USCA1 Opinion

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.

SELYA, Circuit Judge.
_____________

This appeal demands that we mull

the

prerequisites for liability under

U.S.C.

1985(3) (1994).

required

Klan Act, 42

We hold that (1) the class-based animus

to ground a private

applies to

the Ku Klux

right of action

conspiracies allegedly involving

under the statute

public officials in

the same way as it applies to all other conspiracies; and (2) the

requirement

defined

is not

class

satisfied

appears.

where, as

Accordingly,

here, no

we

sufficiently

affirm the

district

court's dismissal of the action.

I.
I.

BACKGROUND
BACKGROUND

Whether or not it

this

case

national

bears

witness

is true that all politics

that

local

politics,

politics, can become meanspirited.

plaintiff-appellant

Alan

Aulson

served

is local,

no less

than

From 1984 to 1990,

as

selectman

in

Georgetown, Massachusetts.

defendants

(a

officeholders)

politicians"

cadre

who more

charges

opposition:

elected

or

and

appointed

an incumbent group

less

run things

in

"member[] of a political group

who oppose

complaint

of

are members of

contrast, he is a

candidates

In his complaint, he alleges that the

that

the members

the politics

Aulson

paid

municipal

of "old guard

the town.

which supports

of the

`old guard.'"

price

stiff

In

of the old guard collogued

for

The

his

against him

and wreaked their vengeance by such nefarious means as conducting

illegal searches pursuant to

conduct,

U.S.C.

he asserts, gives

sham prosecutions.

rise to a

1985(3).

cause of

This course

of

action under 42

Aulson originally

brought his suit in

Remarking the federal question, the

district

12(b)(6).

court and then sought

Despite the

defendants removed it to the

dismissal under Fed.

R. Civ. P.

plaintiff's objection, the district court

granted the motion to dismiss.

II.
II.

a state venue.1

This appeal ensued.

ANALYSIS
ANALYSIS

Inasmuch as the trial judge dismissed the complaint for

failure to state an

actionable claim, we review his

decision de

novo, accepting

indulging

See
___

all

all well-pleaded factual

reasonable inferences

in the

averments and

plaintiff's favor.

Leatherman v. Tarrant County N. I. & C. Unit, 507 U.S.

__________
______________________________

164 (1993);

52

as true

(1st

Correa-Martinez v. Arrillaga-Belendez,
_______________
__________________

Cir.

1990).

We

hasten

to add,

163,

903 F.2d 49,

however,

that this

deferential standard does not force an appellate court to swallow

the

plaintiff's

assertions,

invective

unsupportable

circumlocutions,

F.2d at 52;

889

16 (1st

alleged,

line,

and

sinker;

conclusions,

Dartmouth Review v.
________________

Cir. 1989).

if proven, will not

It is

bald

periphrastic

and the like need not be credited.

Martinez, 903
________

F.2d 13,

hook,

See Correa___ _______

Dartmouth Coll.,
_______________

only when

justify recovery that

the facts

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

before us, we omit further reference to her.

the legal

issues

conspiracies.2

must

allege

To

the

conspiratorial

state a

claim under

existence

of

(1)

1985(3)

purpose to deprive a person

a plaintiff

conspiracy,

(2)

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.

gloss

88, 102

on

(1971).

these

requirement.

It

four

In

Griffin, the
_______

elements,

construed the

protection" and "equal privileges

Supreme Court

effectively

adding

statute's references

placed a

fifth

to "equal

and immunities under the laws"

to

signify that a plaintiff may recover thereunder only when the

conspiratorial

conduct of

"some

or

racial,

perhaps

discriminatory animus."

which

he complains

otherwise

is propelled

class-based,

by

invidiously

Id.
___

B
B

This

added

requirement

obstacle to the plaintiff's

seeks

as

an

attempted embrace of

to ameliorate this difficulty

strives first

looms

to detour around

insurmountable

1985(3).

in two different

the obstacle,

He

ways:

he

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
equal

of persons of the

privileges and

U.S.C.

equal protection of the

immunities under

the laws

. .

laws, or of
. ."

42

1985(3).

1.
1.

Public/Private Conspiracies.
Public/Private Conspiracies.
____________________________

The

plaintiff's

effort to bypass the point entirely centers around his insistence

that

the

applies

requirement

only

to

of

wholly

a class-based

private

discriminatory

conspiracies

(that

animus

is,

conspiracies

such),

that

do not

and that he need

animus in this

involve

public

officials acting

neither allege nor

action (which

as

prove a class-based

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,

denied,
______

1102 (10th

Cir.

1994), cert.
_____

115 S.

Ct.

2577

(1995); Haverstick Enterps., Inc. v. Financial Fed. Credit, Inc.,

_________________________
___________________________

32

F.2d

Pawling,
_______

989,

994 (6th

18 F.3d 188,

Cir.

1994);

194 (2d Cir.

Trustees of Ga. Military Coll.,

________________________________

1992),

Gagliardi
_________

v. Village of
___________

1994); Burrell
_______

970 F.2d

785, 794

v. Board of
________

(11th Cir.

cert. denied, 507 U.S. 1018 (1993); Munson v. Friske, 754

_____ ______
______
______

F.2d 683,

694-95 & n.8 (7th Cir. 1985).

never squarely repudiated

occasions required

the gambit,

Although this court has

we have on

(albeit without substantive

at least

two

comment) that

class-based animus be shown notwithstanding that public officials

were

alleged

to

conspiracies there

Agosto, 75
______

be

active

at issue.

F.3d 23, 34

participants

the

See Romero-Barcelo
___ ______________

(1st Cir.

Durham, 733 F.2d 4, 7 (1st

______

in

1996); Daley v.
_____

Cir. 1984).

particular

v. Hernandez__________

Town of New
____________

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

existence of such a distinction, and, at any rate, it

the

is not the

proper province of a federal court to rewrite a statute under the

guise

of

invitation

interpretation.

Thus, we

to create by judicial

decline

the

fiat two classes

plaintiff's

of

1985(3)

conspiracies along a public/private axis.

So ends this phase of our inquiry.

To the

extent that

we

have

not

explicit, we

previously

made

now hold that to

respect

to

conspiracies

actors,

or

both,

complained of

the

scope

of

the

requirement

state a claim under

involving

plaintiffs

public

must

allege

1985(3) in

officials,

that

the

private

conduct

resulted from an invidiously discriminatory class-

based animus.

2.
2.

Cognizable Classes.
Cognizable Classes.
__________________

to surmount the

obstacle instead

The

plaintiff next struggles

of skirting it.

that he is a member of a class protected by

has

alleged

as much.

His

contention

He

contends

1985(3), and that he

does not

withstand the

mildest scrutiny.

The complaint

In

regard to

the

is a lengthy, somewhat prolix narrative.

class-based animus

requirement, however,

it

states nothing more than that Alan Aulson and a named confederate

(not

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

predicate,

the

of

the "old

plaintiff posits

that

guard."

the

On

ad hoc

this

skimpy

"opposition

__ ___

group"

is a

against it

class,

and that

is class-based

the

defendants' supposed

within the

adjectival term by the Griffin Court.

_______

We have

must allege

defendants conspired against them

a class, and (2)

See Hahn
___ ____

v. Sargent,
_______

(1st Cir.

Clinic,
______

506 U.S.

the

Griffin gloss
_______

facts showing

that (1)

263, 269

the

are invidious.

469 (1st Cir.

1975), cert.
_____

(1976); Harrison v. Brooks, 519

________
______

cf. Bray
___ ____

to

because of their membership in

523 F.3d 461,

1975);

that

We do not agree.

the criteria defining the class

denied, 425 U.S. 904

______

1360

meaning ascribed to

previously interpreted

denote that plaintiffs

animus

v.

F.2d 1358,

Alexandria Women's Health

__________________________

(1993) (holding

that

women seeking

abortions

are not

a class

within the

United Bhd. of Carpenters v.

___________________________

(holding

that

a group

Scott, 463
_____

defined

not

criteria

decided

that qualify

protection of

the

whether

the

classes

1985(3).

See Scott,
___ _____

whether

1985(3)

question of

criteria

1985(3)).

political

1985(3));

U.S. 825,

by economic

constitute a class for purposes of

has

confines of

does not

The Supreme Court

differences are

that

837 (1983)

they define

invidious

for

the

463 U.S. at 837 (reserving

covers

more than

racially

directed conspiracies); Griffin, 403 U.S. at 102 n.9 (same).

_______

Although

question, see infra,

___ _____

institutional voice

Nor need

other federal

we have

to the

we do so today.

courts

not yet had

have

divided on

occasion to lend

rising cacophony that

Whether or not

this

our

surrounds it.

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

and

distinct components.

substantive

gender

or

cognizable class includes two separate

The

first component

characteristic defining

political

affiliation.

the

focuses

class, e.g.,

While

it

is

on the

race

or

universally

acknowledged

that

racial

classes are

1985(3), see, e.g., Griffin,

___ ____ _______

because

classes are

reference

invidious

method

treatment.

See, e.g.,
___ ____

political

for

Perez
_____

v.

aff'd, 898
_____

persons

to

1985(3)

comprises

an

differential

Conklin v. Lovely, 834 F.2d 543, 549 (6th

_______
______

1985(3) may shield a political class);

706 F.2d

Cucci, 725
_____

such consensus

pale of

characteristics

subjecting

Cir. 1987) (holding that

Keating v. Carey,
_______
_____

ambit of

Some courts have concluded that

within the protective

to

the

403 U.S. at 102, no

exists anent political classes.

political

within

377, 387-88 (2d

F. Supp.

F.2d 139 (3d

209,

252 (D.N.J.

Cir. 1990) (table).

reached the opposite conclusion.

Cir. 1983)

(same);

1989) (same),

Other courts have

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,

Rossello,
________

163

(4th Cir.

852 F. Supp. 104,

1985) (same);

Morales-Narv ez v.
_______________

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

particular defining characteristic of

whether there is

any identifiable

not on the

the putative class, but on

class at all.

We

emphasize

that

group

this inquiry

is distinct

denominated by

a particular

from discrimination by

basis

for

from the

1985(3).

discrimination,

the

question of

whether a

characteristic is

sheltered

No matter

allegation

what the

of

alleged

"class-based

animus" naturally presumes that there is a specific, identifiable

class

against

whom

the

Accepting for the sake

the prophylaxis of

defendants

can

have

of argument that political

discriminated.

classes enjoy

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

allegedly

group of

persons who

tortious behavior.

nothing more than a

the basis of

If

bear the

brunt of

a class could

be defined from

shared characteristic that happened

the defendants' actions, the requirement

Scalia put the proposition in these terms:

may

be the

precise

meaning of

"class" for purposes of Griffin's speculative

_______
extension of

1985(3) beyond race, the term

unquestionably connotes something more than a

group of
engage

individuals who
in

conduct

defendant disfavors.
tort

plaintiffs

would

causes of action

under

share a

that

desire to

the

1985(3)

Otherwise, innumerable
be

able

to form

of class-

based animus would be drained of all meaningful content.

Whatever

the same

to

assert

1985(3) by

simply

Justice

defining the aggrieved class as those seeking

to

engage in the

activity the defendant has

interfered with.

Bray, 506 U.S. at 269.

____

Our

defined

solely

own case

on the

law

confirms

basis of

harm

that

a class

inflicted.

Environments, Inc. v. Estabrook, 680 F.2d

___________________
_________

cannot

be

In Creative
________

822 (1st Cir.), cert.

_____

denied,
______

459 U.S.

989 (1982),

we considered

brought by a developer, alleging that a

discriminated against

of rejecting

1985(3) claim

municipal planning board

a class of future homeowners in the course

a proposed subdivision.

developer could sue

We held that

even if the

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

characteristics."

of

this

group

disadvantaged

complaint

Id. at
___

had

by

in

income,

834.

racial,

The only thing that

common

was

the defendants'

"failed to

identify

political and

that

actions.

any definite

satisfy section 1985(3)'s requirement."

The principle that emerges

they

social

the members

stood

to

be

Consequently,

the

class which

would

Id.
___

from these cases is

that a

class, to

be cognizable,

"something

conduct

at

269.

more than

that the

In

characteristic must

opposed

. . .

words, the

line

drawn by

divide individuals into

groups.

by reference

[the members'] desire

1985(3) defendant disfavors."

other

and identifiable

must be identifiable

This means,

to "non-white," see,
___

to engage in

Bray, 506 U.S.

____

the substantive

distinct, separate,

for example, "white"

e.g., Stevens
____ _______

to

v. Tillman,
_______

as

568 F.

Supp. 289, 293 (N.D. Ill. 1983) (holding that whites constitute a

protected class under

see,
___

1985(3)), "female"

e.g., Libertad v. Welch,

____ ________
_____

53 F.3d 428,

10

as opposed to "male,"

449 (1st Cir. 1995)

(holding

that

women

constitute

1985(3)), or, if political

which

we do not opine

other voters, see, e.g.,

___ ____

protected

classes are includable

purposes of

it is comprised

of a

matter on

as opposed to

Keating, 706 F.2d at 379

_______

(holding that

hold, therefore,

1985(3)'s

under

"registered Republicans"

Republicans constitute a protected class under

We

class

that

a class

1985(3)).

is cognizable

for

class-based animus requirement only when

distinctive and identifiable

group.

For

this purpose,

distinctiveness connotes that a

can readily determine by

of

criteria who is

alleged class partly

besides

means of an objective criterion

a member of the

Rodgers v. Tolson, 582

_______
______

or set

is not.

See
___

1978) (rejecting

because it was "impossible to determine who

plaintiffs had failed to

F.2d 1228,

group and who

F.2d 315, 318 (4th Cir.

the [plaintiffs] belong

objectively identified

reasonable person

to this class"

and because the

identify "a larger group that

by an

1233 (1st Cir.

"readily recognizable" in

observer"); Bricker v.
_______

1972) (noting

order to

that a

could be

Crane, 468
_____

class must

come within the

be

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

plaintiff

of

1985(3)'s

class-based animus

defines the group

only as

persons

"opposed to the politics

himself

and

members."

one

As far

other

former

as anybody

persons who

of the old

selectmen

can

requirement.

The

support other

guard," and offers

as

tell, aside

"representative

from these

two

11

"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

only the two individuals

might include

featured in the complaint, or

it might

include anyone whose inclusion would benefit the plaintiff at any

given time.

an

There is simply no way to characterize this group as

identifiable

segment of

objective criteria, and,

class within

1985(3)

opposition

F.2d

1985(3).

to any

a cognizable

See Gleason v. McBride,

___ _______
_______

695 (2d Cir. 1989) (rejecting class status under

when the plaintiff alleged only that he was "a political

opponent

582

by reference

hence, it cannot serve as

the purview of

869 F.2d 688,

the community

of

the

defendants

and

was

extremely

vocal in

his

to their management of the [municipality]"); Rodgers,

_______

at

317

(holding

that

complaint

which

alleged

discrimination

philosophical

describe a

against

opposition to"

The lack

of

persons

municipal

"cognizable class"

cause of action under

this

a class

"in political

commissioners

and therefore failed

did

to state

and

not

1985(3)).3

of distinctiveness is

especially striking in

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

serious problems in this regard.
F.2d 608 F.2d

608, 610

any political class may face

___
But cf. Cameron v. Brock,
___ ___ _______
_____

(6th Cir. 1973)

defined" political classes are

those headaches for another day.

covered by

(holding that
1985(3)).

473

"clearly

We leave

12

this negative definition compound

members

of the

class since

the problem of identifying the

there is

no way

observer to identify the members of the other

_____

be a

few of

incumbents, or

and

the incumbents,

most

of the

some larger aggregation

their adherents.

To put

for

class.

an objective

They could

incumbents, all

the

that includes incumbents

it bluntly, membership in both the

plaintiff's

guard)

proposed class

is, like

beholder.

and

the antagonist

class (the

beauty, almost

exclusively in

the eye

old

of the

This is not the stuff of cognizability.

To sum up, the lone criterion that the plaintiff offers

to define the suggested

the old guard."

class is opposition to the

This description will not do because it draws no

readily identifiable

line.

Objectively speaking,

at most can observe that the putative class

(unknown) persons who support

who object to some

views or

"politics of

practices

is comprised of some

some (unknown) political aspirants

(unknown) aspect of some

of some

enjoyed some (unknown) degree

a third party

other

(unknown) political

(unknown) persons

who

have

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

13

persons

or group that is sufficiently definite or precise to set

against the `class of persons'

terminology in

denied,
______

Consequently, the lower court did

465 U.S. 1103 (1984).

1985(3)"), cert.
_____

not err in dismissing the action.

C
C

We must

attend to a

complaint

by naming one or two additional defendants.

survived

defendants.

motion without

dispositive

The

defendants' motion

court

prejudice

motion

district

to dismiss

on

court

for leave

point, the

asked

the

district

At one

plaintiff

denied

the

last detail.

to

to

amend

renewal if

behalf

of

subsequently

the

The court

the

case

existing

granted

without granting leave

the

the

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

argumentation in

abandoned.

has

advanced

support of it, and

absolutely

so we deem it

See Ryan v. Royal Ins. Co., 916 F.2d

___ ____
_______________

Cir. 1990); United States v. Zannino, 895 F.2d

no

developed

to have been

731, 734 (1st

1, 17 (1st Cir.),

_____________

cert.
_____

_______

denied, 494 U.S. 1082

______

(1990).

Third,

the only amendment

14

that the plaintiff

step

class

sought below involved

that would have done nothing in

for purposes of

would have been futile

1985(3).

adding defendants

terms of better defining a

Thus,

the proposed amendment

and the district court therefore

did not

err in neglecting to

v.

authorize an amended complaint.

See Foman
___ _____

Davis, 371 U.S. 178, 182 (1962); Correa-Martinez, 903 F.2d at

_____
_______________

59.

Relatedly,

something other

if

what the

than adding

plaintiff

now

defendants, he has

has

in mind

not so

is

stated,

and, in all events, we find nothing in the record which indicates

that he

state

could possibly delineate a cognizable

an actionable

circumstances, we

litigation

claim under

will not permit

Mindful

the plaintiff to

of these

string this

out further by attempting to replead in hopes that he

can

resuscitate a case

See
___

Correa-Martinez,
_______________

"needlessly

1985(3).

class and thereby

that, by

903

F.2d

prolong[ing] matters"

futile or would serve

all appearances,

at

59

when "an

is terminal.

(counselling

against

amendment would

be

no legitimate purpose"); Dartmouth Review,

________________

889 F.2d at 23 (similar).

III.
III.

CONCLUSION
CONCLUSION

We

need go

no further.

appropriately granted the defendants'

simultaneously granting

Because

motion to dismiss

leave to amend, the

be

Affirmed.
Affirmed.
________

15

the district

court

without

judgment below must