Petition — Machen v. Patterson

_ Supreme Court, U.S |

eae FILED.

| JUL 30 1977

weep oliGHAEL RODAK. JR, os

f

——

IN THE SUPREME COURT UF THE ee

UNITED STATES

October Term, 1976

no @- 1744

Robert B. Machen,

Petitioner,

v4.

James H. Patterson,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Robert B. Machen

1418 South 21 Street

Arlington, VA 22202

Tel: (703) 920-3091

Petitioner, Pro Se

yt e ne RN EETEe 649-8 Re,

SUBJECT INDEX

Opinions below

Jurisdiction

Questions presented

Constitutional provisions,

statutes, departmental

regulations, and memoranda

involved

Statement of the cases

Reasons for granting the writ

Conclusions

Page

18

36

Table of Authorities Cited iii

TABLE OF AUTHORITIES CITED

Pages

Cases Pages Hopewell Township Citizens

| I9S5 Committee v. Volpe,

Adickes v. Kress § Co., 389 | 482 F2d 376 (CA 3 NJ 1973)...... 25

BiB. 166 -cecccccccsccscceseseces 27

| Jameson v. Jameson, 176 F2d 58;

Bivins v. Six Unknown Named Ce Ge Bee COD Seedoeececcecces 21

Agents of Federal Bureau |

of Narcotics, 456 F2d 1339 Murray v. Vaughn, 300 F.Supp.

(2 Cir 1972); affirmed 403 DE Davee euudvusesekedstiaes 33

U.S. 388; 91 S.Ct. 1999 ........ 29

Parmelee v. Chicago Eye Shield

Board of Regents of State Co., 157 F2d 582 (CA 8 Mo

Colleges v. Roth, 408 U.S. Oe Pr rere eT eee TT TET e 18

SOG CASTE) cccccccessceseccesess 29

Person v. United States,

Bohn Aluminum §& Brass Corp. v. | 112 F2d 1, cert. denied

Storm King Corp., 303 F2d 311 U.S. 672 (CA 8 Ark 1945).... 20.

425 (CA 6 Ohio 1962) .........--. 18

Saunders v. Sumner, 366 F.Supp.

Cardwell v. Lewis, 417 U.S. 217 (DC Va 1973) ....... SR teceuee 24

S83; 94 S.Ct. 2464 wcccccccccees 34

G.D. Searle §& Co. v. Chas.

Carter v. Carlson, 47 F2d 358..... 29 Pfizer Co., 231 F2d 316

| Sees F BEE BOD seneocsseccticoce 24

Dunlan Corp. v. Deering

Milliken, Inc., 397 F.Supp. | Sprague v. Vogt, 150 F2d 795

ot) BPPPrrrrervrrerrerrerrrerers yy. 35 FF Se 18

Doe v. McMillan, 412 U.S. Tee Pak, Inc., v. St. Regis

306 (1973) .ccccccccccccccccces 28 Paper Co., 491 F2d 1193

Pe @ Gee SEED bee cndsesvesoves 18

Green v. Benson, 271 F.Supp.

90 (DC Pa BOOTIE cesccecesescceos 22 Tenney Vv. Bandlowe, 341 U.S.

SO 8 CeC ee eerecevesecoceaseecer 29

Green v. James, 473 F2d 660

(9th Cir 1973) wcccccccccccccece 27 Union Ins. Soc. v. Wiliiam

Glucking § Co., 353 F2d

Gonzales v. Tuttman, 59 F.Supp. _. 2) fs rrr, 21

8S8 (DC NY 1948) ..ccccccccccees 18

— 0 ee

iv Table of Authorities Cited Table of Authorities Cited Vv

Pages Pages

United States v. Diebold, Inc. | D t tal R lati

369 U.S. 654 (1962) ........ ore 19 | ——

: i ee 8

United States ex rel. Ryan v. atay. Spgessen ¢ -

Broderick, 59 F.Supp. 189, Head

pe quarters Department of the

ma wae... ee 26 Army Memorandum 340-4 ........... .

United States v. Ortiz, 422 U.S.

_ BPUTETITTTTiTiiT fT 34

United States v. Osborn, 409

F.Supp. 406 (1975) .cccccccccces 35 |

United States v. United Shoe

Machinery Corp., 89 F.Supp. |

357 (D Mass 1950) ......eeeeeeee 34

Walling v. Fairmont Creamery Co.,

139 F2d 318 (CA 8 Neb 1943) .... 18

Wisconsin v. Constantineau,

GOO U.S. SSS cccccesccccecssscés 29

Wittlin v. Giacalone, 81 App DC

20; 154 F.2d 20 (1946) ......... 18

Statutes

S$ U.S.C.A. SESCO) coccccccsesesece 7

Constitutions

First Amendment ........... ocvcces 7

Fourth Amendment ........... oeccece 7

Ninth Amendment ........... seeceue 7

IN THE SUPREME COURT OF THE

UNITED STATES

OctorerR Term, 1977

No,

ROBERT B. MACHEN,

Petitioner,

vs.

JAMES H. PATTERSON,

Respondent.

PETITION FOR_A WRIT_OF CERTIORARI

To THE UNITED STATES CouRT OF APPEALS

FOR THE FouRTH CIRCUIT

The petitioner, Robert B. Machen,

nespectf{ully prays for a WAit of

Certionani issue to review the

opinion and judgment to the United

States Court of Appeals for the

Fourth Circuit entered in this pro-

ceeding on May 4, 1977.

2

OPINIONS BELOW

Fourth Circuit: The opinions of the

United States Court of Appeals for the

Fourth Circuit (Robert B. Machen v.

James H. Patterson, No. 76-2113 and No.

76-2114) unpublished, are set forth in

Appendix A. Request for Stay of Mandate

to request Writ of Certiorari denied

(*ppendix A).

District Court: The memorandum and

order of dismissal of the United States

District Court for the Eastern District

of Virginia, Alexandria Division,

CA 75-857-A, is shown as Appendix B.

The memorandum and order of dismissal of

the United States District Court for the

Eastern District of Virginia, Alexandria

Division, CA 76-345-A, is shown as

Appendix C.

JURISDICTION

The Judgment of the United States

Court of Appeals for the Fourth Circuit

was entered May 4, 1977.

The jurisdiction of this Court is

invoked under 28 U.S.C. Section 1254(1)

and the First, Fourth, and Ninth Amend-

ments to the United States Constitution.

3

The jurisdiction below is under

28 U.S.C.A. 1332, 1333, 3443; 42 U.S.C.A.

1983; 5 U.S.C.A. 552(a); and alleged

violations of constitutionally protected

rights.

QUESTIONS PRESENTED

Did the Fourth Circuit Court of

Appeals err in affirming the dismissal

order of the U.S. District Court when

the dismissal order so far departed from

the accepted and usual course of judicial

proceedings and rulings.of the Supreme

Court in application of Rule 56 of the

Federal Rules of Civil Procedure so as

to require United States Supreme Court

supervision?

Did the Fourth Circuit Court of

Appeals err in affirming the U.S. District

Court's order of dismissal that far de-

parted from the accepted and usual course

of judicial proceedings and sanctioning

such a departure by a district court so

as to call for an exercise of the Supreme

Court's power of supervision? Notwith-

standing the judicially approved doctrine

that all material in opposition to a

Motion for Summary Judgment must be

4

viewed in light most favorable to the

opposing party and that all supporting

affidavits of the movant are to be care-

fully scrutinized, the order of dismissal

ignored the original document signed by

the defendant. That document not only

libeled plaintiff but volunteered on

three occasions that no requirement

existed for defendant to publish the

document or to make any comment; yet the

District Court ruled and the Appeals

Court affirmed that plaintiff's claim

that no requirement existed for defendant

to write the document was not supported

by the record. Additionally, the

plaintiff and four witnesses for the

plaintiff who were in an official position

with first-hand knowledge made affidavits

that contradicted the claim of the

defendant that he was required to write

the December 11, 1974, memorandum. In

addition to the original statement of

the defendant that no requirement existed

for him to publish the December 11, 1974,

memorandum and also the affidavits of

plaintiff and witnesses for plaintiff,

other certified official documentation

5

was entered to refute the affidavit of

the defendant that was made a year later

and after the lawsuit was instituted.

Defendant only inferred in his affidavit

that a requirement existed for him to

publish the December 11, 1974, memo-

randum. Despite a preponderance of the

evidence that showed that genuine issues

of material fact were present, why did

the District Court disregard and the

Appeals Court affirm the departure from

the accepted and usual course of judi-

cial proceedings to the extent that

supervision of the Supreme Court is

required for justice to prevail?

Did the Fourth Circuit Court of

Appeals err in affirming the order of

dismissal by the U.S. District Court

when the order of dismissal was in direct

conflict with the previous ruling of the

Ninth, Second, and District of Columbia

Circuit Courts of Appeals, controlling

rulings of the United States Supreme

Court and in direct conflict with the

judicially approved doctrine of the

United States Supreme Court requiring

that when officials act "outside the

6

sphere of legislative activity," they

enjoy no special immunity from the local

laws protecting the good name and repu-

tation of the ordinary citizen?

Did the Fourth Circuit Court of

Appeals err in affirming the order of

dismissal of the U.S. District Court

when the order of dismissal was in con-

flict with the discretionary function

test required by the Ninth, Second, and

District of Columbia Circuit Courts of

Appeals before granting immunity to a

federal official under claim of immunity

citing Barr v. Matteo, 360 US 564 (1959)?

Did the Fourth Circuit Court of

Appeals err in affirming the order of

dismissal by the U.S. District Court when

the order of dismissal (CA 76-345-A;

Appeal 76-2114) conflicted with the

constitutionally protected right of

privacy and security against unreasonable

search and seizure guaranteed by the

First, Fourth, and Ninth Amendments to

the United States Constitution, 5 U.S.C.

552(a) and governing Army regulations

(AR 623-105) and memoranda (HQ DA Memo

340-4) protecting the right of privacy

7

of the plaintiff and prohibiting the

acts of the defendant?

CONSTITUTIONAL ROVISIONS, STATUTES,

EPARTMENT REGULATIONS, AND

MEMORANDA INVOLVED

Finst Amendment : "Congress shall

make no law respecting...or abridging the

freedom...and to petition the govern-

ment for a redress of grievances."

Fourth Amendment: "The right of

the people to be secure in their persons,

houses, papers, and effects, against

unreasonable searches and seizures, shall

not be violated..." |

Ninth Amendment : "The enumeration

in the constitution, of certain rights,

shall not be construed to deny or dis-

parage others retained by the people."

Statutes

Public Law 93-579, Sec. 2(a) "The

Contress finds that...(4) the right to

privacy is a personal and fundamental

right protected by the constitution of

the United States; and...5 U.S.C.A. 552a

...-(b) Conditions of disclosure--no

agency shall disclose any record which

8

is contained in a system of records by

any means of communication to any person,

or to another agency, except pursuant to

a written request by, or with the prior

written consent of the individual to

whom the record pertains, unless dis-

closure of the record would be...(7) to

another agency or to an instrumentality

of any governmental jurisdiction within

the control of the United States...and

if the head of the agency or instru-

mentality has made a written request to

the agency which maintains the record

specifying the particular portion desired

and the law enforcement activity for which

the record is sought...(i)(1) criminal

penalties...(2) Any officer or employee

of any agency who willfully maintains a

system of records without meeting the

notice requirement...shall be guilty of

a misdemeanor..."

Army Regulation 623-105, Paragraph

1-3e : "Under no circumstances will

military personnel officers or rating

officials retain copies of officers

evaluation reports..."

Headquarters, Department of the

Army Memorandum No. 340-4, Section 2:

9

"Policy. (a) It is the policy of the

Department of the Army to safeguard the

right to privacy of its present and

former members...Section 3. Responsi-

bilities. (d) Heads of agencies and

offices will assure that all personnel...

comply fully with the spirit and letter

of this memorandum to preclude abuse of

the individual's right to privacy. They

will insure that: (1) the contents of

the Officer's Military Personnel File

are not revealed to unauthorized

persons..."

STATEMENT OF THE CASES

On December 10, 1975, a complaint

was filed in the U.S. District Court for

the Eastern District of Virginia,

Alexandria Division. The complaint

alleged that the defendant, James H.

Patterson, had maliciously prepared,

signed, and published a memorandum con-

cerning the plaintiff, Robert B. Machen,

which contained false and defamatory

matter that asserted lack of maturity,

lack of judgment, lack of professional

competence and by innuendo lack of

10

capability to perform in plaintiff's

profession and occupation. The complaint

also alleged that defendant had without

proper authority and in violation of

plaintiff's constitutional rights gained

access to and divulged the contents of

the Official Military Personnel files

of the plaintiff. Defendant later ad-

mitted by affidavit to having gained

access to the records and to having

divulged the contents of the records.

Defendant, however, made an unsub-

stantiated claim that he had been

authorized access to the official files

of plaintiff. The interrogatories pro-

pounded to those responsible for protect-

ing the official files, asking who

authorized access, were still unanswered

when the District Court published its

memorandum and order of dismissal.

Defendant also claimed that the memo-

randum was written as an official act.

The complaint had resulted from

earlier action wherein during a ninety-

day trial assignment period, much con-

sternation arose between plaintiff and

defendant concerning, among other things,

11

certain derogatory statements that

defendant made about plaintiff's back-

ground and previous employers. During

mid-August, 1974, after approximately

sixty days had elapsed and before the full

trial assignment period elapsed, plaintiff

submitted a request for transfer according

to the procedures required by depart-

mental regulations. No direct action

was taken on the request for transfer

by anyone who was alleged to be in the

chain of supervision, although a tempo-

rary reassignment was effected on or near

the date the request for transfer was sub-

mitted. Later, when plaintiff returned to

the same office, an inquiry was made as

to the disposition of the earlier request

for permanent transfer that was thought to

have been submitted through the proper

chain of supervision. That inquiry brought

on what was later to be four very severe

retaliatory encounters by defendant that

resulted in defendant's making threats of

career destruction to plaintiff. The

threats and other statements that were

made were directed toward intimidating

plaintiff enough so that pursuit of a

12

transfer would be out of the question.

Following the four abusive and retali-

atory meetings during a two-month period,

plaintiff, risking the wrath of defendant,

sought assistance from the personnel

officer to get a transfer. The personnel

officer approved the transfer but re-

quired a detailed explanation as to the

reason a third transfer was originating

from the office of the defendant within

a year. The personnel officer related

that defendant's irrational behavior had

not only drove employees from the office

but prevented others on the Army staff

from voluntarily filling the vacancies

that had existed in that office for over

nine months. Apparently the personnel

officer brought these irregularities to

the attention of the principal deputy to

Chief of Research, Development and Acquisi-

tion, Headquarters Department of the Army.

In any event, the defendant again brought

plaintiff into defendant's office on

December 11, 1974, and defendant, during

a two and one-half hour period, promised,

among other things, to "just barely kill"

plaintiff for plaintiff's role in seeking

I

i,

13

redress through the personnel officer.

Following that outburst by the defendant,

he was observed to write a lengthy docu-

ment.

During March of 1975 a "Freedom of

Information Request" asked for any in-

formation that had been published pertain-

ing to plaintiff and his association with

defendant that could further impact on

plaintiff's professional status and

career. The response to the Freedom of

Information Act Request provided by the

Secretary of the Army contained, among

other things, the December 11, 1974,

memorandum. That memorandum revealed

for the first time all that had been

fabricated about plaintiff. Defendant,

according to his own written word,

voluntarily published a memorandum that

contained alleged libelous statements and

alleging lack of mental capacity not

involving insanity and certain job ineffi-

ciencies that brought into question

plaintiff's capability to perform pro-

fessionally. Defendant blatantly ignored

the fact that repeated requests for

transfer had been offered before defendant's

14

publication of the December 11, 1974,

memorandum. It was obvious that

defendant wanted the General Officer to

think that any fault for not "getting

along"' would rest with plaintiff and not

with defendant. The December 11, 1974,

memorandum published by the defendant

contained three caveats on the face of

the document that showed that the memo-

randum was not required but was published

voluntarily.

The December 11, 1974, memorandum

containing false, libelous information

voluntarily published by the defendant

in retaliation for plaintiff's seeking

redress from defendant's irrational

behavior is the subject of lawsuit

CA 75-857-A (Appeals Court No. 76-2113).

Defendant claimed immunity following the

initiation of the lawsuit, despite the

fact that the December 11, 1974, memo-

randum was published in violation of

departmental regulations that prohibited

the publication of such documents.

Following the controversial reassign-

ment of plaintiff on December 12, 1974,

the personnel officer finally decided

15

that an evaluation report could be

rendered on plaintiff. Over the ob-

jections of plaintiff and approximately

two months past the reassignment of

plaintiff, and despite the fact that no

rating scheme had ever been published

denoting the chain of supervision and

that Army Regulation 623-105 prohibited

a retroactive publication, an official

Officer Evaluation Report, DA Form 67-7,

was filled out on plaintiff and signed

by the defendant on January 29, 1974.

Following the publication of the rater

section, plaintiff was shown the original

evaluation form and objected to certain

statements contained in the report but

was told to appeal the report through

official military channels of communi-

cation if removal of the offensive

statements was desired. Later, during

October 1974, Headquarters Department of

the Army, through official military

action, removed the offensive statements

contained in the report.

During a hearing on April 2, 1976,

plaintiff observed that the Assistant

United States Attorney, who was repre-

16

senting the defendant, had spread

before him a copy of the original

officer evaluation report that did not

show the results of the official action

that had been taken by Headquarters

Department of the Army. That original

evaluation was for "Official Use Only"

and, according to Army regulations and

memoranda, was not to be copied, retained,

or divulged except under the most strin-

gently controlled circumstances. Since

evaluations are personal papers that are

protected by the Fourth Amendment from

unreasonable seizure, by Army Regulation

623-105 which prohibits retention and

disclosure, by Headquarters Department

of the Army Memorandum 340-4 and the

Privacy Act 5 U.S.C.A. 552(a), plaintiff

objected strenuously to the Assistant U.S.

Attorney's having possession of a copy of

the original unmodified private report.

The Assistant U.S. Attorney tried un-

successfully to argue that the report

had been filed with the complaint but,

that argument being unsuccessful, he

admitted that the report had been provided

to him by the defendant. The defendant

17

later admitted by affidavit that he had

retained a copy of the private report

pertaining to plaintiff for "his own use."

Defendant also admitted to having divulged

the private report upon the alleged ad-

vice of counsel. Contrary to the claim

of the government in defense of the

defendant, an official copy of the report

was never provided and could not be pro-

vided in the form divulged since the

official version of the form had earlier

been officially purged of all derogatory

remarks. The defendant was caught in his

tort and by his malicious actions had

again published libelous statements

through his admitted retention and dis-

closure of the constitutionally, statu-

torily, and regulatorily protected private

report that had been illegally retained

and divulged. Lawsuit CA 76-345-A

(Appeals Court No. 76-2114) resulted

from the actions of the defendant. Both

of the above actions resulted from

defendant's retaliation against plaintiff

for exercising his First Amendment right

of petitioning for redress of grievance.

18

REASONS FOR GRANTING THE WRIT

In CA 75-857-A (Appeals No. 76-2113)

the District Court far departed from

accepted judicial procedures and the

Appeals Court affirmed the departure

when the Court failed to apply the

burden of establishing the nonexistence

of any genuine issue of fact by the

moving party. The cited authorities and

evidence shown herein will document the

far departure from accepted judicial pro-

cedures by the District and Appeals

Courts. In Walking v. Fairmont Creamery

Co., 139 F2d 318 (CA 8 Neb 1943); Sprague

v. Vogt, 150 F2d 795 (CA 8 Minn 1945);

Panmelee v. Chicago Eye Shield Co., 157

F2d 582 (CA 8 Mo 1946); Gonzales v.

Tuttman, 59 F.Supp. 858 (DC NY 1945);

Witthin v. Giacalone, 81 App DC 20, 154

F2d 20 (1946); Bohn ALuminum & Brass

Corp. v. Storm King Corp., 303 F2d 425

(CA 6 Ohio 1962); and Tee Pak Inc. v.

St. Regis Paper Co., 491 F2d 1193 (CA 6

Ohio 1974), the Courts ruled that all

doubts are resolved against the movant

and his supporting affidavits and

depositions, if any, are to be carefully

19

scrutinized and those of opponents are

to be indulgently treated by the Court.

In United States v. Diebokd, Inc., 369

US 654, 655 (1962), the Supreme Court

ruled that the respondent as moving party

had the requirement of showing the ab-

sence of a genuine issue as to any

material fact and for these purposes

the material lodged must be viewed in

light most favorable to opposing party.

The affidavits in the instant case upon

which the defendant relied were not

carefully scrutinized as required by

Rule 56(c), Federal Rules of Civil Pro-

cedure and the cases cited above. The

District Court relied on affidavits that

agreed only to what the defendant stated

in his affidavit. The affidavit of

Richard J. Trainor shows that "I have

read the complaint in the above-entitled

action and I have read the attached

affidavit of Colonel James H. Patterson

...-With regard to the attached affidavit

of Colonel Patterson, all facts contained

therein to the best of my knowledge are

accurate."

The affiant did not swear to what

20

he had knowledge of but simply attested

to what was alleged to be true in the

defendant's affidavit. The court ruled

that affidavits not based "on personal

knowledge" are insufficient to support

a motion for summary judgment. In

Person v. United States, 112 F2d 1,

cert. denied, 311 US 672 (CA 8 Ark

1940), again one must interpret and

surely question what the affiant meant

when he stated that "with specific

reference to the memorandum and support-

ing documentation sent by LTC Machen to

LTG H. Cooksey in early December 1974,

COL Patterson's response was at my

request." Contrast this statement with

the statement or the defendant in the

December 11, 1974, memorandum, "...no

requirement yet exists for me to comment

on the contents of these memoranda...."

The affidavit of Cooksey that con-

tained the following statement, "I have

read the complaint in the above-entitled

action and have read the attached affi-

davit of Colonel Patterson. With regard

to the attached affidavit of Colonel

Patterson, all acts described in the

21

affidavit fall within the course of

Colonel Patterson's official duties and

were taken in his official capacity as

a Systems Review and Analysis Group Chief

and immediate supervisor of Lieutenant

Colonel Robert A. Machen." Since

defendant was one of over three hundred

fifty employees and according to the

affidavits of Durkin, Garner, Waneman,

and Klaus, no job description or super-

visory rating scheme had been published

for defendant's job, Cooksey's statement

swearing only to what defendant claimed,

and which is refuted by other affidavits

based on personal knowledge, does not

meet the requirement of Rule 56(e).

Rule 56(e) of Federal Rules of Civil

Procedure requires that affidavits state

matters personally known to affiant,

"shall" therein being mandatory as in

Jameson v. Jameson, 176 F2d 58 (85 DC

176, 1949). In Union Ins. Soc. v.

Wikkiam Gkucking & Co., 353 F2d 946

(CA 2 NY 1965), the court ruled that con-

clusionary statements and statements not

made on personal knowledge do not comply

with Rule 56(e) and therefore may not

22

be considered. In Green v. Benson, 271

F.Supp. 90 (DC Pa 1967), affidavit was

properly struck under Rule 56 where

affiant only related to knowledge of

other person and not his own.

To show further that careful

scrutiny was not given in the court below,

the following quotations from affidavits

supporting the opposition to summary

judgment are shown:

(1) Durkin: "During the period

10 June 1974 through 12 December 1974 no

official supervisory scheme existed that

could be applied to Robert B. Machen,

Lieutenant Colonel, United States Army."

(2) Garner: "The Systems Review and

Analysis Office did not have a published

rating scheme for the period 20 May 1974

through 13 February 1975...No super-

visory rating scheme was published that

included Robert B. Machen during the time

10 June 1974 through 12 December 1974."

(3) Klaus: "During the period

10 June 1974 through 15 December 1974

the records of Robert B. Machen,

Lieutenant Colonel United States Army,

were maintained by this office...During

23

the period June 1974 through December

1974, I made numerous inquiries to the

personnel office, Chief of Research,

Development and Acquisition with regard

to the lack of an assignment schedule and

chain of command or supervisory rating

scheme for the officers assigned to the

Office of the Chief of Research, Develop-

ment and Acquisition...Army Regulation

623-105 prohibits the retroactive publica-

tion of a supervisory scheme upon which

evaluation can be made...Lieutenant

Colonel Machen did not have an official

supervisory rating chain established

during his assignment to the Systems

Review and Analysis Office, Office Chief

of Research, Development and Acquisi-

CIONS. 200”

According to the affidavit of

Waneman, Cooksey was not in the chain

of supervision, as Cooksey, at the time

in question, was not the Chiegé of Research,

Development and Acquisition and, as Such,

was not in the Line of Supervision. The

affidavits of Durkin, Garner, Klaus, and

Waneman prove that the affidavit of Cooksey

swears only to what the defendant claims

24

and not to facts based on personal

knowledge. The use of the affidavits

of defendant, Trainor, and Cooksey

does not meet the accepted judicial

procedure as outlined in the cases

cited. The affidavits of plaintiff,

Durkin, Garner, Klaus, and Waneman were

also disregarded by the District Court

and affirmed by the Appeals Court con-

trary to the rulings in Saunders v.

Sumner, 366 F.Supp. 217 (DC Va 1973).

Statements in affidavit submitted by

defendant were of no effect when the

affiant stated "to his knowledge"

allegations were not true. Further,

where matters contained in supporting

affidavits are opinions or legal con-

clusions, they are ineffectual and are

not given any weight whatsoever in

summary judgment motions according to

the ruling in G. D. Seanke & Co. v.

Chas. Phizer Co., 231 F2d 316 (CA 7

I11 1956).

The affidavits of plaintiff and

of Durkin, Garner, Klaus, and Waneman

did swear to personally known facts

and those known facts contradict the

25

affidavits of the movant and those by

Trainor and Cooksey. In the case of

Hopewelk Township Citizens 195 Committee

v. VolLep, 482 F2d 376 (CA 3 NJ 1973),

the court ruled that the District Court

improperly granted summary judgment

where opposing affidavits appeared to

conflict, since any doubt must be

resolved against the moving party and

in favor of the party opposing summary

judgment even while it might turn out

that one witness was right and the other

wrong, or that affidavits could be

reconciled, this could not be done in

the context of summary judgment.

Further, the defense of the

defendant bottomed out on an affidavit

that was made by the defendant who

merely denied the allegations made by

plaintiff. In United States ex rel.

Ryan v. Broderick, 59 F.Supp. 189, appeal

dismissed, 150 F2d 1023 (CA 10 Kansas),

the court ruled that an affidavit by

defendant in which he merely denies the

allegation which makes him libel if

true cannot support his motion for

summary judgment.

26

Defendant's affidavit, made

approximately one year after the memo-

randum and after the lawsuit was filed,

is totally void of any statement that

Claims that he was requested, directed,

or ordered to write the December 11,

1974, memorandum. Defendant, in fact,

alleges in his affidavit that "I wrote

the December 11, 1974, memorandum to

Major General Cooksey in good faith and

without any feelings of malice, ill will

or retribution toward Lieutenant Colonel

Machen. I attempted to clarify the

Situation with Lieutenant Colonel Machen

in an effort to be responsive to

Mr. Trainor and Major General Cooksey in

their deliberations as to what action

Lieutenant Colonel Machen's memorandum

required. I did not intend to defame

Lieutenant Colonel Machen in any manner."

Contrast this docile statement with those

in the December 11, 1974, memorandum

wherein defendant is quoted to say, "I

do not at this time intend to offer

specific comments on the individual cir-

cumstances cited in the 4 December 1974

and 30 November 1974 memoranda...if

27

desired or required, I am prepared...to

definitively support my comments..."

These contradictory comments cannot stand

careful court scrutiny as required by

the accepted judicial procedures as out-

lined in the cases cited.

It is clear from the record provided

to the courts below and from the cases

cited that the Appeals Court sanctioned

a far departure from the accepted

judicial proceedings and so far sanctioned

such a departure by the lower court as

to call for an exercise of this Court's

supervision as in the case of Adickes v.

Kress & Co., 389 US 144, wherein the

respondent did not carry out its burden

as the party moving for summary judgment

of showing the absence as to any material

fact and failure to meet that burden

requires reversal.

The Fourth Circuit Court of Appeals'

affirmation of the District Court's Order

is in direct conflict with the rulings of

the Ninth, Second, and District of

Columbia Courts of Appeals' decisions.

In Green v. James, 473 F2d 660 (9th

Cir 1973), the court ruled that a federal

28

official enjoys immunity only in those

instances where he acted within the outer

perimeter of official duties and was

performing a discretionary, as opposed

to a ministerial, act. The court found

that James, an Army officer, used Army

Regulations and Field Manuals containing

a detailed list of duties for an Adjutant

General; nothing in his three-page list

of duties even suggested the particular

duty claimed by defendant. The court

further found that the absence of the

duty claimed in such a detailed list

implied that James' alleged acts were

outside the scope of his authority. The

court went on to say that, even should

James show that his acts were within the

scope of his authority, he must also

prove that he was performing "discretion-

ary acts" at those levels of government

where the concept of duty encompasses

the sound exercise of authority.

In Doe v. McMillan, 412 US 306 (1973),

the Supreme Court stated that in the Barr

case the court reaffirmed existing

immunity law but made it clear that the

immunity conferred might not be the same

f

y

29

for all officials for all purposes. In

Board of Regents of State Colleges v.

Roth, 408 US 564) 1972), and in Wiscon-

Sin v. Constantineau, 400 US 433, the

court advised caution where the person's

good name, reputation, honor, or in-

tegrity is at stake because of what the

government is doing to him in application

of official immunity. The Supreme Court

in Doe v. McMillan (supra) also ruled

that when government officers act "out-

side the legitimate legislative activ-

ity," they enjoy no special immunity

from local laws protecting the good name

and reputation of the ordinary citizen;

see Tenney v. Bandfowe, 341 US 376. The

Second Circuit Court of Appeals also held

in Bivins v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 456 F2d

1339 (2d Cir 1972), affirmed in 403 US

388, 91 SCt 1999, that federal officers

are immune only if they were acting

within the outer scope of their authority

and if their duties are discretionary.

The D.C. Circuit in 1971 had ruled

in Canter v. Carlson, 47 F2d 358, that

the sound exercise of discretion was

30

required before immunity could be

granted federal officials. In each

circuit the court held that the officers

were not immune from money damages and in

Doe v. MceMiklLan, supra, the court held

that official immunity does not automati-

cally attach to any conduct expressly or

impliedly authorized by law unless the

official was exercising a discretionary

function. The court further indicated

that, when an official acting in a non-

discretionary capacity claims immunity,

the Supreme Court "has advised a dis-

cerning inquiry into whether the con-

tributions of immunity to effective

government in particular contexts out-

weigh the perhaps recurring harm to the

individual citizen," (Doe v. McMillan,

412 US 306 at 320).

The District Court ruled and the

Fourth Circuit affirmed the dismissal of

the instant case in direct conflict with

the decisions of the Ninth Circuit (Green

v. James, supra), the Second Circuit

(Bivins v. Six Unknown Named Agents of

the Federal Bureau of Narcotics, supra),

the District of Columbia Circuit (Carter

31

v. Carlson, supra), and the decision of

the United States Supreme Court deci-

sion documented in Doe v. McMillan, supra,

and Bivins v. Six Unknown Named Agents

of the Federak Bureau of Narcotics,

supra.

The record here is void of any

listing of official duties that would

indicate the scope of work required of

defendant. Conversely, the record does

show in the affidavit of Cathleen R.

Durkin, sworn from her own knowledge,

that "Army Regulation 623-105 prescribes

the exact procedure for rendering an

evaluation on an officer on active duty

in the Army. In no case do the evalu-

ation procedures outlined by the said

regulation allow a Department of Defense

official the authority, liberty, or

discretion to request or render an

unstructured letter as an evaluation on

an officer."" Army Regulation 623-105,

paragraph 1-S5k, states "Reports will not

be submitted unless specifically author-

ized by this regulation, or otherwise

directed by Military Personnel Center."

The affidavit of Durkin and the

32

regulatory prohibition against publica-

tion of the memorandum, coupled with the

direct conflicts with the rulings of the

Ninth, Second, and District of Columbia

Courts of Appeal and the United States

Supreme Court decisions on the same

matter begs for certiorari based upon

the requirements that a court of appeals

has rendered a decision in conflict with

the decision of another court of appeals

on the same matter and conflicts with

applicable decisions of the United States

Supreme Court.

In CA 76-345-A (Appeal 76-2114), the

District Court ordered and the Appeals

Court affirmed that "the OER (Officer

Evaluation Report) complained of was

relevant to the defense of the claimed

libel in Civil Action No. 75-857-A and

must be accorded the absolute privilege

applied to communications between attorney

and client and to documents given by the

client to his counsel for use as an

exhibit in judicial proceedings..." The

District Court cited para. 237, 50 Am.

Jur. as authority.

33

Defendant (the rater) admitted by affi-

davit to having kept a copy of the Janu-

ary 29, 1975, Officer Evaluation Report

for "his own use." Army Regulation 623-

105, para. 1-3e, states "Under no cir-

cumstances will military personnel officers

or rating officials retain copies of

Officer Evaluation Reports..." and the

Fourth Amendment states "The right of

the people to be secure in their persons,

houses, papers, and effects, against

unreasonable searches and seizures, shall

not be violated..."

In Murray v. Vaughn, 300 F.Supp. 688,

the court ruled that federal officers are

not immune from suit where they exceed

their authority and violate the constitu-

tion. In Bivins v. Six Unknown Named

Agents of Federal Bureau of Narcotics

(supra) the court ruled that a citizen who

sustains damage as a result of federal

agents' violation of the Fourth Amendment

is not limited to action in tort, under

state law, in state courts, to obtain money

damages for invasion of Fourth Amendment

rights and damages may be obtained for

injuries consequent upon a violation of

34 35

the Fourth Amendment by federal officials. by belated claims of privilege.

In U.S. v. Ortiz, 422 US 891, the | In United States v. Osborn, 409

court reaffirmed that the central concern | F.Supp. 406 (1975), citing United States

of the Fourth Amendment is to protect ‘ v. United Shoe Manufacturing Co., supra,

liberty and privacy from arbitrary and the court ruled that the attorney-client

oppressive interference by government i privilege did not apply where client

officials. necessarily contemplated the divulging

The Supreme Court ruled in Doe v. : of information to a third party. Defen-

McMillan, 93 S.Ct. 2018, 412 US 306) that dant had illegally retained the OER for

republication of a libel in circumstances approximately a year before any lawsuit

where the initial publication is privileged was initiated. Ome can necessarily con-

is generaliy unprotected. template that he would or had divulged

In Cardwell v. Lewis, 94 S.Ct. 2464, the information to a third party. The

417 US 583, the Supreme Court again held affidavit of defendant names two to whom

that "The decisions of this court have he divulged the information but alleges

time and again underscored the essential without proof that both were attorneys.

purpose of the Fourth Amendment to shield Defendant also states by affidavit that

the citizen from unwarranted intrusion he gave no instruction as to what to do

into his privacy." with the OER when it was released by

In United States v. United Shoe defendant. In Duplan Corp. v. Deering

Machinery Corp., 89 F.Supp. 357 (D Mass Milliken, Inc., 397 F.Supp. 1146, the

1950), the court ruled that a privilege ( court ruled that the mere existence of

cannot be claimed {or the purpose of attorney-client relationship does not

committing a crime or tort and, conversely, ‘ raise a presumption of confidentiality

if privilege is not claimed at the time, and the burden of proof should be on the

it will be considered waived by implica- party asserting the attorney-client

tion. The court refuses to be burdened | privilege.

36

In Dupflan Corp. v. Deering Milliken,

Inc., supra, at 1149, the court ruled

that if the document is not privileged in

the hands of client, it does not become

privikeged merely because it 48 given to

an attorney. The District Court far

departed from the accepted judicial pro-

cedure in the instant case, and the

Appeals Court affirmed the far departure,

when it sanctioned the order of the court

against the rulings of the courts cited

above.

CONCLUSION

The plaintiff was denied the pro-

tection of the First, Fourth, and Ninth

Amendments; 5 U.S.C.A. 552(a); Army Regu-

lation 623-105; and Headquarters Depart-

ment of the Army Memorandum 340-4 before

the courts below, as they overlooked sub-

stantial evidence and misapprehended the

true facts as follows:

THE Courts peLow FAILED

AKE Note THAT:

(a) Defendant stated on three occa-

sions on the face of the document, the

eee

37

basis of the lawsuit, that no require-

ment existed for defendant to comment

or publish the document.

(b) Defendant's witnesses did not

Swear to facts based on their own per-

sonal knowledge but related only to the

Claim that defendant's affidavit was

accurate and properly descriptive.

(c) Plaintiff's affidavit and affi-

davits of witnesses for plaintiff swore

to facts based on own personal knowledge

that contradicted the affidavits of

defendant.

(d) Plaintiff's witnesses provided

certified documents to validate their

affidavits contradicting the claim of

defendant and showed that a material

issue of fact was present.

(e) The courts below failed to care-

fully scrutinize the affidavits of defen-

dant and give most favorable light to

affidavits of plaintiff in opposition to

summary judgment.

(f) The courts below failed to note

that the OER had been published before

the lawsuit was initiated and illegally

retained by defendant.

38

(g) The courts below failed to note

that the OER was not observed during an

exchange of exhibits and was never intro-

duced as an exhibit.

(h) The courts below failed to con-

Sider that no claim of immunity was re-

quested when the OER was exposed.

(i) The courts below failed to con-

sider that defendant released the OER

without instructions and claims not to

know what had happened to the OER until

the lawsuit was initiated.

The proof for all the points above

is documented within the briefs and

appendix from the courts below. The

most relevant proof was overlooked or

misapprehended by the Fourth Circuit

Court of Appeals. Plaintiff desires

a declaration of his right and the rights

of those similarly situated who are re-

pressed, intimidated, abused, or destroyed

in the name of governmental efficiency

while the federal official vents his

spleen on a subordinate who has very

little, if any, recourse from the hand of

the federal officials who may at any time

—

39

claim immunity when called to account

for misdeeds.

Plaintiff has asked for a harsh

remedy but the remedy should be exem-

plary, for the records of transcript in

the courts below show that the district

judge admitted that it is not a ques-

tion of whether or not he did as you

have alleged. He has admitted more

than you can get from a trial. The

government, however, claims that he is

immune and that's that. The question

is, what kind of justice do we have

when a person can do as he pleases,

yet laughs in the face of accountability

because governmental efficiency is

more important than the individual. It

has always been my belief that this

country will remain as a bedrock for the

individual. Government is for the

people, of the people, and by the

people, and those rules should not be

reversed.

To insure that the role of immunity

is not stretched too far, petitioner

begs this Honorable Court to order the

entire record from the courts below and

40

to examine scrupulously each bit of

documentation presented. It will

then be evident that plaintiff was

denied the most basic protections

afforded under departmental memo-

randa, regulations, statutes, and

the constitutional amendments.

FOR THE REASONS STATED ABOVE,

IT IS RESPECTFULLY SUBMITTED THAT

THE PETITION FOR WRIT OF CERTIORARI

BE GRANTED.

Dated: July 15, 1977.

ROBERT B. MACHEN,Ed.D

Petitioner

(Pro Se)

(Appendices Follow)

APPENDIX A

UnttTepD States Court oF APPEALS

FOR THE FourTH CIRCUIT

UNPUBLISHED

Robert B. Machen, )

Appelant, | No. 76-2113

Vv. ) and

James H. Patterson, | No. 76-2114

Appellee )

Appeal from the United States District

Court for the Eastern District of

Virginia, at Alexandria.

OREN R. LEWIS, Senior District Judge.

Argued April 5, 1977

Decided May 4, 1977

Before WINTER, BUTZNER, and HALL, Circuit

Judges.

Robert B. Machen, pro se, for Appellant;

George P. Williams, Assistant United

States Attorney, (William B. Cummings,

United States Attorney, on brief) for

Appellee.

PER CURIAM:

A review of the record and of the

district court's two opinions discloses

that the appeal from the orders of the

Appendix

district court is without merit.

Accordingly, both orders are affirmed

for the reasons stated by the district

court. Machen v. Patterson, C/A No.

75-857-A (E.D. Va., June 10, 1976);

Machen v. Patterson, C/A No. 76-345-A

(E.D. Va., June 21, 1976).

AFFIRMED.

an

Appendix

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Filed May 25, 1977

Robert B. Machen,

)

Appellant, 7 No. 76-2113

Vv. ) and

James H. Patterson, ; No. 76-2114

Appellee. )

Appeals from the United States District

Court for the Eastern District of

Virginia, at Alexandria.

OREN R. LEWIS, District Judge.

Upon consideration of a motion of

the appellant, for stay of mandate pend-

ing application to the United States

Supreme Court for a writ of Certiorari,

IT IS ORDERED that the motion is

DENIED.

For the Court - By Direction.

/s/ William K. Slate, II

Clerk

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

Robert B. Machen, )

PhLaintifs, |

Vv. ) C/A No. 75-857-A

James H. Patterson, 7

Defendant )

MEMORANDUM OPINION AND ORDER

Entered June 10, 1976

OREN R. LEWIS, Senior District Judge.

The plaintiff brought this pro se

suit for libel against the defendant, seek-

ing special, general and punitive damages

in the amount of $1,757,000 plus costs,

attorney fees and other relief as may be

just and warranted.

The case was heard upon the pleadings,

stipulations, exhibits, depositions,

interrogatories and live evidence.

The record thus made discloses that

both of the parties are members of the

United States Army -- Both were assigned

Appendix 5

to the Combat Support Systems Group

(SRAO), Office of the Deputy Chief of

Staff, in Washington. Lt. General Howard

Cooksey was the highest ranking officer --

Richard J. Trainor, the civilian Director

of SRAO, was next in line -- Colonel James

H. Patterson, the Chief of the Combat

Group, worked under Trainor -- Lt. Colonel

Robert B. Machen was an analyst working

under Colonel Patterson.

Difficulties arose between the

plaintiff and the defendant over the

plaintiff's work, resulting in the plain-

tiff presenting the defendant with a

written request for transfer in mid-August

of 1974, addressed to Lt. General Cooksey --

Nothing was done about the request.

The plaintiff's work did not improve

and the defendant recommended to Mr Trainor

that the plaintiff be transferred to another

job in the Department of the Army, outside

SRAO, because of his unsatisfactory work

problems which stemmed partly from lack of

Systems analysis and army staff experience.

Mr. Trainor so informed the plaintiff

on November 12, 1974.

In December of 1974 the plaintiff sent

Appendix

a written request directly to Lt.

General Cooksey for a job change, in

which he enclosed numerous memoranda

and affidavits pertaining to his ob-

servations in re his work relations

with the defendant, Mr. Trainor and

others. The Lt. General showed the

requ-st to Mr. Trainor and asked him to

look into the matter and to inform him

as to the facts in re the plaintiff's

allegations.

Mr. Trainor showed the defendant a

copy of the plaintiff's letter. After

discussing the matter the defendant

suggested that he prepare a reply --

The December 11th memorandum to Lt.

General Cooksey, which is the subject

matter of this suit, followed. The

memorandum was first shown to Mr. Trainor.

The Government claims that the letter

in question is "privileged" and that

government officials, including military

officers, acting within the scope of

their authority are free to perform their

duties unencumbered by fear of damage

suits -- They rely on Barr v. Matteo,

360 U.S. 564 (1959), and Howard v. Lyon,

Appendix

360 U.S. 593 (1959).

The plaintiff tacitly concedes that

it is well settled that acts committed

by military officers in the performance

of their official duties are absolutely

privileged -- He contends, however,

that the privilege is not applicable in

this case because the Lt. General did

not ask for the memorandum -- Colonel

Patterson at best was a volunteer --

and that no chain of command had been

established for SRAO.

The record does not support the

plaintiff's contention.

Colonel Patterson was the chief of

the Combat Group -- The plaintiff was an

analyst under his supervision --

Mr. Trainor says that the December 11th

memorandum was written at his request --

Both Mr. Trainor and Lt. General Cooksey

say Colonel Patterson was acting within

the scope of his official duties as the

immediate supervisor of the plaintiff.

Whether an official chain of command

had been established for SRAO is

immaterial -- The question is whether

Colonel Patterson was acting within the

. Appendix

scope of his authority when the memo-

randum in question was written.

The Lt. General had a right to get

the facts in re the plaintiff's request for

a transfer -- Mr. Trainor had a right to

discuss the matter with the plaintiff's

immediate supervisor -- and Colonel

Patterson had the duty of replying.

The Court finds the December 11th

memorandum was written by Colonel Patter-

son in the performance of his official

duties.

Therefore this libel suit must be

dismissed at the cost of the plaintiff,

and

It Is So Ordered.

The Clerk will send a copy of this

memorandum opinion and order to all

counsel of record.

/s/ Oren R. Lewis

United States

June 10, 1976 Senior Judge

APPENDIX C 9

IN THE UNITED SIATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

Rebert B. Machen, )

PLaintifs,

Vv. ) C/A No. 76-345-A

James H. Patterson, |

Defendant )

MEMORANDUM OPINION AND ORDER

Entered June 21, 1976

OREN R. LEWIS, Senior District Judge.

This libel suit was spawned by the

libel suit the plaintiff brought against

the defendant (C.A. 75-857-A).

During the pretrial court-ordered

inspection and exchange of exhibits in

that suit, the plaintiff discovered that

the assistant United States attorney for

the Eastern District of Virginia had a

copy of his army officer evaluation

report (hereinafter referred to as OER)

in his case file -- He says the assistant

district attorney told him he had gotten

it from Captain Finklea of the Judge

en

10 Appendix

Advocate General Corps who was assisting

him in Colonel Patterson's defense.

Lt. Colonel Machen says that Colonel

Patterson libeled him again and impaired

his military career when he gave Captain

Finklea an undeleted! copy of his OER.

This libel action followed.

Captain Finklea and one of the

assistant district attorneys for this

District entered their appearances for

the defendant and moved to dismiss or, in

the alternative, for summary judgment

because the document complained of was

given to counsel for tile use in defend-

ing Colonel Patterson in the then pending

libel action (C.A. 75-857-A).

The facts are not in dispute.

Colonel Patterson admits that he was

the rating officer who prepared the OER

in question and that he had retained a copy

of Lt. Colonel Machen's incomplete officer

evaluation report -- He also admits that

he gave a copy of this incomplete report

to Major Turner and Maj. General Clausen,

1a11 references to Part IVa-6 as ex-

plained in Part IVb were deleted from the

report by order of the Secretary of Army.

et nie et

Abide a Teen

Appendix 11

Staff Judge Advocate, III Corps and

Fort Hood, the military attorneys who

were assisting him in defending the

libel suit Lt. Colonel Machen had filed

against him. They had asked him for

copies of everything he had pertaining

to the libel suit.

Captain Finklea, an action attorney,

Military Personnel Branch, Litigation

Division of the office of the Judge

Advocate General, Department of the

Army, admits that he forwarded the OER

in question along with several other

documents to the United States Attorney

for the Eastern District of Virginia to

aid in his representation of Colonel

Patterson in the said libel suit.

George P. Williams, the assistant

United States attorney for this District

assigned to represent Colonel Patterson

in the premises, admits that he re-

ceived the OER in question from Captain

Finklea and that he put it in his case

file among the papers that he intended

to use, if necessary, during the trial

of the said libel suit.

The plaintiff admits he first saw

12 Appendix

his OER in the assistant district

attorney's file while inspecting the

government exhibits.

The plaintiff brought this suit

under 28 U.S.C. § 1332 and the Privacy

Act, 5 U.S.C. § 552(a).

He contends that Colonel Patter-

son's retention and disclosure of his

OER violates the provisions of Army

Regulations 623-105 and 340-21 and the

Privacy Act, 5 U.S.C. § 552(a).

He wants this Court to so declare--

and to award him special, general and

punitive damages in the amount of

$407,000.00, together with a bench

order prohibiting the defendant from

further disclosing any and all informa-

tion pertaining to his past association

with him.

The plaintiff's request for declar-

atory judgment should be denied, and

It Is So Ordered.

Violation of army regulations

subjects the offender to such punishment

as a court-martial may direct. 10 U.S.C.

§ 892, Art. 92. The Court has no juris-

diction to hear and determine such matters.

Appendix

The Privacy Act provides for the

bringing of civil actions against an

agency. 5 U.S.C. § 552(a)(g)(i) --

The agency is not here sued.

Criminal charges may be brought

against any officer or employee of an

agency who, by virtue of his employ-

ment or official position, has posses-

sion of or access to agency records

which contain individually identifiable

information the disclosure of which is

prohibited by this section or by rules

and regulations established thereunder,

and who, knowing that disclosure of the

specific material is so prohibited,

willfully discloses the material in any

manner to any persons or agency not

entitled to receive it shall be guilty

of a misdemeanor and fined not more

than $5,000.00 § 552(a)(i)(1).

Criminal charges must be brought

and prosecuted by the United States

Attorney -- They are not heard and

determined in private civil litigation.

Whether Colonel Patterson is in

violation of the army regulations or

Privacy Act in retaining and disclosing

ee

14 Appendix

the OER in question -- and this Court

does not determine that claim -- is not

dispositive of his claim of absolute

privilege.

Neither need it now be determined

whether the claimed § 552(a)(b) (3)

exemption is applicable -- The OER in

question was not gotten from the plain-

tiff's army records -- The incomplete

OER complained of was a copy of the copy

retained by Colonel Patterson -- He gave

it to his defense counsel in the original

libel suit -- They asked him for all

information and documents concerning that

case. It is well settled that communi-

cations between attorney and client are

privileged. See 50 AmJr. 2d Libel and

Slander 212.

Further, the incomplete copy of the

plaintiff's OER was discovered in the

defendant's attorney's case file during

the court-ordered pretrial inspection

and exchange of documentary evidence.

Defamatory matter published in a

judicial proceeding is absolutely privi-

leged if it has some reiation to the

proceeding even though it is remote, and

Appendix 15

regardless of whether or not it is

sufficient to obtain the relief sought.

See para. 236, 50 AmJur. 2d, supra.

"The rule according absolute

privilege to judicial pro-

ceedings has been applied

to a wide variety of pro-

ceedings...It may be here

noted that the defense of

absolute privilege is avail-

able with respect to rele-

vant statements made in

pretrial and in discovery

proceedings. para. 237.

The plaintiff's claim that the

question of the relevancy of the OER in

Civil Action No. 75-857-A is a genuine

issue for trial is misplaced --

Relevancy is a question for the court,

not for the jury. The courts are very

liberal in determining questions of

relevancy and hold to be privileged any

statement that possibly may be perti-

nent -- The defense of privilege is held

to be unavailable only if the statement

is so palpably irrelevant to the subject

matter of controversy that no reasonable

man can doubt its relevancy or materi-

ality. See para 237, SO AmJr. 2d, supra.

——

16 Appendix

The OER here complained of was

relevant to the defense of the claimed

libel in Civil Action No. 75-857-A and

must be accorded the absolute privilege

applied to communications between

attorney and client and to documents

given by the client to his counsel for

use as an exhibit in judicial pro-

ceedings, and

It Is So Ordered.

The plaintiff's request for a bench

order prohibiting the defendant from

disclosing his past association with

him would not only deny the defendant

the right to discuss his defenses with

his counsel, it would deny him the right

of free speech.

Therefore the prayed for injunction

should be denied, and

It Is So Ordered.

The Clerk will send a copy of this

memorandum opinion and order to all counsel

of record.

/s/ Oren R. Lewis

United States

June 21, 1976 Senior Judge