M. Louis Offen, M.d. v. Alan I. Brenner, M.d.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1674
M. LOUIS OFFEN, M.D.,
Plaintiff - Appellant,
v.
ALAN I. BRENNER, M.D.,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge.
(8:05-cv-01606-RWT)
Argued: March 26, 2009 Decided: June 9, 2009
Before NIEMEYER and MICHAEL, Circuit Judges, and Eugene E.
SILER, Jr., Senior Circuit Judge of the United States Court of
Appeals for the Sixth Circuit, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Edward Mark Buxbaum, WHITEFORD, TAYLOR & PRESTON, LLP,
Baltimore, Maryland, for Appellant. Tarra R. DeShields-Minnis,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee. ON BRIEF: Emily A. Daneker, WHITEFORD, TAYLOR &
PRESTON, LLP, Baltimore, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
M. Louis Offen, M.D., sued Alan I. Brenner, M.D.,
alleging defamation under Maryland law. Brenner had written a
letter to Offen’s supervisor accusing Offen, a federal employee,
of various acts of insubordination, and Offen was disciplined
following an administrative proceeding. The district court
granted Brenner’s motion to dismiss under Rule 12(b)(6),
concluding that Brenner was entitled to an absolute privilege
under Maryland defamation law. In Offen’s first appeal, after
receiving the Court of Appeals of Maryland’s answer to a
certified question, we vacated the dismissal. On remand the
district court took into account the Maryland court’s decision
on the certified question, and again dismissed Offen’s
complaint. This time, we affirm.
I.
Offen is a neurologist employed by the U.S. Department
of Health and Human Services (DHHS) in the Division of Vaccine
Injury Compensation (DVIC). Offen reviews claims filed against
the DHHS by persons seeking compensation for alleged vaccine-
related injury. Offen evaluates the merits of a claim and
transmits his conclusions to the Department of Justice (DOJ)
lawyer assigned to represent DHHS on the claim.
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In 2004 Offen and a retained outside consultant
reviewed a certain Hepatitis B vaccine injury claim and reported
their conclusions to the assigned DOJ lawyer. The DOJ lawyer
thereafter contacted Offen’s supervisor, Vito Caserta, M.D., for
further assistance “regarding the DOJ’s determination [as to]
how to proceed with respect to the [claim].” J.A. 8. Caserta,
in turn, discussed the claim in a conference call with two other
physicians, the defendant, Brenner, a rheumatologist who is an
outside consultant for DVIC, and Arnold Gale, M.D. In May 2004
Offen contacted Brenner and offered to provide him with records
that were relevant to the claim. Brenner accepted the offer,
and Offen sent him the records.
Later, on July 30, 2004, Brenner sent a letter to
Offen’s supervisor, Caserta, which contained the following
passages:
In the past several months I have had a number of
telephone calls and E mail communications from Dr.
Offen, each requesting my private opinion on DVIC
cases not officially assigned to me for
consultation. . . .
The first of this latter type of call was regarding
the makeup of our Civilian Expert Immunization
Committee (CEIC). The substance of that call was to
question me about the process of selection of
committee members. I felt that the tone of the
questioning was accusatory and, in my opinion,
defamatory and degrading to DVIC. . . .
You will recall that, several months ago, you arranged
a telephone conference in which you, Dr. Arnold Gale
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and I participated. The purpose of that conference
was to discuss the [Hepatitis B claim]. . . .
About 2 months ago Dr. Offen called me, stating that
the case had not been presented in its entirety and
that you had misrepresented the facts to induce Dr.
Gale and me. . . . My recollection of the call was
that Dr. Offen accused you of twisting the facts and
of leaving out pertinent information to suit some
personal purpose and that he wanted to send me the
case record suggesting that my review of the documents
would prove that our conclusion was in error. . . .
I have been very disturbed by the tone of Dr. Offen’s
accusations and the way in which he has seemed to try
to enlist my support in some sort of personal vendetta
against DVIC in general and several members of the
office in particular. Indeed I believe that Dr. Offen
has had something derogatory to say about each and
every medical officer involved. Dr. Offen has also
made it quite clear that he has no respect for the
leadership of DVIC. He positively gloated over Thom
Balbier’s transfer, telling me that Thom had been
removed for incompetence and stating that you would be
the next to go.
J.A. 8-9.
This letter prompted Caserta to initiate formal DHHS
disciplinary proceedings against Offen. At the conclusion,
Offen was suspended for five days without pay and stripped of
some of his responsibilities. The administrative proceedings
against Offen were conducted according to the procedures set
forth in the agency’s regulations, and he does not contend that
the procedural safeguards were inadequate.
Offen sued Brenner for defamation in the United States
District Court for the District of Maryland, invoking diversity
jurisdiction under 28 U.S.C. § 1332. Brenner filed a motion to
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dismiss, claiming that his statements in the letter were
protected by an absolute testimonial privilege. Maryland
defamation law recognizes an absolute privilege for witnesses in
judicial proceedings and extends that privilege to witnesses in
administrative proceedings in certain circumstances. Gersh v.
Ambrose, 434 A.2d 547, 548-49, 551-52 (Md. 1981). Whether the
privilege is available in an administrative proceeding turns on
two factors: “(1) the nature of the public function of the
proceeding and (2) the adequacy of procedural safeguards which
will minimize the occurrence of defamatory statements.” Id. at
551-52. Offen argued that his antagonist, Brenner, was not
entitled to an absolute privilege because the first Gersh factor
-– the public interest -- was not sufficiently implicated.
According to Offen, the public interest factor is not satisfied
where the targeted employee has limited duties and authority.
The district court, however, refused to consider Offen’s duties
and authority. The court instead focused on the importance of
DHHS’s disciplinary proceedings, concluding that they were
important to an orderly public health system. This conclusion
led the district court to hold that Brenner had an absolute
privilege, which resulted in the dismissal of Offen’s complaint.
On appeal we certified a question to the Court of
Appeals of Maryland. See Md. Code Ann., Cts. & Jud. Proc.
§§ 12-601 – 12-609. We asked:
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[I]n deciding whether a statement that led to an
administrative proceeding against a public employee is
protected by absolute privilege, should the duties and
authority of the employee against whom the statement
was made be considered in determining, “the nature of
the public function of the proceeding”?
The Court of Appeals of Maryland engaged in a thorough
discussion of relevant Maryland case law and concluded that “the
duties and authority of the employee are a useful factor, but
should not be determinative, in considering the nature of the
public function of the administrative proceeding.” Offen v.
Brenner, 935 A.2d 719, 721 (Md. 2007). After receiving
Maryland’s answer, we vacated the judgment of the district court
and remanded the case for further consideration in light of the
answer. On remand the district court considered the scope of
Offen’s duties and authority, but nevertheless concluded once
again that Brenner was entitled to an absolute privilege. The
court therefore granted, for the second time, Brenner’s motion
to dismiss. Offen appeals that decision, which we review de
novo, Hatfill v. N.Y. Times Co., 416 F.3d 320, 329 (4th Cir.
2005).
II.
Under Maryland defamation law certain communications
are protected by an absolute privilege. A speaker protected by
an absolute privilege is immune from liability regardless of his
purpose or motive. Miner v. Novotny, 498 A.2d 269, 270 (Md.
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1985). A witness testifying in a judicial proceeding has long
been entitled to such a privilege, and, more recently, the
privilege has been extended to statements made in certain
administrative proceedings. Gersh, 434 A.2d at 551-52.
Moreover, the privilege may cover statements made in advance of
judicial and administrative proceedings. See Miner, 498 A.2d at
275.
Again, whether absolute witness immunity extends to an
administrative proceeding depends on two factors: “(1) the
nature of the public function of the proceeding and (2) the
adequacy of procedural safeguards which will minimize the
occurrence of defamatory statements.” Gersh, 434 A.2d at 552.
Maryland courts regard the second factor as a threshold
requirement: adequate procedural safeguards must be in place in
the administrative proceeding. See Offen, 935 A.2d at 725
(noting that immunity can be extended to cover only those
proceedings with procedural protections “functionally comparable
to judicial processes”); McDermott v. Hughley, 561 A.2d 1038,
1045 (Md. 1989) (declining to extend privilege because of
absence of procedural safeguards in the proceeding). Offen has
conceded the adequacy of the procedural safeguards that
accompanied his disciplinary hearing.
The existence of adequate procedural safeguards is not
alone sufficient, however. Offen, 935 A.2d at 725, 728. “[T]he
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nature of the public function of the proceeding [must] act[] to
protect a socially important interest.” Id. at 729. Moreover,
the public interest must outweigh the potential harm to the
plaintiff’s reputation. Id. at 726.
In answering our certified question, the Court of
Appeals of Maryland distinguished ongoing administrative
proceedings from those not yet initiated.∗ Id. at 728-29. Prior
to a proceeding, Maryland has recognized a “socially important
interest in allowing for the protestation and reporting of
alleged abuses of the public trust as a result of official
conduct.” Id. at 729. The Court of Appeals of Maryland has
held, for example, that citizen complaints alleging police
brutality, incompetence in emergency medical care, and sexual
misconduct by a teacher implicate important societal interests.
Miner, 498 A.2d at 275 (police brutality); Imperial v. Drapeau,
716 A.2d 244, 250-51 (Md. 1998) (emergency medical care
quality); Reichardt v. Flynn, 823 A.2d 566, 573, 575 (Md. 2003)
(sexual misconduct by a teacher). In each of those cases, the
court concluded that “[t]he importance of not deterring citizen
∗ In the context of ongoing judicial and administrative
proceedings, there is an interest in ensuring that “witnesses
should go upon the stand with their minds absolutely free from
apprehension that they may subject themselves to an action of
slander.” Id. at 729. (quoting Hunckel v. Voneiff, 14 A. 500,
501 (Md. 1888).
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complaints outweighed the possible harm of defamatory
statements,” Offen, 935 A.2d at 729, and extended an absolute
privilege to the complaints, id. at 730.
In answering our certified question, the Maryland
Court of Appeals made clear that the duties and authority of the
targeted individual are relevant to the weight to be given to
the public interest factor. Offen, 935 A.2d at 730. According
to the Court, the inquiry into “the nature of the public
function of the proceeding” is meant to shed light on
the proceeding’s effect on the public and its impact
on a socially important interest. It therefore may be
necessary in some cases to examine the public
authority or duties entrusted in the employee. The
duties and authority attendant to a particular
position may determine how much influence an official
has over the public from his or her position, which in
turn can affect how closely the proceeding serves a
public interest. From our jurisprudence, it follows
that the “nature of the public function of the
proceeding” therefore also includes an inquiry into a
person’s power over the public when the identified
public interest is an important check on that power.
Id. The touchstone of the analysis, which takes into account
limitations on a public employee’s authority and duties, is the
strength of the public interest in preventing the alleged
abuses.
Brenner’s letter to Caserta asserts that Offen was
carrying out a personal vendetta against DVIC and undermining
its officers. The letter accuses Offen of telling Brenner that
Caserta had “misrepresented the facts,” “twist[ed] the facts,”
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and “le[ft] out pertinent information” in presenting information
used by Brenner to reach a recommendation on a Hepatitis B
claim. Fairly read, the Brenner letter accuses Offen of trying
to convince Brenner to change his substantive conclusions and
recommendations on that claim. The letter further suggests that
Offen was circumventing DVIC’s established process for reviewing
claims. Brenner’s accusations call into question Offen’s own
credibility and impartiality in reviewing claims and implicate
the overall integrity of DVIC’s review process. The integrity
of vaccine claims administration affects the availability and
amount of compensation provided to individuals with vaccine-
related injuries and otherwise implicates national public health
policy. There is an important social interest in ensuring that
DVIC employees render impartial, objective, and fair evaluation
of claims.
Offen argues that his duties and authority were so
limited that his actions could not jeopardize the integrity of
DVIC’s review process. The parties agree that DVIC
recommendations, including recommendations made by Offen, do not
dictate the government’s position on vaccine injury claims; the
assigned DOJ lawyer is ultimately responsible for that position.
But in practice the government’s position depends on DVIC’s
medical expertise. Offen’s complaint itself illustrates the
important role that DVIC employees, like Offen, play in
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formulating the government’s position. After reviewing Offen’s
conclusions, the DOJ lawyer assigned to the Hepatitis B claim at
issue sought the advice of Offen’s supervisor, who in turn
consulted with Brenner. Thereafter, Offen allegedly went
outside the proper chain of command to influence Brenner. Even
taking into account the limitations on Offen’s authority, the
allegations made against him raise significant public concerns
relating to the integrity of DVIC evaluations of vaccine-related
claims.
We conclude that the possible harm a false complaint
may cause to an individual DVIC employee’s reputation,
notwithstanding the procedural safeguards provided, is
outweighed by the public’s interest in encouraging the filing
and investigation of citizen complaints implicating the
integrity of the vaccine claims administration process.
Further, Offen’s disciplinary hearing advanced the public’s
interest in protecting the integrity of that process. See
Offen, 935 A.2d at 729-30. The judgment of the district court
dismissing Offen’s complaint is therefore
AFFIRMED.

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