Wheeler v. Montgomery Trial Brief and Brief in Support of Motion for Preliminary Injunction

    No. 87-107
In the Supreme Court of the 
United States,
October Term 1987 
Brenda Patterson, Petitioner 

v.
McLean Credit Union, Respondent
On Writ of Certiorari to the
United States Court of Appeals
For the Fourth Circuit
Brief Pro Se of J. Philip Anderegg,
a Member of the Bar of the
Supreme Court of the United
States, as Amicus Curiae
Supporting Respondent

J. Philip Anderegg,
Counsel of Record 
50 Exeter Street 
Forest Hills, NY 11375 
(718) 268-0206 
Appearing Pro Se

August, 1988



QUESTION PRESENTED

This brief for J. Philip Anderegg 
as amicus curiae deals only with the 
question that the Court in its order of 
April 25, 1988, asked the parties to 
address on reargument: Whether the in­
terpretation of 42 U.S.C. § 1981 ad­
opted by this Court in Runyon v. Mc­
Crary, 427 U.S. 160 (1976), should be 
reconsidered.

(i)



TABLE OF CONTENTS
Interest of Amicus Curiae

Page
2

Summary of Argument 2

Argument 4
I. The Plain Language of § 1981

II. The Legislative History of
§ 1981 does not support Runyon. 5

III. Runyon imposess on § 1981 a 
Conflict with the Rights of 
Aliens Under the Immigration 
and Nationality Act unless, 
Incongruously, That Section is 
Held to Forbid Only State- 
Action-Based Discrimination 
Against Liens, Notwithstand­
ing Its Prohibition, Under 
Runyon, of Private Acts of 
Discrimination Against Citizens 8

IV. Runyon Should be Reconsidered, 
and Overruled, Because it Can­
not Be Applied to all Contracts, 
and Because the "Case-by-Case 
Method of Determining the Lim­
its of the Runyon Rule Leaves
the Public in Ignorance Until the 
Judiciary is Led by the Accid­
ents of Litigation to Speak.
This is not a System of Law
For a Free People. 11

Conclusion 12

Does Not Support Runyon. 4

(ii)



Page
TABLE OF AUTHORITIES

Cases
Bhandari v. First National Bank 

of Commerce, 808 F.2d 1062 
(5 Cir. 1987) passim

Bhandari v . First Nztional Bank 
of Commerce, 829 F.2d 1343 
(5 Cir. 1987) 7,8

Guerra v. Manchester Terminal
Corp, 498 F . 2d 641 (5 Cir.m) 8

Jones v. Alfred H. Mayer Co.,
392 U.S. 409 (1968) 6

Runyon v. McCrary, 427 U.S. 160,
1976 passim

Statutes
Civil Rights Act of 1866 5
42 U.S.C. § 1981 passim
Immigration and Nationality Act,

§ 274B(a) 3, 10
Immigration Reform and Control
Act of 1986, P.L. 99-603 3, 10

(iii)



In The
Supreme Court of the United States 
October Term, 1987 
No. 87-107
Brenda Patterson, Petitioner, 

v .
Mclean Credit Union, Respondent.
On Writ of Certiorari to the United 
States Court of Appeals for the Fourth 
Circuit
BRIEF OF J. PHILIP ANDEREGG AS AMICUS 
CURIAE SUPPORTING RESPONDENT

This brief is submitted, on the 
written consent of the parties, on be­
half of J. Philip Anderegg, a member of 
the Bar of this Court, appearing pro 
se, as amicus curiae in support of the 
respondent. Letters of consent from 
the parties have been lodged with the
clerk.



-2-
INTEREST OF AMICUS CURIAE
The interest of J. Philip Anderegg 

is that of a lawyer, a member of the 
Bar of this Court, desirous of seeing 
clarity, simplicity, and knowability 

in the law.
SUMMARY OF ARGUMENT
Runyon v. McCrary, 427 U.S. 160 

(1976), holding 42 U.S.C. § 1981 to pro­
hibit private acts of discrimination in 
the making of contracts, was wrongly 
decided and should be reconsidered because

1) the language and plain meaning of 
§ 1981 do not support that holding;

2) the legislative history of that
section, while showing a desire on the
part of many members of the 39th Congress 
which enacted
/the Civil Rights Act of 1866 to pro­
vide a Federal remedy for tortious and 
criminal private acts by whites against



-3-
newly emancipated blacks in the immed­
iate post-Civil War period, does not show 
significant support for compelling whites, 
or anyone else, to make (i.e. to enter in­
to) contracts with other persons, of 
whatever race, even when the reluctance or 
refusal on the part of one party to a pro­
posed contract was based on racial an­
imosity toward the other party to the pro­
posed contract;

3) if Runyon was rightly decided, then 
§ 1981 should prohibit acts of private 
discrimination against aliens on the 
ground of their alienage. Such a result 
would be not only unjustified by the lan­
guage and history § 1981; it would be 
in clear conflict with § 274B(a) of the ' 
Immigration and Nationality Act (8 U.S.C.
§ 1324b(a)) as added by § 102 of the Imm­
igration Reform and Control Act of 1986,
P.L. 99-603;



4-
4) Runyon, if maintained, will leave 

us with an undesirable (or worse) future 
case-by-case determination of the sep­
aration of "the type of contract offer 
within the reach* of § 1981 from the type 
without" (Justice Powell, concurring, in 
Runyon at 427 U.S. 188).

ARGUMENT
I. THE PLAIN LANGUAGE OF § 1981 DOES 

NOT SUPPORT RUNYON■
That "the same right ... to make ... 

contracts ... as is enjoyed by white cit­
izens " conferred by § 1981 on ”[a]ll 
persons within the jurisdiction of the 
United States" cannot include a right in 
A to compel B to make a contract with A, 
no matter what the basis of B's unwill­
ingness, because white citizens did not 
"enjoy" such a right at the time of en­
actment of either the Civil Rights Act 
of 1866 or the Voting Rights Act of 1870,



-5-
has been set forth in the dissent of Jus­
tice White in Runyon and in Bhandari v. 
First National Bank of Commerce, 808 F.2d 
1082 (5 Cir. 1987, hereinafter "Bhan- 
dari I") at 808 F.2d 1092-93 better than 
I can. Hence I will not weary the Court 
with further words on the subject.

II. THE LEGISLATIVE HISTORY OF
§ 1981 DOES NOT SUPPORT RUNYON.

As part of its argument directed to 
the legislative history of § 1981, Pet­
itioner's Brief on Reargument argues at 
length (pp. 14 to 54) that the 39th Con­
gress intended section 1 of the Civil 
Rights Act of 1866 to bar all racial dis­
crimination, private as well as state- 
action-based. As to private discriminat­
ion that brief sets forth material pre­
sented to Congress concerning torts and 
crimes committed by whites against 
blacks in the South after the emancipation



-6-
of the slaves. It also sets forth mat­
erial concerning the imposition by whites 
of overreaching, abusive terms in the 
contracts of employment which whites made 
with former slaves, and breaches by 
whites of those contracts, e.g. refusals 
to pay wages due. The understandable 
angry reaction of members of Congress to 
this material is also set forth.

By far most of this material pertains 
however, in the terms of Bhandari I_' to 
what Bhandari I_ calls the third (and "best") 
of this Court's arguments in Jones v.
Alfred H. Mayer Co■, 392 U.S. 409 (1968) 
to support the proposition that § 1 of 
the 1866 Civil Rights Act reaches private 
discrimination. See 808 F.2d at 1092 and 
1094-95. But as Bhandari I notes (808 
F.2d at 1095), the congressional desire 
aroused by evidence of privat0e injustices



-7-
against blacks was a desire "to eradicate 
racist practices beyond those the language 
of the statute [the Civil Rights Act of 
1866] appears/o reach." That Congress 
knew of, and was angered by, torts, crimes 
and breaches of contract committed by 
whites against blacks does not justify 
expanding § 1981 to cover racially motiv­
ated refusals to make contracts.

As Bhandari _I explains (808 F.2d at 
1095), the history of the 1870 Act

is completely different. It leaves 
no doubt that Congress was concerned 
with legal discriminations against 
aliens by the states alone.

The 5th Circuit's reasons for so saying
are set out at 808 F.2d 1095-97, and its
views to the same effect are set out in
even greater detail in its subsequent en
banc decision of the same name dated
October 5, 1987 (hereinafter "Bhandari II")
reported at 829 F.2d-1343. See 829 F.2d



at 1345-48.
In Bhandari II, the full bench of the 

5th Circuit overruled the earlier 5th 
Circuit decision of Guerra v. Manchester 
Terminal Corp., 498 F.2d 641 (1974) whicjfch 
had held that §1981 does forbid private 
discrimination based on alienage. A Pet­
ition for Certiorari, No. 87-1293, was 
filed in this Court on 2/2/88 for review 
of Bhandar i 11 .

III. RUNYON IMPOSES ON § 1981 A CON­
FLICT WITH THE RIGHTS OF ALIENS 
UNDER THE IMMIGRATION AND NAT­
IONALITY ACT UNLESS, INCONGRU- 
ously, that section is held to 
FORBID ONLY STATE-ACTION-BASED 
DISCRIMINATION AGAINST ALIENS, ' 
NOTWITHSTANDING ITS PROHIBITION, 
UNDER RUNYON, OF PRIVATE ACTS OF 
DISCRIMINATION AGAINST CITIZENS.

-8-

Justice White's dissent in Runyon



-9-
points out the "logical impossibility"
(427 U.S. at 206) of holding, as Runyon 
does, that U.S. citizens are protected by 
§ 1981 against private acts of discriminat 
ion whereas aliens are (he suppossed to 
be beyond discussion) protected by the 
same language only against state-action- 
bapsed discrimination. Absent action by 
Congress, not to be counted on, and if 
Runyon is left undisturbed, either our law 
(judge-made) will accept this logical 
impossibility (to the discredit of the law 
I submit), or it will, in the teeth of the 
historical evidence as to the 1870 Civil 
Rights Act detailed in the Bhanaari op­
inions , hold that aliens like citizens 
are protected by § 1981 against private 
acts of discrimination.

This latter is an equally undesirable, 
indeed a wholly unacceptable outcome.
Under section 274B(a) of the Immigration



-lo-
Act, 8 U.S.C. § I324b(a)) added by § 102 
of P.L. 99-603, the Immigration Reform and 
Control Act of 1986, it is an "unfair imm- 
ogration-related employment practice" to 
discriminate against an alien on the ground 
of his alienage ("citizenship status"), but 
only if the alien is lawfully admitted, is 
admitted as a refugee, or is granted as­
ylum, and in any of those cases has com­
pleted a declaration of intention to be­
come a citizen -- and has followed up that 
declaration within time limits and with 
results not necessary to be set out here. 
Moreover, under that same section 274B(a) 
an employer may systematically prefer 
a citizen over an alien if the two are eq­
ually qualified.

I think it fair to call a conflict a 
situation wherein one law prohibits con­
duct which another law, by careful choice of 
languagedoes not, and that is the situat­



-11-
ion here.

The way to avoid both horns of the di- 
lemna is to overrule Runyon and bring 
§ 1981 back to a prohibition of discrimin­
ation by state action only.

IV. RUNYON SHOULD BE RECONSIDERED,
AND OVERRULED, BECAUSE IT CANNOT 
BE APPLIED TO ALL CONTRACTS, AND 
BECAUSE THE "CASE-BY-CASE" METH­
OD OF DETERMINING THE LIMITS OF 
THE RUNYON RULE LEAVES THE PUB­
LIC IN IGNORANCE UNTIL THE JUDIC­
IARY IS LED BY THE ACCIDENTS OF 
LITIGATION TO SPEAK. THIS IS NOT 
A SYSTEM OF LAW FOR A FREE PEOPLE.

Concurring in Runyon, in important 
part because he thought the case did not 
involve a personal contractual relation­
ship such as one in which the offeror se­
lects those with whom he desires to bar­
gain on an individualized basis, Justice 
Powell conceded (427 U.S. at 187-89) that



-12-
some offers to contract should be out­
side the reach of Runyon. He also recog­
nized that it might be (and I submit that 
it clearly is) impossible to draw a 
"bright line" easily separating the typ4 
of contract offer within the reach of 
§ 1981 (given the Runyon decision, he surely 
meant) from the type without, i.e. out­
side it. Justice White expressed similar, 
and more acute misgivings in his dissent 
(427 U.S. at 212). I make bold to urge 
upon the Court that certainty, clarity and 
knowability of rules of law are a high val­
ue, for a free people, and that they are 
set at an undesirable discount by Runyon.

CONCLUSION
I leave to the parties other issues.

With respect however to the issue of stare 
decisis, I urge the following: Runyon
is an example of the use of legislative 
history to make a statute mean something