Howard Sec. Serv. v. Johns Hopkins Hospital

• Decision Date: 08 June 1981
• Docket Number: Civ. A. No. J-79-1468.
• Citation: 516 F. Supp. 508
• Parties: HOWARD SECURITY SERVICES, INC., et al., Plaintiffs, v. The JOHNS HOPKINS HOSPITAL, Defendant.
• Court: U.S. District Court — District of Maryland

516 F. Supp. 508

HOWARD SECURITY SERVICES, INC., et al., Plaintiffs, v. The JOHNS HOPKINS HOSPITAL, Defendant.

Civ. A. No. J-79-1468.

United States District Court, D. Maryland.

June 8, 1981.

Norris C. Ramsey, Baltimore, Md., for plaintiffs.

Douglas D. Connah, Jr., Nell B. Strachan, Baltimore, Md., for defendant.

MEMORANDUM AND ORDER

SHIRLEY B. JONES, District Judge.

Plaintiffs brought this action complaining of the failure of The Johns Hopkins Hospital (the Hospital) to award a contract for the provision of security services to Howard Security Services, Inc. (Howard). Plaintiff Blanheim,¹ a black, is president and apparently sole stockholder of Howard, a close corporation. The Hospital is alleged to have failed to award the contract to Howard because Blanheim is black. The specific counts are:

Count I — Howard's claim under 42 U.S.C. § 1981

Count II — Howard's claim under E.O. 11246

Count IV² — Blanheim's claim under 42 U.S.C. § 1981

Count V — Blanheim's claim under Title VI, 42 U.S.C. § 2000d and E.O. 11246.

The Hospital moved under F.R.Civ.P. 12(b)(6) to dismiss Counts I, II and V for failure to state a cause of action, as set out more fully below, and under F.R.Civ.P. 12(b)(6) and 12(e) to dismiss the entire Complaint for failure to state a claim upon which relief can be granted, or alternatively for a more definite statement. Plaintiff has filed a memorandum in opposition to the motion, and supplemental memoranda have also been exchanged. Upon review of the Complaint and the parties' memoranda, this Court has determined that oral argument on the motion is not necessary. See Local Rule 6.

1. Motion to Dismiss Count I

Defendant asserts that Count I should be dismissed because a corporation may not sue under 42 U.S.C. § 1981, the ultimate source of which is the Civil Rights Act of 1866, enacted to enforce the Thirteenth Amendment. As defendant notes, it is established that a corporation has a cause of action under § 1983, e. g., Advocates for the Arts v. Thomson, 532 F.2d 792, 793 (1st Cir. 1976), because it is a "person" under the Fourteenth Amendment, id. There are some cases involving claims under both § 1981 and § 1983, in which corporate plaintiffs have, without discussion, apparently been permitted to proceed under § 1981. Virginia Chapter, Associated Gen. Contractors of America Inc. v. Kreps, 444 F.Supp. 1167, 1170-71 (W.D.Va.1978) (Rowland Electric Co. also a plaintiff); Philadelphia Council of Neighborhood Ass'ns v. Coleman, 437 F.Supp. 1341, 1368-69 (E.D.Pa.1977); Guardians Ass'n of New York City Police Dept. v. Civil Serv. Comm'n, 431 F.Supp. 526, 534 (S.D.N.Y.1977); Black Brothers Combined of the City of Richmond, Inc. v. City of Richmond, 386 F.Supp. 147 (E.D.Va. 1974). Plaintiffs in several of these cases were non-profit corporations, and it may have been assumed that the organizations could assert the claims of members. Park View Heights Corp. v. City of Black Jack, 467 F.2d 1208, 1214 (8th Cir. 1972) (corporate plaintiffs have standing to assert individual plaintiffs' statutory claims under §§ 1981, 1982). But cf., Richmond Black Police Officers Ass'n v. City of Richmond, 386 F.Supp. 151, 155 (E.D.Va.1974) (unincorporated association does not have standing based on members' claims).

This Court has found only two cases even approaching the question whether a corporation that is not an association or community group may assert a claim under § 1981, and neither is very helpful. The only case found that deals specifically with the question whether a corporation has a cause of action under § 1981 is Central Presbyterian Church v. Black Liberation Front, 303 F.Supp. 894 (E.D.Mo.1969). The district court held that a religious corporation, as well as its members, had an action under §§ 1981 and 1982. Id. at 901. The Court, however, characterized 42 U.S.C. §§ 1981-1985 as having been part of the Civil Rights Act of 1866, implementing the newly passed Thirteenth and Fourteenth Amendments.³ Id. at 898-99. In addition, the main question in the case was whether § 1981 protected whites, as well as blacks.

In a recent case a federal court had before it a claim under § 1981 by an ordinary business corporation. Nesglo, Inc. v. Chase Manhattan Bank, N.A., 506 F.Supp. 254 (D.P.R.1980). The court dismissed the case on the ground that there was no factual basis for a claim under § 1981. Id. at 258-59. The question whether a corporation could ever assert a claim under § 1981 was not before the district court. See id. at 256. In short, this Court's independent review confirms defendant's statement that no reported case has squarely addressed the issue whether a corporation is a "person" within the meaning of 42 U.S.C. § 1981.

Resolution of the question requires an examination of the legislative history of § 1981. Defendant argues that § 1981 implements the Thirteenth Amendment, which abolishes slavery, by proscribing the "badges and incidents" of slavery; logically, it can, therefore, apply only to natural persons.

What is now 42 U.S.C. § 1981 began as section 1 of the Civil Rights Act of 1866 and its purpose was implementation of the Thirteenth Amendment. The first section of the act declared that all persons born in the United States and not subject to a foreign power were citizens, without regard to race, color or previous condition of servitude; it then enumerated several rights that such citizens were to enjoy, along with white citizens. 14 Stat. 27. Section 2 of the act made deprivation of the rights secured a crime, id., and sections 3-10 contained detailed enforcement provisions, id. at 27-29.

On May 31, 1870 the Forty-first Congress enacted the Enforcement Act, designed primarily to implement the Fifteenth Amendment. 16 Stat. 140. The Senate Judiciary Committee had reported out in February S.B.No.365, designed to extend to aliens most of the protections⁴ afforded black citizens by the 1866 act.⁵ Cong.Globe, 41st Cong., 2d Sess. S1536 (1870). Section 2 of the bill contained a provision similar to that in the 1866 act, imposing criminal penalties for violation. The final section provided that the 1866 act was reenacted and that its enforcement sections were incorporated into the 1870 legislation.

A bill to enforce the Fifteenth Amendment, a committee substitute for S.B.3480, was reported out of the Senate Judiciary Committee on May 16, 1870. Senator Stewart moved to amend that bill by incorporating into it the provisions of S.B.365 and another bill not relevant to this discussion.⁶ Id. at S3480. The complete bill, as amended, was passed by the Senate on May 23, 1870, and eventually adopted by both houses.⁷ The provisions relevant here were enacted as sections 16, 17 and 18 of the Enforcement Bill of 1870. 16 Stat. 144. The circumstances of their adoption have been set out in detail here, because they explain why debate on three pertinent sections of the 1870 act was not extensive. The primary concern of the Senate, as well as of the House upon consideration of the Senate version, was the merits of the voting provisions.⁸

The few remarks made indicate that § 16 of the 1870 act was intended to apply to aliens, that the 1866 act, through § 18, was intended to continue to apply to citizens,⁹ and that the 1866 enforcement provisions would apply to both acts. More importantly, the Senators' remarks indicate that the Fourteenth Amendment was probably regarded as the source of congressional power to enact these provisions. In his brief introduction of the bill, Senator Stewart stated:

The original civil rights bill protected all persons born in the United States in the equal protection of our laws. It S.B.365 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, 41st Cong., 2d Sess. S1536 (1870) (remarks of Sen. Stewart). Later Stewart discussed the need to afford aliens equal protection of the laws. Responding to a criticism that the additional provision should not be added to the basic Fifteenth Amendment voting bill, he said:

Why is not this bill a good place in which to put that provision? Why should we not put in this bill a measure to enforce both the fourteenth and fifteenth amendments at once? It will take no longer time in discussion. It will not delay the bill an hour. Does anybody doubt the necessity or the propriety of such a law? I think not. I want the Government to do this much. The fourteenth amendment to the Constitution says that no State shall deny to any person the equal protection of the laws. Your treaty says that they shall have the equal protection of the laws. Justice and humanity and common decency require it. I hope that provision will not be left off this bill, for there is not time to take it up as a separate measure, discuss it, and pass it at this session.

Id. at S3658 (remarks of Sen. Stewart). Other remarks also indicate that sections 16, 17 and 18 were thought to be ones implementing the Fourteenth Amendment. Id. at S3690 (remarks of Sen. Stewart); S3701 (remarks of Sens. Casserly, Thurman); S3870-08 (remarks of Sen. Stewart); H3871 (remarks of Rep. Bingham). Opponents sharply criticized the incorporation into what should have been a voting rights bill of the provisions to enforce the Fourteenth Amendment. Id. at H3873 (remarks of Rep. Kerr), H3874 (remarks of Rep. Beck).

The duplication of § 16 of the 1870 act, and the 1866 act was eliminated in the 1874 revision of the United States Code, the additional property rights of citizens being separately set out in what later became § 1982. See Runyon v. McCrary, 427 U.S. 160, 168 n. 8, 96 S.Ct. 2586, 2593, 49 L.Ed.2d 415 (1976) (discussing the implications of the revisors' notation of only § 16 as a predecessor to the 1874 revised version).

Review of the pertinent legislative history of the two predecessor statutes of § 1981 indicates that this section has...