648 F.2d 340 (5th Cir. 1981), 78-1474, Kimble v. D. J. McDuffy, Inc.

Docket Nº:78-1474.
Citation:648 F.2d 340
Party Name:Versie KIMBLE, Plaintiff-Appellant, v. D. J. McDUFFY, INC. and Industrial Foundation of the South, and all of its subscribers, Defendants-Appellees.
Case Date:June 18, 1981
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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648 F.2d 340 (5th Cir. 1981)

Versie KIMBLE, Plaintiff-Appellant,


D. J. McDUFFY, INC. and Industrial Foundation of the South,

and all of its subscribers, Defendants-Appellees.

No. 78-1474.

United States Court of Appeals, Fifth Circuit

June 18, 1981

Page 341

[Copyrighted Material Omitted]

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Lawrence D. Wiedemann, New Orleans, La., for plaintiff-appellant.

Phelps, Dunbar, Marks, Clavouie & Sims, Harry S. Redmon, Jr., Rutledge C. Clement, Jr., Margaret Ann Brown, New Orleans, La., George J. Petrovich, Jr., Fort Worth, Tex., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.


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. 623 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.


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

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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

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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

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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


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. Breckenridge, 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 (T)here 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...

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