United States Court of Appeals For the First Circuit

No. 19-1636

PATRICK DOUGHTY; RANDY SEVERANCE,

Plaintiffs, Appellants,

v.

STATE EMPLOYEES' ASSOCIATION OF NEW HAMPSHIRE, SEIU LOCAL 1984, CTW, CLC,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Howard, Chief Judge, Thompson and Barron, Circuit Judges.

Frank D. Garrison, with whom Milton L. Chappell, National Right to Work Legal Defense Foundation, Inc., Bryan K. Gould, Cooley Ann Arroyo, and Cleveland, Waters & Bass, P.A., were on brief, for appellants. Leon Dayan, with whom Ramya Ravindran was on brief, for appellee.

November 30, 2020 BARRON, Circuit Judge. This appeal concerns a suit by

two New Hampshire state employees, Patrick Doughty and Randy

Severance, against the State Employees' Association of New

Hampshire ("the Union") pursuant to

. They seek

retrospective relief for themselves and other state employees who

were not members of the Union but were forced to pay so-called

"agency fees" to it prior to the United States Supreme Court's

decision in Janus v. American Federation of State, County &

Municipal Employees, Council 31,

(2018). There,

the Court overruled its decades-old decision in Abood v. Detroit

Board of Education,

(1977), and held that such "agency

fee" arrangements violate the First Amendment of the United States

Constitution by compelling the speech and association of non-union

governmental employees. The District Court granted the Union's

motion to dismiss Doughty and Severance's complaint, and we affirm,

aligning ourselves with every circuit to have addressed whether

such a backward-looking, Janus-based claim is cognizable under

§ 1983.1

1 See generally Wholean v. CSEA SEIU Loc. 2001,

(2d Cir. 2020); Diamond v. Pa. State Educ. Ass'n,

(3d Cir. 2020); Ogle v. Ohio Civ. Serv. Emps. Ass'n,

(6th Cir. 2020); Lee v. Ohio Educ. Ass'n,

(6th Cir. 2020); Janus v. Am. Fed'n of State, Cnty. & Mun. Emps., Council 31,

(7th Cir. 2019); Danielson v. Inslee,

(9th Cir. 2019).

- 2 - I.

A.

New Hampshire state law imposes on unions that serve as

the exclusive representative of a bargaining unit for state or

local government employees a duty of fair representation to the

unit's non-union employees during the collective bargaining

process. See Nashua Tchrs. Union v. Nashua Sch. Dist.,

(N.H. 1998) (citing

-A:3).

Prior to Janus's overruling of Abood, the New Hampshire Supreme

Court held that the State's "overall legislative scheme to promote

labor peace" impliedly permitted the negotiation of collective

bargaining agreements between unions and governmental employers

that called for the payment of agency fees. See

. In

addition, the New Hampshire Supreme Court held that, under Abood,

the First Amendment was not violated if a state or local

governmental employer made the payment of these fees in connection

with such agreements a condition of employment for their employees.

The New Hampshire Supreme Court explained that

collective bargaining agreements are contracts forged between the

employer and the union that serves as the exclusive bargaining

representative for the relevant bargaining unit.

. It

further explained that agency fees compensate for the fact that,

although such a union secures benefits through the collective

- 3 - bargaining process for the bargaining unit's union and non-union

employees alike, only the union employees pay dues to the union.

Thus, until Janus, New Hampshire permitted "agency fees" to

"defray the costs associated with [the union's] exclusive

representation and collective bargaining," and such fees were

regularly a subject of collective bargaining agreements between

unions and public employers in the state.

.

B.

On January 14, 2019, following Janus, Doughty and

Severance filed suit in the United States District Court for the

District of New Hampshire against the Union under § 1983. Their

complaint alleged that the Union was the exclusive representative

for their respective bargaining units and that they were not

themselves members of the Union. The complaint further alleged

that, at the time relevant to this suit, they were "forced" to pay

agency fees to the Union "as a condition of employment" in

connection with the Union's collective bargaining agreements with

their respective state employers. Finally, their complaint

claimed that "the State" deducted the agency fees from their

paychecks and remitted them to the Union, although the record

offers no further details about the mechanics of the payment

process.

By the time that Doughty and Severance filed their suit,

the Union had ceased collecting agency fees, as deductions from

- 4 - the employees' paychecks to pay those fees ended in Janus's wake.

Their complaint nevertheless requested, based on Janus's

retroactive application, that the District Court certify a class

of "all individuals employed by the State, and other public

employers, who, as a condition of employment, were forced to pay

union fees to [the Union], which distributed some of the fees to

its affiliates, any time during the limitations period." Doughty

and Severance further claimed that the members of this class were

entitled, pursuant to § 1983, to "compensatory damages, refunds,

or restitution in the amount of compulsory union fees paid to the

Union from their wages without their written consent, and other

amounts as principles of justice and equity require."

C.

On March 18, 2019, the Union moved to dismiss the

plaintiffs' complaint for failure to state a claim on which relief

could be granted under Federal Rule of Civil Procedure 12(b)(6).

The District Court held a hearing on that motion on May 30, 2019

and granted it that same day.

The District Court proceeded on the understanding --

which the Union did not contest -- that, due to Janus's retroactive

application, the state employers' requirement that the agency fees

be paid as a condition of Doughty's and Severance's employment

violated the First Amendment. The District Court also assumed --

and, again, without dispute -- that the Union, although a private

- 5 - entity, was a proper defendant under § 1983 for this Janus-based

suit, despite the fact that the requirement to pay the agency fees

had been imposed on them by their employer as a condition of their

employment and not by the Union itself.2 Finally, the District

Court implicitly recognized that the doctrine of qualified

immunity, which protects governmental officials from damages

liability when sued in their individual capacities under § 1983 in

the absence of their having violated "clearly established" law,

see District of Columbia v. Wesby,

(2018),

does not protect private defendants, see Wyatt v. Cole,

(1992), and so provided no such immunity to the Union

here.

Nevertheless, the District Court expressed skepticism

that § 1983 permitted Doughty and Severance's claim against the

2 In Lugar v. Edmondson Oil Co.,

(1982), the Court held that a private party who attached the assets of a debtor under a state attachment statute could be a proper defendant under § 1983 for a claim brought by a property owner based on a violation of the property owner's right to procedural due process on the ground that the defendant was acting under color of law in bringing about the attachment pursuant to that statute's summary attachment process. Id. at 924, 933-34; see also Wyatt v. Cole,

(1992) (same). Here, of course, the Union merely received the agency fees pursuant to a freely negotiated contractual provision with the plaintiffs' employer and those fees were made available to it, in turn, based on the plaintiffs' contract with their employer. Nevertheless, as we have noted, there is no dispute on appeal as to whether, on these facts, the Union is a proper § 1983 defendant for the claimed First Amendment violation. Thus, like the District Court, we assume that the Union is, despite the possible reasons to question that assumption.

- 6 - Union to go forward, given their claim's exclusive focus on agency-

fee payments made prior to Janus. In that connection, the District

Court asked the plaintiffs' counsel at the hearing on the motion

to dismiss to "step back for a second" and explain "how in any

version of the world" it would be "right to require [the Union] to

pay damages for acting consistent with the requirements of state

law and . . . [S]upreme [C]ourt precedent." The District Court

emphasized that the Union's "behavior was entirely constitutional

at the time they engaged in it," and that it is an unusual situation

where the Supreme Court "decides to flatly overturn its prior

precedent." Because, as a general matter, "[o]ne of the reasons

that judges express their views in written opinions is so that

people can rely on" them, the District Court explained, it would

be "arrogant in the extreme" to allow individuals who had so relied

to be "subjected to suits for damages" in the rare cases where

"judges flip 180 degrees on the law." The District Court added

that it was "incomprehensible" that "damage[s] actions [could] be

maintained under" the "unique circumstances" of this case.

The District Court then granted the Union's motion to

dismiss Doughty and Severance's complaint based on two independent

grounds. First, the District Court ruled that "a good faith

defense must be available to protect defendants under these kinds

of circumstances" (emphasis added), and that Doughty and Severance

could not overcome that defense. Second, the District Court held

- 7 - that Doughty and Severance's § 1983 claim was analogous to the

common-law tort of abuse of process, for which a "good faith

defense has traditionally been recognized."3 For this reason, too,

the District Court held, Doughty and Severance would have to

overcome a "good faith defense" to succeed in obtaining their

requested relief, which they could not do, given that the Union

collected the fees at issue before Janus overruled Abood.

The District Court emphasized that it did not find the

plaintiffs' claim for retrospective relief -- whether for damages

or restitution -- to be "frivolous," but it closed by stating that

it did not "see how it [could] possibly proceed." Instead, the

District Court suggested that the plaintiffs appeal the case

because it "would need guidance from the First Circuit

explaining . . . why the claim is potentially viable" to recognize

it.

D.

Following the District Court's ruling, Doughty and

Severance timely filed this appeal on June 21, 2019, in which they

challenge the District Court's grant of the Union's 12(b)(6)

3Although the District Court referred to the plaintiffs' § 1983 claim as being subject to a "good faith defense," it is clear that it was merely holding that an element of their § 1983 claim was proof of "malice," such that their claim must be dismissed if they failed to show that the Union had not acted in "good faith" in collecting the agency fees at issue. See Wyatt,

(Kennedy, J., concurring).

- 8 - motion. We have jurisdiction under

. We review

the District Court's dismissal of a case under Federal Rule of

Civil Procedure 12(b)(6) de novo. See Reisman v. Associated

Faculties of Univ. of Me.,

, 411 (1st Cir. 2019).

II.

As to the claim for damages, Doughty and Severance ask

us to focus on § 1983's text, which expressly provides that

"[e]very person" responsible for depriving another of their

constitutional rights "shall be liable to the party injured in an

action at law,"

. They then proceed to argue that,

because Janus applies retroactively and the Union is a proper

defendant for the First Amendment violation resulting from its

collection of agency fees, there is no basis for denying them a

damages remedy against the Union for the federal constitutional

violation that they suffered. For, Doughty and Severance point

out, on its face, § 1983 "is absolute and unqualified; no mention

is made of any privileges, immunities, or defenses that may be

asserted," Owen v. City of Independence,

(1980).

The District Court rightly emphasized, however, that the

plaintiffs are seeking damages for a private party's role in

imposing a payment requirement on them during a period of time in

which the nation's highest court had expressly held that the

requirement did not give rise to the First Amendment violation on

which their damages claim under § 1983 now depends. We thus must

- 9 - attend to the District Court's concern that the recognition of

such a damages claim under § 1983 would unduly upset the

justifiable reliance interests of the private defendant.

In attending to that concern, we do not embark on a free-

wheeling assessment of whether to import into § 1983 a policy based

on protection of reliance interests. See Malley v. Briggs,

(1986). Rather, we follow the Supreme Court in

recognizing that the text of § 1983 should be read with some

consideration of the background against which the statute was

enacted and thus with an understanding that the common law's rules

"defining the elements of damages and the prerequisites for their

recovery[] provide the appropriate starting point for the inquiry

under § 1983." Carey v. Piphus,

(1978); see

also Monroe v. Pape,

(1961) (noting that § 1983

"should be read against the background of tort liability that makes

a man responsible for the natural consequences of his actions");

cf. Heck v. Humphrey,

(1994) (explaining that

"to determine whether there is any bar to the present [§ 1983]

suit, we look first to the common law of torts"). Moreover, in

undertaking that review of the common law to assess the scope of

relief available for a claim for a constitutional violation under

§ 1983, we must keep in mind the Court's observation that if "the

interests protected by a particular branch of the common law of

torts . . . parallel closely the interests protected by a

- 10 - particular constitutional right," then it may be "appropriate to

apply the tort rules of damages directly," Carey,

,

even if that rule is not favorable to the plaintiff, see, e.g.,

(relying on principles of common-law damages

to conclude substantial nonpunitive damages were unavailable in

the absence of proof of real injury).

A number of our sister circuits have followed this

approach to assessing the viability of similar retroactive Janus-

based damages claims under § 1983, and they have found that such

claims closely parallel common-law torts that provide relief for

a defendant's misuse of official governmental processes. See

Diamond v. Pa. State Educ. Ass'n,

, 280 (3d Cir. 2020)

(Fisher, J., concurring in the judgment) (collecting cases). They

have also recognized that those common-law torts -- abuse of

process and malicious prosecution -- require a plaintiff to show

malicious or improper use of the process by the defendant. See,

e.g., Janus v. Am. Fed. of State, Cnty. & Mun. Emps.,

(7th Cir. 2019); see also 54 C.J.S. Malicious Prosecution

§ 2 (2020) ("The wrongful use of a civil proceeding is a tort which

arises when a party institutes a lawsuit with a malicious motive

and lacking probable cause."); Pinsky v. Duncan,

(2d Cir. 1996) ("[A]buse of process tort has but two elements:

'first, an ulterior purpose, and second, a willful act in the use

of the process not proper in the regular conduct of the

- 11 - proceeding.'" (quoting W. Page Keeton et al., Prosser and Keeton

on the Law of Torts § 121, at 898 (5th ed. 1984))). Accordingly,

they have rejected retroactive Janus-based claims for damages

under § 1983, precisely because Janus had not overruled Abood at

the time that the agency fees at issue in them were collected and

thus the malicious- or improper-use-of-process element, which the

analogy to those common-law torts suggests that Congress intended

to be imported into those plaintiffs' § 1983 claims, could not be

satisfied. See Diamond, 972 F.3d at 280 (Fisher, J., concurring

in the judgment) (collecting cases); see also Wyatt,

(Kennedy, J., concurring) ("[T]here is support in the common

law for the proposition that a private individual's reliance on a

statute, prior to a judicial determination of unconstitutionality,

is considered reasonable as a matter of law . . . ."); San Antonio

Indep. Sch. Dist. v. Rodriguez,

(1973) (Stewart,

J., concurring) (noting that "one of the first principles of

constitutional adjudication" is "the basic presumption of the

constitutional validity of a duly enacted state or federal law"

(citing James B. Thayer, The Origin and Scope of the American

Doctrine of Constitutional Law,

(1893))).

The Union urges us to follow that same logic here, and

thus to find that the District Court correctly held that Doughty

and Severance's damages claim fails. In support of our doing so,

moreover, the Union points to a substantial body of § 1983

- 12 - precedent that they contend is directly analogous here. In it,

circuits have consistently treated the common-law torts concerning

misuse of state processes -- whether the tort of abuse of process

or malicious prosecution -- as closely analogous to § 1983 claims

for violations of procedural due process that have been brought

against private defendants who have availed themselves of state

summary process statutes for effecting the seizure of property,

whether through attachment or replevin or the like. See, e.g.,

Pinsky,

; Jordan v. Fox, Rothschild, O'Brien &

Frankel,

, 1276 & n.31 (3d Cir. 1994); Wyatt v. Cole,

(5th Cir. 1993); see also Duncan v. Peck,

(6th Cir. 1988). To be sure, the constitutional

violation that grounds those § 1983 claims is a product of the

flawed design of the state-backed summary process that the private

defendant relied upon to acquire the plaintiff's property, Wyatt,

, and not of the defendant's use of that process

for other than its intended purpose. And, in that respect, there

is not a perfect match between the interests protected by those

common-law torts and the interests protected by the constitutional

right to procedural due process that underlies the § 1983 claim in

those cases. Nonetheless, that line of authority still holds that

such § 1983 claims are properly analogized to these common-law

torts, and thus courts consistently have held those claims to be

unavailing when they seek damages for a defendant's use of a

- 13 - summary process statute that was entirely lawful when invoked but

that was then retroactively held to violate procedural due process

only due to a subsequent change in the law. See, e.g., Wyatt,

.

Notably, Doughty and Severance do not argue that we must

reject this line of § 1983 authority concerning challenges to

summary process statutes to rule for them in this case. They

contend only that this substantial body of § 1983 precedent is

distinguishable due to the type of claim that they are bringing

under § 1983, such that this line of precedent that is seemingly

problematic for them in fact provides no support for the Union's

position. That is so, Doughty and Severance contend, both because

their § 1983 claim seeks to vindicate a violation of the First

Amendment, not the right to procedural due process, and because

the Union did not invoke any court-like process in collecting the

agency fees, as the plaintiffs in the summary-process-focused

§ 1983 cases did in acquiring the property at issue in them.

Additionally, Doughty and Severance assert that, given the nature

of their § 1983 claim, the common-law backdrop of § 1983 in fact

cuts in their favor, because if any common-law tort is analogous

to the one that they are bringing under that statute, it is the

common-law tort of conversion, which permits a plaintiff to recover

damages without showing the defendant's malicious or improper use

- 14 - of any legal process. But, we are not persuaded by these

arguments.

We do not dispute that Doughty and Severance are right

that their claim under § 1983 protects against the harm caused by

governmentally forced speech and association. In that respect, it

does protect interests quite different from those protected by the

common-law torts of malicious prosecution and abuse of process.

But, as we have just explained, the constitutional right to

procedural due process that underlies the § 1983 claims targeting

summary process statutes discussed above protects against a

failure of the state to provide enough process, not against the

misuse of a process that the state has otherwise properly provided.

Yet, it is that latter type of misuse that constitutes the harm

against which the common-law torts of abuse of process and

malicious prosecution provide protection. So, there is little

force to this asserted point of distinction between Doughty and

Severance's § 1983 claim and the body of § 1983 case law concerning

summary process statutes. Rather, their § 1983 claim, like the

plaintiffs' § 1983 claims in those cases, is similar to claims for

those common-law torts in that it seeks to compensate them for a

private party having used a lawful-when-invoked, state-backed

process to acquire their property, even though that process was

subsequently held to be unlawful due to a change in the law. See

Ogle v. Ohio Civ. Serv. Emps. Ass'n,

(6th Cir.

- 15 - 2020) ("Think about the problem this way. Public-sector unions

may enlist the State's help (and its ability to coerce unwilling

employees) to carry out everyday functions. But a union that

misuses this help, say because the state-assisted action would

violate the U.S. Constitution, may face liability under § 1983.").

Finally, while Doughty and Severance are right that

their Janus-based § 1983 claim seeks recompense for the invocation

of a state-backed process for collecting payments that is distinct

from the use of a court process to effect a seizure, we do not see

why that distinction is a salient one. Some divergence is to be

expected even between a § 1983 claim and a common-law tort that it

closely parallels. See Rehberg v. Paulk,

(2012)

(explaining that § 1983 is not "simply a federalized amalgamation

of pre-existing common-law claims, an all-in-one federal claim

encompassing the torts of assault, trespass, false arrest,

defamation, malicious prosecution, and more"). Doughty and

Severance, however, do not explain -- nor does any explanation

occur to us -- why the distinction between the use of an

adjudicative process and an administrative one supports the

conclusion that the Union should receive less protection for its

good-faith reliance on the lawful-when-invoked, state-backed

process than the defendants in the summary-process § 1983 cases

received for theirs.

- 16 - We suppose the distinctions that Doughty and Severance

point to between their § 1983 claim and the common-law torts of

abuse of process and malicious prosecution might have force if

there were any indication that the common law was as indifferent

to reliance interests in a circumstance like the one at issue here

as they impliedly suggest is the case. For, in that event, there

would be no reason to be concerned that, in permitting their

damages claim to lie, we would be anachronistically reading § 1983

without regard for the common-law understandings that the Supreme

Court has made clear informed Congress in enacting that measure.

But, Doughty and Severance's attempt to make that case with

reference to the common-law tort of conversion -- which does not

require a showing of malice and which they contend supplies a more

apt analogy to their Janus-based claim -- is not convincing.

As an initial matter, Doughty and Severance provide no

support for their implicit premise that a claim for conversion

could have been brought at common law for the recovery of a

plaintiff's payment of a required fee when the funds used to pay

it were comingled with the defendant's other funds following its

collection. See 7 Am. Law of Torts § 24:7 (explaining that "before

there can be a conversion" of money, there is a "requirement that

there be 'ear-marked money or specific money capable of

identification'");

(1955) ("Money can be the

subject of conversion and a conversion action only when it can be

- 17 - described, identified, or segregated in the manner that a specific

chattel can be . . . ."). Nor do they identify a single case in

which a claim for conversion was successfully brought at common

law for damages arising from the defendant's collection of money

payments revealed to have been made pursuant to an illegal

requirement only in retrospect, and then only due to the subsequent

overruling of a prior Supreme Court precedent under which the

requirement was lawful at the time that it was imposed. Their

failure on that score is especially conspicuous given how common-

law claims for recovering licensing fees and taxes based on the

retroactive application of such a sharp change in the law fared.

Cf. Diamond, 972 F.3d at 281 (Fisher, J., concurring in the

judgment) (describing the "contemporaneous" rule that "a judicial

decision either voiding a statute or overruling a prior decision

does not generate retroactive civil liability with regard to

financial transactions or agreements conducted, without duress or

fraud, in reliance on the invalidated statute or overruled

decision"); Note, The Effect of Overruled and Overruling Decisions

on Intervening Transactions,

, 1404 (1934).

From this review, then, we see no support for concluding

that the common law was as indifferent as Doughty and Severance

impliedly suggest that it was to the threat to reliance interests

posed by affording a damages remedy for a private defendant's

acquisition of payments via the invocation of then-lawful state

- 18 - processes that -- due only to a subsequent change in the law --

retroactively are revealed to have been unlawful. And, because

the Court has reminded us in connection with § 1983 that "[r]ights,

constitutional and otherwise, do not exist in a vacuum," Carey,

, we are wary of attributing to the Congress that

enacted § 1983 an intent to permit a damages claim to go forward

in these most unusual circumstances, just because § 1983 provides

that a remedy "at law" "shall be" available for a constitutional

violation.

That said, we do recognize that "[t]he purpose of § 1983

would be defeated if injuries caused by the deprivation of

constitutional rights went uncompensated simply because the common

law does not recognize an analogous cause of action." See Carey,

. For that reason, we are mindful that "[i]n

applying, selecting among, or adjusting common-law approaches" to

the new setting of § 1983, we "must closely attend to the values

and purposes of the constitutional right at issue." Manuel v.

City of Joliet,

(2017).

But, although Doughty and Severance assert that their

claim for damages seeks to vindicate their First Amendment right

against compelled speech and association and that this right

provides protection from harm that the common law itself did not,

they ignore the unusual nature of their attempt to secure relief

for the violation of that constitutional right. They thus develop

- 19 - no argument -- nor does any occur to us -- why close attention to

the values and purposes of the First Amendment right against

compelled speech and association supports the conclusion that the

Congress that enacted § 1983 must have meant to create a claim for

damages for its retroactive violation when the violation results

in payments made pursuant to a lawful-when-invoked, state-backed

process.

Nor are we persuaded by Doughty and Severance's

contention that we must rule in their favor based on Harper v.

Virginia Department of Taxation,

(1993), in which the

Court held that when it applies a rule of federal law to the

parties before it that rule "must be given full retroactive effect

in all cases still . . . on direct review."

. Insofar

as the agency fees at issue here may be analogized to the taxes

collected in Harper -- itself a debatable proposition -- Doughty

and Severance make no argument that they were precluded from

bringing a pre-collection claim challenging the lawfulness of the

required payment of agency fees on the ground that Abood should be

overruled. As a result, they do not explain how the Supreme

Court's retroactivity jurisprudence provides any support for the

conclusion that § 1983 provides a remedy for the First Amendment

violation that grounds their claim under that statute. See

McKesson Corp. v. Div. of Alcoholic Beverages & Tobacco,

, 38 n.21 (1990) (explaining that the "availability of a

- 20 - predeprivation hearing" can also "constitute[] a procedural

safeguard . . . sufficient by itself to satisfy the Due Process

Clause, and taxpayers cannot complain if they fail to avail

themselves of this procedure"); see also Nat'l Private Truck

Council, Inc. v. Okla. Tax. Comm'n,

, 587 (1995) ("As

long as state law provides a 'clear and certain remedy,' the States

may determine whether to provide predeprivation process (e.g., an

injunction) or instead to afford postdeprivation relief (e.g., a

refund)." (internal citations omitted) (quoting McKesson Corp.,

)).

III.

Doughty and Severance do separately make a demand for

restitution, which is an equitable rather than a legal remedy.

And it is true that § 1983 empowers courts to hold a party that

violated another's federal rights "liable" in a "suit in equity."

. But, as Doughty and Severance do not plead that

the specific agency fees they paid can "clearly be traced to

particular funds or property in the [Union's] possession," see

Great-West Life & Annuity Ins. Co. v. Knudson,

(2002), their claim is necessarily "one against the union's

treasury generally, not one against an identifiable fund or asset,"

which makes it inherently legal in nature, Mooney v. Ill. Educ.

Ass'n,

(7th Cir. 2019). Accordingly, their

restitution claim fails, too.

- 21 - IV.

The judgment of the District Court is affirmed.

- 22 -