Williams v. Brooks, 90-2406

• Decision Date: 31 October 1991
• Docket Number: No. 90-2406,90-2406
• Citation: 945 F.2d 1322
• Parties: W. Douglas WILLIAMS, Plaintiff-Appellee, v. Honorable Jack BROOKS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1322

945 F.2d 1322

W. Douglas WILLIAMS, Plaintiff-Appellee, v.Honorable Jack BROOKS, Defendant-Appellant.

No. 90-2406.

United States Court of Appeals Fifth Circuit.

Oct. 31, 1991.

Steven R. Ross, Gen. Counsel to the Clerk, Robert M. Long, Asst. U.S. House of Representatives, Charles D. Tiefer, Deputy Gen. Counsel to the Clerk, Washington, D.C., for defendant-appellant.

Ella T. Tyler, Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before REAVLEY, GARWOOD and BARKSDALE, Circuit Judges.

GARWOOD, Circuit Judge:

The sole issue in this interlocutory appeal is whether defendant-appellant The Honorable Jack Brooks(Congressman Brooks), as a Member of Congress, is absolutely immune under the doctrine of official immunity from a claim for defamation brought by a private citizen for comments made in a television interview.We hold that he is not, and we therefore affirm the district court's denial of his claim of official immunity.

Facts and Proceedings Below

In 1983, the State of Texas established the Battleship Texas Advisory Board(Board) to promote the restoration of the Battleship Texas.The Board sought private donations to fund the restoration.The plaintiff-appellee, W. Douglas Williams(Williams), works as a fund raiser in political affairs, both individually and through Texas Dynamics, Inc., a corporation of which he is the sole shareholder.Williams contracted with the Board to raise money for the restoration of the battleship.

In addition to the solicitation of private donations, those interested in the restoration effort sought public funds.Their efforts were successful; on October 30, 1986, Congress enacted the Continuing Appropriations for Fiscal Year 1987.In part of this continuing resolution providing for defense appropriations, the law made $5,080,000 available for a grant to the Board.After the appropriations bill was passed, but before funds were disbursed under the grant, the Board terminated Williams' contract.Williams contended that his contract entitled him to compensation equivalent to ten percent of the federal appropriation.A controversy developed over the compensation to be paid by the Board to Williams.

During the course of the controversy, in January 1987, Congressman Brooks wrote a letter to Secretary of the Navy John F. Lehman regarding the federal appropriation.The letter referred to Williams' claim for a share of the federal funds and stated that, in Congressman Brooks' opinion, it would "be against public policy--and possibly illegal as well--for Federal funds to be diverted to such use."Congressman Brooks requested a delay in administrative action before any disbursement of funds.A copy of the letter was sent to Williams, whose counsel sent his own letter in response.Secretary Lehman agreed that the appropriated sums should not be used for fund raising, and the grant was withdrawn until the issue could be resolved.

The allegedly defamatory statements were made by Congressman Brooks in a television interview at his Washington government office.Williams' complaint alleges that:

"[O]n or about February 14, 1987, the Defendant, Jack Brooks, was interviewed in his Washington office by a representative of KTRK television, also known as Channel 13, which is located in Houston, Texas, and said interview related to the controversy which had arisen in connection with the restoration of the Battleship Texas.During said interview, which was videotaped or otherwise recorded by agents of KTRK television, the Defendant spoke the following words of and concerning the Plaintiffs which in the context of said interview could only be understood to refer to Plaintiff Williams and his corporation.In this regard, Defendant Brooks stated that Plaintiff Williams was 'an ordinary hustler' and/or 'a small-time hustler.'Defendant Brooks further stated that Plaintiff Williams' conduct was 'illegal and immoral' and that 'five and ten percenters' such as Plaintiff Williams 'were put in jail under Eisenhower and that's where they ought to put them.' "¹

Congressman Brooks contends that his position on the controversy regarding remuneration for Williams was being enacted into law at the time his statement was made to KTRK.Williams disagrees, and the trial court's order states that there was no legislative action pending at the time Congressman Brooks was interviewed.In any event, on March 5, the week after the KTRK broadcast, the House Subcommittee on Defense, with jurisdiction over the Battleship Texas grant, had a meeting regarding the fiscal year 1987 supplemental appropriations.On March 25, the House Appropriations Committee reported the Supplemental Appropriations Bill for Fiscal 1987 to the House.The bill contained language clarifying that the monies appropriated for the Battleship Texas were to be used only for restoration and not for remuneration of fund-raising activities.The supplemental appropriations bill was signed into law on July 11, 1987, with the added provision that the grant would be made to the Texas Parks and Wildlife Department instead of the Board.

On February 22, 1988, Williams filed suit against Congressman Brooks in state court, alleging defamation based on Congressman Brooks' statements in the television interview.The case was removed to federal court pursuant to 28 U.S.C. § 1442(a)(1) and (4).²On June 9 1988, Congressman Brooks moved to dismiss the suit, claiming that he is entitled to official immunity under federal law.After briefing and oral argument, the district court in March 1990 denied the motion, and Congressman Brooks then perfected this pretrial appeal.

Discussion

Although the denial of a motion to dismiss is not a final judgment appealable under 28 U.S.C. § 1291, the denial of the instant motion, which raises a colorable claim of immunity, is appealable under the collateral order exception to the finality requirement of section 1291.SeeHelstoski v. Meanor, 442 U.S. 500, 99 S.Ct. 2445, 2449, 61 L.Ed.2d 30(1979)(Speech or Debate Clause immunity);Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 2697, 73 L.Ed.2d 349(1982)(presidential absolute immunity);Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 2814-15, 86 L.Ed.2d 411(1985)(qualified immunity);Williams v. Collins, 728 F.2d 721, 724-26(5th Cir.1984)(absolute immunity under Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434(1959)).

The district court's denial of a motion to dismiss on immunity grounds presents a question of law, reviewable de novo.Walter v. Torres, 917 F.2d 1379, 1383(5th Cir.1990).

The district court held that official immunity for federal legislators is coextensive with their protection under the Speech or Debate Clause.Congressman Brooks argues that congressmen are entitled to official immunity from suits for common law torts even when immunity would not be available under the Speech or Debate Clause.³

Speech or Debate Clause Immunity

The Speech or Debate Clause, U.S. Const. art. I, § 6, cl. 1, provides that, "for any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place."The clause has been interpreted to protect only "purely legislative activities."United States v. Brewster, 408 U.S. 501, 92 S.Ct. 2531, 2537, 33 L.Ed.2d 507(1972)(" 'news letters' to constituents, news releases, and speeches delivered outside the Congress ... are political in nature rather than legislative").In Hutchinson v. Proxmire, 443 U.S. 111, 99 S.Ct. 2675, 61 L.Ed.2d 411(1979), the plaintiff sued a member of Congress for making allegedly defamatory statements in a widely distributed press release.The Supreme Court held that the Speech or Debate Clause did not protect the issuance of the press release because "the transmittal of ... information by individual Members in order to inform the public ... is not a part of the legislative function or the deliberations that make up the legislative process."99 S.Ct. at 2687.Congressman Brooks concedes that controlling Supreme Court precedent precludes a defense of Speech or Debate Clause immunity to this lawsuit.

Official Immunity

The judicially-created doctrine of official immunity protects federal officials from civil suits arising out of actions taken in the performance of their official duties and responsibilities.In Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434(1959), the Supreme Court held that the acting director of the Office of Rent Stabilization was immune from a defamation action because his press statements were "within the outer perimeter of [his] line of duty."79 S.Ct. at 1341.The Court reasoned that

"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 th[eir] 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."Id. at 1339.

Although the doctrine of official immunity provides only a qualified immunity where constitutional torts are alleged, Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 2732, 73 L.Ed.2d 396(1982), it provides "absolute immunity from suits [for torts] at common law."Id.102 S.Ct. at 2732-33;Claus v. Gyorkey, 674 F.2d 427, 431(5th Cir.1982)("Absent an allegation of a tort of constitutional magnitude, federal officials are entitled to absolute immunity for ordinary torts committed within the scope of their jobs").

A variety of federal and local officials are protected by the doctrine of official immunity.⁴Relying primarily upon Doe v. McMillan, 412 U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912(1973), andMinton v. St. Bernard Parish School Bd., 803 F.2d 129, 134-135(5th Cir.1986), the district court held that in the case of legislative...