Preble v. Johnson, 6184-6190.
| Decision Date | 15 January 1960 |
| Docket Number | No. 6184-6190.,6184-6190. |
| Citation | 275 F.2d 275 |
| Parties | George PREBLE, Appellant, v. J. B. JOHNSON, Appellee. George PREBLE, Appellant, v. Tom J. GOINS, Appellee. George PREBLE, Appellant, v. Claude A. PUCKETT, Appellee. George PREBLE, Appellant, v. Ray TAYLOR, Appellee. George PREBLE, Appellant, v. William H. JUERGENS, Appellee. George PREBLE, Appellant, v. L. W. PARRISH, Appellee. George PREBLE, Appellant, v. G. E. HORNE, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
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Thomas E. Bennett, Oklahoma City, Okl., for appellants.
Leonard L. Ralston, Oklahoma City, Okl. (Paul W. Cress, Oklahoma City, Okl., was with him on brief), for appellees.
Before MURRAH, Chief Judge, BREITENSTEIN, Circuit Judge, and CHRISTENSON, District Judge.
This is a consolidated appeal from summary judgments in seven libel cases, each denying appellant Preble recovery against a federal officer or employee on the ground of absolute privilege. The cases were properly removed to the federal district court under 28 U. S.C. § 1442(a) (1).
Prior to filing briefs on the merits, appellant moved in this court to amend his notices of appeal to effect his appeal from the judgments entered February 6, 1959, rather than from orders entered March 30, 1959, denying timely motions for new trial. Appellees filed countervailing motions to dismiss on the ground that the orders denying new trial were not appealable, and alternatively to affirm on the ground that in any event, the only question raised was whether the trial court abused its discretion in denying the motions for new trial. We have withheld disposition of these motions made in our court until the case was heard on the merits.
We do not dispose of cases on technicalities save where compelled by our jurisdictional limits, or by the requirements of orderly judicial administration. A denial of new trial is technically appealable, see Roberts v. Sawyer, 10 Cir., 252 F.2d 286; Creedon v. Loring, 1 Cir., 249 F.2d 714, and appellant's notices of appeal were timely to effect an appeal from the judgments. See Suggs v. Mutual Ben. Health & Accident Ass'n, 10 Cir., 115 F.2d 80. Since appellant's formal error is thus clearly harmless, and since his manifest intent is to effect a full appeal as from the judgments, his motion is granted and appellees' denied. See Atlantic Coast Line R. Co. v. Mims, 5 Cir., 199 F.2d 582, 583; Sobel v. Diatz, 88 U.S.App.D.C. 329, 189 F.2d 26, 27; United States v. Ellicott, 223 U.S. 524, 539, 32 S.Ct. 334, 56 L.Ed. 535; 6 Moore, Federal Practice 3892-93 (2d Ed.).
Coming now to the merits, the cases are presented on these facts. In February 1956, Preble was appointed director of a new maintenance control program instituted at that time, in accordance with Navy policy, at the Naval Air Technical Training Center, Norman, Oklahoma. The program was such that severe morale problems and personnel friction accompanied its effectuation wherever attempted, and NATTC was no exception. By December 1956, Preble was convinced that his efforts were not receiving proper support from his superiors, and commenced an authorized grievance proceeding in the hope of improving the situation. That same month, Preble was removed from his directorship and given a draftsman job, with an accompanying change in civil service rating from GS-10 to GS-5. As a result of the findings of a grievance committee, appointed by the base commanding officer to investigate Preble's grievance, Preble was discharged in April 1957. These acts affecting his civil service status have been appealed through the United States Civil Service Commission to the Court of Claims, and are not before us except as evidence of damages resulting from the alleged libels.
Each of the accused statements, made in the course of the grievance proceeding and related investigations, described in detail various incidents arising from on-the-job contacts and dealings with Preble, and reflected upon his fitness and efficiency in the discharge of his official duties. The Johnson, Goins, Taylor and Puckett cases involve statements made by each of them as civil service employees at the base, at the request of and directed to the chairman of the grievance committee. Each statement was delivered to other base personnel in sealed envelopes for delivery to the committee. The Goins, Taylor and Puckett cases additionally involve statements by these employees respectively given to an investigator for the Civil Service Commission, a naval personnel director, and Industrial Relations Officer Juergens, all of whom were authorized to investigate the Preble matter. The Juergens case concerns a statement by him as a civil service employee to another authorized civil service investigator at the investigator's request. The Horne case involves statements by him as a naval enlisted serviceman stationed at the base to other civil service investigators upon their request. The Parrish case involves a memorandum by him as the base commanding officer, giving Preble notice of his disemployment, and there is no allegation of the manner of its publication.
The trial court denied relief in each case because of an absolute privilege, based on identical findings that each allegedly libelous statement was in fact made "* * * in the course of and within the scope of his (each defendant's) official duties." Appellant's first contention is that as a matter of law, the statements were not made in scope of duty so as to give rise to an absolute privilege, and furthermore, the grievance proceeding being procedurally defective, persons participating in it were not thereby protected as in line of duty.
Federal law determines these issues because the privilege involved is that of federal officers or employees "acting in the course of their duties." Howard v. Lyons, 360 U.S. 593, 597, 79 S. Ct. 1331, 1333, 3 L.Ed.2d 1454. And it seems fairly plain that the federal law now is that statements are absolutely privileged if made "* * * within the outer perimeter of * * * line of duty * * *." Barr v. Matteo, 360 U.S. 564, 575, 79 S.Ct. 1335, 1341, 3 L.Ed.2d 1434; and see also Mr. Justice Black's concurring opinion, 360 U.S. 576, 79 S.Ct. 1342. In gauging privilege within this perimeter, the Supreme Court expressly rejected a rigid scope of duty, as literally prescribed by rule or...
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