Opposition — First National Bank v. Marquette National Bank

No. 80-1391 MAR 18 1981

ALEXAA Jew i. STEVAS,

Clek<

IN THE

Supreme Court of the Anited States

October Term 1980

FIRST NATIONAL BANK OF OMAHA and FIRST

OF OMAHA SERVICE CORPORATION,

Petitioners,

VS.

THE MARQUETTE NATIONAL BANK OF MINNE-

APOLIS,

Respondent.

On the Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

BRIEF FOR RESPONDENT IN OPPOSITION

¥

J. Patrick McDavitt

Counsel of Record

LEVITT, PALMER, BOWEN, ROTMAN

& SHARE

500 Roanoke Building

Minneapolis, Minnesota 55402

Telephone: (612) 339-0661

Attorneys for Respondent

The Marquette National Bank

of Minneapolis

1981—Northwest Brief Printing Co, 316 Chicago Avenue, Minneapolis 55415—338-5078

QUESTIONS PRESENTED FOR REVIEW

I.

Is an anticompetitive intent or purpose, without more,

sufficient to render lobbying and litigation activities ac-

tionable under the “sham exception” to the Noerr-Penn-

ington Doctrine?

II.

Does the civil enforcement of a state statute limiting

the rate of interest which national banks may charge in

connection with bank crcdit card programs constitute the

deprivation of any rights, privileges, or immunities se-

cured by the Constitution or laws of the United States

within the meaning of 42 U.S.C. $1983?

TABLE OF CONTENTS

Pace

Opinions of the Court Below .........cccsccecces ]

Constitutional and Statutory Provisions Involved .... 2

8 ee eee 2

Argument in Opposition to Petition for a Writ of

GRR gee pe ee earn mae CN Re 6

I. The Decisions of the Courts Below Concerning

the Noerr-Pennington Doctrine are Consistent

with the Previous Decisions of This Court and the

Court of Appeals in Other Circuits .......... 6

II. The Circuit Court’s Decision Regarding §1983

is Not in Conflict with Maine v. Thiboutot .... 12

See eer Le ale kare aa alae aera, 14

TABLE OF AUTHORITIES

Cases:

California Motor Transport Co. v. Trucking Unlim-

Me, Sire UI. Pe CEST) 6 bse ec cc kee ces hae

Eastern R. R. Presidents Conf. v. Noerr Motor

PRM, WONG DU Wid, LSE LRWUEED oie Soe wees

Se Aer er ine Ee anne Bag eee ea Boy

Feminist Women’s Health Center v. Mohammad, 586

F. 2d 530 (Sth Cir. 1978), cert. denied, 444 USS.

We a oa a hae eee Rea eee ee 10

First National Bank of Omaha v. The Marquette Na-

tional Bank of Minneapolis, 482 F. Supp. 514 (D.

WEG SPE 5s xd ties see bakes cares eure l

First National Bank of Omaha v. The Marquette Na-

tional Bank of Minneapolis, 636 F. 2d 195 (8th

es Ce ri Men ye ene en eas arcs 1

Franchise Realty v. S. F. Loc. Joint Exec. Bd., 542

F. 2d 1076 (9th Cir. 1976), cert. denied, 430 U.S.

EN iis Pee gd Peat a a ba arape wanes 10

Gorman Towers, Inc. v. Bogoslavsky, 626 F. 2d 607

ee Ih Grins ote a esc boom eo pnts <a 1]

Hahn v. Codding, 615 F. 2d 830 (9th Cir. 1980) .... 10

Maine v. Thiboutot, — U.S. —, 100 S. Ct. 2502

CR Sb 6 e iG ees a kee eee all yas ye

The Marquette National Bank of Minneapolis v. First

of Omaha Service Corporation, 262 N.W. 2d 358

(Minn. 1977), cert. granted, 436 U.S. 916 (1978) .. 2-3

The Marquette National Bank of Minneapolis v. First

of Omaha Service Corporation, 439 U.S. 299

I as iGo aa, oe ee eee oe 2, 12

Metro Cable Co. v. CATV of Rockford, Inc., 516

gp ie Se. 1 e MD | so ) Bip ercaneetet seats Cerne 10

Otter Tail v. United States, 410 U.S. 366 (1973) .... 10

Pennwalt Corp. v. Zenith Laboratories, Inc., 472 F.

Supp. 413 (E.D. Mich. 1979), appeal dismissed,

Sao S. cee Re Ce GO. SO ok ok ee eee eds 12

Semke v. Enid Automobile Dealers Assoc., 456 F. 2d

SEG Te Ay ¢ 5 ee area a ara aac ears 10

Sierra Club v. Butz, 349 F. Supp. 934 (N.D. Calif.

Hin RAD eGR Cos MA rece ree eee eee 11

State of Missouri v. National Organization for Wom-

en, Inc., 620 F. 2d 1301 (8th Cir. 1980), cert.

denied, — U.S. —, 101 S. Ct. 122 (1980) ........ 11

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

(7th Cir. 1977), cert. denied, 434 U.S. 975 (1977) 11

Subscription T.V. v. Southern California Theater

Owners, 576 F. 2d 230 (9th Cir. 1978) ......... 9

United Mine Workers of America v. Pennington, 381

8 & 2 gi: S eee a a By: on, 3a, - 13; 54

Vendo Co. v. Lektro Vend, 433 U.S. 623 (1977) ... 10

Weiss v. Willow Tree Civic Ass’n, 467 F. Supp. 803

EBL. fs: Ge en ee eee ee ee 12

Wilmonite, Inc. v. Eagan Real Estate, Inc., 454 F.

Supp. 1124 (N.D. N.Y. 1977), aff'd, 578 F. 2d

1372 (2d Cir. 1978), cert. denied, 439 U.S. 983

SRE aaa Stace ott ae EA 6S 11

Constitutional Provisions:

I IM Go a dk ang wb ke we ee 2

Fourteenth Amendment ............ccccevevccce 2

Statutes:

a hh. Ee ee ee eee 4, 9, 13, 14

sf od | hh a renee sera a ee ee ere a 5

oo rs teak ks aod eee se OS 5

ee ions KAAS einen 2S, & 3. te, 33

Re Be Sioa re ce arate’ 3

IN THE

Supreme Court of the Anited States

October Term 1980

No. 80-1391

FIRST NATIONAL BANK OF OMAHA and FIRST

OF OMAHA SERVICE CORPORATION,

Petitioners,

VS.

THE MARQUETTE NATIONAL BANK OF MINNE-

_APOLIS,

Respondent.

On the Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

BRIEF FOR RESPONDENT IN OPPOSITION

OPINIONS OF THE COURT BELOW

The opinion rendered in this matter by the United

States Court of Appeals for the Eighth Circuit is reported

as First National Bank of Omaha v. The Marquette Na-

tional Bank of Minneapolis, 636 F.2d 195 (8th Cir.

1980). The opinion rendered in this matter by the United

States District Court for the District of Minnesota is re-

ported as First National Bank of Omaha v. The Marquette

National Bank of Minneapolis, 482 F. Supp. 514 (D.

Minn. 1979).

2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

In addition to the statutory provisions set forth by Pe-

titioners, Respondent relies upon certain provisions of the

First and Fourteenth Amendments to the Constitution of

the United States:

First Amendment

Congress shall make no law respecting an estab-

lishment of religion, or prohibiting the free exercise

thereof; or abridging the freedom of speech, or of the

press; or the right of the people peaceably to assem-

ble, and to petition the Government for a redress of

grievances.

Fourteenth Amendment

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or immu-

nities of citizens of the United States; or shall any

State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person

within its jurisdiction the equal protection of the

laws.

* K bd

STATEMENT OF THE CASE

This lawsuit arises out of prior litigation involving the

same parties, which prior litigation resulted in a decision

by this Court. See, The Marquette National Bank of Min-

neapolis v. First of Omaha Service Corporation, 439 U.S.

299 (1978). See also same case, The Marquette National

3

Bank of Minneapolis v. First of Omaha Service Corpora-

tion, 262 N.W. 2d 358 (Minn. 1977), cert. granted, 436

U.S. 916 (1978). The factual and procedural history of

the earlier litigation (hereinafter referred to as “the In-

junction Suit”) is discussed in the prior Oninion of this

Court and will only be summarized below. See, 439 US.

at 301-307.’

The Injunction Suit was commenced in May, 1976 by

The Marquette National Bank of Minneapolis (‘“Mar-

quette’”) in Hennepin County District Court, State of Min-

nesota. Ma: uette alleged that the First National Bank of

Omaha (“First National”), by and through its wholly

owned subsidiary, First of Omaha Service Corporation

(“the Service Corporation”), was conducting a bank cred-

it card program in the State of Minnesota in violation of

the interest rate limitations of Minnesota’s Bank Credit

Card Act (M.S.A. §48.185). The Minnesota Attorney

General intervened as a party plaintiff in the suit and

joined Marquette in a motion for an injunction to prohibit

the Service Corporation from engaging in any solicitation

or other activity in connection with said credit card pro-

gram so long as the program continued to be in vioiation of

Minnesota’s Credit Card Act. In February, 1977, the

aforesaid motion of Marquette and the State of Minneso-

ta was granted by the Hennepin County District Court

and a permanent injunction was entered against the Ser-

vice Corporation.

1A copy of the appendix filed with this Court in the Injunction Suit,

containing a true and correct printing of relevant documents from

the lower court record in that suit, was submitted in support of the

motion for partial summary judgment to the District Court in the

present action as Exhibit 1 to the Affidavit of J. Patrick McDavitt,

and was included in the record to the Eighth Circut Court of Appeals

in the present case (App. p. 31).

4

The Service Corporation appealed the permanent in-

junction to the Minnesota Supreme Court and, in No-

vember, 1977, after nearly eight months of deliberation,

the Minnesota Supreme Court reversed the permanent in-

junction, in a decision which produced three dissents.

262 N.W. 2d 358. The majority opinion based the re-

versal on the view that under Section 85 of the National

Bank Act (12 U.S.C. $85), and the judicially applied

“most favored lender” rule, First National was authorized

to operate its bank credit card program in Minnesota at

the higher interest rate percentages permitted by the laws

of the State of Nebraska. 262 N.W. 2d at 362-366. On

Marquette’s posting of a $10,000 bond (App. pp. 31-32),

the Minnesota Supreme Court stayed the effectiveness of

its decision until such time as review could be obtained

in the United States Supreme Court (App. p. 65).

This Court granted review in the Injunction Suit upon

separate petitions for writs of certiorari filed by Mar-

quette and by the State of Minnesota. 436 U.S. 916. On

December 18, 1978, this Court affirmed the decision of

the Minnesota Supreme Court. 439 U.S. 299. This Court

held that when First National enrolled Minnesota resi-

dents. merchants and banks in its bank credit card pro-

gram, it continued to be “located” in the State of Nebraska

for purposes of 12 U.S.C. §85 (439 U.S. at 309-313); and

that, in connection with the operation of said program

in the State of Minnesota, First National was authorized by

$85 to charge the interest rate allowed under Nebraska

law and was not limited to the interest rate established by

Minnesota’s Bank Credit Card Act (439 U.S. at 313-19).

Having ultimately succeeded before this Court in the

Injunction Suit, the Service Corporation and its parent

5

corporation, First National, commenced the present action

against Marquette alleging that, together with its lobby-

ing for passage of Minnesota’s Bank Credit Card Act,

Marguette’s pursuit of the Injunction Suit was a violation

of the federal antitrust laws (15 U.S.C. §§1 and 2) and

the Civil Rights Act of 1871 (42 U.S.C. $1983) and, is

actionable under common law theories of malicious

prosecution, abuse of process, and tortious interference

with business (App. p. 55, et seq.).” More specifically, it

is alleged that Marquette lobbied for passage of the Min-

nesota Bank Credit Card Act and pursued the Injunc-

tion Suit for the purpose and intent of “prevent[ing] the

First National’s credit card program from being intro-

duced in Minnesota and thereby to prevent effective price

competition with the Marquette’s credit card program”

(App. p. 62).

Marquette answered the Complaint in the present ac-

tion by denying any improper motive or purpose in the

pursuit of its aforesaid lobbying and litigation activities

(App p. 38-40) and by asserting the affirmative defense

that, even if such activities were motivated solely out of

anticompetitive purposes, they are protected under the

right of petition embodied in the First Amendment to the

United States Constitution (App. p. 40-41). Shortly after

filing its Answer. Marquette moved for an order dismiss-

ing the Complaint, or, in the alternative, for partial sum-

mary judgment on the grounds that, even assuming all

the allegations in the Complaint to be true, neither First

“By electing not to seck review of the Court of Appeals’ affirmance of

summary judgment dismissing the causes of action for malicious

prosecution and abuse of process (Petition at p. 4), First National

and the Service Corporation have apparently decided to abandon

those claims.

6

National nor the Service Corporation has a cause of ac-

tion arising out of Marquette’s lobbying for passage of

the Minnesota Bank Credit Card Act, or upon Mar-

quette’s conduct of the Injunction Suit. On December 11,

1979, the District Court granted Marquette’s motion for

partial summ’ y judgment (App. p. 10, et seq.). The

Eighth Circuit Court of Appeals affirmed said partial

summary judgment on November 25, 1980 (App. p. 1,

et seq.).

ARGUMENT IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

The Decisions cf the Courts Below Concerning the

Noerr-Pennington Doctrine are Consistent with

the Previous Decisions of This Court and the Court

of Appeals in Other Circuits

The District Court relied on Noerr-Pennington consid-

erations in holding that, to the extent Petitioners’ claims

are based upon Marquette’s lobbying for passage of Min-

nesota’s Bank Credit Card Act and its conduct of the

Injunction Suit, Petitioners have no claim against Mar-

quette either under the antitrust laws, the civil rights

laws,’ or the state common law theory of tortious inter-

ference with business (App. pp. 14-26, and p. 28). 482

F. Supp. at 517-22 and at 524-25. In its opinion affirm-

ing the District Court, the Court of Appeals adopted in

toto the District Court’s analysis of the Noerr-Pennington

issues (App p. 3). 636 F. 2d at 197.

3In addressing Petitioners’ Civil Rights Act claim, the District Court

also cited the inapplicability of 42 U.S.C. §1983 to the factual setting

pleacicd in the Complaint (App. pp. 26-27). 482 F. Supp. at 522.

7

Petitioners assert that the courts below misinterpreted

the decisions of this Court concerning the Noerr-Penning-

ton Doctrine

“by interpreting them as holding that improper in-

tent or purpose in conducting lobbying or litigation

is not a sufficient basis upon which to rest civil li-

ability, but that in addition there must be a show-

ing of repetitive, baseless litigation, unethical or

abusive conduct, such as perjury, fraud or bribery,

or conduct which bars meaningful access to adjudi-

catory tribunals.” Petition, p. 11.

Under Petitioners’ view, the presence of an anticompeti-

tive purpose, without more, renders lobbying and litiga-

tion activities unlawful and outside the protection of the

First Amendment right of petition. /d.

The most succinct response to First National’s argu-

ment is found in the direct statements of the Noerr-Penn-

ington Doctrine given in the namesake decisions ren-

dered by this Court:

Eastern R. R. Presidents Conf. v. Noerr Motor

Freight, Inc., 365 U.S. 127 (1961)

“The fact . . . that the railroad’s sole purpose in seek-

ing to influence the passage and influence of laws

was to destroy the truckers as competitors * * *

even if adequately supported in the record, could not

transform conduct otherwise lawful into a violation

of the Sherman Act.” 365 U.S. at 138-139.

* * *

“The right of the people to inform their representa-

tives in government of their desires with respect to

the passage or enforcement of laws cannot be made

to depend upon their intent in doing so.” Jd. at 139.

United Mine Workers of America v. Pennington,

381 U.S. 657 (1965)

“Nothing could be clearer from the Court’s opinion

[in Noerr] than that anticompetitive purpose did

not illegalize the conduct there involved.” 381 U.S.

at 669.

* * *

“Noerr shields from the Sherman Act a concerted ef-

fort to influence public officials regardless of intent

or purpose.” Jd. at 670.

The basic precept of Noerr-Pennington has been, and

remains, as stated above. The lawful exercise of the right

of petition is not rendered illegal merely because the mo-

tive or purpose of such activity is to attain some anti-

competitive advantage. This Court reconfirmed this pre-

cept in California Motor Transport Co. v. Trucking Un-

limited, 404 U.S. 508 (1972), wherein the constitutional

protection afforded lobbying activities was also recog-

nized as being equally applicable to the litigation activi-

ties:

“We conclude that it would be destructive of rights

of association and of petition to hold that groups

with common interests may not, without violating

the anti-trust laws, use the channels and procedures

of state and federal agencies and courts to advocate

their causes and points of view respecting resolution

of their business and economic interests vis-a-vis

their competitors.” 404 U.S. at 510-11.

The act of petitioning government cannot, therefore, sub-

ject one to civil liability “even though intended to elimi-

nate competition.” Pennington, supra, 381 U.S. at 670.

It is, of course, an entirely different matter when one

9

not only pursues lobbying and litigation activities out of

an anticompetitive motive but also engages in some abuse

of the legislative or judicial process through one or more

“forms of illegal and reprehensible practice which may

corrupt [such] processes.” California Motor Transport,

supra, 404 U.S. at 513. This is the so-called “sham ex-

ception” to the Noerr-Pennington Doctrine. The specific

“forms of illegal and reprehensible practice” referred to

in California Motor Transport were the denial of “free and

unlimited access” to governmental tribunals (Jd. at 511);

the existence of perjury, fraud or bribery (/d. at 512-13);

or “a pattern of baseless, repetitive claims” (Jd. at 513).

Since the Complaint attributes none of these practices to

Marquette, the District Court held that there was no ba-

sis to bring Marquette’s lobbying and litigation activities

within the “sham exception” to Noerr-Pennington (App.

p. 24). 482 F. Supp. at 521.*

Petitioners’ view, that the presence of an anticompeti-

tive intent and purpose is, by itself, sufficient to invoke

the “sham exception” to Noerr-Pennington, is not sup-

ported by California Motor Transport. Nor is Petitioners’

view supported by any of the other decisions of this Court.

‘The District Court also correctly rejected any suggestion that Marquette

did not have. the constitutional right to pursue the Injunction Suit if,

as alleged by Petitioners. it “knew” or should have known, in ad-

vance, that this Court would ultimately find Minnesota’s Bank Credit

Act to be preempted by §85 of the National Bank Act. Citing the

Ninth Circuit’s decision in Subscription T.V. v. Southern California

Theater Owners, 576 F. 2d 230 (9th Cir. 1978), the District Court

held that

“Marquette was entitled to petition its state legislature for passage

of an act (even if the act was considered unconstitutional by Mar-

quette), and is not subject to the ‘sham exception’ absent some alle-

gation of illegality in the legislative process or unethical abuse of

the lobbying process.” (App. p. 20). 482 F. Supp. at 519.

It is, of course, absurd to suggest that a suit which results in divided

opinions among members of the Minnesota Supreme Court and is

granted certiorari by this Court should be considered to be without

any merit ab initio. 482 F. Supp. at 522-24.

10

Nor is there support for such a view in any of the nu-

merous Court of Appeals’ decisions which have faced the

issue subsequent to California Motor Transport. This

Court and the Court of Appeals have consistently held

that, in order for lobbying and litigation activities to be

actionable, something more than an anticompetitive in-

tent must be present. See, Otter Tail v. United States, 410

U.S. 366, 380 (1973) (“repetitive lawsuits carrying the

hallmark of unsubstantial claims”); Vendo Co. v. Lektro

Vend, 433 U.S. 623, 635, fn. 6 (1977) (“repetitive, sham

litigation’”);> Semke v. Enid Automobile Dealers Assoc..,

456 F. 2d 1361, 1366-67 (10th Cir. 1972) (“fraud, cor-

ruption or misuse of the state processes”); Metro Cable

Co. v. CATV of Rockford, Inc., 516 F. 2d 220, 232

(7th Cir. 1975) (“conduct that was not genuinely aimed

at securing favorable governmental action but at dis-

couraging competitors from seeking governmental ac-

tion”); Franchise Realty v. S.F. Loc. Joint Exec. Bd.,

542 F. 2d 1076, 1084 (9th Cir. 1976), cert. denied, 430

U.S. 940 (1977) (“used the threat of litigation as a blud-

geon in its attempts to retain its monopoly”); Feminist

Women’s Health Center v. Mohammad, 586 F. 2d 530,

543, fn. 6 (Sth Cir. 1978), cert. denied, 444 U.S. 924

(1978) (“the petitioning was not a genuine effort to in-

fluence public officials to take governmental action”);

Hahn v. Codding, 615 F. 2d 830, 840 (9th Cir. 1980)

‘The issue of whether a single, abusive lawsuit, as opposed to a “pat-

tern of baseless, repetitive claims.” is sufficient to come within the

“sham exception’’ was addressed but left undecided in Vendo. This,

however, does not provide a basis for review in the present case since

the District Court held that, even assuming the pursuit of a single,

abusive lawsuit could subject ore to civil liability. there was no abuse

of process in Marquette’s pursuit of the Injunction Suit (App. pp. 21-

24). 482 F. Supp. at 520-21.

11

(“overlapping, repetitive, and baseless lawsuits”). See al-

so, Wilmonite, Inc. v. Eagan Real Estate, Inc., 454 F.

Supp. 1124, 1131 (N.D. N.Y. 1977), aff'd, 578 F.2d

1372 (2d Cir. 1978), cert. denied, 439 U.S. 983 (1978)

(“the corruption of the administrative or judicial proc-

ess”).

In applying WNoerr-Pennington principles to Peti-

tioners’ alleged claims for violation of the Civil Rights

Act and for tortious interference with business, the Dis-

trict Court did so on the basis that the First Amendment

right of petition affords protection against such claims

(when they are based upon lobbying and litigation activi-

ties) in the same manner as protection is afforded against

antitrust claims (App. pp. 25-26 and p. 28). 482 F.

Supp. at 521-22 and 524-25. The Court of Appeals af-

firmed (App. p. 3 and pp. 7-8, fn. 4). 636 F. 2d at 197

and 199, fn. 4.

While it is true that this Court has not rendered an opin-

ion regarding the application of Noerr-Pennington prin-

ciples to claims for violation of the Civil Rights Act or

for tortious interference with business, the District Court’s

decision in this regard is supported by all of the lower

courts which have faced the issue, including two cases in

which this Court has denied review. See, Stern v. United

States Gypsum, Inc., 547 F. 2d 1329, 1344 (7th Cir.

1977), cert. denied, 434 U.S. 975 (1977) (civil rights claim

brought under 42 U.S.C §1985); State of Missouri v.

National Organization for Women, Inc., 620 F. 2d 1301,

1316-19 (8th Cir. 1980), cert. denied, — U.S. —, 101

S. Ct. 122 (1980) (tortious interference with business

claim); Gorman Towers, Inc. v. Bogoslavsky, 626 F.2d

607, 614-15 (8th Cir. 1980) (civil rights claim brought

under 42 U.S.C. §1983); Sierra Club v. Butz, 349 F. Supp.

12

934, 938 (N.D. Calif. 1972) (tortious interference with

business claim); Weiss v. Willow Tree Civic Ass’n, 467

F. Supp. 803, 816-818 (S.D. N.Y. 1979) (civil rights

claim brought under 42 U.S.C. $1983); Pennwalt Corp.

v. Zenith Laboratories, Inc., 472 F. Supp. 413, 424 (E.D.

Mich. 1979), appeal dismissed, 615 F. 2d 1362 (6th

Cir. 1980) (tortious interference with business claim).

The Circuit Court’s Decision Regarding §1983 is Not

in Conflict with Maine v. Thiboutot

The District Court’s summary judgment and dismissal

of Petitioners’ Civil Rights Act claim was based on three

alternative grounds: (1) “that the Noerr-Pennington im-

munity . . . should also be applied to a claim based upon

$1983” (App. p. 25); (2) “that $85 of the National

Bank Act [does not] secure ‘a right, privilege and im-

munity’ within the meaning of the Civil Rights Act” (App.

p. 27); and (3) “that $1983 privides a cause of action

only for deprivations of federal statutory rights which

provide for ‘equal rights’ or ‘the protection of civil rights’ ”

(App. p. 27). 482 F. Su pp. at 521-22.

In connection with the last of the above alternative

grounds, the District Court did not have the benefit of

this Court’s decision in Maine v. Thiboutot, — U.S. —.

100 S. Ct. 2502 (1980), wherein it was held that the

reach of §1983 is not limited to the deprivation of civil

rights or equal protection laws. 100 S. Ct. at 2504-06.

Cognizant of this clarification of the scope of $1983, the

Court of Appeals cited the other two alternative grounds

relied upon by the District Court in granting summary

13

judgment on the Civil Rights Act claim (App. pp. 5-7).

636 F. 2d at 198-99.

In their Petition for Certiorari herein, Petitioners con-

tend that the Court of Appeals’ decision is in conflict with

Maine v. Thiboutot. Certainly this would be true if the

Court of Appeals had affirmed the dismissal of the Civil

Rights Act claim on the ground that causes of action

under $1983 are limited to deprivation of civil rights or

equal protection laws. However, as noted above, this

ground was not the basis for the Court of Appeals’ de-

cision. The Court of Appeals recognized that federal laws

which grant “rights, privileges or immunities” to the citi-

zenry are within the scope of $1983; however, it also held

that the authority given national banks to charge a cer-

tain rate of interest under 12 U.S.C. §85°, is not “a right,

privilege or immunity secured by federal law within the

meaning of 42 U.S.C. §1983” (App. p. 5). 636 F. 2d at

198. This ruling is not in conflict with Thiboutot.

The Court of Appeals also noted that Petitioners’ Civil

Rights Act claim could also be denied on Noerr-Penning-

ton principles:

“The interests in protecting citizens’ right of peti-

tion and free speech that were found to outweigh

the statutory restrictions in [antitrust] cases seem

equally as strong here and could provide an alterna-

tive ground for immunizing Marquette from penalty

under Section 1983.” (App. p. 8, fn. 4). 636 F. 2d

at 199, fn. 4.

As discussed earlier herein, other lower courts have sim-

ilarly applied Noerr-Pennington to §1983 claims. By ap-

®See, The Marquette National Bank of Minneapolis v. First of Omaha

Service Corporation, 439 U.S. 299, 301 (1978).

14

plying Noerr-Pennington to the Civil Rights Act claim,

any issue as to whether §85 of the National Bank Act

confers a statutory “right, privilege or immunity” within

the meaning of $1983 is rendered moot.

CONCLUSION

Based on the foregoing, it is respectfully submitted that

the petition for a writ of certiorari be. in all things, denied.

Respectfully submitted.

J. Patrick McDavitt

LEVITT, PALMER, BOWEN, ROTMAN &

SHARE

500 Roanoke Building

Minneapolis, Minnesota 55402

Telephone: (612) 339-0661

Attorneys for Respondent The

Marquette National Bank of Minneapolis