UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

REX BAUMBACK,
Plaintiff-Appellant,

v.
                                                                    No. 97-2316
AMERICAN BROADCASTING COMPANIES,
INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-97-199-A)

Argued: May 7, 1998

Decided: August 13, 1998

Before MICHAEL and MOTZ, Circuit Judges, and
TRAXLER, United States District Judge for the
District of South Carolina, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Thomas Patrick Dugan, SUROVELL, JACKSON,
COLTEN & DUGAN, Fairfax, Virginia, for Appellant. Kevin Taylor
Baine, WILLIAMS & CONNOLLY, Washington, D.C., for Appellee.
ON BRIEF: R. Hackney Wiegmann, Robert A. Van Kirk,
WILLIAMS & CONNOLLY, Washington, D.C.; Stephanie S.
 5130 35 12 Abrutyn, ABC, INC., New York, New York, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Rex Baumback ("Baumback") appeals the district court's grant of
summary judgment to ABC News ("ABC") in his suit against ABC
for libel. Having determined that Baumback was both a "public offi-
cial" and a "public figure," the district court granted summary judg-
ment on the ground that Baumback failed to offer any evidence that
ABC acted with "actual malice." We affirm.

I.

Baumback's suit against ABC was occasioned by a reference made
to Baumback in the "It's Your Money" report (the "Report"), a part
of ABC's television news program "World News Tonight with Peter
Jennings" on September 2, 1996. The subject of the Report for that
evening was the alleged mishandling of certain timber contracts by
officials of the United States Forest Service ("Forest Service") in
charge of California's Eldorado National Forest ("Eldorado" or the
"Forest"). At the time of these contracts, Baumback was the Timber
Management Officer and Contracting Officer for timber sales in
Eldorado. At the time of the broadcast, however, he had become a
Timber Sale Contract and Appraisal Specialist in the Forest Service's
headquarters in Washington, D.C. The timber contracts that were the
subject of the Report were noteworthy because the Forest Service
later cancelled them, creating a tremendous amount of legal exposure
for the United States.

The Forest Service first approved the sale of certain tracts of
Eldorado timber beginning in the early 1980s. At that time the neces-
sary environmental assessment, a prerequisite for the sale of any
federally-owned timber, was performed for these tracts, but the Forest
Service decided later that the approved sales should be "shelved."
When the tracts were finally put on the market in 1992, the decision

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to sell them was not reevaluated under more current environmental
standards. The Forest Service nevertheless entered into some sixteen
contracts to sell the Eldorado timber.

The failure of the Forest Service to reevaluate the sales drew fire
from environmental groups, who argued that these sales were illegal
under newer environmental standards. Unconvinced, the Forest Ser-
vice officials in charge of Eldorado determined that reapproval was
not required, and they contracted to sell the tracts anyway. As Timber
Management Officer and Contracting Officer for Eldorado, Baum-
back was intimately involved in this decision-making process and
soon found himself at the center of the controversy surrounding the
timber contracts.

As a result of this controversy, Forest Service officials agreed in
December 1992 to reconsider the sales. In the spring of 1993, a total
of twenty-four contracts for the sale of Eldorado timber, including the
sixteen entered into in 1992, were cancelled. Because of these cancel-
lations, various timber companies brought breach of contract and
related claims against the United States. Those claims, potentially
totaling $24 million, remain unresolved.

After the cancellation of the Eldorado contracts, media attention
focused on Baumback as one of the Forest Service officials responsi-
ble for the aborted sales. On January 30, 1994, The Fresno Bee identi-
fied Baumback as "the agency official responsible for preparing the
disputed sales," and reported Baumback's statement that new environ-
mental evaluations of the disputed tracts were not performed "because
he [Baumback] and his colleagues . . . had misinterpreted the require-
ments." J.A. 312. Further, an April 1994 article in Sacramento's The
Business Journal profiled Baumback as the "Tree Rex" of Eldorado,
quoting Baumback's statement that his main responsibilities at
Eldorado were "to prepare timber sales ... [and] administer timber sale
contracts." J.A. 312.

According to the Forest Service's official description of Baum-
back's position as Timber Management Officer for Eldorado, Baum-
back was "responsible for providing the leadership, coordination and
direction for the overall timber management program." J.A. 238. In
Baumback's curriculum vitae, he stated that, as Contracting Officer

                    3
for Eldorado, he was responsible for "all contract actions by the gov-
ernment." J.A. 233. And in his position at national headquarters as
Timber Sale Contract and Appraisal Specialist for the Forest Service
as a whole -- the position he held at the time of ABC's broadcast --
Baumback's duties included "developing national policy related to
timber sale contracts and timber sale appraisals." J.A. 234. By his
own admission, at least by the time of the broadcast, Baumback had
become "the man" with regard to national policies governing timber
sale contracts and appraisals.

Based on Baumback's prominent position in the controversy sur-
rounding the cancelled Eldorado contracts and the significance of his
subsequent position in Washington, D.C., ABC decided to feature
Baumback in the Report. In preparing the Report, ABC made use of
Baumback's job descriptions, news articles featuring Baumback as
the primary source behind the decision not to reevaluate the disputed
sales of Eldorado timber, and a "white paper" produced by the group
Public Employees for Environmental Responsibility ("PEER") that
harshly criticized Baumback's handling of the sales. In addition, the
producers of "It's Your Money" interviewed or attempted to interview
those involved in the dispute.

The result was a segment, approximately two and one-half minutes
in length, that featured a reporter's explanation of the cancelled sales,
as well as comments from two critics of the Forest Service's handling
of these contracts. Baumback, who would not consent to an interview,
was cited as "[t]he timber manager who pushed through the[ ] sales."
J.A. 232.

The statement, however, that specifically gave rise to Baumback's
defamation action was contained in ABC's "bumper" that preceded
the Report. Immediately before a commercial break, Catherine Crier,
the host of "World News Tonight with Peter Jennings" for that eve-
ning, stated:

          When we come back the $25 million mistake and the
          bureaucrat who got away with it. It's your money.

J.A. 231. Following the commercial break, the Report made clear that
Baumback was the "bureaucrat" referred to in the bumper.

                     4
Baumback filed suit in Virginia state court, alleging the statement
that he was the "bureaucrat who got away with it" was defamatory.
ABC removed the suit to federal court and, after extensive discovery,
moved for summary judgment. The district court granted ABC's
motion, and this appeal followed.

II.

In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the
Supreme Court established "a federal rule that prohibits a public offi-
cial from recovering damages for a defamatory falsehood relating to
his official conduct unless he proves that the statement was made with
`actual malice' -- that is, with knowledge that it was false or with
reckless disregard of whether it was false or not," id. at 279-80. The
district court found that Baumback was a "public official," and that
he had offered no evidence of "actual malice" on the part of ABC.
Our review of these determinations is de novo .

A.

Turning first to the district court's finding that Baumback was a
"public official," we begin with the general rule that "the `public offi-
cial' designation applies at the very least to those among the hierarchy
of government employees who have, or appear to the public to have,
substantial responsibility for or control over the conduct of govern-
mental affairs." Rosenblatt v. Baer, 383 U.S. 75, 85 (1966) (emphasis
added). Thus, our application of the "public official" designation turns
on whether Baumback had substantial responsibility-- actual or
apparent -- for the administration of governmental matters.

In determining if a defamation plaintiff actually had substantial
responsibility for or control over the conduct of governmental affairs,
courts examine whether the plaintiff "made [ ] recommendations, par-
ticipated in [ ] policy determinations, and exercised [ ] discretion."
Arctic Co. v. Loudoun Times Mirror, 624 F.2d 518, 521-22 (4th Cir.
1980). Even without a formal or apparent position as a "public offi-
cial," a person "nevertheless may participate in some governmental
enterprise to such an extent that the policies underlying [New York
Times] would demand that he or she be classified a public official."
Jenoff v. Hearst Corp., 644 F.2d 1004, 1006 (4th Cir. 1981).

                    5
It is equally clear, however, that a government employee may qual-
ify as a "public official" if he merely appears to have substantial con-
trol:

          Where a position in government has such apparent impor-
          tance that the public has an independent interest in the quali-
          fications and performance of the person who holds it,
          beyond the general public interest in the qualifications and
          performance of all government employees, ... the New York
          Times malice standards apply.

Rosenblatt, 383 U.S. at 85-86. "Public official" status can arise when
a defendant "occup[ies] a position inviting scrutiny and discussion
apart from that occasioned by the charges in controversy." Jenoff, 644
F.2d at 1006. As stated by the First Circuit:

          Policymakers, upper-level administrators, and supervisors
          are caught up in the public official net for [this] reason: such
          plenipotentiaries occupy niches of apparent importance suf-
          ficient to give the public an independent interest in the qual-
          ifications and performances of the person[s] who hold[ ]
          [them], beyond the general public interest in the qualifica-
          tions and performance of all government employees.

Kassel v. Gannett Co., 875 F.2d 935, 939 (1st Cir. 1989) (internal
quotation marks omitted) (emphasis added).

In the instant case, the district court conferred"public official" sta-
tus on Baumback because, as Timber Management Officer and Con-
tracting Officer for Eldorado, Baumback was in a position of "`public
trust' that involved administration of substantial public funds." J.A.
157. Although the district court did not expressly state that it found
Baumback to be a "public official" as a result of his actual or apparent
authority, or both, it determined that Baumback exercised discretion
in deciding whether to award or modify contracts and exerted control
over Eldorado's full timber management program. The district judge
also found that Baumback's position as Contract Administration Spe-
cialist in Washington, D.C., involved substantial governmental
responsibilities that rendered him a public official. Likewise, the court
concluded that the public "had an `independent interest in the qualifi-

                     6
cations and performance of [Baumback]'" in his position as Eldora-
do's Timber Management Officer sufficient to make him a public
official. J.A. 158.

We agree with the ultimate conclusion of the district court. Baum-
back was a public official by virtue of his actual and apparent author-
ity. See Rosenblatt, 383 U.S. at 85. With regard to actual authority,
in both his position at Eldorado and at the Forest Service headquarters
in Washington, D.C., Baumback clearly had "substantial responsibil-
ity for or control over the conduct of governmental affairs."* To para-
phrase Arctic, Baumback made recommendations (to the Forest
Supervisor at Eldorado and the senior policymakers in Washington),
he participated in policy determinations (for Eldorado as well as the
Forest Service as a whole), and he exercised discretion (in awarding
contracts to cut Eldorado timber). See Arctic , 624 F.2d at 522.

Indeed, in order to get an idea of the extent of Baumback's actual
responsibility for and control over the administration of government
affairs, one need only look at the government's official descriptions
of his positions with the Forest Service. As Timber Management Offi-
cer for Eldorado, Baumback was charged with "providing the leader-
ship, coordination and direction for the overall timber management
program," and "[a]ct[ing] as the technical review authority for the full
range of activities of the Forest timber management program." J.A.
238. In his capacity as Contracting Officer for Eldorado, Baumback
had "full responsibility for entering into, modifying and administering
[timber] contracts; and resolving appeals and participating in adminis-
trative reviews." J.A. 244. And in his subsequent position at the
national headquarters, Baumback "provide[d] direction for national
policies, standards, guidelines and procedures relating to log export
_________________________________________________________________
*At oral argument, the parties disagreed as to when Baumback must
be shown to have been a "public official." According to Baumback, ABC
must show that he was a "public official" both at the time of the Eldorado
sales and at the time of the broadcast. ABC argued that, although the
proof showed Baumback was a public official on both occasions, only a
showing of public official status at the time of the broadcast was neces-
sary. In light of our holding that Baumback was a public figure both at
the time of the events in question and at the time of the broadcast, we
need not reach this question.

                    7
controls, the Operational phase of timber sales administration, and the
sale and disposal of Forest Products." J.A. 246.

These same official job descriptions also created the appearance
that Baumback's governmental responsibilities were significant.
Notably, the official job descriptions were available to the public.
Indeed, the government's descriptions of these duties were reprinted
in its advertisements of the positions. In fact, ABC used these pub-
licly available descriptions in preparing the Report. And, in his own
curriculum vitae, Baumback maintained the appearance that he
wielded substantial control. In it, Baumback asserted that he was
responsible for Eldorado's entire timber program, as well as all sales
contracts for Eldorado timber. His resume also indicated that in
Washington, D.C., Baumback was "[r]esponsible[for] developing
national policy related to timber sale contracts and timber sale
appraisals." J.A. 234. In fact, he acknowledged in his deposition that
he was "the man" with regard to the entire Forest Service's policies
on timber appraisal and sale. In addition, Baumback's prominent role
in controlling timber sales at Eldorado was frequently in the news,
and there is no record that he objected to being featured as Eldorado's
"Tree Rex" during the controversy surrounding the cancelled sales.
We therefore find that Baumback had substantial responsibility, both
actual and apparent, over the control of government affairs in his
positions in Eldorado and in Washington, D.C.

Baumback, however, argues that our analysis of the"public offi-
cial" question should not focus on his actual or apparent authority, but
rather on his relative position to others within the administrative
structure of the Forest Service. Baumback contends that he is not a
public official for the purposes of this suit because he now works
deep within the bureaucracy of the Department of Agriculture and
because at Eldorado he was a relatively anonymous staff officer. We
find such a "structural" argument unpersuasive.

Although we are aware of scattered opinions that base their confer-
ral of "public official" status on a plaintiff's position within a govern-
mental hierarchy, see, e.g., Lewis v. Elliott, 628 F. Supp. 512, 519
(D.D.C. 1986) (explaining that "public official" status should be
"`limited to high-ranking Government officials'") (quoting Clark v.
Pearson, 248 F. Supp. 188 (D.D.C. 1965)), we find that Baumback's

                     8
relative position is not dispositive. As long as either one of the
grounds asserted in Rosenblatt -- actual or apparent substantial
responsibility for or control over government affairs -- is present, a
plaintiff qualifies as a "public official."

Baumback also contends that his responsibilities as Contracting
Officer -- which Baumback contends was the basis for the district
court's conclusion that he was a public official-- had nothing to do
with the alleged $25 million mistake referenced in ABC's bumper.
Rather, ABC's report indicated Baumback made the mistake in his
capacity as Timber Management Officer, not Contracting Officer.
Thus, Baumback contends that because ABC's statement implying
that he was "the bureaucrat who got away with it" was unrelated to
the source of his public official status, he was not a public official.

We conclude, however, that the distinction between Timber Man-
agement Officer and Contracting Officer is not a crucial one. Having
determined that Baumback's actual and apparent authority with
regard to Eldorado timber sales was comprehensive, our basis for
conferring "public official" status on Baumback is broader than that
of the district court. Moreover, we note that the position of Contract-
ing Officer is included within the official government description of
Timber Management Officer. Accordingly, we conclude that Baum-
back's "public official" status was indeed related to the "mistake"
mentioned in the bumper.

Therefore, we agree with the district court's determination that
Baumback was a "public official." Because we have determined that
Baumback was a "public official," we need not address the district
court's finding that he was also a "public figure."

B.

As a "public official," Baumback can defeat summary judgment
only if he can demonstrate that ABC acted with "actual malice" in
making the allegedly defamatory statement. "Actual malice" exists
when a defamatory statement is made with the "knowledge that it was
false or [made] with reckless disregard of whether it was false or not."
New York Times, 376 U.S. at 280. A defamatory statement made with
reckless disregard of the truth is one made with"a high degree of

                     9
awareness of ... probable falsity." Garrison v. Louisiana, 379 U.S. 64,
74 (1964). Thus, for liability to attach, "[t]here must be sufficient evi-
dence to permit the conclusion that the defendant in fact entertained
serious doubts as to the truth of his publication." St. Amant v.
Thompson, 390 U.S. 727, 731 (1968). In applying the New York
Times malice standard, this circuit has consistently recognized the
substantial burden that must be satisfied in order to establish actual
malice. See, e.g., Church of Scientology Int'l v. Daniels, 992 F.2d
1329, 1334 (4th Cir. 1993) (explaining that "actual malice cannot be
established merely by showing a departure from accepted journalistic
or professional practices"); Ryan v. Brooks , 634 F.2d 726, 733 (4th
Cir. 1980) (requiring "conduct ... so reckless ... that it approaches the
level of publishing a knowing, calculated falsehood").

In the instant case, we agree with the district court's determination
that Baumback failed to produce any evidence of actual malice. The
record reveals that ABC made use of reliable information -- official
job descriptions, government reports, and other media coverage con-
taining information consistent with the official documentation -- in
preparing the Report.

As official documents and media reports demonstrate, both Baum-
back and the Forest Service admitted that those in charge of timber
sales at Eldorado erred in entering into the contracts in question.
Baumback's official job description (which ABC used in preparing
the Report) stated that, as Contracting Officer at Eldorado, he had ple-
nary power over the awarding of timber sales contracts. Further, prior
to ABC's broadcast, Baumback's prominent role in the approval of
the sales had already been featured by the media, most notably in The
Business Journal's "Tree Rex" profile. Thus, we can see nothing neg-
ligent, let alone reckless, in ABC's choice of Baumback to be the
focus of its criticism.

Baumback, however, argues that he presented evidence that ABC
knew that its singling-out of Baumback was wrong. According to
Baumback, an outtake from the Report clearly indicates that ABC
knew that its characterization of him as "the bureaucrat who got away
with it" was inaccurate. The outtake ran as follows:

                     10
          John Martin [ABC correspondent, to Craig Thomas of
          Friends Aware of Wildlife Needs]: In your opinion, who
          was responsible for this?

          Thomas: Ah, there's, ah, the Forest Supervisor is the ulti-
          mate decision-making individual . . . but in that management
          team room, they make that decision as a group, they all lis-
          ten to each other and hear each other's input. The District
          Rangers, the Forest Supervisor, the Planning Officer, and
          [in] particular the Timber Management Officer were all
          pushing, or turning a blind eye to the need to re-evaluate
          these sales.

J.A. 402. Baumback argues that, since he was mentioned as only one
among many "pushing" the sales, this outtake demonstrates that ABC
knew that he was not "the bureaucrat who got away with it."

However, we believe that the outtake does more harm than good
to Baumback's argument in that it clearly singles out Baumback as
the staff member who, "[in] particular," pushed for the sales to be
made. When considered in conjunction with the other evidence ABC
had in its possession -- official job descriptions, government reports,
and other media coverage of the controversy consistent with official
records -- this outtake appears to corroborate the fact that Baumback
was indeed the Forest Service official most responsible for the timber
sales going forward. Therefore, we find that the outtake does not con-
stitute evidence that ABC acted with reckless disregard of the truth
or falsity of the assertions made in the Report, and affirm the district
court's conclusion that Baumback did not present sufficient evidence
that ABC acted with actual malice.

III.

Because we agree with the district court's findings that Baumback
is a "public official" who failed to demonstrate "actual malice" on the
part of ABC, we conclude that summary judgment was warranted.
Accordingly, we affirm the district court's order granting summary
judgment.

AFFIRMED

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