Filed: May 15, 2017
Latest Update: Mar. 03, 2020
Summary: claims to state court, id.law of the case. Jett, 491 U.S. at 713–22. McGovern, 554, F.3d at 118–19 (discussing Alexander and other Supreme Court, decisions that have altered [Cort] virtually beyond recognition, (quoting Wisniewski v. Rodale, Inc., 510 F.3d 294, 299 (3d Cir. Buntin, 209 F. Supp.
United States Court of Appeals
For the First Circuit
No. 16-2265
JEANNETTE BUNTIN,
Plaintiff, Appellant,
v.
CITY OF BOSTON; JAMES MCGONAGLE; SCOTT ALTHER,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Torruella, Selya, and Lynch,
Circuit Judges.
W. Kendall and Law Office of W. Kendall on brief for
appellant.
Nicole M. O'Connor, Senior Assistant Corporation Counsel,
City of Boston Law Department, and Eugene L. O'Flaherty,
Corporation Counsel, on brief for appellees.
May 15, 2017
LYNCH, Circuit Judge. This appeal causes us to decide
a question of first impression in this circuit. We hold that a
plaintiff may not bring claims for damages under 42 U.S.C. § 1981
against state actors, including defendants sued in their official
capacities as government officials -- here, employees of the City
of Boston. This result is required by Jett v. Dallas Independent
School District, in which the Supreme Court held that § 1981 does
not provide an implied private right of action for damages against
such officials and that "the express cause of action for damages
created by [42 U.S.C.] § 1983 constitutes the exclusive federal
remedy for violation of the rights guaranteed in § 1981 by state
governmental units." 491 U.S. 701, 733 (1989). Congress has not,
in the nearly three decades since Jett, demonstrated any intention
to compel a different result. Our holding brings us into agreement
with eight other circuits, and into disagreement with only one.
We affirm the district court's dismissal of the action.
I.
A. Facts and Procedural History
In a prior appeal in this case, we affirmed dismissal of
the complaint's § 1983 claims on statute of limitations grounds.
The dismissal of those § 1983 claims provides pertinent background.
We also found error in the dismissal of the § 1981 claims on the
sole ground of failure to exhaust administrative remedies, and we
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remanded to the district court. Buntin v. City of Boston
(Buntin I), 813 F.3d 401 (1st Cir. 2015).
We repeat only the essential facts here; our earlier
decision provides a more complete description. See id. at 403–
04. The plaintiff, Jeannette Buntin, represents the estate of her
late father Oswald Hixon, a black man, and sued in state court on
February 6, 2015. The case was later removed to federal court.
Hixon was employed by the City of Boston as a repairman in the
Department of Public Works ("DPW") and was supervised by defendants
Scott Alther and James McGonagle, both of whom are white men. In
2007, Hixon was suspended for twenty days without pay, after
failing a random drug and alcohol test. Hixon was fired on
February 10, 2011. The reason given was his second violation of
the City's drug and alcohol policy.
The complaint alleges that this stated ground for
termination was a pretext for racial discrimination and
retaliation against Hixon for protesting past discriminatory
treatment at work. It also alleges that in January 2013, after
Hixon applied for state unemployment benefits,1 Alther and
McGonagle testified falsely at hearings that Hixon had been under
1 Hixon himself filed charges with the Massachusetts
Commission Against Discrimination on December 13, 2013 and on
January 11, 2014. Each filing was dismissed as untimely. Buntin
I, 813 F.3d at 404 & n.4.
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the influence of drugs or alcohol at work and had refused to take
a required drug and alcohol test. Hixon died in 2014.2
B. District Court Proceedings on Remand
On remand from this court, the parties engaged in
discovery with respect to Buntin's § 1981 damages claims -- which
were all that remained of the lawsuit after Buntin I -- and then
filed cross-motions for summary judgment.
On September 19, 2016, the district court granted
summary judgment to the defendants. Buntin v. City of Boston, 209
F. Supp. 3d 368 (D. Mass. 2016). The court applied Jett, reviewed
post-Jett legislation, held that § 1981 provides no implied private
right of action for damages against state actors,
id. at 369–71,
dismissed the federal claims, and remanded the remaining state law
claims to state court,
id. at 371.
II.
We begin by clearing away a threshold argument made by
Buntin. Although Buntin admits that Buntin I did not explicitly
address the question at hand, she argues that Buntin I, by holding
that the complaint's factual allegations "plausibly suggest that
2 While the complaint originally sought an injunction
reinstating Hixon in his old job and forbidding Alther and
McGonagle from engaging in "discriminatory and retaliatory
conduct" against Hixon, Hixon died even before the complaint was
filed, and so those claims are moot. See Goodwin v. C.N.J., Inc.,
436 F.3d 44, 48–49 (1st Cir. 2006). Only the damages claims
remain.
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Buntin is entitled to relief on a [§] 1981 claim," 813 F.3d at
406, necessarily also made an implicit holding that § 1981 provides
an implied private right of action for damages against state
actors. That purported implicit holding, she says, constitutes
law of the case. She is mistaken.
"The law of the case doctrine 'posits that when a court
decides upon a rule of law, that decision should continue to govern
the same issues in subsequent stages in the same case.'" United
States v. Moran, 393 F.3d 1, 7 (1st Cir. 2004) (quoting Arizona v.
California,
460 U.S. 605, 618 (1983), supplemented by
466 U.S. 144
(1984)). The doctrine both "prevents relitigation in the trial
court of matters that were explicitly or implicitly decided by an
earlier appellate decision in the same case" and "binds . . . a
successor appellate panel in a second appeal in the same case."
Id. Whether the law of the case doctrine applies is a question of
law, which we review de novo. United States v. Matthews,
643 F.3d
9, 13 (1st Cir. 2011).
The question we now address was not decided in Buntin I.
As to dismissal of the § 1981 claims, Buntin I decided that the
district court's sole ground for dismissal -- failure to exhaust
administrative remedies -- was not a requirement of § 1981. 813
F.3d at 405. It also rejected the defendants' arguments that
Buntin had not brought her § 1981 claims "within the applicable
four-year statute of limitations,"
id., and that her allegations
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were so conclusory as to justify dismissal, id. at 405–06. Whether
§ 1981, standing alone, provides a private right of action for
damages was not at issue in Buntin I, and this court's rejection
of the defendants' other argued grounds for dismissal did not
implicitly confirm that Buntin's § 1981 claims had no other
deficiencies not argued to us.
Given the earlier dismissal of the § 1983 claims, the
federal courts lack subject-matter jurisdiction if § 1981 does not
provide Buntin with a private right of action for damages. See
Bonano v. E. Caribbean Airline Corp., 365 F.3d 81, 83 (1st Cir.
2004); see also Fed. R. Civ. P. 12(h)(3) ("If the court determines
at any time that it lacks subject-matter jurisdiction, the court
must dismiss the action."). Because the present argument for
dismissal pertains to subject-matter jurisdiction, the defendants
are not precluded from raising it. See Watchtower Bible & Tract
Soc'y of N.Y., Inc. v. Colombani, 712 F.3d 6, 10 & n.3 (1st Cir.
2013).
III.
We turn to the key issue: whether Jett's reading of
§ 1981 controls or has since been reversed by Congress. Because
the question is one of statutory interpretation, we exercise de
novo review. See Bonano, 365 F.3d at 83.
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Joining the majority of our sister circuits,3 we hold
that § 1981, as the Supreme Court held in Jett, provides no implied
private right of action for damages against state actors. That is
so even given Congress's post-Jett amendment of the statute via
the Civil Rights Act of 1991.
A. Background: Jett and the Civil Rights Act of 1991
The present-day § 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.
42 U.S.C. § 1981(a). The rights protected by that sentence --
which for many decades was the only sentence of § 1981 -- were
first recognized by Congress in 1866, in the immediate aftermath
of the Civil War. See Civil Rights Act of 1866, § 1, 14 Stat. 27,
27; Jett, 491 U.S. at 713–22.
3 See Brown v. Sessoms, 774 F.3d 1016, 1020–21 (D.C. Cir.
2014); Campbell v. Forest Pres. Dist.,
752 F.3d 665, 671 (7th Cir.
2014); McGovern v. City of Philadelphia,
554 F.3d 114, 121–22 (3d
Cir. 2009); Arendale v. City of Memphis,
519 F.3d 587, 598–99 (6th
Cir. 2008); Bolden v. City of Topeka,
441 F.3d 1129, 1137 (10th
Cir. 2006); Oden v. Oktibbeha County,
246 F.3d 458, 463–64 (5th
Cir. 2001); Butts v. County of Volusia,
222 F.3d 891, 894–95 (11th
Cir. 2000); Dennis v. County of Fairfax,
55 F.3d 151, 156 n.1 (4th
Cir. 1995).
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In 1871, Congress enacted the direct predecessor of the
present-day § 1983. See Civil Rights Act of 1871, § 1, 17 Stat.
13, 13. That portion of the 1871 Act "was seen by both opponents
and proponents as amending and enhancing the protections of the
1866 Act by providing a new civil remedy for its enforcement
against state actors." Jett, 491 U.S at 724.
Jett, in pertinent part, addressed whether that single
sentence of § 1981 -- that is, present-day § 1981(a) -- "provides
an independent federal cause of action for damages against local
government entities." Id. at 705. After extensively analyzing
the statutory text, statutory structure, and legislative history,
the Court held that "Congress intended that the explicit remedial
provisions of § 1983 be controlling in the context of damages
actions brought against state actors alleging violation of the
rights declared in § 1981."
Id. at 731. The Court explained that
its previous cases inferring a § 1981 damages remedy against
private actors were distinguishable because Congress had provided
no remedy for that sort of violation. See
id. at 732. By contrast,
"Congress ha[d] established its own remedial scheme" for suits
against state actors when it enacted § 1983.
Id. at 731.
Two years after Jett, § 1981 was amended by the Civil
Rights Act of 1991 ("the 1991 Act"), Pub. L. No. 102–166, 105 Stat.
1071. The 1991 Act stated that additional remedies and protections
were needed to respond to discrimination in employment, id. § 2,
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and that one of its purposes was "to respond to recent decisions
of the Supreme Court by expanding the scope of relevant civil
rights statutes in order to provide adequate protection to victims
of discrimination," id. § 3(4). To that end, section 101 of the
1991 Act added two new subsections to 42 U.S.C. § 1981:
(b) "Make and enforce contracts" defined
For purposes of this section, the term
"make and enforce contracts" includes the
making, performance, modification, and
termination of contracts, and the
enjoyment of all benefits, privileges,
terms, and conditions of the contractual
relationship.
(c) Protection against impairment
The rights protected by this section are
protected against impairment by
nongovernmental discrimination and
impairment under color of State law.
42 U.S.C. § 1981(b)–(c).
A report issued by the House Committee on Education and
Labor, dated April 24, 1991, stated that the new § 1981(b) was
meant to "overrule Patterson," a case decided one week before Jett
in which the Court had found § 1981 inapplicable to racial
harassment or discrimination that occurred after a contract's
formation. H.R. Rep. No. 102–40(I) ("House Rep. I"), at 92 (1991),
reprinted in 1991 U.S.C.C.A.N. 549, 630, 1991 WL 70454; see
Patterson v. McLean Credit Union,
491 U.S. 164 (1989). The report
also stated that the new § 1981(c) was meant to "codify the long-
standing principle established in Runyon v. McCrary,
427 U.S. 160
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(1976), that [§] 1981 reaches private as well as governmental
conduct." House Rep. I, at 141; see also id. at 92.
A second report, issued by the House Committee on the
Judiciary on May 17, 1991, reiterated both points. H.R. Rep. No.
102–40(II) ("House Rep. II"), at 2, 35–37 (1991), reprinted in
1991 U.S.C.C.A.N. 694, 694–95, 728–31, 1991 WL 87020. The
Judiciary Committee's report cited and described several other
then-recent Supreme Court cases that the 1991 Act was meant either
to codify or to repudiate. See
id. at 2.
Neither of the House Reports mentioned Jett even in
passing. Nor did the 1991 Act itself.
Since the 1991 Act, nine federal courts of appeals have
decided whether § 1981, as amended by the 1991 Act, now provides
an implied private right of action for damages against state
actors. Only the Ninth Circuit has held that Congress implicitly
overruled Jett by adding the new § 1981(c) via the 1991 Act. Fed'n
of African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1205,
1214 (9th Cir. 1996).4 Eight others have reached the opposite
conclusion and reaffirmed Jett as good law.5
4 The Ninth Circuit nonetheless affirmed dismissal,
because the plaintiff had alleged only "that the county 'failed to
enforce' state and county bidding requirements," and not "that
this failure . . . constituted an official policy or custom of the
county." See African Am. Contractors, 96 F.3d at 1215–16 (applying
Monell v. Dep't of Soc. Servs.,
436 U.S. 658 (1978)).
5 The Second Circuit has taken heed of the question but
has not answered it to date. See Howard v. City of New York, 602
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B. Congress Has Not Overruled Jett or Added an Implied Private
Right of Action for Damages to § 1981
To determine whether the 1991 Act overruled Jett and
created an implied private right of action for damages against
state actors, we examine Congress's intent. Because "private
rights of action to enforce federal law must be created by
Congress[,] [t]he judicial task is to interpret the statute
Congress has passed to determine whether it displays an intent to
create not just a private right but also a private remedy."
Alexander v. Sandoval, 532 U.S. 275, 286 (2001) (citation omitted);
see also Gonzaga Univ. v. Doe,
536 U.S. 273, 284 (2002);
Bonano,
365 F.3d at 84.
Looking first to the statutory text and structure of the
§ 1981 amendments, we find no evidence that Congress meant for the
1991 Act to overrule Jett or provide a new private right of action
for damages against state actors. Although the new § 1981(c)
clarified that the "rights protected by [§ 1981] are protected
against impairment by nongovernmental discrimination and
impairment under color of State law," 42 U.S.C. § 1981(c) (emphasis
added), that language simply clarifies the scope of the rights
that § 1981 confers. The Ninth Circuit's holding that the new
F. App'x 545, 546 n.1 (2d Cir. 2015) (per curiam) (unpublished
summary order); Anderson v. Conboy, 156 F.3d 167, 176 n.17, 178
n.19 (2d Cir. 1998), cert. granted sub nom. United Bhd. of
Carpenters & Joiners of Am. v. Anderson,
526 U.S. 1086 (1999), and
cert. dismissed,
527 U.S. 1030.
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language created an implied remedy against state actors
independent of § 1983 elides "the distinction between rights and
remedies."6 McGovern, 554 F.3d at 119. Jett’s logic as to the
statutory text and structure still applies with full force: because
Congress "established its own remedial scheme" in § 1983 for civil
rights violations by state
actors, 491 U.S. at 731, federal courts
should not exercise their limited power "to imply or create
[additional] remedies" via § 1981,
id. at 732. See
Campbell, 752
F.3d at 671;
McGovern, 554 F.3d at 121–22.
The legislative history of the 1991 Act is consistent
with our interpretation of the Act’s text and structure. The 1991
Act explicitly cited several Supreme Court holdings that the Act
was meant either to codify or to repudiate. Similarly, although
the House Reports expressed a broadly stated concern that recent
Supreme Court decisions had too sharply limited protections
6 We believe that the Ninth Circuit also erred in resolving
the § 1981 issue by applying the four-factor inquiry of Cort v.
Ash, 422 U.S. 66, 78 (1975). The Supreme Court has clarified since
Cort that whether Congress intended to provide a private right of
action -- which is one of the Cort factors -- is "[t]he central
inquiry," and that the other three factors are entitled to
considerably less weight. Touche Ross & Co. v. Redington,
442
U.S. 560, 575–76 (1979); see also, e.g.,
Alexander, 532 U.S. at
286–87 ("Statutory intent . . . is determinative. Without it, a
cause of action does not exist and courts may not create one, no
matter how desirable that might be as a policy matter, or how
compatible with the statute." (citations omitted)); McGovern, 554
F.3d at 118–19 (discussing Alexander and other Supreme Court
decisions that have "altered [Cort] virtually beyond recognition"
(quoting Wisniewski v. Rodale, Inc.,
510 F.3d 294, 299 (3d Cir.
2007))).
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against employment discrimination and other civil rights
violations, the House Reports went on to cite those disfavored
decisions by name -- including several from spring 1989, just two
years earlier and within mere weeks or months of the Jett decision.
See, e.g., House Rep. II, at 2–4; House Rep. I, at 92, 141. The
new § 1981(c), the House Judiciary Committee’s Report explained,
was meant to reaffirm and codify Runyon's holding; there was no
mention of either Jett or a new right of action. See House Rep.
II, at 35-37.
Indeed, conspicuously, Jett is not cited or discussed
anywhere in the 1991 Act's legislative history. See Bolden, 441
F.3d at 1137 ("[O]nly one who never relies on committee reports
would fail to be impressed by the total absence in the committee
reports of any mention of Jett . . . ."). That silence is striking
in light of the numerous other Court decisions mentioned
explicitly. We conclude that § 1983 remains "the exclusive federal
damages remedy" for § 1981 violations by state actors, Jett, 491
U.S. at 735, and that the district court correctly entered judgment
for the defendants on that basis.
* * *
One loose end remains. Buntin purports to sue Alther
and McGonagle not only in their official capacities but also in
their individual capacities. She has not alleged, however, that
they took any relevant actions "outside of the scope of their
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supervisory roles at the DPW." Buntin, 209 F. Supp. 3d at 371
n.3. We agree with the district court that Buntin's allegations
do not support claims against Alther and McGonagle outside their
official capacities. See
Oden, 246 F.3d at 464–65 & n.5 ("[W]hen
a plaintiff asserts a cause of action under § 1981 for
discrimination in the terms and conditions of a municipal
employment contract, the proper defendant is the government
employer in his official capacity."); see also Lewis v. Clarke,
No. 15–1500, slip op. at 6 (U.S. Apr. 25, 2017) (distinguishing
between official-capacity claims and individual-capacity claims).
IV.
The judgment is affirmed. No costs are awarded.
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