Versie Kimble v. D. J. McDuffy Inc. And Industrial Foundation of the South, and All of Its Subscribers

648 F.2d 340, 1981 U.S. App. LEXIS 12182

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 18, 1981
• Docket: 78-1474
• Status: Published

Opinions

AINSWORTH, Circuit Judge:

The appellant, Versie Kimble, sued D.J. McDuffy, Inc., his former employer, along with several other employers in the oil drilling industry and an association of such employers, in a class action alleging that they conspired to deny him and others employment because they had filed personal injury suits or workmen’s compensation claims against employers in the industry. Kimble maintained that 42 U.S.C. § 1985(2),¹ a Reconstruction era statute intended to curtail the activities of the Ku Klux Klan, created a federal cause of action for anyone injured by another as a result of having filed lawsuits or claims for statutory benefits. The district court, with Circuit Judge Alvin B. Rubin sitting by designation, granted the defendants’ motion for summary judgment, holding that the facts alleged, if proved, would not support an action under the statute. 445 F.Supp. 269 (E.D.La.1978). On appeal, a panel of this court, with one judge dissenting, reversed. 628 F.2d 1060 (1980). The court then voted to rehear the case en banc, 629 F.2d 1159 (1980), thus vacating the panel opinion. See Fifth Circuit Local Rule 17. We now hold that Kimble’s allegations do not come within the scope of Section 1985(2), and therefore affirm the district court.

I. THE FACTS

D.J. McDuffy, Inc., and the other employer-appellees, are members of appellee Industrial Foundation of the South (IFS), a nonprofit corporation organized to assist members in hiring personnel. According to its brochure, IFS maintains records of workmen’s compensation claims and personal injury lawsuits filed in state courts in Texas, Louisiana, New Mexico and Oklahoma and in federal courts throughout the Gulf Coast region. The records include the worker’s name and social security number, the name of the employer involved and its insurance carrier, a description of the injury or disability claimed, the names of any attorneys involved, and information about the disposition or settlement of the claim. The purpose of the organization is to reduce the employers’ insurance and workmen’s compensation costs by giving the employers information about “insurance and compensation risks.”

Kimble was employed by McDuffy as a driller from December 17, 1972 until April 7,1973.² The company claims that it terminated Kimble because he was about to begin a campaign for a local political office.³ Kimble claims that he was dismissed because McDuffy, which had just joined IFS on March 26, 1973, had learned through the foundation that Kimble had filed a lawsuit against a prior employer and had obtained a sizable judgment.⁴ For the purposes of the defendants’ motion for summary judgment, we must assume that Kimble’s factual allegations are correct. Adickes v. S.H. Kress & Co., 398 U.S. 144, 159, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970); Tyler v. Vickery, 517 F.2d 1089, 1094 (5th Cir. 1975).

In its opinion granting the defendants’ motion for summary judgment, the district court divided 42 U.S.C. § 1985(2) into four clauses:

A. If two or more persons conspire 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 ... or

B. to injure such party or witness in his person or property on account of his having so attended or testified, or

C. if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or

D. to injure him or his property for lawfully enforcing . . . the right of any person, or class of persons, to the equal protection of the laws.

445 F.Supp. at 274. The district court held that in order to maintain a cause of action under clauses C and D, a plaintiff must demonstrate that the defendants acted with racial or class-based animus, and that no allegation of such animus was made in this case. 445 F.Supp. at 274-75. The court then held that clause A required a conspiracy to deter a party or witness from attending or testifying in federal court. 445 F.Supp. at 275. Again, no allegation of any attempt to deter or intimidate was made by plaintiffs. Finally, the district court held that the filing of lawsuits or workmen’s compensation claims did not constitute attending or testifying in federal court as required by clause B. 445 F.Supp. at 276.

The panel majority, in reversing the district court, agreed that Kimble had stated no valid cause of action under clauses A, C and D of Section 1985(2), but rejected the district court’s “narrow reading” of clause B. The panel held that “Congress undoubtedly intended to protect the whole course of justice, not just one segment of the system, the trial process. Thus, for the purposes of Section 1985(2) an individual is deemed to have ‘attended’ a court of the United States from the moment that the person files a complaint.” 623 F.2d at 1068. The district court and a panel of this court thus agreed that Kimble stated no cause of action under clauses A, C and D of Section 1985(2). We fully concur with and adopt their holding as to those clauses, and therefore turn our attention solely to clause B.

II. THE DERIVATION OF 42 U.S.C. § 1985(2)

The present wording of Section 1985(2) dates back to the 1874 consolidation of the then widely scattered federal laws into the Revised Statutes of the United States. Section 1980 of the Revised Statutes consolidated two acts, the Conspiracy Act of 1861, 12 Stat. 284, and the Ku Klux Klan Act of 1871, 17 Stat. 13. This section, R. S. § 1980, survives intact to this day as 42 U.S.C. § 1985. R.S. § 1980(2) is now, without change, 42 U.S.C. § 1985(2). In discussing the legislative history of Section 1985(2), the district court apparently believed that the section is derived from the Conspiracy Act, rather than the Ku Klux Klan Act which spawned Section 1985(3). 445 F.Supp. at 271. The court discussed whether decisions interpreting the intent of Congress in passing the Ku Klux Klan Act apply to Section 1985(2). This notion of the derivation of Section 1985(2) is mistaken, however. An examination of the original acts reveals that much of the language of Section 1985(2) comes from the Ku Klux Klan Act and not the Conspiracy Act. In particular, the portion of Section 1985(2) which the district court designated clause B, relating to injuring any party or witness on account of his having attended or testified in federal court, is derived from the Ku Klux Klan Act and not the Conspiracy Act.⁵ We therefore look directly to the decisions examining the intent of Congress in passing the Ku Klux Klan Act in our effort to interpret clause B, and need not be concerned with whether the same intent supported the Conspiracy Act.⁶

III. THE REQUIREMENT OP RACIAL OR CLASS-BASED ANIMUS

Section 1985(2) has not generated much litigation. See Brawer v. Horowitz, 535 F.2d 830, 837 (3d Cir. 1976) (construing the “perfidious syntax of § 1985(2) with reserve” given the “dearth of authority to light our way”). The majority of decisions arising under Section 1985 have involved Section 1985(3). In this regard, the Supreme Court’s landmark opinion in Griffin v. Breekenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971) is instructive. In Griffin, the Court for the first time held that Section 1985(3) reached conspiracies by private parties to deny others the equal protection of the laws. Yet, the Court carefully delineated the cause of action cognizable under Section 1985(3). “The constitutional shoals that would lie in the path of interpreting Section 1985(3) as a general federal tort law can be avoided by giving full effect to the congressional purpose — by requiring, as an element of the cause of action, the kind of invidiously discriminatory motivation stressed by the sponsors of the limiting amendment.... [Tjhere must be some racial, or perhaps, otherwise class-based animus behind the conspiratorial actions.” Griffin, supra, 403 U.S. at 101-102, 91 S.Ct. at 1798.

In accordance with Griffin, this court has limited cases brought under Section 1985(3) to those alleging racial or class-based animus. In McLellan v. Mississippi Power & Light Co., 545 F.2d 919 (5th Cir. 1977) (en banc), we considered a claim by an employee that he was discharged for filing a petition in bankruptcy in contradiction of company rules. Relying on Griffin, the en banc court held that the plaintiff’s allegations. did not state a cause of action under Section 1985(3). We stated that

The Ku Klux Act was passed amid the lawless conditions existing in the South after the Civil War. A major aim of the legislation ‘was to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of rights, privileges, and immunities guaranteed by the Fourteenth Amendment might be denied by the state agencies.’ It is readily apparent from the title of the bill itself, ‘An Act to enforce the Provisions of the Fourteenth Amendment .. .,’ that the key concern of the legislators was to put force behind the Civil War Amendments by providing an avenue for the redress of injuries suffered by the class of newly emancipated slaves. Nowhere have we seen it suggested that Congress was concerned about discrimination being practiced against insolvents.

McLellan, supra, 545 F.2d at 932 (footnotes omitted). Ironically, under the panel majority’s opinion, the plaintiff in McLellan could have avoided dismissal of his lawsuit simply by adding an allegation asserting jurisdiction under Section 1985(2) since the alleged discrimination in that case arose from the filing of a federal bankruptcy action.

To be sure, both Griffin and McLellan involved cases arising under Section 1985(3) and not Section 1985(2). This fact, however, does not render the cases inapplicable to the present dispute. Indeed, this court has held that Griffin’s racial or class-based animus requirement is fully applicable to claims brought pursuant to the clauses C and D of Section 1985(2). Slavin v. Curry, 574 F.2d 1256, 1262, modified, 583 F.2d 779 (5th Cir. 1978). See Dacey v. Dorsey, 568 F.2d 275, 277 (2d Cir. 1978); Hahn v. Sargent, 523 F.2d 461, 469 (1st Cir. 1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 54 (1976). Furthermore, in Jones v. United States, 401 F.Supp. 168 (E.D.Ark. 1975), aff’d, 536 F.2d 269 (8th Cir. 1976), cert. denied, 429 U.S. 1039, 97 S.Ct. 735, 50 L.Ed.2d 750 (1977), the district court held that Griffin’s requirements also applied to actions brought under the first part of Section 1985(2). The court reasoned that since the congressional history relied on by the Supreme Court in Griffin was generally applicable to all of Section 1985, the concern evidenced by the limitation to racial and class-based animus should apply in all cases brought under Section 1985(2) as well as in Section 1985(3). The Eighth Circuit affirmed the holding. 536 F.2d 269 (8th Cir. 1979).

The panel rejected the view that actions brought under clause B require racial or class-based animus since that clause does not contain language paralleling Section 1985(3)’s proscription of a conspiracy denying others the equal protection of the laws. It held that since Congress failed to include the equal protection language in clause B of Section 1985(2), it must have intended to protect the entire process of litigation without any racial or class-based animus requirement. The panel majority’s reasoning is unpersuasive. Griffin evidenced á general concern that actions brought under Section 1985 must be carefully delineated in accordance with the statutory purposes of the Act in order to avoid the unintended creation of a general federal tort law. Section 1985(2) and Section 1985(3) are both derived from Section 2 of the Ku Klux Klan Act.⁷ Both modern sections are liberally laced with references to “the equal protection of the law,” but neither includes a reference to equal protection in each and every clause of the section. The Supreme Court did not arrive at its conclusion that Section 1985(3) required racial or class-based animus through a hyper-technical analysis of the structure and grammar of the section. Instead, the Court examined the overall purpose of Congress in passing the Ku Klux Klan Act, reached the obvious conclusion that Congress did not intend to create a general federal tort law, and held that Congress intended the act to apply only in cases where there was racial or class-based animus. The Griffin analysis is not applicable to only a small part of Section 2 of the Ku Klux Klan Act, but to the act in its entirety.⁸ If racial or class-based animus is required by Section 1985(3), it is required by Section 1985(2) as well.⁹

As the district court and the panel majority agreed, no showing of racial or class-based animus can be made in this case. Clearly, race is not involved. Moreover, the “class” of persons who have filed personal injury lawsuits or workmen’s compensation claims is neither a class based on political beliefs or associations (the kind of class envisioned by the framers of the Ku Klux Klan Act) nor a class “having common characteristics of an inherent nature,” 445 F.Supp. at 273 (the kind of class afforded special protection under the equal protection clause). The district court and the panel majority acknowledged that the logic of Griffin would be lost if the “class” of people allegedly victimized by the defendants’ allegedly tortious conduct was considered to be a sufficient class under Section 1985 merely by virtue of their common complaint. See also Lopez v. Arrowhead Ranches, 523 F.2d 924, 928 (9th Cir. 1975).

IV. THE REQUIREMENT OF ATTENDING OR TESTIFYING IN COURT

Clause B of 42 U.S.C. § 1985(2) forbids two or more persons from conspiring to “injure [a] party or witness in his person or property on account of his having ... attended or testified” in a court of the United States. Plaintiffs did not allege any injury by virtue of having attended or testified in federal court. Instead, plaintiffs alleged that they were injured because they filed personal injury suits or workmen’s compensation claims in federal and state courts or before state and federal administrative tribunals. The district court held that such allegations did not state a cause of action under clause B:

[Section 1985(2)] does not create a claim for every conspiracy entered into with intent to deny a citizen access to a court, or to retaliate against a citizen for his utilization of the federal court system. If they are to come within the plain language of the statute, plaintiffs must allege that they were injured on account of having attended or testified in federal court. This they have not done.... At most, the conspiracy charged was aimed at injuring the plaintiffs on account of their having asserted a claim or filed a lawsuit. Congress did not undertake to make that behavior actionable.

445 F.Supp. at 276 (emphasis in original; footnotes omitted). The panel majority rejected the district court’s interpretation, finding it overly narrow and holding that “Congress undoubtedly intended to protect the whole course of justice, not just one segment of the system, the trial process.” 623 F.2d at 1068.

The question presented in this case is not whether Congress possesses the power to enact legislation forbidding retaliatory conduct against a party for filing suit in federal courts. Rather, the issue is limited to determining whether the existing language of Section 1985(2) achieves that result. It is axiomatic that our analysis of statutory law “must begin with the language of the statute itself.” Touche, Ross & Co. v. Redington, 442 U.S. 560, 568, 99 S.Ct. 2479, 2485, 61 L.Ed.2d 82 (1979); Santa Fe Industries, Inc. v. Green, 430 U.S. 462, 472, 97 S.Ct. 1292, 1300, 51 L.Ed.2d 480 (1977). The plain meaning of the word “attend” supports the district court’s interpretation. Attend, simply put, means “to be present at.” Webster’s Third International Dictionary 140 (3d ed. 1961).

Also, consideration of the legislative history supports the view that Congress intended the word “attend” to be given its ordinary meaning. Passage of the Ku Klux Klan Act was “motivated by a desire to prevent and punish acts of terror or intimidation that threatened the attempt to create a political environment hospitable to equality.” Comment, A Construction of Section 1985(c) in Light of Its Original Purpose, 46 U.Chi.L.Rev. 402, 405 (1979). In light of the acts of violence that threatened the sanctity of federal courts, Congress meant Section 1985(2) to protect a party based on his physical presence while attending or testifying in court. In this case, no allegations were made that plaintiffs were injured because they attended or testified in federal court. Given the background of violence and direct intimidation prevalent at the time of the original passage of Section 1985(2), it would be anomalous to find, v/ithout any specific support in the legislative history, that Congress intended to create a federal tort remedy for an employer’s economic use of public information relating to the filing of federal lawsuits. Section 1985(2) was not designed as a vehicle to remedy such allegedly tortious acts of employers against employees pursuing workmen’s compensation or personal injury claims. Rather, it was intended to protect against direct violations of a party or witness’s right to attend or testify in federal court. This clear congressional purpose is best served by construing the statutory language in its ordinary meaning so that only direct interference with the federal courts is prohibited in accordance with the general concerns enunciated by Griffin.

V. CONCLUSION

The plaintiff’s allegations do not indicate that the defendants acted with the racial or class-based animus required by 42 U.S.C. § 1985(2). In addition, the allegations do not state that the plaintiff was injured on account of having attended or testified in a court of the United States in violation of section 1985(2). We therefore affirm the district court’s grant of summary judgment.

AFFIRMED.

1 . 42 U.S.C. § 1985(2) provides:

(2) If two or more persons in any State or Territory conspire 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, or to influence the verdict, presentment, or indictment of any grand or petit juror in any such court, or to injure such juror in his person or property on

account of any verdict, presentment, or indictment lawfully assented to by him, or of his being or having been such juror; or if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws;

[T]he party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.

2 . Kimble applied for a position with a different McDuffy drilling crew on April 8, 1973, and the crew supervisor apparently agreed to rehire him. Upon checking with the office, however the supervisor was told not to rehire Kimble. See Record on Appeal, Vol. 1 at 3; Deposition of Kimble at 24-27.

3 . Deposition of Kimble at 21-22. Kimble did, in fact, run unsuccessfully for political office in July 1973, having qualified to run by filing a 50-signature petition in late April or early May. Deposition of Kimble at 29-31.

4 . In 1969, Kimble sustained an injury to his right shoulder while he was employed by Noble Drilling Company. He obtained a jury verdict of $35,000. Some time thereafter, he broke a finger while employed by Reading & Bates. He also filed a lawsuit over that injury and received a settlement of $6,500. Record on Appeal, Vol. 1 at 136.

5 . Section 2 of the Ku Klux Klan Act, 17 Stat. 13 (1871) provided:

Sec. 2. That if two or more persons within any State or Territory of the United States shall conspire together to overthrow, or to put down, or to destroy by force the government of the United States, or to levy war against the United States, or to oppose by force the authority of the government of the United States, or by force, intimidation, or threat to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, or by force, intimidation, or threat to prevent any person from accepting or holding any office or trust or place of confidence under the United States, or from discharging the duties thereof, or by force, intimidation, or threat to induce any officer of the United States to leave any State, district, or place where his duties as such officer might lawfully be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or to injure his person while engaged in the lawful discharge of the duties of his office, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duty, or by force, intimidation, or threat to deter any party or witness in any court of the United States from attending such court, or from testifying in any matter pending in such court fully, freely, and truthfully, or to injure any such party or witness in his person or property on account of his having so attended or testified, or by force, intimidation, or threat to influence the verdict, presentment, or indictment, of any juror or grand juror in any court of the United States, or to injure such juror in his person or property on account of any verdict, presentment, or indictment lawfully assented to by him, or on account of his being or having been such juror, or shall conspire together, or go in disguise upon the public highway or upon the premises of another for the purpose, either directly or indirectly, of depriving any person or any class of persons of the equal protection of the laws, or of equal, privileges or immunities under the laws, or for the purpose of preventing or hindering the constituted authorities of any State from giving or securing to all persons within such State the equal protection of the laws, or shall conspire together for the purpose of in any manner impeding, hindering, obstructing, or defeating the due course of justice in any State or Territory, with intent to deny to any citizen of the United States the due and equal protection of the laws, or to injure any person in his person or his property for lawfully enforcing the right , of any person or class of persons to the equal protection of the laws, or by force, intimidation, or threat to prevent any citizen of the United States lawfully entitled to vote from giving his support or advocacy in a lawful manner towards or in favor of the election of any lawfully qualified person as an elector of President or Vice-President of the United States, or as a member of the Congress of the United States, or to injure any such citizen in his person or property on account of such support or advocacy, each and every person so offending shall be deemed guilty of a high crime, and, upon conviction thereof in any district or circuit court of the United States or district or supreme court of any Territory of the United States having jurisdiction of similar offences, shall be punished by a fine not less than five hundred nor more than five thousand dollars, or by imprisonment, with or without hard labor, as the court may determine, for a period of not less than six months nor more than six years, as the court may determine, or by both such fine and imprisonment as the court shall determine. And if any one or more persons engaged in any such conspiracy shall do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby any person shall be injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the person so injured or deprived of such rights and privileges may have and maintain an action for the recovery of damages occasioned by such injury or deprivation of rights and privileges against any one or more of the persons engaged in such conspiracy, such action to be prosecuted in the proper district or circuit court of the United States, with and subject to the same rights of appeal, review upon error, and other remedies provided in like case in such courts under the provisions of the act of April ninth, eighteen hundred and sixty-six, entitled “An act to protect all persons in the United States in their civil rights, and to furnish the means of their vindication.”

(Emphasis added.) The emphasized portion is the source of clause B of Section 1985(2).

6 . In passing the 1874 act to consolidate and collect all federal statutes and laws, Congress did not intend to change the meaning of the laws even though it made minor changes in language to accommodate the consolidation. “In transferring the language [to the Revised Statutes], it is to be presumed that it was intended to transfer the sense.” Pott v. Arthur, 104 U.S. 735, 736, 26 L.Ed. 909 (1881). The Revised Statutes were republished, with minor corrections and some additions, in 1878. At that time, Congress made it clear that discrepancies between the original acts and the Revised Statutes were to be resolved by consulting the original acts. 20 Stat. 27 (1878).

7 . 42 U.S.C. § 1985(3) provides:

(3) If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, 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; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.

A careful reading of Section 2 of the Ku Klux Klan Act, set out in note 5, supra, indicates that portions of that section are the source of Section 1985(3) as well as Section 1985(2).

8 . The formal title of the Ku Klux Klan Act itself indicates that the act was not a general federal tort law but instead an act designed to prevent retaliation against those who seek to enforce their rights under the Civil War amendments: “An Act to Enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States and for Other Purposes.” 17 Stat. 13 (1871).

9 . Congressional action in enacting 18 U.S.C. § 1503, which imposes criminal penalties for obstruction of justice, may be seen as evidence of Congress’s belief that 42 U.S.C. § 1985(2) applies only to conspiracies motivated by racial or class-based animus.

The dissent states that we now require the application of an equal protection test in Section 1985(2) actions, and asserts that “[i]t makes little sense ... to apply an equal protection test to cases that are founded on the denial of other constitutional rights — such as the political rights protected by section 1985(3) or the due process rights protected by the first part of section 1985(2).” The class-based animus required by the Supreme Court in Griffin and now reasserted by this court is not identical with the class-based distinctions required to support an action under the equal protection clause, however. For example, section 1985 was certainly intended to cover conspiracies against Republicans; distinctions based on affiliation with a major political party are not among those traditionally subject to special scrutiny under the Fourteenth Amendment. What Griffin stands for, and what we now hold, is that Section 1985 was intended to encompass only those conspiracies motivated by animus against the kinds of classes Congress was trying to protect when it enacted the Ku Klux Klan Act. Certainly “conspiracies” against workers who file personal injury or workmen’s compensation claims are not among those Congress was trying to deter in 1871.