UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 vaccinerelated 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 vaccinerelated 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 
11 

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.