UNITEQ STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) } ) ) ) ) ) ) ) MEMORANDUM ORDER

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1 UNITEQ STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JOHN YIAMOUYIANNIS, v. Plaintiff MARVIN A. SCHNEIDERMAN, Defendant } MEMORANDUM ORDER CA Fl LED ;-: =:-Q r - :>( :._._, c, l~tu.i.c..:.::.s F. L,:.,_:~ Y, C!c:-k This is an action in which the plaintiff seeks to recover damages for defamation. The case is now before the Court on defendanfs motion to dismiss, or in the alternative, for swnmary judgment and the plaintiff's motion for summary judgment in which he seeks to have the court enter judgment on the question of liability.!/ Plaintiff has also filed a motion for discovery. Very briefly, the underlying facts are as follows: Plaintiff is a biochemist and a epidemiologist by profession and is a Science Director of the National Health Federation, "an organization dedicated to the promotion of health freedoms thro~ghout the United States". ~/ Defendant is a statistician and epidemiologist and is the Associate Director \ of the National Cancer Institute, an agency of the United States, who is being sued in his capacity "as a private individual citizen". Y!/ Plaintiff's motion is more properly characterized as a motion for partial summary judgment. At the hearing held on January 25, 1980, plaintiff conceded that his motion could not be granted on the present record. '!:../ Amended Complaint,11. '}_/ Amended Complaint,12.

2 - 2 - Both parties testified between March and July 1978 before the Allegheny County Court of Common Pleas in Pittsburgh, Pennsylvania, in a case captioned Aitkenhead v. Borough of West View, Civil No The plaintiffs in Aitkenhead had brought that action in order to obtain an injunction prohibiting the fluoridation of drinking water. Plaintiff in this action testified as an expert witness for Aitkenhead and the defendant testified as an expert for the Borough of West View. The Pennsylvania court entered a preliminary injunction on November 6, On or about that date, the defendant was approached by representatives of the news media for his comments concerning the granting of the preliminary injunction and purportedly stated that the Burk-Yiamouyiannis study!/ failed to adjust for age, race, sex and geographic factors. Plaintiff contends that he did mak~ such adjustments and the fact that he did so was known to the defendant when he made his statement to the media. V Plaintiff charges the defendant spoke with a wilful and reckless disregard for the truth and that he spoke with "personal spite" and "ill will" and with malice. 4/ Dr. Burk was a co-author of the report on which plaintiff Eased some or all of his testimony concerning fluoridation of public drinking water. 5/ Although this Court does not have a copy of the transcript Tn the Aitkenhead case, plaintiff has cited the Court to certain portions of the transcript during which the defendant was cross-examined concerning his testimony that the plaintiff had failed to adjust for age, race, sex and geographic factors. The quoted testimony makes it appear the defendant recognized that the plaintiff may have made some adjustments for those factors but there still appears to be a dispute as to how those factors should have been utilized.

3 - 3 - I The defendant moves to dismiss the amended complaint on the grounds that the plaintiff has brought suit against a public official and has not served the United States as provided by Fed. R. Civ. P. 4(d (5. Defendant relies primarily on Lawrence v. Acree, 79 F.R.D. 669 (D DC 1978 in support of his motion to dismiss. Plaintiff contends that service under Rule 4(d (5 is unnecessary since the defendant is being sued only in his individual capacity. This Court views the above case as being distinguishable from that presented here. When federal officials are sued only in their individual capacity and when plaintiff does not attack an official order or seek relief which would require some official act or response, Rule 4(d (5 does not apply. See Reif v. Gasch, 167 U.S. App. D.C. 238, 242, 511 F.2d 804, 808 (1975 (concurring opinion; Griffin v. Nixon, 518 F.2d 1195, 1196 (2d Cir. cert. den. 423 U.S (1975; Green v. La.ird, 357 F. Supp. 227, 229 (ND Ill. 1973; 2 Moore's Federal Practice, at (2d ed. 1979; 4 Wright & Miller, Federal Practice and Procedure, 1107 at 421 (1969. In Lawrence, the plaintiff purported to sue the defendants in their individual capacity but the relief requested was directed to actions at least colorably in their official capacity and the relief, if granted, would appear to have required some official action.~/ 79 F.R.D. at 670. ~/ Plaintiff complained of withheld pay increases, unjustified audits and investigations of plaintiff's activities as Regional Commissioner, unjustified proposed removal of plaintiff from his official position and unjustified "poor" evaluation of plaintiff's performance as Regional Commissioner.

4 - 4 - Here, while the amended complaint describes defendant as being an employee of government agency, plaintiff states that he sues defendant in his individual capacity and seeks to recover relief and damages only against the defendant. For these reasons, service is not required under Rule 4(d (5 upon the United States and the motion to dismiss on that grounds must be denied. II Defendant next moves for summary judgment based on his contention that the statements which are the subject of the action were within the outer perimeter of his line of duty; and that he is therefore entitled to absolute immunity. See Barr v. Mateo, 360 U.S. 564, 575 (1959; Expeditions Unlimited Acquatic Enterprises, Inc. v. Smithsonian Institution, 184 U.S. App. D.C. 397, 566 F.2d 289, cert. den. 438 U.S. 15 (1977. The defendant's statement of material fact in which he contends there are no genuine issues of fact and his supporting affidavits reveal that the defendant's job responsibilities included disseminating information to the public on cancer causes and prevention, that the Pennsylvania action was brought to enjoin the West View Water Authority from the fluoridation of its public water supply, that an issue arose as to the causal relationship between fluoridation and an increase in the incidents of cancer observed in the area, and that defendant testified in response to a request by the division of Dental Resources of the United States Public Health Service. At the time he testified his salary was paid by the National Cancer Institute and he received no fee or honoraria. He testified in his official capacity as a spokesman for the National Cancer Institute.

5 9/ Plaintiff also argues that the interview and presumably the testimony of defendant was not authorized by the controlling statute, 42 U.S.C. 241 and 282, however this Court concludes that the statements and testimony do not fall without the limits of that When the decision was rendered, he was contacted by the news media for his comments on the judge's ruling and during the course of that interview he discussed his testimony in statements which have given rise to the present litigation. The above facts, which are unrebutted, support a determination that the statements made by the defendant were within the ambit of his official duties. He was called to testify due to his work in the area of fluoridation and cancer with the National Cancer Institute. He has served as the primar y spokesman for the Institute on the issue of fluoridation of public drinking water and when the media request information from the Institute concerning fluoridation, they are often referred by the Institute to the defendant as the spokesman for the Institute on this issue. 7/ Under these facts it is clear that plaintiff's statements were made in his official capacity, were certainly within the outer perimeter of his duties and thereby entitled him to absolute immunity.~/ Plaintiffs further contention that defendant is not entitled to absolute immunity in view of the decision in Butz v. Economou, 438 U.S. 478 (1978}, is misplaced since the plaintiffs- in that case alleged an infringement of constitutional rights and further, the action by the federal officer fell without the line of duty. V?.J Van Neve 1 Dec 1 a ration, 11, / The defendant's allegations have not been rebutted by the affidavits filed by the plaintiff. See Fed. R. Civ. P. 56(e. Additionally, the plaintiff has failed to file a statement of material facts to which there is a genuine issue.

6 - 6-0 RD E R It is hereby ORDERED that the plaintiff's motions for summary judgment and for discovery shall be denied, and it is further ORDERED that the defendant's motion to dismiss shall be denied, and it is further ORDERED that the defendant's motion for summary judgment shall be granted and that this case shall be dismissed with prejudice. Appropriate Orders shall enter. Dated: February S--, 1980 HN GARRETT PENN United States District Judge

7 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JOHN YIAMOUYIANNIS, Plaintiff v. CA FILED MARVIN A. SCHNEIDF;~N, Defendant F I - ~ H ~. -,~r:; 1 '..,. - \,,,-./'~., 0 R D E R ~...\:!.:_ :'..-.. ft. '- '...'. Pursuant to the Court's Memorandum Order of February _5_ 1980, it is hereby ORDERED that the plaintiff's motion for summary judgment and for discovery are denied, and it is further ORDERED that the defendant's motion to dismiss is denied and it is further ORDERED that the defendant's motion for summary judgment is granted, and it is further ORDERED that his case is dismissed with prejudice. Dated: February 6~, 1980 ETT PENN States District