The Court in Johnson v. Lucent Technologies (No. 09-55203, opinion by Judge Betty B. Fletcher available here) determined whether retaliation claims brought pursuant to 42 U.S.C. section 1981 are subject to a four-year statute of limitations provided by 28 U.S.C. Section 1658(a) or the personal injury statutes of the forum state. The Court held that such claims are subject to the four-year statute of limitations as provided by 28 U.S.C. section 1658.
In Lucent, Defendant’s former employee (Johnson), proceeding pro se, filed suit against his former employer, Lucent, on August 11, 2008 for terminating his long-term disability benefits in retaliation for previously filing suit against the company in 2005. Notably, Johnson’s long-term disability benefits stemmed from separate litigation between Johnson, again acting in pro se, and Lucent beginning in 1982 and continuing through 2006.
Lucent moved to dismiss Johnson’s retaliation claim on the grounds that Johnson’s claim was time-barred under the relevant California statue of limitations under California Code of Civil Procedure Section 335.1 providing for a two (2) yearstatute of limitations. The district court dismissed the matter, and Johnson amended his complaint. Upon receipt of the second complaint, Lucent again moved to dismiss. The district court once more ruled that Johnson’s claims were time-barred and refused to grant Johnson equitable tolling. Johnson appealed to the Ninth Circuit.The Court began its opinion by detailing the controlling statutory provisions and relevant case law.
Of paramount importance to the Court’s decision was Section 1981 of the Civil Rights Act of 1866 (“Section 1981”). Section 1981 provides: “All persons within the jurisdiction of the United State shall have the same right in every State and Territory to make and enforce contracts…as is enjoyed by white citizens.”
Section 1981 does not contain a statute of limitations. Prior to 1991, where claims were brought pursuant to Section 1981, the Supreme Court stated that federal courts should apply “the most appropriate of analogous statute of limitations.” Goodman v. Lukens Steel Co., 482 U.S. 656, 660 (1987). In Lucent, that would have resulted in the Ninth Circuit applying the applicable California statute of limitations, which is two (2) years. However, in 1991, three (3) years after the decision in Goodman, Congress passed a catchall four (4) year statute of limitations for actions arising under an “Act of Congress”. 28 U.S.C. section 1658 (a) (“Section 1658”).
The crucial inquiry for the Ninth Circuit in Johnson was whether Johnson’s cause of action arose under the amended language of Section 1981, and thereby subjected the claim to the four (4) year statute of limitations established by Section 1658, or if the statute of limitations as originally enacted by Section 1981 (the applicable statute of limitations of the forum state) applied. If the latter, then the cause of action would be subject to the statute of limitations of the forum state.
To determine which section applied, the Court looked to recent Supreme Court precedent. In Jones v. R.R. Donneley & Sons, 541 U.S. 369 (2004), the Supreme Court held that a cause of action “arises under an Act of Congress,” for purposes of the four (4) year statute of limitations, where the plaintiff’s claim against the defendant is made possible by a post-1990 enactment. In Jones, the appellant’s claims were found to have arose under the amended Section 1981 since the post-1990 enactment allowed for claims deriving from the “termination of contracts.” 42 U.S.C. section 1981. As such, the claims were subject to the four (4) year statute of limitations.
The court ruled that Johnson’s allegations of retaliation, predicated on the termination of his long-term disability benefits, were subject to a four (4) year statute of limitations pursuant to Section 1658 because the retaliation claim being brought by Johnson was only capable of being pursued due to the post 1990 enactment.
The main conclusion to be drawn from Johnson v. Lucent is that claims of retaliation brought pursuant to Section 1981 are now subject to a four (4) year statute of limitations and not the statute of limitations of the forum state.
Todd B. Scherwin was assisted by co-author Colin Calvert, an associate at Fisher & Phillips