Pittman v. State of Oregon ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HELEN F. PITTMAN, 
Plaintiff-Appellant,
v. No. 05-35900
STATE OF OREGON, Employment  D.C. No.
CV-05-00509-AJB
Department; DEBORAH LINCOLN,
Director of the Employment OPINION
Department,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted
November 9, 2007—Portland, Oregon
Filed December 5, 2007
Before: Raymond C. Fisher and Marsha S. Berzon,
Circuit Judges, and Judith Barzilay, Judge.*
Opinion by Judge Berzon
*The Honorable Judith Barzilay of the United States Court of Interna-
tional Trade, sitting by designation.
15909
PITTMAN v. STATE OF OREGON 15911
COUNSEL
Glenn Solomon, Portland, Oregon, for the plaintiff.
Marc Abrams, Oregon Department of Justice, Salem, Oregon,
for the defendant.
15912 PITTMAN v. STATE OF OREGON
OPINION
BERZON, Circuit Judge:
Helen Pittman appeals from dismissal of an employment
discrimination claim brought under § 1981 against the
Employment Department of the State of Oregon. The district
court dismissed the § 1981 action, holding that the statute
does not provide a cause of action against states. We affirm.
FACTS
On March 30, 2005, plaintiff Helen Pittman, an African-
American woman, filed a complaint in Multnomah County
Circuit Court alleging employment discrimination on the
basis of race and naming as defendants the State of Oregon
Employment Department and Deborah Lincoln, Director of
the Employment Department. Pittman brought her claim
against the Employment Department under 42 U.S.C. § 1981,
and her claim against Lincoln under 42 U.S.C. § 1983. In her
complaint, Pittman alleged that the Employment Department
was “an administrative agency and a subdivision of the State
of Oregon that does business in Mutlnomah [sic] County.”
On April 12, 2005, defendants removed the case to federal
court and then moved to dismiss the case under Federal Rule
of Civil Procedure 12(b)(6). In their motion to dismiss, defen-
dants argued that there is no right of action to sue a state
under either § 1981 or § 1983, and that a state, “regardless, is
immune from such suits under the 11th Amendment to the
United States Constitution.”1
On August 8, 2005, the district court issued an opinion and
1
Defendants further contended that Deborah Lincoln was not properly
a party to the action because she had not been served. The court held that
Lincoln had not been properly served, and dismissed the action against
her. That ruling has not been challenged on appeal.
PITTMAN v. STATE OF OREGON 15913
order in which it granted the defendants’ motion to dismiss.
Addressing Pittman’s § 1983 claim, the district court noted
that states are not “persons” for purposes of § 1983, so Pitt-
man could not proceed under that statute against the Employ-
ment Department. Turning to Pittman’s § 1981 claim, the
district court held that the State of Oregon waived its Eleventh
Amendment immunity by removing the case to federal court,
but agreed that § 1981 does not permit actions against a state,
citing the Supreme Court’s decision in Jett v. Dallas Indepen-
dent School District, 491 U.S. 701 (1989). Pittman then filed
this appeal, contesting only the district court’s dismissal of
her § 1981 action against the Employment Department.
ANALYSIS
Under this circuit’s case law, § 1981 contains a right of
action against municipalities. Fed’n of African Am. Contrac-
tors v. City of Oakland, 96 F.3d 1204 (9th Cir. 1996). The
plaintiff maintains that Federation should be extended to per-
mit a § 1981 cause of action against a state, while the State
contends otherwise. After surveying the statutory language
and history in light of governing case law, we must agree.
[1] A. We begin by recounting the historical background of
the issue before us. Prior to the amendments brought about by
the Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat.
1071, 42 U.S.C. § 1981 provided:
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 ben-
efit 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, penal-
ties, taxes, licenses, and exactions of every kind, and
to no other.
15914 PITTMAN v. STATE OF OREGON
The Supreme Court interpreted this language to prohibit racial
discrimination by both private parties and state entities in the
making and enforcement of contracts. See Runyon v.
McCrary, 427 U.S. 160, 168-171 (1976); Patterson v.
McLean Credit Union, 491 U.S. 164, 186 (1989) (concluding
that Title VII burden-shifting framework applied to claims of
discrimination by private employers under § 1981) (super-
seded on other grounds by the Civil Rights Act of 1991). Cf.
Jones v. Alfred H. Mayer Co., 392 U.S. 409, 441-43 (1968)
(holding that in enacting § 1982 — which, like § 1981, was
part of § 1 of the Civil Rights Act of 1866 — Congress
intended to reach both private discrimination and discrimina-
tion under color of state law).2
[2] Having held that § 1981 by its terms prohibits private
discrimination as well as discrimination under color of state
law, the Supreme Court in Jett v. Dallas Independent School
District, 491 U.S. 701 (1989), considered whether § 1981 cre-
ated a private right of action to enforce that prohibition
against state actors. Pointing to the fact that the Civil Rights
Act of 1866, as originally enacted, contained a penal provi-
sion “explicitly directed at state officials” while “nowhere . . .
provid[ing] for an express damages remedy for violation of”
§ 1981, the Court concluded that “the express cause of action
for damages created by § 1983 constitutes the exclusive fed-
eral remedy for violation of the rights guaranteed in § 1981 by
state governmental units.” Id. at 720-721, 733. The Court thus
held that the prohibition on discrimination by a state or its
officials contained in § 1981can be enforced against state
actors only by means of § 1983. The primary practical conse-
quence of that holding, highlighted in Jett, was that actions
for vicarious liability would not lie against state actors
2
42 U.S.C. § 1982 provides:
All citizens of the United States shall have the same right, in
every State and Territory, as is enjoyed by white citizens thereof
to inherit, purchase, lease, sell, hold, and convey real and per-
sonal property.
PITTMAN v. STATE OF OREGON 15915
because of the “custom or policy” limitation on actions
against municipalities under § 1983. See Jett, 491 U.S. at 735-
36 (holding that, because § 1983 is the exclusive remedy for
violation of § 1981 by a state actor, “petitioner must show that
the violation of his right . . . was caused by a custom or policy
within the meaning of Monell”) (quotation marks omitted);
Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658,
690-91 (1978).
[3] Two years after Jett, Congress passed the Civil Rights
Act of 1991, Section 101 of which added two new subsections
to 42 U.S.C. § 1981. The new subsection (c) provides:
(c) Protection against impairment
The rights protected by this section are protected
against impairment by nongovernmental discrimina-
tion and impairment under color of State law.
In their reports on the bill, the House Education and Labor
Committee and the House Committee on the Judiciary both
indicated that the purpose of subsection (c) was to codify
Runyon v. McCrary. See H.R. REP. NO. 102-40(I), at 92
(1991), reprinted in 1991 U.S.C.C.A.N. 549, 630 (citing Run-
yon and stating that § 1981(c) “confirms section 1981’s cov-
erage of both public and private sector employment”); H.R.
REP. NO. 102-40(II), at 37 (1991), reprinted in 1991
U.S.C.C.A.N. 694, 731 (subsection (c) “is intended to codify
Runyon v. McCrary”). The legislative history of the subsec-
tion nowhere makes reference to Jett, or to the availability of
a private cause of action against states or state officials.
Pittman contends that the addition of subsection (c) to
§ 1981 overruled Jett to create a cause of action against both
municipalities and arms of the state. Pittman does not con-
tend, nor would the language of the statute suggest, that the
amendment explicitly created a right of action against arms of
the state. She argues, however, that subsection (c) contains an
15916 PITTMAN v. STATE OF OREGON
implied right of action against both municipalities and state
actors.
In determining whether a statute contains an implied pri-
vate right of action, this circuit continues to look to the four-
factor test outlined in Cort v. Ash, 422 U.S. 66 (1975). See
Orkin v. Taylor, 487 F.3d 734, 738 (9th Cir. 2007). Under
Cort, courts consider:
1) “[I]s the plaintiff one of the class for whose
especial benefit the statute was enacted”? Cort, 422
U.S. at 78 (quotation marks omitted).
2) “[I]s there any indication of legislative intent,
explicit or implicit, either to create . . . a [federal]
remedy or to deny one”? Id.
3) “[I]s it consistent with the underlying purposes
of the legislative scheme to imply such a remedy”?
Id.
4) “[I]s the cause of action one traditionally rele-
gated to state law”? Id.
Although we continue to consider the four factors outlined in
Cort, we also note that subsequent Supreme Court decisions
have clarified that “legislative intent” is the “most important
inquiry.” See Orkin, 487 F.3d at 739; Touche Ross & Co. v.
Redington, 442 U.S. 560, 575 (1979) (the “central inquiry [is]
whether Congress intended to create, either expressly or by
implication, a private cause of action”).
All of the other circuits to reach the question have held that
the 1991 amendments and the addition of subsection (c) did
not overrule Jett, and that there is still no cause of action
against municipalities or other state actors. In Butts v. County
of Volusia, 222 F.3d 891 (11th Cir. 2000), for example, the
Eleventh Circuit analyzed both the language of the statute and
PITTMAN v. STATE OF OREGON 15917
the legislative history of the amendments and concluded that
there was no evidence of “Congress’ desire to alter the
Supreme Court’s conclusion in Jett.” Id. at 894. Examining
the language of the amendments, Butts determined that it is
“clear that [§ 1981(c)] creates a right that private or state
actors may violate but does not itself create a remedy for that
violation.” Id. As to the legislative history, the court noted
that the purpose of the amendment was “to codify the
Supreme Court’s decision in Runyon v. McCrary.” Id.; see
also Bolden v. City of Topeka, 441 F.3d 1129, 1137 (10th Cir.
2006) (“[E]ven after the 1991 amendments to § 1981, dam-
ages claims against state actors for § 1981 violations must be
brought under § 1983.”); Oden v. Oktibbeha County, 246 F.3d
458, 463-64 (5th Cir. 2001) (no private cause of action against
state actors under § 1981 even after the amendments); Dennis
v. County of Fairfax, 55 F.3d 151, 156 n.1 (4th Cir. 1995)
(§ 1981(c) did not “overrule Jett’s holding with respect to
municipal liability but only [codified] Runyon v. McCrary”).
[4] We, however, in Federation of African-American Con-
tractors v. City of Oakland, 96 F.3d 1204 (9th Cir. 1996),
concluded that the addition of subsection (c) overruled Jett to
create a cause of action against municipalities. In reaching
this holding, we acknowledged that “the amended 42 U.S.C.
§ 1981 does not expressly authorize private claimants to sue
state actors directly.” Id. at 1210. But we held that “the
amended 42 U.S.C. § 1981 contains a cause of action against
state actors.” Id. at 1214.
Applying the Cort factors, the court determined that “the
statute, by its plain terms, creates federal civil rights in favor
of a class of persons that include[d]” the plaintiffs, a group of
African-American contractors who alleged that they had been
discriminated against on the basis of race by the city of Oak-
land. Id. at 1211. As to legislative intent, the court held that,
although Congress did not mention an intent to overrule Jett,
it did intend to provide “parallel protection against private and
governmental entities”:
15918 PITTMAN v. STATE OF OREGON
Because § 1981(c) affords identical protection
against ‘impairment by nongovernmental discrimina-
tion’ and ‘impairment under color of State law,’ and
because § 1981(c) implicitly codifies an implied
cause of action against private defendants, we infer
that § 1981(c) also contains an implied cause of
action against state actors who ‘impair’ a claimant’s
§ 1981 rights.
Id. at 1213.
The court went on to hold that actions against state actors
who violate federal civil rights “have not been traditionally
relegated to state law,” and that a cause of action was not
inconsistent with the underlying purposes of the legislative
scheme. Id. at 1213-14. In reaching this final conclusion, the
court acknowledged that there was already a remedy for vio-
lations of § 1981 by municipalities under § 1983. It noted,
however, that “there is no alternative enforcement mechanism
in the revised 42 U.S.C. § 1981 itself,” and that implying a
cause of action against municipalities under § 1981 “imposes
no substantive change on federal civil rights law,” because
such actions were already possible under § 1983.3 Id. at 1214.
Notably, the argument that § 1981 contains a cause of action
against municipalities was raised in Federation in an attempt
to free plaintiffs from the obligation to demonstrate a “policy
or custom” as required under Monell to impose liability on
local government units under § 1983. Id (noting that appeal
3
Although Federation refers in parts to “state actors,” it is clear from
the context of the entire opinion — and from Federation’s observation
that its decision would not create a substantive change in the law — that
it focused only on private causes of action against municipalities and other
local government units. Federation involved a challenge to discrimination
by Alameda County. Fed. of African American Contractors v. City of Oak-
land, 96 F.3d at 1205. (Although the caption continued to list “City of
Oakland” as the first defendant, Federation involved an appeal from dis-
missal of the contractors’ first amended complaint, which named only
Alameda County as a defendant).
PITTMAN v. STATE OF OREGON 15919
presents the issue whether § 1981(c) overrules Jett, “and, if
so, whether the Act relieves plaintiffs from alleging that their
civil rights were violated as a result of an official ‘policy or
custom’ ”). Federation ultimately held on the latter question
that the “policy or custom” requirement pertains to municipal-
ities sued under § 1981. 96 F.3d at 1215. The result, as Feder-
ation stressed, was that the availability of a cause of action
under § 1981 worked no practical change in the outcome that
would have obtained under Jett. Id. at 1214.
B. Pittman argues that the reasoning of Federation necessar-
ily applies not only to municipalities, but to arms of the state.
The argument is a substantial one in two respects. First, the
language of § 1981(c) itself does not support any distinction
between municipalities and arms of the state. The statute
merely affirms that it prohibits discrimination “under color of
law,” and both municipal actors and arms of the state act
“under color of law.” Second, much of Federation’s analysis
of whether it is appropriate to imply a private right of action
does not depend on any distinction between municipalities
and state entities. The statute, by its plain terms, creates rights
in favor of individuals who have been discriminated against
in employment on the basis of race. Further, causes of action
against state actors for violation of federal civil rights have
also not traditionally been relegated to state law.
[5] We nonetheless reject the extension of Federation to
suits against arms of the state, for other reasons we conclude
are more weighty. Most notably, the reasoning of Federation
depended in part on its conclusion that implication of a cause
of action against municipalities under § 1981 “imposes no
substantive change on federal civil rights law,” because it
does not expand the remedies available under § 1981 beyond
those already available under § 1983. Id. The Employment
Department argues that, in contrast, recognizing a cause of
action against state actors under § 1981, would, in fact,
expand the remedies available under that statute beyond those
available under § 1983. On examination, that is so.
15920 PITTMAN v. STATE OF OREGON
As the Supreme Court has applied the Eleventh Amend-
ment, “an unconsenting State is immune from suits brought in
federal courts by her own citizens as well as by citizens of
another State.” Edelman v. Jordan, 415 U.S. 651, 662-63
(1974). Municipalities, in contrast, are not entitled to sover-
eign immunity in federal court. See Bd. of Trustees of Univ.
of Ala. v. Garrett, 531 U.S. 356, 369 (2001) (“[T]he Eleventh
Amendment does not extend its immunity to units of local
government.”); Beentjes v. Placer County Air Pollution Con-
trol Dist., 397 F.3d 775, 777-78 (9th Cir. 2005) (Eleventh
Amendment does not extend to municipal corporations or
other political subdivisions that are not arms of the state).
There are, however, exceptions to Eleventh Amendment
immunity. When acting pursuant to its authority under § 5 of
the Fourteenth Amendment, Congress can abrogate the sover-
eign immunity of the states. See Atascadero State Hosp. v.
Scanlon, 473 U.S. 234, 238 (1985) (superseded by statute on
other grounds). Sovereign immunity also does not bar suits
for prospective injunctive relief against individual state offi-
cials acting in their official capacity. See Ex parte Young, 209
U.S. 123, 156-57 (1908). Moreover, a state may waive its
Eleventh Amendment immunity — by, for example, remov-
ing an action to federal court, which is what happened in this
case. See Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535
U.S. 613, 620 (2002) (by removing to federal court, a state
“voluntarily invoke[s]” federal jurisdiction and thereby
waives its immunity).
[6] Applying these principles of sovereign immunity to
cases under § 1983 and § 1981, courts have held that states
enjoy sovereign immunity from suits brought under both stat-
utes. In Quern v. Jordan, 440 U.S. 332 (1979), the Supreme
Court made clear that § 1983 “does not explicitly and by clear
language indicate on its face an intent to sweep away the
immunity of the States” as required for an abrogation of sov-
ereign immunity. Id. at 345. Similarly, we, like all of the
courts of appeal that have reached the issue, have concluded
PITTMAN v. STATE OF OREGON 15921
that states enjoy sovereign immunity under § 1981 in the
absence of waiver. Mitchell v. Los Angeles Cmty. Coll. Dist.,
861 F.2d 198, 201 (9th Cir. 1988) (“[T]he district is a state
entity that possesses eleventh amendment immunity from the
appellants section 1981, 1983, and 1985 claims.”); see also
Singletary v. Missouri Dep’t of Corr., 423 F.3d 886, 890 (8th
Cir. 2005) (joining “other circuits [that] have uniformly held
that a state is immunized from § 1981 liability under the Elev-
enth Amendment”); Freeman v. Michigan Dep’t. of State, 808
F.2d 1174, 1178 (6th Cir. 1987) (Eleventh Amendment pre-
vents relief against a state under § 1981); Sessions v. Rusk
State Hosp., 648 F.2d 1066, 1069 (5th Cir. 1981) (same).
[7] The ability to bring an action against a state is gov-
erned, of course, not only by sovereign immunity, but also by
whether the statute itself creates a cause of action against a
state. As the Supreme Court held in Jett that there was no
cause of action against state actors under § 1981, plaintiffs
wishing to enforce § 1981’s prohibitions against a state actor
were relegated to the cause of action available under § 1983.4
Interpreting § 1983, the Supreme Court has held that the term
“person” under § 1983 encompasses municipalities but not
states. Monell, 436 U.S. at 658 (municipalities); Will v. Michi-
gan Dept. of State Police, 491 U.S. 58 (1989) (arms of the
state). Under § 1983, then, the availability of sovereign immu-
nity is coextensive with the availability of a cause of action
against a state actor, whether a municipality or an arm of the
state. And while Eleventh Amendment sovereign immunity
does not apply in state court, the practical effect of the hold-
4
Section 1983 provides, in relevant part :
Every person who, under color of any statute, ordinance, regula-
tion, custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by
the Constitution and laws, shall be liable to the party injured in
an action at law, suit in equity, or other proper proceeding for
redress . . . .
15922 PITTMAN v. STATE OF OREGON
ing in Will is that actions against arms of the state under both
§ 1983 and § 1981 cannot be brought in either federal or state
court, because the cause of action in § 1983 does not reach
arms of the state.
For this reason, holding that § 1981(c) creates a cause of
action against state actors would bring about some change in
federal civil rights law that was not created by allowing
actions against municipalities. Such a holding would allow
cases in federal court against arms of the state in those
instances in which they waive their Eleventh Amendment
sovereign immunity, as the State has in this case. Perhaps
more importantly, it would allow actions in state court against
arms of the state for violations of § 1981, at least when the
state does not invoke sovereign immunity under its own law
in its own courts.
The Supreme Court has instructed that allowing suits
against states in state court is a significant alteration in the
federal/state balance that must be supported by a clear state-
ment of Congressional intent. In Will v. Michigan Dep’t of
State Police, 491 U.S. 58 (1989), the Supreme Court
addressed the question whether the word “person” in § 1983
includes arms of the state. In holding that it did not, the Court
began by noting that “the question whether a State is a person
under § 1983 [is] squarely before us since the Eleventh
Amendment does not apply in state courts.” Id. at 63-64. The
Court then held that, while “the scope of the Eleventh
Amendment and the scope of § 1983 are [ ] separate issues,”
id. at 66, it was appropriate to look to Eleventh Amendment
cases requiring that where “Congress intends to alter the usual
constitutional balance between the States and the Federal
Government, it must make its intention to do so unmistakably
clear in the language of the statute.” Id. at 65 (quoting Atas-
cadero, 473 U.S. at 242) (internal quotation marks omitted).
The Court viewed it as highly unlikely, given that Congress
did not abrogate state sovereign immunity under § 1983, “that
Congress intended nevertheless to create a cause of action
PITTMAN v. STATE OF OREGON 15923
against States to be brought in state courts, which are pre-
cisely the courts Congress sought to allow civil rights claim-
ants to avoid through § 1983.”5 Id. at 66. Given these
concerns, the Court concluded that § 1983 did not clearly
express Congressional intent to create a cause of action
against arms of the state.
Will, then, suggests that the creation of a right of action
against state actors under a civil rights statute, even where
there is no question of abrogating the state’s sovereign immu-
nity, constitutes an “alter[ation in] the usual constitutional
balance between the States and the Federal Government” for
which “unmistakably clear language” is required. We do not
find it necessary to address here whether “unmistakably clear
language” is always required to find an implied right of action
against a state under a civil rights statute. Will nonetheless
suggests that, at the least, there must be some evidence of
Congressional intent to impose liability on states in order to
find such an implied right of action.
In fact, neither the language nor the legislative history of
the statute suggests any intent to create a private right of
action against arms of the state. Federation is not to the con-
trary, as it did not involve the application of Will; concerned
only municipalities, not states; and stressed that it worked no
practical changes in civil rights law because of the absence of
sovereign immunity protection for municipalities.
5
While Will does provide support for the State’s position, it does not do
so on the basis the state argues in its brief. The State maintains that a hold-
ing that there is a cause of action against a state would, unlike in Federa-
tion, work a substantive change in civil rights law because “state agencies
are immune from lawsuits filed against them under § 1983.” But states are
also immune from suits in federal court under § 1981. Actions under
§ 1981 would still be barred by sovereign immunity in federal courts in
the absence of waiver. The true differences would be with regard to
waived Eleventh Amendment immunity and in the ability to bring § 1981
actions in state court.
15924 PITTMAN v. STATE OF OREGON
C. Our conclusion that § 1981(c) does not create a private
right of action against states is bolstered by developments in
the Supreme Court’s approach to private rights of action that
have occurred since this court issued its decision in Federa-
tion. In Gonzaga University v. Doe, 536 U.S. 273 (2002), the
Supreme Court made clear that, in determining whether a pri-
vate right of action can be implied from a particular statute,
rights-creating language is not determinative:
. . . [E]ven where a statute is phrased in . . . explicit
rights-creating terms, a plaintiff suing under an
implied right of action still must show that the stat-
ute manifests an intent “to create not just a private
right but also a private remedy.”
Id. at 284 (emphasis in original) (quoting Alexander v. Sando-
val, 532 U.S. 275, 286 (2001)). Section 1981(c) is phrased “in
. . . explicit rights-creating terms,” but says nothing about a
private remedy, nor does the legislative history.
The holding in Gonzaga was not a significant departure
from previous Supreme Court case law, which, beginning in
the 1970s, has increasingly emphasized the distinction
between rights and remedies. See Virginia Bankshares, Inc. v.
Sandberg, 501 U.S. 1083, 1102 (1991) (“[R]ecognition of any
private right of action for violating a federal statute must ulti-
mately rest on congressional intent to provide a private reme-
dy.”); Transamerica Mortgage Advisors, Inc. v. Lewis, 444
U.S. 11, 15-16 (1979) (“what must ultimately be determined
is whether Congress intended to create the private remedy
asserted”). Nor does it lead us to believe that Federation can
or must be overruled. See Hulteen v. AT & T Corp., 498 F.3d
1001, 1009 (9th Cir. 2007) (en banc) (“A three-judge panel
must follow a prior circuit decision unless a subsequent deci-
sion by a relevant court of last resort either effectively over-
rules the decision in a case ‘closely on point’ or undercuts the
reasoning underlying the circuit precedent rendering the cases
‘clearly irreconcilable.’ ”). Cf. Day v. Apoliona, 496 F.3d
PITTMAN v. STATE OF OREGON 15925
1027, 1031 (9th Cir. 2007) (“Gonzaga and other recent
Supreme Court cases concerning § 1983 rights have not so
changed the law that it is now irreconcilable with our prior
cases”). Nonetheless, the clarity of the Supreme Court’s
recent command in Gonzaga regarding the insufficiency of
rights-creating language with regard to the implication of a
private cause of action supports our hesitation to extend Fed-
eration further in the absence of any evidence of Congressio-
nal intent to provide a remedy for violations of § 1981 by
arms of the state.6
CONCLUSION
[8] For the foregoing reasons, we hold that § 1981 does not
contain a cause of action against states. The district court’s
dismissal of Pittman’s § 1981 action against the State of Ore-
gon Employment Department is AFFIRMED.
6
We note that, while implied rights of action necessarily require an
intent to create a remedy, such an intent is unnecessary for creation of a
right enforceable under § 1983. See Gonzaga, 536 U.S. at 287 (2002); Ball
v. Rodgers, 492 F.3d 1094, 1103 (9th Cir. 2007) (holding that the “lan-
guage of the [Medicaid] free choice provisions is sufficiently rights-
creating” to be enforced under § 1983) (internal quotation marks omitted).