719 F.2d 155 (6th Cir. 1983), 81-5668, Windsor v. The Tennessean

Docket Nº:81-5668.
Citation:719 F.2d 155
Party Name:Richard L. WINDSOR, Plaintiff-Appellant, v. THE TENNESSEAN, et al., Defendants-Appellees.
Case Date:October 12, 1983
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 155

719 F.2d 155 (6th Cir. 1983)

Richard L. WINDSOR, Plaintiff-Appellant,

v.

THE TENNESSEAN, et al., Defendants-Appellees.

No. 81-5668.

United States Court of Appeals, Sixth Circuit

October 12, 1983

Argued Nov. 12, 1982.

Rehearing Denied Jan. 23, 1984.

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[Copyrighted Material Omitted]

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Robert L. Huskey, Manchester, Tenn., for plaintiff-appellant.

Joe B. Brown, U.S. Atty., Aaron Wyckoff, Nashville, Tenn., Barbara L. Herwig, R. Joseph Sher (argued), Civ. Div., Torts Branch, Washington, D.C., Alfred H. Knight, III (argued), Marian F. Harrison, Nashville, Tenn., for defendants-appellees.

Before EDWARDS and CONTIE, Circuit Judges, and MOYNAHAN, Chief District Judge. [*]

CONTIE, Circuit Judge.

Plaintiff Windsor, a former assistant United States attorney, appeals a district court order dismissing his complaint for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). Appellees are The Tennessean, a newspaper; John Seigenthaler, its publisher; Wayne Whitt and Carol Clurman, two of the newspaper's employees; and Hal Hardin, former United States attorney for the Middle District of Tennessee. The complaint raises claims for damages under the fifth amendment's due process clause, under 42 U.S.C. Sec. 1985(1), under 5 U.S.C. Sec. 552a and under state law for defamation, malicious interference with employment and "outrageous conduct." The district court dismissed the federal constitutional and statutory claims. It remanded the state claims, with one exception, to the state court from which the action had been removed. Windsor does not appeal the remand. The state claims against Hardin were dismissed on the

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ground of absolute immunity rather than remanded.

When evaluating a motion to dismiss brought pursuant to rule 12(b)(6), the factual allegations in the complaint must be regarded as true. Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 174-75, 86 S.Ct. 347, 348-349, 15 L.Ed.2d 247 (1965). The claim should not be dismissed unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). Windsor's complaint alleges that the defendants conspired either to remove him from his position as assistant United States attorney (AUSA) or to force him to resign.

After Hardin was appointed United States attorney in 1977, Windsor, who had been appointed in 1974, accused Hardin of favoritism toward certain defendants, attorneys and political parties. Tension between the two increased because of separate incidents involving John Seigenthaler, publisher of The Tennessean and a prominent political figure. In early 1979, Windsor mentioned certain matters about Seigenthaler to a local government attorney. When Seigenthaler learned of this discussion, he called Hardin in anger and claimed that Windsor had disparaged him. In January, 1980, a grand jury witness told Seigenthaler that Windsor had presented evidence to the grand jury linking Seigenthaler to a bingo operation. The latter again became highly upset and complained vociferously to Hardin. Hardin then stormed into Windsor's office and demanded an explanation about why Seigenthaler's name had been mentioned before the grand jury. Plaintiff claims that after this time, Hardin feared Seigenthaler and tried to appease him.

In June, 1980, Windsor was called to testify at a suppression hearing in an insurance fraud case. During this proceeding, the trial Judge expressed concern about prosecutorial misconduct on Windsor's part. Allegedly seizing on the opportunity for revenge against the plaintiff, Seigenthaler caused The Tennessean to make "daily fanfare" of these charges while ignoring plaintiff's thorough and satisfactory explanations. In addition, Windsor contends that the newspaper knowingly and/or recklessly made blatantly false statements about him for the dual purposes of injuring his reputation and pressuring Hardin to discharge him.

Hardin, "partially as a result of the pressure put upon him by [Seigenthaler] and partially due to his own friction with [the] Plaintiff joined with and conspired with the other Defendants" (App. at 19) to force Windsor from his job. In furtherance of this conspiracy, Hardin had the insurance fraud case dismissed and the newspaper continued to print defamatory material about plaintiff. In July, 1980, Hardin attended a United States attorneys conference in Oregon. At this meeting, and in furtherance of the conspiracy, Hardin presented to the Deputy Attorney General of the United States and another high official 1 the false and defamatory news articles. He suggested that Windsor be terminated. Hardin also prepared a letter addressed to the plaintiff which stated four reasons for the discharge. 2

Windsor was next ordered to go to Washington, D.C. in order to meet with Deputy Attorney General Renfrew. Renfrew purportedly told Windsor that the latter was not entitled to due process and that all factual determinations had been made. Plaintiff was given the option of resigning within ten days or being fired and having the damaging letter placed in his personnel

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file. Several days later, Windsor resigned and the letter was discarded. Windsor sued in state court and the action was removed on December 31, 1980.

I.

Windsor initially contends that he was entitled to procedural due process under the fifth amendment before being terminated. The district court found, however, that since plaintiff possessed no legitimate property or liberty entitlement, due process was not necessary. See Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). We agree with the district court.

Windsor possesses no property entitlement because the Attorney General's power to remove assistant United States attorneys is unconditional. 28 U.S.C. Sec. 542(b). This prerogative has in turn been delegated to the Deputy Attorney General, 28 CFR Sec. 0.15(b)(3)(i), who exercised that authority in this case. When a supervisor possesses unconditional power to discharge a subordinate, that employee obviously has no entitlement to his job.

Nor does plaintiff possess a liberty interest. Such an interest could arise if false reasons for the discharge were publicly disseminated, thus stigmatizing Windsor and foreclosing other employment opportunities. See, e.g., Roth, 408 U.S. at 572-73, 92 S.Ct. at 2706-2707. Windsor does not allege, however, that the reasons for the discharge were publicly disclosed. Consequently, even if the reasons were untrue or fabricated, Windsor has not pleaded a protectible liberty interest in his professional reputation. Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976). Since Windsor has no protectible property or liberty interest in continued employment, this court need not discuss what process would be due were plaintiff to possess such an interest.

II.

In his amended complaint, Windsor seeks damages for an alleged violation of 5 U.S.C. Sec. 552a. 3 This statute provides rules concerning what information a federal agency may keep about employees, the circumstances and procedures under which that information may be released and the safeguards required in order to insure that all information is accurate. Windsor alleges that Hal Hardin improperly released inaccurate information from Windsor's personnel file in violation of section 522a(e)(5) and (10). 4 Nevertheless, the district court correctly held that plaintiff has stated no claim upon which relief can be granted under that language.

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Section 552a sets forth remedies for violations of its provisions. A civil damage action may be brought solely against an "agency." 5 U.S.C. Sec. 552a(g). The term "agency" does not encompass individual government officials such as Hardin. Bruce v. United States, 621 F.2d 914, 916 n. 2 (8th Cir.1980); Parks v. United States Internal Revenue Service, 618 F.2d 677, 684 (10th Cir.1980). Since Windsor has not sued the agency for which he worked and since Congress could have exposed individuals to civil liability under section 552a(g) but chose not to do so, 5 plaintiff has not stated a claim under section 552a even if the defendants violated that section in this case. 6

Windsor claims in the alternative, however, that by conspiring to violate section 552a(e)(5) and (10), the defendants infringed upon his constitutional right to privacy. This argument is without merit. While Windsor relies on a congressional finding in the Privacy Act of 1974 that the right to privacy is a personal and fundamental constitutional right, the district court correctly held that this finding does not transform every section 552a violation into a constitutional tort. The Supreme Court in Paul v. Davis, 424 U.S. 693, 712-13, 96 S.Ct. 1155, 1165-1166, 47 L.Ed.2d 405 (1976), held that its right to privacy cases prohibited certain restrictions on personal freedom in "matters relating to marriage, procreation, contraception, family relationships and child rearing and education." As was the plaintiff's claim in Paul v. Davis, Windsor's action is "far afield from this line of decisions" because the claim involves not a substantive restriction on Windsor's freedom in the areas delineated but rather a procedural constraint on the government's authority to collect, hold and distribute information about its employees. See id. at 713, 96 S.Ct. at 1166. Even if defendants transgressed section 552a, that violation would not implicate Windsor's constitutional right to privacy.

III.

Windsor also claims that the defendants violated 42 U.S.C. Sec. 1985(1) by conspiring to injure the appellant "in his person or property on...

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