Bush v. Lucas, 77-1615

• Citation: 598 F.2d 958
• Decision Date: 12 July 1979
• Docket Number: No. 77-1615,77-1615
• Parties: William C. BUSH, Plaintiff-Appellant, v. William R. LUCAS, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 958

598 F.2d 958

William C. BUSH, Plaintiff-Appellant, v. William R. LUCAS, Defendant-Appellee.

No. 77-1615.

United States Court of Appeals Fifth Circuit.

July 12, 1979.

Harvey Elrod, Decatur, Ala., for plaintiff-appellant.

J. R. Brooks, U. S. Atty., Henry I. Frohsin, Asst. U. S. Atty., Birmingham, Ala., for defendant-appellee.

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

Before GODBOLD, SIMPSON and RONEY, Circuit Judges.

RONEY, Circuit Judge:

In this action for damages against the director of a federal space flight center for alleged defamation and an alleged retaliatory demotion in violation of First Amendment protections, the district court granted defendant's motion for summary judgment on the grounds that he was shielded by absolute immunity under Barr v. Matteo, 360 U.S. 564, 571, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), and that plaintiff had no constitutional cause of action in view of the available administrative remedies under the Civil Service Commission regulations. 5 C.F.R. §§ 752.201-752.402 (1974).

Subsequent to the issuance of the district court's summary judgment, the Supreme Court decided Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1979), involving immunity of federal officials from suit. At the time of oral argument in this case the Supreme Court had also granted a petition for certiorari in our En banc decision in Davis v. Passman, 571 F.2d 793 (5th Cir. 1978), in which this Court had denied an implied cause of action in a sex-based employment discrimination suit for damages against a member of Congress. We withheld decision of this case pending the Supreme Court's review of Davis v. Passman.

The Supreme Court has now reversed the En banc decision in Passman and, with a detailed opinion, --- U.S. ----, 99 S.Ct. 2264, 60 L.Ed.2d 846 held the plaintiff had a constitutionally implied cause of action for damages for an alleged violation of the equal protection component of the due process clause of the Fifth Amendment. Because Butz v. Economou Affords the defendant immunity in the defamation part of this claim, and the rationale of Davis v. Passman forecloses a cause of action for damages under the circumstances of this case, we affirm the denial of relief by the district court.

Plaintiff, William C. Bush, is an aerospace engineer and for several years had been a civil service employee at Marshall Space Flight Center. In an interview on Huntsville Television Station WHNT, Bush stated that he was not productively employed. The same day, The Huntsville Times quoted Bush as having said that his position at the Space Flight Center was "a falsehood, a travesty and worthless." Nearly a month later Bush appeared on another WHNT-TV interview in which he made statements to the effect that he had meaningful work to do only a small percentage of each day. Mr. Bush's various statements were disseminated nationally by the wire services and appeared in newspapers in at least three states other than Alabama.

In commemoration of the Marshall Space Flight Center's fifteenth anniversary, defendant William R. Lucas, the director of the Center, presided at a press conference held several weeks following plaintiff Bush's second televised interview. After what Bush asserted was the conference's conclusion, a WHNT television reporter asked Lucas to respond to Bush's charges that he did not have enough meaningful work to do. Bush claims he was labeled a liar by Lucas' reply that "I have had (Bush's) statement investigated and I can say unequivocally that such a statement has no basis in fact."

Personnel action was initiated several months after Lucas made the alleged defamatory statement to remove Bush from his position. After a hearing, Lucas, as deciding official, notified Bush of his reduction in grade from GS-14 to GS-12. Bush appealed the adverse action to the United States Civil Service Commission, which sustained the agency's action.

Plaintiff Bush commenced this action in state court, and on motion by defendant Lucas the case was removed to federal court. Plaintiff sought damages from Lucas for the allegedly false statements Lucas made about Bush on June 25, 1975, and for Bush's demotion as a federal government employee, with attendant reduction in salary. Bush alleged that his demotion and Lucas' comments were motivated by Lucas' malicious intent to punish Bush for public comments he had made about his job.

Defamation Claim

The district court held that defendant Lucas is protected by absolute official immunity from liability for the defamation claim. Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959). Plaintiff Bush argued if any immunity is available it is qualified by a good faith standard. Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1979).

For purposes of deciding the motion the district court assumed as true plaintiff's allegation that Lucas' press statement was false, motivated by malice and that summary judgment for defendant Lucas would be appropriate only if he was protected by absolute immunity.

Viewing Barr v. Matteo, supra, as controlling, the district court concluded Lucas was entitled to absolute immunity as to any claim based on his statements to the press. In Barr the Supreme Court held that, despite allegations of malice, statements made by a federal executive official within the "outer perimeter" of his line of duty fall within the privilege of absolute immunity against defamation actions.

Barr involved a press release by Government officials announcing an intention to suspend the plaintiffs because of the part which they had played in formulating a plan for utilization of certain agency funds. Plaintiffs sued for libel, alleging malice. The Court said it had granted certiorari to decide the precise issue of whether the defendant's "claim of absolute privilege should have stood as a bar to maintenance of the suit despite the allegations of malice made in the complaint." 360 U.S. at 569, 79 S.Ct. at 1338. The Court then held that "(t)he fact that the action here taken was within the outer perimeter of petitioner's line of duty is enough to render the privilege applicable, despite the allegations of malice in the complaint." 360 U.S. at 575, 79 S.Ct. at 1341.

We are unable to distinguish the instant case from Barr. Lucas' statement to the press fell well within his duties as director of the space center. Although Bush's complaint alleges that Lucas' statement was beyond the "outer perimeter" of his duties, plaintiff offered no evidence to support his conclusion. Defend...