Amicus Curiae Brief — Domino's Pizza, Inc. v. McDonald

No. 04-593

IN THE

Supreme Court of the United States

-.

vv

DOMINO’S PIZZA, LLC,

DOMINO’S PIZZA, INC., AND DEBBIE PEAR,

Petitioners,

V.

JOHN MCDONALD,

Respondent.

,%

. a

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

+

BRIEF OF THE STATES OF ALABAMA, COLORADO,

KANSAS, MICHIGAN, NEVADA, OHIO, OREGON,

TENNESSEE, UTAH, AND WASHINGTON, AND THE

COMMONWEALTH OF PUERTO RICO AS AMICI

CURIAE IN SUPPORT OF PETITIONERS

+

Troy King

Attorney General

Kevin C. Newsom

Solicitor General

Counsel of Record

STATE OF ALABAMA

Office of the Attorney General

11 South Union Street

Montgomery, Alabama 36130-0152

July 14, 2005 (334) 242-7401

(Additional counsel for amici curiae are listed inside the front cover.)

EE

ADDITIONAL COUNSEL

JOHN W. SUTHERS

ATTORNEY GENERAL

STATE OF COLORADO

1525 Sherman Street

7th Floor

Denver, CO 80203

PHILL KLINE

ATTORNEY GENERAL

STATE OF KANSAS

120 S.W. 10 Avenue

Topeka, KS 66612-1597

MICHAEL A. COx

ATTORNEY GENERAL

STATE OF MICHIGAN

P.O. Box 30212

Lansing, MI 48909

BRIAN SANDOVAL

ATTORNEY GENERAL

STATE OF NEVADA

HARDY MYERS

ATTORNEY GENERAL

STATE OF OREGON "

1162 Court Street, N.E.

Salem, OR 97301

ROBERTO J. SANCHEZ

RAMOS

SECRETARY OF JUSTICE

COMMONWEALTH OF

PUERTO RICO

P.O. Box 9020192

San Juan, PR 00902-0192

PAUL G. SUMMERS

ATTORNEY GENERAL

STATE OF TENNESSEE

P.O. Box 20207

Nashville, TN 37202-0207

MARK L. SHURTLEFF

ATTORNEY GENERAL

STATE OF UTAH

Utah State Office Complex

East Office Bldg., Suite 320

Salt Lake City, UT 84114-

2320 -

ROB MCKENNA

ATTORNEY GENERAL

STATE OF WASHINGTON

1125 Washington Street

P.O. Box 40100

Olympia, WA 98504-0100

QUESTION PRESENTED

In the absence of a contractual relationship with the de-

fendant, are allegations of personal injuries alone sufficient

to confer standing on a plaintiff pursuant to 42 U.S.C. §1981?

. ii

TABLE OF AUTHORITIES

TABLE OF CONTENTS

QUESTION PRESENTED i

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Air Courier Conf. of America v. American Postal Workers

yo Pte Fh ll iii Mian, I I, GF CI ccccnccsccccecccnincccnccccszccsnscnsese 7

SIUC EBCES COW AGI ia cccccscssssssessestuessetnenitnnmunmeesmeieaneaaniaannal 1 Alexander v. Sandoval, 532 U.S. 275 (2001) ....0-.cv-ssve-sveesseessveeens 10

SURBEARY OF ARTA ccsscxnssssnienssntinntiicimmiemmiaail 2 Allen v. Wright, 468 U.S. 737 (1984) ...........cccsssssssssesssesceeeeensen 10

AUTON 6 ceceensencsssssinsnnninemnie 4 Amesco Exports, Inc. v. Associated Aircraft Mfg. & Sales,

; ted on other

I. The “Zone of Interests’ Component of Prudential Inc., 977 F. Supp. 1014 (C.D. Cal.), vaca

Standing Doctrine Governs McDonald’s Right To grounds, 87 F. Supp. 2d 1013 (C.D. Cal. 1997) ecccesseseesscsecs 28

UD. wsescrrmeeintentiin evvccccesoececccveeneeccssoonecosoooscossoonossoosessoonsooooses 5 Association of Data Processing Serv. Orgs., Inc. v. Camp,

Il. As It Applies Here, the “Zone of Interests” Test 397 U.S. 150 (1970) eunspennsscosesessecssnsqsocessseseccosessssesesssussssescese 7,8

Requires Evidence of a Specific Congressional Intent Baidee v. Brighton Area Schs., 695 N.W.2d 521 (Mich.

To Protect the Would-Be Plaintiff. .......ssssessssesnsseesnsseeen 7 A 29

Ill. By Any Measure, McDonald Is Not Within the Zone Bank of Missouri v. Benoist, 10 Mo. 520 (1847) ...........sssssecesss0 22

of Interests Congress Intended To Protect in Section

Barringer v. Warden, 12 Cal. 311 (1859) ...........sseeserereeeneneenens 20

| NN 11

A. McDonald Lacks Standing as a Contract Belt v. McLaughlin, 12 Mo. 433 (1849) ........-cerereereesnenenenenenees 22

5, Ne 12 Bennett v. Spear, 520 U.S. 154 (1997) ........ccvcsssssessssveeeeenes passim

B. McDonald Lacks Standing as a Third-Party Blessing v. Freestone, 520 U.S. 329 (1997) ....cccssssssssssseeessessssesee 16

ENE Ne 14

Blymire v. Boistle, 6 Watts 182 (1837)..........-.---sesnsesenenenenennees 22

1. Third-Party Beneficiaries Are Not Within

the Zone of Interests Congress Intended Bohanan v. Pope, 42 Me. 93 (1856) ...........-s-ssserenersernserenenenenenennes 20

To Protect in Section 1981.......-ssvsssseeessseeeeeeeen 14 Bristow v. Lame, 21 Ill. 194 (1859) .......cccssosscsssscesessseeeeeseeseeeeee 20

2. McDonald Is Not a Third-Party Brown v. Hazen, 11 Mich. 219 (1863)....cc...-cccvessssssveseesneesessnneces 22

Beneficiary of the Domino’s-JWM a

COSIIRIIROR. ..00.scvsssesesssonsessnssnssnimaniiainn 26 Brown v. O’Brien, 1 Rich. 268 (S.C. Ct. App. 1845) .............-- 20

IV. McDonald’s Proposed Construction of Section 1981 Butterfield v. Hartshorn, 7 N.H. 345 (1834) ...........-ccccseeseeerenees 21

Would Dramatically Expand Liability and Trigger a California v. Sierra Club, 451 U.S. 287 (1981) ...ccscesssseennesne 1

FIGS OF Nowe Barbs, .....cccccsesccseseseesssasesenntenenansinsaiiaaana 29 ‘

Cannon v. University of Chicago, 441 U.S. 677 (1979).....9, 10, 11

OUOINCILIIIUIIN .......:0cccsceccscesssnsssnssseenensiisiassionnaniiiaiinannnnann 30

iv Vv

Carroway 0. Cox, 44 N.C. 173 (1852) .ecccccsosscseeseeseesesseseeseeesseseses 22 Hind v. Holdship, 2 Watts 104 (Pa. 1833). a

Chamberlain v. New Hampshire Fire Ins. Co., 55 N.H. Howell v. Ketchikan Pulp Co., 943 P.2d 1205 (Alaska

Bet nciicniteteniinsiaacasenssieinaneteiieaieninieniiaiaiiaa Ratatat 22 1997)......-..cvsscnecenesecnsesnsecnsessnsenessnnesnnsssssecsesessess 29

Clarke v. McFarland’s Executors, 5 Dana 45 (Ky. Ct Hybart v. Parker, 140 Eng. Rep. 1063 (C.P. 1858) .18

App. rE cvcccccccccccccccoccccocce 21 Johnson v. Railway Express Agency, Inc., 421 US. 454

Clarke v. Securities Indus. Ass'n, 479 US. 388 (1987) —_ passim (1975) qqnnennsanasnqnssnsnemmpensmesnpemsenpepepemmmmsuaneeti 6

Cant &. Ale, £22 US. 66 (89TD) acececececosssessnsersssnscsnsssnsssssttonsees 9,11 Jones v. Local 520, Int’l Union of Operating Engineers,

603 F.2d 664 (7th Cir. 1979) ...cccco-ccoeeeeee 14

Crumbaugh v. Kugler, 3 Olio St. 544 (1854) .........cccccecesesesesenees 20

Jones v. Miller, 12 Mo. 408 (1849) .........:--ccccssssessseecesssnneeseenessnes 23

Danco, Inc. v. Wal-Mart Stores, Inc., 178 F.3d 8 (1st Cir.

re ciisessstnttninienesineiahininnisitinlics iii t naa 12, 29 Jones v. Thomas, 62 Va. 96 (1871) .....-.--n--sesnesnesnsenesessnesnsenencennenes 22

Department of Commerce v. United States House of Kyles v. ].K. Guardians Security Servs., Inc., 222 F.3d

Representatives, 525 U.S. 316 (1999)............ccessceeesenseeneeeenees 6 289 (7th Cir. 2000) ..........-cs0-cecseseees 13

Dow v. Clark, 73 Mass. 198 (1856) ..cccccccvsvsvcvvssssssssssseeesesesssssseees 21 Land v. Henry, 54 N.H. 57, 64 (1873) ..ccccccccccccsssee 22

Dutton v. Poole, 83 Eng. Rep. 523 (K.B. 1677) .........cvcsssssueseee 17 Langridge v. Levy, 150 Eng. Rep. 863 (Ex. 1837) .18

Eichelberger v. Murdock, 10 Md. 373 (1857) .......-..ce-sessesseeseeees 25 Lawrence v. Fox, 20 N.Y. 268 (1859)..........---0-+- 19, 20, 24, 26

FEC v. Akins, 524 US. 11 (1998) ...cccccccscscoscssesscessesessessneeesesneseeee 6 Lee v. Mitchell, 953 P.2d 414 (Or. Ct. App. 1998) 28

Felton v. Dickinson, 10 Mass. 287 (1813) ........csccsssccsessssseseee 21 Lucas v. Chamberlain, 47 Ky. 276 (1847)............ssss--esseeeeeeeseeen 20

Finney v. Finney, 16 Pa. 380 (1851) ....cccocccccccsssesseeesseeeeeesensueeeee 22 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ...........-. 5, 10

Fugure v. Mutual Soc’y of St. Joseph, 46 Vt. 362 (1874)............ 22 Manny v. Frazier’s Administrator, 27 Mo. 419 (1858)............... 23

Gladstone Realtors v. Village of Bellwood, 441 US. 91 Martin v. Edwards, 548 P.2d 779 (Kan. 1976) 27

(1979) COREE REO E RHEE EEE EEE EEE EEEE EEE EEE EEEEEEEEEEEEEEEE SESE SEED EEE EEE EE EEE EEEE EES 6 Martyn v. Hind, 98 Eng. Rep. 1174 (K.B. 1776) 17

comms ©. gpows Bros. Hosp. of San Jose, 698 F.2d 1019 McDonald v. Domino’s Pizza, Inc., 107 Fed. Appx. 18

DR IG scnctnnnnenmnninniin — (9th Cir, 2004) occ 5

ore. McGuire Bros., Inc., 445 F.2d 442 (3d Cir. : Meech v. Ensign, 49 Comm. 191 (1881) .ccsccesee 25

ssenaeereenacanmvennnsnenneannininidesinataneinspatinnaittieleliaatamnmasiedasniidl pete ti wna. me

Hall v. Huntoon, 17 Vt. 244 (1845) .0........ccccccceesnseseseneeseeenseeneneees 22

Hendrick v. Lindsay, 93 US. 143 (1876) .ccccscccccsssnsssceeesennesneees 25

vi

Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran,

GD Ge Be rerennrecenememe 11

National Bank v. Grand Lodge, 98 U.S. 123 (1878) ...........0-0-000 25

National Credit Union Admin. v. First Nat'l Bank &

Beene Gag SES Gs GP Gi rccccncccesecensemnesnmneneemmncmnens 7,8

Olzman v. Lake Hills Swim Club, Inc., 495 F.2d 1333 (2d

SD Be reeetemnsensscemennnsnssnensnmennnemnmmmememnemennmennen 14

Page v. Becker, 31 :A0. 466 (1862). ...........0-cssssessssesessssseeesnecsenees 23

Pangborn v. Saxton, 11 Vt. 79 (1839)...........csecesesssessesseeeseneeeeees 22

Patterson v. McLean Credit Union, 491 U.S. 164 (1989) ........... 26

Pelletier v. Sordoni/Skanska Constr. Co., 825 A.2d 72

GRIN, SI acer erenssnssssasensnssenmesnsessansssencmenseenesnmssenmnasensmnestis 29

Pipp v. Reynolds, 20 Mich. 88 (1870) ..............cssssssessseneneeseeeeenees 22

Raines v. Byrd, 521 U.S. 811 (1997)..........cccccssssseseesseseensesesenees 5, 6

Rivers v. Roadway Express, Inc., 511 U.S. 298 (1994)............00+ 26

Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303

en 27

Ross v. Milne, 12 Leigh 204 (Va. 1841)............csessessseneseeesvenens 22

Shotwell v. Gilkey’s Administrators, 31 Ala. 724 (1858)............ 20

Steel Co. v. Citizens for a Better Environment, 523 US.

ee ————

Stuart v. James River & Kanawha Co., 65 Va. 294 (1874).......... 22

Séyprane ©. Ball, SS NS. 222 (BBG) nnnecncesccosceccesesrersssesesscrsssrssors 22

Taylor v. Facility Constructors, Inc., 360 F. Supp. 2d 887

OG Bi FI censencnssnsensesnsscuesemmnmeesesmmemmenmmnsias 29

Texas & Pac. Ry. Co. v. Rigsby, 241 U.S. 33 (1916) ..........0-0-00 11

NX ———$<——— — —UCCCCCts—=—<“‘“‘é‘iOSCS;S*:tTTTTTTLLLL eee

vii

The Guides, Ltd. v. Yarmouth Group Property Mgmt.,

Inc., 295 F.3d 1065 (10th Cir. 2002) ............cescerereenenenes 13, 29

Thompson v. Gordon, 3 Strob. 196 (S.C. Ct. App. 1848)........... 20

Trafficante v. Metropolitan Life Insurance Co., 409 U.S.

ye 6

Tweddle v. Atkinson, 121 Eng. Rep. 762 (Q.B. 1861)........... 18, 21

Valley Forge Christian Coll. v. Americans United for

Separation of Church and State, Inc., 454 US. 464

PERERA TERE AA 5

Warren v. Batchelder, 15 N.H. 129 (1844) ..cccococccccsssesssnsssesseeeees 22

Warth v. Seldin, 422 U.S. 490 (1975) ..cccssssssssosseeeesseseensnssenneeeees 10

Willard v. Worsham, 76 Va. 392 (1882) c.vsissioccccsssssssseunensssneeeees 22

Willis v. E.I. DuPont De Nemours & Co., 76 F. Supp.

1010 (E.D. Okla.), rev'd on other grounds, 171 F.2d

51 (10th Cir, 1948) .cccccccceseseeeee 28

Winterbottom v. Wright, 152 Eng. Rep. 402 (Ex. 1842) ........ 18

Statutes

Pk EER OAL eee era passim

a new ait

42 U.S.C. §19B1(b) ..cccscsccssseennsees — 15

LL aa al

42 U.S.C. $1983 voccccceessnen — 16

42 U.S.C. §3610(€) cc... 2 6

Administrative Procedure Act §10(a), 5 U.S.C. §702(a) .........7

Other Authorities

H.R. Rep. No. 102-40(1) (Apr. 14, 1991). 26

H.R. Rep. No. 102-40(II) (May 17, 1991)... 26

Cong. Globe, 39th Cong., Ist Sess. 475, 476, 478, 598

Oe 16

Restatement (Second) Contracts (1981) ..........-:sssssse+« .- 15, 27, 28

Joseph Chitty, Jr., Contracts (London 1842) .........00sessesseseeeneees 18

Lawrence M. Friedman, A History of American Law

OD) 19

Lawrence M. Friedman, Contract Law in America

0 EE 25

Oliver W. Holmes, The Common Law (Mark Howe ed.,

SE 25

Christopher C. Langdell, A Summary of the Law of

Clemens GAG O88, BBE ceerecsecsvssczscecszessesnsensecsssesecsssnmnecsenvennen 24

Williston on Contracts (R. Lord, ed., 4th ed. 2000) ......... passim

Melvin Aron Eisenberg, Third-Party Beneficiaries, 92

Colum. L. Rev. 1358 (1992)...........::ssssessssseresereseenees passim

William A. Fletcher, The Structure of Standing, 98 Yale

BD, FR CI cescessncszsccsscnzsscstnsscssesnsssvssesssesmnsesvenmmneenssnnaveses 8

M.H. Hoeflich & E. Perelmuter, The Anatomy of a

Leading Case: Lawrence v. Fox in the Courts, the

Casebooks, and the Commentaries, 21 U. Mich. J. L.

8 fe 17, 19, 24, 26

Peter Karsten, The “Discovery” of Law by English and

American Jurists of the Seventeenth, Eighteenth, and

Nineteenth Centuries: Third-Party Beneficiary

Contracts as a Test Case, 9 Law & Hist. Rev. 327

ix

Guenter Treitel, Some Comparative Notes on English

and American Contract Law, 55 SMU L. Rev. 357

Anthony Jon Waters, The Property in the Promise: A

Study of the Third Party Beneficiary Rule, 98 Harv.

eI cicnseincreceminsinicanncaiiiaiad 17, 19, 20, 25

INTEREST OF AMICI

This case involves the provision of 42 U.S.C. §1981 that

protects an individual's right to “make and enforce con-

tracts” free from racial discrimination. The States, of course,

wholeheartedly endorse the policy that underlies §1981;

none of the amici here sanctions or tolerates race discrimina-

tion in any shape, form, or fashion. At the same time, the

States, whose officers are frequently made defendants in

§1981 actions, have a keen interest in ensuring that §1981’s

intended scope is observed.

The Ninth Circuit's sweeping decision here is of great

concern to the States, which routinely contract with private-

sector companies to perform all manner of important tasks.

Indeed, other than the Federal Government - to which §1981

does not apply at all, see 42 U.S.C. §1981(c) - the States may

well be the most regular institutional contractors in the

country. Among the numerous subjects of state contracts, to

name just a few, are the construction of public roads and

bridges, the survey and appraisal of public land, the man-

agement of state assets, the preservation of historical arti-

facts, and, in some instances, even the litigation of court

cases. (In terms of dollars, a report presented to the Contract

Review Committee of the Alabama Legislature in September

2004 provides a snapshot; it shows, for that month alone, 280

state contracts totaling almost $50 million.) By conferring

§1981 standing on anyone who can show some incidental

injury resulting from a contract's breach - even persons who

are neither parties to nor intended third-party beneficiaries

of the contracts in question - the Ninth Circuit's decision

dramatically expands the prospects for state liability and

increases the likelihood that important state business will

bog down in litigation.

A simple example will illustrate: Suppose that a state

Department of Transportation contracts with a large con-

struction company to build a public road. For whatever

2

reason, the relationship between the DOT and the company

sours, and the DOT cancels the contract. Then, out of the

blue, one of the construction company’s many employees

(say, a minority engineer) sues the DOT director under

§1981, alleging that, in fact, the DOT’s cancellation was

motivated by the large number of minority workers on the

company’s payroll. Certainly, in the language of McDon-

ald’s filings in this case, our hypothetical employee could

demonstrate a “personal injury” independent of his com-

pany. Specifically, in the words of McDonald’s complaint,

he could show that he had “suffer[ed] monetary damages” -

say, the marginal loss of revenues that would have trickled

down to workers - as well as “pain and suffering, emotional

distress, and humiliation.” Pet. App. 16. Under the Ninth

Circuit's rule, our employee - despite his remove from the

“contract[ing]” process that §1981 aims to protect - could

seek to enjoin the DOT's cancellation and to collect damages

from DOT decisionmakers. See Gomez v. Alexian Bros. Hosp.

of San Jose, 698 F.2d 1019, 1021 (9th Cir. 1983) (allowing §1981

suit by Hispanic employee in similar circumstances).

The litigation explosion contemplated by the Ninth Cir-

cuit’s approach to §1981 is breathtaking, and the ensuing

disruption of state business, certain. The States respectfully

urge the Court to reaffirm §1981’s intended scope.

SUMMARY OF ARGUMENT

The Ninth Circuit's decision conferring standing on any-

one who can show some personal injury from a contract's

breach - no matter how far removed he or she is from the

“contract[ing]” process that §1981 protects - ignores basic

standing doctrine and §1981’s intended scope.

1. The “zone of interests” component of prudential

standing doctrine governs McDonald’s right to sue here.

This Court has emphasized that the zone-of-interests test

applies unless it is “expressly negated” by Congress - as, for

example, where Congress grants a “particular plaintiff” the

3

right to sue or broadly authorizes civil actions challenging

allegedly unlawful conduct. Congress did neither in §1981.

Section 1981 certainly does not give any particular plaintiff a

cause of action, nor does it use the expansive term “ag-

grieved,” which has traditionally been viewed as indicative

of a congressional intent to confer standing broadly.

2. This Court has consistently held that “congressional

intent” defines the zone of interests protected by a particular

statute. And although decisions applying the zone-of-

interests test in the APA context have hedged on whether a

specific intent to protect the would-be plaintiff is required,

this Court has recognized that where, as here, the “generous

review provisions” of the APA are not implicated, there is

warrant for a strict approach to marking the covered zone.

Specifically, this Court has analogized non-APA zone-of-

interests cases to cases involving implied private rights of

action, where a plaintiff must show (i) that Congress in-

tended to create a private remedy and, further (ii) that

Congress enacted the statute in question specifically for the

benefit of “a special class of which the plaintiff is a mem-

ber.” The Court should now formalize the implied-right-of-

action analogy and hold that to satisfy the zone-of-interests

test a non-APA plaintiff must show that Congress specifi-

cally intended to protect someone in his shoes.

3. However one measures §1981’s zone of interests,

McDonald falls outside it. Section 1981, again, protects the

right to “make and enforce contracts.” The only persons

who have (or can get) the “contract[]” rights to which §1981

refers are contract parties and intended third-party benefici-

aries. Because McDonald is neither, he has no standing.

a. McDonald lacks standing as a contract party be-

cause, as his own complaint repeatedly acknowledges, he is

not a party to the contracts in question.

b. McDonald also lacks standing as a third-party

beneficiary, for two reasons. First, a thorough historical

review shows that the third-party-beneficiary rule - a staple

4

of modern contract doctrine - had not taken hold when

Congress enacted §1981 in 1866. (Recall that, whatever its

precise contours, the zone-of-interests test is fundamentally

a function of “congressional intent.”) In England, it had

become settled by 1861 that only contracting parties could

sue. So, too, in this country, while several States had seem-

ingly embraced third-party beneficiary doctrine by the time

§1981 was adopted, a number of others - Massachusetts,

New Hampshire, Virginia, and Pennsylvania among them -

had decisively rejected it. What is more, all seem to agree

that mid-nineteenth-century law, under the influence of the

“classical contract school,” was trending away from recogni-

tion of third-party rights. All of this is to say that mid-

nineteenth-century contract doctrine was, at the very least,

not so clearly supportive of third-party rights that one could

simply assume that Congress - having said nothing in text

or legislative history one way or the other - intended to

incorporate into §1981 anything like the modern-day third-

party-beneficiary rule.

Second, and in any event, even assuming that §1981

could be read to protect third-party beneficiaries, McDonald

would not qualify. Under modern doctrine, a third party

can sue on a contract only if he can show that the contracting

parties specifically intended to benefit him when they struck

their deal. There is nothing to suggest that the parties here

contracted with the intention of benefiting McDonald

specifically. McDonald, rather, was at most an incidental

beneficiary and, as such, obtained no right to performance.

ARGUMENT

This is a suit brought under 42 U.S.C. §1981 - specifi-

cally, under the provision of that statute protecting citizens’

rights to “make and enforce contracts” without regard to

race. While recognizing that other circuits have reached “a

contrary result,” the Ninth Circuit here held that an individ-

ual who is “not formally a party to [a] contract” may “none-

5

theless sue under §1981 insofar as he seeks recovery for

individual injuries separate and distinct from” those suf-

fered by the contracting parties. Pet. App. 2. Because the

Ninth Circuit's decision ignores both elementary standing

doctrine and §1981’s intended scope, it should be reversed.

I. The “Zone of Interests” Component of Prudenti: .

Standing Doctrine Governs McDonald’s Right To Sue.

Throughout the appellate process, McDonald has main-

tained that he has standing to litigate his §1981 claim “be-

cause he can demonstrate unique, personal injury independ-

ent of his company.” Br. of Appellant at 11, McDonald v.

Domino’s Pizza, Inc., 107 Fed. Appx. 18 (9th Cir. 2004) (No.

02-16900). And, as noted above, the Ninth Circuit so held.

McDonald’s allegations of “personal injury” are surely

sufficient to satisfy Article III’s baseline standing require-

ment that a plaintiff demonstrate a concrete, particularized,

and actual “injury in fact.” E.g., Lujan v. Defenders of Wildlife,

504 U.S. 555, 560 (1992). But the standing inquiry does not

end with Article III. “In addition to the immutable require-

ments of Articie III, ‘the federal juticiary has also adhered to

a set of prudential principles that bear on the question of

standing.’” Bennett v. Spear, 520 U.S. 154, 162 (1997) (quoting

Valley Forge Christian Coll. v. Americans United for Separation

of Church and State, Inc., 454 U.S. 464, 471-72 (1982)). “Num-

bered among these prudential requirements is the doctrine

of particular concern in this case: that a plaintiff's grievance

must arguably fall within the zone of interests protected or

regulated by the statutory provision or constitutional

guarantee invoked in the suit.” Id. (emphasis added).

This Court has made clear that its “prudential standing

doctrine” - including the zone-of-interests component at

issue here - “applies unless it is expressly negated” by

Congress. Id. at 163. Specifically, Congress can “eliminate[]

any prudential standing limitations” by expressly

“grant[ing] a particular plaintiff the right” to sue. Raines v.

Byrd, 521 US. 811, 820 n.3 (1997). In Trafficante v. Metropoli-

6

tan Life Insurance Co., 409 U.S. 205 (1972), for instance, this

Court found that Congress had manifested its “’intention to

define standing as broadly as permitted by Article III” -

and, thus, to negate prudential standing limitations - by

giving an express cause of action to “any person who claims

to have been injured by a discriminatory housing practice.’”

Id. at 208 (quoting, respectively, Hackett v. McGuire Bros.,

Inc., 445 F.2d 442, 446 (3d Cir. 1971), and 42 U.S.C. §3610(a)).

Other decisions dispensing with prudential standing re-

quirements follow a similar pattern - they deal with statutes

in which Congress expressly and broadly authorized civil

suits challenging allegedly unlawful conduct. See, e.g.,

Department of Commerce v. United States House of Representa-

tives, 525 U.S. 316, 328-29 (1999) (“Congress has eliminated

any prudential concerns in this case by providing that ‘[a]ny

person aggrieved ... may in a civil action obtain declaratory,

injunctive, and any other appropriate relief ....’”); FEC v.

Akins, 524 US. 11, 19 (1998) (statute providing that “[a]ny

party aggrieved ... may file a petition” in district court);

Bennett, 520 U.S. at 164 (statute providing that “any person

may commence a civil suit”); Gladstone Realtors v. Village of

Bellwood, 441 U.S. 91, 102-03 (1979) (statute providing that

“[t]he rights granted ... may be enforced by civil actions”).

Section 1981 does not bear any of the markings of a stat-

ute that eliminates prudential standing limits and extends

standing to the limits of Article III. Section 1981 certainly

does not in so many words give any “particular plaintiff”

the right to sue. Raines, 521 U.S. at 820 n.3. Nor does §1981

use the expansive term “aggrieved,” which “[h]istory

associates ... with a congressional intent to cast the standing

net broadly.” Akins, 524 U.S. at 19. Nor, for that matter,

does §1981 expressly create any private cause of action at all;

the right to sue for alleged violations of §1981 has been

judicially implied. See Johnson v. Railway Express Agency,

Inc., 421 U.S. 454, 459-60 (1975); Runyon v. McCrary, 427 US.

160, 168-74 (1976).

7

Because Congress did not by any measure “expressly

negate[]” prudential standing requirements in §1981 (either

in the original 1866 enactment or in the 1991 amendments),

the “zone of interests” test governs McDonald's right to sue

here. The question then becomes whether McDonald, as a

non-party to the contract that forms the basis of his §1981

claim, falls within the “zone” that §1981 covers. Before

turning to that specific question (which we will consider in

Part III), we briefly address the role of congressional intent

in marking the boundaries of a statute’s zone of interests.

II. As It Applies Here, the “Zone of Interests” Test

Requires Evidence of a Spe.ific Congressional Intent

To Protect the Would-Be Plaintiff.

The zone-of-interests test had its genesis in cases involv-

ing challenges to administrative action under §10(a) of the

Administrative Procedure Act, 5 U.S.C. §702(a). See, e.g.,

Association of Data Processing Serv. Orgs., Inc. v. Camp, 397

U.S. 150, 153 (1970); Clarke v. Securities Indus. Ass'n, 479 US.

388, 394-403 (1987); Air Courier Conf. of America v. American

Postal Workers Union, 498 U.S. 517, 523-24 (1991); National

Credit Union Admin. v. First Nat'l Bank & Trust Co., 522 US.

479, 488-99 (1998). In all honesty, this Court's explication of

the test in APA cases has been somewhat inconsistent. In

particular, while repeatedly affirming in broad terms that

the task in applying the test is “basically one of interpreting

congressional intent,” Clarke, 479 U.S. at 394, the Court has

“vacillate[d] between holding that the test requires a show-

ing that Congress intended to benefit a would-be plaintiff

and holding that it requires no such showing,” Jonathan R.

Siegel, Zone of Interests, 92 Geo. L. J. 317, 318 (2004).

Initially, the Court in Clarke noted that “there need be no

indication of congressional purpose to benefit the would-be

plaintiff.” 479 U.S. at 399-400. Several years later, however,

in Air Courier, the Court clarified that, in fact, a showing of

intent to benefit the plaintiff is required. See

498 U.S. at 524-28; see also Siegel, supra, at 330 (“By clear and

repeated statements, the [Air Courier] Court confirmed that

the very heart of the test was whether Congress intended the

[statute in question] to benefit [the would-be plaintiff] ....”).

But then, in National Credit Union, the Court seemed to revert

back to a Clarke-like view that courts “should not inquire

whether there has been a congressional intent to benefit the

would-be plaintiff.” 522 U.S. at 489. Dissenting in National

Credit Union, Justice O'Connor identified the chief failing of

an excessively lax zone-of-interests test By “eschewing any

assessment of whether [a given statutory] provision was

intended to protect [a particular plaintiff's] interest” and by

instead giving standing to anyone who “ha[s]” an interest

that is “affected” by the statute’s operation, courts would

cause the zone-of-interests test to collapse into Article III's

injury-in-fact requirement, “rendering the zone-of-interests

test ineffectual.” 522 U.S. at 505 (O'Connor, J., joined by

Stevens, Souter, and Breyer, JJ., dissenting).

The dust-up over the zone-of-interests test's proper ap-

plication in the APA context needn't detain the Court here,

as McDonald’s suit does not challenge agency action or

otherwise involve the APA. This Court has clarified that,

although initially a creature of the APA, the zone-of-

interests test is a “prudential standing requirement{] of

general application” that “applie[s] ... also in suits not

involving review of federal administrative action.” Bennett,

520 U.S. at 163. More to the point for present purposes, this

Court has “made clear” that the zone-of-interests test applies

more strictly (i.e. to exclude more would-be plaintiffs)

outside the APA context than within: “[T]he breadth of the

zone of interests varies according to the provision of law at

issue, so that what comes within the zone of interests of a

statute for purposes of obtaining judicial review of adminis-

trative action under the “generous review provisions” of

the APA may not do so for other purposes.” Id. (quoting

Clarke, 479 U.S. at 400 n.16 (quoting Data Processing, 397 US.

at 156)); see also William A. Fletcher, The Structure of Standing,

98 Yale LJ. 221, 237 n.84 (1988) (“[P]laintiffs in [pon-APA]

9

cases have to meet a higher threshold test in showing that

judicial protection of their interests is intended by the statute

in question”).

The lengthy discussion in Clarke's footnote 16 (reiterated

later in Bennett) provides a glimpse into the Court's thinking

about the sometimes-loose application of the zone-of-

interests test in the APA context and its comparatively strict

application outside the APA. Referring to then-

cases concerning implied private rights of action, the Clarke

Court observed that “[t}he difference made by the APA can

be readily seen by comparing the ‘zone of interest’ decisions

[involving the APA] with cases in which a private right of

action under a statute is asserted in conditions that make the

APA inapplicable.” Clarke, 479 US. at 400 n.16 (citing Cort v.

Ash, 422 U.S. 66 (1975), and Cannon v. University of Chicago,

441 US. 677 (1979)). In the implied-right-of-action cases, the

Court said, “the would-be plaintiffs [had] the threshold

burden of showing that they were ‘one of the class for whose

especial benefit the statute was enacted’” - which, the Court

continued, was “[c]learly ... more ... than a showing that

their interests were arguably within the zone protected or

regulated” by the statute under which they were suing. Id.

(quoting Cort, 422 U.S. at 78).

The Court should take the opportunity in this case to

make explicit what is perhaps only implicit in Clarke and

Bennett: That outside the APA - whose “generous review

provisions” have at times been invoked to justify a loose

zone-of-interests analysis - the test requires evidence of a

specific congressional intent to protect the would-be plaintiff. The

analogy drawn (if only obliquely) in Clarke between the non-

APA zone-of-interests test and the approach to implying

private rights of action is spot-on. Both are driven by

summarized, is plainly “rooted in separation-of-powers

concerns.” Steel Co. v. Citizens for a Better Environment, 523

10

US. 83, 125 n.20 (1998) (Stevens, J., dissenting). The Court

explored the connection at some length in Allen v. Wright,

observing that the “case or controversy” requirement - and

particularly the standing doctrine - “defines with respect to

the Judicial Branch the idea of separation of powers on

which the Federal Government is founded. **° US. 737,

750 (1984); Lujan v. Defenders of Wildlife, 504 5S. ~ 576

(1992) (standing is “a principle fundamental to the separate

and distinct constitutional role of the Third Branch”). More

particularly relevant here, the Court has emphasized that

prudential standing doctrine specifically - and, more spe-

cifically still, the zone-of-interests test - is “‘founded in

concern about the proper - and properly limited - role of the

courts in a democratic society.” Bennett, 520 U.S. at 162

(quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)).

So, too, this Court's implied-right-of-action decisions

have gradually - but decisively - embraced Justice Powell's

separation-of-powers-based view that “Congress ... should

determine when private parties are to be given causes of

action under legislation it adopts” and, accordingly, that

“[w]hen Congress chooses not to provide a private civil

remedy, federal courts should not assume the legislative role

of creating such a remedy and thereby enlarge their jurisdic-

tion.” Cannon, 441 US. at 730-31 (Powell, J., dissenting).

Thus, this Court in Alexander v. Sandoval, emphasized a

“particular understanding of the genesis of private causes of

action.” 532 US. 275, 286 (2001). Specifically, the Court

said, because “[I]ike substantive federal law itself, private

rights of action to enforce federal law must be created by

Congress,” “[t]he judicial task is to interpret the statute

Congress has passed to determine whether it displays an

intent to create not just a private right but also a private

remedy.” Id. To that end, this Court clarified, the question

whether or not Congress actually, affirmatively intended to

create a private remedy is “determinative.” Id.

11

Importantly for present purposes, in the implied-right-

of-action context, congressional intent is essential not only to

determining whether to permit private suits at all, but also to

determining who should be permitted sue. Specifically, this

Court's cases (the very cases alluded to in footnote 16 of

Clarke) have emphasized that a key consideration in recog-

nizing a private remedy is whether the statute in question

was enacted for the benefit of “a special class of which the

plaintiff is a member.” Cannon, 441 U.S. at 689. Indeed,

even in the heyday of implied private rights, the decisive

question was whether the statute at issue “was enacted for

the benefit of a special class” of beneficiaries; if so, a court

could recognize a remedy, but only “for members of that

class.” Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran,

456 U.S. 353, 374 (1982); see also, e.g., Cort, 422 US. at 78

(whether “the plaintiff [is] ‘one of the class for whose especial

benefit the statute was enacted’” (quoting Texas & Pac. Ry.

Co. v. Rigsby, 241 U.S. 33, 39 (1916))). “The question” under

these decisions, in sum, “is not simply who would benefit

from the Act, but whether intended to confer

federal rights upon those beneficiaries.” California v. Sierra

Club, 451 U.S. 287, 294 (1981).

This Court should now formalize the implied-right-of-

action analogy it suggested nearly 20 years ago in Clarke. It

should hold that, as applied outside the context of the APA,

the zone-of-interests test requires a would-be plaintiff (here,

McDonald) to show that in enacting the statute that forms

the basis of his suit (here, §1981) Congress clearly and

specifically intended to protect someone in his shoes.

III. By Any Measure, McDonald Is Not Within the Zone of

Interests Congress Intended To Protect in Section

1981.

However one measures the zone of interests Congress

intended to protect in §1981 - whether somewhat loosely, as

in the APA cases, or more strictly, in accordance with the

12

implied-right-of-action analogy sketched in Clarke - McDon-

ald lacks standing to sue. In relevant part, §1981, which was

enacted as part of the landmark Civil Rights Act of 1866,

provides that “[a]ll persons ... shall have the . »me right ... to

make and enforce contracts ... as is enjoyed by \. ..ite citizens

..:” 42 US.C. §1981(a) (emphasis added). Who, exactly, is

covered by those terms? Who has (or can get) the “right to

make and enforce contracts” that the statute protects? As

every first-year law student learns, there are really only two

ways that one can acquire contract rights: first, and most

obviously, on. can be an actual party (or formal assignee) to

the contract in question; second, at least under modern

doctrine, a non-party can acquire contract rights if he is what

the law calls an “intended third-party beneficiary.”

McDonald fits neither description. He is not himself a

party to any of the contracts at issue here, nor is he an

intended third-party beneficiary of those contracts. As a

result, he is for present purposes a stranger to the contracts

and plainly outside the zone of interests protected by §1981.

A. McDonald Lacks Standing as a Contract Party.

The courts of appeals that have addressed the issue

head-on (with the obvious exception of the Ninth Circuit)

have all held that only the contracting parties themselves

have standing to sue under §1981. In so holding, those

courts have pointed to §1981’s language - “make and

enforce contracts” - as the first and best indicator of Con-

gress’s intent with respect to the protected zone of interests.

Thus, facing a claim (like the one here) by a company’s sole

shareholder that Wal-Mart had terminated the company’s

contract for discriminatory reasons, ‘udge Boudin, writing

for the First Circuit, concluded that “[njothing in section

1981 provides a personal claim, so far as its language is

concerned, to one who is merely affiliated - as an owner or

employee - with a contracting party that is discriminated

against by the company that made the contract.” Danco, Inc.

v. Wal-Mart Stores, Inc., 178 F.3d 8, 14 (1st Cir. 1999). Rather,

13

Judge Boudin wrote, §1981’s “statutory language ... pre-

cludes” a §1981 claim by a sole shareholder “unless he also

ha[s] a contract” with the defendant. Id. The shareholder

“had no claim of any kind under section 1981 because he

had no contract.” Id.

The Seventh Circuit's decision in Kyles v. ].K. Guardians

Security Servs., Inc., 222 F.3d 289 (7th Cir. 2000), is to the

same effect. There, the court held that §1981’s language

“protects the right to enter into and preserve a contractual

relationship, period.” Id. at 303. “The terms of 1981 are

more narrow” than those of other civil-rights statutes in that

§1981 “protects the contractual relationship itself.” Id.

Accordingly, the court said, “[t]he class of persons who may

bring suit is ... limited to persons who actually wish to enter

into (or remain in) that relationship.” Id. Because the

plaintiffs before it - employment “testers” who were obli-

gated to reject any job offer made to them - had no intention

“to enter into a contract” with the defendant, the court

found that they had no §1981 standing. Id. at 302. See also

The Guides, Ltd. v. Yarmouth Group Property Mgmt., Inc., 295

F.3d 1065, 1072 (10th Cir. 2002) (only the “party seeking to

contract with the defendants” had §1981 standing).

That McDonald is not formally a party to the contracts at

issue here is clear enough. McDonald’s own complaint

repeatedly recognizes that the contracts, instead, are be-

tween Domino’s and JWM Investments, Inc., McDonald’s

coanpany. See Pet. App. 12 (contracts were “between JWM

and Domino's”); id. at 14 (same); id. (“contract with JWM”).

McDonald's sole connection to the contracts was “in his

capacity as President of JWM,” in which he admits he was

“acting for JWM.” Id. at 11. Accordingly, if, as the courts of

appeals seem to have assumed, a proper §1981 plaintiff must

himself have been a party to the contract that forms the basis

of his claim, McDonald lacks standing.

14

B. McDonald Lacks Standing as a Third-Party Benefi-

ciary.

The court of appeals’ decisions, conferring §1981 stand-

ing only on those who formally enter into contractual

relationships, make sense. An ordinary understanding of

the statutory phrase “make and enforce contracts” would

seem, at the very least, to focus on the actual parties to those

contracts. There remains, however, the possibility that one

who is not formally a party to a contract, but is nonetheless

an intended third-party beneficiary of that contract, might

have standing to sue under §1981. Although, apparently, no

appellate court has addressed that issue head-on, a few

scattered decisions seem to assume that third-party-

beneficiary status could be sufficient to confer §1981 stand-

ing. See Olzman v. Lake Hills Swim Club, Inc., 495 F.2d 1333,

1339 (2d Cir. 1974); Jones v. Local 520, Int’l Union of Operating

Engineers, 603 F.2d 664, 665 (7th Cir. 1979). Careful analysis

reveals that assumption to be unfounded.

As we will explain, third-party-beneficiary doctrine can-

not aid McDonald here, for two reasons. First a thorough

review of the history strongly indicates that third-party

rights were not within the contemplation of Congress when

it enacted §1981 in 1866 - and are thus not part of the zone of

interests protected by that statute. Second, and in any event,

McDonald is not a third-party beneficiary of the Domino’s-

JWM contracts in question.

1. Third-Party Beneficiaries Are Not Within the

Zone of Interests Congress Intended To Protect

in Section 1981.

On their face, §1981’s terms - at least as those terms are

presently understood - might suggest an intention to cover

third-party beneficiaries. Section 1981's core provision,

again, protects the right to “make and enforce contracts.”

Only contracting parties, of course, can “make” a contract.

But at least under modern law, an intended third-party

15

beneficiary can “enforce” contractual duties made by the

contracting parties specifically for his benefit. See Restate-

ment (Second) Contracts §304 (1981) (“A promise in a contract

creates a duty in the promisor to any intended beneficiary to

perform the promise, and the intended beneficiary may enforce

the duty.” (emphasis added)); 13 Williston on Contracts §37:1,

at 9 (R. Lord, ed., 4th ed. 2000) (“Under [third-party benefi-

ciary] doctrine, an individual who is not a party to a contract

can enforce the contract under certain circumstances.”). The

same, seemingly, goes for Congress’s 1991 elaboration on the

meaning of the phrase “make and enforce” to incluce, for

instance, the “ performance, modification, and termination of

contracts.” 42 U.S.C. §1981(b). While only contracting

parties may “modif[y]” or “terminat[e]” an existing contract,

cf. Restatement §311(2), an intended third-party beneficiary

does, in certain circumstances, have a right to demand

contract “performance,” see id. §302(1).

The inclusion of intended third-party beneficiaries

within §1981’s zone of interests, however, is not so straight-

forward. As noted above, whatever its precise contours, the

zone-of-interests test is fundamentally a function of “con-

gressional intent.” Clarke, 479 U.S. at 394. The question,

therefore, is not whether §1981 can plausibly be read today -

even if anachronistically - to cover third-party beneficiaries;

the question, instead, is whether the 39th Congress, which

enacted what is now §1981(a) as part of the Civil Rights Act

of 1866, itself affirmatively intended to protect third parties.

Section 1981's language, in and of itself, does not tell us

much about whether Congress intended to protect third-

party beneficiaries’ rights. Nor, as best we can tell, is there

any smoking gun in the Civil Rights Act's legislative history

that explains precisely what kinds of contract rights Con-

gress intended to cover.! In the absence of any compelling

1 While there are a number of passing references to the Act's “make and

enforce contracts” clause, see, e.g., Cong. Globe, 39th Cong., Ist Sess. 475,

16

evidence in those traditional sources, it makes sense to

consider in some detail the state of general contract law as it

existed circa 1866 to determine whether it can simply be

assumed that the 39th Congress intended to include non-

parties within the scope of the Act’s “make and enforce

contracts” provision. As we explain, it is not at all clear that

such an assumption is warranted.

Justice Scalia (joined by Justice Kennedy) has waded into

these historical waters before. In a concurring opinion in

Blessing v. Freestone, Justice Scalia observed that “[uJntil

relatively recent times, the third-party benefici was

generally regarded as a stranger to the contract, and could

not sue upon it ....” 520 U.S. 329, 349 (1997). More to the

point for present purposes, citing an amicus brief filed in

that case, Justice Scalia noted that “[t]his appears to have

been the law at the time §1983 was enacted” in 1871 - just

five years after the enactment of §1981 in 1866. Id. at 350.

The detailed discussion that follows tends to confirm Justice

Scalia’s admittedly tentative assessment.

“Under the traditional common-law rule, only parties in

privity of contract could sue on the contract”; third parties

were treated as strangers to the contract, without any

enforcement rights whatsoever. 13 Williston §37:1, at 5.

Obviously, things have changed; the third-party beneficiary

rule is a staple of modern American contract doctrine. The

476, 478, 598 (Jan. 29-Feb. 2, 1866), there are apparently only three

substantive discussions: one involving the clause’s application to mixed-

race marriage contracts, see id. at 505-06 (Jan. 30, 1866); another concerning

the clause’s application to Indians, see id. at 571-72 (Feb. 1, 1866); and

another considering whether the Act gave the federal courts the power to

fashion a federal common law of contracts or, instead, simply required

courts to enforce state contract law without regard to race, see id. at 1781-

82 (Apr. 5, 1866).

2 The same, interestingly, cannot be said for other common-law coun-

tries. Until 1999, England steadfastly rejected the third-party beneficiary

rule. See Contracts (Rights of Third Parties) Act 1999 (Eng.). Canada

seems to have acknowledged third-party enforcement only in 1992. See

17

questions for present purposes, given the focus on congres-

sional intent, are how (and when) we got from A to B, and,

more particularly, whether, given the legal landscape as it

existed in 1866, the 39th Congress can be assumed to have

intended to weave third-party beneficiary principles into

§1981’s “make and enforce contracts” clause. Given the

history as we understand it, the answer to the latter ques-

tion, in all probability, is no.

There are several useful accounts of the history of the

third-party-beneficiary rule. See, e.g., Anthony Jon Waters,

The Property in the Promise: A Study of the Third Party Benefici-

ary Rule, 98 Harv. L. Rev. 1109 (1985); M.H. Hoeflich & E.

Perelmuter, The Anatomy of a Leading Case: Lawrence v. Fox

in the Courts, the Casebooks, and the Commentaries, 21 U. Mich.

J. L. Ref. 721 (1988); Peter Karsten, The “Discovery” of Law by

English and American Jurists of the Seventeenth, Eighteenth, and

Nineteenth Centuries: Third-Party Beneficiary Contracts as a Test

Case, 9 Law & Hist. Rev. 327 (1991); Melvin Aron Eisenberg,

Third-Party Beneficiaries, 92 Colum. L. Rev. 1358 (1992).

While these accounts diverge at various poiuts along the

way, there are important areas of general agreement.

As an initial matter, there is the acknowledged course of

the rule’s evolution in England. During the seventeenth and

eighteenth centuries, courts clearly permitted at least some

third parties to sue on contracts made for their direct benefit.

See Dutton v. Poole, 83 Eng. Rep. 523 (K.B. 1677); Martyn v.

Hind, 98 Eng. Rep. 1174 (K.B. 1776). But by the mid-

nineteenth century attitudes had changed - so much so that

Chitty’s 1842 contracts treatise could report that although

third-party-beneficiary cases “seem to have been contradic-

London Drugs Ltd. v. Kuehne & Nagel Int'l Ltd. [1992] 3 SCR 299 (Can. Supr.

Ct.). And despite rumblings in Australia’s courts, that country has yet to

embrace third-party-beneficiary doctrine. See John Adams, Digital Age

Standard Form Contracts Under Australian Law, 13 Pac. Rim L. & Pol'y J.

503, 519-20 (2004).

ji)

18

tory in the past,” it was “now a rule of law” that “the con-

sideration for a promise must move from the plaintiff”

himself and that a third party, as such, had no enforceable

rights. Joseph Chitty, Jr., Contracts 53 (London 1842). As

Professor Karsten has summarized, save for two outliers,

every third-party-beneficiary plaintiff in England between

1790 and 1861 was “turned away on the grounds that no

consideration had moved from the plaintiff and that he or

she was not privy to the contract.” Karsten, supra, at 337 &

n.49 (collecting cases); see also Hybart v. Parker, 140 Eng. Rep.

1063, 1065 (C.P. 1858) (“[I]f it be a hardship” that a third

party cannot sue, “the remedy must be sought at the hands

of the legislature.”); Winterbottom v. Wright, 152 Eng. Rep.

402 (Ex. 1842) (requiring privity); Langridge v. Levy, 150 Eng.

Rep. 863 (Ex. 1837) (same).

This decided English trend away from third-party rights

during the nineteenth century culminated in Tweddle v.

Atkinson, 121 Eng. Rep. 762 (Q.B. 1861), which expressly

repudiated the earlier cases in favor of a hard-and-fast rule

forbidding suit by non-parties. As Judge Crompton ex-

plained there:

The modern cases have, in effect, overruled the old

decisions; they shew that the consideration must

move from the party entitled to sue upon the con-

tract. It would be a monstrous proposition to say

that a person was a party to the contract for the pur-

poses of suing upon it for his own advantage, and

not a party to it for the purpose of being sued.

Id. at 763. Tweddle was and is “viewed as the leading case in

England.” Karsten, supra, at 337; accord Guenter Treitel,

Some Comparative Notes on English and American Contract Law,

55 SMU L. Rev. 357, 358 (2002) (“[T]he refusal of the English

common law, in general, to recognise” third-party benefici-

ary rights is “associated with the case of Tweddle v. Atkin-

son.”). As will become clear, the doctrinal shift that Tweddle

represents manifested itself in this country, as well.

19

American third-party-beneficiary doctrine is typically

traced to the New York Court of Appeals’ plurality decision

in Lawrence v. Fox, 20 N.Y. 268 (1859). See, e.g., 13 Williston

§37:1, at 8 (calling Lawrence “the leading United States

decision”); Treitel, supra, at 358 (“The early development of

the American third party beneficiary doctrine is usually

associated with the New York case of Lawrence v. Fox.”);

Hoeflich & Perelmuter, supra, at 721, 727 (calling Lawrence

the “leading case” and the “landmark case”). The facts of

Lawrence are simply stated: One Holly, admitting that he

owed Lawrence $300, lent the money to Fox, who, in turn,

promised that he would repay it Lawrence the next day; he

did not, and Lawrence, a non-party to the Fox-Holly agree-

ment, sued on the contract. The New York court allowed the

suit, declaring that when “a promise [is] made to one for the

benefit of another, he for whose benefit it is made may bring

an action for its breach.” Lawrence, 20 N.Y. at 275.

Many legal historians are firmly of the view that Law-

rence “began the career of the so-called third-party benefici-

ary contract.” Lawrence M. Friedman, A History of American

Law 534 (2d ed. 1985). The decision, they say, “departed

significantly from nineteenth-century contract doctrine”

and, more specifically, “represented the first time an Ameri-

can court permitted a third-party beneficiary to recover in a

commercial context.” Hoeflich & Perelmuter, supra, at 726.

To these commentators, the New York court “defied the

prevailing rules of contractual liability” by holding that “a

third-party - someone who was not a party to the contract,

had no obligation under it, and had given nothing in ex-

change for the right being claimed - could, nevertheless,

enforce it.” Waters, supra, at 1111 (abstract); accord id. at 1116

(Lawrence announced “an idea ... plainly at odds with the

received wisdom of its time”); id. at 1140 (“great departure

from prior law”). In fact, some say, “the mainstream of

American contract law at the time of Lawrence v. Fox, and” -

significantly for present purposes - “for at least half a

century thereafter, was more nearly atomistic [than altruis-

20

tic], jealously guarding the autonomy of contracting parties

by insisting upon ‘privity of contract’ between plaintiff and

defendant.” Id. at 1112.

Plainly, if the view of Lawrence as legal bombshell is cor-

rect, then §1981 should not be read to protect third-party

rights. It is almost inconceivable that an idea born in 1859

could have become so woven into the fabric of American

law by 1866 that Congress could be presumed to have

embraced it sub silentio. But, in fairness, others are less

certain that Lawrence was such a bolt out of the blue. See

Eisenberg, supra, at 1362-64 (Lawrence “was not very remark-

able for its time”); Karsten, supra, at 333 (Lawrence “did not

‘begin the career’ of the third-party beneficiary rule”). And,

in fact, it seems clear enough from the historical record that

mid-nineteenth century law was not monolithically opposed

to third-party claims. Professor Karsten, for instance, has

noted several jurisdictions that, in the Civil War era (and

even before Lawrence), allowed third-party suits. See Kar-

sten, supra, at 340 n.67, 344. Antebellum courts in Illinois, for

instance, seem to have been uniform in allowing third-party

beneficiaries to sue. See Bristow v. Lane, 21 Ill. 194, 197-98

(1859). Ohio and Maine, too, apparently permitted third-

party-beneficiary suits in the years leading up to the Civil

War. See Crumbaugh v. Kugler, 3 Ohio St. 544 (1854); Bohanan

v. Pope, 42 Me. 93 (1856). In South Carolina, at least two

lower-court decisions in the 1840s permitted third parties to

sue and recover. See Thompson v. Gordon, 3 Strob. 196 (S.C.

Ct. App. 1848); Brown v. O’Brien, 1 Rich. 268 (S.C. Ct. App.

1845). And Alabama courts likewise permitted third-party

suits in clear terms - at least where the would-be plaintiffs

were creditor, as opposed to donee, beneficiaries. See

Shotwell v. Gilkey’s Administrators, 31 Ala. 724 (1858). Karsten

also lists California and Kentucky among the States allowing

third-party suits, although the decisions cited either referred

to the third-party beneficiary rule only obliquely, and then

only in dicta, see Barringer v. Warden, 12 Cal. 311 (1859); Lucas

v. Chamberlain, 47 Ky. 276 (1847), or seemed to limit the

21

rule’s reach to contracts involving close family members, see

Clarke v. McFarland’s Executors, 5 Dana 45 (Ky. Ct. App.

1837).

The trick, then, is in assessing the overall state of third-

party-beneficiary doctrine circa 1866 - specifically, with an

eye to determining whether the 39th Congress (having said

nothing one way or the other) can simply be assumed to

have intended to bring third-party rights within the ambit of

§1981's “make and enforce contracts” language. The histori-

cal record will not support that kind of inference. Even

allowing for the fact that some American jurisdictions were

permitting third-party suits during the mid-nineteenth

century, a number of others were not.

Indeed, in keeping with the trend in England - which, as

noted above, culminated in the 1861 decision in Tweddle v.

Atkinson - there was a substantial (and seemingly swelling)

body of mid-nineteenth-century American precedent deny-

ing third parties the right to sue. See Karsten, supra, at 344-

45 (“But if a few states had considered and rejected the new

trend in English doctrine regarding third-party beneficiaries

in the late 1840s and 1850s, other states ... were moving

simultaneously to adopt the new English reasoning.”).

Among the States refusing to recognize third-party claims -

e Massachusetts: Although a few early cases allowed

third-party suits, see, e.g., Felton v. Dickinson, 10 Mass.

287 (1813), by mid-century the courts had firmly re-

jected third-party-beneficiary doctrine in favor of a

strict privity rule, see Mellen v. Whipple, 67 Mass. 317

(1854); Dow v. Clark, 73 Mass. 198, 201 (1856).°

e New Hampshire: Nineteenth-century cases over-

whelmingly rejected third-party-beneficiary suits.

See, e.g., Butterfield v. Hartshorn, 7 N.H. 345 (1834);

3 Indeed, Massachusetts did not embrace the third-party-beneficiary rule

until 1979. See Choate, Hall & Stewart v. SCA Servs., Inc., 392 N.E.2d 1045,

1049-51 (Mass. 1979).

22

Warren v. Batchelder. 15 N.H. 129 (1844); Chamberlain

v. New Hampshire Fire Ins. Co., 55 N.H. 249 (1875);

Land v. Henry, 54 N.H. 57, 64 (1873).

Virginia: Virginia courts early on refused to allow

common-law contract actions by third parties, see

Ross v. Milne, 12 Leigh 204 (Va. 1841), and apparently

held to that rule throv;’ «ut the nineteenth century,

see Jones v. Thomas, 62 ‘’:.. 96 (1871); Stuart v. James

River & Kanawha Co., 65 Va. 294 (1874); Willard v.

Worsham, 76 Va. 392 (1882).

Vermont: Nineteenth-century decisions established

that suits could be maintained only by contracting

parties. See, e.g., Pangborn v. Saxton, 11 Vt. 79 (1839);

Hall v. Huntoon, 17 Vt. 244 (1845); Fugure v. Mutual

Soc’y of St. Joseph, 46 Vt. 362 (1874).

Pennsylvania: Early cases allowed common-law

contract suits by third-party beneficiaries, see Hind v.

Holdship, 2 Watts 104 (Pa. 1833), but gave way to a

mid-nineteenth-century rule decisively rejecting

third-party claims, see Blymire v. Boistle, 6 Watts 182

(1837); Finney v. Finney, 16 Pa. 380 (1851).

Michigan: It was settled in the mid-nineteenth cen-

tury that a third party could not sue even on a con-

tract made specifically for his benefit. See Brown v.

Hazen, 11 Mich. 219 (1863); Pipp v. Reynolds, 20 Mich.

88 (1870).

North Carolina: Although an 1852 case seemed to

leave the door to third-party rights cracked, see Car-

roway v. Cox, 44 N.C. 173 (1852), a decision eight

years later closed it, see Styron v. Bell, 53 N.C. 222

(1860).

Missouri: While decisions during the 1840s treated

the issue as unsettled, see Bank of Missouri v. Benoist,

10 Mo. 520 (1847), and were themselves somewhat

contradictory, compare Belt v. McLaughlin, 12 Mo. 433

(1849) (allowing third-party suit), with Jones v. Miller,

23

12 Mo. 408 (1849) (refusing), by 1858 Missouri courts

had adopted a strict privity requirement, see Manny

v. Frazier’s Administrator, 27 Mo. 419 (1858); Page v.

Becker, 31 Mo. 466 (1862).

So, if we're just counting mid-nineteenth-century noses,

the case law reveals something of a split, with some States

permitting third-party suits, but with a number of others

(including influential States like Massachusetts, New Hamp-

shire, Virginia, and Pennsylvania) refusing. At the very

least, it seems safe to say that the reported decisions were

not so supportive of third-party rights that the 39th Congress

could be assumed, on the basis of the case law alone, to have

incorporated into §1981’s “make and enforce contracts”

clause anything like modern third-party-beneficiary doc-

trine.

Additionally, there is more to the story than nose-

counting. The common law is not static, of course, but

dynamic, and in that respect there are two trends worth

noting - both of which undercut any assertion that Congress

through its silence necessarily intended to protect third-

party rights in §1981. First, even those with a more bullish

view of nineteenth-century third-party-beneficiary doctrine

admit that during the relevant period here - the years

leading up to and including the mid-1800s - there was a

marked drift in the law away from recognition of third-party-

beneficiary rights. As noted above, despite some early third-

party successes in the seventeenth and eighteenth centuries,

between 1790 and 1861 English courts overwhelmingly

rejected the claims of third-party plaintiffs who came before

them. See supra at 18. So, too, the decided trend in America

- perhaps expectedly, trailing England by a few years -

seems to have been against third-party rights. According to

Professor Karsten’s research, between 1801 and 1820, state-

side courts - led by those in Massachusetts and New York -

SS eS See Karsten, supra, at

340. But beginning in 1840, while some states (like New

24

York, he says, citing Lawrence) were “cl[inging] to the older

rule,” id. at 343, “others, including ultimately Massachusetts

itself, were moving simultaneously to adopt the new English

reasoning” refusing to recognize third-party rights, id. at

345. (Even in New York, Karsten reports, there were in 1860

already “strong undercurrents of modern doctrine tugging

at the old rule’s support pilings.” Karsten, supra, at 344.*)

As the list above shows, and as Professor Karsten’s sum-

mary confirms, several other States followed similar patterns

- moving during the mid-nineteenth century from a posture

of recognition (or at least agnosticism) to one of stubborn

refusal. See Karsten, supra, at 341-53.

Second, on the heels of this general retrenchment against

the third-party beneficiary rule - indeed, “almost immedi-

ately after Lawrence v. Fox was decided” in 1859 - “contract

law became dominated by the doctrinal reasoning of the

classical contract school, as exemplified both in the cases and

in the commentaries of figures like Langdell, Holmes, and

Williston.” Eisenberg, supra, at 1365. Classical contract

theory - premised on formal, axiomatic rules and limited

liability - was uniformly “hostile to third-party beneficiar-

ies,” and “doctrinal objections to suits by third-party benefi-

ciaries soon began to dominate the field.” Id. Thus, writing

in 1880, Dean Langdell concluded that “[a] binding promise

vests in the promisee, and in him alone, a right to compel

performance of the promise.” He found the rule “that a

person for whose benefit a promise was made, if not related

to the promisee, could not sue upon the promise ... [to be] so

maa” Chemeahar€. tanatth, A tenon atienen

“ Christopher C. Langdell, A Summary of the Law

f Commie 9 Oden 1880). So, too, then-practitioner Oliver

Wendell Holmes lectured in 1881 that

* See also Hoeflich & Perelmuter, supra, at 736 (noting that in the years

following its decision, Lawrence v. Fox “changed from a precedent to be

reckoned with in New York, to a disfavored case”).

25

The fact that a consideration was given yesterday by

A to B, and a promise received in return, cannot be

laid hold of by X, and transferred from A to himself. |

The only thing which can be transferred is the benefit

or burden of the promise, and how can they be sepa-

rated from the facts which gave rise to them? How,

in short, can a man sue or be sued on a promise in

which he had no part?

Oliver W. Holmes, The Common Law 265 (Mark Howe ed.,

1963). Under the influence of classical contract theory,

“[djuring the latter half of the nineteenth century, some

American states” that had begun to follow Lawrence's lead in

recognizing third-party rights “reversed course.” Eisenberg,

supra, at 1367 (citing Meech v. Ensign, 49 Conn. 191, 209

(1881), and Eichelberger v. Murdock, 10 Md. 373, 379 (1857)).5

In the final analysis, given the state - and vector - of the

case law and the post-bellum influence of classical contract

theory, it seems fair to summarize by saying that “[a]lthough

the seeds of the third-party beneficiary rule were sown in

the middle of the nineteenth century, its growth is a twenti-

eth-century phenomenon.” Waters, supra, at 1149 n.145

(citing Lawrence M. Friedman, Contract Law in America 11-12

(1965)). Indeed, even Professor Eisenberg, himself a believer

that the seeds might have been sown somewhat earlier, has

acknowledged that “[t]he modern law of third-party benefi-

ciaries did not arise until early in this century and did not

5 The federal courts, too, were feeling the effects of the retrenchment. In

Hendrick v. Lindsay, this Court noted offhandedly that “the right of a party

to maintain assumpsit on a promise not under seal, made by another for

his benefit, although much controverted, is now the prevailing rule in this

country.” 93 US. 143, 149 (1876). Only two years later, however, the

Court seemed to limit severely creditor-beneficiary suits to those brought

on equity-based theories. See National Bank v. Grand Lodge, 98 US. 123,

124-25 (1878). “The federal courts thereafter held to this rule consistently

throughout the nineteenth century.” Karsten, supra, at 354.

26

begin to mature until the early 1930s.” Eisenberg, supra, at

1360; see also Hoeflich & Perelmuter, supra, at 735 (it is only

“within the past several decades” that “the doctrine of

Lawrence v. Fox has won a complete triumph”). Against that

historical backdrop (and, again, without any apparent

legislative history to suggest a contrary conclusion), any

assumption that the members of the 39th Congress necessar-

ily intended to incorporate third-party beneficiary rules into

§1981's “make and enforce contracts” clause would be

dubious at best.*

2. McDonald Is Not a Third-Party Beneficiary of

the Domino’s-JWM Contracts.

McDonald would not have §1981 standing based on any

kind of third-party-beneficiary theory, in any event. Even

assuming that §1981’s “make and enforce contracts” provi-

sion could be understood to incorporate modern third-party

doctrine, McDonald cannot reasonably be viewed as an

intended third-party beneficiary of the contracts in question.

McDonald’s theory here, of course, is that because he has

suffered “personal injury,” he is entitled to sue on the

contracts. See supra at 5. But courts applying the modern

¢ The considerably advanced state of American third-party-beneficiary

law in 1991 should not affect this conclusion. When Congress enacted

Section 101 of the Civil Rights Act of 1991, it did so not with any thought

about third-party-beneficiary rights (one way or the other) but, rather, for

the purpose of overruling this Court's decision in Patterson v. McLean

Credit Union, 491 US. 164 (1989). Congress’s purpose, specifically, in

statutorily defining the term “make and enforce contracts” to include “the

making, performance, modification, and termination of contracts, and the

eryoyment of al] benefits, pri , terms, and conditions of the contrac-

tual relationship,” 42 U.S.C. §1981(b), was to ensure that §1981's basic

prohibition on discrimination in contracting applied to

claims. See Rivers v. Roadway Express, Inc. 511 US. 298, 304-06 & n6

(1994); H.R. Rep. No. 102-40(1), at 89-93 (Apr. 14, 1991) (“overturn,”

“overrule” Patterson); H.R. Rep. No. 102-40(II), at 36-37 (May 17, 1991)

(same). There is no discernible intent underlying the 1991

Act to bring third-party beneficiaries within §1981's “ zone of interests.”

27

third-party-beneficiary rule have uniformly rejected such a

freewheeling standard: As Professor Williston’s treatise

summarizes, “not everyone who may benefit from the

performance of a contract between two other persons, or

who may suffer from its nonperformance ... is permitted to

enforce the contract by court action.” 13 Williston §37:7, at

29 (quoting Martin v. Edwards, 548 P.2d 779, 784-85 (Kan.

1976)). The reason is straightforward: “Because the class of

third parties potentially benefited by the performance of any

particular contract” - or, again, injured by its breach - “is so

far ranging, a failure to limit the categories of protected

beneficiaries would result in virtually every contract being

enforceable by virtually anyone.” Id. at 28.

The contracting parties’ “intent is the principal touch-

stone for determining whether a third party beneficiary

contract exists.” Id. §37:8, at 62-63; see also Restatement

§302(1) (“intention of the parties”). Specifically, before a

non-party may sue on a contract, “’”he must, at least, show

that it was intended for his direct benefit,” in either all or

part of its contemplated performance.” 13 Williston §37:8,

at 65-66 (quoting Robins Dry Dock & Repair Co. v. Flint, 275

US. 303, 307 (1927)). The requisite intent to benefit a third-

party beneficiary, sufficient to give him the right to sue, can

be shown in one of two ways. First, “[iJn the typical case,

where the promisor has undertaken to render

directly to the beneficiary, the intent to benefit the third

party will be clearly manifested.” Id. at 70. That, of course,

is not the case here; Domino’s has not covenanted to per-

form directly to McDonald; rather, Domino’s promised “to

pay JWM.” Pet. App. 15.

Second, where (as here) no direct performance is con-

templated, the “one suing as a third party beneficiary has

the burden of showing that the provision was for his direct

benefit.” Unless one can sustain this burden, a purported

third party beneficiary will “be deemed merely incidentally

benefited and will not be permitted to recover on or enforce

28

the agreement.” 13 Williston §37:8, at 70 (quoting Willis v.

E.I. DuPont De Nemours & Co., 76 F. Supp 1010, 1014 (E.D.

Okla.), rev'd on other grounds, 171 F.2d 51 (10th Cir. 1948)).

McDonald cannot “sustain [his] burden” here. The contracts

at issue were not made for his “direct benefit.” Rather, they

were drawn for the benefit of Domino’s and JWM: Dom-

ino’s was to get four restaurant buildings (Pet. App. 11), and

JWM was to get paid (Pet. App. 15).

McDonald here is, at most, what the law calls an “inci-

dental” beneficiary - one of those “[p]ersons who are neither

the promisees of a contract nor third parties to whom

performance is to be rendered [who] sometimes derive a

benefit from a contract's performance.” 13 Williston §37:19,

at 123. But, again, the “mere fact that a person who is not a

party to a contract would be benefited does not make that

person an intended beneficiary” entitled to sue. Id. at 130.

And “[u]nless the third person is an intended beneficiary ...

no duty to him iscreated.” Restatement §302 cmt.(e).

McDonald can be expected to argue that his status as

JWM’s sole shareholder, in and of itself, makes him an

intended third-party beneficiary of the Domino’s-JWM

contracts. But the case law is directly to the contrary. See,

e.g., Lee v. Mitchell, 953 P.2d 414, 426 (Or. Ct. App. 1998)

(“The mere fact that plaintiffs own half of the stock of the

corporation does not mean that those who deal with the

corporation intend to benefit plaintiffs as individuals; [the

corporation] is a separate entity from its owners.”); Amesco

Exports, Inc. v. Associated Aircraft Mfg. & Sales, Inc., 977 F.

Supp. 1014, 1016 (C.D. Cal. 1997) (“[T]he court should not

even find that where the corporation only has one share-

holder, as here, that the shareholder is a third party benefici-

ary of any contract of which the corporation is a signatory

because that would defeat the purpose of creating the

corporation and using it as the signatory.”) (cited in 13

Williston §37:19, at 128 n.58), vacated on other grounds, 87 F.

Supp. 2d 1013 (C.D. Cal. 1997). In that respect, common-law

29

contract doctrine squares precisely with the decisions of the

First and Tenth Circuits holding that even a “sole share-

holder” of a corporate contracting party may not sue under

§1981 unless he, too, is a party to the contract. The Guides,

Ltd. v. Yarmouth Group Property Mgmt., Inc., 295 F.3d 1065,

1070 (10th Cir. 2002); Danco, Inc. v. Wal-Mart Stores, Inc., 178

F.3d 8, 10 (1st Cir. 1999).

Nor, of course, would employee status (there is no indi-

cation in the record that McDonald is, in fact, an employee of

JWM) of its own force make McDonald an intended third-

party beneficiary. See, e.g., Taylor v. Facility Constructors, Inc.,

360 F. Supp. 2d 887, 894 (N.D. Ill. 2005) (“[NJjothing about

the language or circumstances [of the contract] even sug-

gests any intention to create a benefit for ... employees.”);

Baidee v. Brighton Area Schs., 695 N.W.2d 521, 540 (Mich. Ct.

App. 2005) (“[C]ontractors, subcontractors, and their

employees are generally held not to be the third-party

beneficiaries of the contract between the general supervisory

contractor and the project owner.’”); Pelletier v. Sor-

doni/Skanska Constr. Co., 825 A.2d 72, 86 (Conn. 2003) (same,

as to employees); Howell v. Ketchikan Pulp Co., 943 P.2d 1205,

1207 (Alaska 1997) (same).

Because McDonald is neither a party to nor an intended

third-party beneficiary of the Domino’s-JWM contracts at

issue, he has no standing to sue under §1981.

IV. McDonald’s Proposed Construction of Section 1981

Would Dramatically Expand Liability and Trigger a

Flood of New Suits.

We close where we began, with the hypothetical action

brought against a state DOT by an employee of a company

hired to build a public road. See supra at 1-2. That is pre-

cisely where McDonald’s theory of this case leads - to §1981

lawsuits brought by individuals who are altogether removed

from the “contract[ing]” process that §1981 protects but

who, through various twists and turns, can show some

incidental injury from a contract breach.

30

But surely, it cannot be the law that anyone (employee or

otherwise) who is in any way affected by the termination of

a contractual relationship can sue under §1981. Were it so,

there would be no limit to defendants’ potential liability.

Indeed, it is that very threat of limitless liability, at least in

part, that drives modern third-party-beneficiary doctrine.

To repeat Professor Williston’s warning: “Because the class

of third parties potentially benefited by the performance of

any particular contract is so far ranging, a failure to limit the

categories of protected beneficiaries would result in virtually

every contract being enforceable by virtually anyone.” 13

Williston §37:7, at 28. Accordingly, it is just not enough for a

would-be plaintiff to show that he would have benefited

from a particular contract's performance, or that he has been

injured by its breach; rather, he must show that his benefit

was one specifically contemplated and intended by the

contracting parties.

Likewise, the same threat of limitless liability (or at least

litigation) is one of the driving forces behind the prudential

standing doctrine’s “zone of interests” requirement. Recog-

nizing that there is a very real “potential for disruption

inherent in allowing every party adversely affected” by a

purported statutory violation to go to court, Clarke, 479 US.

at 397, this Court has emphasized the need for some mean-

ingful restriction - over and above Article III's injury-in-fact

requirement - on plaintiffs who can sue under a particular

statutory provision.

McDonald’s position here - which would allow suit by

anyone “personal[ly] injurfed]” by an allegedly racially-

motivated breach of contract - has the potential to blow the

doors right off the hinges of §1981 liability.

CONCLUSION

For the foregoing reasons, the Court should reverse the

Ninth Circuit's judgment.

July 14, 2005

Respectfully submitted,

Troy King

Attorney General

Kevin C. Newsom

Solicitor General

STATE OF ALABAMA

Office of the Attorney General

11 South Union Street

Montgomery, Alabama 36130-0152

(334) 242-7300