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MCMANUS v. MCCARTHY

March 7, 1984

EDWARD McMANUS, Plaintiff, against MICHELE McCARTHY, ERIC HECKL, DONALD McWEENEY and ARTHUR R. FINLEY, Defendants.


The opinion of the court was delivered by: CARTER

CARTER, District Judge

Plaintiff in this libel action, removed from New York State Supreme Court, is a merchant marine captain. Defendants Michele McCarthy, Eric Heckl and Donal McWeeney were, at the relevant time, midshipmen at the United States Merchant Marine Academy at Kings Point, New York. Defendant Arthur R. Finley, a captain, is an Academy Training Representative at Kings Point. Plaintiff alleges that he was libeled by two memoranda sent to Captain Finley, one by McCarthy and one by Heckl and McWeeney. Both reports were subsequently sent to plaintiff's employer, Apex Marine Corp.

 The allegedly defamatory memoranda were prepared, on Captain Finley's orders, to explain an incident that had occurred in connection with McCarthy's assignment to plaintiff's vessel, the Golden Monarch. All students at the Academy must fulfill certain shipboard training requirements, and on or about March 19, 1982, McCarthy was assigned to serve as deck cadet aboard the Golden Monarch. Along with Heckl and McWeeney, McCarthy went to Reynolds Launch Service in Staten Island, New York, for transportation to the Golden Monarch. At the launch site the three midshipmen first encountered plaintiff. Precisely who said what to whom is intensely disputed by the parties, but it is agreed that McCarthy did not board the vessel. Captain Finley ordered McCarthy, Heckl and McWeeney to submit written reports to him accounting for McCarthy's failure to join the Golden Monarch.The reports they produced, and which plaintiff claims defamed him, are reproduced in the appendix to this opinion.

 Official Immunity

 Defendants have moved for summary judgment dismissing the complaint, claiming that, as federal employees, they are absolutely immune from liability for common law torts committed in the course of their employment. Plaintiff denies that official immunity is absolute, that the acts complained of were within the scope of defendants' duties, and that defendants were, in fact, federal employees.

 (a) Captain Finley

 Although a federal official has only a qualified, good faith immunity to liability for torts involving constitutional or statutory violations, Harlow v. Fitzgerald, 457 U.S. 800, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982); Butz v. Economou, 438 U.S. 478, 57 L. Ed. 2d 895, 98 S. Ct. 2894 (1978), official immunity is absolute if the claim is rooted in the common law and the challenged actions were within the "outer perimeter" of the official's duties. Barr v. Matteo, 360 U.S. 564, 3 L. Ed. 2d 1434, 79 S. Ct. 1335 (1959); see Butz v. Economou, 438 U.S. at 495; Sprecher v. Graber, 716 F.2d 968, 975 (2d Cir. 1983); Donohoe v. Watt, 546 F. Supp. 753, 755 (D.D.C. 1982), aff'd, 230 U.S. App. D.C. 70, 713 F.2d 864 (D.C. Cir. 1983).

 As an Academy Training Representative, Captain Finley supervises the shipboard training phase of the cadets' schooling. Finley Aff. P2. This position requires him to arrange placements with private shipping companies and to insure that the ships to which cadets are assigned provide a safe working and learning environment. Id. PP3,5. It is also his job to investigate any allegations of misconduct by cadets on board ship. Id. P4. Given these responsibilities, there is no question that it was well within the "outer perimeter" of Captain Finley's duties to order the midshipmen to file reports on the incident involving plaintiff, and, if he believed it appropriate, to forward copies of those reports to Apex Marine Corp. *fn1"

 Plaintiff does not seriously dispute this, but contends that Captain Finley should have made a more complete investigation of the incident before permitting the memoranda to be forwarded to plaintiff's employer. Even assuming, however, that Captain Finley did fail to complete a proper investigation, and that this rendered his otherwise unimpeachable decision to send the reports to Apex wrongful, sending the reports was still squarely within the ambit of his authority.

 [T]o separate the activity that constitutes the wrong from its surrounding context - an otherwise proper exercise of authority - would effectively emasculate the immunity defense. Once the wrongful acts are excluded from an exercise of authority, only innocuous activity remains to which immunity would be available. Thus, the defense would apply only to conduct for which it is not needed.

 Wallen v. Domm, 700 F.2d 124, 126 (4th Cir. 1983).

 Nothing in the record casts any doubt upon Captain Finley's status as a federal employee. The United States Merchant Marine Academy is wholly within the United States Deaprtment of Transportation, 46 U.S.C. ยง 1295 et seq., and Captain Finley has stated that he is paid by government check. Finley Aff. P6. Although plaintiff appears to question Captain Finley's employment status, he has introduced no evidence that creates a question of fact that would preclude summary judgment on this issue. Therefore, since plaintiff's claim sounds only in the common law of tort, see Paul v. Davis, 424 U.S. 693, 711-712, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976), the court finds that the doctrine of official immunity provides Captain Finley with a complete defense to this action.

 (b) The Cadets

 McCarthy, Heckl and McWeeney prepared their memoranda at the express command of their supervisor and superior officer, Captain Finley. McCarthy Aff. P10; Heckl Aff. P7; Finley Aff. PP8, 11. Thus there can be no doubt that it was within the "outer perimeter" of their duties to do so. Federal employees instructed to submit reports to their supervisors evaluating personnel or detailing incidents under investigation have consistently been held absolutely immune from liability for allegedly defamatory statements contained in those reports. See e.g. Ruderer v. Meyer, 413 F.2d 175 (8th Cir. 1969), cert. denied, 396 U.S. 936, 24 L. Ed. 2d 235, 90 S. Ct. 280 (1969); Preble v. Johnson, 275 F.2d 275 (10th Cir. 1960); Malone v. Longo, 463 F. Supp. 139 (E.D.N.Y. 1979). Indeed, it would plainly be absurd to conclude that a federal official has the authority to require his subordinates to file reports but that the latter exceed the scope of their duty when they produce them. See Gordon v. Adcock, 441 F.2d 261 (9th Cir., 1971). Plaintiff argues that the cadets moved outside the "outer primeter" of their duty when they wilfully included libelous falsehoods in their reports, but as noted above, if the alleged wrong is separated from its context and judged separately, nothing remains of the immunity defense. Wallen v. Domm, 700 F.2d at 126.

 Plaintiff also argues that the cadets were not federal employees. While it is true that midshipmen McCarthy, Heckl and McWeeney were students and not salaried government workers, their relationship to the federal government warrants application of the official immunity doctrine to them under the circumstances of this case. Academy cadets are not "hired" by the United States, but they are selected for admission according to federally prescribed procedures and their room, board and educational supplies are provided by the government. More importantly, they are under the direct supervision and control of their superior officers at the Academy, who are federal employees. Although not strictly under military discipline, cf. Fischer v. United States, 451 F. Supp. 918 (E.D.N.Y. 1978), they are certainly required to obey the legitimate orders of those superiors. While carrying out the tasks assigned to them, they are performing a federal function under the control of federal officials and are, therefore, entitled to the immunities accorded to those who are federal "employees" in a more technical sense. See Becker v. Philco Corp., 372 F.2d 771 (4th Cir. 1967) (government contractor entitled to official immunity for submitting required report to defense department), cert. denied 389 U.S. 979, 19 L. Ed. 2d 473, 88 S. Ct. 408 (1967); Blum v. Campbell, 355 F. Supp. 1220 (D. Md. 1972) (building management company and its vice-president entitled to official immunity when managing FHA owned building under direct control and ...


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