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January 6, 1975

CHARLES E. SHIPP, Plaintiff,

The opinion of the court was delivered by: GASCH

 This matter came before the Court on the motion of both defendants to dismiss this action or, in the alternative, for summary judgment. Since the motion filed relies on affidavits and other materials going beyond the pleadings in the case, the Court will treat it as a motion for summary judgment.

 I. Undisputed Facts.

 The facts giving rise to this case are completely undisputed. Plaintiff Shipp was an employee of the General Services Administration (GSA). Both defendants, Messrs. Waller and Dual, were also employees of the GSA and had worked with or over Mr. Shipp. All three of the parties are black males.

 Mr. Shipp, in January, 1973, filed an Equal Employment Opportunity (bEEO) complaint in which he alleged that he was a victim of racial discrimination at his job. As a result of this complaint, an investigator, Mr. Frederick Meffle, was appointed by the Civil Service Commission to explore the circumstances of the alleged discrimination. *fn1" In the course of his investigation, Mr. Meffle interrogated Messrs. Waller and Dual. Each of these latter gentlemen, in response to the investigator's questions, furnished an affidavit. Each affidavit asserted essentially that Mr. Shipp had a drinking problem. Subsequently Messrs. Waller and Dual were called as witnesses at an administrative hearing on Mr. Shipp's EEO complaint. *fn2" In response to questions from Mr. Shipp's counsel, each defendant reasserted his view that Mr. Shipp had a problem with alcohol. The statements made by Messrs. Waller and Dual in their respective affidavits and at the hearing were allegedly defamatory and are the basis for this suit.

 II. Legal Background.

 The Civil Service Commission requires all agencies to maintain an adequate EEO program, including a procedure for the processing of complaints. *fn3" Once a complaint is filed, an investigator must promptly be appointed to review thoroughly the circumstances under which the alleged discrimination occurred. *fn4" The agency director of EEO must furnish to the investigator a written authorization: 1) to investigate all aspects of the complaint; 2) to require all employees of the agency to cooperate with the investigator in the conduct of the investigation; and 3) to require all employees of the agency having any knowledge of the matter complained of to furnish testimony under oath or affirmation without a pledge of confidence. *fn5"

 GSA has provided its own internal regulations regarding EEO matters. *fn6" Those rules parallel the Civil Service regulations. In regard to an investigator, GSA regulations require that the Civil Service Commission be requested to provide an investigator rather than having one appointed from within GSA. *fn7" The powers of an investigator so appointed are the same as those provided for in 5 C.F.R. ยง 713.216(a), (b).

 Defendants rely on Barr v. Matteo *fn8" to support their contention that their utterances were absolutely privileged. In Barr, the Supreme Court dealt with allegedly defamatory remarks made in a press release by the Acting Director of Rent Stabilization. *fn9" That official was not required by law or direction of his superiors to make the press release. *fn10" Issuance of press releases, however, was standard agency practice. *fn11" The Court found that the action taken was within the outer perimeter of the official's line of duty and thus was absolutely privileged. *fn12"

 Plaintiff's contention is that Barr v. Matteo has been modified by Scheuer v. Rhodes *fn13" and he draws upon Apton v. Wilson *fn14" for support of his point. Plaintiff asserts that Scheuer and Apton stand for the proposition that any privilege in cases such as the present one is at best qualified rather than absolute. The Court disagrees.

 The Scheuer case concerned a suit against the governor of Ohio and other state officials for actions taken during the Kent State incident. The district court had dismissed the complaints on the ground that they were barred, as a matter of law, by the Eleventh Amendment or, alternatively, by the absolute immunity of state officials for their actions. *fn15" The complaints in Scheuer had alleged that defendants, acting under color of state law, had deprived plaintiffs of their lives and rights without due process of law. *fn16" The claim of plaintiffs, then, rose to Constitutional stature, alleging a deprivation of Federal Constitutional rights by officials of a state acting under color of that state's law.

 It was in this context that the Court determined that Federal courts had jurisdiction over the matter. The opinion of Chief Justice Burger makes clear that the Court was aware both of the peculiar facts of the case and of its procedural posture and that the ruling of the Court was uniquely based on those circumstances. *fn17" The case, then, modifies the doctrine of official privilege only insofar as the doctrine may apply to alleged deprivation of basic constitutional or civil rights and not as it may apply to situations such as in the case at bar. *fn18"

 The Apton case similarly fails to aid plaintiff. There some 34 plaintiffs alleged that they were arrested while engaged entirely in lawful and unobjectionable conduct during the "May Day demonstrations" of May, 1971, in Washington, D.C. *fn19" They sought damages for an alleged deprivation of Fourth and Fifth Amendment rights and also sought equitable relief. *fn20" Certain of the defendants were high officials of the United States Department of Justice. *fn21" The District Court granted summary judgment for these defendants on the ground of absolute executive immunity. *fn22" The lower court relied on Barr v. Matteo and stated that the actions of the defendant officials were well within the outer perimeter of their duties. *fn23"

 The Apton Court explicitly noted that the question before it was whether high federal officials enjoy absolute immunity for actions, relating to law enforcement, that deprived innocent citizens of Fourth and Fifth Amendment rights. *fn24" Just as in Scheuer, then, Apton concerned the existence of immunity in the context of alleged deprivation of basic Federal Constitutional rights. ...

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