Evans v. Wright, 78-1192

Citation582 F.2d 20
Decision Date16 October 1978
Docket NumberNo. 78-1192,78-1192
PartiesBoyd D. EVANS and Lois A. Evans d/b/a Complete Breathing Care, Inc., Plaintiffs-Appellants, v. Doug WRIGHT and Christopher Mulholland, Defendants-Appellees. Summary Calendar. *
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Rothblatt & Barnett, Orlando, Fla., Smith, Asbill, Roach & Nellis, Atlanta, Ga., Bernard D. Sommers, Maitland, Fla., for plaintiffs-appellants.

Boyd D. Evans, Lois Evans, pro se.

William L. Harper, U. S. Atty., Robert J. Castellani, Asst. U. S. Atty., Atlanta, Ga., Carl H. Harper, Regional Atty., Alvin N Jaffe, Asst. Regional Atty., Dept. of HEW, Atlanta, Ga., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before RONEY, GEE and FAY, Circuit Judges.

PER CURIAM:

Plaintiffs, providers of durable medical equipment within the meaning of the Social Security Act, sued employees of the Department of Health, Education and Welfare, alleging they tortiously interfered with plaintiffs' contractual relations with certain Medicare patients. The district court granted defendants' motion for summary judgment, holding them to be protected by official immunity, the acts complained of being within the authority and scope of their employment. We affirm.

Plaintiffs Boyd Evans and Lois Evans, doing business under the name Complete Breathing Care, Inc., supply durable medical equipment, such as respirators, to Medicare patients. Several employees left plaintiffs' employ, allegedly converting some equipment to their own use and serving some of plaintiffs' former clients. The resulting dispute resulted in Medicare receiving double-billing for certain patients. Because of this, defendants Wright and Mulholland, program integrity specialists in the Medicare program, began an investigation. Program integrity specialists have responsibility for monitoring fraud and abuse in the Medicare program.

To prevent this double-billing, defendants took various steps, such as visiting the homes of patients to ask which firm was providing them service. Plaintiffs contend in their complaint and their briefs before this Court that defendants went further than mere investigation. Plaintiffs allege that defendants orally informed patients that the equipment belonged to plaintiffs' former employees, that plaintiffs had no legal right to bill for it, and that the patients should not deal with plaintiffs.

The district court, after examining the affidavits submitted by both sides, granted defendants' summary judgment motion, finding defendants entitled to official immunity. The court noted that federal officials are no longer entitled to absolute official immunity in actions for violations of Constitutional rights, a view just recently confirmed by the Supreme Court's decision in Butz v. Economou, --- U.S. ----, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). Where, on the other hand, the suit is for ordinary Tort claims, the district court held that the doctrine of official immunity still applies. This is a correct statement of the law of this Circuit. See Peterson v. Weinberger, 508 F.2d 45, 50-51 (5th Cir.), Cert. denied, 423 U.S. 830, 96 S.Ct. 50, 46 L.Ed.2d 47 (1975).

Peterson, a case very similar to the present one is almost directly on point. We there held that HEW...

To continue reading

Request your trial
44 cases
  • Shepard v. Byrd, Civ. A. No. C81-194R.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • 10 Febrero 1984
    ...in other contexts"). 10 Butz immunity applies only in actions involving alleged violations of constitutional rights. See Evans v. Wright, 582 F.2d 20, 21 (5th Cir. 1978). 11 Federal law controls this determination. See Jones v. Taber, 648 F.2d 1201, 1203 (9th Cir. 12 Most cases which are ta......
  • Lojuk v. Quandt, 82-1084
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 19 Julio 1983
    ...certiorari denied, 450 U.S. 1029, 101 S.Ct. 1738, 68 L.Ed.2d 224; Granger v. Marek, 583 F.2d 781 (6th Cir.1978); Evans v. Wright, 582 F.2d 20 (5th Cir.1978). Medical decisions made by a treating physician may not be comparable to the policy decisions absolute immunity was meant to protect. ......
  • White v. Franklin, DC85-34-NB-O.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Mississippi
    • 27 Mayo 1986
    ...official's line of duty. Barr v. Matteo, 360 U.S. 564, 575, 79 S.Ct. 1335, 1341, 3 L.Ed.2d 1434, 1443 (1959); see also Evans v. Wright, 582 F.2d 20, 21 (5th Cir.1978). However, as to constitutional and statutory torts, most federal employees possess only qualified immunity. 1. Ordinary Tort......
  • Sami v. U.S., 78-1975
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 28 Diciembre 1979
    ...Economou. See Miller v. DeLaune, 602 F.2d 198, 200 (9th Cir. 1979); Granger v. Marek, 583 F.2d 781, 784 (6th Cir. 1978); Evans v. Wright, 582 F.2d 20, 21 (5th Cir. 1978). See also Birnbaum v. United States, 588 F.2d 319, 332 (2d Cir. 1978); Tigue v. Swaim, 585 F.2d 909, 913 (8th Cir. 1978);......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT