Wu v. Keeney

• Decision Date: 17 October 1974
• Docket Number: Civ. A. No. 886-73.
• Citation: 384 F. Supp. 1161
• Parties: K. C. WU, Plaintiff, v. Barnaby C. KEENEY et al., Defendants.
• Court: U.S. District Court — District of Columbia

384 F. Supp. 1161

K. C. WU, Plaintiff, v. Barnaby C. KEENEY et al., Defendants.

Civ. A. No. 886-73.

United States District Court, District of Columbia.

October 17, 1974.

K. C. Wu, pro se.

Earl J. Silbert, U. S. Atty., Arnold T. Aikens, and Peter R. Reilly, Asst. U. S. Attys., Washington, D. C., for defendants.

MEMORANDUM OPINION

WADDY, District Judge.

Plaintiff brings this action against three past and present officials of the National Endowment For The Humanities¹ Endowment and five unnamed "outside reviewers," experts serving the Endowment in an unremunerated capacity, alleging that defendants conspired and made fraudulent representations which damaged plaintiff's reputation. The claim arose out of the Endowment's rejection of plaintiff's application for a $70,000 grant to write the first volume of a proposed three volume history of China. Plaintiff has not sued the Endowment eo nomine to review its decision, but alleges instead that the defendants made fraudulent and defamatory statements in their "individual and private" capacities. The defendant officials of the Endowment are represented, however, by the United States Attorney in his official capacity. The case is now before the Court on defendant Emerson's objection to a recommendation of the Pre-Trial Examiner and on the defendants' motion for judgment on the pleadings or, in the alternative, for summary judgment. The material facts being undisputed, the Court concludes, for the reasons set forth below, that summary judgment should be granted in favor of defendants and that defendants' objections to the recommendation of the Pre-Trial Examiner should be sustained.

I.

Plaintiff is a naturalized citizen of the United States, born and raised in China, who received his college and graduate education in this country (degrees from Grinnell College and Princeton University). Upon completion of his studies in the United States, plaintiff returned to China to serve in various positions in the Chinese government. Mr. Wu became a resident of this country in 1953 and was employed here as a lecturer and writer. In 1965 he was appointed professor at Armstrong State College, Savannah, Georgia.

In 1970 Mr. Wu applied to the Endowment for his grant, contending that most histories of China written by American historians were replete with factual inaccuracies and that he was one of the few persons with both a "classical" Chinese education and an understanding of the American political system who could author a comprehensive history of his homeland. In keeping with routine procedures, defendant Emerson, Director of the Division of Research Grants of the Endowment, referred plaintiff's proposal to the five unnamed "outside reviewers," each of whom is an expert in Chinese history and a university professor. Four of the experts submitted written reviews recommending rejection of the proposal. The fifth reviewer also recommended rejection in an oral review of the application and requested that his comments be kept confidential.

The application was next referred to a panel of consultants who are experts in the "humanities."² This panel also recommended rejection of Mr. Wu's application, a conclusion which was, in turn, supported by a committee of full-time staff members of the Endowment. The members of the panel of experts and the staff committee assigned a rating to plaintiff's application which placed it in a category of proposals which were of "poor quality" and which "would not be funded even if adequate funds were available to support all applications presented to the Endowment."³ The final step in the review process occurred on May 22, 1970, when the National Council for the Humanities recommended rejection of the application. On May 27, 1970 defendant Keeney, then Chairman of the Endowment, informed Mr. Wu in writing of the rejection of his application.

Plaintiff responded to his rejection by requesting from Mr. Keeney "all the criticisms and objections that have been expressed against the project by your expert consultants, or your panel of highly competent judges, or by the National Council of Humanities, without disclosing their identities."⁴ Keeney replied in a letter dated June 4, 1970:

The comments made by our reviewers are, of course, a matter of confidence between themselves and the Endowment. Speaking generally I can say that they felt that your training was not equal to the task which you have set yourself and that the proposed costs were excessive in view of the many other demands on the Endowment's limited resources.⁵

In a subsequent correspondence, dated June 26, 1970, Keeney advised Wu that "the reviewers were not impressed by your criticisms of the scholarship of Western sinologues and they did refute them." Not satisfied with these explanations, plaintiff formally petitioned the Endowment to reconsider its decision, citing as grounds therefor that the China specialists who initially reviewed his application were not competent to judge his proposal and that their service as reviewers for the Endowment entailed a conflict of interest. Defendant Edgerton, Keeney's successor as Chairman of the Endowment, informed Wu on July 7, 1970 that his request for reconsideration had been denied.

Plaintiff's next tactic was to file an action in the United States District Court for the Southern District of Georgia under the Freedom of Information Act, 5 U.S.C. § 552, to compel the Endowment to disclose its records containing the comments of the five China specialists. The District Court granted summary judgment for the Endowment and the Circuit Court of Appeals affirmed. Wu v. National Endowment for Humanities, 460 F.2d 1030 (5th Cir. 1972), cert. denied, 410 U.S. 926, 93 S. Ct. 1352, 35 L.Ed.2d 586 (1973). The Court of Appeals held that the requested materials were intra-agency memoranda, a part of the Endowment's "deliberative processes," and, therefore, exempt from public disclosure pursuant to subsection (b)(5) of the Act.⁶

Undaunted by this setback, Mr. Wu filed the instant action. He seeks to avoid the ruling of the Fifth Circuit by bringing the instant action against the defendants in their individual capacities allegedly for "fraud and conspiracy." The crux of his claim is that the previously quoted comments made by defendant Keeney in his letters of June 4, 1970 and June 26, 1970 were false and fraudulent representations designed "deliberately and maliciously to damage his plaintiff's reputation." Plaintiff further alleges that these statements evidence a conspiracy on the part of the eight defendants to commit a fraud and to defame plaintiff.

After the filing of the suit plaintiff, pursuant to Rule 33 of the Federal Rules of Civil Procedure, served on defendant William R. Emerson, the Director of the Endowment's Division of Research Grants, the following three interrogatories:

1. Give the names, the home address and the office address of each of the five "outside reviewers" to whom the National Endowment For the Humanities referred the application of K. C. Wu, the Plaintiff herein.

2. Give a curriculum vitae for each of the above said reviewers, with special emphasis on their training and expertise in reading and writing in the Chinese language, both vernacular and classical. Has any one of them written or published any article, essay, or book in Chinese? If so, give the title, the date and place of publication in each instance.

3. What is the name of the one reviewer who only gave an oral review to the Endowment?

Defendant Emerson did not respond to the interrogatories within the time provided by the Rules and plaintiff moved to compel answers. Thereupon Emerson filed objections to the interrogatories and opposition to plaintiff's Motion to Compel. Attached to Emerson's opposition is an affidavit in which he states in response to the three interrogatories:

1. He is unable to give the information requested in this Interrogatory without reference to the records which the Plaintiff sought to inspect by an action brought in the United States Court for the Southern District of Georgia, Savannah Division, Civil Action File No. 2754, entitled K. C. Wu vs National Endowment for the Humanities and Wallace B. Edgerton as Acting Chairman for the National Endowment for the Humanities Defendants. The Plaintiff was denied access to these records by judgment of the United States District Court, and this judgment was affirmed on appeal by the United States Court of Appeals for the Fifth Circuit on May 2, 1972. (460 F.2d 1030, 1972).

2. Same reply as to No. 1.

3. Same reply as to No. 1.

The motion to compel and opposition thereto were referred to the Pre-Trial Examiner pursuant to Rule 3-9 of this Court. The Pre-Trial Examiner recommended that Emerson be ordered to answer Interrogatory Number 1, and that the objections to Interrogatories 2 and 3 be sustained. Defendant Emerson, has objected to the first portion of the Recommendation and that objection is now before the Court.

While the Court was considering the objection of defendant Emerson to the recommendation of the Pre-Trial Examiner the defendants filed their motion for judgment on the pleadings or, in the alternative, for summary judgment.

II.

Defendant Emerson objects to the recommendation of the Pre-Trial Examiner which would require him to give to plaintiff the names, home addresses, and office addresses of the "outside reviewers," on two grounds: first, he is unable to ascertain the information sought without reference to records to which plaintiff was denied access in Wu v. Endowment For Humanities, supra, and, second, the information sought is confidential and privileged and thus inappropriate for discovery.⁷

Rule 26(b)(1) of the Federal Rules of Civil Procedure provides, in pertinent part:

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action . . . including . . . the identity and location of persons

...