On petition for writ of certiorari to the United States Court of
Appeals for the Fifth Circuit.
The petition for a writ of certiorari is denied.
Justice WHITE, dissenting.
The first part of 42 U.S.C. 1985(2) (1976 ed., Supp.III) creates
a private right of action for damages based on certain forms of
interference with federal judicial proceedings:
"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 property on account of his having so
attended or testified."
The second part of 1985(2) creates a similar cause of action for
interference with state proceedings:
"[I]f two or more persons conspire
for the purpose of impeding, hindering, obstructing, or defeating,
in any manner, the due course of justice in any State or Territory,
with intent 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 protections of the laws."
These two clauses are separated by a semicolon: The lower
federal courts have reached conflicting conclusions concerning the
effect of that semicolon.
Page 454 U.S.
1110 , 1111
Petitioner was employed as an oil driller by respondent D. J.
McDuffy, Inc., from December 1972 until April 1973. In March 1973,
McDuffy joined the Industrial Foundation of the South (IFS). IFS is
a nonprofit corporation, the purpose of which is to provide
information to its members concerning workers' compensation claims
and personal injury lawsuits in state and federal courts filed by
employees or prospective employees of the employer/members.
Apparently, the employer/members believe that they can reduce their
employers' insurance and workers' compensation costs by obtaining
this information, which may indicate whether a particular employee
is likely to be an insurance or compensation risk.
Petitioner alleges that when McDuffy joined IFS, McDuffy learned
that petitioner had previously pursued a lawsuit in federal court
against a former employer and had obtained a large judgment.
Contending that he was fired by McDuffy because of this prior suit,
petitioner filed a class action in Federal District Court on behalf
of all individuals who had been denied employment by IFS members
because they had filed workers' compensation or personal injury
claims against companies in the oil drilling business. [
Footnote 1] The complaint, based
entirely on 42 U.S.C. 1985(2) ( 1976 ed., Supp.III), sought damages
for the class and a permanent injunction enjoining the challenged
practices. [
Footnote 2] The
District Court granted respondents' motion for summary judgment. It
held that the complaint failed to allege facts that would bring
this case within either the first or second clause of 1985(2): A
conspiracy by employers to retaliate against employees for filing
personal injury suits fails to allege either an intent to deny the
equal protection of the laws-required by the second clause-or
injury for "having attended or testified in federal court,"
445 F.
Supp. 269, 276 (ED La.1978)-required by the first clause. A
divided panel of the Court of Appeals for
Page 454 U.S.
1110 , 1112
the Fifth Circuit reversed in part.
623 F.2d
1060 (1980). It held that under the first clause of
1985(2)-that part of the statute applicable to interference with
federal, as opposed to state, court proceedings-there is no
requirement of discriminatory animus and that the scope of the term
" attended" includes the filing of a complaint in federal court. A
petition for rehearing en banc was granted and a severely divided
Court of Appeals affirmed the District Court. CA 5,
648 F.2d
340 (1981).
By a vote of 11 to 10,3 the court held that the language of the
statute is not as important as its history. Thus, the fact that the
phrase "equal protection of the laws" is included in the second,
but not the first, part of 1985(2) is not as relevant to the proper
interpretation of the statute as is the fact that all of 1985(2) is
derived from the Ku Klux Act of 1871. Relying in part on this
Court's decision in Griffin v. Breckenridge,
403 U.S. 88d 338 (1971),
the majority held that an action under 1985(2) must allege a racial
or class-based animus. The dissent argued both that Griffin was
inapplicable because it dealt only with 1985(3) and that the intent
of the Ku Klux Act of 1871 was broader than the majority suggested
: "A major concern was restoration of civil authority and
preservation of orderly government, including federal court ability
to proceed without improper interference." 648 F.2d, at 350. In
their view, the second clause of 1985(2) included the equal
protection language because Congress was concerned about the
constitutional source of its power to create federal jurisdiction
over state torts or crimes. Because Congress had no similar concern
over its authority to protect federal-court proceedings, there was
no reason for a similar limitation on the first part of the
statute.
This dispute over the scope of 1985(2) has divided not only the
judges of the Fifth Circuit, but various other Federal Courts of
Appeals as well. The argument of the dissent
Page 454 U.S.
1110 , 1113
below was derived largely from McCord v. Bailey, 204
U.S.App.D.C. 334,
636 F.2d
606 (1980). That court held that "a class-based, invidiously
discriminatory intent is [not] an element of a cause of action
under the first clause of section 1985(2)." Id., at 342, 636 F.2d,
at 614. The Court of Appeals for the Third Circuit reached a
similar conclusion in Brawer v. Horowitz,
535
F.2d 830, 840 (1976):
"The first half of 1985(2) aims at conspiracies the object of
which is intimidation of or retaliation against parties or
witnesses . . . in any court of the United States. The federal
nexus, then is not the class-based, invidiously discriminatory
animus required by the second half of the subsection, but the
connection of the proscribed activities to a federal court."
On the other hand, the Court of Appeals for the Eighth Circuit
agrees with the position taken by the Fifth Circuit in this case:
"the racial or class-based discrimination rationale expressed by
the Supreme Court in Griffin v. Breckenridge,
403 U.S. 88, 101-102 [,
1797-1798 (1971) ], applies equally to [ 1985(2) ]." Jones v.
United States,
536 F.2d
269, 271 (1976).
In order to settle this conflict in the Circuits over the scope
of a federal remedy for interference with the federal judicial
process, I would grant the petition and set the case for plenary
consideration. [
Footnote 4]
Footnotes
Footnote 1 Besides McDuffy,
the defendants included IFS and all its members.
Footnote 2 The District
Court certified a class only with respect to the claim for
injunctive relief.
Footnote 3 Judge Clark
concurred in the majority's decision, but stated that it was not
necessary to reach this issue.
Footnote 4 An alternative
ground for the decision below was the majority's reversal of the
panel's holding that the filing of a complaint in federal district
court falls within the scope of the term "attending" as used in the
statute. The fact that the Court of Appeals could have relied
solely on this ground to reverse the panel decision does not
mitigate the precedential effect of its holding that invidious
discrimination must be alleged to state a cause of action under
1985(2), nor does it lessen the conflict in the Circuits:
"It does not make a reason given for
a conclusion in a case obiter dictum that it is only one of two
reasons given for the same conclusion . . . . we can not hold that
the use of the section in the opinion is not to be regarded as
authority except by directly reversing the decision in that case on
that point." Richmond Co. v. United States,
275 U.S.
331, 340, 196 (1928).
See also Massachusetts v. United States,
333 U.S.
611, 623, 754 (1948); United States v. Title Ins. Co.,
265 U.S.
472, 486, 623 (1924); Union Pacific R. Co. v. Mason City &
Fort Dodge R. Co.,
199 U.S.
160, 166, 20 (1905). In any case, the intended scope of the
term "attending" can only be determined by reviewing the same
legislative history as is involved in resolving the question of
whether an action under 1985(2) must allege class-based
discrimination. Because these two questions are so related, I would
grant review of petitioner's second question as well: Whether the
term "attending" includes the filing of a claim in federal court. I
would not, however, grant review of petitioner's third question:
Whether offshore workers constitute a "discrete class" for equal
protection purposes.
