The opinion
WINTER, Circuit Judge
(dissenting):
I think that there is merit in plaintiff’s petition for rehearing, and I would grant it.
As I have previously written, I agree with plaintiff’s contention that we ought to undertake to decide the question of jurisdiction, if it can be resolved, rather than to remand that question to the district court. There is a direction to do just that in 28 U.S.C. § 1653 . That statute states that “[djefective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts.” The rationale of a statutory right to amend in an appellate court must be that the appellate court is directed to sustain jurisdiction of a case, especially one already tried and reduced to judgment, if that result may be properly achieved. We do not perform that duty by a bare remand.
Since my brothers insist on remand, I call to the attention of the district court still another possible basis of jurisdiction in addition to those about which I have previously written. It rests in 42 U.S.C. § 1981 , which guarantees to every person “the same right ... to make and enforce contracts' as is enjoyed by white citizens . .” Jurisdiction to enforce § 1981 is vested in the district court by 28 U.S.C. § 1343 (4), irrespective of the amount in controversy and irrespective of the teachings of Monroe and Kenosha with regard to the amenability of a municipal corporation to suit thereunder. See generally, Jones v. Alfred H. Mayer Co., 392 U.S. 409 , 88 S.Ct. 2186 , 20 L.Ed.2d 1189 (1968); Note, Federal Power to Regulate Private Discrimination: The Revival of the Enforcement Clauses of the Reconstruction Era Amendments, 74 Col.L.Rev. 449 (1974).