397 F2d 620 Pagano v. A Martin E

397 F.2d 620

Robert M. PAGANO, Appellant,
Samuel A. MARTIN and Howard E. Miniter, Jr., Appellees.

No. 12234.

United States Court of Appeals Fourth Circuit.

Argued June 19, 1968.

Decided July 1, 1968.

Robert M. Harcourt, Norfolk, Va., for appellant.

Walter H. Fleischer, Atty., Dept. of Justice (Edwin L. Weisl, Jr., Asst. Atty. Gen., John C. Eldridge, Atty., Dept. of Justice, and C. Vernon Spratley, Jr., U. S. Atty., on brief), for appellees.

Before BRYAN, WINTER and CRAVEN, Circuit Judges.


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In this libel action, Robert M. Pagano, a Radarman First Class in the United States Navy, claims damages from his superior officers, Commander Samuel A. Martin and Lieutenant-Commander Howard E. Miniter, Jr., who were respectively the commanding officer and executive officer of the USS Robert A. Owens, the plaintiff's ship. The alleged defamation appears in a Report of Enlisted Performance Evaluation issued on February 2, 1967 by the defendants upon Pagano's detachment from the Owens. In substance it downgraded him sharply and recommended he not be re-enlisted in the future. Dismissal of the complaint was ordered by the District Court on defendants' motion for summary judgment, 275 F.Supp. 498, and Pagano appeals.


We affirm. The report authorized by the Bureau of Naval Personnel Manual, was made by the defendant officers as part of their official duties. With the trial court, we think the suit, as a matter of law, cannot be maintained. Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959); Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950).