dissenting.
I respectfully dissent. In my opinion this case is controlled by the Supreme Court’s decision in Patterson v. McLean Credit Union, — U.S. -, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989).
In Patterson, the Supreme Court considered the meaning and coverage of 42 U.S.C. § 1981. In doing so, the Supreme Court declared that “[wjhere an alleged act of discrimination does not [impair the making and enforcement of contracts], [section] 1981 provides no relief.” Id. at 2372. This construction of section 1981 is binding on the courts of appeals. In re Continental Inv. Corp., 586 F.2d 241, 248 (1st Cir.1978), cert. denied, 440 U.S. 981, 99 S.Ct. 1789, 60 L.Ed.2d 241 (1979); United States v. Herrera, 584 F.2d 1137, 1145 (2d Cir.1978); United States v. LeFaivre, 507 F.2d 1288, 1294 (4th Cir.1974), cert. denied, 420 U.S. 1004, 95 S.Ct. 1446, 43 L.Ed.2d 762 (1975).
Because the Patterson majority did not expressly limit its construction of the language of section 1981 to the factual circumstances before the Court, “it is the principle [that] controls and not the specific facts [on] which the principle was decided.” Walker v. Georgia, 417 F.2d 5, 8 (5th Cir.1969). Nevertheless, our court lamely declines to apply Patterson because “[discriminatory] discharge was not at issue or discussed [in Patterson], and nothing in [Patterson] requires us to overrule the numerous and long-settled cases in this circuit which hold that discriminatory discharge is actionable under [sjection 1981.” Ante at 635. I believe our court has mistakenly concluded that Patterson is not a controlling precedent in this case.
Although Patterson is factually distinguishable, the Supreme Court's decision is legally relevant because it is a decision in the identical area of the law. Levine v. Heffernan, 864 F.2d 457, 460 & n. 8 (7th Cir.1988), cert. denied, — U.S. -, 110 S.Ct. 204, 107 L.Ed.2d 157 (1989). When a court of appeals is faced with “a factually distinguishable but legally relevant Supreme Court decision, ... [the court] may not employ a different standard in analyzing the different facts [because to do so] would [ ] limit[ ] both the Supreme Court’s decision and its method of analysis to a particular set of facts.” Id. at 460.
Patterson’s and Hicks’s claims of racial discrimination in their employment were clearly triggered by different facts — racial harassment for Patterson and racial discriminatory discharge for Hicks. Despite these factual differences, the Supreme Court’s construction of section 1981 in Patterson controls the outcome of Hicks’s case because both Patterson and Hicks brought their claims of racial discrimination in the workplace under the identical statute. Our court is “obliged [] rigorously [to] apply the prevailing, majority precedent” in Patterson. Ferina v. United States, 340 F.2d 837, 839 (8th Cir.), cert. denied, 381 U.S. 902, 85 S.Ct. 1446, 14 L.Ed.2d 284 (1965); see also Rodriguez De Quijas v. Shear-*657son/American Express, — U.S. -, 109 S.Ct. 1917, 1922-23, 104 L.Ed.2d 526 (1989) (Stevens, J., dissenting) (court of appeals refusal to follow a controlling Supreme Court precedent is “an indefensible brand of judicial activism”).
Because section 1981 “prohibits discrimination only in the making and enforcement of contracts,” Patterson, 109 S.Ct. at 2372, Hicks’s claim must fail. Hicks’s claim of discriminatory discharge “involves [neither a refusal to make a contract with [him] or the impairment of [his] ability to enforce [his] established contract rights. Rather, the conduct which [Hicks] labels as actionable racial [discriminatory discharge] is postformation conduct by the employer relating to the terms and conditions of continuing employment_ This type of conduct ... is not actionable under [section] 1981....” Id. at 2374.
The decision in Patterson is controlling in this case and binding on our court. Thus, I would reverse the district court.