Ribas v. Macher

687 F. Supp. 684, 1988 U.S. Dist. LEXIS 6383, 1988 WL 69017
CourtDistrict Court, District of Columbia
DecidedJune 16, 1988
DocketCiv. A. No. 87-0328
StatusPublished

This text of 687 F. Supp. 684 (Ribas v. Macher) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ribas v. Macher, 687 F. Supp. 684, 1988 U.S. Dist. LEXIS 6383, 1988 WL 69017 (D.D.C. 1988).

Opinion

MEMORANDUM

JOHN GARRETT PENN, District Judge.

This case is now before the Court on defendant’s motion for summary judgment pursuant to Fed.R.Civ.P. 56. Defendant asserts that he is entitled to absolute immunity from plaintiff’s slander claim. After carefully considering defendant’s motion, the opposition to it, and the record in this case, the Court concludes that defendant’s motion should be granted.

Plaintiff, a research medical officer at the Walter Reed Army Medical Center (Walter Reed), filed this slander action against defendant, his superior officer and supervisor, and subsequently amended his complaint to add a count for a violation of the Fifth Amendment of the United States Constitution. The Court previously denied defendant’s motion to dismiss the slander claim, and it granted defendant’s motion to dismiss the Fifth Amendment claim. Memorandum Order, filed August 18, 1987. The parties have had an opportunity to conduct discovery before defendant filed the motion for summary judgment.

Summary judgment is proper where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact [686]*686and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ. P. 56(c). Defendant has filed a statement of material facts not in dispute in support of his motion (Defendant’s Statement of Facts). Since plaintiff has not filed a statement controverting the facts as defendant presents them, those facts will be treated as not in dispute pursuant to Local Rule 108(h). Plaintiff has submitted the affidavit of Daniel H. Connor, and portions of the deposition testimony of Ann Marie Nelson in support of his opposition to the motion.

I.

Defendant asserts that since plaintiff was serving in the military when the relevant events took place, he is barred from suing a government official. In Bois v. Marsh, 801 F.2d 462, 470-71 (D.C.Cir.1986), the Court of Appeals held that servicemen are precluded from suing military officers for intentional as well as unintentional common law torts pursuant to the reasoning in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). The Feres doctrine bars suits by servicemen against the federal government where the injuries are incurred incident to service. See United States v. Johnson, — U.S. —, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987). The Supreme Court has also applied the reasoning of Feres to preclude constitutional tort claims by servicemen which arise incident to service. See United States v. Stanley, — U.S. —, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987); Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983).

There is no dispute that defendant served as plaintiff’s superior officer, and plaintiff does not dispute that defendant, as an officer in the Public Health Service, should be considered a member of the military for the purposes of this immunity claim. Members of the Public Health Service are part of the uniformed services of the United States. 42 U.S.C. § 201(p). Other courts have determined that officers in the Public Health Service should be treated as members of the military for the purposes of determining whether the Feres doctrine bars their suits against the federal government. Scheppan v. United States, 810 F.2d 461 (4th Cir.1987); Alexander v. United States, 500 F.2d 1 (8th Cir.1974); Levin v. United States, 403 F.Supp. 99 (D.Mass.1975).

Plaintiff does dispute whether he incurred the alleged injuries incident to military service. He argues that it was merely incidental that he was detailed to the Walter Reed Army Medical Center, and that defendant was also detailed there and served as his superior officer. To support his argument that Bois does not apply here, plaintiff submits Dr. Connor’s statement that neither plaintiff nor defendant were subject to military discipline in their positions. See Affidavit of Daniel H. Con-nor, exhibit B to Plaintiff’s Opposition to Motion for Summary Judgment, filed May 2, 1988.

It is undisputed, however, that plaintiff was serving in active duty as a major in the United States Army, and that defendant was serving as his superior officer. Furthermore, whether or not defendant made his statements within the outer scope of his duties, there is no dispute that any alleged slander occurred at Walter Reed, and within the course of the parties relationship as superior and subordinate. Thus, the Court concludes that any injury which plaintiff suffered was incident to his military service.

In Stanley, the Supreme Court held that no “Bivens ” remedy is available for injuries that arise out of or are in the course of activity incident to service. 107 S.Ct. at 3063. The Court determined that it was not necessary to conduct an inquiry into the degree in which military discipline and decision-making was implicated in a particular case, and it reasoned that doing so would tend to subvert the policy of avoiding intrusion into military affairs. Id. The Court of Appeals indicated in Bois that the immunity of military officers from common law suits by their subordinates should be coextensive with the immunity allowed under Feres and Chappell. 801 F.2d at 470-71. Therefore, since plaintiff incurred any [687]*687alleged injuries incident to service, defendant is entitled to immunity from this suit.

II.

Defendant also asserts that he is entitled to absolute governmental immunity because in making any allegedly slanderous statements about plaintiff, he was taking discretionary action within the scope of his duties. Plaintiff argues that defendant’s actions were neither within the scope of his duties nor the performance of a discretionary function.

Government officials are absolutely immune from common law tort claims which arise out of discretionary action which they have taken within the outer scope of their duties. Westfall v. Erwin, — U.S. —, 108 S.Ct. 580, 98 L.Ed.2d 619 (1988); Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959). The Court in Westfall emphasized that the inquiry into whether immunity should be granted in a particular case is a functional one, and it should be guided by the purposes for granting immunity. 108 S.Ct. at 583-585; see also McKinney v. Whitfield, 736 F.2d 766, 770 (D.C.Cir.1984); Edwards v. Gross, 633 F.Supp. 267, 270 (D.D.C.1986).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Feres v. United States
340 U.S. 135 (Supreme Court, 1950)
Chappell v. Wallace
462 U.S. 296 (Supreme Court, 1983)
United States v. Johnson
481 U.S. 681 (Supreme Court, 1987)
United States v. Stanley
483 U.S. 669 (Supreme Court, 1987)
Westfall v. Erwin
484 U.S. 292 (Supreme Court, 1988)
Iris N. McKinney v. Charles A. Whitfield
736 F.2d 766 (D.C. Circuit, 1984)
Jeanette Scheppan v. United States
810 F.2d 461 (Fourth Circuit, 1987)
Levin v. United States
403 F. Supp. 99 (D. Massachusetts, 1975)
Edwards v. Gross
633 F. Supp. 267 (District of Columbia, 1986)
Barr v. Matteo
360 U.S. 564 (Supreme Court, 1959)
Bois v. Marsh
801 F.2d 462 (D.C. Circuit, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
687 F. Supp. 684, 1988 U.S. Dist. LEXIS 6383, 1988 WL 69017, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ribas-v-macher-dcd-1988.