McGovern v. City of Philadelphia, No. 08-1632.

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtHardiman
Citation554 F.3d 114
PartiesPaul McGOVERN, Appellant v. CITY OF PHILADELPHIA.
Docket NumberNo. 08-1632.
Decision Date28 January 2009
554 F.3d 114
Paul McGOVERN, Appellant
v.
CITY OF PHILADELPHIA.
No. 08-1632.
United States Court of Appeals, Third Circuit.
Submitted Under Third Circuit LAR 34.1(a) January 8, 2009.
Filed: January 28, 2009.

[554 F.3d 115]

Mark S. Scheffer, Exton, PA, Attorney for Appellant.

Eleanor N. Ewing, City of Philadelphia, Law Department, Philadelphia, PA, Attorney for Appellee.

Before; CHAGARES and HARDIMAN, Circuit Judges and ELLIS,* District Judge.

OPINION OF THE COURT

HARDIMAN, Circuit Judge.


In this appeal we consider whether a private right of action against state actors can be implied under 42 U.S.C. § 1981. We join five of our sister circuits in holding that it cannot.

I.

Paul McGovern, a Caucasian male, was hired by the City of Philadelphia (City) as an Administrative Support Specialist in 1994 and was promoted to Network Administrator in 2001. On September 25, 2003, McGovern filed a complaint of race discrimination with the Equal Employment Opportunity Commission (EEOC) pursuant to Title VII, 42 U.S.C. § 2000e, et seq. A year later, McGovern received a Right to Sue Letter from the EEOC, but took no further action on his Title VII claim.1

On December 21, 2004, the City terminated McGovern's employment, citing performance and behavioral deficiencies. Almost three years later, McGovern sued the City in the United States District Court for the Eastern District of Pennsylvania, alleging race discrimination in violation of 42 U.S.C. § 1981.2 The City moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that § 1981 does not provide a cause of action—either express or implied—against state actors. The District Court granted the City's motion and McGovern filed a timely appeal.

II.

The District Court had jurisdiction over McGovern's civil rights claim under 28 U.S.C. § 1331 and 28 U.S.C. § 1343(a)(3). Appellate jurisdiction exists pursuant to 28 U.S.C. § 1291 and we exercise plenary review over the District Court's order granting the City's Rule 12(b)(6) motion. Edgar v. Avaya, Inc., 503 F.3d 340, 344 (3d Cir.2007). We accept all well-pleaded allegations in the complaint as true and draw all reasonable inferences in McGovern's favor. Miller v. Fortis, 475 F.3d 516, 519 (3d Cir.2007). The District Court's judgment is proper only if, accepting all factual allegations as true and construing the complaint in the light most favorable to the plaintiff, we determine that the plaintiff is not entitled to relief under any reasonable reading of the complaint. See Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir.2008) (citing Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir.2002)).

III.

Having lost the opportunity to bring a timely claim under either Title VII

554 F.3d 116

or 42 U.S.C. § 1983, McGovern seeks refuge under 42 U.S.C. § 1981, which has a four-year statute of limitations. See Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382, 124 S.Ct. 1836, 158 L.Ed.2d 645 (2004) (citing 28 U.S.C. § 1658(a)). Conceding that § 1981 does not explicitly provide a private right of action, McGovern argues that the rights-creating language of § 1981 implies a private right of action. In evaluating McGovern's argument, we must examine not only the rights-creating language of § 1981, but we must also consider whether it provides a remedy. As the Supreme Court acknowledged long ago, this is not a matter of semantics: "The distinction between rights and remedies is fundamental. A right is a well founded or acknowledged claim; a remedy is the means employed to enforce a right or redress an injury." Chelentis v. Luckenbach S.S. Co., 247 U.S. 372, 384, 38 S.Ct. 501, 62 L.Ed. 1171 (1918).

Like substantive federal law itself, private rights of action to enforce federal law must be created by Congress. Touche Ross & Co. v. Redington, 442 U.S. 560, 578, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979). Accordingly, we employ a two-step inquiry for determining whether a private right of action exists under a federal statute: (1) whether Congress intended to create a personal right in the plaintiff; and (2) whether Congress intended to create a personal remedy for that plaintiff. See Alexander v. Sandoval, 532 U.S. 275, 286, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001); Three Rivers Ctr. v. Hous. Auth. of the City of Pittsburgh, 382 F.3d 412, 421 (3d Cir.2004). Only if we can affirmatively answer both parts of the inquiry will we hold that an implied private right of action exists in a federal statute. Wisniewski v. Rodale, Inc., 510 F.3d 294, 301 (3d Cir. 2007).

A plaintiff asserting a violation of a federal statute must address both aspects of this rights-remedies dichotomy. In determining whether McGovern has met this burden, we first look to the language of the statute:

(a) Statement of equal rights

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).

In Jett v. Dallas Independent School District, 491 U.S. 701, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989), the Supreme Court held that § 1981, while providing extensive rights, does not itself provide a remedy against state actors. Id. at 731, 109 S.Ct. 2702. In Jett, a white high school teacher and football coach sued his employer under § 1981 after he was reassigned following a dispute with the school's black principal. The Supreme Court rejected Jett's § 1981 claim, holding that the exclusive federal remedy against state actors for violation of rights guaranteed in § 1981 is 42 U.S.C. § 1983, which provides that every person who, under color of law, deprives another of "any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress...." See id. at 723, 735, 109 S.Ct. 2702. Stated differently, while § 1981 creates rights, § 1983 provides the remedy to enforce those rights against state actors.

In reaching its decision in Jett, the Supreme Court examined the relationship

554 F.3d 117

between the Civil Rights Act of 1866 (which created the rights now enumerated in § 1981), and the Civil Rights Act of 1871 (which enacted the precursor to § 1983). See Jett, 491 U.S. at 713-31, 109 S.Ct. 2702. The Court concluded that although the 1866 Act did not contain its own remedial provision, Congress enacted the 1871 Act "to expose state and local officials to a new form of liability" that did not exist under § 1981. Id. at 723, 109 S.Ct. 2702. In other words, Congress believed the 1871 bill was necessary because no federal cause of action yet existed to enforce civil rights violations by state actors. When a rights-creating statute contains no express cause of action, courts may either find that a private cause of action is implicit in the rights-creating statute or that a means of enforcing that right is contained elsewhere in federal law. See Arendale v. City of Memphis, 519 F.3d 587, 594 (6th Cir.2008). Even though the rights-creating statute (§ 1981) contained no express cause of action, the Supreme Court found that a means of enforcing that right against state actors existed in a separate federal provision (§ 1983). Jett, 491 U.S. at 731, 109 S.Ct. 2702.3

IV.

McGovern acknowledges that Jett, standing alone, precludes a § 1981 claim against a municipality. He argues, however, that Jett was superseded by the Civil Rights Act of 1991, which amended § 1981 by adding two subsections that provide:

(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). While conceding that the amendments did not establish an express cause of action, McGovern contends that the addition of language protecting rights against "impairment under color of State law" abrogated the holding in Jett by creating an implied private right of action against state actors beyond that provided by § 1983.

Since its enactment, six circuits have considered whether the Civil Rights Act of 1991 created an implied private right of action. All but one of these courts have held that Congress did not create such a cause of action in amending § 1981. Compare Arendale, 519 F.3d at 598-99 ("[N]o independent cause of action against municipalities is created by § 1981(c)."), Bolden v. City of Topeka, 441 F.3d 1129, 1137 (10th Cir.2006) ("We therefore conclude that even after the 1991 amendments to § 1981, damages claims against state actors for § 1981 violations must be brought under § 1983."), Oden v. Oktibbeha County,

554 F.3d 118

246 F.3d 458, 463-64 (5th Cir.2001) ("[W]e are not willing to deviate from the Supreme Court's analysis of § 1981 in Jett."), Butts v. County of Volusia, 222 F.3d 891, 894 (11th Cir.2000) ("§ 1981(c) makes clear that the section creates a right that private or state actors may violate but does not itself create a remedy for that violation."), and Dennis v. County of Fairfax, 55 F.3d 151, 156 n. 1 (4th Cir. 1995) ("We do not believe that [Jett] was affected by the Civil Rights Act of 1991, which added subsection (c) to § 1981."), with Fed'n of African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1214 (9th Cir.1996) ("[W]e conclude that the amended 42 U.S.C. § 1981 contains an implied cause of action against state...

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341 practice notes
  • White v. Brommer, Civil Action No. 09–cv–4353.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • September 30, 2010
    ...for violation of plaintiff's Section 1981 rights. Plaintiff concedes in his Brief that pursuant to McGovern v. City of Philadelphia, 554 F.3d 114 (3d Cir.2009), Section 1981 only provides for a cause of action against Sergeant Brommer. However, [747 F.Supp.2d 454] plaintiff argues that his ......
  • Landsman & Funk Pc v. Skinder–strauss Associates, Nos. 09–3532
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • April 4, 2011
    ...dismissal for lack of jurisdiction and a district court's § 12(b)(6) dismissal for failure to state a claim. McGovern v. City of Phila., 554 F.3d 114, 115 (3d Cir.2009); Anjelino v. N.Y. Times Co., 200 F.3d 73, 87 (3d Cir.1999). We also exercise plenary review of a district court's resultin......
  • American Fed'n of State v. Dist. of Columbia, Civil Action No. 09–01804 (HHK).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • July 12, 2011
    ...Compare Fed'n of African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1210–14 (9th Cir.1996), with McGovern v. City of Philadelphia, 554 F.3d 114, 116–121 (3d Cir.2009). The only difference, if any, between these two interpretations is that a § 1981 cause of action might allow for resp......
  • Chambers v. School Dist. Philadelphia Bd. of Educ., No. 07-4790.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • November 20, 2009
    ...filed, and thus any portion of the Chambers' due process claim premised on that conduct is time-barred. See McGovern v. City of Phila., 554 F.3d 114, 115 n. 2 (3d Cir.2009) (noting that § 1983 claims are governed by a two-year statute of limitations in Pennsylvania); Sameric Corp. of Del., ......
  • Request a trial to view additional results
345 cases
  • White v. Brommer, Civil Action No. 09–cv–4353.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • September 30, 2010
    ...for violation of plaintiff's Section 1981 rights. Plaintiff concedes in his Brief that pursuant to McGovern v. City of Philadelphia, 554 F.3d 114 (3d Cir.2009), Section 1981 only provides for a cause of action against Sergeant Brommer. However, [747 F.Supp.2d 454] plaintiff argues that his ......
  • Landsman & Funk Pc v. Skinder–strauss Associates, Nos. 09–3532
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • April 4, 2011
    ...dismissal for lack of jurisdiction and a district court's § 12(b)(6) dismissal for failure to state a claim. McGovern v. City of Phila., 554 F.3d 114, 115 (3d Cir.2009); Anjelino v. N.Y. Times Co., 200 F.3d 73, 87 (3d Cir.1999). We also exercise plenary review of a district court's resultin......
  • American Fed'n of State v. Dist. of Columbia, Civil Action No. 09–01804 (HHK).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • July 12, 2011
    ...Compare Fed'n of African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1210–14 (9th Cir.1996), with McGovern v. City of Philadelphia, 554 F.3d 114, 116–121 (3d Cir.2009). The only difference, if any, between these two interpretations is that a § 1981 cause of action might allow for resp......
  • Chambers v. School Dist. Philadelphia Bd. of Educ., No. 07-4790.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • November 20, 2009
    ...filed, and thus any portion of the Chambers' due process claim premised on that conduct is time-barred. See McGovern v. City of Phila., 554 F.3d 114, 115 n. 2 (3d Cir.2009) (noting that § 1983 claims are governed by a two-year statute of limitations in Pennsylvania); Sameric Corp. of Del., ......
  • Request a trial to view additional results

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