Defendants' argument accurately states the law in this jurisdiction. In Donohoe v. Watt, 546 F. Supp. 753 (D.D.C. 1982), aff'd without opinion, 230 U.S. App. D.C. 70, 713 F.2d 864 (D.C. Cir. 1983), a discharged employee sued the president of his former employer and alleged that the president tortiously interfered with plaintiff's employment. The court (Jackson, J.) granted summary judgment to the president, stating, "it is a well settled principle of law that this tort arises only when there is interference with a contract between the plaintiff and a third party." 546 F. Supp. at 757. A corporate officer is not a third-party to a contract between his corporation and one of its employees. Thus, summary judgment is granted to individual defendants on plaintiffs' claim of intentional interference.
B. Constitutional Law Claims
Defendants are only liable for constitutional violations if they are federal or state actors. Thus, the court must determine whether any, all or none of the defendants are federal or state actors before it can address plaintiffs' constitutional law claims.
LSC is a corporation which was established by the federal government and which receives all its funding from the federal government. LSC has the power to promulgate regulations which must be published in the Federal Register, LSC is subject to the Freedom of Information Act, see 42 U.S.C. § 2996d(g), and LSC is prohibited from terminating recipients of its funds without providing notice and an opportunity for a hearing before a hearing examiner, see 42 U.S.C. § 2996j. However, Congress has specifically provided that LSC's officers and employees shall not be considered officers and employees of the Federal Government. 42 U.S.C. § 2996d(e)(1).
While there are several cases cited by defendants which hold that local legal service organizations funded by LSC are not federal actors, see, e.g., Gerena v. Puerto Rico Legal Services, Inc., 538 F. Supp. 754 (D. P.R. 1982), aff'd, 697 F.2d 447 (1st Cir. 1983), only one has specifically addressed whether LSC itself is a federal actor. In Eligible Residents of Garfield-Austin v. Legal Assistance Foundation, Civ. No. 82-C-1007 (N.D. Ill. May 24, 1982, unpublished, see Plaintiffs' Appendix at Tab 14), the court held that LSC was a federal actor. That case, unfortunately, was decided one-month prior to three recent Supreme Court decisions which set forth the tests for finding state or federal action. Therefore, this court rejects the holding in the Eligible Residents decision and, instead, applies the tests and standards set forth in the recent Supreme Court decisions.
On June 25, 1982, the Supreme Court decided three cases involving the state action requirement: Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 102 S. Ct. 2744, 73 L. Ed. 2d 482 (1982); Rendell-Baker v. Kohn, 457 U.S. 830, 102 S. Ct. 2764, 73 L. Ed. 2d 418 (1982); and Blum v. Yaretsky, 457 U.S. 991, 102 S. Ct. 2777, 73 L. Ed. 2d 534 (1982). In Lugar the Court set forth a two-part test to be used in deciding whether an entity is a federal or state actor. First, the alleged constitutional deprivation must be caused by the exercise of some right or privilege created by the governmental actor or by a rule of conduct imposed by the government. Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor. 457 U.S. at 937, 102 S. Ct. at 2753-2754.
Rendell-Baker, the second of the Supreme Court's June 25, 1982, trilogy of state action cases, is the decision that dealt with facts most identical to the facts of the case at hand. In Rendell-Baker, the named petitioner sued her former employer, the New Perspectives School, and New Perspectives' director, Sandra Kohn. Plaintiff claimed she had been terminated for exercising her First Amendment rights by supporting a student petition. The School, although privately owned, received almost all of its funding from the state, and petitioner Rendell-Baker's position was funded by a grant from the federal Law Enforcement Assistance Administration distributed from a state committee. As a condition of the grant, the committee had the right to approve or disapprove of the school's initial hiring decisions. Because of these factors, petitioners claimed that the school and its director were state actors.
In its decision, the Supreme Court concluded that neither the school nor its director were state actors. The court held that neither the fact that virtually all the school's income was from governmental sources nor the fact that the initial hiring decision was subject to state regulation, nor that the school was carrying out a "public function", justified a holding finding state action.
In reaching that conclusion, the court cited a particularly relevant case to the facts of the present case, Polk County v. Dodson, 454 U.S. 312, 102 S. Ct. 445, 70 L. Ed. 2d 509 (1981). In Polk County, the Court held that a public defender, although an employee of the state, was not a state actor because "a public defender is not amenable to administrative direction in the same sense as other employees of the State" and because of the state's obligation "to respect the professional independence of the public defenders whom it engages." 454 U.S. at 321, 102 S. Ct. at 451.
Application of these legal principles to the undisputed facts of this case, compels a holding that neither LSC nor the individual defendants here are governmental actors. As in Rendell-Baker, there is no indication or allegation that the decisions to fire plaintiffs were compelled or even influenced by federal governmental regulation.
As mentioned above, the president of LSC has the power to terminate employees, a power which is not subject to any federal governmental regulation. See 2996d(b)(1). Furthermore, the legislative history of the LSC Act indicates that LSC was formed for the very reason that it should have independence from federal government regulation. See H.R. Rep. No. 246, 93d Cong., 1st Sess. (1973), reprinted in 1974 U.S. Code Cong. & Adm. News 3872, 3873. For those reasons, the court holds that defendants are not federal actors and should grant defendants' motions for summary judgment on plaintiff's constitutional law claims.
C. Defamation Claims
Plaintiffs first claim that defendants defamed them in a
submission to a subcommittee of the House Judiciary Committee. By letter dated September 14, 1984, Rep. Kastenmeier requested the following material "in preparation for the hearing":
A copy of any written materials relating to the terminations of Messrs. Newman and Gilbert, including but not limited to: (a) memoranda, if any, of Potack or any other corporation employee or officer to the personnel officer prior to or subsequent to the terminations; (b) any personnel action form or termination form related to the termination; (c) a detailed explanation of the specific facts, activities or events which form the basis of the terminations [footnote omitted]; and (d) any other information relevant to the reason for the terminations.
Pl. Ex. 14.
The law is well established in this circuit that testimony and statements are absolutely privileged when presented to legislative proceedings at the express request of those conducting such hearings. Webster v. Sun Co., Inc., 235 U.S. App. D.C. 154, 731 F.2d 1 (D.C. Cir. 1984). However, the Court did state in footnote 9 that: "This privilege insulates statements made only to the legislature or its investigative arm. Publication to individuals not associated with the legislature and republication by the legislator are not covered by this privilege." Thus, the court must determine whether dissemination of the statement pursuant to the Freedom of Information Act (FOIA) was privileged.
". . . each agency upon any request for records which (A) reasonably describes the records and (B) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person.
5 U.S.C. § 552(a)(3) (1982).
Thus, a person need not title a request for government documents a "FOIA request". Absent an applicable exception, the government must provide the requested documents. Because defendants were required to produce the document, that production maintains absolute immunity.
As to plaintiffs' other defamation claims, summary judgment is inappropriate at this time. There is a dispute as to one of the alleged statements as to whether it was actually said or merely inferred from defendants' conduct; and plaintiffs are correct to note that even if some intra-corporate communications are conditionally privileged, a condition of that privilege is that the statements not be made with ill-will, an issue of fact. See, e.g., Arsenault v. Allegheny Airlines, Inc., 485 F. Supp. 1373, 1379 (D. Mass.), aff'd without opinion, 636 F.2d 1199 (1st Cir. 1980), cert. denied, 454 U.S. 821, 102 S. Ct. 105, 70 L. Ed. 2d 93 (1981). Plaintiffs have also alleged other instances of defamation which defendants did not address in their initial motion for summary judgment. See Plaintiffs' Opposition to Defendant Legal Service's Motion for Summary Judgment at 25-26. Those allegations present questions of fact as to whether each of the statements were made. Thus, summary judgment is not granted to defendants on those issues.
D. Emotional Distress Claims
Defendants argue that plaintiffs' sole remedy for emotional distress is under the Federal Employment Compensation Act (FECA). That statute provides that ". . . the liability of the United States or an instrumentality thereof under this subchapter or any extension thereof with respect to the injury or death of an employee is exclusive . . .". 5 U.S.C. § 8116(c) (1982). "Injury" is defined as including ". . . in addition to injury by accident, a disease proximately caused by the employment, and damage to or destruction of medical braces, artificial limbs, and other prosthetic devices . . .". 5 U.S.C. § 8101(5) (1982).
A claim for emotional distress clearly appears not to be an injury covered under FECA and therefore, FECA does not provide the exclusive remedy for emotional distress. See Sullivan v. United States, 428 F. Supp. 79, 81 (E.D. Wis. 1977); DeFord v. Secretary of Labor, 700 F.2d 281, 290 (6th Cir. 1983).
In Sere v. Group Hospitalization, Inc., 443 A.2d 33, 37 (D.C. Ct. App. 1982), the District of Columbia Court of Appeals set out the three elements of the tort of intentional infliction of emotional distress: 1) extreme and outrageous conduct by defendant which 2) intentionally or recklessly 3) causes the plaintiff severe emotional distress. Defendants contend that their conduct was neither extreme and outrageous nor did plaintiffs suffer any emotional distress, and that therefore, summary judgment must be granted in their favor. Plaintiffs counter that defendants' conduct was extreme and outrageous and that it caused them distress.
It is true that, "in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery" is for the court to determine. Sere, 443 A.2d at 38. Examining the facts in this case in such a light, it appears that summary judgment is appropriate. There has been no evidence of sufficient severity of the distress to state a claim under the Sere test. The court also notes that there is grave doubt whether defendants' alleged conduct was extreme and outrageous, although the court does not decide defendants' motion on that ground.
An appropriate Order accompanies this Memorandum.
This matter came before the court on defendants' motions for summary judgment. For reasons stated in the accompanying Memorandum filed this day, it is, by the court, this 27th day of January, 1986,
ORDERED that defendants' motions for summary judgment are granted in all respects except as to plaintiffs' claims for defamation not based on the statement submitted to Congress and subsequently released under FOIA.