James W. McCord Jr. v. F. Lee Bailey

* WALD, Before TAMM and Circuit cussed his case with attorneys for the other NICHOLS, Judges, Jr.,** and PHILIP defendants and with some of McCord’s co- Judge, conspirators, they States Court of Claims. failed to cross- key government examine witnesses with Opinion for the court filed Circuit vigor, sufficient they and because did not Judge TAMM. raise a defense of official authorization for McCord’s acts. The district court denied Opinion WALD, Judge filed Circuit petition in late ap 1973. McCord concurring part and dissenting part. pealed this decision and his conviction the TAMM, Judgé: Circuit following year, repeating his claim of inef With this upon action we are called fective assistance of ground counsel as one yet review another canto in the seemingly circuit, banc, for reversal. This sitting en Watergate. saga ceaseless Plaintiff detail, discussed these contentions in found McCord, Jr., James sued his criminal trial meritless, them and affirmed the convic attorneys, defendants F. Lee Bailey, Gerald tion. McCord, See United States v. Alch, Gillis, Bailey, and the firm of Alch & 334, 343-45, (D.C.Cir. 1974) F.2d (en 351-53 malpractice, conspiracy represent in- banc), competently, and conspiracy deprive civil 1656, rights. The district granted court defend- In August of McCord sued his crimi- ants’ motion for summary judgment. attorneys nal trial on four negli- counts: appeals. McCord We agree with the dis- gent and representation, careless intention- trict court that either estoppel collateral ally incompetent representation, conspiracy McCord’s failure to show that he has suf- represent incompetently, any legally cognizable fered injury pre- deny McCord his constitutional and stat- action; malpractice cludes McCord’s we also utory rights. After years more than two believe, however, that may have a extensive discovery, the defendants moved colorable claim under the first clause 42of summary judgment. The district court 1985(2) 1978). (Supp. U.S.C. II We § there- motion, granted this finding that collateral fore reverse the decision of the district claims, plaintiff’s barred or alter- court and pro- remand case for further natively, legal lacked injury ceedings not inconsistent with opinion. this for which relief granted. could be Plaintiff appeals judgment.

I In June Washington’s II Metropoli- tan Police arrested McCord with four others estoppel “prohibits Collateral parties the Democratic National Committee who litigated have one cause of action from headquarters. McCord was tried in federal relitigating in a second and different cause court, district and eventually convicted of were, of action matters of fact which burglary, possession intercepting devices, necessarily been, must have determined in interception of oral and wire communica- litigation.” the first Doby, Tutt v. tions, and conspiracy to commit these of- (D.C.Cir. 1972). See Nasem v. fenses. petitioned McCord then the trial Brown, (D.C.Cir. 1979); court for relief in the nature of a writ of (Second) Restatement Judgments 68§ nobis, error raising coram part allega- (Tent. April 1977). Draft No. Like tions of ineffective counsel at the criminal judicata, res collateral promotes proceedings. McCord claimed that his at- judicial efficiency. As the Supreme Court torneys had been disloyal they noted, dis- has

* ** Judge Leventhal, Circuit Sitting by designation pursuant who was a member of to 28 U.S.C. panel heard, 293(a) (1976). when the case was died before panel agreed disposition. had on a Circuit Judge replace Judge Tamm was drawn lot to appeal. Leventhal in the consideration of this equivalent. in this action are malpractice full fair and has had one party who and has appeal, a claim prove At the time of McCord’s opportunity permit- not be effort should in that assistance of failed ineffective this court defined of that on the merits go to trial ted to en of a defendant’s counsel as denial Both orderliness time. claim a second competent reasonably as titlement “to the saving time reasonable attorney acting diligent as sistance of an un- that this be so require administration United States v. conscientious advocate.” of fair- overriding consideration some less (DeCoster I), 487 F.2d DeCoster re- a different litigant to a dictates ness (D.C.Cir. 1973). concept of reasonable particular the circumstances sult in “tradition is also the standard competence case. the meas universally employed ally Laboratories, Inc. v. Uni Blonder-Tongue liability . . . .” lawyer’s ure of Foundation, versity Illinois III), (DeCoster v. DeCoster United States 1434, 1440, 324-25, 28 L.Ed.2d 788 91 S.Ct. 1979) (Robin (D.C.Cir. F.2d 196 at 249 624 v. United (1971) (quoting Bruszewski denied, son, J., 444 concurring), cert. U.S. 419, (3d Cir.), cert. 421 181 F.2d 302, (1979). 944, 311 62 L.Ed.2d 100 S.Ct. 87, denied, 865, 71 95 L.Ed. 340 S.Ct. U.S. 540, F.2d 544 Maryland, Marzullo v. 561 See the apply, this doctrine to (1950)). For 632 denied, (4th 1977), 435 Cir. cert. U.S. & n.9 eases, in both at stake same issue must be 1885, (1978); 1011, L.Ed.2d 394 98 56 S.Ct. litigated and must have been and the issue Gard, Assistance of Counsel- Ineffective in the first suit.1 decided Remedies, 483, 41 Mo.L.Rev. and Standards case encom- allegations in this McCord’s (1976). also McMann v. Rich 495-96 See claims respects the same in all material pass 771, 1441, ardson, 759, 397 90 S.Ct. U.S. petition and his coram nobis presented he (1970); 1449, 763 Restatement 25 L.Ed.2d appeal. These criminal conviction his Bines, (1965); (Second) of Torts 299A assistance and center on ineffective claims Representation in Remedying Ineffective Though in his betrayal. intentional Departures from Habeas Criminal Cases: tort, primarily in he couches his claims case 927, (1973). Corpus, 59 Va.L.Rev. 937 contentions.2 no new material he raises facts in similarity of both the Given the Furthermore, legal the standards applicable legal the in this case and issue assistance counsel ineffective standards, considered if legal estoppel may be and for proceedings McCord’s criminal promotes plaintiff, against the defensive use who raise collat- 1. Because it is the defendants economy being plaintiff’s relitigation id. estoppel without unfair. See the eral to bar issues, 329-31, malpractice con- at 650-51. we need not be 99 S.Ct. the parties the defendants were neither cerned that appeal. privies identify trial or nor to the criminal during argument When oral asked Laboratories, Blonder-Tongue Inc. v. Universi- concerning defense attor of fact his issues 328-29, 313, Foundation, ty 402 U.S. of Illinois ney’s performance had not been raised 1434, 1442-43, (1971), 28 L.Ed.2d 788 91 S.Ct. proceedings, during McCord’s the criminal prior use” of a the held that “defensive Court only: overlooking, responded and “The counsel is, judgment-that assertion of a defendant’s evidence, the there’s inten we maintain and litiga- prevent plaintiff’s estoppel to a collateral suppressing authoriza of that [official tional previously litigated tion of issues the a defense for McCord defense as tion] though permissible the de- and lost-was even ar This issue was fact trial of the case.” prior was not himself bound fendant see, g., proceeding, gued nobis e. in the coram judgment. year this reaffirmed Last Court Supplemental the United Memorandum Shore, Hosiery v. 439 U.S. rule. See Parklane Opposition Defendant States in to Motion 322, 645, (1979). Dis- 99 58 L.Ed.2d 552 S.Ct. of Coram in the Nature of a Writ (a tinguishing offensive use defensive use from n.5, McCord, v. at 4 United States Nobis & estoppel plaintiff’s assertion of collateral 18, 1973), (D.D.C. Sept. and No. 1827-72 Crim. prevent litigation of issues the a defendant’s appeal, criminal United States v. see lost), previously litigated and defendant McCord, 334, (D.C.Cir. 1974) 353 n. 69 509 F.2d observed that even if the de- Parklane Court 930, denied, (en banc), 421 U.S. 95 S.Ct. cert. subject to an fendant was not himself 1656, 44 L.Ed.2d 87 arising prior judgment he asserts from the 610 actually McCord, litigated were in States v.

these issues Crim. No. 1827-72 proceedings.3 (D.D.C. 9,1973).4 Aug. Judge Sirica denied they were He claims that asserts that not. after considering parties’ motion hearing did not proper evidentiary take arguments. memoranda United States place during of the coram no- McCord, (D.D.C. consideration Crim. No. 1827-72 Nov. thus petition appeal, denying bis him 7, 1973) (order denying writ of error coram develop the facts of opportunity to nobis). appeal, fully parties On briefed fully. disagree. case We issue, it received a full discussion from court. See United States v. not be hearing A need held for McCord, F.2d at 509 351-53. Thus McCord apply. When collateral already litigated has twice the issue true, accepted undisputed facts are Martin, lost, Rosenberg see purpose. Disposi serve hearing would no (2d denied, Cir.), cert. suffice, by summary judgment tion will (1973), making S.Ct. 38 L.Ed.2d 90 de no issue example, because “there is of mate fensive estoppel ap invocation of collateral moving rial . .. fact and is enti propriate, Hosiery see Parklane Co. v. judgment law,” tled to a as a matter of 329-31, Shore, U.S. 56(c). Exhibitors Fed.R.Civ.P. Poster (1979); Blonder- Exchange, Inc. v. National Screen Service Laboratories, Tongue University Inc. v. (5th Corp., 1975), 115-16 Foundation, 313, 328-29, Illinois U.S. 1434, 1442-43, (1971).5 28 788 S.Ct. L.Ed.2d (1976). McCord’s L.Ed.2d 643 In criminal appeal accepted we all of McCord’s factual Moreover, the circumstances of this case true, rejected assertions still his con particularly favor invocation of collateral McCord, v. tentions. See United States 509 estoppel. every McCord had incentive in 334, 1974), (D.C.Cir. F.2d 352 nn. 65-66 cert. argue his criminal proceedings aggres denied, 930, 1656, 421 U.S. 95 S.Ct. 44 sively for his claim of ineffective assistance (1975). Having 87 accepted L.Ed.2d above, As of counsel. noted he had a full assertions, factual a hearing McCord’s now opportunity prove and fair his case. Pre would amount to little more than a “useless cluding litigated reconsideration of a claim Exchange, ritual.” Exhibitors Poster Inc. judicial resources, saves valuable time and Corp., v. National Screen Service 517 F.2d reaffirming certainty while the and stabili at 115. ty decisions. Johnson v. See States, 606, (5th United 576 F.2d is a 609-19 Estoppel inappropriate 1978). Furthermore, Cir. estoppel saves contested issue is first raised after trial. Alch, Bailey, and their law McCord first asserted his ineffective assist- former firm defending ance from the a of counsel claim in his motion a burden lawsuit on already fully adjudi writ of error coram an issue that has Supplemen- nobis. See been Shore, tal Memorandum on Points and cated. Parklane v. Hosiery Authorities See 439 649; Support 326-27, Motion in Nature of a 99 S.Ct. at Tutt v. 2, 1195, Writ of Error Coram Doby, (D.C.Cir. Nobis United 1972). 459 F.2d 1199 litigation 1714, (1970). does not that McCord contest of an 90 26 S.Ct. L.Ed.2d See 76 Car- proceeding estop Zyla, issue (1st 1973); in a criminal can a 486 dillo v. F.2d 473 Unit- raising subsequent Lima, 79-502, from same claim a slip op. ed States v. No. at 4 Corp. action. Emich Motor v. (D.C.App. 1980); Lawson, General Mar. v. Ross 395 Corp., 568-69, Motors 340 U.S. 1978). (D.C.App. A.2d 54 408, 413-14, (1951); McNally 95 L.Ed. 534 v. Co., (8th Cir.), Pulitzer Pub. F.2d apparently 4. The court in McCord believed the denied, cert. 429 U.S. issue had not been raised before district changed L.Ed.2d 131 This “rule is not McCord, court. See United States v. 509 F.2d brought by that fact action [civil] at 351 n.61. person prior convicted in the criminal ac ” tion . ... Willard v. United 422 F.2d supra. 5. See note 1 (5th Cir.), Watergate thereby operation to reliti- sum, McCord seeks a defense. successful his denied McCord concerning the quality gate issues he participated claims that raised in the he criminal trial counsel he bugging because believed break-in and Having proceedings. course of the criminal of the United Attorney that General lost, McCord twice these issues and raised the ac- approved had authorized and States case. anew in a civil cannot the claims raise doing Attorney and that in so tivity what would other- had made lawful General Ill behavior. wise have been unlawful also found that McCord court district that he told defendant Alch further asserts alleged that defendants’ prove had failed to officially belief that he had been about his injury. him actual misdeeds caused authorized, that either negligently Alch coun- claim of loss from his only maliciously present failed to defense however, McCord’s belief negligence, sel’s defense, McCord con- to the court. Such failed assert defenses Alch tends, acquittal. have led to his could agree him. We would have exonerated suggested has A division of this court is not court this claim the district that a curiam reversal limited way per of a mal- support legal a suit for sufficient charge exists for rea defense to a practice. sonable, apparent faith on the good reliance suit,6 in a malpractice As a plaintiff official to autho authority government demonstrate that the defend McCord must activity. otherwise unlawful rize cognizable ants’ caused a legally actions Barker, (D.C.Cir. F.2d 940 States v. Inc., injury. Parking, Becker Colonial curiam). separate in a 1976) (per Writing 1969); (D.C.Cir. 1136-37 Judge Wilkey stated that defend opinion, Gregory, Richardson v. must “show that asserting ant this defense show, (D.C.Cir. plaintiff must 1960). The objectively his reliance reasonable un attorney’s among things, that his other particular circumstances der proxi was the resulted “negligence J.) (separate 949 (Wilkey, case.” Id. at to the client.” Niosi mate cause of loss Judge Mer (original emphasis). opinion) Aiello, 57, (D.C. 1949). Thus an A.2d 60 69 that the was available hige agreed defense for if his malpractice is not liable attorney if, (1) reasonably, “if, an only and individual no damages. client has suffered standard, (2) objective basis of an on the injury (3) sole statement of assertion of on a conclusion or McCord’s relies charged (4) by mal an official with by caused his counsels’ law issued proximately and/or en practice that Alch failed to administration negligently interpretation, in the relevant argue responsibilities of a defense “official authorization” forcement Brebbia, 1003, (D.C. complaint Fielding plaintiffs 1004 399 F.2d amended Count 3 of alleges attorney part 1968) (complaint alleged in a con had com that the defendants took spiracy deprive proper represen duty). fiduciary McCord of We are not of mitted a breach However, conspiracy party. in and pleadings tation. civil is not As for either free to fabricate wrong, independent giving us, an itself a civil himself reminds McCord Haig, upon cause of action. Lamont v. 590 F.2d predicate judgment must our [w]e 1124, (D.C.Cir. 1978). 1136 n. 73 See Edwards us, upon as it comes to not some record Co., 935, v. James & 936-37 Stewart 160 F.2d philosophical what or idea of theoretical (D.C.Cir. 1947); Boyle, Blankenship 329 might pleadings have been had the record (D.D.C. 1971). F.Supp. 1099 also But see presented the record in trial court us and Note, Tort?, Conspiracy: A Civil Substantive multiple study a wide latitude for and a (1979) (separate 59 Bost.U.L.Rev. 926 possible dispositions. Upon selection permitted cause action for civil pow- present we voice than record have more jurisdictions a under few limited circumstanc er. es). Appellant (quoting at Pearson v. Brief for closely, plaintiffs complaint We have studied J., Dodd, (Tamm, (D.C.Cir.) pleads or we are unable to discern that he concurring), legal any intimates cause of action other than (1969)). 23 L.Ed.2d malpractice deprival rights. Cf. J.) Id. at 955 legal (Merhige, (sepa- legitimate field.” government interest.8 Thus to added).7 opinion) (emphasis rate extent there is an official authorization defense, it to McCord. apply could not Even if we assume that after Barker a McCord, Democratic National Committee v. be criminal act will excused if the defend- F.Supp. (D.D.C.1976). 508-09 Ac- government ant was official misled cordingly, had or Bailey Alch raised lawful, into believing the act was trial, defense Judge McCord’s Sirica argument make a McCord cannot colorable face; would have it on its stricken there Judge Judge Wilkey’s under either or Mer- could have been no difference in the trial’s hige’s Clearly formulation. McCord must some objective show outcome. that he had basis to Watergate operation enjoyed believe the of- McCord has failed indicate how he showing unimag- ficial Such a sanction. successfully injury, could establish an essen- inable. employer McCord’s was not a claim, tial element of his and the defend- government commit- agency, political but a were judgment ants entitled to a matter supervisor, tee. did not believe McCord law on this issue. district court did private Gordon Liddy, other than err when it identified the absence of individual. McCord had no direct contact legally any cognizable harm as an alterna- official, any government nor did he basis granting summary tive judgment. Liddy

have reason to believe functioned as anyone acting an intermediary an IV capacity. official McCord conceded before In the Watergate fourth final count Committee that his Senate complaint, plaintiff his amended bugging po- and surveillance all concerned against litical asserts claims activities himself defendants under suspicions operations 1983, 1985(2), (3) harbored (Supp. U.S.C. II §§ 1978).9 were security unrelated national or other The district court did not discuss Judge Every person who, any Leventhal dissented Barker because under color stat- any ute, ordinance, custom, he did not regulation, usage, believe mistake of law defense actually applied Watergate to the Territory, subjects, circumstanc State or or causes Barker, es. See United States v. subjected, any to be citizen of the United J., (D.C.Cir. 1976) (Leventhal, 957-73 dissent person jurisdiction States or other within the ing). deprivation any rights, privi- thereof to the leges, secured immunities the Constitu- Hearings Watergate 8. See on and Related Ac- laws, tion and injured be shall liable to the Comm, tivities Before Senate Select law, equity, in an action suit in Activities, Campaign Cong., Presidential 93d proper proceeding other for redress. Sess., Bazelon, pt. (1973). Judge 1st at 166 Congress 42 U.S.C. speaking affirming for this circuit in expanded coverage of § 1983 to include conviction, concluded that acts under color of District of law. Columbia testimony Watergate [McCord’s] before the 1, 96-170, (1979). Pub.L.No. 93 Stat. § 1284 newly Committee and the discovered evi- upon bearing This no amendment has sup- dence discussed the text both tend case, however, does McCord port the conclusion that at no time McCord deprivation rights any not contend that of his believed his authorization on con- was based occurred after the date of effective the amend- security siderations domestic of the ment, 29, December See id. 3.§ Hearings Watergate see 1985, (2) pro- (3), Section subsections and Related Activities Before Senate Se- that: vides Comm, Campaign lect ties, on Presidential Activi- (2) persons any If two or or more State Sess., 1, 127-28, Cong., pt. 93d 1st at Territory deter, force, conspire by intimi- 173-76, (1973) .,; 203 at Trial Tr. 1031. In dation, threat, party any any or or witness in light prob- this factual confusion and attending court of the United States from defense, legality lematic of McCord’s we find court, testifying any such pending or from matter plain no error failure to the de- raise therein, freely, fully, truthfully, sponte. fense sua injure or to person such or in his witness McCord, 334, United States v. 509 343 n. F.2d property having or on account of his (D.C.Cir. 1974) (en denied, banc), 18 421 cert. ..; so attended or testified . if or or two 940, 1656, (1975). U.S. 95 44 87 S.Ct. L.Ed.2d persons conspire purpose more impeding, for the provides hindering, obstructing, Section 1983 that: or defeat-

613 (10th 1979). capacities rep- Cir. In their as fact and con- Findings of allegations. these court, private of a client “sufficiently resentatives com- law must be clusions of of state law. counsel do not act under color the issues to pertinent prehensive and 1256, (5th v. 574 F.2d 1265 Curry, Slavin v. Schilling for decision.” provide a basis York, 1978); City Fine v. of New 529 Cir. 82, Co., 84 142 F.2d Schwitzer-Cummins 70, (2d 1975). 74 F.2d Cir. Kelley Everglades v. 1944). (D.C.Cir. See 415, 420-22, District, 63 Drainage 319 U.S. however, the de- argues, McCord 1141, 1144-45, (1943) L.Ed.2d 1485 87 S.Ct. subject to section 1983 vir- fendants are inadequate find- curiam). Although (per alleged conspiracy with various tue of their be remanded to may conclusions ings and factual officials. Even if McCord’s federal “we supplementation, correct, the district court such a allegations are specific more a case for requirements. will not remand satisfy fails to section 1983’s precious consume findings doing if so will stated in District of Supreme As the Court serving Carter, 418, judicial resources without 409 93 time and Columbia v. U.S. S.Ct. 602, (1973), 613 section 1983 Extension Universi- 34 L.Ed.2d any purpose.” LaSalle 481,485 (D.C. 1980) only deprivations with those FTC, Cir. “deals v. 627 F.2d ty accomplished are under the color rights that curiam). must examine (per We therefore ” ‘any Territory.’ law Id. State rights contentions of McCord’s each 424, at 606. Actions of federal at 93 S.Ct. whether further consideration determine proscriptions. outside its officers are required. court is the district 424-25, at 606. id. S.Ct. of Action Under Sec- A. McCord’s Causes under 42 U.S.C. McCord’s claim 1983, 1985(3), and the Second tions 1985(3) equally without merit. In Grif 1985(2) Clause of 88, 91 Breckenridge, fin v. S.Ct. 1790, (1970), 29 L.Ed.2d 338 the Court held a cause of action To maintain private reaches although section 1985 must show that section under conspiracies involving well as those state deprived him of his civil the defendants action, language, legislative history, and color of state law.” Griffin rights “under of the statute indicate constitutional basis 88, 99, Breckenridge, 403 91 S.Ct. U.S. 1985(3) under section must that a (1971). this record 29 L.Ed.2d 338 On racial, perhaps allege prove “some required show could not make the class-based, invidiously discrimi otherwise appeared on McCord’s ing. The defendants conspirators’ ac natory animus behind the Lawyers may at his criminal trial. behalf “ Accord, at 1798. tion.” Id. court, ‘they are not be officers of the 227 at 229 g., Cassidy, Ellis v. 625 F.2d e. meaning officers of the state within ” (9th 1980). cannot Cir. Plaintiff McCord Corrigan, French [section 1983].’ object was the .of civil pretend that he 1970) (7th (quoting Cir. rights deprivation because of his race or Jones, (7th Jones v. 410 F.2d membership in other class. some denied, 1969), 90 S.Ct. cert. U.S. (1970)), asserts that the defendants McCord also 890, 27 with others to dissuade him from conspired L.Ed.2d Chaffee, Accord, testifying in his own behalf before Brown v. manner, whereby injured person

ing, justice in his the due course of another any Territory, deny property, deprived having intent to or of and exercis- in State or protection ing any right privilege any equal the or of a citizen of the to citizen the of States, laws, party injured injure property the so or de- or to him or his United enforce, recovery prived may lawfully enforcing, attempting have an action for the of to or injury depri- persons, damages, right any person, or of occasioned such the of or class laws; vation, against any equal protection one or more of the con- to the of the spirators. (3) any conspriracy case of set forth in [I]n 1978). section, 1985(2), (3) (Supp. persons engaged II this if 42 U.S.C. § one or more supra, do, done, injury, part see any is of III Our discussion therein or cause to be act object conspiracy, applicable not here. furtherance of the of such 614 trial,

grand jury thereby at his giving any and ness in court of the United States rise of 42 court, to a cause action under U.S.C. attending from such or from testi- 1985(2).10 The second of fying any therein, § half section pending matter 1985(2) apply not Like freely, fully, does McCord. truthfully, injure and or to 1985(3), specifies it an intent to deny party section person such or witness in his or equal protection of the laws and draws its property having on account of his at- so .; basis 5 constitutional from section . tended or testified . amendment, gives

fourteenth which Con 1985(2) (Supp. 1978). 42 U.S.C. II Thus § gress legislate power against the obstruc clause, first companion the unlike its provi- justice in tions of a state. a construc Such sions, prohibits conspiracies to interfere any question Congress’s tion avoids of au with the the integrity judicial federal See, thority provision. g., to enact this e. system. It does not demand a denial 830, Horowitz, Brawer v. 535 F.2d 839-40 laws,” protection “equal nor an is (3d 1976). Cir. implication requirement necessary of such a to avoid shoals.12 constitutional B. Cause of Under Action Court, Supreme According 1985(2) First Clause Section rights the Reconstruction be acts are to requirement discriminatory The ani- a sweep as broad as lan “accord[ed] [their] mus in under the half of actions first sec- guage.” Jones H. Mayer, v. Alfred 392 U.S. 1985(2) tion presents question of first 409, 437, 2186, 2202, 88 S.Ct. 20 L.Ed.2d impression circuit.11 Like the Third (1968) Price, (quoting 1189 States v. United Circuit, approach perfidious syn- “[w]e 787, 801, 1152, 1160, 383 U.S. 86 S.Ct. 16 1985(2) tax some reserve for . . . § (1966)). Accord, 267 L.Ed.2d Griffin v. light there of authority is a dearth our 88, 97, 1790, Breckenridge, 403 91 U.S. S.Ct. Horowitz, way.” v. Brawer 535 F.2d 837. 1795, (1971). 29 L.Ed.2d 338 Given begin with the language We the stat- meaning manifest and absence of rea See, g., ute e. itself. Ernst & Ernst v. reading, son restrictive we do be Hochfelder, 185, 197, 1375, 425 U.S. 96 S.Ct. class-based, invidiously lieve discriminato 1382, (1976); 47 668 v. L.Ed.2d Zerilli ry intent is an element cause of action Association, Evening 217, News 628 F.2d 1985(2). under the first of section clause 1980). (D.C.Cir. 220 The first clause of See, Horowitz, g., e. Brawer v. 535 F.2d 1985(2) section creates a cause of action 840. Our are instructions clear: “Where persons any two or more or language plain State and admits of no more [i]f force, conspire deter, Territory in- one meaning duty interpreta than threat, timidation, or wit- tion does not the rules are arise and which supra. 316, Maryland, (4 Wheat.) See note 9 McCulloch v. 17 U.S. (1819). Preserving integrity 4 L.Ed. 579 11. Decisions in other reached dif circuits have clearly process the federal includes dis fering Compare, g., conclusions. e. Brawer v. couraging conspiracies, all whatever their moti Horowitz, 830, 1976) (3d 535 840 Cir. target, threats, force, vation that use discriminatory (showing of animus not re free, full, intimidation to deter tes truthful quired) Kelly Foreman, F.Supp. timony. Gypsum, See United Stern v. States 1352, (S.D.Tex.1974) (same) with Jones v. Inc., (7th Cir.) (dictum), 547 F.2d 1341 n.19 (E.D. F.Supp. 172-74 denied, rt. ce Ark.1975) class-based, (plaintiff must show in Horowitz, (1977); Brawer v. aff’d, vidiously discriminatory intent), 840; Foreman, F.Supp. Kelly F.2d at (8th 1976), Congress equivalent at 1355. an au lacked L.Ed.2d 750 courts, thority equal protec over so state 12. The constitutional basis for the first clause language 1985(2) tion the second half of § 1985(2) Congress’s plenary power of § over ground portion was inserted to of the stat grants the federal courts. The Constitution Congress’s power ute under 5 of four § Congress power “[t]o constitute Tribunals infe- pages teenth amendment. in 615-617 U.S.Const., Court,” I, supreme rior to the art. fra. Congress enjoys cl. wide latitude in effectuating powers, its constitutional see ly government meanings need no discus- mandated enactment of to aid doubtful Shellabarger’s Presi- Representative bill. v. United Caminetti sion.” message had dent Grant’s declared 470, 485, L.Ed. “[a] condition of affairs now exists in some (1917). the . rendering States of Union .. the obligated Even if were we to look of the mails and the of carrying collection statute, the de face the the of beyond Cong.Globe, dangerous.” the revenue 42d the would find that suggest, we fendants (1871). 1st of Cong., Proponents Sess. our history supports conclusion. legislative Shellabarger’s repeatedly bill raised the judi sanctity the of the federal Reinforcing specter spirit of a renewed insurrection objec was process for all citizens one cial running Representative rife in the South. Congress in mind when it enacted tive had Buckley, example, warned the House of Klux the of section the Ku source spirit that this Representatives Apr. Klan Act of Act authority, still defies the national sets at More 615 infra. page Stat. 13. See the naught country, laws of leg the original over, the draftsman tramples upon political the natural and equal pro the “denial added islation rights of our fellow citizens. The United solely to his bill phrase tection of the laws” stopped; agents mails are route States allay to doubts the section’s constitu about mails, assorting are shot dead while oppo tionality that raised bill’s were others from are driven their routes. friends and foes nents. Because the bill’s Your revenue officers are resisted and government’s acknowledged the federal scourged and driven from their homes courts, power protect phrase own its . . country. and families and out . language that was not attached to the In certain communities lawlessness 1985(2). the first clause of section See now widespread and on the increase. Crimes pages 615-617 infra. fearfully The of hu- are common. value only was rights Protection of not the disregarded. go life is man Murderers of the Ku Klux reason for enactment unpunished... reigns. . Terrorism The au- Act of Restoration of civil Klan prevents good apprehension of violence including federal thority, restoration arresting they men from the evils see. ability proceed improper courts’ without app. (remarks id. at 519 Id. See interference, major concern. The was Rep. Shellabarger). congressional Thus its violence statute has roots racial more encompassed concerns than racial states at the erupted the southern personal equality rights. operation or Ku Klan end of the Civil War. The Klux government, especially federal organized in 1866. The subse- had been government, Civil survival was threatened. quent years been marked in- five had See, (remarks g., at stake. e. id. at 830 attacks, fatal, creasing numbers of often Stewart). ap- prevent To what of Sen. in- against sympathizers, blacks Union peared Congress impending anarchy, to be By cluding many officials. federal have its measure to reach must intended had caused the turbulence in South government opera- than attacks on more Congress. On considerable consternation invidious tions to further racial other 23, 1871, March President Grant asked discrimination, to the at least extent authority him additional legislation giving permitted Congress act. Constitution days chaos. Five apparent control Indeed, cre- originally proposed the bill as later, Shellabarger Representative Samuel remedy Congress’s a broad to address ated a bill to meet the Presi- of Ohio introduced 2 of would broad concerns. the bill Section request. generally District of dent’s. felony conspire it a have made federal 425-26, Carter, Columbia commit, among another other 602, 606-607, L.Ed.2d crimes, perjury, perjury, subornation fol- Throughout justice, the deliberations regardless criminal obstruction of Senate, recurring place in the course lowed in House and whether the offense took proceedings. Id. at 317 preserve was that need to order- of state federal theme (remarks Rep. greater Shellabarger).13 Oppo- of specificity the brought violations pro- jurisdiction. nents of this version characterized the under federal For offenses as an trampling traditionally jurisdiction, vision unconstitutional left to state such upon prerogatives. Representative state justice courts, in as obstruction of state the Kentucky complained Arthur of that the purview of section 2 was to limited crimes jurisdiction the section “absorbs entire of deprive equal committed an intent to laws; protection result, the States over their and local domestic of the as a the it sweeping usurpa- affairs” and called “a revised section confined the new federal jurisdiction tion of universal criminal cause of action to violations an explicit of Id. Whit- Representative States.” federal interest. For offenses under feder- of that the section argued jurisdiction thorne Tennessee regardless al of the offender’s Congress intent, effectively empowered oversee such as acts interfering with the Id. at 337. operation courts, all of the states’ functions. of federal no limitation was made. Representative Shellabarger amended his objections response changes

bill in to these Con- objections answered the of gress authority Representa- lacked constitutional ex- some example, members. For in jurisdiction proposed explained tend federal sec- tive Willard that he had believed new original “gave tion 2.14 The version stated with bill the the United States form, original Representative any any 13. In its of threat deter § witness in court of Shellabarger’s provided bill any testifying the United States from in mat- shall, persons pending fully, freely, two or more ter in such court if of gether within the limits and State, band, any conspire, truthfully, injure any or combine to- or to such witness in any rights, act person to do in violation of the property his or on of account his n privileges, any person, or immunities of testified, having by force, intimidation, so or which he is entitled under the Constitution any juror or threat to the influence verdict of which, States, the and laws of United com- any States, injure in of court the United or to place mitted within under the and sole person person property such in his or States, jurisdiction exclusive the of United any lawfully of account by verdict assented to would, any under law of the United States him, conspire together or shall for the force, then in constitute the either crime of purpose, directly indirectly, either or of de- murder, manslaughter, mayhem, robbery, as- any priving person any persons or class of of battery, perjury, and sault subornation of equal protection laws, equal of the or of perjury, legal proc- criminal obstruction of [] privileges laws, or immunities under the or discharge ess or resistance of in of officers preventing hindering or the constituted arson, duty, larceny, official or and if one or any giving authorities of State from or secur- parties conspiracy more of the to said or persons ing equal to all within such State the any combination shall do act to effect the protection laws, any injure per- of the or to thereof, object parties engaged all the to or person lawfully property son in his or his combination, conspiracy or whether said any enforcing right person of or class of accessories, principals or shall be deemed persons protection laws, equal of the felony, guilty upon of a conviction there- every person offending each and so shall be penalty shall of ing be liable to a of not exceed- high guilty any of $10,000, deemed crime . . and if . imprisonment or to not exceed- persons engaged ing both, one or more years, in such con- ten or discretion court; spiracy, any provided, party parties preceding such as is defined in if or shall, section, to such or shall do or cause to combination be done act design, object conspir- furtherance of such commit common furtherance of the of such murder, parties acy, whereby any person injured the crime of guilty such or so shall be shall, thereof, upon person conviction suffer property, deprived having or or death.... exercising any right privilege or Cong.Globe, Cong., (1871) 1st 42d Sess. 317 person citizen United so (remarks Rep. Shellabarger) (emphasis add- injured deprived privi- rights such ed). lard). app. (remarks Rep. See id. at Wil- leges may have and maintain an action for recovery damages against any one or persons engaged conspir- more of the in such amendment, among things, 14. The other re- acy— placed following provi- 2 of bill Rep. Shellabarger). (remarks Id. at 477 sion: supra. note 9 persons if within Sec. 2. That any two or more Territory State States intimidation, force, conspire shall ... diction over state jurisdiction every criminal offense crimes in excess of Con- courts anywhere within could be committed that powers, gress’s Representa- constitutional States; that it limits of the United the Shellabarger requirement tive added the jurisdic- abolished the practically deny equal protection an intent to of the State, absorbing it all into the tion of the Inserting equal protection the laws. lan- app. Id. at 188. courts.” United States guage jurisdiction over limited federal state restriction of federal the amendment’s With injured crimes to those offenses that also a to jurisdiction over state crimes violations grounded in the federal interest fourteenth equal protection deny were intended to that amendment. No such limitations were re- laws, Representative Willard an- of the regard protection in to quired the bill with the he would vote in favor of nounced of the federal interest in its own Willard). (remarks Rep. measure. id. jurisdiction in all process. Federal cases of opposition who continued their Even those nature, such as intimidation of a wit- Congress it conceded that could do as proceeding, recognized ness in a federal judiciary. protect wished to the federal supporters oppo- both the bill’s and its Thurman told the Senator Senate: injury nents. Neither to a federal interest grant which of- I that as to those are authority remedy injury nor federal that against they fenses the States courts; the Consequently, applying must be taken into Federal were in doubt. jurisdiction the courts have no State portion Shellabarger’s the revised section instance, them. For to intimidate a wit- 2 that is now codified as the first clause of prevent attending ness as to so 1985(2), legislative history 42 U.S.C. the § court, juror with a in a tamper Federal support requiring proof does not of a racial court, offenses, against Federal are not other discrimina- or class-based invidious State, against juris- the but offenses the tion.15 given diction of which must be to the Federal courts .... V app.

Id. at appli- We have concluded that either purpose defusing Thus for the the ob- juris- jections his bill asserted federal collateral or the lack of cation of token, By requirement Congress because same the clause’s District of Columbia officials conspiracy already plenary power consist two or more officers of the had over persons any Territory” District, ample Congress opportunity “in State or does not had conspiracies directly. exclude supervise conducted District those officials In Carter, however, of Columbia. In District of 1985(2), Territory” Columbia § “State 409 U.S. 93 S.Ct. conspiracies subject defines what will be to the (1971), the Court held that the words “State or presume Congress statute. We cannot intend- Territory” as used in 42 § U.S.C. do conspiracies throughout ed to attack the nation Nevertheless, include the District. the term except for the District of A ration- Columbia. Territory” may meaning “State or one have justify establishing ale that would the District 1985(2). 1983 and § another The Carter § as a enclave is difficult to conceive. “ recognized subject Court ‘[w]here Furthermore, Congress pursu- § enacted matter to which the words refer is not the same powers ant to its under the- fourteenth amend- used, places they in the several are where ment. The Court concluded that Carter different, scope the conditions are or the District’s officers were not liable under § legislative power exercised in one case is the fourteenth amendment reaches another, broader than that exercised in only ap- state action. This limitation does not meaning may vary purposes well to meet the powers employed, ply I where article are such the law. . . . . .’” 409 U.S. at 93 S.Ct. at 604 1985(2) clause of § as the enactment of first (quoting Dyers Atlantic Cleaners v. United & judiciary. protect the federal See also Hurd 427, 433, 607, 608, 286 U.S. 52 S.Ct. Hodge, 92 L.Ed. (1932)). L.Ed. 1204 (1948) (“State Territory” includes the 1985(2) readily The first clause of § distin- purposes § District Columbia guishable from 1983. In “State or § upon is based the thir- because the statute Territory” defines will have lia- whose officials thus is not limited to teenth amendment and Carter, bility. reasoned Court that Con- action). state gress provision did not intend the to extend to any legally cognizable harm the with only footnote 6 and the discussion precluded legal malpractice claims in Part II of applicability of the doc- through under one of his counts three com- trine of collateral the unusual plaint. to the Due absence of state action circumstances of this case. part on the intent defendants’ I agree While III of opin- Part class-based, inflict a discrimina- invidious ion, impossibility of McCord’s demon- tion, cannot maintain cause of strating injury only disposes of one poten- 1983, 1985(2) (cl. action under U.S.C. §§ tial cause of on the action based facts al-

2), 1985(3). respect and We hold that with leged in his of complaint, malpractice that claim McCord’s under the first clause of negligence. on based I cannot concur in the 1985(2), however, 42 U.S.C. neither a § expressed majority’s conclusion in the foot- showing showing state of action nor a of complaint note that is so McCord’s limit- class-based, invidious discrimination is re- require indulgent ed. It does not an read- quired. claim His therefore cannot be dis- complaint ing of to draw from McCord’s carded because these factors are not allegations something neg- more than mere present. ligence, though language much of is say On this record we cannot that in that light. specifically cast McCord 1985(2) McCord’s of invocation section alleges lawyers that his “knowingly and The frivolous. defendants that contend intentionally failed ... inform of [him] allege not par- McCord did with sufficient factors,” pertinent pur- facts and “failed to overt ticularity the acts of a and investigation sue certain avenues of of mat- proof having that did not offer of defense,” vital to ters and that “at all [his] been threatened or intimidated not to testi- hereto, times relevant the interests of the fy grand jury before the or at his trial. Defendants were in unrevealed conflict factual; principally These are they issues with interests of Plaintiff are best resolved in the first instance Furthermore, II, in Count he [McCord].” intimately court been that has most con- that charges conspir- the acts arose out of a nected with record. The decision of the acy Watergate co-conspira- with the chief district and court therefore reversed A tors. claim of or conflict disloyalty of case proceedings is remanded for further on the an part attorney interest of is an not with opinion. inconsistent this tort, Circuit,1 recognized actionable in our It is so ordered. (Second) and described in the Restatement fiduciary of Torts 874 as a “breach of WALD, Judge, concurring part, Circuit duty.” allegations disloyalty, McCord’s part: dissenting in proved, legally cognizable if constitute a I, I Judge “wrong” concur in Parts III separate and IV and from the ade- apart disagree for the I opinion representation Tamm’s court. of his at trial.2 quacy Brebbia, (D.C.Cir. Fielding relationship “presents many opportunities In 399 F.2d 1003 so 1968), attorney plaintiff reaping special sued his for breach for the benefits at the ex- fiduciary relationship, alleging pense attorney disposed.” of the that of the client an so attorney resign posi had counseled him to his Id. president corporation, tion as of a in order to loyalty right help replace 2. The the undivided one’s client take another him and over attorney is spite “absolute” in the sense that it does the business. in its the fact depend guilt or on one’s innocence. That allegations supporting factual claim the duty loyalty is a factor in the complaint conclusory vague crucial success strong- justice.- adversary system It is extreme, of our this court held that its dismissal ly stated Ethical Consideration 5-1 of the noting improper, failure to state a claim was Responsibility: ABA Code of Professional jurisdiction outstandingly that “this has been delicacy attorneys professional lawyer judgment alert to the status should exercised, law, who undertake to counsel a Id. client.” be within the bounds of the justified hesitancy solely 1005. The court further its for the benefit of his client and free of loyalties. opportunity compromising to bar the from Nei- influences prove interests, by noting personal his claim that the confidential ther his the interests of Furthermore, proceeding I would conclude that an he which or she was disloyal- course, willful allegation of deliberate and the defendant. And of the fact that states a claim ty and conflict of interest an issue is settled in the course of a summa- damages; allegation without an of actual ry proceeding, evidentiary without an hear- legal wrong ing, the cause of action vindicates does not necessarily estoppel mean seeking compensate injury.3 rather than cannot apply, long judgment so as a final course, assuming gener- that on a Of even Many was entered on the merits. cases reading complaint alleges a ous recognize the collateral effect of a harm, predicated tort claim which is not final judgment insufficiency based on barrier, collateral would serve as a complaint summary judgment. onor according majority’s to the discussion of Nevertheless, difficulty I have hold agree I cannot Part II. that doctrine in ing totally estopped asserting from conclusion, given the facts of disloyalty all claims of conflict of inter case. est under the circumstances of this case. estoppel, The doctrine of collateral re- And I note other courts have had similar essence, provides judi- that our duced to its difficulties when faced with occasional un system provide party only cial will a might wrought fair results which by be too opportunity” litigate “full fair to one application broad an of the doctrine of col like estoppel, an issue. “Collateral the re- estoppel. gone lateral Some have so far as judicata, lated doctrine of res has the dual dangerous, to describe the doctrine purpose litigants protecting from the that it could result in “utter disaster” as a relitigating burden of an identical issue controversy,” subjecting result of a “trivial party privy with the same or his and of litigants “extravagant hazards.” The judicial promoting economy by preventing 927, Nunan, Evergreens (2d v. 929 litigation.” needless Hosiery Parklane Co. denied, 720, Cir.), cert. 323 65 U.S. S.Ct. Shore, 322,326, 645, 649, v. U.S. S.Ct. (1944) (Learned Hand, J.). 89 L.Ed. 579 (1979). 58 L.Ed.2d 552 Traditionally, variety courts relied on a agree majority may approaches necessity holding I with the it to avoid the be perfectly acceptable party litigant for a to be held a bound when to do so would be by prior bound a in a determination made unfair or unwise under the circumstances.4 clients, Carey 247, 266, persons Piphus, other nor the desires of third v. 435 U.S. permitted 1042, 1053, loyalty (1978). should be to dilute his 55 L.Ed.2d 252 his client. example, 4. For some particular decisions define the “is Discipli- Of relevance to this case is prior proceeding very nary sue” determined in the 5-107(B): Rule narrowly, and then conclude that the issue lawyer permit new person A shall not who . .. different, only slightly. albeit See Brubaker pays legal him to render services for another 1974); King, (7th 505 F.2d 534 Cir. Williams regulate professional judg- to direct or his Liberty, (7th 1972). 461 F.2d 325 Cir. Other rendering legal ment in such services. prior courts have held that if the determination Supreme recently “necessary,” 3. The Court has observed: decided more than was the bar Co., apply. should not Haize v. Hanover Ins. traditionally Common-law courts have vindi- (3d 1976). 536 F.2d 576 Still other courts deprivations cated of certain “absolute” strictly applied requirement have that a rights that are not shown to have caused question “distinctly put directly be in issue and injury through actual award of nominal determined,” especially involving prior in cases money. By making deprivation sum of Moss, proceedings. Kauffman v. rights damages such actionable for nominal (3d Cir.), F.2d 1270 proof injury, recog- without of actual the law S.Ct. importance organized society nizes the observed; Any support rights scrupulously those be of these theories could a refusal collaterally but at the same time it remains true to the to conclude that McCord is barred was, principle damages prior after that substantial should be here. The issue in our decision or, all, by only injury provided compensate awarded actual whether assistance exemplary punitive as to im- in the case of dam- McCord’s counsel was so ineffective Here, ages, punish depriva- pair right trial. on the other to deter or malicious to a fair hand, Bailey rights. question and Alch tions of is whether nesses, analyses judged

These led to a conclusion that the credibility witnesses, apply collateral could not and concluded that Gerald Alch and F. Lee prerequisites its had not been met. I do not Bailey representing were McCord with un- ruling believe that such a restrictive is nec- loyalty protecting divided his interests here, essary straightfor- however. A more alone. In the duty interests of courts’ analysis recently ward and flexible has been supervise practice of law in this Supreme commended to us Court. jurisdiction, it would be wise that such a Hosiery, supra, Parklane chapter determination be made before this 58 L.Ed.2d S.Ct. struck down the Watergate of the finally vestiges of mutuality estoppel, last which closed. provided had that neither party could use a Furthermore, principal pur one of the prior judgment against party the other un- poses estoppel, protect “to collateral liti parties less both were bound the same gants relitigating from the burden of an judgment. recognized, however, The Court party,” identical issue with the same Park that as traditional restrictions on the use of Hosiery, supra, lane eased, possibili- were collateral Bailey is not a factor in this case. Alch and ty of I unfairness increased. would add previously have never been possibility that the of the frustration of the McCord; brought by calling suit them to important public having benefit of issues answer in a forum for the first time fully finally aired and decided also increas- injustice against works no more of an them solution, Court, es. The declared the may against any litigant.5 than a lawsuit impose not to strict limitations on when Mutuality may requirement not be a estoppel may apply, grant collateral but to more, estoppel any collateral lack of broad discretion to determine that it should much mutuality certainly eliminates apply particular in a case. Id. at potential deciding ap unfairness of not to at S.Ct. 651. ply the doctrine. I question therefore turn to the of wheth- preventing litigants When unfairness to er an unusual combination of circumstances deciding is not a factor in whether collater- might justify providing in this case James estoppel apply, al should we are left with opportunity prove McCord with an to that goal of conserving resources. damages he is entitled to recover mal- case, In such a the court’s discretion to practice attorneys. from his former There evidentiary decide that the benefits of an variety are a of such circumstances in this hearing finally resolve this issue are all, important case. First of there is the greater than the detriment to its resources factor that this case involves the sensitive appropriately is broader. This case should critically yet important relationship be- expense “staggering involve the and tween a criminal defendant and his attor- case, typical length” patent for exam- neys. Ensuring integrity the strictest in ple, estoppel particularly where collateral is discharging this trust is a of as matter valuable. Id. at 328-329 n. at much concern to this court as it is to de- Furthermore, fendants. no of finder fact evidence, Finally, particularly by has ever considered the heard the and noted the Su testimony preme Hosiery and cross-examination of wit- in Parklane fac Court a client; fiduciary duty broadly

violated the owed to their worded than it need have been to dis- alleged case, the effect of that pose breach on McCord’s since all the court needed conviction or on the fairness of his trial is no alleged decide was whether had a McCord longer the issue. As the Seventh has Circuit deprivation right “substantial” of his to effec- noted, proof standard in a mal- “[T]he counsel, tive assistance which in turn affect- practice might action not be as strenuous as it right a ed his fair trial. questioning adequa- is when the constitutional Kruse, cy of counsel.” Walker v. 484 F.2d 802 ruling fact, on the of the court’s (7th 1973). argued It could be that this case, rights in issues this the defendants appeal court’s conclusion on al- in in will fact be called to defend their conduct legations “taken as true do not make a case for this case. disloyalty or conflict of interest” was more case, exercising may proving discretion have a difficult time his tor to considered be however, relevant; litigant’s is not whether collateral should it is the to decide pursuit practical procedural were choice whether of an issue difficult apply, there prove promising only meager relief disadvantages suffered is justified. claims to this court before. presenting his engage “unable to in full-scale He was agreement While I am total witnesses,” call id.

discovery or able Judge Tamm’s discussion of under- alleges indeed Ct. at he S. action, pinnings of a section so that it unwilling to talk with some witnesses were day will his appears McCord indeed have they subject were still to crimi him because court, complaint I would not so read his prosecution. process He was also in the nal tort potential as to eliminate stringently appeal attempting pursue his I Nor do believe collateral claim. counsel, allegedly with a notable lack new be the erected or should barrier Alch. are cooperation from All of these majority. I concur therefore in the remand considered factors which I believe should be proceedings, of this case further before the district court decides to foreclose scope not so circumscribe the of those would claims, though I would leave McCord’s tort proceedings majority. as has the equi initial balance of determination to it.6 table considerations course, say,

All of this is not disloyalty proved has case of fiduciary even under duty,

and breach of Rather, he has limited rationale. events, sequence presented plausible America UNITED STATES of supported key points by uncontested parties, from third facts and affidavits SAMPOL, Appellant. Novo Guillermo give which would rise to a cause I believe duty. fiduciary breach of action for tortious America UNITED STATES of motive, and how much Since state mind at McCord’s of what Alch did done DIAZ, Appellant. Alvin Ross knowledge with his are critical bidding or factors, judgment inappropri- summary America UNITED STATES of ate, long estoppel as collateral does so be, bar, just it would raise an absolute SAMPOL, instance, Ignacio Appellant. in an antitrust or race discrim- Novo events sequence ination case in which 79-1541, 79-1808. Nos. 79-1542 and alleged either inno- plaintiff could be Appeals, United States Court of carefully disguised cent miscon- behavior District of Circuit. Columbia used Summary judgment duct. should be play intent sparingly Argued when motive and June role, proof likely when to be leading Sept. Decided conspirators, largely alleged in the hands of 9, 1980. Rehearing Dec. Denied with hostile and when a faced Broadcasting witnesses. Poller Columbia Inc.,

System, (1962). The fact that McCord

L.Ed.2d 458 applica- approach require Hosiery difference in would not 6. Parklane establishes that the This bility unique equitable if were con- rests reversal there no of the doctrine collateral case, court, taking into there are discretion of the siderations involved within the par- very equitable involved here unusual circumstances account the considerations reading case. A of the district court’s which I believe should be considered before ticular opinion exploration in this case reveals that it believed of McCord’s claims further mandated, prerequi- dismissal to be once is foreclosed. sites are established. of collateral

Case Details

Case Name: James W. McCord Jr. v. F. Lee Bailey

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Oct 15, 1980

Citation: 636 F.2d 606

Docket Number: 79-1085

Court Abbreviation: D.C. Cir.