*

Honorable John R. Gibson, Senior U.S. Circuit Judge for the

Eighth Circuit, sitting by designation. 

 1The other defendant is ConAgra, UAP's parent company. 

UAP/GA is the Georgia branch of UAP. 

United States Court of Appeals,

Eleventh Circuit.

No. 95-8871.

Denise CHILDREE, Plaintiff-Appellant,

v.

UAP/GA AG CHEM, INC., et al., Defendants-Appellees.

Aug. 28, 1996.

Appeal from the United States District Court for the Northern

District of Georgia. (No. 1:94-CV-1312-FMH), Frank M. Hull, Judge.

Before CARNES, Circuit Judge, and FAY and GIBSON*

, Senior Circuit

Judges.

CARNES, Circuit Judge:

After more than five years with one of the defendants, UAP/GA

AG CHEM., INC. ("UAP/GA"),1 the plaintiff, Denise Childree, was

terminated from her employment. Her termination occurred

approximately one week after she testified in an administrative

hearing before the Department of Agriculture (the "DOA"), about a

suspected fraudulent billing scheme allegedly used by a customer of

UAP/GA, Varner Bass Enterprises, Inc., to bilk money out of the

United States government. Although Varner Bass, and not UAP/GA,

was a party to the hearing, Childree's testimony was unfavorable to

UAP/GA, also. Her testimony allegedly exposed UAP/GA's assistance

to Varner Bass in its fraudulent scheme against the government.

The question on appeal is whether the district court correctly

granted summary judgment to the defendants, holding that Childree's
termination did not violate the whistleblower protection provision

of the False Claims Act of 1986, 31 U.S.C. § 3730(h), or violate

the Ku Klux Klan Act of 1871, 42 U.S.C. § 1985(3). For the reasons

stated below, we reverse the district court's grant of summary

judgment to the defendants on the whistleblower protection claim,

and affirm the district court's grant of summary judgment to the

defendants on the Klan Act claim.

I. FACTS AND PROCEDURAL HISTORY

 Because we are reviewing the district court's grant of

summary judgment in favor of the defendants, we view the evidence

in the light most favorable to the plaintiff. See, e.g., Flores v.

Carnival Cruise Lines, 47 F.3d 1120, 1122 (11th Cir.1995). Viewed

in that light, the facts are as follows.

While employed by UAP/GA, Childree's job responsibilities

included billing customers. UAP/GA sells fertilizer, seeds, and

other related products to farmers. In June 1989, a representative

for one of UAP/AG's primary customers, Varner Bass, requested that

Childree re-bill certain invoices. The invoices had been billed to

Varner Bass, and its representative requested that they be

re-billed to a number of other individuals, all of whom allegedly

leased land from Varner Bass, but whom Childree believed were

merely subsidiary fronts for Varner Bass. Childree refused to

comply, because she believed the re-billing request was part of an

attempt to defraud the United States government. Varner Bass, and

other farming businesses, receive reimbursement up to a maximum of

$50,000-per-claim from the DOA's Agricultural Stabilization and

Conservation Service ("ASCS") for monies expended in connection
with various farming activities. Childree believed that Varner

Bass's request for the re-billings was an attempt to use subsidiary

fronts to evade the $50,000-per-claim reimbursement ceiling and

thereby illegally obtain excessive payments from the government.

Childree raised her concerns about the re-billing request to

one of UAP/AG's credit managers. He replied, "Who is to say you

wouldn't do it if given the opportunity." Childree next raised her

suspicions to another UAP/AG credit manager, who informed her, in

essence, that the less she knew, the better. Childree then

reported her concerns to two of her supervisors. One of them

directed her to process the re-billings as they had been submitted,

and the other one, Darryl Mathis, apparently said nothing. Despite

her supervisor's directive, Childree refused to process the

re-billings; the re-billing forms sat on Childree's desk until

that supervisor processed them himself.

One month later, in July 1989, Eloise Taylor, a local ASCS

official, visited UAP/GA's office, and met with Childree and

Mathis. Taylor requested verification of the validity of the

re-billings that had been submitted to the ASCS on behalf of Varner

Bass. Mathis told Childree to tell the truth. Childree informed

Taylor that she could not verify the validity of those documents.

Taylor then asked Childree to tell her what was going on, and

Childree did so. Shortly after that meeting, Childree sent Taylor

a written statement, which repeated what Childree had told her in

person. After Taylor's visit, Childree made copies of the

completed re-billing forms, which were still on the counter waiting

to be filed, and took those copies home. Mathis was aware that
 2

See supra n. 1. 

Childree was making copies of the documents, and he told her to do

whatever she had to do to protect herself. Childree says that she

had not planned on using the copies, but wanted to keep them

because they were represented as coming from her office.

Four years later, in June 1993, the DOA subpoenaed Childree to

appear at a hearing before its National Appeals Division (the

"NAD") concerning the alleged fraudulent schemes of Varner Bass and

other farming businesses in conjunction with the ASCS program. The

subpoena required that Childree bring to the hearing all documents,

personal notes, and written statements relating to the 1989 farming

operations of Varner Bass. Childree was reluctant to testify at

the hearing, because she feared she would lose her job if she did.

Nevertheless, on June 24, 1993, under subpoena, she did testify at

the hearing about the Varner Bass re-billings, and about her

attempts to report to her superiors what she believed to be

fraudulent activities in connection with those re-billings. She

also turned over her copies of the Varner Bass re-billing forms.

Gary Callahan, an officer of UAP,2

 attended the DOA hearing.

According to Childree's deposition testimony, during a break in the

hearing, Callahan went into the room where some of the other

witnesses were sequestered and threw a yellow pad on the table.

According to Childree, he said that "these were the issues, that

[Childree] had just blown the whole thing, and [that she] didn't

know how to handle business."

In August 1994, the NAD issued its findings, in which it

concluded that Varner Bass, along with several other farming
operations, had engaged in a scheme designed to evade ASCS payment

limitations. Although UAP/GA was not a party to the NAD hearing,

the NAD stated in its findings that UAP/GA had assisted in and

participated in the scheme.

On July 1, 1993, UAP/GA suspended Childree from her employment

without pay, and on July 9, 1993, terminated her employment.

UAP/GA stated that Childree was being terminated for removing

confidential customer files from the company's premises without

authorization, i.e., the copies of the re-billing forms that she

had taken home in 1989 and produced at the 1993 hearing.

Childree concedes that before her termination, she never

considered bringing a False Claims Act action with regard to the

Varner Bass re-billings, and that in fact, she had never heard of

that Act. She also concedes that the statute of limitations for

bringing such a qui tam action has now run. See 31 U.S.C.A. §

3730(b) (West Supp.1996). In addition, the government has never

brought, threatened to bring, or even considered bringing a False

Claims Act action against UAP/GA or its parent company, ConAgra,

for their role in Varner Bass's fraudulent scheme.

In May 1994, Childree filed this suit against UAP/GA and

ConAgra claiming that: (1) the defendants had violated the

whistleblower protection provision of the False Claims Act of 1986,

31 U.S.C. § 3730(h), by terminating her employment in retaliation

for her actions with regard to the Varner Bass re-billings; (2)

the defendants had violated the Ku Klux Klan Act of 1871, 42 U.S.C.

§ 1985(3), by conspiring to deprive Childree of her right to

testify; and (3) the defendants had intentionally inflicted
 3

The court also denied as moot ConAgra's earlier motion for

summary judgment, in which ConAgra argued that even if UAP/GA was

liable, ConAgra was not liable because it did not employ

Childree. Our disposition of this case requires that we vacate

that denial. 

 4We also vacate the district court's dismissal without

prejudice of Childree's state law claim. That dismissal was

based upon the court's grant of summary judgment in favor of the

defendants on both federal claims. Because we reverse the

district court's grant of summary judgment on the whistleblower

protection claim, the district court on remand should revisit the

matter involving Childree's state law claim. See 28 U.S.C.A. §

1367(a) (West 1993).

In addition, we vacate the district court's denial of

Childree's revised motion for leave to file an amended

complaint. In that motion, Childree had sought to add

additional state law claims and additional defendants. The

court's denial of that motion was based upon its grant of

summary judgment on the federal claims in favor of the

defendants. Because we reverse that judgment insofar as it

concerned the whistleblower protection claim, the district

court will have the opportunity on remand to reconsider

Childree's motion for leave to file an amended complaint. 

emotional distress on Childree in violation of Georgia state law.

In March 1995, the district court granted summary judgment in

favor of the defendants on the whistleblower protection claim and

the Klan Act claim.3

 Having dismissed all of the federal claims,

the court also dismissed without prejudice the state law claim. 4

Childree appeals.

II. DISCUSSION

A. THE WHISTLEBLOWER PROTECTION CLAIM, § 3730(h)

The district court granted summary judgment to the defendants

on the whistleblower protection claim, because it concluded that

Childree's conduct was not covered by the whistleblower protection

provision of the False Claims Act of 1986. That provision states,

in pertinent part:

Any employee who is discharged, demoted, suspended,
 5

Subsection (a) deals with actions brought by the government

for false claims, and subsection (b) deals with qui tam actions

brought by private litigants. 

threatened, harassed, or in any other manner discriminated

against in the terms and conditions of employment by his or

her employer because of lawful acts done by the employee on

behalf of the employee or others in furtherance of an action

under this section, including investigation for, initiation

of, testimony for, or assistance in an action filed or to be

filed under this section, shall be entitled to all relief

necessary to make the employee whole.

31 U.S.C.A. § 3730(h) (West Supp.1996).

The district court stated that Childree, "at a minimum, must

show some nexus between her conduct and the furtherance of a

potential False Claims Act action." The court stated that Childree

had failed to demonstrate that nexus because there was no

"potential False Claims Act action" in any way related to her

conduct. Neither Childree nor the government had filed, or had

ever intended to file, such an action. To the contrary, the

district court found that the government had chosen to pursue the

administrative route in lieu of filing a False Claims Act action.

The court noted that the DOA administrative hearing was not an

"action" contemplated by § 3730(h), and therefore did not put

Childree's conduct within the provision's protection. It held that

"action" means a False Claims Act action under either 31 U.S.C. §

3730(a) or (b).5

The district court also said that Childree had "never

performed any affirmative act to expose any alleged fraud."

Instead, it found that she simply had responded to questions asked

of her by the ASCS investigator and by the DOA during the NAD

hearing. By Childree's own admission, she had only reluctantly
participated in that hearing.

Childree, and the United States as amicus curiae, contend that

the district court erred in granting summary judgment to the

defendants on the whistleblower protection claim. Although they

concede that the administrative hearing was not an "action" as

contemplated by § 3730(h), they still contend that Childree was

protected because she "assist[ed] in an action ... to be filed

under [§ 3730(h) ]." See 31 U.S.C.A. § 3730(h) (West Supp.1996)

(emphasis added). They argue that the district court lost sight of

the central question in a § 3730(h) claim, which they contend is

whether the employer intended to retaliate against the employee

because of the false claims information that the employee provided

to the government. According to them, the "to be filed" language

of § 3730(h) does not mean, as the district court held, that such

an action ever has to be actually filed, or even contemplated.

Such a "retrospective" interpretation, they contend, does not

comport with the plain language of that provision, and would lead

to nonsensical results. For example, they point out that under

that interpretation, an employee who provided information to the

government about her employer's fraud would not be protected if the

government settled with the employer before filing a false claims

action.

Childree and the government argue that "to be filed" means

whether an action "could" have been filed. They contend that that

broad interpretation of the provision fits with the provision's

language and purpose. They argue that § 3730(h) was intended to

encourage employees to bring information to the government about
false claims against it, without fear of retaliation. See Neal v.

Honeywell, Inc., 33 F.3d 860, 861 (7th Cir.1994) ("Section 3730(h),

added to the False Claims Act in 1986, is designed to protect

persons who assist the discovery and prosecution of fraud and thus

to improve the federal government's prospects of deterring and

redressing crime."). Because an employee who brings such

information to the attention of the government may not know whether

a false claims action can or will be filed, it is doubtful that

under the "retrospective" construction of "to be filed" the

employee would feel sufficiently protected from retaliation to turn

the information over to the government. Or so the argument goes.

Childree and the government urge us to follow the Seventh

Circuit's decision in Neal v. Honeywell, Inc., which held that §

3730(h) applied to an employee who indirectly had provided false

claims information to the government, 33 F.3d at 864, even though

in that case a false claims action was never filed, id. at 861.

After concluding that co-workers were defrauding the government by

falsifying company data reports, the plaintiff in Neal informed her

employer's legal counsel of the fraud, and the counsel immediately

notified the government. Id. at 861. The government commenced an

investigation, the results of which convinced the employer that the

plaintiff's accusations were correct. Id. The employer and the

government settled for $2.5 million, and no false claims action was

ever filed. Id.

The Neal plaintiff's immediate supervisors allegedly were

displeased with her honesty and began to harass as well as

physically threaten her. She quit, and several years later, filed
 6

Besides Neal, only one other court of appeals has addressed

§ 3730(h). That case, Robertson v. Bell Helicopter Textron,

Inc., 32 F.3d 948 (5th Cir.1994), cert. denied, --- U.S. ----,

115 S.Ct. 1110, 130 L.Ed.2d 1075 (1995), involved a situation

quite different from the present one, and for that reason, it is

not particularly useful for present purposes. Although the

Robertson plaintiff had voiced concerns to his superiors that his

employer might be overcharging the government, id. at 949-50, he

had never referred to the overcharging as illegal or unlawful,

a suit under § 3730(h). Id. The employer argued that because the

government settled rather than sued, § 3730(h) was inapplicable.

The Seventh Circuit disagreed, and held that the plain language of

§ 3730(h) supported the plaintiff's claim, id. at 863-64, reasoning

that "[i]t makes both linguistic and practical sense to understand

the actual "filed or to be filed' formulation as linking protection

to events as they were understood at the time of the investigation

or report," id. at 864. The court went on to conclude that because

litigation was a distinct possibility when the plaintiff reported

what she had learned, she was entitled to protection under §

3730(h).

The court recognized that one could argue, as the employer

did, that the "to be filed" language is intended simply to ensure

that "the employer may not retaliate for reports made before the

litigation gets under way." Id. Even so, the court concluded that

such a construction of the provision was inferior to the court's,

because it would lead to the conclusion that by immediately

settling with the government—and thus ensuring that a suit was

never filed—the employer had "purchase[d] an option to retaliate

against [the plaintiff]." Id. The court found that scenario to be

unacceptable, and noted that there was nothing in the language or

background of § 3730(h) to support such an outcome. Id.6
id. at 951 & n. 2. He had never voiced an intention to file a

qui tam action under § 3730(b), nor had he ever spoken to

government officials about the alleged overcharging. Id. at 952. 

However, when he was laid off as part of a general workforce

reduction, he brought suit against his employer under § 3730(h)

claiming unlawful retaliation.

The Fifth Circuit held that § 3730(h) did not protect

the plaintiff because there was insufficient evidence that

he had furthered or assisted in any "action," and also

because there was insufficient evidence that his employer

was aware that the plaintiff was investigating the

overcharging. 

 We agree with the Neal court that the "to be filed" language

does not require that a False Claims Act action ever have been

filed. We are bound to follow the plain language of a statute,

see, e.g., Scarborough v. Office of Personnel Management, 723 F.2d

801, 813 (11th Cir.1984), and there is nothing about the plain

language of "to be filed" that suggests such a narrow

interpretation. Moreover, as the Seventh Circuit pointed out in

Neal, a retrospective test which furnished no protection unless an

action was eventually filed would preclude protection in every case

where the evidence of wrongdoing was so compelling that the

employer settled before an action was filed. 33 F.3d at 864. We

join the Seventh Circuit in disbelieving that Congress intended

such a result, and we join it in holding that § 3730(h) protection

is available not only where a false claims action is actually

filed, but also where the filing of such an action, by either the

employee or the government, was "a distinct possibility" at the

time the assistance was rendered.

 We recognize that there will be cases, such as this one, in

which the employee was apparently unaware of the existence of the

False Claim Act in general, and § 3730(h) in particular, at the
time the employee acted. There is some force to the argument that

a provision cannot encourage acts by offering to protect the actor

where the actor is unaware of the provision and the offered

protection. However, nothing in the language of § 3730 suggests

that its protections are limited to those who were motivated by it.

The provision contains no knowledge requirement, and we will not

read one into it.

 We turn now to an application of the distinct possibility

test to the facts of this case viewed in the light most favorable

to Childree, the non-movant. Childree concedes that she never even

considered filing a § 3730(b) qui tam action, so it is obvious that

such an action was never a distinct possibility. The question,

then, is whether the government's filing a § 3730(a) action was a

distinct possibility at the time Childree rendered her assistance.

We think that summary judgment should not have been granted against

Childree on this issue. Viewing the facts in Childree's favor, in

July 1989, she provided extensive information about her employer's

fraudulent re-billings to Taylor, the ASCS official who visited

UAP/GA's office. Several years later, at the NAD hearing, Childree

again provided the information about her employer's fraudulent

re-billings to the DOA. Based upon Childree's testimony, the DOA

found that "Cook [a Varner Bass representative] and UAP/GA Ag.

Chem. created documentation to create an appearance that crop

inputs used on the farming operations ... were separately ordered,

delivered, used and paid for by the persons in whose names the

accounts were later established." Moreover, the DOA concluded that

"[o]ne of the most egregious examples of falsifying documents, in
addition to the false leases, involved Cook and UAP/GA Ag. Chem."

If those asserted facts, and Childree's deposition testimony

about the re-billings, are ultimately determined to be true, then

a § 3730(a) action was a distinct possibility at the time Childree

rendered her assistance. Therefore, summary judgment should not

have been granted in favor of the defendants. Accordingly, we

reverse that judgment and remand to the district court for further

proceedings consistent with this opinion.

B. THE KU KLUX KLAN ACT CLAIM, § 1985(3)

 The district court also granted summary judgment in favor of

the defendants on Childree's Ku Klux Klan Act of 1871 claim, 42

U.S.C. § 1985(3). The elements of a cause of action under §

1985(3) are: (1) a conspiracy, (2) for the purpose of depriving,

either directly or indirectly, any person or class of persons of

the equal protection of the laws, or of equal privileges and

immunities under the laws; and (3) an act in furtherance of the

conspiracy, (4) whereby a person is either injured in his person or

property or deprived of any right or privilege of a citizen of the

United States. Lucero v. Operation Rescue, 954 F.2d 624, 627 (11th

Cir.1992). The second element "requires a showing of some "racial,

or perhaps otherwise class-based, invidiously discriminatory animus

behind the conspirators' action.' " Id. at 628 (quoting United

Bhd. of Carpenters & Joiners of Am., Local 610 v. Scott, 463 U.S.

825, 829, 103 S.Ct. 3352, 3356, 77 L.Ed.2d 1049 (1983)); see also

Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 269, 113

S.Ct. 753, 759, 122 L.Ed.2d 34 (1993) (holding that whatever the

precise meaning of "class" may be, it "unquestionably connotes
something more than a group of individuals who share a desire to

engage in conduct that the § 1985(3) defendant disfavors.").

The district court held that Childree failed to establish the

second element of her Klan Act claim, explaining that:

Even assuming Section 1985(3) can be applied in some

non-racial contexts, this Court finds that Plaintiff, as an

alleged whistle-blower, is not a victim of some "otherwise

class-based invidiously discriminatory animus.' The Court

finds that "whistle-blowers' instead merely fall within Bray's

"group of individuals who share a desire to engage in conduct

the Section 1985(3) defendant disfavors.'

We agree. Although this Court has never addressed specifically

whether whistleblowers are a protected class under § 1985(3), we

repeatedly have declined to extend that section to apply in

non-racial contexts. See, e.g., Lucero, 954 F.2d at 628 (refusing

to apply § 1985(3) to protect women seeking abortions as a class);

McLellan v. Mississippi Power & Light Co., 545 F.2d 919, 933 (5th

Cir.1977) (en banc) (refusing to apply § 1985(3) to protect

bankrupts as a class); cf. Burrell v. Board of Trustees of Ga.

Military College, 970 F.2d 785, 794 (11th Cir.1992) (noting that §

1985(3)'s "narrow intent requirement erects a significant hurdle

for section 1985(3) plaintiffs."), cert. denied, 507 U.S. 1018, 113

S.Ct. 1814, 123 L.Ed.2d 445 (1993). To the best of our knowledge,

no circuit court has ever held that whistleblowers are a protected

class under § 1985(3), and some have expressly declined to do so.

See, e.g., Garrie v. James L. Gray, Inc., 912 F.2d 808, 813 (5th

Cir.1990) (declining to extend § 1985(3) protection to

whistleblowers), cert. denied, 499 U.S. 907, 111 S.Ct. 1108, 113

L.Ed.2d 218 (1991); Buschi v. Kirven, 775 F.2d 1240, 1258 (4th

Cir.1985) (same). Indeed only one district court of which we are
aware has interpreted § 1985(3) to extend to whistleblowers. See

Lapin v. Taylor, 475 F.Supp. 446 (D.Haw.1979).

 We decline to apply § 1985(3) to protect whistleblowers as a

class. Two types of classes come within § 1985(3)'s protection:

(1) classes having common characteristics of an inherent

nature—i.e., those kinds of classes offered special protection

under the equal protection clause, and (2) classes that Congress

was trying to protect when it enacted the Ku Klux Klan Act. Kimble

v. D.J. McDuffy, Inc., 648 F.2d 340, 347 (5th Cir.) (en banc),

cert. denied, 454 U.S. 1110, 102 S.Ct. 687, 70 L.Ed.2d 651 (1981).

Whistleblowers simply do not fall under either type of class. See,

e.g., McLellan, 545 F.2d at 932-33. The broad construction of §

1985(3) that Childree requests is inconsistent with the history and

purpose of that provision, with our previous readings of it, and

with the better reasoned precedent on the issue. Accordingly, we

hold that the district court properly granted summary judgment to

the defendants on the § 1985(3) claim.

III. CONCLUSION

We AFFIRM the district court's grant of summary judgment on

the Ku Klux Klan Act claim in favor of the defendants. We REVERSE

the district court's grant of summary judgment in favor of the

defendants on the whistleblower protection claim. We VACATE: the

district court's denial of Childree's revised motion for leave to

file an amended complaint; the court's denial as moot of ConAgra's

motion seeking summary judgment on the grounds that it did not

employ Childree; and the court's dismissal without prejudice of

Childree's state law claim. We REMAND the case for further
proceedings consistent with this opinion.