McLellan v. Mississippi Power & Light Co.

• Citation: 545 F.2d 919
• Decision Date: 20 January 1977
• Docket Number: No. 73-3226,73-3226
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Parties: James H. McLELLAN, Plaintiff-Appellant, v. MISSISSIPPI POWER & LIGHT COMPANY, International Brotherhood of ElectricalWorkers, Local 605 Electrical Workers, Defendants-Appellees.

Page 919

545 F.2d 919

James H. McLELLAN, Plaintiff-Appellant, v. MISSISSIPPI POWER & LIGHT COMPANY, International Brotherhood of ElectricalWorkers, Local 605 Electrical Workers, Defendants-Appellees.

No. 73-3226.

United States Court of Appeals, Fifth Circuit.

Jan. 20, 1977.

W. B. Duggins, Jr., Vicksburg, Miss., Dixon L. Pyles, Jackson, Miss., for plaintiff-appellant.

Sherwood W. Wise, Jackson, Miss., for Miss. Power & Light.

E. Grady Jolly, Jr., Jackson, Miss., for Miss. Power & Light, and others.

Appeal from the United States District Court for the Southern District of Mississippi.

Before BROWN, Chief Judge, GEWIN, THORNBERRY ^*, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, MORGAN, CLARK, RONEY, GEE, TJOFLAT, and HILL, Circuit Judges. ^**

TJOFLAT, Circuit Judge:

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

I

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

In response, McLellan filed a complaint in the United States District Court for the Southern District of Mississippi. The gist of his rather broadly drawn initial pleading was that MPL had in some manner violated either the Bankruptcy Act ⁴ or the United States Constitution. The district court granted, with leave to amend, a motion to dismiss for failure to state a claim upon which relief could be granted. McLellan then amended his complaint, joining the union and his local as party defendants and alleging a violation of, inter alia, section 1985(3). The district court granted MPL's renewed Rule 12(b)(6) motion, entered final judgment dismissing the amended complaint, and McLellan appealed.

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

II

Section 1985(3) states, in relevant part,

If two or more persons in any State or Territory conspire . . . for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; . . . (and) in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.

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

(1) the defendants must conspire

(2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and

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

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

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

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

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

III

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. Harris ¹⁹ 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...