Lytle v. Household Manufacturing Inc./Concurrence O'Connor

Justice O'CONNOR, with whom Justice SCALIA joins, concurring.

I join the Court's opinion but write separately to note what the Court acknowledges in the last sentence of a footnote, see ante, at 551-552, n. 3: that the question whether petitioner has stated a valid claim under § 1981 remains open. In the District Court, petitioner claimed that respondent had fired him because of his race and retaliated against him for filing a charge of discrimination with the Equal Employment Opportunity Commission. Ante, at 548. As Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), was decided after the Court of Appeals issued its decision, the applicability of § 1981 to these claims was not specifically addressed. This Court's usual practice is to decline to address questions raised for the first time here. See United States v. Mendenhall, 446 U.S. 544, 551-552, n. 5, 100 S.Ct. 1870, 1875-1876, n. 5, 64 L.Ed.2d 497 (1980); Youakim v. Miller, 425 U.S. 231, 234, 96 S.Ct. 1399, 1401-02, 47 L.Ed.2d 701 (1976). The Court adheres to this practice, noting that arguments based on Patterson neither were "presented to either court below" nor are to be found "in the record." Ante, at 552, n. 3. The Court correctly concludes that there is "therefore . . . nothing in the record to justify affirming the Fourth Circuit's judgment" at this juncture. Ibid. On remand, therefore, the parties will have ample opportunity to present arguments, and the lower courts will have the first opportunity to consider whether either of petitioner's charges relates to the formation or enforcement of a contract, the two types of claims actionable under § 1981, Patterson, 491 U.S., at 176-178, 109 S.Ct., at 2372-2373, or relates only to "postformation conduct unrelated to an employee's right to enforce [his] contract." Id., at 180, 109 S.Ct., at 2374.