Unpublished Disposition, 859 F.2d 924 (9th Cir. 1988)

No. 87-6495.

United States Court of Appeals, Ninth Circuit.

Before FARRIS, and WIGGINS, Circuit Judges, and M.D. CROCKER,^*  District Judge.

MEMORANDUM^** 

Steven Algorri appeals the grant of summary judgment in favor of defendants Thomas O'Malley, Kenneth Hines, and Donald Duncan. The district court held that the suit was barred by the doctrine of absolute immunity. Algorri claims that there are genuine issues of material fact with regard to the immunity issue that should be decided by a jury. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the grant of summary judgment de novo, viewing the evidence in the light most favorable to Algorri. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir. 1986).

Federal officials are absolutely immune from common law tort suits when they act within the outer perimeters of their official duties and their conduct is discretionary in nature. Westfall v. Erwin, 108 S. Ct. 580 (1988); Green v. James, 473 F.2d 660, 661 (9th Cir. 1973). Defendants asserting this defense have the burden of proving these two requirements by a preponderance of the evidence. If defendants produce sufficient evidence to make out a prima facie case, summary judgment is in order unless the plaintiff comes forward with evidence creating genuine issues of material fact for trial. Both the "discretionary act" test and the "outer perimeter" test are essentially factual inquiries.

The conduct at issue here was discretionary in nature. The only serious dispute involves the "outer perimeter" test. The district court relied primarily on the declaration of Major General Hudson in ruling that defendants had carried their burden of production with respect to this test. We agree. Hudson is an expert in military command and as such, his testimony was competent despite the fact that he lacked personal knowledge of the specific incidents at issue in this case. Hudson's opinion that military commanders in O'Malley's position have wide-ranging discretionary authority to take steps to avert episodes that might reflect adversely on the military or might harm the general public was probative on the "outer perimeter" test. This evidence, along with the language of 10 U.S.C. § 5947 requiring commanders "to promote and safeguard the morale ... and the general welfare of the officers and enlisted persons under their command or charge," was sufficient to carry defendants' burden of production.

Algorri contends that, even if defendants met their burden of production, the factual context of this case makes summary judgment inappropriate. We accept this argument. Several facts in the record create genuine issues of material fact as to whether O'Malley and his co-defendants were acting within the outer perimeters of their duties when they contacted United Airlines and told Algorri's new employer that he used and dealt illegal drugs. Algorri was cleared of drug use charges while he was under O'Malley's command. Despite the insufficiency of the evidence against Algorri, O'Malley barred Algorri from flying and ordered the flight surgeon, who never had examined Algorri, to make an entry in Algorri's medical record that he was mentally and psychologically unfit to fly aircraft. When this matter came to the attention of Colonel Johnson, he ordered O'Malley to resume scheduling Algorri for flying and voided the entry in Algorri's medical file. No drug use charges against Algorri were ever corroborated, and he flew on a regular basis until his honorable discharge in September 1985. Nonetheless, according to Algorri, O'Malley told him during a chance encounter at the El Toro base in December 1985 that he (Algorri) would "never fly again." Shortly thereafter, O'Malley, through Hines and Duncan, contacted United Airlines and implicated Algorri as "an inservice drug user and drug dealer."

These facts--many of which are disputed--are material to whether defendants acted within the outer perimeters of their duties. It would be too broad a sketch of those perimeters to allow a military commander to destroy the professional career of one of his pilots solely on the basis of uncorroborated hearsay and unproven accusations. The jury should be permitted to decide whether O'Malley had sufficient basis for making the statements he made to United.

This conclusion is buttressed by the declaration of Bruce Major, O'Malley's immediate predecessor as commander of VMGR 352. The district court discounted this declaration as "only suggestive of an alternative course of action." We disagree. Because the authority at issue is discretionary and not supported by specific language in an authorizing statute, custom and experience are relevant to whether O'Malley acted within the outer perimeters of his responsibilities. The testimony of someone who stood in the same shoes as O'Malley was relevant in this regard. Major's statement that " [i]f presented with circumstances which [he] believe [d] warranted action between [him]self in [his] capacity as a Marine Corps Officer and a private citizen, [he] would have contacted [his] superiors in the chain of command and the Staff Judge Advocate's Office for legal guidance" was probative. Even more probative to the "outer perimeter" test was Major's statement that he "never heard of a Commanding Officer initiating contact with an employer of an honorably discharged Marine who is a private citizen."

We hold, therefore, that the district court erred in entering summary judgment on the basis of absolute immunity. We may still affirm, however, if the record supports alternative grounds for a summary judgment. Smith v. Block, 784 F.2d 993, 996 n. 4 (9th Cir. 1986). Defendants argue for affirmance on two such grounds: causation and "intra-military immunity." We reject both arguments. Defendants' conduct was a substantial cause of Algorri's losing his job with United and being unable to find work as a pilot elsewhere. Had defendants not told United that Algorri was a drug user, United probably would not have asked him to submit to a drug test. See United Flight Operations Manual Sec. 31.1C. Thus, the possibility that Algorri's refusal to submit to a urine test was the immediate cause of his termination does not excuse defendants' conduct.

Intramilitary immunity does not apply because it only covers "injuries that 'arise out of or are in the course of activity incident to [military] service.' " United States v. Stanley, 107 S. Ct. 3054, 3063 (1987) (quoting Feres v. United States, 340 U.S. 135, 146 (1950)). Algorri's injuries occurred after his return to civilian life and were only tangentially related to his military service.

REVERSED.