Hitoshi Yoshikawa v. Troy Seguirant

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HITOSHI YOSHIKAWA, No. 21-15970

Plaintiff-Appellee,

D.C. No.

v. 1:18-cv-00162-

JAO-RT

TROY K. SEGUIRANT, Individually,

Defendant-Appellant,

OPINION

and

CITY AND COUNTY OF

HONOLULU; GREG TALBOYS;

AGT CONSTRUCTION, LLC;

JAMES A. SCHMIT,

Defendants.

Appeal from the United States District Court

for the District of Hawaii

Jill Otake, District Judge, Presiding

Submitted En Banc March 21, 2023 *

Pasadena, California

Filed July 25, 2023

*

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

2 YOSHIKAWA V. SEGUIRANT

Before: Mary H. Murguia, Chief Judge, and Sidney R.

Thomas, Kim McLane Wardlaw, Ronald M. Gould,

Consuelo M. Callahan, Morgan Christen, Jacqueline H.

Nguyen, Eric D. Miller, Daniel P. Collins, Salvador

Mendoza, Jr. and Roopali H. Desai, Circuit Judges.

Opinion by Judge Wardlaw;

Concurrence by Judge Wardlaw;

Partial Concurrence and Partial Dissent by Judge Collins

SUMMARY **

Civil Rights

Vacating the district court’s order denying qualified

immunity on a claim under 42 U.S.C. § 1981, and

remanding, the en banc court held that § 1981 does not

provide an implied cause of action against state actors.

Joining other circuits, and overruling Federation of

African American Contractors v. City of Oakland, 96 F.3d

1204 (9th Cir. 1996), the en banc court held that § 1981, as

amended in 1991, establishes substantive rights that a state

actor may violate but does not itself contain a remedy against

a state actor for such violations. Thus, a plaintiff seeking to

enforce rights secured by § 1981 against a state actor must

bring a cause of action under 42 U.S.C. § 1983. The en banc

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

YOSHIKAWA V. SEGUIRANT 3

court remanded with instructions to allow the plaintiff to

replead his § 1981 claim as a § 1983 claim.

Concurring in full with the majority opinion, Judge

Wardlaw, joined by Chief Judge Murguia and Judges Gould,

Christen, Nguyen, Mendoza, and Desai, wrote separately to

note that the legislative history of the 1991 amendments to

§ 1981 provided additional support for the conclusion that

Congress did not intend to create an implied cause of action

in § 1981.

Concurring in the judgment in part and dissenting in part,

Judge Collins, joined by Judge Callahan, concurred in the

judgment as to overruling the holding of Federation that the

amended § 1981 contains an implied cause of action against

state actors. Judge Collins dissented as to the majority’s

decision to remand rather than reclassify the plaintiff’s cause

of action as a § 1983 action based on § 1981 and proceed to

the merits of the appeal.

COUNSEL

Nicolette Winter, Kyle K. Chang, and Robert M. Kohn,

Deputies Corporation Counsel, Department of the

Corporation Counsel; City and County of Honolulu,

Honolulu, Hawaii; Adam G. Unikowsky, Jenner & Block

LLP, Washington, D.C.; for Defendant-Appellant.

James W. Rooney, Terrance M. Revere, and Paul V.K.

Smith, Revere & Associates LLLC, Kailua, Hawaii, for

Plaintiff-Appellee.

4 YOSHIKAWA V. SEGUIRANT

OPINION

WARDLAW, Circuit Judge, with whom MURGUIA, Chief

Judge, S.R. THOMAS, GOULD, CHRISTEN, NGUYEN,

MILLER, MENDOZA, DESAI, Circuit Judges, join:

Our circuit has long held that a plaintiff may bring a

cause of action against state actors alleging violations of 42

U.S.C. § 1981 under both § 1981 and 42 U.S.C. § 1983.

Each of our sister circuits with jurisdiction over this question

has disagreed. A majority of the active judges in our court

voted to rehear this case en banc to reconsider our ruling that

§ 1981 provides an implied cause of action. Today, we join

our sister circuits in holding that it does not. We vacate and

remand this case to the district court with instructions to

allow Hitoshi Yoshikawa to replead his § 1981 claim as a

§ 1983 claim, the proper vehicle for his claim of

discriminatory enforcement of the City of Honolulu’s

building codes.

I.

Hitoshi Yoshikawa, a Japanese national and lawful

permanent resident of the United States, purchased a

waterfront property near Honolulu in 2014.1 Yoshikawa

retained an architect to plan repairs and renovations to the

property. Troy Seguirant, a municipal building inspector,

repeatedly inspected Yoshikawa’s property. Seguirant

issued orders stopping work on the property, informed

Yoshikawa of various code violations, and required that he

seek new building permits. Yoshikawa alleges that

contractors working on his property overheard Seguirant

1

In light of our conclusion that Yoshikawa lacks a right of action under

§ 1981, we recount only the essential facts and procedural history here.

YOSHIKAWA V. SEGUIRANT 5

using a derogatory epithet when explaining his decision to

issue such orders. So, though Yoshikawa conceded certain

code violations, he contends that Seguirant’s enforcement of

the code against him was born of racial animus.

Yoshikawa filed this action in May 2018, alleging

federal claims under § 1981 and § 1983 and state law claims

against Seguirant, the City and County of Honolulu, and

other defendants. Only Yoshikawa’s § 1981 claim against

Seguirant is at issue in this appeal; the district court

dismissed the § 1983 claims against Seguirant with

prejudice.

II.

Before reaching the merits of this dispute, we must

determine whether § 1981 provides Yoshikawa a valid cause

of action. 2 Section 1981 creates federal rights but does not

provide an express cause of action. At issue here is whether

§ 1981 creates an implied cause of action against state

actors. We conclude that it does not and expressly overrule

our precedents to the extent that they have reached any

contrary conclusion.

2

Seguirant appeals from the district court’s denial of qualified immunity.

The now-vacated panel opinion affirmed the denial of qualified

immunity. Yoshikawa v. Seguirant, 41 F.4th 1109 (9th Cir. 2022),

vacated, 59 F.4th 998 (9th Cir. 2023). We retain jurisdiction in this

interlocutory appeal to decide the underlying cause of action. See Wilkie

v. Robbins, 551 U.S. 537, 549 n.4 (2007) (explaining that denial of

qualified immunity in an action brought pursuant to Bivens v. Six

Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), gives courts

jurisdiction to decide the underlying cause of action); Pettibone v.

Russell, 59 F.4th 449, 453 (9th Cir. 2023) (“Wilkie establishes that, in an

interlocutory appeal from a denial of qualified immunity, we necessarily

have jurisdiction to decide whether an underlying Bivens cause of action

exists.”).

6 YOSHIKAWA V. SEGUIRANT

To bring his federal statutory claim, Yoshikawa must

identify both a substantive right violated under § 1981 and a

cause of action. “Like substantive federal law itself, private

rights of action to enforce federal law must be created by

Congress.” Alexander v. Sandoval, 532 U.S. 275, 286

(2001). Our “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.” Id. Absent

such intent, “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.” Id. at

286–87.

In Jett v. Dallas Independent School District, 491 U.S.

701 (1989), the Supreme Court held that § 1981 does not

provide an implied private right of action for damages

against state actors, concluding that “the express cause of

action for damages created by § 1983 constitutes the

exclusive federal remedy for violation of the rights

guaranteed in § 1981 by state governmental units.” Id. at

733. In 1989, § 1981 read as follows:

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.

YOSHIKAWA V. SEGUIRANT 7

In 1991, Congress amended § 1981 “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.” Civil Rights Act of

1991, Pub. L. No. 102–166, § 3(4), 105 Stat. 1071, 1071.

The 1991 amendments moved the text of then § 1981 into a

new subsection (a). See 42 U.S.C. § 1981(a). Relevant to

this appeal, Congress also added subsection (c), providing:

“The rights protected by this section are protected against

impairment by nongovernmental discrimination and

impairment under color of State law.” Id. § 1981(c).

In 1996, we were the first Court of Appeals to

specifically consider whether the 1991 amendments

superseded the Supreme Court’s implied remedy holding in

Jett. 3 In Federation of African American Contractors v. City

of Oakland, 96 F.3d 1204 (9th Cir. 1996), we held that

§ 1981(c) superseded Jett, creating an implied cause of

action to enforce § 1981 against state actors. Id. at 1214.

The Federation panel reached this conclusion by

applying the factors set forth in Cort v. Ash, 422 U.S. 66, 78

3

In 1995, the Fourth Circuit in Dennis v. County of Fairfax, 55 F.3d 151

(4th Cir. 1995), assumed without explicitly holding that § 1981(c) did

not overrule Jett. Id. at 156 (“To the extent that these claims were

pleaded under § 1981, they run afoul of [Jett]. Jett held that when suit

is brought against a state actor, § 1983 is the ‘exclusive federal remedy

for violation of the rights guaranteed in § 1981.’” (citation omitted)).

The Fourth Circuit also observed that § 1981(c) did not affect another of

the Supreme Court’s holdings in Jett—that, to prevail on his damages

claim against a municipal entity, a “petitioner must show that the

violation of his ‘right to make contracts’ protected by § 1981 was caused

by a custom or policy within the meaning of [Monell v. Department of

Social Services of New York, 436 U.S. 658 (1978)] and subsequent

cases.” Jett, 491 U.S. at 735–36; see Dennis, 55 F.3d at 156 n.1.

8 YOSHIKAWA V. SEGUIRANT

(1975), then the “touchstone of the modern implied remedy

doctrine.” Federation, 96 F.3d at 1211. 4 The panel assessed

each factor, though the gravamen of its analysis centered on

“whether Congress intended to create a private right of

action.” Id. at 1210. The panel inferred such intent from

two aspects of the 1991 amendments. First, the panel

determined that, in codifying Runyon v. McCrary, 427 U.S.

160 (1976), Congress adopted § 1981(c) to “explicitly

protect[] § 1981 rights from ‘impairment’ by both private

and governmental entities, . . . mak[ing] clear that Congress

intended a comparable scope of protection against each type

of defendant.” Id. at 1213. Second, the panel observed that

the Court’s reasoning in Runyon hinged on the availability

of an implied cause of action against private defendants. Id.

Hence, the panel concluded that § 1981(c) created parallel

rights and remedies against private and state actors. Just as

Congress intended to codify an implied cause of action

4

In Cort, the Supreme Court set forth four factors to assess whether a

“private remedy is implicit in a statute not expressly providing one.” 422

U.S. at 78. The factors are:

First, is the plaintiff one of the class for whose especial

benefit the statute was enacted—that is, does the

statute create a federal right in favor of the plaintiff?

Second, is there any indication of legislative intent,

explicit or implicit, either to create such a remedy or

to deny one? Third, is it consistent with the underlying

purposes of the legislative scheme to imply such a

remedy for the plaintiff? And finally, is the cause of

action one traditionally relegated to state law, in an

area basically the concern of the States, so that it

would be inappropriate to infer a cause of action based

solely on federal law?

Id. (internal quotation marks and citations omitted).

YOSHIKAWA V. SEGUIRANT 9

against private actors in § 1981, it intended to create an

identical cause of action against state actors. Id.

III.

Two developments in the implied remedy doctrine post-

dating Federation cast doubt on its holding. First, the

Supreme Court has “narrowed the [Cort] framework for

evaluating whether a statute implies a private cause of

action.” Gilstrap v. United Air Lines, Inc., 709 F.3d 995,

1002 (9th Cir. 2013) (citing Sandoval, 532 U.S. 275). In

Sandoval, the Court “explained that courts are tasked with

determining only whether Congress intended to create a

private cause of action.” Segalman v. Sw. Airlines Co., 895

F.3d 1219, 1223 (9th Cir. 2018) (citing Sandoval, 532 U.S.

at 286–91). While most of the Federation panel’s analysis

centers on congressional intent, its holding rests in part on

the other Cort factors. See Federation, 96 F.3d at 1211–12,

1214. 5

Second, the Federation panel correctly observed that

contemporary “courts and commentators alike” were

divided on the effect of § 1981(c) on Jett’s holdings, and that

“[a] number of district courts” had reached the same

conclusion as the panel. 96 F.3d at 1209–10; see also id. at

1208–09 (noting that the panel was addressing “an unsettled

question of law”). Today, however, the weight of authority

5

We express no view on whether the other Cort factors remain good law.

Other panels have acknowledged that the “four factor test [remains]

helpful,” Logan v. U.S. Bank Nat’l Ass’n, 722 F.3d 1163, 1171 (9th Cir.

2013), while recognizing that the Supreme Court has “essentially

collapsed the Cort test into a single focus” on congressional intent, id. at

1170; see Lil’ Man in the Boat, Inc. v. City & County of San Francisco,

5 F.4th 952, 958 (9th Cir. 2021), cert. denied, 142 S. Ct. 900 (2022).

10 YOSHIKAWA V. SEGUIRANT

points in the opposite direction. Our sister circuits have

uniformly held that Jett remains good law. 6

The Supreme Court has “increasingly discouraged the

recognition of implied rights of actions without a clear

indication of congressional intent.” Duplan, 888 F.3d at

621. The absence of any discussion of Jett or implied rights

of action in the text of § 1981(c) cuts against the inference

that Congress intended to overrule that case. That Congress

created an express cause of action against state actors in

§ 1983, but declined to do so in § 1981, bolsters our view.

Accordingly, we overrule Federation. And to the extent that

our precedents rely on Federation’s reasoning or are

otherwise inconsistent with our holding today, we overrule

those decisions as well. Section 1981 establishes substantive

rights that a state actor may violate. It does not itself contain

a remedy against a state actor for such violations. A plaintiff

seeking to enforce rights secured by § 1981 against a state

actor must bring a cause of action under § 1983.

IV.

We vacate the district court’s order and remand with

instructions to allow Yoshikawa to replead his § 1981 claim

6

See Duplan v. City of New York, 888 F.3d 612, 619–20 (2d Cir. 2018);

Buntin v. City of Boston, 857 F.3d 69, 72–75 (1st Cir. 2017); Brown v.

Sessoms, 774 F.3d 1016, 1021 (D.C. Cir. 2014); Campbell v. Forest

Pres. Dist. of Cook Cnty., 752 F.3d 665, 670–71 (7th Cir. 2014);

McGovern v. City of Philadelphia, 554 F.3d 114, 120–21 (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, 1136–37 (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 (11th Cir. 2000); see also

Dennis, 55 F.3d at 156 & n.1.

YOSHIKAWA V. SEGUIRANT 11

as a § 1983 claim. 7 We acknowledge that Yoshikawa

separately raised a § 1983 claim against Seguirant, which the

district court dismissed with prejudice. The district court

also denied Yoshikawa the opportunity to amend his

complaint and correct any deficiencies. However,

Yoshikawa likely would have pleaded his § 1983 claim

differently if he had known that he lacked a cause of action

under § 1981. Likewise, the district court had no reason to

expect Yoshikawa to restate or amend his § 1983 claim to

include claims he raised under § 1981.

Accordingly, we instruct the district court to allow

Yoshikawa to replead his § 1981 claim against Seguirant as

7

We acknowledge that one of our sister circuits, confronted with a

similar appeal, may have adopted a different procedural approach—

construing a plaintiff’s former § 1981 claim as a § 1983 claim. Brown,

774 F.3d at 1022. However, we disagree with both the dissent’s

suggestion that this is the only permissible remedy—and its more

extreme suggestion that our opinion creates a circuit split.

Brown’s facts are distinguishable from those presented here. In

Brown, the plaintiff raised only § 1981 claims (in addition to tort and

state law claims), see Brown v. D.C., 919 F.Supp.2d 105, 110 (D.D.C.

2013), and the D.C. Circuit held that the plaintiff’s failure to cite § 1983

was a procedural error that did not warrant dismissal. Brown, 744 F.3d

at 1022 (citing Johnson v. City of Shelby, 135 S.Ct. 346, 347 (2014), for

the rule that a plaintiff “seeking damages for violations of constitutional

rights” need not “invoke § 1983 expressly in order to state a claim”).

Here, the nature of Yoshikawa’s error is different. Yoshikawa raised

both § 1981 and § 1983 claims in the proceedings below, and would

likely have pleaded those claims differently in view of today’s holding.

Remand to the district court is appropriate to allow Yoshikawa to replead

his § 1981 claim in line with this holding.

12 YOSHIKAWA V. SEGUIRANT

a § 1983 claim, notwithstanding the district court’s earlier

dismissal with prejudice of Yoshikawa’s § 1983 claim. 8

VACATED and REMANDED.

WARDLAW, Circuit Judge, with whom MURGUIA, Chief

Judge, and GOULD, CHRISTEN, NGUYEN, MENDOZA,

DESAI, Circuit Judges, join, concurring:

I concur in full with the majority opinion. I write

separately to note that the legislative history of the 1991

amendments, Civil Rights Act of 1991, Pub. L. No. 102–166,

§ 3(4), 105 Stat. 1071 (1991), provides additional support for

our conclusion that Congress did not intend to overturn Jett

v. Dallas Independent School District, 391 U.S. 701 (1989),

and to create an implied cause of action in 42 U.S.C. § 1981.

Legislative history is a legitimate tool of statutory

interpretation that has its place. See Wooden v. United States,

142 S. Ct. 1063, 1073 (2022) (relying on legislative history

to interpret an amendment to the Armed Career Criminal

Act). Here, the legislative history confirms our reading of

the text of the statute, and therefore bears reciting.

8

We note that regardless of whether a four-year or two-year statute of

limitations applies to Yoshikawa’s claim, the statute of limitations on

Yoshikawa’s claim has not expired. See Jones v. R.R. Donnelley & Sons

Co., 541 U.S. 369, 382–84 (2004) (holding that four-year statute of

limitations applies to § 1981 claim “made possible by” the 1991

amendments); Bird v. Dep’t of Hum. Servs., 935 F.3d 738, 743 (9th Cir.

2019) (recognizing that certain “actions brought pursuant to [§ 1983] are

governed by [Hawaii]’s statute of limitations”). Yoshikawa timely

pleaded his § 1981 and § 1983 claims in his Third Amended Complaint.

YOSHIKAWA V. SEGUIRANT 13

The legislative history of § 1981(c) makes clear that, by

enacting this subsection, Congress intended to codify

Runyon v. McCrary, 427 U.S. 160 (1976), in which the

Supreme Court recognized that § 1981 applies substantively

to both private and state action. See H.R. Rep. No. 102–40

(II), at 37 (1991) (stating that § 1981(c) was “intended to

codify [Runyon]”); see also H.R. Rep. No. 102–40 (I), at 141

(1991) (noting that the 1991 amendments “codify the long-

standing principle established in [Runyon] that section 1981

reaches private as well as governmental conduct”). In

contrast, committee reports concerning the amendments

make no mention of Jett. See generally H.R. Rep. No. 102-

40 (I) (1991) (House Education and Labor Committee

report); H.R. Rep. No. 102-40 (II) (House Judiciary

Committee report). No members of Congress referenced

Jett in floor debate regarding § 1981(c). See Philippeaux v.

N. Cent. Bronx Hosp., 871 F.Supp. 640, 655 (S.D.N.Y.

1994). Congress has yet to adopt subsequent amendments

to § 1981. The absence of any discussion of Jett, 391 U.S.

at 701, in the legislative history of the 1991 amendments cuts

against the inference that Congress intended to overrule Jett

in enacting them.

14 YOSHIKAWA V. SEGUIRANT

COLLINS, Circuit Judge, with whom CALLAHAN, Circuit

Judge, concurs, concurring in the judgment in part and

dissenting in part:

The majority’s decision today properly eliminates one

circuit split but then unfortunately proceeds immediately to

create another. I concur in the judgment as to the former,

but I dissent as to the latter.

I

In Federation of African American Contractors v. City

of Oakland, 96 F.3d 1204 (9th Cir. 1996), we held that, by

virtue of a 1991 amendment, “the amended 42 U.S.C. § 1981

contains an implied cause of action against state actors,

thereby overruling” the contrary holding of Jett v. Dallas

Independent School District, 491 U.S. 701 (1989), which

had held “that 42 U.S.C. § 1983 provides the exclusive

federal remedy against state actors for the violation of rights

under 42 U.S.C. § 1981.” Federation, 96 F.3d at 1214

(emphasis added). 1 Federation’s holding on this score has

no basis in the statutory text, is inconsistent with current

Supreme Court doctrine concerning the recognition of

implied causes of action, and has been rejected by every

other circuit to consider the question. I readily agree that

Federation should be overruled, and I concur in the

judgment on that point.

1

Jett left undisturbed the implied right of action the Supreme Court

recognized directly under § 1981 against private actors. See Jett, 491

U.S. at 731–32; see generally Johnson v. Ry. Exp. Agency, Inc., 421 U.S.

454, 459–60 (1975). As I read the majority decision, it does the same.

YOSHIKAWA V. SEGUIRANT 15

II

Having correctly jettisoned Federation, we then must

decide what to do with this appeal as a result. The answer to

that question, in my view, is twofold: (1) we should treat

Yoshikawa’s implied § 1981 claim as equivalent to a § 1983

claim based on § 1981, as the D.C. Circuit did when

confronted with the same issue; and (2) we should proceed

to decide the merits of this qualified-immunity appeal.

Federation itself made clear that the elements of its

implied cause of action under § 1981 against state actors do

not differ in any material respect from those of a § 1983

action against state actors that is based on the substantive

rights set forth in § 1981. See 96 F.3d at 1215. Indeed,

Federation viewed the duplicative nature of the two

remedies as a factor in favor of recognizing an implied cause

of action against state actors under § 1981:

Implying a cause of action directly under

§ 1981, moreover, will not disrupt federal

civil rights litigation, and will impose no

greater burden on government defendants,

who under Jett were subject to suits under 42

U.S.C. § 1983 for violations of 42 U.S.C.

§ 1981. Allowing plaintiffs to bring suits

against municipalities directly under § 1981

to enforce § 1981 rights instead of under

§ 1983 imposes no substantive change on

federal civil rights law.

96 F.3d at 1214 (emphasis added). Federation further

underscored the substantive equivalence between the two

causes of action when it proceeded to hold that the “‘policy

or custom’ requirement” applicable to § 1983 suits against

16 YOSHIKAWA V. SEGUIRANT

municipalities under Monell v. Department of Social

Services of the City of New York, 436 U.S. 658 (1978), also

applies to Federation’s implied cause of action against state

actors under § 1981. Federation, 96 F.3d at 1205, 1215. So

far as I am aware—and so far as the majority is able to

discern—the only potential material difference between an

implied cause of action against a state actor under § 1981,

and a § 1983 claim against a state actor based on a § 1981

violation, concerns the applicable statute of limitations.2

2

I emphasize the word “potential,” because it may well be that there is

no difference even on that score. In the context of a case involving an

implied right of action against a private party under § 1981, the Supreme

Court held in Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369 (2004),

that 28 U.S.C. § 1658(a)’s general four-year statute of limitations, which

applies to civil actions “arising under” any federal statute enacted after

1990, applies to a § 1981 claim only if the pleaded cause of action would

not have been available under the pre-1991 version of § 1981 but later

became available under the revised, post-1991 version of § 1981. Jones,

541 U.S. at 382–83. By contrast, a present-day § 1981 claim that would

have been viable under the pre-1991 version of § 1981 is not subject to

the general four-year statute of limitations in § 1658 and would instead

be presumptively governed by the “most appropriate or analogous state

statute of limitations.” Goodman v. Lukens Steel Co., 482 U.S. 656, 660

(1987); see also Jones, 541 U.S. at 383–85; Johnson v. Lucent Techs.

Inc., 653 F.3d 1000, 1007 (9th Cir. 2011) (“[I]t is incontestable that some

§ 1981 claims continue to be subject to the most analogous state statute

of limitations.”); Lukovsky v. City and County of San Francisco, 535

F.3d 1044, 1048 n.2 (9th Cir. 2008) (holding that a § 1981 failure-to-hire

claim is not subject to § 1658’s four-year limitations period because it

was cognizable under the earlier version of § 1981). Moreover, the

Fourth and Eleventh Circuits have held that a § 1983 cause of action that

is based on the post-1991 version of § 1981 is governed by the four-year

statute of limitations in § 1658. See Chambers v. N.C. Dep’t of Justice,

66 F.4th 139, 142–43 (4th Cir. 2023); Baker v. Birmingham Bd. of Educ.,

531 F.3d 1336, 1337–38 (11th Cir. 2008). Under the Fourth and the

Eleventh Circuit’s approach, the statute of limitations would be the same

(either the four-year federal statutory period or the applicable state

YOSHIKAWA V. SEGUIRANT 17

Any such theoretical difference, however, is immaterial

here, because (as the majority notes) Yoshikawa’s suit was

timely filed under either potentially applicable deadline. See

Opin. at 12 n.8.

Because the Federation-based § 1981 implied cause of

action against a state actor is in all material respects identical

to a § 1983 action against a state actor based on § 1981, there

simply is no basis for remanding this case. The shift from a

§ 1981 implied cause of action against a state actor, to the

identical § 1983 cause of action against a state actor based

on § 1981, changes nothing whatsoever of substance;

instead, it merely changes the statutory citation for

Yoshikawa’s first cause of action from “42 U.S.C. § 1981”

to “42 U.S.C. § 1983.” The failure explicitly to invoke the

identical cause of action under “§ 1983” makes no difference

and does not render that existing cause of action “deficient

in that regard.” Johnson v. City of Shelby, 574 U.S. 10, 12

(2014) (holding that failure explicitly to invoke § 1983 does

not render a complaint deficient if it otherwise pleads facts

sufficient to establish all elements of the claim and stating

that, “to ward off further insistence on a punctiliously stated

‘theory of the pleadings,’” the plaintiffs on remand should

be allowed to add a “citation to § 1983” to their complaint).

Accordingly, we should simply treat Yoshikawa’s § 1981

cause of action against Seguirant as a § 1983 claim based on

§ 1981 and should proceed to the merits of this appeal.

That is exactly what the D.C. Circuit did when

confronted with the same problem in Brown v. Sessoms, 774

F.3d 1016 (D.C. Cir. 2014). There, the district court granted

a motion to dismiss a complaint that included, inter alia, an

statutory period) for both a direct action under § 1981 and for a § 1983

action based on § 1981.

18 YOSHIKAWA V. SEGUIRANT

implied cause of action under § 1981 against state actors,

viz., the President and Board of Trustees of the University of

the District of Columbia. Id. at 1018–20. The district court’s

dismissal order never even considered whether such a cause

of action existed under § 1981, but instead dismissed the

claim on the merits. See id. at 1020 (noting that “neither the

parties nor the district court” had considered Jett’s holding

that there was no implied cause of action under § 1981

against state actors); Brown v. Dist. of Columbia, 919

F. Supp. 2d 105, 116–17 (D.D.C. 2013) (dismissing

Brown’s § 1981 claim on the ground that “plaintiff has pled

no set of facts that could allow this Court to make the

inference that plaintiff’s race was a motivating factor” in

defendants’ employment decision). In the ensuing appeal,

the D.C. Circuit addressed the Jett issue and explicitly

rejected our decision in Federation. See 774 F.3d at 1021

(“We . . . join our sister circuits (minus the Ninth Circuit) in

concluding that the Act’s amendments to section 1981 did

not nullify Jett.”). Accordingly, the D.C. Circuit held that,

under Jett, there was no implied right of action against a state

actor under § 1981. Id. at 1021–22.

The D.C. Circuit then addressed the very same issue that

confronts us here—namely, what to do with the district

court’s merits ruling concerning the plaintiff’s § 1981 claim.

The D.C. Circuit correctly recognized that, because an

identical cause of action was available as a § 1983 claim

based on § 1981, the proper course under Johnson v. City of

Shelby was simply to reclassify the direct claim under § 1981

as a § 1983 claim based on § 1981. 774 F.3d at 1022

(holding that “Johnson controls our resolution of Brown’s

section 1981 claim”). Because, thus reclassified, “Brown’s

section 1981 claim remains viable,” the court concluded that

it would “turn to the merits of that claim.” Id.

YOSHIKAWA V. SEGUIRANT 19

The majority gives no valid reason for creating a split

with the D.C. Circuit on this issue and for instead requiring

Yoshikawa to engage in the pointless formality of

“replead[ing] his § 1981 claim as a § 1983 claim.” See Opin.

at 10–11. The majority claims that Brown is distinguishable

because, unlike the situation in Brown, Yoshikawa pleaded

both a direct claim against Seguirant under § 1981 and a

separate claim against Seguirant under § 1983, and

Yoshikawa “would likely have pleaded those claims

differently in view of today’s holding.” See Opin. at 11 n.7

(emphasis added). But the fact that, at one point in the case,

Yoshikawa also pleaded a separate § 1983 claim against

Seguirant provides no basis for distinguishing Brown.

Pursuant to a district court ruling that is not before us in this

interlocutory appeal, that separate § 1983 claim against

Seguirant has already been dismissed with prejudice. See

Yoshikawa v. City & County of Honolulu, 542 F. Supp. 3d

1099, 1118–19 (D. Haw. 2021). The majority does not

purport to revive that separate § 1983 claim, because its

remand instructions only permit Yoshikawa “to replead his

§ 1981 claim.” See Opin. at 10–11. (As the majority

implicitly recognizes, we lack any authority to resurrect that

already-dismissed claim. 3) Accordingly, as the case is

3

Our appellate jurisdiction here rests exclusively on the premise that,

under the collateral order doctrine, we have jurisdiction under 28 U.S.C.

§ 1291 to consider Seguirant’s appeal of the denial of qualified immunity

as to Yoshikawa’s § 1981 claim against him. See Mitchell v. Forsyth,

472 U.S. 511, 530 (1985). Consequently, the only thing we may review

is the district court’s refusal to dismiss the § 1981 claim against

Seguirant—which, as the majority notes, also includes the underlying

question whether there is such a § 1981 claim. See Wilkie v. Robbins,

551 U.S. 537, 549 n.4 (2007). But we may not review the district court’s

dismissal of the separate § 1983 claim Yoshikawa asserted against

Seguirant or its rulings concerning the § 1983 claims against the City and

20 YOSHIKAWA V. SEGUIRANT

presented to us, it looks exactly like Brown: the plaintiff

asserts a § 1981 claim against a state actor without any

accompanying § 1983 claim against that defendant, and the

only question properly before us is what to do with that

§ 1981 claim.

The answer to that question should be the same as the

one the D.C. Circuit gave in Brown. Because, as I have

explained and the majority does not contest, there is no

conceivable substantive difference between (1) a direct

cause of action against a state actor under § 1981 and (2) a

§ 1983 action against that state actor based on § 1981, we

already know what the latter claim looks like here—it looks

the same as the § 1981 claim Yoshikawa has already pleaded

against Seguirant. Remanding might make sense if we had

changed the substantive elements of the relevant cause of

action, but we have not. As the D.C. Circuit held in Brown,

all that changes from disallowing the Federation-based

direct cause of action under § 1981 is the statutory citation

for the cause of action; nothing more. See 774 F.3d at 1022;

cf. also Johnson, 574 U.S. at 12 (stating that the only

amendment needed on remand was to add a “citation to

County of Honolulu. Because Yoshikawa had no jurisdictional basis for

filing a cross-appeal challenging the dismissal of the separate § 1983

claim against Seguirant, and he in any event did not file one, we lack the

ability to grant relief with respect to that claim. See Greenlaw v. United

States, 554 U.S. 237, 244–45 (2008) (reaffirming the “inveterate and

certain” rule that “an appellate court may not alter a judgment to benefit

a nonappealing party” (citation omitted)); El Paso Natural Gas Co. v.

Neztsosie, 526 U.S. 473, 479–80 (1999) (holding that, in the absence of

a cross-appeal, a court of appeals may not grant relief to the appellee

with respect to “the unappealed portions of the District Court’s orders”).

YOSHIKAWA V. SEGUIRANT 21

§ 1983” to the complaint). 4 Moreover, Yoshikawa has no

need to replead the substance of his § 1981 claim under its

new § 1983 label for the simple reason that Yoshikawa

prevailed on that substantive issue at the pleading stage by

successfully opposing Seguirant’s motion to dismiss his

§ 1981 claim. It is Seguirant who has properly invoked this

court’s jurisdiction to ask us to determine whether he is

entitled to qualified immunity with respect to that

substantive claim. Like the D.C. Circuit in Brown, we

should simply relabel the direct § 1981 claim as a § 1983

action based on § 1981 and then proceed to the merits of the

appellate issues raised concerning that § 1981-based claim.

774 F.3d at 1022. The majority’s inexplicable refusal to do

so creates a circuit split, even if the majority does not want

to admit it.

Indeed, the majority’s insistence on a pointless remand

also defies the Supreme Court’s clear instruction that a

qualified immunity defense “should be resolved as early as

possible.” Crawford-El v. Britton, 523 U.S. 574, 600 (1998).

The majority’s decision to remand the case without deciding

the merits of Seguirant’s qualified-immunity appeal will

lead to a deadweight loss of time and resources as the parties

will presumably relitigate the same merits issues, the district

court will presumably again deny qualified immunity, and

we will then be confronted with a new appeal-as-of-right

challenging the denial of qualified immunity. Although the

Supreme Court has stated that “a quick resolution of a

qualified immunity claim is essential,” Will v. Hallock, 546

4

Indeed, that is presumably why the longstanding and extremely

lopsided split over Federation was never resolved by the Supreme

Court—it is, ultimately, much ado about nothing.

22 YOSHIKAWA V. SEGUIRANT

U.S. 345, 353 (2006), we have today decided to ignore that

command.

* * *

For the foregoing reasons, I concur in the judgment to

the extent that the majority overrules Federation’s holding

that there is an implied cause of action against state actors

under § 1981. Having overruled Federation, I would then

reclassify Yoshikawa’s first cause of action against

Seguirant as a § 1983 action based on § 1981 and proceed to

the merits of the appeal. To the extent that the majority does

otherwise, I respectfully dissent.