argues that the defendants' actions fall outside the reach of the deferential Harlow test because they exceeded the scope of their permissible authority. This contention follows from Franz' suggestion that the government's decision to deny his visitation request was based on Catherine Allen's refusal to authorize visits, and his belief that only an explicit concern for the security of the Allens or the Franz children would constitute a permissible justification for the government's actions. The plaintiff also points to the general policy of the Marshals Service permitting visits. See Letter from William Hall to Subcommittee on Administrative Practice and Procedure, Senate Judiciary Committee (dated May 19, 1980), attached to Submission for the Record of Newly-Discovered Evidence and Reply to Notice of Recent Decision, filed June 14, 1984. The plaintiff's view of the applicable law is misplaced, and accordingly, his claim for damages against the individual federal defendants must be dismissed.
The scope of authority of a federal official has been broadly defined to include any action which is "within the outer perimeter" of his responsibilities, Barr v. Matteo, 360 U.S. 564, 575, 79 S. Ct. 1335, 1341, 3 L. Ed. 2d 1434 (1959). Stated differently, a federal defendant may invoke the qualified immunity defense if his decision was not "manifestly or palpably beyond his authority . . . having more or less connection with the general matters committed by law to his control or supervision." Briggs v. Goodwin, 186 U.S. App. D.C. 179, 569 F.2d 10, 16 (D.C.Cir.1977) (qualified immunity extends to prosecutor alleged to have committed perjury), cert. denied, 437 U.S. 904, 98 S. Ct. 3089, 57 L. Ed. 2d 1133 (1978) (quoting Spalding v. Vilas, 161 U.S. 483, 498, 16 S. Ct. 631, 637, 40 L. Ed. 780 (1896)).
The practical application of this broad definition of a federal official's responsibilities is subject to two formulations. The first would only consider the nature of the defendant's actions, and would preclude any examination of the reasons for the action taken. This analysis follows from the purpose of the immunity defense, which is to protect government officials and the public from the "substantial costs of litigation [including] the distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service." Harlow v. Fitzgerald, 457 U.S. at 816, 102 S. Ct. at 2738. Under this formulation, any activities concerning the administration of the program would qualify as protected activities, and defendants could invoke the qualified immunity doctrine.
Although the above analysis is attractive, the Court declines to apply it because the defendants are entitled to assert their qualified immunity from suit on a narrower ground, namely, that the government's decision to deny visitation for the reasons asserted by the plaintiff was a discretionary, job-related decision. The Attorney General has the authority to provide for the security of Government witnesses and their families pursuant to the Organized Crime Control Act of 1970, §§ 501-04, and some portion of this responsibility has been delegated to the Marshals Service. See, e.g., OBD 2110.2, Ex. A; DOJ 2110.42, Ex. B. These functions broadly encompass the "provision for the health, safety, and welfare of Government Witnesses and their families." 28 C.F.R. § 0.111(c), and fall within the broad band of duties characterized as discretionary. See Davis v. Scherer, U.S. at n. 14, 104 S. Ct. at 3021 n. 14.
As the Court of Appeals recognized, the administration of the Witness Protection Program puts federal officials in the unenviable position of balancing the interests of multiple conflicting interests. Franz v. United States, 707 F.2d at 610. This responsibility requires numerous discretionary decisions which affect many aspects of the lives of the individuals under the protective umbrella of the Program. For instance, the government provides these individuals with new identities and locations, as well as financial, employment and counseling services. Given the broad range of the duties involved in the administration of the Program, a decision to refuse visitation on the basis of the custodial parent's wishes, or the wishes of the children, is within a federal official's scope of authority.
Moreover, Safir and Shur are entitled to qualified immunity despite the asserted policy allowing visitation by noncustodial parents. Under Davis v. Scherer, U.S. at n. 12, 104 S. Ct. at 3020 n. 12, even an official's failure to comply with an applicable state regulation does not eviscerate the qualified immunity defense unless the regulation is the source of the plaintiff's cause of action.
While the government's decision might not have been desirable from a policy perspective, the motivation for that decision is not sufficient to defeat the qualified immunity defense asserted by the defendants.
The government's motion to transfer C.A. 81-173 is denied. In addition, the government's motion for summary judgment with respect to the damages claims against the individual federal defendants in C.A. 84-304 is granted, and the complaint is dismissed with prejudice. With respect to future proceedings, the parties should heed the Court of Appeals' admonition that:
ultimate resolution of this controversy by a court may not be the ideal solution for any of the parties. . . . The parties are likely to be better able than a judge to work out an arrangement for reconciling -- or at least compromising between -- their various needs and desires.
Franz v. United States, 707 F.2d at 610. With this purpose in mind, a status conference will be scheduled to discuss the future course of this litigation.