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

* 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

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.

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 the 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 offence 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 1985(3).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) person(s) 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 indeed 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.34B. 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

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 McLellan 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, McLellan endeavors to enforce a private contract right.59 McLellan 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 case; 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 another 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 so,79 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.

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.

I concur in the result reached by the majority. In doing so, however, I find myself in tentative agreement with Part I of Judge Godbold's dissent. Although I would not decide this unbriefed and unargued issue of independent illegality in this case, if it is to be decided, there seems little in the statute or the current law which would support a requirement that to establish § 1985(3) liability, one must show the conspirators conspired to commit an act independently illegal under state law. The statute condemns a conspiracy to achieve a result, not the precise means by which that result is to be accomplished.

Search as I may, however, I have been unable to find anything which would indicate that Congress intended to include the economic act of filing for bankruptcy among the rights protected from economic sanction by section 1985(3). Interestingly, Judge Godbold's analysis depends entirely upon filing for bankruptcy. If McLellan had been fired because he failed to pay his debts, nothing in Judge Godbold's reasoning would afford any basis for a federal damage suit. And yet, when McLellan files for bankruptcy, demonstrating clearly that he never intends to pay his debts, he somehow becomes a member of a protected class.

The implication of any rule contrary to the Court's decision here could have such potentially far-reaching effects that it should not be imposed upon the commercial world without clear, constitutional, legislative action. Construing civil rights acts broadly to cover the wrongs and protect the rights at which Congress was aiming is one thing. To use that principle to create laws that Congress neither spoke to nor thought of is quite another.

I would affirm the dismissal of the § 1985(3) claim.

GODBOLD, Circuit Judge, with whom BROWN, Chief Judge and GOLDBERG, Circuit Judge, join, dissenting:

Five years ago the Supreme Court revived 42 U.S.C. § 1985(3) from quiescence in Griffin v. Breckenridge, 403 U.S. 88, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1971). During the intervening years, litigation over the scope of the provision has centered upon its motivation requirement, and more particularly upon the nature of the "class-based, invidiously discriminatory animus" that must be alleged.

Today the en banc court unveils a wholly new requirement for § 1985(3) liability. It declares that the intended conduct of conspiring defendants must be violative of some law other than § 1985(3) before the conspiracy can be actionable under § 1985(3). This theory has not been discussed at any earlier stage of this litigation, has been neither briefed nor argued by the parties, and has not been perceived by any other circuit in previous § 1985(3) cases.1 Nevertheless, the majority spins out the new standard at length. Then, surprisingly, the en banc court declines to apply this theory to the case before us. Instead it falls back on the more familiar stance of holding that the plaintiff has not satisfied the class-based animus requirement.

Although the majority's discussion of the independent illegality test is really only an advisory opinion, courts will no doubt be urged to follow that test just as if it had been the subject of a holding. For that reason I will devote Part I of this dissent to discussing the unsoundness of the independent illegality standard.

In Part II, I will discuss the majority's disposition of the class-based animus requirement, although my comments will be brief because I have already treated this subject in my opinion for the panel majority.

Finally, Part III will address what I regard as the real motivation behind the majority's decision a fear that § 1985(3) threatens to mushroom into "a general federal tort law." The guiding spirit of today's decision is not methodical and dispassionate legal reasoning but unarticulated judicial distrust of Griffin v. Breckenridge, crystallized into a firm resolve that the reach of the statute and of Griffin must be strictly curbed. Thus, in Part III I will discuss some of the restraints that validly limit the sweep of § 1985(3). This discussion, I hope, will ameliorate judicial fears that Griffin will give rise to a new body of federal tort law, uncertain in dimension.

As the majority recognizes, the starting point for analysis must be the statute itself. Griffin listed four elements essential to a cause of action under § 1985(3). These requirements, paraphrased directly from the statute, are as follows:

To come within the legislation a complaint must allege that the defendants did (1) "conspire or go in disguise on the highway or on the premises of another" (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." It must then assert that one or more of the conspirators (3) did, or caused to be done, "any act in furtherance of the object of (the) conspiracy," whereby another was (4a) "injured in his person or property" or (4b) "deprived of having and exercising any right or privilege of a citizen of the United States."

403 U.S. at 102-03, 91 S. Ct. at 1798-99, 29 L.Ed.2d at 348.

The majority does not deny that three of the four elements are present in the instant case. McLellan has alleged a conspiracy, an act in furtherance of that conspiracy, and a resulting injury. Our sole concern is whether defendants' alleged conspiracy meets criterion (2), the motivation requirement of § 1985(3). Was the conspiracy formed "for the purpose of depriving (McLellan), either directly or indirectly . . . of the equal protection of the laws"?2 This brings us to the point at which I part company with the majority: whether, within the meaning of § 1985(3), the defendant conspirators could seek to deprive McLellan of the equal protection of the laws if their intended action was not illegal under some other law. With all deference, I am convinced that there is no requirement of independent illegality.

Certainly there is nothing on the face of the statute that would lend support to the majority's interpretation. In speaking of a conspiracy aimed at "depriving (the plaintiff) of the equal protection of the laws," the provision unambiguously directs attention to the plaintiff's rights under the law. It does not touch upon the particular defendant's duties under the law, except insofar as the plaintiff's rights may determine them. If it is true that the defendant's alleged activity must amount to a violation of the law independently of § 1985(3), that requirement must derive from a source outside the statutory text.3

The case law is equally unhelpful to the majority's view. When the Supreme Court in Griffin turned to the matter of whether the petitioners' complaint satisfied the motivation requirement of § 1985(3), it did not deal at all with the defendants' liability vel non under Mississippi law. Instead it discussed the plaintiffs' rights, and particularly their rights to "free speech, assembly, association, and movement." The Court did not intimate that the defendants' interferences with these federal rights could lead to § 1985(3) liability only because those interferences were independently illegal. When the Court referred to defendants' alleged "detention, threats, and battery" as establishing a cause of action, 403 U.S. at 103, 91 S. Ct. 1790, 29 L.Ed.2d at 349, it was discussing only the third criterion of the § 1985(3) cause of action, i. e., the necessity of an act in furtherance of the conspiracy. No one denies that the third criterion is met in the instant case.

As for lower court cases, Judge Tjoflat quotes from Lopez v. Arrowhead Ranches, 523 F.2d 924 (CA9, 1974). The complete relevant passage (indeed, even the portion quoted by Judge Tjoflat) is not phrased at all in terms of independent illegality of the conspirators' conduct but wholly in terms of the legal rights of the plaintiffs:

(P)laintiffs have 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. The sole potential source of such a legal right of which we are aware, Title VII's proscription of private employment discrimination on the basis of national origin, 42 U.S.C. § 2000e-2(a)(1), has been held not to bar discrimination on the basis of alienage. Having no legal right per se to be free of the discrimination, the conspiracy not to hire plaintiffs' class does not deprive them of the protection of the laws, and hence is not per se actionable under § 1985(3).

Id. at 927 (cite omitted; footnote omitted). The majority, by some alchemy of reading between the lines, transmutes this precise reference to an absence of rights in the plaintiff into a "thrust" defining the nature of defendants' breach, i. e., the breach must violate some other law.4

With due respect, I think the majority employs Lopez (and, on this point, Griffin as well) purely as a makeweight. The true crux of the suggested independent illegality test is its reliance upon a dictum in U. S. v. Harris, 106 U.S. 629, 1 S. Ct. 601, 27 L. Ed. 290 (1883). In Harris the Supreme Court struck down Rev.Stat. § 5519, a statute governing the same conduct as § 1985(3) but imposing criminal rather than civil penalties. In the discussion on which the majority focuses, the Court was arguing that § 5519 could not be sustained in its entirety under the Thirteenth Amendment. I give the complete argument here, italicizing the sentences quoted by Judge Tjoflat:

There is another view which strengthens this conclusion (that § 5519 cannot be sustained under the Thirteenth Amendment). If Congress has constitutional authority, under the Thirteenth Amendment, to punish a conspiracy between two persons to do an unlawful act, it can punish the act itself, whether done by one or more persons.

A private person cannot make constitutions nor 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 offense against the laws which protect the rights of persons, as by theft, burglary, arson, libel, assault or murder. If, therefore, we hold that section 5519 is warranted by the Thirteenth Amendment, we should, by virtue of that amendment, accord to Congress the power to punish every crime by which the right of any person to life, property or reputation is invaded. Thus, under a provision of the Constitution which simply abolished slavery and involuntary servitude, we should, with few exceptions, invest Congress with power over the whole catalogue of crimes. A construction of the Amendment which leads to such a result is clearly unsound.

106 U.S. at 642-43, 1 S. Ct. at 612, 27 L.Ed. at 295 (emphasis added).

Although the majority characterizes the italicized language as a holding, it is apparent that these two sentences are something less than directly controlling authority for our purposes. They were pronounced in the course of a constitutional discussion, and there are no constitutional issues in controversy here.5 Moreover, they were not directed at the conspiracy provisions (§ 5519 and § 1985(3)), but instead at a hypothetical statute punishing "the act itself." The en banc court must be saying that this passage, even if not technically binding, should be respected and followed as the Supreme Court's definitive explanation of how "one private person can deprive another of the equal protection of the laws." For several reasons, however, I cannot accept even that more modest position.

First, even on its face the Harris opinion belies any assumption that these two sentences were a carefully considered construction of Rev.Stat. § 5519. The Justices had little incentive to develop a workable interpretation of the statutory wording, since they were striking down the statute as unconstitutional anyway. These two sentences were merely passing observations penned as part of a reductio ad absurdum constitutional argument built upon rigid and now-obsolete juridical premises.6 Such offhand remarks should not be confused with a serious effort to impart permanent meaning to Congress' phraseology.

This conclusion is reinforced by the fact that the Harris Court's theory had a rather short life span in the Supreme Court. Less than nine months later, the Court evidently changed its mind and indicated that committing a private crime against another person is not the same thing as depriving him of equal protection under the laws. See Civil Rights Cases, 109 U.S. 3, 3 S. Ct. 18, 27 L. Ed. 835 (1883).7

More fundamentally, the Harris dictum is obsolete because of its incompatibility with the spirit of Griffin v. Breckenridge. This passage reflects the highly unsympathetic approach to the Reconstruction civil rights statutes that was typical of Supreme Court opinions in the late nineteenth century. Griffin is a clear indication that the Court is prepared to take a more expansive view of § 1985(3) and would not follow Harris 's crabbed construction today.

A further reason I cannot accept the theory that depriving a person of "equal protection of the laws" entails committing a private crime or tort is that the equation is so illogical. Common sense tells us that private individuals can, without breaking any specific law, place cognizable obstacles in the path of someone's "equal enjoyment of legal rights." I believe that § 1985(3) was enacted to provide redress where legal rights are thus endangered.

In response to my "common sense" argument it may be suggested that to "deprive" a person of legal rights, as the term is used in § 1985(3), means something more than mere interference or obstruction. Yet, putting aside the conspicuous fact that the statute specifies that the deprivation may occur "either directly or indirectly," I do not believe that the connotations of "deprive" necessarily lead us to the conclusion that § 1985(3) liability depends on a violation of other law. The case law under 42 U.S.C. § 1983 calls for an opposite conclusion. Section 1983 imposes liability on every person who, under color of law, "subjects or causes to be subjected, any citizen . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws . . . ." It seems fair to assume that the word "deprive" is used with a single meaning in these two statutes, since they were enacted simultaneously.8 And under the precedents a private person can be held to have caused a § 1983 "deprivation" of legal rights without regard to whether his acts are independently illegal. Adickes v. Kress & Co., 398 U.S. 144, 171-72, 90 S. Ct. 1598, 26 L. Ed. 2d 142, 162 (1970); Smith v. Brookshire Brothers, Inc., 519 F.2d 93 (CA5, 1975), cert. denied, 424 U.S. 915, 96 S. Ct. 1115, 47 L. Ed. 2d 320 (1976).9

The decision of the en banc court does have its historical ironies. Over the decades one focal point in controversies over the Reconstruction civil rights statutes has been whether other state or federal remedies will adequately protect plaintiffs' interests, or whether, instead, those remedies need to be supplemented by federal civil rights remedies. See, e. g., Preiser v. Rodriguez, 411 U.S. 475, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973) (§ 1983 versus other federal remedies); Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961) (§ 1983 versus state remedies); Collins v. Hardyman, 341 U.S. 651, 71 S. Ct. 937, 95 L. Ed. 1253 (1950) (§ 1985); U. S. v. Waddell, 112 U.S. 76, 5 S. Ct. 35, 28 L. Ed. 673 (1884) (§ 241). Now the prevailing opinion suggests that existence of independent illegality, presumably carrying with it some alternative remedy, is a prerequisite for § 1985(3) recovery. I would have thought that the strongest, not the weakest, case for application of § 1985(3) is presented when no other law protects the exercise of an important right.

Thus it appears that the majority's theory, although extensively researched, has serious analytic defects. Some will perhaps defend it on the ground that, whatever its deficiencies, at least it provides a means of keeping the statute within manageable bounds. I do not regard the supposed spectre of sweeping § 1985(3) liability as very menacing, for reasons that will be explained in Part III of this opinion. Assuming the need for some new limitation, however, the independent illegality test does not commend itself as a very workable proposal. The uncertainties it embodies become apparent when the majority tries to apply it to McLellan's complaint. After surveying a number of possible theories that might suffice to make the defendants' alleged conduct illegal, the majority finds most of these theories wanting. But the analysis of the various ways in which McLellan does not qualify under this standard turns out to be unimportant, because in one way he does qualify. His complaint alleges that the defendants, in conspiring to bring about his discharge, intended to act in violation of their duties under the contract of employment. I see no reason why this allegation should not satisfy the independent illegality test as the en banc court has outlined it,10 and Judge Tjoflat does not seriously argue that the allegation is insufficient.11

The unwieldiness of the majority's gloss on § 1985(3) is manifest. Before the test can affect a given plaintiff, the court must canvass every law that might be thought to prohibit the defendants' intended conduct. The court must even survey the laws of the state where the claim arose, although federal judges are not experts on state law, and although one would not initially think that § 1985(3) liability should depend on what conduct the state has chosen to proscribe.

In my opinion for the panel majority, I discussed in detail my reasons for believing that McLellan satisfied the "class-based animus" requirement sufficiently to survive a motion to dismiss. The problem, as I see it, involves ascertaining the strength and scope of the federal policy of solicitude for bankrupts or potential bankrupts. Since, as the panel opinion observed, this is a complicated and close question, I can understand why the en banc court has struck a different balance on that narrow subject. I am concerned, however, about some of the broader principles that the majority has invoked to bolster its position. In my view they are misconceived and call for comment.

Judge Tjoflat draws attention to the "lawless conditions existing in the South" that prompted enactment of the Ku Klux Klan Act. This historical account is apparently mentioned as a means of contrasting those conditions with the gravamen of McLellan's complaint. But since the majority has seen fit to draw its legislative history almost exclusively from Justice Douglas' summary of the congressional debates in Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961), we would do well to remember Justice Douglas' remark about the limited relevance of that history: "Although the legislation was enacted because of the conditions that existed in the South at that time, it is cast in general language . . . ." 365 U.S. at 183, 81 S.Ct. at 482, 5 L. Ed. 2d at 502-03 (emphasis added).

On the specific question of whether the class-based animus requirement limits § 1985(3) to remedying the problems that were uppermost in the Forty-second Congress' mind, the Supreme Court has already hinted at an expansive approach. In Griffin the Court observed that the record before it did not present an issue of whether nonracial animus would be covered by the statute. At the same time the Court cited a remark of Senator Edmunds (one of the managers of the bill) as bearing on the issue, 403 U.S. at 102 n. 9, 91 S. Ct. 1790, 29 L. Ed. 2d 348 n. 9. That remark is as follows:

We do not undertake in this bill to interfere with what might be called a private conspiracy growing out of a neighborhood feud of one man or set of men against another to prevent one getting an indictment in the State courts against men for burning down his barn; but, if in a case like this, it should appear that this conspiracy was formed against this man because he was a Democrat, if you please, or because he was a Catholic, or because he was a Methodist, or because he was a Vermonter, (which is a pretty painful instance that I have in mind in the State of Florida within a few days where a man lost his life for that reason,) then this section could reach it.

42d Cong., 1st Sess. 567 (1871), reprinted in A. Avins, The Reconstruction Amendments' Debates 547 (1967). I take it that the significance of Senator Edmunds' comment is that § 1985(3) reaches beyond racially based conspiracies12 and beyond the problems perceived to be pressing in 1871. At a minimum it supports the majority's intimation that the provision is open-ended rather than static in the rights it protects.

I also take issue with the majority's tentative attempt to equate the rights protected by § 1985(3) with the familiar yet vague category of "fundamental rights." This sounds like the language associated with "strict scrutiny" under the Fourteenth Amendment. In the panel opinion I have suggested that a class need not be a Fourteenth Amendment "suspect group" in order to qualify for protection under § 1985(3). 526 F.2d at 877-78 n. 15. The same reasoning is applicable here.

It is not clear to me whether the majority would agree with what has been said in this section. If it would, then perhaps we disagree only on the relationship between § 1985(3) and the right to file in bankruptcy. On that score the panel opinion speaks for itself and I am content to rest on what it says.

III. A "General Federal Tort Law"?

The majority's suggestion of engrafting the independent illegality test upon § 1985(3), together with its possibly too narrow application of the class-based animus requirement, can be traced to a fear of allowing a "general federal tort law" to creep into our civil rights jurisprudence. The fear is unnecessary. The construction of the statute enunciated in the panel opinion does not imply unacceptably broad liability. There are several constraining factors that will tend to keep the statute within manageable bounds in any event.

First, there must be a conspiracy. Without committing myself at this time to its correctness, I call attention to the Seventh Circuit's holding that a corporation cannot conspire with itself, for purposes of § 1985. Dombrowski v. Dowling, 459 F.2d 190 (CA7, 1972). Thus, for example, if McLellan had not succeeded in joining his union as a party defendant (under a ruling of the panel that is not affected by today's decision), he would have been out of court under the Dombrowski test.

Second, under Griffin the animus behind the conspiracy must be "class-based". One who reads the reported cases on this statutory provision will notice that courts have readily dispensed with most § 1985(3) claims upon finding that the alleged deprivation was attributable to the plaintiff's individual situation rather than his class membership. See, for example, the cases discussed in the panel opinion, 526 F.2d at 877.

Third, as illustrated by today's holding, not every class is necessarily protected from discrimination under § 1985(3). Even if the en banc court had agreed with the panel that a class of bankrupts falls within the statutory coverage, other protected classes would have had to be determined as the cases presented them for decision.

Fourth, the panel decision specifically observed that under Griffin the plaintiff would have to prove that the alleged discriminatory intent was "invidious". 526 F.2d at 879. Thus, contrary to what the majority seems to think, 545 F.2d at 927 n. 33, the panel did not contemplate that the animus requirement would be satisfied simply by a showing that the defendants' conspiracy was directed against a protected class. Because of the "invidiousness" criterion, legitimate commercial practices would not have been jeopardized by the panel's construction. Although the en banc court indicates that it might have been willing to hold that "discrimination practiced against bankrupts is not the type of 'invidious' animus envisioned by the (Supreme) Court," id. at 933 n. 81, I would not have reached such a conclusion on the bare record presented by this appeal. I believe the panel's decision to remand for factual exploration of the propriety of MPL's policy was sounder.

Fifth, even a plaintiff who meets all of Griffin's prerequisites for a prima facie case must contend with the possibility that the defendant will raise affirmative defenses. The Supreme Court has held that 42 U.S.C. § 1983 does not abolish all common-law defenses but rather is to be read in light of the principles of official immunity discernible in "the background of tort liability" in this country. Pierson v. Ray, 386 U.S. 547, 87 S. Ct. 1213, 18 L. Ed. 2d 288 (1967). It is reasonable to suppose that § 1985(3), enacted as part of the same piece of legislation, is confined within similar bounds. Indeed, the first Supreme Court case sustaining an official immunity defense under § 1983, Tenny v. Brandhove, 341 U.S. 367, 71 S. Ct. 783, 95 L. Ed. 1019 (1951), also involved a § 1985(3) claim, which the Court treated identically. More recently, this court has specifically held that some of the immunity defenses available under § 1983 are also available under § 1985.13

Sixth, any § 1985(3) case potentially raises a question of Congress' constitutional power to impose liability for the conduct alleged. The Court in Griffin explicitly declined to hold that § 1985(3) could constitutionally be applied to every conspiracy falling within the statute's terms. 403 U.S. at 104, 91 S. Ct. 1790, 29 L.Ed.2d at 349.

In view of all these factors, I see no justification for the majority's discussion of placing an arbitrary barrier in the path of § 1985(3) plaintiffs. For the reasons stated here and in the panel opinion, I dissent.