alleged injuries incident to service, defendant is entitled to immunity from this suit.
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, 484 U.S. 292, 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, 237 U.S. App. D.C. 157, 736 F.2d 766, 770 (D.C. Cir. 1984); Edwards v. Gross, 633 F. Supp. 267, 270 (D.D.C. 1986). The overriding purpose is to promote effective governance by insulating the decision-making process from the harassment of prospective litigation under state law. Westfall, 108 S. Ct. at 583-584. Absolute immunity is justified where the benefits to effective government outweigh the costs in terms of harm to individuals, and a court's analysis should focus upon the degree to which the official function would suffer under the threat of prospective litigation. Id. The Supreme Court has clearly recognized that granting official immunity will result in uncompensated wrongs, and in the failure to hold individuals accountable for their wrongful conduct. Id. The scope of immunity for federal officials is a matter of federal law to be determined by the courts in the absence of legislation. Id.
There is no genuine issue here that defendant's actions were the product of his independent judgment, and thus discretionary in nature.
Clearly, a supervisor's discussion with co-workers and superiors, of his suspicions regarding the behavior of a subordinate is a discretionary act. The key question in this case is whether the alleged slander occurred within the outer scope of defendant's duties. This inquiry centers on whether the contributions of immunity to the effective functioning of the Department of Infectious Diseases (DID) in the context presented here justify the denial of plaintiff's claim.
Plaintiff alleges that defendant falsely stated "to the professional associates, superiors, and co-workers of the plaintiff, and to others, that the plaintiff is a user of illicit narcotic drugs, that he traffics in such drugs, and that he stole a computer belonging to the United States." Amended Complaint, filed March 13, 1987, at par. 12. It is undisputed that defendant only discussed his feelings about plaintiff's possible drug use and drug trafficking with professional co-workers in the DID, with his supervisors, and with individuals within the Executive Office of the Armed Forces Institute of Pathology, which was in charge of military personnel matters. Defendant's Statement of Facts at pars. 5-7. Plaintiff, however, asserts that defendant's statements regarding him were "nothing more than gratuitous scuttlebutt" which were not made as part of defendant's duty to rate plaintiff's performance. Plaintiff's Opposition, filed May 2, 1988, at 2. He submits the statement of Daniel H. Connor, defendant's immediate supervisor, that defendant's remarks to him regarding defendant's suspicions about plaintiff were "not made in the proper course of Dr. Macher's duties." Connor Affidavit at 2.
Plaintiff does not dispute that defendant, as Director of the AIDS Registry, had authority with respect to security, or that defendant was very security conscious. Defendant's Statement of Facts at par. 12. Nor does plaintiff dispute that defendant suspected him of drug use, drug trafficking, and theft, because: (1) a personal computer and a check had disappeared from the office, (2) defendant believed that plaintiff sometimes entered and left the building without signing in and out as required, and (3) defendant thought that plaintiff sometimes could not be found and did not always act in ways defendant considered appropriate. Id. at par. 13. Plaintiff does not dispute that these were defendant's reasons for making the allegedly slanderous statements. Id.
In this context, the Court concludes that defendant made the allegedly slanderous statements within the outer scope of his official duties as plaintiff's supervisor, as Director of the Collaborative Center for the Investigation of AIDS, and as Registrar of the Registry of AIDS Pathology. It is not disputed that there was a security problem in the office which defendant supervised, and thus, that defendant had legitimate reasons to be concerned. Defendant's voicing his concerns regarding an employee under his supervision in the context presented here is the type of act which might be necessary to improve the administration and security of his office, and which would be inhibited by the threat of liability. This of course is not to say that defendant's exercise of his discretion was warranted or proper. Rather, the point of granting immunity here is to prevent the inhibition of the proper exercise of supervisory authority, which could include questioning the reliability of personnel working in an area where thefts have occurred.
Dr. Connor's statement quoted above is merely a conclusion, and it addresses the propriety of defendant's actions without discussing what defendant's duties did or did not include. It does not contradict Defendant's Statement of Facts, or explain why defendant's expression of his suspicions regarding his subordinate was not a supervisory function. This statement is insufficient to create a genuine issue of material fact as to what defendant's duties were, and thus, to prevent the Court from determining as a matter of law that defendant's actions were within the outer scope of his duties.
In view of the above, the Court concludes that defendant's motion for summary judgment should be granted, and that this case should be dismissed. A separate order consistent with this Memorandum has been issued.
This case is before the Court on defendant's motion for summary judgment. After carefully considering defendant's motion, the opposition to it, and the record in this case, and for the reasons stated in an accompanying memorandum, it is hereby
ORDERED that defendant's motion for summary judgment is granted; and it is further
ORDERED that this case is dismissed.