dissenting:
As I have previously asserted, the adage “Hard cases make bad law” ought to be taken as a warning and not as a mandate. In re Southwestern Bell Tel. Co., 542 F.2d 297, 298 (5th Cir.1976) (Hill, J., dissenting), rev’d, 430 U.S. 723, 97 S.Ct. 1439, 52 L.Ed.2d 1 (1977). This is a hard case. The court, today, makes bad law. Though tempted, I cannot join.
The court faces a “hard” case “whenever the judge of the court has the power to order that which he believes to be right and, yet, he does not have the authority to issue the order.” Id. This case qualifies as a “hard” case. The district court found that McGinnis “suffered many more racial indignities at the hands of the Company than any one citizen should be called upon to bear in a lifetime.” McGinnis v. Ingram Equip. Co., 685 F.Supp. 224, 228 (N.D.Ala.1988), vacated, 888 F.2d 109 (11th Cir.1989), vacated, 895 F.2d 1303 (11th Cir.1990). Although we yearn for McGinnis to be compensated for those indignities and though the federal courts have power to order compensation, I submit that we unfortunately may not have the authority to do so.1
The federal courts may not have the authority because, contrary to the majority’s view, the Supreme Court has restricted federal jurisdiction over section 1981 claims involving racial harassment. The Supreme Court in Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946), set forth when a case should be dismissed on the merits and when it should be dismissed for want of jurisdiction. According to the Court, a suit may be dismissed for want of jurisdiction “where the alleged claim under the Constitution or federal statutes clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous.’’ Id. at 682-683, 66 S.Ct. at 776 (emphasis added). In United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), the Supreme Court pointed to the following language from Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105-06, 53 S.Ct. 549, 550, 77 L.Ed. 1062 (1933)(emphasis added), setting out two categories of “insubstantiality” dismissals:
[Jurisdiction, as distinguished from merits, is wanting where the claim set forth in the pleading is plainly unsubstantial ... either [1] because [it is] obviously without merit, or [2] ‘because its unsoundness so clearly results from the previous decisions of [the Supreme] [CJourt as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy.’
The majority appears to fear this insub-stantiality doctrine as an obstacle to its reaching “the morally right result.” The majority’s fear is well justified; the Supreme Court’s ruling in Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), pushes this case into the second insubstantiality category set forth in Gibbs and Levering & Garrigues Co. In Bailey v. Patterson, 369 U.S. 31, 33, 82 S.Ct. 549, 550-51, 7 L.Ed.2d 512 (1962), for example, the Supreme Court noted that “we have settled beyond question that no State may require racial segregation of interstate or intrastate transportation facilities.” The Court then noted:
The question is no longer open; it is foreclosed as a litigable issue. Section 2281 does not require a three-judge panel when the claim that a statute is without merit is wholly insubstantial, legally speaking non-existent, [citations omitted] We hold that three judges are similarly not required when, as here, prior decisions make frivolous any claim that a state statute on its face is unconstitutional. [citations omitted]
Id. (emphasis added). Similarly, the Supreme Court in Patterson v. McLean Credit Union, 109 S.Ct. at 2373, found that “the *1499right to make contracts does not extend, as a matter of either logic or semantics, to conduct by the employer after the contract relation has been established, including breach of the terms of the contract or imposition of discriminatory working conditions,” and that the plaintiffs racial harassment claim was thus not actionable under section 1981. Further, the Court declared that a failure to promote is only actionable under section 1981 “where the promotion gives rise to the level of an opportunity for a new and distinct relation between the employee and the employer.” Id. at 2377. These issues “are no longer open.” Consistent with the Supreme Court’s mandate regarding insubstantiality dismissals, a claim falling within the Patterson language should thus be dismissed for want of jurisdiction. The federal courts lack the authority to issue relief for such claims.2 The district court should thus be required to consider whether McGinnis is entitled to relief in light of Patterson.3
In its attempt to reach “the morally right result,” the majority has not only made bad law with respect to the federal courts’ lack of jurisdiction over certain racial claims. Unfortunately for the bar, the majority has also made bad law with respect to another issue: Fed.R.Civ.P. 11. Because of the majority’s resolution of the jurisdiction versus scope of review issue, it had to consider whether Ingram had raised Patterson in a timely fashion. The majority feigns surprise at how late in the proceedings Ingram raised the argument that section 1981 does not apply to the conduct with which it is charged. The timing of Ingram’s raising of this issue, however, must be understood within the context of Fed.R.Civ.P. 11. This rule provides in part:
The signature of an attorney or party constitutes a certificate by the signer that the signer has read the. pleading, motion, or other paper; that to the best of the signer’s knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
Fed.R.Civ.P. 11 (emphasis added).
This Court has previously stated that Rule 11 is intended to “ ‘reduce frivolous claims, defenses or motions’ and to deter ‘costly meritless maneuvers,’ thus avoiding unnecessary delay and expense in litigation.” Donaldson v. Clark, 819 F.2d 1551, *15001556 (11th Cir.1987) (en banc) (citations omitted). Despite this statement and despite the numerous instances in which this Court has found sanctions to be appropriate,4 the majority now forces attorneys into a Hobbesian dilemma: either (1) refrain from making an argument because case law contains no basis and significant adverse precedent exists, thus forfeiting the argument should precedent change; or (2) make the argument, despite the lack of basis and significant adverse precedent, and risk Rule 11 sanctions for filing a spurious claim.
This Hobbesian dilemma can be observed by going back to the pleadings in the instant case. McGinnis filed his claim against Ingram in July, 1987, trial began in January, 1988, and Ingram filed its initial brief on appeal in January, 1989. It was only on June 15, 1989, that the Supreme Court decided Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), a decision that the majority admits “no one could have predicted.” 5 Ingram’s first opportunity to raise, in good faith, the issues that the Supreme Court decided in that case came four days later, at oral argument. Ingram did raise the issues at that time.
The majority is only able to cite, prior to the Supreme Court’s decision in Patterson, a single case from a single circuit stating that racial harassment claims are not cognizable under section 1981.6 Notably, the majority does not cite any Eleventh Circuit case or any case from any other circuit besides the Fourth. Further, the majority cites no cases prior to Patterson stating that racially discriminatory discharge is not actionable under section 1981. Even more significant is the adverse precedent that Ingram faced. Prior to Patterson, the type of conduct in the instant case would have been actionable under both section 1981 and Title VII.7 This Circuit had stated time and again that as parallel causes of action section 1981 and Title VII required the same proof to show liability.8 No lawyer would be so bold as to argue that the Court of Appeals was wrong on so many occasions. Yet, the majority still blithely states that prior to Patterson, “Ingram, for whatever reason, chose not to make” an argument that section 1981 was not applicable to the conduct in question in this case.9
Ingram refrained from making an argument because case law contained no basis and significant adverse precedent existed, and thus Ingram forfeited that argument when precedent abruptly changed. Had Ingram made the argument despite the lack of basis and the adverse precedent, *1501however, Ingram would have risked Rule 11 sanctions for filing a spurious defense. Such an argument certainly was not “warranted by existing law.” Considering the then significant adverse precedent and lack of basis for making such a contention, it is unlikely that this Court would have considered it to be a “good faith argument for the extension, modification, or reversal of existing law.” 10 The majority today forces future plaintiffs’ and defendants’ attorneys to file spurious claims or defenses in order to avoid losing them should precedent change. Yet, these attorneys who follow the majority’s direction may end up subject to Rule 11 sanctions. In order to determine 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 dilemma. Forcing attorneys to take such aetion is bad law.
I respectfully dissent.
. I use the words "may not” instead of "do not” because the district judge should, on remand, determine whether McGinnis meets the tests for section 1981 jurisdiction set forth in Patterson.
. This conclusion is also consistent with the treatment of the jurisdictional issue under another civil rights statute, 42 U.S.C.A. § 1983 (West 1981). In Rowlett v. Rose, - U.S. -, 110 S.Ct. 2430, 2443, 110 L.Ed.2d 332 (1990), the Supreme Court noted that ''[sjince this Court has construed the word ‘person’ in § 1983 to exclude States, neither a federal court nor a state court may entertain a § 1983 action ágainst such a defendant." A federal court thus does not have subject matter jurisdiction if a defendant does not fall within the Supreme Court’s definition of "person” in section 1983. Just as section 1983 gives rise to a civil cause of action and 28 U.S.C.A. § 1343(3) & (4) (West 1976) grant jurisdiction to the federal courts to entertain and decide such cases, section 1981 gives rise to a civil cause of action and 28 U.S.C. § 1343(4) grants jurisdiction to the federal courts to entertain and decide those cases. If section 1981 does not give a plaintiff a civil cause of action because the defendant's conduct is not covered by the language of the statute, then as under section 1983, the federal courts may not entertain such cases.
. Although the majority claims in section 11(B)(1) that the district court did not award damages on the claim of discriminatory conditions of employment and that the effect of Patterson on this claim is thus irrelevant, the district judge's paragraph by paragraph description of indignities evidences that he considered the discriminatory work conditions (and racial harassment) as findings supporting section 1981 liability. Additionally, it should be for the district judge to determine whether there was a failure to promote in violation of the language in Patterson.
The majority leaves open the issue of whether a discriminatory demotion and a discriminatory discharge fall within Patterson’s language. Because the section 1981 issue is jurisdictional, even if the majority were correct in characterizing these as the open issues, the district court should still determine whether under Patterson section 1981 can be used as a vehicle for relief for these claims.
. See, e.g., DeSisto College, Inc. v. Line, 888 F.2d 755 (11th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 2219, 109 L.Ed.2d 544 (1990); United States v. Milam, 855 F.2d 739 (11th Cir.1988); Halteras of Lauderdale, Inc. v. Gemini Lady, 853 F.2d 848 (11th Cir.1988); Jorgenson v. Volusia County, 846 F.2d 1350 (11th Cir.1988); Patterson v. Aiken, 841 F.2d 386 (11th Cir.1988); Collins v. Walden, 834 F.2d 961 (11th Cir.1987).
. See supra p. 1496.
. Patterson v. McLean Credit Union, 805 F.2d 1143 (4th Cir.1986), aff’d in part and vacated in part, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989).
. Title VII of the Civil Rights Act is codified at 42 U.S.C.A. §§ 2000e — 2000e-17 (West 1981). 42 U.S.C. § 2000e-2 states in pertinent part;
(a) It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees ... in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.
. See, e.g., Vance v. Southern Bell Tel. & Tel. Co., 863 F.2d 1503, 1509 (11th Cir.1989); Stallworth v. Shuler, 777 F.2d 1431, 1433 (11th Cir.1985); Pinkard v. Pullman-Standard, 678 F.2d 1211, 1224 (5th Cir. Unit B 1982), reh’g denied, 685 F.2d 1383 (5th Cir. Unit B 1982), cert. denied, 459 U.S. 1105, 103 S.Ct. 729, 74 L.Ed.2d 954 (1983); Scarlett v. Seaboard Coast Line R.R. Co., 676 F.2d 1043, 1053 (5th Cir. Unit B 1982); Baldwin v. Birmingham Bd. of Educ., 648 F.2d 950, 954-55 (5th Cir. Unit B March 1981).
. See supra p. 1496.
. See Fed.R.Civ.P. 11, advisory committee notes on 1983 amendment (one of the factors to be considered in imposing sanctions is whether the pleading "was based on a plausible view of the law”); Laborers Local 938 Joint Health & Welfare Trust Fund v. B.R. Starnes Co., 827 F.2d 1454 (11th Cir.1987). In Laborers Local 938, the issues raised in plaintiffs’ complaint had only been addressed and resolved in a single previous Eleventh Circuit case and were "fairly debatable.” 827 F.2d at 1458. In denying Rule 11 sanctions, the court intimated that had clear binding precedent existed, sanctions would have been appropriate. Id.
. Attorneys may also want to consult their malpractice insurers in case their astrologer or psychic’s vision is not too clear.