Federation of African American Contractors v. City of Oakland

concurring in the judgment:

I concur in the judgment and all but Part I.B.1 of the court’s opinion. Because I conclude that Monell v. New York City Dep’t of Social Services, 436 U.S. 658 , 98 S.Ct. 2018 , 56 L.Ed.2d 611 (1978) was not overruled by the 1991 amendment to 42 U.S.C. § 1981 , plaintiffs have failed to state a cause of action by failing to allege that their civil rights were violated as a result of an official policy or custom.

The question whether the 1991 amendment creates an implied cause of action under § 1981 need not be decided. If the amendment does not create an implied cause of action, then Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 , 109 S.Ct. 2702 , 105 L.Ed.2d 598 (1989) is still valid, and plaintiffs failed to state a cause of action because none exists. If, on the other hand, § 1981(e) does create an implied cause of action, plaintiffs fail to state a claim thereunder because they fail to allege a policy or custom.

For these reasons, I would affirm the district court without reaching the issue whether § 1981(c) creates an implied cause of action.

Opinion by Judge HAWKINS; Concurrence by Judge BEEZER.

This appeal presents an issue of first impression: whether the Civil Rights Act of 1991 amended 42 U.S.C. § 1981 to statutorily overrule Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 , 109 S.Ct. 2702 , 105 L.Ed.2d 598 (1989), to allow a private right of action against municipalities; and, if so, whether the Act reheves plaintiffs from alleging that their civil rights were violated as a result of an official “policy or custom” as required by Monell v. New York City Dep’t of Social Services, 436 U.S. 658 , 98 S.Ct. 2018 , 56 L.Ed.2d 611 (1978).

Plaintiff-appellant Rondeau Bay Construction Company (“Rondeau Bay”), a minority-owned construction firm, appeals the district court’s dismissal of its civil rights claims against defendant-appellee Alameda County, which it brought under 42 U.S.C. §§ 1981 and 1983. We have jurisdiction pursuant to 28 U.S.C. § 1291 .

We hold that the Civil Rights Act of 1991 creates an implied cause of action against state actors under 42 U.S.C. § 1981 , and thus statutorily overrules Jett’s holding that 42 U.S.C. § 1983 provides the exclusive federal remedy against municipalities for violation of the…