*2 FAY, Judge, TJOFLAT, Chief Before HATCHETT, JOHNSON, KRAVITCH, EDMONDSON, CLARK, ANDERSON, *, Circuit BIRCH, and DUBINA COX, **, Circuit Senior HILL Judges, and Judge. Judge:
COX, Circuit Inc., the Company, Equipment the dis- judgment defendant, appeals McGinnis,the Terrell favor of trict court affirm. We plaintiff. BACKGROUND
I. to our most relevant background procedural, is its case this disposition com- factual, history. A more than rather case in this facts of the description plete court’s memo- in the found may be opinion. See Ala., randum Birmingham, Johnston, A. Eric (N.D.Ala. F.Supp. Co., Equip. defendant-appellant. ** partici- Judge C. Hill James * Circuit Senior Judge, a member DUBINA, became Circuit pursuant to matter orally decision pated ar- had been after the court 46(c). after decision in this 28 U.S.C. participated gued but argument. See oral recording of listening ato 34-4(g). Rule Circuit Eleventh 1988), vacated, F.2d 109 Cir. Ingram appealed the judgment to this 1989), vacated, Cir. court. It four arguments in its Ingram Equipment Company, Inc. 1) initial brief: that McGinnis had not (“Ingram”) hired Terrell McGinnis proved intentional discrimination; 2) that *3 (“McGinnis”), man, a black in September the district court’s findings of fact should 1981, and discharged him in March 1986. be set aside because they were clearly erro- McGinnis subsequently brought this action neous; 3) that the district court erred in in the United States District Court for the limiting the use of deposition McGinnis’s at Northern District of Alabama, pursuant trial; 4) and that the district judge imper- Rights Civil Act 1866, of 42 U.S.C. missibly injected himself into proceed- 1981 and § Title VII of the Rights Civil Act ings. 1964, of 42 U.S.C. seq. et 2000e § McGin- panel A presented nis of this four court claims heard argu- oral each stat 1) ute: ment on June discriminatory There, conditions of employ for the ment, time, first Ingram including harassment; racial 2) argued fail the recent ure to promote based on race; McGinnis’s decision in Patterson v. 3) racially discriminatory McLean demotion; Credit 4) and 491 U.S. 109 racially discriminatory discharge. 105 (1989), decided June 1989, defeated at least some After trial, a bench the district court McGinnis’s claims under section entered judgment At for McGinnis. Id. the conclusion of oral argument, court based panel liability solely on sec- asked counsel tion to brief Id. 224 at n. 1. Employers with whether less than employees fifteen affect out- work- each come ing day during case. twenty-week relevant pe- riod are not subject to Title VII. 42 U.S.C. A two-judge majority concluded that Pat 2000e(b). The district court found that terson had jurisdiction limited federal over Ingram was such an employer. section 1981 claims and that the district The district court found that McGinnis judgment court’s should be vacated and the proved had that he was subjected to “dis- case remanded for in light reconsideration criminatory conditions of employment” and of Patterson. McGinnis Ingram that he was “eventually discharged be- Equip. Co., 888 Cir. cause of his race” id. and awarded 1989), vacated, Cir. $156,164.41. Id. at 228. The dissenting judge expressed the court divided the award into two compo- opinion that Patterson had not limited fed First, nents. the court $80,840.53 awarded jurisdiction eral over section claims, pay. back The court arrived at but rather had limited the scope of the figure by determining the amount pay section 1981 cause of action. The dissent McGinnis would have received from In- concluded that Ingram had waived the gram he not been demoted from the right to any argument make Pat based position of foreman because of his race. terson not preserving the ap issue on Second, at 227. the court decided that peal. Id. (Cox, J., dissenting). This McGinnis was entitled reinstatement, panel’s vacated the opinion and but that reinstatement would be inappropri- granted rehearing banc, en primarily for ate this ease. Consequently, the court the purpose of determining whether awarded an $75,323.88 additional in front panel had dealt appropriately ap with the pay in lieu of reinstatement. Id. at 227-28. plicability of Patterson to this case. In sum, In the district court awarded damages gram Equip. McGinnis, Co. v. demotion and discrimina- (11th Cir.1990). tory discharge. damages No were award- ed for McGinnis's discriminatory conditions en banc brief, 1) Ingram argues of employment claim. the district that Patterson restricts jurisdiction federal court did not find for McGinnis on his fail- over claims; 2) asserts that ure to claim. Patterson should be applied retroactively (as case; 3) under the course of for the district court contends that action
in this plaintiff’s claim is adopted suming federal standard 4) promote; solely immaterial and made for the failure to liable for purpose obtaining jurisdiction in its federal preserves frivolous) and is not is to insubstantial initial brief. jurisdiction find that exists and deal with the objection as a direct attack on the mer II. DISCUSSION case.” Williamson v. plaintiff’s its of the A. Federal Jurisdiction Tucker, cert. (5th Cir.) asserts that limits denied, *4 jurisdiction of courts over section federal (1981);1 see also Simanonok L.Ed.2d of points claims. It then out that one Simanonok, v. 787 F.2d 1519-20 in the answer its affirmative defenses (11th Cir.1986); Dime Coal 396. This is subject juris- matter court was lack of trial sum, Ingram pre such a case. In has not Therefore, is- Ingram argues, diction. Patterson issue by raising served lack of jurisdiction, hence the issue sue of subject jurisdiction in of matter application to this case was Patterson’s court. court or this preserved in the court. sub- trial ject jurisdiction never be matter can B. Should Patterson the Outcome Affect waived, preserved and thus the issue was this Case? of appeal on also. question The next we must consider disagree Ingram’s analysis. We with is whether Patterson should affect out jurisdictional is not a statute. Section 1981 noted, Ingram As first come of this case. is a substantive statute creates It Patterson arguments raised its at oral ar merely action. Patterson of limited cause pre Ingram did not gument. contend to an type gives conduct that rise of or at trial that conduct with which trial is, Pat claim. That section 1981 actionable charged it was was not actionable under scope terson limited the of a section Ingram’s Nor did initial brief section 1981. had no effect on claim. The decision Rather, argument. make this on authority to determine court’s federal argument, until oral of action a claimant states a cause whether intentionally not was factual—that did under section 1981. discriminate. in its the district jurisdiction is We note that answer test federal of court, boilerplate “fail- is included a of action one whether the cause not Rather, upon ure to a claim which relief can state
which the claimant can recover.
defense, pursuant
granted” affirmative
of action
test
“the cause
is whether
12(b)(6). Answer at 3.
It
to
is
merit as
to Fed.R.Civ.P.
alleged
patently
so
without
enough
argued that
this was
to
of
can be
justify ...
for want
the court’s dismissal
Combs,
We
v.
issue.
need
jurisdiction.” Dime Coal Co.
preserve
Cir.1986)
was sufficient be-
(quoting
not decide whether this
order,
Lavine,
super-
542-43,
pretrial
which
in the
Hagans
cause
U.S.
(see
16(e)),
1381-82,
(1974)
pleadings
Fed.R.Civ.P.
sedes
Hood,
its “failure to state a
Ingram abandoned
(quoting Bell
2.
(1946)).
Pretrial Order at
773, 776,
claim” defense.
racially discriminatory working conditions.
argued
theories
below.” Higginbotham v.
damages
The district court
did
award
Ford
Motor
768 n. 10
claim,
questions
on this
and no one
(5th Cir.1976).
however,
We may,
in the
Therefore,
result.
effect
exercise of our discretion consider issues
discriminatory working
claims of
condi-
preserved
in the trial court “when a
*5
under
this
tions
section 1981 is irrelevant to
pure question of law is
involved and
appeal.
refusal
to consider it would result
in a
v.
miscarriage
justice.”
Martinez Math-
of
to
Failure
Promote
ews,
1233,
(5th Cir.1976);
544 F.2d
1237
see
Inc.,
also
v.
Publishing,
Booth Hume
902
Ingram
under
argues that
section
925,
(11th Cir.1990).
928
Patterson,
1981,
light
in
of
McGinnis does
not have a cause
action for
to
failure
acknowledge
general
We
principle
time,
promote.
Ingram
At the same
ac
appellate
that an
apply
court should
knowledges that
district court
did
law in effect at
the time it renders its
See,
e.g.,
Appel
promote.
find
failure to
Co. v. Mobil Oil
decision.
Gulf Offshore
4;
Supplemental
Appellant’s
lant’s
Brief at
Corp.,
473,
16,
453 U.S.
n.
101
486
S.Ct.
En Banc Brief at 48.
reading
A
careful
2870,
16,
(1981);
n.
69
2879
L.Ed.2d 784
opinion
district
court’s memorandum
Richmond,
Bradley v. School Bd.
416
reveals that
court
indeed did
696, 711,
2006, 2016,
U.S.
40
not find
on his failure to
for McGinnis
(1974);
v.
Jones
Preuit &
claim,
promote
damages
no
were
Mauldin,
1480,
(11th
876 F.2d
1483
Cir.
awarded on that claim. The district
1989) (en banc).
recognize
we
Likewise
demoted,
did find
had been
that McGinnis
general
judicial
rule that
decisions nor
promote.
to
but a demotion is not
failure
mally
applied retroactively.
Chevron
are
then,
Obviously
question of the
effect
Huson,
v.
97, 106-07,
Oil Co.
U.S.
claim
Patterson
on a failure to
349, 355,
(1971).
S.Ct.
Ingram
stage
that under
and issues not
until a late
simply
to
proceedings,
section 1981 does not extend
claims for
of the
rather than
new
timidly
argu-
anytime
during
Ingram
pursues
2. We note that
not been raised
[sic]
proceeding
Appellant’s
Supple-
ment that under Patterson section 1981 does
En
..."
Banc
discriminatory discharge.
Nevertheless,
to
extend
v.
mental Brief at
we have a
single
supplemental brief on
contains a
practice
reading
liberally
briefs
to ascertain
conclusory
discharge
to the
issue.
reference
Milam,
appeal,
on
see
v.
855 F.2d
issues
U.S.
Similarly,
Appellant's Supplemental Brief at 4.
Cir.1988)
(11th
and we will assume that
brief, Ingram
en
makes two extreme-
in its
banc
Ingram
argue, beginning
supple-
its
did
with
cursory
discharge
ly
to the
issue.
references
panel,
mental brief to the
that
Appellant's En Banc Brief at
50. Additional-
longer
section 1981 no
reaches
supple-
ly, Ingram acknowledges in its en banc
discharge.
discharge
mental brief that
issue of
"[t]he
applied
before trial. After certiorari was
be
to
months
law that could
party normally
granted,
requested
A
counsel
already developed.
Court
argue
that
argue
issues not raised
brief and
an additional
right
its
waives
Haralson,
scope
FSLIC
went
the heart of the
of section
See
initial brief.
its
Cir.1987);
Runyon
373 n. 3
the decision in
813 F.2d
1981: Whether
Noone,
n. 1
Rogero
McCrary3
should be reconsidered. Patter-
Union,
Cir.1983).
son v. McLean
U.S.
Credit
(1988). This
McKnight
Here,
at 108.
we answer the
question that Judge Posner found unneces-
The judgment of the district court is
sary to confront.
AFFIRMED.7
recognize
6. We
the distinction between
ing
the na-
proceedings,
the
special
not because of the
by
ture of review
Supreme
the
Court and the
nature of the Court’s review of lower court
nature of review
appeals.
a court of
In
decisions.
Jett, however,
Patterson and
Supreme
the
Court
refused
arguments
to consider new
because
pending
7. All
motions in this case are rendered
those
never been
dur-
opinion.
moot
In
297, 298
taken
court,
L.Ed.2d
tempted, I
rev’d, 430 U.S.
“Hard
As I
HILL,
The court
re Southwestern
as
have
cases
today,
Senior
(1977).
warning
cannot
faces
previously
Cir.1976)(Hill,
make
makes
Circuit
723, 97 S.Ct.
This
join.
“hard” case
bad law”
and not
Bell Tel.
is
bad
asserted,
Judge,
a hard
law.
J.,
as a mandate.
ought to be
dissenting),
dissenting:
“whenever
case.
the
1439, 52
Though
adage
The
289 U.S.
L.Ed. 1062
from
dismissals:
Court
out two
its, wanting where
without
[Jurisdiction,
in the
...
Levering &
is
either
pointed
L.Ed.2d
pleading
categories
merit,
(1933)(emphasis
[1]
105-06,
to the
as
because [it
Garrigues Co.
distinguished
[2]
plainly unsubstantial
(1966), the
following
the
“insubstantiality”
‘because
added), setting
claim
is]
549, 550, 77
from mer-
obviously
language
set forth
Morrin,
un-
the
power results
clearly
the
so
has
the
soundness
judge of
court
from
Supreme]
right
decisions
previous
[the
to be
believes
he
that which
order
subject
authority to
as
have
and,
[CJourt
yet,
does
he
foreclose
no
room
leave
qualifies
This case
inference
for
order.”
issue
be
can
raised
sought to be
questions
found
The
case.
a “hard”
as
controversy.’
subject
racial
many more
“suffered
McGinnis
Company
hands
at the
indignities
fear this insub-
majority appears
upon
called
should be
citizen
than
one
to its
an obstacle
stantiality doctrine
v. In
McGinnis
a lifetime.”
to bear in
result.” The
morally right
reaching “the
224, 228
F.Supp.
Co., 685
Equip.
gram
justified;
Su-
is well
fear
majority’s
vacated,
(N.D.Ala.1988),
v. Mc-
ruling in
preme Court’s
(11th Cir.
vacated,
Cir.1989),
109 S.Ct.
Lean Credit
yearn for
Although we
(1989), pushes
105 L.Ed.2d
indignities and
those
compensated
insubstantiality
cate-
the second
case into
power to
have
courts
Levering
federal
though
&
forth
Gibbs
gory set
we un
I submit
Bailey v.
compensation,
order
Garrigues Co.
authority
550-51,
have
may
fortunately
369 U.S.
example,
Su-
(1962), for
do so.1
have settled
“we
noted that
preme
may not have
courts
federal
require
may
State
that no
beyond
majori-
because, contrary to
authority
intra-
interstate
segregation
racial
restricted
view,
Supreme Court
ty’s
The Court
facilities.”
transportation
state
*8
claims
over section
jurisdiction
federal
noted:
then
Supreme
The
harassment.
involving racial
it is
longer open;
is no
678, 66
Hood,
in Bell
Court
Section
issue.
litigable
aas
foreclosed
(1946),
forth
set
L.Ed.
panel
three-judge
require a
2281 does not
the
on
be dismissed
a case
when
is without
statute
that a
the claim
when
for
dismissed
it should be
when
merits and
insubstantial,
legally
wholly
is
merit
the
According to
jurisdiction.
of
want
non-existent,
omit-
speaking
[citations
of
for want
may
dismissed
Court,
be
a suit
are sim-
judges
three
that
We hold
ted]
claim
alleged
the
“where
jurisdiction
here,
when,
prior
as
ilarly
required
not
clearly
federal statutes
or
the Constitution
any claim that
make
decisions
frivolous
solely
made
and
be immaterial
appears to
unconstitu-
face is
on
statute
a state
obtaining jurisdiction
of
purpose
for the
omitted]
tional.
[citations
wholly insubstantial
is
a claim
such
where
Similarly, the
added).
Su-
682-683,
(emphasis
at
66 S.Ct.
Id.
Id.
and frivolous.’’
Cred-
v. McLean
in
preme
Mine
Court
added).
United
(emphasis
that
found
“the
Union, 109 S.Ct.
it
Gibbs, 383 U.S.
Workers
for
the tests
meets
McGinnis
whether
determine
"do not”
remand,
"may
of
not” instead
words
I use the
in Patterson.
forth
jurisdiction set
should,
judge
because
right to
extend,
make contracts does not
as
scope
sus
issue,
of review
it had to consider
a matter of
logic
semantics,
either
to whether Ingram had raised Patterson in a
by
conduct
the employer after the contract
timely fashion. The majority feigns sur-
established,
relation has been
including prise at how
late
the proceedings Ingram
breach of the terms of the contract or
raised the argument that section 1981 does
imposition of discriminatory working condi-
apply
to the conduct with which it is
tions,” and
plaintiffs
that
racial
charged. The timing
of
raising
harassment claim was thus not actionable
issue,
however,
must be understood
under section 1981.
Court
within the context of Fed.R.Civ.P. 11. This
declared that a failure
only
is
provides
rule
part:
actionable under section 1981 “where the
signature
of an attorney or party
promotion gives rise to the level of an
constitutes a
certificate
the signer
opportunity
for
new and distinct relation
signer
has read the. pleading,
the employee
between
and the employer.”
motion, or
paper;
other
that to the
best
at 2377. These issues
longer
“are no
of the signer’s
open.”
knowledge, information,
Consistent
Supreme
with the
and belief
Court’s mandate
formed after
regarding insubstantiality
reasonable in-
dismissals,
quiry
falling
grounded
claim
is well
within
the Pat-
fact and is
language
terson
should thus be
existing
dismissed
warranted
law or a good
for
jurisdiction.
want of
The federal
argument for
extension,
modifi-
faith
courts lack
authority
to issue
cation,
relief for
or reversal
existing law,
such claims.2 The district court should
that it is
interposed
for any improper
thus
required
to consider whether
purpose, such as to harass or to cause
entitled to
light
relief in
unnecessary delay or needless increase in
Patterson.3
litigation.
cost of
In its attempt to reach “the morally right
11 (emphasis added).
Fed.R.Civ.P.
result,”
majority
has not
made bad
This Court
previously
has
respect
law with
stated that
to the federal courts’ lack
“
jurisdiction
Rule
is intended to
over certain racial
‘reduce
claims.
frivolous
claims,
Unfortunately
bar,
defenses or
motions’
majority
and to
deter
‘costly
also made
respect
maneuvers,’
bad law with
meritless
another
thus avoiding
issue:
Fed.R.Civ.P.
Because
unnecessary
of the
delay
expense
litiga-
majority’s resolution
jurisdiction
of the
ver-
tion.”
Clark,
Donaldson v.
2. This conclusion is also
Although
consistent with the
majority
claims in section
jurisdictional
treatment of the
issue under an
11(B)(1)
district court did not award
statute,
rights
other civil
42 U.S.C.A. § damages
claim of
condi-
(West 1981).
Rose, - U.S. -,
In Rowlett v.
employment
tions of
and that the effect of Pat-
2430, 2443,
(1990),
1500 stating single circuit from a case banc) (citations single (en Cir.1987) (11th 1556 cogni- are not claims racial harassment and de- that this statement omitted). Despite Notably, the 1981.6 section under in zable which instances numerous spite the Circuit any Eleventh not cite majority does appropri- be to found sanctions Court circuit any other any case from into or attorneys case forces now ate,4 majority majority (1) the Fourth. refrain either besides dilemma: a Hobbesian stating prior to Patterson case no cases argument because cites an making from is not discriminatory discharge ad- significant racially and that no basis contains law more Even forfeiting the section 1981. exists, under thus actionable precedent verse (2) that precedent change; or the adverse precedent significant is argument Patterson, to the lack Prior despite faced. argument, Ingram make the would case instant precedent, in adverse of conduct significant type basis and section filing a both for 11 sanctions have been actionable Rule and risk stat- This Circuit VII.7 and Title claim. 1981 spurious parallel causes that as again and ed time observed be can dilemma Hobbesian This required VII and Title 1981 section action in- in pleadings going back law- liability.8 No proof to show the same his claim filed case. stant argue that toas so bold yer would in 1987, began trial July, in Ingram against many wrong on so was Appeals Court initial Ingram 1988, filed and January, blithely still Yet, majority occasions. It was January, 1989. in brief Patterson, “Ingram, prior that states Supreme that June to make” reason, chose whatever Credit v. McLean decided 1981 was argument an 2363, 105 109 Union, 491 U.S. in this in conduct to the applicable ma- (1989),a decision 132 L.Ed.2d case.9 predict- could have “no one jority admits 5 raise, opportunity argu- first making an ed.” from Ingram refrained Supreme faith, the issues basis good no in contained case law ment because days four existed, case came in that precedent Court decided adverse significant raise Ingram did later, argument. argument oral forfeited thus time. at that Had changed. issues abruptly precedent when despite made cite, prior only able to majority precedent, adverse and the of basis lack decision Court’s conditions, terms, privileges or Line, compensation, F.2d College, 888 See, Inc. v. e.g., DeSisto 4. individual’s — of such -, employment, because denied, of race, Cir.1989), U.S. (11th cert. 755 sex, origin; color, religion, or national (1990); United 544 L.Ed.2d 109 110 S.Ct. Cir.1988); (11th or Milam, F.2d 739 855 v. States employ- classify limit, segregate, his (2) Lady, Lauderdale, 853 v. Gemini Inc. Halteras of deprive or would any way which ... ees Cir.1988); Volusia Jorgenson v. (11th F.2d 848 employment deprive individual Cir.1988); tend (11th 1350 County, F.2d 846 adversely affect his opportunities or otherwise Cir.1988); v. (11th Collins Aiken, 386 F.2d v. indi- of such employee, because Cir.1987). as an status (11th Walden, F.2d sex, color, national race, religion, vidual's origin. supra p. 1496. See Tel. Tel. & See, Bell v. e.g., Southern Vance Credit McLean 6. Patterson Cir.1989); (11th Stallworth Cir.1986), part and vacated (4th aff’d Cir.1985); (11th Shuler, 777 F.2d L.Ed.2d part, 491 Pullman-Standard, Pinkard (1989). denied, 1982), reh’g Unit B Cir. denied, 1982), cert. B Cir. Unit Rights is codified Act Civil of the VII Title *10 74 L.Ed.2d 1981). (West 2000e —2000e-17 §§ 42 U.S.C.A. Co., Line R.R. Coast (1983); v. Seaboard Scarlett part; pertinent 2000e-2 states 42 U.S.C. 1982); (5th B Unit Cir. prac- employment (a) an unlawful It shall be Educ., Birmingham Bd. Baldwin employer— an tice for March B Cir. Unit 954-55 discharge to hire (1) or refuse to fail individual, discriminate or otherwise supra p. 1496. See his respect with any individual against however, Ingram would have risked Rule 11 sanctions for filing spurious defense.
Such an certainly was not “war-
ranted existing law.” Considering the significant
then precedent adverse and lack of basis for making such a contention, it is
unlikely that this Court would have con- sidered it to be a “good argument for faith extension, modification, or reversal of existing law.” The majority today forces plaintiffs’
future and defendants’ attorneys spurious file claims or defenses in order
to avoid losing them precedent
change. Yet, these attorneys who follow majority’s direction may up subject end
to Rule 11 sanctions. In order to deter-
mine whether it is worth risking sanctions,
attorneys may wish to consult their local
astrologer or psychic to find out whether
existing case law in the area will change.11
This may be the only way to resolve the majority’s Hobbesian Forcing dilemma. at-
torneys to take such aetion is bad law.
I respectfully dissent.
UNITED America, STATES
Plaintiff-Appellee, SMITH,
Andrew Hicks, Jackson Isaac Smith,
Samuel Sawyer, James
Defendants-Appellants.
No. 88-5187.
United States Court of Appeals,
Eleventh Circuit.
Dec. 10. See advisory Fed.R.Civ.P. committee batable.” 827 F.2d at denying 1458. In Rule 11 (one notes 1983 amendment sanctions, factors to the court intimated that had clear be considered in imposing sanctions is whether binding existed, precedent sanctions would have pleading "was plausible based on a view of appropriate. been law”); Laborers Local 938 Joint Health & Trust Fund B.R. Starnes Welfare 11. Attorneys may also want to their consult mal- Cir.1987). In Laborers Local practice insurers in astrologer case their psy- plaintiffs’ issues raised complaint chic’s vision is not too clear. been addressed single previ- resolved in a ous Eleventh Circuit "fairly case and were de-