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

prospec- with Foundation the provides the TUTTLE, Before AINSWORTH security social employee’s tive name and JOHNSON, Judges. D. Circuit SAM The Foundation searches number.4 million records and JOHNSON, through its one-half Judge: SAM D. Circuit company requesting with supplies the Tales of the violence of white sheeted it on the pertinent information that has prompted Congress pass Southerners as a applicant. Using this information Today Ku Klux Act of 1871. Klan employer ap- then makes an guideline, the is asked to decide whether one of Court employment decision. propriate 1985(2),1 Act, offspring of that 42 U.S.C. § whose record One the individuals provides allege for individuals who relief found the Foundation’s files is employment they are unable obtain action, Ver- plaintiff in this cause of named they filed drilling industry the oil his injured In 1969 Kimble sie Kimble. injury against companies personal claims working right shoulder while for Noble industry. The district Drilling Company. He filed suit in federal as law that F.Supp. held a matter of and, trial, $35,- jury recovered court after alleged does not cover this the statute began In December Kimble 000. granted judg- blacklisting summary working McDuffy, (McDuffy), J. Inc. for D. ment for We affirm in defendants. well At company. a now-defunct oil service part. and reverse in Kimble, McDuffy compa- time hired I. The a member of the Industrial ny Facts In March 1973 Foundation of South. The Industrial Foundation the South McDuffy joined Shortly the Foundation. (the Foundation) a non-profit corporation thereafter, early April, McDuffy fired companies, affili- that assists its member all McDuffy that it Versie Kimble. contended per- industry, making ated with the oil he terminated Kimble because was about Specifically, sonnel decisions. the Founda- he was political seek office. Kimble claims Louisiana, court records in Tex- checks prior against his suit Noble fired because of as, Alabama, Oklahoma, New Mississippi, Drilling Company. Mexico, and Missouri to discover all claims industry 13, 1973, against companies May in the oil Kimble filed this filed On Versie injuries who resulting employment.2 for from class action on behalf of all individuals compiles The then list of the employment Foundation had been denied Foundation who have filed suit in individuals federal members because had filed workers’ courts, compensation personal injury state as well as those who claims sought pursuant oil compensation against companies workers’ affiliated with the as 1. 42 is known the Federal 3. The contain than § U.S.C. Foundation’s records more Conspiracy just Justice a list names to Obstruct Act. of the who have individuals personal compa- filed actions oil name; person’s nies. The records include the 2. The various individuals Foundation hires money injury; the nature of the the amount of examine Some of those who records. sought; employee; the name of the name employees. examine records are salaried attorneys company; insurance majority The assistants district clerks and plaintiff clerks, for both the money and defendant. paid a to district who are sum of they report for each to the Foundation. case p. general manager Deposition indi- The Foundation of H. J. Robinson 84-86. 4. of the employees approxi- propriety cated received of this conduct federal the Foundation mately 92,000 Dep- requests per year in 1973. is not before this Court. p. 82. osition H. J. Robinson at thoroughly examining included tiffs. After industry. The defendants drilling Inc., that the the Industrial Founda- the district court concluded McDuffy, D. J. South, cover the actions and all members statute does not tion of the entirely of, complaint, complained based and held that Foundation. 1985(2),5 sought damages for judgment were entitled to as a on U.S.C. defendants injunction en- McDuffy, matter of law. Kimble v. D. J. permanent and a the class continuing their (E.D.La.1978). defendants Plain- joining practices.6 The district allegedly appeal. unlawful tiff then instituted respect class status with court denied action History Statutory claim, damage but certified the class II. injunctive respect to the claim for delineating starting point relief. 1985(2) is the coverage provided by section Brawer v. roots. statutory court con- section’s January 1978 the district Horowitz, (3d for summa- 535 F.2d the defendants’ motion

sidered 2 of the plain- parent of 1985 is Section gave The district court Section ry judgment. 20, 1871, Act April and Klux Klan Act.7 of assumptions the benefit of all Ku tiffs 22, 2,17 pursuant In to plain- stat. 13. all inferences in favor of Ch. § drew contrary authority 1985(2)provides: of the United States thereof, 5. 42 U.S.C. force, intimidation, by or threat to any or persons (2) or or more in State If two any person accepting force, prevent deter, or hold- Territory by from conspire to intimi- place dation, threat, any ing any any party confidence office or trust or of or witness in or States, attending discharging or from of the United States from under the United court court, intimidation, testifying any thereof, force, by matter such or from to or the duties therein, truthfully, freely, fully, pending any to induce officer of the United or threat injure State, district, such or witness in his any place or to or States to leave having property person on account of his or might lawful- where his duties as such officer ly testified, or or to influence the so attended injure per- performed, him in his or to verdict, any presentment, or indictment of property of his lawful son or on account court, any grand petit juror or to or in such office, discharge or to of the duties of his juror person property injure in his or on such engaged injure person lawful while his verdict, any presentment, in- or account of dictment his or more impeding, hindering, ing, office, discharge of his or to of the duties him, by lawfully of assented to or molest, interrupt, injure hinder, property his so as to juror; being having if two or been such or discharge impede of his or him in the purpose persons conspire of for the intimidation, force, by duty, or official or obstructing, or defeat- any any party in to deter or witness threat manner, justice any of in the due course attending from court of the United States deny any Territory, to in State or with intent testifying any in matter or from such any equal protection of the to laws, citizen freely, fully, pending in and truth- such property injure his or to him or injure fully, any party or witness or to such enforce, lawfully enforcing, attempting or person property on account of his in his or persons, any person, right or class of the to the of force, testified, by having or so attended or laws; equal protection of the intimidation, ver- to influence the or threat noted, plaintiffs have not 6. As the district court dict, indictment, any juror presentment, of or admiralty jurisdiction, antitrust invoked laws, juror any grand court of the United or States, diversity jurisdiction. v. D. J. Kimble nor juror injure in his or to such (E.D. McDuffy, 272 n. 3 verdict, any property on of or account La.1978). lawfully presentment, or indictment assented him, being by or or an account of his provided: Klan Act 7. Section 2 of the Ku Klux juror, conspire having shall to- been such or persons within That if or more Sec. 2. any two disguise upon public gether, go or Territory the United States State or highway upon premises of another for or overthrow, conspire together or to shall indirectly, directly purpose, either or the depriving any person down, by govern- put destroy or to force any persons or class States, levy war the United or to ment of laws, equal protection or of of equal States, by oppose the United or privileges under the or immunities authority government of the force the laws, preventing purpose or or for the intimidation, States, force, by or United or any hindering the constituted authorities hinder, prevent, delay the execu- threat to or securing giving to all or States, State any law of the United equal protection of the within such State seize, take, any property possess force to authorization, Secretary survive defendants’ Congressional summary motion for supervised the revision Hamilton Fish State judgment. analysis A careful vari- the statutes of the publication of all provisions 1985(2) and an ous of Section During the course of that United States. application provisions of the facts to those revision, changes were grammatical minor required question. to resolve this order made and 2 of the Ku Klux Klan Section examination, we must conducting this Act was reformulated into three subsec- approach “perfidious syntax” of Section tions. Brawer 535 F.2d at 839. The Brawer, 1985(2) with some care. version of 2 of the Ku reformulated Section at 837. The statute contains several differ- Klan Act made its the re- way Klux into provisions, ent no two of which are directed vised statutes as 1980. The current Section type conspiracy. As the same language including noted, district court when one omits the 1985(2), is taken verbatim from Revised applica- clauses in that are 1980, Second. Statutes § juries jurors (and inapplicable ble to unitary was once of a bar), the case at subsection 2 contains four statutory designed scheme indi- clauses that create four distinct causes of range conspiracies. viduals from a wide action: Thus, seeking interpret language persons conspire A. If two or more guided by courts must be deter, force, intimidation, prior interpretations of similar threat, any party or witness in found in Section of the Ku Klux Klan Act, specifically those provisions today of the United States from at- 1985(1) constitute and tending testify- such or from ing any pending to matter therein 1985(2) III. The Section Cause of Action . or Analytical A. Framework injure B. to such or witness in his person property The issue before this or on account of his Court is whether plaintiffs produced testified, sufficient evidence to having so attended or or laws, termine, conspire together pur- period or shall for the for a of not less than six manner, pose any impeding, hindering, years, of in months nor more than six as the court obstructing, defeating determine, may imprisonment by or the due course of or both such fine and

justice any Territory, in State or with intent as the court shall determine. deny any any persons engaged to to citizen of the United States And if one or more in laws, equal protection any done, do, conspiracy the due and of the or such shall or cause to be injure any person person any to object in his or his act in furtherance of the of property lawfully enforcing right conspiracy, whereby any person for the of such shall any person persons injured equal person property, or class of to in his or or de- protection laws, force, by prived privilege having any exercising right of the or intimida- of or tion, prevent any States, or threat to citizen of the of a citizen of the United lawfully injured deprived United States rights entitled to vote from so or of such giving support advocacy privileges may his or in a lawful have and maintain an recovery damages manner towards or in favor of the election of any lawfully qualified person action for the of occa- deprivation rights as an elector of sioned and persons engaged such or of privileges against any President or Vice-President of the United one or more of the States, conspiracy, or as a member of the of the in such such States, injure any prosecuted proper United his support or to such citizen in action to be in district person property States, or on account of such or circuit court of the United with and advocacy every subject rights appeal, or each and to the same review offending error, guilty high upon provided so shall be deemed of a and other remedies in crime, and, upon any provisions conviction thereof in like cases in such courts under the of the act of and persons rights, ninth, April eighteen district or circuit court of the United States or district or hundred supreme any Territory sixty-six, protect court of entitled “An act to all having jurisdiction of the United States similar in the United States in their civil offences, punished by shall be a fine and to furnish the means their vin- not less than five hundred than nor more five dication.” dollars, by imprisonment, parts today thousand or without hard or with Those of Section 2 that constitute labor, 1985(2) emphasized. as the court de- Section 1985(3) whether created a cause of persons conspire if two or more for C. impeding, hindering, damages against action for individuals act- purpose defeating, any ing purely private capacity. obstructing, or manner, justice the due course 1985(3) Court held Territory, with to any State or intent designed actions individuals from deny equal protec- any citizen by private persons. recognized, The Court laws, however, “in- was not injure property for law- D. him or his tortious, apply conspiratori- tended to to all . .

fully enforcing right . with [by private parties] al interferences any person, persons, or class of rights Id. of others.” 403 U.S. at equal laws. protection “The re- at 1798. protec- quiring deprive equal intent determining at 274. wheth- immunities, tion, privileges equal have plaintiffs’ er claim should survived racial, must be means that there some summary judgment, this Court motion class-based, be- perhaps otherwise examine of these four clauses must each hind the actions.” Id. at conspiratorial individually. Thus, (footnote omitted). 91 S.Ct. at 1798 C B. Clause at bar are since defendants case Clause C of is aimed determining whether private parties, conspiracies designed to “the obstruct requisites satisfied justice course of State or Terri due whether clause C this must determine Court must be into tory.” conspiracy entered that defendants plaintiffs have established “equal protection deny the intent to class- appropriate were motivated . The district court the laws based, discriminatory animus. allege held that failed or show not all We note from the start entered into with intent to protec fall within the classes individuals equal We deny protection them law. See, g., tive cloak of clause C. e. McLellan agree. Light Mississippi Power & required es- Exactly what evidence banc) who (5th 1977) (en (persons 919 Cir. that entered into a con- tablish defendants petition voluntarily bankruptcy filed a denying plaintiffs spiracy with the intent of Crane, class); not a Bricker v. protected are not equal protection readily the law is of denied, (1st 1972), 468 F.2d 1228 Cir. cert. starting point for this in- apparent. The 1368, 930, 592 410 93 35 L.Ed.2d U.S. inter- quiry Supreme must be the Court’s (doctors (1973) who have testified language of pretation similar malpractice are their in cases brethren Breckenridge, 1985(3) in v. Griffin class). class protected a The that 1790, (1971). 29 L.Ed.2d 338 91 S.Ct. conspir allege target is the of defendants’ Although the Court in Griffin was Supreme employed acy is includes workers one that 1985(3), focusing on the of Section industry who have exploration in the oil that, light has in of its this Court held injury claim. pursued type personal some roots,8 is to be statutory interpret- clause C un personal are While claimants v. ed in accordance with Griffin. Slavin doubtedly purposes, for some a class 1256, 1262, Curry, 574 F.2d modified 583 Con case at bar is whether question in the (5th 1978). 779 F.2d Cir. proscribe conspiracy gress a intended justice aimed at on due course of an assault blacks obstruct the Griffin involved re claimants. A careful highway persona] injury white traveling Mississippi by a subse view of intent and the racially Congressional private citizens. The attack establishes that Section quent jurisprudence on mis- motivated —defendants acted pro 1985(2), designed was not civil clause C belief were taken that plaintiffs. in Griffin was tect class rights workers. The issue II, supra. See Section 8.

1066 genres claimants does not fall within this first cat- are two of classes

There distinct protected by The is by category egory C. first of classes protected clause by some as one where the defined courts clause C. by

class characterized some inherited or is en- category There is a second classes Perhaps bet- immutable characteristic. by (3). compassed Sections recently ter definition is endorsed category This includes individuals who in v. the Ninth Circuit DeSantis Pacific conspiracy of a because of their victims Telephone Telegraph & 608 F.2d associations. political beliefs or (9th 327 Cir. The Ninth Circuit held protect indi- intended to That determining group in whether a conspired against who are viduals requirement satisfies the individuals class is political beliefs or associations their 1985(3), federal courts have remained Although Ku Klan beyond doubt. Klux principle underlying faithful basis thought organization, today is of as racist 2 adoption of of the Ku Klux political organiza- in it was primarily 1871 governmental “The Klan Act: determina- Republicans, who controlled the tion. require groups some tion that warrant Congress, especial- 42d Klan violence found protecting their special federal assistance ly they were convinced troublesome because rights.” Id. at 333. Cf. Monroe v. civil it was motivated. Com- politically Pape, U.S. 81 S.Ct. 5 L.Ed.2d ment, 1985(c) A Construction (1963) rights (Although civil stat- Light Original Purpose, of Its Univ.Chi. response post-war utes were enacted South, L.Rev. majority are cast in re- conditions port general language provide Select Committee for flexibili- Senate ty). Investigate Alleged Outrages South- ern this concern: States reflected “[I]t Supreme Court focused on most . Ku clearly established protected type obvious of class exist, Organization political has a Klux does Griffin, conspira- when held that the Court purpose, composed members of racially tors who acted with a discriminato- party, democratic or has conservative [and] ry could found to be in violation murders, sought carry purpose out its 1985(3).9 Lower federal courts intimidations, and violence.” whippings, category beyond have extended this first H.R.Rep.No. Cong. 42d 1st Sess. XXX- encompass race to those who are victims XXXI. The need to individuals be- sex, Life due to their Insur- ing political asso- harassed because their Company v. ance of North America Rei- Congressional rang throughout ciations chardt, 1979); Curran George Ver- debate. Senator Edmunds of Superintending Commit- Portland School tee, mont, reported the (D.Maine 1977); who bill out commit- reli- tee, gion, Body, Marlowe v. Fisher 489 F.2d 1057 stated that: (6th 1973); Id.10 origin, Cir. or national We do not undertake in this bill to inter- might a private fere with what be called Plaintiffs are to establish that unable neighborhood conspiracy growing out aof Congress judiciary displayed a has against of one men feud man set of special solicitude towards their class be- prevent one getting another an indict- enforcing cause need of its for assistance in against in the men for recognizes ment State courts rights. its civil While Court barn; but, burning if in a case scope Act down his protective is not this, static, appear, class like it this con- composed personal a should 10. recog 9. Classes that have been and will be That intended those dis- against warranting special pro criminated due to race is evidenced nized as assistance in tecting rights itself: “An Act to Enforce their title of Act civil are limited “suspect groups” Provisions the Fourteenth Amendment fourteenth amend States, the Constitution of the United and for ment. Purposes.” (1871). Other 17 Stat. 13

1067 Brock, (6th 1973) v. 473 F.2d 608 Cir. this man be- was formed spiracy Democrat, Wilson, (8th you please, if 833 he was a Means v. 522 F.2d Cir. cause Catholic, 958, because denied, he was a 96 1975), or because cert. 424 U.S. S.Ct. Methodist, he was a or because (1976); he was 47 L.Ed.2d 364 voters who Vermonter, painful in- (which pretty is a deceived about the actual effect of were that I have in mind in the State stance vote, 1098 Cherry, their v. Smith days few where a man Florida within a 1973), 417 94 cert. denied U.S. reason,) then this his life for that lost (1974); individu 41 L.Ed.2d 214 reach it. section could policies, his als critical of the President and Louisville, 518 F.2d 899 City Glasson v. (1871), reprinted in Cong., 1st 567 42d Sess. (6th Cir.), cert. 96 S.Ct. Avins, denied The Reconstruction Amendments A. (1975); added). 46 L.Ed.2d 258 members (1967) (emphasis Rep- Debates 547 position, repeated group advocating unpopular this same resentative Ellis Roberts House, Sullivan, (W.D. F.Supp. discussing, when Puentes v. concern legislation. Tex.1977); laborers who are not members need for union, Moore, F.Supp. of a Scott never the victims But one rule fails: (E.D.Tex.1978); teaching members of per- property destroyed, whose is whose with the profession who talk or associate mutilated, whose lives are sacri- sons are CIA, Berkowitz, F.Supp. 347 Selzer v. ficed, They always Republicans. are white; (E.D.N.Y.1978); who exercise and students they include those who be black or rights by joining cer who wore the their first amendment wore the blue and those residents, life-long organizations, tain Brown v. Villanova Uni gray; new-comers and (E.D.Pa.1974). only Republicans. versity, the door lin- but Stain to recon- opposition tels with the mark of Unfortunately in the case at hostility and of to the national struction bar, category this second little assist- Administration, destroying angel and the summary provided ance. Plaintiffs have no sign, passes by. Omit that and the torch judgment they establish that evidence to may kindle the roof that covers women of their conspiracy are victims of a because children; scourge may upon fall Rather, political views or associations. stoop with weakness and shoulders that exists, assuming conspiracy the rec- even age; may pierce the bullet is directed ord indicates that warning. uniform- breast without Such in- personal filed because only design. ity of result can come simply type not the jury claims. This is Republicans only beaten and mutilat- by the statute. protected class that is murdered, the blows are ed and not estab- summary, plaintiffs have only. Republicans aimed at class-based, discriminatory ani- lished Sess., Cong., Cong.Globe, 42d 1st 412-413 for a cause of action required mus that (1871) added). (emphasis The dis- under clause C. recognized that those Federal courts judgment on grant summary trict court’s against because of who are discriminated (2) is affirmed.11 portion of subsection fall with the political views or associations protective scope of D C. Clause animus suf Courts have found a class-based conspiracies D is aimed at where Clause support ficient causes of action the individuals against individuals because supporters toward conspiracy the is directed candidate, any person or lawfully right enforce the of particular political a Cameron of 919, 1977) (en banc), plaintiffs a 545 F.2d 925-7 Cir. have not established 11. Because C; animus, 1985(2), class-based, discriminatory invidiously or the constitu- to Section clause tionality applicability a federal of a statute that creates this Court need not determine parties indepen- against private 1985(3) requirement for ob- of action cause of the Section territory. justice opinion structing illegality in a state or set forth in this Court’s dent 275, Mississippi Light n. 5. in McLellan v. Power & injured that be- only they The rather were equal protection. but class of district court’s they clause have cause filed claims. The have construed this courts that on its be- apparently premised toward is universally noted that it is directed conclusion laws,” testified” key phrase lief that “attended “equal protection in a court- requires physical presence anal- actual Supreme Griffin phrase in the Court’s reading of See, reject 523 F.2d We such a narrow g., Sargent, e. Hahn v. room. ysis. 461, (1st 1975); Brawer v. Horo- Cir. statute. 830, witz, (3d The conspira that Congress recognized required estab-

courts have that designed injure who turn to parties cies discriminatory invidiously a lish class-based only misapplica a produce the courts can prevail in order to under this clause animus judicial system. of the federal Con noted of Section As this Court gress part enacted the first of Section above, to establish plaintiffs have failed protect sanctity in order to class-based, appropriate that there was an mis proceedings prevent court federal discriminatory at bar. animus in the case justice. justice provided carriages of Accordingly, grant district court’s however, judicial system, does not by our summary judgment for defendants on day process start on the trial. clause is also affirmed. justice begins obtaining system the court is long before a case is called to trial —it D. A Clause a party initiated at a files moment A is conspiracies Clause aimed at complaint. Congress undoubtedly intended attending or parties deter or witnesses from justice, the whole course any testifying in court of the United States. segment of the trial just system, one granted summary judg The district court Thus, for process. purposes ment for defendants on this clause because 1985(2) an individual is deemed to have any failed to evidence indi offer a court States “attended” of the United cating that deter a attempted defendants files a from the moment that party attending testify witness or from complaint. agree. ing in court. We Congress certainly consti- did not exceed con- Plaintiffs contend that defendants provided tutional bounds when it spired anyone not to hire who had asserted individual “attends” federal court when personal injury against claim a member pro- complaint is filed. art. Ill U.S.Const. essence, industry. they the oil assert judiciary for a federal vides U.S.Const. retaliatory defendants’ provides Congress cl. art. However, plaintiffs nature. have offered power neces- shall have the to make laws retaliatory con- nothing to indicate that this sary proper executing powers all attending spiracy anyone has deterred from govern- vested the Constitution and testifying in court. court’s The district beyond ment of the United It is States. grant summary judgment on this clause power to do question that has the 1985(2) is of Section affirmed. part it did in the what first judicial system 1985(2) protect the federal — E. B Clause justice. efforts obstruct The second clause Maryland, McCulloch B, creates a clause cause of action Wheat. 4 L.Ed. 579 conspire injure who individuals that, having or witness for attended or testified Defendants even if contend expan court of the is read United States. first to relief granted summary judgment is still not entitled sively, plaintiff district ar plain Initially, for defendants on this clause because for two reasons. defendants allege injured that the of a class- they gue requirement tiffs did not were Griffin based, invidiously discriminatory attended or testified 1985(2), simply, only depriva- clause B. more there can be a required by Section also plaintiff of when reading rights A of Griffin and the statute tion of a careful ille- argument. action of the defendants is otherwise support does not defendants’ gal. requirement animus of The invidious Id. at 925. Defendants in the case at bar for determining is a test established Griffin satisfy plaintiffs that failed to contend have designed a de whether requirement independent illegality or

prive “any class McLellan. laws, equal equal protection of the laws,” privileges and immunities under This Court need not decide whether these 1985(3). Sec required by as Section Unlike the McLellan re- have satisfied 1985(3) clauses and D of Section tion C be- quirement independent illegality, 1985(2) 1985(2), B of Section is not applicable clause that is not requirement cause depri conspiracies 1985(2). aimed at the part limited the first of Section equal equal privileg developed independent protection vation of McLellan court requirement es There is no reference when it examined the illegality and immunities. 1985(3) dealing part in the first of Section whatsoever Section laws,” protection. “equal protection of the and conclud- 1985(2) equal to the term Al private persons only deprive ed can read the though urge defendants we equal laws protection others of part into the first of Sec Griffin limitation violating already a in existence. In the law 1985(2), the statute nor the tion neither 1985(2), part first as we noted Section legislative support an in history will such discussing applicability above when presence of the invidious terpretation. Griffin, there no of the term 1985(3) mention requirement in Section “equal protection of laws.” This Court persuasive D is evidence that clauses C and Congress must assume that omitted the impose knew how to limita “equal protection” term from first See, when it was intended. Stern v. 1985(2) it did not intend Gypsum, 547 F.2d 1329 United States denied, with that the limitations associated (7th Cir.), cert. phrase applicable to be to it. Defendants’ (1977) (holding Griffin 54 L.Ed.2d argument applied should that McLellan 1985(1)). This Court inapplicable to Section rejected. impose declines to the invidious animus re quirement Congress clearly where did not Thus, mo- to survive defendants’ order it applied. intend for to be summary judgment, plaintiffs tion for need only question about whether raise factual is that this

Defendants’ second contention injured them on account of their defendants Mississippi in McLellan Court’s decision having in court. attended testified Light Power & 545 F.2d 919 sum- Plaintiffs done this. Plaintiffs’ (en banc), 1977) applied in the should be mary judgment establishes that evidence case at bar. The issue in McLellan was defendants refused to hire them because discharged employee who was whether personal claims. If the filed private employment because he filed a version, accepts trier fact plaintiffs’ voluntary petition in stated bankruptcy to relief under would be entitled 1985(3). claim under This Court Section grant 1985(2). The courts district requires concluded that summary judgment this clause was on alleged must be ille- acts of defendants See, IV. partially inappropriate. Part gal, independent of Section object conspir- If the of the defendant’s The Appropriate IV. Class acy did not include a violation of some plain Not all of the certified class (independent law it- under clause B. self) plaintiff, the con- tiffs have a cause of action protects which only provides B deprived plain- not have clause spiracy could be- injured “protection of the laws.” Put cause of action for individuals tiff of any wording or testified in they cause attended of clause B forbids two or “any conspiring “injure court The term more United States. from [a] court of the United does not mean person property States” or witness in his physically located in the having United on . account of his attend- States, but rather denotes courts that are ed or testified” in a court of the United judicial part system. federal 1985(2). majori- States. U.S.C. As the § Painters, Seeley v. Decora- Brotherhood ty properly recognizes, plaintiffs did not tors, America, Paper Hangers 308 allege any injury having virtue of at- 1962); F.2d 52 28 U.S.C.A. § tended or testified in federal court. In- (Supp.1980). compensation worker’s State stead, plaintiffs alleged they that in- were boards, courts, state and federal worker’s jured they because filed workmen’s com- compensation boards not included in the pensation claims in federal and state courts “any term court of the United States.” Id. or before state and federal administrative Accordingly, only plaintiffs may that court, Judge tribunals. In the district Ru- 1985(2), avail themselves of clause allegations bin held that such did not state B are who allege they those were victims of a cause Specifi- of action under clause B. employment they discrimination because cally, he wrote that: filed claims in federal court. Conspiracy to Obstruct Justice Act every conspir- does not create a claim for V. Conclusion acy entered intent deny into with grant district court’s summary court, citizen access to a or to retaliate judgment against plaintiffs those who were against a citizen for his utilization of the allegedly against discriminated because system. they federal court If are to come they personal injury asserted a claim before plain language statute, within the board, compensation a state workers allege they must that were in- court, state or before a federal workers jured on having account of attended or compensation board is affirmed. The dis- they testified in federal court. This grant trict court’s summary judgment allege not They they done. suffered against plaintiffs allege who they were dis- having on account of filed claims against per- criminated filed a court, in federal inor state or with sonal injury claim in federal court is re- compensation workmen’s boards created versed. These have a cause of under federal or state law. Nowhere do 1985(2), action under Section clause B that they contend that defendants discriminat- summary survives judgment. The district against ed them —“blacklisted” them —on grant summary court’s judgment against account of their attendance or testimony plaintiff Versie Kimble on his claim for reiterate, indeed, They federal court. damages is also reversed. Kimble also has causally such discrimination was re- a cause of action for damages under clause most, filing lated to the of claims. At B that summary judgment. survives conspiracy charged injuring aimed PART, AFFIRMED IN the plaintiffs having IN on account of their REVERSED PART, AND REMANDED. asserted a claim or filed lawsuit. Con- gress did not undertake to make that AINSWORTH, Judge, Circuit concurring behavior actionable. and dissenting part: argued cogen It can be with some [ 7 ]

I concur in majority’s holding cy ought protect plaintiff’s claims do not state a courts, cause of access to all federal and make it A, C, action under clauses D anyone tortious for to retaliate 1985(2). respectfully U.S.C. I using those courts. But Sec dissent, however, not, majority’s deci- pos does in its broadest cognizable sion that a presented claim is reading, prohibit sible such conduct. Be under clause B statute, cause the action is based on a we sanctity pro- which the of federal court the extent to need consider implicitly compel the ceedings.” Constitution ac provide unrestricted government to noted, question Judge As the Rubin question or federal courts the cess to is not whether this case Con- presented right the such whether denial possesses power legisla- the to enact gress dam create cause of action for would a against forbidding retaliatory conduct tion Kras, v. in tort. United States ages courts. filing for suit federal a 631, 434, 1973, 34 409 93 U.S. S.Ct. Rather, determining the is limited to issue 626, involving unsuccessful L.Ed.2d existing language the whether ex challenge constitutionality to the view, my result. In 1985(2) achieves that pro bankruptcy a before acting filing fee reach language statute does not the the ceedings commenced where could be present allegations contained in the the (the Bankruptcy nexus constitutional Judge I would affirm Accordingly, suit. ground Clause) was insufficient to held entirety. opinion Rubin's in its right. an individual Constitu- There little doubt the generated 1985(2)has not much Section to grants authority tion Horowitz, v. 535 litigation. See Brawer re- legislation prohibit that would enact 830, (3d 1976) (construing the 837 Cir. F.2d resorting to against person a for taliation 1985(2) some syntax of “perfidious to Conspiracy In the Ob- federal court. authority to given reserve” the “dearth of has Justice Act it undertaken struct way”). majority of decisions light our conduct aimed at deter- make actionable 1985 involved arising under of, for, or or attendance rence retaliation 1985(3). the Su- regard, In this court; might go it testimony in federal opinion in Court’s landmark Griffin preme retaliatory conduct further forbid 88, 1790, Breckenridge, 403 U.S. 91 S.Ct. or filing at the of a federal lawsuit aimed (1971) is L.Ed.2d instructive. 29 338 claim. Whether assertion a federal Griffin, held for the first time Court it has to make it a federal power not by 1985(3) conspiracies reached that Section re- for tort retaliate equal parties deny others private legal procedures is an sorting state Yet, care- laws. the Court protection here. There issue that need not be faced cogniza- of action fully delineated the cause no tort law. Nor does federal 1985(3). constitu- “The ble under Section upon general tort law. rely suit plaintiffs’ path lie shoals would tional may tor- law not—make State —or general interpreting as a alleged. Plain- tious the kind of conduct giving by federal tort law can be avoided how- tiffs cause of action congressional purpose by full effect — ever, rests on Section as of the cause requiring, an element action extend to the statute does not action, invidiously discriminato- kind of complained of. sponsors motivation stressed ry F.Supp. McDuffy, Kimble v. D.J. 445 [Tjhere limiting . amendment. (footnotes 269, (E.D.La.1978) 276-77 racial, perhaps, some otherwise must be omitted). class-based, conspiratori- behind the read- rejects Judge majority Rubin’s Griffin, 101- supra, actions.” 403 U.S. al the “attended or testified” ing of 02, 91 S.Ct. 1798. unnecessarily it nar- finding the statute Griffin, has this court In accordance with Instead, “at- majority interprets row. brought cases under limited filing the initial act of tendance” include ani- alleging those racial class-based undoubtedly in- “Congress a lawsuit since & Mississippi Power In McLellan v. mus. jus- the whole course tended to (en 1977) (5th F.2d 919 Cir. Light 545 tice, just segment system, one employ- banc), a claim an we considered adopts process.” majority the trial filing peti- discharged he “to was light the need ee expansive reading 1072 1975), gent, (1st 469 Cir. cert. in contradiction of com- bankruptcy

tion denied, Griffin, 47 96 S.Ct. Relying on the en banc pany rules. Furthermore, in Jones v. L.Ed.2d allegations plaintiff’s court held that States, (E.D.Ark. United of action under Sec- did not state a cause aff’d, 1975), 1976), 536 F.2d 269 that: 1985(3). tion We stated denied, cert. U.S. passed amid the The Ku Klux Act1 (1977), L.Ed.2d the district held existing in the lawless conditions South applied to requirements that Griffin’s also major A War. aim of the after Civil brought under the first actions Sec right legislation ‘was to afford federal The court reasoned that since because, by reason of in federal courts Congressional history by relied on the the neglect, intolerance prejudice, passion, Supreme generally Court in Griffin was otherwise, might not be en- state laws applicable to all of the concern Section citizens forced and the claims of to the by evidenced the limitation to racial and rights, privileges, and im- enjoyment of apply animus should in all cases class-based the guaranteed by munities Fourteenth 1985(2) brought under as well as in Section might by Amendment be denied the state 1985(3). Eighth Section Circuit af agencies.’ readily apparent It is from the holding. firmed the itself, ‘An Act to enforce title of the bill rejects ac- majority the Fourteenth the view that the Provisions of Amend- .,’ brought require tions under clause B racial key ment that the concern of or class-based animus since that clause does put force legislators was to behind language paralleling not contain Section providing by the Civil War Amendments 1985(3)’s proscription conspiracy deny- aof injuries an avenue for the redress of suf- ing equal protection of the laws. others by newly emancipated fered the class of Congress equal failed to include the Since sug- have we seen it slaves. Nowhere protection language in clause B of Section Congress gested that was concerned 1985(2), Congress must have intended to being practiced about discrimination protect process litigation the entire with- against insolvents. out racial or class-based animus re- McLellan, (foot- supra, 545 F.2d at 932 majority’s reasoning is quirement. The un- omitted). Ironically, under today’s prevalent original pas- witnesses or time of parties, or seeks affect at the jurors. allegations 1985(2) grand petit sage majority never- complaint in kind. At any specific are different theless reference and without best, allegation is that Congressional history, that Con- finds jurors by precluding them ‘influenced’ rem- gress intended to create federal tort fully accurate evidence. considering pub- edy employer’s for economic use of be too deem this remote We ‘influence’ relating filing lic to the of fed- information 1985(2).” within the ambit of § fit intended 1985(2) was not de- eral lawsuits. Section Brawer, supra, F.2d at 840. See Brown 535 signed remedy allegedly as vehicle to such Chaffee, 1979). 497 v. F.2d employers against employ- tortious acts of case, applied allegations When compensation pursuing ees workmen’s supports Judge interpreta- Rubin’s Brawer Rather, claims. it was intended to clause B. tion of party’s right against direct violations This testify in federal court. attend or analysis statu It is axiomatic that our purpose clear served Congressional is best tory begin language law “must with Touche, statutory in its by construing Ross the statute itself.” & Co. Redington, ordinary meaning only 99 S.Ct. so that direct inter- U.S. (1979); 61 L.Ed.2d 82 Santa Fe Indus prohibited ference with the federal courts is 462, 472, tries, Green, Inc. v. general concerns in accordance with 1292, 1300, 51 (1977). L.Ed.2d Accordingly, I dis- Griffin. enunciated meaning sup plain of the word “attend” majority’s sent construction from the Judge interpretation. ports At Rubin's clause B of Section tend, simply put, present means “to at.” Dictionary Third Webster’s International (3d Ed.

Also, legislative his- consideration Congress in-

tory supports view that courts, respect majority Judge separat- the second Rubin to federal whereas 2. While the majori- subparts, part, involving C and D in the four other clauses ed Section into conspiracies ty’s analysis, relation concerns have considered Sec- courts commentators Comment, generally parts Pri- being state as into courts. divided two 1985(b) separated appearing vate Under 42 Actions U.S.C. the semi-colon part, Conspiracies Impede of Jus- first the Due Course middle of the Section. The encom- tice, majority’s passing struc- clauses A and B in Kansas L.Rev. ture, conspiracies concern notes assuming that the persuasive. Even differ- majority opinion, plaintiff in McLellan language between clause B of ence Sec- of his could have avoided dismissal lawsuit 1985(2) 1985(3) compels tion and Section simply by adding allegation asserting holding that B does not necessitate a clause 1985(2) jurisdiction under since Section requirement, racial or class-based animus alleged discrimination in that case arose majority’s ultimate conclusion that filing bankruptcy from the of a federal protects B who file lawsuits clause action. in federal courts does not follow. Griffin sure, To be both Griffin and McLellan general that actions evidenced a concern 1985(3) arising involved cases under Section brought under must be care- Section 1985 fact, 1985(2). and not Section This how fully delineated in accordance with the stat- ever, inapplicable does not render the cases utory purposes specific of the Act. The Indeed, present dispute. this court applied limitations in Griffin Section has or class-based held that Griffin’s racial 1985(3) to clause applicable suits not be requirement fully applicable is to general B of Section but Griffin’s brought pursuant claims the clauses C carefully defining concern for contours 1985(2). and D of v. Curry, Section Slavin litigation in order avoid 1256, 1262, modified, 583 F.2d 779 generalized tort law the creation of federal view, Dacey Dorsey, Judge Cir. Ru- fully applicable. my In (2d 1978); language in clause F.2d Hahn v. Sar bin’s construction History (Part present Rights 1. The and structure of Sec- of the United States: Civil 1) (1970). 1985(2) grammatical changes tion evolved from Section 2 of the Ku Minor and Schwartz, Statutory restructuring Klux Act of 1871. See B. were made in 1874. tended “attend” its carefully given inter- the word to be balanced precisely B is ordinary meaning. Passage the Ku Klux required by Griffin. pretation Klan “motivated a desire to Act was brought actions under need limit prevent punish acts of terror or intimi- 1985(2) part2 aptly first cre- attempt dation threatened opinion Third Circuit’s demonstrated political hospitable ate a environment case, In the court con- Brawer. Comment, A equality.” Construction the defendants con- a claim that sidered Pur- 1985(c) Light Original of Its testimony perjured to use spired pose, U.Chi.L.Rev. evidence order to exculpatory conceal light of acts the actual of violence jury. Jurisdic- verdict of influence courts, sanctity of threatened the federal alleged the first part under meant Section 1985(2). holding that After racial physical while presence based on his required, was not or class-based animus In this attending testifying court. that other limitations Third Circuit found case, were allegations plain- no made that to define the cause action under existed injured tiffs were attended understand the first “We the back- testified in federal court. to concern itself with Given ground intimidation directly affects of violence direct conspiratorial conduct

Case Details

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

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Aug 14, 1980

Citation: 623 F.2d 1060

Docket Number: 78-1474

Court Abbreviation: 5th Cir.