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VA physician’s claim of retaliation to deter testimony cognizable under Sec. 1985(2)

By Ronald Miller, J.D.

The Supreme Court explained that the gist of the wrong at which Section 1985(2) is directed is not deprivation of property, but intimidation or retaliation against witnesses in federal court proceedings.

A district court erred in granting summary judgment in favor of an employee’s supervisors on a claim alleging they violated 42 U.S.C. § 1985(2) by conspiring to deter him from testifying in a colleague’s civil rights case and in his own case, ruled the Ninth Circuit. The Ninth Circuit noted that intervening authority from the U.S. Supreme Court in its 1998 ruling in Haddle v. Garrison abrogated the appeals court’s holding in David v. United States. David had held that only a party to the underlying litigation can demonstrate sufficient injury to state a claim under Section 1985(2). However, Haddle recognized a witness’s injury as cognizable because of the statute’s goal of guarding against undue influence in court proceedings. Accordingly, the judgment of the district court was reversed (Head v. Wilkie, September 5, 2019, Paez, R.).

Discrimination claims. The employee is an African-American, board-certified head and neck surgeon who held dual appointments at the Department of Veterans Affairs and UCLA. He alleged that during his time at both institutions, he endured discrimination, retaliation, and harassment on the basis of race. He participated in various internal investigations and EEO cases. In total, he filed three EEO complaints against the VA.

In March 2014, the employee filed an employment discrimination lawsuit against his employer alleging racial discrimination, retaliation, and hostile work environment in violation of Title VII. Separately, on July 8, 2014, he testified before a congressional committee regarding VA whistleblowers. Thereafter, he amended his complaint adding his VA supervisors as defendants.

Conspiracy claim. After the employee’s congressional testimony, his supervisor decided to remove him from her supervisory chain because she learned that the VA Administrative Investigation Board would be investigating his allegations. The employee was reassigned to a different chief of staff and his office was relocated.

In an amended complaint, the employee alleged that his supervisors violated 42 U.S.C. § 1985(2) by conspiring to deter him from testifying in a colleague’s and his own civil rights cases. Ultimately, the district court granted summary judgment to the supervisors on the employee’s Section 1985(2) conspiracy claim. Relying on the Ninth Circuit’s 1987 ruling in David v. United States, the district court granted the defendants’ motion for summary judgment on the conspiracy claim. The lower court’s ruling was based on David’s holding that only parties to the initial case who were “hampered in being able to present an effective case” can show injury sufficient to bring a Section 1985(2) claim.

Deterrence. On appeal, the employee argued that the district court erred by ignoring more recent case law addressing what type of injury suffices to bring a Section 1985(2) claim. Section 1985(2) proscribes conspiracies “to deter, by force, intimidation, or threat, any party or witness in any court in the United States from attending such court, or from testifying to any matter pending there in.” Here, the employee alleged that his supervisors conspired to deter him from testifying in the case of his former colleague, and in his own case.

Protected interest. Reviewing the Supreme Court’s decision in Haddle, the Ninth Circuit concluded that David no longer controls claims under Section 1985(2). In Haddle, the Supreme Court addressed a circuit split regarding the type of injury that is cognizable under Section 1985(2). In Haddle, an employee alleged that corporate officers conspired to fire him from his job in retaliation for his cooperation with a grand jury subpoena. The Eleventh Circuit affirmed a district court’s dismissal of Haddle’s case on the basis that an at-will employee had no constitutionally protected interest in continued employment, and therefore could not assert an injury under Section 1985(2).

The Supreme Court reversed, holding that termination from at-will employment could constitute harm to “person or property” for purposes of Section 1985(2) even though at-will employment is not “property” for purposes of the due process clause. The Court pointed out that the terms “injured in his person or property” in the statute refer to traditional principles of tort law, and that interference with contractual relations like at-will employment has long been a compensable injury under tort law.

Injury limitations. Prior to Haddle, the Ninth Circuit held that only a party to the underlying litigation can demonstrate sufficient injury to state a claim under Section 1985(2). The Supreme Court explained that the gist of the wrong at which Section 1985(2) is directed is not deprivation of property, but intimidation or retaliation against witnesses in federal court proceedings. By recognizing a witness’s injury as cognizable because of the statute’s goal of guarding against undue influence in court proceedings, Haddle logically abrogated David’s limitations on the type of injury that suffices for a claim under Section 1985(2), and that one must be a party to the underlying case to suffer cognizable injury.

Thus, in the Ninth Circuit’s first occasion to address the impact of Haddle on its Section 1985(2) case law, it held that David’s injury limitations no longer apply. Nonparties to the original judicial proceeding may pursue Section 1985(2) claims. The plaintiff asserting conspiracy under Section 1985(2) need not show that the party in the original proceeding was hampered in presenting an effective case. Rather, interference with a witness’s employment is a cognizable injury for Section 1985(2) purposes. Thus, the employee alleged a cognizable injury and may pursue a claim where he alleged that VA employees retaliated against him based on his testimony in a colleague’s civil rights case and in his own case.