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RIBAS v. MACHER

June 15, 1988

Jorge L. Ribas, Plaintiff,
v.
Abe M. Macher, Defendant



The opinion of the court was delivered by: PENN

 JOHN GARRETT PENN, UNITED STATES DISTRICT JUDGE.

 This case is now before the Court on defendant's motion for summary judgment pursuant to Fed. R. Civ. P. 56. Defendant asserts that he is entitled to absolute immunity from plaintiff's slander claim. After carefully considering defendant's motion, the opposition to it, and the record in this case, the Court concludes that defendant's motion should be granted.

 Plaintiff, a research medical officer at the Walter Reed Army Medical Center (Walter Reed), filed this slander action against defendant, his superior officer and supervisor, and subsequently amended his complaint to add a count for a violation of the Fifth Amendment of the United States Constitution. The Court previously denied defendant's motion to dismiss the slander claim, and it granted defendant's motion to dismiss the Fifth Amendment claim. Memorandum Order, filed August 18, 1987. The parties have had an opportunity to conduct discovery before defendant filed the motion for summary judgment.

 I.

 Defendant asserts that since plaintiff was serving in the military when the relevant events took place, he is barred from suing a government official. In Bois v. Marsh, 255 U.S. App. D.C. 248, 801 F.2d 462, 470-71 (D.C. Cir. 1986), the Court of Appeals held that servicemen are precluded from suing military officers for intentional as well as unintentional common law torts pursuant to the reasoning in Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950). The Feres doctrine bars suits by servicemen against the federal government where the injuries are incurred incident to service. See United States v. Johnson, 481 U.S. 681, 107 S. Ct. 2063, 95 L. Ed. 2d 648 (1987). The Supreme Court has also applied the reasoning of Feres to preclude constitutional tort claims by servicemen which arise incident to service. See United States v. Stanley, 483 U.S. 669, 107 S. Ct. 3054, 97 L. Ed. 2d 550 (1987); Chappell v. Wallace, 462 U.S. 296, 103 S. Ct. 2362, 76 L. Ed. 2d 586 (1983).

 There is no dispute that defendant served as plaintiff's superior officer, and plaintiff does not dispute that defendant, as an officer in the Public Health Service, should be considered a member of the military for the purposes of this immunity claim. Members of the Public Health Service are part of the uniformed services of the United States. 42 U.S.C. ยง 201(p). Other courts have determined that officers in the Public Health Service should be treated as members of the military for the purposes of determining whether the Feres doctrine bars their suits against the federal government. Scheppan v. United States, 810 F.2d 461 (4th Cir. 1987); Alexander v. United States, 500 F.2d 1 (8th Cir. 1974); Levin v. United States, 403 F. Supp. 99 (D.Mass. 1975).

 Plaintiff does dispute whether he incurred the alleged injuries incident to military service. He argues that it was merely incidental that he was detailed to the Walter Reed Army Medical Center, and that defendant was also detailed there and served as his superior officer. To support his argument that Bois does not apply here, plaintiff submits Dr. Connor's statement that neither plaintiff nor defendant were subject to military discipline in their positions. See Affidavit of Daniel H. Connor, exhibit B to Plaintiff's Opposition to Motion for Summary Judgment, filed May 2, 1988.

 It is undisputed, however, that plaintiff was serving in active duty as a major in the United States Army, and that defendant was serving as his superior officer. Furthermore, whether or not defendant made his statements within the outer scope of his duties, there is no dispute that any alleged slander occurred at Walter Reed, and within the course of the parties relationship as superior and subordinate. Thus, the Court concludes that any injury which plaintiff suffered was incident to his military service.

 In Stanley, the Supreme Court held that no " Bivens " remedy is available for injuries that arise out of or are in the course of activity incident to service. 107 S. Ct. at 3063. The Court determined that it was not necessary to conduct an inquiry into the degree in which military discipline and decision-making was implicated in a particular case, and it reasoned that doing so would tend to subvert the policy of avoiding intrusion into military affairs. Id. The Court of Appeals indicated in Bois that the immunity of military officers from common law suits by their subordinates should be coextensive with the immunity allowed under Feres and Chappell. 801 F.2d at 470-71. Therefore, since plaintiff incurred any alleged injuries incident to service, defendant is entitled to immunity from this suit.

 II.

 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 ...


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