Goodman v. Lukens Steel Co.

GARTH, Circuit Judge,

dissenting:

I agree with the majority’s analysis and disposition of all the issues presented in this appeal except for one. I respectfully dissent from the majority’s holding that the statute of limitations for a cause of action under 42 U.S.C. § 1981 is limited in Pennsylvania to two years rather than the six year period applied by the district court.

The court today relies on Wilson v. Garcia, — U.S. —, 105 S.Ct. 1938 , 85 L.Ed.2d 254 (1985), in which the Supreme *131 Court held that all claims under § 1983 should be subject to a state’s corresponding personal injury statute of limitations. Although Wilson does not address § 1981 claims, the court concludes that Wilson’s reasoning compels identical limitations treatment for all reconstruction Civil Rights claims. This conclusion is inconsistent with history, precedent, and logic, and in any event is not required by Wilson .

While the majority’s holding may not bar the civil rights claims asserted in this case, since violations of § 1981 may be found to have occurred within the shorter limitation period, the majority’s discussion and holding necessarily will have ramifications far beyond the appeal which we decide today. I therefore write separately to record my disagreement with the majority’s analysis.

I.

Prior to Wilson v. Garcia, this court applied a ease-by-ease analysis in determining which statute of limitations was most appropriate for a particular civil rights cause of action. Polite v. Diehl, 507 F.2d 119 (3d Cir.1974) (in banc). Under this analysis, we have generally held that claims under § 1981 are governed in Pennsylvania by that state’s six-year statute of limitations. See, e.g., Davis v. United States Steel Supply, 581 F.2d 335, 341 (3d Cir.1978), cert. denied, 460 U.S. 1014 , 103 S.Ct. 1256 , 75 L.Ed.2d 484 (1983); Meyers v. Pennypack Woods Home Ownership Ass’n, 559 F.2d 894, 902-03 (3d Cir.1977).

In Davis , we held that a § 1981 claim of racial discrimination in employment, the gravamen of which was interference with economic rights and interests rather than personal injury, should be governed by Pennsylvania’s six-year limitations period. 42 Pa.Cons.Stat.Ann. § 5527 (Purdon 1982). Unless it has been overruled by Wilson, Davis would appear to control the present case, where the gist of the cause of action is economic rather than bodily injury caused by interference with the employment rights of black workers.

Wilson holds that “the federal interests in uniformity, certainty, and the minimization of unnecessary litigation” requires that all § 1983 claims be governed by the same statute of limitations in a given state: that state’s personal injury statute. 105 S.Ct. at 1947 . Because Wilson looks to § 1988 for its authority to apply state limitations periods in civil rights actions, and § 1988 by its terms covers all of the Reconstruction sections, the majority today concludes that Wilson mandates that all civil rights actions be governed by a state’s personal injury limitation period. This conclusion is at best an arguable extension of Wilson’s analysis; it is by no means the holding of Wilson or an inexorable outgrowth of the case. In the absence of a square holding which overrules Third Circuit precedent, however, we remain bound by Davis to apply the six-year limitation period. It is not enough if Wilson merely undermines or raises questions about our prior analysis. Until the Supreme Court actually decides the limitation period for a § 1981 claim, or unless Wilson would admit of no other reasonable reading, only an in banc decision of this court can overrule Davis. See Third Circuit Internal Operating Procedures VIII C. 1

A close reading of Wilson reveals that the majority’s view is neither an inevitable nor even the most plausible reading of the case. Wilson’s holding that all § 1983 claims should be decided in a given state under the same statute of limitations follows from the Supreme Court’s view that § 1983 claims are best analogized to state tort actions for personal injuries. Id. at 1947. Having made this analogy as a matter of federal law, the Court adopted New Mexico’s three-year personal injury statute of limitations out of deference to the state’s judgment regarding “the proper balance between policies of repose and the substantive policies of enforcement embodied in the state cause of action.” Id. at 1945.

Nothing in Wilson addresses § 1981, which has a different history and purpose. See Section II infra. If Wilson has any effect on this case, therefore, it is merely to suggest that a single, uniform statute of limitations should be applied in each state to all cases under § 1981 instead of the case-by-case approach of Polite . Whether that would be the two-year personal injury period now applied in Pennsylvania for *132 § 1983 claims. Smith v. City of Pittsburgh, 764 F.2d 188 (3d Cir.1985), or some other limitation period dictated by the nature of § 1981, is a question beyond the scope of Wilson . Even if Wilson does require us to select a single statute of limitations for all § 1981 claims, it does not necessarily erase the distinctions between § 1981 and § 1983 recognized in Davis and Meyer. 2 These cases would therefore weigh heavily toward our selection of six years as the most appropriate uniform period of limitations for § 1981 claims. In short, not only does Wilson not require today’s result, but it can plausibly be read as support for a uniform six-year statute of limitations for § 1981 claims in Pennsylvania.

II.

An examination of the history, purpose, and application of § 1981 in contrast to the history, purpose, and application of § 1983, supports the conclusion that Pennsylvania’s six-year statute of limitations for contract and trespass actions is the most appropriate one to apply to the § 1981 claim before us. While it is true, as the majority notes, that both § 1981 and § 1983 are concerned broadly with protecting the equal legal status of every person before the law, and that there is substantial overlap in the cases that may properly be brought under the two sections, there are still significant differences between the two. In short, § 1983 was conceived, and has been generally applied, as a personal injury statute. Section 1981, however, is more fundamentally concerned with injury to the contractual or economic rights of minorities, and as such should appropriately be governed by the longer contract statute of limitations.

A.

42 U.S.C. § 1981 was originally enacted as section one of the Civil Rights Act of 1866, was re-enacted as Section 16 of the 1870 Act, and was later included in the 1874 recodification. Runyon v. McCrary, 427 U.S. 160 , 169 n. 8, 96 S.Ct. 2586 , 2593 n. 8, 49 L.Ed.2d 415 (1976). In its present form it provides:

§ 1981. Equal rights under the law

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.

While the “full and equal benefit” and “penalties” clauses give § 1981 broad applicability beyond the mere right to contract, Mahone v. Waddle, 564 F.2d 1018, 1028 (3d Cir.1977), cert. denied sub. nom., City of Pittsburgh v. Mahone, 438 U.S. 904 , 98 S.Ct. 3122 , 57 L.Ed.2d 1147 (1978), speeches and testimony at the time of § 1981’s enactment, demonstrate the predominantly economic focus of Section 1 of the 1866 Act.

Concerned with removing the badges and incidents of slavery, the legislators of 1866 believed that if economic freedom was protected, social freedom and equality would follow. Senator Trumbull, who introduced the 1866 Act, specified certain “great fundamental rights” denied to freedmen by former slave states:

the right to acquire property, the right to come and go at pleasure, the right to enforce rights in the courts, to make contracts, and to inherit and dispose of property.

Cong.Globe, 39th Cong., 1st Sess. 475 (1866), quoted in Jones v. Alfred E. Mayer Co., 392 U.S. 409, 432 , 88 S.Ct. 2186, 2199 , 20 L.Ed.2d 1189 (1968).

The bills’ supporters believed that freedom would be valueless to men not assured an equal opportunity to bargain for their labors. Illustrative of this economic concern are the words of Rep. Lawrence of *133 Ohio delivered in a detailed speech to the House:

It is idle to say a citizen shall have the right to life, yet deny him the right to labor, whereby he alone can live. It is a mockery to say a citizen may have a right to live, and yet deny him the right to make a contract to secure the privilege and the rewards of labor.

Every citizen, therefore, has the absolute right to life, the right to personal security, personal liberty, and the right to acquire and enjoy property. These are rights of citizenship. As necessary incidents of these absolute rights, there are others, as the right to make and enforce contracts, to purchase, hold, and enjoy property, and to share the benefit of laws for the security of person and property.

Cong.Globe, 39th Cong., 1st Sess. 1832.

On March 2, Rep. Windom of Minnesota stated his understanding of the scope of the bill:

Its object is to secure to a poor weak class of laborers the right to make contracts for their labor, the power to enforce the payment of their wages, and the means of holding and enjoying the proceeds of their toil.

Id. at 1159.

In 1865, the President commissioned Brigadier General Carl Schurz to tour the five most war-ravaged states to report on conditions there and suggest measures to overcome post war problems. In Report of C. Schurz, S.Exec.Doc. No. 2, 39th Cong., 1st Sess. at 21 (1865), Schurz concluded:

It is, indeed, not probable that a general attempt will be made to restore slavery in its old form, on account of the barriers which such an attempt will find in its way; but there are systems intermediate between slavery as it formerly existed in the south, and free labor as it exists in the north, but more nearly related to the former than to the latter, the introduction of which will be attempted.

This intermediate state between slavery and free labor referred to by General Schurz was created in large part by the Black Codes enacted by Southern states. While specifying that blacks had the right to buy, sell, own and bequeath real and personal property, the right to contract, to sue and be sued, and to testify in court, these rights only related to blacks’ relationships with other blacks. The Codes authorized unequal punishment for freedmen’s offenses, restricted travel and residence, and established an etiquette of deference to whites. In addition, the Codes severely limited economic rights. Blacks were forbidden the pursuit of certain occupations. They were subject to various master-servant statutes, vagrancy and pauper provisions that incorporated enforced labor, apprenticeship regulations, and elaborate labor contract statutes, especially pertaining to farm labor. Hyman & Wiecek, Equal Justice Under the Law 319-20 (1982).

It was within this historical context that the Act of 1866 and the vetoed Freedmen’s Bureau Amendment were proposed. The perception of Civil Rights in the 19th century, while encompassing personal safety, was cast largely in economic terms by the definition of legal relationships, responsibilities, and remedies. It is evident, therefore, that § 1981 derived from an Act that was designed to ensure predominantly economic rights for newly freed blacks.

Moreover, 42 U.S.C. § 1982 , which is recognized as a companion to § 1981, is by its plain language solely addressed to economic concerns. It reads:

All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.

Reading the two sections in conjunction, the 1866 Congress intended to end all discrimination and guarantee all citizens the opportunity to participate in the free market economy. Citizens were now free to make and enforce contracts for personal services and real and personal property. From their wording and identical legislative history, the two sections have been construed similarly. Both § 1981 and § 1982 reach private conduct. Runyan, 427 U.S. at 170 , 96 S.Ct. at 2594 . See Johnson v. Railway Express, 421 U.S. 454, 460 , 95 S.Ct. 1716, 1720 , 44 L.Ed.2d 295 (1975); Tillman v. Wheaton-Haven Recreation Assoc., 410 U.S. 431, 439-40 , 93 S.Ct. 1090, 1094-95 , 35 L.Ed.2d 403 (1972). Both § 1981 and § 1982 are directed at the same kind of discrimination: racial animus. Jones, 392 U.S. at 426 , 88 S.Ct. at 2196 . *134 Both sections share a similar purpose, ensuring predominantly economic rights, and have been given similar construction. See Meyers v. Pennypack Woods Home Owners Assoc., 559 F.2d 894 (3d Cir.1977). Therefore, both sections most appropriately belong under a state statute of limitations governing economic and contract actions.

B.

Section 1983, in contrast, reveals a very different legislative history, purpose, and application from § 1981 and § 1982. Section 1983 was enacted by Congress pursuant to § 5 of the fourteenth amendment in order to enforce that amendment. Monroe v. Pape, 365 U.S. 167, 171 , 81 S.Ct. 473, 475 , 5 L.Ed.2d 492 (1961).

42 U.S.C. § 1983 in its revised form reads:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation 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.

Section 1983 was enacted as section 1 of the Civil Rights Act of 1871. Adicks v. Kress, 398 U.S. 144, 162 , 90 S.Ct. 1598, 1611 , 26 L.Ed.2d 142 (1969). It arose from and was designed to respond to an entirely different set of circumstances than those which led to the original enactment of what became § 1981. As I have previously observed in discussing § 1981, the 1866 Congress was concerned with granting freedom and equality through economic guarantees which had long been denied the now newly freed blacks. It was economic freedom which enabled a man to be free. The focus was to identify those rights, previously denied, that would enable a person to sustain himself and his family once the mechanism of the master-slave society was dismantled. These concerns stand in sharp contrast to concerns about violence, physical injury and lawlessness that motivated the Congress of 1871.

After the passage of the thirteenth amendment and the 1866 Act, Southern resistance to Reconstruction mounted. Ku Klux Klan activity and atrocities increased. White vigilantes were described as having whipped, robbed, and murdered blacks. On March 3, 1871, President Grant, declaring that anarchy reigned in the South and that the states were powerless to control widespread violence, requested emergency legislation. In order to suppress the Klan and provide civil rights protection against official inaction and toleration of private lawlessness, Congress passed the Ku Klux Klan Act, which became known as the Civil Rights Act of 1871. See Brisco v. LaHue, 460 U.S. 325, 340 , 103 S.Ct. 1108, 1118 , 75 L.Ed.2d 96 (1983).

In characterizing all § 1983 claims as personal injury actions for limitations purposes, the Supreme Court looked to “the historical catalyst for the 1871 Act, the campaign of violence and deception in the south fomented by the Ku Klux Klan.” Wilson v. Garcia, — U.S. —, 105 S.Ct. 1938, 1947 , 85 L.Ed.2d 254 (1985). “The atrocities that concerned Congress in 1871 plainly sounded in tort____” Id., 105 S.Ct. at 1948 . In characterizing claims under § 1981, we should follow the Supreme Court’s analysis and look to the very different underlying purpose and historical catalyst for the Act of 1866.

C.

In addition to their contrasting histories and purposes, § 1981 and § 1983 have been applied differently. Section 1983 encompasses a broad range of actions sounding in tort, including injuries under color of state law to a person or his property and infringements of individual liberties. Id. at 1948. Cases under § 1983 “often involve elements that are similar to state causes of action for personal injury.” Jones v. United Gas Improvement Corp., 383 F.Supp. 420, 431 (E.D.Pa.1974). See also Harris v. Commonwealth, 419 F.Supp. 10, 14 (M.D.Pa.1976).

By contrast, the vast majority of cases brought under § 1981 arise out of some economic relationship consisting of more patterned sorts of behavior, frequently involving documentary proof in the form of employment records. Dudley v. Textron, Inc., 386 F.Supp. 602, 606 (W.D.Pa.1974). Indeed, the plain language of § 1981 supports the Supreme Court’s own characterization of the statute: “[Section 1981] on its face relates primarily to racial discrimination in the making and enforcement of contracts.” Johnson v. Railway Express, *135 421 U.S. 454, 459 , 95 S.Ct. 1716, 1720 , 44 L.Ed.2d 295 (1975).

In addition, a review of the elements of causes of action brought under § 1981 and § 1983 further suggests that the two acts should be construed separately. Section 1983 requires, by its language and purpose, state action, while § 1981 can extend to acts of private discrimination. Mahone v. Waddle, 564 F.2d at 1031 ; Jones v. Mayer Co., 392 U.S. at 437 , 88 S.Ct. at 2202 ; Johnson v. Railway Express, 421 U.S. at 460 , 95 S.Ct. at 1720 . Section 1981 also requires racial animus, Jones v. Mayer Co., 392 U.S. at 426 , 88 S.Ct. at 2196 , as well as discriminatory intent. Croker v. Boeing Co., 662 F.2d 975, 988 (3d Cir.1981) (en banc); Craig v. County of Los Angeles, 626 F.2d 659, 668 (9th Cir.1980), cert. denied, 450 U.S. 919 , 101 S.Ct. 1364 , 67 L.Ed.2d 345 (1981). By contrast, racial animus need not be an element in a § 1983 cause of action, nor is there a requirement of intentional conduct or any other particular state of mind as a prerequisite to recovery. Parratt v. Taylor, 451 U.S. 527, 534-535 , 101 S.Ct. 1908, 1912 , 68 L.Ed.2d 420 (1980).

III.

The majority concludes that unless claims under § 1981 are governed by the same statute of limitations as those under § 1983, the federal interest in uniformity and certainty in litigation as expressed in Wilson v. Garcia, — U.S. —, 105 S.Ct. 1938 , 85 L.Ed.2d 254 (1985), will be frustrated. The majority further concludes that, since the same facts could in some cases support a claim under either § 1981 or § 1983, applying different statutes of limitation would lead to a “bizarre result.” Typescript at 12. While admittedly an overlap of 1981 and 1983 causes of action exists, that is no reason to ignore the significant differences in history, purpose, and application between the two causes of action outlined above. But just as some similarities between § 1981 and § 1983 may be recognized, so too are there differences in dimension between these two actions. These differences reflect traditional distinctions between tort and contract law which have legitimate, practical purposes under both state law and the federal Civil Rights statutes. In that context, I suggest that the majority’s concerns about uniformity are misplaced and given greater weight than that to which they are entitled. Therefore, in addition to precedent and history, logic militates against today’s holding.

The majority bases its uniformity argument largely on 42 U.S.C. § 1988 , which provides that state law is to be consulted in setting the period of limitation for all civil rights claims. Wilson, 105 S.Ct. at 1943 . Finding it “most significant” that § 1988 applies to both § 1981 and § 1983 at 119, the majority concludes that the federal interest in uniformity in the enforcement of the civil rights statutes requires a common period of limitation.

Nothing in § 1988, however, requires that result. The statute only mandates that in cases where the laws of the United States “are not adapted to the object” of enforcing civil rights,

the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause____

If anything, this language supports a measure of deference to state law distinctions between tort and contract actions, so long as these distinctions are reflected in differences between and among the civil rights sections, and are therefore consistent with Federal law.

In fact, these tort-contract distinctions are real and substantial. First of all, as this court noted in Meyers v. Pennypack Woods Home Owners Assoc., 559 F.2d 894, 903 (3d Cir.1977):

“[T]he passage of time is less likely to impede the proof of facts” in a section 1981 and section 1982 action than in a state law physical injury action or a federal action under 42 U.S.C. § 1983 , for example, and a longer statute of limitations may be appropriate.

(quoting Dudley v. Textron, Inc., 386 F.Supp. 602 (E.D.Pa.1974)).

Second, a longer statute of limitation for § 1981 claims relating to economic discrimination might actually reduce federal litigation, as a plaintiff before proceeding in federal court could afford to wait until the disposition of an administrative action — for example, an action brought under the Fair Housing Act or Title VII — which would be *136 more likely to overlap with a § 1981 action than with a § 1983 action.

That state legislatures have good reasons for distinguishing between contract and personal injury actions was noted by Justice O’Connor:

[T]he legislative judgment to which this Court has traditionally deferred is not some purely arbitrary imposition of a conveniently uniform time limit. For example, a legislature’s selection of differing limitations periods for a claim sounding in defamation and one based on a written contract is grounded in its evaluation of the characteristics of those claims relevant to the realistic life-expectancy of the evidence and the adversary’s reasonable expectations of repose.

Wilson, 105 S.Ct. at 1950 (O’Connor, J., dissenting).

Similarly, there is good reason for treating § 1981 claims, which focus on economic discrimination often involving contracts and longer periods of patterned behavior, differently from § 1983 claims, which, by and large, more closely resemble torts for personal injury which result from discrete and more sharply identified events. The federal interest in uniformity and predictability is adequately served by treating alike all claims under a given section; it does not require that all claims under separate and distinct statutes be treated identically.

Furthermore, the majority’s sought-after “uniformity” is illusory. Even among § 1983 claims, Wilson does not require identical treatment throughout the country, since different states may have different personal injury limitations periods. In fact, in Wilson , a three-year period was applied, rather than the two year period adopted by today’s decision. 105 S.Ct. at 1949 , or the one year period found appropriated for Mississippi by the Fifth Circuit in Gates v. Sprinks, 771 F.2d 916, 920 (5th Cir.1985). Thus, Wilson defers to state judgment on the appropriate balance of interests in setting the limitation period, even though it results in different periods being applied in § 1983 cases in New Mexico, Pennsylvania, Mississippi, and elsewhere throughout these United States. There is no reason not to defer similarly to state judgments that actions sounding in contract should be governed by a longer limitation period.

The majority’s concern that applying a longer limitation period for § 1981 would lead to a “bizarre result” is unfounded. It is true that the same nucleus of operative fact sometimes could be characterized as either a § 1981 and/or § 1983 claim and thereby receive different limitations treatment if the six-year statute was applied under § 1981. Such variations, however, are commonplace in the law. In a run-of-the-mill automobile accident case, for example, identical facts could give rise to warranty claims sounding in contract and strict liability claims sounding in tort — each to be governed by a different statute of, limitations. This is not thought to be a “bizarre result,” and the possibility that the same or similar facts could support causes of action under different Civil Rights statutes is no more “bizarre.”

Moreover, facts that could support either a § 1981 or a § 1983 claim could frequently also support a claim under Title VII, which has a 300 day limitation period in a deferral state like Pennsylvania. 42 U.S.C. § 2000e-5(e). This disparity is tolerated, however, because Title VII is distinguishable from other Civil Rights provisions, just as § 1981 is distinguishable from § 1983. Title VII covers a narrower range of situations than does § 1981, but is not limited to racial animus and does not require intentional discrimination. “The choice [between Title VII and § 1981] is a valuable one. Under some circumstances the administrative route may be highly preferrable over the litigatory.” Johnson v. Railway Express, 421 U.S. 454, 461 , 95 S.Ct. 1716, 1720 , 44 L.Ed.2d 295 (1975). Moreover, “the remedies available under Title VII and under section 1981, although directed to most of the same ends, are separate, distinct, and independent.” Id. Different statutes with different purposes may logically be governed by different statutes of limitation. Total uniformity in limitations periods for civil rights claims is therefore neither possible nor necessarily desirable.

In Johnson, 421 U.S. at 463-64 , 95 S.Ct. at 1721-22 , the Supreme Court stated:

Although any statute of limitations is necessarily arbitrary, the length or period allowed for instituting suit inevitably reflects a value judgment concerning the point at which the interests in favor of protecting valid claims are outweighed *137 by the interests in prohibiting prosecution of stale ones____

The legislatures of Pennsylvania, New Jersey, Delaware and the Virgin Islands have made such value judgments in distinguishing for limitations purposes between actions brought for contract and personal injury. 3 There is no reason why this court should not respect the recognition by the state legislatures that distinctions should be made, for limitations purposes, between actions for contract and personal injury, and conclude that such distinctions are properly reflected in the application of the civil rights statutes. Indeed, this court has so held. See Davis v. United States Steel Supply, 581 F.2d 335, 339 (3d Cir.1978), cert. denied, 460 U.S. 1014 , 103 S.Ct. 1256 , 75 L.Ed.2d 484 (1983); Meyers . Since Wilson does not compel a different result, we should stand by our sound prior analysis. For the foregoing reasons, I respectfully dissent.

SUR PETITION FOR REHEARING

Present: ALDISERT, Chief Judge, SEITZ, ADAMS, GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM, SLOVITER, BECKER, STAPLETON, and MANSMANN, Circuit Judges.

The petition for rehearing filed by Plaintiffs-Appellees in the above entitled case having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied.

Judge Gibbons would grant rehearing in banc.

Judges Garth and Becker would grant rehearing in banc only with respect to the statute of limitations issue. Judge Garth’s Statement Sur Petition for Rehearing is attached hereto.

STATEMENT OF JUDGE GARTH SUR PETITION FOR REHEARING

I would grant rehearing only on the issue of whether actions pursuant to 42 U.S.C. § 1981 must be governed by a uniform personal injury statute of limitations as are actions pursuant to § 1983 under the rule of Wilson v. Garcia, 105 S.Ct. 1938 (1985). I believe the panel majority in this case wrongly decided this question for three reasons.

First, on its face, Wilson v. Garcia only governs actions under § 1983. Even a moderately expansive reading of Wilson would require only that each section of the Reconstruction civil rights acts be governed by an appropriate, uniform statute of limitations. The Wilson court focused on the history, purpose, and application of § 1983 in concluding that actions under that section are most appropriately governed by a state’s personal injury limitation period. Wilson therefore does not control the disposition of the present case.

Second, the history, purpose, and application of § 1981 reflects that the section was conceived and has been applied primarily as a means of protecting economic rights, such as those involving labor, property, and contracts. As such, § 1981 is best governed by the longer statute of limitations provided in most states for actions in contract.

Third, the “uniformity” sought by the panel majority in the application of the civil rights laws is nothing less than chimerical. It is quite common for a complaint to join causes of action governed by different statutes of limitations — whether the joined claims involve tort and contract, federal civil rights claims and state claims, or § 1981 and § 1983 claims. Different statutes of limitation are applied because different sorts of interests are protected by the different provisions, and the states have made policy choices in balancing rights against the practical problems of trying stale claims.

*138 Most states have concluded that economically grounded causes of actions will more frequently arise from patterned and well-documented courses of conduct than will claims for personal injury, and that it is therefore fair to bring such economic claims up to six years after they arise. There is no reason we should not respect these policy choices, grounded as they are in real and substantial differences between and among causes of action, in applying civil rights statutes which reflect the same differences.

I have more fully set out these reasons with supporting authorities in my dissent from the panel opinion. I have voted to grant rehearing here because I believe that this issue will arise with great frequency in cases brought before the federal courts. Thus, the majority’s holding will have far-reaching consequences by unjustifiably barring many cases brought under § 1981 through the application of a shorter personal injury statute of limitations.

Because of the importance of this question, I believe full court consideration is warranted.

. Compare Rubin v. Buckman, 727 F.2d 71, 73-74 (3d Cir.1984) (Garth, J., concurring) (in banc hearing not necessary to overrule prior panel when earlier case violated "consistent and explicit” rule and was "obviously in conflict with Supreme Court precedent”).

. While Smith v. City of Pittsburgh, 764 F.2d 188 (3d Cir.1985), discusses Davis v. United States Steel Supply, 581 F.2d 335 (3d Cir.1978), cert. denied, 460 U.S. 1014 , 103 S.Ct. 1256 , 75 L.Ed.2d 484 (1983), in following Wilson v. Garcia, — U.S. —, 105 S.Ct. 1938 , 85 L.Ed.2d 254 (1985), Smith was a § 1983 case. The Smith court erroneously cited Davis as a § 1983 case decided under the discredited case-by-case approach of Polite. 764 F.2d at 193 . In fact, Davis was a § 1981 case, and as such, is not controlled either by Smith or Wilson .

. Pennsylvania, New Jersey and the Virgin Islands apply a six-year statute of limitations for contract actions. 42 Pa.Cons.Stat. § 5527 (1981); N.J.Stat.Ann. 2A:14-1 (West Supp.1984); V.I.Code Ann. tit. 5 § 31(3)(A) (1967). Delaware provides for three years. Del.Code. Ann. tit. 10 § 8106 (1975). Pennsylvania, New Jersey, Delaware and the Virgin Islands all apply the shorter two year limitation for actions brought for personal injury. 42 Pa.Cons.Stat. § 5524 (1981); N.J.Stat.Ann. 2A:14-2 (West 1952); Del.Code Ann. tit. 10 § 8119 (1975); V.I.Code Ann. tit. 5 § 31(5)(A) (1984 Supp.). *138 3. Pennsylvania, New Jersey and the Virgin Islands apply a six-year statute of limitations for contract actions. 42 Pa.Cons.Stat. § 5527 (1981); NJ.Stat.Ann. 2A:14-1 (West Supp.1984); V.I.Code Ann. tit. 5 § 31(3)(A) (1967). Delaware provides for three years. Del.Code. Ann. tit. 10 § 8106 (1975). Pennsylvania, New Jersey, Delaware and the Virgin Islands all apply the shorter two year limitation for actions brought for personal injury. 42 Pa.Cons.Stat. § 5524 (1981); NJ.Stat.Ann. 2A:14-2 (West 1952); Del.Code Ann. tit. 10 § 8119 (1975); V.I.Code Ann. tit. 5 § 31(5)(A) (1984 Supp.).