UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
No. 95-2233
ALAN AULSON ET UX. MAUREEN AULSON,
Plaintiffs, Appellants,
v.
CHARLES BLANCHARD, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Selya, Stahl and Lynch,
Circuit Judges.
Gary S. Sackrider for appellants.
Joyce Frank, with whom Michele E. Randazzo and Kopelman and
Paige, P.C. were on brief, for appellees.
April 25, 1996
SELYA, Circuit Judge. This appeal demands that we mull SELYA, Circuit Judge.
the prerequisites for liability under the Ku Klux Klan Act, 42
U.S.C. 1985(3) (1994). We hold that (1) the class-based animus
required to ground a private right of action under the statute
applies to conspiracies allegedly involving public officials in
the same way as it applies to all other conspiracies; and (2) the
requirement is not satisfied where, as here, no sufficiently
defined class appears. Accordingly, we affirm the district
court's dismissal of the action.
I. BACKGROUND I. BACKGROUND
Whether or not it is true that all politics is local,
this case bears witness that local politics, no less than
national politics, can become meanspirited. From 1984 to 1990,
plaintiff-appellant Alan Aulson served as a selectman in
Georgetown, Massachusetts. In his complaint, he alleges that the
defendants (a cadre of elected and appointed municipal
officeholders) are members of an incumbent group of "old guard
politicians" who more or less run things in the town. In
contrast, he is a "member[] of a political group which supports
candidates who oppose the politics of the `old guard.'" The
complaint charges that Aulson paid a stiff price for his
opposition: the members of the old guard collogued against him
and wreaked their vengeance by such nefarious means as conducting
illegal searches pursuant to sham prosecutions. This course of
conduct, he asserts, gives rise to a cause of action under 42
U.S.C. 1985(3).
Aulson originally brought his suit in a state venue.1
Remarking the federal question, the defendants removed it to the
district court and then sought dismissal under Fed. R. Civ. P.
12(b)(6). Despite the plaintiff's objection, the district court
granted the motion to dismiss. This appeal ensued.
II. ANALYSIS II. ANALYSIS
Inasmuch as the trial judge dismissed the complaint for
failure to state an actionable claim, we review his decision de
novo, accepting as true all well-pleaded factual averments and
indulging all reasonable inferences in the plaintiff's favor.
See Leatherman v. Tarrant County N. I. & C. Unit, 507 U.S. 163,
164 (1993); Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49,
52 (1st Cir. 1990). We hasten to add, however, that this
deferential standard does not force an appellate court to swallow
the plaintiff's invective hook, line, and sinker; bald
assertions, unsupportable conclusions, periphrastic
circumlocutions, and the like need not be credited. See Correa-
Martinez, 903 F.2d at 52; Dartmouth Review v. Dartmouth Coll.,
889 F.2d 13, 16 (1st Cir. 1989). It is only when the facts
alleged, if proven, will not justify recovery that an order of
dismissal under Rule 12(b)(6) may stand. See Gooley v. Mobil Oil
Corp., 851 F.2d 513, 514 (1st Cir. 1988).
A A
Section 1985(3) proscribes certain enumerated
1Technically there are two plaintiffs (Aulson and his wife). Since Mrs. Aulson's presence does not affect the legal issues before us, we omit further reference to her.
conspiracies.2 To state a claim under 1985(3) a plaintiff
must allege the existence of (1) a conspiracy, (2) a
conspiratorial purpose to deprive a person or class of persons,
directly or indirectly, of the equal protection of the laws or of
equal privileges and immunities under the laws, (3) an overt act
in furtherance of the conspiracy, and (4) either (a) an injury to
person or property, or (b) a deprivation of a constitutionally
protected right or privilege. See Griffin v. Breckenridge, 403
U.S. 88, 102 (1971). In Griffin, the Supreme Court placed a
gloss on these four elements, effectively adding a fifth
requirement. It construed the statute's references to "equal
protection" and "equal privileges and immunities under the laws"
to signify that a plaintiff may recover thereunder only when the
conspiratorial conduct of which he complains is propelled by
"some racial, or perhaps otherwise class-based, invidiously
discriminatory animus." Id.
B B
This added requirement looms as an insurmountable
obstacle to the plaintiff's attempted embrace of 1985(3). He
seeks to ameliorate this difficulty in two different ways: he
strives first to detour around the obstacle, and, failing, he
then tries to climb over it.
2The statute confers a private right of action for injuries occasioned when "two or more persons . . . conspire . . . 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 . . . ." 42 U.S.C. 1985(3).
1. Public/Private Conspiracies. The plaintiff's 1. Public/Private Conspiracies.
effort to bypass the point entirely centers around his insistence
that the requirement of a class-based discriminatory animus
applies only to wholly private conspiracies (that is,
conspiracies that do not involve public officials acting as
such), and that he need neither allege nor prove a class-based
animus in this action (which is directed at a conspiracy that
allegedly involves public officials doing the public's business).
This gambit has been tried in several other circuits
and has uniformly been found wanting. See Bisbee v. Bey, 39 F.3d
1096, 1102 (10th Cir. 1994), cert. denied, 115 S. Ct. 2577
(1995); Haverstick Enterps., Inc. v. Financial Fed. Credit, Inc.,
32 F.2d 989, 994 (6th Cir. 1994); Gagliardi v. Village of
Pawling, 18 F.3d 188, 194 (2d Cir. 1994); Burrell v. Board of
Trustees of Ga. Military Coll., 970 F.2d 785, 794 (11th Cir.
1992), cert. denied, 507 U.S. 1018 (1993); Munson v. Friske, 754
F.2d 683, 694-95 & n.8 (7th Cir. 1985). Although this court has
never squarely repudiated the gambit, we have on at least two
occasions required (albeit without substantive comment) that a
class-based animus be shown notwithstanding that public officials
were alleged to be active participants in the particular
conspiracies there at issue. See Romero-Barcelo v. Hernandez-
Agosto, 75 F.3d 23, 34 (1st Cir. 1996); Daley v. Town of New
Durham, 733 F.2d 4, 7 (1st Cir. 1984). Thus, following the path
down which the plaintiff beckons not only would set us apart from
our sister circuits but also would undermine our own precedents.
In all events, an unforced reading of 1985(3) affords
no principled basis for distinguishing between public and private
conspiracies. Griffin neither supports nor suggests the
existence of such a distinction, and, at any rate, it is not the
proper province of a federal court to rewrite a statute under the
guise of interpretation. Thus, we decline the plaintiff's
invitation to create by judicial fiat two classes of 1985(3)
conspiracies along a public/private axis.
So ends this phase of our inquiry. To the extent that
we have not previously made the scope of the requirement
explicit, we now hold that to state a claim under 1985(3) in
respect to conspiracies involving public officials, private
actors, or both, plaintiffs must allege that the conduct
complained of resulted from an invidiously discriminatory class-
based animus.
2. Cognizable Classes. The plaintiff next struggles 2. Cognizable Classes.
to surmount the obstacle instead of skirting it. He contends
that he is a member of a class protected by 1985(3), and that he
has alleged as much. His contention does not withstand the
mildest scrutiny.
The complaint is a lengthy, somewhat prolix narrative.
In regard to the class-based animus requirement, however, it
states nothing more than that Alan Aulson and a named confederate
(not a party to the suit) are "representative members" of a
"class" that is composed solely of persons who support candidates
opposed to the politics of the "old guard," and that the
defendants are members of the "old guard." On this skimpy
predicate, the plaintiff posits that the ad hoc "opposition
group" is a class, and that the defendants' supposed animus
against it is class-based within the meaning ascribed to that
adjectival term by the Griffin Court. We do not agree.
We have previously interpreted the Griffin gloss to
denote that plaintiffs must allege facts showing that (1) the
defendants conspired against them because of their membership in
a class, and (2) the criteria defining the class are invidious.
See Hahn v. Sargent, 523 F.3d 461, 469 (1st Cir. 1975), cert.
denied, 425 U.S. 904 (1976); Harrison v. Brooks, 519 F.2d 1358,
1360 (1st Cir. 1975); cf. Bray v. Alexandria Women's Health
Clinic, 506 U.S. 263, 269 (1993) (holding that women seeking
abortions are not a class within the confines of 1985(3));
United Bhd. of Carpenters v. Scott, 463 U.S. 825, 837 (1983)
(holding that a group defined by economic criteria does not
constitute a class for purposes of 1985(3)). The Supreme Court
has not decided whether political differences are invidious
criteria that qualify the classes that they define for the
protection of 1985(3). See Scott, 463 U.S. at 837 (reserving
the question of whether 1985(3) covers more than racially
directed conspiracies); Griffin, 403 U.S. at 102 n.9 (same).
Although other federal courts have divided on this
question, see infra, we have not yet had occasion to lend our
institutional voice to the rising cacophony that surrounds it.
Nor need we do so today. Whether or not political classes are
covered by 1985(3), the particular class that Aulson proposes
does not constitute a cognizable class at all.
The notion of a cognizable class includes two separate
and distinct components. The first component focuses on the
substantive characteristic defining the class, e.g., race or
gender or political affiliation. While it is universally
acknowledged that racial classes are within the ambit of
1985(3), see, e.g., Griffin, 403 U.S. at 102, no such consensus
exists anent political classes. Some courts have concluded that
political classes are within the protective pale of 1985(3)
because reference to political characteristics comprises an
invidious method for subjecting persons to differential
treatment. See, e.g., Conklin v. Lovely, 834 F.2d 543, 549 (6th
Cir. 1987) (holding that 1985(3) may shield a political class);
Keating v. Carey, 706 F.2d 377, 387-88 (2d Cir. 1983) (same);
Perez v. Cucci, 725 F. Supp. 209, 252 (D.N.J. 1989) (same),
aff'd, 898 F.2d 139 (3d Cir. 1990) (table). Other courts have
reached the opposite conclusion. See, e.g., Grimes v. Smith, 776
F.2d 1359, 1366, 67 (7th Cir. 1985) (holding that political
classes are not so protected); Harrison v. KVAT Food Mgmt., Inc.,
766 F.2d 155, 163 (4th Cir. 1985) (same); Morales-Narv ez v.
Rossello, 852 F. Supp. 104, 115 (D.P.R. 1994) (same), aff'd on
other grounds, 65 F.3d 160 (1st Cir. 1995) (table).
The second component, by contrast, focuses not on the
particular defining characteristic of the putative class, but on
whether there is any identifiable class at all. We emphasize
that this inquiry is distinct from the question of whether a
group denominated by a particular characteristic is sheltered
from discrimination by 1985(3). No matter what the alleged
basis for discrimination, the allegation of a "class-based
animus" naturally presumes that there is a specific, identifiable
class against whom the defendants can have discriminated.
Accepting for the sake of argument that political classes enjoy
the prophylaxis of 1985(3), the present plaintiffs nevertheless
stumble over this second prong.
Though there is no comprehensive set of rules for
determining when individuals constitute a class for purposes of
1985(3), there are certain inescapable minimum requirements. For
instance, it is clear that at the very least a class must be more
than just a group of persons who bear the brunt of the same
allegedly tortious behavior. If a class could be defined from
nothing more than a shared characteristic that happened to form
the basis of the defendants' actions, the requirement of class-
based animus would be drained of all meaningful content. Justice
Scalia put the proposition in these terms:
Whatever may be the precise meaning of a "class" for purposes of Griffin's speculative
extension of 1985(3) beyond race, the term unquestionably connotes something more than a group of individuals who share a desire to engage in conduct that the 1985(3) defendant disfavors. Otherwise, innumerable tort plaintiffs would be able to assert causes of action under 1985(3) by simply defining the aggrieved class as those seeking to engage in the activity the defendant has interfered with.
Bray, 506 U.S. at 269.
Our own case law confirms that a class cannot be
defined solely on the basis of harm inflicted. In Creative
Environments, Inc. v. Estabrook, 680 F.2d 822 (1st Cir.), cert.
denied, 459 U.S. 989 (1982), we considered a 1985(3) claim
brought by a developer, alleging that a municipal planning board
discriminated against a class of future homeowners in the course
of rejecting a proposed subdivision. We held that even if the
developer could sue on behalf of this class, no 1985(3) claim
would lie because the class was no more than "an undefined group
of people with unknown income, racial, political and social
characteristics." Id. at 834. The only thing that the members
of this group had in common was that they stood to be
disadvantaged by the defendants' actions. Consequently, the
complaint "failed to identify any definite class which would
satisfy section 1985(3)'s requirement." Id.
The principle that emerges from these cases is that a
class, to be cognizable, must be identifiable by reference to
"something more than . . . [the members'] desire to engage in
conduct that the 1985(3) defendant disfavors." Bray, 506 U.S.
at 269. In other words, the line drawn by the substantive
characteristic must divide individuals into distinct, separate,
and identifiable groups. This means, for example, "white" as
opposed to "non-white," see, e.g., Stevens v. Tillman, 568 F.
Supp. 289, 293 (N.D. Ill. 1983) (holding that whites constitute a
protected class under 1985(3)), "female" as opposed to "male,"
see, e.g., Libertad v. Welch, 53 F.3d 428, 449 (1st Cir. 1995)
(holding that women constitute a protected class under
1985(3)), or, if political classes are includable a matter on
which we do not opine "registered Republicans" as opposed to
other voters, see, e.g., Keating, 706 F.2d at 379 (holding that
Republicans constitute a protected class under 1985(3)).
We hold, therefore, that a class is cognizable for
purposes of 1985(3)'s class-based animus requirement only when
it is comprised of a distinctive and identifiable group. For
this purpose, distinctiveness connotes that a reasonable person
can readily determine by means of an objective criterion or set
of criteria who is a member of the group and who is not. See
Rodgers v. Tolson, 582 F.2d 315, 318 (4th Cir. 1978) (rejecting
alleged class partly because it was "impossible to determine who
besides the [plaintiffs] belong to this class" and because the
plaintiffs had failed to identify "a larger group that could be
objectively identified by an observer"); Bricker v. Crane, 468
F.2d 1228, 1233 (1st Cir. 1972) (noting that a class must be
"readily recognizable" in order to come within the scope of
1985(3)), cert. denied, 410 U.S. 930 (1973).
Measured against this benchmark, the group described by
the plaintiff falls short of qualifying as a cognizable class for
purposes of 1985(3)'s class-based animus requirement. The
plaintiff defines the group only as persons who support other
persons "opposed to the politics of the old guard," and offers
himself and one other former selectmen as "representative
members." As far as anybody can tell, aside from these two
"members" this group is wholly indeterminate. It might include
all the voters in Georgetown, or it might include only voters who
have spoken out against incumbent selectmen, or it might include
only the two individuals featured in the complaint, or it might
include anyone whose inclusion would benefit the plaintiff at any
given time. There is simply no way to characterize this group as
an identifiable segment of the community by reference to any
objective criteria, and, hence, it cannot serve as a cognizable
class within the purview of 1985(3). See Gleason v. McBride,
869 F.2d 688, 695 (2d Cir. 1989) (rejecting class status under
1985(3) when the plaintiff alleged only that he was "a political
opponent of the defendants and was extremely vocal in his
opposition to their management of the [municipality]"); Rodgers,
582 F.2d at 317 (holding that a complaint which alleged
discrimination against a class of persons "in political and
philosophical opposition to" municipal commissioners did not
describe a "cognizable class" and therefore failed to state a
cause of action under 1985(3)).3
The lack of distinctiveness is especially striking in
this case because the proposed class is defined primarily in the
negative; that is, the plaintiff describes the class principally
with reference to what it opposes the old guard rather than
with reference to what it espouses. The ambiguities inherent in
3Concededly, the definition of any political class may face
serious problems in this regard. But cf. Cameron v. Brock, 473
F.2d 608 F.2d 608, 610 (6th Cir. 1973) (holding that "clearly defined" political classes are covered by 1985(3)). We leave those headaches for another day.
this negative definition compound the problem of identifying the
members of the class since there is no way for an objective
observer to identify the members of the other class. They could
be a few of the incumbents, most of the incumbents, all the
incumbents, or some larger aggregation that includes incumbents
and their adherents. To put it bluntly, membership in both the
plaintiff's proposed class and the antagonist class (the old
guard) is, like beauty, almost exclusively in the eye of the
beholder. This is not the stuff of cognizability.
To sum up, the lone criterion that the plaintiff offers
to define the suggested class is opposition to the "politics of
the old guard." This description will not do because it draws no
readily identifiable line. Objectively speaking, a third party
at most can observe that the putative class is comprised of some
(unknown) persons who support some (unknown) political aspirants
who object to some (unknown) aspect of some (unknown) political
views or practices of some other (unknown) persons who have
enjoyed some (unknown) degree of political success in Georgetown
for some (unknown) period of time.
We have said enough on this score. By not alleging
discrimination against a distinctive, readily identifiable class
of persons, the plaintiff has failed to state an actionable claim
under 1985(3). See Gleason, 869 F.2d at 695; Rodgers, 582 F.2d
at 317; see also Wilhelm v. Continental Title Co., 720 F.2d 1173,
1176 (10th Cir. 1983) (affirming dismissal for failure to state a
claim when complaint did not "contain a description of a class of
persons or group that is sufficiently definite or precise to set
against the `class of persons' terminology in 1985(3)"), cert.
denied, 465 U.S. 1103 (1984). Consequently, the lower court did
not err in dismissing the action.
C C
We must attend to a last detail. At one point, the
plaintiff asked the district court for leave to amend the
complaint by naming one or two additional defendants. The court
denied the motion without prejudice to renewal if the case
survived a dispositive motion on behalf of the existing
defendants. The district court subsequently granted the
defendants' motion to dismiss without granting leave to amend.
On appeal, the plaintiff makes an oblique reference in the reply
brief that suggests he should have been given an opportunity to
replead.
We rebuff this suggestion for three reasons. First,
relief from an appellate court, requested for the first time in a
reply brief, is ordinarily denied as a matter of course, see
Sandstrom v. ChemLawn Corp., 904 F.2d 83, 87 (1st Cir. 1990), and
this case fits comfortably within the general rule. Second, to
the extent the request for leave to amend is before this court at
all, the plaintiff has advanced absolutely no developed
argumentation in support of it, and so we deem it to have been
abandoned. See Ryan v. Royal Ins. Co., 916 F.2d 731, 734 (1st
Cir. 1990); United States v. Zannino, 895 F.2d 1, 17 (1st Cir.),
cert. denied, 494 U.S. 1082 (1990). Third, the only amendment
that the plaintiff sought below involved adding defendants a
step that would have done nothing in terms of better defining a
class for purposes of 1985(3). Thus, the proposed amendment
would have been futile and the district court therefore did not
err in neglecting to authorize an amended complaint. See Foman
v. Davis, 371 U.S. 178, 182 (1962); Correa-Martinez, 903 F.2d at
59. Relatedly, if what the plaintiff now has in mind is
something other than adding defendants, he has not so stated,
and, in all events, we find nothing in the record which indicates
that he could possibly delineate a cognizable class and thereby
state an actionable claim under 1985(3). Mindful of these
circumstances, we will not permit the plaintiff to string this
litigation out further by attempting to replead in hopes that he
can resuscitate a case that, by all appearances, is terminal.
See Correa-Martinez, 903 F.2d at 59 (counselling against
"needlessly prolong[ing] matters" when "an amendment would be
futile or would serve no legitimate purpose"); Dartmouth Review,
889 F.2d at 23 (similar).
III. CONCLUSION III. CONCLUSION
We need go no further. Because the district court
appropriately granted the defendants' motion to dismiss without
simultaneously granting leave to amend, the judgment below must
be
Affirmed. Affirmed.