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

SAM D. JOHNSON, Circuit Judge,

with whom

VANCE, KRAVITCH, POLITZ, HATCHETT, ANDERSON and TATE, Circuit Judges, join, dissenting in part and concurring in part:

This writer respectfully dissents from that portion of the panel decision that the en banc Court disturbs. This concurrence extends only to that part of the panel opinion that the en banc Court leaves intact.

Facts

Plaintiff Versie Kimble and the class he represents are oil industry workers who resorted to state and federal courts or workmen’s compensation boards for redress of physical injuries. This, of course, was their legal right. For a fee, the Industrial Foundation of the South furnishes oil industry employers with a laborer’s record of claims filed against companies in the oil industry for employment injuries.

The plaintiff here, Versie Kimble, sustained in injury in 1969 while working for a drilling company, filed suit for damages in the federal district court, and obtained a $25,000 jury verdict. In 1972, Kimble began working for the defendant McDuffy. Some months later, McDuffy fired Kimble upon learning of Kimble’s prior suit. Kimble sought work from other companies here named as co-defendants, but was unable to obtain employment. It was not until later that Kimble learned that the Industrial Foundation of the South was collecting information concerning personal injury claims and disseminating it.

With the information supplied by the Industrial Foundation, the oil industry employers allegedly discharged current employees or refused to hire prospective employees. Of course, blacklisting has a direct and substantial impact on these working men and women — the very real hardship of being thrown out of work or being unable to find employment for doing nothing more than pursuing their rightful remedies.

Plaintiffs turned to 42 U.S.C.A. § 1985 (2), to fight this blacklisting by employers. Accepting plaintiffs’ alleged facts as true, the district judge granted summary judgment for defendants. 445 F.Supp. 269 (E.D.La. 1978). A panel of the Fifth Circuit affirmed the district court on all but one of the grounds. 623 F.2d 1060 (5th Cir. 1980). The panel majority held that section 1985(2), clause B, contained a remedy for the blacklisting of federal court plaintiffs. It is this partial reversal that the en banc Court has addressed.

The Inapplicability of Griffin

In Griffin v. Breckenridge, 403 U.S. 88 , 91 S.Ct. 1790 , 29 L.Ed.2d 338 (1971), the Supreme Court held that there must be some racial or otherwise class-based invidiously *350 discriminatory motivation for a private conspiracy to be actionable under the equal protection language of section 1985(3). The panel majority held that this equal protection test applied only to equal protection cases — suits invoking the equal protection clause of section 1985(3), as in Griffin , or invoking section 1985(2), clauses C or D, which also contain equal protection language. Clauses A and B of section 1985(2), on the other hand, contain no equal protection language. The panel dissent conceded the inapplicability of Griffin’s invidiously discriminatory animus requirement to this case and relied on Griffin only as authority to narrowly interpret section 1985(2). 623 F.2d at 1072 . However, the en banc majority here holds that there must also be an invidiously discriminatory animus for private conspiracies to be actionable under clause B of section 1985(2). A brief review of the source, structure, and purpose of section 1985(2) demonstrates the error of this holding.

Section 1985(2) is derived from section 2 of the Ku Klux Klan Act of 1871. The Klan Act was induced by massive and frequently violent resistance in the Southern states to federal reconstruction and the inability or unwillingness of state governments to deal effectively with the violence. Stem v. United States Gypsum, Inc., 547 F.2d 1329, 1334 (7th Cir.), cert. denied, 434 U.S. 975 , 98 S.Ct. 533 , 54 L.Ed.2d 467 (1977). Racial equality and protection of civil rights were not the only reasons for enactment of the Klan Act, however. A major concern was restoration of civil authority and preservation of orderly government, including federal court ability to proceed without improper interference. McCord v. Bailey, 636 F.2d 606, 615 (D.C.Cir.1980), cert. filed, 49 U.S.L.W. 3532 (Jan. 13, 1981).

Accordingly, the first part of section 1985(2), clauses A and B, prohibits conspiracies to interfere with the integrity of the federal judicial system. Clause A is in pertinent part concerned with efforts to deter future attendance or testimony in federal court, while Clause B is in pertinent part aimed at retaliations for past federal court attendance or testimony. The second part, clauses C and D, concerns conspiracies in relation to state courts. Clause C deals with efforts to obstruct the future course of justice in state courts with the intent to deny equal protections of the laws. Clause D is aimed at retaliations for past efforts to enforce the right to equal protection of the laws.

The absence of equal protection language in the first part of section 1985(2), 1 and the presence of equal protection language in section 1985(3) and in the second part of section 1985(2), indicates that Congress knew how to impose the equal protection limitation when it was so intended. See Stern, 547 F.2d at 1340 . From this it must be concluded that Congress intentionally limited conspiracies in relation to state courts to those conspiracies aimed at depriving persons of equal protection of the laws, but did not so intend with regard to conspiracies to interfere with federal courts. See McCord, 636 F.2d at 615 . Why is the first part of section 1985(2) so different from section 1985(3) and the second part of section 1985(2)?

Concerns about the constitutional scope of congressional power under the thirteenth and fourteenth amendments moved Con *351 gress to limit federal Klan Act jurisdiction over state torts or crimes. Congress eliminated the original provisions authorizing general federal enforcement of common law crimes and inserted the requirement of a conspiratorial motivation to deny equal protection of the laws. Federal jurisdiction thus encompassed those state law violations, such as obstruction of justice in state courts, that also injured the fourteenth amendment interest in promoting racial equality and protecting civil rights. Otherwise, a conspiracy to commit simple assault and battery might become actionable under federal question jurisdiction. No such limitations are required, however, for protection of the federal interest in the integrity of the federal judicial system and the due process right of participation in the federal court system. See McCord, 636 F.2d at 615-17 .

The en banc majority ignores this distinction between state and federal jurisdiction. The en banc majority states that the Supreme Court in Griffin did not arrive at its conclusion that section 1985(3) required a racial or class-based discriminatory animus through a “hypertechnical analysis of the structure and grammar of the section.” Instead, the en banc majority explains, the Supreme Court reached the conclusion that Congress did not intend to create a general federal tort law by examining the overall purpose of Congress in passing the Klan Act. Consequently, the en banc majority asserts, the Supreme Court concluded that Congress intended the Act to apply only in cases where there was a racial or class-based animus. On this reasoning, the en banc majority applies the Griffin holding to the Act in its entirety; if required by section 1985(3), a racial or class-based animus is in the en banc majority’s view required by section 1985(2) as well.

This reasoning misconstrues Griffin . In Griffin the plaintiffs invoked section 1985(3)’s equal protection clause. To avoid the unintended creation of a general federal tort law, the Court held that as an element of a cause of action, there must be a racial, or other class-based, invidiously discriminatory conspiratorial animus. 403 U.S. at 102 , 91 S.Ct. at 1798 . The Supreme Court expressly relied on the equal protection language in section 1985(3) when it pronounced its holding: “The language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.” Id. (emphasis in original).

Indeed, the Court was construing only the portion of section 1985(3) that prohibits conspiracies to deprive persons of equal protection of the laws. Section 1985(3) also prohibits conspiracies to prevent any voter from giving his support to or advocacy for any candidate for a federal political office. Consistent with the maxim that the conspiratorial motivation must be delineated in accordance with the purposes of the civil rights conspiracy statute, a suit predicated on section 1985(3)’s political rights clause requires a conspiratorial animus to deny others their federal political rights. See generally Paynes v. Lee, 377 F.2d 61, 63-64 (5th Cir. 1967). Therefore, a suit predicated on clause B of section 1985(2) requires a conspiratorial motivation to retaliate for the exercise of the due process right to utilize and participate in the federal court system. 2 Griffin was expressly an interpre *352 tation of section 1985(3)’s equal protection clause and no more.

As judicial support for applying an equal protection test to the first part of section 1985(2), the en banc majority cites Fifth Circuit cases requiring a racial or class-based animus for suits brought under the second part of section 1985(2). Because the second part expressly contains an equal protection animus requirement, there is nothing surprising about these holdings. Such holdings, of course, say nothing about what is required for the first part of section 1985(2). The only case cited by the en banc majority as direct support for its theory is Jones v. United States, 401 F.Supp. 168, 172-74 (E.D.Ark.1975), aff’d, 536 F.2d 269, 271 (8th Cir. 1976), cert. denied, 429 U.S. 1039 , 97 S.Ct. 735 , 50 L.Ed.2d 750 (1977). The district court there reasoned, as does the en banc majority here, that the Griffin racial or class-based animus requirement applies to the first part of section 1985(2) because the equal protection limitation was allegedly intended to limit the entire Ku Klux Klan Act. The cases cited by the district court in support of its position, however, were all presented with a claim cognizable only under the second part of section 1985(2). Although the Eighth Circuit affirmed the district court, it addressed this question with only three brief sentences. Such a summary affirmance is not compellingly persuasive reasoning by a sister circuit.

In fact, the case authority is contrary to the en banc majority’s position here. In a pre-Griffin case, this Circuit held that employment retaliation against a labor union member for having appeared and testified before the National Labor Relations Board and a state court could have been within section 1985(2), clause B, except that neither the NLRB nor the state court was a “court of the United States” within the meaning of the statute. Seeley v. Brotherhood of Painters, Decorators & Paper Hangers of America, 308 F.2d 52, 58 (5th Cir. 1962). Cases decided after Griffin have also rejected the theory that a racial or class-based animus requirement applies to the first part of section 1985(2).

For example, in Drawer v. Horowitz, 535 F.2d 830, 840 (3d Cir. 1976), the Third Circuit expressly held that only the second part of section 1985(2), and not the first part, requires a class-based, invidiously discriminatory animus. The federal nexus that the first part of section 1985(2) requires is only a connection between the proscribed activities and a federal court. Id. More recently, McCord v. Bailey, 636 F.2d 606, 614-17 (D.C.Cir.1980), cert. filed, 49 U.S.L.W. 3532 (Jan. 13, 1981), also held *353 that the Griffin invidiously discriminatory animus requirement was inapplicable to the first part of section 1985(2) since that part did not contain equal protection language. McCord also expressly rejected the notion that such a requirement was necessarily implied in the first part of section 1985(2), to avoid the constitutional shoals of creating a general federal tort law, because there could be no problem of limitations on Congress’ power with regard to protection of the federal interest in its judicial process. 3

The en banc majority opinion reflects a concern that recognition of a cause of action under clause B of section 1985(2) in this case would create a general federal tort remedy, for an employer’s economic use of public information relating to the filing of federal lawsuits, in contravention of the constitutional concerns enunciated by Griffin . To avoid the constitutional shoals of federalizing state tort law, the en banc majority would limit all section 1985 actions by requiring a racial or class-based conspiratorial animus. It makes little sense, however, 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 constitutional shoals of a general federal tort law are more properly avoided by delineating the conspiratorial animus for a conspiracy under clause B of section 1985(2) to the statutory purpose of protecting the integrity of the federal court system. This can be accomplished by simply requiring a conspiratorial animus to injuriously retaliate against a party or witness for having attended or testified in federal court. Recognizing a cause of action for such a conspiracy carries with it no potential for federalizing state tort law since the due process right to utilize and participate in the federal court system is solely a federal right.

In short, the en banc majority’s position violates the language of the statute as well as the holding of Griffin . I therefore dissent from the en banc majority’s holding that clause B of section 1985(2) requires a racial or class-based invidiously discriminatory conspiratorial animus.

The Meaning of “Attended”

Because the plaintiffs failed to allege “attended or testified” in their pleading, the district court held that plaintiffs failed to state a cause of action. The panel rejected such a literal approach to construing the plaintiffs’ pleading and held that the filing of a federal lawsuit is sufficient participation in the federal judicial system to constitute attendance within the meaning of the words “attended or testified” in clause B of section 1985(2). In affirming the district court, the en banc majority purports to give “attend” its plain dictionary meaning — to be present at. The en banc majority then relies on the existence of violence during the Reconstruction to restrict that presence to physical presence. Although the en banc majority opinion does not expressly limit this physical presence to the trial phase, this meaning of attend can be gleaned from the en banc majority’s refusal to include the filing of a federal lawsuit within the meaning of “attend.” Such a reading, however, is much too narrow.

The dictionary does not limit the definition of attend to physical presence. Webster’s Third New International Dictionary 140 (1976). Inherent in the very concept of legal representation is the notion that a party is present in federal court through his *354 chosen representative. 4 For example, the legal definition of “appearance” is a coming into court as party to a suit, either in person or by attorney, whether as plaintiff or defendant. Black’s Law Dictionary 89 (5th ed. 1979).

It is true that, as the en banc majority opinion notes, “[pjassage 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.’ ” 5 However, physical violence was also available against those who simply filed federal civil rights suits during the Reconstruction, whether filed in person or through an attorney. Even if physical presence were the touchstone, does not a party attend a federal court when he or she personally hand delivers the complaint to the court clerk? Not only can one be physically present at the filing of the lawsuit, but also at, say, a pre-trial conference, a temporary restraining order hearing, and many other pre-trial activities. And when the Klan Act was enacted, the pro se filing of federal suits was more likely. In any event, letting the scope of the statutory protection turn on whether the suit is filed by the party or his attorney seems quite arbitrary.

A functional approach is preferable here. The congressional objective is evident from the face of the statute itself. Its manifest purpose is to protect the sanctity and integrity of the federal judicial process and the ability of all to participate freely therein so that justice will not be obstructed or miscarried. It makes little sense to limit the protection of the first half of section 1985(2) merely to presence at the trial phase of the litigation. Justice does not start on the day of trial. In fact, the filing of the lawsuit is a necessary antecedent for the parties and witnesses to testify. The en banc majority’s conception would preclude federal plaintiffs at the outset from having the opportunity to testify. The statute should protect a person who participates in the federal system of justice either personally or through an attorney — from the filing of a complaint to settlement or execution of judgment. A functional approach should be preferred over a literal, restrictive, narrow approach to the interpretation of the meaning of “attend.” The functional approach seems truer to the congressional purpose of the statute and avoids the impracticality of deciding at what point in the litigation the statutory protections attach.

In support of narrowly interpreting “attend,” the en banc majority relies on Griffin . That case, however, did not endorse the imposition of judicial limitations on section 1985 suits. Griffin clearly stated that the sweep of section 1985 is as broad as its language. 403 U.S. at 97 , 91 S.Ct. at 1795 . Furthermore, Griffin assured the existence of a section 1985(3) cause of action against private conspiracies. It did not impose a limit on section 1985(3), but merely recognized and gave effect to section 1985(3)’s own self-proclaimed limitations.

Under the functional approach, the only plaintiffs in this case that would come within the protection of clause B of section 1985(2) are those who filed claims in federal court. This includes plaintiff Kimble, but excludes those members of the class who filed claims in state courts or with state and federal workmen’s compensation boards. Since blacklisting is just one form of retaliation, and the loss or denial of employment is an injury to property, Kimble and those like him should possess a cause of action under clause B. Of course, whether they could prove up their claims should have been a matter for the merits on remand. Conclusion

Accordingly, this writer stands by the panel majority’s opinion. Griffin requires *355 only an injuriously retaliatory animus, not an invidiously discriminatory animus, for the conspiracy in this ease. To include filing suit within the meaning of “attend” is both reasonable and practical. And it poses no danger of federalizing state tort law. I therefore dissent.

. It is important to note that the division of section 1985(2) into four independent clauses does not artificially separate the first part from the equal protection language found only in the second part. Section 2 of the Ku Klux Klan Act, which is reprinted in note 5 of the majority opinion, reveals this. The respective clauses from which clauses A and B of section 1985(2) are derived contain no equal protection language, and the respective clauses in section 2 from which clauses C and D of section 1985(2) are derived each requires an equal protection denial purpose or intent for the conspiracy. Section 1985(3) in pertinent part prohibits private conspiracies to deprive others of equal protection of the laws. The clause in section 2 of the Klan Act of 1871 from which the equal protection clause of section 1985(3) is derived also requires an equal protection denial purpose for that conspiracy. See also Brawer v. Horowitz, 535 F.2d 830, 837-39 (3d Cir. 1976), which notes that there was no substantive change in the statutory schema between the 1871 Act and the 1874 consolidation of federal laws into the Revised Statutes. Certainly, the equal protection limitation is a substantive one.

. In support of the holding that the Griffin discriminatory animus requirement applies to all of the Klan Act, the en banc majority cites the formal title of the Ku Klux Klan Act itself: “An Act to Enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States and for Other Purposes.” Without delving into the prudency of reliance on titles to statutes, it is sufficient to note that “Other Purposes” is broad enough to encompass the congressional purpose of protecting the sanctity of the federal judicial process. See generally McCord, 636 F.2d at 617 ; Stern, 547 F.2d at 1341 n.18; Paynes, 377 F.2d at 63-64 .

The majority points out that the class-based animus requirement is not the same as the test for whether a class-based distinction is actionable under the equal protection clause of the fourteenth amendment. This observation is of course correct since the Supreme Court in Griffin referred to a “racial, or perhaps other invidiously discriminatory animus.” 403 U.S. at *352 102 , 91 S.Ct. at 1798 (emphasis added). The fourteenth amendment’s equal protection clause reaches much more than invidious discrimination. Therefore, the scope of actionable discrimination under the equal protection clauses of § 1985(2) and (3) is much narrower than that under the fourteenth amendment’s equal protection clause.

The majority, however, concludes that the narrower test for the equal protection clauses of § 1985(2) and (3) is not simply invidious discrimination. Instead, the majority state's that all of § 1985 was intended to include only those conspiracies motivated by an animus against the kinds of classes Congress was trying to protect with the enactment of the Klan Act. The majority gives as its example conspiracies against Republicans, noting that distinctions based on affiliation with a major political party are not among those traditionally subject to special scrutiny under the fourteenth amendment. Discrimination on the basis of political association, however, is in fact within strict scrutiny as constitutionally suspect under the first and fourteenth amendments and under the equal protection clause of the fourteenth amendment unless essential to serve a compelling state interest. See Riddell v. National Democratic Party, 508 F.2d 770, 776 (5th Cir. 1975). Discrimination against Republicans would also be actionable under the political rights clause of § 1985(3). Conspiracies against workers who file personal injury or workman’s compensation claims are probably not actionable under the equal protection clauses of § 1985(2) and (3). See Scott v. Moore, 640 F.2d 708, 718-24 (5th Cir. 1981). That issue is not present in this case, however, if the class-based discriminatory animus requirement does not apply to the first half of § 1985(2). Again, whatever may have been the congressional intent with respect to the equal protection clauses, it is inappropriate to carry that intent over to other areas of the statute that neither contain nor need the limitation of an equal protection test.

. Id. at 617. See also Stern, 547 F.2d at 1341 n.18, which noted that the first part of § 1985(2) is aimed at protecting the sanctity of federal court proceedings and could be sustained without reference to or nexus with the thirteenth and fourteenth amendments.

Stem held that the Griffin invidiously discriminatory animus requirement is inapplicable to § 1985(1) because of its lack of any equal protection language. In dicta, Stern noted that while the Griffin discriminatory animus requirement would apply to the second part of § 1985(2) because of the equal protection language present there, the very absence of that language in the first part of § 1985(2) precludes *354 application of the Griffin requirement to that portion.

. Indeed, in the eyes of the law the agent is considered as standing in the place of the principal, and an attorney is an agent or substitute for the client. Black’s Law Dictionary 59, 117, 807, 1170 (defining “agent,” “attorney,” “legal representative,” “representation of persons,” and “representative”).

. 648 F.2d at 348, quoting Comment, A Construction of Section 1985(c) in Light of Its Original Purpose, 46 U.Chi.L.Rev. 402, 405 (1979).