                            UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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.



                                           2
            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



                                        3
     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


                                  4
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:

                                           5
      [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.


                                        6
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

                                                  7
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).



                                                  8
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,”

                                            9
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

                                             10
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.




                                              11
