Silkwood v. Kerr-McGee Corp.
| Decision Date | 03 December 1980 |
| Docket Number | 79-1014,Nos. 78-1826,KERR-M,s. 78-1826 |
| Citation | 637 F.2d 743 |
| Parties | 106 L.R.R.M. (BNA) 2006, 90 Lab.Cas. P 12,409 Karen G. SILKWOOD, by the Administrator of her estate, Bill M. Silkwood; and Beverly K. Meadows; Michael E. Meadows; and Dawn E. Meadows, the infant heirs of Karen G. Silkwood by their Guardian William E. Meadows, Plaintiffs-Appellants, v. ThecGEE CORPORATION; Dean A. McGee; James Reading; Fred Welch; W. C. Gentry; Lawrence Olson; Theodore Rosack; Jacque Srouji; One Named But Unidentified Agent of the Federal Bureau of Investigation; James J. Kelly; Peter Colefax; Earl M. Jorgensen; Edwin L. Kennedy; Breene M. Kerr; Robert S. Kerr, Jr.; F. C. Love; George B. Parks; J. B. Saunders; A. P. F. Seale; James E. Webb; R. T. Zitting; Parker S. Dunn; Wayne Norwood; Ronald Adkisson; Roy E. King; G. T. Sinke; J. Marler and G. France, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Daniel R. Sheehan, Oklahoma City, Okl. (Robert Hager, Oklahoma City, Okl., and Eugene R. Scheiman, of Kurland & Scheiman, New York City, of counsel, with him on briefs), for plaintiffs-appellants.
William G. Paul, of Crowe, Dunlevy, Thweatt, Swinford, Johnson & Burdick, Oklahoma City, Okl., and C. Lee Cook, Jr., of Chadwell, Kayser, Ruggles, McGee & Hastings, Chicago, Ill., for defendants-appellees Dean A. McGee, James J. Kelly, Peter Colefax, Earl M. Jorgensen, Edwin L. Kennedy, Breene M. Kerr, Robert S. Kerr, Jr., F. C. Love, George B. Parks, A. T. F. Seale, James E. Webb, R. T. Zitting, Parker S. Dunn, Ronald Adkisson, Roy E. King, G. J. Sinke, James Marler, G. France, III, James Reading, Fred Welch and W. C. Gentry.
Glenn V. Whitaker., Atty., Civ. Div., Dept. of Justice, Washington, D. C. (Barbara Allen Babcock, Asst. Atty. Gen., Washington, D. C., and Larry D. Patton, U. S. Atty., Oklahoma City, Okl., with him, on brief), for defendants-appellees Lawrence Olson and Theodore Rosack.
Alletta d'A. Belin and Timothy B. Flynn, Center for Law in the Public Interest, Los Angeles, Cal., filed an amicus curiae brief for the Committee for Public Justice.
Before McWILLIAMS, DOYLE and LOGAN, Circuit Judges.
This is an appeal by the estate and heirs of Karen G. Silkwood from a judgment dismissing for failure to state a cause of action two claims asserted against officials and agents of Kerr-McGee Corporation 1 and agents of the Federal Bureau of Investigation (FBI), 2 based upon the Civil Rights Act of 1871, 42 U.S.C. § 1985(3). They also appeal a summary judgment order against them dismissing their claim against the FBI agents based upon Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). See Silkwood v. Kerr-McGee Corp., 460 F.Supp. 399 (W.D.Okl.1978). The trial court authorized this appeal under Fed.R.Civ.P. 54(b). 3
The issues treated on appeal are (1) whether the National Labor Relations Board has exclusive jurisdiction over the claims asserted, (2) whether cognizable classes and sufficient class-based animus are shown for purposes of § 1985(3) jurisdiction, and (3) whether a Bivens claim may be maintained against FBI agents for actions occurring after Karen Silkwood's death. We find it unnecessary to consider other defenses raised by defendants: that the section 1985(3) claims fail for lack of state action and that the actions do not survive the death of Silkwood under Oklahoma law.
The complaint, as its first cause of action, alleges the following. Karen Silkwood was an employee at the Kerr-McGee Corporation's nuclear facility at Cimmarron, Oklahoma. The Kerr-McGee defendants formed a conspiracy in November of 1972 to prevent Silkwood and other Kerr-McGee employees organizing a labor union from enjoying the equal protection of the laws. The Kerr-McGee defendants, in the course of this conspiracy, placed Silkwood and others under illegal surveillance, unlawfully entered their homes, automobiles and other private areas, wiretapped their telephones and homes, physically endangered their lives and safety upon the public highways, engaged in discriminatory firing and transfers, and used other forms of coercion to hinder the organization of the union. Silkwood's constitutional rights violated by this course of conduct stem primarily from the First Amendment and include the rights to freedom of speech, travel, association, assembly, press, the rights to petition the government for redress of grievances, to be secure in person, homes, and effects, and not to be deprived of life or liberty without due process of law. Plaintiffs allege that the FBI defendants joined this conspiracy in November of 1974, after the death of Karen Silkwood, to aid the other defendants in their efforts to cover up the prior conspiratorial activities. All defendants purportedly covered up information and gave false reports to various federal investigative officials for the purpose of depriving Karen Silkwood and others of the equal protection and enjoyment of the laws of the United States.
The second claim is essentially identical to the first, except that the class is defined as Karen Silkwood and the other Kerr-McGee employees who filed complaints against the Kerr-McGee Corporation under the Atomic Energy Act.
Although the district court did not treat the issue, defendants have asserted that the National Labor Relations Board (NLRB) has exclusive jurisdiction of both claims under the preemption doctrine of San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245, 79 S.Ct. 773, 780, 3 L.Ed.2d 775 (1959), which states: "When an activity is arguably subject to § 7 or § 8 of the (National Labor Relations) Act (29 U.S.C. §§ 157, 158), the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board ...." We believe this important issue of jurisdiction must be resolved before considering any questions going to the merits of the case.
The pertinent allegations regarding this issue are that defendants engaged in two conspiracies against the plaintiff-one designed to deprive Karen Silkwood and other employees "who were engaged in organizing a labor union" of the equal protection and enjoyment of the laws of the United States; the other designed to hinder and/or punish Silkwood and others "who had filed complaints against the corporation under the Atomic Energy Act from seeking and enjoying the equal protection of the laws" to associate with one another and to speak to the news media. An alleged objective and activity of both conspiracies was "harassment of the freedom of movement and travel, so as physically to endanger their (Silkwood's and others') safety and lives upon the public highways."
The Supreme Court has indicated that "the decision to preempt federal and state court jurisdiction over a given class of cases must depend on the nature of the particular interests being asserted and the effect upon the administration of national labor policies of concurrent judicial and administrative remedies." Vaca v. Sipes, 386 U.S. 171, 180, 87 S.Ct. 903, 911, 17 L.Ed.2d 842 (1967). Three critical factors generally control the disposition of the preemption question. First, whether there exists a potential for a direct conflict of substantive law between the National Labor Relations Act (NLRA) and the state or federal cause of action; second, whether there is a state interest "deeply rooted in local feeling and responsibility"; and third, whether adjudication of the cause of action interferes with the effective administration of national labor policy by deciding issues identical to those underlying the labor dispute. Farmer v. United Brotherhood of Carpenters, 430 U.S. 290, 298, 97 S.Ct. 1056, 1062, 51 L.Ed.2d 338 (1977). On the basis of these criteria, state court jurisdiction has been held proper for actions for libel, Linn v. United Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966); malicious interference with a lawful occupation, International Union, United Automobile, Aircraft and Agricultural Workers v. Russell, 356 U.S. 634, 78 S.Ct. 932, 2 L.Ed.2d 1030 (1958); and intentional infliction of emotional distress, Farmer v. United Brotherhood of Carpenters, supra.
In the instant case, there is little difficulty in meeting the first two criteria. The deprivation of civil rights through a conspiracy and course of conduct involving wiretapping, surveillance, discriminatory firing and transfers, breaking and entering, and life-endangering harassment on public highways could rarely, if ever, come within the protection of the NLRA and thus produce a substantive conflict of law. Likewise, it can hardly be denied that the government has a deeply rooted interest in proscribing such conduct. The third criterion, however, presents a serious obstacle to jurisdiction.
In order to support a section 1985(3) claim, the plaintiff must be a member of a statutorily protected class, and the actions taken by defendant must stem from plaintiff's membership in the class. Lessman v McCormick, 591 F.2d 605, 608 (10th Cir. 1979). Here, the plaintiff has chosen to define the classes as a group of persons seeking to organize a union and a group reporting safety violations at their place of employment to the Atomic Energy Corporation. Consequently, to support a section 1985(3) claim, the trial court would be required to find that the defendants (primarily management personnel of Kerr-McGee) took discriminatory action against employees because of their status as members of the groups described above. Adjudication of these issues would necessarily duplicate the critical issues underlying a claim before the NLRB based on sections 7 and 8 of the NLRA. See Iowa Beef Processors, Inc. v. Gorman, 476 F.Supp. 1382 (N.D.Iowa 1979). Inherent in both cases is a required finding that workers were discriminated against by their employer for being members of an...
To continue reading
Request your trial
-
Wingate v. Byrd
...of a deceased based upon alleged violation of the deceased's civil rights which occurred after his death."); Silkwood v. Kerr–McGee Corp , 637 F.2d 743, 749 (10th Cir. 1980) (rejecting a Bivens claim, holding: "We agree with the Ninth Circuit that the civil rights of a person cannot be viol......
-
Dick v. Watonwan County
...§ 1985(3) because the plaintiffs have not alleged that the defendants acted out of any "class-based animus." Silkwood v. Kerr-McGee Corp., 637 F.2d 743, 747-48 (10th Cir. 1980), cert. denied, 454 U.S. 833, 102 S.Ct. 132, 70 L.Ed.2d 111 (1981); Sebastian v. United States, 531 F.2d 900, 904 n......
-
Waller v. Butkovich
... ... Constitution will allow it. Dillon v. Numismatic Funding Corp., 291 N.C. 674, 231 S.E.2d 629 (1977) ... Accordingly, the tests to be applied ... took before they joined the conspiracy, must be rejected for the reasons articulated in Silkwood v. Kerr-McGee Corp., 637 F.2d 743, 749 (10th Cir.1980), cert. den. 454 U.S. 833, 102 S.Ct. 132, ... ...
-
Webster v. City of Houston
... ... Doe v. A Corp., 709 F.2d 1043, 1048 & n. 15 (5th Cir.1983) ("the courtroom door should not lightly be barred to a ... These are cases such as Silkwood v. Kerr-McGee, 637 F.2d 743 (10th Cir.1980), cert. denied, 454 U.S. 833, 102 S.Ct. 132, 70 L.Ed.2d ... ...
-
The concept of sepulchral rights in Canada and the U.S. in the age of genomics: hints from Iceland.
...human rights may attach to human beings rather than to their remains and estates." Id. at 126. (357.) Silkwood v. Kerr-McGee Corp., 637 F.2d 743, 749 (10th Cir. (358.) With respect to privacy, Judge Hartz, in Smith v. Artesia, observed: [T]he right protected by the action for invasion of pr......