Petition — F. LEE BAILEY v. JAMES W. McCORD, JR. (Nos. 80-1168, 80-1167)

80-1168 | bs

| JAN 13> 4ggy

No. |

IN THE |

Supreme Court of the United States

OCTOBER TERM, 1980

F. LEE BAILEY, GERALD ALCH AND BAILEY,

ALCH & GILLIS, Cross-Petitioners,

v.

JAMES W. McCorpb, JR., Respondent.

On Writ Of Certiorari To The United States Court

Of Appeals For The District Of Columbia Circuit

JOINT CROSS-PETITION FOR

WRIT OF CERTIORARI

ROGER C. SPAEDER

Counsel of Record

ROGER E. ZUCKERMAN

ZUCKERMAN, SPAEDER, TAYLOR

& KOLKER

1800 M Street, N.W.

Washington, D.C. 20036

(202) 223-8606

Attorneys for F. Lee Bailey and

Bailey, Alch & Gillis

BARRY E. COHEN

Counsel of Record

ARTER HADDEN & HEMMENDINGER

1919 Pennsylvania Ave., N.W.

Washington, D.C. 20006

(202) 857-0960

Attorney for Gerald Alch

{Ze CEES ESE ATR OANA PRORATED SOTTO RRM Site

PRESS OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D.C.

QUESTION PRESENTED FOR REVIEW

The single question presented for review in this

Cross-Petition is whether 42 U.S.C. §1985(2) (first

clause), a provision of the Civil Rights Act of 1871 mak-

ing unlawful conspiracies to deter any person from freely

testifying in a United States court, includes

discriminatory intent or animus as an element of the

offense.’

The caption of this case before the Court contains a listing of

all parties to the proceeding below.

TABLE OF CONTENTS

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CASES PAGE

Brawer v. Horowitz, 535 F.2d 830 (3d Cir. 1976) ....... 5

Griffin v. Breckenridge, 403 U.S. 88 (1971)............ 6, 7

Jones v. United States, 401 F.Supp. 168 (E.D. Ark.

1975), aff'd, 536 F.2d 269 (8th Cir. 1976), cert.

aemec, 429 15.5. 1039 CAST TY ow. ok ccc cca wacccs >, 6,7

STATUTES:

42 U.S.C. §1985(2)(Supp. II 1978) ........ a> os Oe Fae

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

No.

F. LEE BAILEY, GERALD ALCH AND BAILEY,

ALCH & GILLIS, Cross-Petitioners,

V.

JAMES W. McCorp, Jr., Respondent.

On Writ Of Certiorari To The United States Court

Of Appeals For The District Of Columbia Circuit

JOINT CROSS-PETITION FOR

WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the Court of Appeals (App. A., /n-

fra, pp. la - 32a) is not yet officially reported. The opi-

nion of the District Court (App. B, infra, pp. 33a - 37a)

is unreported.

JURISDICTION

The judgment of the United States Court of Ap-

peals sought to be reviewed was entered on September 9,

1980 (App. D, infra, pp. 4la - 42a). Orders denying a

petition for rehearing and suggestion for rehearing en

banc were entered on October 15, 1980 (Apps. E and F,

infra, pp. 43a-45Sa).

Jurisdiction for this Court to review the judgment

of the Court of Appeals is conferred by 28 U.S.C.

§1254(1).

STATUTES INVOLVED

Title 42 U.S.C. §§1985(2) and (3) (Supp. II 1978),

Rev. Stat. §1980, derived from §2 of the Civil Rights

Act of 1871, 17 Stat. 13, provide:

Obstructing justice; intimidating party,

witness, Or juror

(2) If two or more persons in any State or Ter-

ritory conspire to deter, by force, intimidation, or

threat, any party or witness in any court of the

United States from attending such court, or from

testifying to any matter pending therein, freely, ful-

ly, and truthfully, or to injure such party or witness

in his person or property on account of his having

so attended or testified, or to influence the verdict,

presentment, or indictment of any grand or petit

juror in any such court, or to injure such juror in

his person or property on account of any verdict,

presentment, or indictment lawfully assented to by

him, or of his being or having been such juror; or

if two Or more persons conspire for the purpose of

impeding, hindering, obstructing, or defeating, in

any manner, the due course of justice in any State

or Territory, with intent to deny to any citizen the

equal protection of the laws, or to injure him or his

property for lawfully enforcing, or attempting to

enforce, the right of any person, or class of per-

sons, to the equal protection of the laws;

Depriving persons of rights or privileges

(3) If two or more persons in any State or Ter-

ritory conspire or go in disguise on the highway or

on the premises of another, 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; or for the purpose of preventing or

hindering the constituted authorities of any State or

Territory from giving or securing to all persons

within such State or Territory the equal protection

of the laws; or if two or more persons conspire to

prevent by force, intimidation, or threat, any citizen

who is lawfully entitled to vote, from giving his

‘upport or advocacy in a legal manner, toward or

in favor of the election of any lawfully qualified

person as an elector for President or Vice President,

or as a Member of Congress of the United States;

or to injure any citizen in person or property on ac-

count of such support or advocacy; in any case of

conspiracy set forth in this section, if one or more

persons engaged therein do, or cause to be done,

any act in furtherance of the object of such con-

spiracy, whereby another is injured in his person or

property, or deprived of having and exercising any

right or privilege of a citizen of the United States,

the party so injured or deprived may have an action

for the recovery of damages, occasioned by such in-

jury or deprivation, against any one or more of the

conspirators.

STATEMENT OF THE CASE

This case arises from a Complaint filed by James

W. McCord, Jr. against Cross-Petitioners F. Lee Bailey,

Gerald Alch, and Bailey, Alch & Gillis asserting claims

against the latter, attorneys, based on their representa-

tion of McCord and the legal advice given him in a 1973

federal criminal proceeding arising from the Watergate

break-in. Four counts were pleaded — legal malpractice,

intentional misconduct, conspiracy to commit the

foregoing, and violation of certain provisions of the

Civil Rights Act of 1871, 42 U.S.C. §§1983, 1985.

Federal jurisdiction was founded on diversity of citizen-

ship and the presence of a federal question, as authoriz-

ed under 28 U.S.C. §§1331, 1332, and 1343.

Following several years of discovery and the filing

by both sides of motions for summary judgment, the

District Court dismissed all counts, holding that Mc-

Cord was collaterally estopped from asserting certain

claims and had failed to state a claim as to other mat-

ters alleged in the Complaint. (App. B, infra, pp.

33a-37a).

On appeal to the U.S. Court of Appeals for the

District of Columbia Circuit, most of the judgment of

the District Court was affirmed. However, a portion of

the Civil Rights Act count — that based on the first

clause of 42 U.S.C. §1985(2) — was reinstated, the

Court of Appeals holding that it did state a claim upon

which relief could be granted.

That portion of the 42 U.S.C. §1985(2) count

reinstated by the Court of Appeals provided a cause of

action,

‘*fiJf two or more persons in any State . . . conspire

to deter, by force, intimidation or threat, any party

Or witness in any court of the United States .

from testifying to any matter pending therein... .

’””

The Complaint, the evidence of record, and the conten-

tions of McCord contained no. assertion of

discriminatory intent in committing the alleged offense

under Section 1985(2) (App. A, infra, p. 14a, 23a). The

Court of Appeals held that no such intent was required

under the quoted portion of the statute and that ‘‘[h]is

claim therefore cannot be discarded because these fac-

tors are not’ present’’ (/d., at p. 23a). Accordingly, it

remanded the case to the District Court for further pro-

ceedings. (/d., at p. 24a).

‘nn

REASONS FOR ALLOWING THE WRIT

I. The Decision Of The Court Of Appeals For

The District Of Columbia Circuit Directly Con-

flicts With A Decision Of The Court Of Ap-

peals For The Eighth Circuit.

In the present case, the Court of Appeals for the

District of Columbia Circuit held that ‘‘with respect to

(respondent’s] claim under the first clause of 42 U.S.C.

§1985(2), ... a showing of class-based, invidious

discrimination is [not] required’? (App. A, infra, p.

23a). This holding is in direct conflict with that of the

Court of Appeals for the Eighth Circuit in Jones v.

United States, 536 F.2d 269, 271 (8th Cir. 1976), cert.

denied, 429 U.S. 1039 (1977).

The Court of Appeals below recognized that the

first clause of Section 1985(2) ‘‘has its roots in the racial

violence that erupted in the southern states at the end of

the Civil War’? (App. A, infra, p. 17a). Yet it found

that the statute’s language controlled its decision that a

class-based, invidiously discriminatory intent is not an

element of a cause of action under the first clause of

Section 1985(2).’

In Jones, however, the Court of Appeals for the

Eighth Circuit held that racial or class-based discrimina-

tion is a necessary element of a claim brought under the

> In Brawer v. Horowitz, 535 F.2d 830 (3d Cir. 1976), the Court

of Appeals for the Third Circuit reached the same conclusion. In

both Brawer and the present case, the Court of Appeals ascribed

only secondary importance to the legislative history surrounding the

Civil Rights Act of 1871, of which Section 1985(2) is a part. See,

Brawer v. Horowitz, supra, 535 F.2d at 840 and App. A, infra,

pp. 16a-22a.

6

first clause of Section 1985(2). The Court of Appeals

based its discussion on the rationale of this Court in

Griffin v. Breckenridge, 403 U.S. 88, 101-102 (1971),

which held that class-based animus is a requirement for

violations of 42 U.S.C. §1985(3), a companion subsec-

tion of the same statute. The Jones court reasoned that

the necessity of class- based discrimination ‘‘applies

equally to all clauses of that statute [/.e., Section

1985].”’ 536 F.2d at 271.

Petitioners submit that the direct conflict between

the decision ofthe Court of Appeals for the District of

Columbia Circuit in this case and that o/ the Eighth Cir-

cuit in Jones, on a fundamental question under the Civil

Rights Act, clearly warrants resolution by this Court.

Il. The Decision Of The Court Of Appeals For

The District Of Columbia Circuit Erroneously

Decided An Important Question Of Federal

Law That Has Not Been, But Should Be,

Decided By This Court.

The decision reached by the Court of Appeals for

the District of Columbia Circuit presents an important

question regarding the interpretation and scope of the

Civil Rights Act of 1871, the source of a substantial

volume of federal litigation. Moreover, the particular

question presented here — whether discriminatory

animus is required by the first clause of Section 1985(2)

— would be one of first impression in this Court.

In Griffin v. Breckenridge, supra, this Court relied

on legislative history of Section 1985 in holding that

discriminatory animus was an element of an offense

-

under part (3) of the statute. It quoted specifically a

sponsor of the legislation, Representative Shellabarger,

that:

‘‘The object of the amendment is ... to 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.”’

Griffin v. Breckenridge, supra, 403 U.S. at 100.

In Griffin, then, this Court relied upon the

legislative purpose of the Shellabarger amendment in

reaching its determination that Congress intended racial

or class-based discrimination to be an element of actions

brought under 42 U.S.C. §1985(3). Because the current

version of Section 1985(2), both clauses, is derived from

precisely the same amendment, it follows that a similar

requirement of class-based animus is necessary for a

cause of action brought under the first clause of Section

1985(2). This is the holding in Jones.

In the Court of Appeals below, however, a contrary

result was reached, based upon an overly literal reading

of the statute, an inadequate reading of the legislative

history, and a failure to follow the holding of Griffin.

The decision of the Court of Appeals for the

District of Columbia is, therefore, an unwarranted

enlargement of the scope of the Civil Rights Act of

1871. It poses an important federal question which has

not been, but should be, decided by this Court.’

CONCLUSION

The Joint Cross-Petition for a Writ of Certiorari

should be granted.

Respectfully submitted,

ROGER C. SPAEDER

Counsel of Record

ROGER E. ZUCKERMAN

ZUCKERMAN, SPAEDER, TAYLOR

& KOLKER

1800 M Street, N.W.

Washington, D.C. 20036

(202) 223-8606

Attorneys for F. Lee Bailey and

Bailey, Alch & Gillis

BARRY E. COHEN

Counsel of Record

ARTER HADDEN &

HEMMENDINGER

1919 Pennsylvania Ave., N.W.

Washington, D.C. 20006

(202) 857-0960

Attorney for Gerald Alch

January 1981

’ Although the decision below is interlocutory, it should never-

theless be reviewed by this Court. If the Court of Appeals erred in

its holding that discriminatory animus is not an element of an of

fense under the first clause of Section 1985(2), then this Court’s

decision would be dispositive and end the litigation.

APPENDIX

la

APPENDIX A

‘ ec f ry } S10 Y p l cation

} I ) . 2 T) ( R T ors y y ects. d

( “yy ] ) , ( } Yr sma ‘ \e

nes go ress

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 79-1085

F. LEE BAILEY, ET AL.

D.C. Civil No. 74-1888 |

‘Re

Argued October 17, 1979 Judgment onte

thig dete

Decided September 9, 1980-—-—.

4 > , epee

Rufus King. Sr... with whom Rufus King, III was on

) 7 ’ } . " onl r

Barry E. Cohen, with whom Roger E. Zuckerman,

Roger C. Spaeder. Richard A. Stanley, and Wendy Manz

;

1" a 1]

were >? re piel ror appellees

T ( ( Y y n+ _— ~ + "Tl,

Li er entry ¢ igment. The

( n t of time

5

za

Before TAMM * and WALD, Circuit Judges, and PHILIP

NICHOLS, JR.,** Judge, United States Court of Claims.

Opinion for the court filed by Circuit Judge TAMM.

Opinion filed by Circuit Judge WALD, concurring in

part and dissenting in part.

TAMM, Circuit Judge: With this action we are called

upon to review yet another canto in the seemingly cease-

less saga of Watergate. Plaintiff James McCord, Jr.,

sued his criminal trial attorneys, defendants F. Lee

Bailey, Gerald Alch, and the firm of Bailey, Alch & Gillis,

for malpractice, conspiracy to represent incompetently,

and conspiracy to deprive civil rights. The district court

granted defendants’ motion for summary judgment. Mc-

Cord appeals. We agree with the district court that

either collateral estoppel or McCord’s failure to show

that he has suffered any legally cognizable injury pre-

cludes McCord’s malpractice action; we also believe, how-

ever, that McCord may have a colorable claim under the

first clause of 42 U.S.C. § 1985/2) (Supp. II 1978). We

therefore reverse the decision of the district court and

remand the case for further proceedings not inconsistent

with this opinion.

I

In June of 1972, Washington’s Metropolitan Police

arrested McCord with four others at the Democratic

National Committee headquarters. McCord was tried in

federal district court, and eventually convicted of burg-

lary, possession of intercepting devices, interception of

oral and wire communications, and conspiracy to commit

* Circuit Judge Leventhal, who was a member of this panel

when the case was heard, died before the panel had agreed

on a disposition. Circuit Judge Tamm was drawn by lot to

replace Judge Leventhal in the consideration of this appeal.

** Sitting by designation pursuant to 28 U.S.C. § 298(a)

(1976).

3a

these offenses. McCord then petitioned the trial court for

relief in the nature of a writ of error coram nobis,

raising in part allegations of ineffective counsel at the

criminal proceedings. McCord claimed that his attorneys

had been disloyal because they discussed his case with

attorneys for the other defendants and with some of

McCord’s co-conspirators, becau>2 they failed to cross-

examine key government witnesses with sufficient vigor,

and because they did not raise a defense of official au-

thorization for McCord’s acts. The district court denied

McCord’s petition in late 1973. McCord appealed this

decision and his conviction the following year, repeating

his claim of ineffective assistance of counsel as one

ground for reversal. This circuit, sitting en banc, dis-

cussed these contentions in detail, found them meritless,

and affirmed the conviction. See United States v. McCord,

509 F.2d 334, 343-45, 351-53 (D.C. Cir. 1974) (‘en banc),

cert. denied, 421 U.S. 930 (1975).

In August of 1975, McCord sued his criminal trial

attorneys on four counts: negligent and careless repre-

sentation, intentionally incompetent representation, con-

spiracy to represent incompetently, and conspiracy to

deny McCord his constitutional and statutory rights.

After more than two years of extensive discovery, the

defendants moved for summary judgment. The district

court granted this motion, finding that collateral estoppel

barred plaintiff’s claims, or alternatively, that plaintiff

lacked a legal injury for which relief could be granted.

Plaintiff McCord appeals that judgment.

II

Collateral estoppel “prohibits parties who have litigated

one cause of action from relitigating in a second and

different cause of action matters of fact which were, or

necessarily must have been, determined in the first liti-

gation.” Tutt v. Doby, 459 F.2d 1195, 1197 (D.C. Cir.

4a

1972). See Nasem v. Brown, 595 F.2d 801, 805 (D.C.

Cir. 1979) ; RESTATEMENT (SECOND) OF JUDGMENTS & 68

(Tent. Draft No. 4, April 15, 1977). Like res judicata,

collateral estoppel promotes judicial efficiency. As the

Supreme Court has noted,

a party who has had one fair and full opportunity to

prove a claim and has failed in that effort should not

be permitted to go to trial on the merits of that

claim a second time. Both orderliness and reasonable

time saving in judicial administration require that

this be so unless some overriding consideration of

fairness to a litigant dictates a different result in

the circumstances of a particular case.

Blonder-Tongue Laboratories, Inc. v. University of Illi-

nois Foundation, 402 U.S. 318, 324-25 (1971) (quoting

Bruszewski v. United States, 181 F.2d 419, 421 (3d Cir.),

cert. denied, 340 U.S. 865 (1950)). For this doctrine to

apply, the same issue must be at stake in both cases, and

the issue must have been litigated and decided in the

first suit.’

' Because it is the defendants who raise collateral estoppel

to bar the plaintiff’s relitigation of the malpractice issues, we

need not be concerned that the defendants were neither

parties nor privies to the criminal trial or appeal. In Blonder-

Tongue Laboratories, Inc. v. University of Illinois Foundation,

402 U.S. 313, 328-29 (1971), the Court held that “defensive

use” of a prior judgment—that is, a defendant’s assertion of

collateral estoppel to prevent a plaintiff’s litigation of issues

the plaintiff previously litigated and lost—-was permissible

even though the defendant was not himself bound by the

prior judgment. Last year the Court reaffirmed this rule.

See Parklane Hosiery v. Shore, 439 U.S. 322 (1979). Dis-

tinguishing defensive use from offensive use (a plaintiff's

assertion of collateral estoppel to prevent a defendant’s liii-

gation of issues the defend:nt previously litigated and lost),

the Parklane Court observed that even if the defendant was

not himself subject to an estoppel arising from the prior

judgment he asserts against the plaintiff, defensive use pro-

motes judicial economy without being unfair. See id. at

329-31.

Sa

McCord’s allegations in this case encompass in all ma-

terial respects the same claims he presented in his coram

nobis petition and his criminal conviction appeal. These

claims center on ineffective assistance and intentional

betrayal. Though in his civil case he couches his claims

primarily in tort, he raises no new material contentions.”

Furthermore, the legal standards for ineffective assist-

ance of counsel in McCord’s criminal proceedings and for

legal malpractice in this action are equivalent. At the

time of McCord’s criminal appeal, this court defined

ineffective assistance of counsel as the denial of a de-

fendant’s entitlement “to the reasonably competent assist-

ance of an attorney acting as his diligent conscientious

advocate.” United States v. DeCoster (DeCoster I), 487

F.2d 1197, 1202 (D.C. Cir. 1973). The concept of reason-

able competence is also the standard “traditionally and

universally employed as the measure of the lawyer’s

civil liability ... .” United States v. DeCoster (De-

Coster III), No. 72-1283, slip op. at 10 (D.C. Cir. July

10, 1979) (Robinson, J., concurring), cert. denied, 100 S.

Ct. 302 (1979). See Marzullo v. Maryland, 561 F.2d

540, 544 & n.9 (4th Cir. 1977), cert. denied, 435 U.S.

1011 (1978); Gard, Ineffective Assistance of Counsel—

Standards and Remedies, 41 Mo. L. Rev. 483, 495-96

? When asked during oral argument to identify any issues

of fact concerning his defense attorney’s performance that

had not been raised during the criminal proceedings, Mc-

Cord’s counsel responded only: “The overlooking, and we

maintain and there’s evidence, the intentional suppressing of

that [official authorization] defense as a defense for McCord

in the trial of the case.”’ This issue was in fact argued in the

coram nobis proceeding, see, é.g., Supplemental Memorandum

of the United States in Opposition to Motion by Defendant

McCord in the Nature of a Writ of Coram Nobis at 4 & n.5,

United States v. McCord, Crim. No, 1827-72 (D.D.C. Sept. 18,

1973), and in the criminal appeal, see United States v. Me-

Cord, 509 F.2d 334, 353 n.69 (D.C. Cir. 1974) (en banc),

cert. denied, 421 U.S. 930 (1975).

6a

(1976). See also McMann v. Richardson, 397 U.S. 759,

771 (1970); RESTATEMENT (SECOND) OF TorRTS § 299A

(1965) ; Bines, Remedying Ineffective Representation in

Criminal Cases: Departures from Habeas Corpus, 59

VA. L. REV. 927, 937 (1973).

Given the similarity of both the facts in issue in this

case and the applicable legal standards, estoppel may be

considered if these issues were actually litigated in Mc-

Cord’s criminal proceedings.* McCord asserts that they

were not. He claims that a proper evidentiary hearing

did not take place during consideration of the coram nobis

petition or on appeal, thus denying him the opportunity

to develop the facts of his case fully. We disagree.

A hearing need not be held for collateral estoppel to

apply. When the facts are undisputed or accepted as

true, a hearing would serve no purpose. Disposition by

summary judgment will suffice, for example, because

“there is no issue of material fact and... the moving

party is entitled to a judgment as a matter of law.”

FED. R. Civ. P. 56(c). See Exhibitors Poster Exchange,

Inc. v. National Screen Service Corp., 517 F.2d 110, 115-

16 (5th Cir. 1975), cert. denied, 423 U.S. 1054 (1976).

In McCord’s criminal appeal we accepted all of McCord’s

factual assertions as true, but still rejected his conten-

tions. See United States v. McCord, 509 F.2d 334, 352

* McCord does not contest that litigation of an issue in a

criminal proceeding can estop a party from raising the same

claim in a subsequent civil action. See Emich Motor Corp. v.

General Motors Corp., 340 U.S. 558, 568-69 (1951) ; MeNally

v. Pulitzer Pub. Co., 532 F.2d 69, 76 (8th Cir.), cert. denied,

429 U.S. 855 (1976). This “rule is not changed by the fact

that the [civil] action is brought by the person convicted in

the prior criminal action... .” Willard v. United States, 422

F.2d 810, 812 (5th Cir.), cert. denied, 398 U.S. 918 (1970).

See Cardillo v. Zyla, 486 F.2d 473 (1st Cir. 1973) ; United

States v. Lima, No. 79-502, slip op. at 4 (D.C. App. Mar. 12,

1980) ; Ross v. Lawson, 395 A.2d 54 (D.C. 1978).

7a

nn. 65-66 (D.C. Cir. 1974), cert. denied, 421 U.S. 930

(1975). Having accepted McCord’s factual assertions, a

hearing now would amount to little more than a “useless

ritual.” Exhibitors Poster Exchange, Inc. v. National

Screen Service Corp., 517 F.2d at 115.

Estoppel is not inappropriate because a contested issue

is first raised after trial. McCord first asserted his in-

effective assistance of counsel claim in his motion for a

writ of error coram nobis. See Supplemental Memoran-

dum on Points and Authorities in Support of Motion in

the Nature of a Writ of Error Coram Nobis at 2, United

States v. McCord, Crim. No. 1827-72 (D.D.C. Aug. 9,

1973). Judge Sirica denied the motion after considering

the parties’ memoranda and arguments. United States v.

McCord, Crim. No. 1827-72 (D.D.C. Nov. 7, 1973) (order

denying writ of error coram nobis). On appeal, the

parties fully briefed the issue, and it received a full dis-

cussion from this court. See United States v. McCord,

509 F.2d at 351-53. Thus McCord has already litigated

the issue twice and lost, see Rosenberg v. Martin, 478

F.2d 520, 565 (2d Cir.), cert. denied, 414 U.S. 817

(1973), making defensive invocation of collateral estop-

pel appropriate, see Parklane Hosiery Co. v. Shore, 439

U.S. 322, 329-31 (1979); Blonder-Tongue Laboratories,

Inc. v. University of Illinois Foundation, 402 U.S. 318,

328-29 (1971).°

Moreover, the circumstances of this case particularly

favor invocation of collateral estoppel. McCord had every

incentive in his criminal proceedings to argue aggressively

for his claim of ineffective assistance of counsel. As

noted above, he had a full and fair opportunity to prove

4The court in McCord apparently believed the issue had

not been raised before the district court. Sce United States

v. McCord, 509 F.2d at 351 n.61.

5 See note 1 supra.

8a

his case. Precluding reconsideration of a litigated claim

saves valuable judicial time and resources, while reaffirm-

ing the certainty and stability of judicial decisions. See

Johnson v. United States, 576 F.2d 606, 609-19 (5th

Cir. 1978). Furthermore, estoppel saves Bailey, Alch, and

their former law firm from the burden of defending a

lawsuit on an issue that has already been fully adjudi-

cated. See Parklane Hosiery v. Shore, 439 U.S. at 326-

27; Tutt v. Doby, 459 F.2d 1195, 1199 (D.C. Cir. 1972).

In sum, plaintiff McCord seeks to relitigate issues con-

cerning the quality of his criminal trial counsel that he

raised in the course of the criminal proceedings. Having

twice raised these issues and lost, McCord cannot raise

the claims anew in a civil case.

ITI

The district court also found that McCord had failed

to prove that defendants’ alleged misdeeds caused him

any actual injury. McCord’s only claim of loss from his

counsel’s negligence, however, is McCord’s belief that

Alch failed to assert defenses that would have exonerated

him. We agree with the district court that this claim is

not sufficient to support a suit for legal malpractice.

As a plaintiff in a malpractice suit, McCord must

demonstrate that the defendants’ actions caused a legally

* Count 3 of plaintiff’s amended complaint alleges that the

defendants took part in a conspiracy to deprive McCord of

proper representation. However, civil conspiracy is not in

and of itself a civil wrong, giving an independent cause of

action. Lamont v. Haig, 590 F.2d 1124, 1136 n.73 (D.C. Cir.

1978). See Edwards v. James Stewart & Co., 160 F.2d 935,

936-37 (D.C. Cir. 1947) ; Blankenship v. Boyle, 329 F. Supp.

1089, 1099 (D.D.C. 1971). But see also Note, Civil Con-

spiracy: A Substantive Tort?, 59 Bost. U.L. REv. 921, 926

(1979) (separate cause of action for civil conspiracy permit-

ted in a few jurisdictions under limited circumstances).

We have studied plaintiff’s complaint closely, but we are

unable to discern that he pleads or intimates any cause of

9a

cognizable injury. Becker v. Colonial Parking, Inc., 409

F.2d 1130, 1136-37 (D.C. Cir. 1969); Richardson v.

Gregory, 281 F.2d 626, 629 (D.C. Cir. 1960). The plain-

tiff must show, among other things, that his attorney’s

“negligence resulted in and was the proximate cause of

loss to the client.” Niosi v. Aiello, 69 A.2d 57, 60 (D.C.

1949). Thus an attorney is not liable for malpractice if

his client has suffered no damages.

McCord’s sole assertion of injury proximately caused

by his counsels’ malpractice is that Alch negligently

failed to argue a defense of “official authorization” for

the Watergate operation and thereby denied McCord a

successful defense. M Cord claims he participated in the

break-in and bugging because he believed that the At-

torney General of the United States had authorized and

approved the activity and that in so doing the Attorney

General had made lawful what would otherwise have

been unlawful behavior. McCord further asserts that he

told defendant Alch about his belief that he had been

officially authorized, and that Alch either negligently or

maliciously failed to present the defense to the court.

Such a defense, McCord contends, could have led to his

acquittal.

action other than legal malpractice and deprival of civil

rights. Cf. Fielding v. Brebbia, 399 F.2d 1003, 1004 (D.C.

Cir. 1968) (complaint alleged attorney had committed a

breach of fiduciary duty). We are not free to fabricate plead-

ings for either party. As McCord himself reminds us,

[w]le must predicate our judgment upon the record as

it comes to us, not upon some theoretical or philosophical

idea of what the record might have been had the plead-

ings and the record in the trial court presented us with a

wide latitude for study and a multiple selection of possi-

ble dispositions. Upon the present record we have more

voice than power.

Brief for Appellant at 34 (quoting Pearson v. Dodd, 410 F.2d

701, 709 (D.C. Cir.) (Tamm, J., concurring), cert. denied,

395 U.S. 947 (1969) ).

10a

A division of this court has suggested by way of a per

curiam reversal that a limited defense to a criminal

charge exists for reasonable, good faith reliance on the

apparent authority of a government official to authorize

otherwise unlawful activity. United States v. Barker,

546 F.2d 940 (D.C. Cir. 1976) (per curiam). Writing

in a separate opinion, Judge Wilkey stated that a de-

fendant asserting this defense must “show that his re-

liance was objectively reasonable under the particular

circumstances of his case.” Id. at 949 (Wilkey, J.)

(separate opinion) (original emphasis). Judge Merhige

agreed that the defense was available “if, and only if, an

individual (1) reasonably, on the basis of an objective

standard, (2) relies on a (3) conclusion or statement of

law (4) issued by an official charged with interpretation,

administration and/or enforcement responsibilities in the

relevant legal field.” Jd. at 955 (Merhige, J.) (separate

opinion) (emphasis added) .'

Even if we assume that after Barker a criminal act

will be excused if the defendant was misled by a govern-

ment official into believing that the act was lawful, Mc-

Cord cannot make a colorable argument under either

Judge Wilkey’s or Judge Merhige’s formulation. Clearly

McCord must show that he had some objective basis to

believe the Watergate operation enjoyed official sanction.

Such a showing is unimaginable. McCord’s employer was

not a government agency, but a political committee.

McCord did not believe his supervisor, Gordon Liddy, was

other than a private individual. McCord had no direct

contact with any government official, nor did he have

reason to believe Liddy functioned as an intermediary

for anyone acting in an official capacity. McCord con-

* Judge Leventhal dissented in Barker because he did not

believe any mistake of law defense actually applied to the

Watergate circumstances. See United States v. Barker, 546

F.2d 940, 957-73 (D.C. Cir. 1976) (Leventhal, J., dissenting).

lla

ceded before the Senate Watergate Committee that his

bugging and surveillance all concerned political activities

and that McCord himself harbored suspicions that the

operations were unrelated to national security or other

legitimate government interest.’ Thus to the extent there

is an official authorization defense, it could not apply to

McCord. See Democratic National Committee v. McCord,

416 F. Supp. 505, 508-09 (D.D.C. 1976). Accordingly,

had Alch or Bailey raised the defense at McCord’s trial,

Judge Sirica would have stricken it on its face; there

could have been no difference in the trial’s outcome.

McCord has failed to indicate how he could successfully

establish injury, an essential element of his claim, and

the defendants were entitled to judgment as a matter of

law on this issue. The district court did not err when

it identified the absence of any legally cognizable harm

as an alternative basis for granting summary judgment.

8 See Hearings on Watergate and Related Activities Before

the Senate Select Comm. on Presidential Campaign Activities,

93d Cong., 1st Sess., pt. 1, at 166 (1973). Judge Bazelon,

speaking for this circuit in affirming McCord’s criminal] con-

viction, concluded that

[McCord’s] testimony before the Watergate Committee

and the newly discovered evidence discussed in the text

both tend to support the conclusion that McCord at no

time believed his authorization was based on considera-

tions of the domestic security of the United States, see

Hearings on Watergate and Related Activities Before

the Senate Select Comm. on Presidential Campaign Ac-

tivities, 93d Cong., Ist Sess., pt. 1, at 127-28, 173-76, 203

(1973) ...; Trial Tr. at 1031. In light of this factual

confusion and the problematic legality of McCord’s de-

fense, we find no plain error in the failure to raise the

defense sua sponte.

United States v. McCord, 509 F.2d 334, 343 n.18 (D.C. Cir.

1974: (en banc), cert. denied, 421 U.S. 940 (1975).

l2a

IV

In the fourth and final count of his amended complaint,

plaintiff McCord asserts claims against the defendants

under 42 U.S.C. $$ 1988, 1985/2), (8) (Supp. II 1978).*

* Section 1988 provides that:

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or Ter-

ritory, subjects, or causes to be subjected, any citizen

of the United States or other person within the jurisdic-

tion thereof to the deprivation of any rights, privileges,

or immunities secured by the Constitution and laws, shall

be liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress.

42 U.S.C. 1983 (1976). In 1979, Congress expanded the

coverage of § 1988 to include acts under color of District of

Columbia law. Pub. L. No. 96-170, §$ 1, 98 Stat. 1284 (1979).

This amendment has no bearing upon McCord’s case, how-

ever, because McCord does not contend that any deprivation

of his rights occurred after the effective date of the amend-

ment, December 29, 1979. See id. § 3.

Section 1985, subsections (2) and (3), provides that:

(2) If two or more persons in any State or Territory

conspire to deter, by force, intimidation, or threat, any

party or witness in any court of the United States from

attending such court, or from testifying to any matter

pending therein, freely, fully, and truthfully, or to in-

jure such party or witness in his person or property on

account of his having so attended or testified . . .; or if

two or more persons conspire for the purpose of imped-

ing, hindering, obstructing, or defeating, in any manner,

the due course of justice in any State or Territory, with

intent to deny to any citizen the equal protection of the

laws, or to injure him or his property for lawfully en-

forcing, or attempting to enforce, the right of any per-

son, or class of persons, to the equal protection of the

laws;

(3) [I]n any case of conspiracy set forth in this Section,

if one or more persons engaged therein do, or cause to be

done, any act in furtherance of the object of such con-

spiracy, whereby another is injured in his person or

l3a

The district court did not discuss these allegations. Find-

ings of fact and conclusions of law must be “sufficiently

comprehensive and pertinent to the issues to provide a

basis for decision.” Schilling v. Schwitzer-Cummins Co.,

142 F.2d 82, 84 (D.C. Cir. 1944). See Kelly v. Ever-

glades Drainage District, 319 U.S. 415, 420-22 (1943)

‘per curiam). Although inadequate findings and con-

clusions may be remanded to the district court for supple-

mentation, ‘we will not remand a case for more specific

findings if doing so will consume precious time and

judicial resources without serving any purpose.” LaSalle

Extension University v. FTC, No. 79-1270, slip op. at 7

(D.C. Cir. June 5, 1980) (per curiam). We therefore

must examine each of McCord’s civil rights contentiors

to determine whether further consideration by the dis-

trict court is required.

A. McCord’s Causes of Action Under Sections 1983,

1985(3), and the Second Clause of 1985(2)

To maintain a cause of action under section 1983,

McCord must show that the defendants deprived him of

his civil rights “under color of state law.” Griffin v.

Breckenridge, 403 U.S. 88, 99 (1971). On this record

McCord could not make the required showing. The

defendants appeared on McCord’s behalf at his criminal

trial. Lawyers may be officers of the court, but “ ‘they

are not officers of the state within the meaning of |[sec-

tion 1983].’”) French v. Corrigan, 432 F.2d 1211, 1215

property, or deprived of having and exercising any right

or privilege of a citizen of the United States, the party

so injured or deprived may have an action for the re-

covery of damages, occasioned by such injury or depriva-

tion, against any one or more of the conspirators.

42 U.S.C. § 1985 (2), (3) (Supp. IT 1978).

Our discussion of injury, see part III supra, is not applica-

ble here.

Ilda

(7th Cir. 1970) (quoting Jones ». Jones, 410 F.2d 365,

366 (7th Cir. 1969), cert. denied, 396 U.S. 1013 11970)).

cert. denied, 401 U.S. 915 (1971). Accord, Brown

Chaffee, 612 F.2d 497, 501 (10th Cir. 1979). In their

capacities as representatives of a client in court, private

counsel do not act under color of state law. Slavin vr.

Curry, 574 F.2d 1256, 1265 (5th Cir. 1978): Fine

City of New York, 529 F.2d 70, 74 (2d Cir. 1975).

McCord argues, however, that the defendants are sub-

ject to section 1983 by virtue of their alleged conspiracy

with various federal officials. Even if MecCord’s factual

allegations are correct, such a conspiracy fails to satisfy

section 1983’s requirements. As the Supreme Court stated

in District of Columbia v. Carter, 409 U.S. 418 (1973).

section 1983 “deals only with those deprivations of rights

that are accomplished under the color of the law of ‘any

State or Territory.’” Jd. at 424. Actions of federa!

officers are outside its proscriptions. See id. at 424-25.

McCord’s claim under 42 U.S.C. § 1985/3) is equally

without merit. In Griffin v. Breckenridge, 403 U.S. 88

(1970), the Court held that although section 1985 reaches

private conspiracies as well as those involving state ac-

tion, the language, legislative history, and constitutional

basis of the statute indicate that a plaintiff under section

1985(3) must allege and prove “some racial, or perhaps

otherwise class-based, invidiously discriminatory animus

behind the conspirators’ action.” Jd. at 102. Accord, e.g.

Ellis v. Cassidy, No. 79-4160, slip op. at 3850 (9th Cir.

June 20, 1980). Plaintiff McCord cannot pretend that

he was the object of civil rights deprivation because of his

race or membership in some other class.

McCord also asserts that the defendants conspired with

others to dissuade him from testifying in his own behalf

the grand jury and at his trial, thereby giving rise to

a cause of action under 42 U.S.C. §1985/2)." The

'” See note 9 supra.

5a

second half of section 1985(2) does not apply to McCord.

Like section 1985(3), it specifies an intent to deny equal

protection of the laws me draws its constitutional basis

from section 5 of the fourteenth amendment, which gives

Congress the power to legislate against obstructions of

justice in a state. Such a construction avoids any ques-

tion of Congress’s authority to enact this provision. See,

e.g., Brawer v. Horowitz, 535 F.2d 830, 839-40 (3d Cir.

1976).

PR. McCord’s Cause of Action Under the First Clause of

Section 1985(2)

The requirement of discriminatory animus in actions

under the first half of section 1985(2) presents a ques-

tion of first impression in this circuit.1! Like the Third

Circuit, “{wle approach the perfidious syntax of

$ 1985/2) with some reserve for... there is a dearth

of authority to light our way.” Brawer v. Horowitz,

535 F.2d at 837.

We begin with the language of the statute itself. See,

e.g., Ernst & Ernst v. Hochfelder, 425 U.S. 185, 197

(1976): Zerilli v. The Evening News Association, No.

79-1298, slip op. at 6 (D.C. Cir. June 11, 1980). The

first clause of section 1985(2) creates a cause of action

'i]f two or more persons in any State or Territory

conspire to deter, by force, intimidation, or threat,

any party or witness in any court of the United

States from attending such court, or from testifying

to any matter pending therein, freely, fully, and

'! Decisions in other circuits have reached differing conclu-

sions. Compare, e.g., Brawer v. Horowitz, 535 F.2d 830, 840

(3d Cir. 1976) (showing of discriminatory animus not re-

quired) and Kelly v. Foreman, 384 F. Supp. 1352, 1855 (S.D.

Tex. 1974) (same) with Jones v. United States, 401 F. Supp.

168, 172-74 (E.D. Ark. 1975) (plaintiff must show class-

based, invidiously discriminatory intent), aff’d, 536 F.2d 269,

271 (8th Cir. 1976), cert. denied, 429 U.S. 1039 (1977)

l6a

truthfully, or to injure such party or witness in his

person or property on account of his having so at-

tended or testified... ;

42 U.S.C. $1985(2) (Supp. II 1978). Thus the first

clause, unlike its companion provisions, prohibits con-

spiracies to interfere with the integrity of the federal

judicial system. It does not demand a denial of “equal

protection of the laws,” nor is an implication of such a

requirement necessary to avoid constitutional shoals."

According to the Supreme Court, the Reconstruction

civil rights acts are to be “accordfed] a sweep as broad

as [their] language.” Jones v. Alfred H. Mayer, 392

U.S. 409, 437 (1968) (quoting United States v. Price,

383 U.S. 787, 801 (1966) ). Accord, Griffen v. Brecken-

ridge, 403 U.S. 88, 97 (1971). Given the manifest mean-

ing and the absence of reason for restrictive reading, we

do not believe a class-based, invidiously discriminatory

intent is an element of a cause of action under the first

clause of section 1985(2). See, e.g., Brawer v. Horowitz,

535 F.2d at 840. Our instructions are clear: “Where the

language is plain and admits of no more than one mean-

'“ The constitutional basis for the first clause of § 1985 (2)

is Congress’s plenary power over the federal courts. The Con-

stitution grants Congress power “ft lo constitute Tribunals

inferior to the supreme Court,” U.S. Const.. ert. I, § 8, el. 8,

and Congress enjoys wide latitude in effectuating its consti-

tutional powers, see McCulloch v. Maryland, 17 U.S. (4

Wheat.) 316 (1819). Preserving the integrity of the federal

judicial process clearly includes discouraging all conspiracies,

whatever their motivation or target, that use threats, force,

or intimidation to deter free, full, and truthful testimony.

See Stern v. United States Gypsum, Inc., 547 F.2d 1329, 1341

n.19 (7th Cir.) (dictum), cert. denied, 484 U.S. 975 (1977):

Brawer v. Horowitz, 535 F.2d at 840: Kelly v. Foreman, 384

F. Supp. at 1355. Congress lacked an equivalent authority

over state courts, so the equal protection language in the

second half of § 1985(2) was inserted to ground that portion

of the statute on Congress’s power under £ 5 of the fourteenth

amendment. See pages 18-22 infra.

17a

ing the duty of interpretation does not arise and the rules

which are to aid doubtful meanings needs no discussion.”

Caminetti v. United States, 242 U.S. 470, 485 (1917).

Even if we were obligated to look beyond the face of

the statute, as the defendants suggest, we would find that

the legislative history supports our conclusion. Reinforc-

ing the sanctity of the federal judicial process for all

citizens was one objective Congress had in mind when

it enacted the source of section 1985, the Ku Klux Klan

Act of 1871, Act of Apr. 20, 1871, 17 Stat. 13. See pages

14-15 infra. Moreover, the draftsman of the original

legislation added the “denial of equal protection of the

laws” phrase to his bill solely to allay doubts about the

section’s constitutionality that were raised by the bill’s

opponents. Because the bill’s friends and foes acknowl-

edged the federal government’s power to protect its own

courts, this phrase was not attached to the language that

is now the first clause of section 1985/2). See pages 15-

18 infra.

Protection of civil rights was not the only reason for

the enactment of the Ku Klux Klan Act of 1871. Restora-

tion of civil authority, including restoration of the fed-

eral courts’ ability to proceed without improper interfer-

ence, was a major concern. The statute has its roots in

the racial violence that erupted in the southern states at

the end of the Civil War. The Ku Klux Klan had been

organized in 1866. The subsequent five years had been

marked by increasing nunbers of attacks, often fatal,

against blacks and Union sympathizers, including many

federal officials. By 1871, the turbulence in the South

had caused considerable consternation in Congress. On

March 23, 1871, President Grant asked for legislation

giving him additional authority to control the apparent

chaos. Five days later, Representative Samuel Shella-

barger of Ohio introduced a bill to meet the President’s

request. See generally District of Columbia v. Carter,

409 U.S. 418, 425-26 (1973).

18a

Throughout the deliberations that followed in the House

and Senate, a recurring theme was that the need to pre-

serve orderly government mandated enactment of Repre-

sentative Shellabarger’s bill. President Grant’s message

had declared that “{a] condition of affairs now exists in

some States of the Union rendering .. . the carrying of

the mails and the collection of the revenue dangerous.”

CONG. GLOBE, 42d Cong., Ist Sess. 244 (1871). Pro-

ponents of Shellabarger’s bill repeatedly raised the specter

of a renewed spirit of insurrection running rife in the

South. Representative Buckley, for example, warned the

House of Representatives that this spirit

still defies the national authority, sets at naught the

laws of the country, and tramples upon the natural

and political rights of our fellow citizens. The United

States mails are stopped; route agents are shot dead

while assorting the mails, and others are driven from

their routes.

Your revenue officers are resisted and scourged

and driven from their homes and families and out

of the country. .. . In certain communities lawless-

ness is widespread and on the increase. Crimes are

fearfully common. The value of human life is dis-

regarded. Murderers go unpunished. .. . Terrorism

reigns. The apprehension of violence prevents good

men from arresting the evils they see.

Id. at app. 190. See id. at 519 (remarks of Rep. Shella-

barger). Thus congressional concerns encompassed more

than racial equality or personal rights. The operation

of government, especially the federal government, was

threatened. Civil survival was at stake. See, e¢.g., id. at

830 (remarks of Sen. Stewart). To prevent what ap-

peared to be impending anarchy, Congress must have

intended its measure to reach more than attacks on gov-

ernment operations to further racial or other invidious

discrimination, at least to the extent the Constitution

permitted Congress to act.

19a

Indeed, the bill as originally proposed created a broad

remedy to address Congress’s broad concerns. Section 2

of the bill would have made it a federal felony to conspire

with another to commit, among other crimes, perjury,

subornation of perjury, or criminal obstruction of justice,

regardless of whether the offense took place in the course

of state or federal proceedings. Jd. at 317 (remarks of

Rep. Shellabarger).'* Opponents of this version charac-

terized the provision as an unconstitutional trampling

upon state prerogatives. Representative Arthur of Ken-

tucky complained that the section “absorbs the entire

13 In its original form, § 2 of Representative Shellabarger’s

bill provided that

if two or more persons shall, within the limits of any

State, band, conspire, or combine together to do any act

in violation of the rights, privileges, or immunities of

any person, to which he is entitled under the Constitution

and laws of the United States, which, committed within

a place under the sole and exclusive jurisdiction of the

United States, would, under any law of the United States

then in force, constitute the crime of either murder,

manslaughter, mayhem, robbery, assault and battery,

perjury, subornation of perjury, criminal obstruction

of legal[] process or resistance of officers in discharge

of official duty, arson, or larceny, and if one or more of

the parties to said conspiracy or combination shall do

any act to effect the object thereof, all the parties to or

engaged in said conspiracy or combination, whether prin-

cipals or accessories, shall be deemed guilty of a felony,

and upon conviction thereof shall be liable to a penalty

of not exceeding $10,000, or to imprisonment not ex-

ceeding ten years, or both, at the discretion of the court;

provided, that if any party or parties to such conspiracy

or combination shall, in furtherance of such common

design, commit the crime of murder, such party or par-

ties so guilty shall, upon conviction thereof, suffer

death....

Conc. GLOBE, 42d Cong., 1st Sess. 317 (1871) (remarks of

Rep. Shellabarger) (emphasis added). See id. at app. 188

(remarks of Rep. Willard).

20a

jurisdiction of the States over their local and domestic

affairs” and called it “a sweeping usurpation of universal

criminal jurisdiction in the States.” Id. at 366. Repre-

sentative Whitthorne of Tennessee argued that the sec-

tion effectively empowered Congress to oversee all of the

states’ functions. Jd. at 337.

Representative Shellabarger amended his bill in re-

sponse to these objections that Congress lacked constitu-

tional authority to extend federal jurisdiction as proposed

in section 2.'* The new version stated with greater

'* The amendment, among other things, replaced § 2 of the

bill with the following provision:

SEC. 2. That if two or more persons within any State

or Territory of the United States shall conspire... by

force, intimidation, or threat to deter any witness in

any court of the United States from testifying in any

matter pending in such court fully, freely, and truth-

fully, or to injure any such witness in his person or

property on account of his having so testified, or by force,

intimidation, or threat to influence the verdict of any

juror in any court of the United States, or to injure such

person in his person or property on account of any ver-

dict lawfully assented to by him, or shall conspire to-

gether for the purpose, either directly or indirectly, of

depriving any person or any class of persons of the equal

protection of the laws, or of equal privileges or immuni-

ties under the laws, or for preventing or hindering the

constituted authorities of any State from giving or

securing to all persons within such State the equa! pro-

tection of the laws, or to injure any person in his per-

son or his property for lawfully enforcing the right of

any person or class of persons to the equal protection

of the laws, each and every person so offending shall be

deemed guilty of a high crime... and if any one or more

persons engaged in such conspiracy, such as is defined

in the-preceding section, shall do or cause to be done

any act in furtherance of the object of such conspiracy,

whereby any person shall be injured in his person or

property, or deprived of having and exercising any right

or privilege of a citizen of the United States, the person

2la

specificity the violations brought under federal jurisdic-

tion. For offenses traditionally left to state jurisdiction,

such as obstruction of justice in state courts, the purview

of section 2 was limited to crimes committed with an

intent to deprive equal protection of the laws; as a result,

the revised section 2 confined the new federal cause of

action to violations of an explicit federal interest. For

offenses under federal jurisdiction regardless of the of-

fender’s intent, such as acts interfering with the opera-

tion of federal courts, no limitation was made.

The changes answered the objections of some members.

For example, Representative Willard explained that he

had believed the original bill “gave to the United States

courts jurisdiction of every criminal offense that could be

committed anywhere within the limits of the United

States; that it practically abolished the criminal jurisdic-

tion of the State, absorbing it all into the United States

courts.” Id. at app. 188. With the amendment’s restric-

tion of federal jurisdiction over state crimes to violations

that were intended to deny equal protection of the laws,

Representative Willard announced he would vote in favor

of the measure. See id. (remarks of Rep. Willard). Even

those who continued their opposition conceded that Con-

gress could do as it wished to protect the federal judi-

‘ciary. Senator Thurman told the Senate:

I grant that as to those which are offenses against

the United States they must be taken into the Fed-

eral courts: the State courts have no jurisdiction of

them. For instance, to intimidate a witness so as to

prevent his attending a Federal court, to tamper

with a juror in a Federal court, are offenses, not

so injured or deprived of such rights and privileges may

have and maintain an action for the recovery of dam-

ages against any one or more of the persons engaged in

such conspiracy... .

Id. at 477 (remarks of Rep. Shellabarger). See note 9 supra,

t i

22a

against the State, but offenses against the jurisdic-

tion of which must be given to the Federal

courts...

Id. at app. 220.

Thus for the purpose of defusing the objections that

his bill asserted federal jurisdiction over state crimes in

excess of Congress’s constitutional powers, Representative

Shellabarger added the requirement of an intent to deny

equal protection of the laws. Inserting the equal protec-

tion language limited federal jurisdiction over state

crimes to those offenses that also injured a federal inter-

est grounded in the fourteenth amendment. No such

limitations were required in the bill with regard to pro-

tection of the federal interest in its own judicial process.

Federal jurisdiction in all cases of this nature, such as

intimidation of a witness in a federal proceeding, was

recognized by both the bill’s supporters and its opponents.

Neither injury to a federal interest nor federal authority

to remedy that injury were in doubt. Consequently, in

applying the portion of Shellabarger’s revised section 2

that is now codified as the first clause of 42 U.S.C.

* 1985(2), the legislative history does not support re-

quiring proof of a racial or other class-based invidious

discrimination."

By the same token, the clause’s requirement that the

conspiracy consist of two or more persons “in any State or

Territory” does not exclude conspiracies conducted in the

District of Columbia. In District of Columbia v. Carter, 409

U.S. 418 (1971), the Court held that the words “State or

Territory” as used in 42 U.S.C. § 1983 do not include the

District. Nevertheless, the term “State or Territory” may

have one meaning in § 1983 and another in § 1985(2). The

Carter Court recognized that “ ‘tw]here the subject matter

to which the words refer is not the same in the several] places

where they are used, or the conditions are different, or the

scope of the legislative power exercised in one case is broader

than that exercised in another, the meaning may well vary to

meet the purposes of the law... .’” 409 U.S. at 421 (quoting

We have concluded that either the application of col-

lateral estoppel or the lack of any legally cognizable harm

to the plaintiff precluded McCord’s legal malpractice

claims under counts one through three of his complaint.

Due to the absence of state action and any intent on the

defendants’ part to inflict a class-based, invidious discrimi-

nation, McCord cannot maintain a cause of action under

42 U.S.C. $$ 1988, 1985(2) (cl. 2), and 1985(3). We

hold that with respect to McCord’s claim under the first

clause of 42 U.S.C. § 1985(2), however, neither a show-

ing of state action ner a showing of class-based, invidious

discrimination is required. His claim therefore cannot be

discarded because these factors are not present.

Atlantic Cleaners & Dyers v. United States, 286 U.S. 427,

433 (1932) ).

The first clause of §1985(2) is readily distinguishable

from § 1983. In § 1983, “State or Territory” defines whose

officials will have liability. In Carter, the Court reasoned that

Congress did not intend the provision to extend to District

of Columbia officials because Congress already had plenary

power over officers of the District, and Congress had ample

opportunity to supervise those officials directly. In § 1985(2),

however, “State or Territory” defines what conspiracies will

be subject to the statute. We cannot presume Congress in-

tended to attack conspiracies throughout the nation except

for the District of Columbia. A rationale that would justify

esablishing the District as a conspiracy enclave is difficult

to conceive. Furthermore, Congress enacted § 1983 pursuant

to its powers under the fourteenth amendment. The Carter

Court concluded that the District’s officers were not liable

under § 1983 because the fourteenth amendment reaches only

state action. This limitation does not apply where article I

powers are employed, such as the enactment of the first clause

of § 1985(2) to protect the federal judiciary. See also Hurd

v. Hodge, 334 U.S. 24 (1948) (“State or Territory” includes

the District of Columbia for purposes of § 1982 because the

statute is based upon the thirteenth amendment and thus is

not limited to state action).

24a

On tis record we cannot say tiiat McCord’s invocation

of section 1985(2) is frivolous. The defendants contend

that McCord did not allege with sufficient particularity

the overt acts of a conspiracy and that McCord did not

offer proof of having been threatened or intimidated not

to testify before the grand jury or at his trial. These

issues are principally factual; they are best resolved in

the first instance by the court that has been most in-

timately connected with the record. The decision of the

district court is therefore reversed and the case is re-

manded for further proceedings not inconsistent with

this opinion.

It is so ordered.

25a

WALD, Circuit Judge, concurring in part, dissenting in

part: I coneur in Parts I, Il and IV of Judge Tamm’s

opinion for the court. I disagree only with footnote 6

and with the discussion in Part II of the applicability of

the doctrine of collateral estoppel in the unusual circum-

stances of this case.

While I agree with Part III of the opinion, the im-

possibility of McCord’s demonstrating injury only dis-

poses of one potential cause of action based on the facts

alleged in his complaint, that of malpractice based on

negligence. I cannot concur in the conclusion expressed

in the majority’s footnote 6 that McCord’s complaint is

so limited. It does not require an indulgent reading of

the complaint to draw from McCord’s allegations some-

thing more than mere negligence, though much of the

language is cast in that light. McCord specifically alleges

that his lawyers “knowingly and intentionally failed...

to inform [him] of pertinent facts and factors,” “failed

to pursue certain avenues of investigation of matters vital

to [his] defense,” and that “at all relevant times hereto,

the interests of the Defendants were in unrevealed con-

flict with the interests of the Plaintiff |MeCord].”” Fur-

thermore. in Count II. he charges that the acts arose out

of a conspiracy with the chief Watergate co-conspirators.

A claim of disloyalty or conflict of interest on the part of

an attorney is an actionable tort, recognized in our Cir-

cuit. and described in the RESTATEMENT (SECOND) OF

'In Fielding v. Brebbia, 399 F.2d 1003 (D.C. Cir. 1968),

the plaintiff sued his attorney for breach of the fiduciary rela-

tionship, alleging that the attorney had counseled him to

resign his position as president of a corporation, in order to

help another client replace him and take over the business.

In spite of the fact that in its factual allegations supporting

the claim the complaint was conclusory and vague in the

extreme, this court held that its dismissal for failure to state

a claim was improper, noting that “this jurisdiction has been

outstandingly alert to the delicacy of the status of attorneys

26a

TorTs § 874 as a “breach of fiduciary duty.” McCord’s

allegations of disloyalty, if proved, constitute a legally

cognizable ‘“‘wrong”’ separate and apart from the adequacy

of his representation at trial.*

Furthermore, I would conclude that an allegation of

deliberate and willful disloyalty and conflict of interest

states a claim without an allegation of actual damages;

the cause of action vindicates a legal wrong rather than

seeking to compensate injury.* Of course, even assuming

who undertake to counsel a client.” Jd. at 1005. The court

further justified its hesitancy to bar the plaintiff from his

opportunity to prove his claim by noting that the confidential

relationship “presents so many opportunities for the reaping

of special benefits at the expense of the client by an attorney

so disposed.” Jd.

*The right to the undivided loyalty of one’s attorney is

“absolute” in the sense that it does not depend on one’s guilt

or innocence. That duty of loyalty is a crucial factor in the

success of our adversary system of justice. It is strongly

stated in Ethical Consideration 5-1 of the ABA Code of Pro-

fessional Responsibility:

The professional judgment of a lawyer should be exer-

cised, within the bou.ds of the law, solely for the benefit

of his client and free of compromising influences and

loyalties. Neither his personal interests, the interests of

other clients, nor the desires of third persons should be

permitted to dilute his loyalty to his client.

Of particular relevance to this case is Disciplinary Rule

5-107(B):

A lawyer shall not permit a person who... pays him

to render legal services for another to direct or regulate

his professional judgment in rendering such legal

services,

* The Supreme Court has recently observed:

Common-law courts traditionally have vindicated depri-

vations of certain ‘“‘absolute” rights that are not shown

to have caused actual injury through the award of a2

nominal sum of money. By making the deprivation of

27a

that on a generous reading McCord’s complaint alleges

a tort claim which is not predicated on harm, collateral

estonvel would serve as a barrier, according to the ma-

jority’s discussion of that doctrine in section II. I cannot

agree with that conclusion, given the facts of this case.

The doctrine of collateral estoppel, reduced to its es-

sence, provides that our judicial system will provide a

party with only one “full and fair opportunity” to

litigate an issue. “Collateral estoppel, like the related

doctrine of res judicata, has the dual purpose of protect-

ing litigants from the burden of relitigating an identical

issue with the same party or his privy and of promoting

judicial economy by preventing needless litigation.”

Parklane Hosiery Co. v. Shore, 489 U.S. 322, 326 (1979).

I agree with the majority that it may be perfectly

acceptable for a party to be held bound by a determina-

tion made in a prior criminal proceeding in which he or

she was the defendant. And of course, the fact that an

issue is settled in the course of a summary proceeding,

without an evidentiary hearing, does not necessarily mean

that estoppel cannot apply, so long as a final judgment

was entered on the merits. Many cases recognize the

collateral estoppel effect of a final judgment based on

insufficiency of a complaint or on summary Judgment.

Nevertheless, I have difficulty with holding McCord

totally estopped from asserting all claims of disloyalty

and conflict of interest under the circumstances of this

such rights actionable for nominal damages without proot

of actual injury, the law recognizes the importance to

organized society that those rights be scrupulously ob-

served: but at the same time it remains true to the prin-

ciple that substantial damages should be awarded only

to compensate actual injury or, in the case of exemplary

or punitive damages, to deter or punish malicious depri-

vations of rights.

Carey v. Piphus, 435 U.S. 247, 266 (1978).

case. And I note other courts have had similar di

when faced with occasional unfair results which might be

wrought by too broad an application of the doctrine ot

collateral estoppel. Some have gone so far as to describe

the doctrine as dangerous, in that it could result in “utter

disaster” as a result of a “trivial controversy,” subjecting

litigants to “extravagant hazards.” The Everqreens \

Nunan, 141 F.2d 927, 929 (2d Cir.), cert. denied, 323

U.S. 720 (1944) ‘Learned Hand, J.). Traditionall:

courts relied on a variety of approaches to avoid the

necessity of holding a litigant bound when to do so would

be unfair or unwise under the circumstances.*

‘For example, some decisions define the “issue” dete)

mined in the prior proceeding very narrowly, and then cor

clude that the new issue is different, albeit only slightly. S

Brubaker v. King, 505 F.2d 534 (7th Cir. 1974): Williams \

Liberty, 461 F.2d 325 (7th Cir. 1972). Other courts hav

held that if the prior determination decided more than wa

“necessary,” the bar should not apply. Haize v. Hanover In

Co., 586 F.2d 576 (3d Cir. 1976). Still other urts hi

strictly applied the requirement that a question be “distinet

put in issue and directly determined,” especially in

involving prior criminal proceedings. Kauffman v. Moss, 12

F.2d 1270 (3d Cir.), cert. denied, 400 U.S. 846 (1970)

Any of these theories could support a refusal to conclude

that McCord is collaterally barred here. The issue in our

prior decision was, after all, whether the assistance pr

by McCord’s counsel was so ineffective a

to a fair trial. Here, on the other hand, the question

whether Bailey and Alch violated the fiduciary duty ov

to their client; the effect of that alleged breach on MeC

conviction or on the fairness of his trial is no |

issue. As the Seventh Circuit has noted, “!Tlhe standa

proof in a malpractice action might not be as strenu

)

is When questioning the constitutional adequacy

as to impair his richt

Walker v. Kruse, 484 F.2d 802 (7th Cir. 19783). I .

argued that this court’s conclusion on appeal that Met

allegations “taken as true do not make a case for dis!)

or conflict of interest’ was more broad!y worded thar

necd have been to dispose of the case, since all the C

29a

These analyses led to a conclusion that collateral estop-

pel could not apply because its prerequisites had not been

met. I do not believe that such a restrictive ruling is

necessary here, however. A more straightforward and

flexible analysis has recently been commended to us by

Supreme Court. Parklane Hosiery, supra, 439 U.S.

222. struck down the last vestiges of mutuality of estop-

pel, which had provided that neither party could use a

prior judgment against the other party unless both

parties were bound by the same judgment. The Court

recognized, however, that as traditional restrictions on the

of collateral estoppel were eased, the possibility of

unfairness increased. I would add that the possibility

of the frustration of the important public benefit of hav-

ing issues fully aired and finally decided also increases.

The solution. declared the Court, was not to impose strict

limitations on when collateral estoppel may apply, but to

grant broad discretion to determine that it should not

apply in a particular case. Id. at 331.

I therefore turn to the question of whether an unusual

combination of circumstances in this case might justify

providing James McCord with an opportunity to prove

that he is entitled to recover damages for malpractice

from his former attorneys. There are a variety of such

circumstances in this case. First of all, there is the im-

portant factor that this case involves the sensitive yet

critically important relationship between a criminal de-

fendant and his attorneys. Ensuring the strictest in-

tegrity in discharging this trust is a matter of as much

concern to this Court as it is to defendants. Further-

more, no finder of fact has ever considered the evidence,

heard the testimony and croess-examination of witnesses,

judged the credibility of witnesses, and concluded that

needed to decide was whether McCord had alleged a “sub-

tuntial” deprivation of his ri¢cht to effective assistance of

eounsel, which in turn affected his right to a fair trial.

30a

Gerald Alch and F. Lee Bailey were representing McCord

with undivided loyalty and protecting his interests alone.

In the interests of the courts’ duty to supervise the

practice of law in this jurisdiction, it would be wise

that such a determination be made before this chapter

of the Watergate conspiracy is finally closed.

Furthermore, one of the principal purposes of collateral

estoppel, “to protect litigants from the burden of reliti-

gating an identical issue with the same party,” Parklane

Hosiery, supra, at 326, is not a factor in this case. Alch

and Bailey have never previously been party to any suit

brought by McCord; calling them to answer in a judicial

forum for the first time works no more of an injustice

against them than a lawsuit may against any litigant.

Mutuality may not be a requirement of collateral estoppel

any more, but lack of mutuality certainly eliminates

much of the potential unfairness of deciding not to apply

the doctrine.

When preventing unfairness to litigants is not a fac-

tor in deciding whether collateral estoppel should apply,

we are left with the goal of conserving judicial resources.

In such a case, the court’s discretion to decide that the

benefits of an evidentiary hearing to finally resolve this

issue are greater than the detriment to its resources is

appropriately broader. This case should not involve the

“staggering expense and typical length” of a patent case,

for example, where collateral estoppel is particularly val-

uable. Jd. at 328-329 n.10.

Finally, and particularly noted by the Supreme Court

in Parklane Hosiery as a factor to be considered in exer-

cising discretion to decide whether collateral estoppel

should apply, there were practical and procedural disad-

°In fact, because of the Court’s ruling on the civil rights

issues in this case, the defendants will in fact be called to

defend their conduct in this case.

3la

vantages suffered by McCord in presenting his claims to

this court before. He was “unable to engage in full-scale

discovery or call witnesses,” id. at 331, and indeed he

alleges that some witnesses were unwilling to talk with

him because they were still subject to criminal prosecu-

tion. He was also in the process of attempting to pursue

his appeal with new counsel, allegedly with a notable lack

of cooperation from Alch. All of these are factors which

I believe should be considered before the district court

decides to foreclose McCord’s tort claims, though I would

leave initial determination of the balance of equitable

considerations to it.®

All of this is not to say, of course, that McCord has

proved his case of disloyalty and breach of fiduciary

duty, even under this limited rationale. Rather, he has

presented a plausible sequence of events, supported at key

points by uncontested facts and affidavits from third

parties, which I believe would give rise to a cause of

action for tortious breach of fiduciary duty. Since motive,

state of mind and how much of what Alch did was done

at McCord’s bidding or with his knowledge are critical

factors, summary judgment is inappropriate, so long as

collateral estoppel does not raise an absolute bar, just as

it would be, for instance, in an antitrust or race discrimi-

nation case in which the sequence of events alleged by the

plaintiff could be either innocent behavior or carefully

6 Parklane Hosiery establishes that the applicability of the

doctrine of collateral estoppel rests within the discretion of

the court, taking into account the equitable considerations of

a particular case. A reading of the district court’s opinion

in this case reveals that it believed dismissal to be mandated,

once the prerequisites of collateral estoppel are established.

This difference in approach would not require reversal if

there were no unique equitable considerations involved in

this case, but there are very unusual circumstances involved

here which I believe should be considered before further

judicial exploration of MecCord’s claims is foreclosed.

32a

disguised misconduct. Summary judgment should be used

sparingly when motive and intent play a leading role,

when proof is likely to be largely in the hands of alleged

conspirators, and when a plaintiff is faced with hostile

witnesses. Poller v. Columbia Broadcasting System, Inc.,

368 U.S. 464 (1962). The fact that McCord may have a

difficult time proving his case, however, is not relevant;

it is the litigant’s choice whether pursuit of an issue

difficult to prove and promising only meager relief is

justified.

While I am in total agreement with Judge Tamm’s

able discussion of the underpinnings of a section 1985

action, so that it appears McCord will indeed have his

day in court, I would not read his complaint so stringently

as to eliminate a potential torts claims. Nor do I believe

collateral estoppel is or should be the barrier erected by

the majority. I concur therefore in the remand of this

case for further proceedings, but would not so circum-

scribe the scope of those proceedings as has the majority.

33a

Appendix B

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action

No. 74-1888

James W. McCorp, Jr., Plantiff,

Vu

F. Lee BaAILey,et al., Defendants.

Filed May 19, 1978

OPINION

This is a civil action for damages brought by James Mc-

Cord alleging malpractice against individual lawyers and their

firm during his representation in the January 1973 Watergate

burglary trial in this court. The plantiff, James McCord, was

convicted in that trial. Defendants are Gerald Alch (the at-

torney who represented him in the trial), F. Lee Bailey, with

whom Mr. Alch was associated in the practice of law at the

time, and the firm of Bailey, Alch & Gillis. The matter is

before the Court on Cross-Motions for Summary Judgment.

James McCord was one of five persons arrested by police

on June 17, 1972 while engaged in a burglary of the offices of

the Democratic National Committee in the Watergate complex

in Washington D.C. In his possession and control were

documents unlawfully removed from the files of the

Democratic National Committee, burglary tools, and elec-

tronic wiretapping and eavesdropping devices.

On or about July J, 1972 plaintiff McCord retained Alch

to represent him in the criminal proceedings arising from the

break-in. After a trial in the District Court in January, 1973,

McCord was convicted by a jury on eight felony counts. The

United States Court of Appeals for the District of Columbia,

with McCord represented by other counsel, unanimously af-

firmed the conviction en banc and the Supreme Court denied

certiorari. United States v. McCord, 509 F.2d 334 (D.C.Cir.

1974); 421 U.S. 930 (1975).

34a

In his complaint filed December 27, 1974 plaintiff com-

plains of allegedly negligent and disloyal conduct. He

specifically alleges that 1) defendants negligently and carelessly

represent him, 2) these acts were committed willfully, 3) there

was a conspiracy among defendants and other attorneys, in-

dividual and corporate persons and public officials to commit

the acts complained of, 4) the conspiracy deterred McCord

from testifying in grand jury proceedings, thus obstructing

justice, and 5) defendants caused him to be denied equal pro-

tection of the Constitution and the laws of the United States.

After extensive discovery, the defendants filed motions

for summary judgment on November 28, 1977. The plaintiff

filed a cross-motion for partial summary judgment on

January 6, 1978.

Plaintiff is prevented from raising these contentions by

the doctrine of collateral estoppel. This doctrine precludes a

second or repeated litigation of matters already judicially

determined and has at its essence the requirement that some

question of fact pending in a current dispute has been finally

determined by a court of competent jurisdiction in another

suit. See generally, Blonder-Tongue Laboratories, Inc. vy.

University of Illinois Foundation, 402 U.S. 313 (1971)

Laughlin v. United States, 344 F.2d 187 (D.C. Cir. 1975).

In United States v. McCord, supra, the United States

Court of Appeals for the District of Columbia Circuit found

that Mr. McCord had not been denied effective assistance of

counsel. For purposes of argument and decision the Court ac-

cepted as true all of McCord’s factual allegations concerning

his counsel’s asserted disloyalty. The Court concluded that

‘*fijt is apparent that these allegations taken as true do not

make a case for disloyalty or conflict of interest.’’ Thus, Me-

Cord’s claims were actually litigated; as stated above, the

Court accepted the factual allegations and found them insuffi-

cient to support a claim of ineffective assistance of counsel.

509 F.2d at 352 and n. 65, 66. Those claims arise here in a

similar context. It is well established that the doctrine of col-

\

3Sa

lateral estoppel applies where the prior adjudication was at

the appellate level. Goodrich v. Supreme Court of State of

South Dakota, 511 F.2d 316 (8th Cir. 1975); Thistlethwaite v.

City of New York, 497 F.2d 339 (2d Cir. 1974); Rosenberg v.

Martin. 478 F.2d 520 (2d Cir. 1973); Williams v. United

States, 334 F.Supp. 669 (S.D.N.Y. 1971).

Plaintiff contends that collateral estoppel does not appl)

in this case since privity does not exist between the defendants

here and the government in the previous McCord case. The

privity concept merely requires that the party against whom a

previous judgment is asserted must have been a party to, or In

privity with, a party to that previous judgment. It is no longer

required for purposes of mutuality that the party seeking to

use the prior adjudication must also have been bound by it.

Blonder-Tongue Laboratories, Inc. v. University of Illinois

Foundation, supra; Hawaiian Paradise Park Corporation v.

Becker, 314 F.Supp. 1133 (D.D.C. 1970); Lober v. Moore,

417 F.2d 714 (D.C.Cir. 1969); Anderson, et al. v. Hill, et al.,

Civil No. 629-76 (Sup. Ct. D.C. March 20, 1978).

Prior to the Supreme Court decision in Blonder- Tongue

in 1971. the United States Court of Appeals for the District of

Columbia stated in Loeber:

the rule of mutuality which has frequently appeared

as something of an obstacle elsewhere, is not embedded

in the decisions of this court. On the contrary, without so

much as a hint that mutuality was a problem, we have

sometimes permitted nonparties to judgments to assert

their binding effect against those who were parties to it.

Id. at 717.

It is evident that the defendants properly invoked the

doctrine of collateral estoppel in this case. In view of the

foregoing, it is not necessary to address further issues raised

‘n this motion. However, the Court notes that plainuff has

not suffered any legal injury and therefore has failed to state

a claim upon which relief can be granted. In malpractice, as

in other actions for breach of duty or obligation, a plaintiff

36a

must establish a causal relationship between the alleged wrong

and « legally recognizable injury suffered by him. Becker v.

Colonial Parking, Inc., 409 F.2d 1130 (D.C. Cir. 1969);

Kichard v. Gregory, 281 F.2d 626 (D.C. Cir. 1960). In Niosi

v. Aiello, 69 A.2d 57 (D.C. 1949), the Court of Appeals for

the District of Columbia affirmed the trial court’s directed

verdict for the lawyer-defendant on the ground that regardless

of the merit of the malpractice allegations, the earlier

negligence action was without merit and could not have pro-

auced a recovery for the plaintiff. Jd. at 61-2. The Court used

the following causation test:

. if conduct of an attorney with respect to litigation

results in no damage to his client the attorney is not

liable . . . In a suit against an attorney for negligence, the

plaintiff must prove three things in order to recover: (1)

the attorney’s employment; (2) his neglect of duty; and

(3) that such negligence resulted in and was the proximate

cause Of loss to the client. /d. at 60.

With reference to the requirement that negligence caused loss

to the client, plaintiff offers only the contention that the ‘‘of-

ficial authorization’’ defense would have altered the outcome

of the trial. In support, plaintiff cites United States v. Barker,

546 F.2d 940 (D.C.Cir. 1976). McCord claims that he believ-

ed that the Watergate break-in was officially sanctioned by

the Attorney General, that he relied on such sanction, and

that he so informed Mr. Alch. For purposes of these motions

only, the defendants do not dispute this allegation. In effect,

plaintiff is claiming that he was mistaken in his belief that his

conduct was lawful. Barker, supra, set out a narrow excep-

tion to the general rule that mistake of law is no defense. The

Barker exception is applicable where the defendant relied on a

government official with apparent authority, and such

reliance was objectively reasonable under the circumstances.

Plaintiff cannot meet the requirement of a reasonably objec-

tive belief in this case. The evidence in the McCord case

demonstrated that he was not operating under a reasonable

37a

belief that the break-in was authorized legitimately for na-

tional security purposes. Judge MacKinnon, in affirming

plaintiff's conviction, emphasized that plaintiff well knew

that he was employed by the Committee to Re-Elect the

President and not the government:

the evidence of appellant’s guilty on the offenses he was

tried on was so strong and persuasive that none of his

arguments, or the additional facts he refers to, would

ever cause or justify a different result. Central to this

result is my conclusion from all the evidence in the case

that it is clear that appellant knew he was working for

the Reelection Committee and not for the government.

To my mind all his arguments come to naught when that

fact is realized.

$09 F.2d at 353 (concurring opinion). Since McCord does not

meet the requirements of the Barker exception, it would have

been futile to assert the official authorization defense in plain-

tiff’s criminal trial.

Finally, although as stated earlier, it is unnecessary to ad-

dress any further issues raised in these motions, there is no ge-

nuine dispute of material facts in this case. Examination of

the pleadings, affidavits, depositions and exhibits reveals that

any claims of disputed material facts are unsupported.

Accordingly, the Motions for Summary Judgment filed

by defendants, Alch, Bailey, and Bailey, Alch & Gillis are

granted and plaintiff McCord’s Motion for Partial Summary

Judgment is denied.

United States District Judge

Dated: May 19, 1978

39a

Appendix C

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action

No. 74-1888

James W. McCorp, Jr., Plaintiff,

Lar

F. Lee BarLey,et al., Defendants.

Filed May 19, 1978

ORDER

Upon consideration of the Motions for Summary

Judgment and supporting memoranda filed by defendants

Alch, Bailey, and Bailey, Alch & Gillis, and the Motion for

Partial Summary Judgment and supporting memoranda filed

by plaintiff McCord, and after hearing oral ergument, it is by

the Court this 19th day of May 1978

ORDERED that plaintiff's Motion for Partial Summary

Judgment is denied, and it is further

ORDERED that the Motions for Summary Judgment filed

by defendants are granted and this action hereby is dismissed.

United States District Judge

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4la

Appendix D

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 1979

Civit No. 74-1888

No. 79-1085

JAMES W. McCorp, Jr., Appellant

Vs

F. Lee BAILEY, et al.

Filed September 9, 1980

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF COLUMBIA.

Before: Tamm! and Wald, Circuit Judges, and Philip

Nichols, Jr.,? Judge, United States Court of Claims

JUDGMENT

This cause came on to be heard on the record on appeal

from the United States District Court for the District of Col-

umbia, and was argued by counsel.

Circuit Judge Leventhal, who was a member of this panel when

the case was heard, died before the panel had agreed on a

disposition. Circuit Judge Tamm was drawn by lot to replace Judge

Leventhal in the consideration of this appeal.

Sitting by designation pursuant to 28 U.S.C. §293(a).

PREVIOUS PAGE WAS BLANK

42a

On consideration thereof It is ordered and adjudged by

this Court that the judgment __.. of the District Court

appealed from in this cause is hereby reversed and the case is

remanded for further proceedings, not inconsistent with the

opinion of this Court filed herein this date.

Per Curia

For the Court

S/ GEORGE A. FISHER

George A. Fisher

Clerk

Date: September 9, 1980

Opinion for the Court filed by Circuit Judge Tamm

Opinion filed by Circuit Judge Wald, concurring in part and

dissenting in part.

43a

Appendix E

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 1980

Civic ACTION 74-1888

No. 79-1085

James W. McCorp, Jr., Appellant

Vv.

F. LEE BAILEY, et al.

Filed October 15, 1980

Before: TAMM and WALD, Circuit Judges; Nichols', Judge,

United States Court of Claims

ORDER

Upon consideration of appellant’s petition for rehearing,

it 1s

Ordered by the Court that appellant’s aforesaid petition

for rehearing is denied.

Per Curiam

For the Court:

/s/ GEORGE A. FISHER

George A. Fisher

Clerk

Sitting by designation pursuant to Title 28 U.S. Code Section

293(a).

Appendix F

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUII

September Term, 1980

Civit ACTION 74-1888

No. 79-1085

JAMES W. McCorp, Jr., Appellant

Vv.

F. Lee BAILey, et al.

Filed October 15, 1980

Before: WRIGHT, Chief Judge: MCGOWAN, TAMM, ROBINSON,

MACKINNON, Ross, WILKEY, WALD, MIKVA,

EDWARDS, GINSBURG, Circuit Judges.

ORDER

The suggestion for rehearing en banc filed by appellant

having been transmitted to the full Court and no judge in

regular active service having requested a vote with respect

thereto, it is Ordered, by the Court, em banc that appellant's

aforesaid suggestion for rehearing en banc is denied.

Per Curiam

For the Court:

S/ GEORGE A. FiSHER

George A. Fisher

Clerk

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