Evans v. Wright, 78-1192

• Decision Date: 16 October 1978
• Docket Number: No. 78-1192,78-1192
• Citation: 582 F.2d 20
• Parties: Boyd 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. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 20

582 F.2d 20

Boyd D. EVANS and Lois A. Evans d/b/a Complete Breathing Care, Inc., Plaintiffs-Appellants, v. Doug WRIGHT and Christopher Mulholland, Defendants-Appellees.

No. 78-1192

Summary Calendar. ^*

United States Court of Appeals Fifth Circuit.

Oct. 16, 1978.

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 program integrity specialists are shielded...