Petition — Silkwood ex rel. Silkwood v. Kerr-McGee Corp.

Supreme Court brief1981

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IN THE ps

Supreme Court of the United St States

OCTOBER TERM 1980

KAREN G. SILKWOOD, by the Administrator

of her Estate, Bill M. Silkwood, et al.,

Petitioners,

THE KERR-McGEE CORPORATION,

DEAN A. McGEE, JAMES READING, et al.,

Respondents.

PETITION FOR THE ISSUANCE OF A WRIT OF

CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

DANIEL P. SHEEHAN

Attorney of Record

JOHN CLEWETT

ROBERT HAGER

The Christic Institute

1324 N. Capitol St.

Washington, D.C. 20002

(202) 797-8106

Counsel for Petitioners

NS ARE ST EE ES ATES SEE LY TRS | TE,

THE CASILLAS PRESS, INC.~1717 K Street. N W.—Weshington, 0. C.-223-1220

QUESTIONS PRESENTED

Whether the Tenth Circuit Court of Appeals acted con-

trary to the Supreme Court’s ruling in Griffin v.

Breckenridge, 403 U.S. 88 (1971), by holding that members

of a class of citizens protected under 42 U.S.C. § 1985(3)

who are deprived of their federally-guaranteed constitu-

tional rights to Freedom of Association and Freedom to

Travel on the Interstate Highways by an invidiously

discriminatory anti-civil-rights conspiracy because of their

activities undertaken as members of this protected class in

furtherance of the interests of this protected class — rather

than because of their mere passive membership in this

class — are entitled to no relief under § 1985(3).

II.

Whether there exists a direct conflict, which must be

resolved by the Supreme Court, between the holding of the

Tenth Circuit Court of Appeals in this case and the March

26, 1981 holding of the Fifth Circuit Court of Appeals in

the case of Scott v. Moore, 640 F.2d 708, in which the

Fifth Circuit declared non-union employees opposing

unionization of workers to be a class of citizens protected

under § 1985(3) and held that members of this class who

were discriminatorily deprived of their federally-

guaranteed constitutional rights by an_ invidiously

discriminatory anti-civil-rights conspiracy because of their

activities undertaken as members of this class to dissuade

workers from joining a lawful labor union are entitled to

relief under § 1985(3)

III.

Whether, in upholding the District Court’s dismissal of

the Petitioners’ Complaint for failure to state a cause of ac-

tion cognizable under § 1985(3), the Tenth Circuit Court

of Appeals exceeded its authority, invaded the province of

the jury, and denied the Petitioners their right to a trial by

jury by summarily resolving against the Petitioners the

pivotal material fact question as to the identity of the par-

ticular class or classes of citizens which were, in fact,

“targeted” by the defendants’ conspiracy, based on the

Circuit Court’s independent review of the Petitioners’

“complaint as a whole,” when the Circuit Court’s factual

conclusion was directly contrary to explicit allegations in

the complaint and substantial evidence presented during

discovery.

TABLE OF CONTENTS

Questions Presented ...........cccccccccccccccsscceccesecees i

TOOT AID ok. on a bbc cdeveb vccscnseckesecsedencecens iv

CS I on cave eck ctranes needs ccdesvepsvccechveneeceas 2

POR oon bcc cte veces cetivcrdanvovcseseeeseguessaecds 2

ENO Bea io iodo cr iicnsé Kees Nar ivccesubseetoncese 3

ROME OE TRO GIND eve scccacccesnvscedecenssdesSutcctecs 4

Reasons For Granting the Petition ..............cccecseeeeees 10

CII so. 0 Fed c4SiNee cde hsccsarasenecusdecssivessese 21

Appendix A — The Circuit Court’s Opinion Below........... al

Appendix B — The Circuit Court’s Order Refusing Rehearing . bl

Appendix C — The Circuit Court’s Order Recalling Its

Mandate and Refusing Rehearing....... .. cl

Appendix D — The District Court’s Opinion Below......... .. dl

Appendix E — The Petitioners’ Complaint Below............ el

Appendix F — The Petitioners’ 1978 Response to the Defen-

dants’ Motion for Summary Judgment,

and examples of Exhibits.............. me

Appendix G — The Fifth Circuit Court of Appeals Opinion in

Scott v. Moore, 640 F.2d 708 (March 26,

SUED octane terns aber eden uadiass es . gl

TABLE OF AUTHORITIES

Cases:

Action v. Gannon,

REP LANES DOPED: o.cckceadsrcescenscscepecetvess 7

Adickes v. Kress,

i EE As Sec shstvesnecvddeeevestsuansuesese ee 20

Arnold v. Tiffany,

359 F. Supp. 1034 (C.D. Cal. 1973),

aff'd on other grounds, 487 F.2d 216 (9th Cir. 1973),

COE GR; SES UIE, FOCCIS MD: ec ccvccvesccccvecdecsteesocs 6,7

Bellamy v. Mason’s Stores, Inc.,

Pe GEE: CUE. bab ts cok babecoveccasinserdsenes 7

Bradley v. Clegg,

re es EEG WU EPPO: ccc tVesivccerevecverceess 8

Cameron v. Brock,

SA ee Gs FETE: on Kcr oereserwawddsovcoevecses 7

Farmer v. United Brotherhood of Carpenters,

TEE ca sch bh o¥oe Keo ewed bateaaeinbsedoassecees 8

Franceschina v. Morgan,

DOO Bae, SID GD. BNE, TSIEN ic kciicicccecccccsvectccese 8

Griffin v. Breckenridge,

EE Ce sd ckiontsntsiceasieuawd doesbeteres passim

Hague v. C.1.0O.,

Ls scab diel bade devas Ca mettinese de bce’ 13

Hardyman v. Collins,

SL OR, BODEN bckecuavecn ctchbehbnec sence te 7,14

In re Quarles, .

I Sota k ds wannnpndeeed deh ee eee ee 000 ease 14

Johnson v. Railway Express Agency, Inc.,

ae RENEE 4705s fda tri cdmtbus tele chidcbaveb Kiesee 4

Katzenbach v. Morgan,

PR PEED. Kckod cccctccdconcdkebcsasvebovtnancenee 8

Lessman v. McCormick,

FE EEGs BDFD occ ccccscyesoctdcscevetdbiveses 18

Local #1 v. Teamsters, a

PBR. BES GPO: ASTD ois cccevecvccvccesccseccesecee 8

Lowenstein v. Rooney,

GOLF. Bape. SSSCELDLNGY . IGT) ove dcccccasevccccccscense 7

Mitchell v. Archibald & Kendall, Inc.,

Fe TUTE v-cfescccdbucsecadeunecavopeeyeues 17

Murphy v. Mount Carmel High School,

SE PAC Gs BRPEN ob os Sencccvreccerweresecsces 7,16

Oregon v. Mitchell,

EEE sc tisna cba danse eudusdgousnceticawises’ 8

Poller v. Columbia Broadcasting System, Inc.,

PRETEND Si s'ct decd cc esrekesdiperevs necsiencene 18

Riechart v. Payne,

es SG Pe eons CO: BDTSD kn cc ccdcccccccbsseceusess 8

Richardson v. Miller,

re ET IC UTED oe cx didccbesd oeedavedsaessivivcs 7

Sartor v. Arkansas Natural Gas Corp.,

En iV cate bods cokes ebennSavenaanwoneees 18

Scheuer v. Rhodes,

i EE se ie eG ade adevenasemkataanan bre Caka 17

Scott v. Moore,

640 F.2d 708 (Sth Cir. 1981) ........ cece cece eens i, 2, 7, 15, 36

U.S. v. Cruikshank,

St EERONTSE ven cdvedddrscensrdeecesvebabesse aveess-e 14

U.S. v. Guest,

SES UB. FAS IGG vc ccccccccccvdcccncvcccvsisivvncccccve 8

Ward v. St. Anthony Hospital,

476 F.2d 671 (10th Cir. 1973) ....cccccccccccccccccccccccces 18

Westberry v. Gilman Paper Co.,

507 F.2d 206 (Sth Cir. 1975),

vacated as moot, 507 F.2d 215 (1975) (en banc) .........5.0006. 7

Statute:

Title 42 U.S.C. § 19BS(3) 0... cccccccccvccccscvcvcccceees passim

IN THE

Supreme Court of the United States

OCTOBER TERM 1980

No.

KAREN G. SILKWOOD, by the Administrator

of her Estate, Bill M. Silkwood, et al.,

Petitioners,

THE KERR-McGEE CORPORATION,

DEAN A. McGEE, JAMES READING, et al.,

Respondents.

PETITION FOR THE ISSUANCE OF A WRIT OF

CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

Karen G. Silkwood, represented in this action by the

Administrator of her Estate, Bill M. Silkwood, and the

three infant heirs of Karen Silkwood petition this Court to

issue a Writ of Certiorari to review a ruling of the United

States Court of Appeals for the Tenth Circuit entered in

the above-entitled cause of action. !

'Petitioners in the Court of Appeals and Petitioners before this

Court are Karen G. Silkwood, by the Administrator of her Estate Bill

M. Silkwood, and the three infant heirs of Karen G. Silkwood who are

Beverly K. Meadows, Michael E. Meadows and Dawn E. Meadows.

Respondents in the Court of Appeals and Respondents before this

Court are the non-corporate, individual defendants named in the

above-entitled cause of action. These individuals are Dean A. McGee,

James Reading, Fred Welch, W.C. Gentry, Lawrence Olson,

Theodore Rosack, Jacque Srouji, One Unknown Named Agent of the

OPINIONS BELOW

The opinion of the Court of Appeals dismissing the

Petitioners’ Complaint for failure to state a cause of action

under § 1985(3) of Title 42 is published at 637 F.2d 743

(10th Cir. 1980), and is attached hereto as Appendix A at

pp. la-12a. The Circuit Court’s Order refusing the Peti-

tioners’ Motion for a Rehearing is attached hereto as Ap-

pendix B, at pp. 1b-2b. The Circuit Court’s Order Recall-

ing its Mandate and Refusing a Rehearing is attached

hereto as Appendix C, at pp. Ic-2c. The opinion of the

United States District Court for the Western District of

Oklahoma is published at 460 F. Supp. 399 (W.D. Okla.

1978) and is attached hereto as Appendix D, at pp. Id to

29d.

Other appendices also attached include the Petitioners’

Complaint which is attached hereto as Appendix E, at pp.

le to 32e. The Petitioners’ 1978 Response to the Defen-

dants’ Motion for Summary Judgment and some exhibits

submitted therewith to the District Court below is attached

hereto as Appendix F, at pp. If to 134f. The opinion of the

United States Circuit Court of Appeals for the Fifth Cir-

cuit entered in Scott v. Moore, 640 F.2d 708 (1981) is at-

tached hereto as Appendix G, at pp. 1g to 50g.

JURISDICTION

The opinion of the Circuit Court of Appeals was

entered on December 3, 1980. Timely application for a -

Federal Bureau of Investigation, James J. Kelly, Peter Colefax, Earl

M. Jorgensen, Edwin L. Kennedy, Breene M. Kerr, Robert S. Kerr,

Jr., F.C. Love, George B. Parks, J.B. Saunders, A.P.F. Seale, James

E. Webb, R.T. Zitting, Parker S. Dunn, Wayne Norwood, Ronald

Adkisson, Roy E. King, G.T. Sinke, J. Marler and G. France.

rehearing was originaliy denied by the Circuit Court on

January 16, 1981 without notice to the Petitioners. Upon

notification of this failure of notice, the Circuit Court

withdrew its Order of January 16, 1981 and re-entered its

Order declining a rehearing on April 6, 1981. Upon timely

motion made to the Supreme Court, JUSTICE WHITE

granted the Petitioners until June 15, 1981 to file with this

Court their Petition for the Issuance of a Writ of Cer-

tiorari to review the Circuit Court’s December 3, 1980 o-

pinion.

The jurisdiction of the Supreme Court is invoked under

Title 28 U.S.C. § 1254(1).

STATUTE INVOLVED

Section 1985(3) of Title 42 of the United States Code

provides, in pertinent part, as follows:

If two or more persons in any State or Territory

conspire or go in disguise on the highway or on

the premises of another, for the purpose of

depriving, either directly or indirectly, any per-

son or class of persons of the equal protection of

the laws, or of equal privileges and immunities °

under the laws; . . .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 conspiracy,

whereby another is injured in his person or pro-

perty, 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 ac-

tion for the recovery of damages, occasioned by

such injury or deprivation, against any one or

more of the conspirators.

STATEMENT OF THE CASE

This petition constitutes the final demand by the heirs of

the Estate of Karen G. Silkwood for a trial on the merits

of the complaint they filed in November 1976, under Title

42 U.S.C. § 1985(3), charging 27 individuals with par-

ticipation in a class-based, invidiously discriminatory,

anti-civil-rights conspiracy which discriminatorily depriv-

ed (a) Karen Silkwood and the other persons employed at

the Kerr-McGee Nuclear Facility in Oklahoma who were

endeavoring to organize a lawful labor union,? and (b)

2Administrative relief which was potentially available to Karen

Silkwood and her fellow union organizers pursuant to the National

Labor Relations Act was exhausted when two separate field in-

vestigators of the National Labor Relations Board dispatched from

the Region III Field Office to investigate charges of an anti-union con-

spiracy underway at the Kerr-McGee Nuclear Facility each in-

dependently concluded that such an anti-union conspiracy was under-

way against union members at that facility, but that this conspiracy

was of such a serious nature that it was criminal. This conclusion re-

quired the transfer of this case from the NLRB to the FBI. This

transfer brought the NLRB action in this case to a conclusion, with no

relief afforded. See Petitioners’ Deposition of Edwin Youngblood,

Director of the Region III Field Office of the National Labor Rela-.

tions Board, taken on June 29, 1978. See also Appendix F at pp. 55f to

134f.

In addition, in its opinion below, the Circuit Court expressly found

that the limited relief potentially available to Karen Silkwood and her

fellow union organizers pursuant to the National Labor Relations Act

was totally insufficient to redress the invidious, discriminatory, anti-

civil-rights conspiracy described in the Petitioners’ Complaint and that

§ 1985(3) authorized the District Court to grant relief over and above

that potentially available pursuant to the National Labor Relations

Act to union organizers who had been discriminatorily deprived of

their federally-guaranteed constitutional rights by an invidious,

discriminatory, anti-civil-rights conspiracy such as that described in

Petitioners’ Complaint. App. A, pp. la-9a.

The existence of such concurrent jurisdiction under the Federal

Civil Rights Act to vindicate violations of constitutional rights pro-

tected in only a limited manner by less comprehensive federal statutes

has been expressly recognized by this Court. E.g., Johnson v. Railway

Express Agency, Inc., 421 U.S. 454, 459-61 (1975).

Karen Silkwood and the other persons employed at the

Kerr-McGee Nuclear Facility in Oklahoma who had filed

complaints against the Kerr-McGee Nuclear Corporation

under the Federal Atomic Energy Act,? of their federally-

guaranteed constitutional rights to Freedom of Associa-

tion and Freedom to Travel on the Interstate Highways.

This class-based, invidiously discriminatory con-

spiratorial deprivation of constitutional rights was effec-

tuated by independently illegal activities such as telephone

wiretapping, electronic surveillance, physical threats, and

physical harassment on the interstate highways, which

course of illegal condutt finally resulted in the nationally-

publicized hit-and-run automobile death of Karen

Silkwood in a night-time automobile crash on November

13, 1974. See Petitioners’ Complaint, Appendix E, pp.

17e-20e and 23e-24e. This hit-and-run killing occurred

only moments before Karen Silkwood was to meet with

New York Times reporter David Burnham to deliver to

him documented proof of falsified safety tests and missing

plutonium at the scandal-ridden Kerr-McGee Nuclear

Facility just outside of Oklahoma City, Oklahoma. See

generally R. RASHKE, THE KILLING OF KAREN SILKWOOD

(Houghton Mifflin, Boston, 1981). The Petitioners’

evidence submitted below amply demonstrated that these

illegal overt acts were undertaken against Karen Silkwood

3These charges were set forth in Counts I and II of the Petitioners’

three-count civil complaint. App. E, at pp. 15e and 21le. Count III of

the complaint charged the Kerr-McGee Nuclear Corporation with

gross, willful and wanton conduct which resulted in the placing of

400,000 disintegrations per minute of radioactive plutonium on the

food in the private home refrigeratcr of Karen Silkwood which in-

flicted grievious radiation injury to Karen Silkwood. An Oklahoma

Federal District Court jury awarded the Estate of Karen G. Silkwood

a judgment of $10.5 million for this conduct on May 18, 1979. That

case is not a part of this appeal. See Silkwood v. Kerr-McGee Corp.,

485 F. Supp. 566 (W.D. Okia. 1979), appeal pending No. 79-1879.

and other class members and that these overt acts were

participated in by agents of the defendants and by agents

of the State of Oklahoma who were members of the

Oklahoma City Police Department. Agents of the FBI

participated in the cover-up of these overt acts.

The United States District Court for the Western

District of Oklahoma dismissed the Petitioners’ § 1985

complaint in 1978, declaring that the complaint, on its

face, failed to state a cause of action upon which legal

relief could be granted under § 1985.

In dismissing the complaint, the District Court expressly

quoted the rationale of the District Court opinion written

in Arnold v. Tiffany, 359 F. Supp. 1034, 1036 (C.D. Cal.

1973), asserting that:

the words ‘‘class-based, invidiously

discriminatory animus” refer, at most, to that

kind of irrational and odious class discrimination

akin to racial bias — such as discrimination based

on national origin or religion. 460 F. Supp. at

406; App. D, p. 13d.

The District Court never questioned the ability of Peti-

tioners’ evidence to prove their charges, nor did the

District Court express any doubt whatever that the Peti-

tioners were charging the defendants with a conspiracy

against the entire membership of the two classes of citizens

of which Karen Silkwood was a member.

The District Court did state by way of dicta that it

found itself generally:

in agreement with the numerous courts who have

rejected claims of class-based animus allegedly

directed toward groups which did not tend to ex-

ist prior to the occurrence of the events set forth

in the complaint and which tend to be defined by

one particular activity or by plaintiffs invididual

situation. Jd., at 407; App. D, p. 16d.

However, the District Court based its actual holding in

this case upon its conviction that the two particular classes

of citizens pleaded as the “targets” of the conspiracy simp-

ly are not classes of citizens protected under § 1985(3). It

did so by stating as follows:

While animus directed against groups such as

Jehovah’s Witnesses, persons of Japanese origin,

or Democrats, may provide the necessary

motivation element, animus directed against

employees at the Cimarron facility who were

organizing a union or who had filed complaints

against their employer under the Atomic Energy

Act, does not. Jd. (emphasis added)

In its opinion, the District Court did recognize that

there were other Circuit Court rulings that would mandate

recognition of the two classes of citizens pleaded as classes

protected under § 1985(3). Jd., at 405; App. D, p. 12d.

However, the District Court expressly chose to join the

District Court in Arnold v. Tiffany and the two minority

Circuit Courts which have restricted § 1985’s statutory

protection to blacks and to other classes of citizens whose

members are all involuntarily defined by one immutable

physical characteristic, such as race.

4 Murphy v. Mount Carmel High School, 543 F.2d 1189 (7th Cir.

1976) and Bellamy v. Mason’s Stores, Inc., 508 F.2d 504 (4th Cir.

1974).

Contra, Richardson v. Miller, 446 F.2d 1247 (3rd Cir. 1971);

Westberry v. Gilman Paper Co., 507 F.2d 206 (Sth Cir. 1975) and

Scott v. Moore, 640 F.2d 708 (Sth Cir. 1981); Cameron v. Brock, 473

F.2d 608 (6th Cir. 1973); Action v. Gannon, 450 F.2d 1227 (8th Cir.

1971); Hardyman v. Collins, 183 F.2d 308 (9th Cir. 1950). For

District Court opinions to this same effect, see, e.g., Lowenstein v.

On appeal, the Tenth Circuit Court of Appeals rejected

the District Court’s line of legal reasoning and set forth an

entirely different ground for affirming the dismissal of the

Petitioners’ complaint for failure to state a cause of ac-

tion. Silkwood v. Kerr-McGee, 637 F.2d 743 (10th Cir.

1980). App. A.

At pages 746 and 747 of its opinion, (pp. 5a to 9a of

App. A), the Tenth Circuit Court of Appeals expressly

ruled that § 1985(3) protected each of the two classes de-

scribed by the Petitioners on the face of their Complaint as

the “targets” of the class-based conspiracy complained of in

this case. Then, after making the “balanced inquiry” re-

quired by this Court in Farmer v. United Brotherhood of

Carpenters, 430 U.S. 290, 300 (1977), into the factors

which determine whether or not other statutes, such as the

National Labor Relations Act, in granting protection to

these two classes, excluded § 1985(3) protection, the Cir-

cuit Court expressly ruled that it was “the intent of Con-

gress” that these classes be protected under § 1985(3) when

the National Labor Relations Act and other statutes failed

to extend to their members adequate protection against

criminal anti-civil-rights conspiracies such as that described

in this complaint. 637 F.2d at 747; App. A, pp. 8a-9a.

The Circuit Court then went on to set forth a half dozen

separate reasons why members of these two classes of

citizens were protected under § 1985(3) against the con-

Rooney, 401 F. Supp. 952 (E.D. N.Y. 1975); Franceschina v. Morgan,

346 F. Supp. 833 (S.D. Ind. 1972); Reichart v. Payne, 396 F. Supp. 1010

(N.D Cal., 1975); Bradley v. Clegg, 403 F.Supp. 830 (E.D. Wis.

1975), and Local #1 v. Teamsters, 419 F. Supp. 263 (E.D. Pa. 1976).

See generally, U.S. v. Guest, 383 U.S. 745, 761 et seq., 774 et seq.

(1966) (concurring opinions of Clark, Black and Fortas and of

BREMNAN, Warren and Douglas), Oregon v. Mitchell, 400 U.S. 112,

229 et seg. (1970) (concurring opinion of BRENNAN, WHITE and

MARSHALL), and Katzenbach v.Morgan, 384 U.S. 641 (1966).

spiracy described in this particular complaint — so long as

the Petitioners could show that the actions taken by the

defendants “stem from plaintiffs’ membership in the

class,” “that these workers were discriminated against by

their employer for being members of an organization

engaging in concerted activities for the purpose of collec-

tive bargaining or other mutual aid or protection” or that

“the defendants. . . took discriminatory action against

employees because of their status as members of the

groups described above.” /d., at 746-747; App. A, 5a to Ya

(emphasis added).

However, the Circuit Court went on to enter another

legal ruling in this case. In this legal ruling, the Circuit

Court declared that § 1985(3) affords relief to members of

classes which are constitutionally protected under

§ 1985(3) only in those instances in which members can

show that the individiously discriminatory anti-civil-rights

conspiracy attacked and discriminatory deprived them of

their federally-guaranteed constitutional rights because

of their mere status as members of such a constitutionally

protected class. No relief is available under § 1985(3), the

Circuit Court declared, to members of such a constitu-

tionally protected class of citizens if they are attacked and

discriminatory deprived of their federally-guaranteed con-

stitutional rights by such a conspiracy because of their ac-

tivities undertaken as members of such a protected class.

The Circuit Court declared such attacks to be “private” or

individual to the particular members attacked for their ac-

tivities undertaken as a member of the class. /d., at 748;

App. A, p. Ila.

The Circuit Court then affirmed the District Court’s

dismissal of the Petitioners’ § 1985(3) complaint for

failure to state a cause of action on the entirely new

ground that it was the Circuit Court’s opinion that the

Petitioners’ complaint, taken “as a whole,” demonstrated

that, in fact, the defendants in this case discriminatorily

deprived Karen Silkwood and her associates of their

federally-guaranteed constitutional rights by a conspiracy

not because of their mere status as members of either of the

two admittedly protected classes of citizens, but, instead

because of the activities they undertook as members of

these two protected classes. Id.

REASONS FOR GRANTING THE PETITION

The ruling of the Tenth Circuit Court of Appeals in the

case below requires the review of this Court, because that

ruling directly contravenes an express decision of this

Supreme Court, directly conflicts with the decision of

another Circuit, and represents such a radical departure

from accepted judicial procedure as to call for the exercise

of the Supreme Court’s supervisory power.

If allow’d to stand, the decision below will seriously

jeopardize not only labor union organizers and federal

whistle-blowers, but activists and organizers for all other

classes of citizens intended by the federal courts to be pro-

tected under 42 U.S.C. § 1985(3), by denying them any

statutory protection against invidiously discriminatory

anti-civil-rights conspiracies, if they are discriminatorily

deprived of their federally-guaranteed constitutional

rights because of their activities undertaken as class

members in furtherance of the interests of their constitu-

tionally protected class. Review by this Court is therefore

imperative.

The Supreme Court should grant certiorari to review the

decision of the Tenth Circuit because that decision directly

contravenes this Supreme Court’s decision in Griffin v.

Breckenridge, 403 U.S. 88 (1971), which recognized that

§ 1985(3) protects all members of protected classes who

are attacked by invidiously discriminatory anti-civil-rights

conspiracies — including those members of such classes

who are attacked because of their activities undertaken as

class members in furtherance of the interests of their pro-

tected class. Rule 17(c) of this Court’s Rules specifically

authorizes the issuance of a Writ of Certiorari to review

such Court of Appeals rulings.

Once a Circuit Court of Appeals has declared a given

class of citizens to be constitutionally entitled to protec-

tion under § 1985(3) against private, invidiously

discriminatory, anti-civil-rights conspiracies, that Circuit

Court is not free to refuse protection to members of the

very same protected class who are attacked and

discriminatorily deprivec of their federally-guaranteed

constitutional rights by such a conspiracy because of their

“activities” undertaken as members of that protected class

rather than because of their mere membership in the class.

The constitutionally discriminatory attacks which were

directed against a “worker for Civil Rights for Negroes”

and the “out-of-state civil rights workers” in Griffin v.

Breckenridge, 403 U.S. at 90, 103, 106 (emphasis added),

were not undertaken against those particular petitioners

because of their mere passive status as members of the

black race. The petitioners in Griffin v. Breckenridge were

attacked and discriminatorily deprived of their federally-

guaranteed constitutional rights to Freedom of Associa-

tion and Freedom to Travel on the Interstate Highways

because of their activities undertaken as members of a

class of American citizens which the Court found to be

constitutionally entitled to protection against even purely

private invidiously discriminatory anti-civil-rights con-

spiracies under § 1985(3). Jd.

Griffin v. Breckenridge clearly established that in-

vidiously discriminatory anti-civil-rights attacks directed

against “workers” or “activist”? members of a class

of citizens expressly declared by a Circuit Court to

be entitled to protection under § 1985(3), are prohibited

by § 1985(3) — regardless of whether such persons are at-

tacked because of their mere passive status as members of

this constitutionally protected class or because of their ac-

tivities undertaken as members of such an explicitly pro-

tected class.

Thus, once “union organizers” or “persons engaged in

organizing a lawful labor union” are explicitly declared by

a Circuit Court of Appeals to be entitled to protection

under § 1985(3) against invidiously discriminatory anti-

civil-rights conspiratorial attacks, that court is not free to

deny relief to members of that class who are attacked and

discriminatorily deprived of their federally-guaranteed

constitutional rights to Freedom of Association and

Freedom to Travel on the Interstate Highways by such a

conspiracy because of their activities undertaken as

members of that constitutionally protected class.

The respondents counter with their repeated contention

that the only persons who are entitled to relief under

1985(3) are those persons who can show that they were

discriminatorily deprived of their constitutional rights by a

conspiracy directed against them exclusively because of

their mere status as a member of a class whose members

are all involuntarily defined by a single immutable “intrin-

sic characteristic” — such as their race or some other

physical characteristic.

In short, the Respondents contend that anti-civil-rights

conspirators are free, as far as § 1985(3) is concerned, to

discriminatorily deprive of their constitutional rights

“union organizers,” “anti-nuclear organizers,” “workers

for Negro civil rights,” “out-of-state civil rights workers,”

or any other persons who are members of a class of

citizens expressly declared to be constitutionally protected

under § 1985(3) — so long as the conspirators can effec-

tively assert that their illegal, discriminatory conduct was

undertaken against them because of the victims’ activity

undertaken as members of the protected class and not

simply because of the victims’ mere membership in that

protected class.

The Petitioners ask the Supreme Court to enforce, in

the Tenth Circuit, its ruling in Griffin v. Breckenridge,

declaring that members of classes of citizens held to be

protected under § 1985(3) are protected against private,

invidiously discriminatory, anti-civil-rights conspiracies

under this Act whether they are attacked and

discriminatorily deprived of their constitutional rights

because of their mere status as a member of a protected

class or whether because of their activities undertaken as

members of such a protected class.

Both of the classes of citizens described in the Peti-

tioners’ Complaint below to have been the “targets” of the

conspiracy complained of in this case have been explicitly

declared by the Supreme Court to be protected against in-

vidiously discriminatory anti-civil-rights conspiracies

when government agents are involved in such discrimina-

tions. “Union organizers” were recognized to be such a

protected class of persons by this Court in Hague v.

C.1.0., 307 U.S. 496 (1939). Persons who have reported

violations of the federal law to federal authorities were

declared to be constitutionally protected in 1895 by the

Certiorari is to resolve a direct conflict between the Cir-

cuits on an important point of legal and constitutional in-

terpretation. The Petitioners direct the Court’s attention

to the March 26, 1981 ruling entered by the Fifth Circuit

Court of Appeals in Scott v. Moore, 640 F.2d 708 at-

tached hereto as Appendix G, at pp. 1g-50g. The Fifth Cir-_

cuit, in a thorough and extremely well-reasoned opinion, ex- _

pressly declared that anti-union organizers who were

discriminatorily deprived of their constitutional rights by

an invidiously discriminatory, anti-civil-rights conspiracy

because of their activities undertaken to dissuade workers

from joining a lawful labor union, were entitled to protec-

tion under § 1985(3).

Since the Tenth Circuit Court of Appeals decision in the

present case was not finally entered until April 6, 1981,

some eleven days after the Fifth Circuit’s ruling in Scott v.

Moore, the Fifth Circuit did not expressly address the con-

flict between its decision and the Tenth Circuit Court’s

refusal to grant relief to the class of citizens discriminated

against in the present case. However, these two cases now

stand in stark conflict, with anti-union advocates receiving

federal court protection but pro-union advocates being

denied such protection by the Tenth Circuit.

Thus, there is an irreconcilable “conflict” between the

Circuits on the specific question presented by this case:

Does § 1985(3) afford protection to citizens who are

discriminatorily deprived of their federally-guaranteed

constitutional rights by a class-based, invidiously

discriminatory, anti-civil-rights conspiracy because of

their activities undertaken as a member of a protected

class organized to promote or to oppose worker member-

ship in lawful labor unions when such a conspiracy is not

adequately redressed by the National Labor Relations Act.

This Court’s Rule 17(a) authorizes the issuance of a Writ

of Certiorari to resolve such conflicts.

Petitioners also note that the ruling of the Fifth Circuit

expressly stated that it was in direct conflict with the

Seventh Circuit’s interpretation of Gri/jin v. Breckenridge

set forth in Murphy v. Mount Carmel High School, 543

F.2d 1189 (1976), an opinion written by Judge (now

JUSTICE) STEVENS. The petitioners in Scott v. Moore

have informed the Petitioners in the present case that they

will ask this Court to issue a Writ of Certiorari to review

the Fifth Circuit’s decision in that case.

The Petitioners herein request that the Supreme Court

issue a Writ of Certiorari in the present case, so as to have

before it both a case involving pro-union organizers and a

case involving anti-union organizers. A review of these

two cases together will greatly facilitate this Court’s

resolution of the conflict between the Circuits on this im-

portant question of law.

The third reason why the Supreme Court should grant

the Petition for the Issuance of a Writ of Certiorari is that

it is urgently necessary for the Court to exercise its power

of supervision over the Tenth Circuit Court of Appeals.

This Court of Appeals has grossly invaded the province of

the jury by basing its affirmation of the District Court’s

dismissal of the Petitioners’ complaint upon its unilateral

resolution of a pivotal material fact question concerning

the identity of the class targeted by the conspiracy charged

in this case — in a manner which directly conflicts with

specific allegations in the complaint which were supported

by substantial evidence presented to the District Court

during the discovery phase of this case.

In affirming the dismissal of the Petitioners’ complaint,

the Tenth Circuit said:

To state a cause of action under § 1985(3) the law

requires prejudice against a class qua class. Here

it seems clear from the complaint as a whole

that. . .the hatred which defendants allegedly

harbor is against Karen Silkwood and her

associates arising out of the activities of parties

involved. 637 F.2d at 748; App. A, p. Ila.

Whether this entirely new “finding” by the Circuit Court

is predicated upon Rule 12(b)(6) or Rule 56 of the Federal

Rules of Civil Procedure, it is totally improper and should

be set aside by this Court.

If the Circuit Court’s finding is purported to be based

on Rule 12(b)(6), its finding clearly disregards the rule that

requires the complaint to be construed in the light most

favorable to the Plaintiff, and that any doubts be resolved

in favor of the Plaintiff. E.g., Scheuer v. Rhodes, 416

U.S. 232 (1974). If a question of material fact is presented

by the complaint, that question of fact must be resolved by

the jury, not by the court’s judgment on the pleadings.

E.g., Mitchell v. Archibald & Kendall, Inc., 573 F.2d 429,

432 (7th Cir. 1978). This is even more true when the court

in question is the Circuit Court of Appeals, which has not

even seen the evidence available to the District Court.

On the face of their Complaint, the Petitioners charge

the Defendants with discriminatorily depriving Karen

Silkwood and her associates of their federally-guaranteed

constitutional rights pursuant to a conspiracy directed not

just against Karen Silkwood, but against a// persons

employed at the Kerr-McGee Nuclear Facility who were

endeavoring to organize a lawful labor union, and against

all persons employed there who had filed complaints

against the Kerr-McGee Corporation under the Atomic

Energy Act. Petitioners’ Complaint, App. E, pp. 15e-2le.

The Circuit Court is simply not free to ignore this ex-

press charge in the complaint, and to assert that “the com-

plaint as a whole” says something altogether different.

Nor are either of these two classes “artfully contrived,”

or so hemmed in by factual qualifications as to be a “class”

of only one individual, as was the case in Lessman v. Mc-

Cormick, 591 F.2d 605 (10th Cir. 1979), which the Circuit

Court cited, and in Ward v. St. Anthony Hospital, 476

F.2d 671 (10th Cir. 1973) cited therein. Such cases offer no

support at all for a dismissal of this complaint pursuant to

Rule 12(b)(6), because this complaint involves classes

legitimately protected under § 1985(3) which are made up

of significant numbers of people.

Nor would such an order of dismissal be supportable

under Rule 56. As this Court has repeatedly stated:

Summary judgment should be entered only when

the pleadings, depositions, affidavits, and admis-

sions filed in the case “show that [except as to the

amount of damages] there is no genuine issue as

to any material fact and that the moving party is

entitled to a judgment as a matter of law.” Rule

56(c), Fed. Rules Civ. Proc. This rule authorizes

summary judgment “only where the moving par-

ty is entitled to judgment as a matter of law,

where it is quite clear what the truth is,. . . [and

where] no genuine issue remains for trial. . .[for]

the purpose of the rule is not to cut litigants off

from their right to trial by jury if they really have

issues to try.” Sartor v. Arkansas Natural Gas

Corp., 321 U.S. 620, 627 (1944). Poller v. Col-

. 19

umbia Broadcasting System, Inc., 368 U.S. 464,

467 (1962).

Directly defying such Supreme Court rulings, the Cir-

cuit Court in this case had indeed “cut the plaintiff off

from her right to a trial” on one of the most crucial ques-

tions of fact in the case, indeed, a factual question in sup-

port of which the Petitioners presented substantial factual

evidence during the discovery phase of this case at the

District Court level. For example, the Petitioners showed

during discovery:

e that two separate NLRB field investigators in-

dependently concluded that there was in fact an

unlawful conspiracy against union members

underway at the Kerr-McGee nuclear facility at

the time Karen Silkwood’s constitutional rights

were discriminatorily violated by the defendants.

See Petitioners’ June 29, 1978 deposition of

Edwin Youngblood, Director of the Region III

Field Office of the NLRB. See also, Appendix F,

Exhibit 9, pp. 55f-85f.

e that the defendants unlawfully administered lie-

detector tests to workers at the Kerr-McGee

facility demanding to know if workers were

members of the union or whether they had ever

met with union organizers, including but not

limited to Karen Silkwood. /d., pp. 50f-55f.

e that the defendants were repeatedly caught by

the NLRB inflicting punative transfers and fir-

ings to union members (other than Karen

Silkwood), which were later declared by the

NLRB to be without any colorable grounds. /d.,

pp. 65f to 67f.

This evidence, along with other evidence available to the

Petitioners which was never deemed relevant to present to

the Circuit Court — since the District Court order from

which appeal was being sought was based on entirely dif-

ferent grounds — most definitely would support a factual

conclusion by a jury that the Defendants in this case

violated Karen Silkwood’s federally-guaranteed constitu-

tional rights pursuant to the class-based invidiously

discriminatory anti-civil-rights conspiracy described by the

Petitioners on the face of their complaint.

This factual issue should therefore go to a jury. As

Justice Black said in his concurring opinion in Adickes v.

Kress, 398 U.S. 144, 176 (1970):

The existence or nonexistence of a conspiracy is

essentially a factual issue that the jury, not the

trial judge, should decide. . . .The advantages of

trial before a live jury with live witnesses, and all

the possibilities of considering the human fac-

tors, should not be eliminated by substituting

trial by affidavit and the sterile bareness of sum-

mary judgment.

For these reasons, this Court should exercise its super-

visory authority over the Tenth Circuit Court of Appeals

and thereby afford the Petitioners their right to a jury trial

on the merits of their well-pleaded § 1985(3) complaint.

CONCLUSION

For these reasons, this Petition for the Issuance of a

Writ of Certiorari should be granted.

Respectfully submitted,

DANIEL P. SHEEHAN

Attorney of Record

JOHN CLEWETT

ROBERT HAGER

The Christic Institute

1324 N. Capitol St.

Washington, D.C. 20002

(202) 797-8106

Counsel for Petitioners

Dated: June 15, 1981

APPENDIX A

THE CIRCUIT COURT'S OPINION BELOW

APPENDIX A

THE CIRCUIT COURT’S OPINION BELOW

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KAREN G. SILK WOOD, by the Administrator )

of her estate, BILL M. SILK WOOD; and )

BEVERLY K. MEADOWS; MICHAEL E. )

MEADOWS; and DAWN E. MEADOWS, the )

infant heirs of Karen G. Silkwood by their

Guardian William E. Meadows,

Plaintiffs-Appellants,

v. Nos.

78-1826

THE KERR-McGEE CORPORATION; &

DEAN A. McGEE; JAMES READING; 79-1014

FRED WELCH; W.C. GENTRY;

LAWRENCE OLSON; THEODORE

ROSACK; JACQUE SROUJI; ONE NAMED

BUT UNIDENTIFIED AGENT OF THE

FEDERAL BUREAU OF INVESTIGATION;

JAMES J. KELLY; PETER COLEFAX;

EARL M. JORGENSEN; EDWIN L.

KENNEDY; BREENE M. KERR; ROBERT

S. KERR, JR.; F:C. LOVE; GEORGE B.

PARKS; J.B. SAUNDERS; A.P.F. SEALE;

JAMES E. WEBB; R.T. ZITTING;

PARKER S. DUNN; WAYNE NORWOOD;

RONALD ADKISSON; ROY E. KING;

G.T. SINKE; J. MARLER and G. FRANCE,

Defendants-Appellees.

ee ee ee ee ee ee ee ee ee ee ee ee ee

Appeal from the United States District Court

For the Western District of Oklahoma

(D.C, No. Civ-76-0888)

Daniel P. Sheehan, Oklahoma City, Oklahoma, (Robert

Hager, Oklahoma City, Oklahoma, and Eugene

R. Scheiman of Kurland and Scheiman, New York, New

York, of Counsel, with him on briefs), for Plaintiffs-

Appellants.

William G, Paul of Crowe, Dunlevy, Thweatt, Swinford, ,

Johnson & Burdick, Oklahoma City, Oklahoma, and C.

Lee Cook, Jr. of Chadwell, Kayser, Ruggles, McGee &

Hastings, Chicago, Illinois, for Defendants-Appellees

Dean A. McGee, James J. Kelly, Peter Colefax, Earle M.

Jorgensen, Edwin L. Kennedy, Breene M. Kerr, Robert S.

Kerr, Jr., F.C. Love, George B. Parks, A.T.F. Seale,

James E. Webb, R.T. Zitting, Parker S. Dunn, Ronald

Adkisson, Roy E. King, G.J. Sinke, James Marler, G.

France, III, James Reading, Fred Welch and W.C. Gen-

try.

Glenn V. Whitaker, Attorney, Civil Division, Department

of Justice (Barbara Allen Babcock, Assistant Attorney

General, and Larry Patton, United States Attorney, with

him on the brief), Washington, D.C., for Defendants-

Appellees Lawrence Olson and Theodore Rosack.

Alletta d’A. Belin and Timothy B. Flynn, Center for Law

in the Public Interest, Los Angeles, California, filed an

amicus curiae brief for the Committee for Public Justice.

Before McWILLIAMS, DOYLE and LOGAN, Circuit

Judges.

LOGAN, Circuit Judge.

This is an appeal by the estate and heirs of Karen G.

Silkwood from a judgment dismissing for failure to state a

cause of action two claims asserted against officials and

agents of Kerr-McGee Corporation' and agents of the

Federal Bureau of Investigation (FBI),? based upon the

Civil Rights Act of 1871, 42 U.S.C. § 1985(3). They also

appeal a summary judgment order against them dismissing

their claim against the FBI agents based upon Bivens v. Six

Unknown Agents of the Federal Bureau of Narcotics, 403

U.S. 388 (1971). See Silkwood v. Kerr-McGee Corp., 460

F. Supp. 399 (W.D. Okla. 1978). The trial court autho-

rized this appeal under Fed. R. Civ. P. 54(b).3

The issues treated on appeal are (1) whether the Na-

tional Labor Relations Board has exclusive jurisdiction

over the claims asserted, (2) whether cognizable classes

and sufficient class-based animus are shown for purposes

of § 1985(3) jurisdiction, and (3) whether a Bivens claim

may be maintained against FBI agents for actions oc-

curring after Karen Silkwood’s death. We find it un-

'Kerr-McGee officials and agents named in the complaint are: Dean

A McGee; James J. Kelly; Peter Colefax; Earl M. Jorgensen; Edwin

L. Kennedy; Breene M. Kerr; Robert S. Kerr, Jr.; F.C. Love; George

B. Parks; J.B. Saunders; A.P.F. Seale; James E. Webb; R.T. Zitting;

Parker S. Dunn; Wayne Norwood; Ronald Adkisson; Roy E. King;

G.T. Sinke; J. Marler; G. France; James Reading; Fred Welch; and

Weldon C. Gentry.

2Agents of the FBI included as defendants are Lawrence Olson,

Theodore Rosack, and “One Named but Unidentified Agent of the

Federal Bureau of Investigation.” Jacque Srouji is alleged to be an of-

ficial informant for the FBI and for purposes of this case was treated

as an FBI agent.

3The court retained jurisdiction over other claims which have now

been tried and are the subject of a separate appeal. Silkwood v. Kerr-

McGee Corp., 485 F. Supp. 566 (W.D. Okla. 1979), appeal pending

No. 79-1879.

necessary to consider other defenses raised by defendants:

that the section 1985(3) claims fail for lack of state action

and that the actions do not survive the death of Silkwood

under Oklahoma law.

The complaint, as its first cause of action, alleges the

following. Karen Silkwood was an employee at the Kerr-

McGee Corporation’s nuclear facility at Cimarron,

Oklahoma. The Kerr-McGee defendants formed a con-

spiracy in November of 1972 to prevent Silkwood and

other Kerr-McGee employees organizing a labor union

from enjoying the equal protection of the laws. The Kerr-

McGee defendants, in the course of this conspiracy,

placed Silkwood and others under illegal surveillance,

unlawfully entered their homes, automobiles and other

private areas, wiretapped their telephones and homes,

physically endangered their lives and safety upon the

public highways, engaged in discriminatory firing and

transfers, and used other forms of coercion to hinder the

organization of the union. Silkwood’s constitutional rights

violated by this course of conduct stem primarily from the

First Amendment and include the rights to freedom of

speech, travel, association, assembly, press, the rights to

petition the government for redress of grievances, to be

secure in person, homes, and effects, and not to be deprived

of life or liberty without due process of law. Plaintiffs

allege that the FBI defendants joined this conspiracy in

November of 1974, after the death of Karen Silkwood, to

aid the other defendants in their efforts to cover up the

prior conspiratorial activities. All defendants purportedly

covered up information and gave false reports to various

federal investigative officials for the purpose of depriving

Karen Silkwood and others of the equal protection and en-

joyment of the laws of the United States.

The second claim is essentially identical to the first, ex-

cept that the class is defined as Karen Silkwood and the

other Kerr-McGee employees who filed complaints against

the Kerr-McGee Corporation under the Atomic Energy

Act.

Jurisdiction

Although the district court did not treat the issue, defen-

dants have asserted that the National Labor Relations

Board (NLRB) has exclusive jurisdiction of both claims

under the preemption doctrine of San Diego Building

Trades Council v. Garmon, 359 U.S. 236, 245 (1959),

which states: “When an activity is arguably subject to § 7

or § 8 of the [National Labor Relations] Act [29 U.S.C.

§§ 157, 158], the States as well as the federal courts must

defer to the exclusive competence of the National Labor

Relations Board . . . .” We believe this important issue of

jurisdiction must be resolved before considering any ques-

tions going to the merits of the case.

The pertinent allegations regarding this issue are that

defendants engaged in two conspiracies against the plain-

tiff — one designed to deprive Karen Silkwood and other

employees “who were engaged in organizing a labor

union” of the equal protection and enjoyment of the laws

of the United States; the other designed to hinder and/or

punish Silkwood and others “who had filed complaints

against the corporation under the Atomic Energy Act

from seeking and enjoying the equal protection of the

laws” to associate with one another and to speak to the

news media. An alleged objective and activity of both con-

spiracies was “harassment of the freedom of movement

and travel, so as physically to endanger their [Silkwood’s

and others’) safety and lives upon the public highways.”

‘The Supreme Court has indicated that “the decision to

preempt federal and state court jurisdiction over a given

class of cases must depend on the nature of the particular

interests being asserted and the effect upon the administra-

tion of national labor policies of concurrent judicial and

administrative remedies.” Vaca v. Sipes, 386 U.S. 171, 180

(1967). Three critical factors generally control the disposi-

tion of the preemption question. First, whether there exists

a potential for a direct conflict of substantive law between

the National Labor Relations Act (NLRA) and the state or

federal cause of action; second, whether there is a state in-

terest “deeply rooted in local feeling and responsibility”;

and third, whether adjudication of the cause of action in-

terferes with the effective administration of national labor

policy by deciding issues identical to those underlying the

labor dispute. Farmer v. United Brotherhood of

Carpenters, 430 U.S. 290, 298 (1977). On the basis of these

criteria, state court jurisdiction has been held proper for

actions for libel, Linn v. United Plant Guard Workers,

383 U.S. 53 (1966); malicious interference with a lawful

occupation, International Union, United Automobile,

Aircraft and Agricultural Workers v. Russell, 356 U.S.

634 (1958); and intentional infliction of emotional

distress, Farmer v. United Brotherhood of Carpenters,

supra.

In the instant case, there is little difficulty in meeting the

first two criteria. The deprivation of civil rights through a

conspiracy and course of conduct involving wiretapping,

surveillance, discriminatory firing and transfers, breaking

and entering, and life-endangering harassment on public

highways could rarely, if ever, come within the protection

of the NLRA and thus produce a substantive conflict of

law. Likewise, it can hardly be denied that the government

has a deeply rooted interest in proscribing such conduct.

The third criterion, however, presents a serious obstacle to

jurisdiction.

In order to support a section 1985(3) claim, the plaintiff

must be a member of a statutorily protected class, and the

actions taken by defendant must stem from plaintiff's

membership in the class. Lessman v. McCormick, 591

F.2d 605, 608 (10th Cir. 1979). Here, ihe plaintiff has

chosen to define the classes as a group of persons seeking

to organize a union and a group reporting safety violations

at their place of employment to the Atomic Energy Cor-

poration. Consequently, to support a section 1985(3)

claim, the trial court would be required to find that the

defendants (primarily management personnel of Kerr-

McGee) took discriminatory action against employees

because of their status as members of the groups described

above. Adjudication of these issues would necessarily

duplicate the critical issues underlying a claim before the

NLRB based on sections 7 and 8 of the NLRA. See Iowa

Beef Processors, Inc. v. Gorman, 476 F. Supp. 1382 (N.D.

Iowa 1979). Inherent in both cases is a required finding

that workers were discriminated against by their employer

for being members of an organization engaging in con-

certed activities for the purpose of collective bargaining or

other mutual aid or protection. The administrative in-

terference created by this overlapping jurisdiction has

been held in at least one case to require preemption of

federal court jurisdiction. Id. See also, Bova v. Pipefitters

Local 60, 554 F.2d 226 (Sth Cir. 1977). Moreover, a recent

Supreme Court decision has held this third criterion is the

critical inquiry of the case. Sears, Roebuck & Co. v. San

Diego County District Council of Carpenters, 436 U.S.

180, 197 (1978).

While these tests may prove adequate in most cases, the

preemption question still turns upon a “balanced inquiry

into such factors as the nature of the federal and state in-

terests in regulation and the potential for interference with

federal regulation.” Farmer v. United Brotherhood of

Carpenters, 430 U.S. at 300. The court must discern the

intent of Congress in resolving the issue. See Vaca v.

Sipes, 386 U.S. at 179. The federal interest involved in this

case is paramount since it is alleged that defendants

deprived Silkwood of her constitutional right to travel by

endangering her life and safety on the public highway‘ and

that government officials conspired to deprive private

citizens of their constitutional rights. Additionally, the ac-

tions allegedly taken by the private persons could con-

stitute “official lawlessness” because of the alleged con-

spiracy with government officials. See United States v.

Price, 383 U.S. 787, 794-95 (1966). Entrusting the ex-

clusive power of vindicating these constitutional rights to

the NLRB, which may refuse to hear a case at will, raises

grave constitutional implications, see Vaca v. Sipes, 386

U.S. at 182-83, heightened by the NLRB’s lack of expertise

in constitutional matters, a field traditionally reserved to

the courts. Seay v. McDonnell Douglas Corp., 427 F.2d

996, 1002-03 (9th Cir. 1970). Moreover, the NLRB lacks

jurisdiction over government officials charged as defen-

dants in this case, see Fulton v. Emerson Electric Co., 420

F.2d 527, 530 (Sth Cir. 1969), cert. denied, 398 U.S. 903

(1970), and lacks power to award damages against any of

these parties for redress of these constitutional in-

fringements. Ruling that the Board has exclusive jurisdic-

tion in this area would give free rein to government of-

ficials and private parties acting in concert with them to

violate the constitutional rights of others with impunity.

“No state action is required to give rise to a cognizable suit in this

context. Griffin v. Breckenridge, 403 U.S. at 105-06.

Congress could not have intended such a result. We

therefore hold that jurisdiction is proper in this case.

Section 1985(3)

Plaintiff contends the complaint sufficiently states

causes of action under 42 U.S.C. § 1985(3). The district

court found the complaint lacking because the class-based

animus was directed toward a group “which did not tend

to exist prior to the occurrence of the events set forth in

the complaint and which [tended] to be defined by one

particular activity or by plaintiff's individual situation.”

460 F. Supp. at 407.

Griffin v. Breckenridge, 403 U.S. 88, 102-03 (1971),

defines the requisites of a valid complaint under

§ 1985(3). One requirement is that the conspiracy be

formed “for the purpose of depriving, either directly or in-

directly, any person or class of persons of the equal pro-

tection of the laws, or of equal privileges and immunities

under the laws.” Jd. Read literally the statute has nearly

unlimited application to private conspiracies designed to

deprive persons of the equal protection of the law. To

avoid construing the statute as a general federal tort law

and to effectuate the purposes of Congress, the Court

limited the Act’s application by requiring as an element of

the cause of action “some racial, or perhaps otherwise

class-based, invidiously discriminatory animus behind the

conspirators’ action.” Jd. at 102.

Other courts considering the viability of § 1985(3) ac-

tions for conspiracies against unions have uniformly

found insufficient class-based animus. Taylor v. Brighton

Corp., 616 F.2d 256 (6th Cir. 1980); Iowa Beef Pro-

cessors, Inc. v. Gorman, 476 F. Supp. 1382; Amalgamated

Clothing and Textile Workers Union v. J.P. Stevens &

10a

Co., Inc., 475 F. Supp. 482 (S.D.N.Y. 1979). Similar rul-

ings have been made in cases of employees claiming

discrimination by unions and/or employers. Bova v.

Pipefitters Local 60, 554 F.2d 226; McLellan v. Missis-

sippi Power & Light Co., 545 F.2d 919 (Sth Cir. 1977)

Western Telecasiers v. California Federation of Labor,

415 F. Supp. 30 (S.D. Cal. 1976). ©

Even if a union or group which has particular views on

nuclear safety can be a class within the meaning of section

1985(3), no cause of action is stated here. The complaint

must show “invidiously discriminatory animus” on the

part of defendants. Griffin v. Breckenridge, 403 U.S. at

102. At least one court has found this requires a showing

of “a considerable degree of unjustifiability or irrationali-

ty.” McLellan v. Missisippi Power & Light Co., 526 F.2d

870, 879 (Sth Cir. 1976), vacated in part on other grounds

en banc 545 F.2d 919. Another court has required a show-

ing of an “irrational and odious class discrimination akin

to racial bias — such as discrimination based on national

origin or religion.” Arnold v. Tiffany, 359 F. Supp. 1034,

1036 (C.D. Cal.), aff'd on other grounds, 487 F.2d 216,

218 (9th Cir. 1973), cert. denied, 415 U.S. 984 (1974).

Senator Edmunds, in describing the types of conspiracies

coming within the purview of the Act, explained:

We do not undertake in this bill to inte: “ere

with what might be called a private conspiracy

growing out of a neighborhood feud of one man

or set of men against another to prevent one get-

ting an indictment in the State courts against

men for burning down his barn; but, if in a case

like this, it should appear that this conspiracy

was formed against this man because he was a

Democrat, if you please or because he was

Catholic, or because he was a Methodist, or

because he was a Vermonter, . . . then this sec-

tion could reach it.

Cong. Globe, 42d Congress, Ist Sess. 567 (1871).

To state a cause of action under section 1985(3) the law

requires prejudice against a class qua class. Here it seems

clear from the complaint as a whole that the feud, if there

is one, is private; no general prejudice which transcends

the immediate dispute is shown. Rather the hatred which

defendants allegedly harbor is against Karen Silkwood and

her associates arising out of the activities of parties involved.

See Lessman v. McCormick, 591 F.2d 605, 608 (10th

Cir. 1979). We hold this is essentially a private feud not

within the intended«scope of the Act’s coverage. As was

aptly stated by the district court, to hold otherwise would

make § 1985(3) “applicable to all conspiratorial in-

terferences with the rights of others, as there are no

bounds upon the ingenuity of counsel in pleading novel

and diverse classes to fit every conceivable situation.” 460

F. Supp. at 407.

The Bivens Claim

The district court granted summary judgment on the

Bivens claim against plaintiffs because the FBI allegedly

became involved in the conspiracy only after the death of

Karen Silkwood and, therefore, could not have violated

her rights. Plaintiffs urge that the FBI defendants, by join-

ing a conspiracy with knowledge of its illegal purpose,

ratified and became liable for the conspirators’ prior acts.

The conspiracy’s alleged purpose was two-fold: to

violate the rights of Silkwood and others, and to cover up

these violations. We agree with the Ninth Circuit that the

civil rights of a person cannot be violated once that person

12a

has died. Guyton v. . .illips, 606 F.2d 248, 250-51 (9th

Cir. 1979), cert. denied, 445 U.S. 916 (1980). See also

Whitehurst v. Wright, 592 F.2d 834, 840-41 (Sth Cir.

1979); Roe v. Wade, 410 U.S. 113, 157-59 (1975) (unborn

fetus not a “person” for purposes of Civil Rights Act). It is

clear then that the FBI agents could not have violated the

civil rights of Silkwood by cover-up actions taken after her

death.

Additionally, with the death of Silkwood, the con-

spiracy to violate her rights terminated. Thus, the FBI

defendants could not be held liable for the prior violations

of Silkwood’s constitutional rights even if a Bivens claim

encompasses a relation back theory of conspiracy law.

Guyton v. Phillips, 606 F.2d at 251.

We hold that the plaintiffs have not stated a cause of ac-

tion under the Civil Rights Act of 1871 or the Constitution

of the United States and the district court’s dismissal was

proper.

Affirmed.

APPENDIX B

THE CIRCUIT COURT'S ORDER

REFUSING REHEARING

APPENDIX B

THE CIRCUIT COURT'S ORDER REFUSING

REHEARING

NOVEMBER TERM — January 16, 1981

Before Honorable Robert H. McWilliams, Honorable

William E. Doyle and Honorable James K. Logan, Circuit

Judges.

KAREN G. SILK WOOD, by the Administrator )

of her estate, WILLIAM M. SILK WOOD; )

and BEVERLY K. MEADOWS, MICHAEL E. )

MEADOWS, and DAWN E. MEADOWS, )

the infant heirs of Karen G. Silkwood by

their Guardian, WILLIAM E. MEADOWS,

Plaintiffs-Appellants,

)

COMMITTEE FOR PUBLIC JUSTICE, )

Amicus Curiae, )

)

v. No.

78-1826

THE KERR-McGEE CORPORATION; and

DEAN A. McGEE, JAMES J. KELLY, No.

PETER COLEFAX, EARL M. JORGENSEN, ) 79-1014

)

EDWIN L. KENNEDY, BREENE M. KERR, )

‘ ROBERT S. KERR, JR., F.C. LOVE, )

GEORGE B. PARKS, J.B. SAUNDERS, )

A.P.F. SEALE, JAMES E. WEBB, R.T. )

ZITING, PARKER S. DUNN, WAYNE )

NORWOOD, RONALD ADKISSON, ROY E. )

KING, G.T. SINKE, J. MARLER, )

G. FRANCE, JAMES READING, FRED )

WELCH, W.C. GENTRY, LAWRENCE )

OLSON, THEODORE ROSACK, JACQUE _ )

SPROUJI, and ONE NAMED SUT )

UNIDENTIFIED AGENT OF THE )

FEDERAL BUREAU OF INVESTIGATION, )

Defendants-Appellees. )

This matter comes on for consideration appellants’ peti-

tion for rehearing filed in the captioned appeals.

Upon consideration whereof, the petition is denied.

HOWARD K. PHILLIPS, Clerk

APPENDIX C

THE CIRCUIT COURT'S ORDER RECALLING

ITS MANDATE AND REFUSING REHEARING

APPENDIX C

THE CIRCUIT COURT’S ORDER RECALLING

ITS MANDATE AND REFUSING REHEARING

MARCH TERM — APRIL 6, 1981

Before Honorable Robert H. McWilliams, Honorable

William E. Doyle and Honorable James K. Logan, Circuit

Judges.

KAREN G. SILK WOOD, by the Administrator )

of her estate, WILLIAM M. SILK WOOD; )

and BEVERLY K. MEADOWS, MICHAEL E. )

MEADOWS, and DEAN E. MEADOWS, )

the infant heirs of Karen G. Silkwood by )

their Guardian, William E. Meadows, )

Plaintiffs-Appellants, )

COMMITTEE FOR PUBLIC JUSTICE, )

Amicus Curiae, )

v. ) No.

) 78-1826

THE KERR-McGEE CORPORATION; ) and

DEAN A. McGEE; JAMES J. KELLY; ) No.

PETER COLEFAX; EARL M. JORGENSEN; ) 79-1014

EDWIN L. KENNEDY; BREENE M. KERR; )

ROBERT S. KERR; JR., F.C. LOVE; )

GEORGE B. PARKS; J.B. SAUNDERS; )

A.P.F. SEALE; JAMES E. WEBB; R.T. )

ZITING; PARKER S. DUNN; WAYNE )

NORWOOD; RONALD ADKISSON; ROY E. )

KING; G.T. SINKE; J. MARLER; )

G. FRANCE; JAMES READING; FRED )

WELCH; W.C. GENTRY; LAWRENCE )

OLSON; THEODORE ROSACK; JACQUE _)

SPROUJI; and ONE NAMED BUT )

UNIDENTIFIED AGENT OF THE )

FEDERAL BUREAU OF INVESTIGATION, )

Defendants Appellees. )

This matter comes on for consideration appellants’ mo-

tion to recall the mandate and reenter the order denying

petition for rehearing in the captioned cases.

Upon consideration whereof, the motion is granted.

The Court orders as folows:

1. The mandate in the captioned cases issued January

16, 1981, to the United States District Court for the

Western District of Oklahoma is recalled;

2. The Court’s order of January 16, 1981, denying ap-

pellants’ petition for rehearing is vacated and reentered

this date;

3. The Clerk is directed to reissue the mandate in these

cases forthwith.

HOWARD K. PHILLIPS

Clerk

By:

Robert L. Hoecker

Chief Deputy Clerk

APPENDIX D

THE DISTRICT COURT'S OPINION BELOW

APPENDIX D

THE DISTRICT COURT’S OPINION BELOW

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

KAREN G. SILKWOOD, by the )

Administrator of her estate, )

William M. Silkwood, et al., )

Plaintiffs, )

)

VS. ) CIV-76-0888-Theis

)

THE KERR-McGEE ) FILED

CORPORATION, et al., ) SEP 25 1978

Defendants. ) HERBERT T: HOPE

) us. pistrict court

) wy

Deputy

MEMORANDUM OPINION AND ORDER

This matter comes before the Court on the motions of

the individual Kerr-McGee defendants' for judgment

on the pleadings and the motions of the F.B.1. defendants?

and defendant Jacque Srouji, for summary judgment.

' The term “individual Kerr-McGee defendants” refers to the follow-

ing officers, directors, executives and employees of the Kerr-McGee

Corporation named in the complaint as defendants solely in their per-

sonal capacities: Dean A. McGee; James J. Kelly; Peter Colefax; Earl

M. Jorgensen; Edwin L. Kennedy; Breene M. Kerr; Robert S. Kerr,

Jr.; F.C. Love; George B. Parks; J.B. Saunders; A.P.F. Seale; James

E. Webb; R.T. Ziting; Parker S. Dunn; Wayne Norwood; Ronald

Adkisson; Roy E. King; G.T. Sinke; J. Marler; G. France; James

Reading; Fred Welch; and Weldon C. Gentry.

?The term “F.B.1. defendants” refers to the following agents of the

Federal Bureau of Investigation named in plaintiffs’ complaint as

defendants in their private as well as in their official capacities:

Lawrence Olson; Theodore Rosack; and “One Named but Uniden-

tified Agent of the Federal Bureau of Investigation.”

Defendants maintain the first two counts?’ of plaintiffs’

complaint fails to state a cause of action upon which relief

can be granted under 42 U.S.C. § 1985(3) because: (1) the

complaint fails to allege, and it cannot be implied, that

there was some racial, or perhaps otherwise class-based

discriminatory animus behind the alleged conspiracy; and

(2) the complaint fails to allege or imply any form of state

action, a violation of Thirteenth Amendment rights, or a

violation of the right of interstate travel.4 The F.B.I.

defendants move for summary judgment on the first two

counts and on any implicit Bivens’ claims, arguing the

complaint is deficient in the manner stated above, and fur-

ther, that the F.B.I. defendants came on the scene only

after the death of Karen Silkwood in November of 1974,

that any alleged conspiracy would have terminated at the

time of Silkwood’s death, and that it was impossible for

the F.B.1. defendants to have done anything that would

have harmed Karen Silkwood during her lifetime either in

her person or property, or in her having or exercising any

right or privilege of a citizen of the United States.

‘This opinion will consider only the first two counts set forth in

plaintiffs’ complaint. Motions relating to the third count of the com-

plaint which names as defendant only the Kerr-McGee Corporation

will be considered in subsequent opinions and orders.

“Because of the dispositive nature of this contention, the Court

finds it unnecessary to reach defendants’ arguments relating to finds it

unnecessary to reach defendants’ arguments relating to the survivabili-

ty of the action under Oklahoma law and to the jurisdiction of the Na-

tional Labor Relations Board.

5 Bivens v. Six Unknown Named Agents of the Federal Bureau of

Narcotics, 403 U.S. 388, 29 L.Ed.2d 619, 91 S.Ct. 1999 (1971). Very

simply the Bivens case held the violation of a citizen's constitutional

right by a federal officer gave rise to a cause of action for damages to

a person injured by the unconstitutional conduct of the federal of-

ficer. In that case, the Fourth Amendment right to be free from

unreasonable search and seizure was violated.

After careful consideration of the complex legal issues

presented by the motions, the Court concludes that

Counts I and II of plaintiffs’ complaint fail to state a cause

of action and are therefore dismissed as to all defendants.

The F.B.1. defendants are granted summary judgment on

the Bivens aspect of plaintiffs’ complaint, but are denied

summary judgment as to Counts I and II.

BACKGROUND

The complaint states that Karen Silkwood was an

employee of the Kerr-McGee Corporation’s Cimarron,

Oklahoma, Nuclear Facility (hereinafter “Cimarron facili-

ty”) from August 3, 1972, to November 13, 1974, The first

count of the complaint alleges that the individual Kerr-

McGee defendants entered into a conspiracy in November

of 1972 with the purpose of preventing Karen Silkwood

and other Cimarron facility employees endeavoring to

organize a labor union to improve their working standards

from enjoying the equal rights, privileges and immunities

of citizens under the laws of the United States and the

State of Oklahoma, through force, violence, intimidation,

surveillance, harassment, wiretapping and other forms of

illegal conduct. Overt acts alleged to have been undertaken

by the individual Kerr-McGee defendants against Karen

Silkwood and other union organizers employed at the

facility include the following: (1) formulating, financing,

directing, supervising and executing a plan to place Karen

Silkwood and other union organizers employed at the

Cimarron facility under surveillance so as to compile

dossiers for the purpose of depriving them of their rights

to privacy and to freely associate as guaranteed by the

First and Fourth Amendments to the United States Con-

stitution; (2) similarly undertaking a plan to place listening

devices in private places and placing wiretaps on the

telephones of Karen Silkwood and other union organizers

in violation of privacy rights guaranteed by the First and

Fourth Amendments; (3) hiring and directing operations

agents to place Karen Silkwood and other union

organizers under surveillance, to illegally enter the private

domains of Karen Silkwood and other union organizers,

and to harass Karen Silkwood and other union organizers

by various means — including harassment of the freedom

of movement and travel — for the purpose of preventing

them from enjoying the equal protection of the laws enti-

tling them to freely associate; (4) firing and transferring per-

sons at the Cimarron facility as punishment for their exer-

cise of First Amendment rights, and to prevent Karen

Silkwood and other union organizers from enjoying the

equal protection of the laws; (5) interfering with the right

of Karen Silkwood and other Cimarron employees to com-

municate with the public news media by threats of firing,

use of lie detector tests, and by orders and rules forbidding

such conduct.

The F.B.I. defendants are alleged to have joined the

conspiracy in November of 1974, and defendant Srouji is

alleged to have joined in April of 1975, each with the

knowledge of the previous overt acts, for the purpose of

preventing knowledge of the overt acts from becoming

known to any persons other than themselves. All defen-

dants are alleged to have given false information to

various federal investigative officials and to have falsified

official reports for the purpose of depriving Karen

Silkwood and other union organizers of the equal protec-

tion and enjoyment of the laws of the United States.

As a result of the alleged overt acts, the complaint states

that Karen Silkwood and cther union organizers employed

at the Cimarron facility were damaged in that they were

deprived of the equal protection of the laws and deprived

of the privileges and immunities of citizens of the United

States, including their rights to freedom of speech,

freedom of association, freedom of assembly, freedom of

movement and travel, their free access to the press, their

right to privacy, their right to petition their government

for a redress of their grievances, and their right not to be

deprived of their life, liberty or property other than by the

due process of law.

The second count of the complaint is identical to the

first count except for two essential differences. First, the

alleged conspiracy in the second count is stated to have

been directed against Karen Silkwood and other

employees of the Cimarron facility who had filed com-

plaints against the corporation under the Atomic Energy

Act. Second, the individual Kerr-McGee defendants are

alleged to have entered into the conspiracy in October of

1974. Jurisdiction as to both Counts I and II is asserted

under 42 U.S.C. § 1985(3), 28 U.S.C. § 1343, and the

First, Fourth, Fifth and Ninth Amendments to the United

States Constitution.

SECTION 1985(3)

Counts I and II are predicated upon what has been

called the Klu Klux Klan Act, a provision of the Civil

Rights Act of 1871, which provides as follows:

“If two or more persons in any State or Territory

conspire or go in disguise on the highway or on

the premises of another, for the purpose of

depriving, either directly or indirectly, any per-

son or class of persons of the equal protection of

the laws, or of equal privileges and immunities

under the laws... [and] in any case of con-

spiracy 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 ef the United

States, the party so injured or deprived may have

an action for the recovery of damages, occasioned

by such injury or deprivation, against any one

or more of the conspirators.” [42 U.S.C.

§ 1985(3).]

The touchstone in any case involving a claim under

§ 1985(3) is the decision of the Supreme Court in Griffin

v. Breckenridge, 403 U.S. 88, 29 L.Ed. 338, 91 S.Ct. 1790

(1971), where the Court set forth the following as the

necessary elements of a § 1985(3) claim:

“To come within the legislation a complaint must

allege that the defendants did (1) ‘conspire or go

in disguise on the highway or on the premises of

another’ (2) ‘for the purpose of depriving, either

directly or indirectly, any person or class of per-

sons of the equal protection of the laws, or of

equal privileges and immunities under the laws.’

It must then assert that one or more of the con-

spirators (3) did or caused to be done, ‘any act in

furtherance of the conspiracy,’ whereby another

was (4a) ‘injured in his person or property’ or

(4b) ‘deprived of having and exercising any right

or privilege of a citizen of the United States.”

[403 U.S. at 102-103.]

The second element set forth above relating to the

motivation of the conspirators which must be alleged and

proven by a § 1985(3) claimant was further defined in the

Court’s decision in Griffin in light of the legislative history

and the Constitution. Justice Stewart stated:

“It is thus evident that all indicators — text, com-

panion provisions, and legislative history —

point unwaveringly to § 1985(3)’s coverage of

private conspiracies. That the statute was meant

to reach private action does not, however, mean

that it was intended to apply to all tortious, con-

spiratorial interferences with the rights of others.

For, though the supporters of the legislation in-

sisted on coverage of private conspiracies, they

were equally emphatic that they did not believe,

in the words of Representative Cook, ‘that Con-

gress has a right to punish an assault and battery

when committed by two or more persons within a

State.’ [Citation omitted.] The constitutional

shoals that would lie in the path of interpreting

§ 1985(3) as a general federal tort law can be

avoided by giving full effect to the congressional

purpose — by requiring, as an element of the

cause of action, the kind of invidiously

discriminatory motivation stressed by the spon-

sors of the limiting amendment.... The

language requiring intent to deprive of equal pro-

tection or equal privileges and immunities,

means there must be some racial, or perhaps

otherwise class-based, invidiously discriminatory

animus behind the conspirator’s action.” [Id. at

101-102.]

The complaint before the Court satisfies the re-

quirements of the first and third elements of a § 1985(3)

action. Although defendants deny by answer and affidavit

the allegations of a conspiracy and of overt acts, they con-

cede the complaint alleges these essential elements. What

defendants do dispute, however, is whether the class-based

animus essential to a § 1985(3) claim is present in the com-

plaint and whether the complaint alleges the deprivation

of any of the rights or privileges of a citizen of the United

States.

CLASS-BASED ANIMUS

There is no allegation of racial animus or even of sex

discrimination in this case. The class-based animus in

Count I is alleged to have been directed against union

organizers employed at the Cimarron facility. In Count II,

the class-based animus is alleged to have been directed

against employees of the Cimarron facility who had filed

complaints against their employer under the Atomic

Energy Act. In their arguments and briefs, plaintiffs stress

that these constitute two separate and distinct classes —

Karen Silkwood having been a member of each — and that

both classes were “targeted” by defendants for deprival of

the equal protection of the laws and for deprival of the

members’ privileges and immunities as citizens of the

United States. Plaintiffs contend that a labor union or any

other formal or informal organization gathered together

to better enable persons to more effectively exercise rights

guaranteed by the First Amendment could constitute a

class for the purposes of § 1985(3), no matter how narrow-

ly defined, if they were “targeted” by a private conspiracy

in the manner alleged by the complaint.

Defendants respond that the classes alleged in Counts I

and II are small, not readily identifiable, and have consti-

tuencies depending upon circumstances which are

changeable. It is contended that the alleged classes are

defined by the activities of the members which are distinct-

ly individual characteristics, rather than by intrinsic

characteristics or qualities such as race, ethnic origin, sex

or religion. To hold that such classes are within the ambit

of § 1985(3) would be to fashion that section into a general

federal tort law, according to defendants.

Under the law of this Circuit it is clear that the com-

plaint must show some racial or class-based invidiously

discriminatory animus behind the actions of the con-

spirators. Atkins v. Lanning, 556 F.2d 485, 489 (10th Cir.

1977); Ward v. St. Anthony Hospital, 476 F.2d 671, 676

(10th Cir. 1973). In Griffin the Supreme Court empha-

sized:

“The motivation aspect of § 1985(3) focuses not

on scienter in relation to deprivation of rights but

on invidiously discriminatory animus.” [403 U.S.

at 102, n. 10.]

The Ninth Circuit has further explained this requirement

in the following manner:

“The statutory action is restricted to injuries in-

flicted upon the victim because of his status as a

member of an identifiable class; the statutory

‘purpose to deprive of equal rights’ requirement

is inferred from the racial or other class motiva-

tion underlying the tortious conduct.

“Under Griffin, we think the class providing the

motivating animus must be created by a fact

other inan the possession of the right deprived —

otherwise virtually every conspiratorial depriva-

tion of a primary right would be actionable

under § 1985(3) . . .” [Emphasis added.] [Lopez

10d

v. Arrowhead Ranches, 523 F.2d 924, 927-928

(9th Cir. 1975).]

Although the Supreme Court was not called upon in

Griffin to determine whether a conspiracy motivated by

invidiously discriminatory intent other than racial bias

would be actionable under § 1985(3), it did cite the

remarks of Senator Edmunds*® during the congressional

debate of the passage of the Civil Rights Act of 1871. 403

U.S. at 103, n. 9. Plaintiffs, in their brief, also direct the

Court’s attention to that portion of the debate. Asked

whether the section dealing with conspiracy to obstruct

justice [now codified as § 1985(2)] was intended to em-

brace the states, Senator Edmunds replied:

“Certainly, referring to the ‘equal and impartial

course of justice’ mentioned in the second section

of the third page. This obstruction of the equal

and impartial course of justice, however, must,

under the provisions of this bill, go so far as to

deny and withhold from citizens of the United

States that equality of protection in seeking

justice which the Constitution of the United

States gives them. We do not undertake in this

bill to interfere with what might be called a

private conspiracy growing out of a

neighborhood feud of one man or set of men

against another to prevent one getting an indict-

ment in the State courts against men for burning

down his barn; but, if in a case like this, it should

appear that this conspiracy was formed against

this man because he was a Democrat, if you

please, or because he was a Catholic, or because

*Senator Edmunds was a Republican from Maine.

lid

he was a Methodist, . . . then this section could

reach it.” [Cong. Globe, 42d Congress, Ist Sess.

567 (1871) (remarks of Senator Edmunds).]

Certainly, it is clear that the 1871 Congress did consider

the possibility that § 1985 would be applied in general to

classes of citizens other than racial groups and in par-

ticular to religious groups. Since Griffin, federal courts

have not hesitated in extending the protection of § 1985(3)

to religious groups. See Marlowe v. Fisher Body, 489 F.2d

1057 (6th Cir. 1973) (employment discrimination against a

member of the Jewish faith); Action v. Gannon, 450 F.2d

1227 (8th Cir. 1971) (disruption of religious services at a

predominently white Catholic parish). Similarly, several

federal courts have found allegations of sex discrimination

to be actionable class-based bias under § 1985(3). See

Reichert v. Payne, 396 F.Supp. 1010 (N.D. Cal. 1975);

Pendrell v. Chatham College, 370 F. Supp. 494 (W.D. Pa.

1974); Stern v. Massachusetts Indemnity & Life Ins. Co.,

365 F. Supp. 433 (E.D. Pa. 1973). But, c.f., Cohen v. Il-

linois Institute of Technology, 524 F.2d 818 (7th Cir.

1975), cert. denied, 425 U.S. 943 (1976).

On the other hand, most courts have not perceived

class-based animus for purposes of § 1985(3) in cases in-

volving allegations of classes that were not readily

recognizable or that tended to be defined by one particular

activity or by plaintiff’s individual situation and that were

not traditionally among those groups protected by the civil

rights laws. See Bova v. Pipefitters & Plumbers Local 60,

AFL-CIO, 554 F.2d 226 (Sth Cir. 1977) (non-union

employee); McLellan v. Mississippi Power & Light Co.,

545 F.2d 919 (Sth Cir. 1977) (en banc) (bankrupts);

Bricker v. Crane, 468 F.2d 1228 (1st Cir. 1972) (physicians

who had testified in malpractice cases), cert. denied, 410

U.S. 930 (1973); sacobson v. Industrial Foundation of the

12d

Permian Basin, 456 F.2d 258 (Sth Cir. 1972) (persons filing

workman’s compensation claims); Western Telecasters,

Inc. v. California Federation of Labor, AFL-CIO, 415 F.

Supp. 30 (S.D. Cal. 1976) (employees of a “non-union”

employer entity); Taylor v. Nichols, 409 F. Supp. 936

(D.Kan. 1976) (policemen), aff'd. on other grounds, 558

F.2d 561 (10th Cir. 1977); Smith v. Armstrong, 396 F.

Supp. 753 (N.D. Tex. 1975) (persons whose families have

been disrupted by a particular religious cult), aff'd.

without opinion, 524 F.2d 1231 (Sth Cir. 1975);

Furumoto v. Lyman, 362 F. Supp. 1267, 1286 (N.D. Ca.

1973) (non-white opponents of racism and disrupters of

university operations for social or political reasons). But

see, e.g., Glasson v. City of Louisville, 518 F.2d 899, 912

(6th Cir. 1975) (persons displaying posters or signs critical

of President Nixon during a motorcade), cert. den., 423

U.S. 930 (1975); Cameron v. Brock, 473 F.2d 608 (6th Cir.

1973) (supporters of an incumbent sheriff's election oppo-

nent); Azar v. Conley, 4546 F.2d 1382 (6th Cir. 1972)

(members of a white middle class family harassed by

police);’ Brown v. Villanova University, 378 F. Supp.

342 (E.D.Pa. 1974) (students exercising their First Amend-

ment rights);* Franceschina v. Morgan, 346 F. Supp. 833

(persons engaged in First Amendment activities at migrant

labor camp).°

7All three of the cases cited from the Sixth Circuit included a com-

ponent of state action, and Glasson and Azar contained claims held

actionable under 42 U.S.C. § 1983.

*The Court held there was a substantial probability plaintiffs would

prevail on the merits and therefore granted a preliminary injunction.

*The Franceschina opinion suggests but does not determine the

presence of state action.

13d

In the context of the first count’s allegation of a class-

based animus directed against union organizers employed

at the Cimarron facility, a case of particular interest is Ar-

nold v. Tiffany, 359 F. Supp. 1034 (C.D. Cal. 1973).

There, plaintiffs who were attempting to form and main-

tain an association of independent newspaper dealers,

brought an action under § 1985(3) against the publisher,

seven of its employees, and a dealer. The animus was

alleged to have been directed against the class of

newspaper dealers who had independent contracts with the

newspaper. The Court dismissed the complaint for failure

to state a claim upon which relief could be granted, and

provided the following rationale:

“A close reading of Griffin leads this Court to

conclude that the words ‘class-based, invidiously

discriminatory animus’ refer, at most, to that

kind of irrational and odious class discrimination

akin to racial bias — such as discrimination based

on national origin or religion. The complaint

alleges no such discrimination.

“Furthermore, for this Court to conclude that

§ 1985(3) was intended to embrace the class

alleged here — a newspaper dealers’ trade asocia-

tion — would, in effect, amount to treating that

section as a general federal tort law.” [Id. at

1036.]

On appeal, the Ninth Circuit upheld the trial court’s

dismissal on the basis that the appellants were injured

because of their activities in attempting to maintain a

dealer association and not because they were members of

the class alleged, i.e., newspaper dealers. The Court of

Appeals therefore found it unnecessary to reach the

“class” question on which the district court based its deci-

14d

sion. Arnold v. Tiffany, 487 F.2d 216, 218 (9th Cir. 1973),

cert. denid, 415 U.S. 984 (1974).'°

With respect to the second count’s allegation of a class-

based animus directed against employees of the Cimarron

facility who had filed complaints against their employer

under the Atomic Energy Act, a case of interest is Hughes

v. Ranger Fuel Corp., 467 F.2d 6 (4th Cir. 1972). Plain-

tiffs were engaged in efforts to “turn in” violators of the

1899 Refuse Act and alleged that they had been assaulted

while they endeavored to photograph the pollution of a

river by defendants. The district court had dismissed the

case without an opinion, and the Fourth Circuit affirmed

on the basis that plaintiffs had failed to allege class-based

motivation on the part of the defendants as required in a

§ 1985(3) claim. Judge Russell states:

'© Judge Tuttle of the Fifth Circuit, sitting by designation, continues

in Arnold with the following comments:

“The element (4b) necessary for a cause of action under

Griffin requires the appellants to be ‘deprived of having

and exercising any right or privilege of a citizen of the

United States.’ [403 U.S. at 103, 91 S.Ct. at 1799.] The ap-

pellants assert a deprivation of their first amendment right

of association. Since the first amendment has not been

held to be a restraint on private conduct, only on state ac-

tion, the appellants suggest two novel arguments for sus-

taining their right. First, the appellants would argue that

the elimination of the state action requirement by Griffin

extends the right of association under the first amendment

as a bar against private interference as well as state action

in Section 1985(3) suits. Second, appellants assert that the

right of association is one of that bundle of rights held by

all persons who are national citizens. Since we have affirm-

ed the district court’s decision on the class-based animus

limitation, it is unnecessary class-based animus limitation,

it is unnecessary for us to reach these issues or the question

of the constitutional power of Congress to enact such a

statute.” [Footnotes omitted.] [Id. at 219.]

15d

“The action of the defendants was directed at the

plaintiffs because they were engaged in attempt-

ing to photograph them (the defendants) and

their activities on that particular occasion, not

because of any animus against them as members

of some class or race. There is no averment in the

complaint that the defendants attacked the plain-

tiffs because the latter were environ-

mentalists . . .; the allegations of the complaint

are specific that the assault was sparked solely by

the instant reaction of the defendants to the fact

that the plaintiffs were seeking to photograph the

defendants, clearly for the purpose of pro-

secuting them under the Refuse Act. Theirs was a

purely spontaneous act, not alleged to be a part

of any general pattern of discriminatory action

directd to any class, as was the situation in Ac-

tion v. Gannon [450 F.2d 1227 (8th Cir. 1971.)”

{Id. at 10.]

Plaintiffs concede that both classes alleged are narrowly

defined and tied to the particular circumstances of the

claimed conspiracy. In Bricker, the plaintiff was denied

leave by the district court to amend his complaint to state

that he was a member of a class of physicians that had

been discriminated against because of their testimony in

malpractice cases. Judge McEntee observed:

“While the court denied his motion for leave to

amend, this additional allegation would not, in

any event, suffice to state a cause of action under

§ 1985(3). We recognize, of course, that we are

generally required to treat the allegations of a

complaint as true for purposes of a motion to

dismiss. In the instant case, however, appelllant

has done no more than flatly assert his member-

16d

ship in a novel class which is neither readily

recognizable nor among those traditionally pro-

tected by the Civil Rights Act. He has alleged no

facts supporting the existence of such a class and

admitted at oral argument that he might be the

only class-member in New Hampshire. Under

these circumstances, we hold that appellant has

not sufficiently alleged class-based discrimina-

tion to state a cause of action under § 1985(3).

See Jacobson v. Industrial Foundation of Per-

mian Basin, supra.” [Id. at 1232-1233.]

Having fully considered the authorities set forth above

as well as others recited by counsel in their briefs and

arguments, this Court finds itself in agreement with the

numerous courts who have rejected claims of class-based

animus allegedly directed toward groups which did not

tend to exist prior to the occurrence of the events set forth

in the complaint and which tend to be defined by one par-

ticular activity or by plaintiff's individual situation. While

animus directed against groups such as Jehovah's

Witnesses, persons of Japanese origin, or Democrats, may

provide the necessary motivation element, animus directed

against employees at the Cimarron facility who were

organizing a union or who had filed complaints against

their employer under the Atomic Energy Act, does not. If

the Court were to hold otherwise, § 1985(3) could become

applicable to all conspiratorial interferences with the

rights of others, as there are no bounds upon the ingenuity

of counsel in pleading novel and diverse classes to fit every

conceivable situation. Under the Supreme Court’s con-

struction of § 1985(3) in Griffin, this Court is constrained

to hold that Counts I and II of the complaint do not allege

an invidiously discriminatory animus and are therefore

not actionable under 42 U.S.C. § 1985(3).

17d

DEPRIVATION OF RIGHTS OR PRIVILEGES

Plaintiffs’ complaint does not allege that Karen

Silkwood was injured in her person or property by the

overt acts specified in the complaint, but does allege that

she was deprived of the equal protection of the laws and of

her privileges and immunities as a citizen. Defendants sug-

gest that since there is no component of state action alleg-

ed or suggested by the complaint, the interests of Karen

Siikwood which are alleged to have been infringed by the

overt acts do not fall within those protected by § 1985(3),

a portion of a law passed to assist in the enforcement of

the provisions of the Fourteenth Amendment. It is noted

that the commands of that amendment are addressed only

to the several states or to those acting under color of their

authority. Defendants further contend that the Thirteenth

Amendment-based, private conspiracy theory of recovery,

permitted by the Supreme Court in Griffin is not available

to plaintiffs, as it is not alleged that plaintiffs or Karen

Silkwood are Negro citizens, descendants of former

slaves, or that they have been the victims of racially

discriminatory private action.

There is a line of Seventh Circuit cases which strongly

support defendants’ contentions. In Dombrowski v. Dowl-

ing, 459 F.2d 190 (7th Cir. 1972), the Court rejected

§ 1985(3) claim brought by a white lawyer with a suc-

cessful criminal practice, who alleged that defendants had

conspired to deny him access to a private office building as

a tenant. The Court held that where there was no state in-

volvement in the discrimination, an arbitrary business

discrimination against lawyers engaged in the practice of

criminal law did not deprive plaintiff of the equal protec-

tion of the laws within the meaning of § 1985(3). Judge

(now Justice) Stevens stated:

18d

“The breadth of . . . [ § 1985(3)’s] coverage is yet

to be determined, but three categories of pro-

tected rights have been plainly identified. Griffin

gives express protection to a black citizen’s Thir-

teenth Amendment rights and to his federal right

to travel interstate; the title of the statute ex-

pressly identifics the third category, namely,

rights protected by the Fourteenth Amendment.

We think the § 1983 cases make it clear that in

this third category a ‘state involvement’ require-

ment must survive Griffin.

“Since plaintiff is white and claims no abridge-

ment of his constitutional right to travel, the

holding of Griffin does not control this case.”

(Footnotes omitted.) (Id. at 195.]

The case of Cohen v. Illinois Institute of Technology, |

524 F.2d 818 (7th Cir. 1975), cert. denied, 425 U.S. 943

(1976), involved a claim of sex discrimination and con-

spiracy brought by a former female faculty member at a

private university. The lower court’s dismissal of the

§§ 1983 and 1985(3) claims was affirmed on the grounds

that wit! respect to the § 1983 claim, the complaint failed

to sufficieniiy allege state action, and with respect to the

§ 1985(3) claim, the complaint failed to allege that the

conspiracy had deprived plaintiff of a federally protected

right. Judge (now Justice) Stevens made the following

observation concerning the § 1985(3) claim:

“Quite properly, Count II omits any allega-

tion that the individual defendants acted under

color of state law. For there is no statutory re-

quirement of State participation or support for

the conduct of the individual conspirators pro-

scribed by § 1985(3). There is, however, a re-

19d

quirement that the conspiracy deprive the plain-

tiff of a federally protected right. That require-

ment would be satisfied if 1.1.T. were a State

university, or if the constitutional right of the

plaintiff at stake were one that is entitled to pro-

tection against anyone, rather than merely pro-

tection from impairment by a state.

“It is... well settled that the Fourteenth

Amendment is not a protection against purely

private interference and may be violated only by

the action of a state. See, e.g., Shelley v.

Kraemer, 334 U.S. 1, 92 L.Ed.2d 1161, 68 S.Ct.

836... The rationale of Dombrowski is con-

trolling here.

“We recognize, as plaintiff argues, that there is

language in Griffin which may indicate that the

statute will be construed to cover any invidiously

discriminatory private conspiracy, and that other

circuits, without careful consideration of the

issue, have stated that state action is never an ele-

ment of a § 1985(3) claim. We are satisfied,

however, that the distinction between the two

kinds of state involvement that may be relevant

in civil rights litigation — first, whether the

defendant has acted under colorof state law,

and, second, whether plaintiffs federal right is

merely assertable against the State — requires

consideration of the state action in cases bottom-

ed on an alleged violation of the Fourteenth

“We have no doubt that discrimination which is

invidious because of racial motivation would be

20d

covered since the protection of the Thirteenth

Amendment is not merely against state action.

But since the Court in Griffin so carefully

refrained from holding that any discrimination

which would be actionable if practiced by the

State is for that reason also actionable under

§ 1985(3), we remain convinced that our reason-

ing in Dombrowski is a correct explanation of

why the statute does not broadly ‘apply to all tor-

tious, conspiratorial interferences with the rights

of others.” (Citation and footnotes omitted.) [Id.

at 828-829.]

The following year the Seventh Circuit heard the con-

solidated appeals in two § 1985(3) cases which had been

dismissed for failure to state claims upon which relief

could be granted. The cases involved a dismissed white

high school teacher who claimed that a conspiracy had

deprived him of his First Amendment rights to speak out

on behalf of blacks and women, and a non-striking

employee who had been assaulted in the course of an alleg-

ed conspiracy that deprived him of his right to freely

associate with non-union workers and the right to attend

and perform his job.

In Murphy v. Mount Carmel High School, 543 F.2d

1189 (7th Cir. 1976), the Court held that a § 1985(3) cause

of action for injury arising out of a purely private con-

spiracy to interfere with freedom of expression, without

state involvement, is not constitutionally supportable.

Chief Judge Fairchilc¢. staied:

“The guaranties of the First Amendment run on-

ly against the federal government, not private in-

terference. By incorporation into the due process

21d

clause of the Fourteenth Amendment, these

guaranties also run against the state... .

“Appellants assert, however, that section 5 of the

Fourteenth Amendment provides Congress with

the power to enact legislation to implement the

guaranties of this Amendment. Section. 1985(3);

they argue, was written to provide a cause of ac-

tion against private conspirators invading an in-

terest protected from state impairment by the

Fourteenth Amendment.

“Neither the legislative history of the Amend-

ment nor any holding of the Supreme Court sup-

ports this proposition.

“Faced with these precedents and inconclusive

legislative history, we do not find in section 5 the

constitutional authority which would permit

Congress to enact a right of action against

private parties, without any state involvement,

for infringement of interests which are protected

from state impairment by the Fourteenth

Amendment.” [Id. at 1193-1194.]

One other court of appeal has reached a similar conclu-

sion. In Bellamy v. Mason’s Stores, Inc.. 508 F.2d 504 (4th

Cir. 1974), the Fourth Circuit upheld the dismissal of a°

§ 1983(3) claim brought by a plaintiff who alleged that he

had been fired by the defendant private employer for his

membership in the Klu Klux Klan, and thus had been

deprived of his First Amendment right of free association.

Judge Craven offered the following analysis of the claim:

“Section 1985(3) creates civil liability against any

persons who conspire to deprive any other per-

son or class of persons of the ‘equal protection

22d

of the laws, or of equal privileges and immunities

under the laws.’ The language of the statute

tracks the language of the fourteenth amend-

ment, and we know that included within it is a

wholly private conspiracy to deny Negro citizens

the right of travel and rights based upon the thir-

teenth amendment. Griffin v. Breckenridge,

supra. But we think the language of equal protec-

tion chosen by the 1871 Congress cannot be in-

terpreted to mean that persons who conspire

without involvement of government to deny

another person the right of free association are

liable under this statute. This is so because the

right of association derive from the first amend-

ment — itself framed as a prohibition against the

federal government and not against private per-

sons, and because the incorporation doctrine has

never been extended by the Supreme Court to ap-

ply to private persons.” [Id. at 506-507.]

See also, Doski v. M. Goldseker Co., 539 F.2d 1326 (4th

Cir. 1976).

To the contrary, however, is the decision of the Eighth

Circuit in Action v. Gannon, supra. There, the Court

found jurisdiction under § 1985(3) to support the District

Court’s injunction against two organizations, the Black

Liberation Front and Action, and their members, pro-

hibiting them from continuing to disrupt the religious ser-

vices of a predominantly white Catholic parish. The Court

had no difficulty in concluding that the first section of the

Fourteenth Amendment protected the plaintiffs’ First

Amendment rights of freedom of assembly and worship.

Addressing the issue of whether those rights are protected

only against state action, Judge Heaney stated:

‘23d

“We think not. We believe that Congress was

given the power in § 5 of the Fourteenth Amend-

ment to enforce the rights guaranteed by the

Amendment against private conspiracies.

“We reach thi. conclusion with some trepidation

because a number of decisions of the Supreme

Court, during the Reconstruction period, are fre-

quently quoted as laying down the unqualified

rule that ‘if federal civil rights legislation is

directed at merely “private acts,”’ it must be de-

nounced as unauthorized by the Fourteenth

Amendment and hence unconstitutional unless

some alternative constitutional authority for it

can be established.

“Notwithstanding these early decisions, we feel

the 1966 decision of the United States Supreme

Court in United States v. Guest, 383 U.S. 745, 86

S.Ct. 1170, 16 L.Ed.2d 239, requires that we sus-

tain the exercise of constitutional power here.

We believe in doing so, we reach the result in-

tended by the sponsors of the Fourteenth

Amendment.

“While the Court in Griffin left the door open

for a reexamination of Guest, we do not believe

that it will reject the majority views expressed

therein.”

{Id. at 1235-1236.]

The Court’s research unveils no subsequent Court of

Appeals decision adopting the Eighth Circuit’s holding in

24d

Action.'' It was expressly considered and rejected by the

courts in Dombrowski, Bellamy, Cohen and Murphy,

supra. The Court is aware that a number of opinions have

expressed the view in dicta that state action is not essential

to aclaim under 42 U.S.C. § 1985(3) in light of Griffin. It

_ appears, however, ihat these statements were not made or

fully considered in the context of the narrower issue of

claims that assert as injury solely a deprivation of rights or

privileges of a United States citizen.'? It is clear after

Griffin that in actions for injury to persons or property,

state or federal action may not be a necessary element to a

§ 1985(3) claim. It is also clear, however, that in actions

for = deprivation of rights protected from infringement

solely by state or federal authorities, some state or federal

action that infringes plaintiffs’ rights or results in unequal

treatment may be necessary to state a claim.

With respect to United States v. Guest, supra, a case in-

volving 18 U.S.C. § 241, the criminal analogue to

§ 1985(3), Judge (now Justice) Stevens offered the follow-

ing analysis in Dombrowski, as follows:

“The Court sustained the indictment of private

citizens who had allegedly conspired to deny

Negro citizens their right to equal utilization of

public facilities operated by the State of Georgia.

It is a fair distillation of the four opinions filed in

that case to state that, although there was

'' The panel opinion in Westberry v. Gilman Paper Co., 507 F.2d

206 (Sth Cir. 1975), was ordered vacated and withdrawn prior to

rehearing en banc by the Fifth Circuit because it appeared that the

matters giving rise to the cause became moot. It is of no precedential

value.

'2See Taylor v. Nichols, 558 F.2d 561, 567 (10th Cir. 1977).

25d

disagreement within the Court on the question

whether defendants’ private conduct would have

been proscribed if there had been no cooperative

action by state officers, all members of the Court

recognized the need for state involvement in the

provision of facilities to which the victims of the

conspiracy were denied equal access. In short,

the right secured by the Equal Protection clause

of the Fourteenth Amendment is a right to pro-

tection against unequal treatment by a state.”

[Id. at 195-196.]

In Cohen, Judge (now Justice) Stevens offered this ad-

ditional observation regarding the application of Guest to

§ 1985(3):

“It is clear that a private conspiracy to cause the

plaintiff to receive unequal treatment from the

State or from a State agency, would violate

§ 1985(3).”

(524 F.2d at 828, n. 27.)

Plaintiffs contend that rights set forth in the First

Amendment are among the rights, privileges and im-

munities of citizens of the United States and argue that

they are no more dependent upon the Fourteenth Amend-

ment than is the right to travel interstate recognized in the

Griffin decision. The exercise of First Amendment rights

is said to be protected from federal retaliation by the First

and Fifth Amendments, from state retaliation by the

Fourteenth Amendment, and from retaliation by private

conspiracies by § 1985(3), enacted by Congress under its

“power to protect by appropriate legislation.” Thus, plain-

tiffs have argued in open court for a transposition of

§ 1985(3) into a cause of action for any private con-

spiratorial conduct that would also be actionable under

26d

§ 1983, if undertaken by state officers or agents. This

would render actionable virtually any private conduct that

impairs an individual’s speech, religious exercise or free

association. To follow plaintiffs’ proposition, however,

would be to moot the line of Supreme Court cases that

necessitate a finding of state action in § 1983 civil rights

claims. Under plaintiffs’ theory, these cases could be pro-

perly pleaded under § 1985(3), provided a conspiratorial

element is present. None of the authorities cited by plain-

tiffs, most of which are discussed above, can be said to

support this rather sweeping proposition. Even the opi-

nion of the Eighth Circuit in Action rested its conclusion

on the premise that Section 5 of the Fourteenth Amend-

ment had given the Congress the power to enforce the

right guaranteed by that amendment against private con-

spiracies.

Having thoroughly considered the authorities discussed

above, as well as others recited by counsel in their exten-

sive briefs and arguments, this Court finds the reasoning

of the Fourth and Seventh Circuits compelling as it relates

to the interests protected by § 1985(3). Aside from the

absence of constitutional support for the position ad-

vocated by plaintiffs, this Court is persuaded that every

controversy involving an alleged conspiratorial retaliation

against persons exercising First Amendment rights should

not sound a cause of action under § 1985(3). Under the

blueprint established by the Constitution, most private

tortious conduct is left to state regulation. To the extent

that private conduct in retaliation for the exercise of First

Amendment rights is not tortious, it is difficult to perceive

how the private conduct may be penalized without imping-

ing on the rights of the defendants. If changes need to be

made in the laws, they should be accomplished by

legislative means when constitutional authority exists for

such action, and not by judicial fiat.

27d

Thus, even if plaintiffs had alleged an invidiously

discriminatory animus, their complaint would fail to state

a complaint upon which relief can be granted because

there is alleged no component of state action.'*

BIVENS CLAIMS

On the face of the complaint it is not clear whether the

F.B.I. defendants are alleged to have entered into the

alleged conspiracy before or after the death of Karen

Silkwood, inasmuch as Counts I and II allege that they

joined the conspiracy “in November of 1974.” During oral

argument on the motions before the Court, Mr. Sheehan,

counsel for the plaintiffs, stipulated that the F.B.I. defen-

dants had no involvement in this case until after the death

of Karen Silkwood.

It is therefore apparent that the F.B.I. defendants could

not have violated the constitutional rights of Karen

Silkwood during her lifetime. Accordingly, the F.B.I.

defendats’ motion for summary judgment on the Bivens

'3The majority in Griffin held, with the sole reservation of Justice

Harlan, that the right to travel interstate is “among the rights and

privileges of national citizenship” and is “assertable against private as

well as governmental interference.” Griffin, at 105-106. That right is

therefore within the “power of Congress to protect by appropriate

legislation from private infringement. Id. at 106. Plaintiffs here do

not allege, nor have they claimed or argued that any over? act deprived

Karen Silkwood of her right to travel interstate. See e.g. Baer v. Baer,

450 F. Supp. 481, 492 (N.D. Cal. 1978). Plaintiffs’ attempt to argue

that all First and Fourth Amendment rights are similarly “assertable

against private as well as governmental interference,” however

desirable, is unfounded on the law and unpersuasive. As noted above,

this interpretation would render virtually every tortious act an infrac-

tion of constitutional dimensions. This Court is bound to follow the

Constitution as presently written and interpreted. It is not free to write

a new Bill of Rights, notwithstanding plaintiffs’ invitation.

28d

aspect of plaintiffs’ complaint should be granted. See Roe

v. Wade, 410 U.S. 113, 35 L.Ed.2d 147, 93 S.Ct. 705

(1975).

TERMINATION OF THE CONSPIRACIES

As a corollary matter, the F.B.I. defendants maintain

that they are entitled to summary judgment as to Counts I

and II of the complaint because any conspiracy alleged

under § 1985(3) would have terminated at the death of

Karen Silkwood as a matter of law. it is argued that a civil

conspiracy cannot exist without an overt act which causes

injury to plaintiff and that the conspiracy therefore ter-

minated when Karen Silkwood could no longer be injured

by any act of the defendants. No authority is cited for this

proposition.

Plaintiffs respond that § 1985(3) makes all conspirators

liable for civil damages resulting from the overt acts of any

co-conspirator which have injured the plaintiff. It is clear

that the statute makes no exceptions for conspirators who

did not personally commit any overt act or who joined the

conspiracy after the occurrence of the overt acts which in-

jured plaintiff. Plaintiffs stress that they are not seeking

damages for anything but the alleged overt acts which in-

jured Karen Silkwood during her lifetime. It is also clear

that conspiracy liability has been held to extend to persons

who participated only in the concealment of the overt acts

where it can be shown that they had full knowledge of the

conspiracy and its unlawful purpose. See Hudspeth v.

McDonald, 120 F.2d 962 (10th Cir. 1941).

The Court is unpersuaded by the F.B.I. defendants’

arguments that a § 1985(3) conspiracy is different from a

criminal conspiracy in that it must terminate as a matter of

law upon the death of the plaintiff. Where a conspiracy

29d

contemplates a continuity of purpose and a continuation

of the performance of acts in furtherance of its express ob-

jectives, that single conspiracy continues in operation at

law until there is a showing that the conspiracy has ended.

See United States v. Ethridge, 424 F.2d 951 (6th Cir.

1970). Accordingly, the F.B.I. defendants’ motion for

summary judgment on the ground that it was impossible

as a matter of law for them to have adopted the objectives

of the conspiracy should be denied.

CONCLUSION

The motion of the F.B.I. defendants for summary judg-

ment on the Bivens aspect of the plaintiffs’ complaint is

hereby granted. The motion of the F.B.I. defendants for

summary judgment on Counts I and II is hereby denied.

Counts I and II of the plaintiffs’ complaint are hereby

dismissed as to all defendants for failure to state a claim

upon which relief can be granted. Plaintiffs’ pending mo-

tions relating to discovery under Counts I and II are

rendered moot.

IT IS SO ORDERED at Wichita, Kansas, this 22nd day

of September, 1978.

APPENDIX E

THE PETITIONERS’ COMPLAINT BELOW

APPENDIX E

THE PETITIONER’S COMPLAINT BELOW

COMPLAINT

Nov. 5, 1976

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

KAREN G. SILKWOOD, by the Administrator

of her estate, William M. Silkwood; and

Beverly K. Meadows; Michael E. Meadows;

and Dawn E. Meadows, the infant heirs of

Karen G. Silkwood by their Guardian,

William E. Meadows;

CIVIL COMPLAINT

No.

inti 16-0888-E

Plaintiffs, Oe

Vv.

THE KERR-McGEE CORPORATION; DEAN A.

McGEE; JAMES J. KELLY; PETER COLEFAX; EARL

M. JORGENSEN; EDWIN L. KENNEDY; BREENE M.

KERR; ROBERT S. KERR, JR.; F.C. LOVE; GEORGE

B. PARKS; J.B. SAUNDERS; A.P.F. SEALE; JAMES

E. WEBB; R.T. ZITTING; PARKER S. DUNN;

WAYNE NORWOOD; RONALD ADKISSON; ROY E.

KING; G.T. SINKE; J. MARLER; G. FRANCE; JAMES

READING; FRED WELCH; W.C. GENTRY;

(LAWRENCE OLSON; THEODORE ROSACK; JAC-

QUE SROUJI; AND ONE NAMED BUT UNIDEN-

TIFIED AGENT OF THE FEDERAL BUREAU OF IN-

VESTIGATION,)

Defendants.

fe X

State of Oklahoma _)

County of Oklahoma)

Comes now the complainant and alleges as follows;

Jurisdictional Statement

1. This is an action seeking legal recovery for the legal,

physical, mental and property damage inflicted by the

named defendants upon the plaintiff-decedent Karen G.

Silkwood for the benefit of her estate and for the benefit

of her three infant heirs. The injuries complained of

herein are of two categories. The first category of injuries

were inflicted by all of the individually-named defendants

named herein by their willful actions undertaken pursuant

to an illegal conspiracy designed and intended to deprive

the plaintiff-decedent and other persons employed at the

Kerr-McGee Nuclear Corporation’s facility in Cimarron,

Oklahoma, who were endeavoring to organize a legal

union to improve working conditions at that facility or

who had reported violations of the Atomic Energy Act to

government authorities of the equal protection of the laws

in violation of the laws of the United States and to illegally

conceal this wrongdoing from those entitled to legal

damages for this wrongdoing. The second category of in-

juries complained of were inflicted upon Karen Silkwood

by the willful and wanton negligence of the defendant

Kerr-McGee Corporation which was responsible for the

safeguarding of special nuclear materials given over to this

defendant by the United States government when these

materials contaminated the plaintiff-decedent in her home

and resulted in physical damages and mental anguish as

well as physical damage to her property.

2. Jurisdiction is conferred on this court by Title 42

U.S.C. Section 1985(3); 28 U.S.C. § 1343 by the First,

Fourth, Fifth and Ninth Amendments to the United States

Constitution; and by the pendant jurisdiction conferred

upon this court by Title 28 U.S.C. Section 1331 et. seq.

over the personal injury and property damage state cause

of action which arises under Title 25, Sections 1 et. seq.

Title 12, Sections 1041, et. seq. and Title 25, Sections | et.

seq. of the Oklahoma Statutes Annotated which is

predicated upon the same basic facts as underly the federal

cause of action.

Parties to this Action

The Plaintiffs

Plaintiff # 1 — Karen G. Silkwood,

by the Administrator of her estate

3. Karen G. Silkwood, deceased, was a citizen of the

State of Oklahoma and a citizen of the United States,

who, from the date of August 3, 1972, to November 13,

1974, was an employee of the defendant Kerr-McGee Cor-

poration employed at its Cimarron, Oklahoma facility

located within the western District of Oklahoma and an

active member of the Oil, Chemical and Atomic Workers

International Union.

4. In this action, she is represented by her natural

father, William M. Silkwood, a resident of the State of

Texas, domiciled at 317 21st Street, Nederland, Texas,

who was appointed as the Administrator of her estate on

March 15, 1976, by Judge W.C. Kessler, Associate District

Judge of the District Court of Oklahoma County,

Oklahoma.

Plaintiffs #2, #3, and #4

5. Beverly Kristian Meadows; Michael Earl Meadows

and Dawn Elaine Meadows, ages 9, 6 and 5 respectively

are the three infant heirs of the plaintiff-deceased Karen

G. Silkwood. They reside at Box 146 in Addington,

Oklahoma, with their natural father.

6. In this action, the infant plaintiffs are represented by

their natural father and guardian William E. Meadows of

Box 146, Addington, Oklahoma.

The Defendants

Defendant #1 — The Kerr-McGee Corporation

7. The Kerr-McGee Corporation is a business corpora-

tion licensed to do business in the State of Oklahoma, with

business offices and facilities located in Crescent and

Oklahoma City, at the Kerr-McGee Center, 123 Robert S.

Kerr Avenue, Oklahoma city, Oklahoma. This corpora-

tion is named as a party-defendant only in the negligence

cause of action set forth herein.

Defendant #2 — Dean A. McGee

8. Dean A. McGee, residing at P.O. Box 25861, c/o

Kerr-McGce Corporation, 123 Robert S. Kerr Avenue,

Oklahoma City, Oklahoma, is the Chairman of the Board

of Directors of the Kerr-McGee Corporation. He is sued

herein, however, solely in his personal capacity — as an

active member in the devising and execution of the illegal

conspiracy to deprive the plaintiff Karen Silkwood and

other workers at the Cimarron facility of the equal protec-

tion of the law and to conceal this wrongdoing from those

entitled to legal damages for this wrongdoing by acts other

than those in the normal course of his corporate duties.

Defendant # 3 — James J. Kelly

9. James J. Kelly, residing at P.O. Box 25861, c/o

Kerr-McGee Corporation, 123 Robert S. Kerr Ave.,

Oklahoma City, Okla. is the President of the Board of

Directors of the Kerr-McGee Corporation. He is sued

herein, however, solely in his personal capacity — as an

active member in the devising and execution of the illegal

conspiracy to deprive the plaintiff Karen Silkwood and

other workers at the Cimarron facility of the equal protec-

tion of the law and to conceal this wrongdoing from those

entitled to legal damages for this wrongdoing by acts other

than those in the normal course of his corporate duties.

Defendant # 4 — Peter Colefax

10. Peter Colefax, residing at 1636 Moore Road,

Montecito, Calif. 93108, was during 1974 and 1975, an ac-

tive member in the devising and execution of the illegal

conspiracy to deprive the plaintiff Karen Silkwood and

other workers at the Cimarron facility of the equal protec-

tion of the law and to conceal this wrongdoing from those

entitled to legal damages for this wrongdoing by acts other

than those in the normal course of his corporate duties.

Defendant #5 — Earl M. Jorgensen

11. Earl M. Jorgensen, residing at 10650 South

Alameda Blvd., Los Angeles, Calif. 90054, was during

1974 and 1975, an active member of the Board of Direc-

tors of the Kerr-McGee Corporation. He is sued herein,

however, solely in his personal capacity — as an active

member in the devising and execution of the illegal con-

spiracy to deprive the plaintiff Karen Silkwood and other

workers at the Cimarron facility of the equal protection of

the law and to conceal this wrongdoing from those entitled

to legal damages for this wrongdoing by acts other than

those in the normal course of his corporate duties.

Defendant #6 — Edwin L. Kennedy

12. Edwin L. Kennedy, residing at c/o Lehman

Brothers, One William Street, New York City, New York

10004, was, during 1974 and 1975, an active member of

the Board of Directors of the Kerr-McGee Corporation.

He is sued herein, however, solely in his personal capacity

— as an active member in the devising and execution of

the illegal conspiracy to deprive the plaintiff Karen

Silkwood and other workers at the Cimarron facility of

the equal protection of the law and to conceal this wrong-

doing from those entitled to legal damages for this wrong-

_ doing by acts other than those in the normal course of his

corporate duties.

Defendant #7 — Breene M. Kerr

13. Breene M. Kerr, residing at Howell-Kerr Enter-

prises, 1000 City National Bank Tower, Oklahoma City,

Okla. 73102, was, during 1974 and 1975, an active

member of the Board of Directors of the Kerr-McGee Cor-

poration. He is sued herein, however, solely in his per-

sonal capacity — as an active member in the devising and

execution of the illegal conspiracy to deprive the plaintiff

Karen Silkwood and other workers at the Cimarron facili-

ty of the equal protection of the law and to conceal this

wrongdoing from those entitled to legal damages for this

wrongdoing by acts other than those in the normal course

of his corporate duties.

Defendant #8 — Robert S. Kerr, Jr.

14. Robert S. Kerr, Jr., residing at Kerr-Davis Lawfirm

600 Fidelity Plaza, Oklahoma City, Okla. 73102, was,

during 1974 and 1975, an active member of the Board of

Directors of the Kerr-McGee Corporation. He is sued

herein, however, solely in his personal capacity — as an

active member in the devising and execution of the illegal

conspiracy to deprive the plaintiff Karen Silkwood and

other workers at the Cimarron facility of the equal protec-

tion of the law and to conceal this wrongdoing from those

entitled to legal damages for this wrongdoing by acts other

than those in the normal course of his corporate duties.

Defendant #9 — F.C. Love

15. F.C. Love, residing at P.O. Box 25861, c/o Kerr-

McGee Corporation, Kerr-McGee Center, 123 Robert S.

Kerr Ave., Oklahoma City, Okla, was during 1974 and

1975, an active member of the Board of Directors of the

Kerr-McGee Corporation. He is sued herein, however,

solely in his personal capacity — as an active member in

the devising and execution of the illegal conspiracy to

deprive the plaintiff Karen Silkwood and other workers at

the Cimarron facility of the equal protection of the law

and to conceal this wrongdoing from those entitled to legal

damages for this wrongdoing by acts other than those in

the normal course of his corporate duties.

Defendant #10 — George B. Parks

16. George B. Parks, residing at P.O. Box 25861, c/o

Kerr-McGee Corp., Kerr-McGee Center, 123 Robert S.

Kerr Ave., Oklehoma City, Okla. was, during 1974 and

1975, an active member of the Board of Directors of the

Kerr-McGee Corporation. He is sued herein, however,

solely in his personal capacity — as an active member in

the devising and execution of the illegal conspiracy to

deprive the plaintiff Karen Silkwood and other workers at

the Cimarron facility of the equal protection of the law

and to conceal this wrongdoing from those entitled to legal

damages for this wrongdoing by acts other than those in

the normal course of his corporate duties.

Defendant #11 — J.B. Saunders

17. J.B. Saunders, residing at Bank of the Southwest

Bidg., Houston, Texas 77001, was, during 1974 and 1975,

an active member of the Board of Directors of the Kerr-

McGee Corporation. He is sued herein, however, solely in

his personal capacity — as an active member in the devis-

ing and execution of the illegal conspiracy to deprive the

plaintiff Karen Silkwood and other workers at the Cimar-

ron facility of the equal protection of the law and to con-

ceal this wrongdoing from those entitled to legal damages

for this wrongdoing by acts other than those in the course

of his corporate duties.

Defendant #12 — A.P.F. Seale

18. A.P.F. Seale, residing at P.O. Box 25861, c/o Kerr-

McGee Corp., Kerr-McGee Center 123 Robert S. Kerr

Ave., Oklahoma City, Okla., was, during 1974 and 1975,

an active member of the Board of Directors of the Kerr-

McGee Corporation. He is sued herein, however, solely in

his personal capacity — as an active member in the devis-

ing and execution of the illegal conspiracy to deprive the

plaintiff Karen Silkwood and other workers at the Cimar-

ron facility of the equal protection of the law and to con-

ceal this wrongdoing from those entitled to legal damages

for this wrongdoing by acts other than those in the normal

course of his corporate duties.

Defendant #13 — James E. Webb

19. James E. Webb, residing at 1707 H Street, N.W.,

Suite 207, Washington, D.C. 20006, was, during 1974 and

1975, an active member of the Board of Directors of the

Kerr-McGee Corporation. He is sued herein, however,

solely in his personal capacity — as an active member in

the devising and execution of the illegal conspiracy to

deprive the plaintiff Karen Silkwood and other workers at

the Cimarron facility of the equal protection of the law

and to conceal this wrongdoing from those entitled to legal

damages for this wrongdoing by acts other than those in-

the normal course of his corporate duties.

Defendant #14 — R.T. Zitting

20. R.T. Zitting, residing at 2404 Old Farm Road [E.],

Oklahoma City, Okla., was the President of Kerr-McGee

Corporation’s Cimarron nuclear power subsidiary’s

plutonium division during 1974 and 1975. He is sued

herein, however, solely in his personal capacity — as an

active member in the devising and execution of the illegal

conspiracy to deprive the plaintiff Karen Silkwood and

other workers at Kerr-McGee’s Cimarron facility of the

equal protection of the law and to conceal this wrongdoing

from those entitled to legal damages for this wrongdoing

by acts other than those in the normal course of his cor-

porate duties.

Defendant #15 Parker S. Dunn

21. Parker S. Dunn, residing at 3332 Quail Creek

Road, Oklahoma City, Okla., was during 1974 and 1975,

the Vice President of Kerr-McGee Corporation’s Cimar-

ron nuclear power subsidiary’s plutonium division. He is

sued, herein, however, solely in his personal capacity — as

an active member in the devising and execution of the il-

legal conspiracy to deprive the plaintiff Karen Silkwood

and other workers at thes Cimarron facility of the equal

protection of the law and to conceal this wrongdoing from

those entitled to legal damages for this wrongdoing by acts

other than those in the normal course of his corporate

duties.

Defendant #16 — Wayne Norwood

22. Wayne Norwood, residing at 420 Findlay Street [n],

Norman, Okla., was, during 1974 and 1975, the Manager

of Health and Safety for Kerr-McGee Corporation’s

Cimarron nuclear power subsidiary during 1974 and 1975.

He is sued, herein, however, solely in his personal capacity

10e

— as an active member in the devising and execution of

the illegal conspiracy to deprive the plaintiff Karen

Silkwood and other workers at the Cimarron facility of

the equal protection of the law and to conceal this wrong-

doing from those entitled to legal damages for this wrong-

doing by acts other than those in the normal course of his

corporate duties.

Defendant #17 — Ronald Adkisson

23. Ronald Adkisson, residing at 7008 Lyrewood Lane,

Apt. 205, Oklahoma City, Okla., was, during 1974 and

1975, the Superintendant of Safety and Security at Kerr-

McGee Corporation’s Cimarron nuclear power subsidiary.

He is sued, herein, however, solely in his personal capacity

— as an active member in the devising and execution of

the illegal conspiracy to deprive the plaintiff Karen

Silkwood and other workers at the Cimarron facility of

the equal protection of the law and to conceal this wrong-

doing from those entitled to legal damages for this wrong-

doing by acts other than those in the normal course of his

corporate duties.

Defendant #18 — Roy E. King

24. Roy E. King, residing at 12322 Trail Oaks,

Oklahoma City, Okla., was“during 1974 and 1975, the

Director of Personnel at Kerr-McGee Corporation’s

Cimarron nuclear power subsidiary. He is sued herein,

however, solely in his personal capacity — as an active

member in the devising and execution of the illegal con-

spiracy to deprive the plaintiff Karen Silkwood and other

workers at the Cimarron facility of the equal protection of

the law and to conceal this wrongdoing from those entitled

to legal damages for this wrongdoing by acts other than

those in the normal course of his corporate duties.

lle

Defendant #19 — G.T. Sinke

25. G.T. Sinke, residing at 9513 Lakeshore Drive, The

Village-Oklahoma City, Okla., was, during 1974 and

1975, the Coordinator of Health and Safety at Kerr-

McGee’s Cimarron nuclear power subsidiary. He is sued

herein, however, solely in his personal capacity — as an

active member in the devising and execution of the illegal

conspiracy to deprive the plaintiff Karen Silkwood and

other workers at the Cimarron facility of the equal protec-

tion of the law and to conceal this wrongdoing from those

entitled to legal damages for this wrongdoing by acts other

than those in the normal course of his corporate duties.

Defendant #20 — J. Marler

26. J. Marler, residing at 2517 Northwest 114th Ter-

race, Oklahoma City, Okla., was, during 1974 and 1975,

the Manager of the plutonium plant of Kerr-McGee Cor-

poration’s Cimarron nuclear power subsidiary. He is sued

herein, however, solely in his personal capacity — as an

active member in the devising and execution of the illegal

conspiracy to deprive the plaintiff Karen Silkwood and

other workers at the Cimarron facility of the equal protec-

tion of the law and to conceal this wrongdoing from those

entitled to legal damages for this wrongdoing by acts other

than those in the normal course of his corporate duties.

Defendant #21 — G. France

27. G. France, residing at 3502 North Maxwell Drive,

Oklahoma City, Okla., was, during 1974 and 1975, the

License and Safety Officer of Kerr-McGee Corporation’s

Cimarron nuclear power subsidiary. He is sued herein,

however, solely in his personal capacity — as an active

member in the devising and execution of the illegal con-

spiracy to deprive the plaintiff Karen Silkwood and other

12e

workers at the Cimarron facility of the equal protection of

the law and to conceal this wrongdoing from those entitled

to legal damages for this wrongdoing by acts other than

those in the normal course of his corporate duties.

Defendant #22 — James Reading

28. James Reading, residing at P.O. Box 25861, c/o

Kerr-McGee Corp., Kerr-McGee Center, 123 Robert S.

Kerr Ave., Oklahoma City, Okla. was, during 1974 and

1975, the Director of Security at Kerr-McGee Corpora-

tion’s Cimarron nuclear power subisidary. He is sued

herein, however, solely in his personal capacity — as an

active member in the devising and execution of the illegal

conspiracy to deprive the plaintiff Karen Silkwood and

other workers at this Cimarron facility of the equal pro-

tection of the law and to conceal this wrongdoing from

those entitled to legal damages for this wrongdoing by acts

other than those in the normal course of his corporate

duties.

Defendant #23 — Fred Welch

29. Fred Welch, residing at P.O. Box 25861, c/o Kerr-

McGee Corp., Kerr-McGee Center, 123 R.S. Kerr Ave.,

Oklahoma City, Okla. was, during 1974 and 1975, the

Assistant Director of Security at Kerr-McGee Corpora-

tion’s Cimarron nuclear power subsidiary. He is sued

herein, however, solely in his personal capacity — as an

active member in the devising and execution of the illegal

conspiracy to deprive the plaintiff Karen Silkwoed and

other workers at the Cimarron facility of the equal protec-

tion of the law and to conceal this wrongdoing from those

entitled to legal damages for this wrongdoing by acts other

than those in the normal course of his corporate duties.

13e

Defendant #24 — Weldon C. Gentry

30. Weldon C. “Spot” Gentry, residing at 330 Nor-

theast 60th Street, Oklahoma City, Oklahoma, was during

1974 and 1975, a “Special Security Consultant” for Kerr-

McGee Corporation’s Cimarron nuclear power subsidiary.

He sued herein, however, solely in his personal capacity —

as an active member in the devising and execution of the il-

legal conspiracy to deprive the plaintiff Karen Silkwood

and other workers at the Cimarron facility of the equal

protection of the law and to conceal this wrongdoing from

those entitled to legal damages for this wrongdoing by acts

other than those in the normal course of his corporate

duties.

Defendant #25 — Lawrence Olson

31. Lawrence Olson, residing at 1332 Southwest 74th

Street, Apartment 21, Oklahoma City, Oklahoma, was

during 1974 and 1975, the special field agent of the Federal

Bureau of Investigation assigned to enforce all federal

laws violated in conjunction with the operation of Kerr-

McGee Corporation’s Cimarron nuclear power subsidiary

and the field agent assigned to investigate the radioactive

contamination and death of the plaintiff Karen Silkwood.

He is sued herein, in his personal as well as his official

capacity — as an active participant of the illegal activities

of the defendants named herein from those who had a

right to legal damages for these wrongdoings by acts other

than those in the normal course of his Fed. Bur. of In-

vestigation duties.

Defendant #26 — Theodore Rosack

32. Theodore Rosack, residing at c/o The Federal

Bureau of Investigation, The Federal Bldg., 1961 Stout

St., Denver, Colorado, was during 1974 and part of 1975,

l4e

the Special Agent-In-Charge of the Oklahoma City,

Oklahoma, office of the Federal Bureau of Investigation

assigned the legal responsibility for enforcing all federal

laws violated in conjunction with the operation of Kerr-

McGee’s Corporation’s Cimarron nuclear power sub-

sidiary, and the field office in charge of investigating the

radioactive contamination and death of the plaintiff

Karen Silkwood. He is sued herein, in his personal and in

his official capacity — as an active member of the illegal

conspiracy to conceal the illegal activities of the defen-

dants named herein from those who had a right to legal

damages for these wrongdoings by acts other than those in

the normal course of his F.B.I. duties.

Defendant #27 — Jacque Srouji

33. Jacque Srouji, residing at 5025 Hillsboro Road,

Apartment 4A, Nashville, Tennessee 37215, was, during

1975, an official informant of the Federal Bureau of In-

vestigation and an assistant to F.B.I. field agent Lawrence

Olson working on the investigation into the radioactive

contamination and death of the plaintiff Karen Silkwood.

She is sued herein, however, solely in her private and per-

sonal capacity — as an active member of the illegal con-

spiracy to conceal the illegal activities of the defendants

named herein from those who had a right to legal damages

for these wrongdoings by act other than those in the nor-

mal cours of her F.B.I. duties.

Defendant #28 — One Named but Unidentified

Agent of the Federal Bureau of Investigation

34, One named, but presently unidentified, agent of the

Federal Bureau of Investigation, officed in Washington,

D.C. during 1974 and 1975, whose residence is presently

unknown, is named as a defendant in this cause of action.

15e

This defendant was the Agent in the Washington office of

the F.B.I. who, knowing full well of the illegal activities of

the defendants named above, actively joined the con-

spiracy to conceal the acts of illegality of the other defen-

dants for the express purpose of depriving the plaintiff

Karen Silkwood of the equal protection of the laws under

which she was entitled to legal damages for the wrongdo-

ing of the defendants by acts other than those in the nor-

mal course of his Federal Bureau of Investigation duties.

Cause of Action #1

35. That on or about November 15, 1971, the defen-

dants, Dean A. McGee; James J. Kelly; Peter Colefax;

Earl M. Jorgensen; Edwin L. Kennedy; Breene M. Kerr;

Robert S. Kerr, Jr.; F.C. Love; George B. Parks; J.B.

Saunders; A.P.F. Seale; James E. Webb; R.T. Zitting;

Parker S. Dunn; Wayne Norwood; Ronald Adkisson; Roy

E. King; G.J. Sinke; J. Marler; G. French; James

Reading; Fred Welch and W.C. Gentry entered into a

knowingly illegal conspiracy the purpose of which was to

prevent the plaintiff Karen G. Silkwood and other persons

employed at Kerr-McGee Corporation’s Cimarron,

Oklahoma nuclear power facility who were endeavoring to

organize a lawful labor union to improve their working

standards, through force, violence, intimidation,

surveillance, harassment, wiretapping and other forms of

illegal conduct from seeking the equal protection of the

laws and from enjoying the equal rights, privileges and im-

munities of citizens under the laws of the United States

and the State of Oklahoma, including, but not limited to,

their rights to freedom of speech, freedom of association,

freedom of the press, freedom of movement and travel,

freedom of assembly, their right to petition their govern-

ment for the redress of their grievances; their right to be

l6e

secure in their persons, homes and effects and their right

not to be deprived of their lives or liberty other than by the

due process of law;

36. And, that from this date of November 15, 1972, up

until the time of the filing of this lawsuit, all of the above

named defendants actively and knowingly participated in

a further part of this same conspiracy to conceal all of the

illegal action undertaken pursuant to this conspiracy —

with defendants Lawrence Olson, Theodore Rosack, the

named but unidentified agent of the Federal Bureau of In-

vestigation joining this conspiracy in November of 1974

and defendant Jacque Srouji joining this conspiracy in

April of 1975.

37a. The defendants — with the exception of

defendants Olson, Rosack, the named but

unidentified agent of the Federal Bureau of In-

vestigation, and Srouji — did willfully and

knowingly finance, direct and supervise the for-

mulation and execution of a plan in accordance

with which the plaintiff Karen G. Silkwood and

other workers employed at Kerr-McGee Cor-

poration’s Cimarron facility who were active in

efforts to organize a lawful labor union were

placed under illegal surveillance, so as to compile

illegal dossiers on these people for the express

and intended purpose of depriving these citizens

of equal protection of the laws of the United

States and the laws of the State of Oklahoma en-

titling them freely to associate with one another

for legal purposes, and to remain free from il-

legal invasions of their right to privacy, rights ex-

pressly guaranteed to them by the First and

Sourth Amendments to the United States Con-

stitution;

17e

37b. The defendants — with the exception of

defendants Olson, Rosack, the named but

unidentified agent of the Federal Bureau of In-

vestigation and defendant Srouji — did wilfully

and knowingly finance, direct and supervise the

formulation and execution of a plan in accor-

dance with which persons at their direction sur-

reptitiously entered the homes, lockers and other

places with respect to which Karen Silkwood and

other workers at the Kerr-McGee Cimarron

facility who were actively involved in organizing

a lawful labor union had a reasonable expecta-

tion of privacy and there placed illegal listening

devices in these private places and illegal wiretaps

on the telephones being used by Karen Silkwood

and these other persons working at the Cimarron

facility who were actively involved in organizing

a lawful labor union for the express purpose of

depriving these citizens of the equal protection of

the laws of the United States and the laws of the

State of Oklahoma entitling them freely to

associate with one another for legal purposes,

and entitling them to the right of privacy, rights

expressly guaranteed to them by the First and

Fourth Amendments to the United States Con-

stitution;

37c. The defendants — with the exception of

defendants Olson, Rosack, the named but

unidentified agent of the Federal Bureau of In-

vestigation and defendant Srouji — did hire and

direct the illegal activities of an unknown

number of “operations agents” to the end that

said operations agents would do and, indeed, did

in fact:

18e

1. Place under illegal surveillance the plain-

tiff Karen Silkwood and other citizens employed

at the Kerr-McGee Corporation’s Cimarron

facility who were actively engaged in organizing

a lawful labor union to improve working condi-

tions at that facility;

2. Illegally enter the private domains under

the supervision of plaintiff Karen Silkwood and

othér citizens employed at Kerr-McGee Corpora-

tion’s Cimarron facility who were engaged in

organizing a lawful labor union including — but

not limited to — their private domiciles; their

automobiles; their lockers; their desks; and other

private areas to which they had a legally-

protected expectancy of privacy; and

3. Illegally harass, by various methods —

including harassment of the freedom of move-

ment and travel, so as physically to endanger

their safety and lives upon the public highways

— plaintiff Karen Silkwood and other workers

employed at the Kerr-McGee Corporation’s

Cimarron facility who were engaged in organiz-

ing a lawful labor union.

These actions were all undertaken by the defen-

dants for the express and intended purpose of

preventing the plaintiff Karen Silkwood and

other persons actively engaged in organizing a

lawful labor union at the Kerr-McGee Corpora-

tion’s Cimarron facility from enjoying the equal

protection of the laws of the United States entitl-

ing them to freely associate and organize for

lawful purposes.

19e

37d. The defendants — with the exception of

defendants Olson, Rosack, the named but

unidentified agent of the Federal Bureau of In-

vestigation and defendant Srouji — did fire and

transfer persons at the Kerr-McGee Cimarron

facility as express punishment for their having

exercised their right to freedom of association

and speech as an act explicitly intended to pre-

vent plaintiff Silkwood and other persons active-

ly engaged in organizing a labor union from en-

joying the equal protection of the laws;

37e. The defendants — with the exception of

defendants Olson, Rosack, the named but

unidentified agent of the Federal Bureau of In-

vestigation and defendant Srouji — did endeavor

to interfere with the right of plaintiff Karen

Silkwood and other citizens working at Kerr-

McGee’s Cimarron facility from communicating

with the public news media by actions including

— but not limited to — ordering them not to

speak with representatives of the media, under

the threat of firing; subjecting them to lie detec-

tor tests during which they were asked if they had

ever spoken with representatives of the news

media; and ordering them to abide by

corporation-issued rules forbidding their speak-

ing with representatives of the news media.

This was all done for the express purpose of in-

timidating and preventing plaintiff Karen

Silkwood and other workers employed at the

Kerr-McGee Corporation’s Cimarron facility

from seeking and enjoying the equal protection

of the laws of the United States and the State of

Oklahoma which entitled them freely to associate

20e

with one another for legal purposes, and to speak

to the news media, rights guaranteed to them by

the First Amendment to the United States Con-

stitution.

38. The defendants — including defendants Lawrence

Olson, Theordore Rosack, the named but unidentified

agent of the Federal Bureau of Investigation and defen-

dant Jacque Srouji — with explicit knowledge of the il-

legal acts which had, in fact, been undertaken by the

above-named defendants so as to have deprived plaintiff

Karen G. Silkwood and other persons employed at Kerr-

McGee Corporation’s Cimarron facility who were engaged

in organizing a lawful union, of the equal protection of the

laws, knowingly and willfully joined and actively par-

ticipated in the ongoing conspiracy to stop knowledge of

these previously-described illegal acts from becoming

known to any persons other than themselves — with the

express intention to deprive the plaintiff Karen Silkwood

and other persons employed at the Kerr-McGee Corpora-

tion’s Cimarron facility who were engaged in organizing a

labor union of the equal protection and enjoyment of the

laws of the United States.

39. Pursuant to this illegal conspiracy, and to obtain

the illegal objectives of this conspiracy all of the in-

dividually named defendants falsified official reports,

gave false information to federal officials involved in in-

vestigating the illegal acts of the defendants — including,

but not limited to, officials from the Atomic Energy Com-

mission, the Federal Bureau of Investigation and the

United States Congress.

40. As a direct and proximate result of these illegal ac-

tions by the defendants, the plaintiff Karen Silkwood and

other citizens employed at the Kerr-McGee Corporation’s

Cimarron facility were, in fact, damaged, and they were

2le

deprived of the equal protection of the laws and deprived

of enjoying the privileges and immunities of citizens of the

United States including their rights to freedom of speech;

freedom of association; freedom of assembly; freedom of

movement and travel, their free access to the press; their

right to privacy; their right to petition their government

for a redress of their grievances and their right not to be

deprived of their life, liberty or property other than by the

due process of law.

Cause of Action #2

41. That on or about October 1, 1974, the defendants

Dean A. McGee; James J. Kelly; Peter Colefax; Earl M.

Jorgensen; Edwin L. Kennedy; Breene M. Kerr; Robert S.

Jerr, Jr.; F.C. Love; George B. Parks; J.B. Saunders;

A.P.F. Seale; James E. Webb; R.T. Zitting; Parker S.

Dunn; Wayne Norwood; Ronald Adkisson; Roy E. King;

G.J. Sinke; J. Marler; G. French; James Reading; Fred

Welch and W.C. Gentry entered into a knowingly illegal

conspiracy the purpose of which was to prevent the plain-

tiff Karen G. Silkwood and other persons employed at

Kerr-McGee Corporation’s Cimarron facility who had fil-

ed complaints against the Corporation under the Atomic

Energy Act through force, violence, intimidation,

surveillance, harassment, wiretapping and other forms of

illegal conduct from seeking the equal protection of the

laws and from enjoying the equal rights, privileges and im-

munities of citizens under the laws of the United States

and the State of Oklahoma, including, but not limited to,

their rights of freedom of speech, freedom of association,

freedom of the press, freedom of movement and travel,

freedom of assembly; their right to petition their govern-

ment for the redress of their grievances; their right to be

secure in their persons, homes and effects and their right

not to be deprived of their lives or liberty other than by the

due process of law;

22e

42. And, that from this date of October 1, 1974, up un-

til the time of the filing of this lawsuit, all of the above-

named defendants actively and knowingly participated in

a further part of this same conspiracy to conceal all of the

illegal actions undertaken pursuant to his conspiracy —

with defendants Lawrence Olson, Theordore Rosack, the

named but unidentified agent of the Federal Bureau of In-

vestigation joining this conspiracy in November of 1974

and defendant Jacque Srouji joining this conspiracy in

April of 1975.

43. Each of the following overt acts were undertaken by

the defendants to achieve the illegal objectives of this con-

spiracy.

43a. The defendants — with the exception of

defendants Olson, Rosack, the named but

unidentified agent of the Federal Bureau of In-

vestigation, and Srouji — did willfully and

knowingly finance, direct and supervise the for-

mulation and execution of a plan in accordance

with which the plaintiff Karen G. Silkwood and

other workers employed at Kerr-McGee Cor-

poration’s Cimarron facility who were active in

efforts to organize a lawful labor union were

placed under illegal surveillance, so as to compile

illegal dossiers on these people for the express

and intended purpose of depriving these citizens

of the equal protection of the laws of the United

States and the laws of the State of Oklahoma en-

titling them freely to associate with one another

for legal purposes, and to remain free from il-

legal invasions of their right to privacy, rights ex-

pressly guaranteed to them by the First and

Fourth Amendments to the United States Con-

stitution;

23e

43b. The defendants — with the exception of

defendants Olson, Rosack, the named but

unidentified agent of the Federal Bureau of In-

vestigation and defendant Srouji — did willfully

and knowingly finance, direct and supervise the

formulation and execution of a plan in accor-

dance with which persons at their direction sur-

reptitiously entered the homes, lockers and other

places with respect to which Karen Silkwood and

other workers at the Kerr-McGee Cimarron

facility who had filed complaints against the

Corporation under the Atomic Energy Act had a

reasonable expectation of privacy and there plac-

ed illegal listening devices in these private places

and illegal wiretaps on the telephones being used

by Karen Silkwood and these other persons

working at the Cimarron facility who had filed

complaints against the Corporation under the

Atomic Energy Act for the express purpose of

depriving these citizens of the equal protection of

the laws of the United States and the laws of the

State of Oklahoma entitling them freely to

associate with one another for legal purposes,

and entitling them to associate with one another

for legal purposes, and entitling them to the right

of privacy, rights expressly guaranteed to them

by the First and Fourth Amendments to the

United States Constitution;

43c. The defendants — with the exception of

defendants Olson, Rosack, named but uniden-

tified agent fo the Federal Bureau of Investiga-

tion and defendant Srouji — did hire and direct

the illegal activities of an unknown number of

“operations agents” to the end that said oepra-

tions would do and, indeed, did in fact:

24e

1. Place under illegal surveillance the plain-

tiff Karen Silkwood and other citizens employed

at the Kerr-McGee Corporation’s Cimarron

facility who had filed complaints against the

Corporation under the Atomic Energy Act;

2. Illegally enter the private domains under

the supervision of plaintiff Karen Silkwood and

other citizens employed at Kerr-McGee Corpora-

tion’s Cimarron facility who had filed complaints

against the Corporation under the Atomic Energy

Act including — but not limited to — their

private domiciles; their automobiles; their

lockers; their desks; and other private areas to

which they had a legally-protected expectancy of

privacy; and

3. Illegally harass, by various methods —

including harassment of the freedom of move-

ment and travel, so as physically to endanger

their safety and lives upon the public highways

— plaintiff Karen Silkwood and other workers

employed at the Kerr-McGee Corporation’s

Cimarron facility who had filed complaints

against the Corporation under the Atomic

Energy Act.

These actions were all undertaken by the defen-

dants for the express and intended purpose of

preventing the plaintiff Karen Silkwood and

other persons at Kerr-McGee Corporation’s

Cimarron facility who had filed complaints

against the Corporation under the Atomic

Energy Act from seeking and enjoying the equal

protection of the laws of the United States and

the State of Oklahoma which entitled them freely

to associate with one anther for lawful purposes.

25e

43d. The defendants — with the exception of

defendants Olson, Rosack, the named but

unidentified agent of the Federal Bureau of In-

vestigation and defendant Srouji — did fire and

transfer persons at the Kerr-McGee Cimarron

facility as express punishment for their having

exercised their rights to freedom of association

and speech as an act explicitly intended to pre-

vent plaintiff Silkwood and other persons at

Kerr-McGee Corporation’s Cimarron facility

who had filed complaints against the Corpora-

tion under the Atomic Energy Act from com-

municating with the public news media by ac-

tions including — but not limited to — ordering

them not to speak with representatives of the

media, under threat of firing; subjecting them to

lie detector tests during which they were asked if

they had ever spoken with representatives of the

news media; and ordering them to abide by

corporation-issued rules forbidding their speak-

ing with representatives of the news media.

This was all done for the express purpose of in-

timidating and preventing plaintiff Karen

Silkwood and other workers employed at the

Kerr-McGee Corporation’s Cimarron facility

who had filed complaints against the Corpora-

tion under the Atomic Energy Act from seeking

and enjoying the equal protection of the laws of

the United States and the State of Oklahoma

which entitled them freely to associate with one

another for legal purposes, and to speak to the

news media, rights guaranteed to them by the

First Amendment to the United States Constitu-

tion.

26e

44. The defendants — including defendants Lawrence

Olson, Theodore Rosack, the named but unidentified

agent fo the Federal Bureau of Investigation and defen-

dant Jacque Srouji — with explicit knowledge of the il-

legal acts which had, in fact, been undertaken by the

above-named defendants so as to have deprived plaintiff

Karen G. Silkwood and other persons employed at Kerr-

McGee Corporation’s Cimarron facility who had filed

complaints against the Corporation under the Atomic

Energy Act of the equal protection of the laws, knowingly

and willfully joined and actively participated in the ongo-

ing conspiracy to stop knowledge of these previously-

described illegal acts from becoming known to any per-

sons other than themselves — with the express intention to

deprive the plaintiff Karen Silkwood and other persons

employed at the Kerr-McGee Corporation’s Cimarron

facility who had filed complaints against the Corporation

under the Atomic Energy Act from the equal protection

and enjoyment of the laws of the United States.

45. Pursuant to this illegal conspiracy, and to obtain the

illegal objectives of this conspiracy all of the individually-

named defendants falsified official reports, gave false in-

formation to federal officials involved in investigating the

illegal acts of the defendants — including, but not limited

to, officials from the Atomic Energy Commission, the

Federal Bureau of Investigation and the United States

Congress.

46. As a direct and proximate result of these illegal ac-

tions by the defendants, the plaintiff Karen Silkwood and

other citizens employed at the Kerr-McGee Corporation’s

Cimarron facility who had filed complaints against the

Corporation under the Atomic Energy Act were, in fact,

damaged and they were deprived of the equal protection

of the laws and deprived from enjoying the privileges and

27e

immunities of citizens of the United States including their

rights to freedom of speech; freedom of association;

freedom of assembly; freedom of movement and travel;

their free access to the press; their right to privacy; their

right to petition their government for a redress of their

grievances and their right not to be deprived of their life,

liberty or property other than by the due process of law.

Cause of Action #3

47. That on or about November 5, 1974, special nuclear

materials given over into the possession of the Kerr-

McGee Corporation were removed from the Corporation’s

Cimarron facility and contaminated the plaintiff Karen G.

Silkwood in her private dwelling place, inflicting upon her

serious bodily injury as a direct and proximate result of

the willful and wanton negligence the defendant Kerr-

McGee Corporation in not only failing — But, indeed, in

willfully refusing — to establish and maintain worker safe-

ty and public safety regulations at its Cimarron facility

which would have been maintained by reasonable persons

invested with the responsibility for these extraordinarily

toxic and dangerous nuclear materials — conduct on the

part of the defendant Corporation which was part of the

poor working conditions being protested at the Cimarron

facility.

48. Asa direct and proximate result of willful and wan-

ton negligence of the Kerr-McGee Corporation, the plain-

tiff Karen Silkwood was subjected directly to the impact

of toxis plutonium radiation emissions the special nuclear

materials lin the exclusive legal possesion of the defendant

Kerr-McGee Corporation. And, as direct and proximate

result of this impact, plaintiff Karen Silkwood experienced

physical illness and resultant serious mental anguish and

suffering, as well as loss of property — which property

was taken from her possesion and retained by the Kerr-

28e

McGee Corporation with no reimbursement to the plain-

tiff Karen Silkwood.

The Relief Requested

49. WHEREFORE: the plaintiff Karen G. Silkwood,

through the Administrator of her estate and the three in-

fant heirs of the plaintiff, through their natural father and

guardian, demand the following relief:

49a. That this Court order that the estate and

heirs of Karen G, Silkwood be reimbursed by the

Kerr-McGee Corporation in the sum of $5,000

for the personal property rendered radioactive

through the negligence of the Kerr-McGee Cor-

poration and subsequently taken by its agents

without its reimbursement;

49b. That this Court order that the estate and

heirs of Karen G. Silkwood be awarded the sum

of $10,000 from the Kerr-McGee Corporation

for the physical injury to which she was sub-

jected as a direct and proximate result of the

willful and wanton negligence of the Kerr-M

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