SUPREME COURT, SUFFOLK COUNTY

FRANK BODENMILLER,

V.

DONALD STANCHFIELD, DIRECTOR OF MOTOR VEHICLES: HICKSVILLE LOCAL OF THE AMERICAN POSTAL WORKERS UNION, HICKSVILLE, NEW YORK; AMERICAN POSTAL WORKERS UNION; ANTHONY PASSARO, HON. THOMAS J. DOWNEY, AND ROSALIE CIPOLA.

These separate, but identical actions, are hereby consolidated, but only for the purposes of disposing of the various motions and cross-motions the numerous parties have made.

Firstly, the motion by the defendant Leonard Comodeo, President of Hicksville Local APWU to dismiss the complaint (Index No. 7925804) as to it is denied as premature.

The motion by the defendants Downey and Cipola to dismiss the complaint (Index No. 79-21814) is also denied as premature.

Both actions sound in defamation. As claimed by the defendants, plaintiff has indeed failed to state the exact words by which defendants are alleged to have slandered him. To that extent the complaints are insufficient (CPLR 3016 [a]), furthermore, plaintiff has failed to establish that the members of the labor union, the Hicksville Local, had ratified the alleged defamatory statements of the union's officials (Martin v. Curran, 303 NY 276). Moreover, these actions raise serious question of immunity to the extent it is extended to the congressional defendants and to the extent that the alleged statements may have been made in connection with judicial or quasi-judicial in nature. (See Butz v. Economou, 438 US 478 (1978); New York Times Co. v. Sullivan, 376 US 254; Ronaldi v. Viking Penguin, 52 NY 2d 422 (1981); and particularly, Silbowitz v. Lepper, 32 AD 2d 520, First Dept. 1969).

The questions can not now be answered inasmuch as the Court cannot determine from the complaint herein-even when read in conjuction with the voluminous affidavits and memoranda submitted on these motions-what exactly is alleged to have been said by whom, to whom and when. Rather than outright dismissal in these circumstances, the practice in this State is to permit the plaintiff to replead after discloure. Accordingly, that branch of plaintiff's cross-motion is granted. Disclosure shall be had in accordance with the discovery provisions of the CPLR.

Plaintiff's cross-motion to amend the complaint so as to add an additional cause of action, i.e., wrongful discharge is denied. The Court finds plaintiff's arguments are specious and totally devoid of merit.

Lastly, the motion by the defendant Passaro for leave to re-argue a prior determination denying his motion to dismiss for lack of jurisdiction of the defendant is denied. The Court finds no discrepancy of law or fact which would warrant a change of its prior determination. All other relief defendant requests is denied.

This memorandum shall constitute the decision and the order of this Court.

UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT COLLEEN T. BOLAND, APPELLANT,

V.

ROBERT BLAKEY, CHIEF COUNSEL AND STAFF DIRECTOR, SELECT COMMITTEE ON ASSASSINATIONS, ET AL.

No. 80-1085

Argued April 14, 1981.

Decided May 12, 1981.

[1231] Former investigative researcher for the House of Representatives Select Committee on Assassinations filed suit claiming a violation of her liberty and property interests by reason of her summary dismissal from her position. The United States District Court for the District of Columbia, Charles R. Richey, J., dismissed the complaint. Employee appealed. The Court of Appeals held that the failure of the Committee to inform the investigative researcher of the reasons for her dismissal did not provide a basis for an injury to the former employee's professional reputation which was constitutional in dimension, and, therefore, the complaint was properly dismissed.

Constitutionally cognizable stigma arises only when foreclosure of employment opportunity has resulted from disclosure of derogatory information by public agency in question. U.S.C.A.Const. Amend. 5.

2. Constitutional Law 278.4(3)

Failure of House of Representatives Select Committee on Assassinations to inform investigative researcher of reasons for her dismissal did not provide basis for injury to professional reputation and did not rise to level of constitutionally congizable stigma. U.S.C.A. Amend. 5.

Federal court is not appropriate forum in which to review multitude of personnel decisions which are made daily by public agencies, but rather, review of dismissal can be predicated only on basis of alleged infringement of protected property or liberty interest. U.S.C.A.Const. Amend. 5.

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 78-1921).

Edward H. Rubenstone, with whom Richard A. Sprague, Philadelphia, Pa., and Joseph Rauh, Jr., Washington, D.C., were on the brief, for appellant.

R. Dennis Osterman, Asst. U.S. Atty., Washington, D.C., with whom Charles F. C. Ruff, U.S. Atty., John A. Terry and William H.

Briggs, Jr., Asst. U.S. Attys., Washington, D.C., were on the brief, for appellees.

Before TAMM and WALD, Circuit Judges, and HOWARD T. MARKEY,* Chief Judge, United States Court of Customs and Patent Appeals.

Opinion Per Curiam.

Per Curiam: On August 18, 1977, appellent Colleen Boland was summarily dismissed from her job as an investigative researcher for the House of Representatives Select Committee on Assassinations, a position she held for nine months. Boland subsequently filed suit in the District Court for the District of Columbia against Robert Blakey, Chief Counsel and Staff Director of the Committee, the members of the Committee, and the Committee itself, claiming violation of her liberty and property interests protected by the fifth amendment. United States District Judge Charles R. Richey granted the defendants' Motion to Dismiss on December 19, 1979, holding that Boland's complaint failed to state an interest protected by the Constitution. Boland filed a timely notice of appeal.

[1232] Plaintiff does not appeal the ruling by the district court that she failed to possess a constitutionally protected property interest in her non-tenured position as an investigative researcher. She contends, however, that the district court erred in holding that her complaint failed to allege a liberty interest under the fifth amendment. Appellaent argues that she possessed a constitutional right to be informed of the reason or reasons for her dismissal and that failure of the Committee so to inform her constituted a "stigma" foreclosing employment opportunites, and violated the fifth amendment. Brief for Appellant at 10, 12.

[1, 2] It is undisputed that appellant's abrupt termination from her researcher position disadvantaged her in her search for future employment. As prior decisions in this area make clear, however, a constitutionally cognizable stigma arises only when a foreclosure of employment opportunity has resulted from the disclosure of derogatory information by the public agency in question. See Board of Regents v. Roth, 408 U.S. 564, 574 n.13, 92 S.Ct. 2701, 2707 n.13, 33 L.Ed.2d 584 (1972); Bishop v. Wood, 426 U.S. 341, 348, 96 S. Ct. 2074, 2079, 48 L.Ed.2d 684 (1976); Codd v. Velger, 429 U.S. 624, 628, 97 S.Ct. 882, 884, 51 L.Ed.2d 92 (1977) (per curiam). See generally Mazaleski v. Treusdell, 562 F.2d 701, 712-15 (D.C.Cir. 1977). Appellant can cite no authority holding that a dismissal without explanation to anyone 1 infringes a liberty interest protected by the fifth amendment. We must, therefore, agree with the district court's succinct observation: "Silence alone does not provide the basis for an injury to professional reputation which is constitutional in dimension." Boland v. Blakey, No. 78-1921, slip op. at 3 (D.D.C., filed Dec. 19, 1979), Appendix at 14.

[3] Although we may question the wisdom of the policy, if any, behind this lack of explanation for appellant's dismissal, this court "is not the appropriate forum in which to review the multitude of personnel decisions that are made daily by public agencies." Bishop

*Sitting by designation pursuant to 28 U.S.C. § 293(a) (1976).

1 Plaintiff makes no claim that the Committee provides an explanation to employers interested in hiring her that remains hidden only from her.

v. Wood, 426 U.S. at 349 96 S.Ct. at 2079, quoted in Mazaleski v. Treusdell, 562 F.2d at 722. Such review can be predicated only upon the basis of an alleged infringement of a protected property or liberty interest. Appellant has failed to allege the disclosure of derogatory information by the Committee necessary for this court to find infringement of a protected liberty interest. The district court therefore correctly dismissed plaintiff's complaint.

Affirmed.

(Slip Opinion)

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

CBS, INC. v. FEDERAL COMMUNICATIONS
COMMISSION ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 80-207. Argued March 3, 1981-Decided July 1, 1981* Section 312 (a) (7) of the Communications Act of 1934, as added by Title I of the Federal Election Campaign Act of 1971, authorizes the Federal Communications Commission (FCC) to revoke any broadcasting station license "for willful or repeated failure to allow reasonable access to or to permit purchase of reasonable amounts of time for the use of a broadcasting station by a legally qualified candidate for Federal elective office on behalf of his candidacy." On October 11, 1979, the Carter-Mondale Presidential Committee (Committee) requested each of the three major television networks (petitioners) to provide time for a 30-minute program between 8 p. m. and 10:30 p. m. on any day from the 4th through the 7th of December 1979. The Committee intended to present, in conjunction with President Carter's formal announcement of his candidacy, a documentary outlining the record of his administration. The petitioners refused to make the requested time available. CBS emphasized the large number of candidates for the Presidential nominations and the potential disruption of regular programming to accommodate requests for equal treatment, but offered to sell a 5minute segment at 10:55 p. m. on December 8 and a 5-minute segment in the daytime; ABC replied that it had not yet decided when it would begin selling political time for the 1980 Presidential campaign, but later indicated that it would allow such sales in January 1980; and NBC, noting the number of potential requests for time from Presidential candidates, stated that it was not prepared to sell time for political programs as early as December 1979. The Committee then filed a com

*Together with No. 80-213, American Broadcasting Cos., Inc. v. Federal Communications Commission et al., and No. 80-214, National Broadcasting Co., Inc. v. Federal Communications Commission et al., also on certiorari to the same court.

I