More on the statute of limitations for post-contractual section 1981 claims

Following the Supreme Court's decision in May in the case of Jones v. R.R. Donnelley & Sons, Co., the Fourth Circuit in James v. Circuit City Stores, Inc. held in an opinion by Judge Williams, joined by Judge Widener and Judge Motz, that claims under section 1981 "alleging discrimination after the formation of the employment relationship (post-formation conduct claims)" are subject to the four-year statute of limitations under 28 U.S.C. 1658.

This conclusion does not, I would argue, and have argued, reach claims that allege discrimination in the formation of the employment relationship, for which I think the two-year statute applies.

In Williams v. Giant Food Inc., the Fourth Circuit in an opinion by Judge Shedd, joined by Judge Duncan with Judge Widener concurring, did not apply or discuss holding in Jones, for reasons unknown, but then ruled that summary judgment should have been denied on the merits with respect to discrimination within the limitations period, which makes me wonder - how will the district court deal with limitations on remand, if at all.