Barr v. Matteo (360 U.S. 564)/Opinion of the Court

by John Marshall Harlan II

[p564] MR. JUSTICE HARLAN announced the judgment of the Court, and delivered an opinion, in which MR. JUSTICE FRANKFURTER, MR. JUSTICE CLARK, and MR. JUSTICE WHITTAKER join.

We are called upon in this case to weigh in a particular context two considerations of high importance [p565] which now and again come into sharp conflict—on the one hand, the protection of the individual citizen against pecuniary damage caused by oppressive or malicious action on the part of officials of the Federal Government; and on the other, the protection of the public interest by shielding responsible governmental officers against the harassment and inevitable hazards of vindictive or ill-founded damage suits brought on account of action taken in the exercise of their official responsibilities.

This is a libel suit, brought in the District Court of the District of Columbia by respondents, former employees of the Office of Rent Stabilization. The alleged libel was contained in a press release issued by the office on February 5, 1953, at the direction of petitioner, then its Acting Director.^[1] The circumstances which gave rise to the issuance of the release below.

In 1950 the statutory existence of the Office of Housing Expediter, the predecessor agency of the Office of Rent Stabilization, was about to expire. Respondent Madigan, then Deputy Director in charge of personnel and fiscal matters, and respondent Matteo, chief of the personnel branch, suggested to the Housing Expediter a plan designed to utilize some $2,600,000 of agency funds earmarked in the agency's appropriation for the fiscal year 1950 exclusively for terminal-leave payments. The effect of that plan would have been to obviate the possibility that the agency might have to make large terminal-leave payments during the next year out of general agency funds, should the life of the agency be extended by Congress. In essence, the mechanics of the plan were that agency employees would be discharged, paid accrued annual leave out of the $2,600,000 earmarked for terminal-leave payments, rehired immediately as temporary [p566] employees, and restored to permanent status should the agency's life be extended.

Petitioner, at the time General Manager of the agency, opposed respondents' plan on the ground that it violated the spirit of the Thomas Amendment, 64 Stat. 768,^[2] and expressed his opposition to the Housing Expediter. The Expediter decided against general adoption of the plan, but at respondent Matteo's request gave permission for its use in connection with approximately fifty employees, including both respondents, on a voluntary basis.^[3] Thereafter the life of the agency was in fact extended.

Some two and a half years later, on January 28, 1953, the Office of Rent Stabilization received a letter from Senator John J. Williams of Delaware, inquiring about the terminal-leave payments made under the plan in 1950. Respondent Madigan drafted a reply to the letter, which he did not attempt to bring to the attention of petitioner, and then prepared a reply which he sent to petitioner's office for his signature as Acting Director of the agency. Petitioner was out of the office, and a secretary signed the submitted letter, which was then delivered by Madigan to Senator Williams on the morning of February 3, 1953.

On February 4, 1953, Senator Williams delivered a speech on the floor of the Senate strongly criticizing the [p567] plan, stating that "to say the least it is an unjustifiable raid on the Federal Treasury, and heads of every agency in the Government who have condoned this practice should be called to task." The letter above referred to was ordered printed in the Congressional Record. Other Senators joined in the attack on the plan.^[4] Their comments were widely reported in the press on February 5, 1953, and petitioner, in his capacity as Acting Director of the agency, received a large number of inquiries from newspapers and other news media as to the agency's position on the matter.

On that day petitioner served upon respondents letters expressing his intention to suspend them from duty, and at the same time ordered issuance by the office of the press release which is the subject of this litigation, and the text of which appears in the margin.^[5]

[p568] Respondents sued, charging that the press release, in itself and as coupled with the contemporaneous news reports of senatorial reaction to the plan, defamed them to their injury, and alleging that its publication and terms had been actuated by malice on the part of petitioner. Petitioner defended, inter alia, on the ground that the issuance of the press release was protected by either a qualified or an absolute privilege. The trial court overruled these contentions, and instructed the jury to return a verdict for respondents if it found the release defamatory. The jury found for respondents.

Petitioner appealed, raising only the issue of absolute privilege. The judgment of the trial court was affirmed by the Court of Appeals, which held that "in explaining his decision [to suspend respondents] to the general public [petitioner]... went entirely outside his line of duty" and that thus the absolute privilege, assumed otherwise to be available, did not attach. 100 U.S. App. D.C. 319, 244 F. 2d 767. We granted certiorari, vacated the Court of Appeals' judgment, and remanded the case "with directions to pass upon petitioner's claim of a qualified [p569] privilege." 355 U.S. 171, 173. On remand the Court of Appeals held that the press release was protected by a qualified privilege, but that there was evidence from which a jury could reasonably conclude that petitioner had acted maliciously, or had spoken with lack of reasonable grounds for believing that his statement was true, and that either conclusion would defeat the qualified privilege. Accordingly it remanded the case to the District Court for retrial. 103 U.S. App. D.C. 176, 256 F. 2d 890. At this point petitioner again sought, and we again granted certiorari, 358 U.S. 917, to determine whether in the circumstances of this case petitioner's claim of absolute privilege should have stood as a bar to maintenance of the suit despite the allegations of malice made in the complaint.

The law of privilege as a defense by officers of government to civil damage suits for defamation and kindred torts has in large part been of judicial making, although the Constitution itself gives an absolute privilege to members of both Houses of Congress in respect to any speech, debate, vote, report, or action done in session.^[6] This Court early held that judges of courts of superior or general authority are absolutely privileged as respects civil suits to recover for actions taken by them in the exercise of their judicial functions, irrespective of the motives with which those acts are alleged to have been performed, Bradley v. Fisher, 13 Wall. 335, and that a like immunity extends to other officers of government whose duties are related to the judicial process. Yaselli v. Goff, 12 F. 2d 396, aff'd per curiam, 275 U.S. 503, involving a Special Assistant to the Attorney General.^[7] Nor has the privilege been confined to officers of the legislative and [p570] judicial branches of the Government and executive officers of the kind involved in Yaselli. In Spalding v. Vilas, 161 U.S. 483, petitioner brought suit against the Postmaster General, alleging that the latter had maliciously circulated widely among postmasters, past and present, information which he knew to be false and which was intended to deceive the postmasters to the detriment of the plaintiff. This Court sustained a plea by the Postmaster General of absolute privilege, stating that (498-499):

"In exercising the functions of his office, the head of an Executive Department, keeping within the limits of his authority, should not be under an apprehension that the motives that control his official conduct may, at any time, become the subject of inquiry in a civil suit for damages. It would seriously cripple the proper and effective administration of public affairs as entrusted to the executive branch of the government, if he were subjected to any such restraint. He may have legal authority to act, but he may have such large discretion in the premises that it will not always be his absolute duty to exercise the authority with which he is invested. But if he acts, having authority, his conduct cannot be made the foundation of a suit against him personally for damages, even if the circumstances show that he is not disagreeably impressed by the fact that his action injuriously affects the claims of particular individuals."^[8]

[p571] The reasons for the recognition of the privilege here been often stated. It has been thought important 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 those duties—suits which would consume time and energies which would otherwise be devoted to government service and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government. The matter has been admirably expressed by Judge Learned Hand:

"It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith. There must indeed be means of punishing public officers who have been truant to their duties; but that is quite another matter from exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors. As is so often the case, the answer must be found in a balance between the evils inevitable in either [p572] alternative. In this instance it has been thought in the end better to leave unredressd the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation....

"The decisions have, indeed, always imposed as a limitation upon the immunity that the official's act must have been within the scope of his powers; and it can be argued that official powers, since they exist only for the public good, never cover occasions where the public good is not their aim, and hence that to exercise a power dishonestly is necessarily to overstep its bounds. A moment's reflection shows, however, that that cannot be the meaning of the limitation without defeating the whole doctrine. What is meant by saying that the officer must be acting within his power cannot be more than that the occasion must be such as would have justified the act, if he had been using his power for any of the purposes on whose account it was vested in him...." Gregoire v. Biddle, 177 F. 2d 579, 581.

We do not think that the principle announced in Vilas can properly be restricted to executive officers of cabinet rank, and in fact it never has been so restricted by the lower federal courts.^[9] The privilege is not a badge or emolument of exalted office, but an expression of a policy [p573] designed to aid in the effective functioning of government. The complexities and magnitude of governmental activity have become so great that there must of necessity be a delegation and redelegation of authority as to many functions, and we cannot say that these functions become less important simply because they are exercised by officers of lower rank in the executive hierarchy.^[10]

To be sure, the occasions upon which the acts of the head of an executive department will be protected by the privilege are doubtless far broader than in the case of an officer with less sweeping functions. But that is because the higher the post, the broader the range of responsibilities and duties, and the wider the scope of discretion, it entails. It is not the title of his office but the duties with which the particular officer sought to be made to respond in damages is entrusted—the relation of the act complained of to "matters committed by law to his control or supervision," Spalding v. Vilas, supra, [p574] at 498—which must provide the guide in delineating the scope of the rule which clothes the official acts of the executive officer which immunity from civil defamation suits.

Judged by these standards, we hold that petitioner's plea of absolute privilege in defense of the alleged libel published at his discretion must be sustained. The question is a close one, but we cannot say that it was not an appropriate exercise of the discretion with which an executive officer of petitioner's rank is necessarily clothed to publish the press release here at issue in the circumstances disclosed by this record. Petitioner was the Acting Director of an important agency of government,^[11] and was clothed by redelegation with "all others, duties, and functions conferred on the President by Title II of the Housing and Rent Act of 1947...."^[12] The integrity of the internal operations of the agency which he headed, and thus his own integrity in his public capacity, had been directly and severely challenged in charges made on the floor of the Senate and given wide publicity; and without his knowledge correspondence which could reasonably be read as impliedly defending a position very different from that which he had from the beginning taken in the matter had been sent to a Senator over his signature and incorporated into the Congressional Record. The issuance of press releases was standard agency practice, as it has become with many governmental agencies in these times. We think that under these circumstances a publicly expressed statement of the position of the agency head, announcing personnel action which he planned to take in reference to the charges so widely disseminated to [p575] the public, was an appropriate exercise of the discretion which an officer of that rank must possess if the public service is to function effectively. It would be an unduly restrictive view of the scope of the duties of a policy-making executive official to hold that a public statement of agency policy in respect to matters of wide public interest and concern is not action in the line of duty. That petitioner was not required by law or by direction of his superiors to speak out cannot be controlling in the case of an official of policy-making rank, for the same considerations which underlie the recognition of the privilege as to acts done in connection with a mandatory duty apply with equal force to discretionary acts at those levels of government where the concept of duty encompasses the sound exercise of discretionary authority.^[13]

The fact that the action here taken was within the outer perimeter of petitioner's line of duty is enough to render the privilege applicable, despite the allegations of malice in the complaint, for as this Court has said of legislative privilege:

"The claim of an unworthy purpose does not destroy the privilege. Legislators are immune from deterrents of the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good. One must not expect uncommon courage even in legislators. The privilege would be of little value if they could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a jury's speculation as to motives." Tenney v. Brandhove, 341 U.S. 367, 377.

[p576] We are told that we should forbear from sanctioning any such rule of absolute privilege lest it open the door to wholesale oppression and abuses on the part of unscrupulous government officials. It is perhaps enough to say that fears of this sort have not been realized within the wide area of government where a judicially formulated absolute privilege of broad scope has long existed. It seems to us wholly chimerical to suggest that what hangs in the balance here is the maintenance of high standards of conduct among those in the public service. To be sure, as with any rule of law which attempts to reconcile fundamentally antagonistic social policies, there may be occasional instances of actual injustice which will do unrepressed, but we think that price a necessary one to pay for the greater good. And there are of course other sanctions than civil tort suits available to deter the executive official who may be prone to exercise his functions in an unworthy and irresponsible manner. We think that we should not be deterred from establishing the rule which we announce today by any such remote forebodings.

Reversed.

Notes

1. Petitioner was appointed Acting Director of the agency effective February 9, 1953. On February 5, he occupied that position by designation of the retiring Director, who was absent from the city.
2. This statute, part of the General Appropriation Act of 1951, provided that:

   "No part of the funds of, or available for expenditure by any corporation or agency included in this Act, including the government of the District of Columbia, shall be available to pay for annual leave accumulated by any civilian officer or employee during the calendar year 1950 and unused at the close of business on June 30, 1951...."

3. The General Accounting Office subsequently ruled that the payments were illegal, and respondents were required to return them. Respondent Madigan challenged this determination in the Court of Claims, which held that the plan was not in violation of law. Madigan v. United States, 142 Ct. Cl. 641.
4. The plan was referred to by various Senators as "a highly ques- tionable procedure," a "raid on the Federal Treasury," "a conspiracy to defraud the Government of funds," "a new racket," and as "definitely involv[ing] criminal action." It was suggested that it might constitute "a conspiracy by the head of an agency to defraud the Government of money," and that "it is highly irregular, if not actually immoral, for the heads of agencies to use any such device...." 99 Cong. Rec. 868-871.

5. William G. Barr, Acting Director of Rent Stabilization today served notice of suspension on the two officials of the agency who in June 1950 were responsible for the plan which allowed 53 of the agency's 2,681 employees to take their accumulated annual leave in cash.

   "Mr. Barr's appointment as Acting Director becomes effective Monday, February 9, 1953, and the suspension of these employees will be his first act of duty. The employees are John J. Madigan, Deputy Director for Administration, and Linda Matteo, Director of Personnel.

   "'In June 1950,' Mr. Barr stated, 'my position in the agency was not one of authority which would have permitted me to stop the action. Furthermore, I did not know about it until it was almost completed.

   "'When I did learn that certain employees were receiving cash annual leave settlements and being returned to agency employment on a temporary basis, I specifically notified the employees under my supervision that if they applied for such cash settlements I would demand their resignations and the record will show that my immediate employees complied with my request.

   "'While I was advised that the action was legal, I took the position that it violated the spirit of the Thomas Amendment and I violently opposed it. Monday, February 9th, when my appointment as Acting Director becomes effective, will be the first time my position in the agency has permitted me to take any action on this matter, and the suspension of these employees will be the first official act I shall take.'

   "Mr. Barr also revealed that he has written to Senator Joseph McCarthy, Chairman of the Committee on Government Operations, and to Representative John Phillips, Chairman of the House Subcommittee on Independent Offices Appropriations, requesting an opportunity to be heard on the entire matter."

6. U.S. Const., Art. I, § 6. See Kilbourn v. Thompson, 103 U.S. 168.
7. See also Cooper v. O'Connor, 69 U.S. App. D.C. 100, 99 F. 2d 135; compare Brown v. Shimabukuro, 73 U.S. App. D.C. 194, 118 F. 2d 17.
8. The communication in Spalding v. Vilas was not distributed to the general public, but only to a particular segment thereof which had a special interest in the subject matter. Statements issued at the direction of Cabinet officers and disseminated to the press in the form of press releases have also been accorded, an absolute privilege, so long as their contents and the occasion for their issuance relate to the duties and functions of the particular department. Mellon v. Brewer, 57 App. D.C. 126, 18 F. 2d 168; Glass v. Ickes, 73 App. D.C. 3, 117 F. 2d 273.
9. As to suits for defamation see, e.g., Taylor v. Glotfelty, 201 F. 2d 51; Smith v. O'Brien, 66 App D.C. 387, 88 F. 2d 769; De Arnaud v. Ainsworth, 24 App. D.C. 167; Farr v. Valentine, 38 App. D.C. 413; United States to use of Parravicino v. Brunswick, 63 App. D.C. 65, 69 F. 2d 383; Carson v. Behlen, 136 F. Supp. 222; Tinkoff v. Campbell, 86 F. Supp. 331; Miles v. McGrath, 4 F. Supp. 603. See also, as to other torts, Jones v. Kennedy, 73 App. D.C. 292, 121 F. 2d 40; Adams v. Home Owners' Loan Corp., 107 F. 2d 139; Gregoire v. Biddle, supra; De Busk v. Harvin, 212 F. 2d 143; Lang v. Wood, 67 App. D.C. 287, 92 F. 2d 211.
10. See the striking description in Cummings and McFarland, Federal Justice (1937), pp. 80-81, quoted in Cooper v. O'Connor, supra, 69 App. D.C. 100, 107, 99 F. 2d 135, 142, n. 28, of the office of Attorney General of the United States in the early days of the Republic:

    "Not only were there no records but the government provided neither an office nor clerical assistance. As far back as December 1791, Attorney General Randolph, through President Washington, without success had urged Congress to provide a clerk. President Madison, when it became evident that residence at Washington had greatly increased the Attorney General's labor, in 1816 urged that he be supplied with 'the usual -appurtenances to a public office.' A bill to provide offices and a clerk came to the Senate floor on January 10, 1817.... Thirty years had passed since the federal government was first organized. Now, Congress provided offices in the Treasury and a clerk at $1,000 a year, with an additional small contingent fund of $500 for such essentials as stationery, fuel, and 'a boy to attend the menial duties.'"

11. The record indicates that in 1950 the Office of Housing Expediter had some 2,500 employees.
12. 61 Stat. 193. See 16 Fed. Reg. 7630.
13. Compare United States v. Macdaniel, 7 Pet. 1, 14; United States v. Birdsall, 233 U.S. 223, 230-231.