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ROBERTSON v. MCCLOSKEY

July 24, 1987

Marion Gordon Robertson, Plaintiff,
v.
Paul N. McCloskey, Jr., Defendant; Marion Gordon Robertson, Plaintiff, v. Andrew Jacobs, Jr., Defendant



The opinion of the court was delivered by: GREEN

 JOYCE HENS GREEN, United States District Judge

 Plaintiff filed these suits alleging that defendants, former Representative Paul N. (Pete) McCloskey, Jr. and Representative Andrew Jacobs, Jr., libeled and conspired to defame him by publishing and disseminating certain statements concerning his military service during the Korean War.

 Defendants now move to dismiss and for summary judgment on a variety of grounds. Plaintiff opposes that motion, and in addition moves to strike portions of defendants' supporting memorandum. For the reasons set forth below, defendants' motion will be granted in part and denied in part, and plaintiff's motion will be denied.

 I. Factual Background

 In late 1950, Second Lieutenants Robertson and McCloskey were both in the Marine Corps stationed at Quantico, Virginia. Early in 1951, during the Korean War's heaviest fighting, the two men sailed together to the Far East aboard the U.S.S. Breckinridge as part of the Marines' Fifth Replacement Draft. The Breckinridge called at two ports in Japan before sailing to Korea, and at the second of these, Kobe, plaintiff and several of the other 45 Second Lieutenants were removed from the ship and transferred to the First Provisional Casual Company at Camp Otsu, Japan, a rehabilitation and training center for wounded men awaiting reassignment. The remaining officers and enlisted men joined various divisions of the First Marine Division in Korea. Of the 39 Second Lieutenants who sailed to Korea from Kobe, 38 joined front-line combat units; a number of these men were wounded or killed. McCloskey was among the officers who saw combat; he was wounded twice and awarded the Navy Cross and two Silver Stars for his service. Although McCloskey did not see Robertson again for the remainder of the war, he did meet other colleagues from the Fifth Replacement Draft who shared news about friends and acquaintances from the Breckinridge.

 In February 1981, McCloskey, who had entered the race for the Republican nomination for a Senate seat from California, saw Robertson, by then a well-known evangelist, on television criticizing Congress for being "soft on communism." Several days later, McCloskey made a comment at a press conference about public figures whose patriotism "came late in life to those whose consciences had been overcome by their earlier evasion of military service." He mentioned, among others, Robertson, who he claimed had used the political influence of his father, Senator A. Willis Robertson, to avoid combat duty in Korea and secure a safe assignment as a division liquor officer. His comments were reported in a Los Angeles Times article and were eventually brought to the attention of Robertson, who wrote McCloskey several weeks later claiming that his charges were "totally untrue, and equally libelous." McCloskey responded in a letter detailing his recollection of the events and conversations leading up to Robertson's departure from the Breckinridge in Kobe, and explaining that he had heard that Robertson, upon his arrival in Korea, had been assigned as liquor officer for a rear division. Robertson wrote McCloskey a second time, thanking him for his "kind letter" and stating that he "would like to clarify several things in it." He described McCloskey's political influence story as "certainly intriguing," but again called it untrue.

 Nothing more came of the exchange until 1986, when defendant Jacobs, himself a former Marine and Korean War veteran, wrote McCloskey asking about the Robertson story. By this time, Robertson had publicly begun to explore the possibility of running for the presidency. Jacobs meanwhile had, on a number of occasions, raised questions concerning the military experience of national defense advocates and supporters of federal aid to the Nicaraguan contras. Jacobs' contention, which he had made both in debate in Congress and in statements to the press, was that many of the strongest advocates of military spending and military intervention in matters of foreign affairs were themselves people who had little or no firsthand experience of war, particularly combat.

 McCloskey answered Jacobs' inquiry in the August 4, 1986 letter that gives rise to these suits. In this letter McCloskey wrote that:

 
[Robertson] spoke frankly of his desire to avoid combat and to have his father, Senator Willis Robertson of Virginia, intervene on his behalf. When we went ashore at Yokesuka [sic], I believe most of us thought he was joking when he told us he was going to call his father and request transfer off the ship. He did make the call, however, and either didn't get through or wasn't successful in getting any action before the ship left for Kobe.
 
. . .
 
My single distinct memory is of Pat, with a big grin on his face, standing at the dock at Kobe after his second phone call, saying something like, "So long, you guys - good luck," and telling us that his father had gotten him out of combat duty. Again, I don't think anyone was offended; I remember being amazed at the time that a U.S. Senator had that kind of power.

 Appendix to Defendants' Motion to Dismiss and for Summary Judgment ("Defs. App.") at 2 (Letter of Paul McCloskey, Jr. to Rep. Andrew Jacobs, Jr. (Aug. 4, 1986)) (emphasis in original). McCloskey also stated in the letter that upon arrival in Korea, "Robertson had been made the division 'Liquor Officer'; . . . [whose] major duty was apparently to fly to Japan once a week and bring back booze for the officers' mess, but I would assume he had other [Headquarters] assignments as well." Id. at 4. Finally, McCloskey mentioned the Los Angeles Times article, stating that "Pat saw the article and sent me a letter mildly objecting, but making no objections as to its veracity." Id. at 5.

 Jacobs released the letter to nationally syndicated columnists Evans & Novak and Jack Anderson in September 1986 and widely publicized stories followed. Following a further exchange of correspondence in September and October 1986, Robertson filed these suits, alleging that defendants had each libeled him and had jointly conspired to defame him.

 II.

 A. Defendant Jacobs' Absolute Immunity Claim

 As an initial matter, the court turns to Jacobs' claim that he enjoys absolute immunity from common law tort liability for his official actions, and McCloskey's related contention that his letter responding to an official inquiry from Jacobs was privileged. Eschewing any reliance on the absolute immunity afforded by the Speech or Debate Clause, Jacobs argues that under the judicially created doctrine of official immunity set forth in Barr v. Matteo, 360 U.S. 564, 3 L. Ed. 2d 1434, 79 S. Ct. 1335 (1959), he is absolutely immune from common law tort liability for any acts taken "within the outer perimeter of [his] line of duty." Id. at 575. Dissemination of McCloskey's letter, he contends, falls comfortably within his legislative duty to inform the public on matters of national concern; the matter of concern in this case, he suggests, is the war record of public figures who advocate an increased national defense build-up. While the court does not in any way question the legitimacy of this subject of public debate, it does not find that Jacobs is entitled to the immunity he claims.

 As this circuit has explained, the official immunity doctrine of Barr does not supplement the protections legislators enjoy under the Speech or Debate Clause, but rather provides an equivalent defense for officials of the judicial and executive branches. In McSurely v. McClellan, 243 U.S. App. D.C. 270, 753 F.2d 88 (D.C. Cir.), cert. denied, 474 U.S. 1005, 106 S. Ct. 525, 88 L. Ed. 2d 457 (1985), the court stated that the immunity doctrine established by Barr

 
applies to executive branch officials acting within the scope of their employment. . . . Protection similar to that afforded executive officials by Barr is supplied to members of Congress and their staffs through the Speech or Debate Clause of the Constitution. While Barr v. Matteo establishes absolute immunity for executive branch activity "within the outer perimeter" of an executive official's line of duty, the Speech or Debate Clause provides absolute immunity for conduct that is "part and parcel of the legislative process." Gravel v. United States, 408 U.S. 606, 626, [92 S. Ct. 2614, 33 L. Ed. 2d 583] (1972).

 Id. at 114. In arguing otherwise, Jacobs has apparently confused the concept of absolute immunity with that of qualified immunity -- a doctrine that does not bar suit outright but permits officials to escape liability by showing that their conduct did not "violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). As this circuit explained in Walker v. Jones, 236 U.S. App. D.C. 92, 733 F.2d 923 (D.C. Cir.), cert. denied, 469 U.S. 1036, 83 L. Ed. 2d 402, 105 S. Ct. 512 (1984), a case upon which defendant relies, "the Supreme Court has instructed that absolute immunity for members of Congress does not extend beyond the scope of the Speech or Debate Clause. . . members of Congress may assert the same qualified immunity available to executive officials. . . ." Id. at 932 (emphasis added; citations omitted); see also McSurely, 753 F.2d at 100 (recognizing qualified immunity for Senate aides charged with violating plaintiff's constitutional rights); Doe v. McMillan, 185 U.S. App. D.C. 48, 566 F.2d 713 (D.C. Cir. 1977) (Superintendent of Public Documents and Public Printer entitled to qualified immunity, though not Speech or Debate Clause immunity, for printing congressional report), cert. denied, 435 U.S. 969, 56 L. Ed. 2d 59, 98 S. Ct. 1607 (1978). *fn1"

 The court's conclusion that Jacobs' absolute immunity from common law tort liability extends no farther than the protections of the Speech or Debate Clause is further buttressed by the fact that a rule allowing legislators to supplement these protections through recourse to the official immunity doctrine would essentially render meaningless the Supreme Court's carefully drawn limitations on the reach of the Speech or Debate Clause. Thus, for example, in Hutchinson v. Proxmire, 443 U.S. 111, 61 L. Ed. 2d 411, 99 S. Ct. 2675 (1979), the Court rejected the contention that a Senator could not, consistent with the Speech or Debate Clause, be held liable for defamation based on his dissemination of newsletters and press releases, because such an activity was part of the "informing function" of Congress. While recognizing the importance of this legislative activity, the Court concluded that it was not part of the "deliberative process" and thus not entitled to Speech or Debate Clause protection. Id. at 130-133. For this court to rule that the informing function nevertheless falls within "the outer perimeter" of a representative's duties, and is thus shielded under the official immunity doctrine, would render the Hutchinson decision a hollow academic exercise. The Supreme Court has made clear that "[legislators] and their aides [are] absolutely immune only when performing 'acts legislative in nature,' and not when taking other acts even 'in their official capacity.'" Harlow v. Fitzgerald, 457 U.S. at 811 (quoting Gravel v. United States, 408 U.S. 606, 625, 33 L. Ed. 2d 583, 92 S. Ct. 2614 (1972)) (emphasis added). Under Hutchinson, dissemination of information such as that involved here is not protected by the Speech or Debate Clause, and this court may not immunize under a different label conduct the Supreme Court has deemed unprotected.

 B. Defendant McCloskey's Claim of Privilege

 Defendant McCloskey argues that, regardless of any constitutional immunity Jacobs may enjoy, under the common law his August 4, 1986 letter was a privileged communication for which he cannot be held liable. The common law privilege for communications made to a legislative body is set out in the Restatement (Second) of Torts ยง 590A (1977), which provides that:

 
[a] witness is absolutely privileged to publish defamatory matter as part of a legislative proceeding in which he is testifying or in communications preliminary to the proceeding, if ...

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