While petitioner was a Captain in the Navy and Commander of the
Boston Naval Shipyard, he withdrew recognition of the Federal
Employees Veterans Association, of which respondents were officers,
and sent an official report of his action, reciting his
dissatisfaction with the activities of the Association, to the
Chief of the Bureau of Ships and the Chief of Industrial Relations
of the Department of the Navy. In accordance with the policy and
usual practice of the Navy, he also sent copies of the report to
the members of the Massachusetts congressional delegation.
Respondents sued him in a Federal District Court for libel,
alleging malice. In defense, he pleaded absolute privilege.
Held:
1. The validity of petitioner's claim of absolute privilege in
the performance of his duties as an officer of the Federal
Government must be judged by federal standards, to be formulated by
the courts in the absence of legislative action by Congress. P.
360 U. S.
567.
2. On the record in this case, it appears that the sending of
copies of the report to the Massachusetts congressional delegation,
the only publication before this Court, was in the discharge of
petitioner's official duties and in relation to matters committed
to him for determination. Therefore, his plea of absolute privilege
must be sustained.
Barr v. Matteo, ante, p.
360 U. S. 564. Pp.
360 U. S.
597-598.
250 F.2d 912 reversed.
Page 360 U. S. 594
MR. JUSTICE HARLAN delivered the opinion of the Court.
This is a companion case to
Barr v. Matteo, ante, p.
360 U. S. 564
decided today. Petitioner Howard, in 1955, was a Captain in the
United States Navy and Commander of the Boston Naval Shipyard.
Respondent Lyons was National Commander of the Federal Employees
Veterans Association, Inc., and respondent McAteer a local officer
of that Association. Both respondents were at all material times
civilian employees at the Boston Naval Shipyard, and, for several
years before September 8, 1955, the Association was recognized by
the shipyard as an employees' representative group. On that date,
petitioner withdrew official recognition of the Association -- an
action which is not here challenged.
Respondents brought suit in the Massachusetts District Court,
invoking diversity jurisdiction and making the following
allegations: that, on September 8, 1955, petitioner circulated a
statement defaming them; that the statement purported to be an
official memorandum to the Chief of the Bureau of Ships and the
Chief of Navy Industrial Relations, but was released by petitioner
"outside of his official duties" to various newspapers and wire
services and to the members of the Massachusetts delegation in the
Congress of the United States; that, in circulating the statement,
petitioner acted "maliciously, wilfully, wickedly, recklessly and
falsely and with malice aforesight [
sic]"; and that the
statement was intended to and did injure the reputation of
respondents.
A copy of the statement complained of was filed with the
complaint. It is in the form of an official report directed to the
Chief of the Bureau of Ships and the Chief of Industrial Relations
of the Department of the Navy, reciting petitioner's
dissatisfaction with the activities
Page 360 U. S. 595
of the Federal Employees Veterans Association at the shipyard
and announcing his intention to withdraw the recognition previously
accorded it. [
Footnote 1]
Petitioner answered, stating that the statement complained of
was, in fact, an official communication, and that, in sending
copies of it to the Massachusetts congressional delegation, he was
acting within the scope of his duties and pursuant to Department of
the Navy policy, and denying that, outside of his official duties,
he had released copies of the communication to the newspapers. He
thereupon moved for summary judgment, attaching to the motion his
own affidavit essentially repeating the statements from his answer
above summarized, and an affidavit from the Commandant of the First
Naval District. That affidavit stated that the Commandant was
petitioner's commanding officer; that the making of reports to the
Bureau of Ships relative to any significant personnel action at the
shipyard was one of petitioner's official duties; that also among
those duties was the furnishing of copies of such
Page 360 U. S. 596
reports to the Massachusetts congressional delegation; and that
the dissemination of the report of September 8, 1955, to the
newspapers had been made through official channels and approved by
the acting Commandant of the First Naval District.
The District Court granted summary judgment for petitioner,
holding that the uncontradicted affidavits conclusively showed that
the statement complained of was published by petitioner "in the
discharge of his official duties and in relation to matters
committed to him for determination," and that it was therefore
absolutely privileged. On respondents' appeal, the Court of Appeals
held that the sending of the official report to petitioner's
superior officers was protected by an absolute privilege, and noted
that reliance on the dissemination to the newspapers had been
abandoned by respondents on appeal in the face of petitioner's
sworn statement that he had not been responsible for that
publication. As to the publication to the Massachusetts
congressional delegation, however, the court, one judge dissenting,
refused to allow more than a qualified privilege, although
recognizing that
"it is true that these members of Congress did have an official
interest in being kept advised of important developments in labor
relations at the Boston Naval Shipyard,"
and that
"the Commander of the Boston Naval Shipyard might have conceived
it to be a proper exercise of his official functions to see to it
that the members of Congress should receive copies of such official
report. . . ."
Accordingly, it reversed the judgment of the District Court and
remanded the case for trial. 250 F.2d 912, 915.
We granted certiorari to consider petitioner's contention that
the Court of Appeals had erred in failing to recognize his plea of
absolute privilege in respect of the publication to members of
Congress. 357 U.S. 903. Respondents did not cross-petition for
certiorari.
Page 360 U. S. 597
At the outset, we take note of a question which the Court of
Appeals, on its view of the case, did not find it necessary to
resolve -- whether the extent of the privilege in respect of civil
liability for statements allegedly defamatory under state law which
may be claimed by officers of the Federal Government, acting in the
course of their duties, is a question as to which the federal
courts are bound to follow state law. We think that the very
statement of the question dictates a negative answer. The authority
of a federal officer to act derives from federal sources, and the
rule which recognizes a privilege under appropriate circumstances
as to statements made in the course of duty is one designed to
promote the effective functioning of the Federal Government. No
subject could be one of more peculiarly federal concern, and it
would deny the very considerations which give the rule of privilege
its being to leave determination of its extent to the vagaries of
the laws of the several States.
Cf. Clearfield Trust Co. v.
United States, 318 U. S. 363. We
hold that the validity of petitioner's claim of absolute privilege
must be judged by federal standards, to be formulated by the courts
in the absence of legislative action by Congress.
Our decision in
Barr v. Matteo, ante, p.
360 U. S. 564,
governs this case. As has been observed, petitioner and his
commanding officer both stated in uncontradicted affidavits that
the sending of copies of the report here at issue to members of the
Massachusetts congressional delegation was part of petitioner's
official duties. Although, of course, such an averment by the
defendant cannot foreclose the courts from examination of the
question, we think that the affidavit of petitioner's commanding
officer, and a Memorandum of Instructions issued by the Secretary
of the Navy which petitioner has, with our leave, filed in this
Court, [
Footnote 2]
Page 360 U. S. 598
plainly show that the District Court was correct in finding that
the circulation of the report to the Massachusetts congressional
delegation was "in the discharge of [petitioner's] . . . official
duties and in relation to matters committed to him for
determination."
Reversed.
MR. JUSTICE BLACK concurs for the reasons stated in his
concurring opinion in
Barr v. Matteo, ante, p.
360 U. S. 564.
[
Footnote 1]
No purpose would be served by setting out the entire, lengthy
report. It is adequately summarized in the Court of Appeals'
opinion as follows:
"This letter alleged that plaintiff Lyons, by name, and the
other plaintiff, by description, 'exercise a predominant influence'
in the organizational activities; that the organization has been
giving wide distribution to a newsletter or bulletin; that this
bulletin has become more and more unfairly critical of the shipyard
administration for the purpose of not only thwarting the aims of
the shipyard administration in the accomplishment of its mission,
but also to further personal aims and self-interests of the
individuals in control of the labor organization; that these
'editorial expletives' have adversely affected the general morale
of employees of the shipyard, who are entitled to be protected
against such 'overt subversion' by any labor group 'whose methods
and whose motives are unethical, uninhibited, and lack the
integrity of purpose that could reasonably be expected.'"
250 F.2d 912, 913.
[
Footnote 2]
SECNAV Instruction 5730.5, issued February 3, 1955, paragraph
12:
"
Congressional Notification of Actions of Interest.
Members of Congress are very anxious to keep in touch with what is
going on in their respective states and districts. Navy agencies
shall keep them advised, if possible, in advance, of any new
actions or curtailment of actions which may affect them."
MR. CHIEF JUSTICE WARREN with whom MR. JUSTICE DOUGLAS joins,
dissenting.
I cannot agree that Captain Howard's action in sending a copy of
his report to the Massachusetts Congressional Delegation was
absolutely privileged. [
Footnote
2/1] In its argument in this case, the Government consistently
distinguished this case from
Barr v. Matteo, ante, p.
360 U. S. 564, by
characterizing Captain Howard as a man who was acting under strict
orders and who had no discretion.
Until reargument in this Court, the only indications that it was
mandatory for Captain Howard to report matters of this sort to
Congress were the bald assertions to that effect in Captain
Howard's affidavit and in the affidavit of his superior, Admiral
Schnackenberg, in the District Court. No naval regulation was
cited, and no
Page 360 U. S. 599
other authority was offered. It is significant that, in the same
affidavit, when Captain Howard was explaining why he had
transmitted copies of the report to a superior, he was able to cite
chapter and verse of the U.S. Navy Public Information Manual as
authority for that action.
For the first time on reargument in this Court, the Government
produced the letter from the Secretary of the Navy referred to in
the Court's opinion. The paragraph relied on is nothing more than a
general policy statement applicable only to "Navy agencies."
[
Footnote 2/2] The letter was in no
way directed toward labor problems -- and the quoted portion is but
a few lines in a five-page letter sent to a general distribution
list and apparently never inserted in the Federal Register or any
Navy Manual. Obviously, this letter was not cited by Captain
Howard, because he was unaware of its existence -- or its
applicability.
The short explanation is that the Captain thought that, since
the plaintiffs had attacked the administration of the shipyard by
sending copies of their newsletters and charges to Congress, he
should send Congress his side of the story. This he had a right to
do, but, in doing so, he should have no greater privilege than his
critic. The plaintiffs in this case, at most, received qualified
privilege for their complaints to Congress, [
Footnote 2/3] yet the Captain's answer is given absolute
privilege.
Page 360 U. S. 600
As my dissent in
Barr v. Matteo indicates, the burden
of proof is on the defendant to sustain his claim of privilege.
ante, p.
360 U. S. 564. I
do not read this record as placing a mandatory duty on Captain
Howard to make the report in question to Congress. [
Footnote 2/4]
I would affirm.
[
Footnote 2/1]
I agree with the Court in its determination that federal law
controls this matter.
[
Footnote 2/2]
"Navy agencies" is defined in paragraph 2b of the same letter as
follows:
"This term includes the Civilian Executive Assistants to the
Secretary, the Naval Professional Assistants to the Secretary and
the Heads of Offices and Boards of the Navy Department."
Surely it was never intended that every naval officer who
thought that he knew something in which Congress might be
interested was required to contact Congress directly.
[
Footnote 2/3]
See, e.g., Sweeney v. Higgins, 117 Me. 415, 104 A. 791;
Tyree v. Harrison, 100 Va. 540, 42 S.E. 295;
Hancock
v. Mitchell, 83 W.Va. 156, 98 S.E. 65.
[
Footnote 2/4]
On this record, I cannot believe that Captain Howard would have
been derelict in his duty if he had not sent the report to Congress
-- and it has never been suggested that such action would have
warranted disciplinary measures.