Petition for Writ of Certiorari — Melvin G. Perry, Petitioner v. VHS San Antonio Partners, L.L.C., dba North Central Baptist Hospital

Supreme Court briefAug 3, 2021

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------MELVIN G. PERRY,

Petitioner,

VHS SAN ANTONIO PARTNERS, L.L.C.,

doing business as North Central Baptist Hospital,

Respondent.

---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

---------------------------------♦--------------------------------PETITION FOR A WRIT OF CERTIORARI

---------------------------------♦--------------------------------ERIC SCHNAPPER

Counsel of Record

University of Washington

School of Law

Box 353020

Seattle, WA 98195

(206) 660-8845

schnapp@uw.edu

COLIN WALSH

WILEY WALSH, P.C.

1011 San Jacinto Blvd., Ste. 401

Austin, TX 78701

(512) 271-5527

colin@wileywalsh.com

Counsel for Petitioner

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

QUESTION PRESENTED

Section 1981 gives every person “the same right

. . . to make and enforce contracts . . . as is enjoyed by

white citizens. . . .” The question presented is:

Does section 1981 prohibit a third party from

interfering, on the basis of race, with the right

of an individual to make or enforce a contract?

PARTIES

The parties are set forth in the caption. Pediatric

Inpatient Critical Care Services, P.A., was also a party

in the district court.

DIRECTLY RELATED CASES

Perry v. Pediatric Inpatient Critical Care Services, P.A.,

No. SA-18-CV-404-XR (W.D. Tex.), judgment entered

March 20, 2020.

Perry v. VHS San Antonio Partners, L.L.C., No. 2050356 (5th Cir.), judgment entered March 10, 2021.

iii

TABLE OF CONTENTS

Page

Question Presented .............................................

Parties ..................................................................

Directly Related Cases ........................................

Opinions Below ....................................................

Jurisdiction ..........................................................

Statutory Provision Involved ...............................

Statement of the Case .........................................

Factual Background .........................................

Proceedings Below ............................................

Reasons for Granting the Writ ............................ 10

There Is A Circuit Conflict Regarding

Whether § 1981 Prohibits Discriminatory

Third-Party Interference With Contractual Relationships ..................................... 10

II.

The Fifth Circuit’s Interpretation Of § 1981

Is Clearly Incorrect.................................... 22

III.

Whether § 1981 Prohibits Discriminatory

Third-Party Interference With Contractual Relationships Is A Question Of Great

Importance ................................................. 30

Conclusion............................................................ 34

TABLE OF CONTENTS – Continued

Page

APPENDIX

Opinion of the United States Court of Appeals

for the Fifth Circuit, March 10, 2021 .....................1a

Opinion of the United States District Court

for the Western District of Texas, March 16,

2020 .......................................................................29a

TABLE OF AUTHORITIES

Page

CASES

Bains LLC v. Arco Products Co., Div. of Atlantic

Richfield Co., 405 F.3d 764 (9th Cir. 2005) .............19

Barrows v. Living Word Church, 2016 WL

5080416 (S.D. Ohio Sept. 16, 2016) ........................12

Bellows v. Amoco Oil Co., 118 F.3d 268 (5th Cir.

1997) .................................................... 8, 9, 10, 11, 12

Ben’Israel v. Global Management Solutions, Inc.,

2012 WL 122409 (D.Md. Jan. 12, 2012) ..................31

Black Farmers and Agriculturists Ass’n, Inc. v.

Hood, 2014 WL 935147 (N.D.Miss. March 14,

2014) ........................................................................11

CBOCS West, Inc. v. Humphries, 553 U.S. 442

(2008) ............................................... 24, 25, 27, 28, 33

City of Memphis v. Greene, 451 U.S. 100 (1981).........25

Collins v. Christie, 2008 WL 2736418 (E.D.Pa.

July 11, 2008) ..........................................................31

Comcast Corp. v. National Association of African-American-Owned Media, 140 S.Ct. 1009

(2020) .......................................................................33

Covalt v. Pintar, 2008 WL 2312651 (S.D.Tex.

2008) ........................................................................11

Daniels v. Pipefitters’ Ass’n Local Union No. 567,

945 F.2d 906 (7th Cir. 1991) ........................ 16, 17, 31

DeMatteis v. Eastman Kodak Co., 511 F.2d 306

(2d Cir. 1975) ..................................................... 14, 27

TABLE OF AUTHORITIES—Continued

Page

Deets v. Massman Constr. Co., 811 F.3d 978 (7th

Cir. 2016) .................................................................17

DesVergnes v. Seekonk Water Dist., 601 F.2d 9

(2d Cir. 1979) ......................................... 12, 13, 27, 32

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

(2006) ..................................................... 26, 28, 29, 33

Felton v. Polles, 315 F.3d 470 (5th Cir. 2002) ....... 10, 11

General Building Contractors Ass’n, Inc. v. Pennsylvania, 458 U.S. 375 (1982) ..................................33

Gomez v. Alexian Bros. Hosp. of San Jose, 698

F.2d 1019 (9th Cir. 1983) ................................... 19, 31

Goodman v. Lukens Steel Company, 482 U.S. 656

(1987) ................................................................. 25, 33

Green v. State Bar of Texas, 27 F.3d 1083 (5th

Cir. 1994) ...................................................................8

Harris v. Allstate Ins. Co., 300 F.3d 1183 (10th

Cir. 2002) ........................................................... 15, 20

Howard v. Mississippi State University, 2015

WL 1862923 (N.D.Miss. April 23, 2015) .................11

Hurd v. Hodge, 334 U.S. 24 (1948) ....................... 23, 24

Imagineering, Inc. v. Kiewit Pacific Co., 976 F.3d

1303 (9th Cir. 1992) .................................................19

Ingram v. Madison Square Garden Center, Inc.,

482 F.Supp. 414 (S.D.N.Y. 1979) .............................31

James v. Parish, 421 Fed. App’x 469 (5th Cir.

2011) ........................................................................11

vii

TABLE OF AUTHORITIES—Continued

Page

Jett v. Dallas Independent School Dist., 491 U.S.

701 (1989) ................................................................33

Johnson v. Railway Express Agency, 421 U.S. 45

(1975) .......................................................................33

Jones v. Alfred H. Mayer Co., 392 U.S. 409

(1968) ................................................................. 24, 25

Jones v. R. R. Donnelly & Sons Co., 541 U.S.

369 (2004) ................................................................33

Ladson v. Ulltra East Parking Corp., 853 F.Supp.

699 (S.D.N.Y. 1994) .................................................31

London v. Coopers & Lybrand, 644 F.2d 811 (9th

Cir. 1981) ..................................................... 18, 27, 31

Martinez-Evangelista v. Universal Ins. Group,

Inc., 2014 WL 12795561 (D.P.R. March 27,

2014) ........................................................................32

McLease v. R.R. Donnelley & Sons Co., 226

F.Supp.2d 695 (E.D.Pa. 2002) .................................31

Miller v. Wachovia Bank, NA., 541 F.Supp.2d

858 (N.D.Tex. 2008) .................................................11

Moore v. Grady Memorial Hospital Corp., 834

F.3d 1168 (11th Cir. 2016) ............................. 8, 20, 21

Muhammad v. Oliver, 547 F.3d 874 (7th Cir.

2008) ........................................................................17

Nanavati v. Burdette Tomlin Memorial Hospital,

1986 WL 15318 (D.N.J. June 23, 1986)...................31

OT, LLC v. Harford County, 2019 WL 5538057

(D.Md. October 24, 2019) ........................................32

viii

TABLE OF AUTHORITIES—Continued

Page

Olumuyiwa v. Harvard Protection Services, Inc.,

2000 WL 620202 (E.D.N.Y. May 12, 2000) .............31

Painter’s Mill Grille, LLC v. Brown, 716 F.3d 342

(4th Cir. 2013).............................................. 14, 15, 32

Parks School of Business v. Symington, 51 F.3d

1480 (9th Cir. 1995) ........................................... 18, 32

Patterson v. McLean Credit Union, 491 U.S. 164

(1989) ................................................................. 27, 33

Pisello v. Town of Brookhaven, 933 F.Supp. 202

(E.D.N.Y. 1996) ........................................................32

Riccobono v. Whitpaid Township, 497 F.Supp.

1364 (E.D.Pa. 1980) .................................................32

Rivers v. Roadway Exp., Inc., 511 U.S. 298 (1994) ......33

Runyon v. McCrary, 427 U.S. 160 (1976) ............. 25, 33

Shaare Tefila Congregation v. Cobb, 481 U.S. 615

(1987) .......................................................................25

Shaikh v. City of Chicago, 341 F.3d 627 (7th Cir.

2001) .................................................................... 8, 16

Shirkey v. Eastwind Community Development

Corp., 941 F.Supp. 567 (D.Md. 1996) ......................31

Sibley Memorial Hospital v. Wilson, 488 F.3d

1338 (D.C. Cir. 1973) ...............................................22

Sklyarsky v. Means-Knaus Partners, L.P., 777

F.3d 892 (7th Cir. 2013) ..................................... 17, 18

Slaughter-House Cases, 16 Wall. 36 (1872) ................25

TABLE OF AUTHORITIES—Continued

Page

St. Francis College v. Al-Khazraji, 481 U.S. 604

(1987) .......................................................................33

Standifer v. General Teamsters, Chauffeurs and

Helpers Union No. 460 of St. Joseph, Mo., 1998

WL 229553 (D.Kan. April 13, 1987)........................12

Sullivan v. Little Hunting Park, Inc., 396 U.S.

229 (1969) .................................................... 22, 23, 27

Sutton v. Bloom, 710 F.2d 1188 (6th Cir.

1983) ...................................................... 15, 16, 27, 32

Woods v. Graphic Communications, 925 F.2d

1195 (9th Cir. 1991) .................................................19

Yesteryears, Inc. v. Waldorf Restaurant, Inc., 730

F.Supp. 1341 (D.Md. 1989) ......................................32

Zaklama v. Mt. Sinai Medical Center, 842 F.2d

291 (11th Cir. 1988) ..................................... 21, 22, 27

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. V ..................................................22

STATUTES

28 U.S.C. § 1254(1) ........................................................1

28 U.S.C. § 1331 ............................................................1

42 U.S.C. § 1981 .................................................. passim

42 U.S.C. § 1981(b) ......................................................29

42 U.S.C. § 1981(c) ......................................................27

42 U.S.C. § 1982 .................................................. passim

TABLE OF AUTHORITIES—Continued

Page

Civil Rights Act, 42 U.S.C. §§ 2000e, et seq. ....... passim

OTHER AUTHORITIES

1 W. Fleming, Documentary History of Reconstruction 273 (1906) ................................................25

Cong. Globe, 39th Cong., 1st Sess., 1151 (1866) ........26

E. McPherson, The Political History of the

United States During the Period of Reconstruction 29 (1871) ..................................................26

H.R. Rep. No. 102-40 (II), 35, 101st Cong., 1st

Sess. (1991) ..............................................................32

Howard Report, H.R. Exec. Doc. No. 11, 39th

Cong., 1st Sess. (1865).............................................25

K. Stampp, The Era of Reconstruction 79 (1965) .......26

Schurz Report, S. Exec. Doc. No. 2, 39th Cong.,

1st Sess. (1985) ........................................................25

Petitioner Melvin G. Perry respectfully prays that

this Court grant a writ of certiorari to review the

judgment and opinion of the United States Court of

Appeals entered on March 10, 2021.

---------------------------------♦---------------------------------

OPINIONS BELOW

The March 10, 2021, opinion of the court of appeals, which is reported at 990 F.3d 918, is set out at

pp. 1a-28a of the Appendix. The March 20, 2020 order

of the district court, which is unofficially reported at

2020 WL 1248263 (W.D.Tex.), is set out at pp. 29a-93a

of the Appendix.

---------------------------------♦---------------------------------

JURISDICTION

The decision of the court of appeals was entered

on March 10, 2021. On March 19, 2020, the Court extended the time for filing future petitions to 150 days.

This Court has jurisdiction pursuant to 28 U.S.C.

§ 1254(1). The district court had jurisdiction pursuant

to 28 U.S.C. § 1331.

---------------------------------♦---------------------------------

STATUTORY PROVISION INVOLVED

42 U.S.C. § 1981 provides:

(a)

Statement of equal rights

All persons within the jurisdiction of the

United States shall have the same right in

every State and Territory to make and enforce

contracts, to sue, be parties, give evidence, and

to the full and equal benefit of all laws and

proceedings for the security of persons and

property as is enjoyed by white citizens, and

shall be subject to like punishment, pains,

penalties, taxes, licenses, and exactions of

every kind, and to no other.

(b)

“Make and enforce contracts” defined

For purposes of this section, the term “make

and enforce contracts” includes the making,

performance, modification, and termination of

contracts, and the enjoyment of all benefits,

privileges, terms, and conditions of the contractual relationship.

(c)

Protection against impairment

The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under

color of State law.

---------------------------------♦---------------------------------

STATEMENT OF THE CASE

There is a clear circuit conflict regarding whether

§ 1981, which guarantees every person an equal right

to make and enforce contracts, without regard to race,

is violated by discriminatory third-party interference

with that right. The Fifth Circuit holds that § 1981

does not prohibit such third-party discrimination,

save in certain unusual circumstances not relevant

here. The First, Second, Fourth, Sixth, Seventh, Ninth,

Tenth and Eleventh Circuits have adopted the contrary interpretation of § 1981, holding that it does prohibit such discriminatory third-party interference. The

Fifth Circuit rule is clearly incorrect. This Court has

repeatedly held that § 1982 prohibits discriminatory

third-party interference, and this Court has repeatedly

held that § 1981 and § 1982 are to be construed alike.

Factual Background

This case arises out of the staffing of North Central Baptist Hospital, a general hospital in San Antonio. The hospital is operated by VHS San Antonio

Partners, L.L.C. (“VHS”). The hospital employs the

nurses and non-medical staff who work there, but it

does not directly enter into employment relationships

with the doctors who work at the hospital. At least

some staff physicians who work at the hospital are arranged for through separate legal entities established

for that purpose, with different entities responsible for

staffing distinct parts of the hospital. VHS pays each

entity a fixed fee for the physician staffing which it provides, and the entity in turn pays the physicians. This

arrangement evidently has the effect of limiting legal

responsibility on the part of VHS for claims arising out

of the actions of, or the treatment of, the physicians

who work at VHS’s hospital.

Pediatric Inpatient Critical Care Services, P.A.

(“PICCS”), is one of those entities. During the relevant

time period, PICCS was paid by VHS to provide the

four physicians who staffed the hospital’s pediatric intensive care unit. PICCS existed for this purpose; it

had no other clients and did not provide services to any

other hospital. Although the physicians technically

worked for PICCS, VHS retained the right to direct the

removal of any physician working for PICCS.1 PICCS

physicians were required to staff the pediatric intensive care unit and to perform such other duties as

might be requested by the hospital or the hospital staff.

PICCS physicians worked closely with the VHS nursing staff, and were required to comply with any rules

and regulations that might be established by VHS.

Each PICCS physician was subject to the supervision

of the Medical Director of the pediatric unit, himself a

PICCS physician, whose selection required the approval of the hospital CEO. The Medical Director, in

turn, was subject to a degree of supervision by VHS.2

The contract between VHS and PICCS included a

“VHS did reserve the right for its CEO to request the removal of a PICCS physician from the Hospital . . . , and PICCS

agreed to immediately remove any such Physician in according

with the [hospital’s] bylaws.” App. 76a; see App. 3a (the agreement between VHS and PICCS “grants VHS’s CEO the right to

‘request removal’ of any PICCS physician” under certain circumstances).

App. 33a; First Amended Complaint, pp. 1–3, 7.

“Physician Agreement” which all doctors hired by

PICCS were required to sign; the agreement recited

that the doctors were either employees of or under

contract with PICCS, and agreed to be bound by the

hospital’s rules and by the terms of the agreement between VHS and PICCS.

In March 2015, shortly after the agreement between VHS and PICCS took effect, PICCS hired Dr.

Melvin Perry, Jr. to work as one of the four physicians

at the unit. Prior to being hired, Dr. Perry first met

with the president of the hospital and several of the

nurses who worked at the hospital, all of whom were

VHS employees.3

Dr. Perry, who is black, alleges that during the period when he worked at the unit he was subject to repeated racial harassment by nurses who worked for

VHS at the hospital. The nurses referred to him as

“chocolate eye candy,” both during his job interview

and repeatedly thereafter. Several nurses “frequently

used racially tinged slang words or phrases in addressing Dr. Perry or in referring to him.” Two nurses in Dr.

Perry’s presence commented that “Black men being

shot by White police officers should not be such thugs

and criminals.” Nurses repeatedly referred to two female black doctors who worked in the unit as “black

bitch.” The nurses often refused to respect Dr. Perry’s

authority as a physician, allegedly because of his race.4

First Amended Complaint, p. 7.

First Amended Complaint, pp. 7–9.

Dr. Perry repeatedly complained about this racial

harassment to VHS officials, since the harassers

were VHS employees, as well as to PICCS. PICCS

and VHS, however, failed to take corrective action, or

even respond to Dr. Perry’s complaints. Shortly after

Dr. Perry’s last such complaint of racial harassment,

several nurses about whom he had complained (and

several others) went to VHS management and insisted

that Dr. Perry be fired.

In January 2017, VHS decided to exercise its contractual right to direct that PICCS remove Dr. Perry.5

A PICCS official later testified that PICCS terminated

Dr. Perry “because the request [from VHS to do so]

complied with the [hospital] medical staff rules & regulations.”6 The president of PICCS subsequently advised Dr. Perry that he was being terminated

“without cause.”

Proceedings Below

Dr. Perry commenced this action in federal district

court against VHS and PICCS, alleging that he had

App. 7a, 45a; Brief of VHS San Antonio Partners, LLC Defendant-Appellee, available at 2020 WL 5077297, at *12 (“In January, 2017, [hospital president] Mr. Waechter and [the hospital’s]

Chief Medical Officer . . . exercised this limited right and requested Dr. Perry’s removal from the Hospital”). VHS later asserted that the VHS officials decided to request the removal of Dr.

Perry because he “had created a hostile, non-workable environment.” App. 76a.

App. 2a, 45a (“PICCS eventually terminated its professional services agreement with Dr. Perry at VHS’s request”).

been subjected to a hostile work environment because

of his race, and that he had been dismissed because of

his race and in retaliation for his complaints about

that racial harassment.7 Dr. Perry asserted that this

harassment, discrimination and retaliation violated

§ 1981.8 Section 1981 prohibits racial discrimination in

the making and enforcement of contracts.

VHS moved for summary judgment “on the basis

that there was no contractual agreement between

[VHS and Dr. Perry].”9 The district court concluded

that the arrangement described above did not create a

contractual relationship between VHS and Dr. Perry.10

The court held that Dr. Perry could not maintain a

§ 1981 action against VHS, even though VHS had the

authority to compel PICCS to fire a physician, and

even if VHS had used that authority to discriminate

against Dr. Perry, because only PICCS, not VHS, had a

contractual relationship with Dr. Perry.11

On appeal, Dr. Perry argued that third-party interference with a contractual relationship is itself a violation of § 1981. The VHS directive that Dr. Perry be

First Amended Complaint, p. 11.

Dr. Perry also asserted a claim against VHS under Title VII

of the 1964 Civil Rights Act. 42 U.S.C. §§ 2000e, et seq. The lower

courts rejected that Title VII claim, and we do not seek review of

that aspect of the decisions below. App. 2a, 46a-86a. A § 1981

claim against PICCS is still pending in the district court. App. 2a.

App. 86a-87a.

App. 89a-90a.

App. 91-93a.

dismissed, Perry pointed out, interfered with his contractual relationship with PICCS. Perry urged that his

interpretation of § 1981 was supported by a 1975 Fifth

Circuit decision.12 He also pointed out that decisions in

the Seventh and Eleventh Circuits had expressly held

that discriminatory third-party interference with contractual relationships violates § 1981.13

VHS, on the other hand, contended that post-1975

decisions in the Fifth Circuit had made clear that the

Circuit only recognized such § 1981 claims when the

nominal “third party” was “essentially the same” as the

discriminatory contracting party, i.e. one of its own employees. Thus if a company official fired a worker on

the basis of race, a § 1981 claim would lie against the

company (which had the actual contractual relationship with the worker) and the official who acted on the

company’s behalf. But, VHS insisted, the Fifth Circuit

had never recognized a § 1981 contractual interference

claim against “an independent third party.”14 VHS did

not address Dr. Perry’s claim that the Seventh and

Initial Brief of Appellant, available at 2020 WL 4208838,

at *42–*43.

Reply Brief of Appellant, available at 2020 WL 5599380,

at *27 (quoting Shaikh v. City of Chicago, 341 F.3d 627, 630 (7th

Cir. 2003); citing Moore v. Grady Memorial Hospital Corp., 834

F.3d 1168, 1173 (11th Cir. 2016)).

Brief of VHS San Antonia Partners, LLC, Defendant-Appellee, available at 2020 WL 5077297, at *52–*55 (quoting Bellows v. Amoco Oil Co., 118 F.3d 268, 274 (5th Cir. 1997), and

Green v. State Bar of Texas, 27 F.3d 1083, 1085–87 (5th Cir.

1994)).

Eleventh Circuits do recognize such § 1981 third-party

interference claims.

The Fifth Circuit agreed with VHS’s reading of

that circuit’s precedent.15 That precedent, the Court of

Appeals held, does not recognize “a true third-partyinterference theory of § 1981 liability.”16 Instead, the

court ruled, a § 1981 claim only lies against a “third

party” when that defendant is “essentially one and the

same” as the discriminatory contracting party, and

thus “only nominally a third party.”17 When an official

of a discriminatory contracting party is “acting on behalf of ” that party, he or she is subject to the same

§ 1981 claim as the party itself. But in this case, VHS

was not acting as an agent of PICCS, the entity with

which Dr. Perry did have a contractual relationship,

when it insisted that Dr. Perry be fired. Thus it did not

matter that VHS’s action interfered with Dr. Perry’s

contractual relationship with PICCS, or that VHS’s actions may have been motivated by racial discrimination, because VHS was a “true” third party, and thus

was permitted by § 1981 to interfere on the basis of

The court of appeals also held that VHS and PICCS were

not a single, integrated enterprise (which would have rendered

VHS subject to a Title VII claim) (App. 18a-23a), and that VHS

did not itself have a contractual relationship with Dr. Perry. (App.

25a-26a). This petition does not seek review of those portions of

the Fifth Circuit’s opinion.

App. 27a.

App. 27a (quoting Bellows v. Amoco Oil Co., 118 F.3d at

274).

race with Dr. Perry’s contractual relationship with

PICCS.

---------------------------------♦---------------------------------

REASONS FOR GRANTING THE WRIT

THERE IS A CIRCUIT CONFLICT REGARDING WHETHER § 1981 PROHIBITS

DISCRIMINATORY THIRD-PARTY INTERFERENCE WITH CONTRACTUAL RELATIONSHIPS

The Fifth Circuit decision in this case highlights

the existence of a fundamental circuit conflict regarding § 1981, the nation’s oldest and uniquely important

anti-discrimination statute. The Fifth Circuit confirms

its view that § 1981 permits race-based third-party interference with the right to make and enforce contracts, except in the unusual case in which the nominal

third party is an employee of the discriminatory contracting party itself. Eight other circuits reject that

crabbed construction of § 1981, holding instead that

provision does prohibit what the Fifth Circuit characterizes as “true” third-party racially-motivated interference with the right to make and enforce contracts.

The panel’s interpretation of § 1981 is neither a

new nor a surprising holding in the Fifth Circuit. The

opinion itself explained that the court was applying

the interpretation of § 1981 articulated in the 1997

Fifth Circuit decision in Bellows v. Amoco Oil Co., 118

F.3d 268, 274 (5th Cir. 1997). See App. 27a. In Felton v.

Polles, 315 F.3d 470, 480–81 (5th Cir. 2002), the court

of appeals recognized Bellows’ “limited reading” of

§ 1981 and Fifth Circuit precedent, under which a

third party would only face liability under § 1981 if he

or she were “essentially the same” as the discriminatory contracting party, i.e. an employee of that party. A

subsequent Fifth Circuit decision explained that Felton had “suggested that a plaintiff does not have a

cause of action under § 1981 against a third party for

interference with the plaintiff ’s right to make and enforce contracts.” James v. Parish, 421 Fed.App’x 469,

470 (5th Cir. 2011). District courts in the Fifth Circuit

have long understood these appellate opinions to mean

that § 1981 does not prohibit discriminatory thirdparty interference with the right to make and enforce

contracts, except in the unusual circumstances described in Bellows.18

Howard v. Mississippi State University, 2015 WL 1862923,

at *4 (N.D.Miss. April 23, 2015) (“Fifth Circuit precedent indicates that a third-party may be liable under § 1981 only in certain

circumstances. . . . The Fifth Circuit has therefore recognized

that, generally, a third party can be held liable under § 1981 only

when the party is ‘essentially the same’ as the State with regards

to the conduct at issue.”); Black Farmers and Agriculturists Ass’n,

Inc. v. Hood, 2014 WL 935147, at *7–*8 (N.D.Miss. March 14,

2014) (“in this court’s opinion, the Fifth Circuit would not find

potential liability in the circumstances of this case. [The third

party] is not ‘nominally a third party’ to [the contracting party’s]

contracts with [plaintiffs].”); Miller v. Wachovia Bank, NA., 541

F.Supp.2d 858, 863 (N.D.Tex. 2008) (“[a]nother principle gleaned

from [Fifth Circuit precedent] is that a supervisor employee who

was personally involved in racial harassment is not liable to the

plaintiff under § 1981 unless the supervisor was ‘essentially the

same’ as the employer in the harassing conduct.”); Covalt v. Pintar, 2008 WL 2312651, at *6 (S.D.Tex. 2008) (citing Felton and

But the Fifth Circuit’s interpretation is decidedly

the minority view. Aside from the Fifth Circuit, there

is a “consensus among other [c]ircuits that a 42 U.S.C.

§ 1981 claim based on tortious interference is viable. . . .” Barrows v. Living Word Church, 2016 WL

5080416, at *8 (S.D. Ohio Sept. 16, 2016); see id. at *7

(“courts in a majority of the other circuits have reached

the issue and have allowed such claims to proceed”);

Standifer v. General Teamsters, Chauffeurs and Helpers

Union No. 460 of St. Joseph, Mo., 1998 WL 229553, at

*8 (D. Kan. April 13, 1987) (“the overwhelming majority of case law hold[s] that claims against third-parties

may be actionable under 42 U.S.C. § 1981”; “but see

Bellows v. Amoco Oil”). A total of eight circuits have

adopted that broader interpretation of § 1981, holding

that provision forbids race-based third-party interference with the right to make and enforce contracts, and

have done so in cases in which the third party was

not—as the Fifth Circuit requires—“essentially the

same” as the discriminatory contracting party. The

wide variety of circumstances in which other circuits

have upheld § 1981 third-party interference claims

compellingly illustrates the great importance of this

issue.

In DesVergnes v. Seekonk Water Dist., 601 F.2d 9

(2d Cir. 1979), a developer sued the water district

which had refused to include in the water district certain real property on which the developer planned to

build low income housing. The developer alleged that

Bellows in declining to permit a § 1981 claim against a defendant

who was not “essentially the same” as a contracting party).

the district did so because it feared the property would

be sold or rented to non-whites,19 and asserted that the

race-based refusal violated the developer’s right under

§ 1981 to make contracts with prospective buyers and

tenants. The First Circuit upheld that claim.

[W]e conclude that . . . a person has an implied [r]ight of action [under § 1981] against

any other person who, with a racially discriminatory intent, interferes with his right to

make contracts with non-whites. A fortiori a

person has an implied [r]ight of action against

any other person who, with a racially discriminatory intent, injures him because he made

contracts with non-whites.

601 F.2d at 13–14 (emphasis added); see id. at 13–14

(“lower federal courts [have] held that a white person

ha[s] a cause of action under § 1981 against another

who injured him because he made a contract with a

black”).

The complaint alleged:

The District’s denial of the plaintiffs’ request for inclusion was because the voting members believed that the

plaintiffs would contract for the sale of houses in the

subdivision to black families. The denial of inclusion

was also because the plaintiffs had demonstrated in the

sale of their North Attleborough property a willingness

to contract with black families. The denial was for the

purpose of keeping black people out of the District and

punishing the plaintiffs for their willingness to contract with black people.

601 F.2d at 12.

The Second Circuit construed § 1981 in the same

manner in DeMatteis v. Eastman Kodak Co., 511 F.2d

306 (2d Cir. 1975). The plaintiff in that case was a former Kodak employee, who alleged that Kodak had

forced him to retire in reprisal for his having sold his

house to a black person.

[DeMatteis] . . . contend[ed] that he has suffered economic loss in that his retirement was

‘premature.’ Such ‘punishment’ to [DeMatteis’s]

legally cognizable interests was allegedly in

reprisal for his part in vindicating the right of

a black fellow-employee ‘ . . . to make . . . (a)

contract[ ] . . . ’ similar to that which whites in

the neighborhood have freely been able to

make. DeMatteis therefore has standing to

sue under 42 U.S.C. § 1981.

511 F.2d at 312.

In Painter’s Mill Grille, LLC v. Brown, 716 F.3d

342 (4th Cir. 2013), the plaintiff alleged that its landlord refused to permit it to assign the leasehold to a

building being used as a restaurant, and did so because the landlord objected to the number of black

patrons who were being served at the restaurant.20

The complaint alleged that the restaurant’s

clientele began to change until it became predominantly

African–American. As the racial mix of the clientele

changed, all of the Defendants became progressively

more hostile to the Plaintiffs. . . . [Several of the landlord’s employees] would refer to [the restaurant’s] African–

American clientele as the “Element,” the “Undesirable

Element,” or “Niggers.”

716 F.3d at 346.

That refusal, the plaintiff objected, interfered with its

ability to contract with and sell its restaurant to the

prospective new lessee.

“[R]elief is available under § 1981 where a

party discriminatorily uses its authority to

preclude an individual from securing a contract with a third party”. . . . The complaint

does indeed allege, as required, that the defendants, with racial animus, interfered with

Painter’s Mill Grille’s contract to sell the restaurant. . . .

716 F.3d at 350–51 (emphasis added) (quoting Harris

v. Allstate Ins. Co., 300 F.3d 1183, 1197 (10th Cir.

2002)).

Sutton v. Bloom, 710 F.2d 1188, 1190 (6th Cir.

1983), arose out of the effort of a black couple to buy a

house. The white owner of the house next door, and several other neighbors, resorted to a variety of schemes,

ultimately unsuccessful, to prevent the Suttons from

purchasing the house, including by banding together

to buy it instead. The Suttons sued under § 1981,

which protected their right to make and enforce contracts, as well as under § 1982, which protected their

right to buy property. 42 U.S.C. § 1982.

The Suttons showed at trial that Bloom had

assembled his neighbors and pursued his attempts to purchase the Hawthorne property

for improper discriminatory motives. The jury

found that Bloom violated the . . . statutory

rights of the Suttons. We are compelled to reverse the decision of the district court because

we find that the case is barred by the statute

of limitations. . . . Sections 1981 and 1982 of

Title 42 were enacted as part of the Civil

Rights Act of 1866 in order to eliminate the

vestiges of slavery and racial discrimination.

The underlying factual situation in this lawsuit involves the attempt by Bloom to interfere

with the Suttons’ equal rights to enter into a

contract (§ 1981) and to buy property (§ 1982).

Both statutes cover the discrimination present in this case. . . .

710 F.3d at 1190 (emphasis added).

In Shaikh v. City of Chicago, 341 F.3d 627, 630 (7th

Cir. 2001), the plaintiff asserted that the city of Chicago had, for racial reasons, interfered with his efforts

to purchase a building. The Seventh Circuit held that

“Shaikh is correct in noting that a third party’s interference with an individual’s equal opportunity to enter

into contracts or purchase property can support civilrights claims under §§ 1981 and 1982.” (Emphasis

added.) In Daniels v. Pipefitters’ Ass’n Local Union No.

567, 945 F.2d 906 (7th Cir. 1991), the plaintiff alleged

that his union had engaged in discriminatory referral

policies which prevented him from contracting with

employers; the union argued, like VHS in the instant

case, that it could not be sued under § 1981 because the

union itself had not refused to enter into a contract

with the plaintiff.

Defendant contends that even if it impeded

Daniels’ efforts to enter into a contract, he was

only prevented from entering into a contract

with others. Obstructing someone’s right to

contract with others is, in the view of Local

597, unactionable under § 1981. This interpretation of § 1981 shortens the reach of the

statute and prevents the Reconstruction-era

civil rights remedy from being used to impose

liability on intermediaries who erect insurmountable barriers to the formation of contracts . . . This kind of race-based impediment

to contract formation constitutes exactly the

sort of racially discriminatory interference

with the right to contract that remains actionable under § 1981. To hold otherwise would

impose a sort of § 1981 privity of contract requirement that would effectively protect third

parties such as labor unions from § 1981 liability.

945 F.3d at 914–15 (emphasis added) (footnotes omitted); see Muhammad v. Oliver, 547 F.3d 874, 878 (7th

Cir. 2008) (“The statute gives nonwhites the same right

to make and enforce contracts as whites have. For the

Ku Klux Klan to beat up nonwhites who try to enforce

their contracts violates the statute even though the

Klan is not a party to the contracts. . . . That is to say

that tortious interference with contract rights violates

section 1981 when the motivation for the interference is racial”) (emphasis added); Sklyarsky v. MeansKnaus Partners, L.P., 777 F.3d 892, 894–95 (7th Cir.

2013) (“a third party can be liable under § 1981 for interfering with the plaintiff ’s relationship with his employer”) (emphasis added); Deets v. Massman Constr.

Co., 811 F.3d 978, 984 (7th Cir. 2016) (“the purported

lack of an employment relationship between Deets and

the individual companies likely doesn’t matter for purposes of Deets’s claim under § 1981 because ‘a third

party can be liable under § 1981 for interfering with

the plaintiff ’s relationship with his employer.’ ”) (emphasis added) (quoting Sklyarsky, 777 F.3d at 896)

The Ninth Circuit has applied the majority rule in

a number of different types of circumstances. In London v. Coopers & Lybrand, 644 F.2d 811 (9th Cir. 1981),

the Ninth Circuit held that § 1981 forbids a former employer from interfering with the worker’s ability to enter into an employment contract with a new employer

by giving the worker an adverse reference on the basis

of race.

By providing an adverse employment reference with the intent to discriminate on racial

grounds, a former employer actively interferes

with a job applicant’s right to enter into an

employment contract, and may utilize the unwitting assistance of an otherwise innocent

third party in its plan to discriminate. The

giving of adverse references under such circumstances is contrary to the letter, policy,

and spirit of § 1981.

644 F.3d at 818 (emphasis added). In Parks School of

Business v. Symington, 51 F.3d 1480, 1488 (9th Cir.

1995), that circuit ruled that

a school, which was organized as a corporation

and mostly enrolled minority students, had

standing to bring a § 1981 claim because racial discrimination against its students would

damage the corporation’s business by interfering with its right to contract with minority

students.

Bains LLC v. Arco Products Co., Div. of Atlantic Richfield Co., 405 F.3d 764, 760 (9th Cir. 2005) (emphasis

added) (footnote omitted). Woods v. Graphic Communications, 925 F.2d 1195 (9th Cir 1991), held that “a union, entrusted with the enforcement of a labor contract,

may violate the statute if by racial discrimination it

interferes with its members’ ability to enforce their

contract.” (925 F.3d at 1202–03) (emphasis added).

Imagineering, Inc. v. Kiewit Pacific Co., 976 F.3d 1303

(9th Cir. 1992), explained that

[a]n important purpose of section 1981 is to

eliminate race based interference with the right

of each citizen to contract. In accordance with

this principle, courts have not imposed a privity of contract type requirement that would

otherwise protect third parties from section

1981 liability.

976 F.3d at 1313 (emphasis added). Gomez v. Alexian

Bros. Hosp. of San Jose, 698 F.2d 1019, 1021–22 (9th

Cir. 1983), held that a minority physician could maintain an action under § 1981 when a hospital refused to

hire the firm for which the physician worked because

the firm had too many minority physicians.

The Tenth Circuit has adopted the same interpretation of § 1981.

Relief is available under § 1981 where a party

discriminatorily uses its authority to preclude

an individual from securing a contract with a

third party. . . . [T]his requires the individual

to show that the party both possessed sufficient authority to significantly interfere with

the individual’s ability to obtain contracts

with third parties, and that the party actually

exercised that authority to the individual’s

detriment.

Harris v. Allstate Ins. Co., 300 F.3d 1183, 1197 (10th

Cir. 2002) (emphasis added).

In Moore v. Grady Memorial Hospital Corp., 834

F.3d 1168, 1172 (11th Cir. 2016), the Eleventh Circuit

held that a doctor could sue a hospital that had denied

him medical privileges, because doing so interfered

with the doctor’s employment by a nearby medical

school, which required that he have such privileges.

The . . . relationship on which Dr. Moore

premises his § 1981 claim is his employment

contract with [the medical school]. . . . § 1981

provides a remedy for a physician who has a

contract with a third party if that contract is

impaired as a result of the suspension, revocation, or adjustment of his privileges at the

hospital, as long as the physician sufficiently

alleges that the cause of that impairment is

racial animus.

Dr. Moore is not arguing that his medical privileges constitute a contract with Grady. . . .

Dr. Moore instead bases his § 1981 claim on

an employment contract he had with a third

party, [the medical school], and is alleging

that the suspension of his medical privileges

by Grady is but one of the discriminatory acts

performed by the defendants that interfered

with his performance of his contract with [the

medical school]. . . . Dr. Moore alleges that his

contract with [the medical school] was impaired by the defendants’ intentionally discriminatory actions, which included summarily

suspending his privileges, diverting cases to

white physicians outside of Grady, and failing

to provide operating rooms for surgery to the

African-American doctors [from the medical

school].

[T]he complaint . . . contains sufficient factual

allegations to support Dr. Moore’s § 1981 discrimination claim based on the alleged impairment of his contract with [the medical

school].

834 F.3d at 1172–73 (emphasis added) (quoting complaint). In Zaklama v. Mt. Sinai Medical Center, 842

F.2d 291, 293 (11th Cir. 1988), the Eleventh Circuit upheld the § 1981 claim of a resident who had been discharged by the hospital for which he worked because

of adverse allegedly race-based recommendations by

physicians at another hospital. “Nothing in the language of § 1981 suggests that it should be limited to

situations where the parties occupy a direct employment relationship. Indeed, its language suggests just

the opposite.” 842 F.3d at 294.

To permit a [defendant] to exploit circumstances peculiarly affording it the capability

of discriminatorily interfering with an individual’s employment opportunities with another employer, while it could not do so with

respect to employment in its own service,

would be to condone continued use of the very

criteria . . . that Congress has prohibited.

Id. (emphasis added) (quoting Sibley Memorial Hospital v. Wilson, 488 F.3d 1338, 1341 (D.C. Cir. 1973)).

In sum, workers and other contracting parties are

not accorded in the Fifth Circuit the protections of

§ 1981 that exist in most of the rest of the nation. Dr.

Perry’s § 1981 claim would have been legally sufficient

if he had worked in a hospital in the First, Second,

Fourth, Sixth, Seventh, Ninth, Tenth or Eleventh Circuits. This Court should grant review to end that stark

disparity.

II.

THE FIFTH CIRCUIT’S INTERPRETATION

OF § 1981 IS CLEARLY INCORRECT

This Court’s decisions make clear that § 1981 forbids discriminatory third-party interference with the

right to make or enforce contracts, and that the statutory prohibition applies—in the Fifth Circuit’s terminology—to “true” third-party interference.

This Court has repeatedly held that § 1982,21

which forbids (in language identical, in relevant part,

to § 1981) discrimination in the sale or leasing of property, prohibits such third-party interference. In Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969), a

black man leased a home from a white owner who was

a member of a local community park. The owner attempted to assign his membership in the park to the

“All citizens of the United States shall have the same right,

in every State and Territory, as is enjoyed by white citizens

thereof to inherit, purchase, lease sell, hold, and convey real and

personal property.”

black tenant, as provided for in the park’s practices,

but the park directors, because of the tenant’s race, refused to approve the assignment. This Court upheld an

action by the tenant against the park and its directors,

reasoning that their action interfered with the tenant’s

right to lease the house, in violation of § 1982.

There has never been any doubt but that [the

tenant] paid part of his . . . monthly rental for

the assignment of the membership share in

Little Hunting Park. The transaction clearly

fell within the “lease.” The right to “lease” is

protected by § 1982 against the actions of

third parties, as well as against the actions of

the immediate lessor. [Little Hunting Park’s]

actions in refusing to approve the assignment

of the membership share in this case was

clearly an interference with Freeman’s right to

‘lease.’ A narrow construction of the language

of § 1982 would be quite inconsistent with the

broad and sweeping nature of the protection

meant to be afforded by § 1 of the Civil Rights

Act of 1866, . . . from which § 1982 was derived.

396 U.S. at 237 (emphasis added). In Hurd v. Hodge,

334 U.S. 24 (1948), a District of Columbia court, in a

lawsuit brought by neighborhood whites to enforce restrictive covenants, enjoined a real estate dealer who

had sold property to black individuals and a white

property owner from leasing or selling properties to

black people. 334 U.S. at 27. This Court, applying

§ 1982 (not the Fifth Amendment), held that the injunction against the white potential sellers “denies

right intended by Congress to be protected by the Civil

Rights Act. . . .” 334 U.S. at 34. The actions of the

white plaintiffs and the local court were impermissibly interfering with the right of prospective black

homeowners under § 1982 to purchase real property.

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

when Congress provided in [§ 1982] that the

right to purchase and lease property was to be

enjoyed equally throughout the United States

by Negro and white citizens alike, it plainly

meant to secure that right against interference from any source whatever, whether governmental or private.

392 U.S. at 423–24 (emphasis added) (footnote omitted).22

That definitive interpretation of § 1982 is of controlling importance here, because this Court has always interpreted §§ 1981 and 1982 in the same

manner. As the Court explained in CBOCS West, Inc. v.

Humphries, 553 U.S. 442 (2008),

[w]hile the Sullivan decision interpreted § 1982,

our precedents have long construed §§ 1981 and

1982 similarly. . . . [T]he Court has construed

§§ 1981 and 1982 alike because it has recognized the sister statutes’ common language,

The Black Code provisions at which § 1982 was directed

prohibited private parties from selling or leasing property to

blacks. The state and local authorities adopting these measures

were third parties interfering with the ability of blacks to do so.

See n.23, infra.

origin, and purposes. Like § 1981, § 1982 traces

its origin to § 1 of the Civil Rights Act of 1866,

14 Stat. 27.

553 U.S. at 447; see Runyon v. McCrary, 427 U.S. 160,

173 (1976) and Shaare Tefila Congregation v. Cobb,

481 U.S. 615, 617–18 (1987). “Like § 1981, § 1982 uses

broad language that says ‘[a]ll citizens of the United

States shall have the same right, in every State and

Territory, as is enjoyed by white citizens. . . .’ ” CBOCS,

553 U.S. at 448. That phrase must mean in § 1981 the

same thing that it means in § 1982, particularly since

the phrase in both instances derives from § 1 of the

1866 Civil Rights Act; because the phrase encompasses

third-party interference when used in § 1982, it must

contain a similar prohibition when used in § 1981.

One of the widely recognized purposes of the 1866

Civil Rights Act was to nullify the Black Codes, which

after the Civil War were adopted in the former confederate states to perpetuate the enslavement of freedmen. Jones v. Alfred H. Mayer Co., 392 U.S. at 426;

Slaughter-House Cases, 16 Wall. 36, 70 (1872); Goodman v. Lukens Steel Company, 482 U.S. 656, 673 (1987)

(Brennan, J., concurring); City of Memphis v. Greene,

451 U.S. 100, 132–33 (1981) (White, J., concurring). The

Black Codes denied or limited the rights of blacks to

make contracts, by interfering with their ability to

enter into contractual relations of their choice with

private employers.23 “The right to “make contracts”

See Howard Report, H.R. Exec. Doc. No. 11, 39th Cong.,

1st Sess. (1865); Schurz Report, S. Exec. Doc. No. 2, 39th Cong., 1st

Sess. (1985); 1 W. Fleming, Documentary History of Reconstruction

guaranteed by the statute was . . . the right—denied in

some States to blacks, as it was denied at common law

to children—to give and receive contractual rights on

one’s own behalf.” Domino’s Pizza, Inc. v. McDonald,

546 U.S. 470, 475 (2006). One supporter of the 1866 Act

warned that the former rebel states were enacting and

enforcing laws “which impair the[ ] ability [of the former slaves] to make contracts for labor in such manner

as virtually to deprive them of the power of making

such contracts.”24 The state and local governments that

adopted these Black Codes were third parties interfering with contracts between freedmen and private employers.25 If the city of San Antonio or the state of Texas

adopted a law prohibiting black physicians from working for PICCS in the pediatric intensive care unit of

North Central Baptist Hospital, that assuredly would

violate § 1981. If, as is clear, the right to make and

enforce contracts protects against discriminatory thirdparty interference by state and local governments, it

is impossible to understand how the guarantee could

273–312 (1906); E. McPherson, The Political History of the United

States During the Period of Reconstruction 29–44 (1871); K. Stampp,

The Era of Reconstruction 79–81 (1965).

Cong. Globe, 39th Cong., 1st Sess., 1151 (1866) (Rep.

Thayer).

Discrimination in employment by those government bodies themselves was not the issue; government employment as

such was not addressed by the Black Codes, and the number of

state and local employees in the former confederate states was

minimal compared to the millions of newly freed slaves.

mean any less when a private party interferes on the

basis of race with that right.26

In 1991, Congress re-enacted § 1981, adding language to overturn the narrow interpretation of § 1981

in this Court’s decision in Patterson v. McLean Credit

Union, 491 U.S. 164 (1989). As this Court noted in

CBOCS, “the 1991 amendments themselves make

clear that Congress intended to supersede the result in

Patterson and embrace pre-Patterson law.” 553 U.S. at

454. “And pre-Patterson law included Sullivan” (id.),

which as CBOCS itself noted had recognized that

§ 1982 prohibits third-party interference. 553 U.S. at

447. “Nothing in the statute’s text or in the surrounding circumstances suggests any congressional effort to

supersede Sullivan or the interpretation that courts

have subsequently given that case. To the contrary, the

amendments’ history indicates that Congress intended

to restore that interpretation.” 553 U.S. at 454. Prior to

1991, five courts of appeals had held that § 1981 prohibits discriminatory third-party interference,27 two of

them expressly relying on Sullivan, and no court of appeals had yet held otherwise.

Section 1981 is expressly applicable to private conduct. 42

U.S.C. § 1981(c).

DesVergenes v. Seekonk Water Dist., 601 F.2d at 13 (citing

Sullivan) (First Circuit); DeMatteis v. Eastman Kodak Co., 511

F.2d at 312 (quoting Sullivan) (Second Circuit); Sutton v. Bloom,

710 F.2d at 1190 (Sixth Circuit); London v. Coopers & Lybrand,

644 F.2d at 818 (Ninth Circuit); Zaklama v. Mt. Sinai Center, 842

F.2d at 293 (Eleventh Circuit).

This Court, in construing § 1981, has held that the

discrimination forbidden by the statute is intentional

discrimination on the basis of race. But the Court has

never read into § 1981 any non-textual limitation on

the types of parties that are forbidden to discriminate,

or on the manner in which that discrimination is accomplished. To the contrary, the Court emphasized in

Domino’s Pizza, Inc. v. McDonald,

[w]e have never retreated from what should

be obvious from reading the text of the statute: Section 1981 offers relief when racial

discrimination blocks the creation of a contractual relationship, as well as when racial

discrimination impairs an existing contractual relationship, so long as the plaintiff has

or would have rights under the existing or

proposed contractual relationship.

546 U.S. 470, 477 (2006). Nothing in the text of the

statute excludes the promised relief for “racial discrimination . . . that impairs an existing contractual relationship” if the discrimination was by a third party.28

Domino’s Pizza assumed that the plaintiff in that case

could have advanced such a claim if the discrimination

If PICCS had rejected a demand from VHS that it dismiss

its black employees, and VHS had in turn retaliated against

PICCS, PICCS clearly could have sued VHS under § 1981. See

CBOCS, 553 U.S. at 449–57. It makes no sense that the VHS

would have no liability for the discriminatory scheme if PICCS

acceded to such a discriminatory demand and fired its black workers.

of which he complained had interfered with any contractual relationship of his own.29

The Fifth Circuit relied on this Court’s decision in

Domino’s Pizza to justify its assertion that Dr. Perry

had to show that he had a contractual relationship

with VHS.

Dr. Perry . . . has failed . . . to identify in his

complaint an “impaired contractual relationship [with VHS] under which [he] ha[d] rights,”

[546 U.S.] at 476, . . . and therefore his complaint failed to state a plausible § 1981 claim.

(App. ___ 931) (quoting Domino’s Pizza). But the interpolation of “[with VHS]” is misleading. The actual passage in Domino’s Pizza does not indicate that the

impaired contractual relationship has to be with the

party creating the impairment. What actually appears

in this Court’s opinion after “relationship” is not a

reference to a particular party with whom the relationship must exist, but a citation to § 1981(b). That

provision only defines the phrase “make and enforce

contracts,”30 and does not define or limit which parties

The plaintiff argued that the judgment in his favor should

be upheld “because Domino’s interfered with McDonald’s own

contracts with JWM.” 546 U.S. at 480 n.4. This Court rejected

that argument because McDonald acknowledged that there had

been no actual impairment of any contractual relationship with

JWM. Id.

42 U.S.C. § 1981(b) (“For the purposes of this section, the

term ‘make and enforce contracts’ include the making, performance modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the

contractual relationship.”).

are and are not forbidden to interfere with the rights

guaranteed by the statute.

III. WHETHER § 1981 PROHIBITS DISCRIMINATORY THIRD-PARTY INTERFERENCE

WITH CONTRACTUAL RELATIONSHIPS

IS A QUESTION OF GREAT IMPORTANCE

The question presented is of exceptional importance

to the effectiveness of § 1981 and to the guarantee of

equal opportunity in contractual relationships promised by the 1866 Civil Rights Act. In modern society, no

less so than in the Reconstruction era, “third parties”

are often in a position to bring about discrimination in

the making and enforcement of contracts. The broad

ramifications of this question are illustrated by the

wide variety of circumstances in which lower court

decisions outside the Fifth Circuit have applied the

§ 1981 prohibition against third-party discrimination.

The three-party staffing arrangement at issue

here is a common one. Millions of workers today are

employed by (or are independent contractors for) one

firm, but in practice work on the premises of and/or

provide staffing for another entity. A significant number of companies exist largely or (like PICCS) solely to

provide such staffing services. District courts outside

the Fifth Circuit have repeatedly held that § 1981 forbids the entity receiving such staffing services from

interfering on the basis of race with the contractual

relationship between the workers and the firm by

which they are paid.31

Courts applying the majority rule forbidding such

discriminatory interference have also held in other

types of situations that a discriminatory third party

faces liability under § 1981 if, as here, it takes steps to

bring about the dismissal of a worker.32 Outside the

Fifth Circuit, the majority rule has repeatedly been applied when third parties effectively bring about racial

discrimination in hiring or contracting.33

Olumuyiwa v. Harvard Protection Services, Inc., 2000 WL

620202, at *5 (E.D.N.Y. May 12, 2000) (property manager pressured security company not to assign black guards to its properties); McLease v. R.R. Donnelley & Sons Co., 226 F.Supp.2d 695,

699 (E.D.Pa. 2002) (operator of facility racially harassed employee of temporary employment agency); Ben’Israel v. Global

Management Solutions, Inc., 2012 WL 122409, at *3 (D.Md. Jan.

12, 2012) (worker fired after maintenance company told by mall

official that the black worker was not “the right face” for the mall).

Ladson v. Ulltra East Parking Corp., 853 F.Supp. 699,

702–03 (S.D.N.Y. 1994) (third party made false complaint to get

worker fired); Collins v. Christie, 2008 WL 2736418, at *10–*11

(E.D.Pa. July 11, 2008) (third party made false complaint to get

worker fired).

Daniels v. Pipefitters’ Ass’n Local Union No. 567, 945 F.3d

at 914–15; London v. Coopers & Lybrand, 644 F.2d at 818; Gomez

v. Alexian Bros. Hosp. of San Jose, 698 F.2d at 1021–22; Nanavati

v. Burdette Tomlin Memorial Hospital, 1986 WL 15318, at *5

(D.N.J. June 23, 1986) (hospital denial of staff privileges interfered with physician’s ability to contract with patients); Ingram

v. Madison Square Garden Center, Inc., 482 F.Supp. 414, 420–23

(S.D.N.Y. 1979) (union discriminated in favor of whites in making

referrals to better paid positions); Shirkey v. Eastwind Community Development Corp., 941 F.Supp. 567, 573–74 (D.Md. 1996)

(entity providing funding for position required that it be filled by

District courts have also consistently provided relief when a discriminatory third party uses its position

to prevent minorities from living in a predominantly

white area34 or from frequenting a restaurant or other

public facility.35

Congress in 1991 reenacted and strengthened

§ 1981 because it recognized that § 1981 “is the only

federal law banning race discrimination in all contracts.” H.R. Rep. No. 102-40 (II), 35, 101st Cong., 1st

Sess. (1991). Often, § 1981 is the only possible federal

remedy for racial discrimination. The Fifth Circuit’s

holding that § 1981 permits third-party race-based interference with the right to make and enforce contracts

is a roadmap for schemes, like the one in the instant

case, by which firms could engage with impunity in invidious racial discrimination.

a black applicant); Martinez-Evangelista v. Universal Ins. Group,

Inc., 2014 WL 12795561, at *11 (D.P.R. March 27, 2014) (insurance company obstructed insureds using auto body repair shop

owned by black).

Sutton v. Bloom, 710 F.2d at 1190; DesVergnes v. Seekonk

Water Dist., 601 F.2d at 13; Painter’s Mill Grille, LLC v. Brown,

716 F.3d at 350; Parks School of Business v. Symington, 51 F.3d

at 1488; Pisello v. Town of Brookhaven, 933 F.Supp. 202, 207, 215

(E.D.N.Y. 1996) (threatening property owners if they continued

to work with developer leasing property to black and Hispanic

tenants); OT, LLC v. Harford County, 2019 WL 5538057, at *1, *9

(D.Md. October 24, 2019).

Riccobono v. Whitpaid Township, 497 F.Supp. 1364, 1373

(E.D.Pa. 1980) (roller rink that defendants believed would attract

black patrons); Yesteryears, Inc. v. Waldorf Restaurant, Inc., 730

F.Supp. 1341, 1352–53 (D.Md. 1989) (bar and restaurant that attracted black patrons).

§ 1981 is uniquely important among the nation’s

civil rights laws because of the breadth of contractual

relationships which it protects. That importance is reflected in the decision of this Court to grant certiorari

on a dozen prior occasions to resolve issues about the

meaning or application of § 1981.36 Some of those earlier grants involved only procedural issues, such as the

relevant statute of limitations governing § 1981 actions. This case presents the more fundamental question of what racially discriminatory practices are

forbidden by § 1981, and arises in a case in which

the lower courts have held that the defendant had

Comcast Corp. v. National Association of African-American-Owned Media, 140 S.Ct. 1009 (2020) (burden of proof regarding causation in a § 1981 case); CBOCS West, Inc. v. Humphries,

553 U.S. 442 (2008) (§ 1981 forbids retaliation); Domino’s Pizza,

Inc. v. McDonald, 546 U.S. 470 (2006) (application of § 1981 to

discrimination against a corporation); Jones v. R. R. Donnelly &

Sons Co., 541 U.S. 369 (2004) (statute of limitations applicable to

a § 1981 claim); Rivers v. Roadway Exp., Inc., 511 U.S. 298 (1994)

(retroactivity of 1991 amendment to § 1991); Jett v. Dallas Independent School Dist., 491 U.S. 701 (1989) (applicability of respondeat superior to § 1981 action against government body);

Patterson v. McLean Credit Union, 491 U.S. 164 (1989) (applicability of § 1981 to post contract formation conduct); Goodman v.

Lukens Steel Co., 482 U.S. 656 (1987) (statute of limitations applicable to § 1981 action); St. Francis College v. Al-Khazraji, 481

U.S. 604 (1987) (type of discrimination forbidden by § 1981); General Building Contractors Ass’n, Inc. v. Pennsylvania, 458 U.S.

375 (1982) (§ 1981 requires proof of intentional discrimination);

Runyon v. McCrary, 427 U.S. 160 (1976) (applicability of § 1981

to private conduct); Johnson v. Railway Express Agency, 421 U.S.

45 (1975) (tolling of statute of limitations in § 1981 action).

succeeded in structuring its practices so that they are

outside the scope of Title VII.37

---------------------------------♦---------------------------------

CONCLUSION

For the above reasons, a writ of certiorari should

issue to review the judgment and opinion of the Court

of Appeals for the Fifth Circuit.

Respectfully submitted,

ERIC SCHNAPPER

Counsel of Record

University of Washington

School of Law

Box 353020

Seattle, WA 98195

(206) 660-8845

schnapp@uw.edu

COLIN WALSH

WILEY WALSH, P.C.

1011 San Jacinto Blvd., Ste. 401

Austin, TX 78701

(512) 271-5527

colin@wileywalsh.com

Counsel for Petitioner

See n.8, supra.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.