are the same as those provided for in 5 C.F.R. § 713.216(a), (b).
Defendants rely on Barr v. Matteo
to support their contention that their utterances were absolutely privileged. In Barr, the Supreme Court dealt with allegedly defamatory remarks made in a press release by the Acting Director of Rent Stabilization.
That official was not required by law or direction of his superiors to make the press release.
Issuance of press releases, however, was standard agency practice.
The Court found that the action taken was within the outer perimeter of the official's line of duty and thus was absolutely privileged.
Plaintiff's contention is that Barr v. Matteo has been modified by Scheuer v. Rhodes
and he draws upon Apton v. Wilson
for support of his point. Plaintiff asserts that Scheuer and Apton stand for the proposition that any privilege in cases such as the present one is at best qualified rather than absolute. The Court disagrees.
The Scheuer case concerned a suit against the governor of Ohio and other state officials for actions taken during the Kent State incident. The district court had dismissed the complaints on the ground that they were barred, as a matter of law, by the Eleventh Amendment or, alternatively, by the absolute immunity of state officials for their actions.
The complaints in Scheuer had alleged that defendants, acting under color of state law, had deprived plaintiffs of their lives and rights without due process of law.
The claim of plaintiffs, then, rose to Constitutional stature, alleging a deprivation of Federal Constitutional rights by officials of a state acting under color of that state's law.
It was in this context that the Court determined that Federal courts had jurisdiction over the matter. The opinion of Chief Justice Burger makes clear that the Court was aware both of the peculiar facts of the case and of its procedural posture and that the ruling of the Court was uniquely based on those circumstances.
The case, then, modifies the doctrine of official privilege only insofar as the doctrine may apply to alleged deprivation of basic constitutional or civil rights and not as it may apply to situations such as in the case at bar.
The Apton case similarly fails to aid plaintiff. There some 34 plaintiffs alleged that they were arrested while engaged entirely in lawful and unobjectionable conduct during the "May Day demonstrations" of May, 1971, in Washington, D.C.
They sought damages for an alleged deprivation of Fourth and Fifth Amendment rights and also sought equitable relief.
Certain of the defendants were high officials of the United States Department of Justice.
The District Court granted summary judgment for these defendants on the ground of absolute executive immunity.
The lower court relied on Barr v. Matteo and stated that the actions of the defendant officials were well within the outer perimeter of their duties.
The Apton Court explicitly noted that the question before it was whether high federal officials enjoy absolute immunity for actions, relating to law enforcement, that deprived innocent citizens of Fourth and Fifth Amendment rights.
Just as in Scheuer, then, Apton concerned the existence of immunity in the context of alleged deprivation of basic Federal Constitutional rights.
In such a context, the Court found no absolute immunity.
In so finding, however, the Apton Court said nothing that would indicate any thought that Barr had been modified in the area of defamation. The Apton opinion explored the basis for executive privilege and traced its development in the area of potential liability for allegedly defamatory communications, primarily through the cases of Spalding v. Vilas, 161 U.S. 483, 40 L. Ed. 780, 16 S. Ct. 631 (1896), and Barr v. Matteo. The Court specifically noted the "outer perimeter" language of Barr.26 Then it stated:
The decisions in Spalding v. Vilas, supra, and Barr v. Matteo, supra, focused on the particular injuries alleged there -- loss of contract in Spalding and injury to reputation in Barr. While it is possible to draw upon these opinions for an immunity that protects officials under different circumstances [citations omitted], the soundness of any such extension of an absolute immunity must be reappraised in the light of Scheuer v. Rhodes, supra. . . .