UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

REX BAUMBACK,

Plaintiff-Appellant,

v.

No. 97-2316

AMERICAN BROADCASTING COMPANIES,

INCORPORATED,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Claude M. Hilton, Chief District Judge.

(CA-97-199-A)

Argued: May 7, 1998

Decided: August 13, 1998

Before MICHAEL and MOTZ, Circuit Judges, and

TRAXLER, United States District Judge for the

District of South Carolina, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Thomas Patrick Dugan, SUROVELL, JACKSON,

COLTEN & DUGAN, Fairfax, Virginia, for Appellant. Kevin Taylor

Baine, WILLIAMS & CONNOLLY, Washington, D.C., for Appellee.

ON BRIEF: R. Hackney Wiegmann, Robert A. Van Kirk,

WILLIAMS & CONNOLLY, Washington, D.C.; Stephanie S.

 5130 35 12 Abrutyn, ABC, INC., New York, New York, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Rex Baumback ("Baumback") appeals the district court's grant of

summary judgment to ABC News ("ABC") in his suit against ABC

for libel. Having determined that Baumback was both a "public official" and a "public figure," the district court granted summary judgment on the ground that Baumback failed to offer any evidence that

ABC acted with "actual malice." We affirm.

I.

Baumback's suit against ABC was occasioned by a reference made

to Baumback in the "It's Your Money" report (the "Report"), a part

of ABC's television news program "World News Tonight with Peter

Jennings" on September 2, 1996. The subject of the Report for that

evening was the alleged mishandling of certain timber contracts by

officials of the United States Forest Service ("Forest Service") in

charge of California's Eldorado National Forest ("Eldorado" or the

"Forest"). At the time of these contracts, Baumback was the Timber

Management Officer and Contracting Officer for timber sales in

Eldorado. At the time of the broadcast, however, he had become a

Timber Sale Contract and Appraisal Specialist in the Forest Service's

headquarters in Washington, D.C. The timber contracts that were the

subject of the Report were noteworthy because the Forest Service

later cancelled them, creating a tremendous amount of legal exposure

for the United States.

The Forest Service first approved the sale of certain tracts of

Eldorado timber beginning in the early 1980s. At that time the necessary environmental assessment, a prerequisite for the sale of any

federally-owned timber, was performed for these tracts, but the Forest

Service decided later that the approved sales should be "shelved."

When the tracts were finally put on the market in 1992, the decision

 2
to sell them was not reevaluated under more current environmental

standards. The Forest Service nevertheless entered into some sixteen

contracts to sell the Eldorado timber.

The failure of the Forest Service to reevaluate the sales drew fire

from environmental groups, who argued that these sales were illegal

under newer environmental standards. Unconvinced, the Forest Service officials in charge of Eldorado determined that reapproval was

not required, and they contracted to sell the tracts anyway. As Timber

Management Officer and Contracting Officer for Eldorado, Baumback was intimately involved in this decision-making process and

soon found himself at the center of the controversy surrounding the

timber contracts.

As a result of this controversy, Forest Service officials agreed in

December 1992 to reconsider the sales. In the spring of 1993, a total

of twenty-four contracts for the sale of Eldorado timber, including the

sixteen entered into in 1992, were cancelled. Because of these cancellations, various timber companies brought breach of contract and

related claims against the United States. Those claims, potentially

totaling $24 million, remain unresolved.

After the cancellation of the Eldorado contracts, media attention

focused on Baumback as one of the Forest Service officials responsible for the aborted sales. On January 30, 1994, The Fresno Bee identified Baumback as "the agency official responsible for preparing the

disputed sales," and reported Baumback's statement that new environmental evaluations of the disputed tracts were not performed "because

he [Baumback] and his colleagues . . . had misinterpreted the requirements." J.A. 312. Further, an April 1994 article in Sacramento's The

Business Journal profiled Baumback as the "Tree Rex" of Eldorado,

quoting Baumback's statement that his main responsibilities at

Eldorado were "to prepare timber sales ... [and] administer timber sale

contracts." J.A. 312.

According to the Forest Service's official description of Baumback's position as Timber Management Officer for Eldorado, Baumback was "responsible for providing the leadership, coordination and

direction for the overall timber management program." J.A. 238. In

Baumback's curriculum vitae, he stated that, as Contracting Officer

 3
for Eldorado, he was responsible for "all contract actions by the government." J.A. 233. And in his position at national headquarters as

Timber Sale Contract and Appraisal Specialist for the Forest Service

as a whole -- the position he held at the time of ABC's broadcast --

Baumback's duties included "developing national policy related to

timber sale contracts and timber sale appraisals." J.A. 234. By his

own admission, at least by the time of the broadcast, Baumback had

become "the man" with regard to national policies governing timber

sale contracts and appraisals.

Based on Baumback's prominent position in the controversy surrounding the cancelled Eldorado contracts and the significance of his

subsequent position in Washington, D.C., ABC decided to feature

Baumback in the Report. In preparing the Report, ABC made use of

Baumback's job descriptions, news articles featuring Baumback as

the primary source behind the decision not to reevaluate the disputed

sales of Eldorado timber, and a "white paper" produced by the group

Public Employees for Environmental Responsibility ("PEER") that

harshly criticized Baumback's handling of the sales. In addition, the

producers of "It's Your Money" interviewed or attempted to interview

those involved in the dispute.

The result was a segment, approximately two and one-half minutes

in length, that featured a reporter's explanation of the cancelled sales,

as well as comments from two critics of the Forest Service's handling

of these contracts. Baumback, who would not consent to an interview,

was cited as "[t]he timber manager who pushed through the[ ] sales."

J.A. 232.

The statement, however, that specifically gave rise to Baumback's

defamation action was contained in ABC's "bumper" that preceded

the Report. Immediately before a commercial break, Catherine Crier,

the host of "World News Tonight with Peter Jennings" for that evening, stated:

When we come back the $25 million mistake and the

bureaucrat who got away with it. It's your money.

J.A. 231. Following the commercial break, the Report made clear that

Baumback was the "bureaucrat" referred to in the bumper.

 4
Baumback filed suit in Virginia state court, alleging the statement

that he was the "bureaucrat who got away with it" was defamatory.

ABC removed the suit to federal court and, after extensive discovery,

moved for summary judgment. The district court granted ABC's

motion, and this appeal followed.

II.

In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the

Supreme Court established "a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to

his official conduct unless he proves that the statement was made with

`actual malice' -- that is, with knowledge that it was false or with

reckless disregard of whether it was false or not," id. at 279-80. The

district court found that Baumback was a "public official," and that

he had offered no evidence of "actual malice" on the part of ABC.

Our review of these determinations is de novo .

A.

Turning first to the district court's finding that Baumback was a

"public official," we begin with the general rule that "the `public official' designation applies at the very least to those among the hierarchy

of government employees who have, or appear to the public to have,

substantial responsibility for or control over the conduct of governmental affairs." Rosenblatt v. Baer, 383 U.S. 75, 85 (1966) (emphasis

added). Thus, our application of the "public official" designation turns

on whether Baumback had substantial responsibility-- actual or

apparent -- for the administration of governmental matters.

In determining if a defamation plaintiff actually had substantial

responsibility for or control over the conduct of governmental affairs,

courts examine whether the plaintiff "made [ ] recommendations, participated in [ ] policy determinations, and exercised [ ] discretion."

Arctic Co. v. Loudoun Times Mirror, 624 F.2d 518, 521-22 (4th Cir.

1980). Even without a formal or apparent position as a "public official," a person "nevertheless may participate in some governmental

enterprise to such an extent that the policies underlying [New York

Times] would demand that he or she be classified a public official."

Jenoff v. Hearst Corp., 644 F.2d 1004, 1006 (4th Cir. 1981).

 5
It is equally clear, however, that a government employee may qualify as a "public official" if he merely appears to have substantial control:

Where a position in government has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it,

beyond the general public interest in the qualifications and

performance of all government employees, ... the New York

Times malice standards apply.

Rosenblatt, 383 U.S. at 85-86. "Public official" status can arise when

a defendant "occup[ies] a position inviting scrutiny and discussion

apart from that occasioned by the charges in controversy." Jenoff, 644

F.2d at 1006. As stated by the First Circuit:

Policymakers, upper-level administrators, and supervisors

are caught up in the public official net for [this] reason: such

plenipotentiaries occupy niches of apparent importance sufficient to give the public an independent interest in the qualifications and performances of the person[s] who hold[ ]

[them], beyond the general public interest in the qualifications and performance of all government employees.

Kassel v. Gannett Co., 875 F.2d 935, 939 (1st Cir. 1989) (internal

quotation marks omitted) (emphasis added).

In the instant case, the district court conferred"public official" status on Baumback because, as Timber Management Officer and Contracting Officer for Eldorado, Baumback was in a position of "`public

trust' that involved administration of substantial public funds." J.A.

157. Although the district court did not expressly state that it found

Baumback to be a "public official" as a result of his actual or apparent

authority, or both, it determined that Baumback exercised discretion

in deciding whether to award or modify contracts and exerted control

over Eldorado's full timber management program. The district judge

also found that Baumback's position as Contract Administration Specialist in Washington, D.C., involved substantial governmental

responsibilities that rendered him a public official. Likewise, the court

concluded that the public "had an `independent interest in the qualifi-

 6
cations and performance of [Baumback]'" in his position as Eldorado's Timber Management Officer sufficient to make him a public

official. J.A. 158.

We agree with the ultimate conclusion of the district court. Baumback was a public official by virtue of his actual and apparent authority. See Rosenblatt, 383 U.S. at 85. With regard to actual authority,

in both his position at Eldorado and at the Forest Service headquarters

in Washington, D.C., Baumback clearly had "substantial responsibility for or control over the conduct of governmental affairs."* To paraphrase Arctic, Baumback made recommendations (to the Forest

Supervisor at Eldorado and the senior policymakers in Washington),

he participated in policy determinations (for Eldorado as well as the

Forest Service as a whole), and he exercised discretion (in awarding

contracts to cut Eldorado timber). See Arctic , 624 F.2d at 522.

Indeed, in order to get an idea of the extent of Baumback's actual

responsibility for and control over the administration of government

affairs, one need only look at the government's official descriptions

of his positions with the Forest Service. As Timber Management Officer for Eldorado, Baumback was charged with "providing the leadership, coordination and direction for the overall timber management

program," and "[a]ct[ing] as the technical review authority for the full

range of activities of the Forest timber management program." J.A.

238. In his capacity as Contracting Officer for Eldorado, Baumback

had "full responsibility for entering into, modifying and administering

[timber] contracts; and resolving appeals and participating in administrative reviews." J.A. 244. And in his subsequent position at the

national headquarters, Baumback "provide[d] direction for national

policies, standards, guidelines and procedures relating to log export

_________________________________________________________________

*At oral argument, the parties disagreed as to when Baumback must

be shown to have been a "public official." According to Baumback, ABC

must show that he was a "public official" both at the time of the Eldorado

sales and at the time of the broadcast. ABC argued that, although the

proof showed Baumback was a public official on both occasions, only a

showing of public official status at the time of the broadcast was necessary. In light of our holding that Baumback was a public figure both at

the time of the events in question and at the time of the broadcast, we

need not reach this question.

 7
controls, the Operational phase of timber sales administration, and the

sale and disposal of Forest Products." J.A. 246.

These same official job descriptions also created the appearance

that Baumback's governmental responsibilities were significant.

Notably, the official job descriptions were available to the public.

Indeed, the government's descriptions of these duties were reprinted

in its advertisements of the positions. In fact, ABC used these publicly available descriptions in preparing the Report. And, in his own

curriculum vitae, Baumback maintained the appearance that he

wielded substantial control. In it, Baumback asserted that he was

responsible for Eldorado's entire timber program, as well as all sales

contracts for Eldorado timber. His resume also indicated that in

Washington, D.C., Baumback was "[r]esponsible[for] developing

national policy related to timber sale contracts and timber sale

appraisals." J.A. 234. In fact, he acknowledged in his deposition that

he was "the man" with regard to the entire Forest Service's policies

on timber appraisal and sale. In addition, Baumback's prominent role

in controlling timber sales at Eldorado was frequently in the news,

and there is no record that he objected to being featured as Eldorado's

"Tree Rex" during the controversy surrounding the cancelled sales.

We therefore find that Baumback had substantial responsibility, both

actual and apparent, over the control of government affairs in his

positions in Eldorado and in Washington, D.C.

Baumback, however, argues that our analysis of the"public official" question should not focus on his actual or apparent authority, but

rather on his relative position to others within the administrative

structure of the Forest Service. Baumback contends that he is not a

public official for the purposes of this suit because he now works

deep within the bureaucracy of the Department of Agriculture and

because at Eldorado he was a relatively anonymous staff officer. We

find such a "structural" argument unpersuasive.

Although we are aware of scattered opinions that base their conferral of "public official" status on a plaintiff's position within a governmental hierarchy, see, e.g., Lewis v. Elliott, 628 F. Supp. 512, 519

(D.D.C. 1986) (explaining that "public official" status should be

"`limited to high-ranking Government officials'") (quoting Clark v.

Pearson, 248 F. Supp. 188 (D.D.C. 1965)), we find that Baumback's

 8
relative position is not dispositive. As long as either one of the

grounds asserted in Rosenblatt -- actual or apparent substantial

responsibility for or control over government affairs -- is present, a

plaintiff qualifies as a "public official."

Baumback also contends that his responsibilities as Contracting

Officer -- which Baumback contends was the basis for the district

court's conclusion that he was a public official-- had nothing to do

with the alleged $25 million mistake referenced in ABC's bumper.

Rather, ABC's report indicated Baumback made the mistake in his

capacity as Timber Management Officer, not Contracting Officer.

Thus, Baumback contends that because ABC's statement implying

that he was "the bureaucrat who got away with it" was unrelated to

the source of his public official status, he was not a public official.

We conclude, however, that the distinction between Timber Management Officer and Contracting Officer is not a crucial one. Having

determined that Baumback's actual and apparent authority with

regard to Eldorado timber sales was comprehensive, our basis for

conferring "public official" status on Baumback is broader than that

of the district court. Moreover, we note that the position of Contracting Officer is included within the official government description of

Timber Management Officer. Accordingly, we conclude that Baumback's "public official" status was indeed related to the "mistake"

mentioned in the bumper.

Therefore, we agree with the district court's determination that

Baumback was a "public official." Because we have determined that

Baumback was a "public official," we need not address the district

court's finding that he was also a "public figure."

B.

As a "public official," Baumback can defeat summary judgment

only if he can demonstrate that ABC acted with "actual malice" in

making the allegedly defamatory statement. "Actual malice" exists

when a defamatory statement is made with the "knowledge that it was

false or [made] with reckless disregard of whether it was false or not."

New York Times, 376 U.S. at 280. A defamatory statement made with

reckless disregard of the truth is one made with"a high degree of

 9
awareness of ... probable falsity." Garrison v. Louisiana, 379 U.S. 64,

74 (1964). Thus, for liability to attach, "[t]here must be sufficient evidence to permit the conclusion that the defendant in fact entertained

serious doubts as to the truth of his publication." St. Amant v.

Thompson, 390 U.S. 727, 731 (1968). In applying the New York

Times malice standard, this circuit has consistently recognized the

substantial burden that must be satisfied in order to establish actual

malice. See, e.g., Church of Scientology Int'l v. Daniels, 992 F.2d

1329, 1334 (4th Cir. 1993) (explaining that "actual malice cannot be

established merely by showing a departure from accepted journalistic

or professional practices"); Ryan v. Brooks , 634 F.2d 726, 733 (4th

Cir. 1980) (requiring "conduct ... so reckless ... that it approaches the

level of publishing a knowing, calculated falsehood").

In the instant case, we agree with the district court's determination

that Baumback failed to produce any evidence of actual malice. The

record reveals that ABC made use of reliable information -- official

job descriptions, government reports, and other media coverage containing information consistent with the official documentation -- in

preparing the Report.

As official documents and media reports demonstrate, both Baumback and the Forest Service admitted that those in charge of timber

sales at Eldorado erred in entering into the contracts in question.

Baumback's official job description (which ABC used in preparing

the Report) stated that, as Contracting Officer at Eldorado, he had plenary power over the awarding of timber sales contracts. Further, prior

to ABC's broadcast, Baumback's prominent role in the approval of

the sales had already been featured by the media, most notably in The

Business Journal's "Tree Rex" profile. Thus, we can see nothing negligent, let alone reckless, in ABC's choice of Baumback to be the

focus of its criticism.

Baumback, however, argues that he presented evidence that ABC

knew that its singling-out of Baumback was wrong. According to

Baumback, an outtake from the Report clearly indicates that ABC

knew that its characterization of him as "the bureaucrat who got away

with it" was inaccurate. The outtake ran as follows:

 10
John Martin [ABC correspondent, to Craig Thomas of

Friends Aware of Wildlife Needs]: In your opinion, who

was responsible for this?

Thomas: Ah, there's, ah, the Forest Supervisor is the ultimate decision-making individual . . . but in that management

team room, they make that decision as a group, they all listen to each other and hear each other's input. The District

Rangers, the Forest Supervisor, the Planning Officer, and

[in] particular the Timber Management Officer were all

pushing, or turning a blind eye to the need to re-evaluate

these sales.

J.A. 402. Baumback argues that, since he was mentioned as only one

among many "pushing" the sales, this outtake demonstrates that ABC

knew that he was not "the bureaucrat who got away with it."

However, we believe that the outtake does more harm than good

to Baumback's argument in that it clearly singles out Baumback as

the staff member who, "[in] particular," pushed for the sales to be

made. When considered in conjunction with the other evidence ABC

had in its possession -- official job descriptions, government reports,

and other media coverage of the controversy consistent with official

records -- this outtake appears to corroborate the fact that Baumback

was indeed the Forest Service official most responsible for the timber

sales going forward. Therefore, we find that the outtake does not constitute evidence that ABC acted with reckless disregard of the truth

or falsity of the assertions made in the Report, and affirm the district

court's conclusion that Baumback did not present sufficient evidence

that ABC acted with actual malice.

III.

Because we agree with the district court's findings that Baumback

is a "public official" who failed to demonstrate "actual malice" on the

part of ABC, we conclude that summary judgment was warranted.

Accordingly, we affirm the district court's order granting summary

judgment.

AFFIRMED

 11