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GISSEN v. TACKMAN

January 16, 1975

Ira GISSEN, Plaintiff,
v.
Arthur L. TACKMAN et al., Defendants



The opinion of the court was delivered by: WHIPPLE

 WHIPPLE, Chief Judge.

 This matter comes before the Court by way of defendants' motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b) (6). Alternatively, defendants' move for an order pursuant to Fed.R.Civ.P. 56(b), for summary judgment on the ground that there is no genuine issue as to any material fact and that defendants are entitled to judgment as a matter of law.

 The plaintiff in this action seeks monetary damages of $225,000.00, plus punitive damages of $500,000.00 from each defendant, jointly and severally, for alleged discriminatory acts by defendants and deprivation of his constitutional rights. Jurisdiction is conferred on this Court under the fourteenth amendment of the constitution and 28 U.S.C. §§ 1331, 1332 and 1343.

 Plaintiff alleges that the defendants, in their capacity as employees of HUD, attempted to, and in fact did, transfer the plaintiff from one regional office to another for discriminatory purposes based on his Jewish religion and caucasian race, rather than for reasons related to his employment qualifications.

 Plaintiff further contends that as a result of such discrimination he was forced to accept employment at a lesser salary than he was entitled to and will continue to be harmed in the future. *fn1" Malicious motive and gross disregard of plaintiff's rights were also alleged.

 The defendants in this motion assert their immunity from suit under the doctrine of official immunity and have submitted affidavits to support their claim that the defendants at all relevant times acted within the "outer perimeter" of their line of duty as government officials.

 Should the Court find that defendants were in fact acting within the outer perimeter of their official duties, the major issue raised is whether the mere allegation of an improper motive of constitutional dimension will deny immunity to a government official acting within the scope of his authority and exercising a discretionary function.

 The doctrine of official immunity provides that government officials enjoy an absolute privilege from civil liability should their questioned activity fall within the delegated scope of their authority and the action undertaken require the exercise of discretion. Barr v. Matteo, 360 U.S. 564, 79 S. Ct. 1335, 3 L. Ed. 2d 1434 (1959); Howard v. Lyons, 360 U.S. 593, 79 S. Ct. 1331, 3 L. Ed. 2d 1454 (1959).

 The doctrine was perhaps best explained in Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949), in which Judge Learned Hand weighed the conflicting interests of a plaintiff wronged by the actions of a government official against the chilling effect that vexatious litigation would have upon a government official in performance of his duties. Noting that it was intolerable to allow wrongs committed by government officials to go unredressed, Judge Hand nevertheless found that the public interest in having government officials fearlessly perform their duties outweighed such potential danger. He reasoned:

 
The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties.

 Id. at 581.

 In Barr v. Matteo, supra, the Supreme Court adopted the reasoning of Judge Hand and held that the acting Director of the Office of Rent Stabilization was immune from liability for an allegedly libelous press release. In so holding, the Court set forth a dual test for determining whether a government official will be granted immunity. First, the official must be acting within the scope of his authority. Secondly, it must ...


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