Unpublished Disposition, 908 F.2d 977 (9th Cir. 1990)

MEMORANDUM^* 

Donald Z. Lynch, a former intelligence agent of the United States Border Patrol, appeals a grant of summary judgment declaring his former supervisor, Tranberg, immune from an action for defamation. We reverse.

Defendant Tranberg served as Lynch's immediate supervisor for three years. Almost two years after Tranberg retired from the Border Patrol, he was involved in a near collision with Lynch's car. Tranberg mentioned the incident to a Mr. Geer, Lynch's then supervisor, and about a month later was called by Herbert Jefferson, who had taken over Geer's position. Having had his own problems with Lynch, Jefferson asked Tranberg for a written description of the incident and summary of his impressions of Lynch.

Tranberg provided the requested information in two separate letters, the second of which became the subject of this litigation. In the missive conveying his opinion of Lynch, Tranberg described his former subordinate as "psychotic," paranoid, and possibly dangerous to others.

Jefferson forwarded Tranberg's letters to the Border Patrol's Northern Regional Office in Minnesota, which reacted by placing Lynch on enforced sick leave. The agency subsequently also initiated removal proceedings against Lynch. Lynch appealed to the Merit Systems Protection Board. The Board found in his favor and ordered the Border Patrol to cancel the enforced sick leave and removal action and instead impose only a thirty-day suspension for disrespectful conduct toward a superior. Lynch then returned to work and his mandatory retirement followed sixty days later.

Lynch filed this action in state court, alleging that Tranberg's letter to Jefferson was defamatory. Tranberg then removed the case to federal court and filed a motion for summary judgment. The district court granted the motion, holding that Tranberg, as a former federal official, was entitled to immunity from state tort claims.

Federal officials are immune from state tort claims arising from acts done "within the outer perimeter" of their official duties. Barr v. Mateo, 360 U.S. 564, 575 (1959); Augustine v. McDonald, 770 F.2d 1442 (9th Cir. 1985). The defendant has the burden of establishing entitlement to absolute immunity. Westfall v. Erwin, 484 U.S. 292, 299 (1988).

Tranberg's motion papers failed to meet his burden. For two years before he wrote the letter in question, Tranberg had been retired from the Border Patrol. He had no continuing relationship with the agency during that time. We find no authority for the district court's extension of immunity to a retired federal official who has no connection with his former employer. The trend of recent Supreme Court cases has been to narrow, rather than expand, the availability of absolute (or "official") immunity to government officials.

In Westfall, for example, the Court added to the requirements that must be met before a grant of absolute immunity from a tort claim will be deemed appropriate, rejecting the broader view of the scope of absolute immunity urged by the defendant. 484 U.S. at 296. And in Forrester v. White, 484 U.S. 219 (1988), emphasizing that " [t]his Court has generally been quite sparing in its recognition of claims to absolute immunity," it denied a state court judge's claim of entitlement to absolute immunity from a constitutional claim for his decisions to demote and dismiss a court employee. Id. at 224.

As the Court noted in Westfall:

[t]he provision of immunity rests on the view that the threat of liability will make federal officials unduly timid in carrying out their official duties, and that effective government will be promoted if officials are freed of the costs of vexations and often frivolous damages suits.

484 U.S. at 295. Where, however, as here, the defendant has no official duties to carry out or to be diverted from in defending his actions in court, the "great cost" to citizens with otherwise colorable claims of extending immunity is not justified. See id. We therefore reverse the judgment of the district court and remand for consideration of the merits of Lynch's claim and any defenses that may be interposed thereto.

REVERSED AND REMANDED.