Christian Head v. Robert Wilkie ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTIAN HEAD, M.D., No. 17-55942
Plaintiff-Appellant,
D.C. No.
v. 2:14-cv-01563-
SVW-PLA
ROBERT WILKIE, Secretary of
Department of Veterans Affairs;
DEAN NORMAN, M.D.; DONNA M. OPINION
BEITER, R. N. M.S.N.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted April 9, 2019
Pasadena, California
Filed September 5, 2019
Before: A. Wallace Tashima and Richard A. Paez, Circuit
Judges, and Gary S. Katzmann, * Judge.
Opinion by Judge Paez
*
The Honorable Gary S. Katzmann, Judge for the United States
Court of International Trade, sitting by designation.
2 HEAD V. WILKIE
SUMMARY **
Civil Rights
The panel reversed the district court’s order granting
summary judgment to defendants in an action brought by
Christian Head, M.D., an African-American, board-certified
head and neck surgeon who filed a lawsuit against his
employer, the Secretary of the Department of Veterans
Affairs and individual employees alleging, in part, that his
supervisors violated 42 U.S.C. § 1985(2) by conspiring to
deter him from testifying in a colleague’s and his own civil
rights cases.
The district court granted the defendants’ motion for
summary judgment on the § 1985(2) conspiracy claim,
relying on David v. United States, 820 F.2d 1038 (9th Cir.
1987), which held that only parties to the initial case who
were “hampered in being able to present an effective case”
can show injury sufficient to bring a section 1985(2) claim.
The panel held that this court’s decision in David was
abrogated by Haddle v. Garrison, 525 U.S. 121, 126 (1998),
to the extent that David limited section 1985(2) claims on
statutory standing and injury grounds in conflict with
Haddle. The panel held that a plaintiff asserting conspiracy
under section 1985(2) need not show that the party in the
original proceeding was hampered in presenting an effective
case; interference with a witness’s employment is a
cognizable injury for section 1985(2) purposes. The panel
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
HEAD V. WILKIE 3
held that David’s limitations were irreconcilable with
Haddle’s proclamation that intimidation or retaliation
against witnesses in federal court proceedings constitute the
“gist of the wrong” at which the statute is directed. The
panel held that, as other sister circuits have recognized, this
expanded view of section 1985(2) aligned with the Supreme
Court’s broad reading of the Reconstruction civil rights acts
like section 1985.
The panel held that plaintiff’s allegations that employees
retaliated against him based on his testimony in a colleague’s
federal civil rights case and in his own case alleged a
cognizable injury. The panel reversed the district court’s
order granting summary judgment to the defendant
supervisors on plaintiff’s section 1985(2) conspiracy claim
and remanded for further proceedings consistent with the
panel’s opinion and with the concurrently filed unpublished
memorandum, which addressed plaintiff’s remaining
employment discrimination claims.
COUNSEL
Zane E. Hilton (argued), Lawrance A. Bohm, and Bradley J.
Mancuso, Bohm Law Group Inc., Sacramento, California,
for Plaintiff-Appellant.
Chung H. Han (argued), Special Assistant United States
Attorney; David M. Harris, Chief, Civil Division; Nicola T.
Hanna, United States Attorney; United States Attorney’s
Office, Los Angeles, California; for Defendants-Appellees.
4 HEAD V. WILKIE
OPINION
PAEZ, Circuit Judge:
Christian Head, M.D., is an African-American, board-
certified head and neck surgeon who held dual appointments
for over a decade at the Department of Veterans Affairs
(“VA”) and University of California, Los Angeles
(“UCLA”). In 2014, Head filed an employment
discrimination lawsuit against the Secretary of the VA,
alleging racial discrimination, retaliation, and hostile work
environment in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e. Head also sued his VA
supervisors, Dr. Dean Norman and Donna Beiter, alleging
that they violated 42 U.S.C. § 1985(2) by conspiring to deter
him from testifying in a colleague’s and his own civil rights
cases. Relying on David v. United States, 820 F.2d 1038(9th Cir. 1987), the district court granted the defendants’
motion for summary judgment on the conspiracy claim
based on David’s holding that only parties to the initial case
who were “hampered in being able to present an effective
case” can show injury sufficient to bring a section 1985(2)
claim, id. at 1040. 1
On appeal, Head argues that the district court erred by
ignoring more recent case law addressing what type of injury
suffices to bring a section 1985(2) claim. We have
jurisdiction under 28 U.S.C. § 1291, and we agree that the
district court erred in granting summary judgment on this
1
The district court also denied Head’s request for discovery under
Federal Rule of Civil Procedure 56(d) and granted summary judgment to
defendants on Head’s Title VII claims of race-based discrimination,
retaliation, and hostile work environment. We address Head’s appeal of
these claims in a concurrently filed memorandum disposition. In this
opinion, we address only the conspiracy claim.
HEAD V. WILKIE 5
claim. Intervening higher authority from the Supreme Court
has abrogated our holding in David. See Haddle v. Garrison,
525 U.S. 121, 126 (1998). Thus, we, as well as the district
court, are not bound by David because it is “clearly
irreconcilable with the reasoning or theory of intervening
higher authority.” Miller v. Gammie, 335 F.3d 889, 893 (9th
Cir. 2003) (en banc). We therefore reverse and remand for
further proceedings consistent with this opinion.
I.
Between 2002 and 2013, Head held dual appointments
at the UCLA David Geffen School of Medicine as an
Associate Professor in Residence of Head and Neck Surgery,
as well as at the VA Greater Los Angeles Healthcare system
(“GLAHS”) as an attending surgeon. Head alleges that over
his time at both institutions, he endured discrimination,
retaliation, and harassment on the basis of his race and his
participation in various internal investigations and Equal
Employment Opportunity (“EEO”) cases. He filed a total of
three EEO complaints against the VA. 2
Head filed his first EEO complaint in 2004 against his
then-supervisor, Dr. Marilene Wang, alleging reprisal and
harassment on the basis of race. He filed his second EEO
complaint in 2008 against a later supervisor, Dr. Matthias
Stelzner, alleging reprisal, harassment, and hostile work
environment. A 2008 internal investigation concluded that
Head was treated differently from others similarly situated
in his department, but could not determine the motivations
behind that disparity. In 2009, as a result of the internal
2
Head also filed four complaints against UCLA with the California
Department of Fair Employment and Housing, and settled a lawsuit
against UCLA in 2014 for $4.5 million.
6 HEAD V. WILKIE
investigation, Head was reassigned to work in the Office of
the Chief of Staff led by Norman, who reported to the
GLAHS director, Beiter. This led to Head’s third EEO
complaint, filed in October 2011, which is the subject of this
lawsuit.
In the 2011 EEO complaint, Head identified ten
incidents of harassment and reprisal, including an
unwarranted pay cut and incidents of being accused of
absence without leave. At the time, Head was participating
as a witness in the lawsuit of Dr. Jasmine Bowers, his former
colleague, against the VA. Dr. Bowers filed a lawsuit
alleging racial discrimination against a VA-affiliated
hospital where Wang, Head’s former supervisor, was on the
peer-review panel. Head was deposed as part of the EEO
investigation of Bowers’s complaint and as part of Bowers’s
federal lawsuit. During the latter deposition, Head stated
that he believed the VA had escalated tracking of his time
and was “super-auditing” him in retaliation for testifying on
behalf of Bowers and against Wang. In his 2011 EEO
complaint, Head alleged that he faced a hostile work
environment at the VA because of his testimony in Bowers’s
case.
After completing the administrative process, Head filed
a complaint in district court in March 2014, initiating this
lawsuit against the VA. Separately, on July 8, 2014, Head
testified before the House of Representatives Committee on
Veterans Affairs on a panel entitled “VA Whistleblowers:
Exposing Inadequate Service Provided to Veterans and
Ensuring Appropriate Accountability.” Head testified about
a range of topics including racial discrimination he faced
within the institution, retaliation for his participation in a
timecard fraud investigation against Wang, and retaliation
for his participation in the Bowers case. A few weeks after
HEAD V. WILKIE 7
Head’s congressional testimony, he filed a first amended
complaint, which added Beiter and Norman, individually, as
defendants.
At this time, Beiter was Head’s second-in-line
supervisor after Norman. She watched Head’s congressional
testimony on C-Span. Shortly after his testimony, Beiter
decided to remove Head from her supervisory chain of
command because she learned that the VA Administrative
Investigation Board would be initiating an investigation of
Head’s allegations. She spoke to her supervisor, and Head
was re-assigned to report to a different chief of staff rather
than to Norman and Beiter. Additionally, Head’s office was
relocated from the Chief of Staff executive suite to an office
on the fourth floor of the hospital. Beiter avers that she made
these decisions without knowing that Head had personally
named her in this lawsuit.
After two rounds of motions to dismiss under Federal
Rules of Civil Procedure 8, 12(b)(1), and 12(b)(6), Head
filed the operative second amended complaint in October
2014. Head alleged that Beiter and Norman conspired to
deter a party or witness, in violation of 42 U.S.C. § 1985(2).
Head also alleged three claims under Title VII against the
VA: racial discrimination in violation of 42 U.S.C. § 2000e-
2; retaliation/reprisal in violation of 42 U.S.C. § 2000e-3(a);
and hostile work environment in violation of 42 U.S.C.
§ 2000e-2. In addition to the ten acts described in his 2011
EEO complaint, Head alleged nine other acts of harassment
and retaliation that he experienced in 2014, including having
sick leave and vacation time erroneously taken away from
him, and having his patients reassigned to Wang.
The VA filed a third motion to dismiss, which the district
court denied, but the court then ordered a briefing schedule
for a motion for summary judgment. All defendants filed a
8 HEAD V. WILKIE
motion for summary judgment. Head opposed the motion
and requested discovery under Rule 56(d). Relevant here,
the district court granted summary judgment for Norman and
Beiter on the section 1985(2) conspiracy claim. 3 Head
timely appealed.
II.
We review de novo the grant of a motion for summary
judgment. McGinest v. GTE Serv. Corp., 360 F.3d 1103,
1112 (9th Cir. 2004). The moving party is entitled to
summary judgment only where, drawing all reasonable
inferences supported by the evidence in favor of the
nonmoving party, no genuine dispute of material fact exists
and the moving party is entitled to judgment as a matter of
law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986). A genuine dispute of material fact exists where “a
reasonable jury could return a verdict for the nonmoving
party.” Id. at 248.
III.
Section 1985(2), in relevant part, proscribes conspiracies
“to deter, by force, intimidation, or threat, any party or
witness in any court of the United States from attending such
court, or from testifying to any matter pending therein,
freely, fully, and truthfully, or to injure such party or witness
in his person or property on account of his having so
attended or testified.” If one or more persons engaged in
such a conspiracy “do, or cause to be done, any act in
furtherance of the object of such conspiracy, . . . the party so
injured . . . may have an action for the recovery of damages
3
See supra at 4 n.1.
HEAD V. WILKIE 9
occasioned by such an injury . . . against any one or more of
the conspirators.” 42 U.S.C. § 1985(3).
Head alleged that Beiter and Norman conspired to deter
him from testifying in the case of his former colleague,
Bowers, and in his own case. The district court applied the
test we formulated in David, stating that to establish a claim
under section 1985(2), the plaintiff must show “(1) a
conspiracy between two or more persons, (2) to deter a
witness by force, intimidation or threat from attending court
or testifying freely in any pending matter, which (3) results
in injury to the plaintiff.” 820 F.2d at 1040. The district
court noted David’s test for injury, observing that claims of
witness intimidation “will not suffice for a cause of action
unless it can be shown that the litigant was hampered in
being able to present an effective case.” Id.; see Blankenship
v. McDonald, 176 F.3d 1192, 1196 (9th Cir. 1999) (applying
test from David to hold that plaintiff failed to state a claim
where she alleged that she was prevented from testifying in
an EEO proceeding to which she was not a party). Applying
David’s test, the district court then rejected Head’s argument
that he could assert a section 1985(2) claim based on the
alleged interference with his testimony in Bowers’s case.
Lastly, the district court concluded that Head failed to show
injury from any alleged interference in his own pending
lawsuit because he did not present any evidence that he was
hampered in his ability to present an effective case.
We must decide whether David still controls over claims
under section 1985(2), especially in light of the Supreme
Court’s subsequent decision in Haddle. No prior decision
from our court has addressed explicitly the continuing
viability of David’s holding in light of Haddle. See
Mirmehdi v. United States, 689 F.3d 975, 983 (9th Cir.
2012); Blankenship, 176 F.3d at 1196. Under Miller, we are
10 HEAD V. WILKIE
obliged to reexamine normally controlling circuit precedent
in the face of an intervening Supreme Court decision.
335 F.3d at 892.
A.
In Haddle, the Supreme Court addressed a circuit split
regarding the type of injury that is cognizable under section
1985(2). 525 U.S. at 124. Haddle was an at-will employee
of an employer whose officers were charged with Medicare
fraud. Id. at 122–23. He alleged that those officers
conspired to have him fired from his job in retaliation for his
cooperation with a federal grand jury subpoena in those
criminal proceedings. Id. at 123. He then sued for damages
under section 1985(2). Id. The Eleventh Circuit affirmed
the district court’s dismissal of Haddle’s case on the basis of
circuit precedent holding that an at-will employee had no
constitutionally protected interest in continued employment,
and therefore could not assert an injury under the statute. Id.at 123–24.
The Supreme Court reversed, holding that termination
from at-will employment could constitute harm to “person
or property” for purposes of section 1985(2), even though at-
will employment is not “property” for purposes of the due
process clause. Id. at 125–26 (“We disagree with the
Eleventh Circuit’s conclusion that the petitioner must suffer
an injury to a ‘constitutionally protected property interest’ to
state a claim for damages under § 1985(2).”). The Court
pointed out that the terms “injured in his person or property”
in the statute refer to traditional principles of tort law, and
that interference with contractual relations like at-will
employment has long been a compensable injury under tort
law. Id. at 127. Thus, the Court held that the loss of at-will
employment by a non-party to the underlying judicial
proceeding—the federal criminal prosecution against the
HEAD V. WILKIE 11
company’s officers—could establish the kind of injury
required to state a claim under section 1985(2). Id. at 126–
27.
Although the Court stated that it expressed no opinion
regarding the officers’ argument that only parties, and not
witnesses, may bring section 1985(2) claims, id. at 125 n.3,
the reasoning behind Haddle is clearly irreconcilable with
our reasoning in David. As a reminder, we held prior to
Haddle that only a party to the underlying litigation can
demonstrate sufficient injury to state a claim under section
1985(2). David, 820 F.2d at 1040. Our reasoning was sparse
but unequivocal:
[The plaintiff] David has not alleged how she
has been injured by her testimony in [her
coworker’s case] or her failure to appear in
court. Allegations of witness intimidation
under § 1985(2) will not suffice for a cause
of action unless it can be shown the litigant
was hampered in being able to present an
effective case. Since David has not shown
she was a party to the actions in which she
was intimidated, she can show no injury
under § 1985(2).
Id. (internal citation omitted).
Conversely, the Supreme Court later held in Haddle that
interference with a plaintiff’s employment—which has no
relationship to or impact on the underlying litigation for
which he was subpoenaed to testify—is a cognizable injury
under section 1985(2). 525 U.S. at 126. The Court reached
this conclusion after explaining that “[t]he gist of the wrong
at which § 1985(2) is directed is not deprivation of property,
but intimidation or retaliation against witnesses in federal-
12 HEAD V. WILKIE
court proceedings.” Id. at 125 (emphasis added). By
recognizing a witness’s injury as cognizable because of the
statute’s goal of guarding against undue influence in court
proceedings, Haddle has logically abrogated David’s
limitations on the type of injury that suffices for a claim
under section 1985(2) and that one must be a party to the
underlying case to suffer cognizable injury. 4
B.
While David appears plainly irreconcilable with Haddle,
we recognize that two Ninth Circuit opinions post-Haddle
continued to apply the David rule. See Mirmehdi, 689 F.3d
at 983; Blankenship, 176 F.3d at 1196. In neither case,
however, did we discuss or even acknowledge the Supreme
Court’s decision in Haddle. In fact, we have located no case
4
A few of our sister circuits have framed this question of what injury
suffices under section 1985(2) as one of “standing,” focusing on the
scope of “the party so injured” in the statute. See Heffernan v. Hunter,
189 F.3d 405, 410 (3d Cir. 1999); see also Chavis v. Clayton Cty. Sch.
Dist., 300 F.3d 1288, 1292 (11th Cir. 2002) (citing Heffernan with
approval). Head’s briefing also borrows this standing framework. It is
therefore worth clarifying how “standing” is relevant to David and
Haddle’s holdings. There is a difference between statutory standing and
constitutional standing. See Maya v. Centex Corp., 658 F.3d 1060, 1067
(9th Cir. 2011). “[L]ack of statutory standing requires dismissal for
failure to state a claim [under Rule 12(b)(6), [whereas] lack of Article III
[constitutional] standing requires dismissal for lack of subject matter
jurisdiction under [Rule] 12(b)(1).” Id. (citing Simmonds v. Credit
Suisse Sec. (USA) LLC, 638 F.3d 1072, 1087 n.6 (9th Cir. 2011)). Both
David and Haddle addressed what type of injury is sufficient to state a
claim for damages under section 1985(2). See Haddle, 525 U.S. at 492;
David, 820 F.3d at 1040. By extension, they both also address statutory
standing to the extent we must consider the identity of “the party so
injured” under the same statute.
HEAD V. WILKIE 13
from our circuit, published or otherwise, that has cited
Haddle.
We faced a similar scenario in Galbraith v. Cty. of Santa
Clara, when determining the proper pleading standard for
improper motive in cases under 42 U.S.C. § 1983. 307 F.3d
1119, 1121 (9th Cir. 2002). We concluded that our earlier
decisions, Branch v. Tunnell, 937 F.2d 1382 (9th Cir. 1991)
(“Branch I”) and Branch v. Tunnell, 14 F.3d 449 (9th Cir.
1994) (“Branch II”), were no longer good law as a result of
subsequent Supreme Court decisions in Crawford-El v.
Britton, 523 U.S. 574 (1998) and Swierkiewicz v. Sorema
N.A., 534 U.S. 506 (2002). Galbraith, 307 F.3d at 1123–26.
We recognized that cases after Crawford-El continued to cite
Branch I and Branch II, but stressed that “none has expressly
addressed the continuing viability of Branch’s heightened
pleading standard in light of Crawford-El and
Swierkiewicz.” Id. at 1125–26. Because our rule in Branch
I and II was inconsistent with the federal system of notice
pleading under Rule 8 as explained by the Supreme Court in
Swierkiewicz, we “[held] that Branch has been overruled by
subsequent Supreme Court authority.” Id. at 1126.
Like the situation in Galbraith, neither Mirmehdi nor
Blankenship has expressly addressed the continuing viability
of David’s holding regarding cognizable injury in light of
Haddle. See id. at 1126. Conversely, other circuits that have
expressly addressed section 1985(2) claims in light of
Haddle have uniformly recognized that the statute
encompasses injury to witnesses who were not parties in the
underlying judicial proceedings. See L.L. Nelson Enter., Inc.
v. Cty. of St. Louis, Mo., 673 F.3d 799, 812 n.3 (8th Cir.
2012) (noting that the statute forbids conspiracies to injure a
witness on account of his having so attended or testified);
Montoya v. FedEx Ground Package Sys., Inc., 614 F.3d 145,
14 HEAD V. WILKIE
149 (5th Cir. 2010) (noting “[s]ubsection (2) concerns
conspiracies directed at the right of participation in federal
judicial proceedings”); Kinney v. Weaver, 367 F.3d 337,
351–55 (5th Cir. 2004) (en banc) (affirming denial of
summary judgment for defendants where plaintiffs alleged
conspiracy because of their testimony as expert witnesses in
judicial proceedings); O’Neal v. Garrison, 263 F.3d 1317,
1318, 1321–22 (11th Cir. 2001) (reversing summary
judgment for defendants where plaintiff alleged retaliation
for testifying before a grand jury and agreeing to testify at
criminal trial of defendants). 5
Moreover, at least three of our sister circuits have
explicitly held that non-parties may bring section 1985(2)
claims. See Hogan v. Winder, 762 F.3d 1096, 1113–14 (10th
Cir. 2014) (citing with approval Brever v. Rockwell Int’l
Corp., 40 F.3d 1119, 1126 (10th Cir. 1994), which held
before Haddle that non-litigants can bring section 1985(2)
claims); Chavis, 300 F.3d at 1292–93 (holding that section
1985(2) claims are not limited to “only a person who was a
named party in an earlier case”); Heffernan, 189 F.3d at 410(agreeing with Brever that a witness or juror may bring a
claim under section 1985(2)).
Thus, this is our first occasion to address the impact of
Haddle on our section 1985(2) case law. We hold that
David’s injury limitations no longer apply. Non-parties to
the original judicial proceeding may pursue section 1985(2)
claims. See Haddle, 525 U.S. at 126; see also Heffernan,
5
The only exception is the Second Circuit in Morris v. Lindau, but
there, the plaintiffs asserting section 1985(2) conspiracy claims were
also the parties in the original federal civil rights litigation. 196 F.3d
102, 116–17 (2d Cir. 1999). Thus, there was no occasion to address the
injury of non-parties.
HEAD V. WILKIE 15
189 F.3d at 410. A plaintiff asserting conspiracy under
section 1985(2) need not show that the party in the original
proceeding was hampered in presenting an effective case;
interference with a witness’s employment is a cognizable
injury for section 1985(2) purposes. Haddle, 525 U.S.
at 126–27.
C.
In light of Haddle, the district court’s reasons for
granting summary judgment to Norman and Beiter on
Head’s conspiracy claim are no longer viable. Head has
alleged that VA employees retaliated against him based on
his testimony in the Bowers federal civil rights case and in
his own case. We hold that he has alleged a cognizable
injury and may pursue that claim. Head can state a claim
even if he cannot show that either he or Bowers were
hampered in being able to present an effective case. We
therefore reverse the district court’s grant of summary
judgment on this claim. In so doing we express no views as
to the merits of Head’s section 1985(2) conspiracy claim.
IV.
In summary, David v. United States, 820 F.2d 1038 (9th
Cir. 1987), has been abrogated by subsequent controlling
Supreme Court authority to the extent that it limits section
1985(2) claims on statutory standing and injury grounds in
conflict with Haddle. David’s limitations are irreconcilable
with Haddle’s proclamation that intimidation or retaliation
against witnesses in federal court proceedings constitute the
“gist of the wrong” at which the statute is directed. 525 U.S.
at 125. And, as our sister circuits have recognized, this
expanded view of section 1985(2) aligns with the Supreme
Court’s broad reading of the Reconstruction civil rights acts
like section 1985. See Chavis, 300 F.3d at 1292 (citing
16 HEAD V. WILKIE
Griffin v. Breckenridge, 403 U.S. 88, 97 (1971)); Heffernan,
189 F.3d at 409–10.
The district court’s order granting summary judgment to
Norman and Beiter on Head’s section 1985(2) conspiracy
claim is therefore reversed and the case is remanded for
further proceedings consistent with this opinion and with the
concurrently filed memorandum addressing Head’s
remaining claims.
Head shall recover his costs on appeal.
REVERSED and REMANDED.