Tigue v. Swaim, 77-1349

• Decision Date: 20 October 1978
• Docket Number: No. 77-1349,77-1349
• Citation: 585 F.2d 909
• Parties: Dennis TIGUE, Appellant, v. T. J. SWAIM, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 909

585 F.2d 909

Dennis TIGUE, Appellant, v. T. J. SWAIM, Appellee.

No. 77-1349.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 17, 1977.

Decided Oct. 20, 1978.

R. David Lewis, Little Rock, Ark., for appellant.

Fletcher Jackson, Asst. U. S. Atty., Little Rock, Ark., argued, and W. H. Dillahunty, U. S. Atty., on brief, for appellee.

Before GIBSON, Chief Judge, HEANEY, Circuit Judge, and HUNTER, District Judge. ^*

HEANEY, Circuit Judge.

Dennis Tigue brought a diversity action against T. J. Swaim for libel and false imprisonment. Tigue was a captain in the Air Force, stationed at the Little Rock Air Force Base, when the events giving rise to this action occurred. Swaim was a colonel in the Air Force and Base Hospital Commander. The libel count was based on memoranda that Swaim sent to Dr. Frank Westerfield, a civilian psychiatrist, and to the Keesler Air Force Base Mental Ward. The false imprisonment count was based on an order from Swaim requiring Tigue to be confined in a mental hospital for evaluation. On March 21, 1977, the District Court, after a hearing, granted Swaim's motion for summary judgment and dismissed Tigue's complaint. It found that Swaim acted in good faith and without malice. It found, alternatively, that the acts and statements of Swaim were absolutely privileged under Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959). On appeal, Tigue argues that Swaim is entitled to only a qualified immunity which protects only those acts undertaken in good faith, and that the District Court's finding of good faith was unjustified since there was evidence from which a jury could find bad faith and malice. We affirm.

While at the Little Rock Air Force Base, Tigue was asked to contribute one dollar each month to a fund used to purchase coffee mugs for departing officers. Contributions were also sought from all of the officers in Tigue's squadron. Tigue objected to this practice and expressed his desire to be left out of the program. Tigue's squadron commander, however, repeatedly asked Tigue for a contribution. He stated at an officers' meeting that Tigue was five months delinquent in his contributions. Tigue filed an administrative complaint with the Inspector General's office against his squadron commander alleging that these solicitations violated Air Force Standards of Conduct. ¹ The response to this complaint, dated October 24, 1974, recommended that the practice be stopped. Tigue expressed his dissatisfaction with this response and requested that his complaint be forwarded to higher authorities.

Later that day, Tigue was summoned to the office of the base commander, Colonel O'Neil. O'Neil expressed unhappiness with Tigue's decision to forward the complaint. He said that it would give the impression that he was unable to deal with the problem at the local level. Tigue indicated that he would go forward with the complaint notwithstanding O'Neil's comments.

On October 31, 1974, Swaim, a neighbor of O'Neil, contacted Tigue. Swaim stated that O'Neil wanted Tigue scheduled for a mental evaluation pursuant to the Human Reliability Program (HRP). The purpose of the program is to select and keep only physically sound and emotionally stable personnel in a position to control, handle or launch nuclear weapons. It applies to those "individuals in, or working with, the Air Force * * * who are presently assigned, or selected to be assigned, to duties involving the control, handling, access to, or control over access to nuclear weapons and weapon systems." AFR 35-99, P 1-1. Tigue was a missile maintenance officer and a member of a nuclear launch crew. He had been certified under the HRP. Swaim served as Medical Staff Advisor for the HRP. He was responsible for the initial screening, continual evaluation and treatment of those persons in the program. Swaim had the authority to investigate alleged mental or physical abnormalities and to remove from duty any person suspected of being "unreliable."

Swaim scheduled an appointment for Tigue with a Reserve psychiatrist for November 20, 1974. Tigue objected to the evaluation since no reasons were given for it and he did not keep the appointment. On November 22, 1974, Swaim removed Tigue from the HRP for medical reasons. ² While the record is unclear, it also appears that Tigue was removed from his duties with the missile squadron.

Tigue was given a psychiatric evaluation on November 25, 1974, by Lieutenant Lewis Wagaman, a social worker who reported to Swaim. Wagaman recommended that Tigue be further evaluated. The mental health clinic at the base then set up an appointment for Tigue with Dr. Wanda Stephens, a civilian psychiatrist, regularly used by the airbase to evaluate personnel. Swaim cancelled that appointment and arranged another one with Dr. Frank Westerfield, a retired colonel who graduated with Swaim from the University of Arkansas Medical School. Westerfield was not a doctor regularly used by the base. Swaim sent Westerfield a letter which contains the statements allegedly defaming Tigue. ³ Westerfield, however, was not given Tigue's medical file. Westerfield examined Tigue on November 30, 1974, but deferred diagnosis.

In his report to Swaim, Westerfield stated that Tigue was adjusting to a thyroid condition. Since emotional disruptions are common during such times, he recommended a ninety-day observation period. It appears that this was done to prevent an inaccurate diagnosis stemming from a temporary behavior pattern. Westerfield suggested further evaluation if Tigue displayed any emotional problems at the end of the observation period.

Westerfield's statement that Tigue was adjusting to a thyroid condition in November, 1974, was admittedly false. Tigue had been treated for hyperthyroidism during June of 1973. He was closely monitored during this period by Major Richard E. Bates, Chief of Medical Services, at the Little Rock Air Force Base. Bates stated, in a letter to Swaim dated March 6, 1974, that Tigue's physical status was normal after December, 1973, and that he displayed no symptoms of either hypo or hyperthyroidism. Swaim conceded at the hearing on the motion for summary judgment that Tigue had not demonstrated any evidence of thyroid problems after December, 1973.

In early March, 1975, Tigue was examined by Dr. Wanda Stephens pursuant to the original recommendation of Westerfield. She concluded that there was no reason why Tigue should be kept off of the HRP and questioned why the decision to remove him was made in the first place. She recommended a more thorough evaluation prior to reinstatement under the mistaken impression that Westerfield, rather than Swaim, had removed Tigue from the HRP. ⁴ The recommendation was made solely to give some deference to what Stephens thought was Westerfield's decision.

Tigue was ordered to Keesler Air Base for a complete mental evaluation on March 20, 1975. Swaim stated that he felt it was necessary to have the approval of the Air Force psychiatrist before Tigue was returned to the HRP. In conjunction with Tigue's evaluation at Keesler, Swaim prepared and forwarded a report that is also alleged to have libeled Tigue. ⁵ Tigue was confined in the mental ward at Keesler for twenty-two days. During this time, he was subjected to intense observation. The result of the evaluation was that Tigue suffered from no psychiatric disorder. The medical report noted that Tigue's current difficulties stemmed from his refusal to contribute a dollar a month to the officers' coffee mug fund and from his decision to pursue an administrative complaint against further solicitations. The report concludes with the prognosis that:

(t)he patient is qualified for worldwide and stateside duty. The patient has no social or industrial impairment that would prevent him from ably carrying out his military duty. The patient is also qualified for the Human Reliability Program.

Tigue was subsequently restored to HRP status.

The District Court determined that summary judgment was appropriate because Swaim's actions were done in good faith and without malice. It erred in so doing. Summary judgment is appropriate only if the moving party can show that there is no genuine issue as to any material fact and that he is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). A court must view the facts most favorably to the party opposing the motion and give that party the benefit of any reasonable inferences to be drawn from the facts. Unlaub Co., Inc. v. Sexton, 568 F.2d 72, 76 (8th Cir. 1977); Kelsey v. State of Minn.,565 F.2d 503, 506 (8th Cir. 1977). The facts clearly permitted the inference that Swaim punished Tigue for refusing to contribute to the coffee mug fund and filing complaints against his superiors.

The District Court, alternatively, held that summary judgment was appropriate because Swaim was entitled to absolute immunity from suit even if he acted in bad faith and with malice. The court stated, during the hearing, that military officers have absolute immunity if they act within the outer perimeters of their official duties. It also stated that even if absolute immunity did not exist for military officers in general, that absolute immunity was required in this case where "the whole issue is the qualification of an officer to work in the highly sensitive area relating to nuclear power in terms of national defense."

The extent of Swaim's immunity in this action depends on the applicability of the recent decision of the Supreme Court in Butz v. Economou, --- U.S. ----, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). In Butz, a commodity futures commission merchant brought suit against numerous Department of Agriculture officials following proceedings in which the Department sought unsuccessfully to revoke or suspend the registration of the merchant's company. The government argued that all of the federal officials were absolutely immune from any liability for damages even if, in the...