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On May 11, 1982, the plaintiff filed her brief in the appeals court arguing once again that the statute of limitations did not begin to run until she knew of the broadcast of the defamatory material and suffered emotional injury (in September 1980), and therefore the lower court's dismissal of portions of the complaint on the ground that the statute had run was improper. In the plaintiff's view, the November 1978 date of the alleged wrongful act-the nonconsensual videotaping and subsequent broadcast-was to be distinguished from the September 1980 date of her sustained injury. The statute of limitations, she asserted, began to run only after the latter date and consequently her suit, brought in January 1981, was timely filed within two years of the date the action accrued.

In her brief, the plaintiff also argued that the lower court abused its discretion in excluding from the jury the testimony of her proposed expert witness who purportedly was prepared to state that Ms. Brown's sales presentation was proper. (The testimony was excluded on request of the defendants because the witness was not identified and his deposition was not completed by the cutoff date set in the court's pretrial discovery schedule.) The plaintiff asked the appeals court to reverse the lower court decision, vacate the jury verdict, and remand the case for a new trial.

On July 12, 1982, the defendants filed their brief in the appeals court. In it they once again rejected the plaintiff's argument regarding the statute of limitations, characterizing her position as "not only unsupported by the cases on which she relies, but contradicted by those cases and the applicable Virginia law.” [Brief on Behalf of Appellees/Cross-Appellants, July 12, 1982, at 17] The plaintiff's argument, the defendants maintained, was “an extreme form of the rejected discovery rule which would allow a plaintiff to bring a claim for allegedly tortious conduct at any time that he or she allegedly learns of that conduct, regardless of whether or not it was previously discoverable. The absurdity of plaintiff's theory was recognized by Judge Bryan ..." [Id. at 24]

Second, the defendants contended that the trial court did not abuse its discretion by enforcing its pre-trial order and refusing to allow the plaintiff's proferred expert witness to testify. In addition to asserting that to have allowed such testimony-for which the de. fendants would have had no opportunity to prepare-would have seriously prejudiced their case, the defendants maintained that it was in the interest of sound judicial administration for trial courts to issue and enforce pre-trial orders requiring the disclosure and identity of prospective witnesses.

Third, with respect to their cross-appeal, the defendants reiterated their district court argument that Counts I and III of the plaintiff's complaint (alleging a conspiracy to interfere with her business and intentional interference with her business, respectively) were barred by Virginia's applicable one and two year statutes of limitations because there was no direct injury to property which was a prerequisite for a five year statute of limitations. Accordingly, the defendants contended that Judge Bryan erred in allowing a trial on those counts and subsequently in denying their motion for a directed verdict. In any event, the defendants continued, neither count stated a claim upon which relief could be granted and they could

have been dismissed on that basis as well. “There was clearly no intent on the defendants' part to harm the plaintiff, nor did they act improperly," the brief stated. (Id. at 34)

Finally, the defendants again argued, as they had in the district court, that the complaint failed to state a claim upon which relief could be granted in Count IV (alleging an invasion of privacy) because there was no common law right of privacy in Virginia, and in Count II (alleging a violation of the Federal eavesdropping statute) because the applicable statutory section did not prohibit recording of conversations where a party to the conversation consented to the recording. Furthermore, the defendants again stated that the trial court also did not have personal jurisdiction over defendant Osmer-McQuade. Therefore, the defendants said, the trial court should have granted their motions for summary judgment and dismissal on the above issues rather than allowing the case to go to trial.

On August 16, 1982, the plaintiff filed a reply brief disputing the various contentions of the defendants and reiterating the arguments made in her initial brief and in the district court. The defendants' reply brief, filed on August 31, 1982, dealt solely with Count IV of the complaint, and again asserted that there was no common law right of privacy in Virginia.

On November 10, 1982, the case was argued before a panel of the appeals court.

StatusThe case is pending in the U.S. Court of Appeals for the Fourth Circuit. As of March 1, 1983, the court had not handed down its decision. American Family Life Assurance of Columbus v. American Broad

casting Companies, Inc.

Civil Action No. 20674 (Sup. Ct. New York County, N.Y.) On November 7, 1979, the American Family Life Assurance Company of Columbus, a Georgia corporation in the supplemental insurance business selling "Cancer Care," filed suit in the Supreme Court of the State of New York, County of New York [Index No. 20674), against the American Broadcasting Companies, Inc. (“ABC”); Frederick S. Pierce, Roone Arledge, George Jenkins, Av Westin, Frank Reynolds, Margaret Osmer, Max Robinson, and Jeff Gralnick, ABC executives and employees; Erma Hufford; and Kathleen T. Gardner, Betty Hamburger, Lillian Teitlebaum, David Holton and Margaret Dixon, all present or former employees of the Select Committee on Aging of the U.S. House of Representatives. (The complaint did not identify the Congressional employees as such, but instead termed each of them "an agent, servant and/or employee” of ABC.) The four count complaint charged the defendants with defamation, libel, slander and a "prima facie tort," and sought a total of $275,000,000 in compensatory and punitive damages.

Like Benford v. American Broadcasting Companies, Inc. and Brown v. American Broadcasting Companies, Inc. (see pages 203 and 230 respectively of this report for discussions of those cases), this action arose from the Select Committee's investigation into abuses in the sale of health insurance to the elderly, and in fact set forth many of the same allegations, against several of the same defendants, as were involved in those cases.

More specifically, the complaint centered on two actions: a November 15, 1978 series of interviews which were videotaped by defendant ABC employee Osmer with the plaintiff's Chief Executive, John B. Amos, and various other employees; and the allegedly fraudulent securing of employment with the plaintiff by defendant Gardner who was actually an undercover investigator. The gravamen of the complaint was that through these two actions, and subsequent editing of the videotapes and statements of the plaintiff's employees, the plaintiff was set up" and a totally distorted and defamatory broadcast of the company's operations was presented. (The broadcasts were aired on ABC's national “World News Tonight" program on November 27, 28, and 29, 1978.)

The underlying theory of the suit was that a conspiracy existed to injure the plaintiff and that the conspiracy was effectuated “under the guise” of and “in conjunction with” the Select Committee "in an attempt to ward off any responsibility for televising inaccurate claims, illegal recordings and video tapes, false and libel. ous statements . [Verified Complaint, November 7, 1979, 31]

On July 7, 1980, a stipulation of voluntary discontinuance was filed dismissing the action against ABC defendants Pierce, Jenkins, Robinson, and Gralnick.

Although there were no docket entries indicated in the case for nearly two and a half years, in December 1982 some limited activity resumed, and the action remains open.

StatusThe case is pending in the Supreme Court of New York County, New York. It has been the position of the Congressional defendants that they have not been properly served; therefore, they have filed no answer to the complaint nor any other responsive pleading. According to the office of the General Counsel to the Clerk of the House of Representatives, counsel for the Congessional defendants, the applicable statute of limitations will bar the action against the staff members even if they are ultimately properly served. Jones v. Guthrie

Civil Action No. 81-2873 (D.D.C.) On November 25, 1981, Theortis E. Jones, a black police officer employed by the United States Capitol Police, filed a complaint for injunctive and declaratory relief, money damages, and back pay against the Capitol Police and Benjamin Guthrie, the Sergeant at Arms of the U.S. House of Representatives. The complaint, filed in the U.S. District Court for the District of Columbia (Civil Action No. 81-2873), alleged in general that certain personnel and disciplinary actions taken by the defendants with respect to the plaintiff violated his Fifth Amendment rights to due process of law and equal protection.

The defendant U.S. Capitol Police was created pursuant to 40 U.S.C. $ 206 and is empowered to provide and maintain security for the building and grounds of the U.S. Capitol and its immediate vicinity, and to regulate vehicular traffic flow in the area. The force is headed by a Chief who is appointed by the Capitol Police Board and who serves at the pleasure of the Board. The Board consists of the Sergeant at Arms of the U.S. Senate, the Sergeant at Arms of the U.S. House of Representatives, and the Architect of the Capitol. The complaint asserted that defendant Guthrie was "authorized and empowered ... to supervise and control the operation and employment practices of the . . . Capitol Police.” [Complaint November 25, 1981, 16]

The complaint alleged that the defendants had “subjected plaintiff to various discriminatory and adverse personnel actions solely because of his race." [Id., 18) Among the specific actions cited were: termination without cause in 1974 and a loss of pay prior to reinstatement; denial of 80 hours of wages in 1978; demotion and a concomitant reduction in salary in 1980; a one month suspension in 1980; and pressure from superiors to resign on several occasions. Additionally, the complaint alleged that the defendants had: failed to promote the plaintiff on an equal basis with white employees; afforded disparate treatment, based on race, to employees with respect to serving in the plainclothes and other "elite" divisions of the Capitol Police; maintained department and job classifications which were segregated on the basis of race; and continually subjected the plaintiff to "frivolous and unwarranted” disciplinary actions because of his race.

As relief, the plaintiff asked, inter alia, that the court: (1) issue a declaratory judgment that the defendants' actions and policies violated the plaintiff's Fifth Amendment rights; (2) grant a permanent injunction enjoining the defendants from engaging in policies or practices which discriminated against him; (3) order the defendants to provide back pay and reimbursement for his loss of pension, social security, and other benefits; and (4) grant a judgment against the defendants for $50,000 for his mental and emotional distress and $100,000 for punitive damages.

On March 23, 1982, the defendants filed a motion to dismiss the complaint or in the alternative for summary judgment. In an accompanying memorandum, the defendants argued that: (1) the suit was barred by the doctrine of sovereign immunity; (2) even if the action was not barred by sovereign immunity, the plaintiff_had failed to make out a legitimate claim for relief under the Fifth Amendment; (3) defendant Guthrie could not be held liable for a constitutional tort where he could not be personally culpable; and (4) the defendants were protected from liability by the doctrine of qualified official immunity.

Turning first to the sovereign immunity issue, the defendants contended that the doctrine "directly involves not only a unit of the legislative branch, but also one of its officers in the performance of his official function.” [Memorandum of Points and Authorities in Support of Defendants' Motion to Dismiss or in the Alternative for Summary Judgment, March 23, 1982, at 2] Further, said the defendants, Congress had provided no explicit statutory waiver of this immunity for those in similar situations to the plaintiff. "When $ 717 was added to Title VII to protect federal employees from discrimination, it failed to extend this protection to congressional employees who are not in the competitive service." [Id. at 3] Finally, the defendants maintained, the case of Davis v. Passman, 442 U.S. 228 (1979), did not command a different determination:

There the Court found that a congressional employee, un-
protected by Title VII, had a cause of action for money
damages directly under the Fifth Amendment for gender
based discrimination. The] Davis court did not abolish,
however the doctrine of sovereign immunity. The court in
Davis held only that the Fifth Amendment provided a
basis for a cause of action for money damages against a
Congressman, and did not reach the issue of sovereign im-

munity. (Id.] (For a discussion of the Davis case, see page 180 of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1981.)

Even if the court concluded that the action was not barred by the doctrine of sovereign immunity, the defendants argued, the plaintiff had not made a proper claim for relief under the Fifth Amendment. After reviewing the specific factual allegations of the complaint and the administrative record, the defendants asserted that:

[I]t is clear that Plaintiff was given notice of the charges,
an opportunity to be heard, and to counsel and present evi-
dence and a right to appeal any adverse decision at each
and every stage for each adverse personnel action initiated
by the Capitol Police. In each instance, plaintiff either
failed to contest the evidence or contested and failed to
appeal.

The Fifth Amendment does not require a trial-type hear-
ing in every conceivable case of government impairment of
private interest. Cafeteria and Restaurant Workers Union
U. McElroy, 367 U.S. 886, 894 (1961). Although plaintiff's
private interest in his job has admittedly been impaired by
governmental action, at each step along the way the
United States Capitol Police have taken pains to ensure
procedural due process; notice of the charges and opportu-
nity to present evidence in his favor. The adverse person-
nel actions have been imposed after notice and hearing
and on the basis of the record, not on impermissible racial
considerations. Unlike the plaintiffs in McElroy, supra,
plaintiff herein was given repeated opportunity to be
heard and either exercised these opportunities or waived

his right to do so. [Id. at 6-7] Next the defendants challenged the assertion in the complaint that Mr. Guthrie was empowered to direct and supervise the employment practices of the Capitol Police. Rather, they said, the Chief, by direction of the entire Police Board, had that responsibility. "Defendant Guthrie is without authority to do what the Complaint alleges that he did. In fact, he was not even Sergeant at Arms until 1980, after most of the allegedly discriminatory activity took place.[Id. at 8] Since Mr. Guthrie could not, therefore, be guilty of a constitutional infringement, the defendants argued that the case against him should be dismissed.

Finally, the defendants contended that they had acted in good faith and in reasonable belief that their actions were lawful (particularly since they were based on applicable statutes, regulations,

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