Bhandari v. First Nat. Bank of Commerce

Decision Date05 October 1987
Docket NumberNo. 85-3445,85-3445
Citation829 F.2d 1343
Parties45 Fair Empl.Prac.Cas. 126, 99 A.L.R.Fed. 817, 44 Empl. Prac. Dec. P 37,512, 56 USLW 2241 Jeetendra BHANDARI, Plaintiff-Appellant, v. FIRST NATIONAL BANK OF COMMERCE, Defendant-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Murov & Ward, Mark G. Murov, Rita K. Ward, New Orleans, La., for plaintiff-appellant.

James B. Irwin, Catherine Kirgis Simpson, Marta Alison Richards, Montgomery, Barnett, Brown, Read, Hammond & Mintz, New Orleans, La., for defendant-appellee.

John T. Nockleby, Senior Litigation Atty., Maldef, E. Richard Larson, Los Angeles, Cal., for Amicus-Mex-Am. Legal Defense.

Dando B. Cellini, Bennet S. Koren, Susan E. Santiago, McGlinchey, Stafford, Mintz, Cellini & Lang, New Orleans, La., for amici-Consumer Bankers/Louisiana Bankers, etc.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before CLARK, Chief Judge, GEE, RUBIN, * REAVLEY, POLITZ, RANDALL, JOHNSON, WILLIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, HILL, and JONES, Circuit Judges.

GEE, Circuit Judge:

The appellee bank denied appellant Jeetendra Bhandari credit partly because he was, although a lawful permanent resident of the United States, not a citizen. In the ensuing lawsuit, the district court held that 42 U.S.C. Sec. 1981 gave no remedy for discrimination against aliens by private persons, deciding, as well, other questions not pertinent here. It did so despite our contrary decision in Guerra v. Manchester Terminal Corp., 498 F.2d 641 (1974), because it believed that Guerra had been wrongly decided and was no longer good law. 1 A panel of our court reversed, 808 F.2d 1082; and we took the appeal en banc to resolve the issue--a vexed and difficult one of its very nature, rendered more urgent by recent developments in Immigration Law familiar to anyone likely to read these words.

The question is whether in this day and time we should link together inseparably the legal protections accorded all persons against race-prejudice by their fellows in our society with those accorded the foreign nationals among us against alienage discrimination. Reflection persuades us that they would be curious mates in harness: the impulses that might move Smith, a white United States citizen, say, to discriminate against Jones, a black United States citizen, are unlikely, we think, to bear much in common with those which might move him to discriminate against Kirov, a Ukranian citizen of the U.S.S.R. legally resident in this country--let alone against Lopez, an illegal Mexican immigrant. Yet Sec. 1981, which commences with the phrase "All persons within the jurisdiction of the United States," applies equally to Jones, Kirov and Lopez, if given its broad, literal meaning. It has been said that there is no greater injustice than to treat unequal things equally, 2 and we are not disposed to do so in this instance unless the Congress has clearly demanded it. This it has not done in the instance of Sec. 1981, a statute of all but Constitutional sweep and breadth; and, for the reasons that follow, we decline to yoke Sec. 1981's protections against alienage discrimination to those against discrimination on racial grounds.

The Statute and Its History

Section 1981 declares:

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, to be parties, give evidence, and to the full and equal benefits 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.

Since 1968, when the Supreme Court, in Jones v. Alfred Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189, commenced recalling the Civil War Rights Statutes into service after a century's desuetude, countless words and endless energy have been expended by courts, including the Supreme Court, in attempts to assign meaning and rational limits to these broad and majestic enactments. The extreme difficulty of this task stems in great part from the Court's initial rejection, in Jones, of what seems the natural interpretation of Sec. 1981: that it directs States and Territories to grant each and every group of humans, no matter how defined or classified, the same rights in their courts and under their laws as they grant white citizens--no more, no less. If this natural construction be rejected, another is not easily found, much as though a student had been told that any answer was acceptable as the sum of two plus two except four and directed to find another suitable one. 3 Four members of the Court have since expressed varying degrees of disagreement with this rejection, see Runyon v. McCrary, 427 U.S. 160, 186-214, 96 S.Ct. 2586, 2602-2615, 49 L.Ed.2d 415 (1976); but it of course forecloses the acceptance of any such construction by us. Whatever Sec. 1981 may mean, then, it is not what it seems to say.

The panel opinion in this appeal, as well as Jones and subsequent Supreme Court opinions, laboriously traced and retraced the genesis of the Civil War Statutes in the 1866 Civil Rights Act 4 and the 1870 Voting Rights Act; 5 and there is scant need to do so again today. Suffice it to say that Runyon v. McCrary, 427 U.S. 160, 170, 96 S.Ct. 2586, 2594, 49 L.Ed.2d 415 (1976), determined that Sec. 1981 derived in part from Sec. 1 of the 1866 Act. The concern in Runyon was racial discrimination in matters of private contract, and the Court's emphasis fell naturally and properly on that source for Sec. 1981 which treated of racial discrimination against citizens and others. Insofar as it extends protection against non-racial discrimination to aliens, however, Sec. 1981 of necessity derives from a different source--the 1866 Act having had nothing to say on the subject of alienage.

As the Supreme Court has noted, the 1866 Civil Rights Act--which concerned itself primarily with racial discrimination against citizens--was principally motivated by a Congressional purpose to extirpate the Black Codes, Southern laws imposing a wide range of civil disabilities upon the newly-freed blacks. General Building Contractors Ass'n. v. Pennsylvania, 458 U.S. 375, 386, 102 S.Ct. 3141, 3147, 73 L.Ed.2d 835 (1982). Section 16 of the 1870 Voting Rights Act, by contrast, from which Sec. 1981's protection for aliens is derived, had a different source--a legislative stream that sprang from the solicitude of its sponsor, Senator Stewart of Nevada, toward Chinese aliens subject to degrading treatment under the laws of California. 6

Section 16 had its genesis in a resolution proposed by Senator Stewart and unanimously approved by the Senate on December 6, 1869:

RESOLVED, That the Committee on the Judiciary be requested to inquire if any States are denying to any class of persons within their jurisdiction the equal protection of the law, in violation of treaty obligations with foreign nations and of section one of the fourteenth amendment to the Constitution; and if so, what legislation is necessary to enforce such treaty obligations and such amendment, and to report by bill or otherwise.

Cong. Globe, 41st Cong., 2d Sess. 3 (1869) (emphasis added).

About a month later, Senator Stewart introduced a bill, S.365, which became a foundation of the law which we construe. 7

In doing so, he described his view of the effect of S.365:

The original civil rights bill protected all persons born in the United States in the equal protection of the laws. This bill extends it to aliens, so that all persons who are in the United States shall have equal protection of our laws. It extends the operation of the civil rights bill which is well known in the Senate and to the country, to all persons within the jurisdiction of the United States. That is all there is in the bill.

Cong. Globe at 1536.

It is chiefly on the basis of part of this passage, the assertion that the bill "extends the operation" of the 1866 Act to aliens, that our panel in Guerra, 498 F.2d at 653, and the district court in Espinoza v. Hillwood Square Mutual Ass'n., 522 F.Supp. 559 (E.D.Va.1981), which followed Guerra 's reasoning, concluded that Sec. 16 was meant to forbid private alienage discrimination. This construction of his words, however, follows only on the assumption that Senator Stewart viewed the 1866 Act as reaching private discrimination--a dubious assumption indeed in view of his repeated reference to equal protection of the laws. As the passage quoted below makes perhaps too amply clear, his remarks are literally peppered with such references. Considering these and the actual words of S.365, it seems far more likely that Senator Stewart viewed the bill as directed at state action. The Revisers thought likewise in 1874, giving Sec. 1981 its present title "Equal Rights Under the Law"; and the Supreme Court remained of that view at least as late as the Civil Rights Cases, 109 U.S. 3, 16, 3 S.Ct. 18, 24, 27 L.Ed. 835 (1883) and probably much longer, see Hurd v. Hodge, 334 U.S. 24, 31, 68 S.Ct. 847, 851, 92 L.Ed. 1187 (1948) (Sec. 1982 "is directed [at] governmental action" and "does not invalidate private restrictive agreements").

But to return to the legislative history of Sec. 16, S.365 next surfaced when Senator Stewart offered a slightly modified version as part of Senator Edmund's S.810, aimed to enforce fifteenth amendment voting rights. His remarks in doing so evidence unmistakably that he, as author and original sponsor, saw the provisions as implementing the fourteenth amendment:

While [Chinese aliens] are here I say it is our duty to protect them. I have incorporated that provision [S.365] in this bill on the advice of the Judiciary Committee, to facilitate matters and so that we shall have the whole subject before us in one discussion. It is as solemn a duty as can be devolved upon this Congress to see that ...

To continue reading

Request your trial
23 cases
  • U.S. v. Anderson
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 28 Septiembre 1989
    ...U.S. ----, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989). 11 Nor has our en banc court hesitated to do so, e.g. Bhandari v. First National Bank of Commerce, 829 F.2d 1343 (5th Cir.1987), vacated, --- U.S. ----, 109 S.Ct. 3207, 106 L.Ed.2d 558 (1989), (overruling fifteen year old construction of 42......
  • Sagana v. Tenorio
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 7 Septiembre 2004
    ...403 U.S. at 377, 91 S.Ct. 1848. It is settled that § 1981 prohibits governmental discrimination on the basis of alienage. Bhandari, 829 F.2d at 1349 n. 13; Anderson, 156 F.3d at 173-75 (using the text and legislative history of the 1870 Voting Rights Act to show that Congress intended § 198......
  • Simeon v. T. Smith & Son, Inc.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 10 Agosto 1988
    ...Buick cars." Our duty is different when the reach of precedent is vertical. Bhandari v. First Nat. Bank of Commerce, 829 F.2d 1343, 1352 (5th Cir.1987) (en banc) (Higginbotham, J., specially concurring). I believe the principle which led the Court in Edmonds to refrain from tampering with t......
  • Rodriguez v. Procter & Gamble Co.
    • United States
    • U.S. District Court — Southern District of Florida
    • 10 Junio 2020
    ...some courts had expressed concerns with extending this protection to "unlawfully present" immigrants. See Bhandari v. First Nat. Bank of Commerce , 829 F.2d 1343, 1351 (5th Cir. 1987) (expressing skepticism that Section 1981 "protect[s] all aliens, legal and illegal , from employment discri......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT