# Opposition Brief — Haddle v. Garrison

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1998
- **Citation:** 525 U.S. 121

## Text

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,

V.

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

i
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).

il
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 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

5

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.

6
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

7

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

8

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

9

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

10

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,

1]

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

12

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.

13

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

14

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.

SE

15

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

16

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

17

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),

19

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

20

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

21

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

22

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

23

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

24

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.‘

|

a

25

* 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
(706) 722-4481
Counsel for Respondents
Jeanette G. Garrison,
HLM, Inc. (f/k/a
Healthmaster, Inc.) and
*Counsel of Record Christopher Garrison

April 9, 1998

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0168%3A04. Public record. Not legal advice.