Santistevan v. Loveridge , 732 F.2d 116 ( 1984 )

BARRETT, Circuit Judge.

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R. App.P. 34(a); Tenth Circuit R. 10(e). The cause is therefore ordered submitted without oral argument.

Dennis J. Santistevan (Santistevan) and Joseph Herrera (Herrera) appeal from an order of dismissal. At all times relevant hereto, Santistevan and Herrera, Spanishsurnamed American citizens, were employees of the Federal Employment Standards Administration, Department of Labor.

Santistevan and Herrera brought this suit against their supervisors, appellees,' alleging that their supervisors had conspired to interfere with the performance of their duties as federal officers in violation of 42 U.S.C.A. §§ 1985(1), 1985(3) and 1986. Specifically, Santistevan and Herrera alleged that, inter alia: appellee Loveridge, Regional Administrator for the Employment Standards Administration, had made false and coercive accusations against them by stating that they were trying to undermine his (Loveridge’s) position and authority; they were subjected to harassment and intimidation regarding the investigation of an employee under Santistevan’s supervision; Santistevan was threatened by Loveridge with a transfer to Washington, D.C.; Santistevan was reassigned to a position of lower grade, nonsupervisory and nonmerit pay; Santistevan has been the victim of an investigative report in which he was referred to as a racist; when Loveridge was investigated for misuse of travel funds, he accused Herrera of “whistle blowing” and told Herrera he did not trust him and that he (Herrera) had better find another job; appellees had, in the past, ordered that Herrera’s telephone calls be monitored; and Loveridge and others had conducted themselves in such a manner as to create an intimidating, hostile, and offensive working environment, the purpose and effect of which was to unreasonably interfere with Santistevan’s and Herrera’s work performance.

Santistevan and Herrera alleged that as a result of appellees’ actions they had suffered ridicule, humiliation, hatred, severe emotional distress, impairment of their professional reputations, and legal expenses. Santistevan and Herrera each asked for damages of $200,000.00.

Appellees subsequently moved to dismiss, contending that Santistevan’s and Herrera’s complaint failed to state a cause of action under §§ 1985 and 1986 because “there is absolutely no allegation of a racial or other class-based conspiracy” (R., Vol. I at 25) and that the acts complained of were discretionary supervisory acts for which they were entitled to absolute immunity.

Within its order of dismissal the district court found plaintiffs had failed to allege a racial or class-based discriminatory animus which is necessary to state a claim under § 1985(3), citing Lessman v. McCormick, 591 F.2d 605 (10th Cir.1979). In addition, the court found that it was not necessary to reach the question of immunity because § 1985(1) does not give plaintiffs a federal cause of action “for the type of quarreling and backbiting that is alleged in their complaint.” Finally, the court found that because plaintiffs had failed to state a claim under § 1985, their claim under § 1986 must fall as well. (R., Vol. I at 37), citing Campbell v. Amax Coal Co., 610 F.2d 701 (10th Cir.1979).

On appeal Santistevan and Herrera do not challenge the district court’s dismissal of their § 1985(3) complaint. They do contend: (1) that the district court had jurisdiction under § 1985(1); (2) that the appellees are not entitled to the defense of immunity; and (3) that dismissal of their § 1986 claim was in error because a viable § 1985(1) claim was established.

Santistevan and Herrera contend that whereas an allegation of racial or some other kind of invidious discrimination is necessary to establish a cause of action under § 1985(3), such an allegation is not necessary to establish a cause of action under § 1985(1), and that the district court erred in dismissing their § 1985(1) claim. We disagree. § 1985(1) prohibits, inter alia, two or more people from conspiring to prevent by force, intimidation, or threat, any person from holding an office under the United States or from discharging the duties thereof. A viable § 1985(1) cause of action requires allegations of class-based or racial discriminatory animus. Campbell v. Amax Coal Co., supra; Atkins v. Lanning, 556 F.2d 485 (10th Cir.1977). Santistevan’s and Herrera’s complaint did not allege any class-based or racial discriminatory animus. The district court properly found that in the absence of such allegations, a complaint fails to state a claim under § 1985(1).

We further hold that even if Santisteven’s and Herrera’s complaint had alleged class-based or racial discriminatory animus, it would have failed, under the facts herein, to state a claim under § 1985(1). The legislative history ¹ of the Ku Klux Klan Act of 1871, of which § 1985(1) is a part, clearly indicates that the Act was not enacted to develop a forum within the federal courts whereby dissatisfied federal employees could resolve internal personnel problems. This 1871 enactment was intended as an enforcement vehicle for the thirteenth amendment, in that Congress intended to provide black persons equal protection of the laws of the United States and to rectify certain moral and physical inhumanities. The remedial goal was aimed at equal protection of the laws or to equal privileges and immunities under the laws. Congress has enacted other laws to protect federal employees asserting individual interests. See, e.g., 5 U.S.C. § 4301 et seq. (remedies for employees who complain of unfair performance evaluations); Civil Service Reform Act of 1978, 5 U.S.C. § 1101 et seq. (increasing the authority and powers of the Merit Systems Protection Board in processing hearings and appeals affecting federal employees). See also Lawrence v. Acree, 665 F.2d 1319, 1329 (D.C.Cir.1981) (J. Wald, concurring). It is our view that 42 U.S.C. § 1985 was enacted to provide a remedy for deprivation of rights under color of state law and it does not apply when the defendants are acting under color of federal law.

Santistevan’s and Herrera’s allegation that appellees are not entitled to the defense of immunity was not reached by the district court and does not merit our consideration on appeal.

Santistevan and Herrera contend that the dismissal of their § 1986 claim was in error. § 1986 provides a cause of action against “[ejvery person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 ... are about to be committed, and having power to prevent or aid ... neglects or refuses to do so.” Hence, there can be no valid claim under § 1986 of neglect to prevent a known conspiracy, in the absence of a conspiracy under § 1985. Santistevan and Herrera failed to establish a viable § 1985(1) cause of action. Thus, the district court properly dismissed their § 1986 claim on the basis of our decision in Campbell v. Amax Coal Co., supra. See also Lessman v. McCormick, supra; Taylor v. Nichols, 558 F.2d 561 (10th Cir.1977).

AFFIRMED.

1 . For a discussion of the legislative history of the Act, see Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979); Morrell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973); Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).,