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Four-Year Limitations for Post-Contract Bias

A Richmond U.S. District Court denies reconsideration of defendant’s motion to dismiss this suit by plaintiff who alleges race discrimination by defendant state university in violation of 42 U.S.C. § 1981; on a first-impression question, the court says the four-year statute of limitations under 28 U.S.C. § 1658 applies, not the two-year statute under 42 U.S.C. § 1983.

Defendants ask the court to dismiss the claim based on § 1983’s two-year statute of limitations. The court holds, however, that the four-year statute of limitations applies to this claim, because plaintiff’s claim arises under the 1991 amendments to § 1981. The 1991 amendment create plaintiff’s legal right in this case so 28 U.S.C. § 1658 supplies a four-year limitations period.

Subsection (b) of 42 U.S.C. § 1981 was adopted in 1991, overturning Patterson v. McLean Credit Union, 491 U.S. 164 (1989). After the amendments, § 1981 now outlaws discrimination not only in the making of contracts, but also after formation of the contract. Since plaintiff claims various forms of harassment on the job (post-formation discrimination), her suit necessarily relies on the 1991 amendment to § 1981.
Section 1658, Title 28 U.S.C., provides a four-year statute of limitations for any cause of action arising under an Act of Congress enacted after Dc. 1, 1990. Thus, ordinarily a claim under the 1991 amendments would have a four-year limitations.

Because defendant is a state actor, however, the question in this case takes on additional complications. Section 1983 provides the exclusive damages remedy for deprivations of constitutional rights under § 1981 by state actors, such as defendants here. Section 1983 provides the vehicle for each of plaintiff’s possible claims, but the amendment to § 1981 creates the plaintiff’s legal right. The issue is whether the statute of limitations depends on the remedy (§ 1983) or the underlying right (as defined in § 1981(b)).

Neither the Supreme Court nor the 4th Circuit has ruled on this issue. A footnote in a Supreme Court decision, City of Rancho Palos Verdes v. Abrams, 544 U.S. 113 (2005), however, provides some guidance. That case indicates that for claims “made possible” by an enactment after 1990, the four-year limitation applies, regardless of the procedural vehicle used to enforce the right. In Baker v. Birmingham Bd. Educ., 531 F. 3d 1336 (11th Cir. 2008), the court held that § 1658’s four-year statute of limitations applies to a suit under the § 1981 amendments against state actors brought pursuant to § 1983. The weight of authority around the country supports the 11th Circuit’s reasoning.

The court holds that the four-year statute of limitations applies, and defendants’ motion for reconsideration is denied.

Mveng-Whitted v. Virginia State University (Gibney) No. 3:11cv00842, Feb. 21, 203; USDC at Richmond, Va. VLW 013-3-094, 6 pp.

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