
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.  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).                                          2                    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.                                          3          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).                                          4                    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.                                          5                    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                                          6          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                                          7          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                                          8          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.          ____                                          9                    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)          ___   ____  ________    _____                                          10          (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                                          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  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.                                          12          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                                          13          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          _____  ______                                          14          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.          ________                                          15
