Martinez v. Schrock

SEITZ, Chief Judge

(dissenting).

It was long ago said that hard cases make bad law. I think that aphorism is particularly applicable to the result reached by the majority here. Reduced to its essence the majority holds that for purposes of the immunity doctrine a claim by a retired serviceman against military personnel is to be equated with the claim of an individual in active service against military personnel. In this way, the majority attempts to avoid the applicability of Barr v. Matteo, 360 U.S. 564 , 79 S.Ct. 1335 , 3 L.Ed.2d 1434 (1959). Instead they rely on Feres v. United States, 340 U.S. 135 , 71 S.Ct. 153 , 95 L.Ed. 152 (1950) which, as the concurring opinion notes, is not applicable to a claim of a retired serviceman arising after his retirement. Compare United States v. Brown, 348 U.S. 110 , 75 S.Ct. 141 , 99 L.Ed. 139 (1954).

No amount of legal legerdemain can obscure the fact that this is a state law claim by a civilian against military personnel. As the Supreme Court held in Howard v. Lyons, 360 U.S. 593 , 79 S.Ct. 1331 , 3 L.Ed. 1454 (1959), the immunity claim in such cases is a matter of federal law to be formulated by the courts in the absence of Congressional action. In addition, Howard teaches that the controlling federal principles governing the existence and scope of such immunity, in the absence of Congressional action, are to be found in Barr v. Matteo, supra.

In granting summary judgment in favor of defendants, the district court relied on the doctrine of official immunity enunciated in Barr v. Matteo, supra, and adopted by this Court in Keiser v. Hartman, 339 F.2d 597 (3d Cir. 1964). The majority, as noted, rejects this approach, and, in my view, commits error.

Barr was a libel action against the Acting Director of the Office of Rent Stabilization. There the Supreme Court extended the doctrine of absolute immunity, previously provided as a shield to a cabinet-level official in Spalding v. Vilas, 161 U.S. 483 , 16 S.Ct. 631 , 40 L.Ed. 780 (1896), to one whose position, although somewhat less exalted, involved the operation of a federal agency. The test which emerges from Barr is twofold. For absolute immunity to apply the government officer must (1) be a “policy-making executive official” and (2) be acting “within the outer perimeter of [his] line of duty.”

I am convinced that the defendant-doctors are not officials entitled to absolute immunity under Barr or subsequent cases. 1 Defendants are clearly not policy making executive officials like the agency head in Barr , and thus are not shielded by an absolute immunity. I therefore conclude that the district court erred in holding that de *774 fendants were entitled to absolute immunity-

Lesser officials are entitled only to a qualified immunity, the scope of which is related to the nature and extent of their governmental duties, see Doe v. McMillan, 412 U.S. 306, 319-20 , 93 S.Ct. 2018 , 36 L.Ed.2d 912 (1972). 2 There is no rigid formula as to what duties or functions of a public servant carry with them an entitlement to the protection of a qualified immunity and which do not. Each case must be scrutinized to determine the nature of a public servant’s acts. Some of the considerations which may weigh in favor of a finding that certain actions give rise to an official immunity are whether the particular public servant is acting to formulate public policy rather than merely to administer policy decisions, or whether the actions undertaken are broad in scope and prospective in effect, pertain to a large number of persons or to the public in general, and involve the exercise of official discretion. Such actions are considered governmental in nature and, as such, give rise to a qualified immunity. By way of contrast, if the actions in question involve carefully circumscribed or routine application of a policy to particular individuals or situations, they are considered ministerial and do not give rise to governmental immunity.

In this case the acts complained of clearly were not related to the formulation of policy nor to broad decision making with an impact on a wide number of people. Although defendants’ acts were discretionary in nature, it is clear that they were imbued, in the words of the court in Henderson v. Bluemink, 167 U.S.App.D.C. 161 , 511 F.2d 399 (1974), with medical and not governmental discretion. I therefore believe that defendants’ acts were not governmental in nature and that defendants are not shielded from any liability which may arise out of the performance of those acts under the doctrine of qualified immunity.

The most casual examination of the policy factors relied on in the majority and concurring opinions shows that they are not relevant under controlling principles. Rather than focusing upon the scope of the defendants’ authority and the nature of their discretionary duties, both the majority and the concurrence seem to rely instead on irrelevant factors reflecting the “equities” of the case. Certainly, the fact that the defendants were required to perform this operation, that they lacked malpractice insurance, and that plaintiff may have an alternate remedy does not further the inquiry into whether defendants are deserving of the qualified immunity reserved to lower public officials. Although these considerations may ultimately sway Congress to pass the bill presently before it, it is not for this court to “force” a result which Congress, though afforded the opportunity, has not yet seen fit to enact into law.

I would reverse the judgment of the district court and remand for further proceedings.

. It may be noted that medical personnel in the Veterans’ Administration are immune from malpractice suits under 38 U.S.C. § 4116 (Supp. 1973). Similar legislation now pending in Congress would apply to military medical personnel. However, up until this date Congress has not seen fit to adopt this legislation.

. I need not consider the Supreme Court’s recent pronouncements concerning the extent of immunity available to certain public officials in actions under 42 U.S.C. § 1983 (1970), since they were based on considerations not applicable in a case which does not fall under that statute. See Wood v. Strickland, 420 U.S. 308 , 95 S.Ct. 992 , 43 L.Ed.2d 214 (1975); Scheuer v. Rhodes, 416 U.S. 232 , 94 S.Ct. 1683 , 40 L.Ed.2d 90 (1974).

. N.J.S.A. 2A: 15-3 (survival claim); N.J.S.A. 2A:31-1 (wrongful death claim).

. See, e. g., Howard v. Lyons, 360 U.S. 593 , 79 S.Ct. 1331 , 3 L.Ed. 1454 (1959).