Several status conferences were held over the next few months, including one on December 24, 1981 at which counsel for the parties agreed by stipulation to adjourn all discovery until July 15, 1982. With the exception of another status conference before Judge Nickerson on September 3, 1982, there has been no docketed activity of note in the case through February 1983.

Status-The case is pending in the U.S. District Court for the Eastern District of New York.

Bodenmiller v. Stanchfield (state)

Civil Action Nos. 79-21814 and 79-25084 (Sup. Ct. Suffolk
County, N.Y.)

On August 27, 1979, Frank Bodenmiller, a former employee of Congressman Thomas Downey of New York, filed suit in the state Supreme Court in Suffolk County, New York against the Congressman, his administrative assistant, Rosalie Cipola, and various employees of the U.S. Postal Service and members of its employees union. [Civil Action Nos. 79-21814 and 79-25084] The complaint alleged that Mr. Bodenmiller, who in the course of his staff work purportedly had been conducting an investigation of the American Postal Workers Union contract with the Postal Service, was slandered by the Postal Service and Union defendants in order to discredit his investigation. According to the complaint, defendants Downey and Cipola "adopted the accusations" made against the plaintiff "in order to insure continued political support" from the Postal Workers Union. [Complaint, August 27, 1979, at 5] The complaint sought damages of $2 million each from Rep. Downey and Ms. Cipola, $10 million each from Donald Stanchfield (Director of Motor Vehicle Craft of the American Postal Workers UnionHicksville, N.Y. Local), the Union (Hicksville Local), and Anthony Passaro (a Postal Service employee and member of the Union).

On November 2, 1979, the plaintiff filed a motion for a default. judgment, asserting that the defendants had not responded to the complaint within the required time. With respect to the Congressional defendants, he contended that service had been accepted on their behalf by a New York attorney, Kevin Brosnahan.

On January 10, 1980, the General Counsel to the Clerk of the House filed an opposition to the plaintiff's motion and moved to be substituted as the counsel of record for the Congressional defendants. In his pleading the General Counsel noted that attorney Brosnahan had not been properly designated as an agent for service of process pursuant to New York law and that therefore mailing of the summons and complaint to him was not service upon the defendants. Furthermore, the General Counsel maintained that the Congressional defendants had several meritorious defenses to the allegations, including absolute immunity under the Speech or Debate Clause; 1 statutory permission (under Title 2 of the United States Code) to supervise and terminate Congressional employees, with or without cause; and common law official immunity.

The Speech or Debate Clause of the U.S. Constitution provides that "for any Speech or Debate in either House, [U.S. Senators and U.S. Representatives] shall not be questioned in any other Place." [art. I, §6, cl. 1]

On March 21, 1980, Justice Paul T. D'Amaro of the Suffolk County Supreme Court denied the motion for a default judgment, citing both the "strong public policy favoring a trial on the merits" and the possible meritorious defenses to the action. Additionally, the court noted that the plaintiff had not shown he was seriously prejudiced by the failure of the defendants to answer the complaint in a timely manner.

On April 4, 1980, the Congressional defendants moved to dismiss the action as to them because the complaint did not contain the exact words allegedly used by Rep. Downey and Ms. Cipola in slandering the plaintiff, as was required by New York law. According to the General Counsel, since the particular words were not pleaded there was no valid claim of slander per se. Second, the defendants contended, they were absolutely immune from liability for common law torts as long as they were acting within the scope of their authority. Finally, the defendants argued, the first cause of action asserted no wrong-doing on the defendants' part and made no allegation of special damages.

The plaintiff cross-moved for an order allowing him to replead after discovery the exact words allegedly used by Rep. Downey and Ms. Cipola in slandering him. This was opposed by the Congressional defendants in an affirmation filed on September 23, 1980, which also supported their motion to dismiss the complaint. On October 21, 1980, Judge Orgera denied the motion to dismiss with leave to replead after submission of the proper papers. Subsequently, on February 9, 1981, the General Counsel refiled the motion to dismiss and a supporting memorandum on behalf of the Congressional defendants.

On August 3, 1981, Justice D'Amaro issued a memorandum denying, as "premature," the motion of Rep. Downey and Ms. Cipola to dismiss the complaint. Although the court agreed with the defendants that the plaintiff had indeed failed to state in the complaint the exact words by which he was allegedly slandered, and therefore the complaint was insufficient, Justice D'Amaro ruled that "[r]ather than outright dismissal in these circumstances, the practice in this State is to permit the plaintiff to replead after disclosure." [Memorandum, August 3, 1981, at 2]

While the court recognized that the action raised a "serious question of immunity to the extent it is extended to the Congressional defendants," Justice D'Amaro concluded that the question could not then be addressed "inasmuch as the Court cannot determine from the complaint herein-even when read in conjunction with the voluminous affidavits and memoranda submitted on these motions-what exactly is alleged to have been said by whom, to whom and when." [Id. at 1-2]

The court also denied a motion by the plaintiff to include an additional cause of action-wrongful discharge-finding the plaintiff's arguments "specious and totally devoid of merit." [Id. at 21

On September 8, 1981, the plaintiff filed a notice of appeal to the Appellate Division of the Supreme Court of the State of New York, Second Judicial Department, from that part of Justice D'Amaro's order denying his motion to amend the complaint (to add a new cause of action for wrongful discharge). Although the notice was filed in the Suffolk Cv Court, no papers had been filed by the

plaintiff in the appeals court as of March 1, 1983 and therefore the appeal remains unperfected.

Status-According to the clerk of the appeals court, since no record or briefs were filed there by June 2, 1982, under applicable court rules the appeal could be dismissed on letter request of the respondents. However, no such request or motion has been made up to this time and the appeal technically remains pending. Since Justice D'Amaro initially denied the Congressional defendants' motion to dismiss the complaint, the case also remains pending in the lower court, although the plaintiff has yet to replead in accordance with the judge's August 3, 1981 ruling. There has been no further docketed activity in the lower court since the September 8, 1981 notice of appeal.

The complete text of the August 3, 1981 memorandum of the New York State Supreme Court, Suffolk County is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, September 1, 1981.

Bodenmiller v. Stanchfield (Federal)

No. 83-7150 (2d Cir.) and Civil Action No. 82-1265 (E.D.N.Y.) On May 7, 1982, Frank Bodenmiller, a former employee of U.S. Representative Thomas Downey of New York, filed suit in the U.S. District Court for the Eastern District of New York against the Congressman, Rosalie Cipola, his administrative assistant, and various employees of the U.S. Postal Service and members of its employees' union (the American Postal Workers Union). [Civil Action No. 82-1265] The complaint, which contained five separate causes of action, centered on an investigation Mr. Bodenmiller had purportedly conducted, in the course of his Congressional staff work, regarding the apparent abuse of the "injured on duty" clause of the union's contract with the Postal Service. Allegedly, Mr. Bodenmiller was reprimanded and subsequently fired by Rep. Downey after union officials became aware of his investigation and contacted the Congressman.

The first cause of action charged that the Congressional defendants conspired with the other named defendants to deprive Mr. Bodenmiller of his position as a Congressional aide by means of threat and intimidation in violation of 42 U.S.C. § 1985(1). [Verified Complaint, May 7, 1982, 21] The second cause of action averred that the various defendants also conspired by threat and intimidation to prevent the plaintiff from testifying in Federal proceedings which had been separately brought against one of the defendants, in violation of 42 U.S.C § 1985(2). [Id., 25] The third cause of action alleged that several of the non-Congressional defendants slandered the plaintiff in correspondence, telephone conversations and letters, while the fourth cause of action charged that Rep. Downey and Ms. Cipola repeated the allegedly slanderous accusations to various Federal officials, including members of the Postal Inspection Service and members of the office of the U.S. Attorney for the Eastern District of New York. [Id., ¶ 36] The final cause of action averred that the Congressional defendants "maliciously and punitively discharged" the plaintiff from his staff position after being contacted by the defendant union officials "in violation of the

public policy of the State of New York which is to encourage citizen cooperation in criminal investigations." [Id., ¶ 43] As damages the plaintiff sought $10 million from each of the named defendants. This action was in material respects identical to a suit previously filed in the state supreme court in Suffolk County, New York against most of the same defendants. (For a discussion of that case see page 173 of this report.)

On August 4, 1982, the Congressional defendants filed a motion to dismiss the complaint and a supporting memorandum. First, they argued, the third cause of action failed to allege any defamatory acts or statements by the Congressional defendants and therefore should be dismissed as to them. Second, they asserted, the fourth cause of action, while it did allege that the Congressional defendants adopted the slanderous accusations of the other defendants and repeated them to various Federal officials, failed to state a claim upon which relief could be granted because it did not set forth the specific words complained of as required by the New York law. (N.Ỷ. CPLR § 3016 (a) (McKinney, 1972)) The complaint, said the Congressional defendants, "fails to go beyond the allegation that some unspecified words were spoken by defendants which injured plaintiff in his business reputation. The words purportedly causing the harm are not pleaded. The Complaint is, therefore, insufficient on its face." [Congressional Defendants' Memorandum of Points and Authorities in Support of Motion to Dismiss, August 4, 1982, at 5]

Third, the Congressional defendants argued, the third and fourth causes of action-sounding in defamation-were barred by the applicable statute of limitations, in this case one year from the alleged defamation under New York law. Since the purported publication of the slanderous words by Rep. Downey and Ms. Cipola occurred between February and June of 1979, almost three years had elapsed prior to the initiation of the suit, and, according to the Congressional defendants, dismissal of the defamation counts was therefore required.

Fourth, the Congressional defendants contended, as Federal officials acting within their authority, they were absolutely immune from liability for common law torts. For this proposition they cited three Supreme Court cases: Spalding v. Vilas, 161 U.S. 483 (1896), Barr v. Matteo, 360 U.S. 564 (1950), and Butz v. Economou, 438 U.S. 478 (1978). The Congressional defendants pointed out that they were clearly carrying out their official duties insofar as the actions complained of were concerned. In their view, the plaintiff was engaged in "casework, . . . a universally accepted and practiced function of a Congressional office," and "Congressional defendants to the extent they made any slanderous utterances, did so only in furtherance of their duties to assist in Congressional casework and were well within the scope of their duties." [Id. at 8-9] Furthermore, the memorandum asserted, under 2 U.S.C. § 92, Rep. Downey was empowered to appoint, supervise and terminate employees, with or without cause, and "[a]ny actions which he has taken, including utterances, to other public officials, were taken in furtherance of his statutory responsibility to supervise the actions of his aides." [Id. at 9] Like, the memorandum argued, Ms. Cipola, as

Rep. Downey's "alter ego," was also entitled to an absolute privilege for utterances during the performance of her duties.

Beyond the absolute privilege to be accorded them for activities within the scope of their official duties, the Congressional defendants maintained that their alleged repetition of slanderous statements was also absolutely privileged because of the subject matter of the statements themselves:

Insofar as these statements are alleged to be defamatory, they clearly constitute a report to executive officials concerning what the Congressman and his aide considered to be potential criminal violations or, at the very least, to relate to conduct of an ongoing criminal investigation. Complaint 's 29, 36.

And in this connection, the right of any citizen to inform government officials of possible criminal violations is unquestioned.

The Court has stated:

It is the duty and right . . . of every citizen, to
assist in prosecuting, and in securing the punish-
ment of any breach of the peace of the United
States. It is likewise his right, and his duty to
communicate to the executive officers any infor-
mation which he has of the commission of an of-
fense against those laws; and such information.
given by a private citizen is a privileged and confi-
dential communication, for which no action of
libel or slander will lie.

In Re Quarles, 158 U.S. 532, 535-536 (1895) (emphasis
added). [Id. at 11]

Fifth, the Congressional defendants argued, Mr. Bodenmiller, as a Congressional staff member, was a public official and a "public figure" under the doctrine of New York Times v. Sullivan, 376 U.S. 254 (1964), and therefore any allegedly defamatory statements made about him by Rep. Downey or Ms. Cipola were privileged under the First Amendment unless the plaintiff could prove actual malice.

Sixth, the Congressional defendants asserted, as Federal officials acting under color of Federal law, they were absolutely immune from a suit grounded on the Federal civil rights statute, 42 U.S.C. § 1985 (1) and (2), the basis of the first two causes of action of the complaint.

Finally, the Congressional defendants contended, the action was barred in its entirety as to them by the doctrine of qualified immunity, as articulated by the Supreme Court in its decision in Harlow v. Fitzgerald, 50 U.S.L.W. 4815 (June 24, 1982).1 According to the Congressional defendants, the standard set by the Court in the Harlow case was that:

1

government officials performing discretionary functions generally are shielded from liability for civil damages

For a discussion of the Harlow case and a copy of the opinion see page 689 of Court Proceedings and Actions of Vital Interest to the Congress, September 1, 1982.