Howard v. Lyons

PETITIONER:Howard
RESPONDENT:Lyons
LOCATION:Sherry Frontenac

DOCKET NO.: 57
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the First Circuit

CITATION: 360 US 593 (1959)
REARGUED: Apr 20, 1959 / Apr 21, 1959
DECIDED: Jun 29, 1959
ARGUED: Dec 08, 1958 / Dec 09, 1958

Facts of the case

Question

  • Oral Reargument – April 20, 1959
  • Oral Reargument – April 21, 1959
  • Oral Argument – December 08, 1958
  • Audio Transcription for Oral Reargument – April 20, 1959 in Howard v. Lyons
    Audio Transcription for Oral Reargument – April 21, 1959 in Howard v. Lyons
    Audio Transcription for Oral Argument – December 08, 1958 in Howard v. Lyons

    Audio Transcription for Oral Argument – December 09, 1958 in Howard v. Lyons

    Claude L. Dawson:

    May it please the Court.

    In the brief filed by the respondents in this Court referred to the petitioner Howard as a Rear Admiral at the time of the release of the libelous memorandum in question, he was then a Captain in the — employed in the Boston Naval Shipyard.

    Now, the respond — respondent Lyons, the time that this memorandum was issued, was the National Commander of the Federal Employees Veterans Association which has posts in various government agencies from coast to coast.

    The other respondent, Mr. McAteer, was the Commander of the local post of the — in the Boston Naval Shipyard.

    There have been considerable activities.

    The Federal Employees Veterans Association is composed of members all of whom have been — have honorable discharges in the United States Army, Navy or the Marine Corps or the Air Force.

    No one else is eligible for membership in this organization and the — there’s no question about their loyalty to the Government of the United States.

    As a matter of fact, that is one of their cardinal principles that they have a 100% loyalty to the — to the Government of the United States.

    Now, at that time that this memorandum was issued by the Petitioner Howard cancelling the recognition that have been given to the Federal Employees Veterans Association to represent members in various grievous matters — grievance matters in the Boston Naval Shipyard.

    No notice was ever given to their respondents or to any members of the Federal Employees Veterans Association that he was passing upon a question of whether they were eligible to represent the members in the Boston Naval Shipyard.

    No order to show cause why they should — the recognition should be canceled, was ever served upon the respondents or any of the officials of the FEVA prior to the issuance of the memorandum.

    Now, it seems that in this case the Government has taken a position that in issuing the memorandum in question, that the petitioner Howard was absolutely immune from — in other words, he was absolutely privileged in issuing a memorandum in question.

    Now, in that respect, there is cited in our brief a number of cases in where this — this Court and the other courts have extended the rule of absolute privilege in the matter of adjudicating anything that fell within the duties of a public official.

    But the rule is — is very limited, and it has generally been applied by this Court and to — and by other courts where the party issuing the libelous memorandum or the libelous statement was either charged with matters of policy.

    Now, the petitioner Howard was not in anyway charged with matters of policy.

    Policy of the Navy Department is made and directed by the Secretary of the Navy.

    He was simply the ranking officer in charged out of the Boston Naval Shipyard at that time.

    Now, his contention is, is entitled to complete immunity in libeling the respondents in this action.

    Earl Warren:

    Now Mr. Dawson, a moment ago, you were speaking of issuing a report to this kind.

    Are you referring to the publication of it to others or are you referring to the writing of the opinion and sending it through channels to a higher officer?

    Claude L. Dawson:

    It is my opinion, Mr. Chief Justice that if this report had probably have been made, gone to and then not gone to regular channels but have been directed to the Chief of the Bureau of Ships in Washington, they probably would have been a privileged communication.

    However, he didn’t do that.

    He released it to the Commander-in-Charge of that naval district, who the affidavit shows it would be immediately released to the press and it was released to all the newspapers, and the Press Associations in the City of Boston, according to the allegations of our complaint.

    Charles E. Whittaker:

    Do you think —

    Claude L. Dawson:

    Not — pardon me?

    Charles E. Whittaker:

    Excuse me.

    May I ask, (Inaudible) that because petitioner was required by (Inaudible) to make this report in his (Inaudible)

    He was not responsible for what the (Inaudible)

    Do you disagree with that?

    Claude L. Dawson:

    I disagree with that — to this extent, Your Honor.

    Claude L. Dawson:

    And that is that where a person knows that if he releases a certain communication to another party and that he knows that the other party is immediately going to release that to the newspapers, that he’s just as responsible for that action as a man who released it to the newspapers.

    Charles E. Whittaker:

    (Inaudible) except in the case where the person who was trying to produce the report has no opportunity but to produce the report.

    Now, is that the case here?

    Claude L. Dawson:

    Well, that’s what Judge Magruder said in his opinion.

    I have no doubt about that, Your Honor.

    And — but, of course our position is that the — that the petitioner Howard could have said to his Chief, “This is for your information.

    Please do not release it to the press.”

    Charles E. Whittaker:

    Could he have done that?

    Claude L. Dawson:

    I think he could have done that.

    Now, I can’t decide any regulations or —

    Charles E. Whittaker:

    Other than (Voice Overlap) —

    Claude L. Dawson:

    — or order to that effect but that’s my own personal opinion that he could have done that.

    Now, in this particular case, the release was made to the members of Congress —

    Earl Warren:

    But before — but before you —

    Claude L. Dawson:

    — apparently upon the theory (Voice Overlap) —

    Earl Warren:

    Mr. Dawson, —

    Claude L. Dawson:

    Yes.

    Earl Warren:

    — before you get to the release of Congress, I’d like to get this internal situation straightened out in my — in my mind.

    Now, do you mean that there was a likelihood of a superior officer releasing this to the — to the press that a subordinate officer such as Captain Lyons was in this — in this case —

    Claude L. Dawson:

    Captain Howard, Your Honor.

    Earl Warren:

    But Captain Howard was in this case, would have no rights to issue as a privileged communication to his superior officer, a report that he was obliged by duty to make?

    Claude L. Dawson:

    If it was his absolute duty to do that —

    Earl Warren:

    All right.

    Claude L. Dawson:

    — which I have some considerable doubt.

    Earl Warren:

    All right.

    Now in that —

    Claude L. Dawson:

    He —

    Earl Warren:

    — let me — let me take a break from there.

    If that is your answer, what does this record show and what are we bound by so far as his official duty in connection with this is?

    Now, not in the — just from the record.

    Claude L. Dawson:

    Well, the record is covered only by the affidavits passed to the motion for summary judgment, Your Honor.

    The — it’s on 20 and 21 of the record, paragraph 6, “Included among Rear Admiral Howard’s official duties as Commander in Boston Naval Shipyard, he is — and was on September 8th, 1955, the sharing of the information concerning his command be available to the public.

    And that to say the information be released to establish to the — to official channels.

    During my official absence on leave, the then acting Commandant, First Naval District Captain John A. Glick, U.S. Navy authorized a routine release through the public information officer headquarters, First Naval District, to the editors of various newspapers in Boston, Massachusetts, copies the letters,” so and so forth.

    That is the only thing in the record as far as (Inaudible) about the release.

    Earl Warren:

    And what —

    Claude L. Dawson:

    To the favor now —

    Earl Warren:

    Wasn’t there a finding of some kind — the Court to — on that subject, too?

    Claude L. Dawson:

    No, the finding was —

    Earl Warren:

    Other this is one on page 23, the second paragraph in the —

    Claude L. Dawson:

    The complaint in the affidavits and documents referred to, requirements for the motion shall conclusively be the statements interpreted to the defendant were opposed by him and the discharge of his official duties, and in relation, the matter commended to him for determination.

    Now, however, Your Honor, on the — that issue was never determined except on the basis the affidavit file within.

    If you look at record on page 3 of the record in paragraph 3 of the complaint, you’ll find that the eliminating part of it, it says, “Outside of his official duties on the day this memorandum, Exhibit A to release two copies of said memorandum to the United Press, the Associated Press, the International News Service, all of the daily papers in the City of Boston, and also — and in — and to the members of Congress.

    And in so departing and in so doing, departing from his official duties and act solely in a personal capacity and beyond his official duties.”

    Now, that allegation and in the — in the complaint made an issue of fact as to whether or not they were within the line of his official duties.

    And as Your Honor well knows, and it doesn’t need any citation of authority, that if there is any question of fact involved, and a motion for summary judgment, the motion for summary judgment cannot be branded.

    Hugo L. Black:

    Does the —

    Claude L. Dawson:

    That is the rule on (Voice Overlap)

    Hugo L. Black:

    For summary judgment, however, require you to go behind that and if affidavits are made refuting it or it is — not imposed on you and viewed it, to make affidavits of your own under motion for summary judgment?

    Claude L. Dawson:

    It’s possible and of course, I was not at the trial of this case —

    Hugo L. Black:

    But I —

    Claude L. Dawson:

    — and I can’t —

    Hugo L. Black:

    I understood.

    I meant the counsel for the plaintiff.

    Claude L. Dawson:

    Well, I think you can — under the rules as I understand the rules in the District Court, you can move for a summary judgment either with or without supporting affidavits.

    And that is true, I see no reason why the — how they can override the positive and — allegations contained in the complaint by affidavits.

    Hugo L. Black:

    I thought the very purpose of the motion for a summary judgment proceeding was to escape the burden of the trial on nothing — where there was nothing on the plaintiff’s side or the defendant’s side except bear allegations unsupported by proof and for which — to prove which nothing can be obtained.

    Claude L. Dawson:

    Well, Your Honor maybe correct in that, but I’ve always taken the view points that if the allegations of the complaint conflict with the affidavits in question, you do have a question of fact for the jury —

    William J. Brennan, Jr.:

    And how could you ever —

    Claude L. Dawson:

    — (Voice Overlap) court or a jury.

    William J. Brennan, Jr.:

    And how could you ever have a successful motion for summary judgment if the issues raised by the pleadings supersede the motion —

    Claude L. Dawson:

    Well —

    William J. Brennan, Jr.:

    — by creating a genuine issue (Inaudible)

    Claude L. Dawson:

    You could — on — on the basis of — of taking the deposition on the findings which is a very —

    William J. Brennan, Jr.:

    But I understand your argument, Mr. Dawson is that an issue of fact was raised by the pleadings.

    If that’s a genuine issue of fact and that of itself is sufficient deplete a motion for summary judgment.

    Is that your position?

    Claude L. Dawson:

    Yes.

    William J. Brennan, Jr.:

    Well, it —

    Charles E. Whittaker:

    (Inaudible) as I understand, you’re asking Justice Brennan, it is that the conflict is sufficient to defeat a motion or judgment on the pleading would also defeat a motion for a summary judgment.

    Is that right?

    Claude L. Dawson:

    Well, that’s the viewpoint that they’re taking, some of the courts and I know that’s primarily a viewpoint to take in one particular case I have in the Court of Claims.

    And the — that’s just my own viewpoint.

    I can’t cite any authority at this time because I haven’t any case to look it up.

    I want to go to another angle in this case which I think specifically shows that the judgment of the court below could be affirmed.

    Earl Warren:

    Well, may I ask you before you get to that, Mr. Dawson.

    Is the issue of whether these — this report was properly released to the press before us in this case now?

    Claude L. Dawson:

    It wasn’t argued, Your Honor in the — in the Court of Appeals.

    Earl Warren:

    The Court of Appeals said it had been abandoned at that time.

    Claude L. Dawson:

    Well, I searched the record (Inaudible)

    Apparently they had — they just — just didn’t argue within the Court of Appeals.

    And Your Honor said that in the (Inaudible) case, if you recall where the question was whether or not it was privilege, qualified to be privileged, that you permitted that question to be argued here again even though it wasn’t referred too much in our — in the Court of Appeals in the District of Columbia.

    Earl Warren:

    Did you write it in the briefs below?

    Claude L. Dawson:

    It was in — I did not write the briefs —

    Earl Warren:

    No — no, I mean, was it raised —

    Claude L. Dawson:

    It was not raised and that we (Voice Overlap)

    Earl Warren:

    And it was not raised in the oral argument?

    Claude L. Dawson:

    As far as I know it wasn’t raised in the oral argument.

    I wasn’t there, Your Honor.

    And I — I don’t know what they argued.

    Earl Warren:

    Yes.

    Claude L. Dawson:

    Yes.

    Earl Warren:

    And was not passed upon by the Court.

    Claude L. Dawson:

    Yes.

    Now —

    Moreover, you haven’t crossed petition here either.

    Claude L. Dawson:

    No, that’s right.

    William J. Brennan, Jr.:

    Nor there wasn’t a motion for rehearing, I gather —

    Claude L. Dawson:

    No, there was like (Voice Overlap) —

    William J. Brennan, Jr.:

    — like an issue with that.

    Claude L. Dawson:

    As far as I know there was no motion for rehearing filed.

    Now, the thing that I — I think that we can stand on in this case is a case that is recently decided by the Tenth Circuit Court of Appeals.

    It is cited in my brief, it’s Iverson versus Frandsen, at page 4 of my brief.

    The — memorandum which the petitioner Howard wrote in this case was not absolutely privileged, if at all it was qualified to be privileged.

    And if it was proper and a report within that issue without malice probably would be protected.

    Now, in this case, in the Tenth Circuit, which is a recent case, the Court — the Tenth Circuit Court of Appeals says that there are only a very few cases where there are absolute privilege confined to a very narrow appeal such as the judiciary and the Cabinet members, people like that.

    It — I think to say that a Captain of the Navy would have absolute privilege, in my opinion would be almost a judicial outrage.

    Hugo L. Black:

    So why?

    Claude L. Dawson:

    The —

    Hugo L. Black:

    May I ask you this, because I want to get your answers on it.

    I would suppose that if the head of the department to have an absolute privilege particularly in the military, the naval — the Navy and the Army, the lower ranking officers would have at least as much privilege because if they do not obey orders in effect, you can deduce, do not do their duty, they can be punished.

    They have no discretion about obeying orders, or performing their duties, do they?

    Claude L. Dawson:

    I — no, they have no discretion.

    They probably — they have to perform their duties.

    But to perform their duties in a proper manner is another question, Your Honor.

    Earl Warren:

    Well, but —

    Claude L. Dawson:

    What I — I’m trying to say here now — if you just let me go for about five minutes —

    Earl Warren:

    Yes.

    Claude L. Dawson:

    — I’ll try and show a situation in the end.

    In this Frandsen case, the Tenth Circuit held that the report of a medical officer or psychiatrist who held that the plaintiff was a moron became a part of a public record, that the report was only qualified privilege, not — not absolutely a privilege, and where it was free from malice.

    Claude L. Dawson:

    Now, there’s a distinguishing line in this case.

    Whether the report made by the petitioner Howard was free from malice.

    If he had a qualified privilege or even if he had, he loses his privilege according to the authority cited in the brief.

    When he — he parts from his report and make irrelevant statements and statements that have no business whatever being in the memorandum.

    Now, what we’re complaining about is that these loyal Americans, in page 12, I direct Your Honor’s attention that this was contained in the memorandum.

    They wondered why I’m asking what must be considered sound since the Navy Department condoned this existence, continues to permit a condition which amounts to overt subversion to exist, operate, and even deprive among moralities fall but nevertheless readily identified a group of shipyard employees.

    Whatever queries that Mr. Howard had when he made that statement which is not only false but is libelous per se and is malicious because it is libelous per se, he lost whatever privilege he had, that he had only a qualified queries or even he have an absolute immunity.

    The Sixth Circuit — I mean, the Eight Circuit Court of Appeals in an early case, in Robertson versus Jordan, the Eight Circuit held in a very early case, 339 Federal 671, the old first federal —

    Earl Warren:

    339?

    Claude L. Dawson:

    239, Your Honor, 671.

    The plaintiff was in the service of the Indian Bureau and the defendant was a publisher of a national issue amongst newspaper devoted to the cause of national prohibition.

    The defendant was an employee of the (Inaudible).

    The article complained was published in — on October 13th, 19 — or October 13th, 1913.

    They charged the plaintiff directly with having a record for theft, attempted blackmail, and gross immorality in his early life.

    Now, the defendant suit for libel was based upon a letter of the Assistant Secretary of the Interior insisting it was a public record.

    The plaintiff recovered a judgment.

    Among other things, the Eighth Circuit Court of Appeals held that to be privileged as a public record, an entry of writing or document must be made by a public officer in the line of his official duty, and is not enough that he happened to be an official or that it’s lodged among the records as a public notice.

    Now, there are number of other cases cited in my brief here that when a public official depart in a report from the duty that he had such as the — the petitioner Howard did in this case, by saying that these men were subversive, all works subversive, a condition existed, which is a charge that they practically were guilty of treason and — and he departed from — from his facts — it was a mere conclusion on his part which should fall — which should not have been contained in any report to the Navy, and he released it not only to the newspaper of the country but he releases to all the members of Congress from the State of Massachusetts, and no — and no — for malicious libel could remain and made against any man would say against these loyal men who serve their country honorably during two wars to say that they were subversive against the interest of their country who they had served as so honorable.

    (Inaudible)

    Claude L. Dawson:

    Well, the only thing — the thing is that the — that if there is, assuming that there was immunity from prosecution or from a — from a liable suit in this case, the memorandum which the petitioner Howard issued and the conclusion in that memorandum of the charge of overt subversion destroyed any right he had of that immunity assuming that he had it in his other report.

    That’s the point in the case and I have several cases in my brief citing to that effect.

    Now, the only thing that I have —

    Earl Warren:

    I suppose again, you’re speaking about the publication to the world, aren’t you?

    Claude L. Dawson:

    Yes, I am.

    Earl Warren:

    And not — not reporting to his superior officer?

    Claude L. Dawson:

    Yes, that’s right, yes.

    Earl Warren:

    Yes.

    Claude L. Dawson:

    And I think that under that phases alone the — whatever — there is no question — excuse me, Your Honor — there’s no question that under the law of Massachusetts that this — that the decision of the Court of Appeals is correct.

    There isn’t any doubt.

    There can’t be any doubt about that.

    Claude L. Dawson:

    It’s all the decision cited in — in the brief here exclusively showed that — that the decision of — opinion written by Judge Magruder in this case is proper and correct and according to the law of Massachusetts.

    William J. Brennan, Jr.:

    (Voice Overlap) —

    Earl Warren:

    What governs us here, Massachusetts law or federal law?

    Claude L. Dawson:

    Well, Your Honor, in the case of Erie Railroad Company versus Tompkins, this Court held that the law of the civil action was the law of the State or the cause of action arose conversing over 100 years to the present to this Court.

    Now, I’m not prepared to argue that Erie Railroad and Tompkins case shouldn’t be followed in this jurisdiction — I mean in this case.

    But it seems to me that in a libel case, that it should be followed because what constitutes libel should be measured by the law of the jurisdiction where the libel occurred.

    I’m just putting that out to you, Your Honor, for I believe that that is the proper.

    I understand that this Court as in several cases exempted certain actions such as actions under the Federal Depositors of Insurance law and some other thing that the federal law applies and that the state law does not apply.

    However, in the — in the case of this character, I think that the law of the Massachusetts should apply.

    Now, Your Honors, I think if you — give that consideration to the opinion of the Court of Appeals for the First Circuit and the — written by one of our most distinguished judges in the United States, Magruder, Justice Magruder, that we will finally conclude that the judgment of the — of that court should be sustained.

    Thank you very much.

    Earl Warren:

    Mr. Sweeney.

    Paul A. Sweeney:

    May I please the Court.

    In a few minutes that I have remaining, I would like to clarify what we believe is the position that we take in the case, at least the position of the petitioner.

    May I state at the outset that this is a little unusual in the normal government case where we represent the United States or an official in this official capacity where there’s an attempt to bring an action against the — or to compel its action.

    In this case, Admiral Howard, should the decision go against him, will be held personally liable.

    Now, in that situation much as we might desire a broader decision in this case, we feel it’s essential in deference to our client in his personal interest to have this case decided on this narrower ground as possible.

    And that is the reason why I stressed yesterday and wish to re-stress today that we believe, that under the motion for summary judgment here and the affidavits filed in support of it and the finding of the District Court, it is established that the actions of Admiral Howard, in this case, were in the performance of his duties and not in the exercise of a discretion.

    I — I stressed that yesterday and I’m merely trying to re-emphasize that.

    We read that out of the motion, out of Admiral Schnackenberg’s definite statement which appears on page 20 that it was a — there’s a — at 21, I beg your pardon, that it was his duty to furnish copies.

    Out of Admiral Howard’s affidavit on 22 which he said, “In the course of my official duties,” he furnished this information.

    Now, I have re-checked and there was no definite regulation if Your Honor please, dealing with matters of this kind.

    But again, I would like to stress and touch upon the proposition that not all matters inside the department are governed by specific regulations.

    There are lots of orders and duties that are assigned by either tradition or by word of mouth.

    But we have these two uncontradicted affidavits and on the basis of that, the District Court, on page 23, made a finding that the statements were published, and publication of course is what gives rise to an action for defamation in the discharge of his official duties.

    Now, we believe in those circumstances it was not opened to the Court of Appeals unless accept this finding aside on the ground that it was grossly erroneous and we would challenge that because the uncontradicted evidence discloses as supports this finding of the District Court, that these were actions performed with him in the carrying out of his official duties, that he was required to do it.

    Now, we think in the circumstances of this case that is the disposition which this Court should make on the fact that there’s a narrow case whether there was — they’re on the part of the respondents in not filing counter affidavits and not raising an appeal, the question that the finding of the District Court was incorrect and should be set aside, those are not in this case.

    And that there is a simple finding of the District Court on reverse that the acts performed during the course of his duty.

    Now, turning to the second point of this case, and that also was —

    Can I ask you a question there just to —

    Paul A. Sweeney:

    Yes, Your Honor.

    — test the scope of your position.

    As I understand it, if the Department of Labor, for example, the Secretary of Labor issued a directive to all of the employees all over the country saying that it is important that the press and the public should be kept aware of what was going on in the field units.

    And if therefore, they were instructed, every employee was instructed whenever he thought that he had a news item going within the line of the — the activity of this office to issue a press statement in the — your view that would give every employee of the department a absolute privilege, is that it?

    Paul A. Sweeney:

    Well, Your Honor, as writing into that, a second discretion every item that he thought was newsworthy.

    If there was a definite issuance of an order by the Secretary of Labor saying that in any labor dispute in which the Department is represented, he should make available to the press his comments upon that or his findings —

    Well, I (Voice Overlap) —

    Paul A. Sweeney:

    — any report of that.

    But suppose that he had no discretion in the circumstances.

    Yes, I would say that was the act of a superior officer that he was carrying into effect.

    I would suppose —

    Paul A. Sweeney:

    And that —

    — every — every member of the Department of Labor all over the country with an absolute privilege, an absolute privilege.

    Paul A. Sweeney:

    If he followed that particular instruction.

    That would be the thrust of it.

    Now, within the realms of that I find it in part as a — there would be disciplinary measures, of course, inside the department.

    It would probably cost him his job if he indulged in any — misused his office for that purpose.

    But the — but the discipline, the punishment would have to be under departmental and not a pursuit of a private individual.

    I think the necessities of the case, I would like to stress one thing more though.

    The Military Department has much more strict rules of obedience and the orders passing from one person to another that are in question would be — to be carried into effect.

    But I don’t think that’s particularly significant to the thrust of my argument.

    Earl Warren:

    As I understand, Mr. Sweeney, it is your position in this — in this case that the Admiral was not operating under any discretionary authority when he did that.

    But that this record show, and we’re bound by it, to consider that he was doing this as a positive duty.

    Paul A. Sweeney:

    In issuing the reports to the —

    Earl Warren:

    As required by his superior.

    Paul A. Sweeney:

    To the congressional delegation —

    Earl Warren:

    Yes.

    Paul A. Sweeney:

    — that particular point.

    Earl Warren:

    Yes.

    Paul A. Sweeney:

    Now, I would like to touch on the other side, if there were some discretion in his action on that type.

    Paul A. Sweeney:

    In other words, if it were within the scope of his duty but it was left to his discretion whether he should send it to the Congress or not, which is really the overall point and the point is in Spalding versus Vilas.

    If I could just read this short part from page 18 of the — in the act — as for my brief and this is a citation from Spalding versus Vilas and we think it applies definitely here except that that was the case of a Cabinet member and not on an inferior officer.

    In exercising the functions of his office, the head of an executive department keeping within the limits of his authority should not be under an apprehension, that the motives that controls his official conduct may at any time becomes the subject of inquiry in a civil suit for damages.

    It would seriously cripple the proper and effective administration of public affairs as entrusted to the Executive branch of the Government if he were subjected to any such restraint.

    He may have the legal authority to act but he may have such large discretion in the premises that it will not always be his absolute duty to exercise the authority with which he was invested.

    But if he acts, having authority, this conduct cannot be made the foundation of a suit against him personally for damages even if the circumstances showed that he is not disagreeably impressed by the fact that his action endures the effect that of another official.

    Now, we think —

    Earl Warren:

    Mr. Sweeney, I — I’m still confused because I thought the — you said that the opening of your argument this morning that you wanted this case decided on a very narrow issue —

    Paul A. Sweeney:

    That’s right, Your Honor.

    Earl Warren:

    — on the basis that this —

    Paul A. Sweeney:

    Yes.

    Earl Warren:

    — was his positive duty —

    Paul A. Sweeney:

    Yes.

    Earl Warren:

    — to do this, and that he was not exercising a discretion when he did it.

    Paul A. Sweeney:

    That’s right.

    Earl Warren:

    Now, you’ve cited the Vilas case to show that it is a matter of discretion and as long as it’s somewhere within the scope of his authority to put out statements of this kind that he does have a positive immunity.

    Paul A. Sweeney:

    I made myself unclear, I’m afraid, Your Honor.

    Earl Warren:

    Well, I — I —

    Paul A. Sweeney:

    That — that is our — that is our basic position, a narrow ground that I heard.

    Earl Warren:

    Yes.

    Paul A. Sweeney:

    I say if that is rejected by this Court, or I should have premised it on that basis.

    In other words, if this Court felt that notwithstanding the finding of the District Court, he was not under any duty to act but merely had authority to act, or not as a case might be, then in those circumstances, this Court we feel should then decide the Vilas — the problem.

    In other words, this is a secondary position, if I might say, if the Court does not agree with the primary position that I urge.

    In other words, we think that if you hold that he was not under an absolute duty to this then this Court should consider the application of the Vilas case if it were only a discretion that he were exercising.

    We do not think it was a discretion.

    But if the Court disagrees with our position then we think you have to reach the Vilas case.

    Do I make myself clear on this alternative grounds?

    Earl Warren:

    Yes.

    You make — you make it clear to this extent, but do you think we ought to reach the Vilas question, but do you urge it?

    Paul A. Sweeney:

    No, we do not.

    Paul A. Sweeney:

    We do not think you need to reach the Vilas question.

    Earl Warren:

    No.

    No, but let me put it this way.

    In the event that we don’t agree with you on your major issue, and we must reach the Vilas issue, does the Government urge that under those circumstances, this man would have had an absolute privilege?

    Paul A. Sweeney:

    Yes, Your Honor.

    Earl Warren:

    You do urge that?

    Paul A. Sweeney:

    We do urge that.

    Earl Warren:

    But that I didn’t understand —

    Paul A. Sweeney:

    Well, that — our point is that if you disagree with our basic problem and do reach the Vilas position then we urge that the discretion conferred in him under the Vilas case and in many cases in the Federal District Courts, the lower courts, sustain the proposition that he still should be accorded to absolute privilege so that he would have the freedom of acting undeterred by fear of a civil action.

    Hugo L. Black:

    Was a — was petitioner Howard an Admiral or a Captain?

    Paul A. Sweeney:

    He was a captain at the time that this report was issued.

    He was subsequently promoted to an Admiral.

    He presently is an Admiral.

    Hugo L. Black:

    Was he in command of the —

    Paul A. Sweeney:

    He was in command of the Boston Navy Yard.

    Hugo L. Black:

    And was his reported direct (Inaudible)

    Paul A. Sweeney:

    It was directed to the Chief of the Bureau of Ships under the chief of the office of Industrial Relations to the Navy but it went through channels.

    His reports go — he was under the — immediately — immediate military supervision of the Commandant of the First Naval District, so his reports, and according to Navy procedure would go from him to the Commandant of the First Naval District to probably would put an endorsement forwarded to the official to whom it was ultimately directed.

    It will go to channels that way but it was directed to the Chief of the Bureau of Ships and the Chief of the Office of Industrial Relations.

    If the Court have no further problem —