Full opinion text
GEE, Circuit Judge: Appellant Jeetendra Bhandari sued appellee First National Bank of Commerce after First National declined to issue him a credit card. First National refused Bhandari credit in part because he was not a citizen of the United States. The district court held that neither 42 U.S.C. § 1981 nor the Equal Credit Opportunity Act (“ECOA”) gave Bhandari a legal remedy for private alienage discrimination. The court determined, however, that First National had violated the ECOA by not telling Bhandari all its reasons for denying him credit. The court awarded damages, costs, and attorneys’ fees. Bhandari appeals, contending that the district court erred in various respects. We hold that the law of this Circuit recognizes actions for private alienage discrimination under § 1981, but that alienage discrimination is not actionable under the ECOA. Accordingly, we affirm in part, reverse in part, and remand. I Bhandari is a citizen of India and a lawful permanent resident of the United States. In October 1983, Bhandari was employed as an accountant. He applied to First Bankcard Center, an instrumentality of First National, for unsecured revolving consumer credit in the form of a Visa or Master Card credit card. The application included the question “Are you a U.S. citizen?” Bhandari answered “No.” The application was reviewed by a credit analyst. First National used a “judgmental” credit evaluation system. It established certain guidelines and allowed its credit analysts to use their judgment in applying those guidelines to the facts presented by each application. At the time Bhandari’s application was processed, one of First National’s credit policy “guidelines” was: “Applicant must be a U.S. citizen unless application is approved by an officer of the Bank.” The district court found that the analyst who reviewed Bhandari’s application denied it for two reasons: his alienage and his short time of employment in his then-current job. First National sent Bhandari a letter stating only that he was denied credit because he was not a U.S. citizen. Bhandari wrote First National to inquire about the Bank’s policies. A credit clerk called Bhandari in response to his letter. Bhandari asked the clerk if it was First National’s policy to deny credit cards to non-citizens. In an ill-considered attempt to fob off Bhandari with an authoritative answer, the clerk briefly put him on hold, then falsely stated that she had checked with her supervisor, who had confirmed that First National did not issue credit cards to non-citizens. Bhandari retained an attorney. In February 1984, his attorney discussed the denial of his application with John Richardson, support services manager of First Bankcard Center. Richardson apparently was disturbed to learn that one of his credit analysts had used an applicant’s non-citizenship as the sole reason for denial of credit. He felt that the “guideline” was only one factor, and that the factor had been given greater weight than it deserved. Richardson told Bhandari’s attorney that if Bhandari’s lack of U.S. citizenship was the only reason he had been denied a credit card, First National would correct the situation by issuing a card with an apology. When Bhandari’s attorney said his client would also have to recover attorneys’ fees, Richardson said he would have to discuss the matter with the Bank’s attorneys. Bhandari’s attorney then wrote to counsel for First National offering to settle the case. The letter stated that Bhandari “has obtained Visa and Master Card credit elsewhere and is not interested in opening a new account with First Bankcard Center. In general, his primary concern is that the policy be changed for future applicants, and that some publicity be given to this result.” The letter stated that Bhandari would settle if First National (1) changed its policies and practices of treating legal resident aliens differently from citizens, (2) changed its application forms to reflect this change in policy, (3) requested in writing immigration status information from all non-citizen applicants who later turned in the old application forms still in circulation, (4) “explicitly authorized” Bhandari and his attorney to represent to various United States organizations and newspapers related to immigration and Indian affairs that First National’s policy was changed due to their efforts, and (5) paid Bhandari $1500 in attorneys’ fees for his legal costs to that point. First National rejected this offer. Bhandari filed suit alleging that First National’s denial of credit was discrimination against him on the basis of his alien-age and his national origin, in violation of both the Equal Credit Opportunity Act, 15 U.S.C. §§ 1691-91f, and 42 U.S.C. § 1981. After discovery, he amended his complaint to add the allegation that First National had failed to inform him fully of the reasons for the adverse action on his credit application in violation of a provision of the ECOA, 15 U.S.C. § 1691(d). Bhandari requested actual and punitive damages and declaratory and injunctive relief for all his claims. He also sought attorneys’ fees under 15 U.S.C. § 1691e(d) and 42 U.S.C. § 1988. The parties submitted the case to the district court on stipulations, depositions, memoranda, and exhibits; no live testimony was offered. The district court held that Bhandari’s claims for injunctive and declaratory relief were moot because First National had voluntarily changed its policy and Bhandari had offered no evidence that First National was persisting in the challenged practices. The court found no factual basis for Bhandari’s claim that he was discriminated against on the basis of his national origin in violation of the ECOA, 15 U.S.C. § 1691(a). The court found that First National discriminated against Bhandari on the basis of his alienage. The court held, however, that neither the ECOA or § 1981 provide a cause of action to redress private alienage discrimination. The district court noted that Guerra v. Manchester Terminal Corp., 498 F.2d 641 (5th Cir.1974), was directly contrary to its conclusion that § 1981 does not reach private alienage discrimination, but held that Guerra was no longer good law. The district court determined that First National violated the notice provisions of the ECOA, 15 U.S.C. § 1691(d), which require the lender to furnish to the applicant a complete list of specific reasons for “adverse action.” The court noted that “In their zeal to avoid the appearance of any discriminatory acts or practices, those [First National’s] witnesses established additional reasons other than plaintiff’s citizenship for denial of credit.” Memorandum opinion (“Op.”) at 10. The court awarded Bhandari attorneys’ fees of $1500 under 15 U.S.C. § 1691e(d). Finally, the court “taxed” the total costs of the depositions used in lieu of live testimony equally to both parties, and ordered the defendant to pay all other costs. II In Guerra v. Manchester Terminal Corp., 498 F.2d 641 (5th Cir.1974), a panel of this court held that § 1981 prohibits private discrimination based on alienage. The plaintiff in that case was a Mexican national who was demoted under a policy of his employer and his union that gave certain preferred jobs to United States citizens. The court began by noting that § 1981 was derived in part from the § 1 of the Civil Rights Act of 1866, which was addressed only to racial discrimination. 498 F.2d at 653 (citing Jones v. Alfred Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968)). The court pointed out, however, that in § 16 of the Voting Rights Act of 1870 the language of § 1 of the 1866 Act was modified to give aliens the same list of rights (except real property rights now found in § 1982) as those enumerated in § 1 of the 1866 Act. The court noted that § 1981 had been interpreted to prohibit private racial discrimination, citing Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir.1970), cert. denied, 401 U.S. 948, 91 S.Ct. 935, 28 L.Ed.2d 321 (1971). From these premises, the court drew the logical conclusion that the language of § 16 of the 1870 Act, now found almost verbatim in § 1981, should reach private alienage discrimination as well. Only two published decisions have since carefully considered the problem posed and answered in Guerra. In Espinoza v. Hillwood Square Mutual Ass’n, 522 F.Supp. 559 (E.D.Va.1981), the court followed the syllogism of Guerra. Section 16 of the 1870 Act was intended to protect aliens from alienage discrimination to the same extent that § 1 of the 1866 Act protected citizens from racial discrimination. Section 1 prohibits private racial discrimination. Therefore, § 16 prohibits private alienage discrimination. 522 F.Supp. at 564. De Malherbe v. Int’l Union of Elevator Constructors, 438 F.Supp. 1121 (N.D.Cal.1977), reached the opposite conclusion. The court adopted a different argument. Section 1 of the 1866 Act may reach private discrimination. The authors of § 16 of the 1870 Act, however, did not realize that. The legislative history of § 16 shows beyond a doubt that the sponsors of the legislation meant only to prohibit alienage discrimination under color of state law. The fact that § 1 and § 16 were merged in § 1981 cannot magically infuse § 16 with a purpose that never entered the minds of those in Congress who sponsored it and voted for it. Therefore, § 1981 does not reach private alienage discrimination. 438 F.Supp. at 1140. Both arguments are entirely plausible. We must consider the history of § 1981 and the Supreme Court’s authoritative interpretations of it to determine which is correct. A Title 42 U.S.C. § 1981 is a simple statute that has been interpreted in extraordinarily complex ways. The statute reads: 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, to be parties, give evidence, and to the full and equal benefits 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. On its face, the statute simply gives to all persons the right to be treated equally under the law, or, more accurately, the right to be treated as well as “white citizens.” For better or worse, however, the statute has not received such a simple reading. Although long viewed as reaching state action only, the statute more recently has been interpreted to prohibit private racial discrimination in various forms of contracting, despite the fact that only one phrase and perhaps only one word in the entire statute {“make and enforce contracts”) can even arguably be read to reach beyond notions of legal capacity and equal treatment under law. Some courts have con-eluded that only this phrase in the entire statute reaches private conduct, while others have interpreted the statute more expansively to allow actions for private violations of other clauses. At least in the context of private acts, § 1981 has been read to prohibit only intentional discriminayon. Several Supreme Court cases have established that aliens are “persons” within the meaning of the statute, but these cases do not illuminate the basis and scope of § 1981’s protections. An astonishing number of eases opine in dicta that § 1981 prohibits alienage discrimination, usually in contexts in which no state action is present; actual holdings on the subject are rare, however. As we have noted, a few courts have held that the statute proMbits private alienage discrimination, while others have concluded that the statute prohibits only private discrimination on the basis of race, while prohibiting alien-age-based discrimination involving state action. One court has recently accepted and one rejected claims by white citizens of “reverse” alienage discrimination. In the context of state action, the interaction between the statute and the equal protection clause of the fourteenth amendment has not even been addressed. One reason for all this confusiop is that the Supreme Court has held that § 1981 was derived from both § 1 of the Civil Rights Act of 1866 and § 16 of the Voting Rights Act of 1870. See Runyon v. McCrary, 427 U.S. 160, 168 & n. 8, 96 S.Ct. 2586, 2593-94 & n. 8, 49 L.Ed.2d 415 (1976). The 1866 Act by its terms applies only to citizens, but § 16 of the 1870 Act applies to “all persons.” Congress enacted the Civil Rights Act of 1866 soon after the ratification of the thirteenth amendment. “The principal object of the legislation was to eradicate the Black Codes, laws enacted by Southern legislatures imposing a range of civil disabilities on freedmen.” General Building Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 386, 102 S.Ct. 3141, 3148, 73 L.Ed.2d 835 (1982). The 1866 Act declared most persons born in the United States to be citizens, and gave all citizens a wide range of enumerated rights to the extent enjoyed by “white citizens.” Act of April 9, 1866, ch. 31, § 1, 14 Stat. 27, 27. The Act made certain deprivations of those rights a federal crime, id. at § 2, gave to federal district courts original jurisdiction of civil and criminal actions related to the Act, id. at § 3, provided elaborate instructions on the rights and duties of federal officers in the enforcement of the Act, id. at §§ 4, 5, and 7, made interference with enforcement a crime, id. at § 6, gave the President special powers to enforce the Act, including the use of the military, id. at §§ 8 and 9, and gave a right of appeal to the Supreme Court in “causes under the provisions of this act ...,” id. at § 10. The Voting Rights Act of 1870 focused on establishing the voting rights of all citizens. Congress, however, tacked on three unrelated sections. Section 16 gave “all persons” in the United States the same list of rights given only to citizens in § 1 of the 1866 Act, except those rights related to the ownership and conveyance of property. Act of May 31, 1870, ch. 114, 16 Stat. 140, 144. It also forbade discriminatory taxes on immigrants. Id. Section 17 made violations of § 16 a crime, and § 18 re-enacted the 1866 Act and made §§ 16 and 17 enforceable according to the provisions of the earlier act. Id. The 1870 Act was intended to extend many of the protections of the 1866 Act to aliens. This is clear from the language, structure, and history of the statute. First, the change from “citizens” in § 1 of 1866 Act to “all persons” in § 16 of the 1870 Act shows that aliens are protected by the later statute. Also, § 16 mirrors § 1 but adds an entirely new sentence: it prohibits discriminatory state taxes against immigrants from foreign countries. Section 17 tracks the language of § 2 of the 1866 Act making deprivations of secured rights a crime, except that it adds the phrase “on account of such person being an alien” to the earlier phrase “by reason of his color or race” in defining the reach of liability and describing the protected class. Second, § 16 omits the phrase “to inherit, purchase, lease, sell, hold, and convey real and personal property” found in § 1 of the 1866 Act. Before and after the 1870 Act, the states imposed significant restrictions on the ownership or control of real property by aliens. See Takahashi v. Fish and Game Commission, 334 U.S. 410, 422, 68 S.Ct. 1138, 1144, 92 L.Ed. 1478 (1948) (citing cases sustaining restrictions); Truax v. Raich, 239 U.S. 33, 40, 36 S.Ct. 7, 10, 60 L.Ed. 131 (1915) (same). Thus, the omission of certain rights found in § 1 of the 1866 Act shows that § 16 was designed to protect aliens. It also shows that the 1870 Act was designed to prohibit certain alienage-based discriminations, and not simply to make aliens eligible to assert racial discrimination claims. Finally, the legislative history is clear. Sections 16,17, and 18 of the 1870 Act first appeared on January 10, 1870, as S.365, “a bill to secure to all persons the equal protection of the laws____” Cong.Globe, 41st Cong., 2d Sess. 323 (1870). Senator Stewart of Nevada, the bill’s sponsor, later described the relationship between S.365 and the 1866 Act: The original civil rights bill protected all persons born in the United States in the equal protection of the laws. This bill extends it to aliens____ It extends the operation of the civil rights bill ... to all persons within the jurisdiction of the United States. Cong.Globe at 1536. Again, the point of the bill was not merely to bring aliens into the class of persons who could assert racial discrimination claims; it was meant to protect aliens of any race from alienage discrimination. Senator Stewart stated that: I would be less than man if I did not insist ... that we will protect Chinese aliens or any other aliens whom we allow to come here, and give them a hearing in our courts; let them sue and be sued; let them be protected by all the laws and the same laws that other men are. Id. at 3658 (emphasis added). Thus at the end of 1870, federal law contained two similar provisions. One gave citizens certain rights, the other gave all persons a subset of those rights. The two statutes had distinct purposes and distinct histories. But things did not remain so simple. Codifiers of the federal statutes were appointed pursuant to the Act of June 27, 1866, ch. 140,14 Stat. 74, re-enacted by Act of May 4, 1870, ch. 72, 16 Stat. 96, “to revise, simplify, arrange, and consolidate all statutes of the United States____” § 1, 14 Stat. at 74. Congress commanded them to “bring together all statutes and parts of statutes which, from similarity of subject, ought to be brought together, omitting redundant or obsolete enactments, and making such alterations as may be necessary to reconcile the contradictions, supply the omissions, and amend the imperfections of the original text____” § 2, 14 Stat. at 75. The codifiers confronted the overlapping civil rights statutes. The 1870 Act gave “all persons” certain rights; the 1866 Act protected only citizens but gave a broader range of rights. Section 16 appeared to subsume all but the property-rights aspect of § 1, since the language was closely parallel and the class of persons protected was a superset of the class protected by § 1. The Revisers’ solution was to carve out the property rights given to citizens only, to put these in § 1978 of the Revised Statutes (now § 1982), and to put part of § 16 of the 1870 Act in § 1977 of the Revised Statutes (now § 1981). Thus, § 1982 is a fragment of § 1 of the 1866 Act, while § 1981 is an amalgam of part of § 1 and most of § 16 of the 1870 Act. B These statutes lay dormant for a hundred years, until the Supreme Court called up the fragment of § 1 of the 1866 Act found in § 1982. In Jones v. Alfred Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968), the Court held that § 1982 prohibited private discrimination on the basis of race in the sale of real estate. Recognizing the common origin of § 1982 and § 1981, the courts of appeals quickly extended the reasoning of Jones to prohibit private employment discrimination on the basis of race. See, e.g., Sanders v. Dobbs Houses, Inc., 431 F.2d at 1100. The Supreme Court gave its benediction to these cases in Johnson v. Railway Express Agency, 421 U.S. 454, 459 n. 6, 95 S.Ct. 1716, 1720 n. 6, 44 L.Ed.2d 295 (1975), but did not independently explore § 1981 and private discrimination until Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976). In Runyon, the Court held that a privately-owned school was prohibited by § 1981 from denying admission to prospective students on the basis of race. 427 U.S. at 167-68, 96 S.Ct. at 2593. Jones, of course, relied on § 1 of the 1866 Act from which § 1982 derived. Runyon extended the holding of Jones to § 1981 by concluding that § 1981 derives in part from § 1 of the 1866 Act, but Runyon relied entirely on the analysis of Jones for the underlying proposition that § 1 reaches private racial discrimination. We must examine Jones to see if its reasoning supports Guerra’s interpretation § 16 of the 1870 Act. The Supreme Court advances three arguments in Jones to establish that § 1 of the 1866 Act reaches private discrimination. First, the Court argues that: In plain and unambiguous terms, § 1982 grants to all citizens, without regard to race or color, “the same right” to purchase and lease property “as is enjoyed by white citizens.” As the Court of Appeals in this case evidently recognized, that right can be impaired as effectively by “those who place property on the market” as by the State itself. For, even if the State and its agents lend no support to those who wish to exclude persons from their communities on racial grounds, the fact remains that, whenever property “is placed on the market for whites only, whites have a right denied to Negroes.” 392 U.S. at 420-21, 88 S.Ct. at 2193 (footnotes omitted). This argument applies with equal force to § 16 of the 1870 Act which uses identical language. But, while constrained to respect the argument by its source, the force of it escapes us: no white citizen had in 1866 (or has today) a right to purchase a house from anybody. Indeed, in 1866 he did not even have a legally enforceable claim — a “right” — not to have his offer to purchase refused on any idiosyncratic ground whatsoever, including that the seller disliked having business dealings with whites. The first Jones argument does not persuade us that the 1870 Act bans private discrimination against aliens. The Court’s second argument is based on the structure of § 1 and § 2. Section 1 grants certain rights. Section 2 reads in part: [A]ny person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by this act ... shall be deemed guilty of a misdemeanor ... 14 Stat. at 27. The Supreme Court read the criminal provisions of § 2 as limited in an important way. Indeed, if § 1 had been intended to grant nothing more than an immunity from governmental interference, then much of § 2 would have made no sense at all. For that section, which provided fines and prison terms for certain individuals who deprived others of rights “secured or protected” by § 1, was carefully drafted to exempt private violations of § 1 from the criminal sanctions it imposed. There would, of course, have been no private violations to exempt if the only “right” granted by § 1 had been a right to be free of discrimination by public officials. Hence the structure of the 1866 Act, as well as its language, points to the conclusion urged by the petitioners in this case — that § 1 was meant to prohibit all racially motivated deprivations of the rights enumerated in the statute, although only those deprivations perpetrated “under color of law” were to be criminally punishable under § 2. 392 U.S. at 425-26, 88 S.Ct. at 2195-96 (emphasis in original) (footnotes omitted). Again, this argument applies equally to § 16 and § 17 of the 1870 Act; they have precisely the same relationship and their relevant language is almost identical. There are two problems with this argument. First, § 2 can just as easily be read as “carefully drafted to enforce all of the rights secured by § 1.” Jones, 392 U.S. at 454, 88 S.Ct. at 2211 (Harlen, J., dissenting). After all, § 1 also contains “color of law” language: [CJitizens, of every race and color, ... shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary not withstanding. 14 Stat. at 27 (emphasis added). The Jones Court simply asserts without argument that the “color of law” clause of § 1 modifies only the immediately preceding “punishments, pains, and penalties” clause, 392 U.S. at 422 n. 29, 88 S.Ct. at 2194 n. 29, but the clause can at least as easily be read as referring to the entire section. Second, even if § 2 was crafted narrowly to exclude from criminal sanctions private acts depriving persons of § 1 rights, that does not mean that § 1 was designed to reach private discrimination. Private interference with a right secured against the states is entirely possible____ Without the qualifying clause in § 17 of the 1870 Act, that section could be interpreted as imposing criminal sanctions on private parties who prevented or hindered aliens from exercising rights which were secured against state interference by § 16. De Malherbe, 438 F.Supp. at 1141. This distinction was meaningful to lawmakers of that era. For example, Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971), held that the plain language of part of § 2 of the Civil Rights Act of 1871, now 42 U.S.C. § 1985(3), provided a remedy for deprivations by private conspiracies of equal protection of the laws. The Court noted: A century of Fourteenth Amendment adjudication has ... made it understandably difficult to conceive of what might constitute a deprivation of the equal protection of the laws by private persons. Yet there is nothing inherent in the phrase that requires the action working the deprivation to come from the State. 403 U.S. at 97, 91 S.Ct. at 1796. Without the “color of law” phrase, § 2 of the 1866 Act and § 17 of the 1870 Act could have become a font of federal criminal law. Any assault and battery that injured someone sufficiently to prevent him from testifying in a legal proceeding would have been a federal crime; the attacker had “subjected” the victim to a “deprivation” of the right to “give evidence.” Thus, Mr. Wilson of Iowa, Chairman of the House Judiciary Committee, in response to a question about the “color of law” clause in § 2 of the 1866 Act, said that the Committee did not want to make “a general criminal code for the States.” Cong.Globe, 39th Cong. 1st Sess., 1120 (1866). The Supreme Court’s structural argument based on the “color of law” phrase in the criminal section of the statute is weak; without more, it is not enough to persuade us that § 16 of the 1870 Act was intended to reach private discrimination. The Supreme Court’s last and strongest argument in Jones rests on the legislative history of the 1866 Act. It is clear that the Congress was concerned with the devastating effects of private discrimination on newly emancipated blacks. The congressional debates are replete with references to private injustices against Negroes — references to white employers who refused to pay their Negro workers, white planters who agreed among themselves not to hire freed slaves without the permission of their former masters, white citizens who assaulted Negroes or who combined to drive them out of their communities. 392 U.S. at 427-28, 88 S.Ct. at 2197 (footnotes omitted). The Jones Court assembles an impressive array of evidence in the history of the 1866 Act that Congress meant to root out all the badges and incidents of slavery, including those resulting from purely private animosity. See 392 U.S. at 422-37, 88 S.Ct. at 2194-202. Of course, the customary glaring inconsistencies of legislative histories are present in this one, and Justice Harlan in dissent compiles a great deal of persuasive evidence directly to the contrary. See 392 U.S. at 454-73, 88 S.Ct. at 2211-20. Nevertheless, the history of the 1866 Act leaves us with the strong impression that many members of Congress, at least, wanted to eradicate racist practices beyond those the language of the statute appears to reach. If the history of the 1870 Act were similar, Guerra could be justified as a perfect analogue of Jones. But the history of the 1870 Act is completely different. It leaves no doubt that Congress was concerned with legal discriminations against aliens by the states alone. The legislative process culminating in § 16 began with a resolution proposed by Senator Stewart and unanimously approved by the Senate on December 6, 1869: Resolved, That the Committee on the Judiciary be requested to inquire if any States are denying to any class of persons within their jurisdiction the equal protection of the law, in violation of treaty obligations with foreign nations and of section one of the fourteenth amendment to the Constitution; and if so, what legislation is necessary to enforce such treaty obligations and such amendment, and to report by bill or otherwise. Cong.Globe, 41st Cong., 2d Sess. 3 (1869) (emphasis added). On January 10, 1870, Senator Stewart introduced S.365 as the fruition of the December 6 resolution. Cong.Globe at 323. He later described the relationship between the 1866 Act and S. 365: The original civil rights bill protected all persons born in the United States in the equal protection of the laws. This bill extends it to aliens, so that all persons who are in the United States shall have equal protection of our laws. It extends the operation of the civil rights bill, which is well known in the Senate and to the country, to all persons within the jurisdiction of the United States. That is all there is in the bill. Cong.Globe at 1536. On the basis of this passage, both Guerra, 498 F.2d at 653, and Espinoza v. Hillwood Square Mutual Ass’n, 522 F.Supp. at 564, have concluded that § 16 was intended to reach private discrimination because it “extends the operation” of the 1866 Act to alienage discrimination. This reasoning, however, overlooks the fact that Senator Stewart and his contemporaries did not view the 1866 Act as reaching private discrimination. The first sentence of the quoted passage — the 1866 Act protects citizens “in the equal protection of the laws” — shows this clearly. The codifiers of federal law thought the same thing in 1874, and gave § 1981 the title that it retains to the present day: “Equal rights under the law.” The Supreme Court thought the same thing a decade later. See Civil Rights Cases, 109 U.S. 3, 16, 3 S.Ct. 18, 24, 27 L.Ed. 835 (1883). And few thought to the contrary until 1968. Later, Senator Edmunds introduced S.810, a bill to enforce voting rights under the fifteenth amendment. Cong.Globe at 2808. On May 16, Senator Stewart offered a slightly modified version of S.365 as part of an amendment to S.810. Cong.Globe at 3480. Subsequent debate in the Senate focused on S.810’s voting rights provisions and the voting rights provisions of H.R. 1293, the counterpart of S.810 which had already passed the House. Senator Stewart, however, gave a soliloquy on the equal protection provisions on May 20. His remarks show that he, as author and original sponsor, viewed the provisions as an implementation of the fourteenth amendment: While [Chinese aliens] are here I say it is our duty to protect them. I have incorporated that provision [S.365] in this bill on the advice of the Judiciary Committee, to facilitate matters and so that we shall have the whole subject before us in one discussion. It is as solemn a duty as can be devolved upon this Congress to see that those people are protected, to see that they have the equal protection of the laws, notwithstanding that they are aliens. They, or any other aliens, who may come here are entitled to that protection. If the State courts do not give them the equal protection of the law, if public sentiment is so inhuman as to rob them of their ordinary civil rights, I say I would be less than man if I did not insist, and I do here insist that that provision shall go on this bill, and that the pledge of this nation shall be redeemed, that we will protect Chinese aliens or any other aliens whom we allow to come here, and give them a hearing in our courts; let them sue and be sued; let them be protected by all the laws and the same laws that other men are. That is all there is in that provision. Why is not this bill a good place in which to put that provision? Why should we not put in this bill a measure to enforce both the fourteenth and fifteenth amendments at once? ... The fourteenth amendment to the Constitution says that no State shall deny to any person the equal protection of the laws. Your treaty says that they shall have the equal protection of the laws. Justice and humanity and common decency require it. I hope that provision will not be left off this bill, for there is no time to take it up as a separate measure, discuss it, and pass it at this session. Cong.Globe at 3658. The Senate passed H.R.1293 (including the provisions of S.365) the following day. Cong.Globe at 3690. The rest of the legislative history of § 16 in both the House and the Senate is completely consistent with the soliloquy of its author and original sponsor Senator Stewart. See also Runyon, 427 U.S. at 195-205, 96 S.Ct. at 2606-2611 (White, J., dissenting) (reviewing the history of § 16 of the 1870 Act as part of his unsuccessful argument that § 1981 was derived entirely from the 1870 Act); De Malherbe, 438 F.Supp. at 1137-40. Whatever the intentions behind the 1866 Act, it is clear that the 1870 Act was passed as a statutory implementation of the fourteenth amendment, and that state action is therefore required for alienage discrimination to violate § 1981. Try as we may, we cannot avoid the conclusion that Guerra was wrongly decided. To the extent that § 1981 derives from § 16 of the 1870 Act, it should not be interpreted as prohibiting private discrimination. The two arguments in Jones that apply to the 1870 Act are unpersuasive, and the persuasive argument does not apply. Because of the curious dual derivation of § 1981, we embrace Justice White’s “logical impossibility” that the same language in the same statute can “mean one thing with respect to one class of ‘persons’ and another thing with respect to another class of ‘persons.’ ” Runyon, 427 U.S. at 206, 96 S.Ct. at 2611 (White, J., dissenting). C Guerra was decided over twelve years ago. Subsequent panels of our Court have dealt with Guerra inconsistently. Many have reiterated the holding of Guerra unequivocally in dicta. See Jett v. Dallas Indep. School Dist., 798 F.2d 748, 762 (5th Cir.1986) (“section 1981 provides a cause of action for public or private discrimination based on race or alienage”); Chaiffetz v. Robertson Research Holding, Ltd., 798 F.2d 731, 762 (5th Cir.1986) (“[b]oth the Supreme Court and the Fifth Circuit have held that 1981 applies to aliens,” citing Guerra and Graham v. Richardson); Garner v. Giarrusso, 571 F.2d 1330, 1340 (5th Cir.1978) (“[§ 1981] protects only against discrimination on the basis of race or alienage,” citing Guerra); Watkins v. United Steel Workers of America, Local No. 2369, 516 F.2d 41, 49 (5th Cir.1975) (“In Guerra, we held that § 1981 prohibits discrimination against aliens even though Title VII does not prohibit such discrimination____”). Other opinions incorporate bald statements that seem inconsistent with Guerra without mentioning it. See Olivares v. Martin, 555 F.2d 1192, 1196 (5th Cir.1977) (“race must be a factor in discrimination under § 1981”); McLellan v. Mississippi Power and Light Co., 526 F.2d 870, 876 n. 9 (5th Cir.1976) (“Sections 1981 and 1982 make specific reference to race and therefore have not been extended to nonracial discrimination____”), vacated in part on other grounds, 545 F.2d 919 (5th Cir.1977) (en banc). We can find only one case in this Circuit that has followed Guerra in its analysis, although its holding can be justified on other grounds. In Ramirez v. Sloss, 615 F.2d 163 (5th Cir.1980), plaintiffs were denied employment by a municipality because of alienage. They challenged the discriminatory policy on both equal protection and § 1981 grounds. The policy probably was unconstitutional under the “strict scrutiny” of Graham v. Richardson and its progeny. The court, however, analyzed the problem and held for the plaintiffs entirely on § 1981 grounds, citing Guerra with approval. The court made no mention of “state action” or of any other distinguishing ground. But Guerra has been questioned. One line of cases in this Circuit, noting the emphasis on racial discrimination by the Supreme Court in all its § 1981 and § 1982 decisions, has viewed Guerra skeptically on that basis. These cases have sought to blunt the full impact of Guerra by creatively “reinterpreting” it as turning in part on racial discrimination. In Campbell v. Gadsden County Dist. School Bd., 534 F.2d 650 (5th Cir.1976), for example, a panel of our Court upheld a claim by a black under § 1981. In a footnote, the court pointed out that cases upholding actions for private discrimination under § 1981 always involved racial discrimination. The court quoted the Supreme Court’s statement about § 1982, which it characterized as “the companion statute to section 1981,” that “ ‘the statute in this case deals only with racial discrimination and does not address itself to discrimination on grounds of religion or national origin.’ ” 534 F.2d at 654 n. 8 (quoting Jones, 392 U.S. at 413, 88 S.Ct. at 2189). The court stated: Our court has construed section 1981 broadly enough to embrace claims regarding employment discrimination on the basis of alienage. Guerra. It should be noted, however, that the discrimination against Mexicans involved there has strong racial overtones. 534 F.2d at 654 n. 8 (citation omitted). Campbell's reading of Guerra has proved to be a popular rebuttal whenever Guerra is cited by plaintiffs as authority for a broad reading of § 1981. In Bobo v. ITT, Continental Baking Co., 662 F.2d 340 (5th Cir.1981), cert. denied, 456 U.S. 933, 102 S.Ct. 1985, 72 L.Ed.2d 451 (1982), the plaintiff argued that § 1981 prohibits private sex discrimination. A panel of this court correctly rejected this contention. Reflecting on the strong racial emphasis of Runyon and McDonald v. Santa Fe Trail Co., 427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976) (whites have action under § 1981 for racial discrimination), the court stated: we have previously characterized Guerra as a broad construction of § 1981 in a case with “strong racial overtones.” Campbell v. Gadsden County Dist. School Bd. Whatever vitality it may retain, Guerra did not propose extending § 1981 to sex discrimination, and thus lends no support to Bobo’s contentions. 662 F.2d at 344 (citation omitted). See also Daigle v. Gulf State Utilities Co., Local No. 2286, 794 F.2d 974, 980 (5th Cir.1986) (rejecting a claim that § 1981 protects “scabs” from discrimination; Guerra was “a case with ‘strong racial overtones’ ”). Despite our Court’s reservations regarding Guerra, nothing in Supreme Court doctrine or our decisions en banc has clearly undermined its holding. There have been only three hints that the Supreme Court might reject Guerra’s analogy between the 1866 Act and the 1870 Act. First, the Supreme Court has explicitly noted that the question is still open. See Espinoza v. Farah Manufacturing Co., 414 U.S. 86, 96 n. 9, 94 S.Ct. 334, 340 n. 9, 38 L.Ed.2d 287 (1973). Second, the Court has seemed willing, at least for the sake of argument, to acknowledge that § 1981 may, to the extent that it is derived from the 1870 Act, have a different reach. See Runyon, 427 U.S. at 168 n. 8, 96 S.Ct. at 2593-94 n. 8. Third, the Court has indicated a willingness to view the 1870 Act as closely tied to the fourteenth amendment, which would remove it from the realm of private action. See General Building Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 389, 102 S.Ct. 3141, 3149, 73 L.Ed.2d 835 (1982) (discussing the derivation of § 1981: “The 1870 Act, which contained the language that now appears in § 1981, was enacted as a means of enforcing the recently ratified Fourteenth Amendment.”). These hints are no more than that; they do not seriously call Guerra into question. D The district court in the case before us noted that Guerra had not been overruled. Nevertheless, the court “decline[d] to follow” Guerra because Bobo and Campbell “place into question both the applicability of the [Civil Rights] Act to instances of private alienage discrimination and its applicability to discrimination other than racial discrimination.” We have reviewed the legislative history of the 1866 and 1870 Acts that form the basis of § 1981, and we have considered the Supreme Court’s authoritative exposition of the statute and its predecessors. Although it is perfectly legitimate to assume with Guerra that § 16 of the 1870 Act was intended to extend to aliens the very same kinds of protections as § 1 of the 1866 Act extended to racial groups, that assumption does not fit the language of the statute and its legislative history. Guerra relied too heavily on a perfect parallel between the 1866 Act and the 1870 Act. The Supreme Court’s prohibition of private racial discrimination is justifiable on the basis of the unique history of the 1866 Act. Nothing in the history of the 1870 Act, however, supports an extension of the dubious analysis of Jones and Runyon to the later statute; and we are convinced that Guerra was wrongly decided. But that does not end the inquiry. It is firmly established policy of our court that one panel does not overrule another “in the absence of intervening and overriding Supreme Court decisions.” White v. Estelle, 720 F.2d 415, 417 (5th Cir.1983). Nor can a district court do so. Intervening Supreme Court decisions have dealt with the meaning and scope of the 1866 Act, but have not clearly undermined Guerra and its interpretation of the 1870 Act. At most, the Supreme Court has intimated that the 1870 Act might have a narrower reach than the 1866 Act. Therefore, Guerra remains the law of this Circuit, binding us and the trial court. That court found that First National discriminated against Bhandari on the basis of his alienage. First National has not suggested any reason why its consumer credit activities should be subject to a different analysis under § 1981 than employment contracts or publicly offered education by private schools. Therefore, First National is liable to Bhandari under § 1981 for a violation of his civil rights. We remand the case to the district court to determine whether Bhandari is entitled to additional relief. Ill Bhandari contends that the district court made a number of errors in adjudging his claims under the liability provisions of the Equal Credit Opportunity Act. First, he suggests that the district court erred in holding that the ECOA does not prohibit discrimination based on citizenship or alien-age. Second, he argues that the district court erred in ruling that he was not discriminated against on the basis of his national origin. Third, he claims that the district court should have granted him limited injunctive relief. Finally, he contends that the actual damages awarded him by the district court for First National’s violation of the notice provisions of the ECOA were too small, and that the court should have awarded him punitive damages. A The ECOA prohibits discrimination against credit applicants “on the basis of race, color, religion, national origin, sex or marital status____” 15 U.S.C. § 1691(a)(1). The language is closely related to that of Title VII of the Equal Employment Opportunity Act (“EEOA”), 42 U.S.C. § 2000e-2, and was intended to be interpreted similarly. The “race, color, religion, national origin” language was added by amendments to the ECOA in 1976. Pub.L. No. 94-239, 90 Stat. 251 (1976). According to the Senate Report on the amendments: The prohibitions against discrimination on the basis of race, color, religion or national origin are unqualified____ In determining the existence of discrimination on these grounds ... courts or agencies are free to look at the effects of a creditor’s practices as well as the creditor’s motives or conduct in individual transactions. Thus judicial constructions of anti-discrimination legislation in the employment field, in cases such as Griggs v. Duke Power Company, 401 U.S. 424[, 91 S.Ct. 849, 28 L.Ed.2d 158] (1971), and Albemarle Paper Company v. Moody l, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280] (U.S. Supreme Court, June 25, 1975) are intended to serve as guides in the application of this Act, especially with respect to the allocations of burdens of proof. S.Rep. No. 589, 94th Cong., 2d Sess. 4-5, reprinted in 1976 U.S.Code Cong. & Ad. News 403, 406 (footnote omitted). Prior to the 1976 amendments, the Supreme Court held that almost identical language in the EEOA does not prohibit discrimination on the basis of alienage. See Espinoza v. Farah Manufacturing Co., 414 U.S. 86, 94 S.Ct. 334, 38 L.Ed.2d 287 (1973). The question is whether this “judicial construction of anti-discrimination legislation in the employment field” applies to the ECOA. The reasoning of Espinoza controls this case. Discrimination purely on the basis of alienage does not violate the ECOA. The rationale of Espinoza does not suggest any grounds for distinguishing the federal credit anti-discrimination law from federal employment anti-discrimination law when the relevant statutes use almost identical language. Furthermore, we must assume Congress was aware of this important Supreme Court decision handed down several years before the amendments adding the EEOA-like language to the ECOA; the legislative admonition to follow federal employment law makes our decision easy. B Bhandari does not seriously dispute our holding that alienage discrimination without more is not forbidden by the ECOA. Instead, he focuses his arguments on establishing that he was discriminated against on the basis of his national origin. National origin discrimination is, of course, illegal under the ECOA. 15 U.S.C. § 1691(a)(1). Bhandari could have shown national origin discrimination in either of two ways. First, he could have shown that First National actually discriminated against him because of his Indian origin. See Miller v. American Express Co., 688 F.2d 1235, 1239-40 (9th Cir.1982) (marital status discrimination). Or, he could have shown, by analogy to Griggs v. Duke Power and its progeny, that First National’s facially permissible alienage discrimination had the effect of discriminating against Indians. See Williams v. First Federal Savings & Loan Ass’n, 554 F.Supp. 447, 449 (N.D.N.Y.1981) (sex and marital status discrimination), aff'd mem., 697 F.2d 302 (2d Cir.1982); Cragin v. First Federal Savings & Loan Ass’n, 498 F.Supp. 379, 384 (D.Nev.1980) (sex and marital status discrimination); Cherry v. Amoco Oil Co., 490 F.Supp. 1026, 1030 (N.D.Ga.1980) (racial discrimination); S.Rep. No. 589, 94th Cong., 2d Sess. 4-5, reprinted in 1976 U.S.Code Cong. & Ad.News 403, 406 (quoted above). The district court held that Bhandari failed to make either showing. We agree. There is nothing in the record that suggests that Bhandari’s application was denied because he is of Indian origin. Furthermore, Bhandari never seriously attempted to make out a prima facie case that First National’s policy had an adverse impact on persons of Indian origin, or on persons of any particular origin for that matter. Instead, he continually returns to the argument that discrimination against aliens has the effect of discriminating on the basis of national origin. Of course, it is true that alienage discrimination has the effect of discriminating against persons of origins other than the United States; the vast majority of aliens are foreign-born. But we decline to embrace the reductio ad absurdum. This was the position of Justice Douglas in Espinoza, but he was in dissent. Bhandari’s argument contradicts the holding of Espinoza that national origin discrimination is distinct from alienage discrimination. So it is in one sense not surprising that in the alternative, and “[o]ut of an abundance of caution,” Bhandari “respectfully submits” that “Espinoza is wrong and certain language therein should be overruled.” That argument is not appropriately addressed to us; it should be directed to the Supreme Court, or perhaps Higher — and we do not consider it. C Bhandari originally sought to enjoin First National’s policy of denying credit to aliens. The district court ruled during pretrial maneuverings that the policy had been changed, dismissing Bhandari’s claims for declaratory and injunctive relief as moot. Bhandari now argues that the district court erred in dismissing all his claims for equitable relief. He points to one passage in the record where he argued that some of his claims for relief were not mooted by the change in policy. Specifically, he argues that the district court erred in not requiring First National to use credit analysts rather than credit clerks to handle complaints about credit denials: “[W]e believe the Court should tell the Bank that when someone writes back and complains, that certainly a credit analyst (and preferably the particular credit analyst who made the denial) should review that material in order to further the purpose that Congress intended in passing the Equal Opportunity Credit Act.” We see no merit in Bhandari’s argument, but we need not reach it. Bhandari has no standing to raise the issue. To meet the standing requirement of Article III of the Constitution, Bhandari must show at a minimum that he has suffered some actual or threatened injury resulting from the allegedly illegal conduct of the defendant and that the injury is likely to be redressed by a favorable decision. Valley Forge Christian College v. Americans United For Separation of Church and State, 454 U.S. 464, 472-76, 102 S.Ct. 752, 758-61, 70 L.Ed.2d 700 (1982). Bhandari has alleged an injury, but he would not benefit from the relief sought. He is no longer transacting business with First National. He has not alleged that he intends to reapply to First National for a credit card. Bhandari has no more than an ideological interest in the outcome he seeks; his claim for injuncfive and declaratory relief is the sort of by-stander’s suit forbidden by Article III. See Valley Forge, 454 U.S. at 472-73, 102 S.Ct. at 758-59. D The district court awarded Bhandari $1,001.35 in actual damages for First National’s violation of the notice provisions of the ECOA. The court found that his only out-of-pocket loss was $1.35 in postage. The court awarded Bhandari an additional $1,000 for the “private, momentary and personal affront” caused by the procedurally flawed denial of credit. Damage awards are findings of fact not subject to reversal unless clearly erroneous. NCH Corp. v. Broyles, 749 F.2d 247, 254 (5th Cir.1985). The damages awarded by the district court were not clearly erroneous. On remand, the district court must determine if First National’s violation of Bhandari’s civil rights under § 1981 caused any additional damages. Bhandari maintains that punitive damages are mandatory upon a finding of liability under the ECOA, and that the district court therefore erred in assessing none against First National. The language of the statute supports Bhandari’s argument: “Any creditor ... who fails to comply with any requirement imposed under this subchapter shall be liable to the aggrieved applicant for punitive damages in an amount not greater than $10,000____” 15 U.S.C. § 1691e(b) (emphasis added). The statute sets our various factors to be considered in establishing the amount of punitive damages, none of which requires that the violation be intentional or reckless. Id. The courts, however, have not been receptive to a simple reading of the statute. In Fischl v. General Motors Acceptance Corp., 708 F.2d 143 (5th Cir.1983), a panel of this court read the statute to mean that punitive damages may be awarded “if the creditor’s conduct is adjudged wanton, malicious or oppressive, or if it is deemed to have acted in reckless disregard of the applicable law.” 708 F.2d at 148. Fischl relied on Anderson v. United Finance Co., 666 F.2d 1274 (9th Cir.1982) and Shuman v. Standard Oil Co., 453 F.Supp. 1150 (N.D.Cal.1978) for this tight-fisted reading of § 1691e(b). A certain sound still echoes faintly in the hallways of the judicial mind —“statutes in derogation of the common law are to be strictly construed” — but Fischl’s reading of the statute is doubtless good policy, and in any event controlling. There was no showing of wanton or reckless behavior. After the childish misbehavior of the clerk who lied to Bhandari, First National took steps to deal with Bhandari’s complaints in a reasonable manner. First National offered Bhandari credit as early as February 1984, changed its the disputed “guideline” in February 1984, and altered its applications to remove the question about citizenship in November 1984. In addition, the actual “violation” may never have occurred. The district court’s finding was based on what were intended to be self-serving comments by defendant’s employees designed to show that they did not deny Bhandari credit on the basis of his alienage or national origin. On this record and under the authority of Fischl, we affirm the district court’s denial of punitive damages. IV The district court admitted evidence of settlement negotiations between the parties before the case was filed. Bhandari argues that the evidence was inadmissible under Rule 408, Federal Rules of Evidence. Rule 408 excludes evidence of settlement negotiations if offered to prove or disprove liability. The Rule itself provides, however, that it “does not require exclusion when the evidence is offered for another purpose____” Whether evidence should be admitted for another purpose is within the discretion of the district court; the decision to admit or exclude evidence proferred for other purposes will be reversed only for an abuse of that discretion. Belton v. Fibreboard Corp., 724 F.2d 500, 505 (5th Cir.1984). The district court did not abuse its discretion. The disputed evidence was admitted to determine whether Bhandari failed to mitigate damages. This purpose is permissible under Rule 408. See Urico v. Parnell Oil Co., 708 F.2d 852, 854-55 (1st Cir.1983). V A The district court awarded Bhandari attorneys’ fees of $1,500 under the ECOA, 15 U.S.C. § 1691e(d): The Court is bound by statute to award attorney’s fees under the ECOA in light of plaintiff’s successful claim. However, the lack of damages to plaintiff’s creditworthiness, the Court’s perception of plaintiff’s failure to minimize costs by prosecuting this case absent such damages; and plaintiff’s unilateral choice in bringing about a sizable investment in attorney’s time; all compel a minimal award of $1,500 for attorney’s fees. In making this award, the Court notes plaintiff has failed to prevail on most of his claims ... The only claim upon which he has prevailed could have been resolved prior to suit, at which time plaintiff’s attorney assessed his fees at $1,500. The Court therefore concludes this is an appropriate award. Op. at 13. Because we have held that Bhandari’s civil rights were violated by First National under Guerra’s interpretation of § 1981, we must remand the issue of attorneys’ fees to the district court for reconsideration. See 42 U.S.C. § 1988. Even though this issue must be remanded, we think it important to point out that the district court’s initial determination of attorneys’ fees involved both factual and legal error. The factual error is the district court’s apparent belief that Bhandari could have settled before trial for what he eventually received after much time and effort. Bhandari’s settlement offers were rejected by First National. First National’s only offer was the informal one by Richardson to give Bhandari a credit card if he otherwise qualified. As soon as Bhandari’s attorney raised the issue of attorneys’ fees, Richardson stated that he would have to check with First National’s lawyers. There is no other evidence in the record of First National’s willingness to settle on any terms that involved any cash payments to Bhandari. Thus, the court erred in concluding that Bhandari’s prosecution of this case was a “failure to minimize costs,” or otherwise of questionable propriety. On the basis of its factual mistake, the court set the amount of attorneys’ fees at the amount estimated by Bhandari’s lawyer as incurred at the time of a settlement offer made before the case was filed. The district court noted that it had not considered the attorneys’ fees factors mandated by Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974), “because to do so would result in a negative finding and prevent the mandatory award for plaintiff’s successful ECOA action.” This shortcut was legal error. Whatever the underlying facts, the court may not avoid making the determination required by Johnson and Hensley v. Eckerhart, 461 U.S. 424, 432 n. 7, 103 S.Ct. 1933, 1939 n. 7, 76 L.Ed.2d 40 (1983), by arbitrarily awarding a figure discussed in pre-trial negotiations. We recognize that recent Fifth Circuit law on the status of Johnson is in disarray. The Supreme Court decisions in Hensley and Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984), have weakened the case for strict allegiance to the Johnson factors, and the strain is beginning to show. Compare Nisby v. Commissioners Court of Jefferson County, 798 F.2d 134, 137 (5th Cir.1986) (reversing attorneys’ fee award based on a “lodestar” calculation because “the district court did not evaluate specifically the applicability of each of the Johnson factors”; Hensley and Blum do not alter the rule of Johnson), with Brantley v. Surles, 804 F.2d 321, 326 (5th Cir.1986) (upholding award where district court dismissed a number of Johnson factors without discussion; “This is sufficient here because we can say the overall fee calculation meets the Supreme Court’s guidelines in Blum and Hensley”). One recent case on this issue includes a spirited dissent, something rare before Hensley and Blum. See Abrams v. Baylor College of Medicine, 805 F.2d 528, 537 (5th Cir.1986) (Johnson, J., dissenting). On remand, the district court must make of this muddle what it can. See Nisby, 798 F.2d at 137 (Hinojosa, District Judge, concurring) (suggesting clarification by the Court). Under any conceivable standard, however, the court must carefully analyze the time spent, the claimed hourly rate, and the degree of success in the action; it may not rely on figures plucked from settlement negotiations. B Depositions were submitted in place of live testimony. The district court “taxed” the deposition expenses equally to both parties as “costs,” and ordered First National to pay all other costs. Bhandari argues that he was the prevailing party and thus entitled to have First National pay all costs. We agree. The initial determination of what expenses are costs is for the informed discretion of the district court. Brumley Estate v. Iowa Beef Processors, 704 F.2d 1362, 1363 (5th Cir.1983). The expense of depositions reasonably necessary to the case may be awarded as costs. Allen v. United States Steel Corp., 665 F.2d 689, 697 (5th Cir.1982). The “prevailing” party ordinarily recovers costs, but a party need not prevail on all issues to justify an award. Studiengesellschaft Kohle v. Eastman Kodak, 713 F.2d 128, 131 (5th Cir.1983). Bhandari is the prevailing party in this case. He is entitled to costs under 15 U.S.C. § 1691e(d). The district court has no authority to split items of expense once it classifies them as costs. On remand, the district court should award the cost of depositions to Bhandari. VI Today, as we must, we reluctantly reaffirm the holding of Guerra v. Manchester Terminal Corp.; aliens can sue under § 1981 for private alienage discrimination. The district court found that Fi