Petition for Writ of Certiorari — Pagano v. Martin

UPREME COURT. UD. &

IN THE

Supreme Court of The Suited States

OcToBER TERM, 1968

No. 694

ROBERT M. PAGANO, Petitioner,

, v.

SAMUEL A. MARTIN and

HOWARD E. MINITER, JR., Respondents.

ROBERT M. HARCOURT

402 Board of Trade Building,

Norfolk, Virginia, 28510

PHILIP J. HIRSCHKOP,

110 No. Royal Street,

Alexandria, Virginia 22818

Counsel for Petitionere

A TS TS A a TTT

PRINTED BY TEAGLE @ LITTLE, INC., NORFOLK, VA.

INDEX

Page

CITATIONS TQ OPINIONS BELOW.................0......2020..---.-- 1

I dase idea canandccenicierealcomdgbeocianileenpenacncechinne 2

ye ho Eg 2 yy a nT 2

STATUTORY AND REGULATORY PROVISIONS

ARETE Seti BO ee One ITA ns RO Oe Ne 2

Re EE GHEY TRIED GRIIIIs ness vccnccceccessosccscccnssssecccrenssneess 3

PTE CU WN linn ines cnccccccicncecccsonssnesscsnosesseprancsncen 3

REASONS FOR GRANTING THE WRIT

I. The decision below is unjust, unreasonable, and

rlainly wrong as to (A) Summary Judgment and

(B) Immunity Doctrine, under the facts of this

NS tithcd ate iar adic enedaindedaneiapiukesasetechidbinitansiecehsieresceniens 9

(A) Sammary Judgmoent................................000....... 9

Ci MI MIs scscsscaseccecsccsecssscamens 14

i aa scisvasmer ned 24

APPENDIX

Memorandum Opinion and Order of the District Court........ la

Opinion of the Court of Appeals.....................2..0..... Sh Wi ioatets 10a

TABLE OF AUTHORITIES

Cafeteria Workers v. McElroy, 367 U. S. 886, 891.................. 12

Clackum v. United States, 296 F. 2d. 226, 228............00000000... 24

Dinsman v. Wilkes, (1851), 12 How. (53 U.S.) 390.............. 20

BPM GW. TOURED, BUI Us. Te. Gi, Ginna soc scecennnnscsecccenccnsesecscccsses 15

Fowler v. Southern Bell Telephone and Telegraph Co.,

eM Be ee nee: 16

Garrison v. Louisiana, 379 U. S. 64.........0...... EN AMC 14

Greene v. McEtroy, 360 U. S. 474...............cccccccecceeeeeeee sdiicbioedaes 13

Hannaford v. Hunn, 2 Carr. & P. 148, 172

SN cack cateahacinmennidcdanacloninddodcieempenseial 19

Harmon v. Brucker, 355 U. S. 579, 581..........000 24

Kelly v. Dunne, (C. A. 1st. 1965) 344 F. 2d. 129, 184............ 17

Mallory v. Merritt, (1845), 17 Conn. 178.....0000000.. 20

Malone v. Bowdoin, 369 U. S. 648, 647

CIE EOI GIF OLR T YE

OO TRIS RNY

[Qeeeeere ee i hr SO

TABLE OF AUTHORITIES (Continued)

Marbury v. Madison, i Cranch 137, 163-168........................ 23

Mostyn v. Fabregas, 1 Cow. 161, 98 English Reprint, 1021..19

New York Times Co., v. Sullivan, 376 U. S. 254, 279-280....14

Nixon v. Reeves, (1896), 65 Minn. 159, 67 N. W. 989........ 21

po me Recess 14

Pe BS Re 13

Sprague v. Vogt, (C. A. 8th. 1945), 150 F. 2d. 795, 800......10

Surowitz v. Hilton Hotels Corp., 383 U. S. 363, 373............ 9

Sutton v. Johnstone, 1 T. R. 492,

ee EE BE BI ietetvenesnsssnnecesqnecssneemnsiiivennaie 17,18

Time v. Hill, 386 U. S. 374, 389-890... cece 14

Vitarells v. Seaton, 359 U. S. G86......................c0cccccceceseesecceeeees 12

Wall v. M’Namara, cited in 1 T. R. 586, 587.......0.....002....... 18

Warden v. Bailey, 4 Taunt. 67, 88-89,

Be MG BIG Be crracenecevebiccoscsnscevccsssovctvescceorves 17

Wheeldin v. Wheeler, 373 U. S. 647..000.........2.2.-.220--- <PrecNN-AIL 16

Wilkes v. Dinsman, 7 How. 89, 12 L. ed. 618..........0.....000000000.. 21

Williams v. Zuckert, 371 U. S. 535, on rehearing

Ss Te Me itdscesc beanie aces ouabiecddlanisabenananbiipiusicenaeiae neshdasavcisiies 13

Wilson v. MacKenzie, 7 Hill, 95, 42 Am. Dec. 51..........0000000... 17

RULES OF FEDERAL CIVIL PROCEDURE

DU a a Leesan diss abiabiiieinl 10

TREATISES

6 C. J. S., Army and Navy, Section 36(a) .........................-- 22

OTHER AUTHORITIES CITED

Article 0701(2) U. S. Navy Regulations, 1948....................... 16

Article 1201(1) U. S. Navy Regulations, 1948....... 12

Article 1201(2) U. S. Navy Regulations, 1948........................ 12

Article 1202 U. S. Navy Regulations, 1948................2.0000020..... 12

Article 1209 U. S. Navy Regulations, 1948..... 12

Article 1211(1) U. S. Navy Regulations, 1948.............0........ 15

Bureau of Naval Personnel Manual,

Section C 7821 (8) (b) (1).............. 11

Manual for Court Martials, 1951, §213 (b), page $82.......... 13

Naval Courts and Boards, 1937, §5(d) page 8........................ 13

IN THE

Supreme Corrt of The Anited States

OCTOBER TERM, 1968

No.

ROBERT M. PAGANO, Petitioner,

v.

SAMUEL A. MARTIN and

HOWARD E. MINITER, JR., Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT

Robert M. Pagano, Petitioner, prays that a writ

of certiorari issue to review the judgment of the United

States Court of Appeals for the Fourth Circuit entered

in the above styled case on July 1, 1968.

CITATIONS TO OPINIONS BELOW

The memorandum opinion of the Honorable Rich-

ard B. Kellam, of the United States District Court for

the Eastern District of Virginia, Norfolk Division, is

reported at 275 F. Supp. 498 (1967) and is printed in

Appendix hereto. The Court of Appeals for the Fourth

Circuit affirmed the order of the District Court in a

per curiam opinion which is reported at 397 F. 2d 620

I

SPREE LMM

® PRIS RE ER EIB SELES OB ALIN OES

(Advance Report No. 3) and is printed in Appendix

hereto.

JURISDICTION

The judgment of the United States Court of Appeals

for the Fourth Circuit was entered on July 1, 1968. On

September 22, 1968, petitioner made application to this

Court for an extension of time within which to file this

petition for a writ of certiorari. This application was

gianted on September 23, 1968, extending the time tor

filing this petition to and including October 29, 1968.

The jurisdiction of this Court is invoked under 28 U. S.

C. Sections 1254(1) and 2101 (c).

QUESTIONS PRESENTED

1. Whether the judicially developed doctrine of official

immunity enunciated by the Court in Barr v. Matteo was

meant to cover false, malicious and defamatory writings de-

liberately made without probable cause.

2. Whether there is or should be an unqualified or

absolute privilege for acts committed by naval officers be-

yond their jurisdiction and authority, without probable

cause, malicious, not really in the exercise of military author-

ity, but are for some unknown, hidden and improper

purpose.

STATUTORY AND REGULATORY PROVISIONS INVOLVED

The principal statutory and regulatory provisions

involved are United States Navy Regulations, 1948,

Articles, 0701(2), 1201(1), 1201(2), 1202, 1211(1) and

1319; Bureau oi Naval Personnel Manual, 1959, Section

C-7821 (8) (b) (1); and Title 10, U.S.C. Sections 5131

2

and 5132. The relevant portions of these provisions as

are applicable to this cause are set forth in the petition

where referred to in the argument.

STATEMENT OF THE CASE

This petition for a writ of certiorari requests the

Court to bring up for review a judgment and per curiam

opinion of the Court of Appeals for the Fourth Circuit

affirming (1) an order of the District Court dismissing

the petitioner’s cause of action for money damages and

(2) an order of the District Court granting respondents’

motion for summary judgment upon the grounds of

absolute privilege, federal court jurisdiction having

been obtained upon the grounds of diversity of citizen-

- ship.

STATEMENT OF FACTS

Petitioner, Robert M. Pagano, was, for 94 years

and is, a Radarman by profession, who by his conduct,

industry and ability attained the rank oi first class petty

officer, a pay grade of E-6 in the U, S. Navy, and that

he had depended upon his continued enlistment and reen-

listment and advancement in the Navy leading up to

eventual retirement as support for himself and family.

That on or about September 27, 1966, the plaintiff

reported aboard the U. S. S. Robert A. Owens for duty.

That co-responaent, Samuel A. Martin, was the

commanding officer of the Owens with the rank of com-

mander and co-respondent Howard E. Miniter, Jr., was

the executive officer of the Owens with the rank of lieu-

tenant-commander.

That on December 9, 1966, in accordance with the

standards and instructions of the Bureau of Naval Per-

sonnel Manual, the respondents certified that the peti-

tioner fulfilled the prescribed requirements and was in

all respects qualified, and did recommend him for ad-

vancement and nominated hira in all respects for partici-

pation in the Navy-wide competitive examination for

Chief Radarman, said certification being effective up to

and including May 16, 1967, as shown by Exhibit “A”

(R. Vol. I. 6) and Exhibit “D” (R. Vol. I. 9).

That on December 12, 1966, he was granted ten

(10) days annual leave effective December 27, 1966 and

expiring January 7, 1967. (R. Vol. I. 10)

That on December 16, 1966, in accordance with the

instructions of C-7821(8) (a) Bureau of Naval Person-

nel Manual, the respondents did submit the petitioner’s

Enlisted Performance Evaluation (R. Vol. I. 7) wherein

they graded him as follows:

Professional Performance ; 3.8

Military Behavior 3.6

Leadership & Supervisory Ability 3.8

Military Appearance 3.8

Adaptability 3.8

and the respondents did further make the following com-

ments of and concerning the petitioner’s performance and

ability:

“Pagano has shown himself to be a competent

radarman and an excellent petty officer by his

extremely effective and reliable professional per-

formance. He expresses himself well and with

much authority.” (R. Vol. I. 7)

4

That between December 17, 1966 and February 2,

1967, the petitioner was on board the U. S. S. Robert A.

Owens in an official duty status the six (6) specific days

of December 19, 20, 21, 22, 23 and 26, 1966. All other

days petitioner was either on authorized leave or on his

week-end liberty.

In accordance with Section C-7821(8)(a) Bureau

of Naval Personnel Manual, the petitioner’s next report-

ing period, the conclusion of which another Enlisted

Performance Evaluation would be submitted on him

began on December 17, 1966 and ended on June 16, 1967.

On December 27, 1966, the petitioner departed on

his ten (10) days annual leave and returned to the ship

on January 7, 1967, prior to the expiration of said leave.

(R. Vol. I. 10)

After returning to the Owens on January 7, 1967,

petitioner then went on week-end liberty returning to

the ship on January 9, 1967.

On January 9, 1967, the petitioner was granted ten

(10) days emergency leave beginning 1200 January 9,

1967 and expiring at 0730 January 20, 1967, at which

time he was to report to the authorities at the Naval

Station, Norfolk, Virginia. (R. Vol. I. 11, 12)

On January 9, 1967, when the petitioner departed

from the Owens on emergency leave, the respondents

still certified that he was in all respects qualified and

fulfilled the prescribed requirements, and did recom-

mend him for advancement and nominated him in all

respects for participation in the Navy-wide competitive

examination for Chief Radarman by submitting to the

Naval Examination Center, the petitioner's NAVPERS

5

PRLS OIE Peg KH el de

oe

AY ne

Cre

ald

Lidl

624 CARD which was the petitioner’s authority to be

admitted to the examination center to take the examina-

tion. (Exhibit “A”, R. Vol. I. 6)

On January 17, 1967, the authorities at the Naval

Station contacted the respondents concerning the peti-

tioner by radio dispatch as follows:

“WIFE STILL IN HOSP. TO BE OPER-

ATED ON 18 JAN. PAGANO REQUESTS

TEN DAY EXTENSION EMERG LV TO

EXPIRE ON BD NAVSTA NORVA 0730 30

JAN 67. LEAVE ADDRESS, 3001 VIRGINIA

BEACH BOULEVARD, VIRGINIA

BEACH, VIRGINIA. ZIP CODE 23452.

PAGANO ADVISES ORDERS ON BD SHIP

FOR TRF IN MARCH TEMDU UN-

DER INSTRUCTION NAVAL SCHOOL/

INSTRUCTOR LEADERSHIP NAVSERV-

SCOLCOM SAN DIEGO, IF CONSIDERED

FEASIBLE BY SHIP. RECMD ORDERS,

SERVPAHEL BE AIRMAILED THIS

COMD FOR EXECUTION TO SAVE GOVT

TRANSPORTATION EXPENSE TO AND

FROM MED. PAGANO HAS ALL PER-

SONAL EFFECTS.” (Exhibit “H”, R. Vol. I.

13)

On January 18, 1967, the respondents refused the

request for delivery of the petitioner’s orders, even

though petitioner’s relief was on board the Owens and

had been there since December, 1966, and respondents

replied to the message as follows:

“RECOMMENDATION CONCERNING

MODIFICATION OF ORDERS NOT FEAS-

6

IBLE IN THAT FURTHER DEGRADA-

TION OF PRESENT RD MANNING UN-

ACCEPTABLE, RETURN OF PAGANO OR

SUITABLE REPLACEMENT ASAP _ ES- :

SENTIAL TO EXTENDED OPERATIONS ;

a

f

$

&

2

x

§

od

COST OF TRANSPORTATION NOT f

WITHSTANDING.” ;

(Exhibit “J”, R. Vol. I. 33) t

However, the superior officers of the respondents

took exception to the action they had taken in refusing

to deliver the orders of petitioner and issued their own

orders to the respondents via radio dispatch from COM-

CRUDESLANT as follows:

“COMCRUDESLANT TAKES REF A :

FORAC. RTN OF RDI PAGANO ON GOVT [

FUNDS REQ. REF B NOT ECONOMICAL t

NOR APPROPRIATE IN VIEW OF ULTI-

MATE TRANS IN MAR IAW REF C. CUR-

RENT RD MANNING IN EXCESS FORCE

PERCENTAGE BY ONE RDC.

FWD SERANDA TO NAVSTA NORVA.”

(Exhibit “K”, R. Vol. I. 34)

The petitioner’s service records referred to in the

various radio messages did not arrive in the Naval Sta-

tion in response to the Orders of COMCRUDESLANT

on January 21, 1967, and on February 10, 1967, the Naval

Station again requested his services records in accord-

ance with the Orders of Comcrudeslant (R. Vol. I. 36)

and the respondents replied by radio message on Febru-

ary 11, 1967 that the records had been sent.

EERILY FROOGLE LIE IER GOL BONE TOIT PEN TORY STEN AOL SET APEE

The petitioner’s records arrived either the 13th or

7

14th of February, 1967, the exact date being unknown

as the envelope in which they were sent has been lost.

However, when the petitioner’s records did arrive,

it was then for the first time, that under the date of

February 2, 1967, che respondents had submitted an En-

listed Performance Evaluation on him covering the pe-

riod of December i7, 1966 to February 2, 1967, when

during this period of time, petitioner was only on the

ship stx (6) days, and that after January 9, 1967, the

petitioner remained in the United States and the respon-

dents were on their way to the Mediterranean Sea. (Em-

phasis added)

In this report (Exhibits “C” & “D”, R. Vol. I. 8, 9),

the respondents made the following numerical evalua-

tions:

Professional Performance 3.0

Military Behavior 3.2

Leadership & Supervisory Ability 2.6

Military Appearance 3.0

Adaptability 2.6

based upon the following false facts and defamatory

statements deliberately made by the respondents of and

concerning the petitioner.

“Tn his short tour of duty aboard this ship Pagano

quite often failed to demonstrate the qualities of

leadership expected of a first class petty officer.

He aired his complaints about this command’s

policies in front of his subordinates whenever he

felt he had been treated unfairly. Petty Officer

Pagano possesses a great amount of energy, and

when this energy was channeled to serve this com-

mand the results were satisfactory, but too often

8

oe |

he diverted his efforts toward getting his own way.

On at least one occasion he broke the chain of

command to register a complaint. On occasion he

raised undue objections to orders given him as he

felt his way of doing things was better. His pro-

fessional performance attitude and capabliities

were extremely marginal and in general of the E-4

level. His attitude was in general bad for morale.

He is not recommended for reenlistment in the

~ future.” (Exhibit “C”, R. Vol. I. 8)

“2 FEB 67: Assigned mark of 2.6 in Leadership

and Supervisory Ability due to failure to demon-

Strate the qualities of leadersiip expected of a

first class petty officer.

Assigned mark of 2.6 in Adaptability due to the

fact that he was in general bad for morale.”

“2 FEB 67: Recommendation for advancement to

RDC dated 9 December 1966 withdrawn this date

due to low evaluation mark in professional per-

formance.” (Exhibit “D”, R. Vol. I. 9)

REASONS FOR GRANTING THE WRIT

The decision below is unjust, unreasonable and

plainly wrong as to (A) Summary Judgment and (B)

Immunity Doctrine, under the facts of this case.

The Decision Below Is Unjust, Unreasonable and Plainly

Wrong, as to (A) Summary Judgment and (B) Immunity

Doctrine, Under the Facts of This Case.

(A) SUMMARY JUDGMENT

“The basic purpose of the Federal Rules is to ad-

minister justice through fair trials, not through summary

dismissals as necessary as they may be on occasion.” Su

owitz v. Hilton Hotels Corp. 383 U. S. 363, 372.

9

PRUE RAR LI SELEY, OLLIE LGN ELITE LOG SP DEBE TORE ELEN LLY ODER ARNG BOLL EEE LEG TERE LIE OLE SP RG SEER EE BRE NOT DG

r-

ca

Two basic factors were ignored by the lower courts

that clearly prevented the entry of summary judgment in

this case, namely, the insuficiency of the affidavit in sup-

port of the respondents motion and the presence of gen-

uine issues of material facts.

The affidavit of Captain Palkovic (R. Vol. I 21)

was not based upen “personal knowledge” nor did it

show that “affiant is competent to testify to the matters

stated” in the affidavit, clearly in violation of the Fed-

eral Rules' and as stated by the courts:

“When affidavits are offered in support of a mo-

tion for summary judgment, they must present

admissible evidence and not only be made on per-

sonal knowledge of the affiant but must show the

affiant possesses the knowledge asserted.” Sprague

v. Vogt, (C. A. 8th. 1945), 150 F. 2d 795, 800.

A reading of the Palkovic affidavit clearly shows

that it is filled with conclusionary statements that are

self serving and full of inadmissible evidence when it

states: “That no requirement exists that a performance

evaluation not be made on these occasions; that the man-

ual does permit such special evaluations and the prac-

tice on board the USS Robert A. Owens has been and

continues to be to make such evaluations on occasions of

detachments of enlisted men in the rates of petty officer

second class and above; that there is no requirement in

the Manual that semi-annual evaluations not be made

on such occasions; that the evaluation of February 2,

1967, was made in the normal course of the official

TRule 56(e) F. R. C. P. states: “Supporting . . . affidavits shall be made on

personal knowledge, shall set forth such facts as would be admissible in evi-

dence, and shall show affirmatively that the affiant is competent to testify to

the matters stated therein.”

10

ee ee te -

duties of LCDR H. E. Miniter, Jr., and were made with

the requirement that such evaluations be made by Sec-

tion C-7821(3) of the Bureau of Naval Personnel Man-

ual.”

It is more than evident that the Palkovic affidavit is

insufficient by its silence. It is silent as to how long

continued has been this alleged practice; has it been cer-

tain and uniform; was it compulsory; was it consistent;

was it general throughout the Navy; was it known and

was it in opposition to the terms and provisions of a law-

ful order or regulation?

The language of the instruction of the Bureau of

Naval Personnel Manual in regards to transfers and

evaluation is explicit, clear and mandatory:

“On transfer for permanent change of station or

completion of temporary duty/temporary addi-

tional duty tf 90 or more days of the current re-

porting period have elapsed.” Section C-7821-

(8):(b) (1) (Emphasis added)

As previously stated, not only are the statements

complained of false, defamatory and deliberately made,

but the facts clearly show that petitioner had not had 90

days elapse of his current reporting period on February

2, 1967, and furthermore, he was only on the ship six (6)

days of this period, as the ship left the United States on

January 10, 1967 and petitioner stayed in the United

States on leave.

Not only were the respondents prevented by the

above secticn of the Manual, but the manual itself is pre-

cluded from granting the respondents any authority other

than that explicitly granted to them by the Manual itself

under the authority of the U. S. Navy Regulations so

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long as the Manual does not conflict with the Regula-

tions.*

The Navy Regulations having the “force of statute

law”, Cafeteria Workers v. McElroy, 367 U. S. 886,891,

the respondents are precluded from asserting any alleged

“practice’> but are confined to strict compliance with

said Regulations, while the instructions of the Manual

are for guidance in the performance of matters as per-

2“The information and instructions contained in this Manual are issued for

the guidance of personnel in matters under the cognizance of the Chief of

Naval Personnel. They have the same force and effect as orders issued by the

Chief of Naval Personnel, 4ut they in no way alter or amend any provision

of U.S. Navy Regulations, 1948 .. .” (R. Vol. I. 22) (Emphasis added)

“The regulations, orders, and instructions issued for the guidance of all per-

sons in the Department of the Navy are found in the following sources:

(a) ‘United States Navy s.cgulations’ issued by the Secretary of the Navy and

approved by the President . . . (f) Manuals and similar publications, includ-

ing those within the Navy and Marine Corps Directives Systems, issued by

the chiefs of bureaus and offices, the Comptroller of the Navy, the Judge

Advocate General, and the Commandant of the Marine Corps, and approved

by the Secretary of the Navy.” Article 1201(1) U.S. Navy Regulations.

“The regulations, orders, and instructions contained in the said sources are

binding on all persons in the Department of the Navy. No regulation, order,

or instruction shall be issued by any chief of bureau or office, the Comp-

troller of the Navy, the Judge Advocate General, the Commandant of the

Marine Corps, or other officer or official which conflicts with, alters or

amends any provision of the above listed sources... .” Article 1201(2),

U.S. Navy Regulations. (Emphasis added)

“The scope of the principal regulation publications is as follows: (1) United

States Navy Regulations,—Principles for the guidance of the Department of

the Navy as to the duty, respunsibility, authority, distinctions, and relations

of the various bureaus, officials, and individuals each to the other . . . (7)

Manuals and similar publications—Detailed instructions and information

which pertain to matters under control of the issuing authority.” Article

1202, U.S. Nay Regulations.

“Every officer in the naval service shall acquaint himself with, obey and

so far as his authority extends, enforce the laws, regulations, and orders relat-

ing to the Naval Establishment.” Article 1209 U.S. Navy Regulations.

SRoget’s Thesaurus of Words and Phrases, Revised and Authorized American

Edition, Section 613, lists “practice” and “custom” as synonyms of “habit”.

12

tains to the Chief of Naval Personnel. Thusly, all acts

within and under the cognizance of the Chief of Naval

Personnel must be performed in accordance with the “ex-

plicit authorization” of the Manual. There can be no

“inferred authorization” when the Manual is silent nor

can there be any departure from the instructions of the

Manual if such departure will conflict with the provi-

sions of the Regulations. Cf. Greene v. McElro~. 360

U. S. 474, Service v. Dulles, 354 U. S. 363, Williams v.

Zuckert, 371 U.S. 535, on rehearing, 372 U. S. 765, Vita-

reli v. Seaton. 359 U.S. 535. Moreover, the prohibition

against such “practice” has been in the annuals of the

Navy since 1937,* and was and is included in the Manual

for Court-Martials, 1951, Section 213(b), page 382,

“There can be no such thing as custom that is contrary

to existing law or regulation.”

Thusly, the contention of the respondents, that be-

cause the Manual states “Special evaluations may be

made at any time when the individual’s performance in-

dicates that special cognizance should be taken of an out-

standing occurrence, either meritorious or derogatory,

and Commanding officers may make memorandum en-

tries on page 9 for any reason which they consider appro-

priate” is a genuine issue of material fact that precludes

the entry of summary judgment in favor of the respond-

ents, the petitioner having contended that the Manual

prevents the evaluation marks complained of, as the

records in the case at bar, show that between December

17, 1966 and February 2, 1967, there were no derogatory

entries in the petitioner’s service record (R. Vol. I. 9)

4“The fact that such usages exist, therefore, can never be pleaded in justifi-

cation of conduct otherwise criminal or reprehensible nor relied upon as a

complete defense in a trial by court-martial.” Naval Courts and Boards, 1937,

Section 5(d) page 3.

13

Se ee not

PLEIN LIEBE LE ENT OI NS PILED

and that the use of the “calculated -alsehood” and “mali-

cious libel” which enjoy no constitutional protection,

cannot by any stretch of the imagination be considered

“appropriate reasons”. Cf. Time v. Hill, 385 U. S. 374,

389-390, New York Times Co., v. Sullivan, 376 U. S.

254, 279-280, Garrison v. Louisiana, 379 U. S. 64, and

concurring opinion of Mr. Justice Stewart in Rosenblatt

v. Baer, 383 U.S. 75, 92.

Moreover, this contention of the respondents was not

made a part of the motion in the lower court, they hav-

ing asserted it for the first time in their brief in the

Court of Appeals, nor was it asserted as a basis for the

immunity doctrine in the affidavit of Captain Palkovic.

Thusly, summary judgment was precluded in the

case at bar, because there were genuine issues as to ma-

terial facts, whether or not the respondents wrote in the

exercise of official responsibility; whether or not they

went outside their line of duty; whether or not they went

outside the limits of their authority; whether or not they

wrote in the course of their duties and in the discharge

of their duties; whether or not they were acting within

the scope of their powers; whether or not the occasion

was one which would have justified their act and whether

or not the Navy Regulations took precedence over the

instructions of Bureau of Naval Personnel Manual.

(B) IMMUNITY DOCTRINE

The undisputed facts clearly show that the respond-

ents should not have been granted absolute immunity

as contemplated by Barr v. Matteo.

The respondents’ powers, duties and functions as

14

set forth in the U. S. Navy Regulations® were that they

were to expiicitly follow the orders of their superiors,

COMCRUDESLANT, of January 21, 1967 (R. Vol.

I. 34). They were to forward petitioner’s orders and

records to the Naval Station and nothing more. They

had neither the power nor authority to go beyond the dic-

‘tates of those orders as contained in the radio message.

As of that date, their jurisdiction over the petitioner®

ceased and anything they did thereafter was not germane

to the orders they had received.

Moreover, respondents can cite no rule, regulation

or order that is the basis for their authority to make any

recommendation concerning the petitioner’s reenlistment,

nor have they ever asserted in their pleadings, affidavits

or exhibits that they had the jurisdiction or authority to

make the recommendation that is part of the subject

matter of this case.

Thusly, it is abundantly clear that the statements,

not only false, malicious, defamatory and deliberately

made by the respondents, were also gratuitous and irrele-

vant to the subject matter, and beyond their authority

and jurisdiction and immunity is not available to them.”

A naval officer who makes a defamatory report on

a subordinate based upon false facts and malicious libel

5“Al] persons in the naval service are required to obey readily and strictly, and

to execute promptly, the lawful orders of their superiors.” Article 1211(1),

U. S. Navy Regulations.

SPhysical jurisdiction was lost on January 9, 1967, when the Owens went to

the Mediterranean Sea and petitioner stayed in the United States.

7“Those exceptions are (1) action by officers beyond their statutory powers

and (2) even though within the scope of their authority, the powers them-

selves or the manner in which they are exercised are constitutionally void.”

Dugan v. Rank, 372 U.S. 609, 621, citing Malone v. Bowdoin, 369 U. S.

643, at 647.

15

—_

or apy yer

STUD U EES i TS WAR KLEE

cannot be considered as acting within the scope of offi-

cial authority and responsibility. He is on notice that

he is acting out of the ordinary, and is responsible.®

“While no act can ever be judged in vacuo, but

only with some measure of reference to external

circumstances, some actions require very little

showing in order to appear at least prima facie

justified, while others need elaborate support.

Paradoxically it would seem that it is in the latter

situation that there is less need for the immunity

doctrine. In the latter case, where an officer

knows that he is acting out of the ordinary, he is

on notice of the circumstances, ard there is more

reason for him to have to expect to be prepared

to justify his conduct.”

“However, I see no reason why the innocent

should not have direct protection as well as the

8A commanding officer who departs from his orders or instructions, or takes

official action which is not in accordance with such orders or instructions,

does so upon his own responsibility and shall report immediately the circum-

stances to the officer from whom the prior orders or instructions were re-

ceived.” Article 0701(2) U.S. Navy Regulation:.

Mr. Justice Brennan, in his dissenting opinion in Wheeldin v. Wheeler, 373

U. S. 647, stated that the doctrine of Barr v. Matteo did not apply to cases

such as the cate at bar: “In that case we upheld the governmental officer

immunity in respect of ‘action taken . . . within the petitioner’s line of duty’.

(360 U. S. at 575). It has never been suggested that the immunity reaches

beyond that perimeter so as to snield a federal officer acting wholly on his

own. A federal officer remains liable for acts committed ‘manifestly or

palpably beyond his authority’.”

See also Fowler v. Southern Bell Telephone and Telegraph Co., 343 F. 2d.

150 (C. A. Sth. 1965), opinion by Circuit Judge Bell, in regards to acts of a

public official beyond his authority and power wherein special investigators

of the Alcohol and Tobacco Tax Division were charged with wire tapping.

There the Court stated, “The defense should not be sustained on the basis of

technical procedural defaults of the opposing party or in the absence of a

clear and factual demonstration that the actions of the officers were ‘#deed

taken in pursuit of their official duties.” (343 F. 2d at 155).

16

guilty by the only means available to them, that is,

by an action against the officer responsible for the

wrong.” Kelly v. Dunne, (C. A. Ist. 1965) 344 F.

23, 129, 134.

There are many cases in the books where actions

have been sustained noc only against governmental offi-

cers, but also against officers of the armed forces.

Consideration of a few of them would seem deposi-

tive here of any contention that the false, malicious, de-

famatory report of February 2, 1967, issued without

authority, was in any way immunized.

In Wilson v. MacKenzie, 7 Hill 95, 42 Am. Dec.

51, an action for assault by a seaman against his com-

manding officer which occurred on the high seas, the

superior defendant defended upon the grounds that his

acts were pursuant to his authority as commanding offi-

cer of the ship. The court held that the seaman was en-

titled to judgment, and in an opinion by Nelson, ©. J., he

commented upon Sutton v. Johnstone, 1 T. R. 492, 99

English Reprint 1215 (1786) and upon the reasons for

its reversal. The reasons are set forth in Warden v.

Bailey, 4 Taunt. 67, 88-89, 12 English Reprint 253, 261,

also cited in Wilson v. MacKenzte, supra.

In Warden v. Bailey, supra, an action for trespass

was held to lie for an inferior officer against his superior

officer, both in actual military service, who imprisons

him for disobedience to an order made under color, but

not within the scope of military authority, and in up-

holding this cause of action stated in regard to Sutton v.

Johnstone, supra, as follows:

“The learned Judge was desired to nonsuit the

17

OPTS Rr

prarer oer

Os RADIA IOY AR DD GRRE AE oe En

plaintiff upon the ground of doctrine, supposed

to be established by the case of Sutton v. John-

stone, that an inferior officer cannot maintain an

action against a superior officer for imprisonment

inflicted in consequence of disobedience to any

command whatsoever, issued by the superior to

the inferior officer. To be sure, this is a very

wide inference to draw from Sutton v. Johnstone,

that being only a case of imprisonment for dis-

obedience to orders issued in the heat of battle,

where obedience, and instant obedience is neces-

sary. Lord Mansfield and Lord Loughborough do

not decide this point; they expressly avoid deter-

mining it, though they intimate a very strong

opinion, and send it to the dernier resort. The

only point therefore decided in Sutton v. John-

stone, 1s, that there was probable cause for impris-

onment, in that case.” (4 Taunt. 88-89, 12 Eng.

Rep. 261) (Emphasis added)

The opinion of Wilson v. MacKenzie, supra, refers

to the argument in Warden v. Bailey, supra, and the

statement of Lawrence, J., to the effect, that he “had

heard from good private information that the reasons

assigned by Ld. Mansfield for reversing the judgment

of the Court of Exchequer Chamber were not adopted

by the House of Lords, though the judgment of the Chief

Justices was affirmed. (4 Taunt. 74)

Wall v. M’Namara, cited in 1 TR 536, 537, and in

Wilson v. MacKenzie, supra, was an action brought by

a captain in the African Corps, against the Lieutenant

Governor of Senegambia for imprisoning him for nine

months under circumstances of cruelty. Lord Mansfield

in his summation to the jury said:

18

er errr en

“In trying the legality of acts done by military of-

ficers in the exercise of their duty, particularly

beyond the seas, where cases may occur without

the possibility of application for proper advice,

great latitude ought to be allowed, and they ought

not to suffer for a slip of form, if their intentions

appear to have been upright: . . . But on the other

hand, if the heart is wrong, if cruelty, malice and

oppression, appear to have occasioned or aggra-

vated the imprisonment or other injury com-

plained of, they shall not cover themselves

with a thin veil of legal forms, nor escape,

under a cover of justification, the most technically

regular, from that punishment which it is your

province and your duty to inflict in so scandalous

an abuse of public trust.” (Emphasis added)

The verdict was for the plaintiff and likewise in the

case of Hannaford v. Hunn, 2 Carr. & P. 148, 172 Eng-

lish Reprint 68 (1825), which was an action for false

imprisonment brought by a master of a man of war

against his captain, in which Wall v. M’Namara, supra,

is cited in a foot note to the «ase. (Compare Mostyn v.

Fabregas, 1 Cow 161, 98 English Reprint 1021, a native

against the Governor of Minorca, verdict for the plain-

tiff affirmed on appeal, 2 Black, W. 929, 96 English Re-

print 549).

Thus, the English cases have followed the rule that

where (1) the acts were illegal for want of jurisdiction

or authority, and (2) the acts were illegal by reason of

their being only colorable, and for some improper pur-

pose, and not really in the exercise of military authority,

but malicious and without even probable cause, actions

would lie, verdicts would be upheld and the doctrine of

immunity rejected.

19

WP owe ene

RM TES PFE

MORALS Po, FUP

nn nae By ae cone eee el gtr ers ae

In Mallory v. Merritt, (1845), 17 Conn. 178, the

court followed these principles, which was an action for

trespass vi et armis against a captain of militia for al-

legedly unlawfully imprisoning a private. The captain

demurred to the declaration claiming that the fine im-

posed by him upon the private was for neglect of duty

and that the imprisonment was for the collection of the

debt. The Court held that the demurrer should be over-

ruled (giving judgment for plaintiff), and said in part:

“The issuing of the warrant, therefore by the de-

fendant, was unauthorized by law, and affords

him no justification for the injury complained of

by the plaintiff.” (17 Conn. 180)

In Dinsman v. Wilkes, (1851) 12 How. (53 U. S.)

390, this Court, in an opinion by Chief Justice Taney,

stated principles on equal par with the instructions of

Lord Mansfield in Wall v. M’Namara, supra.

“But at the same time it must be borne in mind

that the nation would be equally dishonored, if it

permitted the humblest individual in its service

to be oppressed and injured by his commanding

officer, from malice, or ill will, or the wantonness

of power, without giving him redress in the courts

of justice.” (12 How. at 402)

“And if, from malice to an individual, or vindic-

tive feeling, or a disposition to oppress, he in-

flicted punishment beyond that which, in his sober

judgment, he would have thought necessary, he is

liable to this action.” (12 How. at 404)

20

SARE RMA IIS

“This is not a case where the punishment alleged

to have been inflicted was forbidden by law, or

beyond the power which the law confided to him.

For, in such a case, he would be liable whatever

were his motives.” (12 How. at 404) (Emphasis

added},

The Chief Justice further held that the entire case turned

upon the motive of the defendant and that this question

was one exclusively for the jury, to be decided by them

upon the whole testimony. (12 How. at 404)

Nixon v. Reeves, (1896), 65 Minn. 159, 67 N. W.

989, was an action for damages by a member of the

Minnesota National Guard against one of his company

officers. The jury rendered a verdict for the plaintiff

and in affirming it on appeal the State Supreme Court

stated :

- “On the contrary, he seems to have acted upon

the mistaken theory that he was authorized to

punish a disobedience of his orders summarily,

and at his discretion. In this he was mistaken. He

should have proceeded against the plaintiff before

a court-martial or a justice of the peace, or both.

It is urged that this construction of the statute is

destructible of military discipline. Of this it is

not our province to judge, but if such be the case

the remedy is with the legislature.”

Our Supreme Court in an analogous situation in

Wilkes v. Dinsman,7 How. 89, 12 L. ed. 618, concluded:

“It is not to be lost sight of, however, and will be

explained more fully hereafter, that, while the

chief agent of the government, in so important a

21

trust, when conducting with skill, fidelity, and

energy, is to be protected under mere errors of

judgment in the discharge of his duties. Yet he is

not to be shielded from responsibility if he acts out

of his authority or jurisdiction, or inflicts private

injury either from malice, cruelty, or any species

of oppression, founded on considerations indepen-

dent of public ends. The humblest seaman or ma-

rine ts to be sheltered under the aegis of the law

from any real wrong, as well as the highest in

office.” (Emphasis added)

From these cases have evolved the general rule well

stated in 6 C. J. S., Army and Navy, Section 36(a), p.

419:

“A person in the military service has his civil

remedies for any abuse of authority by his military

superiors. Thus, actions have been brought by

persons in the military service against their supe-

riors, and persons acting under their direction for

various causes. An officer is not answerable for

an injury done within the scope of his authority,

unless influenced by maiice, corruption, or cruelty,

although he may have committed an error of

judgment in the exercise of his discretionary

authority.” (Emphasis added)

In some cases, the executive arm of the government,

overcome by compassion for the criminal, liberates him,

at the risk of sacrificing the public good. Is the judici-

ary now to become overcome by compassion for naval

officers at the risk of sacrificing the enlisted men of the

service?

22

Salat Sih ip eh FMI AEE EISLER , rr

It is time to return to the oldfashioned philosophy

that each person is responsible for his own conduct and

that evil and thoughtless officers must be judicially re-

strained from harming others. And, if their conduct

(officers) does not measure up to the minimum stand-

ards set by society for its protection then he must be held

accountable to the party he has injured. It is time to re-

vive the principles of self discipline and individual

responsibility and make them again the mainspring of

our system of government and laws.

We have experimented long enough with the idea

that it (immunity doctrine) is for the good of society.

It has brought nothing. It is time to turn things around.

It is highly dangerous and contrary to the most funda-

mental principles of a free government to put it (Im-

munity) within the power of thoughtless and evil offi-

cers, as concluded by Mr. Montesquieu, the French

writer in his ‘““The Spirit of The Laws” when he stated,

‘“‘Men entrusted with power tend to abuse it”.

No greater danger to an effective service by enlisted

men, who constituted the “back bone” of the military

establishment, exists, than the concept that a man in uni-

form, simply by virtue of his position in the military

establishment, is outside the sanctuary of the constitu-

tion, and that officers are immune to the prohibitions of

the law merely because they are officers, Such a con-

cept is at war with the first principles of a government

predicated upon the assumption that no man, no matter

how high his position, stands wholly above the law. (Cf.

Marbury v. Madison, | Cranch 137, 163-168).

23

Ve we

CONCLUSION

This Court is the judicial bulwark against tyranny

and injustice on the part of any one individual, groups

or segments of the government, and petitioner now asks

this Court to grant to him that access to the courts and

judicial relief referred to by this Court in Harmon v.

Brucker, 355 U. S. 579.581, wherein the Court held that

judicial relief was available and would be granted to one

who had been injured by an act of a government official

which was in excess of his express or implied powers and

further concluded that it was jate in the day to argue

that everything that the executives of the armed forces

did in connection with their subordinates was not beyond

the reach of judicial scrutiny. Cf. Clackum v. United

States, 296 F. 2d. 226. 228.

For these and all the foregoing reasons, this petition

for a writ of certiorari should be granted.

Respectfully submitted,

ROBERT M. HARCOURT, Esq,.,

402 Board of Trade Building,

Norfolk, Virginia 23510

PHILIP J. HIRSCHKOP, Esq.,

110 No. Royal Street,

Alexandria, Virginia 22313

Counsel for Petitioner

24

APPENDIX

(Filed November 6, 1967)

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Norfolk Division

ROBERT M. PAGANO,

Plaintiff

Civil Action

v. No. 6203

SAMUEL A. MARTIN and

HOWARD E. MINITER, JR,

Defendants.

MEMORANDUM ORDER

Plaintiff here seeks damages from the defendants

for alleged published malicious libelous writings. De-

fendants claim privilege.

THE FACTS

Plaintiff and defendants are members of the United

States Navy and attached to the USS ROBERT A.

OWENS (DD 827). Pagano is a radarman with the

rank of E-6, a First Class Petty Officer, and is 01 divi-

sion leading petty officer. Martin holds the rank of

Commander and was Commanding Officer of said ship.

Miniter, who holds the rank of Lieutenant Commander

was its Executive Officer. Pagano had practiced his pro-

fession of radarman in the Navy for 9% years. He has

an excellent reputation in his profession, attained by his

la

TR Pe et

pt, ITER

a ae ee hed

conduct, industry and ability. He had planned to make

the Navy a career.

On December 16, 1966, Pagano was rated by the

Executive Officer, Miniter, for the semi-annual period.

It was a good rating. The report said:

“Pagano has shown himself to be a competent

radarman and an excellent petty officer by his

extremely effective and reliable professional per-

formance. He expresses himself well and with

authority.”

Among other things, the report said of Pagano that

he “promotes good morale”, “gets the most out of his

men”, “works well on his own”, “willingiy follows com-

mands and regulations”.

On or about December 16, 1966, Pagano went on

ten days annual leave, to return January 7, 1967. He re-

quested and received ten days emergency leave from

January 9, to January 20, 1967, because his wife was

“being operated on”. On January 17, 1967, a Naval Mes-

sage was sent from Naval Station at Norfolk to the USS

ROBERT A. OWENS, advising that Pagano’s wife was

still in the hospital and requesting ten days extension of

the emergency leave. The message set out that orders

were aboard the ship for his transfer in March as a school

instructor to San Diego. ‘she message suggested that

Pagano not be returned to the ship, but assigned to the

Naval Station at Norfolk to save the cost of transporta-

tion. After some controversy this was done. Hence, it ap-

pears that after December 16, 1966, Pagano was only

attached to the USS ROBERT A. OWENS for ten days

(December 16, 1966 to December 27, 1966), nor was he

2a

under the observation of either of the defendants after

that time.

On February 2, 1967, a rating report was filed by

Miniter covering the period of December 17, 1966 to

February 2, 1967, together with certain recommenda-

tions. This report and recommendations are the basis of

this action. The report said that Pagano “quite often

failed to demonstrate the qualities of leadership expected

of a first class petty officer—he aired his complaints

about this command’s policies in front of his subordinates

whenever he felt he had been treated unfairly—too often

he diverted his efforts toward getting his own way—he

broke the chain of command to register a complaint—he

raised undue objections to orders given him—his pro-

fessional performance attitude and capabilities were ex-

tremely marginal and in general of the E-4 level. His

attitude was in general bad for morale. He is not recom-

mended for reenlistment in the future.” On December

9, 1966, Miniter, by direction of Martin, had stated in

the record of Pagano:

“Recommended for advancement and nominated

for exarnination. Eligible in all respects for par-

ticipation in Navy-wide competitive examination

for R D C.”

On February 2, 1967, this recommendation was with-

drawn. He was assigned a low mark in Leadership and

Supervisory Ability, and in Adaptability.

' Pagano says his Navy Career is now at an end; that

the performance report filed by defendants on February

2nd was false and malicious, and with intent to damage

and injure plaintiff; that defendants were not required

3a

+ ints Ae ete tors

in ge LEARN Ti Mi, KestHTS bite Mek ee a ne

or even authorized to file this report; that there was no

basis for the report; that on December 16, 1966, defend-

ants had given plaintiff a good report, and had only six

days thereafter to observe him in the performance of his

duties; that defendants became angry and displeased

when plaintiff requested an extension of his emergency

leave, which had the effect of relieving him from duty

aboard their ship.

Plaintiff says the alleged malicious report was be-

yond the duty and power vested in defendants by the

Rules and Regulations governing the rating and report

on personnel under their command; he says that pursuant

to the Bureau of Naval Personnel Manual C-7821, these

defendants were not authorized to make such a report

because 90 days had not elapsed since the previous report.

Defendants’ immediate superior officer says that the

Navy Manual does not prohibit a report being made

more frequently than each six months, and that the report

was made in the normal course of the official duties of

the defendants, as was customary on that ship.

A copy of the provisions of Chapter 7 (C-7821) of

Bureau of Naval Personnel Manual, Revised 1959, is

attached to the papers in this cause, and made a part of

this opinion. It will be noted from this Manual that it

prescribes that reports shall be made at specified pe-

riods, and that under paragraph (8) (b):(4), that a “Spe-

cial evaluation may also be made at any time when the

individual’s performance indicates that special cog-

nizance should be taken of an outstanding occurrence,

either meritorious or derogatory.” In any event, there is

nothing in the Manual which prohibits an officer from

making other reports.

eS ait eles a ne OAS TER A Ie: Bil nt AN ARR aE

te rere aa’

Defendants filed a motion to dismiss for alleged

failure to state a cause of action because defendants were

acting within the scope of their employment and the re-

ports complained of were made in the normal course of

these duties, This motion is treated as a motion for sum-

mary judgment. :

Defendants’ contention is that the making of the re-

port in question and the ratings issued are absolute priv-

‘lege. That is, that the statements were in the discharge

of defendants’ official duties and in relation to matters

which they had the right and duty to report upon. There

is no doubt defendants were Federal Officers. Howard

v. Lyons, 360 U.S. 593, Denman v. White, 316 F. 2d 524

(Ist Cir. 1963). The authority for a Federal Officer to

act derives from federal sources and the federal courts

in such cases are not bound to follow state law. Howard

v. Lyons, supra.

2A pRB NON MEE CTE PEERY ARE AT TET ¢

mae

PEEK LTE OIE

Individual officers of the United States Navy who,

in the discharge of their official duties, report of and :

concerning persons under their command, are and should :

be protected by an absolute privilege from personal lia-

bility in defamation actions. The United States Supreme

Court held in Barr v. Matteo, 360 U.S. 564 and Howard

: v. Lyons, 360 U.S. 593, that individual officers of the

United States Government who issued public statements

in the discharge of their official duties were prohibited ‘

by an absolute privilege from personal liability in defa-

mation actions. Among the reasons for the privilege it

was said officials of government should be free to exer- :

cise their duties without fear of damage suits for acts :

done. It quoted from the excellent opinion of Judge

Learned Hand in Gregoire v. Biddle, 177 F. 2d 579,

wherein, among other things, he said:

AGORA a TH UY SIM

Sa

READ NS DADRA RK Ld ihn Ntsc D idan nibs nannies Wa .

“Tt 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 con-

fine 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 dis-

charge 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 offi-

cial may later find himself hard put to it to satis-

fy a jury of his good faith. There must indeed be

means of punishing pubiic officers 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 in-

evitable in either alternative. In this instance it

has been thought in the end better to leave unre-

dressed the wrongs done 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 pow-

6a

— wont fp mvusiacr aein eens - -

ers; 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 dishon-

estly is necessarily to overstep its bounds. A

moment’s reflection shows, however, that that can-

not be the meaning of the limitation without de-

feating the whole doctrine. What is meant by say-

ing 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.. .”

ae ae See See Ree

The privilege is an expression of a policy designed |

to aid in the effective functioning of government. It is

not the title to the office which is protected, but the per-

formance of the duties entrusted to the officer.

The mere fact that the defendants were not required

by the Navy Regulations to make the report does not

destroy the privilege. They had the power and author-

ity to make the report. This is covered in the opinion

of Barr v. Matteo, 360 U.S. 564, at 575 where the Court

said:

“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.

bi Oa hi Oi

|

fa

il FSS aM RS Ri Mt I CRIT ASSN, Reh ie TR ag o> Sted stscectde aS en et -

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 de-

stroy 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 dis-

tractions of a trial upon a conclusion of the

pleader, or to the hazard of a judgment against

them based upon a jury’s speculation as to motives.’

Tenney v. Brandhove, 341 U.S. 367, 377.”

In Preble v. Johnson, 275 F. 2d 275 (10th Cir.

1960), the Court said that statements which are not

authorized by or in furtherance of some rule or regula-

tion may be in line of official duty, and if deemed appro-

priate to the exercise of utterer’s office or station, are

privilege. See also Brownfield v. Landon, 307 F. 2d 389

(1962 D. C. Cir.).

We deal with the relation between the acts com-

plained of and the matters committed to the supervision

and determination of the defendants. They are not

bound by a “rigid scope of duty”, but are entitled to a

more liberal and generalized concept of line of duty.

There are doubtless instances of actual injustices

which will go unredressed, but this must be weighed

against the whole. The law is not perfect. It is the good

8a

of the great majority which must be protected. Some

must suffer for the good of the masses. Although the

reports in this case appear harsh, without much outward

foundation, and ‘far-reaching, it would almost destroy

the system of rating inferior rank personnel by the

higher rank if the person were denied the right to ex-

press his opinions freely. If there is to be any further

restriction in this field, it should be imposed by Congress.

If an officer is to answer for such opinions as are ex-

pressed in this case, it should be by direction of Congress

or by Rules and Regulations promulgated by authority

of Congress.

The statements made were absolute privilege, and

the motion for summary judgment is granted, and the

Clerk is ORDERED to enter the same.

/s/RICHARD B. KELLAM

United States District Judge

Norfolk, Virginia.

November 6, 1967.

9a

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12,234

ROBERT M. FAGANO,

Appellant,

versus

SAMUEL A. MARTIN and

HOWARD E. MINITER, Jr.,

Appellees

Appeal from the United States District Court for the

Eastern District of Virginia, at Norfolk, Richard B.

Kellam, District Judge.

Argued June 19, 1968. Decided July 1, 1968.

Before Bryan, Winter and Craven, Circuit Judges.

Robert M. Harcourt for Appellant, and Walter H.

Fleischer, Attorney, Department of Justice, (Edwin L.

Weisl, Jr., Assistant Attorney General, John C. Elt-

dridge. Attorney, Department of Justice, and C. Vernon

Spratley, United States Attorney, on brief) for Appellees.

10a

PER CURIAM:

In this libel action, Robert M. Pagano, a Radarman

First Class in the United States Navy, claims damages

from his superior officers, Commander Samuel A. Mar-

tin and Lieutenant-Commander Howard E. Miniter, Jr.,

who were respectively the commanding officer and exec-

utive officer of the USS Robert A. Owens, the plaintiff’s

ship. The alleged defamation appears in a Report of

Enlisted Performance Evaluation issued on February

2, 1967 by the defendants upon Pagano’s detachment

from the Owens. In substance it downgraded him sharp-

ly and recommended he not be reenlisted in the future.

Dismissal of the complaint was ordered by the District

Court on defendants’ motion for summary judgment, and

Pagano appeals.

We affirm. The report, authorized by the Bureau

of Naval Personnel Manual, was made by the defendant

officers as part of their official duties. With the trial

court, we think the suit, as a matter of law, cannot be

maintained. Barr v. Matteo, 360 US 564 (1959); Feres

v. US, 34 US 135 (1950).

AFFIRMED.

lla