Patterson v. McLean Credit Union Brief Pro Se Amicus Curiae

    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.



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 Appliedto all Contracts, 
and Because the "Case-by-Case 
Method of Determining the Lim­
its of the Runvon 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)



TABLE OF AUTHORITIES
Cases Page
Bhandari v . First National 3ar.!< 

of Commerce, 308 F .2d 1062
(5 Cir. 1987) passim

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

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

Jones v. Alfred H. Maver 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, Resoonaent.
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.



_ 7 _

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
Runvon v. McCrarv, 427 U.S. 160 

(19/0), noiding 42 U.S.C. 5 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



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 tovaru une ooiier party to the pro­
posed contract;

3) if Runvon 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;



if maintained, will leave4) Rur.von
us with an undesirable (or worse) future 

case-bv-case determination of the sep­
aration of "the type of contract offer 

within the reachfc of § 1981 from the type 
without" i Just ice Powell, concurring, in 

Runvon at 427 U.S. 188).
ARGUMENT
I. THE PLAIN LANGUAGE OF 2 14tti 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,



has been set forth in the dissent of Jus­

tice White in Runvon and in Bhandari v. 
First National Bank of Commerce, 808 F.2d 
1082 (5 Cir. 1937, hereinafter "Bhan­

dar i 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

3 1981 0,0ES NOT SUPPORT RUNYON.
As part of its argument directed to 

the legislative history-of § 1981, P e t ­
itioner's Brief on Reargument argues at 
length (p?• 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 Bhandar i I_, to 
what Bhanaar.i I_ calls the third (and "best") 

of this Court's arguments in Jones v.
Alfred H. Maver 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 az 1095). the congressional desire 
aroused by evidence of privatte injustices



against blacks was a desire "to eradicate 
racist practices beyond those the language
of the statute [the Civil Rights Act of 
1366] appearsto reach." That Congress 
knewT 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-
a r o fllc u l 3  tlC ITi3.]<9

As Bhandari _I explains ( 808 P. 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 "Bhandan II"
reported at 829 F.2d 1343. See 829 F.2d



-8-
at 1345-48.

Ia Bhandari II, the full bench of the 
5th Circuit overruled the earlier 5th

Circuit decision o'f Guerra v. Manchester 
Terminal Corn. , 498 F.2d 641 (1974) whicjnii 
had held that §1981 does forbid private 
discrimination based on alienage. A Pet­
ition for Certiorari.- \Tc . 37-1293, was 

filed in this Court on. 2/2/88 for review 

of Bhandari 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.

Justice White's dissent in Runvon

✓



-9-
points out the "logical impossibility"
(4 27 U.S. at 2 06) of holding, as ' Runyon 

doe-s , that U.S. citizens are protected bv 
§ 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- 

as art discrimination. Absent action by 

Congress, not to be counted on, and if 

Runvon 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. § 1324b(a )) added by § 102 

of P.L. 99-603, the Immigration Reform and 
Control Act of 1986, it is an "unfair imm- 
ogration-relatad employment practice" to 

discriminate against an alien on the ground 
of his alienage ("citizenship status"), but
only if the alien is 1a w fully admitted, is
admi tted as a ref ugee, or is granted as-
v 1 nm , and in n v of those cases has com-
Dieted 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



ion here.
The way to avoid both horns of the di- 

lemna is to overrule Runvon and bring 

§ 1981 back to a prohibition of discrimin­
ation by state action only.

IV. RUNY0N: SHOULD 3E RECONSIDERED,
AND OVERRULED, BECAUSE IT CANNOT 
3E APPLIED TO ALL CONTRACTS, AND 
BECAUSE THE "CASE-3Y-CASE" METH­
OD OF DETERMINING THE LIMITS OF 

THE RUNYON RULE LEAVES THE PUB- 
. LIC IN IGNORANCE UNTIL THE JUDIC­

IARY IS LED 3Y THE ACCIDENTS OF 
LITIGATION TO SPEAK. THIS IS NOT 
A SYSTEM OF LAW FOR A FREE PEOPLE.

Concurring in Runvon, 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 Runvon. He also recog­

nizee that it might be (and I submit that 
it clearly is) impossible to draw a 

"bright line" easily separating the typ£ 

of contract offer within the reach of 

§ 1981 (given the Runvon 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 ur.ee 

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 Runvon.
CONCLUSION

I leave to the parties other issues.
With respect however to the issue of stare 
^e(- ̂ s i s , I urge the following: Runvon

is an example of the use of legislative 
nistorv to make a statute mean somethin^



-13-
which it doss not say. As such I submit 
that it is wrong. And it is only one ex­
ample of a growing, and I think pernicious,
tendency,in American law. The Court * )

I

ought to correct this error by overruling

Runvon. If Congress wants to make more
private acts of discrimination illegal than

it has so far, e.g. in the Civil Rights
Acts of 1954 and 1968, and if 'it has the
power under the Constituion to do so, then

that is Congress'prerogative to do.
And it would help our country, if Congress

learned that precision in the drafting of

statutes is vital, and that courts will
not fill out lacunae in statutes by combing

through legislative reports and debates.
Respectfully submitted,

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