Richard L. Windsor v. The Tennessean

719 F.2d 155
CourtCourt of Appeals for the Sixth Circuit
DecidedJanuary 23, 1984
Docket81-5668
StatusPublished
Cited by368 cases

This text of 719 F.2d 155 (Richard L. Windsor v. The Tennessean) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Richard L. Windsor v. The Tennessean, 719 F.2d 155 (6th Cir. 1984).

Opinions

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. § 1985(1), under 5 U.S.C. § 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 [158]*158ground 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 [159]*159file. 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, 35 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. § 542(b). This prerogative has in turn been delegated to the Deputy Attorney General, 28 CFR § 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. § 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.

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Bluebook (online)
719 F.2d 155, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richard-l-windsor-v-the-tennessean-ca6-1984.