B. Count II of the Complaint
In count II of the Complaint, plaintiff alleges that employees of Blue Shield, acting within the scope of their authority, supplied materially false information to the United States Attorney's Office causing loss of reputation and business. The complaint alleges that agents, servants and/or employees of Blue Shield wrongfully instigated a criminal investigation of Friedman & Associates by affirmative misrepresentations and by material omissions of fact. The government asserts that Blue Shield is protected from such tort claims based, among other things, on the doctrine of sovereign immunity. The court agrees.
A medical carrier, acting pursuant to the Medicare Act and on behalf of the HCFA, enjoys immunity from common law tort liability for actions within the scope of its authority. See Bushman v. Seiler, 755 F.2d 653 (8th Cir. 1985) (consultant for Medicare carrier, who allegedly slandered a provider of medical services, enjoys sovereign immunity for actions within scope of authority).
Indeed, even the lower echelon employees of a medical carrier are entitled to immunity for activities "committed by law to his control or supervision." Peterson v. Weinberger, 508 F.2d 45, 51 (5th Cir.), cert. denied, 423 U.S. 830, 46 L. Ed. 2d 47, 96 S. Ct. 50 (1975).
The test of whether an official is acting within the scope of his authority is whether the "act has more or less connection with general matters committed by law to the officer's control or supervision, and is not manifestly or palpably beyond his authority." Norton v. McShane, 332 F.2d 855, 859 (5th Cir. 1964), cert. denied, 380 U.S. 981, 14 L. Ed. 2d 274, 85 S. Ct. 1345 (1965). See also Watson v. Barker, 428 F. Supp. 590, 592 (W.D. Pa. 1977) ("doctrine of official immunity provides that government officials enjoy an absolute privilege from civil liability should the activity in question fall within the scope of their authority and the action undertaken requires the exercise of discretion."). Moreover, the Supreme Court has emphasized that, as a matter of public policy, sovereign immunity must be preserved so that federal officials can effectuate the policies necessary for effective governance. Barr v. Matteo, 360 U.S. 564, 571, 3 L. Ed. 2d 1434, 79 S. Ct. 1335 (1959).
In this case, a part B carrier, such as Blue Shield, should not be concerned about defending possible tort claims for activities it has performed in furtherance of its duty as an agent for the United States. Indeed, Blue Shield is required by government regulation to audit the records of providers to ensure that payments are made properly. 42 C.F.R. § 421.200(e).
Thus, where concerns arise in regard to certain billing methods of medical providers, it is certainly within the authority and duty of Blue Shield to notify the proper parties of the billing irregularities. The alleged tortious acts were committed by agents of the United States who were responsible for the integrity of the Medicare program during the course of an investigation of purported violations of the Medicare Act. As the Bushman court stated: "Applying immunity here is consistent with protecting officials who are required to exercise their discretion and promoting the public interest in encouraging the vigorous exercise of official authority." 755 F.2d at 656 (citations omitted). Accordingly, Blue Shield employees, acting within the scope of their authority, enjoy sovereign immunity from tort claims. Thus, count II of the Complaint will be dismissed.
For the foregoing reasons, the court will grant the government's motion to dismiss counts I and II of the Complaint pursuant to Fed. R. Civ. P. 12(b)(1), as the claims are barred from judicial review for lack of subject matter jurisdiction.
AND NOW, TO WIT, this 22nd day of September, 1993, upon consideration of defendant United States' motion to dismiss or, in the alternative, for summary judgment, plaintiff C. Jack Friedman & Associates' response, and the government's reply filed thereto, IT IS ORDERED that said motion is granted. Counts I and II of the Complaint are dismissed for lack of subject matter jurisdiction. Judgment is entered on behalf of defendant and against plaintiff.
LOUIS C. BECHTLE, J.