James H. McLellan v. Mississippi Power & Light Company, International Brotherhood of Electricalworkers, Local 605 Electrical Workers

545 F.2d 919, 11 Collier Bankr. Cas. 2d 373, 1977 U.S. App. LEXIS 10440

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 20, 1977
• Docket: 73-3226
• Status: Published

Opinions

TJOFLAT, Circuit Judge:

This case presents the question of whether an employee discharged from private employment solely because he filed a petition in voluntary bankruptcy has a cause of action against his employer and his union under 42 U.S.C. § 1985(3).¹ A divided panel of this court answered in the affirmative.² Because of the far-reaching consequences of the holding, we convened an en banc court to consider it.³

I

James McLellan had been employed at Mississippi Power & Light Co. (MPL) for five years when, on May 17,1972, he filed a voluntary petition in bankruptcy. Since this action violated a company rule, he was immediately discharged. He made his grievance known to his union, the International Brotherhood of Electrical Workers (I.B.E.W.), Local 605, but it refused to assist him in seeking reinstatement.

In response, McLellan filed a complaint in the United States District Court for the Southern District of Mississippi. The gist of his rather broadly drawn initial pleading was that MPL had in some manner violated either the Bankruptcy Act⁴ or the United States Constitution. The district court granted, with leave to amend, a motion to dismiss for failure to state a claim upon which relief could be granted. McLellan then amended his complaint, joining the union and his local as party defendants and alleging a violation of, inter alia, section 1985(3). The district court granted MPL’s renewed Rule 12(b)(6) motion, entered final judgment dismissing the amended complaint, and McLellan appealed.

His appeal was determined initially by a panel of this court in February of 1976. Giving McLellan’s amended complaint its most liberal construction,⁵ the panel, one judge dissenting, found that the requirements of a section 1985(3) conspiracy had been adequately alleged.⁶

II

Section 1985(3) states, in relevant part, If two or more persons in any State or Territory 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; . . . [and] in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.

The Supreme Court has recently interpreted this provision in Griffin v. Breckenridge.7 In Griffin a group of whites assaulted several black men because they believed, albeit mistakenly, that the blacks were civil rights workers. Griffin and his companions had been traveling on interstate highways before they were stopped and attacked. A unanimous Court held that section 1985(3), when operating under the aegis of the thirteenth amendment and the constitutional right to travel,⁸ reaches private conspiracies as well as those performed under color of state law.⁹ It then elucidated the four elements a plaintiff must allege to state successfully a cause of action under the section:

(1) the defendants must conspire

(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) the defendants must act in furtherance of the object of the conspiracy, whereby

(4) one was (a) injured in his person or property or (b) deprived of having and exercising any right or privilege of a citizen of the United States.¹⁰

The task before us is to determine whether section 1985(3), as interpreted by the Supreme Court, is applicable to the factual allegations presented in McLellan’s amended complaint. In making that determination, we must keep in mind the nature of the conspiratorial objects Congress sought to condemn. Those condemned objects are defined by the statute and listed in Griffin’s second element as (1) the purpose to deprive one of the equal protection of the laws and (2) the purpose to deprive one of equal privileges and immunities under the laws.

In examining the amended complaint, it is important first to observe what McLellan does not allege. He does not allege a class action on behalf of all MPL employees. Neither does he seek to enjoin the enforcement of MPL’s policy to discharge all employees who file voluntary bankruptcy petitions.¹¹ More significantly, McLellan does not allege a conspiracy to deprive him of any privilege or immunity.¹² McLellan’s pleadings show, and it is conceded in this appeal, that he actually did avail himself of the statutory right to file in bankruptcy.¹³ Consequently, we shall not undertake to determine what action the deprivation of equal privileges and immunities entails. Rather, we shall concentrate upon what constitutes the deprivation of the equal protection of the laws.

As we commence this narrowed inquiry, we observe this caveat: In any conspiracy case we are likely to find that the object of the conspiracy is best identified by the acts done in furtherance of that conspiracy. This case is no exception. Even so, our primary focus will remain upon the object of the conspiracy alleged by McLellan, that is, upon the existence vel non of the second element of a section 1985(3) cause of action. We turn, then, to a discussion of that element.

Ill

We note at the outset the Griffin Court’s serious concern over the broad facial sweep of section 1985(3). The Court found the means to avoid a literal interpretation of the statute by giving the second element a restricted construction. As the Court reasoned,

The constitutional shoals that would lie in the path of interpreting § 1985(3) as a general federal tort law can be avoided by giving full effect to the congressional purpose — by requiring, as an element of the cause of action, the kind of invidiously discriminatory motivation stressed by the sponsors of the limiting amendment [incorporated into the section]. .

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. The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by the law to all.¹⁴

It was the presence of the word “equal” which allowed the Court to limit the application of the section. By focusing on that word, the justices discerned that the purpose to deprive another of the equal protection of the laws must be class-based.

It is evident that the Court did not intend the above language to be a total elaboration of the second element, however. As we shall see in the next subsection, the Court raised a correlative question which must also be addressed: How do private individuals deprive another person of the protection of the laws?¹⁵ To satisfy Griffin’s second requirement there must be both the private deprivation of the enjoyment of the laws and a class-based, discriminatory motivation. Together, the two amount to a private denial of the equal protection of the laws.

Consequently, in exploring whether a conspiracy has been formed to abridge the equal protection of the laws, our task is twofold. First, we must determine what type of private action deprives one of the protection of the laws. Second, we must examine more carefully the requirement that there be some kind of class-based discrimination.

A. What Private Action Constitutes a Deprivation of the Protection of the Laws?

The panel majority did not undertake to discern what type of private action deprives another of the protection of the laws. Instead, it seemed to suggest that once it is alleged that the plaintiff’s right to file a voluntary petition in bankruptcy is in some way burdened or infringed, the analysis ends and a cause of action has been stated under section 1985(3).¹⁶' We reject such an oversimplified approach and potentially boundless interpretation of the statute.

The Supreme Court in Griffin did not concentrate on exactly what constitutes a private deprivation of the protection of the laws. Indeed, Justice Stewart admitted that a century of fourteenth amendment adjudication, which has centered on state action, has “made it understandably difficult to conceive of what might constitute a deprivation of the equal protection of the laws by private persons.”¹⁷ Nevertheless, the Court held that the complaint in Griffin sufficiently alleged that by stopping, threatening and assaulting the¹ plaintiffs, the defendants had deprived them of their right to the equal enjoyment of the laws.¹⁸

For assistance in determining what a private deprivation of the enjoyment of legal rights entails, we turn to a passage in United States v. Harris¹⁹ which was cited by the Griffin Court:²⁰

A private person cannot make constitutions or laws, nor can he with authority construe them, nor can he administer or execute them. The only way, therefore, in which one private person can deprive another of the equal protection of the laws is by the commission of some of-fence against the laws which protect the rights of persons, as by theft, burglary, arson, libel, assault, or murder.²¹

The Court through this passage is making clear that the inquiry must initially concentrate on the legality of the defendants’ activity apart from section 1985(3). If the object of the defendants’ conspiracy did not include a violation of some law (independent of section 1985(3) itself) which protects the plaintiff, the conspiracy could not have deprived the plaintiff of the “protection of the laws”. Put more simply, there can only be a deprivation of the rights of a plaintiff when the action of the defendants is otherwise illegal. If the defendants have not conspired to act contrary to law, an object of a section 1985(3) conspiracy has not been made out and the section is inoperable, regardless of whether the legal rights of the plaintiff are somehow affected.²² On the other hand, if the defendants have indeed conspired to act contrary to law, the inquiry shifts to whether such conduct was motivated by a class-based bias.²³

Griffin fully squares with our analysis. The Griffin petitioners had indeed alleged that the defendants’ conspiracy comprehended an intent to violate the law independent of section l^S^).²⁴ They alleged that the defendants “wilfully and maliciously conspired, planned, and agreed to block the passage of [their] automobile upon the public highways, to stop and detain them and to assault, beat and injure them with deadly weapons.”²⁵ The object of this alleged conspiracy clearly encompassed violations of both the civil and criminal laws of Mississippi.²⁶ The defendants were also alleged to have engaged in the unlawful conduct they conspired to commit.²⁷ Since the petitioners were thereby “injured in [their] persons] or property,” they stated a cause of action under section 1985(3).²⁸ But it was the purpose to commit an independent violation of the law and the attainment of that goal which triggered the application of the Ku Klux Act.

That the failure to allege a conspiracy to effectuate an independent violation of the law defeats a section 1985(3) cause of action is illustrated by the Ninth Circuit decision of Lopez v. Arrowhead Ranches.29 There the plaintiffs, citizens and legally admitted alien farm workers, alleged that they were victimized by a conspiracy between farm owners and illegal alien farm workers. It was alleged that, because the owners hired illegal workers, the plaintiffs were displaced from their jobs and unable to secure work. The court, even after assuming arguendo a class-based animus,³⁰ found no section 1985(3) claim to have been stated since the plaintiffs had

no legal right or entitlement either to be hired by the private employers, or to be free of discrimination on the basis of alienage when seeking private employment. . . . Having no legal right per se to be free of the discrimination, the conspiracy ... is not per se actionable under section 1985(3).³¹

Although stated in terms of the legal rights of the plaintiffs, it is clear that the Ninth Circuit’s thrust was that the defendants’ conduct was not violative of any law. Since it was not illegal for the farm owners to discriminate on the basis of alienage, section 1985(3) offered the plaintiffs no redress.

It is true that courts often, and quite understandably, speak in terms of the plaintiff’s legal rights being abused. This does

mdeed occur in every successful section 1985(3) action. But the legal right referred to in those instances is the right of every person not to be victimized by another’s illegal behavior. Section 1985(3) redresses deprivations of the protection of the laws, and one is only deprived of the protection of the laws when the laws themselves have been violated.

No one has the absolute right to complain of every instance in which the action of others infringes upon his own behavior. It is only when that action is unlawful that an individual has legal cause to complain of his injury. Consequently, given the remedial nature of section 1985(3),³² we think it entirely clear that the statute was not designed to redress every interference with one’s behavior, even when that behavior is the exercise of what we describe as a “fundamental right”.³³ Instead, we are persuaded that the object of a section 1985(3) conspiracy must be to deprive another of the enjoyment of legal rights by independently unlawful conduct.³⁴

B. What Type Of Class-Based Motivation Does Section 1985(3) Encompass?

Our analysis in this subsection centers on the following sentence from the Griffin opinion: “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.”³⁵ From this statement, only two assertions can be made with certainty. First, class-based bias must be alleged.³⁶ Second, racial discrimination is encompassed by the statute.

The Court specifically reserved the question of “whether a conspiracy motivated by invidiously discriminatory intent other than racial bias would be actionable” under section 1985(3).³⁷ When faced by this issue, some lower courts since Griffin have indeed held that the statute appropriately addresses class-based motivation other than race. Discrimination against supporters of a political candidate³⁸ and against women³⁹ has been held actionable.

At the same time, the lower courts have indicated that section 1985(3) will not be extended to every class which the artful pleader can contrive. This circuit has rejected the class of “those who have been put on an employers’ blacklist because they have filed workmen’s compensation claims.”⁴⁰ Other “classes” meeting a similar fate include “doctors discriminated against because they have testified adversely to their brethren in malpractice cases,” ⁴¹ “non-white opponents of racism,” ⁴² “disrupters of university operations for social or political reasons,”⁴³ and “those whose families have been disrupted by a particular religious cult.” ⁴⁴ More readily identifiable classes have also been rejected, such as newspaper dealers⁴⁵ and policemen.⁴⁶

This circuit has not heretofore found it necessary to decide whether Congress intended that only racial bias would activate section 1985(3). Due to our disposition of this case, we still reserve that question. We remain mindful, however, of the Supreme Court’s evident concern in Griffin over the broad literal sweep of the statute. That concern dictates the exercise of restraint when a court is confronted with class-based discrimination grounded in a non-racial animus.⁴⁷

IV

We have analyzed in some detail the nature of a section 1985(3) conspiracy to deny the equal protection of the laws. Now we shall examine McLellan’s amended complaint to determine' whether it states a claim under the section.

A. The Protection of the Laws.

Our analysis has established that it is only when the conspirators seek to achieve their objective by independently unlawful means that a section 1985(3) claim can be maintained. In this case it is alleged that the objective was to sever McLellan’s employment relationship with MPL because he filed in bankruptcy. Our inquiry, then, is whether it was unlawful to terminate his employment on those grounds.

We find no law which restrains MPL from firing an employee because he has filed a petition in voluntary bankruptcy.⁴⁸ No statutory provision shields a bankrupt from later economic consequences visited upon him by private individuals, whether acting alone or in concert. A thorough examination of the Bankruptcy Act and its legislative history discloses no explicit provision or intent to prohibit discriminatory action against an individual on the basis of his declaring bankruptcy.⁴⁹ In addition, no such Congressional intent can be reasonably inferred from the statute as it is now enacted.⁵⁰ Nor can such a right be legitimately implied from the Constitution’s Bankruptcy Clause itself. As has been pointed out,⁵¹ that empowering provision speaks only in discretionary terms and does not afford any individual a right which Congress has not specifically legislated.⁵²

This is not to say that Congress and others have been unmindful of discrimination practiced against bankrupts.⁵³ Both of the proposed new Bankruptcy Acts — that drafted by the Commission on the Bankruptcy Laws of the United States⁵⁴ and that by the National Conference of Bankruptcy Judges⁵⁵ — have identical section 4-508’s:

A person shall not be subjected to discriminatory treatment because he, or any person with whom he is or has been associated, is or has been a debtor or has failed to pay a debt discharged in a case under this title.⁵⁶

It would be inappropriate for us here to resolve whether MeLellan would have been protected by this proposed provision had it been law at the time of his firing. Our intent is merely to show that Congress is only now considering what protection, if any, a bankrupt should have from discriminatory treatment. No statutory protection has been afforded in the past and none presently shelters this unfortunate class.⁵⁷

That no federal statute shields bankrupts does not answer the question of whether an applicable state law has been violated in this case. Turning again to McLellan’s amended complaint, we find that he does not attempt to enlist the aid of any substantive state statutory provision.⁵⁸ At the most, MeLellan endeavors to enforce a private contract right.⁵⁹ MeLellan alleges that he “was employed for a fixed term and could not be discharged sooner without sufficient cause,” and that the company rule was unreasonable and in violation of his contract.⁶⁰

McLellan faces two obstacles, however, in his attempt to satisfy Griffin’s second element by alleging an intent to breach a private contract. The first barrier was erected by the district court. Faced with McLellan’s allegations, the district court in its order granting MPL’s motion to dismiss for failure to state a claim found that the company rule of discharging employees if they filed in bankruptcy was “well known and well established”⁶¹ and that “[n]o breach of contract [was] presented by this claim.”⁶² Although the district court rendered its opinion and order after briefing and oral argument, we are somewhat hesitant to rest our decision upon these findings. McLellan’s contract of employment is not a part of the record in this ease; moreover, we are not informed by the order and the record is silent as to what stipulations, if any, were made by the parties. More importantly, the district court did not explicitly treat MPL’s motion as a motion for summary judgment.⁶³ Thus, the trial court’s disposition of this matter does not lend itself to definitive treatment on our part.

The second obstacle confronting McLellan is somewhat more formidable. We find it less than clear that one who violates the unique, individual contract rights of anoth-

er has deprived him of the protection of the laws as Griffin construed that phrase. McLellan does not allege that the defendants contemplated depriving him of the operation of any state law — substantive or procedural — available to anyone seeking, as he is, the enforcement of contract rights. In other words, we doubt whether McLellan has alleged a conspiracy to deprive him of “rights secured by the law to all.”⁶⁴ Even ignoring the fact that the statute was enacted by a Congress predominately concerned with the violent activity of a vindictive Ku Klux Klan,⁶⁵ one could cogently argue that Congress did not intend for section 1985(3), tracking as it does the elements of a tort conspiracy,⁶⁶ to redress private contract rights.⁶⁷ At any rate, we need not resolve this issue, since we find that the class-based discrimination requisite to a claim under the statute is not present in this case.

B. Class-Based Animus.

In Griffin the Supreme Court was presented with conduct “so close to the core of the coverage intended by Congress” that it found it “hard to conceive of wholly private conduct that would come within the statute” if the conduct before it did not.⁶⁸ By contrast, in this case we are presented with conduct far from the core of the coverage intended by Congress. Indeed, we find it hard, if not impossible, to conceive of such conduct being within the intended scope of section 1985(3).⁶⁹

The Ku Klux Act was passed amid the lawless conditions existing in the South after the Civil War.⁷⁰ A major aim of the legislation “was to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of rights, privileges, and immunities guaranteed by the Fourteenth Amendment might be denied by the state agencies.”⁷¹ It is readily apparent from the title of the bill itself, “An Act to enforce the Provisions of the Fourteenth Amendment . . .,” that the key concern of the legislators was to put force⁷² behind the Civil War Amendments by providing an avenue for the redress of injuries suffered by the class of newly emancipated slaves.⁷³ Nowhere have we seen it suggested that Congress was concerned about discrimination being practiced against insolvents.⁷⁴

This is not to say that the concept of “civil rights” and the protection afforded by the civil rights acts themselves, of which the Ku Klux Act is one, is static. Being closely allied with fundamental rights, civil rights are open-ended in character.⁷⁵ This fact has been manifested by Congress in recent years by its expansion of coverage to classes other than race. All provisions of the Civil Rights Act of 1964 prohibit discrimination based upon “race, color, religion, or national origin,”⁷⁶ and Titles IV and VII of that Act include sex bias as well.⁷⁷ Moreover, the Supreme Court lately has more than once expanded that class of those rights we consider fundamental.⁷⁸ Nevertheless, as we have observed, Congress heretofore has refused to prohibit discrimination against bankrupts even though specifically asked to so⁷⁹ and the Supreme Court has explicitly rejected the contention that the right to file in bankruptcy is fundamental.⁸⁰ In this light, we decline to enlarge the ambit of section 1985(3) to include bankrupts.⁸¹ To hold otherwise would be tantamount to saying that Congress intended to include every class over which it has power to legislate. We simply do not believe that to be so.

We should point out that it is difficult to tell from McLellan’s rather inartful pleading exactly what class he purports to be a member of for the purposes of this litigation.⁸² However, in characterizing his class as that of all bankrupts we have analyzed the problem in the light most favorable to McLellan: if section 1985(3) protects all bankrupts, then it certainly protects the potential bankrupts who work for MPL or those who have been discharged for availing themselves of bankruptcy. Thus, the question has been whether Congress intended for section 1985(3) to protect bankrupts as. a class, and we have. found ourselves unable to hold that it does.

V

In conclusion, we hold that the allegations before us do not disclose facts which demonstrate a conspiracy for the purpose of depriving McLellan of the equal protection of the laws within the meaning of 42 U.S.C. § 1985(3). Part III of the panel opinion, which recognized that cause of action, is accordingly vacated. In all other respects, the panel opinion remains undisturbed. We affirm the district court’s dismissal of the section 1985(3) claim and remand for further proceedings not inconsistent with this opinion.

AFFIRMED AND REMANDED.

1 . Ku Klux Act of 1871, § 2, 42 U.S.C. § 1985(3) (1970).

2 . McLellan v. Mississippi Power & Light Co., 526 F.2d 870 (5th Cir. 1975).

3 . Rehearing en banc addressed only the section 1985(3) issue. Accordingly, parts I and II of the panel opinion, dealing with other matters, are not vacated. See id. at 872-73.

4 . 11 U.S.C. §§ 1 et seq. (1970).

5 . See Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

6 . For purpose of analysis, we accept the panel’s construction of the complaint in that a conspiracy was successfully alleged. We reserve the question, however, as did the panel before us, of whether proof of class-based animus motivating only one conspirator would be sufficient to bring the conspiracy within section 1985(3).

7 . 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971).

8 . The Constitutional right to travel is “among the rights and privileges of National citizenship,” Twining v. New Jersey, 211 U.S. 78, 97, 29 S.Ct. 14, 53 L.Ed. 97 (1908), and finds its base not only in the fourteenth amendment, but in the Constitution as a whole. Griffin v. Breckenridge, 403 U.S. at 105, 91 S.Ct. 1790; Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966).

9 . 403 U.S. at 101, 91 S.Ct. 1790. The Court held, “It is thus evident that all indicators— text, companion provisions, and legislative history — point unwaveringly to § 1985(3)’s coverage of private conspiracies.” The justices, however, were careful to avoid basing section 1985(3)’s coverage in this case on the fourteenth amendment. See id. at 107, 91 S.Ct. at 1801: “[T]he allegations of the complaint in this case have not required consideration of the scope of the power of Congress under § 5 of the Fourteenth Amendment.” Neither do the allegations of the complaint before us present this issue.

10 . Id. at 102-03, 91 S.Ct. 1790.

11 . This circuit has held that injunctive relief may be claimed under section 1985(3). Mizell v. North Broward Hosp. Dist., 427 F.2d 468 (5th Cir. 1970).

12 . We leave to one side at this time the fact that the term “privileges and immunities” has received a very limited construction. See Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 21 L.Ed. 394 (1873).

13 . McLellan did complain that MPL, by discharging him on account of his utilization of the Bankruptcy Act, has “deprived him of a federal right provided by Congress . . Record at 14. His allegations are less than clear. If he means to imply that the federal right deprived was the right to file in bankruptcy, that proposition is clearly refuted by other statements made in his complaint. If he means to imply that he has a federal right not to be discharged by his private employer on account of his filing, that proposition is disposed of infra. In sum, McLellan has not alleged a conspiracy to deprive him of a privilege or immunity, nor has he alleged that he was in fact deprived of one.

14 . Id. at 102, 91 S.Ct. at 1798 (emphasis in original) (footnotes omitted).

15 . See id. at 97, 91 S.Ct. 1790. We do not mean to indicate, of course, that section 1985(3) applies only to private conspiracies. In this case, however, as in Griffin, no state action has been successfully asserted. See 526 F.2d at 872.

16 . We have already pointed out, of course, that McLellan did in fact file in bankruptcy, and no allegation has been made that the defendants have prevented him from receiving the full benefit of the Bankruptcy Act. See note 13 supra and accompanying test.

17 . 403 U.S. at 97, 91 S.Ct. at 1796 (emphasis added).

18 . Id. at 103, 91 S.Ct. 1790.

19 . 106 U.S. 629, 1 S.Ct. 601, 27 L.Ed. 290 (1883).

20 . See 403 U.S. at 97, 91 S.Ct. 1790. The Supreme Court in Harris struck down the criminal counterpart to section 1985(3) as unconstitutional because it swept too broadly in proscribing purely private conduct. Harris read the criminal statute as outlawing a conspiracy by two white citizens to deprive another free white citizen of a right accorded by the law of the state to all classes of persons. 106 U.S. at 641, 1 S.Ct. 601. The Court thought it clear that such a law could not be authorized by the thirteenth amendment, “the amendment which simply prohibits slavery and involuntary servitude.” Id.

The Griffin Court avoided the unconstitutional overbreadth problem discerned in Harris by observing that Harris followed a severability rule that required invalidation of an entire statute if any part of it was unconstitutionally overbroad. 403 U.S. at 104, 91 S.Ct. 1790. Under United States v. Raines, 362 U.S. 17, 20-24, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960), all possible applications of a statute do not have to be constitutional in order to uphold it in a specific case.

21 . 106 U.S. at 643, 1 S.Ct. at 612. Some might suggest that the quoted language was dicta in Harris. This is not the case. It has long been settled that all alternative rationales for a given result have precedential value. “It does not make a reason given for a conclusion in a case obiter dictum, because it is only one of two reasons for the same conclusion.” Richmond Screw Anchor Co. v. United States, 275 U.S. 331, 340, 48 S.Ct. 194, 196, 72 L.Ed. 303 (1928). See also Massachusetts v. United States, 333 U.S. 611, 623, 68 S.Ct. 747, 92 L.Ed. 968 (1948); United States v. Title Ins. & Trust Co., 265 U.S. 472, 486, 44 S.Ct. 621, 68 L.Ed. 1110 (1924); Florida Cent. R. R. v. Schutte, 103 U.S. 118, 143, 26 L.Ed. 327 (1880). In any event, a discussion of whether the passage is dicta or not is largely academic. The important point is that the Griffin Court used the passage to illustrate that a deprivation of protection of the laws is not necessarily inflicted by the state. 403 U.S. at 97, 91 S.Ct. 1790.

22 . . It should be pointed out that there is some controversy over whether section 1985(3) is strictly remedial in nature or whether it also grants substantive rights against private persons for interference with the exercise of certain constitutional rights otherwise guaranteed against state infringement, such as, for exam-pie, the first amendment freedoms. See Note, Federal Power to Regulate Private Discrimination: The Revival of the Enforcement Clauses of the Reconstruction Era Amendments, 74 Colum.L.Rev. 449, 497-500 (1974) (“section 1985(3) should be viewed as merely remedial in scope, providing an additional remedy for preexisting rights as opposed to creating new federal rights”); Note, The Supreme Court, 1970 Term, 85 Harv.L.Rev. 40, 99-100 (1971). See also Lopez v. Arrowhead Ranches, 523 F.2d 924, 927 n.3 (9th Cir. 1975). See generally United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1875); Meachum v. Fano, - U.S. -, 96 S.Ct. 2532, 2540-41, 50 L.Ed.2d - (1976) (Stevens, J., dissenting). The circuit courts have divided over this matter. Compare Cohen v. Illinois Institute of Technology, 524 F.2d 818 (7th Cir.), cert. denied, 425 U.S. 943, 96 S.Ct. 1683, 48 L.Ed.2d 187 (1976); Bellamy v. Mason’s Stores, Inc., 508 F.2d 504 (4th Cir. 1974); Dombrowski v. Dowling, 459 F.2d 190 (7th Cir. 1972); with Action v. Gannon, 450 F.2d 1227 (8th Cir. 1971) (en banc). We, however, do not have to reach this issue. The Bankruptcy Clause of the Constitution is not written as a guarantee to individuals that their rights will not be impaired by Congress, the states, or private parties. It neither recognizes nor grants individual rights. It simply states, “The Congress shall have Power . .To establish uniform Laws on the subject of Bankruptcies throughout the United States.” U.S.Const. art. I, § 8. It is beyond cavil that Congress did not intend for section 1985(3) to supply substantive relief on the basis of this constitutional provision alone. See generally United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973).

23 . In other words, was the conduct a deprivation of the plaintiff’s equal protection or equal privileges and immunities of the laws. See 403 U.S. at 102, 91 S.Ct. 1790. This requirement will be discussed in the next subsection.

24 . The Court pointed out that it was dealing with “tortious, conspiratorial interferences with the rights of others.” 403 U.S. at 101, 91 S.Ct. at 1798 (emphasis supplied). See also Collins v. Hardyman, 341 U.S. 651, 71 S.Ct. 937, 95 L.Ed. 1253 (1951), where the Court demonstrated in some detail that the actions of the defendants were both civilly and criminally actionable under the laws of California. Id. at 655, 71 S.Ct. 937.

25 . 403 U.S. at 90, 91 S.Ct. at 1792, quoting the petitioners’ complaint.

26 . See, e. g., Miss.Code of 1942, § 2013, now codified at Miss.Code Ann. § 97-3-11 (criminal liability for assault and battery for intentionally pointing or aiming a firearm at another). See generally W. Prosser, Law of Torts §§ 9-10 (assault and battery), 11 (false imprisonment), 12 (infliction of mental distress) (4th ed. 1971).

27 . 403 U.S. at 90-91, 91 S.Ct. 1790.

28 . Id. at 103, 91 S.Ct. 1790. In Griffin, of course, the defendants also deprived the petitioners of a privilege and immunity, the right to travel.’ Thus, the petitioners alleged both 4(a) and 4(b) injuries. See id. at 106, 91 S.Ct. 1790.

29 . 523 F.2d 924 (9th Cir. 1975).

30 . Id. at 927.

31 . Id. See also Place v. Shepherd, 446 F.2d 1239, 1246 (6th Cir. 1971); Weiland v. Byrne, 392 F.Supp. 21 (N.D.Ill.1975). In Lopez the plaintiffs also alleged that the hiring of illegal aliens forced all farm workers to work at reduced wages and under substandard conditions. Since the wage and hour laws do protect workers, i. e., since employers are required to pay certain wages and meet certain conditions, the court next analyzed whether the plaintiffs had adequately alleged class-based animus. The per curiam panel held that they had not. Noting that the class deprived included both legal and illegal farm workers, the court continued, “[I]t seems to us a necessary corollary that the class animus alleged be consistent with the deprivation of rights alleged. Here it is not. . . . Under Griffin we think the class status providing the motivating animus must be created by a fact other than possession of the right deprived . . . .” 523 F.2d at 928.

32 . It might be posited that in requiring the object of a section 1985(3) conspiracy to include an independent violation of the law, we make the section superfluous. But our interpretation of the statute does not make it superfluous any more than any other remedial statute is so. Many statutes, most notably criminal ones, prohibit activity but provide no financial recompense to victims. Section 1985(3) serves partially to correct such a situation.

33 . A contrary interpretation on this point would ignore the Gríffín Court’s concern not to have section 1985(3) become a “general federal tort law.” 403 U.S. at 102, 91 S.Ct. 1790. If the panel’s reading were accepted, a person would be liable merely for placing any sort of obstacle in the path of someone’s equal enjoyment of legal rights. That liability would far exceed any state’s common law or legislative enactments. Put more simply, while it may be true, as one commentator has suggested, that Griffin has in fact federalized state tort law where racial motivation is involved, at least there must be a tort before section 1985(3) may be utilized. See Note, The Supreme Court, 1970 Term, supra note 22 at 99. See also Senn v. Tile Layers Protective Union, 301 U.S. 468, 57 S.Ct. 857, 81 L.Ed. 1229 (1937), where the constitutionality of lawful picketing was challenged under the equal protection clause when it caused the picketed employer economic injury. Justice Brandéis remarked succinctly for the Court, “One has no constitutional right to a ‘remedy’ against the lawful conduct of another.” Id. at 483, 57 S.Ct. at 864.

34 . Our reading of the statute is fully supported by its statutory history. One of the major purposes of the Ku Klux Act, if not the major purpose, was “to provide a federal remedy where the state remedy, though adequate in theory, was not available in practice.” Monroe v. Pape, 365 U.S. 167, 174, 81 S.Ct. 473, 477, 5 L.Ed.2d 492 (1961).

We also draw support for our reading of the statute from the very nature of a civil conspiracy. In a common law tort conspiracy, unlike a criminal conspiracy, a mere combination or agreement to commit a tort is not in itself actionable. Rather, some act which is itself a tort must be taken in furtherance of the object of the conspiracy. See generally W. Prosser, supra note 26, § 46; Burdick, Conspiracy as a Crime and as a Tort, 7 Colum.L.Rev. 229 (1907). Section 1985(3), requiring as it does an act in furtherance of the object of the conspiracy and an injury to the plaintiff, closely tracks the elements of a common law conspiracy to commit a tort. By way of comparison, note its criminal counterpart which was struck down in Harris. Rev.Stat. § 5519, quoted in 106 U.S. at 632, 1 S.Ct. 601. Neither an act in furtherance of the object of the conspiracy nor an injury was required to be demonstrated.

35 . 403 U.S. at 102, 91 S.Ct. at 1798 (emphasis in original).

36 . O’Neill v. Grayson County War Memorial Hosp., 472 F.2d 1140, 1145 (6th Cir. 1973); Hughes v. Ranger Fuel Corp., 467 F.2d 6, 10 (4th Cir. 1972).

37 . 403 U.S. at 102 n. 9, 91 S.Ct. at 1798.

38 . Glasson v. Louisville, 518 F.2d 899 (6th Cir.), cert. denied, 423 U.S. 930, 96 S.Ct. 280, 46 L.Ed.2d 258 (1975); Cameron v. Brock, 473 F.2d 608 (6th Cir. 1973). But see Bellamy v. Mason’s Stores, Inc., 508 F.2d 504 (4th Cir. 1974) (absent state involvement, section 1985(3) does not redress employee discharge due to Ku Klux Klan membership).

39 . Weise v. Syracuse Univ., 522 F.2d 397 (2d Cir. 1975); Reichardt v. Payne, 396 F.Supp. 1010 (N.D.Cal.1975); Pendrell v. Chatham College, 370 F.Supp. 494 (W.D.Pa.1974); Stern v. Massachusetts Life Ins. Co., 365 F.Supp. 433 (E.D.Pa.1973). But see Cohen v. Illinois Institute of Technology, 524 F.2d 818 (7th Cir.), cert. denied, 425 U.S. 943, 96 S.Ct. 1683, 48 L.Ed.2d 187 (1976) (per Stevens, J.) (no source of constitutional power for section 1985(3) to redress sex discrimination).

40 . Jacobson v. Industrial Foundation of the Permian Basin, 456 F.2d 258 (5th Cir. 1972).

41 . Bricker v. Crane, 468 F.2d 1228 (1st Cir. 1972), cert. denied, 410 U.S. 930, 93 S.Ct. 1368, 35 L.Ed.2d 592 (1973).

42 . Furumoto v. Lyman, 362 F.Supp. 1267, 1286 (N.D.Cal.1973).

43 . Id.

44 . Smith v. Armstrong, 396 F.Supp. 753 (N.D. Tex.), aff’d without opinion, 524 F.2d 1231 (5th Cir. 1975).

45 . Arnold v. Tiffany, 487 F.2d 216 (9th Cir. 1973), cert. denied, 415 U.S. 984, 94 S.Ct. 1578, 39 L.Ed.2d 881 (1974).

46 . Taylor v. Nichols, 409 F.Supp. 927 (D.Kan. 1976).

47 . The Griffin Court intended to give full effect to the congressional purpose. 403 U.S. at 102, 91 S.Ct. 1790. That purpose is partly evidenced in the title of the Act itself: “An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes.” 17 Stat. 13 (1871). It has been frequently remarked that it was passed to implement all three Civil War Amendments. See, e. g., Byrd v. Sexton, 277 F.2d 418, 426 (8th Cir.), cert. denied, 364 U.S. 818, 81 S.Ct. 49, 5 L.Ed.2d 48 (1960); Bomar v. Bogart, 159 F.2d 338 (2d Cir. 1947); Love v. Chandler, 124 F.2d 785, 786 (8th Cir. 1942); Koch v. Zuieback, 194 F.Supp. 651 (S.D.Cal. 1961), aff’d, 316 F.2d 1 (9th Cir. 1963); C. Antieau, Federal Civil Rights Acts § 93 (1971).

48 . Of course, discharge from employment is a field which Congress has seen fit to regulate in some instances. See, e. g., Civil Rights Act of 1964, §§ 703(a) & 704(a), 42 U.S.C. §§ 2000e-2(a) & 2000e-3(a) (1970). For cases where section 1985(3) actions have been predicated on violations of these Civil Rights Act provisions, see Weise v. Syracuse Univ., 522 F.2d 397 (2d Cir. 1975); and Richardson v. Miller, 446 F.2d 1247 (3d Cir. 1971).

49 . See generally Report of the Comm’n on Bankruptcy Laws of the U.S., H.R.Doc.No.137, 93d Cong., 1st Sess. (1973).

50 . See generally 2A C. Sands, Sutherland Statutory Construction §§ 55.01-.03 (1973).

51 . See note 22 supra.

52 . United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973), makes clear that there is no fundamental right even to file in bankruptcy: “We see no fundamental interest that is gained or lost depending on the availability of a discharge in bankruptcy.” Id. at 445, 93 S.Ct. at 638. The Court reiterated, “There is no constitutional right to obtain a discharge of one’s debts in bankruptcy.” Id. at 446, 93 S.Ct. at 638. Next, looking to the discretionary nature of the Bankruptcy Clause, the Court held that the “mere fact that Congress has delegated to the District Court supervision over the proceedings by which a petition for discharge is processed does not convert a statutory benefit into a constitutional right of access to a court.” Id. at 447, 93 S.Ct. at 639.

53 . Congress has recently considered the problems of the pressured debtor in hearings on the Consumer Credit Protection Act of 1968. The House Banking and Currency Committee reported that “the garnishment of wages is frequently an essential element in predatory extension of credit resulting in a disruption of employment . . . H.R.Rep.No.1040, 90th Cong., 1st Sess., reported in [1968] U.S. Code Cong. & Ad.News, pp. 1962, 1977.

54 . H.R. 31, 94th Cong., 2d Sess. (1976).

55 . H.R. 32, 94th Cong., 2d Sess. (1976).

56 . The comment to the proposed section 4-508 reads as follows:

New. The use of the word “person” is intended to cover corporations as well as natural persons. The section is intended to codify the principle of Perez v. Campbell that the fresh start afforded by the Bankruptcy Act must not be impaired by State laws subverting that start. However, the statutory language is very broad, seeming to prohibit consideration by a private loan company of a debtor’s past bankruptcy in deciding whether to extend new credit.

Also note the proposed section 4-508 in the Bankruptcy Act of the National Bankruptcy Conference, reprinted at Hearings on H.R. 31 & 32 Before the Subcomm. on Civil and Constitutional Rights of the Comm, on the Judiciary, 94th Cong., 1st & 2d Sess., appendix, at 357 (1975 & 1976). One of the suggested amendments by the Conference is to limit section 4-508 to state action.

57 . Perez v. Campbell, 402 U.S. 637, 91 S.Ct. 1704, 29 L.Ed.2d 233 (1971), is of no help to MeLellan. In Perez a state statute which provided that a bankruptcy discharge did not erase a judgment against a negligent automobile driver was struck down under the Supremacy Clause, U.S.Const. art. VI, cl. 2. Here, of course, purely private action is involved.

58 . MeLellan does claim to be entitled to relief under section 5335 of the Mississippi Code of 1942, which is now codified at Miss.Code Ann. § 79-1-9. That provision reads, “Any corporation doing business in this state shall be liable to a penalty of two hundred fifty dollars for every unlawful interference with the social, civil, or political rights of any of its agents or employees . . .” (emphasis added). Obviously, this statute, similarly to section 1985(3), does not help us in determining in the first instance whether the interference has been unlawful.

59 . As we have hinted before, McLellan’s amended complaint is not the quintessence of pellucidity. It is not clear from his allegations whether he has a formal, individual contract with MPL or whether his claimed contract of employment is the union’s collective bargaining agreement. No contract of either type was appended to the amended complaint.

60 . McLellan’s amended complaint suggests, in addition, a breach of the duty of fair representation on the part of his union and local, although he did not explicitly allege a violation of any federal labor law. See Record at 13-14. MeLellan identifies the animus motivating this breach as his refusal “to remain a member of Local 605 and I.B.E.W.” Id. at 13. This is facially inconsistent with his charge that the invidious discrimination in this case is against bankrupts. Moreover, such a motivating animus against him as a former union member is not class-based. See Jacobson v. Industrial Foundation of the Permian Basin, 456 F.2d 259 (5th Cir. 1972). These allegations clearly fail as a section 1985(3) claim.

61 . Record at 24.

62 . Id. at 28.

63 . The pertinent part of Federal Rule of Civil Procedure 12(b) states,

If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

64 . Griffin v. Breckenridge, 403 U.S. at 106, 91 S.Ct. at 1798. See also United States v. Harris, 106 U.S. at 641, 1 S.Ct. 601.

65 . See generally Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).

66 . See note 34 supra.

67 . The Griffin Court’s concern that the statute not redress every common law tort would seem equally appropriate in the context of the enforcement of private contract rights. See 403 U.S. at 102, 91 S.Ct. 1790. This same concern has led a panel of this court to remark recently, “Section 1985(3) was [not] designed to serve as a general federal tort law that would permit a suit for fraud or breach of contract . . Jackson v. Cox, 540 F.2d 209, 210 (5th Cir. 1976).

68 . 403 U.S. at 103, 91 S.Ct. at 1799.

69 . It should be noted that whether Congress has the power to regulate certain activity is irrelevant in regards to whether Congress intended to do so. It is true that eight members of the Griffin Court found constitutional power under the facts of that case in the right to travel. Id. at 105-06, 91 S.Ct. 1790. The alleged violation of that right in Griffin was still a result of racial animus, however, which the Court appropriately identified as being at the core of section 1985(3)’s intended coverage.

70 . See generally Monroe v. Pape, 365 U.S. at 170-82, 81 S.Ct. 473. The Court in Monroe pointed out that there was “no quarrel with the state laws on the books. It was their lack of enforcement that was the nub of the difficulty.” Id. at 176, 81 S.Ct. at 478. One 600-page report oft-cited during the debate over the bill dealt with the activities of the Klan and the inability of the state governments to cope with it. Id. at 174, 81 S.Ct. 473. See also Randall, The Civil War and Reconstruction (1937).

71 . 365 U.S. at 180, 81 S.Ct. at 480. In Griffin the Supreme Court made clear, of course, that the Act by the provision now codified in section 1985(3) allows a plaintiff to bypass entirely the state judicial machinery. 403 U.S. at 95-102, 91 S.Ct. 1790.

72 . The Ku Klux Act was referred to as one of the “force bills”. See Monroe v. Pape, 365 U.S. at 174-75, 81 S.Ct. 473.

73 . See cases cited in note 47 supra. See also Hague v. C.I.O., 307 U.S. 496, 509-10, 59 S.Ct. 954, 83 L.Ed. 1423 (1939) (opinion of Roberts, J.).

74 . The Bankruptcy Act of 1867, 14 Stat. 517, was in effect until 1878. See 20 Stat. 99.

75 . See, e. g., Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). See generally 3D. Sands, supra note 50, § 72.01.

76 . 42 U.S.C. §§ 2000a(a), 2000a-l, 2000b, 2000c-6, 2000d & 2000e-2 (1970).

77 . Id. §§ 2000C-6 & 2000e-2 (Supp. II 1972).

78 . See Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971). See also Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971).

79 . See notes 48-56 supra and accompanying text.

80 . United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973). See note 52 and accompanying text.

81 . Although we do not so hold, we could plausibly rest our holding on the position that discrimination practiced against bankrupts is not the type of “invidious” animus envisioned by the Griffin Court. See 403 U.S. at 102, 91 S.Ct. 1790. One court has stated, “A close reading of Griffin leads this Court to conclude that the words ‘class-based, invidiously discriminatory animus’ refer, at most, to that kind of irrational and odious class discrimination akin to racial bias — such as discrimination based on national origin or religion.” Arnold v. Tiffany, 359 F.Supp. 1034, 1036 (C.D.Cal.), aff'd on other grounds, 487 F.2d 216 (9th Cir. 1973), cert. denied, 415 U.S. 984, 94 S.Ct. 1578, 39 L.Ed.2d 881 (1974). See also Taylor v. Nichols, 409 F.Supp. at 935-36. Interesting to note is that the panel opinion also expressed some doubt as to whether the discrimination practiced in this case was sufficiently invidious to draw section 1985(3) into play. 526 F.2d at 879.

82 . Apparently, the panel had some difficulty with this question as well. The panel firmly asserts that the relevant class is those MPL employees “wishing to file bankruptcy petitions,” yet plainly states that McLellan himself was among the class of MPL employees who actually filed bankruptcy petitions. 526 F.2d at 877. Of course, with a concept as nebulous as that of “class,” this will always be a troublesome area of analysis. Our experience here is not unique, however. Others have encountered similar difficulties in their prehension of cloudy subjects. See W. Shakespeare, Hamlet, III, ii, 11. 393 et seq.:

HAMLET: Do you see yonder cloud that’s almost in the shape of a camel?

POLONIUS: By the mass, and ’tis like a camel, indeed.

HAMLET: Methinks it is like a weasel.

POLONIUS: It is backed like a weasel.

HAMLET: Or like a whale?

POLONIUS: Very like a whale.

1 . The majority’s fallacious reliance upon the “thrust” of the Ninth Circuit in Lopez v. Arrowhead Ranches, 523 F.2d 924 (CA9, 1975), is discussed below.