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

> Court of Appeals for the Fifth Circuit · June 18, 1981 · 648 F.2d 340

URL: https://www.frixlaw.com/law-library/cases/9467904

## Case

- **Full name:** Versie KIMBLE, Plaintiff-Appellant, v. D. J. McDUFFY, INC. and Industrial Foundation of the South, and All of Its Subscribers, Defendants-Appellees
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** June 18, 1981
- **Citations:** 648 F.2d 340; 1981 U.S. App. LEXIS 12182
- **Precedential status:** Published
- **Opinion:** Concurrence by Clark
- **Judges:** Godbold, Brown, Ainsworth, Clark, Roney, Gee, Tjoflat, Hill, Fay, Vance, Kravitch, Johnson, Garza, Henderson, Reavley, Politz, Hatchett, Anderson, Randall, Tate, Williams
- **Cited by:** 92 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled in part, on other grounds by Kush v. Rutledge, 460 U.S. 719 (1983).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9467904

## How later opinions describe it (automated extraction)

- explaining that the class at issue in that case, persons who had filed worker’s compensation claims or personal injury suits against employers, was not—like classes “based on political beliefs or associations”—“envisioned by the framers of [§ 1985(3)]”
- stating that § 1985(2) "was intended to protect against direct violations of a party or witness's right to attend or testify in federal court"
- stating that alleged retaliation for attempting to file or actually filing a lawsuit is insufficient to state a claim under section 1985(2)
- holding that the first clause of § 1985(2) is, in part, “aimed at retaliations for past federal court attendance or testimony.”

## Opinion text

*349 THOMAS A. CLARK, Circuit Judge,
concurring specially:
I concur in the en banc decision to affirm the judgment of the district court. It is not necessary to hold, as the majority opinion does, that racial or class-based animus is necessary in order to invoke 42 U.S.C. § 1985 (2). This case can be decided under its facts without such an interpretation. Subsection 2 of the Act does not include an equal protection clause as pointed out in the majority opinion, and for this reason one can validly contend that the Supreme Court decision in Griffin v. Breckinridge, 403 U.S. 88 , 91 S.Ct. 1790 , 29 L.Ed.2d 338 (1971), is inapplicable. That case interpreted subsection 3 which does include an equal protection clause.
In the present case the plaintiffs were not refused employment because they attended or testified in federal court. The reason for the non-hire was that plaintiffs had pursued claims against oil companies for injuries related to their employment. The refusal to hire applied whether the claim was in federal court, state court, or a workmen’s compensation -administrative proceeding. Since there was no nexus between the use of the federal courts and the reason for the refusal to hire, plaintiffs’ allegations could not come within 42 U.S.C. § 1985 (2). We have unnecessarily given broad scope to an Act that has no relationship to plaintiffs’ failure to be employed. Thus, while I agree with the en banc court decision, I do not join in the opinion.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9467904. Public record. Not legal advice.