# Petition — Silkwood ex rel. Silkwood v. Kerr-McGee Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2285%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 454 U.S. 833 ## Text 15 19t Jur 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, v. 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 i QUESTIONS PRESENTED A. 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) ii 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 iv 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, V. 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 2 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. 3 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. 4 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). 5 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. 6 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 7 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. 8 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). 9 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 10 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. I. The Supreme Court should grant certiorari to review the decision of the Tenth Circuit because that decision directly 11 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 12 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. 13 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 15 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. 16 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. 17 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. 20 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. 21 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) 2a 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. 3a 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. 4a 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- Sa 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.” 6a ‘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. 7a 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 8a 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. 9a 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 Ib 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. ) 2b 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 Ic 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. ) 2c 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 Id 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.” 2d 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. 3d 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 4d 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 Sd 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- 6d 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 7d 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 8d 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 9d 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 le APPENDIX E THE PETITIONER’S COMPLAINT BELOW COMPLAINT Nov. 5, 1976 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA X 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 2e 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 3e 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. 4e 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 Se 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 6e — 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 thos [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2285%3A1. Public record. Not legal advice.