Farber v. City of Paterson

Opinions of the United

2006 Decisions States Court of Appeals

for the Third Circuit

3-8-2006

Farber v. Paterson

Precedential or Non-Precedential: Precedential

Docket No. 04-4498

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 04-4498

ROBERTA FARBER

v.

CITY OF PATERSON; JOSE TORRES;

ELIESER BURGOS; MARGE DIPASQUALE;

LOCAL 3474, AMERICAN FEDERATION OF

STATE, COUNTY & MUNICIPAL EMPLOYEES, AFL-CIO

Local 3474, American Federation of State,

County & Municipal Employees, AFL-CIO,

Appellant

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

D.C. Civil No. 03-cv-04535

District Judge: The Honorable Dickinson R. Debevoise

Argued: November 16, 2005

Before: BARRY and AMBRO, Circuit Judges, and POLLAK,*

District Judge

(Opinion Filed: March 8, 2006)

*

The Honorable Louis H. Pollak, District Judge, United

States District Court for the Eastern District of Pennsylvania,

sitting by designation.

David B. Beckett, Esq. (Argued)

Szaferman, Lakind, Blumstein, Blader & Lehmann

101 Grovers Mill Road

Quakerbridge Executive Center

Suite 104

Lawrenceville, NJ 08648

Counsel for Appellant

James E. Patterson, Esq. (Argued)

Graham, Curtin & Sheridan

4 Headquarters Plaza

P.O. Box 1991

Morristown, NJ 07962

Counsel for Appellee

OPINION OF THE COURT

BARRY, Circuit Judge

The American Federation of State, County & Municipal

Employees, AFL-CIO, Local 3474 (“Local 3474” or “the

Union”), appeals the District Court’s denial of its motion to

dismiss. The District Court was persuaded, first, that political

affiliation was a cognizable class under 42 U.S.C. § 1985(3) and,

at least for purposes of a motion to dismiss, that the Union had

conspired with appellee Roberta Farber’s employer, the City of

Paterson, to deprive her of her First Amendment rights on the

basis of her political affiliation. The Court was also persuaded

that Farber’s claim that the Union breached its duty of fair

representation in refusing to pursue a grievance on her behalf

had been timely filed. We will affirm in part and reverse in part.

2

I. Background and Procedural History

We have before us a classic example of political

patronage. Democrat Jose Torres defeated Republican

incumbent Mayor Martin G. Barnes in the May 2002 mayoral

election in Paterson, New Jersey, and subsequently declared his

intent to terminate City employees who supported the former

mayor. Farber, a City employee and admitted supporter of

Barnes and his policies, was terminated from her administrative,

non-policymaking position on June 28, 2002, after

approximately eleven years on the job. She was informed of her

termination in a letter from the City’s Assistant Personnel

Director, Marge DiPasquale, whose niece, Farber claims, was

later hired to fill her position.

After her termination, Farber asked the Union to file a

grievance on her behalf against the City for allegedly breaching

the collective bargaining agreement that governed her

employment. A meeting was held between the Union and City

representatives, but ultimately the Union rejected Farber’s

request, citing the fact that she was a provisional employee who

could be terminated at will.1 Farber alleges that the Union’s

president, Manuel Ojeda, a political ally of newly elected Mayor

Torres, was thereafter appointed as the City’s Director of Public

1

Public employment in Paterson is governed by the New

Jersey Civil Service Act, N.J. Stat. Ann. § 11A:1-1, et seq. The

Act distinguishes between employees who are “regularly”

appointed, i.e., permanent employees, and those who are

“provisionally” appointed. Provisional appointees hold their

positions until a permanent employee is appointed, and in no

case is the appointment to last longer than twelve months. N.J.

Stat. Ann. § 11A:4-13(a)-(b); N.J. Admin. Code §§ 4A:1-1.3, 4-

1.3. Despite this requirement, Farber remained a provisional

employee with the City for the entire eleven-year length of her

employment because the City allegedly failed to complete a

multi-step process that would have changed her status to

permanent.

3

Works.

Farber filed suit against the City and the Union, among

others, alleging, inter alia, (1) that the City and the Union

conspired to deprive her of her First Amendment rights because

of her political affiliation, in violation of 42 U.S.C. § 1985(3);

and (2) that the Union breached the duty of fair representation it

owed to her under the New Jersey Constitution and the New

Jersey Employer-Employee Relations Act, N.J. Stat. Ann. §

34:13A-5.3.

The Union moved to dismiss Farber’s § 1985(3) and duty

of fair representation claims pursuant to Federal Rule of Civil

Procedure 12(b)(6), arguing that discrimination based on

political affiliation cannot support a § 1985(3) claim, and that

the duty of fair representation claim was time-barred. That

motion was denied. See Farber v. City of Paterson, 327 F.

Supp. 2d 401, 418-25 (D.N.J. 2004). Relying on Perez v. Cucci,

725 F. Supp. 209, 249-53 (D.N.J. 1989), aff’d, 898 F.2d 142 (3d

Cir. 1990), the District Court determined that political affiliation

is a cognizable class for § 1985(3) purposes, and that “Farber

[pled] sufficient class-based animus when she alleged that

Defendants conspired against her because she is a Republican.”

Farber, 327 F.Supp. 2d at 424-25. The District Court also

determined that, despite the New Jersey Public Employment

Relations Commission’s “exclusive power” to prevent unions

from engaging in “unfair practices” under N.J. Stat. Ann. §

34:13A-5.4(c), a litigant may bring a duty of fair representation

claim under the Employer-Employee Relations Act in court

without first resorting to the Commission. Id. at 419-20. The

District Court then rejected the Union’s argument that the six-

month statute of limitations applicable to unfair practice charges

before the Commission should also apply to a duty of fair

representation claim at law. It held, instead, that New Jersey’s

general six-year limitations period for actions alleging “tortious

injury to the rights of another,” N.J. Stat. Ann § 2A:14-1,

applied. 327 F.Supp. 2d at 421-22.

The Union moved under 28 U.S.C. § 1292(b) for an

interlocutory appeal of the denial of its motion to dismiss. The

4

District Court granted the motion, certifying two issues:

(1) Are people who share a political affiliation a

cognizable class for [42 U.S.C.] § 1985(3)

purposes?

(2) Which statute of limitations applies to a claim

brought in court for a union’s breach of the duty of

fair representation that is enunciated in the New

Jersey [Employer-Employee Relations Act]?

We granted the Union’s petition for leave to appeal. Our review

of the denial of the Union’s motion to dismiss is plenary. The

facts alleged in the complaint and the reasonable inferences that

can be drawn from those facts are accepted as true for purposes

of this review.

II. 42 U.S.C. § 1985(3)

Section 1985(3) permits an action to be brought by one

injured by a conspiracy formed “for the purpose of depriving,

either directly or indirectly, any person or class of persons of the

equal protection of the laws, or of equal privileges and

immunities under the laws.” 42 U.S.C. § 1985(3). In a line of

cases beginning with Griffin v. Breckenridge, 403 U.S. 88

(1971), the Supreme Court has made clear what a plaintiff must

allege to state a claim under § 1985(3): “(1) a conspiracy; (2) for

the purpose of depriving, either directly or indirectly, any person

or class of persons of the equal protection of the laws, or of

equal privileges and immunities under the laws; and (3) an act in

furtherance of the conspiracy; (4) whereby a person is injured in

his person or property or deprived of any right or privilege of a

citizen of the United States.” United Bhd. of Carpenters &

Joiners v. Scott, 463 U.S. 825, 828-29 (1983) (citing Griffin, 403

U.S. at 102-03).

Section 1985(3) was initially part of Section 2 of the Ku

Klux Klan Act of 1871, an Act passed to give the federal

government a weapon against the wave of anarchic and violent

civil resistance to Reconstruction that marred the post-Civil War

5

South. See Novotny v. Great Am. Fed. Sav. & Loan Ass’n, 584

F.2d 1235, 1238-39 (3d Cir. 1978), vacated on other grounds,

442 U.S. 366 (1979);2 Keating v. Carey, 706 F.2d 377, 385 (2d

Cir. 1983). It does not create any substantive rights, but permits

individuals to enforce substantive rights against conspiring

private parties. See, e.g., Marino v. Bowers, 657 F.2d 1363,

1371 (3d Cir. 1981); Howard v. State Dep’t of Highways, 478

F.2d 581, 585 (10th Cir. 1973).

Due to restrictive, post-Reconstruction-era Supreme

Court decisions, including one that held that § 1985(3) only

reached public conspiracies, § 1985(3) was not utilized for about

70 years. In Griffin, however, the Court reversed course and

held that a § 1985(3) claim can reach private as well as public

conspiracies that seek to deprive a class of equal protection of

the laws or equal privileges under the laws. 403 U.S. at 101.

Thus, African-American plaintiffs were permitted to use §

1985(3) to sue their racially motivated white attackers for

violating their constitutional right to travel. Id. at 103, 106.

Despite its application to private conspiracies, § 1985(3)

was not intended to provide a federal remedy for “all tortious,

conspiratorial interferences with the rights of others,” or to be a

“general federal tort law.” Id. at 101-02. The Griffin Court

emphasized that because § 1985(3) requires the “intent to

2

While Novotny’s holding “that Title VII can be the

source of a right asserted in an action brought pursuant to section

1985(3) was vacated by the Supreme Court,” its “analysis of the

history of section 1985(3) and [its] discussion of the classes to

which it extends were unaffected.” Lake v. Arnold, 112 F.3d

682, 686 n.6 (3d Cir. 1997); see also Bray v. Alexandria

Women’s Health Clinic, 506 U.S. 263, 317 n.14 (1993) (Stevens,

J., dissenting) (In Novotny, “[w]e had no occasion to agree or to

disagree with the Court of Appeals’ holding that conspiracies

motivated by an invidious animus against women fall within §

1985(3) because we concluded that the deprivation of the

subsequently created Title VII statutory right could not form the

basis for a § 1985(3) claim.”).

6

deprive of equal protection, or equal privileges and immunities,”

a claimant must allege “some racial, or perhaps otherwise class-

based, invidiously discriminatory animus behind the

conspirators’ action” in order to state a claim. Id. at 102 (third

emphasis added). The phrase “class-based invidiously

discriminatory animus” would

confine the authority of this law to the prevention

of deprivations which shall attack the equality of

rights of American citizens; that any violation of

the right, the animus and effect of which is to

strike down the citizen, to the end that he may not

enjoy equality of rights as contrasted with his and

other citizens’ rights, shall be within the scope of

the remedies of this section.

Id. at 100 (quoting Cong. Globe, 42d Cong., 1st Sess. App. 478

(1871) (Rep. Shellabarger)).

There are two distinct aspects to the “class-based

invidiously discriminatory animus” which, we now know, will

support a § 1985(3) claim – the first is defined by form, and the

second by function. Thus, a plaintiff must allege both that the

conspiracy was motivated by discriminatory animus against an

identifiable class and that the discrimination against the

identifiable class was invidious. See Aulson v. Blanchard, 83

F.3d 1, 4-5 (1st Cir. 1996).

Farber’s claim that the Union and the City conspired

against “supporter[s] of the former administration” fails to allege

discriminatory animus against an identifiable class. But even if

it did – if, for example, she alleged discriminatory animus

against registered Republicans – any such animus would not

trigger § 1985(3) protection. For one thing, the frequent mention

of “Republicans” in the Act’s legislative history, in and of itself,

does not mean that Congress intended § 1985(3) to reach

conspiracies bottomed on political affiliation. For another,

unlike discrimination against a class on the basis of race, sex, or

mental retardation, discrimination on the basis of political

affiliation is not, as a matter of law, discrimination so invidious

7

such that § 1985(3) would apply. In sum, Farber has failed to

state a claim under § 1985(3). We proceed to discuss, in more

detail, why that is so.

A. Farber Fails to Satisfy the Identifiable Class

Requirement

It bears repetition that a § 1985(3) claimant must allege

“some racial, or perhaps otherwise class-based, invidiously

discriminatory animus behind the conspirators’ action” in order

to state a § 1985(3) claim. Griffin, 403 U.S. at 102. Regardless

of the alleged basis for discrimination, however, and whether

that basis is “invidious” or not, “the allegation of a ‘class-based

animus’ naturally presumes that there is a specific, identifiable

class against whom the defendants can have discriminated.” See

Aulson, 83 F.3d at 5. At a minimum, Griffin’s use of the word

“class”

unquestionably connotes something more than a

group of individuals who share a desire to engage

in conduct that the § 1985(3) defendant disfavors.

Otherwise, innumerable tort plaintiffs would be

able to assert causes of action under § 1985(3) by

simply defining the aggrieved class as those

seeking to engage in the activity the defendant has

interfered with.

Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263,

269 (1993).

Thus, § 1985(3) defendants must have allegedly

conspired against a group that has an identifiable existence

independent of the fact that its members are victims of the

defendants’ tortious conduct. This independent existence is

necessary to preserve the distinction between two of the

requirements of a § 1985(3) claim: that the conspirators be

motivated by class-based invidiously discriminatory animus and

that the plaintiff be the victim of an injury he or she seeks to

remedy by means of § 1985(3). If merely alleging the latter

could satisfy the former, “the requirement of class-based animus

8

would be drained of all meaningful content,” Aulson, 83 F.3d at

5 (citing Bray, 506 U.S. at 269), and would transform § 1985(3)

into the “general federal tort law” Congress did not intend to

enact. See Bray, 506 U.S. at 269.

In order to ensure that a § 1985(3) class has an

independent identifiable existence, a reasonable person must be

able to “readily determine by means of an objective criterion or

set of criteria who is a member of the group and who is not.”

Aulson, 83 F.3d at 5-6. For example, “women,” or “registered

Republicans,” may constitute an identifiable “class” as opposed

to a more amorphous group defined by “conduct that the §

1985(3) defendant disfavors,” such as “women seeking

abortion,” see Bray, 506 U.S. at 269, or “persons who support

[political] candidates,” see Aulson, 83 F.3d at 4-5.

In Bray, the Supreme Court held that abortion clinics and

organizations that support abortion and have members who may

wish to use abortion clinics failed to state a § 1985(3) claim

against an anti-abortion organization whose “conspiratorial”

efforts to obstruct access to abortion clinics allegedly deprived

women seeking abortions of their right to interstate travel. 506

U.S. at 266-67. The Court explained that, while women

generally constituted a “class” that might substantively qualify

for § 1985(3) protection,3 the subgroup of “‘[w]omen seeking

abortion’ is not a qualifying class” because “the class ‘cannot be

defined simply as the group of victims of the tortious action.’”

Id. at 269-70 (quoting Scott, 463 U.S. at 850 (Blackmun, J.,

dissenting)).

In Aulson, a local public officeholder brought a § 1985(3)

claim against an incumbent group of “old guard politicians” who

controlled town politics, alleging that he faced illegal searches

and sham prosecutions because he was a “member[ ] of a

political group which supports candidates who oppose the

3

The Court did not need to answer this question given

that the plaintiffs did not face discrimination “because they are

women” or “by reason of their sex.” Bray, 506 U.S. at 269-70.

9

politics of the ‘old guard.’” 83 F.3d at 2 (alteration in original).

The Court of Appeals for the First Circuit found that the plaintiff

failed to allege discrimination by an identifiable class because

this group is wholly indeterminate. It might

include all the voters in Georgetown, or it might

include only voters who have spoken out against

incumbent selectmen, or it might include only the

two individuals featured in the complaint, or it

might include anyone whose inclusion would

benefit the plaintiff at any given time. There is

simply no way to characterize this group as an

identifiable segment of the community by

reference to any objective criteria, and, hence, it

cannot serve as a cognizable class within the

purview of § 1985(3).

Id. at 6 (citing Gleason v. McBride, 869 F.2d 688, 695 (2d Cir.

1989) (rejecting class status under § 1985(3) when the plaintiff

alleged only that he was “a political opponent of the defendants

and was extremely vocal in his opposition to their management

of the [municipality]”)).

In our own jurisprudence, we have often addressed the

second question involved in the Griffin analysis – whether an

identified class has been invidiously discriminated against such

that one injured may avail himself or herself of § 1985(3) –

without the need to address the predicate question of whether an

objectively identifiable class existed in the first place, because

the answer was obvious. In Novotny, for example, we held that

§ 1985(3) extended to women, who constitute an objectively

identifiable class, while noting that Griffin’s class-based

invidiously discriminatory animus requirement works to screen

out claims where no class exists at all, citing, among others, our

decision in Jennings v. Shuman, 567 F.2d 1213 (3d Cir. 1977).4

4

In Jennings, we upheld the dismissal of the § 1985(3)

claim of a plaintiff who alleged that he was maliciously prosecuted

in an extortion scheme in violation of his procedural due process

10

Novotny, 584 F.2d at 1240-44, 1241 n.19. Similarly, we

concluded, in Lake v. Arnold, that “the scope of . . . § 1985(3) is

sufficiently broad to protect the mentally retarded as a class,”

assuming, albeit implicitly, that the mentally retarded constitute

an objectively identifiable class in the first place. 112 F.3d 682,

685, 688 (3d Cir. 1997). Simply put, some groups, particularly

those deemed to be distinguishable from others by immutable

characteristics, such as African-Americans, women, and the

mentally retarded, are so clearly accepted as objectively

identifiable that no extended analysis is needed. As the Court in

Bray demonstrated, however, it is not always a simple matter,

particularly when what is at issue is a putative class defined, as

here, by mutable characteristics such as opinion or conduct.

The District Court erred when it concluded that “Farber

[pled] sufficient class-based animus when she alleged that

Defendants conspired against her because she is a Republican.”

Farber, 327 F. Supp. 2d at 425 (emphasis added). Not only does

Farber not allege in her complaint that she is the victim of

discrimination because she is a Republican, she does not allege

that she is a Republican and does not even allege that the

“conspiracy” was motivated by a desire to discriminate against

Republicans. Farber only alleges that she was terminated

“because she was affiliated with and a supporter of the

administration of former Mayor Martin G. Barnes,” 5 who, at

rights because we were unable from his complaint to “discern facts

alleging a class-based discriminatory animus.” 567 F.2d at 1221.

5

Other parts of the complaint contain similar allegations:

Plaintiff was a public supporter and

advocate of the policies of Mayor Martin G.

Barnes. She believed Barnes’ policies were good

for the city of Paterson and openly expressed

herself to that effect. . . . The defendants were

aware of plaintiff’s expression of support for the

policies of Barnes.

....

After his election, defendant Torres

expressed his intent to terminate from employment

11

another point in her complaint, she identifies as a Republican.

Indeed, Farber does not even argue that her support for Mayor

Barnes, or her resulting injury, was founded on his status as a

Republican.

When determining whether an independently identifiable

class exists, there are differences between being discriminated

against because of membership in a political party and being

discriminated against because of support for the policies of a

politician who also happens to be a member of the party. We

need not discuss those differences, however, for the class Farber

attempts to assert is so subjectively defined and “wholly

indeterminate” that “[t]here is simply no way to characterize [it]

as an identifiable segment of the community by reference to any

objective criteria, and, hence, it cannot serve as a cognizable

class within the purview of § 1985(3).” See Aulson, 83 F.3d at

6.6

supporters of the prior administration. In a

newspaper interview, Torres specifically referred

to plaintiff as a supporter of the former

administration and stated, falsely, that he had

requested her resignation.

....

The Union was also aware that defendant

Torres terminated plaintiff because of her support

for the policies of former Mayor Barnes and that

the letter of termination predated Torres’

assumption of office.

....

The defendants’ actions were motivated by

class-based invidiously discriminatory animus, to

wit, political animus.

(App. 105, 108, 110.)

6

At oral argument, Farber attempted to remedy this defect

by recasting the class as those City employees, such as herself, who

suffered a First Amendment injury within the meaning of Elrod v.

Burns, 427 U.S. 347 (1976), when they were fired by the City for

their support of Barnes. The attempt was unsuccessful. Just as the

12

B. Discriminatory Animus Directed at a Class Based on

Political Affiliation is Not “Invidious”

Even were we to ignore or forgive the pleading

deficiencies and assume that Farber adequately alleged that the

conspiracy was motivated by discriminatory animus aimed at a

class based on political affiliation, that type of discrimination is

not so “invidious” as to qualify for § 1985(3) protection.

We begin our analysis with what the Supreme Court has

made clear: the victim of a conspiracy motivated by race

discrimination may bring a § 1985(3) claim, Griffin, 403 U.S. at

102, while the victim of mere commercial or economic animus

may not. Scott, 463 U.S. at 838. The Court has never found that

a criterion other than race can serve as the basis for a qualifying

class, but neither has it foreclosed that possibility, and we have

held that victims of discriminatory animus directed at women,

see Novotny, 584 F.2d at 1243, and the mentally retarded, see

Lake, 112 F.3d at 688, may state a § 1985(3) claim.

Admittedly, we have sent mixed signals as to whether

discriminatory animus directed at a class based on political

affiliation can also so qualify. Compare Perez v. Cucci, 725 F.

Supp. 209, 253 (D.N.J. 1989) (political affiliation qualifies as a §

1985(3) class), aff’d, 898 F.2d 142 (3d Cir. 1990), with

D’Aurizio v. Palisades Park, 963 F. Supp. 378, 385-86 (D.N.J.

1997) (rejecting § 1985(3) claim because defendants merely

conspired against plaintiff “because of his political association”),

aff’d, 151 F.3d 1024 (3d Cir. 1998), Stephens v. Kerrigan, Nos.

95-615, 95-8093, 1996 U.S. Dist. LEXIS 6544, at *13 (E.D. Pa.

May 13, 1996) (political affiliation cannot support a § 1985(3)

“women seeking [an] abortion” in Bray, and the “persons who

support candidates opposed to the politics of the ‘old guard’” in

Aulson, this “definitional ploy” does no more than define the

would-be class—non-policymaking City employees fired for their

support of the former mayor—“as those seeking to engage in the

activity the defendant has interfered with.” See Bray, 506 U.S. at

269.

13

claim), aff’d on other grounds, 122 F.3d 171, 184 (3d Cir. 1997),

and Deblasio v. Zoning Bd. of Adjustment, 820 F. Supp. 876,

885 (D.N.J. 1993) (rejecting § 1985(3) claim based on

“[p]laintiff’s allegation that he was discriminated against

because he was not a political insider”), aff’d in part, rev’d in

part, 53 F.3d 592, 596 (3d Cir. 1995).

Our sister courts of appeals are split on the issue.7 And,

although it is still an open question in the Supreme Court, the

Court, albeit in 1983, suggested how it would rule if squarely

faced with the issue. In Scott, non-union construction workers,

who were attacked and beaten because of their non-union status,

alleged that their union-member attackers had the requisite

invidiously discriminatory animus for a § 1985(3) conspiracy

claim. The Court of Appeals for the Fifth Circuit agreed,

reasoning that the non-union employees were akin to a political

group, and that political groups are protected by § 1985(3)

because, given its reading of the legislative history of the Ku

Klux Klan Act, a § 1985(3) cause of action was intended not

only to protect African-Americans but also their Republican

supporters from the conspiratorial activities of the

Reconstruction-era Ku Klux Klan. 463 U.S. at 835-38.

7

Compare Galloway v. Louisiana, 817 F.2d 1154, 1159

(5th Cir. 1987) (holding that wholly non-racial animus directed

at a political class qualifies under § 1985(3)), Conklin v. Lovely,

834 F.2d 543, 549 (6th Cir. 1987) (same), Keating v. Carey, 706

F.2d 377, 386-88 (2d Cir. 1983) (same), and Means v. Wilson,

522 F.2d 833, 839-40 (8th Cir. 1975) (same), with Grimes v.

Smith, 776 F.2d 1359, 1366 (7th Cir. 1985) (§ 1985(3) does not

reach non-racial political conspiracies), and Harrison v. KVAT

Food Mgmt. Inc., 766 F.2d 155, 163 (4th Cir. 1985) (same). See

also Aulson v. Blanchard, 83 F.3d 1, 5 (1st Cir. 1996) (declining

to decide whether purely political non-racial conspiracies fall

within § 1985(3)); Hobson v. Wilson, 737 F.2d 1, 21 (D.C. Cir.

1984) (same); Schultz v. Sundberg, 759 F.2d 714, 718 (9th Cir.

1985) (classes are only protected by § 1985(3) where “there has

been a governmental determination that its members require and

warrant special federal” protection).

14

The Supreme Court, however, was “unpersuaded,” and

explained that

it is a close question whether § 1985(3) was

intended to reach any class-based animus other

than animus against Negroes and those who

championed their cause, most notably Republicans.

The central theme of the bill’s proponents was that

the Klan and others were forcibly resisting efforts

to emancipate Negroes and give them equal access

to political power. The predominant purpose of §

1985(3) was to combat the prevalent animus

against Negroes and their supporters. The latter

included Republicans generally, as well as others,

such as Northerners who came South with

sympathetic views towards the Negro.

Id. at 836.8

Despite its skepticism that § 1985(3) was intended to

reach any group other than African-Americans and those who

championed their cause, the Court found it unnecessary to decide

that § 1985(3) does not reach non-racial, politically motivated

animus, and instead held only that it did not reach the type of

economic or commercial animus implicated by the violence

against the non-union workers in that case. Id. at 837-38.

8

The Scott Court acknowledged that, during debate over

the Act, one Senator stated that § 1985(3) would reach

conspiracies against a person discriminated against “because he

was a Democrat, if you please, or because he was a Catholic, or

because he was a Methodist, or because he was a Vermonter,”

id. 836-37 (quoting Cong. Globe, 42d Cong., 1st Sess., 567

(1871)), but discounted this statement’s value in interpreting the

section because the bill and its amendments originated in the

House, not the Senate. Id.

15

i. Congress’s Acknowledgement in 1871 That

Republicans Were Victims of Racially-Motivated Klan

Violence Does Not Mean That § 1985(3) Was Intended

to Give Victims of Political Discrimination a Cause of

Action

Despite the dicta in Scott, the District Court chose to

follow the decision of a district court holding that § 1985(3)

reaches politically motivated conspiracies, a case that itself

relied upon the Court of Appeals for the Second Circuit’s pre-

Scott decision in Keating v. Carey, 706 F.2d 377 (2d Cir. 1983).

Farber, 327 F. Supp. 2d at 424-25 (citing Perez, 725 F. Supp.

209, 249-53).9 Emphasizing the repeated statements of the 42d

Congress that Ku Klux Klan hostility towards “Republicans”

must end, Keating held that § 1985(3) was intended to provide

all victims of political animus with a cause of action. 706 F.2d

at 387; see also Life Ins. Co. of N. Am. v. Reichardt, 591 F.2d

499, 505 (9th Cir. 1979) (“[Section 1985’s] Congressional

debates evinced concern for all groups subject to the organized

lawlessness of the Ku Klux Klan, including . . . Republicans.”).

Keating reasoned that while today the Klan is seen primarily as a

racist organization, in 1871 it was also “a political organization

intent on establishing Democratic hegemony in the South.” 706

F.2d at 387. Therefore, not only were blacks the victims of Klan

violence, but so

were carpetbaggers or “men of Union sentiment,”

in a word, Republicans. Black or white, “the

victims whose property is destroyed, whose

persons are mutilated, whose lives are sacrificed,

are always Republicans.” Cong. Globe, 42nd

Cong., 1st Sess. 412, col. 3, 413, col. 1 (1871)

(remarks of Congressman Roberts). “The dead

and the wounded, the maimed and the scourged,

9

Keating was issued just three months prior to Scott.

Despite Scott’s dicta, the Court of Appeals for the Second

Circuit has since reaffirmed its holding in Keating. See, e.g.,

N.Y. State NOW v. Terry, 886 F.2d 1339, 1359 (2d Cir. 1989).

16

are all, all Republicans.” Id. at 426, col. 3

(remarks of Congressman McKee). “Every victim

of Ku Klux outrage has been a Republican.” Id. at

437, col. 2 (remarks of Congressman Cobb). The

Klan’s object is “the defeat of Republicanism.” Id.

at app. 196, col. 2 (remarks of Congressman

Snyder).

Id. From this, the Court concluded that “Congress did not seek

to protect only Republicans, but to prohibit political

discrimination in general,” arguing that to hold otherwise would

be to “turn history on its head and exclude from protection the

group that seems to have been foremost in the mind of

Congress.” Id. at 387-88.

Based on Scott and our own reading of the text of §

1985(3) and its legislative history, we disagree. It is certainly

true that African-Americans and Republicans were victims of the

Klan violence that prompted the enactment of § 1985(3). As to

both groups, however, the invidiously discriminatory animus

behind the Klan’s actions was motivated by racial hatred, not by

its victims’ political party affiliation. See Scott, 463 U.S. at 836;

Keating, 706 F.2d at 393-94 (Meskill, J., concurring and

dissenting);10 Novotny, 584 F.2d at 1244; but see Keating, 706

10

Judge Meskill pointed out that

[a]s is commonly known, Lincoln Republicans of

the 1860s and 1870s were the major political force

behind black emancipation. To the extent that

support for black rights was evidenced in the

South, it was from white Republicans who were a

small minority in that region. Not surprisingly, the

Ku Klux Klan and other groups determined to

achieve democratic hegemony in the South

directed their physical assaults and threats of

violence against both emancipated blacks and their

Republican supporters. To counter this threat, the

Civil Rights Acts were enacted to ensure that those

denied access to the polls and the courthouse due

17

F.2d at 388 n.17. That many victims of racially motivated Klan

violence happened to be Republicans does not mean that the

discriminatory animus they faced was because they were

Republicans. In Bray, for example, the Supreme Court found

that because the victims of a conspiracy motivated by opposition

to abortion were all women did not mean that the discriminatory

animus they faced was because they were women. 506 U.S. at

269-70. The § 1985(3) plaintiff’s status as a Republican or as a

woman was incidental to the motivating factor behind the

defendants’ discriminatory animus.

Thus, the repeated statements in the legislative history

that § 1985(3) would serve to protect Republican, often white,

victims of Klan violence, see Novotny, 584 F.2d at 1244, does

not mean that § 1985(3) was intended to reach discriminatory

animus directed at a class based on political affiliation or that,

more specifically, Republicans victimized by animus directed

against Republicans can ride the coattails of Republicans

victimized by animus directed against African-Americans.

Instead, the legislative history underscores the view that a §

1985(3) plaintiff need not be a member of the class against

which a conspiracy directs its invidiously discriminatory animus,

even if in practice this is most often the case. We long ago held

that this is so. See Richardson v. Miller, 446 F.2d 1247, 1249

(3d Cir. 1971) (finding that a non-minority victim of racially

to mob violence and vigilantism would be

protected by the federal courts.

Taken out of historical context, it would

seem that the only requirement of Republicans for

protection under section 1985(3) is that they be

victims of discrimination. This view, however,

does not comport with the underlying purpose of

the 1871 Act. The general intent of this legislation

was very narrow — to protect blacks and black

supporters in the post-Civil War South.

Keating, 706 F.2d at 393-94 (Meskill, J., concurring and

dissenting).

18

discriminatory animus can state a § 1985(3) claim).11 And, as

we explained in Novotny, where we held that a male victim of

sexually discriminatory animus directed at women could state a §

1985(3) claim, the text

provides a cause of action in any instance where

“in furtherance of the object of” a proscribed

conspiracy an act is done “whereby another is

injured in his person or property.” By its terms,

the statute gives no hint of any requirement that the

“other” must have any relationship to the “person

or class of persons” which the conspiracy seeks to

deprive of equal protection, privileges or

immunities.

584 F.2d at 1244.

In order for victims of discrimination based on political

affiliation to state a § 1985(3) claim, it must be independently

determined that discrimination on that ground is invidious in the

same way that discrimination directed at African-Americans is

invidious. We address that issue next.

ii. Discrimination Against a Class Based on Political

Affiliation is Not Invidious for Purposes of § 1985(3)

The Supreme Court has explained that

[t]he nature of the “invidiously discriminatory

animus” Griffin had in mind is suggested both by

the language used in that phrase (“invidious . . .

tending to excite odium, ill will, or envy; likely to

give offense; esp., unjustly and irritatingly

discriminating,” Webster’s Second International

Dictionary 1306 (1954)) and by the company in

which the phrase is found (“there must be some

11

Richardson’s holding was cited approvingly in Robison

v. Canterbury Vill., Inc., 848 F.2d 424, 431 n.7 (3d Cir. 1988).

19

racial, or perhaps otherwise class-based,

invidiously discriminatory animus,” Griffin, 403

U.S. at 102 (emphasis added)).

Bray, 506 U.S. at 274. The Court then concluded that “the goal

of preventing abortion, . . . in itself . . . does not remotely qualify

for such harsh description, and for such derogatory association

with racism,” and, thus, the victims of discriminatory animus

resulting from a conspiracy to prevent abortion could not sue

under § 1985(3). Id. at 274. If the goal of preventing abortion

does not qualify, then surely neither does the goal of replacing,

with one’s own, members of an opposing political party in an

exercise of classic political patronage.

In the past we have emphasized the “irrational and

odious” nature of discrimination motivated by a class’s

immutable characteristics because such characteristics are

“determined by the accident of birth” and “bear[] no relation to

ability to perform or contribute to society.” Novotny, 584 F.2d at

1243 (citing Frontiero v. Richardson, 411 U.S. 677, 686-87

(1973)). Thus, we have found discrimination directed toward

women to be invidious. Id. at 1243-44. Following Novotny, we

have also held that discrimination “based on . . . mental

handicap, like that based on gender, often rests on immutable

characteristics which have no relationship to ability. Where this

is the case, we are convinced that the discrimination is invidious

. . . .” Lake, 112 F.3d at 687. While we do not hold that

discrimination motivated by a mutable characteristic can never

be invidious, political affiliation surely does not qualify.12

12

A new administration is justified in replacing

policymaking employees with members of its own party in order to

ensure “that representative government not be undercut by tactics

obstructing the implementation of policies of the new

administration.” See Elrod, 427 U.S. at 367. Thus, unlike race

discrimination, political patronage (at least at times) has a rational

basis.

20

One final note. Allowing § 1985(3) to reach politically

motivated conspiracies would involve the federal courts in

policing the political arena in ways that the drafters of § 1985(3)

could not have intended. As Judge Pollak long ago explained,

political patronage “plays a major role in all politics,” and while

Elrod and Branti v. Finkel, 445 U.S. 507 (1980), place

constitutional limits on this role, “it can be reasonably assumed

that private political actors will continue to press government

officials to exercise such partisan leeway as the hiring and firing

processes still permit, conformably with the Court’s decisions.”

Nilan v. DeMeo, 575 F. Supp. 1225, 1227 (E.D. Pa. 1983).

Permitting § 1985(3) to reach politically motivated conspiracies

would effectively outlaw all terminations based on political

affiliation. Keating, 706 F.2d at 394 (Meskill, J., concurring and

dissenting). It is unlikely that Congress “contemplated that the

Civil Rights Act would strike the death knell to a way of

political life that flourished then and remains an accepted

incident of elective office.” Id. And, of course, extending §

1985(3) to politically motivated conspiracies would “go far

toward making the federal courts, by virtue of § 1985(3), the

monitors of campaign tactics in both state and federal elections,

a role that the courts should not be quick to assume.” Scott, 463

U.S. at 836.

For the foregoing reasons, we hold that § 1985(3) does

not provide a cause of action for individuals allegedly injured by

conspiracies motivated by discriminatory animus directed toward

their political affiliation. We will reverse the District Court’s

denial of the Union’s motion to dismiss Farber’s § 1985(3)

claim.

III. Statute of Limitations for a Duty of Fair

Representation Claim at Law

Farber alleged that the Union breached its duty under the

New Jersey Employer-Employee Relations Act (“EERA”), N.J.

Stat. Ann. § 34:13A-1 et seq., to fairly represent her “by refusing

to pursue [her] grievance and by abandoning all efforts to

support her.” (Comp. ¶¶ 44-45.) The Union moved to dismiss

this duty of fair representation (“DFR”) claim, alleging that it

21

was time-barred. The District Court disagreed, and denied the

motion. The District Court was correct to do so.

Under the EERA, a union has the exclusive right to

represent the interests of public employees. N.J. Stat. Ann. §

34:13A-5.3. Along with this exclusive right, however, a union

has a “corresponding duty” of fair representation, which means

that it must process meritorious employee grievances in

“complete good faith, with honesty of purpose and without

unfair discrimination against a dissident employee or group of

employees.” D’Arrigo v. N.J. State Bd. of Mediation, 574 A.2d

44, 47 (N.J. 1990). Failure to do so exposes a union to an

“unfair practice” claim under N.J. Stat. Ann. § 34:13A-5.4(b)

before the Public Employment Relations Commission (“PERC”),

which has the “exclusive power” to hear such claims under N.J.

Stat. Ann. § 34:13A-5.4(c).13 “Unfair practice” claims brought

13

Section 34:13A-5.4(c) reads:

[t]he commission shall have exclusive power as

hereinafter provided to prevent anyone from

engaging in any unfair practice listed in

subsections a. and b. above. Whenever it is

charged that anyone has engaged or is engaging in

any such unfair practice, the commission, or any

designated agent thereof, shall have authority to

issue and cause to be served upon such party a

complaint stating the specific unfair practice

charged and including a notice of hearing

containing the date and place of hearing before the

commission or any designated agent thereof;

provided that no complaint shall issue based upon

any unfair practice occurring more than 6 months

prior to the filing of the charge unless the person

aggrieved thereby was prevented from filing such

charge in which the event the 6-month period shall

be computed from the day he was no longer so

prevented.

(emphasis added).

22

before the PERC are subject to a six-month statute of limitations.

Id.

The District Court concluded, and we agree, that PERC’s

“exclusive power” to hear unfair practice claims would not

preempt a DFR claim at law. Analogizing to Vaca v. Sipes, 386

U.S. 171, 187-88 (1967), the Court held that if confronted with

the issue, the Supreme Court of New Jersey “would recognize a

cause of action at law under the EERA for a union’s breach of its

DFR.” See Farber, 327 F. Supp. 2d at 420. In Vaca, the

Supreme Court held that an employee could sue her union for

breach of the duty of fair representation implied in § 9(a) of the

National Labor Relations Act, even though “unfair labor

practice” claims, such as breach of the duty of fair

representation, usually can be heard only by the National Labor

Relations Board. 386 U.S. at 176-88.

The District Court also concluded that New Jersey’s six-

year statute of limitations for “any tortious injury to the rights of

another,” N.J. Stat. Ann. § 2A:14-1, would apply to an EERA-

DFR claim at law. Farber, 327 F. Supp. 2d at 421-22. Again,

we agree. In Gomez v. Government of the Virgin Islands, we

held that the Virgin Islands’ general two-year statute of

limitations, V.I. Code Ann. tit. 5, § 31(5)(A), applied to a DFR

claim brought in court under the Virgin Islands Public Employee

Labor Relations Act (“PERLA”). 882 F.2d 733, 737-38 (3d Cir.

1989). PERLA is the Virgin Islands’ counterpart to New

Jersey’s EERA, and just as New Jersey courts use NLRA case

law to interpret the EERA, see Lullo v. Int’l Ass’n of Fire

Fighters, 262 A.2d 681, 689 (1970), we use NLRA case law to

interpret PERLA. Gomez, 882 F.2d 737 n.8. Unlike the EERA,

however, PERLA expressly provides a cause of action in the

Virgin Islands courts and in federal court for breach of a duty of

fair representation, see V.I. Code Ann. tit. 24, § 383, in addition

to providing for the filing of a complaint for unfair labor

practices before the Public Employee Relations Board

(“PERB”), see V.I. Code Ann. tit. 24, § 379, the Virgin Islands’

equivalent of New Jersey’s PERC. Section 383 does not contain

a statute of limitations for DFR claims brought in court, and, in

Gomez, we rejected the argument that we should, therefore,

23

borrow § 379’s six-month statute of limitations for claims before

PERB. 882 F.2d at 738. We reasoned that we were not

permitted to borrow § 379’s statute of limitations because V.I.

Code Ann. tit. 5, § 31(5)(A) already provides a general catch-all

two-year statute of limitations for tort actions, and a DFR claim

is a form of tort action. Gomez, 882 F.2d at 738.

The Union argues that Gomez is distinguishable because,

unlike the EERA, PERLA explicitly provides for DFR claims to

be brought in court. This may be true, but the difference is

immaterial. Each Act has a section that permits unfair labor

practice claims to be brought before an administrative body

subject to a six-month statute of limitations. See N.J. Code.

Ann. § 34:13A-5.4 (PERC); V.I. Code Ann. tit. 24, § 379

(PERB). Each Act also permits (either expressly or impliedly)

DFR claims to be brought before a court from a source other

than the section that provides for unfair labor practice claims

before the administrative body. See N.J. Code. Ann. § 34:13A-

5.3 (implied by District Court here); V.I. Code Ann. tit 24, § 383

(express). Thus, under both Acts, the six-month statute of

limitations must be “borrowed” from some external source in

order to apply to a DFR claim brought in court. In Gomez, we

explained that we cannot circumvent a state legislature’s

decision to provide a general catch-all statute of limitations for

tort claims, and thus may not borrow the six-month limitations

period. Our reasoning in Gomez is applicable here.

The Union also argues that because of the policy

considerations underlying the EERA, a six-year statute of

limitations should not apply to DFR claims because “it

undermines the [PERC’s] authority,” and “undermines the

balance crafted by the New Jersey Legislature which allows for

such claims so long as they are promptly presented to the agency

which has special expertise and responsibility for public sector

labor law.” (Appellee’s Br. 18 (citing Kaczmarek v. N.J.

Turnpike Authority, 390 A.2d 597, 601-05 (N.J. 1989)). As a

matter of policy, the Union is most likely correct. In Kaczmarek,

the Supreme Court of New Jersey explained that the six-month

statute of limitations for “unfair practices” promotes the “prompt

filing and expeditious processing of charges,” which is

24

“especially important in the volatile field of employer-employee

relations. In addition to preserving the immediacy of the record,

administrative celerity stabilizes existing bargaining

relationships, and inhibits the festering or aggravation of labor

disputes.” 390 A.2d at 602.

In Gomez, however, we acknowledged these same policy

considerations, and explained that they were of legislative, not

judicial, concern:

Our decision today is based on the language

of Virgin Islands statutory law. Any lack of

uniformity in the filing of PERLA actions as a

result of our decision today must be resolved by

the Virgin Islands legislature. The policy

considerations which the Supreme Court in

DelCostello noted favor a short statute are even

more appropriate subjects for legislative concern.

Gomez, 882 F.2d at 739 n.9.

In sum, we will follow Gomez and will affirm the

conclusion of the District Court that New Jersey’s six-year

statute of limitations “for any tortious injury to the rights of

another,” N.J. Stat. Ann. § 2A:14-1, applies to a DFR claim

brought in court. We leave it to the New Jersey legislature to

shorten the limitations period for such a claim if it deems it

appropriate to do so.

IV. Conclusion

We conclude, in answer to the first certified question, that

those who share a political affiliation are not a cognizable class

for purposes of § 1985(3), and, in answer to the second certified

question, that New Jersey’s six-year statute of limitations applies

to an EERA-DFR claim brought in court. Accordingly, we will

reverse the District Court’s order denying the Union’s motion to

dismiss Farber’s § 1985(3) claim, and will affirm its order

denying the Union’s motion to dismiss her DFR claim.

25