FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HITOSHI YOSHIKAWA, 

Plaintiff-Appellee,

 v. 

TROY K. SEGUIRANT, Individually, 

Defendant-Appellant,

and 

CITY AND COUNTY OF 

HONOLULU; GREG TALBOYS; 

AGT CONSTRUCTION, LLC; 

JAMES A. SCHMIT, 

Defendants.

No. 21-15970 

D.C. No. 

1:18-cv-00162-

JAO-RT 

OPINION

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 appealsfrom 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 postdating 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 longstanding 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.