Amicus Curiae Brief — Haddle v. Garrison

No. 97-1472

OF Ficg

In the Supreme Court of widmet tates

OCTOBER TERM, 1998

MICHAEL A. HADDLE, PETITIONER

v.

JEANETTE G. GARRISON, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

SETH P. WAXMAN

Solicitor General

Counsel of Record

BILL LANN LEE

Acting Assistant Attorney

General

BARBARA D. UNDERWOOD

Deputy Solicitor General

MATTHEW D. ROBERTS

Assistant to the Sclicitor

General

DAVID K. FLYNN

TIMOTHY J. MORAN

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

—

QUESTION PRESENTED

Whether an at-will employee who alleges that he was

dismissed from his employment in furtherance of a con-

spiracy to retaliate against him for his appearance in

federal court and to deter him and others from testifying

in subsequent federal court proceedings states a valid

claim for damages under the Civil Rights Act of 1871, 42

U.S.C. 1985(2) and (3).

TABLE OF CONTENTS

Page

Interest of the United States . . . .. .. 1

— . ů —— 2

Summary Menn . . . . cee 4

Argument:

I. The court of appeals erred in holding that

petitioner has no cause of action under Section

1985(2) because he did not allege injury

to a constitutionally protected interest 6

Il. Petitioner alleged sufficient injury to maintain

an action under Section 1985(2) by alleging

that he was “injured in his person or property”

by the termination of his employment ............. 11

A. A plaintiff is injured in his person or

property if he suffers loss or damage of

a type compensable in tort 12

B. Injury in person or property is not limited

to bodily injury and damage to tangible

————̃ 1

C. Loss of at-will employment entails injury

in person OF property .... . 18

III. The alternative grounds for affirmance

proffered by respondents lack merit ............... 24

A. Section 1985(2) is not limited to conduct

involving force or the threat of force 24

B. Limiting Section 1985(2) is not necessary

to avoid creating a general federal tort

272. — ů ——— — —

D u...... .

88

(III)

IV

TABLE OF AUTHORITIES

Cases:

Baab v. AMR Serv. Corp., 811 F. Supp. 1246

„

Baldwin v. Escanaba Dealers Ass'n, 130 N. W. 214

.

22»! x——

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

Board of County Comm'rs v. Umbehr, 518 U.S.

c ——— p ————————

Board of Regents v. Roth, 408 U.S. 564 (1972)

Borden v. Johnson, 395 S.E.2d (Ga. Ct. App.

— — ä sasicie ns tuitisie es

Bray v. Alexandria Womens Health Clinic, 506

/ » (— — c p———— — ons

Brever v. Rockwell Int'l Corp., 40 F.3d 1119 (10th

6 se

Brogan v. United States, 118 S. Ct. 805 (1998)

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

——— —ꝛꝛ ̃ — tiie

Crawford v. Johnson, 6 F. Cas. 777 (C. C. D.

nirö%hn,. /

Engelking v. Von Wamel, 26 Tex. 469 (1863)

Freche, In re, 109 F. 620 (D. NJ. 1901) . .

Garrison v. Burden, 40 Ala. 513 (1867) . ..

Goodman v. Lukens Steel Co., 482 U.S. 656

— —— ̃ Ä

Great American Fed. Sav. & Loan Ass'n v.

Novotny, 442 U.S. 366 (1979) . . . .

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

Harris v. Union Pacific R., 13 F. 591 (C. C. D.

25 . signin

9-10

9, 10

Cases—Continued: Page

Hartford Fire Ins. Co. v. California, 509 U.S.

6 ————————————j—çj—r— 6

Hoover v. Palmer, 80 N. C. 313 (1879) . . . 15

Hull v. Schuck, 501 U.S. 1261 (1991) . . . . . 29

Irizarry v. Quiros, 722 F.2d 869 (Ist Cir. 1983) ... 8. 12,

20, 21, 27, 29

Johnson v. Bradstreet Co., 13 S. E. 250 (Ga.

1 ̃ ——̃ —C— — 15, 16

Keating v. Carey, 706 F.2d 377 (2d Cir. 1983) 28

Kush v. Rutledge, 460 U.S. 719 (1983) 7, 8, 10, 11,

28

Leicester v. Hoadley, 71 P. 318 (Kan. 1903) 16

Lohse Patent Door Co. v. Fuelle, 114 S.W. 997

. 25

Maples, In re, 105 F. 919 (D. Mon. 1901) ................ 15

Mardell v. Harleysville Life Ins. Co., 31 F.3d 1221

(3d Cir. 1994), vacated on other grounds, 514 U.S.

„% 22

McChristal v. Clisbee, 76 N. E. 511 (Mass. 1906) 16

McCord v. Bailey, 636 F. 2d 606 (D.C. Cir. 1980),

cert. denied, 451 U.S. 983 (1981) . . . .. .. 10-11, 28

McDonald v. Brown, 51 A. 213 (R. I. 19027 16

McIntyre v. Kavanaugh, 242 U.S. 138 (1916) ........ 17

McKennon v. Nashville Banner Publ g Co., 513

F ciicianindedeiclitindiiitsinail cited staae itis 21, 22

Mendenhall v. Carter, 17 F. Cas. 12 (W. D. N. C.

. rr 25-26

Mississippi Band of Choctaw Indians v. Holyfield,

FSR A a eee 23

Morast v. Lance, 807 F.2d 926 (11th Cir. 1987) .... 4. 28

Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,

„ . 21, 22, 23

NLRB v. Jones & Laughling Steel Corp, 301 U.S.

1 — — 25

VI Vil

Cases—Continued: Page Cases—Continued: Page

Pennsylvania Dep't of Corrections v. Yeskey, 118 Ward V. Blackwood, 41 Ark. 295 (1883) eeocceccccecess 16

Se ae Sis Se Re 20 ae v. Lake County, 969 F.2d 250 (7th =

People v. Warden, 130 N.Y.S. 698 (App. Div.), ; 29—————j—j— ů ů —

aff d. 99 N. E. 1116 (N.Y. 1912) . .. 19 Wilson v. Garcia, 471 U.S. 261 (1985) ..... 19

Perrin v. United States, 444 U.S. 37 (1979) .......... 13 Windsor v. The Tennessean, 719 F.2d 155 (6th

Pitzer v. Russell, 4 Or. 124 (1871) . . . . . 25 Cir.), cert. denied, 469 U.S. 826 (1984) ...... 28

Portman v. County of Santa Clara. 995 F.2d 898 Wright v. No Skitter, Inc., 774 F.2d 422 (10th ‘tie

| RIPE ! ae 12, 20, 27 % ᷣĩ!AN— ——

Price Waterhouse v. Hopkins, 490 U.S. 228 Zabriskie v. Smith, 13 N.Y. 322 (1855) ... 16

1 —— — — TD Oy Eg ee 21-22 Constitution and statutes:

Rankin v. McPherson, 483 U.S. 378 (1987) ........... 22

, oe a 22

Reiter v. Sonotone Corp., 442 U.S. 330 (1979) ....... 9,17 — ons. of 1867, Art. 19, Declaration of Rights 15

Sanderson v. Hunt, 76 S. W. 179 (Ky. 1903) .......... 13 Cj 1 Rights Ae of 1871 ch. 22 92. 17 Stat. 13 * 7. 26

Scott v. Prudential Outfitting Co., 155 N. V. S. 497 * * G *

el. ee 19

Smith v. Sh n, 58 Mass. 408 (1849) 16 L 3, 4, 5, 7, 8, 9, 1 — —

State v. Kramer, 115 A. 8 (Del. Ct. Gen. Sess. 42 U.S.C. 1985(1) ‘ 7 la

— ——̃ siidiainti 19 cc 2

a ( passim

Mote v. Smith, 378 .W. 24 148 (Tenn. 1964) ....... 1 42 U.S.C. 108505) 1, 3, 5, 7, 8, 9, 10, 11, 19, 28, 30, 2a

Stern v. United States Gypsum Co., 547 F.2d 1329 Civil Rights Act of 1964, Tit. VII. 42 U.S.C. 20000

(7th Cir.), cert. denied, 434 U.S. 975 (1977) .......... 20 * Rien n 9 22

Stringer v. Sparrow Hosp., 233 N. W. 2d 698 (Mich. 1 4 1 e ede

. ————— en ee 19 „ eee at pe apenas *

Thompson v. Judy, 169 F. 553 (6th Cir. 1909) 15, 16 — aa — 3 ee eee eee e —

Times-Democrat Pub. Co. v. Mozee, 136 F. 761 — — my eee —

%%% ⁵— |i eee al 16 Di i ain aaa: So

Tinker v. Colwell, 193 U.S. 473 (1904) 15 a ee ee — —

Troy v. Interfinancial, Inc., 320 S. E. 2d 872 (Ga. — —j — —— —

„/,, consis 20 PLEAS eT PR ee

United Bhd. of Carpenters & Joiners v. Scott, Miscellaneous:

463 US. 825 (1983) . PTI ꝗ: m1 TTT Tere 6 6 6 6 6 6 6 6 6 6 6 6 0 0 1 B. V. Abbott, Dictionary of Terms and Phrases

8 — — 20 —... Deiat coteaaliccatcie ans 13

United States v. Price, $88 U.S. 787 (1986) .......... * Black's Law Dictionary (ist ed. 1891) ...........sss+0» 13

Vegelahn v. Cuntner, 44 N. E. 1077 (Mass. 1896) ... 25 Blackstone's Commentaries (Tucker ed. 1803) ........ 14

Wade v. Kalbfleish, 58 N.Y. 282 (1874) . . . 16

Vill

Miscellaneous—Continued: Page

1 J. Bouvier, A Law Dictionary Adapted to the

Constitution and Laws of the United States

of America (11th ed. 1862) . . .. .. . . . . 13, 15

A.M. Burrill, A Law Dictionary and Glossary (2d

ed. 1BBT) eee 13

Cong. Globe, 42d Cong., Ist Sess. (1871) 10, 17, 18, 23,

26-27

Random House Dictionary of the English Language

(2d ed. 1987 unabridged) . . . .... ... . . . . . . 12, 24, 25

T. Sedgwick, A Treatise on the Measure of Damages

(th Od. 1912) . eee 16

N. Webster, An American Dictionary of the English

Language (rev. ed. 1870) . . . 12, 13, 24, 25

In the Supreme Court of the United States

OCTOBER TERM, 1998

No. 97-1472

MICHAEL A. HADDLE, PETITIONER

.

JEANETTE G. GARRISON, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case presents the question whether an at-will em-

ployee has a cause of action for damages under the Civil

Rights Act of 1871, 42 U.S.C. 1985(2) and (3), when he is

dismissed from his job pursuant to a conspiracy to deter

him and others from appearing or testifying in federal

court or to retaliate against him for so appearing or testi-

fying. The United States often seeks the cooperation of

employees in investigations and court proceedings relat-

ing to actions that may violate federal law. A decision

clarifying the protection afforded by 42 U.S.C. 1985(2) to

employees who cooperate in those investigations and pro-

ceedings will likely affect the ability of the United States

to obtain such cooperation in the future.

(1)

2

STATEMENT

1. Petitioner Michael A. Haddle has alleged that he

was employed by respondent Healthmaster, Inc. (Health-

master), from 1986 to 1995. Amended Compl. { 7. Respon-

dents Jeanette G. Garrison, Dennis Kelley, and G. Peter

Molloy have all served in various capacities as officers and

directors of Healthmaster. Id. J 10.

According to petitioner’s complaint, on March 8, 1995, a

federal grand jury returned a 133-count indictment charg-

ing Garrison, Kelly, and Healthmaster with fraud.

Amended Compl. J 12. Molloy was not named in the in-

dictment. Id. J 13. Petitioner cooperated with federal

agents in the investigation that preceded the indictment.

Id. J 14. Petitioner also appeared to testify before the

grand jury, pursuant to a subpoena, although his testi-

mony was not presented. Ibid. Respondents were aware of

petitioner’s cooperation and were aware that he would

likely be a witness at the criminal trial. Id. JJ 16, 18.

Petitioner alleged that, as a result of the indictment,

the operations of Healthmaster were transferred to its

wholly owned subsidiary, Healthmaster Home Health

Care, Inc. (HHHC), which was placed under the protection

of the bankruptcy court. The bankruptcy court barred

Garrison and Kelly from any participation in HHHC.

Amended Compl. J 8, 15. Molloy became the president,

and petitioner became an employee, of HHHC. Id. J 8, 16.

According to petitioner’s complaint, after the indict-

ment and the transfer of Healthmaster’s operations, re-

spondents Molloy, Garrison, and Kelly agreed to bring

about petitioner’s termination from his new position at

HHHC. Amended Compl. J 18. Respondents intended this

termination as “retaliation against [petitioner] for his

cooperation with federal agents and his testimony under

subpoena to the federal grand jury.” Ibid. In addition, re-

spondents intended through petitioner’s termination to

3

intimidate petitioner and other Healthmaster employees

from cooperating with federal agents or testifying in any

criminal matters involving respondents. Ibid. At the time

they made the agreement, respondents Garrison and Kelly

were not employees of HHHC. Id. J 33. Pursuant to the

conspiracy, and at the direction of respondents Garrison

and Kelly, Molloy caused petitioner to be terminated from

his position on June 21, 1995. Id. J 16.

2. Petitioner brought suit in the United States Dis-

trict Court for the Southern District of Georgia, assert-

ing a federal claim under 42 U.S.C. 1985 and various state

law claims. Section 1985, in pertinent part, prohibits con-

spiracies either to deter, by force, threat, or intimidation,

any party or witness from attending or testifying freely,

fully, and truthfully in a federal court or to injure any

party or witness in his person or property because he at-

tended or testified in federal court. See 42 U.S.C. 1985(2)

(clause i). The statute provides a remedy in damages to

anyone who is injured in his person or property or

deprived of a federal right or privilege as a result of an act

in furtherance of a conspiracy prohibited under any part of

Section 1985, including clause one of Section 1985(2). See

42 U.S.C. 1985(3) (clause iii).

Petitioner alleged that his employment was terminated

in furtherance of respondents’ conspiracy to retaliate

against him for cooperating in the federal investigation

and testifying before the grand jury and to deter him and

others from testifying in the criminal proceedings, in

violation of Section 1985(2). Amended Compl. JJ 18, 20.

1 Because Section 1985 is complex, and we refer frequently through-

out this brief to specific clauses of the statute that are not numbered in

the statute as codified, we have reproduced the statute in the appendix

with roman numerals added to indicate the provisions that we refer to

as separate clauses. See App., infra, la-2a.

4

Petitioner further alleged that he was “injured in his per-

son and property” by respondents’ actions. Id. { 21.

Respondents moved to dismiss the suit for failure to

state a claim upon which relief can be granted. See Pet.

App. 3a-4a. The district court granted the motion on the

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

Pet. App. 5a-6a. In Morast, the Eleventh Circuit held that

an at-will employee who is dismissed pursuant to a con-

spiracy proscribed by 42 U.S.C. 1985(2) has no cause of

action. See 807 F.2d at 930. The Morast court explained

its holding as follows:

[Tjo make out a cause of action under § 1985(2) the

plaintiff must have suffered an actual injury. Because

Morast was an at will employee, see 12 U.S.C. § 24

(Fifth); O. C. G. A. § 34-7-1 (1981), he had no constitu-

tionally protected interest in continued employment.

Therefore, Morast’s discharge did not constitute an

actual injury under this statute.

807 F.2d at 930 (emphasis added). Because petitioner con-

ceded that he was an at-will employee, the district court

ruled that Morast required that his Section 1985 claim be

dismissed. Pet. App. 4a-6a. The district court also dis-

missed petitioner’s state claims. Id. at 6a.

Petitioner appealed to the United States Court of Ap

peals for the Eleventh Circuit, which affirmed in a three-

sentence opinion, holding that petitioner’s arguments

were foreclosed by Morast. Pet. App. la-2a. The court of

appeals denied petitioner’s suggestion for hearing en banc.

Id. at 2a n. I.

SUMMARY OF ARGUMENT

The court of appeals erred in holding that petitioner

must have suffered an injury to a constitutionally pro-

tected interest to maintain an action under Section 1985(2)

(clause i). The statute does not require injury to a federal

5

interest apart from the interest in the integrity of federal

judicial proceedings that is protected by the first clause of

Section 1985(2) itself. Requiring injury to an independent

constitutional or other federal interest conflicts with the

statute’s plain language and has no support in its leg-

islative history.

Section 1985(2) (clause i) protects the integrity of fed-

eral judicial proceedings by proscribing conspiracies to

deter a witness from attending or testifying in federal

court or to injure a witness in his person or property for

having done so. Section 1985(3) (clause iii) provides a

remedy in damages to anyone “injured in his person or

property” or deprived of a federal right or privilege as the

result of a conspiracy proscribed by Section 198502)

(clause i).

Petitioner alleged sufficient injury to sustain an action

under those provisions. A plaintiff is “injured in his per-

son or property” if he has suffered loss or damage of a type

compensable in a common law tort action. The loss need

not involve bodily injury or destruction of tangible prop-

erty. Damages resulting from termination of employment,

such as lost earnings, fall within the ambit of the statute.

The fact that the terminated employment was “at will”

does not disqualify the resulting injuries. Section 1985(2)

(clause i) grants prospective witnesses a substantive fed-

eral right to be free of conspiracies to deter or retaliate

against them for their attendance at federal court proceed-

ings. Employees do not lose their right to be free of re-

taliation in violation of federal law because their employ-

ment is at will under state law. This Court generally

avoids interpreting federal statutes in a way that makes

federal rights depend on the vagaries of state law. That

principle has particular force here, because Congress

enacted Section 1985 based on a belief that state authori-

ties were unwilling or unable to preserve civil order in the

South during the Reconstruction.

6

Respondents attempt to limit the coverage of Section

1985(2) (clause i) to actions involving force or the threat of

force, but that construction is not supported by either the

statute’s language or its legislative history and would un-

dermine the statute’s purpose. By its terms, the statute

fixes clear limits on its reach and does not require any

additional limitation by judicial implication.

ARGUMENT

The district court dismissed petitioner’s complaint for

failure to state a claim. A reviewing court must therefore

assume that the allegations in the complaint are true and

may affirm the dismissal only if petitioner clearly could

prove no set of facts that would entitle him to relief. See

Hartford Fire Ins. Co. v. California, 509 U.S. 764, 811

(1993). In affirming the dismissal, the court of appeals held

that termination of at-will employment may never cause

an injury sufficient to support suit under Section 1985(2)

(clause i). Pet. App. 2a. Because that conclusion rested on

an erroneous interpretation of the statute, the judgment of

the court of appeals must be reversed.

I. THE COURT OF APPEALS ERRED IN HOLD-

ING THAT PETITIONER HAS NO CAUSE OF

ACTION UNDER SECTION 1985(2) BECAUSE

HE DID NOT ALLEGE INJURY TO A CON-

STITUTIONALLY PROTECTED INTEREST

The first clause of Section 1985(2), under which peti-

tioner brought his action, provides in relevant part:

If two or more persons in any State or Territory con-

spire 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 to any

matter pending therein, freely, fully, and truthfully,

or to injure such party or witness in his person or

7

property on account of his having so attended or testi-

fied *x* * * g

42 U.S.C. 198502) (clause i). That clause must be read in

conjunction with the third and final clause of Section

1985(3), which provides the remedy:

Inn 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 conspira-

tors.

42 U.S.C. 1985(8) (clause iii).”

Nothing in the above language supports the holding of

the court of appeals that petitioner’s cause of action turns

on whether he has suffered an injury to a constitutionally

protected interest. Nor does the language provide any

2 The statutory provision codified as 42 U.S.C. 1985 was originally

enacted as Section 2 of the Civil Rights Act of 1871, ch. 22, 17 Stat. 13.

As originally enacted, Section 2 contained only one long paragraph. In

1874, Section 2 was reclassified as part of the consolidation and collec-

tion of all federal statutes and laws in the Revised Statutes, 18 Stat.

347. Although minor changes were made to Section 2 to accommodate

the classification, Congress did not intend to change its meaning. See

Kush v. Rutledge, 460 U.S. 719, 724 (1983). Except for the changes

made in the consolidation, Congress has never amended Section 1985.

We have reprinted the statute as originally enacted in the appendix to

this brief. See App., infra, 3a-5a.

In addition to the prohibition at issue here, Section 1985 also prohib-

its conspiracies to interfere with federal officers (Section 1985(1)), equal

protection in state courts (Section 1985(2) (clause ii)), private enjoyment

of equal protection of the laws (Section 1985(3) (clause i)), and advocacy

in federal elections (Section 1985(3) (clause ii)).

8

support for respondents’ variation on that holding (Resp.

Garrison, et al. Br. in Opp. 10-12, 13-15)—that petitioner

can only maintain an action if he can show injury to a

federal right or interest independent of his right to be free

from a conspiracy proscribed by the statute.

Section 1985(2) (clause i) protects the strong federal in-

terest in the integrity of federal judicial proceedings by

creating a substantive right to be free from conspiracies

to interfere with federal witnesses, parties and jurors. See

Kush v. Rutledge, 460 U.S. 719, 724 (1983) (the statute pro-

scribes “conspiracies that interfere with * * * the ad-

ministration of justice in federal courts”); id. at 726

(referring to a “violation” of “rights under the first clause

of § 1985(2)”); Irizarry v. Quiros, 722 F.2d 869, 872 (Ist

Cir. 1983). The statute does not require that the prohib-

ited conspiracies infringe any constitutional or federal

right apart from the right to participate in federal judicial

proceedings that is protected by the statute itself. Indeed,

in describing the proscribed conspiracies, Section 1985(2)

(clause i) does not use the terms “constitutional right,”

“federal right” or any similar language.

Section 1985(3) (clause iii), which specifies the remedy

for conspiracies proscribed by Section 1985(2) (clause i),

and for conspiracies proscribed by the other provisions of

Section 1985, does refer to a “right or privilege of a citizen

of the United States.” However, that reference refutes,

rather than supports, the contention that deprivation of a

federal right is a necessary element of an action for dam-

ages under the statute.

The remedy clause authorizes a cause of action for dam-

ages if the plaintiff is either “injured in his person or

property, or deprived of having and exercising any right or

privilege of a citizen of the United States.” 42 U.S.C.

1985(3) (clause iii) (emphasis added). The use of the dis-

junctive makes clear that the remedy provided by the stat-

ute is not limited to situations in which a plaintiff is de-

9

prived of a federal right or privilege. See, e. g., Reiter v.

Sonotone Corp., 442 U.S. 330, 339 (1979) (terms connected

by a disjunctive should generally be given separate mean-

ings). The remedy also encompasses any situation in

which the plaintiff is “injured in his person or property”

by a conspiracy prohibited by Section 1985(2) (clause i).

And, as explained above, neither those conspiracies nor the

resulting injuries necessarily entail deprivation of an in-

dependent federal right.

The court of appeals may have been misled because

other provisions of Section 1985 do limit their prohibitions

to conspiracies involving deprivation of an independent

federal right. Those provisions—which are not aimed at

protecting federal courts, officers, or elections, and are

not at issue in this case—prohibit conspiracies to deny

persons the “equal protection of the laws” or “equal privi-

leges and immunities under the laws.”

For example, Section 1985(3) (clause i) provides a cause

of action against two or more persons who “conspire or go

in disguise on the highway or on the premises of another”

for the purpose of depriving persons of “equal protection of

the laws” or “equal privileges and immunities under the

laws.” This Court has held that the equal protection lan-

guage in Section 1985(3) (clause i) imposes two limitations

on claims brought under that provision. First, the plain-

tiff must prove that “some racial, or perhaps otherwise

class-based, invidiously discriminatory animus [lies]

behind the conspirators’ action.” See Bray v. Alexandria

Women’s Health Clinic, 506 U.S. 263, 268 (1993) (quoting

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

the equal protection language makes clear that Section

1985(3) (clause i) creates no substantive rights. The

plaintiff must identify elsewhere a right to which the

conspiracy sought to deny equal access. See United Bhd.

of Carpenters & Joiners v. Scott, 463 U.S. 825, 833 (1983);

Great American Fed. Sav. & Loan Ass 'n v. Novotny, 442

10

U.S. 366, 376 (1979). See also 42 U.S.C. 1985(2) (clause ii)

(prohibiting conspiracies to deny equal protection by

interfering with state courts).

The provisions of Section 1985 that prohibit conspira-

cies to interfere with federal courts, officers and elections,

however, do not contain equal protection language. See

Kush, 460 U.S. at 724-725. The absence of that language is

not an accident. As the Court explained in Kush, the

sponsors inserted the equal protection language into

selected portions of the Civil Rights Act of 1871 (such as

Section 1985(3) (clause i)) in order to address constitu-

tional objections that the “enormous sweep of the original

language” improperly extended federal authority and

displaced state control over private conduct. See Kush,

460 U.S. at 726 (quoting Griffin, 403 U.S. at 99-100); see

also Cong. Globe, 42d Cong., Ist Sess. H. 477 (1871) (Rep.

Shellabarger); id. at H. 485 (Rep. Cook). Congress included

equal protection language to make clear that private

conduct that did not directly threaten federal interests

would be proscribed only when it was aimed at rights that

were otherwise protected by federal law.

The legislative concern that motivated the limitation on

Section 1985(3) (clause i) does not apply to the portions of

Section 1985 that prohibit interference with federal

courts, officers and elections. Kush, 460 U.S. at 726.

Neither opponents nor proponents of the bill questioned

Congress’s authority to prohibit interference with wit-

nesses, parties and jurors in the federal courts. See Kush,

460 U.S. at 727 (citing Cong. Globe, 42d Cong., Ist Sess. H.

486 (1871) (Rep. Cook); id. at S. app. 220 (Sen. Thurman)).

That interference necessarily implicates federal inter-

ests, and the limiting language was therefore deemed un-

necessary. See Kush, 460 U.S. at 725; see also McCord v.

Bailey, 636 F.2d 606, 616 (D.C. Cir. 1980) (Section 1985

requires “violations of an explicit federal interest” for

“obstruction of justice in state courts,” but, for “acts

11

interfering with the operation of federal courts, no limita-

tion was made”), cert. denied, 451 U.S. 983 (1981).

In requiring that the plaintiff show an injury to a sepa-

rate constitutional interest in his employment, the Elev-

enth Circuit improperly imported the requirements of

Section 1985(3) (clause i) into Section 1985(2) (clause i) and

ignored important differences in the language and pur-

poses of the two provisions. This Court rejected that ap-

proach in Kush, supra. In that case, the Court held that

the district court improperly required a plaintiff suing

under Section 1985(2) (clause i) to prove that the conduct

he challenged was motivated by racial or other class-based

animus, proof that would have been required in a suit un-

der Section 1985(3) (clause i). The Court explained that

the textual basis for the race or class-based animus re-

quirement—the equal protection language in Section

1985(3) (clause i)—does not appear in Section 198502)

(clause i). Kush, 460 U.S. at 724-725. The reasoning in

Kush applies with equal force here.

il. PETITIONER ALLEGED SUFFICIENT INJURY

TO MAINTAIN AN ACTION UNDER SECTION

1985(2) BY ALLEGING THAT HE WAS “IN-

JURED IN HIS PERSON OR PROPERTY” BY

THE TERMINATION OF HIS EMPLOYMENT

Petitioner’s allegation that he was “injured in his per-

son or property” by the termination of his employment in

furtherance of a conspiracy proscribed by Section 1985(2)

(clause i) is sufficient to support his cause of action. A

plaintiff is “injured in person or property” within the

meaning of the statute if he suffers any loss or damage of a

type compensable in a tort suit at common law. Damages

such as lost earnings that result from termination of em-

ployment fall clearly within the ambit of the statute. The

fact that the terminated employment was “at will” does

12

not disqualify the resulting harm from being an injurſy]

in person or property.”

A. A Plaintiff Is Injured In His Person Or Prop-

erty If He Suffers Loss Or Damage Of A Type

Compensable In Tort

The statute provides a remedy in damages to anyone

who has been “injured in his person or property” as a

result of an act in furtherance of a conspiracy proscribed

by Section 1985(2) (clause i). As several courts of appeals

have recognized, the requirement of “injury” to “person or

property” demands only that a plaintiff have suffered some

loss or damage of the type compensable in a tort suit at

common law. See /rizarry, 722 F.2d at 871 (term “prop-

erty” in Section 1985 “must include any economic damage

that would be recognized in an ordinary tort suit”); accord

Portman v. County of Santa Clara, 995 F.2d 898, 910 (9th

Cir. 1993).

At the time Congress enacted the Civil Rights Act of

1871, the term “injured” had much the same meaning that

it has today: harmed, hurt, or damaged in any way. A lead-

ing dictionary of the day offered the following definitions:

“To do harm to; to impair the excellence and value of; to

hurt; to damage.” N. Webster, An American Dictionary

of the English Language 694 (rev. ed. 1870). That die-

tionary went on to explain that “injure” was “used in a

variety of senses,” including:

(a.) To hurt or wound, as the person; to impair

soundness, as of health. (b.) To damage or lessen the

value of, as goods or estate. (c.) To slander, tarnish,

or impair, as reputation or character. (d.) To impair or

3 Similarly, today “injure” is broadly defined as “to do or cause

harm or any kind to; damage; hurt; impair.” Random House Diction-

ary of the English Language 983 (2d ed. 1987 unabridged). The diction-

ary adds that “INJURE is a general term referring to any kind or de-

gree of damage.” I[bid.

13

diminish, as happiness. (e.) To give pain to, as the

sensibilities or the feelings; to grieve; to annoy. (f.)

To impair, as the intellect or mind.

Ibid. The first edition of Black’s Law Dictionary also

broadly defined injury as “[aJny wrong or damage done to

another.” Black’s Law Dictionary (Ist ed. 1891).

* The term “injury” has also sometimes been used to signify dam-

age caused by the violation of a legal right. See, g., 1 B. V. Abbott,

Dictionary of Terms and Phrases Used in American or English

Jurisprudence 612 (1879); A. M. Burrill, A Law Dictionary and

Glossary 79 (2d ed. 1867). It is unlikely, however, that Congress used

the word “injured” in the remedy clause of Section 1985 to require not

only actual harm or damage but also the violation of a right under

state or federal law separate and apart from the right protected by

Section 1985(2) (clause i) itself. First, the remedy clause becomes

relevant only after a plaintiff establishes violation of a right provided

in one of the substantive clauses of Section 1985. Requiring an addi-

tional violation would be redundant. Second, as discussed at p. 23,

infra, the historical context in which Congress enacted Section 1985

suggests that Congress did not intend the remedy for violations of the

statute to depend on state law.

Moreover, it is a fundamental canon of statutory interpretation that

words should be given their ordinary, contemporary, common meaning.

See, e. g., Perrin v. United States, 444 U.S. 37, 42 (1979). The legal die-

tionaries of the late nineteenth century recognized that Jin ordinary

language,” injury “means any loss.” Abbott, supra; see also Burrill,

supra (“In ordinary language, this word has effectually usurped the

meaning of damnum, (damage.)”). Both legal dictionaries and courts

of the time commonly used “injury” to signify a harm that might or

might not violate a legal right or give rise to a remedy. See, e., 1 J.

Bouvier, A Law Dictionary Adapted to the Constitution and Laws of

the United States of America 636 (11th ed. 1862) (“There are many inju-

ries for which the law affords no remedy.”); Sanderson v. Hunt, 76

S. W. 179 (Ky. 1908) (“An injury to one’s person may be done in a

number of ways. For example, it may be done to some member of his

body, it may be to his state or peace of mind * * * . The law may not

allow a recovery for all such injuries.”).

14

The statute also requires that the harm or damage a

plaintiff suffers be “in his person or property.” At the

time that Section 1985 was enacted, that phrase broadly

encompassed all harms compensable in a tort suit.

Blackstone used the phrase to distinguish actions in tort

from actions in contract:

Personal actions are such whereby a man claims a

debt or personal duty, or damages in lieu thereof; and,

- likewise, whereby a man claims a satisfaction in dam-

ages for some injury done to his person or property.

The former are said to be founded on contracts, the

latter upon torts or-wrongs.

XR X * * *

Of the former nature are all actions upon debts or

promises; of the latter are all actions for trespasses,

nuisances, assaults, defamatory words, and the like.

4 Blackstone’s Commentaries 117 (Tucker ed. 1803).

Blackstone distinguished generally between rights of per-

son and rights of property, which he referred to as “rights

of things.” The former are rights that the individual ob-

tains by virtue of his personhood. The latter are rights

that the individual obtains through his possession or own-

ership of property. See id., Vol. 2, at 122; id., Vol. 3, at 1.

As the Georgia Supreme Court noted in summarizing the

classifications used by Blackstone and others:

At common law, absolute personal rights were divided

into personal security, personal liberty, and private

property.

XR X X * *

No provision has been made for any middle class of in-

juries between those to person and those to property,

and the great body of wrongs arrange themselves un-

der the one head or the other.

15

Johnson v. Bradstreet Co., 13 S.E. 250 (Ga. 1891); accord

Hoover v. Palmer, 80 N.C. 313, 314 (1879); Thompson v.

Judy, 169 F. 553, 555-556 (6th Cir. 1909). See also 1 J.

Bouvier, A Law Dictionary Adapted to the Constitution

and Laws of the United States of America 636 (11th ed.

1862) (noting that legal injuries can be divided into

injuries to person and injuries to personal and real prop-

erty); Md. Const. of 1867, Art. 19, Declaration of Rights

(dividing injuries for which the law ought to provide a

remedy into injuries to “person” and “property”). In es-

sence, every type of damage for which the courts may

provide compensation in a tort suit may be classified as an

injury either to a person or to his property.

B. Injury In Person Or Property Is Not Limited

To Bodily Injury and Damage to Tangible

Property

Respondents’ suggestion (Resp. Garrison, et al. Br. in

Opp. 18-19) that “injur[y] in person or property” embraces

only bodily injuries or destruction of tangible property is

untenable. Respondents’ argument is contradicted by nu-

merous court decisions confirming that “injuries to the

person” encompass non-physical harms and “injuries to

property” include various monetary losses. Moreover, the

construction of the phrase proposed by respondents would

frustrate the purpose of the statute.

1. Courts in the nineteenth and early twentieth cen-

tury routinely ruled that tort actions complaining of adul-

tery,” seduction of a minor, alienation of spousal affec-

5 See, e.g., Tinker v. Colwell, 198 U.S. 473 (1904); Garrison v. Bur-

den, 40 Ala. 513, 515-516 (1867). ;

6 See, e.g., Hoover v. Palmer, 80 N.C. at 314-315; In re Freche, 109

F. 620, 620-621 (D. N.J. 1901); In re Maples, 105 F. 919 (D. Montana

1901).

16

tions,’ breach of promise of marriage, defamation,”

malicious prosecution” and legal malpractice" should be

considered actions for “injuries to the person,” even

though they involved no bodily injury.” Those courts

reasoned that injuries such as mental anguish, injury to

reputation, and other intangible harms are properly

classed as injuries to the person. See, e.g., McDonald v.

Brown, 51 A. 213, 214 (R. I. 1902); Wade v. Kalbfleish, 58

N.Y. 282, 285 (1874).” |

Similarly, “injury to property” has long been construed

to include monetary losses, not simply the destruction of

tangible property. Thus, this Court has held that con-

See, e.g., Leicester v. Hoadley, 71 P. 318, 320 (Kan. 1908).

See, e.g., Wade v. Kalbfleish , 58 N.Y. 282, 287 (1874); Zabriskie v.

Smith, 13 N.Y. 322, 333 (1855).

See, e.g., Times-Democrat Pub. Co. v. Mozee, 186 F. 761, 763 (5th

Cir. 1905); McDonald v. Brown, 51 A. 213, 214 (R. I. 1902); Hutcherson

v. Durden , 39 S. E. 495 (Ga. 1901); Johnson, supra; Thompson, supra.

” See, e.g., MeChristal v. Clisbee, 76 N. E. 511 (Mass. 1906).

See, e.g., Zabriskie v. Smith, 13 N. V. 322, 333 (1855).

Courts have construed the term more narrowly only when they

have found a clear legislative purpose to limit the application of the

relevant statute. See, e.g., Engelking v. Von Wamel, 26 Tex. 469, 470-

471 (1863) (slander is not an injury to the person within the jurisdiction

of justices of the peace); Smith v. Sherman, 58 Mass. 408, 413 (1849)

(nonphysical injuries are not “damage to person” for which an action

survives the death of the victim); Ward v. Blackwood, 41 Ark. 295, 299

(1883) (relying on Smith). A narrow construction is inappropriate here,

because there is no indication that Congress intended a meaning more

limited than the ordinary meaning. As this Court has counseled, the

Reconstruction civil rights acts should be “accord{ed] a sweep as broad

as their] language.” United States v. Price, 383 U.S. 787, 801 (1966).

Not all intangible harms were compensable at common law. The

traditional rule was that mental injury was not compensable unless it

was real. Mere annoyance, vexation, or inconvenience could not support

an award of damages. See, ., T. Sedgwick, A Treatise on the

Measure of Damages § 46a, at 74-75 (9th ed. 1912).

17

sumers who allegedly paid higher prices as a result of

anti-competitive activity had suffered an injury to prop-

erty within the meaning of the Clayton Act. Reiter, 442

U.S. at 339. Similarly, this Court has also held that con-

version is an injury to property within the meaning of the

Bankruptcy Act. McIntyre v. Kavanaugh, 242 U.S. 138,

141 (1916). See also Crawford v. Johnson, 6 F. Cas. 777,

778 (Cir. Ct. D. Ore. 1868) (No. 3369) (debt arising from

embezzlement of funds is an injury to property). As this

Court noted in Reiter, “the word ‘property’ has a naturally

broad and inclusive meaning. In its dictionary definitions

and in common usage, ‘property’ comprehends anything of

material value owned or possessed. Money, of course, is a

form of property.” 442 U.S. at 338 (citation omitted).

2. Restricting Section 1985(2) to injuries involving

bodily harm or destruction of tangible property would deny

full effect to Congress’s purpose in enacting the statute.

Congress passed the Civil Rights Act of 1871 (popularly

known as the Ku Klux Klan Act) in response to wide-

spread lawless activity and resistance to federal authority

in the South. Although that lawlessness and resistance to

authority often involved bodily harm or physical destruc-

tion of property, it was also manifested in other ways.

Members of Congress were concerned that perjury, jury

nullification, witness intimidation, and other abuses were

rendering the state court justice system ineffective." Few

Representative Coburn’s colorful language accurately conveys

the view of many Members:

The arresting power is fettered, the witnesses are silenced, the

courts are impotent, the laws are annulled, the criminal goes free,

the persecuted citizen looks in vain for redress.

Cong. Globe, 42d Cong., Ist Sess. H. 459 (1871). See also id. at S. 158

(Sen. Sherman); id. at H. 320-321 (Rep. Stoughton); id. at S. app. 252

(Senator Morton); id. at H. 437 (Rep. Cobb); id. at H. 481 (Rep. Wilson

of Indiana); id. at S. 654 (Sen. Osborn).

18

perpetrators were being convicted, even when the evidence

of their guilt was clear.” Members of the Ku Klux Klan

and their sympathizers were expected to give perjured

testimony to exonerate Klan members who were accused

of acrime. If selected to be on the jury, Klan members

were expected to acquit, regardless of the strength of the

evidence.“

In response to those problems, Congress enacted See-

tion 19852) to protect witnesses, parties and jurors in

federal courts from intimidation and retaliation. See

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

Edmunds). Congress framed the language of the statute

broadly, to address the breadth of the problem it

confronted. Those Members who discussed the provision

at issue in this case also described it in broad terms. See

id. at H. 486 (Rep. Cook) (Now, if there be any combina-

tion of men who shall combine and conspire together for

the purpose of preventing * * * a witness from testifying

in a court of the United States * * * or to punish a

witness for testifying truthfully, that combination is an

offence against the United States.”); id. at S. 568 (1871)

(Senator Edmunds) (Section 2 “gives a civil action to

anybody who shall be injured by the conspiracy.”). Thus,

the statutory language as well as its purpose refute any

contention that “injur[y] in person or property” is limited

to physical harm.

C. Loss of At-Will Employment Entails Injury In

Person Or Property

1. Damages caused by the termination of employment

are “injur[y] in person or property” within the meaning of

® See, e.g., Cong. Globe, 42d Cong., Ist Sess. H. 374 (1871) (Rep.

Lowe); id. at S. 505 (Senator Pratt); id. at S. 608 (Sen. Edmunds).

© See, g., Cong. Globe, 42d Cong., Ist Sess. S. 158 (1871) (Sen.

Sherman); id. at H. 320-321 (Rep. Stoughton); id. at S. app. 252 (Sen.

Morton).

19

Section 1985(3) (clause iii). Termination of employment

results in monetary losses such as lost wages and lost

benefits. Usually, the terminated employee also incurs

expenses to find substitute employment. Loss of employ-

ment may also give rise to intangible injuries such as

emotional distress, loss of self-esteem, and diminished pro-

fessional reputation.

All of those harms were routinely compensated in tort

actions in the second half of the nineteenth century. See,

e. g., Beckwith v. Bean, 8 U.S. 266, 276 (1878) (damages

may include “direct expenses incurred by the injured

party, his loss of time, his bodily sufferings, under some

circumstances his mental agony, his loss of reputation,

the degree of indignity involved in the wrong done, and the

consequent public disgrace attending the injury”); Harris

v. Union Pacific R., 13 F. 591, 592, 594 (Cir. Ct. D. Col.

1882) (McCrary, C. J.) (allowing damages for loss of wages

based on plaintiff's claim that he was “injured in his per-

son” by defendant’s negligence). Courts in the early twen-

tieth century readily concluded that harms caused by loss

of employment were injuries to person or property. And

courts today continue to hold that loss of employment

results in injuries to person“ and property.“

* See, e. g., Scott v. Prudential Outfitting Co., 155 N. V. S. 497, 499

(N.Y. App. Term 1915) (at-will employment); People v. Warden, 130

N.Y.S. 698 App. Div.), affirmed, 99 N.E. 1116 (N.Y. 1912); State v.

Kramer, 115 A. 8, 11 (Del. Ct. of Gen. Sess. 1921).

8 Baab v. AMR Serv. Corp., 811 F. Supp. 1246, 1262 (N. D. Ohio

1993) (emotional distress arising out of constructive discharge is injury

to the person); Stringer v. Sparrow Hosp., 233 N.W.2d 698 (Mich. Ct.

App. 1975) (wrongful loss of employment causes injury to the person).

Cf. Goodman v. Lukens Steel Co., 482 U.S. 656, 661-662 (1987) (employ-

ment discrimination claims under 42 U.S.C. 1981 are analogous to

claims for personal injuries for purposes of borrowing state statute of

limitations); Wilson v. Garcia, 471 U.S. 261, 277, 280 (1985) (same with

respect to claims under Section 1983). It is also worth noting that

20

Respondents contend (Resp. Garrison, et al. Br. in Opp.

19) that the 1871 Congress never expressly contemplated

that the statute would apply to retaliatory discharges. As

this Court has noted, however, the fact that a statute

applies “in situations not expressly anticipated by Con-

gress does not demonstrate ambiguity. It demonstrates

breadth.” Pennsylvania Dep't of Corrections v. Yeskey,

118 S. Ct. 1952, 1956 (1998). Congress could have chosen to

limit the language of its corrective legislation to the

southern States, to the Ku Klux Klan, or to the precise

types of outrages persons had testified were occurring in

1871. Legislation, however, often addresses specific prob-

lems in more general ways. See Stern v. United States

Gypsum, Inc., 547 F.2d 1329, 1335 (7th Cir.), cert. denied,

434 U.S. 975 (1977). And it cannot be doubted that intimi-

dating witnesses by discharging employees who testify in

federal court proceedings threatens corruption of the ju-

dicial process of the type Congress feared when it enacted

Section 1985(2).

Congress in 1871 saw the problem of witness intimida-

tion and retaliation as a severe threat to the administra-

tion of justice in the federal courts, and it enacted Section

1985(2) to address that problem. The methods of witness

intimidation most prevalent today may or may not be the

same as those in common use in 1871, but Congress used

Westlaw’s keynote system categorizes loss of earnings as injury to the

person. See Westlaw 115k99.

See, g, Portman, 995 F.2d at 909 (termination of at-will em-

ployment results in injury to property under Section 1985); Irizarry,

722 F.2d at 871 (refusal to rehire causes injury to property under See-

tion 1985(2)); Troy v. Interfinancial, Inc., 320 S.E. 2d 872, 877 (Ga. Ct.

App. 1984) (“an employee, generally, has a property right in his

contract of employment (written or verbal) (even if it is at the will of

the employer) which may not be unlawfully interfered with by

another”); State v. Smith, 273 S.W.2d 148, 146 (Tenn. 1954) (threat of

loss of employment is threat of injury to property).

21

language broad enough to reach the wide variety of meth-

ods by which witnesses can be subjected to intimidation

and retaliation, including methods that it may not have

contemplated at the time. That broad language must be

respected. See Brogan v. United States, 118 S. Ct. 805, 809

(1998).

2. The fact that petitioner was employed “at will” does

not mean he could not be “injured in person or property”

by the termination of his employment. As a general

matter, an employee does not forfeit his rights under

federal law because his employment is at will under state

law. As one Georgia court noted in explaining the interac-

tion between the doctrine of at-will employment and

federal statutes, “an at-will employee whose employment

is ‘wrongfully’ terminated in violation of the public policy

that is established by specific state or federal statutes

may pursue his applicable statutory remedy without being

barred by the proposition that an employer otherwise

incurs no liability for discharging an at-will employee.”

Borden v. Johnson, 395 S.E.2d 628, 629 (Ga. Ct. App. 1990).

At-will status simply means that an employee may be

discharged for any reason that does not violate state or

federal law. It does not mean that an employer, or others,

may ignore state and federal protections extended to the

employee.”

Nor can respondents credibly suggest that an at-will employee

whose employment has been terminated in violation of federal law

nonetheless suffers no harm because the employee could, theoretically,

have been discharged for other reasons. At-will employees discharged

for reasons that violate federal law may recover the economic damages

sustained because of the wrongful discharge. See, g., Mt. Healthy

City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 277 (1977) The de-

fendant may attempt to prove that the employee would have been dis-

charged in any event for lawful reasons, but that fact must be proved.

See McKennon v. Nashville Banner Publ y Co., 513 U.S. 352, 362-363

(1995); Price Waterhouse v. Hopkins, 490 U.S. 228, 252-253 (1989)

This Court has consistently affirmed that principle.

For example, public employees who are discharged in re-

taliation for exercising their First Amendment rights

may have a valid cause of action under 42 U.S.C. 1983 (1994

& Supp. II 1996), even if they are defined as at-will em-

ployees under state law. See Rankin v. McPherson, 483

U.S. 378, 383-384 (1987); Mt. Healthy City Sch. Dist. Bd. of

Educ. v. Doyle, 429 U.S. 274, 283-284 (1977) Government

contractors enjoy similar protection, even if their con-

tracts are terminable or non-renewable at-will. See Board

of County Comm'rs v. Umbehr, 518 U.S. 668, 684-685

(1996). Similarly, the courts of appeals have uniformly

held that Title VII of the Civil Rights Act of 1964, 42

U.S.C. 2000e et seq., protects at-will employees from

discriminatory discharge. See, eg., Merdell v. Har-

leysville Life Ins. Co., 31 F.3d 1221, 1233 (8d Cir. 1994),

vacated on other grounds, 514 U.S. 1034 (1995); Washing-

ton v. Lake County, 969 F.2d 250, 256 (7th Cir. 1992). So

too, Section 1985(2) (clause i) protects at-will employees

from discharge to prevent or to retaliate against them for

the exercise of the right to be a federal witness.”

(plurality opinion); id. at 260 (White, J. concurring in judgment); id. at

261 (O’Connor, J., concurring in judgment); Mt. Healthy, 429 U.S. at

287. The trier of fact may not simply assume that, because an em-

ployee could have been fired for other reasons, that necessarily would

have happened. Proving tha the same decisi n would have been jus-

tified is not equivalent te proving that the same decision would have

been made. See McKennon, 513 U.S. at 360.

21 Respondents’ reliance on Board of Regents v. Roth, 408 U.S. 564

(1972), and Bishop v. Wood, 426 U.S. 341 (1976), is misplaced. Those

decisions corern the property interest that a public employee must

demonstrate in his or her job in order to invoke the Constitution's pro-

tection of procedural due process. Because a cause of action under Sec-

tion 19852) (clause i) does not require injury to a constitutionally pro-

tected interest, see pp. 6-11, supra, whether petitioner has been de-

prived of property within the meaning of the Due Process Clause is not

relevant to his claim under the statute. Nothing in Roth or Bishop

Exempting at-will employees from the protection of

Section 1985(2) would make the vindication of important

federal interests depend on the vagaries of state law. This

Court avoids that result if possible whenever Congress

has created a federal statutory right, because “federal

statutes are generally intended to have uniform nation-

wide application.” See Mississippi Bond of Choctaw

Indians v. Holyfield, 490 U.S. 30, 43 (1989).

A conclusion that the rights created by Section 1985(2)

turn on state law would be particularly inappropriate.

Congress enacted the Civil Rights Act of 1871 precisely

because it believed that a federal solution was necessary to

the disorder and anarchy that plagued the southern

United States at that time. Many Members of Congress

expressed concern that state authorities were unwilling

or unable to act effectively to prevent unlawful conduct.

See, e.g., Cong. Globe, 42d Cong., Ist Sess. S. 158 (1871)

(Sen. Sherman); id. at H. 320-321 (Rep. Stoughton); id. at

S. app. 109 (Sen. Pool); id. at H. 394 (Rep. Rainey); id. at S.

app. 252 (Senator Morton). For example, one Member of

Congress noted an incident in Florida in which a Florida

court had ruled that Florida law provided no remedy for

victims whose home had been invaded by armed men. See

id. at H. 447 (Rep. Butler). Given the congressional skep-

ticism about state authorities and processes that prompted

enactment of Section 1985(2), this Court should not impute

to Congress the intent to make the statute’s protection

depend on the very state law mechanisms that Congress

found inadequate in the first place.

suggests that a person who lacks a property interest protected by pro-

cedural due process because his employment is at will is thereby de-

prived of compensation for injuries that he sustains when his employ-

ment is terminated in violation of federal law. Indeed, this Court has

held to the contrary. See note 20, supra; Mt» Healthy, 429 U.S. at 277,

2883-284.

24

III. THE ALTERNATIVE GROUNDS FOR AFFIR-

MANCE PROFFERED BY RESPONDENTS

LACK MERIT

A. Section 1985(2) Is Not Limited To Conduct

Involving Force Or The Threat Of Force

Contrary to respondents’ suggestion (Garrison, et al.

Br. in Opp. 23-25), Section 1985(2) is not limited to con-

spiracies that involve force or the threat of force. The

limitation advocated by respondents is unsupported by the

statute’s language and legislative history, would under-

mine the statute’s purpose, and has not been adopted by the

courts of appeals.

Respondents attempt to ground a requirement of force

or the threat of force in the statutory provision that pro-

scribes conspiracies to deter testimony by “force, intimi-

dation, or threat.” 42 U.S.C. 1985(2) (clause i). However,

“force” is only one of the three alternate means of deter-

rence prohibited by the statute. Neither “intimidation”

nor “threat” requires force or threat of force.

In 1871, “intimidation” included any action that rea-

sonably inspires fear in another.” See N. Webster, supra,

at 710 (defining “intimidate” as “to make timid or fearful;

to inspire with fear; to dishearten; to abash.”). At that

time, courts frequently used the words “intimidate” or

“intimidation” to refer to actions that did not involve the

use or threat of force, but involved economic coercion.

See, e.g., United States v. Castillero, 67 U.S. (2 Black) 17,

91 (1863) (threat to expose legal documents); Mendenhall

2 The word has virtually the same meaning today. See Random

House Dictionary of the English Language 1000 (2d ed. 1987 un-

abridged) (defining “intimidate” to mean: “1. To make timid; fill with

fear; 2. To overawe or cow, as through the force of personality or by

superior display of wealth, talent; 3. To force into or deter from some

action by inducing fear; to intimidate a voter into staying away from

the polls.”).

v. Carter, 17 F. Cas. 12, 14 (W.D.N.C. 1872) (No. 9426)

(threat to file proceedings in bankruptcy court); Pitzer v.

Russell, 4 Or. 124, 127 (1871) (accumulation of costs in

legal proceedings). In the ensuing decades, a number of

courts held explicitly that statutes proscribing “intimida-

tion” were not limited to actions involving the use or

threat of force but also applied to economic coercion. See,

e.g., Vegelahn v. Guntner, 44 N.E. 1077 (Mass. 1896)

(intimidation not limited to threats of violence or physical

injury); Baldwin v. Escanaba Dealer’s Ass’n, 130 N.W.

214, 219 (Mich. 1911) (same); Lohse Patent Door Co. v.

Fuelle, 114S.W. 997, 1004 (Mo. 1908) (same); Barr v. Essex

Trades Council, 30 A. 881, 888 (N.J. Ch. 1894) (same).”

The term “threat” is also not limited to threat of force

or violence. See N. Webster, supra, at 1378 (defining

threat as “denunciation of ill; declaration of an intention

or determination to inflict punishment, loss, or pain on an-

other; a menace”); Random House Dictionary of the Eng-

lish Language 1975 (2d ed. 1987 unabridged).

In any event, the statute prohibits not only conspiracies

to deter participation in federal court proceedings by

“force, intimidation, or threat” but also conspiracies to in-

jure a person “in his person or property” on account of the

person’s testifying in or attending federal court. As ex-

plained above, injury to person or property need not neces-

sarily result from the use or threat of force. See pp. 15-17,

supra.

When Congress has wanted to limit the reach of a stat-

ute proscribing interference with federally protected

Indeed, this Court has recognized, in a different context, that

termination of employment may constitute a means of intimidation.

See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 45-47 (1987)

(National Labor Relations Act prohibits employers from discharging

employees in order to “intimidate or coerce [them] with respect to their

self-organization and representation”).

26

rights to actions involving “force or threat of force,” it

has done so expressly. See, e.g., 18 U.S.C. 245(b) (interfer-

ence with federally protected activities); 18 U.S.C.

248(a)(1)-(3) (access to clinic entrances); 42 U.S.C. 3631

(interference with fair housing rights). Indeed, another

provision of Section 2 of the Civil Rights Act of 1871

prohibited a conspiracy “by force to seize, take, or possess

any property of the United States contrary to the author-

ity thereof.” 17 Stat. 13 (emphasis added). The absence of

any such limitation in Section 1985(2) (clause i) strongly

indicates that Congress did not intend to limit the stat-

ute’s prohibition to actions involving force or the threat of

force.

The legislative history of the proposed Sherman

Amendment to the Civil Rights Act of 1871 supports that

conclusion. The Sherman Amendment, which was ap-

proved by the Senate, would have made cities, counties, and

parishes liable for certain injuries caused by mob violence.

Unlike most other provisions of the Civil Rights Act of

1871, the Sherman Amendment would have applied only to

actions that resulted in the destruction of tangible prop-

erty or bodily injury by “force and violence.”™ See Cong.

The Sherman Amendment provided in relevant part:

That if any house tenement, cabin, shop, buildings, barn, or gran-

ary shall be unlawfully or feloniously demolished, pulled down,

burned, or destroyed, wholly or in part, by any persons riotously

and tumultuously assembled together; or if any person shall un-

lawfully and with force and violence be whipped, scourged,

wounded, or killed by any persons riotously and tumultuously as-

sembled together with intent to deprive any person of any right

conferred upon him by the Constitution and laws of the United

States, or to deter him or punish him for exercising such right, or

by reason of his race, color, or previous condition of servitude, in

every such case, the county, city, or parish in which any of the

said offenses shall be committed shall be liable to pay full com-

27

Globe, 42d Cong., Ist Sess. S. 755 (1871). The Sherman

Amendment was not approved by the House, and the final

bill eliminated it in favor of a different provision that was

ultimately codified at 42 U.S.C. 1986. See id. at H. 804.

The language of the Sherman Amendment, however, illus-

trates that when legislators in 1871 wanted to reach only

conduct that involved “force and violence” and destruction

of tangible property, they thought it feasible and neces-

sary to state that limitation expressly. Congress could

have included similar language in Section 1985(2) had it

intended to limit that Section to acts involving force or

threat of force, and it did not do so.

Limiting the reach of the statute to intimidation or re-

taliation that involves force or the threat of force would

frustrate the statute’s broad purpose. As described above,

Congress’s concerns in passing Section 1985 were not

limited to curbing violence. Congress was also concerned

with the corruption of the state judicial system through

such non-violent means as jury nullification and perjury

by persons who were sympathetic to the lawless conduct of

the Ku Klux Klan. See pp. 17-18, supra. The threat of ter-

minating employment and other acts of economic coercion

are just as likely to foster the corruption of the judicial

process that Congress sought to eliminate as the threat of

violence.

It is thus not surprising that no court of appeals has en-

dorsed respondents’ crabbed viewed of the protection af-

forded by Section 1985(2) (clause i). The courts of appeals

have sustained actions under the statute based on a vari-

ety of conspiracies that did not involve force or the threat

of force. See, e. g., Irizarry, supra (failure to rehire);

Portman, supra (retaliatory discharge); Wright v. No

pensation to the person or persons damnified by such offense, if

living, or to his widow or legal representative if dead.

Cong. Globe, 42d Cong., Ist Sess. S. 755 (1871) (emphasis added).

28

Skitter, Inc., 774 F.2d 422 (10th Cir. 1985) (conspiracy to

defeat low bidder on contract); McCord, supra (misconduct

by attorney); ef. Windsor v. The Tennessean, 719 F.2d 155

(6th Cir.) (defamation causes injury sufficient to support

action under Section 1985(1)), cert. denied, 469 U.S. 826

(1984); Stern, supra (same).”

B. Limiting Section 1985(2) Is Not Necessary To

Avoid Creating A General Federal Tort Law

Respondents’ suggestion (Resp. Garrison, et al. Br. in

Opp. 15) that Section 1985(2) (clause i) must be given a

narrow interpretation to avoid creating an open-ended

federal tort law has already been rejected by this Court.

As the Court explained in Kush, 460 U.S. at 726, the con-

cerns that caused Congress to narrow the scope of Section

1985(3) (clause i) are not implicated by Section 1985(2)

(clause i). See p. 10, supra. Because 1985(2) (clause i)

makes actionable only conspiracies to interfere with the

federal courts, there is no danger of federalizing tort law.

See Kush, 460 U.S. at 723, 726. Nor is there any need to

constrain the scope of the statute to avoid doubts about

Congress’s authority to enact the provision. See Kush,

460 U.S. at 727; McCord, 636 F.2d at 614 n.12, 617.

Section 1985(2) (clause i) does not prohibit all in-

terference with the federal courts. First, the statute

reaches only conspiracies and does not cover unilateral ac-

2% Even the Eleventh Circuit in Morast v. Lance, 807 F.2d 926, 930

(1987), did not hold that the statute only proseribes conspiracies involv-

ing force or threat of force. The court of appeals did hold, however, that

allegations of “anger and vindictiveness, extensive questioning re-

garding leaks to the press, exclusion from board meetings, and a

decreased workload” do not constitute “force, intimidation, or threat.”

Judge Meskill of the Second Circuit has suggested that the phrase

“force, intimidation, or threat” should be read to “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., dissent-

ing), but the Second Circuit has not adopted that view.

29

tion. See /rizarry, 722 F.2d at 872.“ Second, the statute

requires proof that the purpose of the conspiracy was im-

proper—either to deter someone from participating in

federal court proceedings or to injure someone in retalia-

tion for his participation. Proof of the required motive

will ordinarily be difficult unless the injury or threatened

injury posed by the alleged conspiracy is sufficiently

severe that a reasonable person would feel compelled not to

attend court or to testify untruthfully. Finally, the plain-

tiff must establish either the deprivation of a federal right

or privilege, or damage of a type compensable in a common

law tort suit. See pp. 12-17 & note 13, supra.

The alleged conspiracy in this case falls squarely

within the prohibition of the statute. Conspiracies to dis-

charge employees in retaliation for testifying truthfully

in federal court present precisely the type of threat to the

integrity of federal judicial proceedings that Section 1985

was intended to address. The loss of earnings suffered by

petitioner as a result of the termination of his employment

is a concrete, economic harm of the type routinely com-

pensated at common law and is substantial enough to sup-

port an action under the statute.”

* One potential issue in some retaliatory discharge cases under

Section 1985(2) is whether the intra-corporate conspiracy doctrine,

which holds that employees of a single entity cannot conspire with each

other, applies to claims brought under the statute. This Court has

never addressed that question. See Hull v. Schuck, 501 U.S. 1261

(1991) (White, J. dissenting from the denial of the petition for certio-

rari). Respondents did not raise that issue in the court of appeals, and

it is not encompassed in the question presented by the petition for cer-

tiorari. In any event, in this case, the alleged conspirators were not all

employed by the same corporation at the time of the alleged conspir-

acy, so the doctrine would not be applicable. See Jrizarry, 722 F.2d at

872.

7 Respondents also urge affirmance on two grounds that are not

fairly included in the question presented by the petition for certiorari,

that were not passed on by the district court or court of appeals, and

30

CONCLUSION Respectfully submitted.

The judgment of the United States Court of Appeals for

the Eleventh Circuit should be reversed, and the case we WAXMAN

remanded with instructions to reinstate the complaint. BILL LANN LEE

Acting Assistant Attorney

General

BARBARA D. UNDERWOOD

Deputy Solicitor General

MATTHEW D. ROBERTS

Assistant to the Solicitor

General

DAVID K. FLYNN

TIMOTHY J. MORAN

Attorneys

JULY 1998

that are, in any event, without merit. First, respondents suggest that

Section 1985(2) (clause i) provides a remedy in damages only for parties

to litigation. Although the remedy clause (Section 1985(3) (clause iii))

uses the term “party” when it describes who may sue for damages

under the statute, that term is used as a synonym for “person” and is

not intended to restrict actions for damages to parties to a court

proceeding. See Brever v. Rockwell Int! Corp., 40 F.3d 1119, 1125 &

n.7 (10th Cir. 1994). Because the remedy clause applies to actions based

on all the conspiracies prohibited by Section 1985, most of which do not

even involve court proceedings, reading “party” as limited to a party

to a judicial proceeding would vitiate the statute. In fact, as enacted,

the statute used the word “person” rather than “party.” See 17 Stat. 14

(reprinted at App., infra, 5a). The substitution of the term “party”

occurred when all federal statutes were consolidated in the Revised

Statutes, and as explained at note 2, supra, the consolidation was not

intended to change the meaning of the statutes.

Respondents’ second contention—that Section 1985(2) (clause i) is

only implicated when a witness actually testifies in court—conflicts

with the plain statutory language, which prohibits retaliation against

a witness who has “attended or testified.“ 42 U.S.C 198502) (clause i).

Moreover, respondents’ limitation on the statute would frustrate its

purpose by depriving plaintiffs of a cause of action whenever a con-

spiracy to deter testimony is successful. See Chahal v. Paine Webber,

Inc., 725 F.2d 20, 24 (2d Cir. 1984).

APPENDIX

1. Section 1985 of Title 42, United States Code, pro-

vides:

(1) Preventing officer from performing duties

If two or more persons in any State or Territory

conspire to prevent, by force, intimidation, or threat, any

person from accepting or holding any office, trust, or place

of confidence under the United States, or from discharg-

ing any duties thereof; or to induce by like means any

officer of the United States to leave any State, district, or

place, where his duties as an officer are required to be

performed, or to injure him in his person or property on

account of his lawful discharge of the duties of his office,

or while engaged in the lawful discharge thereof, or to

injure his property so as to molest, interrupt, hinder, or

impede him in the discharge of his official duties;

(2) Obstructing justice; intimidating party, wit-

ness, or juror

[Clause i] 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 to

any matter pending therein, freely, fully, and truthfully,

or to injure such party or witness in his person or prop-

erty on account of his having so attended or testified, or to

influence the verdict, presentment, or indictment of any

grand or petit juror in any such court, or to injure such

juror in his person or property on account of any verdict,

presentment, or indictment lawfully assented to by him, or

of his being or having been such juror; [Clause ii] or if

two or more persons conspire for the purpose of impeding,

hindering, obstructing, or defeating, in any manner, the

(la)

2a

due course of justice in any State or Territory, with in-

tent to deny to any citizen the equal protection of the laws,

or to injure him or his property for lawfully enforcing, or

attempting to enforce, the right of any person, or class of

persons, to the equal protection of the laws;

(3) Depriving persons of rights or privileges

[Clause i] 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 person or class of per-

sons of the equal protection of the laws, or of equal

privileges and immunities under the laws; or for the pur-

pose of preventing or hindering the constituted authori-

ties of any State or Territory from giving or securing to

all persons within such State or Territory the equal

protection of the laws; [Clause ii] or if two or more

persons conspire to prevent by force, intimidation, or

threat, any citizen who is lawfully entitled to vote, from

giving his support or advocacy in a legal manner, toward

or in favor of the election of any lawfully qualified person

as an elector for President or Vice President, or as a

Member of Congress of the United States; or to injure any

citizen in person or property on account of such support or

advocacy; [Clause iii] 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 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.

3a

2. Section 2 of the Civil Rights Act of 1871, ch. 22, 17

Stat. 13, provides:

That if two or more persons within any State or

Territory of the United States shall conspire together to

overthrow, or to put down, or to destroy by force the

government of the United States, or to levy war against

the United States, or to oppose by force the authority of

the government of the United States, or by force,

intimidation, or threat to prevent, hinder, or delay the

execution of any law of the United States, or by force to

seize, take, or possess any property of the United States,

contrary to the authority thereof, or by force, intimida-

tion, or threat to prevent any person from accepting or

holding any office or trust or place of confidence under

the United States, or from discharging the duties thereof,

or by force, intimidation, or threat to induce any officer of

the United States to leave any State, district, or place

where his duties as such officer might lawfully be per-

formed, or to injure him in his person or property on

account of his lawful discharge of the duties of his office,

or to injure his person while engaged in the lawful dis-

charge of the duties of his office, or to injure his property

so as to molest, interrupt, hinder, or impede him in the

discharge of his official duty, or by force, intimidation, or

threat to deter any party or witness in any court of the

United States from attending such court, or from testify -

ing in any matter pending in such court fully, freely, and

truthfully, or to injure any such party or witness in his

person or property on account of his having so attended or

testified, or by force, intimidation, or threat to influence

the verdict, presentment, or indictment, of any juror or

grand juror in any court of the United States, or to injure

such juror in his person or property on account of any

verdict, presentment, or indictment lawfully assented to

4a

by him, or on account of his being or having been such

juror, or shall conspire together, or go in disguise upon

the public highway or upon the premises of another for tthe

purpose, either directly or indirectly, of depriving any

person or any class of persons of the equal protection, of

the laws, or of equal privileges or immunities under tthe

laws, or for the purpose of preventing or hindering ‘the

constituted authorities of any State from giving or

securing to all persons within such State the equal

protection of the laws, or shall conspire together for the

purpose of in any manner impeding, hindering, obstrwct-

ing, or defeating the due course of justice in any State or

Territory, with intent to deny to any citizen of the United

States the due and equal protection of the laws, or to

injure any person in his person or his property for

lawfully enforcing the right of any person or class of

persons to the equal protection of the laws, or by force, in-

timidation, or threat to prevent any citizen of the Uniited

States lawfully entitled to vote from giving his support or

advocacy in a lawful manner towards or in favor of the

election of any lawfully qualified person as an elector of

President or Vice-President of the United States, or as a

member of the Congress of the United States, or to injure

any such citizen in his person or property on accoumt of

such support or advocacy, each and every persom so

offending shall be deemed guilty of a high crime, and, upon

conviction thereof in any district or circuit court of the

United States or district or Supreme court of any Terri-

tory of the United States having jurisdiction of similar

offences, shall be punished by a fine not less than five

hundred nor more than five thousand dollars, or by im-

prisonment, with or without hard labor, as the court may

determine, for a period of not less than six months nor

more than six years, as the court may determine, or by

both such fine and imprisonment as the court shall

5a

determine. And if any one or more persons engaged in any

such conspiracy shall do, or cause to be done, any act in

furtherance of the object of such conspiracy, whereby any

person shall be injured in his person or property, or

deprived of having and exercising any right to privilege of

a citizen of the United States, the person so injured or

deprived of such rights and privileges may have and

maintain an action for the recovery of damages occasioned

by such injury or deprivation of rights and privileges

against any one or move of the persons engaged in such

conspiracy, such action to be prosecuted in the proper

district or circuit court of the United States, with and

subject to the same rights of appeal, review upon error,

and other remedies provided in like cases in such courts

under the provisions of the act of April ninth, eighteen

hundred and sixty-six, entitled “An act to protect all

persons in the United States in their civil rights, and to

furnish the means of their vindication.”