to me any suggestions you may have to offer as to how I might acquire the needed funds.

"`The source of any assistance offered will be kept strictly confidential as will any communication from you in the matter.'

"The record shows that prior to September 15, 1937, Mr. Glass was chief investigator of the Federal Petroleum Agency No. 1 in the Department of the Interior, the investigative agency of Federal Tender Board No. 1. Effective September 15, 1937, he resigned his position in order to practice law at Tyler, Texas. A Departmental regulation promulgated by Secretary Ickes in March of 1933, provides that no ex-employee of the Department may practice before the Department or any of its agencies or boards for two years after his services with the Department are terminated. This regulation is to prevent Government employees selling confidential knowledge and experience. Contrary to such regulation Mr. Glass attempted to represent one Everett Brewer in a proceeding before the Federal Tender Board. Prior to his resignation Mr. Glass had supervised a matter in which Mr. Brewer was concerned and has initialed and signed memoranda to his superior, the Director of the Federal Petroleum Agency in which he had recommended that certain action be taken. After Mr. Glass resigned Mr. Brewer was subpoenaed by the Federal Tender Board to appear before the Board and testify in this very matter.

"When these facts were called to the attention of the Secretary of the Interior, he pointed out to the Federal Tender Board the existence of the Departmental regulation and instructed the Federal Tender Board that it be governed thereby in the event any former employee should appear before the Board. Mr. Glass was thereafter prevented from practicing before the Board.

"He commenced an action in the United States District Court in Texas against the Federal Tender Board attempting to enjoin the Board from preventing him from practicing before it. That action was dismissed for failure to serve Secretary Ickes as a defendant. Thereupon Glass brought an action in the United States District Court for the District of Columbia against Secretary Ickes and the Director of the Petroleum Conservation Division to enjoin them from enforcing the Departmental regulation and preventing him from practicing before the Federal Tender Board.

"Among the grounds urged by Glass for the issuance of an injunction were the lack of authority of the Secretary to promulgate the regulation, its unreasonableness, its unconstitutionality, and that it was being unfairly applied to him. He moved the Court for a preliminary injunction but the motion was denied by judge Bailey who held that the Secretary was authorized to promulgate the regulation, and that it was reasonable."

In specifying the libelous portion of this press release the complaint charged that it conveyed and was intended "to convey to all oil operators and the public false statements to the effect that plaintiff immorally, unethically, and unlawfully sold or attempted to sell or otherwise misuse confidential information and knowledge, obtained while previously employed by the Government, in a certain case or proceeding before said Board, and that plaintiff was unworthy of the confidence and respect of all oil operators and the public." Further it alleged that this was false and known to be so by the Secretary but that he "deliberately, wilfully, and maliciously published, released and circulated said press release for the purpose of injuring, damaging and discrediting plaintiff and his reputation, and for the purpose of injuring and destroying his professional standing and reputation as an attorney and member of the bar of the State of Texas". Damages, compensatory and punitive, were prayed for in the sum of $750,000.

The Secretary moved in the District Court to dismiss the complaint on the ground that it "failed to state a claim upon which relief can be granted". The motion was sustained and the complaint dismissed.

In attacking the decision of the District Court the appellant urges first, that the communication in question is libelous, and second, that it is not absolutely privileged. It may be observed in respect to the first point that the appellant concedes that, for the most part, the statements contained in the press release are literally true.¹ If any libel is to be found therein in it must be by innuendo. As to whether there is such the parties have addressed considerable argument. We find it unnecessary to decide that question, however, in light of our view on the second issue presented. This more fundamental issue is the question whether the communication involved is privileged to the extent that it cannot be the subject of an action for libel.

An act may be privileged from civil liability conditionally or absolutely. If a privilege merely conditional in nature is accorded, allegations in the plaintiff's complaint to the effect that improper motive prompted the defendant to act, will succeed in bringing the latter into court to have a jury pass on that charge. Considerations of public policy argue against this eventuality in respect to certain types of acts, so an absolute privilege is accorded in respect to these, in which case allegations of "malice" or improper motive in a complaint are of no significance. It has long been settled, for example, that a judge is absolutely privileged from civil liability in respect to acts done in the course of his judicial duties.² In 1895 the Supreme Court was confronted in Spalding v. Vilas, 161 U.S. 483, 16 S. Ct. 631, 635, 40 L.Ed. 780, with the question whether a similar privilege should be accorded a cabinet officer in respect to an allegedly libelous communication issued in the course of his official duties. In deciding the issue Harlan, J., writing for a unanimous court remarked in part as follows:

"If as we hold to be the case, the circular issued by the Postmaster General to claimants under the acts of Congress in question was not unauthorized by law, nor beyond the scope of his official duties, can this action be maintained because of the allegation that what that officer did was done maliciously?

* * *

"We are of the opinion that the same general considerations of public policy and convenience which demand for judges of courts of superior jurisdiction immunity from civil suits for damages arising from acts done by them in the course of the performance of their judicial functions, apply to a large extent to official communications made by heads of executive departments when engaged in the discharge of duties imposed upon them by law. The interests of the people require that due protection be accorded to them in respect of their official acts. As in the case of a judicial...