publication issued within scope of official's authority not actionable despite allegation of malice).
In resisting application of the Barr doctrine to this action, the plaintiff essentially raises two points: (1) that the defendants were not acting within the scope of their authority in making the critical evaluations of the plaintiff, and (2) that the defendants' activity is identical to discretion exercised by non-governmental medical officials and therefore is not entitled to the privilege of absolute immunity.
With respect to his argument that the written and oral evaluations of plaintiff's performance were not the result of the defendants' proper exercise of their authority, plaintiff essentially argues that more was required of the defendants than critical conclusions concerning the plaintiff. Instead, plaintiff argues that the defendants' authority to supervise plaintiff in the residency program required the defendants to engage in meaningful communication and counseling with the plaintiff to endeavor to correct perceived deficiencies, and that plaintiff never received such feedback and direction from the plaintiff. Finally, plaintiff asserts that written evaluations of his performance were not required to be placed in his personnel folder until the conclusion of his training, with the exception of his annual Officer Evaluation Report, unless to support a recommendation of adverse action.
This Court cannot accept plaintiff's argument, however, that the defendants' obligation to engage in constructive evaluations and communications with the plaintiff rendered their critical evaluations improper. Clearly, it was the responsibility of the defendants to monitor the performance of the plaintiff as well as all participants in the residency program. Deposition of Daniel B. Kimball, M.D. (hereinafter Kimball Deposition) at 42. Nothing prohibited the defendants from fulfilling that responsibility by maintaining written records. Kimball Deposition at 36-37. Moreover, the issue in this litigation is not whether the plaintiff's removal from the Walter Reed program, and ultimately from the Army, was unwarranted in that the plaintiff was not given an opportunity to identify and correct his problems, but rather whether defendants had the authority to evaluate plaintiff's performance. Indeed this Court must agree with defendants' observation that on this point the plaintiff has confused content with context. Evaluations of the plaintiff were clearly within the scope of defendants' authority, indeed were mandated, and nothing prescribed the manner in which that authority was to be exercised.
Finally, plaintiff argues that because the function of evaluating medical residents is identical whether the residency program is in a federal institution or a private medical facility, the discretion exercised by the defendants here is not the type of "governmental policy" discretion that the absolute immunity privilege of Barr v. Mateo, supra, was meant to protect. Instead, the plaintiff argues that under Barr absolute immunity was meant to apply only to federal officials performing functions for which there is no comparable organization in the private sector.
This Court, however, cannot so broadly construe the exceptions that have been recognized to the absolute immunity doctrine. The consideration is not whether comparable functions exist in the governmental and private sector, but whether the purposes of the absolute immunity doctrine, namely, to allow the unfettered operation of government, will be fostered by application of the privilege.
For example, in Henderson v. Bluemink, 167 U.S. App. D.C. 161, 511 F.2d 399 (D.C. Cir. 1974), the plaintiff alleged that an Army doctor negligently diagnosed and treated his illness. Id. at 402. The Court rejected the Army doctor's claim of absolute immunity, finding that the discretion exercised by the defendant was purely medical rather than governmental. Id. at 403. In doing so, the Court noted:
For those acts which the doctors performed in an administrative capacity - and thus heavily fraught with discretion - we agree that immunity should attach. We must part company with the court, however, where acts of a strictly medical nature are concerned.
Id. at 403 n.24.
Therefore, virtually all discretionary administrative decisions by federal officials, regardless of whether they occur within a uniquely governmental area such as the legislative branch, or a federal institution with parallels in the private sector, such as a military hospital, are entitled to the privilege of unfettered decision-making. This Circuit has recognized this to be especially true with respect to the evaluation of federal employees:
The strong governmental interest in having a frank and honest assessment of federal employee work performance is absolutely essential to the proper rendering of federal services to our citizens. A supervisor's candid evaluation promotes efficient government by enabling an agency to identify and reward truly outstanding performance and to identify and correct, and on occasion dispense with, performance that is unsatisfactory. The judgment might be distorted if their immunity from damages arising from that decision was less than complete.