*1 gift may We be made a of such claims Gifts payment a bonus. the judge employees. in concluded that the trial employer his by an made Sanders, holding plaintiff Ohio error in the satis- See, g., v. e. Renee establishing proof fied this burden of affirmed App. 21, 131 N.E.2d preponderance the “Bonus his case mere 116 N.E.2d Ohio St. gratuity and above evidence. normally over is a Spicer salary.” Kenney Furni- regular v. Retaining jurisdiction the (Ohio App.). A Co., ture bonus, however, 131 N.E.2d appeal, remanded the Dis the case to part become trict the trial Court with instructions to employee em- an cоntract between judge to the in the reconsider evidence part ployer therefore and be light applicable rule clear Ellis agreed compensation for service. convincing report con evidence and App. Inc., Prod., 85 Ohio Victor Elec. v. compliance to this clusion Court. In 275; Mabley & Co. Carew N.E.2d remand, judge trial concluded Borden, 195N.E. 129 Ohio St. report Upon Re entitled “Conclusion contract But absence filed mand” and made a Court paid by employer agreement, a bonus part appeal, of the record on this “that рromise any return without employee plaintiff, Hobson, Harold S. has gift or is in the nature proved by convincing clear and evidence determining gratuity purposes of recipient gift, that he was the from gift. purported ownership of the Cyrus Eaton, the defendant S. beneficial interest claims involved facts if the conclude We herein.” relinquish alleges, any plaintiff are as ownership in his report ment of the defendant’s We have considered the claims in the judge together interest beneficial trial briefs in favor parties of Frank Hobson the estate with reference thereto and gift inter plaintiff constitute supplemental finding conclude that Therefore, on judge burden supported vivos. of the trial the evi- Hobson, prove plaintiff, clearly Harold S. dence and is not erroneous. convincing evidence clear and Judgment of the District Court is af- gift, the de recipient aof was the firmed. Eaton, fendant, Cyrus beneficial S. herein. involved claims interest holding judge error in was in The trial this burden satisfied establishing mere
proof his case
preponderance evidence. to the District the case We remand judge trial with instructions HEINE, Appellant, Eerik light of in the evidence
tо reconsider convincing applicable of clear rule RAUS, Appellee. Juri report to this conclusion evidence ap- No. 11195. jurisdiction retain Court. We peal. Appeals United States Court of Fourth Circuit. Supplemental Opinion July 22, 1968. February 12, opinion of In our plaintiff, that the we held burden Hobson, prove clear H. Harold defendant, convincing evidence relinquished Cyrus Eaton, had S. against the in claims interest beneficial Hobson, he had and that estate of Frank *2 Stanford, J. Robert and Ernest C. Raskauskas, Washington, C., ap- D. pellant. Connolly, Washington, Paul R. D. C. (Williams Pretty Connolly, & E. Barrett man, Jr., Hogan Hartson, & Wash ington, C., brief), appellee. D. leged Judge, HAYNSWORTH, privileged persons. occasions to Chief Before CRAVEN, involve Circuit There was no indication BOREMAN however, Later, Judges. ment of the CIA. tendered, supported amended answer was Judge: HAYNSWORTH, Chief a series of executed affidavits *3 CIA, Deputy of the Director or Director action, ap- plaintiff In this slander privilege in which the absolute executive summary judg- peals from an of order was was claimed. those ground documents him, against on the ment entered alleged or was an undercover that Raus partial privilege, of aftеr agent CIA,1 executed secret ad of by the disclosure limited invocation special assignments past and for it in the gov- Intelligence Agency Central the CIA acted under the instructions of against privilege ernmental disclosure Legion he “warned” his fellow when controversy, par- state The thus secrets. agent. Heine was a Soviet naires that surfaced, tially Central arose of the out Earlier circumstances disclosure these Intelligence Agency’s intelligence and by a prevented was said to been counterintelligence at- and its activities agreemеnt, secrecy Raus CIA to which expose plaintiff tempt as Soviet purported to subscribed which had agent, a defamation which KGB carry punishment for violations alleges plaintiff to be false. 794, in under 18 793 and U.S.C.A. §§ Heine, plaintiff, is an Es- Eerik cluding imprisonment death. life emigré residing tonian in Canada. With filed, counsel When the first answer was fight- apparent history a “freedom as permission for the CIA refused had Estonia, er” in he an occasional was CIA connection. Raus disclose his an ex- lecturer United States hibitor of an film. As anti-communist sought Thereafter, plaintiff to take such, he was known tо the leaders deposition addi in order to obtain Raus’ emigrés Estonian States the United employment tional information about apparently entitled their confi- CIA, The Director the CIA. dence. appeared Counsel, through his General and, taking on deposition,2 of the defendant, Raus, Juri is also pres basis, question by question emigré. Estonian He resides in the Unit- govern Judge, ence invoked ed States and the National Commander privilege Legion ment’s of Estonian Liberation. readily He he the Board allowed to state admits that told Raus state secrets. Legion of the Directors that he was directly paid, indi that he had been reliably informed an official rectly, for he had rendered services of the United States that Heine was CIA, sustained but the agent Soviet or collaborator and that prevent probing em of the details Legion cooperate should not ployment. This, charges, film made his Otherwise, appears from affidavits longer and his lecture no salable brought disgrace that Raus CIA him into the Estoni- emigrés an communities in the in the United United States other Estonian Canada. foreign intelli- had been sources gence purpose instruc- and that the of the answer, only In his initial Raus claimed tion to to discredit Raus qualified privilege. He claimed integrity spoken, malice, only sources the CIA’s had without anas Legion only privi foreign intelligence officer of the within Estonian employment generally 1. His overt inwas the Bureau as to information Washington. of Public Roads in addition to the affi- that disclosed in davits. affidavit, Earlier, in an himself, secrecy sought had to invoke the emigré through groups developed taken, ques Raus was he ruled each calling arguably them. tion for information privilege, requiring within the litigation, In that state answer those whiсh the Court granted District mary judgment.3 motion for sum- impair would not while fore opinion It was of the closing questions answers to those governmental privilege that the absolute apparently would. In his conduct of the government employee was available to a proceedings, balanced, we think he Raus, faithfully such as executed his fairly possible, conflicting inter- higher instructions, authority as to one of ests and was faithful to the “formula of exercising discretionary functions within compromise” taught by Reynolds. authority.4 perimeter the outer agree, provided We the instructiоns were right We affirm the *4 having authority isued one to issue governmental privilege case to invoke the them. against state secrets and its allowance, allowed, to the extent it was ^y District Court.5 put
At the outset it is well to right question one side the of the CIA’s government’s privilege
to invoke the
respect
silence
question
privilege
to “state secrets.”
II On the
of executive
agree
suits,
gen
in defamation
we also
privilege belongs
“The
to the Govern
erally
Court,
analysis
with the District
by it;
ment
and must be asserted
can
reasoning,
Barr
v. Matteo and its
pri
neither be claimed nor
wаived
though we come to the conclusion that
party.
lightly
vate
It is
in
not to be
supplied
more detail
been
should have
voked. There must be a formal claim of
entry
summary judgment,
before
privilege, lodged by the head of the de
partment which has
over the mat
control
Matteo,
in Barr v.
it was held that
ter,
personal
after actual
consideration
Acting
the Office
Rent
The
officer.
court itself must deter
protec-
stabilization was entitled to the
ap
mine whether the circumstances are
privilege,
tion of the absolute executive
propriate
privilege,
for the claim
Responding
congressional
criticism
yet
forcing
do so without
a disclosure of
agency,
press
Barr
issued
release
very thing
designed
announcing
suspend
his intention to
two
protect.
requirement
to
only
The latter
placing upon
subordinate officials and
difficulty.”
presents
one which
real
their
responsibility
pay-
shoulders
for the
Reynolds,
1,
United
v.
7—
justices
outs under criticism. Three
8,
528, 532,
(1953).
73 S.Ct.
leged, subsequent confers ratification ratified agent.11 If rea- privilege instructions. sonably such disclosures are an unauthorized Judge principle case the District Applicability generally suggested to violate the for state in an article claimed has been secrets, camera, they be decision.12 of the Court’s District critical that extent. camera are Disclosures absolute We conclude rights normal inconsistent with the if in privilege is to Raus available plaintiff inquiry and cross-examina- approval with the were issued structions tion, course, but if the two interests au or of of the Director reconciled, cannot be the interest of the in the subordi thorized give litigant way individual government’s must discretion, instruc to issue such nate’s giving tions, instructions or if the of its secrets of state. approved subsequently ratified and Finally, may an official. such we observe while we entry summary generally approve Though affidavits the Director’s judgment subject defendant, only for the under instructions that Raus acted state inquiry to the limited additional we di- strongly CIA, certainly im rect, fare no better given by, plies were that the instructions defendant’s were held of, responsible, approval or with absolute, only qualified. but Heine Agency official authorized sup- Raus, cannot controvert claim of though appearance in the the Director’s CIA, ported by acted under strong implication it a case carries with Agency.13 instructions approval, personal rаtification publication exceeding claims in- present there record is said that on the structions. He has ing no basis a show- permissible that the inference is still summary judgment If malice. given unauthor instructions were additional, appropriate after the limited underling has action ized direct, the neces- will avoid responsible approval of a had the never sity possible compromise trial having authority Agency official government state secrets which the en- approve instructions. issue preserve. titled to unlikely, but we The inference seems Vacatеd and remanded. present say is foreclosed cannot record. *7 CRAVEN, Judge (concurring Circuit summary judgment was is Since dissenting): and that, judgment sued, so will we vacate agree summary I that District with the court represents to the if the judgment inference, improvidently upon entered. reliance Court serious deficiency pointed may addition to inquiry addition out and be had further Judge Haynsworth majority Chief opinion, findings inquiry in the should be
al made. others, suggest identity es- I there are the official to directed pecially develop scope ap Agency or the failure to who authorized within duty. Indeed, me Dis Raus’ to Raus. seems proved the to instructions meager identity the affidavits information individual closure by deposition required; are elicited from Raus is not dealt with Raus merely conclusory sought not not at or all suffi- is whether be answer summary judgment. support cient Deputy or sub Director or a Director general accept having authority believe error to asser- official, to do ordinate Here, (e). in- 13. it would matter not 11. Comment Ibid. within the structions were unauthorized long Slandering: Agency Spying Absolute as as Raus believed them to An 12. Agent? Privilege be. 67 Col.L. for the CIA Rev. 752. summary judgment (3rd 1964). Cleаrly, tions1 as a 111 at basis ed. § opposing party me, where the ac is without seems to he has failed to sustain his normally may to information burden. cess available That he have failed do (a) agreement secrecy test the so affidavits because invoca because of his privilege. tion (b) of the state secrets Cf. with CIA’s invocation of the 56(f). Fed.R.Civ.P. executive state se- appealing are crets factors that furnish says The court that if executive im- leverage no for decision. not does munity purpose, “is serve its intended agreement secrecy if, indeed, attack the it must extend to officials agreed he could do so. areWe that we employees who execute the officials’ secrecy priv- not invalidate the state orders.” This means that millions ilege. If result be that Raus cannot employees federal are accorded absolute scope show that he acted within the any liability whatsoever employment thus entitled to a for intentional either because privilege, employees derivative it does not seem fall within the definition ought in me “official” or “officer” defined the court to assume what v. Matteo, 79 S.Ct. he cannot put establish. To do so is to (1959), or, Raus, 3 L.Ed. like upon proof Heine a burden of not take orders from those who do. On possibly his and which he cannot sustain: remand, there is to be no further to show that Raus is not entitled to execu- duty.” “scope as to Raus’ It seems to immunity. tive assuming publi- me the court is that the Security specifically cation National of defamation is within his official Act delegates duties, holding long to the it is not that so to the Agency, statutory power did what he was to do the told relied on judge justify extends CIA and the even to conduct оutside the district scope defamatory employment. statements, I cannot believe and the affi- and, suggest the latter davits do not is intended3 there- the Director fore, personally making conclude the court must instructed Raus to defame Heine, assumption. proof the' nor showing But the is there burden that the approved Raus to show that he is entitled the defamation of immunity, properly delegated and there no responsi- presumption bility Prosser, protect intelligence to aid Torts sources.4 On 56(e) contemplates .32, Rule give that a ther PPK sufficient aficionados possible legal affidavit liability; shall “set forth such facts as to his would be admissible in evidence.” are all aware that Bond is licensed to kill. world, however, intelligence In the real It is true that Helms’ affidavit contains agents guns often strike but “acting the assertion that Raus was with- allegations destroy words— scope employ- in the course reputations, families, careers. And the *8 publish ment” was instructed to question responsibility of their before the defamatory words. Without factual aver- nearly law is not so settled as it inis ments, job e., description, i. the statement Fleming phantasmagоria.” Comment, Spy- simply legal conclusion, is unless one ing Slandering; Privilege An Absolute willing say employment always is to Agent? for the CIA Colum.L.Rev. co-extensive with instructions of the em- (1967), citing Fleming, Goldfinger I. ployer. (1959). 3. If Heine, presumably Raus had shot court would exonerate him April of tort liabil- Helms’ affidavit of shows ity ground on the he delegation was told powers to do Dep- broad to the purpose shielding —not uty for even April 28, Director effective 1965— government long official told who after the defamation of Heine oc- plinks enemy “When 007 an with a well curred 1963 and 1964. projectile trusty directed from his Wal- tively by himself rather than surely probing into remand, underling far less accomplished secret without be matter can —and this compelling society. danger ato free secrets.” of “state to one sure not the omission as I do view Justifying in recent cases factors found filing con- another remedied be immunity has where absolute clusory affidavit. present are not been sustained Slandering: me, Spying An today, ex- case. See seems court Privilege Agent? breaking point. I for beyond the CIA Absolute Barr its tends reasons, (1967). go far several Colum.L.Rev. 766-768 so for would not that There is here nо comment which served concession court’s which is one necessary so, that a and criticism interest of discussion not to do it is qualified privilege foreign government activity adequately pro- rela government employee Not here are intra-de tions. involved tect partmental agree result seems confidential communications I case. functioning necessary intelligent likely, if Raus I content and would be government. only possi and of Nor is there accorded were given prove, scrutiny opportunity bility if here an alternative Heine might procedure can, Heine he actual malice. remedial repu vindicate himself or rehabilitate his distinguishes me this case for What sought by tation.5 progeny the deliber- from Barr subject is not most federal are—as Intelligence ate choice the Central public scrutiny employees normal —to Agency of character of defamation improper for sanctions conduct. Since policy. of national Such an instrument Heine, it instructed defame adequately me to a factor alone seems to scarcely supposed repri to be will distinguish cases with Barr all other doing for so. manded I I which am familiar. do believe Supreme typical in Barr intended that the Barr Matteo and other Unlike recognized cases, there extend should here there was deliber- defamation material, defamatory to intentional as an instru- ate said even use event, I policy. now, if ment of But after have been au- suggest (not wrong that, government am about thorized an “unworthy” simply rule must limit the exer- be fashioned to individual done respon- very cise employee) purpose of intentional de- defamation to for the stroying sible To immunize оfficers and officials. effectiveness the influence and government millions of em- not intended individual. ployees intentionally govern- liability oppressive protect use slandering upon private persons power. their rule in Barr mental Nor was the explanation they mere “un- protection were told formulated it, government. The worthy” do and the assertion that it was within officer scope employment, destroys, my protection officer such an afforded opinion, him, the balance given that was he deserved struck not because Barr. If the CIA must defame hе was someone of fear have it but because might security, it, in order national a deterrent result there denied seems to me it could be done more effec- intentioned honest and well effect Indeed, presented (Supp.1966). himself FBI nor Neither ed *9 Washington theory any response. for arrest on the N.T. the OIA Communist, 1; id., 1966, 29, Times, April if he a 28, were fact he would col. at guilty failing May register 14, 19, 1; id., 29, 1966, April under the at col. Foreign Agents Registration 2, Federal Act. at col. 3. (1964) 22 §§ U.S.C.A. 611-621 as amend government would ham-
officers premise government operation. per al., DEPPE, A., et ARMEMENT S. foible human Barr that because of Appellants, government sometimes officers individ- unfortunately defame innocent America, UNITED STATES offi- protection such an uals Appellee. necessary in order evil is a cer No. 24427. private worthy fear from the officers Appeals United def- Barr envisioned libel actions. civil Fifth Circuit. possible as the oc- slander amation Aug. beings human failures of fallible casional government acting and not officers as policy. instruments of immunity conferred I think application fact situation no to a has govern- defamation is chosen where policy.6 That as deliberate
ment may adopt policy defamation policy such the reason that it thinks United States in the best interest of the implicit the Federal in the silence pow- undoubted Claim Act7 and the Tort the “state of the executive to invoke
er proper All ease.
secrets” the individual I is that would hold publishes
person such to absolute not thereafter be entitled
will the doctrine under I understand it. Barr as
enunciated
I dis would reverse and remand court consider whether
trict position reason of his Legion entitled to assert
Estonian granted commonly
qualified pre special interest
those who have (3rd Prosser, ed. See Torts
serve. §
1964). district court would also ask the consider whether figure
public as to defendant afford York Times under allowed New Sullivan, 254, 84 S.Ct.
Co. (1964), progeny.
Surely, suggests, the court enough. ought of these
other Comment, power pri- injury Yale L.J. 6. See intent to inflict legislative (1967), discussing im- disregard where vate citizens with reckless munity I, it is § under U.S.Const. art. for their interests.” ought suggested person that a defamed 2680(h) ra- “redress conduct § U.S.C.A. excludes slander privilege pur- tionale for constitutional libel actions. public ports justify: the exercise