Green v. James, 72-1129.

• Decision Date: 22 January 1973
• Docket Number: No. 72-1129.,72-1129.
• Citation: 473 F.2d 660
• Parties: Ophelia GREEN, Plaintiff-Appellant, v. William H. JAMES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

473 F.2d 660 (1973)

Ophelia GREEN, Plaintiff-Appellant, v. William H. JAMES, Defendant-Appellee.

No. 72-1129.

United States Court of Appeals, Ninth Circuit.

January 22, 1973.

David L. Turk, Kahului, Hawaii (argued), David C. Schutter, Honolulu, Hawaii, for plaintiff-appellant.

Thomas P. Young, Asst. U. S. Atty. (argued), Joseph M. Gedan, Asst. U. S. Atty., Robert K. Fukuda, U. S. Atty., Honolulu, Hawaii, for defendant-appellee.

Before ELY, CHOY and WALLACE, Circuit Judges.

CHOY, Circuit Judge:

Appellant Green is a civilian employed as a practical nurse in the dispensary at Schofield Barracks, an Army post. While driving to work within the post one day, she passed another vehicle, the driver of which began incessantly blowing his horn. Green stopped her car to see if the driver was in any trouble. The driver dismounted, approached her and, according to Green, began to berate her, violently accusing her of speeding 30 miles per hour in a 25 mile zone. The driver was in mufti but identified himself as Colonel James. Green alleges that James appeared to be drunk and unable to control his temper. This episode frightened and upset her but she continued to the dispensary to work.

A short while later, she was visited at the dispensary by James. He again vilified Green, this time in the presence of her co-workers. He then allegedly used his rank to have a speeding ticket issued to her. Green became physically ill because of this second encounter.

Green filed suit in a Hawaii state court for assault, intentional infliction of emotional distress, abuse of process, malicious prosecution, slander and defamation of character. The suit was removed to the federal district court because it involved a federal employee who claimed he acted under color of office. After interrogatories were taken, James moved that the suit be dismissed, contending that as an officer and an adjutant general in the Army he had absolute immunity. The district court granted the motion and dismissed the action, 333 F.Supp. 1226. Green appealed. We reverse.

In Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), the Supreme Court expanded the doctrine of absolute immunity of government officials to include lower level federal officials. In a companion case, Howard v. Lyons, 360 U.S. 593, 79 S.Ct. 1331, 3 L.Ed.2d 1454 (1959), it was decided that a Navy officer could assert the defense. Thus, Col. James can assert the defense, but immunity is afforded only in those instances where the official in question (1) was acting within the outer perimeter of his official duties and (2) was performing discretionary (as opposed to ministerial) acts. Barr v. Matteo, supra at 575, 79 S.Ct. 1335; Bivens v. Six Unknown Named Agents of the Fed. Bur. of Narc., 456 F.2d 1339, 1342-1343 (2nd Cir. 1972); Doe v. McMillan, 148 U.S.App.D.C. 280, 459 F.2d 1304, 1317 (1972), cert. granted, 408 U.S. 922, 92 S.Ct. 2505, 33 L.Ed.2d 332 (1972).

On the record before us, James has not proven that the immunity defense shields his actions. Absolute immunity like other affirmative defenses must be pleaded and proved by the party asserting the defense. Morgan v. Willingham, 424 F.2d 200, 202 (10th Cir. 1970); F.R.Civ.P. 8(c). James must prove more than that he was acting under color of office. The fact that the case was removed from a state court to a federal court does not necessarily prove that the absolute immunity defense applies. Willingham v. Morgan, 395 U.S. 402, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969).

In attempting to show that his actions were within the scope of his authority, James relied on two Army regulations. But these regulations do not support the contention that the enforcement of traffic rules is within the scope of his duties. The first of these regulations,¹ AR 633-1, permits Army personnel to assist in law enforcement, but only when a felony or misdemeanor amounting to a breach of the peace is being committed in his presence. (emphasis added). Simply going 30 miles per hour in a 25 mile zone² as in this case did not amount to a breach of the peace. Restatement of the Law of Torts, (Second) Sec. 116 (1965). The second regulation, FM 101.5 contains a detailed list of the duties of an adjutant general. Nothing in the three-page list of duties even suggests...