          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




                                 - 2 -
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.


                                         - 3 -
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.


                                 - 4 -
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


                                - 5 -
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.




                                 - 6 -
          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).


                                - 7 -
           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,


                                - 8 -
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


                                    - 9 -
(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


                                     - 10 -
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.


                                     - 11 -
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))).


                                 - 12 -
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


                                     - 13 -
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.




                                     - 14 -
