Terrell McGINNIS, Plaintiff-Appellee, v. INGRAM EQUIPMENT COMPANY, INC., Defendant-Appellant ( 1989 )

COX, Circuit Judge,

dissenting:

I respectfully disagree with the majority’s conclusion that Patterson requires that this case be remanded to the district court.

The issues presented on this appeal by appellant’s initial brief did not include any issue relative to the scope of 42 U.S.C. § 1981. Essentially, appellant argued that the appellee did not carry his burden of proving intentional discrimination and therefore that the trial judge’s findings of fact were clearly erroneous under Fed.R. Civ.P. 52(a). Additionally, appellant argued that the trial judge erred in several respects in his handling of procedural and evidentiary issues. Appellant did not argue that section 1981 does not proscribe the kinds of discrimination at issue in this case.

At oral argument the court requested supplemental briefs addressing the impact of the Supreme Court’s decision in Patterson v. McLean Credit Union, — U.S. -, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), which was decided after the initial briefing in this case. Appellant argues in its supplemental brief that its answer in the trial court asserted lack of subject matter jurisdiction as an affirmative defense, and therefore that it preserved the issues dealt with in Patterson for appellate review. Appellee argues in its supplemental brief, among other things, that Patterson did not involve questions of jurisdiction, and that appellant has waived any issue relative to the scope of section 1981 by failure to preserve the issue in the trial court and failure to raise the issue on appeal.

I agree with the appellee. Patterson did not involve any jurisdictional issues, and it did not restrict federal jurisdiction over section 1981 claims. Section 1981 is not a jurisdictional statute; it makes certain conduct actionable, and 28 U.S.C. §§ 1331 and 1343 give the district courts jurisdiction to entertain such actions. Federal courts have jurisdiction to decide what conduct is proscribed by section 1981.

While any “defense” in this case based upon Patterson is in my view a Fed.R. Civ.P. 12(b)(6) defense of failure to state a claim, and not, as appellant contends, a Fed.R.Civ.P. 12(b)(1) defense of lack of subject matter jurisdiction, whether appellant preserved the issue in the trial court for review on appeal is beside the point. The point is that appellant raised no such issue on appeal. Any “defense” based upon Patterson, therefore, was effectively waived. See FSLIC v. Haralson, 813 F.2d 370 n. 3 (11th Cir.1987) (stating that “issues that clearly are not designated in the appellant’s brief normally are deemed abandoned.”); Rogero v. Noone, 704 F.2d 518, 520 n. 1 (11th Cir.1983).

The Supreme Court itself has acknowledged the necessity of preserving in the trial court and properly raising on appeal any contention that discrimination of certain kinds is not actionable under section 1981. In Patterson the Court refused to consider the argument that Patterson’s promotion claim was not actionable “because respondent has not argued at any stage that petitioner’s promotion claim is not cognizable under Section 1981.... ” Patterson, 109 S.Ct. at 2377. Several days after Patterson was decided, the Supreme Court again addressed the necessity of preserving any contention that particular conduct is not actionable under section 1981. In Jett v. Dallas Independent School Dist, — U.S. -, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989), the plaintiff was allowed to challenge his discharge as a coach (and/or his reassignment to teaching duties only) under section 1981 because the defendant had “at no stage in the proceedings ... raised the contention that the substantive scope of the ‘right ... to make ... contracts’ protected by Section 1981 does not reach the injury suffered by petitioner here.” Id. 109 S.Ct. at 2709.

We should decide the issues presented on this appeal — not the issues presented by the parties in Patterson.