Nanko Shipping, USA v. Alcoa, Inc.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 23, 2016 Decided March 10, 2017

No. 15-7070

NANKO SHIPPING, USA, PARENT COMPANY OF NANKO

SHIPPING GUINEA, ET AL.,

APPELLANTS

v.

ALCOA, INC. AND ALCOA WORLD ALUMINA, LLC,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:14-cv-01301)

Donald M. Temple argued the cause and filed the briefs for

appellants.

Thomas E. Birsic argued the cause for appellees. With

him on the brief were Matthew J. Louik and David T. Case.

Before: ROGERS, BROWN and PILLARD, Circuit Judges.

Opinion for the Court filed by Circuit Judge PILLARD.

Dissenting opinion filed by Circuit Judge BROWN.

2

PILLARD, Circuit Judge: The Republic of Guinea is one of

the world’s principal sources of bauxite, an aluminum ore.

After Guinea declared independence from France in the middle

of the last century, it sought to ensure that the exploitation of

its natural resources would not only provide business for

multinational corporations based overseas that invested in the

ore’s extraction, but would also benefit the Guinean economy.

Plaintiff Nanko Shipping Guineé (Nanko) claims to be the

beneficiary of one of Guinea’s legal undertakings to that end,

and contends in this case that defendants (collectively, Alcoa)

violated corresponding obligations. Other named plaintiffs—

Nanko’s owners, Nanko Shipping USA and Mori Diané, an

American of Guinean descent—are not before us, having not

appealed the district court’s order dismissing them for lack of

standing.

The district court granted Alcoa’s motion to dismiss the

complaint under Federal Rule of Civil Procedure 12(b)(7) for

failure to join Guinea, which Alcoa asserts is a Rule 19 required

party. The district court concluded that Guinea could not be

joined because it is entitled to sovereign immunity. But it is

not apparent why Guinea is a required party and, if it is,

whether Nanko’s allegations bring Guinea within the

commercial-activity exception to foreign sovereign immunity

such that its joinder would be feasible. We accordingly reverse

and remand for further proceedings.

I.

On review of the order granting the motion to dismiss, we

assume—as did the district court—the truth of the facts alleged

in Nanko’s proposed Second Amended Complaint. According

to that complaint, in 1963 the Republic of Guinea and the

Harvey Aluminum Company of Delaware (now Halco) signed

an agreement establishing the Compagnie des Bauxites de

3

Guinée (CBG) for the purpose of developing Guinea’s rich

bauxite mines. 1 CBG is a corporation of which Guinea owns a

49 per cent share and Halco 51 per cent. Nanko alleges that

defendant Alcoa, in turn, is somehow both the minority owner

and alter ego of Halco. Over the last half century, CBG has

extracted and exported more than 600 million tons of Guinean

bauxite.

Under Article 9 of the CBG Agreement, Guinea reserved

the right to require that up to 50 per cent of the Republic’s

bauxite be shipped on vessels flying the Guinean flag or

chartered by the Guinean government, provided that the freight

rates those Guinean shippers offered are no higher than, and the

services equal to, those otherwise available on the international

shipping market. That clause presumably was designed to

ensure that some of the business generated by the bauxite mines

would go to qualified Guinean shipping firms and thereby

benefit the Guinean economy.

Nanko alleges that, in August 2011, Guinea entered into a

Technical Assistance Agreement (TAA) with Nanko. That

document is neither quoted in nor attached to the pleadings, nor

is it otherwise in the record. Pursuant to the TAA, Nanko

alleges, it “assumed Guinea’s rights” under Article 9 of the

CBG Agreement “to manage, control and ship” up to 50 per

cent of Guinean-produced bauxite. Prop. Second Am. Compl.

at 2.

Later in 2011, CBG’s Board of Directors allegedly invited

its constituent corporations, including Halco and Alcoa, to

contact Nanko to make shipping arrangements. Nevertheless,

1

Nanko calls this agreement a “convention,” see Appellant’s

Br. 2, but that term usually denotes an accord between states. The

cover page of the agreement describes it as an “Agreement Between

the Republic of Guinea and Harvey Aluminum Co. of Delaware.”

4

Halco and Alcoa refused to deal with Nanko, offering “only a

few limited micro-tender shipping opportunities” that were

“substantially less in value and volume than the shipping rights

and contracts” to which Nanko claims it is entitled under the

TAA. Prop. Second Am. Compl. ¶¶ 26, 46. Halco and Alcoa

allegedly added insult to injury, posing questions about

Nanko’s “background and capacity” that were not asked of

other shipping companies and then refusing to credit Nanko’s

responses. Id. at ¶¶ 42, 65. Guinea, for its part, “repeatedly

urged” Halco and Alcoa to hire Nanko to ship their bauxite. Id.

at ¶ 76.

In this action, Nanko initially brought two claims: one for

breach of the CBG Agreement, asserting that it is a third-party

beneficiary thereof, and another for racial discrimination in

violation of 42 U.S.C. § 1981. Alcoa moved to dismiss on a

variety of grounds, including lack of standing, failure to state a

claim, and failure to join a required party. Nanko responded

with a proposed Second Amended Complaint adding Halco as

a defendant and asserting an additional claim against Alcoa for

tortious interference with contractual relations.

The district court dismissed the case under Rule 12(b)(7)

for failure to join a Rule 19 party. Guinea was a required party

under Rule 19(a), the court concluded, because resolving

Nanko’s claims would depend on defining Guinea’s rights

under its CBG Agreement with Halco, which might “impair or

impede Guinea’s right to protect its interests” under that

Agreement. Nanko Shipping, USA v. Alcoa, Inc., 107 F. Supp.

3d 174, 181 (D.D.C. 2015) (“Nanko I”). Proceeding to the Rule

19(b) inquiry, the court concluded Guinea could not be joined

because it is entitled to sovereign immunity, and that the case

could not “in equity and good conscience” proceed in Guinea’s

absence. Id. at 181-82. Although it considered the allegations

of the proposed Second Amended Complaint in its analysis, the

5

district court denied leave to file that complaint on grounds of

futility because it concluded that, even if it accepted the

additional allegations, it would still conclude that the case

cannot proceed without Guinea.

The district court alternatively noted that if Guinea could

be joined the case “would have to be dismissed so that the

parties could proceed to mandatory arbitration.” Nanko I, 107

F. Supp. 3d at 182 n.7. Because it is not clear on the present

record that Alcoa (as distinct from Halco and CBG) bound

itself to the relevant arbitration agreement, and because the

parties have not briefed the issue, we do not here address that

ground.

Nanko timely appealed and simultaneously moved the

district court to reconsider its dismissal of the discrimination

claim. The district court denied the reconsideration motion in

an order that postdates Nanko’s notice of appeal. See Nanko

Shipping, USA v. Alcoa, Inc., 118 F. Supp. 3d 372 (D.D.C.

2015) (“Nanko II”). In that order, the district court said that it

had dismissed the discrimination claim for failure to state a

claim, though its original dismissal rested exclusively on Rule

19 grounds. We conclude that the district court’s Rule 19

holding failed to fully grapple with Nanko’s allegations and

that those allegations, accepted as true, state a claim for racial

discrimination under § 1981.

II.

Federal Rule of Civil Procedure 19 calls on a district court

confronting a Rule 12(b)(7) motion to dismiss a case for failure

to join an absent party to decide first (under Rule 19(a))

whether the absent party should be joined, and, if joinder is

infeasible, to assess (under subsection (b)) whether the action

among the existing parties should proceed or be dismissed in

light of the missing party’s absence. We have summed up the

6

Rule 19 inquiry as posing three questions: Should the absentee

be joined, i.e., is it necessary to the litigation? If so, can the

absentee be joined? And finally, if the absentee should but

cannot be joined, may the lawsuit nonetheless proceed “in

equity and good conscience”? W. Md. Ry. Co. v. Harbor Ins.

Co., 910 F.2d 960, 961 (D.C. Cir. 1990); see Kickapoo Tribe

of Indians of Kickapoo Reservation in Kan. v. Babbitt, 43 F.3d

1491, 1494 (D.C. Cir. 1995). Rule 19 promotes fair treatment

of nonparties in certain circumstances where their interests, and

particularly their due process rights, are at risk from litigation

between others. It also seeks to avoid multiple and wasteful

litigation, such as where the absence of a party would prevent

the court from granting the relief sought or expose an existing

party (typically the defendant) to a substantial risk of incurring

double, multiple, or otherwise inconsistent obligations. Rule

19 does not apply merely because dispute resolution would be

more efficient with the nonparty’s participation, nor because

the pending case could yield precedent adverse to the

absentee’s interests. A decision under Rule 19 “not to decide” a

case otherwise properly before the court is a power to be

exercised only “[i]n rare instances.” Nat’l Ass’n of Chain

Drug Stores v. New England Carpenters Health Benefits

Fund, 582 F.3d 30, 42 (1st Cir. 2009); see also Fort Yates Pub.

Sch. Dist. No. 4 v. Murphy ex rel. C.M.B., 786 F.3d 662, 671

(8th Cir. 2015).

We review the district court’s application of Rule 19(b)’s

“equity and good conscience” test for abuse of discretion,

Cloverleaf Standardbred Owners Ass’n, Inc. v. Nat’l Bank of

Wash., 699 F.2d 1274, 1276 (D.C. Cir. 1983), but “[q]uestions

of law that inform a district court’s Rule 19 determination are

reviewed de novo,” Am. Trucking Ass’n, Inc. v. N.Y. State

Thruway Auth., 795 F.3d 351, 356 (2d Cir. 2015). Under Rule

12(b)(7), we accept Nanko’s allegations as true and draw

all reasonable inferences in its favor. Paiute-Shoshone Indians

7

of the Bishop Cmty. of the Bishop Colony, Cal. v. City of

Los Angeles, 637 F.3d 993, 996 n.1 (9th Cir. 2011). We

have not specifically addressed the standard of review of

decisions whether an absent party is necessary and whether it

cannot be joined—the first and second questions in the above

triad—and we need not do so here. Under any standard of

review, we cannot, on the current record, affirm the

district court’s conclusion that Alcoa has shown that

Guinea is a necessary party to this litigation that cannot be

joined, and that the case accordingly must be dismissed.

The district court determined that Guinea is a potential

party required to be joined if feasible. Guinea is a necessary

party under Rule 19, the district court held, simply because

“[t]he Court’s interpretation of the [CBG Agreement] may

impair or impede Guinea’s right to protect its interests” under

that Agreement. Nanko I, 107 F. Supp. 3d at 181. But due

process protects Guinea from being bound by any judgment

rendered in its absence, and it is not obvious what interests

Guinea would retain in the CBG Agreement if Nanko

“assumed Guinea’s rights” thereunder, as Nanko alleges. Prop.

Second Am. Compl. at 2. See SEC v. Bilzerian, 378 F.3d 1100,

1108 (D.C. Cir. 2004) (absent party not required to be joined

where it merely assigned rights to party). Alcoa expresses

concern that the court might “construe the CBG [Agreement]

in a manner inconsistent with or contrary to Guinea’s own

understandings or positions, without the opportunity for

Guinea to be heard.” Appellee Br. at 29. Rule 19 precedent is

admittedly scant, but we agree with the Third Circuit that “the

requirements of Rule 19(a) are not satisfied simply because a

judgment against Defendants in this action might set a

persuasive precedent in any potential future action.” Huber v.

Taylor, 532 F.3d 237, 250 (3d Cir. 2008). Insofar as the

existing parties’ interests are concerned, evidence of Guinea’s

actions, views, or prerogatives can be discovered and

8

introduced where relevant to the parties’ claims and defenses

even if Guinea remains a nonparty. At the current pleading

stage, we do not believe the allegations can reasonably be read

to show that Guinea is a necessary party.

The district court further held that Guinea could not be

joined involuntarily on the ground that it is entitled to sovereign

immunity under the Foreign Sovereign Immunities Act (FSIA),

28 U.S.C. § 1602 et seq. See Nanko I, 107 F. Supp. 3d at 181.

The FSIA “renders a foreign government ‘presumptively

immune from the jurisdiction of United States courts unless

one of the Act’s express exceptions to sovereign immunity

applies.’” Bank Markazi v. Peterson, 136 S. Ct. 1310, 1317 n.1

(2016) (quoting OBB Personenverkehr AG v. Sachs, 136 S.Ct.

390, 394 (2015)). Under the FSIA, a foreign state is not

immune from claims “based [1] upon a commercial activity

carried on in the United States by the foreign state; or [2] upon

an act performed in the United States in connection with a

commercial activity of the foreign state elsewhere; or [3] upon

an act outside the territory of the United States in connection

with a commercial activity of the foreign state elsewhere and

that act causes a direct effect in the United States.” 28 U.S.C.

§ 1605(a)(2).

Nanko and Alcoa sparsely briefed the immunity issue

before the district court. That court’s immunity holding rested

exclusively on Nanko’s failure to “contest” Alcoa’s bare

assertion that the court lacked jurisdiction over Guinea. See

Nanko I, 107 F. Supp. 3d at 181 n.6. But Nanko did contest the

point. See Opp’n to Mot. to Dismiss at 24 (characterizing as “a

red herring and meritless” Alcoa’s argument that “because

Guinea is a foreign sovereign this Court lacks jurisdiction”).

And Nanko’s motion for reconsideration argued that the court

was “not in [a] position to resolve,” absent discovery, what

Nanko identified as the “fact question” whether Guinea “enjoys

9

sovereign immunity.” Mot. for Recons. at 4. Nanko’s

assumption that Alcoa’s assertion of Guinea’s immunity “may

be correct” is not, in context, fairly read to concede the matter.

See Opp’n to Mot. to Dismiss at 25. Nor did Nanko give up

the point in its motion for reconsideration by stating that the

district court “properly acknowledged that it [has no]

jurisdiction over … Guinea as a sovereign entity.” Mot. for

Recons. at 6 (emphasis added). That statement leaves open a

critical question for FSIA purposes: whether the district court

has jurisdiction over Guinea as a commercial actor.

Before this Court, Alcoa argues in a footnote that Nanko

“has utterly failed to allege any facts” establishing a FSIA

exception, thus failing to overcome the “presumption of

immunity.” Appellee Br. at 35 n.54 (citing Bell Helicopter

Textron, Inc. v. Islamic Republic of Iran, 734 F.3d 1175, 1183

(D.C. Cir. 2013)). That is not necessarily so. Most notably,

Nanko alleges that the CBG Board—of which Guinea is a

member—hosted a 2011 meeting in New York City at which

Guinea “announced its authorization and contract award to

[Nanko] regarding shipment of bauxite.” Prop. Second Am.

Compl. ¶ 22. That alleged authorization appears to be central

to Nanko’s theory of the case. For instance, it is that

authorization on which Nanko rests its claim that defendants

knew of but disregarded their contractual responsibility to deal

with Nanko to ship bauxite out of Guinea. The facts as Nanko

alleges them suggest that Guinea’s participation in the shipping

of bauxite falls within the FSIA’s commercial-activity

exception.

At this preliminary stage, based only on the pleadings, we

see no adequate basis for the district court’s dismissal of the

complaint under Rule 12(b)(7). With the benefit of discovery

and further briefing, as appropriate, the district court may wish

to revisit the Rule 19 issues. Further proceedings may help to

10

clarify what interests of Guinea, if any, would be impaired in

its absence, what role Guinea would play in this litigation if

joined, and whether sovereign immunity prevents its

involuntary joinder here. See In re Papandreou, 139 F.3d 247,

252 (D.C. Cir. 1998) (district courts often must “look beyond

the pleadings” to decide whether an FSIA exception applies);

Ilan-Gat Eng’rs, Ltd. v. Antigua Int’l Bank, 659 F.2d 234, 242

(D.C. Cir. 1981) (“[T]he court failed to consider whether more

facts were needed before making the indispensable party

determination given the rather unusual situation before it.”).

III.

Our dissenting colleague would hold that the complaint

failed to state a section 1981 claim sufficient to withstand a

motion to dismiss under Federal Rule of Civil Procedure

12(b)(6). We disagree.

Section 1981 protects the right “to make and enforce

contracts” free from racial discrimination, 42 U.S.C. § 1981(a),

and the pleading standards under section 1981 track those in

the familiar McDonnell Douglas rubric for alleging a prima

facie case of purposeful employment discrimination. See

Patterson v. McLean Credit Union, 491 U.S. 164, 186 (1989)

(citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248

(1981), and McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973)); Brown v. Sessoms, 774 F.3d 1016, 1022-23 (D.C. Cir.

2014) (citing McDonnell Douglas, 411 U.S. at 802-04). The

plaintiff’s initial burden “is not onerous.” Patterson, 491 U.S.

at 186. Further, discrimination against a business based on the

race of its owner violates section 1981. See McClain v. Avis

Rent A Car Sys., Inc., 648 F. App’x 218, 222 n.4 (3d Cir. 2016);

Gersman v. Group Health Ass’n, Inc., 931 F.2d 1565, 1567-70

(D.C. Cir. 1991), vacated on other grounds, 502 U.S. 1068,

reinstated, 975 F.2d 886 (D.C. Cir. 1992). Nanko alleges that

11

Alcoa, aware of Diané’s race, treated the company he owns and

operates less favorably than similarly situated white-owned

companies. See, e.g., Prop. Second Am. Compl. ¶¶ 3, 17, 57-

68. By alleging those basic elements of a prima facie case of

intentional discrimination, Nanko raised its “right to relief

above the speculative level.” Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 555 (2007); see Brown, 774 F.3d at 1023

(plaintiff stated section 1981 claim where she “identified a

similarly-situated employee who is not in her protected class

and explained why she has equivalent qualifications”). The

burden at the summary judgment stage and at trial is different

and substantially more onerous than the pleading burden.

Allegations regarding comparators, racial comments, and

pretext obviously strengthen a discrimination complaint, but

the evidentiary requirements the dissent identifies are

inapplicable at the pleading stage.

We do not reach any of the other grounds, such as the

applicability of a mandatory arbitration clause in the CBG

Agreement, on which Alcoa moved to dismiss. The absence of

a putative required party is not a jurisdictional question. Ilan-

Gat Eng’rs, Ltd., 659 F.2d at 240. The district court

accordingly may decide to address those other grounds on

remand before or in tandem with further consideration of the

Rule 19 issue.

***

For the foregoing reasons, we reverse the district court’s

dismissal of the complaint and remand for further proceedings.

So ordered.

BROWN, Circuit Judge, dissenting: The Court finds the

question whether the Foreign Sovereign Immunities Act

(“FSIA”) applies—and therefore whether jurisdictional

discovery is necessary—was properly presented to the district

court. Op. 8–9. Its opinion further holds the district court

erred in deciding Nanko failed to state a claim upon which

relief can be granted for violations of 28 U.S.C. §§ 1981 and

1985. Op. 10–11. I disagree on both points and respectfully

dissent.

I.

The district court specifically noted, “Plaintiffs do not

contest the assertion that Guinea is protected from suit by

sovereign immunity.” Nanko Shipping, USA v. Alcoa, Inc.,

107 F. Supp. 3d 174, 181 n.6 (D.D.C. 2015) (citing Nanko’s

opposition to Alcoa’s motion to dismiss). We, therefore,

review Nanko’s filings in the district court to determine

whether the court abused its discretion in finding the

argument forfeited. See GSS Grp. Ltd. v. Nat’l Port Auth.,

680 F.3d 805, 812 (D.C. Cir. 2012). It did not.

Nanko’s brief opposing the motion to dismiss contains

two relevant statements:

• “Defendants claim that Guinea is an indispensable

party and further allege that because Guinea is a

foreign sovereign this Court lacks jurisdiction under

the Foreign Soverign [sic] Immunities Act, unless a

specified exception applies. This argument is a red

herring and meritless. Contrary to Defendants’

contention, there is no basis for Guinea involvement

given the Technical Assistance Agreement . . . ,” and

• “[w]hile Defendants may be correct in its [sic] view

that this Court lacks jurisdiction over Guinea,

Defendants miss two critical facts; as plead, the CBG

and the TAA are valid legal contracts.”

2

Nanko Opp’n to Alcoa Mot. to Dismiss at 24–25, Nanko

Shipping, USA v. Alcoa, Inc., No. 14-cv-1301 (D.D.C. Sept.

25, 2014), ECF No. 11. These statements, read together and

in succession, discuss whether Guinea was an indispensable

party, mentioning the applicability of the FSIA only in

passing. Of course, reasonable minds may differ regarding

the precise interpretation of these statements, see Op. 8, but

the district court judge did not abuse her discretion in

concluding the FSIA issue was not contested. See Cement

Kiln Recycling Coal. v. EPA, 255 F.3d 855, 869 (D.C. Cir.

2001) (“A litigant does not properly raise an issue by

addressing it in a cursory fashion with only bare-bones

arguments.”).

The majority points to Nanko’s Motion for

Reconsideration filed before the district court, Op. 8–9, which

does appear to discuss the FSIA. Nonetheless, “[Federal]

Rule [of Civil Procedure] 59(e) motions are aimed at

reconsideration, not initial consideration.” GSS Grp., 680

F.3d at 812. Accordingly, a “Rule 59(e) motion may not be

used to . . . raise arguments or present evidence that could

have been raised prior to the entry of judgment.” 11 CHARLES

ALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE

§ 2810.1, at 163–64 (3d ed. 2012). Since Nanko could have

raised its FSIA argument earlier, but chose not to do so, the

argument is forfeited. See District of Columbia v. Doe, 611

F.3d 888, 896 (D.C. Cir. 2010).

II.

The district court also properly dismissed Nanko’s claims

pursuant to 42 U.S.C. §§ 1981 and 1985 for failure to state a

claim upon which relief could be granted.

I agree with the Court’s starting premise: “Nanko alleges

that Alcoa, aware of Diané’s race, treated the company he

3

owns and operates less favorably than similarly situated

white-owned companies.” Op. 10–11. Indeed, Nanko’s

complaint recounts multiple incidents, over a three-year

period, when Alcoa failed to award bids to Nanko and

awarded contracts to white-owned companies instead.

But, as the majority also notes, a Section 1981 claim

cannot “reach[] more than purposeful discrimination.” Gen.

Bldg. Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 388,

391 (1982) (emphasis added). Accordingly, to plead a prima

facie case, a plaintiff must show the defendant intended to

discriminate against the plaintiff on the basis of race. See

Williams v. Lindenwood Univ., 288 F.3d 349, 355 (8th Cir.

2002); Mian v. Donaldson, Lufkin & Jenrette Secs. Corp., 7

F.3d 1085, 1087 (2d Cir. 1993).

Nanko has failed to plead sufficient facts to carry that

burden here. In fact, no facts presented in the complaint

suggest Alcoa intentionally discriminated against Nanko on

account of race. Rather, Nanko states it is an African-

American owned company, see Prop. Second Am. Compl.

¶¶ 78–79, alleges Alcoa had done business with white-owned

Klaveness, id. ¶¶ 17, 80, and asserts “[Alcoa] imposed certain

unreasonable requirements, offered multiple limited shipping

opportunities in 2012 after telling Nanko that all such bid

opportunities had been contracted out and expressly stated

that their decision making process would be arbitrary and

subjective,” id. ¶ 82. Further, Nanko claims it used the “same

exact shipping companies” as Alcoa and also “attained equal

or lower shipping prices and similar assurances regarding

shipping security.” Id. ¶ 87. Indeed, all of Nanko’s factual

allegations are consistent with an arbitrary, but not racially

discriminatory, decision-making process. Everyone can be

characterized by race, and many contracting parties are

“harsh, unjust, and rude,” but a failure to do business with a

4

particular African-American individual or company does not

automatically constitute a federal civil rights claim. See

generally Alfano v. Costello, 294 F.3d 365, 377 (2d Cir.

2002).

The inadequacy of Nanko’s pleading is hardly surprising.

Intentional discrimination may be relatively easy to plead via

comparator evidence—as Nanko apparently attempts to do—

in the employment discrimination context, where a plaintiff is

keenly aware of his coworkers’ performance and familiar with

his employers’ policies. See Brown v. Sessoms, 774 F.3d

1016, 1023 (D.C. Cir. 2014) (pleading the underlying facts

necessary to rely on comparator evidence in an employment

case). In the commercial context, however, it is often very

difficult to plead facts raising an inference of racially

discriminatory intent. See Denny v. Elizabeth Arden Salons,

Inc., 456 F.3d 427, 429–31, 435 (4th Cir. 2006) (finding a

viable § 1981 claim where an individual purchased a salon

gift card for her mother, but the salon refused service to the

mother, stating it did not “do black people’s hair”). This

difficulty is systemic, but it is not for this Court to remedy

policy deficiencies: “Trying to make [the statute] a cure-all

not only goes beyond any expression of congressional intent

but would produce satellite § 1981 litigation of immense

scope.” Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470,

479 (2006).

Accordingly, I would affirm the district court’s dismissal

of Nanko’s claims pursuant to 42 U.S.C. §§ 1981 and 1985

for failure to state a claim upon which relief can be granted.

See Nanko Shipping, USA v. Alcoa, Inc., 118 F. Supp. 3d 372,

377 (D.D.C. 2015); United Bhd. of Carpenters & Joiners v.

Scott, 463 U.S. 825, 833 (1983) (noting § 1985 “provides no

substantial rights itself”).