UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT HITOSHI YOSHIKAWA, No. 21-15970 Plaintiff-Appellee, D.C. No. v. 1:18-cv-00162- JAO-RT TROY K. SEGUIRANT, Individually, Defendant-Appellant, OPINION and CITY AND COUNTY OF HONOLULU; GREG TALBOYS; AGT CONSTRUCTION, LLC; JAMES A. SCHMIT, Defendants.

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 he