UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT PURUSHOTHAMAN RAJARAM, No. 22-16870

Plaintiff-Appellant, D.C. No. 3:22-cv-02920-LB v. META PLATFORMS, INC., FKA OPINION Facebook, Inc.,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Laurel D. Beeler, Magistrate Judge, Presiding

Argued and Submitted October 4, 2023 University of Hawaii at Manoa

Filed June 27, 2024 Before: Marsha S. Berzon, Eric D. Miller, and Lawrence VanDyke, Circuit Judges.

Opinion by Judge Miller; Dissent by Judge VanDyke 2 RAJARAM V. META PLATFORMS, INC.

SUMMARY *

Employment Discrimination

Reversing the district court’s dismissal of an employment discrimination action, and remanding, the panel held that 42 U.S.C. § 1981 prohibits discrimination in hiring against United States citizens on the basis of their citizenship. Purushothaman Rajaram, a naturalized United States citizen, alleged that Meta Platforms, Inc., refused to hire him because it prefers to hire noncitizens holding H1B visas to whom it can pay lower wages. Section 1981(a) provides:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

Disagreeing with the Fifth Circuit, the panel held that, according to the statutory text, section 1981 prohibits employers from discriminating against United States * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. RAJARAM V. META PLATFORMS, INC. 3

citizens because an employer that does so gives one class of people—noncitizens, or perhaps some subset of noncitizens—a greater right to make contracts than “white citizens.” If some noncitizens have a greater right to make contracts than “white citizens,” then it is not true that “[a]ll persons” have the “same right” to make contracts as “white citizens.” Dissenting, Judge VanDyke, applying what he thought was the better reading of an admittedly ambiguous text, and informed by the statutory development of section 1981, concluded that the statute does not protect citizens from discrimination on the basis of citizenship.

COUNSEL Daniel L. Low (argued) and Daniel Kotchen, Kotchen & Low LLP, Washington, D.C., for Plaintiff- Appellant. Lauren R. Goldman (argued), Gabrielle Levin, and Emily Black, Gibson Dunn & Crutcher LLP, New York, New York; Kelley Pettus, Gibson Dunn & Crutcher LLP, Denver, Colorado; Michele L. Maryott and Daniel R. Adler, Gibson Dunn & Crutcher, Irvine, California; for Defendant- Appellee. 4 RAJARAM V. META PLATFORMS, INC.

OPINION MILLER, Circuit Judge:

This case presents the question whether 42 U.S.C. § 1981 prohibits discrimination in hiring against United States citizens on the basis of their citizenship. We conclude that it does. Purushothaman Rajaram is a naturalized United States citizen and an information technology professional with experience managing software development projects. On several occasions between 2020 and 2022, he unsuccessfully applied to work at Meta Platforms, Inc., which operates Facebook, Instagram, and WhatsApp, among other online services. He alleges that Meta refused