Opposition Brief — Haddle v. Garrison

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Supreme Court, U.S.

apg s-

APR 9 1996

, BFFICE OF THE CLERK

No. 97-1472

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1997

MICHAEL A. HADDLE,

Petitioner,

JEANETTE G. GARRISON, DENNIS KELLY,

G. PETER MOLLOY JR., HEALTHMASTER, INC..

CHRISTOPHER GARRISON, individually and as

Trustee for certain trusts, and JOHN DOES |

through N, individually and as Trustees of certain trusts,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Eleventh Circuit

BRIEF IN OPPOSITION OF RESPONDENTS

JEANETTE G. GARRISON, HLM, INC.

(F/K/A HEALTHMASTER, INC. ) AND

CHRISTOPHER GARRISON

Phillip A. Bradley

Barry J. Armstrong

David E. Hudson*

HULL, TOWILL,

NORMAN & BARRETT

SunTrust Bank Building

801 Broad Street, 7th Floor

P_O. Box 1564

Augusta, GA 30903-1564

(706) 722-4481

*Counsel of Record

April 9, 1998

LONG ALDRIDGE &

NORMAN LLP

Suite 5300

303 Peachtree Street

Atlanta, Georgia 30308

(404) 527-4000

Counsel for Respondents

Jeanette G. Garrison,

HLM, Inc. (f/k/a

Healthmaster, Inc.) and

Christopher Garrison

QUESTION PRESENTED

Whether an employee at will who has not testified

in, and was not a party to, a federal proceeding, but whose

employment was terminated, has stated a claim upon

which relief can be granted under 42 U.S.C. § 1985(2).

LIST OF PARTIES

The caption of the case contains the names of all

parties. Respondent HLM, Inc. (f/k/a Healthmaster, Inc.)

has no parent company, nonwholly owned subsidiaries, or

affiliates to list pursuant to Rule 29.6.

ill

TABLE OF CONTENTS

QUESTION PRESENTED ................5. i

Re SF CUED oecuviakiaueh cin ctauuit ii

TABLES OF CONTENTS 2. cc ccccccsscscvcces iti

TABLE OF AUTHORITIES ................. iv

STATEMENT OF THE CASE ............... 2

REASONS FOR DENYING THE PETITION ... 6

A. There Is No Irreconcilable Conflict

of Decisions Among the United States

ra 6

B. Morast v. Lance Was Properly Decided .. 12

C. Petitioner Does Not Prevail Based Upon

the Circuit Court Opinions Upon Which

ED dd cddenwaUns<dibeukebsed aks 19

D. Petitioner Failed to Plead Force,

Intimidation or Threat Sufficiently ...... 23

8 err eee ee ee 26

TABLE OF AUTHORITIES

CASES

Adickes v. S.H. Kress & Co.,

Ses SEE ac Haken debeccdbineasy 5

Bishop v. Wood, 426 U.S. 341 (1976) .......... 17,18

Board of Regents of State Colleges v. Roth,

Rare ee 15, 16, 17

Chahal v. Paine Webber, Inc., 725 F.2d 20

ee CD coe iveneet pues Gubb wae ks 20

David v. United States, 820 F.2d 1038

PE EK catviccas Ga deehpahiccneds 21

Georgia Power Co. v. Busbin,

Se ee GPE Sedcevsccccccas 12, 13

Griffin v. Breckenridge, 403 U.S. 88 (1971) ..... 15

In re New Haven Inclusion Cases, 399 U.S. 392,

Re ee ee 5

Irizarry v. Quiros, 722 F.2d 869

SE Nc 6 GhSd kek cerecepa’e 10, 11, 12,

21,22

Keating v. Carey, 706 F.2d 377 (2d Cir. 1983) .. 25

Kimble v. D.J. McDuffy, Inc., 648 F.2d 340

(Sth Cir. June 1981) (en banc),

cert. denied, 454 U.S. 1110 (1981),

overruled in part on other grounds

by Kush v. Rutledge, 460 U.S. 719 (1983)... 7,8,9

Kush v. Rutledge, 460 U.S. 719 (1983). ...... 7, 10, 14,

15, 20

McCord v. Bailey, 636 F.2d 606

(D.C. Cir. 1980), cert. denied,

PE coven s deccgweks isos 9

Morast v. Lance, 631 F. Supp. 474

(N.D. Ga. 1986), aff'd, 807 F.2d 926

i Pt cine dec gudshcasws el sat 23, 24

Morast v. Lance, 807 F.2d 926

Mei ciscecsdubsdeceusiwows passim

Portman v. County of Santa Clara,

995 F.2d 898 (9th Cir. 1993)......... 11, 12, 19,

20, 22

Rode v. Dellarciprete, 845 F.2d 1195

RR RE Sn ae ee 22

Runyan v. Economics Laboratory, Inc.,

248 S.E.2d 44, 46 (Ga. App. 1978) ......... 13

Rylewicz v. Beaton Services, Lid.,

888 F.2d 1175 (7th Cir. 1989) ..........--- 22

Taylor v. Foremost-McKesson, Inc.,

656 F.2d 1029 (Sth Cir. Unit B Sept. 1981)... 13

Witters v. Washington Department of Services

for the Blind, 474 U.S. 481 (1986) .......--. 5

STATUTES

7 U.S.C. § 2041 ef seg. «6... eee ee eee eens —

29 U.S.C. § 20] ef seg. . 0... ee eee cece eee eeee 21

29 U.S.C. § G51 €f 80g... 2c cee ccc ce cee 22

POUBC. GIGS 2... cccrcccccsccevscccvess 19

42 U.S.C. § 19BS(2) . 0... eee ccccccesceees passim

42UBC. BGOT1 .. nc cccccvcceses Sieerese 19

42UBC. BOG 2. cc ccsccccdccccccevssess 19

OCGA. §B4-Tol .. ccc ccccccccccectccsces 12

vil

MISCELLANEOUS .

Haddle v. Garrison, et al., Civil Action

File No. 96-RCCV-572 (Superior

Court of Richmond County, Georgia)

O'Neal v. Master Health Plan, Inc.,

No. 96-028 (S.D. Ga.) ..........-.

“ee © © *# @ *

Section 1985(2) Clause One and Its Scope,

70 Cornell L. Rev. 756, 757-59 (1985)

23, 25

ee we

No. 97-1472

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1997

MICHAEL A. HADDLE,

Petitioner,

Vv.

JEANETTE G. GARRISON, DENNIS KELLY,

G. PETER MOLLOY JR., HEALTHMASTER, INC..,

CHRISTOPHER GARRISON, individually and as

Trustee for certain trusts, and JOHN DOES 1

through N, individually and as Trustees of certain trusts,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Eleventh Circuit

BRIEF IN OPPOSITION OF RESPONDENTS

JEANETTE G. GARRISON, HLM, INC.

(F/K/A HEALTHMASTER, INC. ) AND

CHRISTOPHER GARRISON

The Respondents Jeanette G. Garrison, HLM, Inc.

(f/k/a Healthmaster, Inc.) and Christopher Garrison,

individually and as Trustee for certain trusts, respectfully

request that this Court deny the petition for writ of

certiorari seeking review of the opinion of the United

States Court of Appeals for the Eleventh Circuit in this

case.

STATEMENT OF THE CASE

Petitioner filed this action in the district court

asserting one federal claim under 42 U.S.C. § 1985(2) and

several state law claims against Jeanette Garrison, HLM,

Inc. (f/k/a Healthmaster, Inc.) ("HLM"), Christopher

Garrison, individually and as Trustee of certain trusts, and

others. The district court dismissed Petitioner’s 42 U.S.C.

§ 1985(2) claim based upon the binding authority of

Morast v. Lance, 807 F.2d 926, 930 (11th Cir. 1987). The

district court also dismissed Petitioner’s state law claims

after declining to exercise supplemental jurisdiction over

the state claims.' The United States Court of Appeals for

the Eleventh Circuit affirmed the dismissal on the

authority of Morast.

' Petitioner did not appeal the dismissal of the state law

claims. Petitioner refiled his state law claims in a state court

action captioned Haddle v. Garrison, et al., Civil Action File No.

96-RCCV-572 (Superior Court of Richmond County, Georgia).

The Richmond County Superior Court subsequently granted

summary judgment to all defendants on all claims asserted by

Pet tioner.

——————

ee ce _ ~

The district court dismissed Petitioner’s 42 U.S.C.

§ 1985(2) claim before any significant discovery took

place and the district court did not consider any evidence

outside of the pleadings when ruling on the Motions to

Dismiss. Accordingly, the relevant facts for purpose of

Respondents’ Motions to Dismiss are contained in

Petitioner’s Complaint’.

From September 22, 1986 until approximately

April 13, 1995, Petitioner was an employee of HLM.

(R10-2.) On March 8, 1995, HLM and others were

indicted in the United States District Court for the

Southern District of Georgia. (R10-3.) In April 1995,

Healthmaster Home Health Care, Inc. (“HHHC”) ‘he

wholly owned operating subsidiary of HLM, filed for

protection under Chapter 11 of the bankruptcy code. In

connection with the bankruptcy proceeding, most of the

employees of HLM, including Petitioner, were transferred

to HHHC. (R10-3.) The bankruptcy court appointed a

trustee to oversee the affairs of HHHC. (R10-3.)

During the investigation that led up to the

indictment of HLM and others, and the subsequent

bankruptcy filing, Petitioner alleges he cooperated with

federal agents. While Petitioner at one point alleges he

“testified pursuant to subpoena before said grand jury,”

Petitioner later admits “his testimony was not actually

taken due to the press of time.” (R10-4.) Petitioner does

? Petitioner amended his Complaint to assert an

additional state law claim which is not at issue in this appeal.

not allege he was a party to the criminal case brought

against HLM and others, or any other federal proceeding;

he only alleges he was to be a potential witness in the

criminal case against others. (R10-4-5.)

On June 21, 1995, the President of HHHC,

Respondent G. Peter Molloy, terminated Plaintiff's

employment with HHHC. (R10-4, 16-3.) Petitioner

alleged that Mr. Molloy, the President of HHHC,

terminated Petitioner's employment as a part of a

conspiracy with Respondents Jeanette Garrison, Dennis

Kelly and HLM? “in order to effectuate retaliation against

[Petitioner].” (Petition for Writ of Certiorari (hereinafter

“Petitioner's Brief”) at 6.) Petitioner does not allege that

he was threatened with force or violence by any of

Respondents or that the government ever investigated or

charged any of Respondents with obstruction of justice.

Although the holdings of the district court and the

court of appeals properly were based on allegations in

Petitioner’s Complaint, Petitioner improperly includes

numerous factual allegations in his petition that are not

part of the record and were not considered by the district

court or the court of appeals in their rulings on the

Motions to Dismiss. In particular, Petitioner references

testimony by Robert Pittard and testimony and rulings in

> Christopher Garrison, individually and as trustee for

certain trusts, is not named as a defendant in Petitioner's 42

U.S.C. § 1985(2) claim. Christopher Garrison was only named as

a defendant in a single state law claim.

eet

the case of O'Neal v. Master Health Plan, Inc., No. 96-

028 (S.D. Ga.) (Petitioner’s Brief at 3-6). None of the

references to Mr. Pittard and O'Neal is part of the record.

This Court has repeatedly held that parties may only rely

on, and the Court may only consider, information that is

part of the record. See, e.g., Witters v. Washington Dep't

of Servs. for the Blind, 474 U.S. 481, 486 n.3 (1986) (This

Court must affirm or reverse upon the case as it appears on

the record .. ..” ); Jn re New Haven Inclusion Cases, 399

U.S. 392, 450 n.66 (1970) (“None of this is record

evidence, and we do not consider it.”); Adickes v. S.H.

Kress & Co., 398 U.S. 144, 157 n.16 (1970) (“. . . could

not have been considered by the trial court. Manifestly, it

cannot be properly considered by us in the disposition of

the case.”).

Moreover, the testimony and rulings from O'Neal

are not relevant in this case. The only party against which

the plaintiff in O'Neal obtained a verdict was Master

Health Plan, Inc. (“MHP”), which is not a party to this

case. Petitioner did not allege that MHP was in any way

involved in the termination of Petitioner’s employment.

Furthermore, in Petitioner’s attempt to prejudice the Court

with extraneous allegations, Petitioner conveniently omits

that Mr. Pittard previously testified under oath contrary to

the allegations in Petitioner’s brief and that Mr. Pittard

only changed his sworn testimony after he was caught

embezzling funds by several of the Respondents.

REASONS FOR DENYING THE PETITION

A. There Is No Irreconcilable Conflict of Decisions

Among the United States Courts of Appeals

On the question presented in this matter there is no

conflict among the decisions of the United States Courts

of Appeals. Petitioner seeks to portray such a conflict by

ignoring all of the elements required to articulate a claim

upon which relief can be granted under 42 U.S.C. §

1985(2) and focusing on a perceived disagreement

between the courts as to one of those elements. Stepping

back from the narrow question posited by Petitioner, and

looking at the decisions of the courts of appeals in their

entirety, Petitioner failed to state a claim upon which relief

can be granted under any of those decisions.

The statute at issue is 42 U.S.C. § 1985(2), which

provides:

If two or more persons in any State or

Territory conspire to deter, by force,

intimidation, or threat, any party or witness

in any court of the United States from

attending such court, or from testifying

truthfully, or to injure such party or witness

in his person or property on account of his

having so attended or testified . . ..

[I}n any case of conspiracy set forth in this

section, if one or more persons engaged

therein do, or cause to be done, any act in

furtherance of the object of such conspiracy,

whereby another is injured in his person or

property, or deprived of having and

exercising any right or privilege of a citizen

of the United States, the party so injured or

deprived may have an action for the

recovery of damages, occasioned by such

injury or deprivation, against any one or

more of the conspirators.

42 U.S.C. § 1985(2) and (3).

In Morast v. Lance, 807 F.2d 926, 930 (11th Cir.

1987), the Eleventh Circuit upheld the dismissal of the

plaintiff's 42 U.S.C. § 1985(2) claim on three grounds.

First, relying on the authority of the former Fifth Circuit in

Kimble v. D.J. McDuffy, Inc., 648 F.2d 340 (Sth Cir. June

1981) (en banc), cert. denied, 454 U.S. 1110 (1981),

overruled in part on other grounds by Kush v. Rutledge,

460 U.S. 719, 723 (1983), the Morast court found that

testimony before a federal agency was insufficient to

satisfy the requirement that the conspiracy be related to

testimony before a federal court. The former Fifth Circuit

in Kimble explained the rationale for requiring that a

witness seeking redress under 42 U.S.C. § 1985(2)

actually testify before a federal court:

Passage of the Ku Klux Klan Act was

“motivated by a desire to prevent and

punish acts of terror or intimidation that

threatened the attempt to create a political

environment hospitable to equality.” In

light of the acts of violence that threatened

the sanctity of federal courts, Congress

meant Section 1985(2) to protect a party

based on his physical presence while

attending or testifying in federal court. In

this case, no allegations were made that

plaintiffs were injured because they

attended or testified in federal court. Given

the background of violence and direct

intimidation prevalent at the time of the

original passage of Section 1985(2), it

would be anomalous to find, without any

specific support in the legislative history,

that Congress intended to create a federal

tort remedy for an employer's economic use

of public information relating to the filing of

federal lawsuits. Section 1985(2) was not

designed as a vehicle to remedy such

allegedly tortious acts of employers against

employees pursuing workmen's

compensation or personal injury claims.

Rather, it was intended to protect against

direct violations of a party or witness's right

to attend or testify in federal court.

Id. at 348 (citation omitted). The Kimble decision clearly

reflects that Congress, in enacting 42 U.S.C. § 1985(2),

was addressing particular federal interests, in this case the

protection of persons attending and testifying in federal

court as witnesses or parties. Congress was not creating a

general tort law applicable to the employer-employee

relationship.

Second, the Morast court found the plaintiff's

allegations of “force, intimidation, or threat” to be

inadequate. Indeed, the Eleventh Circui noted that the

allegations did not provide “specific examples of acts to

deter testimony or attendance by ‘force, intimidation, or

threat.”” Jd. at 930 n.4. Again, looking to the legislative

history is instructive:

Section 1985(2) is derived from section 2 of

the Ku Klux Klan Act of 1871. The Klan

Act was induced by massive and frequently

violent resistance in the Southern states to

federal reconstruction and the inability or

unwillingness of state governments to deal

effectively with that violence. Racial

equality and protection of civil rights were

not the only reasons for enactment of the

Klan Act, however. A major concern was

restoration of civil authority and

preservation of orderly government,

including federal court ability to proceed

without improper interference.

Kimble, 648 F.2d at 350 (Johnson, J. dissenting in part)

(citations omitted). See also McCord v. Bailey, 636 F.2d

606, 615 (D.C. Cir. 1980), cert. denied, 451 U.S. 983

(1981). Again, Congress was not intending to encompass

employment disputes within the proscription of deterrence

or retaliation unless it in fact involved force, intimidation

or threats of the type prevalent in the reconstruction era.

Third, the Morast court held that the plaintiff had

not alleged an injury cognizable under 42 U.S.C. §

1985(2). This is correct because the provision of 42

U.S.C. § 1985(2) at interest here was created to protect

federal institutions and processes. A claim under the

relevant provision must be institutionally linked to federal!

interests. Kush v. Rutledge, 460 U.S. 719, 724-25 (1983).

The purpose of the Ku Klux Klan Act was not to “create

an open-ended federal tort law applicable ‘to all tortious,

conspiratorial interferences with the rights of others.”” /d.

at 725.

Irizarry v. Quiros, 722 F.2d 869 (ist Cir. 1983), is

not irreconcilably in conflict with Morast. In J/rizarry,

applicants for reemployment with potential employers

which were required to be registered under the federal

Farm Labor Contractor Registration Act, 7 U.S.C. § 2041

et seq., brought an action under 42 U.S.C. § 1985(2). The

plaintiffs each previously had initiated a federal action

against the potential employers. Although the actions

taken by the potential employers against these applicants

are not fully recited in the First Circuit's opinion, it is

reflected that the potential employers engaged in conduct

sufficiently egregious that the First Circuit found the

potential employers’ conduct “was obviously designed to

intimidate and deter.” /d. at 871. The First Circuit also

upheld an award of punitive damages and attorneys’ fees,

and imposed double costs on appeal and attorneys’ fees

because of the potential employers’ conduct. /d. at 872-73.

Thus, in /rizarry, federally governed employers took

action against applicants for reemployment as a direct

result of those applicants’ pursuit of actions in the federal

courts. The federal interests involved were pervasive and

were “institutionally linked” to the applicants’ claim.

Portman v. County of Santa Clara, 995 F.2d 898

(9th Cir. 1993), also is not irreconcilably inconsistent with

Morast. While it is correct Portman held that retaliatory

termination can be an injury for the purposes of 42 U.S.C.

§ 1985(2), that does not end the inquiry. The plaintiff in

Portman was a public employee who was fired after he

filed a federal court action against his employer. In his

underlying federal court complaint the plaintiff asserted

federal statutory and constitutional claims against his

government employer. Even with these allegations, the

Ninth Circuit specifically did not address whether the

plaintiff had pleaded sufficiently all of the elements of a

claim for relief under 42 U.S.C. § 1985(2). Left open

were the issues of the existence of a conspiracy and

whether the mere act of filing a federal court complaint

triggered the protections of 42 U.S.C. § 1985(2). Jd. at

910. Thus, the Ninth Circuit remanded the case for further

proceedings.

Common to /rizarry and Portman, but not to

Morast, was the implication of substantial federal

interests. The plaintiff in Morast, like Petitioner, was a

private employee who had not initiated an action in federal

court. Indeed, the plaintiff in Morast, like Petitioner, had

not even testified as a witness in a federal court action.

All that existed in Morast, as in this case, was a plaintiff's

attempt to use 42 U.S.C. § 1985(2) to create a wrongful

discharge claim for relief when no such claim existed

under state law. Federal interests were not institutionally

linked to the claim as they were in /rizarry and Portman.

While these courts of appeals may differ with

respect to articulation of individual elements of the 42

U.S.C. § 1985(2) claim for relief, the overall result is the

same. The courts of appeals require that significant

federal interests, of a nature intended to be protected by

Congress by the enactment of the Ku Klux Klan Act of

1871, must be implicated. An employer may not terrorize

its employees through force, intimidation or threat for their

assertion of federal interests in the federal courts. If those

institutionally linked federal interests do not pervade,

however, no claim for relief under 42 U.S.C. § 1985(2) has

been stated.

B. Morast v. Lance Was Properly Decided

Petitioner alleged that his employer, HHHC, was a

Georgia corporation with its principal place of business in

Georgia, that Petitioner is a Georgia resident, and that “ll

relevant acts took place in the State of Georgia. (R10-1-

3.) Under Georgia law, Petitioner was an employee at

will. Georgia Power Co. v. Busbin, 250 $.E.2d 442 (Ga.

1978); O.C.G.A. § 34-7-1.

If “an employee’s employment is terminable at

will, the employer with or without cause and regardless of

its motives, may discharge the employee without

liability.” Taylor v. Foremost-McKesson, Inc., 656 F.2d

1029, 1031 (Sth Cir. Unit B Sept. 1981) (quoting Runyan

v. Economics Laboratory, Inc., 248 S.E.2d 44, 46 (Ga.

App. 1978)). Accordingly, “allegations and evidence as to

improper motives for . . . discharge are legally irrelevant

and present[] no issues ....” Taylor, 656 F.2d at 1031

(quoting Georgia Power Co. v. Busbin, 250 S.E.2d 442,

444 (Ga. 1978)).

The Eleventh Circuit in Morast v. Lance, 807 F.2d

926, 930 (11th Cir. 1987), recognized and held that the

mere loss of employment at will is not sufficient to

establish the actual injury element of a proper 42 U.S.C.

§ 1985(2) claim:

[T}jo make out a cause of action under

§ 1985(2) the plaintiff must have suffered

an actual injury. Because Morast was an at

will employee he had no constitutionally

protected interest in continued employment.

Therefore, Morast's discharge did not

constitute an actual injury under this statute.

(citations omitted.)

As previously addressed, this holding is one

articulation by the Eleventh Circuit of the requirement that

there be a federal interest implicated in the underlying

conduct. Employment at will does not implicate such a

federal interest.

The significance of the requirement that the injury

have a nexus to federal interests was explained by this

Court in Kush v. Rutledge, 460 U.S. 719 (1983), in which

this Court determined that class-based animus was not an

element of a 42 U.S.C. § 1985(2) action. In analyzing the

five categories of outlawed conspiratorial activities in 42

U.S.C. § 1985, this Court stated:

Three of the five broad categories, the first

two and the fifth, relate to institutions and

processes of the federal government —

federal officers, § 1985(1); federal judicial

proceedings, the first portion of § 1985(2);

and federal elections, the second part of

§ 1985(3).

The remaining two categories, however,

encompass underlying activity that is not

institutionally linked to federal interests and

that is usually of primary state concern.

Id., at 724-25. This Court held that where class-based

animus is required for the “remaining two categories” (i.e.,

those involving state concerns), it is not required with

respect to the three categories involving federal interests.

Id.

The claim for relief at issue here is the first part of

42 U.S.C. § 1985(2) — federal judicial proceedings.

Consistent with this Court's recognition in Kush that a

claim for relief under this provision must implicate activity

“institutionally linked to federal interests,” the Eleventh

Circuit in Morast rejected the notion that impact on an

allegedly state protected interest in employment is a

legally cognizable injury to person or property under 42

U.S.C. § 1985(2). To hold otherwise would negate what

this Court in Kush and Griffin v. Breckenridge, 403 U.S.

88 (1971), sought to assure — not to “create an open-

ended federal tort law applicable ‘to all tortious,

conspiratorial interferences with the rights of others."”

Kush, 460 U.S. at 725. This Court achieved this result by

requiring implication of a constitutionally protected equal

protection interest (i.e., class-based animus) when only

State interests are affected. In the three other categories,

including the category at issue here, a federally protected

interest must be involved.

Moreover, this Court has held that at will

employment is not a property interest protected under

federal law. In Board of Regents of State Colleges v. Roth,

408 U.S. 564 (1972), this Court considered whether the

termination of the employment of an assistant professor at

a state university without a reason or a hearing was a

violation of the professor’s due process. In rejecting the

professor’s claim that he had a property interest in his

employment protected by the federal Constitution, this

Court held:

nN TN AK RTC MA RT

Certain attributes of “property” interests

protected by procedural due process emerge

from these decisions. To have a property

interest in a benefit, a person clearly must

have more than an abstract need or desire

for it. He must have more than a unilateral

expectation of it. He must, instead, have a

legitimate claim of entitlement to it. It is a

purpose of the ancient institution of property

to protect those claims upon which people

rely in their daily lives, reliance that must

not be arbitrarily undermined. It is a

purpose of the constitutional right to a

hearing to provide an opportunity for a

person to vindicate those claims.

Property interests, of course, are not created

by the Constitution. Rather they are created

and their dimensions are defined by existing

rules or understandings that stem from an

independent source such as state law —

rules or understandings that secure certain

benefits and that support claims of

entitlement to those benefits.

***

Thus, the terms of the respondent's

appointment secured absolutely no interest

in re-employment for the next year. They

supported absolutely no possible claim of

entitlement to re-employment. Nor,

significantly, was there any state statute or

University rule or policy that secured his

interest in re-employment or that created

any legitimate claim to it. In _ these

circumstances, the respondent surely had an

abstract concern in being rehired, but he did

not have a property interest sufficient to

require the University authorities to give

him a hearing when they declined to renew

his contract of employment.

Id. at 577-78 (footnote omitted) (emphasis in original).

This Court also addressed whether at will

employment constitutes a federally protected property

interest in Bishop v. Wood, 426 U.S. 341 (1976).

Bishop, a former police officer brought an action alleging

that the termination of his employment without a hearing

was a violation of due process. /d. at 344-45. Similar to

Roth, this Court in Bishop rejected the police officer’s

claim that he had a property interest in continued

employment protected by the federal Constitution and

A property interest in employment can, of

course, be created by ordinance, or by an

implied contract. In either case, however,

18 ren

the sufficiency of the claim of entitlement

must be decided by reference to state law.

Id. at 344. In addition, this Court stated:

In this case, the holding that as a matter of

state law the employee “held his position at

the will and pleasure of the city” necessarily

establishes that he had no property interest.

Id. at 345 n.8 (emphasis in original).

The plaintiff in Morast was an employee at will

under Georgia law and therefore had no property interest

in continued employment protected by the federal law. As

noted by the Eleventh Circuit,

“[alithough we believe it is wrong to

discharge a bank officer in retaliation for his

reporting a banking violation, it is up to

Congress, not the courts, to provide for an

effective remedy.”

Morast, 807 F.2d at 929.

The plain language of § 1985(2) requires that a

plaintiff establish injury “in his person or property.”

Given the context of what fomented passage of the Ku

Klux Klan Act, it is understandable that bodily injury and

property damage were the types of injuries being

addressed. Violence — or as is used earlier in § 1985(2),

force, intimidation or threats — was the concern. Adverse

employment actions were not the type of retaliation at

issue in the Ku Klux Klan Act.

Congress knows full well how to prohibit adverse

actions taken in the terms and conditions of employment

when it so desires. There are numerous examples of

statutes in which Congress has created remedies against a

person (not just an employer) who interferes with another

person's employment in retaliation for assisting the

government in enforcement proceedings. Such remedies

are contained, for example, in the Solid Waste Disposal

Act, 42 U.S.C. § 6971, CERCLA, 42 U.S.C. § 9610, and

the Surface Mining Control Act, 30 U.S.C. § 1923.

Congress did not include any language in 42 U.S.C.

§ 1985(2) protecting against adverse employment actions.

Instead, 42 U.S.C. § 1985(2) provides redress for injury

“to person or property.”

Morast thus was correctly decided by the Eleventh

Circuit. This is not to say Petitioner is without a remedy

if he can show his employment improperly was

terminated; that remedy just is not under 42 U.S.C. §

1985(2).

C. Petitioner Does Not Prevail Based Upon the

Circuit Court Opinions Upon Which He Relies

Petitioner relies heavily on the decision of the

Ninth Circuit in Portman v. County of Santa Clara, 995

F.2d 898 (9th Cir. 1993).* (Petitioner’s Brief at 10-12.)

However, Petitioner's claim also would have been

dismissed under the Ninth Circuit’s interpretation of 42

U.S.C. § 1985(2). This is because the Ninth Circuit

requires that there be injury to a party in a federal court

proceeding. It is this requirement that brings Portman

within the policy articulated in Kush v. Rutledge requiring

a federally implicated right, but just from a different

approach than articulated by the Eleventh Circuit in

Morast.

In Portman, the plaintiff previously had brought an

action in federal court. In his 42 U.S.C. § 1985(2) claim,

the plaintiff asserted that his employment was adversely

affected in retaliation for his bringing of the federal action.

Id. at 909. The Ninth Circuit specifically pointed out that

the elements for a 42 U.S.C. § 1985(2) action for witness

intimidation are somewhat different than for other 42

U.S.C. § 1985(2) claims, citing to Chahal v. Paine

Webber, Inc., 725 F.2d 20 (2d Cir. 1984). In Chahal, the

court reversed a grant of summary judgment in a 42

U.S.C. § 1985(2) action. The court did so because the

plaintiff in the 42 U.S.C. § 1985(2) action had presented

sufficient facts that intimidation of a witness in the

plaintiffs underlying federal action had caused the

plaintiff injury in connection with the underlying federal

action. Jd. at 20.

* In an apparent typographical error, Petitioner

mistakenly refers to the Appellant in Portman as “Portland.”

we rs ee

The Ninth Circuit made the requirement of injury

to a party in an underlying action absolutely clear in David

v. United States, 820 F.2d 1038 (9th Cir. 1987). In David,

the 42 U.S.C. § 1985(2) plaintiff claimed she had been

discharged from her employment because of her acting as

a witness in a separate federal court proceeding (to which

the 42 U.S.C. § 1985(2) plaintiff was not a party). The

Ninth Circuit held:

David [the 1985(2) plaintiff] has not alleged

how she has been injured by her testimony

in Parodi [the separate federal court

proceeding] or her failure to appear in court.

Allegations of witness intimidation under §

1985(2) will not suffice for a cause of action

unless it can be shown the /itigant was

hampered in being able to present an

effective case. Since David has not shown

she was a party to the actions in which she

was intimidated, she can show no injury

under § 1985(2).

Id. at 1040 (emphasis in original) (citation omitted).

In Jrizarry v. Quiros, 722 F.2d 869, 871 (1st Cir.

1983), it also was specifically noted that the “[p]laintiffs

have proved that they were denied reemployment because

they previously had instituted legal actions to vindicate

their federal rights.” The plaintiffs previously had filed

actions against the defendants under the federal Fair Labor

Standards Act, 29 U.S.C. § 201 ef seg., or the

Occupational Safety and Health Act, 29 U.S.C. § 651 er

seq. Irizarry, 722 F.2d at 870; see also Rylewicz v. Beaton

Servs., Lid, 888 F.2d 1175, 1180 (7th Cir. 1989)

(“Congress intended to provide a damage remedy only for

litigants whose right to pursue a claim in federal court has

been hindered by a conspiracy. ... Otherwise the term

‘witness’ would have been contained in those remedial

provisions.”); cf Rode v. Dellarciprete, 845 F.2d 1195,

1206-07 (3d Cir. 1988).

Unlike the plaintiffs in /rizarry and Portman,

Petitioner was a potential witness, not a party, in the

separate federal litigation. Because he was not a party to

the separate federal proceeding, Petitioner's ability to

present an effective case in federal court was unaffected,

and he therefore has suffered no “actual injury.”

Moreover, there is no allegation that Petitioner was

in any way hindered or prevented from cooperating with

the government and testifying. Thus, Petitioner was not

injured in his ability to testify. Rylewicz, 888 F.2d at 1181

(“There has been no allegation that he was in fact

hampered from testifying ‘freely, fully, and truthfully,’ in

the words of Section 1985(2).... Plaintiffs have simply

not pointed to an injury or deprivation within the scope of

Section 1985 ....”). Since it is the interest in being able

to litigate a party's case fully in the federal courts that

constitutes the protected federal interest under /rizarry and

Portman, only parties hampered in their ability to litigate

fully their federal actions have standing under 42 U.S.C.

§ 1985(2). Because Petitioner had no such federal interest

implicated and was not injured, it was proper to dismiss

his 42 U.S.C. § 1985(2) claim.

D. Petitioner Failed To Plead Force, Intimidation

or Threat Sufficiently

Under 42 U.S.C. § 1985(2), two or more persons

must conspire to deter testimony by use of “force,

intimidation or threat.” When the Ku Klux Klan Act was

passed in 1871, Congress intended that the statute inhibit

members of the Klan from using lynchings, whippings and

other acts of violence to obtain political control in the

South. See Section 1985(2) Clause One and Its Scope, 70

Cornell L. Rev. 756, 757-59 (1985). Paragraphs 18, 19,

and 20 of Petitioner's First Amended Complaint, which

purport to set out the force, intimidation or threat, focuses

solely on the termination of Petitioner's employment.

The Eleventh Circuit held in Morast v. Lance, 807

F.2d 926 (llth Cir. 1987), that such allegations are

insufficient as a matter of law to establish “force,

intimidation or threat.” In Morast, the plaintiff's

employment was terminated allegedly for the plaintiff's

cooneration with federal regulators. In Morast, the

plaintiff alleged:

[I1}n conclusory terms, drawn from the text

of the statute, . . . the defendants conspired

to deter, by force or intimidation, plaintiff as

a witness. The only concrete actions

complained of were that the defendants

were “angry, upset and vindictive” toward

the plaintiff; that they questioned the

plaintiff about the source of leaks to the

press about the Comptroller's investigation,

implying that plaintiff was a possible

source; and, that plaintiff was excluded

from board meetings and given a decreased

work load.

Morast v. Lance, 631 F. Supp. 474, 479 (N.D. Ga. 1986),

aff'd, 807 F.2d 926 (11th Cir. 1987). As one of its bases

for granting defendants’ motion to dismiss, the district

court stated: “Plaintiff's complaint is essentially void of

the factual allegations necessary to support a claim under

section 1985(2).” Jd.

The Eleventh Circuit, in affirming the district

court's grant of the motion to dismiss on this particular

ground, stated:

. . . Morast has not alleged that the

defendants conspired to stop him from

attending or testifying at the hearing by

“force, intimidation, or threat.” Morast

contends only that defendants retaliated

against him with anger and vindictiveness,

extensive questioning regarding leaks to the

press, exclusion from board meetings, and a

decreased workload.‘

* The remainder of Morast's

list of “retaliations” are

conclusory in nature and are

not specific examples of acts

to deter testimony or

attendance by “force,

intimidation, or threat.”

Morast, 807 F.2d at 930.

In one of the few decisions other than Morast to

address what satisfies the “force, intimidation, or threat”

requirement, Judge Meskill of the Second Circuit

strenuously argued that “force, intimidation or threat”

should “require evidence of physical force, threats of

violence or similarly malevolent acts.” Keating v. Carey,

706 F.2d 377, 392 (2d Cir. 1983) (Meskill, J., dissenting);

see also Section 1985(2) Clause One and Its Scope, 70

Cornell L. Rev. 756, 776-77 (1985) (“Judge Meskill's

opinion in Keating offers the most promising approach” to

follow the legislative intent behind 42 U.S.C. § 1985(2)

without infringing on traditional state law concerns).

Accordingly, given that Petitioner has pleaded even less

than that held legally insufficient in Morast, Petitioner has

failed to plead sufficiently “force, intimidation or threat,”

and his Complaint properly was dismissed.

CONCLUSION

For the reasons given above, the petition for a

writ of certiorari should be denied.

Respectfully submitted,

David E. Hudson* Phillip A. Bradley

HULL, TOWILL, Barry J. Armstrong

NORMAN & LONG ALDRIDGE &

BARRETT NORMAN LLP

SunTrust Bank Building Suite 5300

801 Broad St., 7th Floor 303 Peachtree Street

P.O. Box 1564 Atianta, Georgia 30308

Augusta, GA 30903-1564 (404) 527-4000