[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 25, 2008
No. 07-12349
THOMAS K. KAHN
CLERK
D. C. Docket No. 06-00233-CV-HS-S
BRUCE BAKER,
Plaintiff-Appellant,
versus
BIRMINGHAM BOARD OF EDUCATION,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Alabama
(June 25, 2008)
Before DUBINA and BARKETT, Circuit Judges, and SCHLESINGER, * District
Judge.
DUBINA, Circuit Judge:
*
Honorable Harvey E. Schlesinger, United States District Judge for the Middle District of
Florida, sitting by designation.
Appellant Bruce Baker (“Baker”) appeals the district court’s grant of
summary judgment in favor of the Birmingham Board of Education (the “Board”),
dismissing his 42 U.S.C. § 1983 complaint alleging violations of 42 U.S.C. § 1981
as barred by the statute of limitations.
I. BACKGROUND
Baker filed his complaint in January 2006, approximately two and a half
years after he was terminated from his position as a physical education teacher in
an elementary school. Baker’s complaint alleged that the Board violated his rights
under 42 U.S.C. § 1981, by and through 42 U.S.C. § 1983, by: 1) discriminating
against him because of his race; and 2) retaliating against him for activities
protected by § 1981. After the close of discovery, the Board filed a motion for
summary judgment, arguing that 1) Baker’s claims were time-barred; 2) the Board
presented legitimate, non-discriminatory reasons for Baker’s termination; and 3)
the Board could not be held liable for the alleged violations. The district court
found that the two-year § 1983 statute of limitations applied to Baker’s claims and
granted the motion.
II. STANDARD OF REVIEW
“We review the district court’s grant of summary judgment de novo,
applying the same legal standards that bound the district court, and viewing all
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facts and reasonable inferences in the light most favorable to the nonmoving
party.” Cruz v. Publix Super Markets, Inc., 428 F.3d 1379, 1382 (11th Cir. 2005)
(citation and quotation omitted). “Summary judgment is appropriate when ‘there is
no genuine issue as to any material fact and . . . the moving party is entitled to a
judgment as a matter of law.’” Id. (quoting FED. R. CIV. P. 56(c)) “We review de
novo the district court’s interpretation and application of the statute of
limitations.” Brown v. Ga. Bd. of Pardons & Paroles, 335 F.3d 1259, 1261 n.2
(11th Cir. 2003).
III. DISCUSSION
Section 1981 does not provide a cause of action against state actors; instead,
claims against state actors or allegations of § 1981 violations must be brought
pursuant to § 1983. Butts v. County of Volusia, 222 F.3d 891, 892-94 (11th Cir.
2000). “[T]he two-year limitations period of Ala. Code § 6-2-38(l) applies to
section 1983 actions in Alabama.” Jones v. Preuit & Mauldin, 876 F.2d 1480,
1483 (11th Cir. 1989). However, a four-year statute of limitations applies to “civil
action[s] arising under an Act of Congress enacted after” December 1, 1990. 28
U.S.C. § 1658(a). In this case, Baker’s § 1981 claims were made possible by the
1991 amendments to § 1981; thus, those claims arise under a post-1990 enactment.
See Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 124 S. Ct. 1836 (2004).
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The question we now face is which statute of limitations applies to Baker’s claims:
the two-year statute of limitations for § 1983 actions or the four-year statute of
limitations for § 1981 actions. The district court determined that the two-year §
1983 statute of limitations applied and dismissed Baker’s claims as untimely. We
disagree.
No circuit court of appeals has addressed this issue in a published opinion.1
In Palmer v. Stewart County School District, 178 Fed. Appx. 999, 1003 (11th Cir.
2006), we concluded that the two-year § 1983 statute of limitations applied to the
plaintiff’s § 1981 claims. However, because Palmer is an unpublished decision, it
is not binding precedent. See Twin City Fire Ins. Co., Inc. v. Ohio Cas. Ins. Co.,
Inc., 480 F.3d 1254, 1260 n.3 (11th Cir. 2007); 11th Cir. Rule 36-2. The district
courts that have addressed the issue have come to opposite conclusions. See, e.g.,
Williams v. Hawkeye Cmty. College, 494 F. Supp. 2d 1032, 1039-42 (N.D. Iowa
2007) (concluding that the four-year § 1981 statute of limitations applied to §
1981 claims brought under § 1983); Knox v. City of Monroe, — F. Supp. 2d —,
2008 WL 679029, *6 (W.D. La. 2008) (same). But see Bryant v. Jones, 464 F.
Supp. 2d 1273, 1290-92 (N.D. Ga. 2006) (concluding that the two-year § 1983
1
In Harmon v. Patrolman’s Benevolent Association of the City of New York, 199 Fed. Appx.
46, 48 (2d Cir. 2006), the Second Circuit noted that “the applicable statute of limitations on section
1983 claims is . . . 4 years, if the claims are set forth under 28 U.S.C. § 1658(a).”
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statute of limitations applied to § 1981 claims brought under § 1983); Blackledge
v. Ala. Dept. of Mental Health & Mental Retardation, No. 2:06cv321-ID, 2007
WL 3124452, at *10 (M.D. Ala. Oct. 25, 2007) (same).
In Jones, 541 U.S. 369, 124 S. Ct. 1836, the Supreme Court applied a broad
interpretation of 28 U.S.C. § 1658. The Court held that “a cause of action ‘aris[es]
under an Act of Congress enacted’ after December 1, 1990—and therefore is
governed by § 1658’s 4-year statute of limitations—if the plaintiff’s claim against
the defendant was made possible by a post-1990 enactment.” Id. at 382, 124 S. Ct.
at 1845. The Court expressly rejected “an interpretation as narrow as that
endorsed by the Courts of Appeals, under which ‘arising under’ means something
akin to ‘based solely upon.’” Id. at 383, 124 S. Ct. at 1845. Such an interpretation
would improperly restrict § 1658 “to cases in which the plaintiff’s cause of action
is based solely on a post-1990 statute that establishes a new cause of action
without reference to preexisting law.” Id. at 381, 124 S. Ct. at 1844 (citation and
quotation omitted).
In this case, Baker’s claims arise under a post-1990 Act of Congress. Were
it not for the 1991 Act, Baker’s complaint would fail to state a claim under § 1983.
To construe 28 U.S.C. § 1658 in the way advocated by the Appellees would be
inconsistent with the Supreme Court’s interpretation of that statute as set forth in
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Jones. Baker’s claims against the Board were “made possible by a post-1990
enactment” and “therefore [are] governed by § 1658’s 4-year statute of
limitations.”2 Id. at 382.
IV. CONCLUSION
The district court erred in applying the two-year § 1983 statute of
limitations. The statute of limitations applicable to Baker’s claims is 4 years,
pursuant to 28 U.S.C. § 1658. We therefore reverse the district court’s grant of
summary judgment and remand the case for further proceedings consistent with
this opinion.
REVERSED and REMANDED.
2
We find the following language from City of Rancho Palos Verdes, Cal. v. Abrams, 544
U.S. 113, 125 S. Ct. 1453 (2005), instructive:
The statute of limitations for a § 1983 claim is generally the applicable state-
law period for personal-injury torts. On this basis, the applicable limitations period
for respondent’s § 1983 action would presumably be one year. It may be, however,
that this limitations period does not apply to respondent’s § 1983 claim. In 1990,
Congress enacted 28 U.S.C. § 1658(a), which provides a 4-year, catchall limitations
period applicable to “civil action[s] arising under an Act of Congress enacted after”
December 1, 1990. In [Jones, 541 U.S. 369], we held that this 4-year limitations
period applies to all claims “made possible by a post-1990 [congressional]
enactment.” Since the claim here rests upon violation of [a post-1990 congressional
enactment], § 1658 would seem to apply.
Id. at 123 n.5, 125 S. Ct. at 1460 n.5 (citations omitted).
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