# Pennsylvania Railroad Company v. Day/Dissent Black

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Black
* Dissenting Opinions Black Brennan Stewart
United States Supreme Court
360 U.S. 548
Pennsylvania Railroad Company v. Day
Argued: March 26, 1959. --- Decided: June 29, 1959
Mr. Justice BLACK, with whom The CHIEF JUSTICE and Mr. Justice DOUGLAS concur, dissenting.
I would affirm the judgment of the Court of Appeals for two reasons: I do not agree that the Railway Labor Act requires retired railroad employees to submit their back-wage claims to the National Railroad Adjustment Board; I believe that Act, as here construed to grant railroads court trials of wage claims against them while compelling the employees to submit their claims to the Board for final determination, denies employees equal protection of the law in violation of the Due Process Clause of the Fifth Amendment. Cf. Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884.
The Court holds that the Railway Labor Act gives the National Railroad Adjustment Board exclusive jurisdiction of back-pay disputes between retired railroad employees and their ex-employer railroads. I cannot read the Labor Act that way. The controlling provision, § 3, First (i), confers power on the Board to adjust 'disputes between an employee or a group of employees and a carrier or carriers * * *.' Seemingly to highlight the fact that the Act is to govern active workers only, Congress defined 'employee' as 'every person in the service of a carrier (subject to its continuing authority to supervise and direct the manner of rendition of his service) who performs any work defined as that of an employee * * *.' The railway engineer who brought this suit was not an employee within this definition. Prior to suit he had resigned his job, and had claimed an annuity under the Railroad Retirement Act of 1937, which requires a worker making such a claim to relinquish all rights to return to railroad service in the future. Under these circumstances, the retired employee could not be, and was not 'in the service' of the railroad or 'subject to its continuing authority to supervise * * * the manner of rendition of his service.' No other language in the Act brings retired railroad employees within the exclusive jurisdiction of the Adjustment Board. I think the Court's holding represents an altogether unjustifiable interpretative liberty.
There are perhaps few statutes providing less of an excuse for departing from congressional language than the Railway Labor Act, at least insofar as its coverage is concerned. It is but one step in a series of congressional efforts to establish machinery for peaceful settlement of quarrels between railroads and railroad workers in order to avoid strikes and resulting interruption of railroad service. The Act as a whole is a product of many years of thought, study, conferences, discussions, and experiments. Many witnesses, including representatives of railroads and employees, have testified at many congressional hearings. The hearings show a solicitous interest by both groups in the language of the legislation. The Act touches sensitive subjects of importance to industrial peace, and represented as enacted a balance of interests reasonably satisfactory to all groups. As such, the plain meaning of its language should not lightly be disturbed.
The Court finds reasons outside the language of the Act, however, for expanding the Board's jurisdiction beyond thebou ndaries set by the definitions of Congress. These reasons, in my judgment, do not support the expansion of the Act's coverage which the Court makes. The Court argues that 'All the considerations which led Congress to entrust an expert administrative board with the interpretation of collective bargaining agreements are equally applicable when, as here, the employee has retired from service after initiating a claim for compensation for work performed while on active duty.' I am afraid this statement assumes a knowledge which the Court does not and cannot have. Of course some of the same considerations apply. I agree, for example, that the same collective bargaining agreement must be construed whether wages are claimed by an ex-employee or by an active employee. This is equally true, however, when an ex-employee sues for wrongful discharge under a collective bargaining agreement. Yet we have not hesitated on three separate occasions to say that such actions for wrongful discharge can be adjudicated in the courts, and that the courts themselves may construe the bargaining agreement. Moore v. Illinois Central R. Co., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089; Slocum v. Delaware, L. & W.R. Co., 339 U.S. 239, 70 S.Ct. 577, 94 L.Ed. 795; Transcontinental & Western Air, Inc., v. Koppal, 345 U.S. 653, 73 S.Ct. 906, 97 L.Ed. 1325. Similarly, when the Board makes an award adverse to the railroad and the employee is forced to go to the courts to have the award enforced, courts have felt free to interpret collective bargaining agreements differently from the way the Board had.
Moreover, I do not agree with the Court that the problems involved in suits by ex-employees and active employees are necessarily the same. One cannot know all the complex of considerations which led Congress to adopt the Act. One can only surmise its reasons for carefully limiting the Act's scope to disputes between active railroad workers and their employers. It is clear, however, that active employees work together from day to day; their work frequently makes them live together in the same neighborhood; they, in fact, constitute almost a separate family of people, discussing their interests and affairs, and airing among themselves their complaints and grievances against the company. In such an atmosphere individual dissatisfactions tend to become those of the group, breeding industrial disturbances and strikes. We cannot know that this is true of retired employees, as the Court seems to take for granted. Instead, the very opposite would seem a much more likely assumption. Retired employees give up their daily work contact with active workers, frequently even move a long way off from their old working localities, and therefore their personal grievances are not so likely to breed group dissatisfaction leading to strikes. Consequently, it seems wrong to intimate that the grievances retired workers may have over claims for back pay are as likely to create strife productive of railroad strikes as the same grievances would, if entertained by active railroad workers. Certainly, the Court's questionable assumption to this effect supplies a very slim basis for departing from the clear language of the Act.
But if external considerations are to be used to interpret the statute, I think that the 'lop-sided' effect courts have given to the Act's provisions for review of Board awards furnishes a very weighty reason for excluding retired employees from the exclusive jurisdiction of the Board. The Act provides that either a railroad worker or an employee can invoke the compulsory jurisdiction of the Adjustment Board. Section 3, First (m) states that 'awards shall be final and binding upon both parties to the dispute, except insofar as they shall contain a money award.' As constued , this provision prohibits an employee from seeking review of an adverse Board ruling in the courts. And courts, determining that a Board denial of an employee's money claim is not a 'money award' falling within the exception of § 3, First (m), have refused workers a judicial trial of their money claims against the railway after these have been rejected by the Board. Today's decision in Union Pacific R. Co. v. Price, 360 U.S. 601, 79 S.Ct. 1351, appears to adopt this position. In contrast, however, a railroad may obtain a trial substantially de novo of any award adverse to it. For, under § 3, First (p) of the Act, if a carrier does not voluntarily comply with the Board's award, including wage awards for money damages, a wage earner can enforce the Board's order only by bringing, in a United States District Court, a suit which 'shall proceed in all respects as other civil suits, except that on the trial of such suit the findings and order of the division of the Adjustment Board shall be prima facie evidence of the facts therein stated * * *.'
Construed this way, the Act creates a glaring inequality of treatment between workers and railroads. After denial by the Adjustment Board, workers can get no judicial trial of their claims; railroads, however, can get precisely the same kind of trial they would have were there no Adjustment Board, except that the Board's findings constitute prima facie evidence in the case. For the reasons stated by Mr. Justice Douglas in his dissent in Price, I think the Railway Labor Act should be construed to grant a railroad employee the same kind of redetermination by judge and jury of a Board order denying him a 'money award' that the Act affords a railroad for a money award against it. The Court rejected this view in Price. The unfairness of the discriminatory procedure there upheld seems manifest to me. In my judgment, it is bound to incite the kind of bitter resentment among railroad workers which will produce discord and strikes interrupting the free flow of commerce and creating the very evil Congress sought to avoid by this Act. These reasons seem to me to provide compelling arguments against judicial expansion of the Act to retired railroad workers plainly not covered by its language. Since the Court refuses to construe the Act to exclude such workers, however, I am forced to reach and consider the constitutional contentions raised by respondent.
Respondent argues that giving the Adjustment Board jurisdiction to make a 'final and binding' determination of hiswag e claim deprives him of a jury trial in violation of the Seventh Amendment since wage disputes were 'Suits at common law * * *.' His contention is all the more serious where, as here, he is compelled to submit his claim to the Board and-as I understand the Court's holding here and in Price-is never allowed to take it to the courts for trial. In a comparable situation, Congress amended the reparation provisions of the Interstate Commerce Act for the specific purpose of avoiding constitutional difficulties by guaranteeing a railroad a full jury trial of money claims against it. Significantly, § 3, First (p) of the Railway Labor Act, which provides the kind of court trial a railway can get before an award against it can be enforced, is copied substantially verbatim from § 16(2) of the amended Commerce Act. That section (§ 16(2) had been construed by this Court long before the Railway Labor Act was passed so as to assure that it did not 'abridge the right of trial by jury, or take away any of its incidents.' Meeker v. Lehigh Valley R. Co., 236 U.S. 412, 430, 35 S.Ct. 328, 335, 59 L.Ed. 644. It is hard for me to believe that Congress enacted the Railway Labor Act on the assumption that a railroad worker is any less entitled to a jury trial under the Constitution than is a railroad. And I would construe the Act on the basis that Congress believed both are entitled to such a trial. See Union Pacific R. Co. v. Price, 360 U.S. 601, 79 S.Ct. 1351, 1360 (dissenting opinion). Instead the Court in Price rejects this construction, from which it must follow that respondent here is deprived of a jury trial, although the railroad can get one.
It would surely not be easy to uphol th e constitutionality of a procedure which takes away from both parties to a wage dispute their ancient common-law right to a trial by court and jury. It should be impossible to uphold it when, as here, the procedure grants both parties an administrative hearing and then gives one of them a second chance before a judge and jury while denying it to the other. Such an unequal procedure cannot be a fair trial since it gives one side a far better chance to win than the other. Analogous practices in both criminal and civil cases have been consistently struck down by this and many other courts. Yet today the Court upholds this procedure without so much as discussing it. It does this although I can hardly think of a case where discrimination between litigants is less justified. Indeed, the only 'justification' that has been attempted is that at the time the Railway Labor Act was passed certain representatives of the Railroad Brotherhoods were willing to forego their right to trial by judge and jury in exchange for certain benefits the law allegedly gave them. See Union Pacific R. Co. v. Price, 360 U.S. 601, 79 S.Ct. 1351. Taken as a whole I do not read the legislative history of the law as supporting any such concession by the unions. But even if it did, I would not be able to uphold the procedure here involved. For, assuming that an individual can contract away his constitutional right to an equal trial, and assuming additionally the still more doubtful proposition that representatives of an organization can, by contract, estop its members from claiming equal treatment in the courts in cases or controversies arising thereafter, I cannot agree that the statements of some union leaders to Congress when it enacted this law can be taken to have such an effect. A fair trial is too valuable a safeguard of our liberty for us to allow it to be so easily discarded. I would hold that respondent has a right to jury trial equal to that accorded the railroad, and that his constitutional contention is well taken.
For all these reasons I would affirm the judgment of the Court of Appeals.
Mr. Byron N. Scott, Washington, D.C., for respondents.
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 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 illfounded 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 Drector. The circumstances which gave rise to the issuance of the release follow.
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 the plan would have been to obviate the possibility that the agency might have to make large terminal-leave payments during the next fiscal 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 employees, and restored to permanent status should the agency's life in fact be extended.
Petitioner, at the time General Manager of the agency, opposed respondnts ' plan on the ground that it violated the spirit of the Thomas Amendment, 64 Stat. 768, 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. Thereafter the life of the agency was in face 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 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. 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.
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, 768. We granted certiorari, vacated the Court of Appeals' judgment, and remanded the case 'with directions to pass upon petitioner's claim of a qualified privilege.' 355 U.S. 171, 173, 78 S.Ct. 204, 206, 2 L.Ed.2d 179. 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, 79 S.Ct. 287, 3 L.Ed.2d 237, 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. 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, 20 L.Ed. 646, and that a like immunity extends to other officers of government whose duties are related to the judicial process. Yaselli v. Goff, 2 Cir., 12 F.2d 396, 56 A.L.R. 1239, affirmed per curiam, 275 U.S. 503, 48 S.Ct. 155, 72 L.Ed. 395, involving a Special Assistant to the Attorny G eneral. Nor has the privilege been confined to officers of the legislative and judicial branches of the Government and executive officers of the kind involved in Yaselli. In Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780, 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 161 U.S. at pages 498-499, 16 S.Ct. at page 637:
'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 was 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.'
The reasons for the recognition of the privilege have 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 governmental 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 officrs 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 alternative. In this instance it has been thought in the end better to leave unredressed the wrongs doen 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, 2 Cir., 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. The privilege is not a badge or emolument of exalted office, but an expression of a policy 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.
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, 161 U.S. at page 498, 16 S.Ct. at page 637,-which must provide the guide in delineating the scope of the rule which clothes the official acts of the executive officer with 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 direction 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, and was clothed by redelegation with 'all powers, duties, and functions conferred on the President by Title II of the Housing and Rent Act of 1947 * * *.' 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 in 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 expessed 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 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.
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 to 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 upo a jury's speculation as to motives.' Tenney v. Brandhove, 341 U.S. 367, 377, 71 S.Ct. 783, 788, 95 L.Ed. 1019.
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 prvilege 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 go unredressed, 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.
Mr. Justice BLACK, concurring.
I concur in the reversal of this judgment but briefly summarize my reasons because they are not altogether the same as those stated in the opinion of Mr. Justice HARLAN.
The petitioner Barr, while acting as Director of the Office of Rent Stabilization, a United States Government Agency, issued a press release in which he gave reasons why he intended to suspend the respondents Matteo and Madigan, who were also officers of the Agency. There is some indication in the record that there was an affirmative duty on Mr. Barr to give press releases like this, but however that may be it is clear that his action was forbidden neither by an Act of Congress nor by any governmental rule duly promulgated and in force. It is also clear that the subject matter discussed in the release was germane to the proper functioning of the Rent Stabilization Agency and Mr. Barr's duties in relation to it. In fact, at the time the release was issued congressional inquiries were being made into the operations of the Agency and the controversy upon which the threatened suspensions were based, and the press release revealed that Barr had requested an opportunity to testify before a Congressional Committee with respect to the whole dispute.
The effective functioning of a free government like ours depends largely on the force of an informed public opinion. This calls for the widest possible understanding of the quality of government service rendered by all elective or appointed public officials or employees. Such an informed understanding depends, of course, on the freedom people have to applaud or to criticize the way public employees do their jobs, from the least to the most important.
Mr. Barr was peculiarly well qualified to inform Congress and the public about the Rent Stabilization Agency. Subjecting him to libel suits for criticizing the way the Agency or its employees perform their duties would certainly act as a restraint upon him. So far as I am concerned, if federal employees are to be subjected to such restraints in reporting their views about how to run the government better, the restraint will have to be imposed expressly by Congress and not by the general libel laws of the States or of the District of Columbia. How far the Congress itself could go in barring federal officials and employees from discussing public matters consistently with the First Amendment is a question we need not reach in this case. It is enough for me here that the press release was neither unauthorized nor plainly beyond the scope of Mr. Barr's official business, but instead related more or less to general matters committed by law to his control and supervision. See Spalding v. ila s, 161 U.S. 483, 493, 498-499, 16 S.Ct. 631, 635-637, 40 L.Ed. 780.
Mr. Chief Justice WARREN, with whom Mr. Justice DOUGLAS joins, dissenting.
The principal opinion in this case purports to launch the Court on a balancing process in order to reconcile the interest of the public in obtaining fearless executive performance and the interest of the individual in having redress for defamation. Even accepting for the moment that these are the proper interests to be balanced, the ultimate disposition is not the result of a balance. On the one hand, the principal opinion sets up a vague standard under which no government employee can tell with any certainty whether he will receive absolute immunity for his acts. On the other hand, it has not given even the slightest consideration to the interest of the individual who is defamed. It is a complete annihilation of his interest.
I could understand it-though I could not agree-if the Court adopted a broad absolute privilege for certain classes of government officials, or indeed for the entire executive, by broadly extending Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780. At least that result would yield certainty by allowing government officials to know in advance whether they might issue absolutely privileged statements. But the opinion's tests sets no standard to guide executive conduct. As the Government acknowledged on oral argument, Congress, when it creates executive agencies, almost never expressly authorizes the new agency to issue press releases as part of its functions. Nor does it decree which employees of the new agency will have such duties and which will not. By necessity, therefore, the decision will require a de novo appraisal of almost every charge of defamation by a government official. The records will probably be no more satisfactory than the one now before us-with little more than bald assertions that a specific official has the power to do what resulted in the defamation. The principal opinion cannot even say that Barr's position authorized the press release; the most it can and does say is that it cannot say that the release was not an appropriate exercise of discretion by Barr in this precise situation. 360 U.S. at page 575, 79 S.Ct. at page 1341. This creates a presumption that the challenged action is within the officer's scope of duty unless the plaintiff can prove otherwise. Since it has been admitted that, as in this case, these duties are rarely enumerated, an executive assertion on the official's bahalf may place an impossible burden of proof on the plaintiff seeking to avoid the defense of absolute privilege. By this unusual approach, the traditional rule that it is the defendant who must sustain his affirmative defense of privilege-and not the plaintiff who must negate that defense-is apparently disregarded.
The history of the privileges conferred upon the three branches of Government is a story of uneven development. Absolute legislative privilege dates back to at least 1399. This privilege is given to Congress in the United States Constitution and to State Legislatures in the Constitutions of almost all of the States of the Union. The absolute immunity arising out of judicial proceedings existed at least as early as 1608 in England.
But what of the executive privilege? Apparently, the earliest English case presenting the problem of immunity outside the legislative and judicial branches of government is Sutton v. Johnstone, 1 T.R. 493, decided in 1786. There, the plaintiff, captain of a warship, sued the commander-in-chief of his squadron for charging plaintiff, maliciously and without probable cause, with disobedience of orders and putting him under arrest and forcing him to face a court-martial. The Court of Exchequer took jurisdiction of the case but was reversed, 1 T.R. 510, on the ground that purely military matters were not within the cognizance of the civil courts. During the next century several other military cases were decided.
In Chatterton v. Secretary of State for India, (1895) 2 Q.B. 189, the defendant had been apprised that his action with respect to the plaintiff would be made the subject of a parliamentary inquiry. In the communication alleged to be libelous, the defendant told his Under Secretary what answer should be made if the question were asked him in Parliament. The court affirmed dismissal of the complaint relying on Fraser on The Law of Libel and Slander (1st ed.), p. 95, where the author, with no citations, observed, after relating the history of the military cases:
'For reasons of public policy the same protection would, no doubt, be given to anything in the nature of an act of state, e.g., to every communication relating to state matters made by one minister to another, or to the Crown.'
This was the actual birth of executive privilege in England.
Such was the state of English law when, the next year, this Court decided Spalding v. Vilas, supra. In granting the Postmaster General absolute immunity for 'matters committed by law to his control or supervision,' this Court relied exclusively on the judicial privilege cases and the English military cases. Thus, leaving aside the military cases, which are unique, the executive privilege in defamation actions would appear to be a judicial creature of less than 65 years' existence. Yet, without statute, this relatively new privilege is being extended to open the possibility of absolute privilege for innumerable government officials.
It may be assumed, arguendo, that a government employee should have absolute immunity when according to his duty he makes internal reports to his superior or to another upon his superior's order. Cf. Taylor v. Glotfelty, 6 Cir., 201 F.2d 51; Farr v. Valentine, 38 App.D.C. 413; De Arnaud v. Ainsworth, 24 App.D.C. 167, 5 L.R.A.,N.S., 163. This might be a practical necessity of government that would find its justification in the need for a free flow of information within every executive department. It may not be unreasonable to assume that if a maliciously false libel is uttered in an internal report, it will be recognized as such and discredited without further dissemination.
Spalding v. Vilas, supra, presents another situation in which absolute privilege may be justified. There the Court was dealing with the Postmaster General-a Cabinet officer personally responsible to the President of the United States for the operation of one of the major departments of government. Cf. Glass v. Ickes, 73 App.D.C. 3, 117 F.2d 273, 132 A.L.R. 1328; Mellon v. Brewer, 57 App.D.C. 126, 18 F.2d 168, 53 A.L.R. 1519. The importance of their positions in government as policymakers for the Chief Executive and the fact that they have the expressed trust and confidence of the President who appointed them and to whom they are personally and directly responsible suggest that the absolute protection partakes of presidential immunity. Perhaps the Spalding v. Vilas rationale would require the extension of such absolute immunity to other government officials who are appointed by the President and are directly responsible to him in policy matters even though they do not hold Cabinet positions. But this extension is not now before us, since it is clear that petitioner Barr was not appointed by the President nor was he directly responsible to the President. Barr was exercising powers originally delegated by the President to the Director of Economic Stabilization who redelegated them to the Director of Rent Stabilization. And it is not contended that petitioner was under any order to issue a statement in this matter.
I would not extend Spalding v. Vilas to cover public statements of lesser officials. Releases to the public from the executive branch of government imply far greater dangers to the individual claiming to have been defamed than do internal libels. First, of course, a public statement-especially one arguably libelous-is normally intended for and reaches a larger audience than an internally communicated report. Even if the release can later be shown libelous, it is most unusual for a libeled person to obtain the same hearing that was available for the original press release. Second, a release is communicated to a public in no position to evaluate its accuracy; where the report is made internally, the superior is usually in a position to do so. If the report is false, the superior can undo much of the harm of the report by countermanding it or halting its spread.
Giving officials below cabinet or equivalent rank qualified privilege for statements to the public would in no way hamper the internal operation of the executive department of government, nor would it unduly subordinate the interest of the individual in obtaining redress for the public defamation uttered against him. Cf. Colpoys v. Gates, 73 App.D.C. 193, 118 F.2d 16.
The foregoing discussion accepted for the purpose of argument the majority's statement of the interest involved here. But as so often happens in balancing cases, the wrong interests are being balanced. Cf. Barenblatt v. United States, 360 U.S. 109, 134, 79 S.Ct. 1081, 1097 (dissenting opinion). This is not a case where the only interest is in plaintiff's obtaining redress of a wrong. The public interest in limiting libel suits against officers in order that the public might be adequately informed is paralleled by another interest of equal importance: that of preserving the opportunity to criticize the administration of our Government and the action of its officials without being subjected to unfair-and absolutely privileged-retorts. If it is important to permit government officials absolute freedom to say anything they wish in the name of public information, it is at least as important to preserve and foster public discussion concerning our Government and its operation.
It is clear that public discussion of the action of the Government and its officials is accorded no more than qualified privilege. In most States, even that privilege is further restricted to situations in which the speaker is accurate as to his facts and where the claimed defamation results from conclusions or opinions based on those facts. Only in a minority of States is a public critic of Government even qualifiedly privileged where his facts are wrong. Thus, at best, a public critic of the Government has a qualified privilege. Yet here the Court has given some amorphous group of officials-who have the most direct and personal contact with the public-an absolute privilege when their agency or their action is criticized. In this situation, it will take a brave person to criticize government officials knowing that in reply they may libel him with immunity in the name of defending the agency and their own position. This extension of Spalding v. Vilas can only have the added effect of deterring the desirable public discussion of all aspects of our Government and the conduct of its officials. It will sanctify the powerful and silence debate. This is a much more serious danger than the possibility that a government official might occasionally be called upon to defend his actions and to respond in damages for a malicious defamation.
The principal opinion, while attempting to balance what it thinks are the factors to be weighed, has not effectuated the goal for which it originally strove. Rather, its rsul t has been an uncertain standard whose effect can unfold only on a case-to-case basis, and which does not provide a guide for executive conduct. But more important, the opinion has set out the wrong interests and by its extension of absolute privilege in this case has seriously weakened another great public interest-honest and open discussion and criticism of our Government.

## Notes

* ↑ 48 Stat. 1191, 45 U.S.C. § 153, First (i), 45 U.S.C.A. § 153, subd. 1(i).
* ↑ 44 Stat. 577, as amended, 45 U.S.C. § 151 Fifth, 45 U.S.C.A. § 151, subd. 5.
* ↑ 50 Stat. 309, as amended, 45 U.S.C. § 228b, 45 U.S.C.A. § 228b.
* ↑ Brotherhood of Railway and S.S.C.larks, Freight Handlers, Express and Station Employees v. Railway Express Agency, Inc., 6 Cir., 238 F.2d 181; Dahlberg v. Pittsburgh & L.E.R. Co., 3 Cir., 138 F.2d 121.
* ↑ We recently held, over the vigorous protest of the railroad workers, that this jurisdiction is not only compulsory, but that a union can be enjoined from striking while the Board's jurisdiction is being exercised. Brotherhood of Railroad Trainmen v. Chicago River & Indiana R. Co., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622.
* ↑ 48 Stat. 1191, 45 U.S.C. § 153, First (m), 45 U.S.C.A. § 153, subd. 1(m).
* ↑ See, e.g., note 8, infra. Courts have intimated, however, that review of Board rulings adverse to the employee is permissible to the extent of insuring that the employee was not deprived of procedural rights protected by due process. Ellerd v. Southern Pacific R. Co., 7 Cir., 241 F.2d 541; Barnett v. Pennsylvania-Reading Seashore Lines, 3 Cir., 245 F.2d 579.
* ↑ E.g., Reynolds v. Denver & Rio Grande Western R. Co., 10 Cir., 174 F.2d 673; Parker v. Illinois Central R. Co., D.C., 108 F.Supp. 186; Ramsey v. Chesapeake & O.R. Co., D.C., 75 F.Supp. 740.
* ↑ 48 Stat. 1192, 45 U.S.C. § 153, First (p), 45 U.S.C.A. § 153, subd. 1(p).
* ↑ 'In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.' U.S.Const. Amend. VII.
* ↑ See Lehigh Valley R. Co. v. Clark, 3 Cir., 207 F. 717; Western New York & P.R. Co. v. Penn Refining Co., Limited, 3 Cir., 137 F. 343, 349-350. See also United States v. Interstate Commerce Commission, 337 U.S. 426, 444, 454-455, 69 S.Ct. 1410, 1420, 1425, 93 L.Ed. 1451 (dissenting opinion); Councill v. Western & A.R. Co., 1 I.C.C. 339, 344-345; Heck v. East Tennessee, V. & G.R. Co., 1 I.C.C. 495, 502. And in his dissent in Union Pacific R. Co. v. Price, 360 U.S. 617, 79 S.Ct. 1360, Mr. Justice Douglas calls attention to the fact that the provisions of the Interstate Commerce Act have been construed, in United States v. Interstate Commerce Comm'n, 337 U.S. 426, 69 S.Ct. 1410, 93 L.Ed. 1451, to provide for review of Commission reparation orders by shippers as well as by the railways.
* ↑ Section 3, First (p) of the Railway Labor Act reads in part: 'Such suit in the District Court of the United States shall proceed in all respects as other civil suits, except that on the trial of such suit the findings and order of the division of the Adjustment Board shall be prima facie evidence of the facts therein stated * * *.' 48 Stat. 1192, 45 U.S.C. § 153, First (p), 45 U.S.C.A. § 153, subd. 1(p).
* ↑ See 3 Blackstone Commentaries (15th ed. 1809) 162; 2 id., at 442.
* ↑ E.g., Burns v. State of Ohio, 358 U.S. 919, 79 S.Ct. 292, 3 L.Ed.2d 238; 79 S.Ct. 1164 (state required to allow indigent defendant to appeal in forma pauperis from criminal conviction where appeal as of right allowed other defendants); Griffin v. People of the State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (same); City of Spartanburg v. Cudd, 132 S.C. 264, 128 S.E. 360 (right to jury redetermination of administrative award in condemnation suit must be allowed municipality if permitted to property owner); Georgia Power Co. v. brooks, 207 Ga. 406, 62 S.E.2d 183 (statute allowing one party to a condemnation valuation suit to introduce evidence of 'similar sales' while other party is not, held invalid); People v. Sholem, 238 Ill, 203, 87 N.E. 390 (appeal from administrative determination of valuation of an estate for tax purposes must be allowed State if allowed other party); Hecker v. Illinois Central R. Co., 231 Ill. 574, 83 N.E. 456 (statute providing for state supreme court review of facts after trial court's findings reversed without grant of new trial by intermediate appellate court, but denying such review if trial court's findings upheld, found invalid).
* ↑ 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.
* ↑ This statute, part of the General Appropriation Act of 1951, provided that:
* ↑ 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.
* ↑ The plan was referred to by various Senators as 'a highly questionable 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 constitue '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 * * *.' 90 Cong.Rec. 868-871.
* ↑ '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.
* ↑ U.S.Const. Art. I, § 6. See Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377.
* ↑ See also Cooper v. O'Connor, 69 App.D.C. 100, 99 F.2d 135, 118 A.L.R. 1440; compare Brown v. Shimabukuro, 73 App.D.C. 194, 118 F.2d 17.
* ↑ 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, 53 A.L.R. 1519; Glass v. Ickes, 73 App.D.C. 3, 117 F.2d 273, 132 A.L.R. 1328.
* ↑ As to suits for defamation see, e.g., Taylor v. Glotfelty, 6 Cir., 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, 5 L.R.A.,N.S., 163; 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, D.C., 136 F.Supp. 222; Tinkoff v. Campbell, D.C., 86 F.Supp. 331; Miles v. McGrath, D.C., 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., 8 Cir., 107 F.2d 139; Gregoire v. Biddle, supra; De Busk v. Harvin, 5 Cir., 212 F.2d 143; Lang v. Wood, 67 App.D.C. 287, 92 F.2d 211.
* ↑ 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, note 28, of the office of Attorney General of the United States in the early days of the Republic:
* ↑ The record indicates that in 1950 the Office of Housing Expediter had some 2,500 employees.
* ↑ 61 Stat. 193, 50 U.S.C.A.Appendix, § 1881 et seq. See 16 Fed.Reg. 7630.
* ↑ Compare United States v. Macdaniel, 7 Pet. 1, 14, 8 L.Ed. 587; United States v. Birdsall, 233 U.S. 223, 230-231, 34 S.Ct. 512, 514, 58 L.Ed. 930.
* ↑ See, e.g., Restatement, Torts, § 613, and Prosser, Torts (2d ed. 1955), 629 and cases cited.
* ↑ See Veeder, Absolute Immunity in Defamation: Legislative and Executive Proceedings, 10 Col.L.Rev. 131, 132. See also Tenney v. Brandhove, 341 U.S. 367, 372, 71 S.Ct. 783, 786, 95 L.Ed. 1019.
* ↑ U.S.Const. Art, I, § 6.
* ↑ See Tenney v. Brandhove, 341 U.S. 367, 375, note 5, 71 S.Ct. 783, 787, 95 L.Ed. 1019.
* ↑ Floyd v. Barker, 12 Co.Rep. 23. See also The King v. Skinner, Lofft 55. An excellent history of the development of this privilege may be found in Veeder, Absolute Immunity in Defamation: Judicial Proceedings, 9 Col.L.Rev. 463. For the development of this privilege in the United States, see Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646.
* ↑ This conclusion was justified on the following basis:
* ↑ In Home v. Bentinck, 2 B. & B. 130 (1820), the court upheld a privilege asserted by the defendant against producing in court the document alleged to contain the libel. This effectively foreclosed the action. See also Dickson v. The Earl of Wilton, 1 F. & F. 419 (1859); Keighly v. Bell, 4 F. & F. 763 (1866); Dawkins v. Lord F. Paulet, L.R. 5 Q.B. 94 (1869); Grant v. Secretary of State for India, L.R. 2 C.P.D. 445 (1877). Though this last case was a suit against a civil officer, it arose out of a military situation.
* ↑ In 1895 the Secretary of State for India was an important figure in the Government and was a member of the Cabinet. The Statesman's Year-Book (1895) 10.
* ↑ This might well, for example, include Barr's superior in 1953-the Director of Economic Stabilization.
* ↑ Barr's position as Deputy Director was such, on the date of the libel, that he recognized that he was not then entitled to suspend or fire the respondents and could not do so until several days later. (The Government asserted on oral argument that the full powers of the Director would devolve upon anyone who-by virtue of his superiors' leaving town-was in fact the highest ranking member of the agency at the moment. It was in this light that Barr was 'Acting' Director on the date of the libel.) Even after Barr officially because Acting Director on February 9, 1953, the Government admitted that the Director of Economic Stablization 'could have' directed Barr either to make or not to make press releases. When Barr took action against respondents, they appealed the decision to the Director of Economic Stabilization and ultimately wre reinstated.
* ↑ An extensive compilation of which States adhere to each view may be found in Noel, Defamation of Public Officers and Candidates, 49 Col.L.Rev. 875, 896-897, n. 102-106.
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