# Amicus Curiae Brief — Haddle v. Garrison

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## Record

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

## Text

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.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0168%3A13. Public record. Not legal advice.