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EDWARDS v. GROSS

March 14, 1986

Conley EDWARDS, Jr., Plaintiff,
v.
Kenneth A. GROSS, Defendant



The opinion of the court was delivered by: PENN

 JOHN GARRETT PENN, District Judge.

 This case comes before the Court on plaintiff's motion for remand and defendant's motion to dismiss or in the alternative, for summary judgment. Plaintiff does not object to the Court's jurisdiction in this matter but rather uses the motion for remand to argue opposition to immunity in this case. Because the defendant has a right to removal, absent any valid question regarding jurisdiction, the motion for remand is denied. The defendant cites to improper service, insufficient pleadings and absolute immunity as grounds for dismissal. The plaintiff argues, inter alia, that the defendant assaulted and battered him during an employment confrontation, and therefore, pursuant to the holding in McKinney v. Whitfield, 237 U.S. App. D.C. 157, 736 F.2d 766 (D.C.Cir.1984), immunity is not applicable. This Court does not read the McKinney holding so narrowly and believes the facts in the two cases can be distinguished. After careful consideration of the motion, the opposition thereto and the record, the Court concludes that Mr. Gross was acting within the outer perimeters of his official duties. Consequently, he is entitled to absolute immunity which bars this claim. As a result, the issues of service of process and insufficient pleadings need not be addressed.

 I

 Viewing the facts in a light most favorable to the plaintiff, Erco Industries Ltd. v. Seaboard Coast Line R. Co., 644 F.2d 424, 428 (5th Cir.1981), they are as follows: Plaintiff, Conley Edwards, Jr., was a paralegal specialist assigned to the Federal Election Commission Enforcement Section of the Office of Federal Counsel, in Washington, D.C.. His responsibilities included; the analysis of external and internal complaints charging violations of the Federal Election Campaign Act; legal researching; monitoring case progress and writing briefs on assigned cases. Edwards' Declaration, Section 2, Plaintiff's Opposition to Defendant's Motion to Dismiss/Summary Judgment (hereinafter "Edwards' Declaration") Defendant, Kenneth Gross was, and presently is, employed as the Associate General Counsel for the Federal Election Commission, in charge of the General Counsel's Enforcement Section. His responsibilities as head of the Enforcement Section include; acting as final authority on compliance matters, investigations, negotiations and recommendations relating to federal election law violation complaints; supervising and directing the legal work product of the staff; and ensuring consistent application of the law in the enforcement area. Defendant's Exhibit B. By each party's account, the relationship between Mr. Edwards and Mr. Gross was less than conciliatory.

 On November 27, 1984, Thomas Whitehead, plaintiff's immediate supervisor, issued a warning letter stating that plaintiff's work performance was unacceptable. On January 16, 1985, a notice of proposed removal was sent. Final approval for termination based on unacceptable performance and insubordination occurred on February 26, 1985. Effective March 1, 1985, plaintiff was removed from his position. Defendant's Exhibit A, Sections 2, 3, 4.

 The sequence of events, central to this lawsuit, began on January 17, 1985, when plaintiff entered Mr. Whitehead's office and removed the team "logbook". The logbook is maintained by team members to monitor the actions taken on assigned cases. Edwards' Declaration, Section 15; Defendant's Exhibit A, Section 5. Although it appears certain that the plaintiff had the authority to review the contents of the logbook, plaintiff's sole purpose for transporting the logbook to the xerox room for copying was to gather evidence to controvert the insubordination charges against him. Edwards' Declaration, Sections 15, 17.

 While making copies of the logbook, Mr. Gross confronted Mr. Edwards and asked him what he was doing. Plaintiff replied that he was "photocopying the logbook pages pertaining to (his) cases." Edwards' Declaration Section 16. Both parties agree that defendant demanded the logbook and plaintiff clearly refused. Subsequent to his refusal, the plaintiff alleges that the defendant, "grabbed a log sheet from (his) hand . . . slammed his hand down on the open book . . . reached around the side of the machine to collect (his) copies from the paper tray . . . grabbed (him) . . . and tried to physically wrench the papers from (his) right hand . . ." Plaintiff then made a demand to be released and defendant complied. Edwards' Declaration, Section 16. Further verbal demands and threats allegedly ensued as plaintiff retreated from the xerox room with defendant in close pursuit. However, no further physical confrontation resulted. Edwards' Declaration, Section 16. After written demand and the passage of more than a week, the plaintiff returned the remaining copies in his possession. The information in the logbook, hence in the copies made thereof, is protected from public access by 2 U.S.C. §§ 437g(a)(12)(A), (B) and 437g(a)(4)(B). Portions of the applicable statute read as follows:

 
(A) Any notification or investigation made under this section shall not be made public by the Commission or by any person without the written consent of the person receiving such notification or the person with respect to whom such investigation is made.
 
(B) Any member or employee of the Commission, or any other person who violates the provisions of subparagraph (A) shall be fined not more than $2,000. Any such member, employee, or other person who knowingly and willfully violates the provisions of subparagraph (A) shall be fined not more than $5,000.

 2 U.S.C. §§ 437g(a)(12)(A), (B).

 II

 The plaintiff has correctly cited McKinney, 237 U.S. App. D.C. 157, 736 F.2d 766 (D.C.Cir.1984), as the controlling case on the issues presented. However, as the McKinney Court noted, id. at 768, any inquiry into the scope of federal employees' immunity for common law torts must initially address the reasoning set down in the landmark Supreme Court decision, Barr v. Matteo, 360 U.S. 564, 79 S. Ct. 1335, 3 L. Ed. 2d 1434 (1959). Although the extensive umbrella of official immunity diminished under subsequent Supreme Court rulings the protection afforded federal officials from common law tort liability remained intact. Butz v. Economou, 438 U.S. 478, 98 S. Ct. 2894, 57 L. Ed. 2d 895 (1978); McKinney, 736 F.2d at 768. *fn1" The rule set down in Barr now embraces executive officials at all levels of the federal hierarchy and any common law tort. Expeditions Unlimited Aquatic Enterprises, Inc. v. Smithsonian Institution, 184 U.S. App. D.C. 397, 566 F.2d 289 (D.C.Cir.1977) (en banc), cert. denied 438 U.S. 915, 98 S. Ct. 3144, 57 L. Ed. 2d 1160 (1978); Bishop v. Tice, 622 F.2d 349 (8th Cir.1980). Implicit in the Barr holding is the understanding that protection from common law tort liability only extends to actions taken "within the outer perimeter" of an officer's line of duty. Barr, 360 U.S. at 575, 79 S. Ct. at 1341. Therefore, the pivotal question in a court's analysis of such matters must be whether the actions taken stray beyond the plain limits of the official's authority.

 The complaint before this Court alleges assault and battery. The McKinney Court advanced strong support for applying immunity in assault claims. McKinney, 736 F.2d at 770. See also Araujo v. Welch, 742 F.2d 802 (3d Cir.1984); Plourde v. Ferguson, 519 F. Supp. 14 (D.Md.1980). Citing to Wallen v. Domm, 700 F.2d 124 (4th Cir.1983), and distinguishing assault from battery actions, the Court stated "we think it evident that compelling federal officials to defend suits alleging heated discussion and threatening gestures would place a noticeably greater damper on the exercise of supervisory discretion than merely holding such officials accountable for physical intrusions." McKinney, 736 F.2d at 770, n. 17. Bearing this in mind with respect to the assault charges lodged against Mr. Gross, the Court now turns to the more germane issue in this case; ...


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