                                   David W. BUTTS, Plaintiff-Appellant,

                                                       v.

                              COUNTY OF VOLUSIA, Defendant-Appellee.

                                                No. 99-13527.

                                       United States Court of Appeals,

                                               Eleventh Circuit.

                                                Aug. 14, 2000.

Appeal from the United States District Court for the Middle District of Florida.(No. 98-00178-CV-ORL-
22B), Anne C. Conway, Judge.

Before BLACK, CARNES and KRAVITCH, Circuit Judges.

        BLACK, Circuit Judge:

        This case requires us to decide whether 42 U.S.C. § 1981 provides a cause of action against state

actors. We conclude it does not and affirm the order of the district court.

                                             I. BACKGROUND

        Appellant David W. Butts initially sued Appellee County of Volusia in a one-count complaint

alleging racial discrimination in employment in violation of 42 U.S.C. § 1981. Appellant later filed a separate

lawsuit based on Title VII of the Civil Rights Act of 1964 and the Florida Civil Rights Act of 1992 (FCRA),

but the district court dismissed that suit because it contained the same factual allegations as the § 1981 suit.

Appellant then sought to amend his § 1981 suit to add the Title VII and FCRA claims. The district court

denied the motion because Appellant filed it after the scheduling deadline.

        Appellee moved for summary judgment based on the argument that § 1981 does not provide a cause

of action against state actors. The district court agreed, following Jett v. Dallas Independent School District,

491 U.S. 701, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989), which held a plaintiff must use the remedial

provisions of § 1983 to enforce against state actors the rights created by § 1981. The court also adopted the

analysis of other district courts in this Circuit and rejected Appellant's argument that the Civil Rights Act of

1991, Pub.L. No. 102-166, 105 Stat. 1071, overruled the Supreme Court's interpretation of § 1981 in Jett.
This appeal followed.

                                              II. DISCUSSION

         We review de novo the district court's entry of summary judgment. See AT&T Wireless PCS, Inc.

v. City of Atlanta, 210 F.3d 1322, 1324 (11th Cir.2000). Appellant contends the district court improperly

granted Appellee's motion for summary judgment on Appellant's 42 U.S.C. § 1981 claim.1 Appellant argues

the Civil Rights Act of 1991 amended § 1981 to create a cause of action against state actors and that such a

cause of action may rely on a respondeat superior theory of liability otherwise prohibited by § 1983 as

interpreted in Jett and Monell v. Department of Social Services of New York, 436 U.S. 658, 694, 98 S.Ct.

2018, 56 L.Ed.2d 611 (1978). We conclude the amendments did not change § 1981 and § 1983 contains the

sole cause of action against state actors for violations of § 1981.2

        Prior to the Civil Rights Act of 1991, § 1981 stated:

        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.

         In Jett, the Supreme Court examined the interplay between the pre-amendment § 1981 and § 1983.

Justice O'Connor, writing for a plurality, articulated two guiding principles. First, § 1983 constitutes the

exclusive remedy against state actors for violations of the rights contained in § 1981. See Jett, 491 U.S. at

731-32, 109 S.Ct. at 2721. Second, a plaintiff who sues a municipality under § 1983 for a violation of the

rights contained in § 1981 may not rely upon the doctrine of respondeat superior. See id. at 731-36, 109 S.Ct.



    1
     Appellant could have sued under § 1983 for the alleged violation of § 1981, but he chose not to do
so. Accordingly, this appeal requires us to decide whether § 1981 contains a cause of action against state
actors.

    2
      Appellant also argues the district court abused its discretion in denying Appellant's motion to amend
the complaint. We review this denial for an abuse of discretion. See Sosa v. Airprint Sys., 133 F.3d 1417,
1418 (11th Cir.1998). Appellant concedes he failed to comply with the district court's scheduling order,
see Fed.R.Civ.P. 16, and cannot demonstrate good cause to excuse that failure. Appellant's strategic
decision to file a separate lawsuit before attempting to amend caused much of the delay. Accordingly, the
district court did not abuse its discretion. See Sosa, 133 F.3d at 1418-19.
at 2721-23.

        The plurality considered the relationship between the Civil Rights Act of 1866 and the Civil Rights

Act of 1871 (the precursors to § 1981 and § 1983) and concluded the 1866 Act did not contain a remedial

provision to create a federal civil cause of action. Rather, the plurality determined Congress enacted the 1871

Act to create a civil remedy for the enforcement of the 1866 Act against state actors. Justice O'Connor

explained

        That we have read § 1 of the 1866 Act to reach private action and have implied a damages remedy
        to effectuate the declaration of rights contained in that provision does not authorize us to do so in the
        context of the "state action" portion of § 1981, where Congress has established its own remedial
        scheme. In the context of the application of § 1981 and § 1982 to private actors, we "had little choice
        but to hold that aggrieved individuals could enforce this prohibition, for there existed no other
        remedy to address such violations of the statute." That is manifestly not the case here, and whatever
        the limits of the judicial power to imply or create remedies, it has long been the law that such power
        should not be exercised in the face of an express decision by Congress concerning the scope of
        remedies available under a particular statute.

Id. at 731-32, 109 S.Ct. at 2721 (citations omitted).

        The plurality observed that while Congress had not explained the relationship between § 1981 and

§ 1983, "there is very strong evidence that the 42nd Congress which enacted the precurser of § 1983 thought

that it was enacting the first, and at that time the only, federal damages remedy for the violation of federal

constitutional and statutory rights by state governmental actors." Id. at 734, 109 S.Ct. at 2722.

        Jett therefore determined § 1981 did not contain a cause of action against state actors. If Jett remains

good law, the district court correctly granted summary judgment. Appellant contends, however, the Civil

Rights Act of 1991 legislatively overruled the interpretation of § 1981 contained in Jett. Although many

district courts in this Circuit, including the district court in this case, have rejected Appellant's claim, we have

not yet had the occasion to decide this issue.3


    3
     Appellee incorrectly claims this Court has previously addressed this question. In Johnson v. Fort
Lauderdale, 148 F.3d 1228, 1229 n. 2 (11th Cir.1998), we noted the district court had dismissed a § 1981
claim because § 1983 provided the exclusive remedy. We did not reach that issue, however; the opinion
only addressed the relationship between § 1983 and Title VII. This Court decided the other two cases
relied upon by Appellee based on the law prior to the Civil Rights Act of 1991. See Pearson v. Macon-
Bibb County Hosp. Auth., 952 F.2d 1274 (11th Cir.1992); Busby v. Orlando, 931 F.2d 764 (11th
Cir.1991).
        The Civil Rights Act of 1991 amended § 1981 by designating the existing text, quoted above, as §

1981(a) and adding two new subsections. Those new subsections provide:

        (b) "Make and enforce contracts" defined

                For purposes of this section, the term "make and enforce contracts" includes the making,
        performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges,
        terms, and conditions of the contractual relationship.

        (c) Protection against impairment

                The rights protected by this section are protected against impairment by nongovernmental
        discrimination and impairment under color of State law.

42 U.S.C. § 1981(b), (c).

        Appellant argues subsection (c) demonstrates Congress' intent to provide a cause of action against

state actors. Appellant relies almost exclusively on the Ninth Circuit's opinion in Federation of African

American Contractors v. Oakland, 96 F.3d 1204 (9th Cir.1996). In Federation, the Ninth Circuit held that

although § 1981(c) did not provide an explicit cause of action against state actors, it contained an implicit

remedy. See Federation, 96 F.3d at 1210-14.

         We disagree with Federation4 and concur with the decision of the other Court of Appeals to address

this issue. See Dennis v. County of Fairfax, 55 F.3d 151, 156 n. 1 (4th Cir.1995) (concluding the Civil Rights

Act of 1991 did not affect Jett ). As we noted above, in Jett, the Supreme Court refused to find in § 1981 an

implied cause of action against state actors because Congress had clearly established § 1983 as the remedial

scheme against state actors. Nothing in the 1991 amendment to § 1981 evinces Congress' desire to alter the

Supreme Court's conclusion in Jett. The express language of subsection (c) states that § 1981 protects against

racial discrimination by private and state actors. Put another way, § 1981(c) makes clear that the section

creates a right that private or state actors may violate but does not itself create a remedy for that violation.


    4
    We note, however, the Federation court would also affirm the district court in this case. Federation
concluded that while § 1981 contains a cause of action against state actors, the limitations on respondeat
superior liability from Monell apply to § 1981 just as they apply to § 1983. See Federation, 96 F.3d at
1214-15. We agree such a limitation would exist if § 1981 contained a cause of action. Because
Appellant did not plead a "custom or practice" as required by Monell, the district court properly granted
summary judgment even if Appellant could sue under § 1981.
        The sparse legislative history of the Civil Rights Act of 1991 does not reveal a contrary intent. The

Ninth Circuit recognized in Federation that the legislative history "does not explicitly announce an intent to

create (or deny) a private right of action against a state actor." Federation, 96 F.3d at 1212. Instead, the

Federation court and others have noted Congress added subsection (c) to codify the Supreme Court's decision

in Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976), which established that § 1981

protects against private discrimination as well as discrimination by state actors. See id. at 1212; Anderson

v. Conboy, 156 F.3d 167, 179 (2d Cir.1998); see also H.R.Rep. No. 102-40(I), at 92 (1991), reprinted in

1991 U.S.C.C.A.N. 549, 630; H.R.Rep. No. 102-40(II), at 37 (1991), reprinted in 1991 U.S.C.C.A.N. 694,

731. Congress provided no indication that it contemplated creating a cause of action against state actors

outside of § 1983, nor did it even mention the Supreme Court's opinion in Jett.

         Accordingly, we conclude Jett still governs this case. The Supreme Court held the judicial power

to imply a remedy "should not be exercised in the face of an express decision by Congress concerning the

scope of remedies available under a particular statute." Jett, 491 U.S. at 732, 109 S.Ct. at 2721. Congress

made that express decision in § 1983; nothing in the text or history of the Civil Rights Act of 1991 alters that

decision. The district court therefore correctly concluded Appellant could not proceed with his cause of

action based solely on § 1981.

                                             III. CONCLUSION

        The district court correctly granted Appellee's motion for summary judgment. In addition, the district

court did not abuse its discretion in denying Appellant's motion to amend his complaint.

        AFFIRMED.
