Chafin v. Pratt, No. 22343.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: BROWN, WISDOM and THORNBERRY, Circuit
• Parties: Mrs. Frances B. CHAFIN, Appellant, v. Dr. Harry D. PRATT et al., Appellees.
• Decision Date: 13 April 1966
• Docket Number: No. 22343.

358 F.2d 349 (1966)

Mrs. Frances B. CHAFIN, Appellant,
v.
Dr. Harry D. PRATT et al., Appellees.

No. 22343.

United States Court of Appeals Fifth Circuit.

March 16, 1966.

Rehearing Denied April 13, 1966.

358 F.2d 350

G. Seals Aiken, Atlanta, Ga., for appellant.

Edward Berlin, Sherman L. Cohn, Attys., Dept. of Justice, Washington, D. C., John W. Douglas, Asst. Atty. Gen., Charles L. Goodson, U. S. Atty., Dept. of Justice, Washington, D. C., for appellees.

Before BROWN, WISDOM and THORNBERRY, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

This is a head-on, but belated, attack on the doctrine of official executive immunity espoused by the Supreme Court in Barr v. Matteo, 1959, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434,¹ and adhered to by this Court in decisions both before² and after³ Barr.⁴ Again the attack fails, for the only thing novel about it is an allegation based on Greene v. McElroy, 1959, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed. 2d 1377, that appellant was denied procedural

358 F.2d 351

due process, a question which we hold is not proper for consideration at this time nor in this lawsuit

Appellant instituted this suit in the Georgia State Court against employees⁵ of the Federal Government seeking a money judgment for libel and slander predicated on acts of these employees which culminated in her involuntary retirement for disability from her position as a secretary with the Vector Control Services Training Section of the Public Health Service's Communicable Disease Center in Atlanta. The gist of this common-law tort action was that defamatory statements and writings were made by Defendants and sent to appellant and others asserting in effect that appellant was mentally disturbed and unfit for her job, and that Defendants forced her to be examined by a psychiatrist upon pain of being retired if she refused. From the exhibits attached to appellant's complaint, it is obvious that all of the alleged statements relied upon were contained in official intragovernment memoranda, letters, or reports.

The Defendants removed the suit without objection to the Federal District Court.⁶ Upon removal, appellant amended her complaint to allege that the same actions constituted a conspiracy to deprive her of civil rights in violation of 42 U.S.C.A. § 1985. Her principal ground for this allegation was that she was deprived of the right to a hearing and to the confrontation of witnesses prior to her involuntary retirement.

Defendants, in support of a motion for summary judgment, submitted affidavits and exhibits which showed that all of the acts complained of were performed by them as official duties pursuant to government regulations.⁷ Appellant submitted

358 F.2d 352

counter affidavits of herself, her husband, and a business acquaintance. But none of these denied factually that the Defendants had acted within the scope of their official duties. Rather, each merely recited facts showing in affiant's view these Government employees had wrongfully and erroneously determined her to be disabled

Under these circumstances we agree with the District Judge that there was no genuine issue as to the fact that Defendants' acts were in the performance of official duties, that absolute immunity from personal tort liability shielded these acts, and that there has been no denial of Appellant's civil rights. We, therefore, affirm the summary judgment entered for Defendants.

I.

Common-Law Action for Libel and Slander

We need not belabor the rule that Government officials and employees are immune from tort liability for acts committed in the performance of official duties. Barr v. Matteo, supra. Its history, rationale, and scope were thoroughly discussed in Norton v. McShane, 5 Cir., 1964, 332 F.2d 855,⁸ cert. denied, 1965, 380 U.S. 981, 85 S.Ct. 1345, 14 L.Ed.2d 274. Its acceptance in this Circuit has recently been reaffirmed, but not without some misgivings. Pierson v. Ray, 5 Cir., 1965, 352 F.2d 213; cf. Fowler v. Southern Bell Tel. & Tel. Co., 5 Cir., 1965, 343 F.2d 150. Thus we are not writing on a

358 F.2d 353

clean slate.⁹ First, it is clear at this late date that federal and not state law governs the application of the immunity doctrine to federal officers and employees. Howard v. Lyons, supra note 1; see Wheeldin v. Wheeler, 1963, 373 U.S. 647, 83 S.Ct. 1441, 10 L.Ed.2d 605; Norton v. McShane, supra, 332 F.2d at 860 n. 6.¹⁰ Second, under federal law as interpreted in Barr there is only one prerequisite for the application of immunity: the action taken must be within the outer perimeter of the executive official's line of duty. 360 U.S. at 575, 79 S.Ct. at 1341, 3 L.Ed. 2d at 1443.¹¹ That the federal officer acted with malice makes no difference. Barr v. Matteo, supra; see Wozencraft v. Captiva, 5 Cir., 1963, 314 F.2d 288; De Busk v. Harvin, 5 Cir., 1954, 212 F.2d 143

When we apply Barr to the facts of this case, as interpreted most favorably to appellant, it is clear that immunity applies.¹² The Defendants' actions were clearly within the outer perimeter of their line of duty. Their affidavits and exhibits attached thereto specifically enumerate the administrative regulations and statutory provisions which they followed in taking these actions respecting appellant. See note 6, supra. Their alleged defamatory statements are contained in reports made on official printed forms, in written notices required by the regulations to be given to appellant, and in affidavit evidence submitted by Defendants for use in appellant's administrative appeals (see 5 CFR § 772.304(b)). Furthermore, Defendants' actions involving the employment tenure, and discipline of a federal employee are of a nature which most obviously should be committed to their discretion without fear of vexatious suits for personal liability. See Wozencraft v. Captiva, supra; De Busk v. Harvin, supra; Waterman v. Nelson, 2 Cir., 1949, 177 F.2d 965 (per curiam); cf. Blitz v. Boog, 2 Cir., 1964, 328 F.2d 596, cert. denied, 379 U.S. 855, 85 S.Ct. 106, 13 L.Ed.2d 58 (suit against government physician for damages based on unrequested treatment). Thus, this case

358 F.2d 354

fits within both the letter and the spirit of the Barr immunity rule

Appellant nevertheless contends vigorously that she was entitled to take her case to the jury, that the District Court erred in granting Defendants' motion for summary judgment. Apparently she assumes that the filing of counter affidavits makes it a jury case. But this is not enough, for as the District Court correctly observed, "The affidavits of the plaintiff, her husband, and a business acquaintance, submitted by the plaintiff in opposition to the defendants' motion, do not dispute this fact that Defendants were performing official duties, nor do they appear to have been submitted for that purpose." Thus, Defendants were entitled to summary judgment on the force of their affidavits.¹³

II.

Suit Under Civil Rights Act

The District Court held (1) that the doctrine of immunity applies even to suit under the Civil Rights Act,¹⁴ 42 U.S.C.A. § 1985, and (2) that § 1985 applies only where some of the defendants acted under color of state law.¹⁵ But in Norton we expressly refrained from deciding either of these propositions.¹⁶

We likewise refrain from deciding what Norton left undecided. Instead, for purposes of this case, we shall assume that immunity is not a defense to actions under 42 U.S.C.A. § 1985 and that

358 F.2d 355

it is unnecessary that any of the defendants have acted under the color of state law. These assumptions bring us to the essence of appellant's complaint.

Appellant alleged that the Defendants conspired to and did deny her equal protection of the law by discriminatory application of the Civil Service Commission's rules and regulations to her case, and further, that they conspired to and did deny her due process of law by adjudging her to be "incompetent"¹⁷ without service of charges, without notice and opportunity to be heard, without opportunity to confront witnesses against her, and without the assistance of counsel. However, in her memorandum in opposition to Defendants' motion for summary judgment and in her argument on appeal, it became apparent that, relying on Greene v. McElroy, 1959, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 Greene I, and Greene v. United States, 1964, 376 U.S. 149, 84 S.Ct. 615, 11 L.Ed.2d 576 Greene II, appellant's principal complaint is that she was unconstitutionally denied a judicial hearing and the confrontation of witnesses.¹⁸

Assuming that this complaint can be asserted here¹⁹ and that a conspiracy

358 F.2d 356

to deprive appellant of due process would support a suit for damages under § 1985,²⁰ we reject it on the merits. Appellant had no constitutional right to a judicial hearing with the opportunity to confront and cross-examine witnesses.

The starting point is Greene v. McElroy, supra. Appellant's reliance on this case as establishing a constitutional requirement of a hearing and confrontation prior to the discharge of a government employe is misplaced. Greene I decided only that vis-a-vis the Government and the employee in the absence of congressional or presidential authorization, considerations of due process prevent the Secretary of the Navy from revoking the security clearance of an engineer working on government projects without affording him the opportunity to confront and cross-examine the witnesses against him. Though constitutional considerations lurked in the background, the case was decided on the narrow ground of authorization.

Thus, consistent with the approach of the Supreme Court in Greene I, we must first determine whether the procedures followed by the Defendants have been authorized by Congress or the President. The Civil Service Retirement Act, 5 U.S. C.A. § 2251 et seq., does not provide for any hearing — yet alone a judicial one with confrontation and cross-examination of witnesses — in the case of disability retirement. The Civil...