insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable
person would have known. [50 U.S.L.W. at 4820]

Since they had absolute discretion in any decision concerning the supervision and termination of the plaintiff under 2 U.S.C. § 92, the Congressional defendants concluded that no such "clearly established right" was vested in the plaintiff that had been violated. On October 19, 1982, the remaining defendants ("union defendants") filed a motion to dismiss the complaint and a supporting memorandum. At the outset, the memorandum argued that the first and second causes of action, sounding in conspiracy under 42 U.S.C. § 1985 (1) and (2), were deficient in that the plaintiff had not alleged facts establishing that the union defendants had actually formed a conspiracy or had engaged in any overt acts in furtherance thereof. Further, the memorandum asserted, the actions of a union official in twice contacting Rep. Downey by letter about Mr. Bodenmiller's investigation could also not be the subject of a cause of action under § 1985 (1) or (2) because those letters constituted a "lawful exercise of free speech and the right to seek redress of grievances." [Memorandum of Law in Support of Motion to Dismiss, October 19, 1982, at 9] For this proposition, the memorandum in particular cited Stern v. United States Gypsum, Inc., 547 F.2d 1329 (7th Cir. 1977) and Bradley v. Computer Sciences Corporation, 643 F.2d 1029 (4th Cir. 1981).

Additionally, the union defendants contended that: (1) a cause of action did not lie under § 1985(2) for conspiracy to prevent Mr. Bodenmiller from giving testimony in a Federal proceeding, since the plaintiff "never attended or testified in a court of the United States" [Id. at 23]; (2) the plaintiff's employment as a Congressional aide was not "property" within the meaning of §1985(2); and (3) the plaintiff's causes of action under §1985 were barred by the applicable statute of limitations. With respect to the last point, the union defendants argued that although the Second Circuit had held that the three year period set forth in New York law applied to Federal civil rights actions, "the particular facts and circumstances of this case, while couched as a federal civil rights action, make it clear that it is actually one for defamation and therefore the one year statute of limitations applies." [Id. at 26] In the opinion of the union defendants the plaintiff had simply utilized the Federal civil rights statute as a "pretext" for gaining access to the Federal courts for his defamation action.

On October 29, 1982, the plaintiff filed a memorandum in opposition to the defendant's motions to dismiss the complaint. First, the plaintiff argued, the facts alleged in the complaint "clearly" established viable causes of action under 42 U.S.C. § 1985 (1) and (2). Second, he contended, the union official's actions in contacting Rep. Downey did not constitute a lawful exercise of free speech because the intent of the letters was to "ruin" the plaintiff and therefore went beyond a mere legitimate complaint. Third, the plaintiff asserted, based on recent precedent, Congressional defendants Downey and Cipola, even as Federal officials, were subject to the provisions of § 1985 (1) and (2). Furthermore, he reasoned, even if the Congressional defendants were not subject to § 1985, "they

have brought themselves within its scope by conspiring with others who are clearly covered by its provisions." [Memorandum of Law in Opposition to Defendants' Motions, October 29, 1982, at 17]

Fourth, the plaintiff argued, the Congressional defendants were not absolutely immune from common law tort liability in this case since they were not acting within the scope of their duties (in defaming the plaintiff) and since their acts resulted in the violation. of the plaintiff's constitutional rights (specifically, his right to testify). The plaintiff elaborated:

It would be fundamentally unfair to condone the actions of defendants Downey and Cipola by extending immunity to them. They were not protecting any congressional interest; the only interest they sought to protect was a political interest. Defendants Downey and Cipola's primary concern in dealing with plaintiff Bodenmiller was to insure that his acts did not offend the postal union, a big political base for the defendant Downey. Clearly, the furtherance of Congressman Downey's political ambitions is not a sufficient reason to irreparably damage plaintiff Bodenmiller's reputation and allow a criminal act to go unpunished. [Id. at 27-28]

Moreover, the plaintiff insisted, since the Congressional defendants violated the plaintiff's civil and constitutional rights they were also not entitled to a qualified immunity under the Harlow v. Fitzgerald case.

Fifth, the plaintiff contended, the first two causes of action under § 1985 were not barred by the statute of limitations because they alleged Federal civil rights violations, not defamation. Furthermore, the plaintiff maintained, causes of action founded on a conspiracy did not accrue until the last overt act alleged to have occurred caused damages. In this case, said the plaintiff, the last overt act of the conspiracy occurred when he was discharged on May 11, 1979.

Sixth, the plaintiff argued, the district court should entertain the state court claims (i.e., the final three causes of action for slander and abusive discharge). Such an exercise of the district court's pendent jurisdiction was warranted, the plaintiff claimed, because "all the causes of action involve one controversy; that is, the grounds are the same while the theories differ. Quite simply, the complaint recites a series of incidents which resulted in a single wrong to this plaintiff." [Id. at 38 (emphasis in original)] Finally, with respect to the Congressional defendants' contentions regarding the actual malice standard and the failure to set forth the specific defamatory words complained of, the plaintiff asserted:

Insofar as defendants argue that the complaint is legally insufficient because the plaintiff may be a public official and may therefore be held to the standard of "knowledge of falsity" or "reckless disregard of the truth", it is sufficient to note that such claims are the very basis for and permeate the entire complaint, of course, the defamation was both written and verbal; written as reflected by the known letters from the union to Downey, and, verbal to

the extent the charges were embraced and repeated to
obtain the desired ends. Obviously, plaintiff cannot be
privy to the exact words used, to whom they were spoken
on each occasion and when they were uttered. That will be
known only after the completion of discovery. [Id. at 48]

On November 1, 1982, the motions to dismiss were argued before U.S. District Court Judge Jacob Mishler and taken under advisement.

On January 17, 1983, Judge Mishler issued a memorandum of decision and order dismissing the complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief could be granted. [Bodenmiller v. Stanchfield, 557 F. Supp. 857 (E.D.N.Y. 1983)] In essence, Judge Mishler found that the plaintiff failed in his complaint to allege facts constituting the elements of a conspiracy—a combination of two or more persons to do an unlawful or criminal act or to do a lawful act by unlawful means or for an unlawful purpose.

Judge Mishler ruled that, aside from general conclusory statements, the complaint did not properly allege participation in the conspiracy by several of the defendants (including Congressional defendant Cipola). Further, Judge Mishler determined, the allegation concerning threats and intimidation were also not supported by the facts averred in the complaint. The judge found that the union official's contacts with Rep. Downey did not constitute illegal threats but were "merely critical of Bodenmiller's conduct and . . . such material falls within the protection of the First Amendment as criticism of an elected official's aide." [557 F. Supp. at 861] Citing the Stern and Bradley cases relied on by the union defendants, Judge Mishler continued: "Complaints to responsible government officials about the conduct of their subordinates with whom the complainer has had official dealings, constitutes speech protected by the First Amendment." [Id.]

Moreover, Judge Mishler held, Rep. Downey's conduct was also not illegal since he was empowered by law (2 U.S.C. § 92) to appoint, supervise and terminate employees with or without cause. Therefore, the judge ruled, neither "the threat of suspension or discharge, nor the actual suspension or discharge by Downey can be described as unlawful conduct." [Id.]

With respect to the element of unlawful purpose, Judge Mishler also found that the plaintiff's claims were unsupported by the facts:

Bodenmiller's claims respecting interference with or deprivation of his "office," his "duties" and his "property" do not support a cause of action under § 1985 (1) or (2) where Downey is granted broad discretion pursuant to 2 U.S.C. § 92 as to the supervision of his staff. The facts pleaded by Bodenmiller indicate that Downey's original reprimand and further disciplinary action were not arbitrary but were based upon Downey's evaluation of Bodenmiller's conduct in pursuing the investigation. We find Bodenmiller's allegations of wrongful interference, deprivation and retaliation to be unsupported by the stated facts.

Similarly, we find that no facts are pleaded from which it can be inferred that the defendants sought to prevent him from giving testimony in a federal proceeding. Bodenmiller merely states that he advised Downey that he (Bodenmiller) "would most probably be called upon to testify in the criminal action . . . against Passaro" (Par. 16) and that subsequently Downey "strongly hinted that [Bodenmiller] should not testify as a witness against Passaro." (Par. 17). We do not find that such "strong hint" represents a wrongful interference with a witness or an obstruction of justice. We also note that Bodenmiller was never a witness in a federal proceeding. He merely claims that he gave a statement to a Postal Inspector. No further contact with the Postal Inspector or any other party to the investigation is alleged. No grand jury was convened, no subpoena was served on Bodenmiller and the charges against Passaro were dismissed. [Id. at 861-862 (footnote omitted)] In sum, Judge Mishler found that the plaintiff's first and second causes of action merely tracked the statutory language of 42 U.S.C. § 1985 (1) and (2) and that his "conclusory allegations" did not support his contention that the defendants conspired to interfere with his civil rights. Judge Mishler therefore dismissed the first two claims, which were the asserted basis of the district court's jurisdiction over the case, and held that the remaining three causes of action, as pendent state claims, also had to be dismissed. (Judge Mishler did not consider the issue of Congressional immunity or the statute of limitations arguments and so stated in separate footnotes.)

On January 19, 1983, the clerk of the court entered a judgment formally dismissing the complaint.

On February 14, 1983, the plaintiff filed a notice of appeal to the U.S. Court of Appeals for the Second Circuit. [No. 83-7150]

Status-The case is pending in the U.S. Court of Appeals for the Second Circuit and, solely with respect to the issue of attorneys' fees, in the U.S. District Court for the Eastern District of New York.

The complete text of the January 17, 1983 memorandum of decision and order of the district court is printed in the "Decisions" section of this report at page 590.

V. Legislative Immunity and the Speech or Debate Clause McSurely v. McClellan (formerly McAdams)

Civil Action No. 516-69 (D.D.C.) and No. 82-2369 (D.C. Cir.) On August 11, 1967, pursuant to warrants issued under a state sedition statute, Kentucky officials arrested Alan and Margaret McSurely and seized books and papers from their home. Subsequently, the McSurelys filed a complaint in the U.S. District Court for the Eastern District of Kentucky, challenging the constitutionality of the state statute.

On September 11, 1967, the three-judge court which heard the case issued an order directing that:

(1) the material seized in the raid on the McSurely home be left in the custody of the Kentucky Commonwealth Attorney, Thomas B. Ratliff;

(2) the material be made available to the U.S. Marshal for the Eastern District of Kentucky;

(3) Mr. Ratliff and the U.S. Marshal make an inventory of the seized material and file it with the record of the case; and

(4) Mr. Ratliff return to the McSurelys such materials as he determined were not relevant to the investigation and prosecution of the McSurelys.

That same day, the McSurelys were indicted by a Kentucky grand jury.

On September 14, 1967, the three-judge Federal district court rendered its decision holding the Kentucky statute unconstitutional and enjoining prosecution of the McSurelys. The court directed that Mr. Ratliff retain the seized materials "in safekeeping until final disposition of this case by appeal or otherwise." [McSurely v. Ratliff, 282 F. Supp. 848 (E.D. Ky. 1967)]

On September 25, 1967, Lavern Duffy, Assistant Counsel on the staff of the Permanent Investigations Subcommittee of the Senate Government Operations Committee, called Mr. Ratliff by phone to ask about the seized documents. Subsequently, on October 8, 1967, committee investigator John Brick went to Kentucky, talked with Mr. Ratliff, and confirmed that the seized material in Mr. Ratliff's possession contained information relating to the activities of a number of organizations in which the Subcommittee was interested.

On October 12, 1967, Mr. Brick examined the material for about four hours. He took notes, made copies of 234 of the documents, and then returned to Washington.

On October 16, 1967, Subcommittee Chairman Senator John McClellan told Mr. Brick to prepare subpoenas duces tecum for the seized material in Mr. Ratliff's custody, which the Senator had determined was relevant to the Subcommittee's investigations of an April 1967 riot in Nashville, Tennessee. The next day, the McSurelys filed motions with the three-judge court seeking orders blocking Mr. Ratliff from releasing the seized material to the Subcommittee and directing him to return the materials to them (the McSurelys). On October 30, 1967, the three-judge court issued an order denying the McSurelys' motions. Officers of the court and the parties to the action were directed to cooperate with the Senate committee in making available whatever materials the Subcommittee considered pertinent to its inquiry.

On November 1, 1967, a motion for reconsideration and rehearing of the October 30th order was denied. The court granted a 24hour stay to allow the McSurelys to apply to the U.S. Supreme Court for review, and directed that pending such review the material was not to be removed from Mr. Ratliff's custody.

On November 10, 1967, Justice Stewart, for the Supreme Court, ordered that the documents remain in Mr. Ratliff's custody until the three-judge court could hear and rule on the McSurelys' objections to the Congressional subpoenas. [389 U.S. 949]