

                  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. &amp; 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 &amp; 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
