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Appeals Court Rejects Air Controller’s Arguments

December 24, 1985

Undated (AP) _ WASHINGTON (AP) - The U.S. Court of Appeals ruled Tuesday that a District of Columbia magazine did not libel an air traffic controller when it reported a government conclusion that he had been partially responsible for a fatal airliner crash even though he had been cleared of negligence in a private lawsuit.

A three-judge appeals court panel upheld the decision of U.S. District Judge Harold H. Greene, but said he was wrong in concluding that the Washingtonian Magazine was not liable because it was reporting on an official government proceeding.

The appeals court said Merle W. Dameron was a public figure, although an involuntary one.

Greene had ruled that Dameron, the sole air traffic controller on duty on the day a TWA plane crashed into Mt. Weather in 1974, was not a public figure nor a public official.

The district judge dismissed the Dameron suit, ruling that the magazine did not libel him in a 1982 story about the Air Florida crash into the Potomac River. In that article, the magazine said air traffic controllers ″have been assigned partial blame in a few accidents,″ including the 1974 accident into Mt. Weather in Virginion on an approach to Dulles Airport into Washington.

The National Transportation Safety Board determined that the Mt. Weather crash was primarily the result of the plane’s descent to a low altitude but said a contributing cause was the issuance of an approach clearance when the plane was 44 miles from Dulles on an unpublished route without clearly defined minimum altitudes.

In District court, Dameron conceded that the Washingtonian correctly reported the board’s decision. He argued, however, that the magazine should have reported the name of the body making the decision and should have reported his clearance in a private suit.

″By sheer bad luck, Dameron happened to be the controller on duty at the time of the Mt. Weather crash,″ wrote Judge Abner J. Mikva, in a 14-page decision. ″He became embroiled, through no desire of his own, in the ensuing controversy over the causes of the accident.

″He thereby became well known to the public in this one very limited connection.

″Paradoxically, the magazine article never mentions Dameron’s name or other identifying characteristics. If Dameron had not been previously linked with accounts of the tragedy, no magazine reader could tie the alleged defamation to Dameron. Indeed, it was partly because of the defendant’s public notoriety that he was identifiable at all from the oblique reference in The Washingtonian,″ the court said.

″We therefore conclude that (Dameron) was an involuntary public figure for the very limited purpose of discussion of the Mt. Weather crash. The circumstances in which an involuntary public figure is created will, we are confidant, continue to be few and far between.″

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