Hobson v

Hobson v. Wilson, 737 F.2d 1 (D.C. Cir.1984)

**224 *6 Appeals from the United States District Court for the District of Columbia (Civil Action No. 76-1326).

Richard B. Nettler, Asst. Corp. Counsel, Washington, D.C., with whom Judith W. Rogers, Corp. Counsel, Washington, D.C. (at the time the brief was filed), Charles L. Reischel, Deputy Corporation Counsel, and Edward S. Schwab, Asst. Corp. Counsel, Washington, D.C., were on the brief, for appellants, Wilson, et al., in Nos. 82-2159 and 82-2221 and appellees in Nos. 82-2226 and 82- 2227.

David H. White, Washington, D.C., of the Bar of the Supreme Court of Kentucky, pro hac vice, by special leave of the Court, with whom J. Paul McGrath, Asst. Atty. Gen., Stanley S. Harris, U.S. Atty., Washington, D.C. (at the time the brief was filed), Barbara L. Herwig and Marc Johnston, Attys. Dept. of Justice, Washington, D.C., were on the brief for Brennan, Moore, Pangburn and Grimaldi, appellants in No. 82-2160 and appellees in Nos. 82-2226 and 82-2227.

A. Raymond Randolph, Washington, D.C., with whom Christopher L. Varner, Washington, D.C., was on the brief, for Jones, appellant in No. 82-2160 and appellee in Nos. 82-2226 and 82-2227.

Anne Pilsbury, New York City, with whom Morton Stavis, Hoboken, N.J., and Arthur B. Spitzer, Washington, D.C., were on the brief, for Hobson, et al., appellees in Nos. 82-2159, 82-2160, 82-2221 and appellants in Nos. 82-2226 and 82-2227. Mary B. Pike and Herb Semmel, New York City, entered appearances for Hobson, et al.

Richard K. Willard, Acting Asst. Atty. Gen., Joseph E. diGenova, U.S. Atty., Barbara L. Herwig and Freddi Lipstein, Attys., Dept. of Justice, Washington, D.C., on petition for rehearing and rehearing en banc on behalf of appellate Brennan, Moore, Pangburn and Grimaldi.

TABLE OF CONTENTS

BACKGROUND

I. The Parties ................................................. 8

II. The Facts ................................................... 9

III. The Causes of Action ....................................... 13

IV. The Special Verdicts ....................................... 13

DISCUSSION

I. Liability Under Section 1985(3) ............................ 14

A. The Statutory Scheme .................................... 14

B. Applicability of Section 1985(3) to the District of

Columbia and Its Employees .............................. 16

C. Applicability of Section 1985(3) to Federal Officers .... 19

D. Class-Based Discriminatory Animus ....................... 20

II. Harlow V. Fitzgerald and Defendants' Qualified Immunity .... 24

A. Qualified Immunity and the Harlow Standard .............. 24

B. Application of the Harlow Standard ...................... 25

C. Pleading Unconstitutional Motive ........................ 29

D. Municipal Liability ..................................... 31

III. Statute of Limitations ..................................... 32

A. Fraudulent Concealment: Case Law ........................ 33

B. The Tolling Doctrine Applied ............................ 36

1. The Self-Concealing Wrong ............................ 36

2. Notice to Trigger the Statute of Limitations ......... 38

C. Remaining Objections to the Fraudulent Concealment

Instructions ............................................ 41

IV. Defendant Courtland Jones .................................. 42

V. Juror Contact .............................................. 46

VI. Sufficiency of the Evidence ................................ 50

A. The Conspiracies ........................................ 51

B. Individual Liability .................................... 55

VII. Damages .................................................... 57

VIII. Arguments on Cross-Appeal .................................. 63

A. Expungement of FBI Records .............................. 64

CONCLUSION ........................................................ 66

ON PETITION FOR REHEARING ......................................... 66

*7 **225 Before EDWARDS, SCALIA and STARR, Circuit Judges.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

This case presents yet another chapter in the saga of the Federal Bureau of Investigation's notorious COINTELPRO operation. It is now clear that COINTELPRO has long been abandoned; but, as this case demonstrates, its victims have remained vigilant in seeking redress for past wrongs.

In 1976, several Washington area residents, who had been politically active in the late 1960s and early 1970s, brought suit in District Court claiming that certain of their constitutional rights had been violated. The plaintiffs sought damages and injunctive relief against numerous active and retired special agents of the Federal Bureau of Investigation (FBI) and members of the Metropolitan Police Department (MPD), as well as the District of Columbia itself. The amended complaint, filed October 28, 1977, alleged that each defendant had violated plaintiffs' constitutional rights, individually and through conspiracies, while plaintiffs engaged in lawful political protest against Government policies. [n 1]

n 1. I Joint Appendix ("J.A.") 130.

Following a 17-day trial, over which Judge Oberdorfer ably presided, a jury returned verdicts against most of the defendants and in favor of most of the plaintiffs. The jury also awarded substantial compensatory and punitive damages: awards to the eight prevailing plaintiffs, against the thirteen defendants found liable, totalled $711,937.50. [n 2]

n 2. In his thoughtful opinion addressing defendants' motions for judgment notwithstanding the verdict, Judge Oberdorfer concluded that the punitive damage awards against two MPD defendants were not supported by the evidence. See Hobson v. Wilson, 556 F.Supp. 1157, 1194 (D.D.C.1982).

On appeal, defendants have raised a number of arguments. We have given every argument thorough consideration and, following a painstaking effort--including examination of the record, verdicts and decisions from the trial court, review of the parties' briefs and study of the relevant statutory and case law--we have reached the following conclusions: (1) the claims of three of the prevailing plaintiffs against the FBI defendants were barred by the statute of limitations, and the judgments in their favor cannot stand; (2) the evidence was insufficient to support findings of liability against the individual MPD defendants and the District of Columbia, and the judgments against them cannot stand; (3) the evidence was insufficient to support findings that the FBI defendants participated *8 **226 in a conspiracy with MPD officials, and findings of liability for their participation in a joint FBI-MPD conspiracy are reversed; (4) consistent with our holdings herein, the damages issues are remanded for further consideration; and (5) in all other respects the judgments at trial--including the findings of individual and conspiratorial liability against the FBI defendants--are affirmed, except for our remand for reconsideration of one issue raised on cross-appeal.

BACKGROUND

I. The Parties

We begin with a brief review of the parties to this action. Because each plaintiff brings an individual claim, as well as conspiracy claims, against each defendant, it is crucial that we set forth clearly the role that each played during the relevant time period.

In the late 1960s and early 1970s, each plaintiff engaged in a variety of activities--such as organizing meetings and demonstrations, and publishing newsletters--to express disagreement with, and rally support against, certain national and local Government policies. Generally, they focused their efforts on three issues: military involvement in Vietnam, proposals to build a superhighway through the District of Columbia, and equal rights for Black citizens of the District of Columbia. Each individual plaintiff played a leadership role in one or more of these efforts.

Plaintiff Sammie Abbott, a graphic artist, organized and was active in the Emergency Committee on the Transportation Crisis (ECTC), a coalition of Black and White neighborhood associations that opposed freeway construction through the District of Columbia. Plaintiff Abe Bloom, an engineer, was especially active in antiwar organizations, such as the Washington Mobilization Committee (WMC) and the Washington Area Peace Action Coalition (WAPAC), which organized major antiwar demonstrations in the District of Columbia. Plaintiff Reginald Booker, a federal employee, worked with Mr. Abbott on the freeway issue, helped to organize the Black United Front (BUF), and tried to foster local Black opposition to the Vietnam war.

Plaintiff Tina Hobson, a federal employee, participated in the organization of antiwar demonstrations and worked with her husband, the late Julius Hobson, who was active in the Black United Front. Plaintiff Richard Pollock, a college student at the relevant time, was principally involved in antiwar protest, and was active in the Student Mobilization Committee and other antiwar organizations. Plaintiff the Reverend David Eaton, minister of All Souls Church, was one of the founders and leaders of the Black United Front and participated in planning the 1968 Poor People's Campaign, a major civil rights demonstration.

Plaintiff Arthur Waskow, a Fellow at the Institute for Policy Studies--a research center whose scholars focused on public policy, race relations and foreign policy--organized and spoke at several antiwar demonstrations. Plaintiff Washington Peace Center, an organization affiliated with the Society of Friends, participated in the organization of several antiwar demonstrations during the relevant period. [n 3]

n 3. Plaintiff Women Strike for Peace, another peace organization, has cross-appealed on several grounds in an effort to reverse the jury's finding against its claim. See Discussion section VIII, infra.

During the same period, defendants Brennan, Moore, Jones, Grimaldi and Pangburn were employed by the FBI. Defendant Charles D. Brennan was chief of the Internal Security Section in FBI headquarters from 1966 to 1970. From 1970 to 1971, Mr. Brennan was assistant director in charge of the Domestic Intelligence Division. In the former position, he was responsible for the FBI's COINTELPRO-New Left activity. [n 4] In the latter job, he had overall responsibility both for COINTELPRO-*9 **227 New Left and COINTELPRO-Black Nationalist. [n 5] Mr. Brennan apparently authored an FBI memorandum announcing the creation of COINTELPRO-New Left in 1968, and another memorandum bearing his name recommended termination of the program in 1971.

n 4. This program is discussed in Background section II, infra.

n 5. Id.

Defendant George C. Moore was chief of the Racial Intelligence Section in FBI headquarters from 1967 to 1974. The section supervised field office implementation of COINTELPRO-Black Nationalist. The internal FBI memorandum announcing COINTELPRO-Black Nationalist went out over his name.

Defendant Courtland J. Jones held a liaison position between the Washington Field Office (WFO) of the FBI and FBI headquarters. From 1964 to 1974, he was WFO security coordinator and supervised nine squads, including Squad 5 and Squad 7. Squad 5 initially handled both New Left and racial matters but subsequently was divided into two squads. Squad 5 then handled racial matters and COINTELPRO-Black Nationalist, and Squad 7 was responsible for the New Left and COINTELPRO-New Left.

Defendant Gerald T. Grimaldi was a special agent in the WFO from 1956 to 1971. From the mid-1960s to 1970, he was a member of Squad 7, which investigated persons and individuals affiliated with the New Left; and from 1968 to 1970, he was the designated COINTELPRO-New Left Coordinator. In April 1971, he became supervisor of Squad 5, which handled racial matters and COINTELPRO-Black Nationalist.

Defendant Gerould W. Pangburn, a WFO Special Agent, was a member of Squad 7 in 1968, was then transferred to Squad 5, and was Squad 5 supervisor from 1972 to 1974. In both squads he handled investigations of alleged "racial extremists."

Plaintiffs also filed claims against MPD officials, as well as against the District of Columbia itself. Defendant Jerry V. Wilson was Chief of Police during the relevant period. Defendant Thomas J. Herlihy supervised the MPD Intelligence Division, and was responsible for its activities, until his retirement in 1973.

Sergeant Jack L. Acree and Lieutenant George R. Suter were successive supervisors in the MPD Security Information Unit of the Intelligence Division. Sergeant Acree was in the Unit from 1966 to 1972; Lieutenant Suter was assigned to the Unit from 1968 to 1970 and from 1972 to 1975.

Defendants Christopher Scrapper, Edward Jagen and John W. Mahaney were officers in the MPD Intelligence Division. Officer Jagen served undercover after 1971 and attended meetings of the Washington Area Peace Action Coalition (WAPAC) and the Peoples Coalition for Peace and Justice (PCPJ). Sergeant Scrapper supervised officer Jagen and other informants in the antiwar movement. Officer Mahaney supervised at least two undercover officers, one of whom obtained information on BUF and ECTC, the other of whom was active in two antiwar groups. [n 6]

n 6. The jury found in favor of these two Intelligence Division undercover officers, Harold Bynum and Ann Kolego-Markovich, who prevailed on their affirmative defenses. Defendants Wilson, Herlihy and the District were found liable to all plaintiffs, while other MPD defendants were found liable only to some plaintiffs.

II. The Facts

According to plaintiffs, the FBI defendants conspired with each other, with other FBI agents and with the District defendants [n 7] to impede plaintiffs' efforts to associate with others for the purpose of publicly expressing opposition to the Vietnam War, national and local Government race relations policies, and other Government actions. Many of the defendants' activities from which plaintiffs alleged they were injured were related to COINTELPRO, an FBI program begun in 1967 and discontinued **228 *10 in the early 1970s. [n 8] COINTELPRO had two components; one was COINTELPRO-New Left, which, as implemented, was a "vaguely defined and haphazard" [n 9] operation targeting people who opposed American involvement in the Vietnam War and other related policies of the national Government; the second was COINTELPRO-Black Nationalist, which, as implemented, was directed at people seeking improvement of civil rights for Black people. The goal and strategy of these secret programs are not in doubt: a memorandum prepared and circulated by one of the FBI defendants described the COINTELPRO-New Left program as follows:

n 7. We use the term "District defendants" to refer to the individual MPD defendants and the District of Columbia.

n 8. A Senate Report published in 1976 summarized the results of an investigation into federal domestic intelligence activities. The report discussed at length the FBI's covert actions in its COINTELPRO program and documented a wide array of tactics employed by the FBI; only a sliver of the actions documented were mentioned at trial. See generally Select Comm. To Study Governmental Operations With Respect to Intelligence Activities, Final Report, S.Rep. No. 755, Book II (Intelligence Activities and the Rights of Americans), 94th Cong., 2d Sess. (1976) (detailing the scope of the COINTELPRO activities) [hereinafter "Senate Report"].

n 9. Id. at 88.

The purpose of this program is to expose, disrupt and otherwise neutralize the activities of this group and persons connected with it. It is hoped that with this new program their violent and illegal activities may be reduced if not curtailed. [n 10]

n 10. IV J.A. 1742 (memorandum from C.D. Brennan to W.C. Sullivan).

The lack of any FBI definition of "New Left" apparently resulted in the targeting of almost every antiwar group, including those involved in legitimate, non-violent activities. See Senate Report, note 8, supra, at 88.

The purpose of COINTELPRO-Black Nationalist basically was the same as the New Left program. An airtel dated August 25, 1967 set forth the goals as follows:

The purpose of this new counterintelligence endeavor is to expose, disrupt, misdirect, discredit, or otherwise neutralize the activities of black nationalist, hate-type organizations and groupings, their leadership, spokesmen, membership, and supporters, and to counter their propensity for violence and civil disorder. [n 11]

n 11. IV J.A. 1726.

The lack of standards restricting the scope of this program, as with the New Left program, apparently led the FBI to investigate and target persons involved in nonviolent political expression, regardless of their involvement in disorders. See Senate Report, note 8, supra, at 177.

Among the primary goals of COINTELPRO was the prevention of coalitions among Black Nationalist groups and between Black Nationalist groups and the predominantly White New Left. Thus, the COINTELPRO-Black Nationalist program was intended to "[p]revent the coalition of militant black nationalist groups," [n 12] and to "[p]revent militant black nationalist groups and leaders from gaining respectability, by discrediting them to three separate segments of the community." [n 13] Targets of these efforts included the Southern Christian Leadership Conference and the Student Nonviolent Coordinating Committee. [n 14] At least two plaintiffs were identified as Black Nationalists by the FBI and listed in the Agitator list of violence-prone people. [n 15] *11 **229 At the same time, the FBI sought to promote political differences within New Left organizations and between New Left and Black Nationalist organizations, and to exploit opportunities to foment animosity. [n 16]

n 12. IV J.A. 1732 (airtel from Director, FBI) (emphasis in original).

n 13. Id. (emphasis in original). The memorandum continued,

You must discredit these groups and individuals to, first, the responsible Negro community. Second, they must be discredited to the white community, both the responsible community and to "liberals" who have vestiges of sympathy for militant black nationalist [sic] simply because they are Negroes. Third, these groups must be discredited in the eyes of Negro radicals, the followers of the movement.

Id. at 1732-33.

n 14. Id. at 1733.

n 15. See IV J.A. 2049 (Booker), 2058-63 (Eaton); see also Senate Report, note 8, supra, at 89-90 (discussing the "Agitator Index," also known as the "Rabble Rouser" index; quoting memorandum defining Rabble Rouser as "a person who tries to arouse people to violent action by appealing to their emotions, prejudices, et cetera; a demagogue.").

n 16. See, e.g., IV J.A. 1796 (memorandum from WFO to Director, FBI, explaining that "WFO is continuing attempts to develop plans to utilize sources to promote political differences in New Left organizations, and also to turn Black Militant groups away from any alliance with the New Left groups."); IV J.A. 1794 (memorandum recounting WFO action, explaining, "Propaganda efforts will also be made to maintain the 'separativeness' of the blacks and the whites and to stimulate political attacks by the blacks

against the 'Lilly white' New Left groups."); IV J.A. 1850 (memorandum from defendant Brennan recommending "approval for distribution under the Mass Media Program of a blind memorandum revealing evidence of the growing dissatisfaction of militant blacks with the New Left," and observing, "In order to further split the black militants from the New Left, it appears that should this information be publicized it will create dissension within both the New Left and black militant groups.").

Secrecy was of utmost importance to the programs, and memoranda establishing them and requesting specific suggestions from field offices for counterintelligence operations cautioned

that the nature of this new endeavor is such that under no circumstances should the existence of the program be made known outside the Bureau and appropriate within-office security should be afforded to sensitive operations and techniques considered under the program. [n 17]

n 17. See, e.g., IV J.A. 1728 (airtel from Director, FBI).

FBI memoranda make clear that special security precautions were taken to avoid public exposure, criticism and embarrassment. Leaflets and divisive publications prepared by the FBI were intentionally printed on unwater-marked paper and distributed in unmarked envelopes. [n 18] The Senate Report suggests that the FBI's recognition of the illegality of the COINTELPRO program merely led to a tightening of security, not termination of the program. [n 19]

n 18. See IV J.A. 1850 (memorandum from defendant Brennan recommending distribution of "blind memorandum"); IV J.A. 1848 (FBI document warning, "Take all necessary steps to protect the identity of the Bureau as the source of these leaflets."); IV J.A. 1853 (WFO memorandum to headquarters explaining, "For the sake of security, WFO will have [The Rational Observer] printed by the Bureau on unwatermarked paper."); IV J.A. 1821 (airtel to WFO from headquarters, cautioning, "Make certain that these [housing forms] cannot be traced to the Bureau.").

n 19. See Senate Report, note 8, supra, at 146.

COINTELPRO invited creative participation by agents in the field offices and spawned an extraordinary range of activities. The memorandum initiating COINTELPRO-Black Nationalist advised agents to whom it was addressed, "You are urged to take an enthusiastic and imaginative approach to this new counterintelligence endeavor and the Bureau will be pleased to entertain any suggestions or techniques you may recommend." [n 20] The result, as disclosed by the trial record, was at least four categories of activity interfering with plaintiffs' legitimate protest activities: (1) efforts to create racial animosity between Blacks and Whites; (2) interference with lawful demonstration logistics; (3) efforts to create discord within groups or to portray a group's motives or goals falsely to the public; and (4) direct efforts to intimidate the plaintiffs. [n 21] We set out below examples of each of these four categories, to provide a sense of the activities of which plaintiffs complain:

n 20. IV J.A. 1728 (letter from Director, FBI).

n 21. These characterizations appear in Brief of Appellees, p. 16. We believe the record plainly supports their summary and that the breakdown they offer facilitates understanding of the record.

--The WFO prepared and distributed to "friendly media" false press releases calculated to tarnish the reputation of Julius *12 **230 Hobson [n 22] and create internal dissension within the ranks of BUF. [n 23]

n 22. Mr. Hobson, who was active in civil rights, was originally a plaintiff but died prior to trial.

n 23. IV J.A. 1833-45 (airtel from WFO to Director, FBI). The Black United Front was an organization of Black citizens and leaders.

--The FBI wrote a racially-inflammatory leaflet entitled "Give Them Bananas!", which it sent anonymously to BUF members. The leaflet was the result of FBI efforts to engender animosity between BUF and the New Mobilization Committee ("New Mobe"), an antiwar group, after the New Mobe received from the Black community a demand for payment to support a November 1969 antiwar demonstration. The incident, referred to in the record as the "Head Tax" issue, began with a BUF suggestion that demonstrators each make a contribution; it escalated when the New Mobe received a letter from BUF demanding $25,000 to support the demonstration. Rev. Moore, whose typewritten name appeared at the bottom of the BUF letter, denied writing it. Whether the FBI forged the initial demand letter is in considerable dispute. No dispute exists, however, over the FBI's responsibility for the "Give Them Bananas!" leaflet, which purports to be the New Mobe's response. It bears a crude drawing of a black monkey with a banana, and reads in part,

We consider you [Rev. Moore, whose name appeared on the initial demand letter] and your kind as black bandits and the most dangerous of the elements eating away at the movement.... Suck on your bananas, brother, and someday you might learn how to make a fire or build a wheel. [n 24]

n 24. See IV J.A. 1827-29; 1846-49. Whether the evidence supports a conclusion that any particular defendant was responsible for this and other activities we postpone until our discussion on the merits.

--The FBI filled in with fictitious names and addresses WMC housing forms used by WMC to identify places to lodge visiting demonstrators; the goal was to have demonstrators at the 1969 Presidential inaugural ceremonies make "useless trips to locate nonexistent addresses" and create confusion. [n 25]

n 25. IV J.A. 1818-22 (airtels from WFO to Director, FBI, and from Director, FBI to WFO).

--The FBI interfered with a "counterinaugural demonstration" by infiltrating the parade marshals' walkie-talkie radio communications, countermanding orders and sending marchers outside approved demonstration areas. [n 26]

n 26. II J.A. 968-70 (testimony of Gerald Grimaldi); IV J.A. 1823 (memorandum from WFO to Director, FBI).

--The FBI encouraged sources to "undertake leadership roles in the various factions and stimulate dissension among them." [n 27]

n 27. IV J.A. 1794 (memorandum from WFO to Director, FBI); see also II J.A. 967 (testimony of Gerald Grimaldi).

--The FBI published its own "student" newspaper, The Rational Observer, which attacked the American University student newspaper, The Eagle, as too radical. The FBI publication, which claimed to be published by students, urged students to seek an injunction against publication of The Eagle and to question the motives of those who opposed the war, and warned, "Remember, you will be faced with joining society upon completion of your academic training. Don't do anything in haste today which could cause you embarrassment tomorrow." [n 28]

n 28. IV J.A. 1854-58 (reprint of The Rational Observer).

--The FBI engaged in an intensive campaign of harassing interviews to intimidate politically active people and heighten their concern about the consequences of political activity. [n 29]

n 29. IV J.A. 1946-48 (airtel from WFO to Director, FBI).

The record does not contain documentation of MPD activities during this period as extensive as that regarding FBI activities. The MPD Intelligence Division had informers in virtually every organization with which plaintiffs were involved--the New Mobe, WMC, BUF, ECTC, Institute for Policy Studies, WAPAC and both plaintiff organizations [n 30] *13 **231 --in furtherance of its stated mission to gather information on "persons, groups, and organizations whose activities might be detrimental to the proper functioning of local, state, or national governments." [n 31] The record contains testimony about efforts of these informants to disrupt the organizations with which they were involved. For example, evidence at trial indicated that an MPD informant acted as an agent provocateur and attempted to disrupt a peaceful demonstration at the United States Capitol, [n 32] that a vociferous demonstrator who was identified later as an MPD officer urged a crowd to disobey parade instructions given by plaintiff Abbott and instead to march to an area where police awaited, [n 33] and that MPD successfully encouraged informants to take private mailing lists and membership lists, and in one instance to break into an office at night to take a metal strong box. [n 34]

n 30. III J.A. 1261-63 (testimony of Jack Acree); 1352 (testimony of Blanco Drummond, Jr.); 1372-74 (testimony of Christopher Scrapper).

n 31. IV J.A. 2088 (order prescribing structure, mission, functions and manpower of MPD's Intelligence Division).

n 32. II J.A. 792-94 (testimony of Carol Cullum).

n 33. II J.A. 911-914 (testimony of Sammie Abbott); 804-06 (testimony of Reginald Booker).

n 34. See III J.A. 1393-94 (testimony from MPD hearings); 1727- 80 (testimony of Melvin Winkleman).

III. The Causes of Action

At trial, plaintiffs asserted that they were victims of three conspiracies to violate their civil rights, all actionable under 42 U.S.C. § 1985(3) (Supp. V 1981). They alleged that each of these conspiracies violated their First Amendment rights to assemble for peaceable political protest, to associate with others to engage in political expression, and to speak on public issues free of unreasonable Government interference. [n 35] The jury returned verdicts in favor of most plaintiffs on all three conspiracy claims. One civil conspiracy, the jury found, included the five FBI defendants; a second involved certain MPD defendants and the District of Columbia; a third implicated both FBI and District defendants.

n 35. See Hobson, 556 F.Supp. at 1165-66.

Plaintiffs also filed Bivens [n 36] actions for damages directly under the Constitution, claiming that defendants had individually injured various plaintiffs in the exercise of their First Amendment rights.

n 36. Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

IV. The Special Verdicts

The jury returned special verdicts and found most defendants to be liable to most plaintiffs on the basis both of individual and conspiratorial acts. All FBI and MPD defendants, as well as the District of Columbia, were found liable to plaintiffs Bloom, Abbott, Pollock, Waskow and Washington Peace Center. The five FBI defendants, the District, and Wilson and Herlihy of MPD were found liable to plaintiffs Hobson, Eaton and Booker. One plaintiff, Washington Area Women Strike for Peace, was found not to have been injured by any of defendants' activities.

All defendants were found liable for compensatory damages. In addition, all of the FBI defendants, and Wilson and Herlihy of MPD, were found liable for punitive damages. [n 37] Five plaintiffs recovered $93,750 each, and three recovered $81,062.50 each. Individual defendants' liability ranged from $75,000 to $9,375. [n 38]

n 37. As to these defendants, the punitive damage award amounted to one-third of the total award. After trial, the District Court found there to be insufficient evidence to support the award of punitive damages against defendants Wilson and Herlihy. See Hobson, 556 F.Supp. at 1194.

n 38. See id. at 1188-94.

DISCUSSION

The FBI defendants, District of Columbia defendants and FBI agent Courtland Jones separately appeal the judgments against them. Each of the defendant *14 **232 groups raises issues particular to itself, as well as certain contentions that are common to all. We turn now to consider each argument.

I. Liability Under Section 1985(3)

As a threshold matter, all defendants challenge the applicability of section 1985(3) to this case, although on separate grounds. The D.C. defendants argue that the section does not apply to employees of the District of Columbia or to the municipality. [n 39] The FBI defendants contend that the class-based animus necessary to a section 1985(3) action was not established. [n 40] Finally, FBI defendant Jones argues that the section does not apply to federal officials or to acts occurring within the District of Columbia. [n 41]

n 39. Brief of District of Columbia Appellants, p. 50.

n 40. Brief of F.B.I. Appellants, p. 60 n. 12.

n 41. Brief of Appellant Jones, p. 32 n.*.

A. The Statutory Scheme

We begin by considering the language of, and case law relevant to, section 1985(3). The provision reads,

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 persons of the equal protection of the laws, or of equal privileges and immunities under the laws ... [and] 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. [n 42]

n 42. 42 U.S.C. § 1985(3) (Supp. V 1981).

By its terms, therefore, the statute requires that a plaintiff must allege and prove four elements: (1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States.

[1] [2] It is by now well-established that the provision encompasses private conspiracies, and not just actions taken under color of state law. See Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971). It is equally clear, in light of Griffin, that the provision does not apply to all conspiratorial tortious interferences with the rights of others, but only to those motivated by some class-based, invidiously discriminatory animus. Id. Thus, the Supreme Court has added a requirement of class-based animus to the list of elements set out above.

In Griffin, the seminal case establishing these principles, the complaint alleged that defendants, private persons, had conspired to carry out an assault "to prevent [the] plaintiffs and other Negro-Americans, through ... force, violence and intimidation, from seeking the equal protection of the laws and from enjoying the equal rights, privileges and immunities of citizens." Id. at 103, 91 S.Ct. at 1799. Holding that the complaint stated a cause of action at the core of section 1985(3), the Court found it unnecessary to delineate the periphery of such actions. Consequently, because the alleged conspiracy in Griffin was motivated by racial basis, the Court did not have to consider whether non-racial discriminatory animus stated a cause of action under the statute.

Similarly, the Court identified two constitutional sources of congressional power to reach the private conspiracy alleged in the case before it. First, the Court observed that section 2 of the Thirteenth Amendment*15 **233 enables Congress to impose liability on private persons for conduct "far beyond the actual imposition of slavery or involuntary servitude," id. at 105, 91 S.Ct. at 1800, and concluded that "Congress was wholly within its powers under § 2 of the Thirteenth Amendment in creating a statutory cause of action for Negro citizens who have been the victims of conspiratorial, racially discriminatory private action aimed at depriving them of the basic rights that the law secures to all free men." Id. [n 43] Second, the Court noted that the right of interstate travel "is constitutionally protected, does not necessarily rest on the Fourteenth Amendment, and is assertable against private as well as governmental interference," id. at 105, 91 S.Ct. at 1800, and that plaintiffs had alleged interference with that right. Congress therefore unquestionably had the particular power to protect the right of interstate travel from private interference. The Court made clear that, in identifying these two sources of power, it did not mean to imply the absence of any others. Id. at 107, 91 S.Ct. at 1801.

n 43. Precisely the same argument provides a constitutional basis for our application of § 1985(3). We therefore have no need to conduct an independent inquiry, as the Griffin Court would appear to require in other contexts. See Griffin, 403 U.S. at 104, 91 S.Ct. at 1799 (Court's inquiry need only go to identifying a source of congressional power to reach the private conspiracy alleged by the complaint in the case before it).

Quite recently the Supreme Court revisited section 1985(3) and offered some guidance on the outer limits of the provision. In United Brotherhood of Carpenters and Joiners v. Scott, --- U.S. ----, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983), the Court reviewed an action brought by a construction company and two of its employees, principally against a number of unions and their members. The complaint alleged that defendants had conspired to deprive plaintiffs of their legally protected rights, contrary to 42 U.S.C. § 1985(3) (Supp. V 1981), by planning and executing attacks on persons and property at a construction site known to employ non-union workers. The Court held, first, that an alleged conspiracy to infringe First Amendment rights is not a violation of section 1985(3) "unless it is proved that the state is involved in the conspiracy or that the aim of the conspiracy is to influence the activity of the state." Id. 103 S.Ct. at 3356-57. On this point, the Court observed that the First and Fourteenth Amendments protect the individual against state action, not against wrongs committed by individuals, and it made clear that a section 1985(3) conspiracy to violate either of these constitutional provisions is not made out without some proof of state involvement. At the same time, the Court reaffirmed that the interpretation of the section is not generally limited by the state action constraints of the Fourteenth Amendment; section 1985(3) in fact applies to wholly private conspiracies as long as they are aimed at interfering with rights constitutionally protected against private as well as official encroachment-- such as the Thirteenth Amendment and the right to travel. In other words, the rights protected by section 1985(3) exist independently of the section and only to the extent that the Constitution creates them. Thus, when state action is involved, the whole spectrum of rights against state encroachment that the Constitution sets forth comes into play. When no state action is involved, only those constitutional rights that exist against private actors may be challenged under the section.

The Court in Scott also considered the kind of class-based animus that is encompassed by the section and rejected the notion that the section forbids conspiracies against workers who refuse to join a union. More generally, the Court held that the provision was not intended to reach conspiracies motivated by bias toward others on account of their economic views, status or activities, id. at 3360, or, put another way, motivated by economic or commercial animus.

At the same time, the Court in Scott reaffirmed, on the basis of the applicable legislative history, that section 1985(3) was intended at a minimum to reach animus *16 **234 against Blacks "and those who championed their cause, most notably Republicans," id. at 3359 (emphasis added). Whether it also reached "wholly non-racial, but politically motivated conspiracies," id. at 3359, was dubbed a difficult question and was not reached. [n 44]

n 44. The Court acknowledged support in the legislative history for the view that § 1985(3) broadly extends to purely political animus, to reach conspiracies formed because a person "was a Democrat, if you please, or because he was a Catholic, or because he was a Methodist, or because he was a Vermonter." Scott, 103 S.Ct. at 3360 (quoting Cong.Globe, 42d Cong., 1st Sess. 567 (1871)). At the same time, it reiterated that the central concern of the statute was to combat "the violent and other efforts of the Klan and its allies to resist and to frustrate the intended affects of the Thirteenth, Fourteenth, and Fifteenth Amendments." Id. The Court withheld judgment on other alleged forms of animus that would fall within the statute's reach.

It is against this background that we consider defendants' arguments that the District Court erroneously permitted plaintiffs to proceed with their section 1985(3) claims.

B. Applicability of Section 1985(3) to the District of Columbia and Its Employees

[3] The District of Columbia argues that section 1985(3) does not apply to the District of Columbia or its employees. For this proposition it offers no analytical support, but rather rests on a passing and conclusory remark in an opinion from this Circuit to the effect that section 1985 "has never been applicable to District employees." [n 45] We disagree. Nothing in the statute or in Supreme Court opinions supports the view put forth by defendants. For the following reasons, we hold that the District and its employees may be sued for damages under section 1985(3). [n 46]

n 45. Boykin v. District of Columbia, 689 F.2d 1092, 1099 (D.C.Cir.1982).

Plaintiffs in Boykin brought an action against the District of Columbia alleging that a police officer had wrongfully shot and killed their son. The two police officers involved in the son's apprehension and shooting were not made parties to the suit. The complaint presented six claims for relief, five of which were pendent local common law claims. The federal claim alleged that the District had deprived plaintiffs' son of rights secured by 42 U.S.C. §§ 1983, 1985 and 1986 (1976 and Supp. IV 1980), and by the Fourth and Fifth Amendments. The District Court dismissed the action for lack of subject matter jurisdiction, and a panel of this Circuit affirmed, although disavowing the District Court's

jurisdictional analysis. The court ruled that the District of Columbia could not be liable, under a theory of respondeat superior, for federal claims of the kind brought by plaintiffs, and, consequently, that the complaint failed to state any federal claim for which relief could be granted. The panel reached this result relying on, and extending, Tarpley v. Greene, 684 F.2d 1 (D.C.Cir.1982), which had held that municipalities could not be liable under a theory of respondeat superior in a constitutional tort action.

At the same time, the court in Boykin observed in passing that § 1985 had never applied to District employees; in offering this conclusion, the court cited only the District Court opinion and District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973), which addressed quite distinct concerns. Unlike the situation in Boykin, we are required in this case to give full consideration to questions concerning the reach of § 1985. Because of the importance of these issues, and because of some possible confusion engendered by our prior case law, we have found it necessary to revisit and reconsider that portion of Boykin pertaining to the applicability of § 1985(3).

n 46. This holding has been considered and approved by the full court and thus constitutes the law of the Circuit. See Irons v. Diamond, 670 F.2d 265, 268 n. 11 (D.C.Cir.1981).

The District defendants do not offer any rationale for their proposed limitation on the reach of section 1985(3), and we therefore must undertake an independent inquiry into the possible bases for that argument. The proposed limitation has two possible sources: either it is an interpretation of the geographical limit contained in that section--the section by its terms encompasses conspiracies acted upon "in any State or Territory"--which, arguably, was intended to eliminate from the scope of the statute all conspiracies formed in the District of Columbia; or it might be a confused analogy to section 1983 case law, holding that the District of Columbia is not *17 **235 a "State or Territory" within the meaning of 42 U.S.C. § 1983. [n 47]

n 47. See District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973).

The Supreme Court has twice construed the phrase "any [or every] State or Territory" as used in the civil statutes of the 1860s and early 1870s. In Hurd v. Hodge, 334 U.S. 24, 31, 68 S.Ct. 847, 851, 92 L.Ed. 1187 (1948), the Court ruled that the phrase, as used in 42 U.S.C. § 1982 (1976), includes the District of Columbia. That section, which first appeared as section 1 of the Civil Rights Act of 1866, provides:

All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property. [n 48]

n 48. 42 U.S.C. § 1982 (1976) (emphasis added).

In District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973), the Court reached the opposite conclusion when construing 42 U.S.C. § 1983 (current version at 42 U.S.C. § 1983 (Supp. V 1981)). At the time, [n 49] that section provided in pertinent part, "Every person who, under color of any statute ... of any State or Territory ...." The Court concluded that the District of Columbia was not a "State or Territory" within the meaning of that language.

n 49. Following the Supreme Court's decision in Carter, Congress amended the section to include the District of Columbia. See Pub.L. No. 96-170, § 1, 93 Stat. 1284 (1979).

To determine the meaning of the phrase "State or Territory" as it is used in section 1985(3), we track the analysis in District of Columbia v. Carter and test for divergence. Initially, however, it is crucial to note that section 1985(3) is facially more akin to section 1982--which has been construed to encompass the District--than to section 1983. Sections 1982 and 1985(3) both use the "State or Territory" phrase as a geographical limit (unlike section 1983); consequently, to exclude the District of Columbia from their scope is to create an inexplicable safe haven in the District for persons--both private and official--who would be liable elsewhere. In contrast, the "color of law" requirement in section 1983 (which is not found in either sections 1982 or 1985(3)) implicates federalism issues not relevant to our inquiry; therefore the case law construing section 1983 offers a less compelling analogy. In other words, to draw lines on the basis of source of authority is to recognize a coherent distinction, whereas to draw lines on the basis of place of action is to be impractical, as Hurd v. Hodge made clear.

The issue is somewhat complicated, however, by the fact that sections 1982 and 1983 originated in two different acts, each with a different purpose. Section 1985(3) first appeared in the Ku Klux Klan Act of 1871, [n 50] as did section 1983, whereas section 1982 appeared earlier, in the Civil Rights Act of 1866. [n 51] This difference in origin was central to the Carter Court's analysis of sections 1982 and 1983. Thus, after explaining that section 1982 was enacted to enforce the Thirteenth Amendment's nationwide prohibition against slavery and involuntary servitude, the Court explained,

n 50. Act of Apr. 20, 1871, ch. 22, § 2, 17 Stat. 13, 13-14.

n 51. Act of Apr. 9, 1866, ch. 31, § 1, 14 Stat. 27.

The situation is wholly different, however, with respect to § 1983. Unlike § 1982, which derives from the Civil Rights Act of 1866, § 1983 has its roots in § 1 of the Ku Klux Klan Act of 1871, Act of Apr. 20, 1871, § 1, 17 Stat. 13. This distinction has great significance, for unlike the 1866 Act, which was passed as a means to enforce the Thirteenth Amendment, the primary purpose of the 1871 Act was "to enforce the Provisions of the Fourteenth Amendment." 17 Stat. 13; ... And it has long been recognized that "[d]ifferent problems of statutory meaning are presented by two enactments deriving from different constitutional sources."

409 U.S. at 423, 93 S.Ct. at 605. Since section 1985(3) also derives from the Ku *18 **236 Klux Klan Act of 1871, arguably the same limits apply to its interpretation as to that of section 1983, in particular the limits imposed by the Fourteenth Amendment. In that case, it might be contended that the District of Columbia would not be within section 1985(3)' s purview, as it was not within that of section 1983, simply because the District is not a State within the meaning of the Fourteenth Amendment, see Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954); see also Morgan v. District of Columbia, 550 F.Supp. 465, 470 (D.D.C.1982) (reaching this conclusion), aff'd without opinion, 725 F.2d 125 (D.C.Cir.1983). If we were to read into section 1985(3) the limits imposed by Fourteenth Amendment analysis, as the Carter Court read them into section 1983, the result would be to remove from the scope of section 1985(3) all conspiracies acted upon in the District, by whomever planned, not simply or even necessarily conspiracies in which the District or its employees participate. The problem with this analysis is that there is no more reason to read the word "state" as being limited by the scope of the Fourteenth Amendment than there is to read the nature of the conspiracies described in section 1985(3) as limited by that concept--so that only conspiracies under color of state law would be covered. The two would seem to go pari passu. But the latter interpretation has been conclusively rejected by the Supreme Court. See Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971).

By interpreting section 1985(3) to encompass private conspiracies, the Court in Griffin necessarily eschewed an extension of the Fourteenth Amendment's limitations to section 1985(3). The holding in Griffin is wholly inconsistent with the limited commands of the Fourteenth Amendment, which constrain only the States and those acting under color of State authority. Similarly, in Scott the Court explicitly reaffirmed the proposition that section 1985(3) encompasses wholly private conspiracies and unequivocally stated that "the section is not limited by the constraints of the Fourteenth Amendment." [n 52] Accordingly, while the Carter Court found persuasive section 1983's Fourteenth Amendment origins, and relied on those origins to read into section 1983 limitations on its reach, Supreme Court decisions construing section 1985(3) point in precisely the opposite direction. With express Supreme Court direction not to apply Fourteenth Amendment analysis to the construction of section 1985(3), we can perceive no reason to interpret the provision as the Court interpreted section 1983, where a contrary rule controlled.

n 52. Scott, 103 S.Ct. at 3357-58.

Nor do we find persuasive for our purposes any other argument put forth in Carter to limit section 1983's reach in the District. In fact, the remaining factors point toward construing section 1985(3) to cover District employees. The Carter Court observed that unlike section 1983, section 1982 was intended to reach private parties, to act as "an 'absolute' bar to all such discrimination, private as well as public, federal as well as state." 409 U.S. at 422, 93 S.Ct. at 605. "With this in mind," the Court concluded, "it would be anomalous indeed if Congress chose to carve out the District of Columbia as the sole exception to an act of otherwise universal application," id., particularly when the "dangers of private discrimination ... were, and are, as present in the District of Columbia as in the States." Id. Precisely the same analysis applies to section 1985(3), which applies to all conspiracies, whether public or private, and the Carter argument quite clearly counsels against "carving out" the District of Columbia. We have no reason to believe private persons in the District are any less capable than persons elsewhere of participating in conspiracies of the kind addressed in section 1985(3).

On the basis of the Court's analysis in Carter, we conclude that none of the reasons offered for eliminating the District from the scope of section 1983 applies to section 1985(3) or counsels reaching the *19 **237 same result. In light of the Supreme Court's direction not to read Fourteenth Amendment restraints into section 1985(3), we would be remiss to limit the reach of that section and exempt the District and its employees. In the firm belief that Hurd v. Hodge and the analysis contained therein controls this case, we reject defendants' proposed limitation on section 1985(3).

C. Applicability of Section 1985(3) to Federal Officers

[4] We turn next to consider defendant Jones' contention that section 1985(3) does not contemplate actions against federal officers. The apparent source of this argument is an antiquated decision of the Second Circuit, whose holding has repeatedly been read out of context by District Courts, and has now effectively been overruled by the Supreme Court. Accordingly, we reject Mr. Jones' argument and hold that section 1985(3) encompasses actions against federal officers, subject, of course, to considerations of qualified immunity.

Initially, we note that this Circuit has previously permitted actions to be brought under section 1985(3) against federal officers. See Fitzgerald v. Seamans, 553 F.2d 220 (D.C.Cir.1977) (White House official may be liable in section 1985(3) action). As a result, we pause here only to resolve any lingering doubts about the rationale of the law of this Circuit, not to decide what the law should be. Because the law in this area for years was based on conclusory, unsupported statements, and misguided interpretations of an unfortunately cryptic opinion, we want to make absolutely clear the basis of our decision.

The source of confusion is Gregoire v. Biddle, 177 F.2d 579 (2d Cir.1949), cert. denied, 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950), a delphic opinion by Judge Learned Hand, which has repeatedly been cited for the proposition that section 1985(3) does not contemplate suits against federal officers. See, e.g., Lofland v. Meyers, 442 F.Supp. 955, 957 (S.D.N.Y.1977); Williams v. Halperin, 360 F.Supp. 554, 556 (S.D.N.Y.1973). In Gregoire, the Second Circuit affirmed the dismissal of a complaint against Francis Biddle, the Attorney General, and other federal officials, to recover for false arrest as an enemy alien. The complaint was grounded, inter alia, on the Civil Rights Act, including section 47(3), now 1985(3). The court began its analysis by summarizing a decision of that Circuit, affirmed by the Supreme Court, which had held United States Attorneys absolutely immune from a civil action for malicious prosecution. The Supreme Court, in affirming, cited to earlier cases establishing absolute immunity for judges for acts done in the exercise of their judicial function. [n 53] Judge Hand concluded that the Court's affirmance of the circuit court established absolute immunity for officers of the Department of Justice, when engaged in prosecuting private persons. 177 F.2d at 580. Defendants in Gregoire were officers of the Justice Department engaged in prosecuting a private person. Accordingly, Gregoire held only that the common law grants executive officers engaged in prosecution an absolute privilege from civil actions, not that all federal officers are thus sheltered. It concluded that, absent any indication that Congress intended to remove that immunity, the complaint required dismissal.

n 53. See Yaselli v. Goff, 275 U.S. 503, 48 S.Ct. 155, 72 L.Ed. 395 (1927) (citing Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347, 20 L.Ed. 646 (1871) and Alzua v. Johnson, 231 U.S. 106, 111, 34 S.Ct. 27, 29, 58 L.Ed. 142 (1913)).

It was in this context that Gregoire turned to consider the Civil Rights Acts, presumably to determine whether they were meant to waive prosecutorial immunity. Judge Hand rejected plaintiff's argument that then-section 47(3), currently section 1985(3), created a claim against any two people, including federal officers, who conspire to injure another for spite or improper motives, or, in other words, rejected a reading of the section that would transform it into a general federal tort law. He remarked, "it is apparent that [the words] could not have had such a scope without *20 **238 destroying their validity constitutionally." Id. at 581. Regardless whether Judge Hand was more concerned with the idea of private conspiracies under the statute or federalization of tort law, it is now clear that neither of these factors necessarily poses any obstacle to the section's constitutionality. In light of Griffin, which both established the constitutionality of the very statutory construction rejected by Judge Hand--that the conspiracy statute applies to wholly private conspiracies--and read into the statute a requirement of class-based discriminatory animus to assure the statute was not a general tort provision, Judge Hand's construction of the statute on these issues no longer merits consideration.

It is therefore apparent that cases relying on Gregoire to preclude suits against federal officials under section 1985(3) have no present force. First, these cases always have been in error to the extent they read into Gregoire an absolute privilege for persons other than prosecutors. Second, these cases have in any event been superseded in their analysis of section 1985(3), along with Gregoire itself, by Griffin. We have not found either in case law or in the language of the statute any reason to exclude all federal officers from the meaning of the word "persons" in section 1985(3). Pre-Griffin cases therefore are of no precedential weight on this point, and post-Griffin cases that rely only on Gregoire, or on other cases citing only Gregoire, without any mention of Griffin, similarly should not be followed.

Considerable recent case law rejects the proposed limitation on section 1985(3) and supports our conclusion. See Jafree v. Barber, 689 F.2d 640, 643 (7th Cir.1982) (section 1985(3) action against federal officer states cause of action); Gillespie v. Civiletti, 629 F.2d 637, 641 (9th Cir.1980) (same); Dry Creek Lodge, Inc. v. United States, 515 F.2d 926, 931 (10th Cir.1975) (same); Bergman v. United States, 551 F.Supp. 407, 414- 15 (W.D.Mich.1982) (same); Peck v. United States, 470 F.Supp. 1003, 1008- 12 (S.D.N.Y.1979) (construing section 1985(3) to permit suits against federal officers, rejecting contrary decisions in the district); Founding Church of Scientology v. Director, Federal Bureau of Investigation, 459 F.Supp. 748 (D.D.C.1978) (allowing section 1985(3) action against federal officer). As one Southern District of New York judge explained, in rejecting Gregoire and the cases that followed,

Unless there is a rationale, unknown to the past cases, for holding that federal officers are not "persons" under § 1985(3), there is no longer any reason to exclude from coverage federal officers acting under color of federal law. Since such a rationale is inconceivable, Griffin 's holding that § 1985(3) applies to any person requires that it apply to federal officers.

Moriani v. Hunter, 462 F.Supp. 353, 356 (S.D.N.Y.1978). We agree and hold that plaintiffs did not fail to state a claim upon which relief could be granted by naming either federal officers as defendants or, for reasons stated in section I(B), for naming as defendants the District of Columbia and its employees.

D. Class-Based Discriminatory Animus

[5] FBI defendants also contend that plaintiffs failed to establish the existence of the "racial, or perhaps otherwise class-based, invidiously discriminatory animus" [n 54] requisite to recovery under section 1985(3). Their challenge is not directed at the trial judge's instructions on the matter, which were not challenged below, [n 55] but at *21 **239 the sufficiency of the evidence on this element of plaintiffs' case. We hold that there was sufficient evidence to permit a jury to find that the FBI defendants acted with the requisite animus, and that the claim must therefore fail.

n 54. Griffin, 403 U.S. at 102, 91 S.Ct. at 1798.

n 55. Nor do any defendants seriously contend that the Supreme Court's Scott decision, discussed supra, changed the law on this point. Justice White withheld judgment on the question whether § 1985(3) went beyond the core concern of racial animus, precisely as had the Court 12 years earlier in Griffin. See Scott, 103 S.Ct. at 3360 (citing Griffin, 403 U.S. at 102 n. 9, 91 S.Ct. at 1798 n. 9). We consequently do not read Scott to have wrought, on this issue, an intervening change in the law that would warrant application in this appeal. See Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 486 n. 16, 101 S.Ct. 2870, 2879 n. 16, 69 L.Ed.2d 784 (1981) (appellate court must apply the law in effect at time it renders decision, absent manifest injustice) (citing Thorpe v. Housing Authority, 393 U.S. 268, 281, 89 S.Ct. 518, 525, 21 L.Ed.2d 474 (1969)).