                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-8-2006

Farber v. Paterson
Precedential or Non-Precedential: Precedential

Docket No. 04-4498




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                                             PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                         No. 04-4498


                    ROBERTA FARBER

                              v.

         CITY OF PATERSON; JOSE TORRES;
      ELIESER BURGOS; MARGE DIPASQUALE;
      LOCAL 3474, AMERICAN FEDERATION OF
 STATE, COUNTY & MUNICIPAL EMPLOYEES, AFL-CIO

            Local 3474, American Federation of State,
            County & Municipal Employees, AFL-CIO,
                                   Appellant


APPEAL FROM THE UNITED STATES DISTRICT COURT
         FOR THE DISTRICT OF NEW JERSEY
                D.C. Civil No. 03-cv-04535
  District Judge: The Honorable Dickinson R. Debevoise


                 Argued: November 16, 2005


 Before: BARRY and AMBRO, Circuit Judges, and POLLAK,*
                     District Judge


                (Opinion Filed: March 8, 2006)


      *
         The Honorable Louis H. Pollak, District Judge, United
States District Court for the Eastern District of Pennsylvania,
sitting by designation.
David B. Beckett, Esq. (Argued)
Szaferman, Lakind, Blumstein, Blader & Lehmann
101 Grovers Mill Road
Quakerbridge Executive Center
Suite 104
Lawrenceville, NJ 08648

Counsel for Appellant


James E. Patterson, Esq. (Argued)
Graham, Curtin & Sheridan
4 Headquarters Plaza
P.O. Box 1991
Morristown, NJ 07962

Counsel for Appellee




                  OPINION OF THE COURT




BARRY, Circuit Judge

        The American Federation of State, County & Municipal
Employees, AFL-CIO, Local 3474 (“Local 3474” or “the
Union”), appeals the District Court’s denial of its motion to
dismiss. The District Court was persuaded, first, that political
affiliation was a cognizable class under 42 U.S.C. § 1985(3) and,
at least for purposes of a motion to dismiss, that the Union had
conspired with appellee Roberta Farber’s employer, the City of
Paterson, to deprive her of her First Amendment rights on the
basis of her political affiliation. The Court was also persuaded
that Farber’s claim that the Union breached its duty of fair
representation in refusing to pursue a grievance on her behalf
had been timely filed. We will affirm in part and reverse in part.

                                2
           I. Background and Procedural History

        We have before us a classic example of political
patronage. Democrat Jose Torres defeated Republican
incumbent Mayor Martin G. Barnes in the May 2002 mayoral
election in Paterson, New Jersey, and subsequently declared his
intent to terminate City employees who supported the former
mayor. Farber, a City employee and admitted supporter of
Barnes and his policies, was terminated from her administrative,
non-policymaking position on June 28, 2002, after
approximately eleven years on the job. She was informed of her
termination in a letter from the City’s Assistant Personnel
Director, Marge DiPasquale, whose niece, Farber claims, was
later hired to fill her position.

       After her termination, Farber asked the Union to file a
grievance on her behalf against the City for allegedly breaching
the collective bargaining agreement that governed her
employment. A meeting was held between the Union and City
representatives, but ultimately the Union rejected Farber’s
request, citing the fact that she was a provisional employee who
could be terminated at will.1 Farber alleges that the Union’s
president, Manuel Ojeda, a political ally of newly elected Mayor
Torres, was thereafter appointed as the City’s Director of Public



       1
         Public employment in Paterson is governed by the New
Jersey Civil Service Act, N.J. Stat. Ann. § 11A:1-1, et seq. The
Act distinguishes between employees who are “regularly”
appointed, i.e., permanent employees, and those who are
“provisionally” appointed. Provisional appointees hold their
positions until a permanent employee is appointed, and in no
case is the appointment to last longer than twelve months. N.J.
Stat. Ann. § 11A:4-13(a)-(b); N.J. Admin. Code §§ 4A:1-1.3, 4-
1.3. Despite this requirement, Farber remained a provisional
employee with the City for the entire eleven-year length of her
employment because the City allegedly failed to complete a
multi-step process that would have changed her status to
permanent.

                                3
Works.

       Farber filed suit against the City and the Union, among
others, alleging, inter alia, (1) that the City and the Union
conspired to deprive her of her First Amendment rights because
of her political affiliation, in violation of 42 U.S.C. § 1985(3);
and (2) that the Union breached the duty of fair representation it
owed to her under the New Jersey Constitution and the New
Jersey Employer-Employee Relations Act, N.J. Stat. Ann. §
34:13A-5.3.

        The Union moved to dismiss Farber’s § 1985(3) and duty
of fair representation claims pursuant to Federal Rule of Civil
Procedure 12(b)(6), arguing that discrimination based on
political affiliation cannot support a § 1985(3) claim, and that
the duty of fair representation claim was time-barred. That
motion was denied. See Farber v. City of Paterson, 327 F.
Supp. 2d 401, 418-25 (D.N.J. 2004). Relying on Perez v. Cucci,
725 F. Supp. 209, 249-53 (D.N.J. 1989), aff’d, 898 F.2d 142 (3d
Cir. 1990), the District Court determined that political affiliation
is a cognizable class for § 1985(3) purposes, and that “Farber
[pled] sufficient class-based animus when she alleged that
Defendants conspired against her because she is a Republican.”
Farber, 327 F.Supp. 2d at 424-25. The District Court also
determined that, despite the New Jersey Public Employment
Relations Commission’s “exclusive power” to prevent unions
from engaging in “unfair practices” under N.J. Stat. Ann. §
34:13A-5.4(c), a litigant may bring a duty of fair representation
claim under the Employer-Employee Relations Act in court
without first resorting to the Commission. Id. at 419-20. The
District Court then rejected the Union’s argument that the six-
month statute of limitations applicable to unfair practice charges
before the Commission should also apply to a duty of fair
representation claim at law. It held, instead, that New Jersey’s
general six-year limitations period for actions alleging “tortious
injury to the rights of another,” N.J. Stat. Ann § 2A:14-1,
applied. 327 F.Supp. 2d at 421-22.

       The Union moved under 28 U.S.C. § 1292(b) for an
interlocutory appeal of the denial of its motion to dismiss. The

                                 4
District Court granted the motion, certifying two issues:

       (1) Are people who share a political affiliation a
       cognizable class for [42 U.S.C.] § 1985(3)
       purposes?

       (2) Which statute of limitations applies to a claim
       brought in court for a union’s breach of the duty of
       fair representation that is enunciated in the New
       Jersey [Employer-Employee Relations Act]?

We granted the Union’s petition for leave to appeal. Our review
of the denial of the Union’s motion to dismiss is plenary. The
facts alleged in the complaint and the reasonable inferences that
can be drawn from those facts are accepted as true for purposes
of this review.

                     II. 42 U.S.C. § 1985(3)

        Section 1985(3) permits an action to be brought by one
injured by a conspiracy formed “for the purpose of depriving,
either directly or indirectly, any person or class of persons of the
equal protection of the laws, or of equal privileges and
immunities under the laws.” 42 U.S.C. § 1985(3). In a line of
cases beginning with Griffin v. Breckenridge, 403 U.S. 88
(1971), the Supreme Court has made clear what a plaintiff must
allege to state a claim under § 1985(3): “(1) a conspiracy; (2) for
the purpose of depriving, either directly or indirectly, any person
or class of persons of the equal protection of the laws, or of
equal privileges and immunities under the laws; and (3) an act in
furtherance of the conspiracy; (4) whereby a person is injured in
his person or property or deprived of any right or privilege of a
citizen of the United States.” United Bhd. of Carpenters &
Joiners v. Scott, 463 U.S. 825, 828-29 (1983) (citing Griffin, 403
U.S. at 102-03).

        Section 1985(3) was initially part of Section 2 of the Ku
Klux Klan Act of 1871, an Act passed to give the federal
government a weapon against the wave of anarchic and violent
civil resistance to Reconstruction that marred the post-Civil War

                                 5
South. See Novotny v. Great Am. Fed. Sav. & Loan Ass’n, 584
F.2d 1235, 1238-39 (3d Cir. 1978), vacated on other grounds,
442 U.S. 366 (1979);2 Keating v. Carey, 706 F.2d 377, 385 (2d
Cir. 1983). It does not create any substantive rights, but permits
individuals to enforce substantive rights against conspiring
private parties. See, e.g., Marino v. Bowers, 657 F.2d 1363,
1371 (3d Cir. 1981); Howard v. State Dep’t of Highways, 478
F.2d 581, 585 (10th Cir. 1973).

       Due to restrictive, post-Reconstruction-era Supreme
Court decisions, including one that held that § 1985(3) only
reached public conspiracies, § 1985(3) was not utilized for about
70 years. In Griffin, however, the Court reversed course and
held that a § 1985(3) claim can reach private as well as public
conspiracies that seek to deprive a class of equal protection of
the laws or equal privileges under the laws. 403 U.S. at 101.
Thus, African-American plaintiffs were permitted to use §
1985(3) to sue their racially motivated white attackers for
violating their constitutional right to travel. Id. at 103, 106.

       Despite its application to private conspiracies, § 1985(3)
was not intended to provide a federal remedy for “all tortious,
conspiratorial interferences with the rights of others,” or to be a
“general federal tort law.” Id. at 101-02. The Griffin Court
emphasized that because § 1985(3) requires the “intent to



       2
         While Novotny’s holding “that Title VII can be the
source of a right asserted in an action brought pursuant to section
1985(3) was vacated by the Supreme Court,” its “analysis of the
history of section 1985(3) and [its] discussion of the classes to
which it extends were unaffected.” Lake v. Arnold, 112 F.3d
682, 686 n.6 (3d Cir. 1997); see also Bray v. Alexandria
Women’s Health Clinic, 506 U.S. 263, 317 n.14 (1993) (Stevens,
J., dissenting) (In Novotny, “[w]e had no occasion to agree or to
disagree with the Court of Appeals’ holding that conspiracies
motivated by an invidious animus against women fall within §
1985(3) because we concluded that the deprivation of the
subsequently created Title VII statutory right could not form the
basis for a § 1985(3) claim.”).

                                 6
deprive of equal protection, or equal privileges and immunities,”
a claimant must allege “some racial, or perhaps otherwise class-
based, invidiously discriminatory animus behind the
conspirators’ action” in order to state a claim. Id. at 102 (third
emphasis added). The phrase “class-based invidiously
discriminatory animus” would

       confine the authority of this law to the prevention
       of deprivations which shall attack the equality of
       rights of American citizens; that any violation of
       the right, the animus and effect of which is to
       strike down the citizen, to the end that he may not
       enjoy equality of rights as contrasted with his and
       other citizens’ rights, shall be within the scope of
       the remedies of this section.

Id. at 100 (quoting Cong. Globe, 42d Cong., 1st Sess. App. 478
(1871) (Rep. Shellabarger)).

        There are two distinct aspects to the “class-based
invidiously discriminatory animus” which, we now know, will
support a § 1985(3) claim – the first is defined by form, and the
second by function. Thus, a plaintiff must allege both that the
conspiracy was motivated by discriminatory animus against an
identifiable class and that the discrimination against the
identifiable class was invidious. See Aulson v. Blanchard, 83
F.3d 1, 4-5 (1st Cir. 1996).

        Farber’s claim that the Union and the City conspired
against “supporter[s] of the former administration” fails to allege
discriminatory animus against an identifiable class. But even if
it did – if, for example, she alleged discriminatory animus
against registered Republicans – any such animus would not
trigger § 1985(3) protection. For one thing, the frequent mention
of “Republicans” in the Act’s legislative history, in and of itself,
does not mean that Congress intended § 1985(3) to reach
conspiracies bottomed on political affiliation. For another,
unlike discrimination against a class on the basis of race, sex, or
mental retardation, discrimination on the basis of political
affiliation is not, as a matter of law, discrimination so invidious

                                 7
such that § 1985(3) would apply. In sum, Farber has failed to
state a claim under § 1985(3). We proceed to discuss, in more
detail, why that is so.

A.     Farber Fails to Satisfy the Identifiable Class
       Requirement

        It bears repetition that a § 1985(3) claimant must allege
“some racial, or perhaps otherwise class-based, invidiously
discriminatory animus behind the conspirators’ action” in order
to state a § 1985(3) claim. Griffin, 403 U.S. at 102. Regardless
of the alleged basis for discrimination, however, and whether
that basis is “invidious” or not, “the allegation of a ‘class-based
animus’ naturally presumes that there is a specific, identifiable
class against whom the defendants can have discriminated.” See
Aulson, 83 F.3d at 5. At a minimum, Griffin’s use of the word
“class”

       unquestionably connotes something more than a
       group of individuals who share a desire to engage
       in conduct that the § 1985(3) defendant disfavors.
       Otherwise, innumerable tort plaintiffs would be
       able to assert causes of action under § 1985(3) by
       simply defining the aggrieved class as those
       seeking to engage in the activity the defendant has
       interfered with.

Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263,
269 (1993).

        Thus, § 1985(3) defendants must have allegedly
conspired against a group that has an identifiable existence
independent of the fact that its members are victims of the
defendants’ tortious conduct. This independent existence is
necessary to preserve the distinction between two of the
requirements of a § 1985(3) claim: that the conspirators be
motivated by class-based invidiously discriminatory animus and
that the plaintiff be the victim of an injury he or she seeks to
remedy by means of § 1985(3). If merely alleging the latter
could satisfy the former, “the requirement of class-based animus

                                 8
would be drained of all meaningful content,” Aulson, 83 F.3d at
5 (citing Bray, 506 U.S. at 269), and would transform § 1985(3)
into the “general federal tort law” Congress did not intend to
enact. See Bray, 506 U.S. at 269.

        In order to ensure that a § 1985(3) class has an
independent identifiable existence, a reasonable person must be
able to “readily determine by means of an objective criterion or
set of criteria who is a member of the group and who is not.”
Aulson, 83 F.3d at 5-6. For example, “women,” or “registered
Republicans,” may constitute an identifiable “class” as opposed
to a more amorphous group defined by “conduct that the §
1985(3) defendant disfavors,” such as “women seeking
abortion,” see Bray, 506 U.S. at 269, or “persons who support
[political] candidates,” see Aulson, 83 F.3d at 4-5.

        In Bray, the Supreme Court held that abortion clinics and
organizations that support abortion and have members who may
wish to use abortion clinics failed to state a § 1985(3) claim
against an anti-abortion organization whose “conspiratorial”
efforts to obstruct access to abortion clinics allegedly deprived
women seeking abortions of their right to interstate travel. 506
U.S. at 266-67. The Court explained that, while women
generally constituted a “class” that might substantively qualify
for § 1985(3) protection,3 the subgroup of “‘[w]omen seeking
abortion’ is not a qualifying class” because “the class ‘cannot be
defined simply as the group of victims of the tortious action.’”
Id. at 269-70 (quoting Scott, 463 U.S. at 850 (Blackmun, J.,
dissenting)).

       In Aulson, a local public officeholder brought a § 1985(3)
claim against an incumbent group of “old guard politicians” who
controlled town politics, alleging that he faced illegal searches
and sham prosecutions because he was a “member[ ] of a
political group which supports candidates who oppose the



        3
          The Court did not need to answer this question given
that the plaintiffs did not face discrimination “because they are
women” or “by reason of their sex.” Bray, 506 U.S. at 269-70.

                                 9
politics of the ‘old guard.’” 83 F.3d at 2 (alteration in original).
The Court of Appeals for the First Circuit found that the plaintiff
failed to allege discrimination by an identifiable class because

       this group is wholly indeterminate. It might
       include all the voters in Georgetown, or it might
       include only voters who have spoken out against
       incumbent selectmen, or it might include only the
       two individuals featured in the complaint, or it
       might include anyone whose inclusion would
       benefit the plaintiff at any given time. There is
       simply no way to characterize this group as an
       identifiable segment of the community by
       reference to any objective criteria, and, hence, it
       cannot serve as a cognizable class within the
       purview of § 1985(3).

Id. at 6 (citing Gleason v. McBride, 869 F.2d 688, 695 (2d Cir.
1989) (rejecting class status under § 1985(3) when the plaintiff
alleged only that he was “a political opponent of the defendants
and was extremely vocal in his opposition to their management
of the [municipality]”)).

        In our own jurisprudence, we have often addressed the
second question involved in the Griffin analysis – whether an
identified class has been invidiously discriminated against such
that one injured may avail himself or herself of § 1985(3) –
without the need to address the predicate question of whether an
objectively identifiable class existed in the first place, because
the answer was obvious. In Novotny, for example, we held that
§ 1985(3) extended to women, who constitute an objectively
identifiable class, while noting that Griffin’s class-based
invidiously discriminatory animus requirement works to screen
out claims where no class exists at all, citing, among others, our
decision in Jennings v. Shuman, 567 F.2d 1213 (3d Cir. 1977).4



       4
         In Jennings, we upheld the dismissal of the § 1985(3)
claim of a plaintiff who alleged that he was maliciously prosecuted
in an extortion scheme in violation of his procedural due process

                                10
Novotny, 584 F.2d at 1240-44, 1241 n.19. Similarly, we
concluded, in Lake v. Arnold, that “the scope of . . . § 1985(3) is
sufficiently broad to protect the mentally retarded as a class,”
assuming, albeit implicitly, that the mentally retarded constitute
an objectively identifiable class in the first place. 112 F.3d 682,
685, 688 (3d Cir. 1997). Simply put, some groups, particularly
those deemed to be distinguishable from others by immutable
characteristics, such as African-Americans, women, and the
mentally retarded, are so clearly accepted as objectively
identifiable that no extended analysis is needed. As the Court in
Bray demonstrated, however, it is not always a simple matter,
particularly when what is at issue is a putative class defined, as
here, by mutable characteristics such as opinion or conduct.

       The District Court erred when it concluded that “Farber
[pled] sufficient class-based animus when she alleged that
Defendants conspired against her because she is a Republican.”
Farber, 327 F. Supp. 2d at 425 (emphasis added). Not only does
Farber not allege in her complaint that she is the victim of
discrimination because she is a Republican, she does not allege
that she is a Republican and does not even allege that the
“conspiracy” was motivated by a desire to discriminate against
Republicans. Farber only alleges that she was terminated
“because she was affiliated with and a supporter of the
administration of former Mayor Martin G. Barnes,” 5 who, at



rights because we were unable from his complaint to “discern facts
alleging a class-based discriminatory animus.” 567 F.2d at 1221.
       5
        Other parts of the complaint contain similar allegations:
               Plaintiff was a public supporter and
       advocate of the policies of Mayor Martin G.
       Barnes. She believed Barnes’ policies were good
       for the city of Paterson and openly expressed
       herself to that effect. . . . The defendants were
       aware of plaintiff’s expression of support for the
       policies of Barnes.
               ....
               After his election, defendant Torres
       expressed his intent to terminate from employment

                                11
another point in her complaint, she identifies as a Republican.
Indeed, Farber does not even argue that her support for Mayor
Barnes, or her resulting injury, was founded on his status as a
Republican.

        When determining whether an independently identifiable
class exists, there are differences between being discriminated
against because of membership in a political party and being
discriminated against because of support for the policies of a
politician who also happens to be a member of the party. We
need not discuss those differences, however, for the class Farber
attempts to assert is so subjectively defined and “wholly
indeterminate” that “[t]here is simply no way to characterize [it]
as an identifiable segment of the community by reference to any
objective criteria, and, hence, it cannot serve as a cognizable
class within the purview of § 1985(3).” See Aulson, 83 F.3d at
6.6



        supporters of the prior administration. In a
        newspaper interview, Torres specifically referred
        to plaintiff as a supporter of the former
        administration and stated, falsely, that he had
        requested her resignation.
                ....
                The Union was also aware that defendant
        Torres terminated plaintiff because of her support
        for the policies of former Mayor Barnes and that
        the letter of termination predated Torres’
        assumption of office.
                ....
                The defendants’ actions were motivated by
        class-based invidiously discriminatory animus, to
        wit, political animus.
(App. 105, 108, 110.)
        6
          At oral argument, Farber attempted to remedy this defect
by recasting the class as those City employees, such as herself, who
suffered a First Amendment injury within the meaning of Elrod v.
Burns, 427 U.S. 347 (1976), when they were fired by the City for
their support of Barnes. The attempt was unsuccessful. Just as the

                                12
B.     Discriminatory Animus Directed at a Class Based on
       Political Affiliation is Not “Invidious”

       Even were we to ignore or forgive the pleading
deficiencies and assume that Farber adequately alleged that the
conspiracy was motivated by discriminatory animus aimed at a
class based on political affiliation, that type of discrimination is
not so “invidious” as to qualify for § 1985(3) protection.

        We begin our analysis with what the Supreme Court has
made clear: the victim of a conspiracy motivated by race
discrimination may bring a § 1985(3) claim, Griffin, 403 U.S. at
102, while the victim of mere commercial or economic animus
may not. Scott, 463 U.S. at 838. The Court has never found that
a criterion other than race can serve as the basis for a qualifying
class, but neither has it foreclosed that possibility, and we have
held that victims of discriminatory animus directed at women,
see Novotny, 584 F.2d at 1243, and the mentally retarded, see
Lake, 112 F.3d at 688, may state a § 1985(3) claim.

        Admittedly, we have sent mixed signals as to whether
discriminatory animus directed at a class based on political
affiliation can also so qualify. Compare Perez v. Cucci, 725 F.
Supp. 209, 253 (D.N.J. 1989) (political affiliation qualifies as a §
1985(3) class), aff’d, 898 F.2d 142 (3d Cir. 1990), with
D’Aurizio v. Palisades Park, 963 F. Supp. 378, 385-86 (D.N.J.
1997) (rejecting § 1985(3) claim because defendants merely
conspired against plaintiff “because of his political association”),
aff’d, 151 F.3d 1024 (3d Cir. 1998), Stephens v. Kerrigan, Nos.
95-615, 95-8093, 1996 U.S. Dist. LEXIS 6544, at *13 (E.D. Pa.
May 13, 1996) (political affiliation cannot support a § 1985(3)



“women seeking [an] abortion” in Bray, and the “persons who
support candidates opposed to the politics of the ‘old guard’” in
Aulson, this “definitional ploy” does no more than define the
would-be class—non-policymaking City employees fired for their
support of the former mayor—“as those seeking to engage in the
activity the defendant has interfered with.” See Bray, 506 U.S. at
269.

                                 13
claim), aff’d on other grounds, 122 F.3d 171, 184 (3d Cir. 1997),
and Deblasio v. Zoning Bd. of Adjustment, 820 F. Supp. 876,
885 (D.N.J. 1993) (rejecting § 1985(3) claim based on
“[p]laintiff’s allegation that he was discriminated against
because he was not a political insider”), aff’d in part, rev’d in
part, 53 F.3d 592, 596 (3d Cir. 1995).

       Our sister courts of appeals are split on the issue.7 And,
although it is still an open question in the Supreme Court, the
Court, albeit in 1983, suggested how it would rule if squarely
faced with the issue. In Scott, non-union construction workers,
who were attacked and beaten because of their non-union status,
alleged that their union-member attackers had the requisite
invidiously discriminatory animus for a § 1985(3) conspiracy
claim. The Court of Appeals for the Fifth Circuit agreed,
reasoning that the non-union employees were akin to a political
group, and that political groups are protected by § 1985(3)
because, given its reading of the legislative history of the Ku
Klux Klan Act, a § 1985(3) cause of action was intended not
only to protect African-Americans but also their Republican
supporters from the conspiratorial activities of the
Reconstruction-era Ku Klux Klan. 463 U.S. at 835-38.



       7
         Compare Galloway v. Louisiana, 817 F.2d 1154, 1159
(5th Cir. 1987) (holding that wholly non-racial animus directed
at a political class qualifies under § 1985(3)), Conklin v. Lovely,
834 F.2d 543, 549 (6th Cir. 1987) (same), Keating v. Carey, 706
F.2d 377, 386-88 (2d Cir. 1983) (same), and Means v. Wilson,
522 F.2d 833, 839-40 (8th Cir. 1975) (same), with Grimes v.
Smith, 776 F.2d 1359, 1366 (7th Cir. 1985) (§ 1985(3) does not
reach non-racial political conspiracies), and Harrison v. KVAT
Food Mgmt. Inc., 766 F.2d 155, 163 (4th Cir. 1985) (same). See
also Aulson v. Blanchard, 83 F.3d 1, 5 (1st Cir. 1996) (declining
to decide whether purely political non-racial conspiracies fall
within § 1985(3)); Hobson v. Wilson, 737 F.2d 1, 21 (D.C. Cir.
1984) (same); Schultz v. Sundberg, 759 F.2d 714, 718 (9th Cir.
1985) (classes are only protected by § 1985(3) where “there has
been a governmental determination that its members require and
warrant special federal” protection).

                                14
       The Supreme Court, however, was “unpersuaded,” and
explained that

       it is a close question whether § 1985(3) was
       intended to reach any class-based animus other
       than animus against Negroes and those who
       championed their cause, most notably Republicans.
       The central theme of the bill’s proponents was that
       the Klan and others were forcibly resisting efforts
       to emancipate Negroes and give them equal access
       to political power. The predominant purpose of §
       1985(3) was to combat the prevalent animus
       against Negroes and their supporters. The latter
       included Republicans generally, as well as others,
       such as Northerners who came South with
       sympathetic views towards the Negro.

Id. at 836.8

        Despite its skepticism that § 1985(3) was intended to
reach any group other than African-Americans and those who
championed their cause, the Court found it unnecessary to decide
that § 1985(3) does not reach non-racial, politically motivated
animus, and instead held only that it did not reach the type of
economic or commercial animus implicated by the violence
against the non-union workers in that case. Id. at 837-38.




       8
         The Scott Court acknowledged that, during debate over
the Act, one Senator stated that § 1985(3) would reach
conspiracies against a person discriminated against “because he
was a Democrat, if you please, or because he was a Catholic, or
because he was a Methodist, or because he was a Vermonter,”
id. 836-37 (quoting Cong. Globe, 42d Cong., 1st Sess., 567
(1871)), but discounted this statement’s value in interpreting the
section because the bill and its amendments originated in the
House, not the Senate. Id.

                                15
       i. Congress’s Acknowledgement in 1871 That
       Republicans Were Victims of Racially-Motivated Klan
       Violence Does Not Mean That § 1985(3) Was Intended
       to Give Victims of Political Discrimination a Cause of
       Action

        Despite the dicta in Scott, the District Court chose to
follow the decision of a district court holding that § 1985(3)
reaches politically motivated conspiracies, a case that itself
relied upon the Court of Appeals for the Second Circuit’s pre-
Scott decision in Keating v. Carey, 706 F.2d 377 (2d Cir. 1983).
Farber, 327 F. Supp. 2d at 424-25 (citing Perez, 725 F. Supp.
209, 249-53).9 Emphasizing the repeated statements of the 42d
Congress that Ku Klux Klan hostility towards “Republicans”
must end, Keating held that § 1985(3) was intended to provide
all victims of political animus with a cause of action. 706 F.2d
at 387; see also Life Ins. Co. of N. Am. v. Reichardt, 591 F.2d
499, 505 (9th Cir. 1979) (“[Section 1985’s] Congressional
debates evinced concern for all groups subject to the organized
lawlessness of the Ku Klux Klan, including . . . Republicans.”).
Keating reasoned that while today the Klan is seen primarily as a
racist organization, in 1871 it was also “a political organization
intent on establishing Democratic hegemony in the South.” 706
F.2d at 387. Therefore, not only were blacks the victims of Klan
violence, but so

       were carpetbaggers or “men of Union sentiment,”
       in a word, Republicans. Black or white, “the
       victims whose property is destroyed, whose
       persons are mutilated, whose lives are sacrificed,
       are always Republicans.” Cong. Globe, 42nd
       Cong., 1st Sess. 412, col. 3, 413, col. 1 (1871)
       (remarks of Congressman Roberts). “The dead
       and the wounded, the maimed and the scourged,



       9
        Keating was issued just three months prior to Scott.
Despite Scott’s dicta, the Court of Appeals for the Second
Circuit has since reaffirmed its holding in Keating. See, e.g.,
N.Y. State NOW v. Terry, 886 F.2d 1339, 1359 (2d Cir. 1989).

                                16
       are all, all Republicans.” Id. at 426, col. 3
       (remarks of Congressman McKee). “Every victim
       of Ku Klux outrage has been a Republican.” Id. at
       437, col. 2 (remarks of Congressman Cobb). The
       Klan’s object is “the defeat of Republicanism.” Id.
       at app. 196, col. 2 (remarks of Congressman
       Snyder).

Id. From this, the Court concluded that “Congress did not seek
to protect only Republicans, but to prohibit political
discrimination in general,” arguing that to hold otherwise would
be to “turn history on its head and exclude from protection the
group that seems to have been foremost in the mind of
Congress.” Id. at 387-88.

        Based on Scott and our own reading of the text of §
1985(3) and its legislative history, we disagree. It is certainly
true that African-Americans and Republicans were victims of the
Klan violence that prompted the enactment of § 1985(3). As to
both groups, however, the invidiously discriminatory animus
behind the Klan’s actions was motivated by racial hatred, not by
its victims’ political party affiliation. See Scott, 463 U.S. at 836;
Keating, 706 F.2d at 393-94 (Meskill, J., concurring and
dissenting);10 Novotny, 584 F.2d at 1244; but see Keating, 706



       10
         Judge Meskill pointed out that
       [a]s is commonly known, Lincoln Republicans of
       the 1860s and 1870s were the major political force
       behind black emancipation. To the extent that
       support for black rights was evidenced in the
       South, it was from white Republicans who were a
       small minority in that region. Not surprisingly, the
       Ku Klux Klan and other groups determined to
       achieve democratic hegemony in the South
       directed their physical assaults and threats of
       violence against both emancipated blacks and their
       Republican supporters. To counter this threat, the
       Civil Rights Acts were enacted to ensure that those
       denied access to the polls and the courthouse due

                                 17
F.2d at 388 n.17. That many victims of racially motivated Klan
violence happened to be Republicans does not mean that the
discriminatory animus they faced was because they were
Republicans. In Bray, for example, the Supreme Court found
that because the victims of a conspiracy motivated by opposition
to abortion were all women did not mean that the discriminatory
animus they faced was because they were women. 506 U.S. at
269-70. The § 1985(3) plaintiff’s status as a Republican or as a
woman was incidental to the motivating factor behind the
defendants’ discriminatory animus.

        Thus, the repeated statements in the legislative history
that § 1985(3) would serve to protect Republican, often white,
victims of Klan violence, see Novotny, 584 F.2d at 1244, does
not mean that § 1985(3) was intended to reach discriminatory
animus directed at a class based on political affiliation or that,
more specifically, Republicans victimized by animus directed
against Republicans can ride the coattails of Republicans
victimized by animus directed against African-Americans.
Instead, the legislative history underscores the view that a §
1985(3) plaintiff need not be a member of the class against
which a conspiracy directs its invidiously discriminatory animus,
even if in practice this is most often the case. We long ago held
that this is so. See Richardson v. Miller, 446 F.2d 1247, 1249
(3d Cir. 1971) (finding that a non-minority victim of racially




       to mob violence and vigilantism would be
       protected by the federal courts.
              Taken out of historical context, it would
       seem that the only requirement of Republicans for
       protection under section 1985(3) is that they be
       victims of discrimination. This view, however,
       does not comport with the underlying purpose of
       the 1871 Act. The general intent of this legislation
       was very narrow — to protect blacks and black
       supporters in the post-Civil War South.
Keating, 706 F.2d at 393-94 (Meskill, J., concurring and
dissenting).

                                18
discriminatory animus can state a § 1985(3) claim).11 And, as
we explained in Novotny, where we held that a male victim of
sexually discriminatory animus directed at women could state a §
1985(3) claim, the text

       provides a cause of action in any instance where
       “in furtherance of the object of” a proscribed
       conspiracy an act is done “whereby another is
       injured in his person or property.” By its terms,
       the statute gives no hint of any requirement that the
       “other” must have any relationship to the “person
       or class of persons” which the conspiracy seeks to
       deprive of equal protection, privileges or
       immunities.

584 F.2d at 1244.

        In order for victims of discrimination based on political
affiliation to state a § 1985(3) claim, it must be independently
determined that discrimination on that ground is invidious in the
same way that discrimination directed at African-Americans is
invidious. We address that issue next.

       ii. Discrimination Against a Class Based on Political
       Affiliation is Not Invidious for Purposes of § 1985(3)

       The Supreme Court has explained that

       [t]he nature of the “invidiously discriminatory
       animus” Griffin had in mind is suggested both by
       the language used in that phrase (“invidious . . .
       tending to excite odium, ill will, or envy; likely to
       give offense; esp., unjustly and irritatingly
       discriminating,” Webster’s Second International
       Dictionary 1306 (1954)) and by the company in
       which the phrase is found (“there must be some



       11
         Richardson’s holding was cited approvingly in Robison
v. Canterbury Vill., Inc., 848 F.2d 424, 431 n.7 (3d Cir. 1988).

                                 19
       racial, or perhaps otherwise class-based,
       invidiously discriminatory animus,” Griffin, 403
       U.S. at 102 (emphasis added)).

Bray, 506 U.S. at 274. The Court then concluded that “the goal
of preventing abortion, . . . in itself . . . does not remotely qualify
for such harsh description, and for such derogatory association
with racism,” and, thus, the victims of discriminatory animus
resulting from a conspiracy to prevent abortion could not sue
under § 1985(3). Id. at 274. If the goal of preventing abortion
does not qualify, then surely neither does the goal of replacing,
with one’s own, members of an opposing political party in an
exercise of classic political patronage.

         In the past we have emphasized the “irrational and
odious” nature of discrimination motivated by a class’s
immutable characteristics because such characteristics are
“determined by the accident of birth” and “bear[] no relation to
ability to perform or contribute to society.” Novotny, 584 F.2d at
1243 (citing Frontiero v. Richardson, 411 U.S. 677, 686-87
(1973)). Thus, we have found discrimination directed toward
women to be invidious. Id. at 1243-44. Following Novotny, we
have also held that discrimination “based on . . . mental
handicap, like that based on gender, often rests on immutable
characteristics which have no relationship to ability. Where this
is the case, we are convinced that the discrimination is invidious
. . . .” Lake, 112 F.3d at 687. While we do not hold that
discrimination motivated by a mutable characteristic can never
be invidious, political affiliation surely does not qualify.12




       12
           A new administration is justified in replacing
policymaking employees with members of its own party in order to
ensure “that representative government not be undercut by tactics
obstructing the implementation of policies of the new
administration.” See Elrod, 427 U.S. at 367. Thus, unlike race
discrimination, political patronage (at least at times) has a rational
basis.

                                  20
        One final note. Allowing § 1985(3) to reach politically
motivated conspiracies would involve the federal courts in
policing the political arena in ways that the drafters of § 1985(3)
could not have intended. As Judge Pollak long ago explained,
political patronage “plays a major role in all politics,” and while
Elrod and Branti v. Finkel, 445 U.S. 507 (1980), place
constitutional limits on this role, “it can be reasonably assumed
that private political actors will continue to press government
officials to exercise such partisan leeway as the hiring and firing
processes still permit, conformably with the Court’s decisions.”
Nilan v. DeMeo, 575 F. Supp. 1225, 1227 (E.D. Pa. 1983).
Permitting § 1985(3) to reach politically motivated conspiracies
would effectively outlaw all terminations based on political
affiliation. Keating, 706 F.2d at 394 (Meskill, J., concurring and
dissenting). It is unlikely that Congress “contemplated that the
Civil Rights Act would strike the death knell to a way of
political life that flourished then and remains an accepted
incident of elective office.” Id. And, of course, extending §
1985(3) to politically motivated conspiracies would “go far
toward making the federal courts, by virtue of § 1985(3), the
monitors of campaign tactics in both state and federal elections,
a role that the courts should not be quick to assume.” Scott, 463
U.S. at 836.

       For the foregoing reasons, we hold that § 1985(3) does
not provide a cause of action for individuals allegedly injured by
conspiracies motivated by discriminatory animus directed toward
their political affiliation. We will reverse the District Court’s
denial of the Union’s motion to dismiss Farber’s § 1985(3)
claim.

            III. Statute of Limitations for a Duty of Fair
                 Representation Claim at Law

       Farber alleged that the Union breached its duty under the
New Jersey Employer-Employee Relations Act (“EERA”), N.J.
Stat. Ann. § 34:13A-1 et seq., to fairly represent her “by refusing
to pursue [her] grievance and by abandoning all efforts to
support her.” (Comp. ¶¶ 44-45.) The Union moved to dismiss
this duty of fair representation (“DFR”) claim, alleging that it

                                21
was time-barred. The District Court disagreed, and denied the
motion. The District Court was correct to do so.

        Under the EERA, a union has the exclusive right to
represent the interests of public employees. N.J. Stat. Ann. §
34:13A-5.3. Along with this exclusive right, however, a union
has a “corresponding duty” of fair representation, which means
that it must process meritorious employee grievances in
“complete good faith, with honesty of purpose and without
unfair discrimination against a dissident employee or group of
employees.” D’Arrigo v. N.J. State Bd. of Mediation, 574 A.2d
44, 47 (N.J. 1990). Failure to do so exposes a union to an
“unfair practice” claim under N.J. Stat. Ann. § 34:13A-5.4(b)
before the Public Employment Relations Commission (“PERC”),
which has the “exclusive power” to hear such claims under N.J.
Stat. Ann. § 34:13A-5.4(c).13 “Unfair practice” claims brought



      13
         Section 34:13A-5.4(c) reads:
      [t]he commission shall have exclusive power as
      hereinafter provided to prevent anyone from
      engaging in any unfair practice listed in
      subsections a. and b. above. Whenever it is
      charged that anyone has engaged or is engaging in
      any such unfair practice, the commission, or any
      designated agent thereof, shall have authority to
      issue and cause to be served upon such party a
      complaint stating the specific unfair practice
      charged and including a notice of hearing
      containing the date and place of hearing before the
      commission or any designated agent thereof;
      provided that no complaint shall issue based upon
      any unfair practice occurring more than 6 months
      prior to the filing of the charge unless the person
      aggrieved thereby was prevented from filing such
      charge in which the event the 6-month period shall
      be computed from the day he was no longer so
      prevented.

(emphasis added).

                              22
before the PERC are subject to a six-month statute of limitations.
Id.

        The District Court concluded, and we agree, that PERC’s
“exclusive power” to hear unfair practice claims would not
preempt a DFR claim at law. Analogizing to Vaca v. Sipes, 386
U.S. 171, 187-88 (1967), the Court held that if confronted with
the issue, the Supreme Court of New Jersey “would recognize a
cause of action at law under the EERA for a union’s breach of its
DFR.” See Farber, 327 F. Supp. 2d at 420. In Vaca, the
Supreme Court held that an employee could sue her union for
breach of the duty of fair representation implied in § 9(a) of the
National Labor Relations Act, even though “unfair labor
practice” claims, such as breach of the duty of fair
representation, usually can be heard only by the National Labor
Relations Board. 386 U.S. at 176-88.

        The District Court also concluded that New Jersey’s six-
year statute of limitations for “any tortious injury to the rights of
another,” N.J. Stat. Ann. § 2A:14-1, would apply to an EERA-
DFR claim at law. Farber, 327 F. Supp. 2d at 421-22. Again,
we agree. In Gomez v. Government of the Virgin Islands, we
held that the Virgin Islands’ general two-year statute of
limitations, V.I. Code Ann. tit. 5, § 31(5)(A), applied to a DFR
claim brought in court under the Virgin Islands Public Employee
Labor Relations Act (“PERLA”). 882 F.2d 733, 737-38 (3d Cir.
1989). PERLA is the Virgin Islands’ counterpart to New
Jersey’s EERA, and just as New Jersey courts use NLRA case
law to interpret the EERA, see Lullo v. Int’l Ass’n of Fire
Fighters, 262 A.2d 681, 689 (1970), we use NLRA case law to
interpret PERLA. Gomez, 882 F.2d 737 n.8. Unlike the EERA,
however, PERLA expressly provides a cause of action in the
Virgin Islands courts and in federal court for breach of a duty of
fair representation, see V.I. Code Ann. tit. 24, § 383, in addition
to providing for the filing of a complaint for unfair labor
practices before the Public Employee Relations Board
(“PERB”), see V.I. Code Ann. tit. 24, § 379, the Virgin Islands’
equivalent of New Jersey’s PERC. Section 383 does not contain
a statute of limitations for DFR claims brought in court, and, in
Gomez, we rejected the argument that we should, therefore,

                                 23
borrow § 379’s six-month statute of limitations for claims before
PERB. 882 F.2d at 738. We reasoned that we were not
permitted to borrow § 379’s statute of limitations because V.I.
Code Ann. tit. 5, § 31(5)(A) already provides a general catch-all
two-year statute of limitations for tort actions, and a DFR claim
is a form of tort action. Gomez, 882 F.2d at 738.

        The Union argues that Gomez is distinguishable because,
unlike the EERA, PERLA explicitly provides for DFR claims to
be brought in court. This may be true, but the difference is
immaterial. Each Act has a section that permits unfair labor
practice claims to be brought before an administrative body
subject to a six-month statute of limitations. See N.J. Code.
Ann. § 34:13A-5.4 (PERC); V.I. Code Ann. tit. 24, § 379
(PERB). Each Act also permits (either expressly or impliedly)
DFR claims to be brought before a court from a source other
than the section that provides for unfair labor practice claims
before the administrative body. See N.J. Code. Ann. § 34:13A-
5.3 (implied by District Court here); V.I. Code Ann. tit 24, § 383
(express). Thus, under both Acts, the six-month statute of
limitations must be “borrowed” from some external source in
order to apply to a DFR claim brought in court. In Gomez, we
explained that we cannot circumvent a state legislature’s
decision to provide a general catch-all statute of limitations for
tort claims, and thus may not borrow the six-month limitations
period. Our reasoning in Gomez is applicable here.

        The Union also argues that because of the policy
considerations underlying the EERA, a six-year statute of
limitations should not apply to DFR claims because “it
undermines the [PERC’s] authority,” and “undermines the
balance crafted by the New Jersey Legislature which allows for
such claims so long as they are promptly presented to the agency
which has special expertise and responsibility for public sector
labor law.” (Appellee’s Br. 18 (citing Kaczmarek v. N.J.
Turnpike Authority, 390 A.2d 597, 601-05 (N.J. 1989)). As a
matter of policy, the Union is most likely correct. In Kaczmarek,
the Supreme Court of New Jersey explained that the six-month
statute of limitations for “unfair practices” promotes the “prompt
filing and expeditious processing of charges,” which is

                                24
“especially important in the volatile field of employer-employee
relations. In addition to preserving the immediacy of the record,
administrative celerity stabilizes existing bargaining
relationships, and inhibits the festering or aggravation of labor
disputes.” 390 A.2d at 602.

       In Gomez, however, we acknowledged these same policy
considerations, and explained that they were of legislative, not
judicial, concern:

               Our decision today is based on the language
       of Virgin Islands statutory law. Any lack of
       uniformity in the filing of PERLA actions as a
       result of our decision today must be resolved by
       the Virgin Islands legislature. The policy
       considerations which the Supreme Court in
       DelCostello noted favor a short statute are even
       more appropriate subjects for legislative concern.

Gomez, 882 F.2d at 739 n.9.

        In sum, we will follow Gomez and will affirm the
conclusion of the District Court that New Jersey’s six-year
statute of limitations “for any tortious injury to the rights of
another,” N.J. Stat. Ann. § 2A:14-1, applies to a DFR claim
brought in court. We leave it to the New Jersey legislature to
shorten the limitations period for such a claim if it deems it
appropriate to do so.

                         IV. Conclusion

       We conclude, in answer to the first certified question, that
those who share a political affiliation are not a cognizable class
for purposes of § 1985(3), and, in answer to the second certified
question, that New Jersey’s six-year statute of limitations applies
to an EERA-DFR claim brought in court. Accordingly, we will
reverse the District Court’s order denying the Union’s motion to
dismiss Farber’s § 1985(3) claim, and will affirm its order
denying the Union’s motion to dismiss her DFR claim.



                                25
