McLellan v. Mississippi Power & Light Co.

JOHN R. BROWN, Chief Judge

(specially concurring):

I concur fully in the opinion and result. I add this concurrence to emphasize what Griffin did not decide and why, therefore, Jacobson does not, cannot rule as Fifth Circuit stare decisis.

Griffin, overruling the prior case law, held that some, but not all, private “tortious, conspiratorial interferences with the rights of others” violates § 1985(3). There was racial class-based animus in Griffin. The Court held this sufficient to bring the particular conspiracy within § 1985(3) and specifically pretermitted whether other types of “class-based invidiously discriminatory animus” will be sufficient. 1 Thus Griffin cannot stand for the proposition that only racial animus will trigger a § 1985(3) cause of action for private conspiracy, and the panel in Jacobson v. Industrial Foundation of Permian Basin, 456 F.2d 258 (C.A.5, 1972), in cryptically saying that “Griffin disposes of the issues here involved,” could not have been establishing a rule for this circuit on the issue left open in Griffin. That question certainly was not “disposed of” by Griffin. 2

As Judge Godbold points out, plaintiff Jacobson failed because there was no “class” (in the 1985(3) sense). He asserted the existence of no class other than to refer to the right of every Texas citizen to utilize the state Workmen’s Compensation law and to refer to persons who under that law had filed claims similar *883 to his. This universe — and it is a pretty universal universe — was amorphous, undefined, and on its face far broader than persons having relationship to acts of the defendants, who were West Texas oil operators and a trade association in the Permian Basin of West Texas. The animus alleged was not against the class but only against plaintiff himself.

In contrast, McLellan’s class is narrowly drawn and sharply defined- — -it consists of a substantial number of identifiable persons, employed by a single employer (from its title, presumably doing business in a single state), who are the victims of an admitted company policy that employees who filed petitions in bankruptcy will be discharged. The policy itself defines the class.

. See Griffin v. Breckenridge, supra at 403 U.S. 102 , 91 S.Ct. at 1798, 29 L.Ed.2d 348 n. 9.

. In addition to the post -Griffin cases cited by Judge Godbold recognizing that non-racial animus suffices under § 1985(3), see Glasson v. City of Louisville, 518 F.2d 899 (C.A.6, 1975). The conspiracy was between police officers monitoring the proposed route of a motorcade in which then-President Nixon was to ride. Plaintiffs non-threatening sign, arguably expressing disagreement with presidential policies, was taken and torn up by police pursuant to instructions to seize and destroy all signs considered “detrimental” or “injurious” to the President, which in application meant any sign not favorable to the President. The Sixth Circuit held there was a cause of action under § 1985(3). The class might well be uefined as all persons along the proposed route carrying prohibited signs. The Sixth Circuit described the animus:

A more invidious classification than that between persons who support government officials and their policies and those who are critical of them is difficult to imagine. Appellees drew a line that was not merely invidious but one that also struck at the very heart of the protection afforded all persons ■ by the First and Fourteenth Amendments.

518 F.2d at 912 .