Petitioners Reply Brief — Carpenters v. Scott

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ce ere Court, US.

FI’ rp

NUV 18 882

No. 82-486

IN THE —

Supreme Court of the United States

OCTOBER TERM, 1982

UNITED BROTHERHOOD OF CARPENTERS AND JOINERS

OF AMERICA, LOCAL 610 (AFL-CIO), et al.,

. Petitioners,

Paul. E. Scorr, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

PETITIONERS’ REPLY BRIEF

LAURENCE GOLD

815 16th Street, N.W.

Washington, D.C. 20006

(202) 637-5390

(Counsel of Record)

GEORGE KAUFMANN ‘MARTIN W. Dies

2101 L Street, N.W. P.O. Box 490

Washington, D.C. 20037 Orange, Texas 77360

Of Counsel Attorneys for Petitioners

Witson - Eres Printings Co.. Inc. - 789-0096 - WasHIncToN, D.C. 20001

® AE 20

TABLE OF CASES

Cases Page

Action v. Gannon, 450 F.2d 1127 (C. A. 90 4

Bellamy v. Mason's Stores, Inc., 508 F.2d 504

// /// /! ö 4

Browder v. Tipton, 630 F.2d 1149 (C.A. 6) _........ 6,7

Cameron v. Brock, 473 F.2d 608 (C. A. 6) -.......... 4

Canlis v. San Joaquin Sheriff's Posse Comitatus,

641 F.2d 711 (C.A. 9), cert. denied, 454 U.S.

Kc 7, 8

Cohen v. Illinois Instittue of Technology, 524 F. 2d

818 (C.A. 7), cert. denied, 425 U.S. 943 2,3

Dombrowski v. Dowling, 459 F.2d 190 (C. A. 7).. 1, 2, 3,

4,5

Dry Creek Lodge, Inc. v. United States, 515 F.2d

ES ETT 5

Glasson v. City of Louisville, 518 F.2d 899 (C.A.

6), cert. denied, 423 U.S. 930 4

Great American Fed. S. & L. Assn. v. Novotny,

r AT ETS Ta a a 7,8

Griffin v. Breckenridge, 403 U.S. 88 2, 6,7,8

Life Ins. Co. of North America v. Reichardt, 591

F.2d 499 (C.A. 99 5

Lutcher v. Musicians Union Local 47, 633 F.2d

114 —... 4

Marlowe v. Fisher Body, 489 F.2d 1057 (C.A. 6) 5

Means v. Wilson, 522 F.2d 833 (C. A. 8), cert. den.,

| ES Reena nee io mneren eee 4

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

. leila eieaeeatdiatcnaain 2,3

Richardson v. Miller, 446 F.2d 1247 (C.A. 3 5

Romero v. Union Pacific Railroad, 615 F.2d 1303

D ²— AI 5

Sil wood v. Kerr-McGee Corp., 637 F. 2d 743 (C. A.

10), cert. denied, 454 U.S. 883333 6,7

Ward v. Connor, 657 F.2d 45 (C.A. 4), cert. denied,

... 3. 4

IN THE

Supreme Court of the Wuited States

OCTOBER TERM, 1982

No. 82-486

UNITED BROTHERHOOD OF CARPENTERS AND JOINERS

or AMERICA, LocaL 610 (AFL-CIO), et al.,

. Petitioners,

Paul. E. Scort, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

PETITIONERS’ REPLY BRIEF

1. In the petition (at p. 9) we: argued that the “hold-

ing [in this case] that [42 U.S.C.] § 1985 (3) is appli-

Justice) Stevens’ reading of § 1985(3) in Dombrowski v.

Dowling, 459 F.2d 190 (C. A. 7) (‘Dowling’)” ; noted that

the court below had acknowledged a conflict between its

reading of § 1985(3) and that of the Seventh and Fourth

Cireuits (Pet. 10); and added that on this question the

Eighth Circuit is aligned with the and the

First Circuit is aligned with the Seventh and Fourth

Circuits (Pet. 10).

The brief in opposition (at p. 9) responds that “there

no clear and substantial conflict among the circuit

courts on the issue of state action” (heading; first letter

capitals omitted). After a ion of why Respondents

believe Dowling to be “plainly inconsistent” with Griffin

v. Breckenridge, 403 U.S. 88 (Br. in Opp. 9-11; compare

Pet. la-3a), the “no clear and substantial conflict” argu-

ment is developed in three paragraphs, none of which, as

we now show, provide support for that argument.

In the first of these paragraphs Respondents state:

Petitioners are clearly mistaken in their assertion

that Dowling represents the majority view from

which the decision below is a deviation. To the con-

trary, the Seventh Circuit stands virtually alone in

its extremely restrictive view of the meaning of

§ 1985(3), and even the Seventh Circuit has not been

entirely consistent in this view. Compare Cohen v.

Illinois Institute of Technology, 524 F.2d 818, 829-

30 n.33 (7th Cir. 1975), cert. denied, 425 U.S. 943

(1976) (§ 1985(3) action may not require state ac-

tion where first amendment rights are involved)

with Murphy v. Mount Carmel High School, 543

F.2d 1189 (7th Cir. 1976) (rejecting the Cohen

view). See also Dear v. Rathje, 391 F. Supp. 1, 8

(N.D. Ill. 1975), aff'd mem., 532 F.2d 756 (7th Cir.

1976) and Franceschina v. Morgan, 346 F. Supp.

833 (S.D. Ind. 1972) (conspiracies to violate four-

teenth amendment rights actionable without state

involvement). [Br. in Opp. 11.]

But Judge Stevens’ Cohen opinion is entirely consistent

with his Dowling opinion: “[{W]e remain convinced that

our reasoning in Dombrowski Iv. Dowling] is a correct

explanation of why the statute does not broadly ‘apply to

all tortious, conspiratorial interferences with the rights

of others.’” (Cohen, 524 F.2d at 829.) To be sure, that

sentence is followed by a careful caveat: “We have not

been faced with the question whether the Dombrowski

Iv. Dowling] rationale would apply to a right protected

by the First Amendment which in terms is only a protec-

tion against State action, but which is often accorded

special deference.” (Cohen, 524 F.2d at 829-830 n.33.)

But, as even Respondents recognize, when the Seventh

Circuit thereafter faced that open question in Murphy v.

Mount Carmel High School, the answer was that the

Dowling rule does apply to such Fourteenth Amendment

claims. And not even Respondents contend that since the

Murphy decision there has been any “inconsistency” in

the Seventh Circuit decisions.

With regard to the Fourth Circuit law, Respondents

recite:

Petitioners also erroneously state that the Fourth

Circuit is in accord with Dowling. To the contrary

is Ward v. Connor, 657 F.2d 45 (4th Cir. 1981),

cert. denied, 102 S.Ct. 1253 (1982)—a recent deci-

sion cited by the court below but ignored by Peti-

tioners—whieh distinguished the case relied on by

This is what the pertinent portion of the Ward opinion

says:

tutional right,“ and this is sufficient to support his

cause of action.

5 Since we find congressional authority to reach the con-

spiracy under Ward's right of interstate travel, it is unneces-

sary for us to consider the troublesome question of congres-

sional power under §5 of the Fourteenth Amendment which

confronted us in Bellamy v. Mason's Stores, Inc., 508 F.2d 504

(4 Cir. 1974).

(657 F.2d at 48.

Plainly Ward's holding is not “to the contrary” of Dow-

ling’s or of Bellamy’s. (See Pet. 9-10, 2a.) Nor can the

Ward Court’s determination to decide that case on “right

to travel” grownds or its fair characterization of the ques-

tion presented here as troublesome“ possibly be taken to

signify an overruling of Bellamy.

Finally, ts contend that eleven cited cases

hold I] that § 1985(3) is applicable in proper circum-

stances to private conspiracies interfering with rights or

interests protected by the fourteenth amendment.” (Br.

in Opp. 11-12.) As the carefully guarded phrasing (“in

proper circumstances”) suggests, those cases do not on in-

spection support Respondent’s “no clear and substantial

conflict” thesis.

Five of the cited decisions are obviously beside the

point: two are Eighth Circuit decisions, and we recog-

nized in our petition that the Eighth Circuit’s position is

the same as the Fifth Circuit's; two are cases in which

public officials allegedly participated in the conspiracy; *

and one involves an alleged conspiracy to secure gov-

ernmental interferences with the plaintiff’s Fourteenth

Amendment rights.“ Five others are reversals of judg-

1 Means v. Wileon, 522 F.2d 833 (C. A. 8), cert. den., 424 U.S. 958;

Action v. Gannon, 450 F.2d 1127 (C.A. 8) (en banc).

2 Glusson v. City of Louisville, 518 F.2d 899 (C.A. 6), cert. den.,

423 U.S. 930; Cameron v. Brock, 473 F.2d 608 (C.A. 6).

5 Lutcher v. Musicians Union Local 47, 688 F. 2d 880, 885 (C. A. 9).

ments for defendants in which the district court had

ruled that the plaintiffs were required to show govern-

ment involvement in the alleged conspiracy and a result-

ing remand for further proceedings; none recognize much

less address the point made in Dowling—that to come

within § 1985 (3) private conspiracies to deprive the

plaintiffs of a Fourteenth Amendment right must be di-

rected at securing government interference with that

right.“ We do not believe that these interlocutory rulings

by their silence add to the substance of the dialogue be-

tween the Courts of Appeals on the soundness of the

Dowling rationale. The facts of those cases do, however,

indicate the variety of minor local disputes cognizable

under state law that would, under the Fifth and Eighth

Circuits’ reading of § 1985(3), be transmuted into fed-

eral causes of action; this consequence supports our con-

tention that the issue as to the scope of the federal courts

§ 1985(3) jurisdiction we raise is an important one. One

of the eleven cited cases, Life Ins. Co. of North America

v. Reichardt, 591 F.2d 499 (C.A. 9), does recognize the

conflict between the Seventh and Eighth Circuits and ap-

parently agrees with the Dowling analysis with regard

to Fourteenth Amendment clams. (See 591 F.2d at 504.)

But Reichardt holds that where a state law “prohibits the

private discrimination alleged”, the plaintiff “has a state

right or entitlement to be free from the alleged private

discrimination” and on that basis a derivative § 1985(3)

claim. (Id. at 504-505.) That approach is different both

from that of the Fifth and Eighth Circuits and from that

of the Seventh, Fourth and First Circuits. Reichardt

thus provides added support for our contention that in

light of the circuit conflict we have outlined it is now

timely for this Court to clarify the extent to which

§ 1985(3) covers private conspiracies.

Weise v. Syracuse University, 522 F.2d 397, 408 (C. A. 2); Rich-

ardson v. Miller, 446 F.2d 1247, 1249 (C.A. 3); Marlowe v. Fisher

Body, 489 F.2d 1057, 1064-65 (C. A. 6); Romero v. Union Pacific

Railroad, 615 F.2d 1308, 1812 (C. A. 10); Dry Creek Lodge, Ine. v.

United States, 515 F.2d 926, 931 (C. A. 10).

2. So far as one can tell from its opinion, the majority

below defined the class-based animus here as animus di-

rected at “nonunion workers who are attacked for their

choice to associate with other nonunion workers thereby

enabling an employer to offer significant work to the

class * * (Pet. App. A-18.) That choice is labeled

one of “economic association” (id.), and the associational

right thus defined in the Fifth Circuit evidently has

nothing to do with whether the members of the class of

“nonunion workers are union members or not; for as

Respordonts note “some of Cross’ employees [here] were

union members” (Br. in Opp. 15, n.5 cont.). Respondents

contend, contrary to our submission (Pet. 11-13), that the

Fifth Circuit’s approach to what constitutes class-based

animus actionable under § 1985(3) just outlined is con-

sivtent with that of the Sixth and Tenth Circuits in that:

[Alll courts appear to agree with the court below

that discrimination on the basis of beliefs or associa-

tions may constitute “class-based” animus for the

purposes of § 1985(3). Far from being divergent

(Pet. 11), the decisions consistently interpret the

class-based discrimination requirement to mean that

the class must share common characteristics or be-

liefs and that the conspiracy must have been directed

against class members because of those characteris-

tics or beliefs, not, post hoc, because the members are

all victims of Defendants’ conduct. See, e.g., the

cases cited by the court below, 680 F.2d at 992.

Browder v. Tipton, 630 F.2d 1149 (6th Cir. 1980)

and Silkwood v. Kerr-McGee Corp., 637 F.2d 743

(10th Cir. 1980), cert. denied, 454 U.S. 833 (1981),

relied on by Petitioners, are not to the contrary, but

in fact state and apply the same criteria stated and

applied by the court below. [Br. in Opp. 13.]

But Judge Merritt’s opinion in Browder makes it plain

that the Sixth Circuit did not, as Respondents would have

it, hlolld on the facts that plaintiffs were not the victims

of a class-based animus within the meaning of Griffin”

(Br. in Opp. 13-14; emphasis added). Rather Browder

held that class-based animus based on a form of economic

association indistinguishable from that here (associating

to do work that involves crossing a picket line) does not

come within § 1985(3) at all:

Thus, plaintiffs’ class is simply one of picket line

crossers. No matter how “invidious” any discrimina-

tion against this class may be, the right to cross a

picket line is no more constitutionally protected than

is the right to be an unpopular barn owner. [630

F.2d at 1154, quoted at Pet. 12 n.7.]

Nor can Silkwood be distinguished from the instant case

on the facts. The Tenth Circuit there upheld the dis-

missal for failure to state a cause of action of a com-

plaint alleging a conspiracy against the plaintiff to de-

prive her “and other employees who were engaged in

organizing a labor union of the equal protection and en-

joyment of the laws of the United States” (637 F.2d at

746 quoted at Pet. 12). Unless working under nonunion

conditions enjoys a higher status than working under

union conditions, the instant case and Silkwood cannot

be reconciled.

? Respondents entire response to our showing of a

cor ict on § 1985(3) standing to sue between the deci-

sior. below and Canlis v. San Joaquin Sheriff's Posse

Comitatus, 641 F.2d 711 (C.A. 9), cert. denied, 454 U.S.

967, is:

The correctness of the decision of the court below—

that a person injured by a conspiracy motivated by

class-based animus may sue under § 1985(3) even

though not a member of the relevant class—would

seem beyond dispute. It is supported not only by

the plain language of the statute, but also by this

Court’s decisions in Griffin and [Great American

Fed. S. & L. Assn. v.] Novotny. [Br. in Opp. at

15-16.

But the standing question was not raised or discussed in

Griffin or in Novotny (442 U.S. 316). And neither the

Ninth Circuit in deciding Calis nor this Court in deny-

ing the petition for certiorari there were of the view that

Griffin and Novotny compel the result reached below.

There is in short a real and substantial conflict in the

circuits on the § 1985(3) standing question.

CONCLUSION

For the above-stated reasons, as well as those stated in

the petition for a writ of certiorari, that petition should

be granted.

Respectfully submitted,