Chapter 5: Causes of Action
II. Implied Causes of Action
If a federal employee, official, or agency violates your client’s constitutional rights and judicial review is unavailable under a federal statute, such as the APA or Federal Tort Claims Act, or ineffective, then an implied cause of action may be available.
II.A. Implied Constitutional Causes of Action
The federal cause of action for a violation of a constitutional right is based not on an express or implied statutory authorization to sue, but rather on a judicially created right to do so. Such an action is often referred to as a “Bivens action,” a “cause of action arising directly under the Constitution,” or a “constitutional tort” action./283/ This section discusses the circumstances in which a Bivens action may be brought.
Bivens actions are never necessary when a statute authorizes the relief sought. Thus, Bivens actions are not used to sue individuals who act under color of state law because 42 U.S.C. §1983 authorizes all necessary relief in such cases. In contrast, because the APA does not authorize damage suits against persons acting under color of federal law, Bivens actions may be necessary to support a damage claim against an individual federal actor. Before pursuing a Bivens action, the advocate should investigate whether the Federal Tort Claims Act, the Tucker Act, or some other statute authorizes the claim./284/
Although the Court has not overruled Bivens, it has in recent years consistently refused to extend it to any new causes of action. In Correctional Services Corporation v. Malesko, the Court appeared to have limited Bivens actions to a narrow range of claims, probably arising only under the Fourth, Fifth, and Eighth Amendments to the U.S. Constitution./285/
II.A.1. Constitutional Torts
A Bivens action is typically a suit for damages against a defendant who, acting in his or her individual capacity under color of federal law, violated the plaintiff’s constitutional rights. A Bivens action is a judicially created mechanism to afford redress to plaintiffs who lack a statutory cause of action or an adequate statutory remedy or both./286/ The basic elements of a Bivens action are the following:
- the plaintiff has a constitutionally protected right;
- the defendant violated that right;
- the plaintiff lacks any statutory cause of action, or an available statutory cause of action does not provide a remedy against individual officers;
- no “special factors” suggest that the court should decline to provide a judicial cause of action and remedy, and
- an appropriate, judicially manageable remedy, such as money damages, can be imposed./287/
- Most of the Supreme Court decisions in this area address the third, fourth, and fifth elements. Although the Court has not established a precise, bright-line test for these elements, it has articulated some general principles and limitations.
In Bivens, the Court implied a damage remedy under the Fourth Amendment against individual federal law enforcement officers who had allegedly arrested Bivens and searched his home without a warrant or probable cause, causing him mental suffering, humiliation, and embarrassment. At that time, the Federal Tort Claims Act did not provide a remedy./288/ The Court created a federal remedy by implication, reasoning that a state court tort claim would not adequately redress the constitutional wrong suffered by Bivens because the state laws of trespass and invasion of privacy were not intended to remedy the harms that result from a federal agent’s abuse of authority./289/
The Court extended the implied cause of action principle to Fifth Amendment claims in Davis v. Passman./290/ The plaintiff alleged that Congressman Passman violated her Fifth Amendment right to equal protection by firing her from her job in favor of a male./291/ Because Congress had excluded congressional employees from the reach of Title VII, the Court held that Davis had no other remedy, that a damage remedy was judicially manageable, and that Davis could, therefore, sue directly under the Fifth Amendment./292/
In both Bivens and Davis, the plaintiffs had no other available remedy; it was, therefore, a question of “damages or nothing.”/293/ In each case this factor weighed heavily in the Court’s decision to imply a cause of action. However, the Court also created a Bivens action in at least one case in which plaintiff clearly had a cause of action and remedy under the Federal Tort Claims Act. In Carlson v. Green, the Court allowed a Bivens action under the Eighth Amendment against individual federal prison officials who allegedly failed to give an asthmatic prisoner proper medical attention, a failure resulting in his death./294/ The Court decided that a Bivens action was available because Congress had explicitly stated its intent to allow both Federal Tort Claims Act and Bivens actions./295/ Carlson probably marks the high-water mark for the Bivens cause of action; the Supreme Court has declined any further invitations to extend Bivens.
II.A.2. The Limitations on Bivens
Although Bivens, Davis, and Carlson initially seemed to suggest that Bivens actions would be broadly available to fill gaps in federal damage remedies, more recent cases make clear the Court’s reluctance to extend Bivens actions beyond the scope of those earlier cases. Thus, when Congress provides a statutory cause of action without expressly indicating its intent to allow Bivens actions as well (as was the case in Carlson), the Court is unlikely to imply a cause of action.
The Court began to limit Bivens in Bush v. Lucas, a suit by a NASA employee against his supervisor for damages for emotional distress and mental anguish./296/ The plaintiff alleged that he had been demoted and his salary decreased in retaliation for exercising his First Amendment right to speak on a matter of public concern. Although the employee obtained reinstatement and full back pay through the civil service administrative process, that process did not allow damages for emotional distress or mental anguish. Acknowledging that “existing remedies do not provide complete relief for the plaintiff,” the Court, nevertheless, refused to create a Bivens action./297/ The Court concluded that the policy question of whether an employee should be permitted to recover damages from an employer was more appropriately left to Congress./298/ Because Congress did not provide for individual liability within the existing “elaborate” and “comprehensive” remedial civil service scheme, the Court refused to create an implied right of action. The Court stated:
When Congress provides an alternative remedy, it may, of course, indicate its intent—by statutory language, by clear legislative history, or perhaps even by the statutory remedy itself—that the Court’s power should not be exercised . In the absence of such a congressional directive, the federal courts must make the kind of remedial determination that is appropriate for a common-law tribunal, paying particular heed, however, to any “special factors counseling hesitation” before authorizing a new kind of federal litigation./299/
Bush treated the existence of a congressionally designed remedial scheme as a “special factor counseling hesitation” in the Court’s analysis of whether to imply a constitutional cause of action. This suggests that the more comprehensive the remedial scheme, the less willing the Court is to imply a Bivens action. Thus, the Court declined to imply a right of action in Chappell v. Wallace, which was a case seeking damages from superior military officers for violating a constitutional right to be free from racial discrimination./300/ The Court deemed the existence of a separate, congressionally enacted “comprehensive internal justice system to regulate military life” and “the unique disciplinary structure of the Military Establishment” to be “special factors” militating against an implied right of action./301/
In 1988 the Court confirmed that it would not create a Bivens remedy when Congress provided meaningful remedies unless Congress explicitly preserved that remedy. In Schweiker v. Chilicky, the Court refused to imply a cause of action under the Fifth Amendment due process clause in favor of social security disability recipients whose benefits had been terminated in a continuing disability review./302/ The plaintiffs sued federal and state officials responsible for the continuing disability review. The plaintiffs alleged that the officials terminated the recipients in clear violation of the procedural requirements of the Fifth Amendment. In language that creates a presumption against Bivens actions when Congress acts, the Court stated:
In sum, the concept of “special factors counseling hesitation in the absence of affirmative action by Congress” has proved to include an appropriate judicial deference to indications that congressional inaction has not been inadvertent. When the design of a government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration, we have not created additional Bivens remedies./303/
As one court subsequently put it,“[i]t may safely be said, therefore, that the dictum of Carlson v. Green which urged the creation of constitutional torts unless Congress had provided a remedial scheme equivalent to Bivens and had expressly stated that the remedy was exclusive, is not good law.”/304/
In 2001, the Court decided Correctional Services Corporation v. Malesko, which, again, demonstrated the Court’s unwillingness to extend Bivens and, indeed, willingness potentially to limit it./305/ In Malesko the Court used strong language to reject a Bivens suit by a federal inmate against a private corporation that operated his halfway house under contract with the federal Bureau of Prisons. The Court referred to Bivens as a “limited holding” and noted that the Bivens Court’s exercise of its authority to imply a constitutional tort had relied heavily on J.I. Case Co. v. Borak,/306/ a case it had since “abandoned.”/307/ The Court noted that, in the decades subsequent to Bivens, the Court had extended its holding only twice and that it had otherwise “consistently refused to extend Bivens liability to any new context or new category of defendants.”/308/
This language could be considered dicta because the Court went on to emphasize that the defendant was a private corporation, whereas the Bivens action had been created to deter misconduct of individual federal officers. The Court compared the case to Federal Deposit Insurance Corporation v. Meyer, where it had refused to extend Bivens to permit suits against a federal agency even though the agency was otherwise amenable to suit because Congress had waived sovereign immunity./309/ Such suits, the Court reasoned, would not advance the core purpose of the Bivens remedy to deter individual federal officers from committing constitutional violations./310/ The Court noted that a Bivens action against a private facility would similarly not deter individual violations of the Constitution. Moreover, federal prisoners housed in private facilities actually enjoyed possible alternative remedies (such as tort remedies) unavailable to inmates in government facilities. The Court asserted that a Bivens remedy had “never [been] considered a proper vehicle for altering an entity’s policy”; rather, “injunctive relief has long been recognized as the proper means for preventing entities from acting unconstitutionally.”/311/
Thus, the Court had several bases for distinguishing the Malesko facts from the Bivens situation and could have reached its conclusion without using any of the strong limiting language quoted above. The Court’s decision to go out of its way to cabin the Bivens remedy within very narrow parameters signals a firm lack of willingness to extend Bivens to additional constitutional claims./312/
The Bivens remedy has, therefore, been extended as far as it is likely to go, at least for the foreseeable future./312a/ The Court has implied a cause of action under the Fourth Amendment right to be free from unreasonable searches and seizures, the equal protection component of the Fifth Amendment due process clause, and the Eighth Amendment right to be free from cruel and unusual punishment. Most recently, the Court clearly assumed the viability of Bivens claims in at least one First Amendment context. In Hartman v. Moore, the Court held that a Bivens plaintiff who claims that government employees violated his First Amendment rights by participating in a retaliatory criminal prosecution, must plead and prove the absence of probable cause underlying the criminal case./313/ Some lower federal courts, more than a decade ago, implied Bivens-type causes of action in appropriate cases under the First Amendment/314/ and the Sixth Amendment./315/
It is doubtful that the Supreme Court would extend Bivens today or that lower courts would follow those latter, more expansive precedents today./316/ Indeeed, relying on the “special factor” language in Schweiker v. Chilicky, courts no longer afford plaintiffs a Bivens remedy, even for violations of the Fourth and Fifth Amendments, if the absence of an alternative statutory remedy is deemed to reflect a Congressional intent to preclude a Bivens remedy./317/
On the other hand, although the Court has so far declined to extend Bivens beyond the Fourth, Fifth, and Eighth Amendments, the Court seems to be still of the view that Bivens retains vitality./318/ Indeed, although the decision tightens the pleading standard, Hartman implicitly approved of a Bivens remedy in a First Amendment retaliation case. Nor does Malesko offer any reason to believe that Bivens actions that claim damages for violations of the Fourth, Fifth, and Eighth Amendments may not still be brought against individual federal agents if the absence of an appropriate remedy does not reflect Congressional intent to preclude such a remedy.
II.B. Implied Private Statutory Causes of Action
As discussed earlier in this Chapter, many specific federal statutes expressly provide a right of action. When an express right specific to a particular statute is unavailable, advocates must determine whether a claim may be brought under the general authority of statutes such as the APA or Section 1983. Those statutes, of course, have their limitations, including a failure to extend to private parties who are not state actors. Consequently, advocates may need to inquire whether a private right of action may be implied in a particular federal statute. As explained below, such inquiry underwent a significant change as a result of the Supreme Court’s decision in Alexander v. Sandoval./319/
II.B.1. The “Ancien Regime”
To understand the doctrinal evolution that has taken place in this area, one must understand the development of the implied-right-of-action doctrine during the Warren Court era. During that period, the Court declared that “[i]t is the duty of the courts to be alert to provide such remedies as are necessary to make effective the congressional purpose” expressed by a statute./320/ The Supreme Court has since described this approach as the “ancien regime,” which the Court has “sworn off.”/321/
In Cort v. Ash, the Court established a four-prong test for implying a right of action under a federal statute: (1) did Congress intend to create a right of action; (2) is plaintiff a member of the group to be specially benefited by the statute; (3) is an implied right of action consistent with the overall statutory scheme or purpose, and (4) how was the statute enforced in the past and what other enforcement mechanisms are available to plaintiff?/322/
As the test was originally formulated, no one prong was determinative. However, subsequent cases emphasized that the first Cort factor, congressional intent, is the primary focus of inquiry./323/ Nevertheless, until 2001, many courts continued to consider all four Cort factors when determining whether a private right of action can be inferred, although courts frequently addressed the last three Cort factors simply in terms of the insight they offered in ascertaining congressional intent.
Even under the standard Cort analysis, the most accurate indicator of congressional intent has been statutory language creating an express right or duty focused specifically on the benefited individuals bringing the action./324/ If the statute sets out a clear substantive right, notably through such “rights-creating” language, then further affirmative evidence of congressional intent to create a right of action is unnecessary./325/ A right to enforce can also be inferred from the language, structure, or circumstances of the enactment./326/
In Merrill Lynch, Pierce, Fenner & Smith v. Curran, the Court made two important points regarding the interplay between judicial implication of private rights of action and legislative intent./327/ First, because judicial implication of a right turns on congressional intent, the implication of a right of action does not violate separation of powers./328/ Second, if the judiciary had already implied a right of action when Congress amended the statute, the relevant inquiry is whether Congress intended to preserve that remedy./329/ The grant of one or more express rights of action in a statute, the Court also stated, does not preclude additional implied rights of action./330/
The second Cort v. Ash factor, whether the plaintiff is a member of a group intended to be specially benefited by the statute, turns on statutory language that identifies the class to be benefited./331/ If a statute focuses on a particular class of persons and directs particular actions for their benefit, rather than merely articulating a generalized ban on proscribed conduct, then the statute may imply a right of action./332/ Thus, the inquiry into whether Congress intended specially to benefit an identifiable class is itself an inquiry into congressional intent. Indeed, Transamerica and Merrill Lynch indicate that congressional intent is the primary consideration: if no congressional intent is discernible, then a court may not infer a right of action from the third and fourth Cort v. Ash factors./333/
Developed in Herman and MacLean v. Huddleston, the Court held that the the third Cort v. Ash factor—whether a private right of action is consistent with the overall plan or purposes of the statute—is satisfied when the right of action either is necessary to achieve the statutory purpose or at least furthers that purpose./334/
The last inquiry looks at two related issues and the light they shed on congressional intent: (1) how the statute has been enforced in the past and (2) other means of enforcement available to plaintiff in the future. First, the court must be satisfied that the remedy sought is not one traditionally relegated to state law. If the federal government has long-standing involvement in the substantive area covered by the federal enactment in question, then this factor would militate in favor of implying a right of action based on the corrective federal law. This would also be the case if, for example, the enactment was intended to correct state deficiencies, to remedy identified problems, or to improve the quality of assistance or services provided by states. Plaintiffs should not be relegated to state law remedies, the inadequacy of which prompted the federal legislation in the first place./335/
In the second prong of the fourth Cort factor, the court considers whether any other statutes provide an express remedy or any agency enforcement mechanism. Relief under some federal statutes is clearly limited to enforcement by federal agencies./336/ However, Cannon makes clear that an administrative remedy is not exclusive when the injured party cannot participate in the agency enforcement scheme./337/ As pointed out in connection with the determination of congressional intent, the availability of other rights of action expressed in a statutory scheme does not preclude implying a right of action from another provision./338/
II.B.2. The Impact of Wright and a Comparison Between Section 1983 and Implied Rights of Action
Before the 1987 decision in Wright v. City of Roanoke Redevelopment and Housing Authority,/339/ there were a limited number of cases that found implied private rights of action in housing cases./340/ Plaintiffs found broader success, however, in decisions implying a private right of action based on federal antidiscrimination statutes./341/ Wright held that the Brooke Amendment to the federal Housing Act gave public housing tenants “rights” to enforce limitations on rent through Section 1983. Although it was a Section 1983 decision, Wright also had important ramifications for implied private rights of action.
Wright made it clear that the test for determining whether private parties have an implied private right of action is different from the test for determining whether they have a Section 1983 right of action. Although the defendant must raise the defense of no private right of action, the treatment of that defense varied with whether the plaintiff asserts a right as expressly provided under Section 1983 or as implied directly from a statute. The plaintiff who claims a right of action by implication had to affirmatively demonstrate congressional intent to create a right of action. By contrast, defendants asserting no Section 1983 right of action had to overcome the presumption of enforceability and had the burden of affirmatively demonstrating congressional intent to preclude enforcement.
The distinction between a Section 1983 action and an implied cause of action on the issue of congressional intent lay in the burden of proof. However, in both types of cases, the question of whether Congress intended to create enforceable rights was the same. In Wright the Court followed the same approach as in Cannon./342/ The approach was to analyze whether the underlying federal law created substantive rights./343/ If the underlying federal law does confer substantive rights on particular program beneficiaries, then, under the Cannon presumption, a court would hold that Congress intended to create a private right of action in implied-right-of-action cases.
When Section 1983 is available as a remedy, it is clearly superior to an implied cause of action. Section 1983 authorizes a full panoply of remedies; by contrast, an implied right of action may authorize only limited remedies. For example, a court may conclude that Congress intended private enforcement with respect to only one form of relief./344/ Another major advantage of a Section 1983 action is that 42 U.S.C. § 1988, discussed in more detail in Chapter 9 of this Manual, authorizes attorney fees.
After Gonzaga University v. Doe,/345/ discussed in greater detail above, the Section 1983 and implied private rights of action analysis have merged:
As distinguished from the private right of action situation, [p]laintiffs suing under § 1983 do not have the burden of showing an intent to create a private remedy because § 1983 generally supplies a remedy for the vindication of rights secured by federal statutes....Once a plaintiff demonstrates that a statute confers an individual right, the right is presumptively enforceable by § 1983. But the initial inquiry—determining whether a statute confers any right at all—is no different from the initial inquiry in an implied right of action case, the express purpose of which is to determine whether or not a statute “confers rights on a particular class of persons.”/346/
II.B.3. The Impact of Sandoval: A New Test or a Gloss on the Cort Test?
The decision in Alexander v. Sandoval may be interpreted as narrowing the inquiry even further. Before discussing Sandoval in detail, however, we cover the application of the Cort v. Ash test to the extent that Cort is still viable after Sandoval./347/
Alexander v. Sandoval involved a challenge to the Alabama Department of Safety’s refusal to administer its driver’s examination in a language other than English./348/ The plaintiff was a Mexican immigrant who could read road signs but did not have the English skills necessary to take a written examination. She sued, arguing that the driver’s license rule violated the regulations implementing Title VI of the Civil Rights Act of 1964. Title VI forbids discrimination based on race or national origin in any program or activity receiving federal funds. The regulations interpret national origin discrimination to include actions that did not intend to discriminate but had that effect because of factors having a disparate impact, such as an individual’s limited ability to speak English.
The Supreme Court in Sandoval found it “beyond dispute that private individuals may sue to enforce § 601” of the statute./349/ However, private individuals, the Court held, do not have a private right of action to enforce the “disparate impact” regulations promulgated pursuant to Section 602 of Title VI. The distinction seems to be that the Section 602 regulations prohibited conduct that the statute itself permitted./350/ According to the Court, “[l]anguage in a regulation may invoke a private right of action that Congress through statutory text created, but it may not create a right that Congress has not.”/351/
In analyzing the implied-right-of-action issue, the Court found the existence or absence of “rights-creating language” to be critical to the inquiry./352/ Sandoval suggests that congressional intent is the only issue, that is, does the statute “display[] an intent to create not just a private right but also a private remedy”?/353/ That intent is to be determined almost exclusively based on the text and structure of the statute; the Court expressed disdain for the Borak approach of inferring remedies that would be necessary to effectuate the congressional purpose./354/ Focusing on the four corners of the statute, including its “text and structure,” the Court made clear that the statute must evince a “congressional intent to create new rights.”/355/
In future cases involving regulations, advocates are best advised to seek enforcement of a statute, rather than regulations promulgated pursuant to the statute. In Jackson v. Birmingham Board of Education, for example, the Supreme Court reversed the Eleventh Circuit’s holding that Sandoval precluded enforcement of a Title IX regulation prohibiting retaliation./356/ The Court held that Sandoval was irrelevant because such retaliation is prohibited by the statute’s text./357/ Alternatively, advocates should emphasize Sandoval’s language which left room for the possibility that a regulation “may invoke a private right of action that Congress through statutory text created, [even though] it may not create a right that Congress has not.”/358/
Alexander v. Sandoval will have a significant effect on the ability of individual plaintiffs to enforce federal statutes against private defendants. At the very least, Sandoval is part of a trend in the Supreme Court to limit individuals’ access to the courts to enforce their rights arising under federal law. Sandoval will have an impact more specifically on the use of Title VI as a vehicle for representing certain legal aid clients. Private enforcement of Title VI against organizations and individuals will be limited to situations where intentional discrimination can be shown. Individuals will no longer be able to enforce the “disparate impact” regulations. Because violations of equal protection and of Title VI itself require proof of discriminatory intent, and proving such intent is quite difficult, the Title VI regulations have been an enormously important weapon in civil rights litigation./359/ They had been, for example, the primary source of law in actions seeking fair treatment for people with limited proficiency in the English language.
The Sandoval decision also means that the only way these presumably valid regulations can be enforced is if the federal funding agency decides to cut off funds to recipients who engage in practices with a racially disparate effect. This approach relies on the political branches of government rather than the courts and, in particular, relies on proactive steps being taken by federal agencies that are persistently underfunded and understaffed.
II.B.4. After Sandoval
At a minimum, Sandoval solidified the case law that seemed to apply the four-prong Cort test merely as variations on the theme of congressional intent:/360/ “Sandoval is the culmination of [the post-Cort] trend, announcing that ‘statutory intent . ..is determinative.’ The other three Cort factors remain relevant only insofar as they provide evidence of Congress’s intent.”/361/ Another interpretation is also possible; Sandoval may well have overruled Cort sub silencio and replaced the four-prong test with a simple congressional intent test, a test where the statutory text and structure are the “begin[ning]” and “end” of the analysis./362/ Sandoval did not, however, expressly overrule Cort and, indeed, cited it with favor in parts of the opinion. Some courts, even after Sandoval, continued to apply the Cort four-prong analysis./363/ Most, however, do not./364/ The full implications of this decision are not yet known./365/
II.C. The Preemption Cause of Action
Like 42 U.S.C. § 1983, preemption is another vehicle for challenging state or local governmental activities under federal laws that do not contain an explicit right of action. Preemption is typically invoked by businesses trying to avoid state regulation or state law causes of action. But, preemption claims are also useful to public interest advocates seeking to invalidate state or local laws that conflict with federal law.
Unlike Section 1983, preemption claims do not provide damages or attorneys fees. However, preemption can be used to enforce statutory provisions that do not create “rights” enforceable under Section 1983, and to enforce regulations that are unenforceable through an express or implied statutory cause of action. Therefore, preemption claims provide an important alternative when Section 1983 is not available or is in question.
II.C.1. Types of Preemption
The preemption doctrine arises from the Supremacy Clause of the Constitution./366/ If the provisions of a state law are “inconsistent with an act of Congress, they are void, as far as that inconsistency extends.”/367/ Although preemption is most often used defensively, the Supreme Court has long entertained offensive preemption claims./368/
The three general categories of preemption are: (1) express (a federal statute explicitly overrides state law); (2) field (a federal law “occupies the field” and ousts even consistent state laws), and (3) conflict (state legislation is permissible but only if it does not conflict with federal law)./369/ All three categories are theoretically available to public interest advocates, but conflict preemption is most likely to be useful to enforce the statutes that protect low income persons, like the Medicaid Act or federal housing laws.
Conflict preemption encompasses both direct conflicts and situations where state law stands “as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”/370/ Conflict preemption can occur even if federal and state laws have the same goal or if the federal statute gives states the primary authority over an area./371/
II.C.2. Jurisdiction and the Cause of Action
The Supreme Court has upheld federal-question jurisdiction over preemption claims. In Shaw v. Delta Air Lines, the Court stated:
It is beyond dispute that federal courts have jurisdiction over suits to enjoin state officials from interfering with federal rights. (citation omitted) A plaintiff who seeks injunctive relief from state regulation, on the ground that such regulation is pre-empted by a federal statute which, by virtue of the Supremacy Clause of the Constitution, must prevail, thus presents a federal question which the federal courts have jurisdiction under 28 U.S.C. § 1331 to resolve./372/
Although the Court has never explicitly endorsed the preemption cause of action, it has done so implicitly. In Shaw, after finding jurisdiction, the Court proceeded to rule on the merits. In Verizon Maryland Incorporated v. Public Service Commission, the defendant argued that the plaintiffs did not have a cause of action under the Telecommunications Act. After noting that courts must find at least an “arguable” cause of action to uphold jurisdiction, the Court found “no doubt” that there was jurisdiction to entertain a suit seeking relief ‘“on the ground that such regulation is pre-empted by a federal statute which, by virtue of the Supremacy Clause of the Constitution, must prevail….’”/373/
As in Shaw, the Supreme Court has routinely addressed the merits in many other preemption cases. Between 1996 and 2003 the Supreme Court decided nine cases in which plaintiffs sought to enjoin state or local laws or regulations that allegedly conflicted with federal law: “In all nine … cases, the Supreme Court reached the merits of plaintiffs’ claims without considering whether the allegedly preemptive federal statute accorded plaintiffs a private right of action,” either directly under the statute or through Section 1983./374/ The Court has since ruled on preemption claims in a more recent case./375/ Consequently, commentators have concluded that “the rule that there is an implied right of action to enjoin state or local regulation that is preempted by a federal statutory or constitutional provision … is well-established.”/376/ Most courts of appeal have also explicitly recognized a preemption cause of action implied from the Supremacy Clause./377/ Given the extensive body of affirmative preemption cases from the nineteenth century/378/ to the present, it is hard to imagine the Supreme Court questioning the cause of action today.
Many federal statutes that public interest advocates seek to enforce are passed under Congress’ authority under the Spending Clause. In the Section 1983 context, the Supreme Court has indicated reluctance about private enforcement of spending legislation./379/ That reluctance, however, does not extend to preemption cases. The Supreme Court has long found that Spending Clause legislation is entitled to supremacy just like other federal legislation:
There is of course no question that the Federal Government, unless barred by some controlling constitutional prohibition, may impose the terms and conditions upon which its money allotments to the States shall be disbursed, and that any state law or regulation inconsistent with such federal terms and conditions is to that extent invalid./380/
In a line of cases in the 1960s and 1970s, the Court applied preemption principles to enjoin state welfare laws that conflicted with federal welfare statutes. Although most of the welfare cases do not use the term “preemption”¾and were also brought under Section 1983¾they explicitly rest on the finding that a state law that conflicts with federal law is “invalid under the Supremacy Clause.”/381/ Indeed, on occasion, the Court used the language of preemption./382/ Lower courts continue to cite these older welfare Supremacy Clause cases./383/
More recently, the Supreme Court held that the Medicaid Act, a Spending Clause statute, preempts a state lien statute in the 2006 case, Ahlborn v. Arkansas Department of Health Services./384/ Ahlborn is the third time in the last ten years that the Court has reached the merits of preemption claims involving the Medicaid Act./385/ The Court’s unanimous decision in Ahlborn did not discuss or have any difficulty with the preemption cause of action. In the past, Justices Scalia and Thomas have questioned whether Spending Clause legislation may be enforced through preemption, but the seven other justices have ignored their comments and expressed no concern about reaching the merits of Spending Clause preemption claims./386/ The courts of appeal have also had no trouble rejecting the idea that Spending Clause statutes have less force under the Supremacy Clause than other statutes./387/
II.C.3. Elements of a Preemption Claim
Certain federal laws can preempt various types of state action. Generally applicable only to governmental officials or entities, preemption provides limited relief.
II.C.3.a. Federal Laws That Have Preemptive Force
The Supremacy Clause expressly gives the federal Constitution and federal statutes preemptive force. In addition, “a federal agency acting within the scope of its congressionally delegated authority may pre-empt state regulation.”/388/ Indeed, “[f]ederal regulations have no less preemptive effect than federal statutes.”/389/ Federal agency orders and possibly even lesser forms of agency action can also preempt state or local action./390/ Therefore, preemption can be used to enforce regulations that are unenforceable under Section 1983 or an implied right of action./391/
Federal agency action may preempt state law even if the federal statute is ambiguous or does not conflict with or preempt the challenged state action./392/ In analyzing the preemptive effect of federal agency action, a “narrow focus on Congress’ intent … is misdirected,” because an agency’s ability to preempt “does not depend on express congressional authorization to displace state law.”/393/ Rather, the courts have applied traditional, deferential Chevron analysis to determine whether the agency has acted within the scope of its authority./394/ Thus, agency action is treated quite differently here than in the context of implied rights of action or Section 1983, where Congress’ intent to create rights or a right of action must be unambiguously shown in the statute itself./395/
II.C.3.b. State Action that Can Be Preempted
State or local laws or regulations are clearly subject to federal preemption. The Supreme Court has also applied preemption to invalidate state or local administrative orders./396/ Preemption challenges to other forms of state action are less common. The Supreme Court and lower courts have on occasion sustained preemption suits against official state policies, especially if they are codified in writing./397/ Policies may also be challenged by invalidating a law or regulation to the extent that it is interpreted to permit or authorize the challenged action or policy./398/
However, advocates should shy away from asserting preemption challenges based on unwritten policies, practices, customs, usage, inaction or isolated violations, unless there is clear written evidence of a policy./399/ The preemption doctrine may yet develop to address those situations. For now, however, without something tangible to preempt, one risks making bad law by bringing preemption claims in these non-traditional contexts.
One alternative way of challenging an unwritten policy is to challenge an agency order that reflects that policy. For example, if a state Medicaid agency or public housing authority denies an individual’s benefits based on an unwritten policy, the order could be invalidated as in conflict with and preempted by federal law. Of course, in those situations the individual may also be able to appeal the determination directly on the same grounds.
II.C.3.c. Defendants Subject to Preemption
Like Section 1983, preemption generally applies only to governmental officials or entities, although it might be used in isolated situations in actions between private parties. In the defensive context, preemption issues routinely arise in disputes between private parties when the defendant alleges that federal law preempts the plaintiff’s state law cause of action. One can also imagine private cases in which the defendant justifies its conduct based on a state law or regulation that the plaintiff asserts conflicts with federal law./400/
II.C.3.d. Relief Available
Preemption’s major drawback is that it only provides injunctive and declaratory relief and not damages or attorneys fees. Section 1983, of course, explicitly provides for damages,/401/ but there is no source of authority to award damages under the Supremacy Clause./402/ Bivens is the only context in which the Supreme Court has implied a damages remedy under the Constitution, and, in recent years, the Court has been extremely reluctant to extend the remedy./403/ Moreover, the general “American rule” is that parties bear their own litigation costs/404/. For Section 1983 actions, 42 U.S.C. § 1988 specifically permits attorneys fees. There is no analogous authority to award fees in preemption claims under the Supremacy Clause.
These limitations, however, may make preemption claims less vulnerable to attack. Although the Supreme Court has restricted the use of implied rights of action, Section 1983, and Bivens claims, those claims are often controversial precisely because they permit damages and attorneys fees./405/ In its most recent decision declining to extend Bivens, for example, the Court made clear that “unlike the Bivens remedy, which we have never considered a proper vehicle for altering an entity’s policy, injunctive relief has long been recognized as the proper means for preventing entities from acting unconstitutionally.”/406/ Thus, the preemption cause of action’s weakness--lack of damages--may also be its strength.
With respect to injunctive relief, the typical relief in a preemption case is an order invaliding the state law or regulation and enjoining its enforcement./407/ If plaintiffs do not wish to completely eliminate the state law, it can be invalidated “insofar as it violates the federal statute.”/408/ Advocates should attempt to phrase relief in typical, negative, preemption terms and use caution when seeking affirmative injunctions. Nevertheless, the power to invalidate a law, regulation, or administrative order may in the end give the plaintiffs the affirmative relief they seek. For example, when the Supreme Court invalidates a state utility commission rate order, the utility is not left without rates. Rather, the case is remanded and the state agency will reform its order consistent with federal law./409/ Advocates must simply be careful to phrase their pleadings in classic preemption terms so that courts will be comfortable using this line of cases in public interest cases.
II.C.4. The Relationship Between Section 1983 and Preemption Claims
Defendants attempting to avoid preemption claims often cite the Supreme Court’s holdings in Golden State Transit Corporation v. City of Los Angeles (Golden State II) and Chapman v. Houston Welfare Rights Organization that “the Supremacy Clause, of its own force, does not create rights enforceable under Section 1983” and “is not a source of any federal rights.”/410/ Defendants also invoke the statement from Golden State II, that “a Supremacy Clause claim based on a statutory violation is enforceable under Section 1983 only when the statute creates ‘rights, privileges, or immunities’ in the particular plaintiff.”/411/
However, these statements merely indicate that the Supremacy Clause cannot be the source of the constitutional “right” protected under Section 1983 or its related jurisdictional statute./412/ In Chapman, the plaintiffs were attempting to fit a preemption claim within the civil rights jurisdictional statute in order to avoid the prior amount-in-controversy requirement for federal question jurisdiction./413/ In Golden State II, the plaintiffs argued that their preemption claim was also a Section 1983 claim that entitled them to attorneys fees. The holdings in those cases say nothing about the scope of the Supremacy Clause itself or of an independent preemption cause of action. The preemption cause of action is distinct from Section 1983, not a different way of using that statute. Therefore, cases interpreting Section 1983 or examining its requirements are not applicable to preemption claims.
A federal statute may, therefore, be enforced through preemption even if the statute does not create individual “rights” within the meaning of Section 1983./414/ The text of Section 1983 protects only “rights, privileges or immunities,” and courts, therefore, must consider whether Congress intended a statute to create a “right.” Preemption claims, however, arise from the Supremacy Clause, which has a different purpose and contains no similar language: “In this type of action, it is the interests protected by the Supremacy Clause, not by the preempting statute, that are at issue.”/415/ Preemption under the Supremacy Clause “concerns the federal structure of the Nation rather than the securing of rights, privileges, and immunities to individuals.”/416/
The Supreme Court has made it clear that preemption claims may be brought even when the plaintiff does not have a claim under Section 1983. In Golden State II, the majority observed: “Given the variety of situations in which preemption claims may be asserted, in state and federal court, it would obviously be incorrect to assume that a federal right of action pursuant to § 1983 exists every time a federal rule of law pre-empts state regulatory authority.”/417/
The dissenters made the point even more clearly. Although they disagreed with the majority about the plaintiff’s Section 1983 claim, Justice Kennedy wrote:
By concluding that [plaintiff] Golden State may not obtain relief under Section 1983, we would not leave the company without a remedy. Despite what one might think from the increase of litigation under the statute in recent years, Section 1983 does not provide the exclusive relief that the federal courts have to offer…. [P]laintiffs may vindicate … pre-emption claims by seeking declaratory and equitable relief in the federal district courts through their powers under federal jurisdictional statutes. These statutes do not limit jurisdiction to those who can show the deprivation of a right, privilege, or immunity secured by federal law within the meaning of § 1983./418/
The Supreme Court has also entertained numerous preemption claims on the merits under statutes that do not confer “rights” on plaintiffs enforceable through Section 1983. For example, in Pharmaceutical Research & Manufacturers Assocation v. Walsh (PhRMA), seven justices considered the plaintiffs’ preemption claim on the merits – and three of the conservative justices would have ruled in their favor – even though the Medicaid Act almost certainly does not give drug companies a right enforceable under Section 1983 to sell their drugs to Medicaid recipients./419/ Indeed, the First Circuit’s opinion in PhRMA, which the Supreme Court affirmed, explicitly held that the plaintiff was not attempting “to enforce rights under the Medicaid Statute … but rather a preemption-based challenge under the Supremacy Clause…. [R]egardless of whether the Medicaid statute’s relevant provisions were designed to benefit PhRMA, PhRMA can invoke the statute’s preemptive force.”/420/
Lower courts have expressly concluded that plaintiffs may pursue preemption claims absent a statutory right of action under Section 1983 or a claim directly under the federal statute at issue./421/ As the Third Circuit stated:
We know of no governing authority to the effect that the federal statutory provision which allegedly preempts enforcement of local legislation by conflict must confer a right on the party that argues in favor of preemption. On the contrary, a state or territorial law can be unenforceable as preempted by federal law even when the federal law secures no individual substantive rights for the party arguing preemption./422/
Although some of these courts phrase their discussions in terms of subject matter jurisdiction, they upheld preemption claims on the merits when Section 1983 or implied causes of action failed./423/
Policy reasons also underlie courts’ willingness to recognize preemption claims while rejecting claims under Section 1983 or under the statute directly. Because damages and attorneys fees are not available, courts have less concern about imposing preemption claims on state actors. The policy concerns are related to those that led the Supreme Court to adopt the Ex Parte Young exception to sovereign immunity, allowing injunctive relief against state officers even when damages directly against the state are not available./424/ “[T]he availability of prospective relief of the sort awarded in Ex parte Young gives life to the Supremacy Clause. Remedies designed to end a continuing violation of federal law are necessary to vindicate the federal interest in assuring the supremacy of that law.”/425/
II.C.5. Congressional Intent and the Presumption Against Preemption
Congressional intent is relevant to preemption claims, as it is to Section 1983 claims. However, the inquiry is different: what does the federal statute mean and does state law interfere with it, not whether Congress intended to create an enforceable right. Preemption claims also have advantages over Section 1983, because they may be used to challenge state laws that conflict with the broader purposes of a federal statute and not simply its specific provisions. Nevertheless, the presumption against preemption cautions advocates against bringing preemption claims based on vague statutory provisions.
In the Section 1983 context, plaintiffs may not claim rights in the statute “as an undifferentiated whole,” but instead must focus on “the provision in question.”/426/ Claims based on Congress’ overall purpose, as expressed in the statute’s introductory provisions, generally fail./427/ In the preemption context, however, the Court examines the broader question of whether a state law presents an obstacle to federal objectives:
What is a sufficient obstacle is a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects: “For when the question is whether a Federal act overrides a state law, the entire scheme of the statute must of course be considered and that which needs must be implied is of no less force than that which is expressed. If the purpose of the act cannot otherwise be accomplished—if its operation within its chosen field else must be frustrated and its provisions be refused their natural effect—the state law must yield to the regulation of Congress within the sphere of its delegated power./428/
That is, congressional intent is determined from the entire statute, and preemption may be inferred from overall purposes and not simply from specific statutory language./429/
On the other hand, litigants should be careful not to base preemption claims solely on vague statutory language or policies because the Supreme Court has at times applied a presumption against preemption. When the federal law does not pose a clear conflict with state law, courts “have a duty to accept the reading that disfavors pre-emption.”/430/ The Supreme Court stated, “[B]ecause the States are independent sovereigns in our federal system, we have long presumed that Congress does not cavalierly pre-empt state-law causes of action.”/431/ The Supreme Court has not consistently applied this presumption against preemption./432/ Still courts may be reluctant to preempt state law in the absence of clear conflict./433/
Preemption claims allow plaintiffs to go beyond narrow statutory provisions and to show that a state law frustrates “the full purposes and objectives of Congress.”/434/ But, advocates must still carefully consider whether they can make a strong showing that the state law conflicts with federal law.
II.C.6. Practice Tips
The key to a successful preemption claim is to phrase it in classic preemption terms with which courts are familiar. Advocates should avoid using language reminiscent of Section 1983 or implied right of action claims. The claim should be described as “preemption” rather than “Supremacy Clause”--even though they are the same thing. Courts hear preemption claims every day, without thinking twice about the source of the cause of action. An “implied cause of action under the Supremacy Clause,” by contrast, sounds like a Bivens claim or a statutory implied cause of action – doctrines that have met less favor in the Supreme Court in recent years.
For example, this model claim follows the Supreme Court’s classic definition of conflict preemption:
First Cause of Action
Preemption by Federal Law 45 U.S.C. § 678
1. State Law 123 conflicts with Federal Law 45 U.S.C. § 678 and stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress in that it allows/prohibits _________ whereas federal law prohibits/allows ______. Therefore, State Law 123 is preempted by Federal Law 42 U.S.C. § 456 and is invalid pursuant to the Supremacy Clause of the United States Constitution.
Discussions of the claim should use preemption terminology. Talk about how the state law “frustrates,” “conflicts with,” “poses an obstacle to,” or “is preempted by” the federal law or “is invalid.” Avoid using terms more common to Section 1983, such as an argument that the state has “violated” federal law or that the plaintiffs’ “rights” have been violated. Relief should be phrased in negative terms, seeking to invalidate the preempted state law, rather than in affirmative terms, asking the state to do something. Focus on the particular state law, regulation, written policy, or administrative order that is being preempted, rather than on the state’s general actions or inactions.
Thinking about how to phrase a traditional Section 1983 case in preemption terms may not be intuitively obvious. The following examples show how cases that failed under Section 1983 or implied right of action theories could have been brought under a preemption theory.
· In Johnson v. Housing Authority, the plaintiffs brought suit under Section 1983 claiming that the housing authority’s failure to raise its utility allowance schedules in calculating Section 8 housing subsidies violated the tenants’ rights under a federal regulation requiring updated schedules./435/ The district court found that the tenants did not have any enforceable rights under the federal statute or regulation. Instead, the plaintiffs could have sought to invalidate the housing authority’s utility allowance schedule on the grounds that it was in conflict with and preempted by the federal regulations. Alternatively, the plaintiffs could have sought an injunction invalidating any housing authority decisions calculating individual Section 8 subsidies based on the invalid schedule. Either approach could have effectively forced the agency to update the schedule.
In Price v. Stockton, the plaintiffs brought suit under Section 1983 claiming that the city violated Housing and Community Development Act provisions requiring replacement of affordable housing units./436/ The court found that those provisions did not create individually enforceable rights. Instead, the plaintiffs could have brought a preemption claim contending that the city’s anti-displacement and relocation assistance plan, which it was required to adopt under the Housing and Community Development Act, was invalid because it conflicted with the Act’s requirements.
The core principle is to focus on finding a state or local law, regulation, official written policy, or agency order, and argue that is invalid because it conflicts with a federal statute or frustrates Congress’ objectives. The court can then invalidate that law to the extent that it conflicts with federal law and enjoin the state or local government from implementing it.
III. Third-Party Beneficiary Contract Cause of Action
Privatization is increasingly common in delivering government benefits to the poor. State welfare agencies regularly contract with managed care organizations and other private entities to provide or administer Medicaid and TANF benefits to eligible recipients. The Department of Housing and Urban Development (HUD) and many state housing finance agencies seek to provide affordable housing by subsidizing the construction, financing, operation or rental of privately owned buildings in return for the owner’s promise to offer some of the units at a price that the poor or near poor can pay. In these situations and others, the agreement between the government and the private entity is memorialized in a contract between them. Depending on the nature and closeness of the relationship between the government entity and the private actor, the latter may be considered a state actor subject to suit under 42 U.S.C. Section 1983./437/
In those cases in which a Section 1983 action will not lie, a cause of action sounding in contract may be available against the private entity on behalf of one’s client as the intended third party beneficiary of particular provisions of the agreement between the private entity and the government./438/ The core of this claim is that the government and the private party have entered into a contract for the benefit of the low-income individuals for whom the government program was designed, and that those individuals may, therefore, seek to enforce the contract if it is breached./439/ Such claims find considerable support in the Restatement (Second) of Contracts (1981) and the relevant case law, although the results in the latter have been mixed in the realm of public and subsidized housing./440/ An example of such a claim may be found in Count 8 of the Complaint in Lightfoot v. District of Columbia, Document 1 of the Documentary Supplement to this MANUAL. There, Plaintiffs alleged that the government’s contractor breached its contract with the government to administer a disability program when it failed to comply with government directives to provide beneficiaries with pre-deprivation procedures.
283. The term “Bivens action” refers to the case in which the Supreme Court first held that the federal courts could create such a cause of action. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
284. These statutes are discussed in Chapter 2, Sections V.D. and V.E. of this Manual.
285. Corr. Servs. Corp. v. Malesko, 534 U.S. 61 (2001).
286. Procedurally, reasoning by analogy from § 1983 actions, all courts considering the issue have held that state personal injury statutes of limitation should govern Bivens actions. Kelly v. Serna, 87 F.3d 1235, 1238 (11th Cir. 1996); Van Tu v. Koster, 364 F.3d 1196, 1199 (10th Cir. 2004); Papa v. United States, 281 F.3d 1004, 1009 n.11 (9th Cir. 2002); King v. One Unknown Fed. Corr. Officer, 201 F.3d 910, 913 (7th Cir. 2000); Polanco v. U.S. Drug Enforcement Administration, 158 F.3d 647, 653 (2d Cir. 1998); Sanchez v. United States, 49 F.3d 1329, 1330 (8th Cir. 1995); Napier v. Thirty or More Unidentified Federal Agents, Employees, or Officers, 855 F.2d 1080, 1088 n.3 (3d Cir. 1988). There is no statutory authorization for an award of attorney fees to prevailing plaintiffs in Bivens actions. By their terms, neither the Civil Rights Attorneys’ Fees Awards Act of 1976 nor the Equal Access to Justice Act applies. Thus attorney fees are not recoverable in Bivens actions.
287. The determination that a plaintiff has a Bivens cause of action does not necessarily mean that the plaintiff may recover damages in the case. The additional, and distinct, question of whether the defendants are entitled to absolute or qualified immunity must also be adjudicated. Government officials performing discretionary functions are generally granted a qualified immunity and are “shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The qualified immunity analysis is the same under either a Bivens or a § 1983 cause of action. See, e.g., Wilson v. Layne, 526 U.S. 603, 609 (1999); Graham v. Connor, 490 U.S. 386, 394 n.9 (1989); Malley v. Briggs, 475 U.S. 335, 340 n.2 (1986). For a discussion of the circumstances in which government officials sued in their individual capacities are entitled to either absolute or qualified immunity, see Chapter 8, Sections II.A. and II.B. of this MANUAL.
288. The Federal Tort Claims Act was amended in 1974 to provide a remedy for intentional torts committed by federal law enforcement officials. See 28 U.S.C. § 2680(h).
289. Bivens, 403 U.S. at 391-92, 394-95.
290. Davis v. Passman, 442 U.S. 228 (1979).
293. Davis, 442 U.S. at 245 (quoting Bivens, 403 U.S. at 410 (Harlan, J., concurring)).
294. Carlson v. Green, 446 U.S. 14 (1980).
295. Id. at 19-21. The Supreme Court relied on language in the Senate Report on the 1974 Federal Tort Claims Act Amendments, showing that “Congress views [the Act] and Bivens as parallel, complementary causes of action.” The Court also noted that in several respects the Bivens remedy was more effective. Unlike a Federal Tort Claims Act suit, a Bivens suit allows recovery against individual officers (thus more effectively deterring unconstitutional conduct), allows punitive damages, can be tried before a jury, and is not dependent on “the vagaries” of state tort statutes and doctrines. Id. at 19-23. The 1988 Amendment to the FTC’s exclusivity-of-remedy provision, 28 U.S.C. § 2679(b)(1)-(2), made clear that Congress had maintained its position that the Act is not the exclusive remedy for a constitutional tort, and thus that Congress declined to overturn Bivens, Davis, and Carlson.
296. Bush v. Lucas, 462 U.S. 367 (1983).
298. The Court deferred to the Congress’ greater familiarity with the appropriate remedial scheme as reflected in the long history of legislative management of the civil service system. The Supreme Court took a hands-off approach, even though the Congress had not stated that it considered the statutory civil service remedies to be exclusive, and even though the Court assumed that a Bivens action would provide greater relief. See Bush, 462 U.S. at 378.
300. Chappell v. Wallace, 462 U.S. 296 (1983).
302. Schweiker v. Chilicky, 487 U.S. 412, 423-29 (1988).
304. Simpson v. McCarthy, 741 F. Supp. 95, 97 (W.D. Pa. 1990) (referring to Carlson, 446 U.S. at 18).
306. J.I. Case Co. v. Borak, 377 U.S. 426 (1964).
307. Malesko, 534 U.S. at 67 & n.3 (quoting Alexander v. Sandoval, 532 U.S. 275, 287 (2001)(Clearinghouse No. 51,706)).
309. Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471 (1994).
310. Malesko, 534 U.S. at 70-71.
312. However, federal courts are divided on whether a Bivens remedy exists for Eighth Amendment violations by private employees of such correctional agencies who act under color of federal law. In Peoples v. CCA Det. Ctr., 422 F.3d 1090, 1103 (10th Cir. 2005), the Tenth Circuit, relying on Malesko, held that no Bivens remedy exists to remedy Eighth Amendment violations by employees of a private detention facility housing federal prisoners if there exists a state law cause of action even if that cause of action does not afford the plaintiff full relief. See also Holly v. Scott, 434 F.3d 287 (4th Cir. 2006). But see, Saro v. Cornell Corr. Inc., 248 F.Supp.2d 52, 62-63 (D.R.I. 2003) (holding that the existence of state law remedies does not preclude a Bivens action against private employees of a detention facility by prisoners claiming Eighth Amendment violations).
312a. See Wilke v. Robbins, 127 S. Ct. 2588 (2007) (declining to extend Bivens remedy to a series of complex complaints against actions of federal actors, including pressure to dispose of property interests).
313. Hartman v. Moore, 126 S. Ct. 1695 (2006)
314. See, e.g., Gibson v. United States, 781 F.2d 1334 (9th Cir. 1986), cert. denied, 479 U.S. 1054 (1987) (allegation that Federal Bureau of Investigation agents acted with impermissible motives of curbing plaintiff’s protected speech stated claim properly cognizable through Bivens-type action under the First Amendment); Spagnola v. Mathis, 809 F.2d 16 (D.C. Cir. 1986) (reversing dismissal of Bivens claim by federal employee who allegedly suffered harassment by supervisors for exercising his First Amendment rights; and distinguishing Bush v. Lucas on grounds that remedial scheme is less comprehensive than that of the Civil Service Reform Act, and remedies are less meaningful).
315 See, e.g., Briggs v. Goodwin, 698 F.2d 486 (D.C. Cir. 1983) (plaintiff had a Bivens-type cause of action against a federal prosecutor who allegedly violated plaintiff’s Sixth Amendment rights by denying, knowing his denial to be false, the fact that one of the other grand jury witnesses, who was also represented by plaintiff’s attorney, was a government informant), vacated on rehearing on other grounds, 712 F.2d 1444 (dismissing action because federal prosecutor enjoyed absolute immunity as a witness).
316. See Hudson Valley Black Press v. Internal Revenue Serv., 409 F.3d 106 (2nd Cir. 2005) (refusing a Bivens remedy for a Fourth Amendment violation by IRS employees in light of comprehensiveness of IRS taxpayer remedies even though no remedy existed for plaintiff).
317. See Dotson v. Griesa, 398 F.3d 156 (2d Cir. 2005) (no Bivens remedy for federal employee asserting Fifth Amendment violation in light of the comprehensiveness of the Civil Service Reform Act); Thompson v. Pope, 397 F. Supp. 2d 28 (D.D.C. 2005) (no Bivens remedy for foreign service officer asserting violations of the Fourth and Fifth Amendments in light of the comprehensiveness of the Foreign Service Act);
318. See Wilson v. Layne, 526 U.S. 603, 609 (1999) (both Bivens and § 1983 allow a plaintiff to seek money damages from government officials who violate plaintiff’s Fourth Amendment rights); McCarthy v. Madigan, 503 U.S. 140, 152-56 (1992) (upholding plaintiff’s Bivens claim even though he had failed to exhaust alternative administrative remedies that did not allow for monetary damages).
319. Alexander v. Sandoval, 532 U.S. 275 (2001)(Clearinghouse No. 51,706).
321. Sandoval, 532 U.S. at 287.
322. Cort v. Ash, 422 U.S. 66, 77-85 (1975).
323. See Transamerica Mortgage Advisors Inc. v. Lewis, 444 U.S. 11 (1979), and Cannon v. Univ. of Chicago, 441 U.S. 677, 690-94 (1979) (finding a basis for an implied cause of action arising from the sex discrimination provisions of Title IX of the Education Amendments of 1972).
324. Cannon, 441 U.S. at 690 n.13.
326. Transamerica, 444 U.S. at 15, 18-19.
327. Merrill Lynch, Pierce, Fenner & Smith v. Curran, 456 U.S. 353 (1982).
330. Id. at 380-81. See also Herman & MacLean v. Huddleston, 459 U.S. 375 (1983); Cannon, 441 U.S. 677.
331. Cannon, 441 U.S. at 690-94.
332. California v. Sierra Club, 451 U.S. 287, 294-95 (1981); Cannon, 441 U.S. at 690-94.
333. Merrill Lynch, 453 U.S. at 393-95; Transamerica, 444 U.S. at 15-16. See also Sierra Club, 451 U.S. at 294-95.
334. Herman, 459 U.S. at 380-87.
335. Transamerica, 444 U.S. at 19 n.8.
336. See, e.g., Alfred Dunhill Ltd. v. Interstate Cigar Co., 499 F.2d 232 (2d Cir. 1974) (no private right of action under Federal Trade Commission Act).
337.Cannon, 441 U.S. at 690-94.
339. Wright v. City of Roanoke Redev. & Hous. Auth., 479 U.S. 418 (1987).
340. A handful of lower court decisions holding specific statutes enforceable under an implied-right-of-action theory included Jeffries v. Ga. Residential Fin. Auth., 678 F.2d 919 (11th Cir. 1982) (Section 8); Montgomery Improvement Assoc. v. U.S. Dep’t of Hous. & Urban Dev., 645 F.2d 291 (5th Cir. 1981) (Community Development Block Grant statute); Howard v. Pierce, 738 F.2d 722 (6th Cir. 1984) (Brooke Amendment; federal defendant); Gonzalez v. St. Margaret’s House Hous. Dev., 620 F. Supp. 806 (S.D.N.Y 1985) (Brooke Amendment); Young v. Pierce, 544 F. Supp. 1010 (E.D. Tex. 1982) (Title VI; federal defendant).
341. See, e.g., Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582 (1983) (Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq.); Cannon, 441 U.S. 677 (Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq.); NAACP v. Med. Ctr. Inc., 599 F.2d 1247, 1258 (3d Cir. 1979) (42 U.S.C. § 2000d et seq.; Section 504 of the Rehabilitation Act, 29 U.S.C. § 794); Davis v. Se. Cmty. Coll., 574 F.2d 1158, 1159 (4th Cir. 1978) (Section 504), rev’d on other grounds, 442 U.S. 397 (1979); Lloyd v. Reg’l Transp. Auth., 548 F.2d 1277, 1285 (2d Cir. 1977) (Section 504).
342. Cannon, 441 U.S. at 690 n.13.
344. See, e.g., Transamerica, 444 U.S. at 24 (rescission and restitution, but not damages).
345. Gonzaga Univ. v. Doe, 536 U.S. 273 (2002) (finding no right to suit under § 1983 where plaintiff alleged a violation of the Federal Educational Right to Privacy Act, federal statute protecting the privacy of educational records).
347. Sandoval did not explicitly overrule Cort and cited it with approval in some places. Thus, as discussed below, whether Sandoval will have the effect of virtually overruling Cort, or will merely be seen as a gloss on the Cort analysis, is not clear.
350. Interestingly, even though a crucial factor in the Court’s analysis was that the regulations exceeded the bounds of their enabling statute by forbidding conduct that the statute permitted, the Supreme Court did not invalidate the Title VI regulations. The Court certainly did raise the question of the validity of the regulations but left resolution of that question for another day. Rather, the Court ruled that no lawsuits may be brought by private individuals to enforce them.
351. Sandoval, 532 U.S. at 291.
353. Sandoval, 532 U.S. at 286 (emphasis added).
356. Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2004).
357. Id. Cf. Rolland v. Romney, 318 F.3d 42, 52 (1st Cir. 2003) (relying on same Sandoval language and finding private right of action under § 1983 to enforce regulations interpreting the Nursing Home Reform Amendments, 42 U.S.C. § 1396r, based on “rights-creating language” contained in statute).
358. Sandoval, 532 U.S. at 291; see Osborne v Bank of America, 234 F. Supp. 2d 804, 811 (M.D. Tenn. 2004) (holding regulation enforceable because “Sandoval holds only that regulations may not create private rights of action where no such right was intended by Congress. But that is not the case with [the Equal Opportunity Credit Act].”; Ability Ctr. of Greater Toledo v. Sandusky, 385 F.3d 901, 906 (6th Cir. 2004); (“if the regulation simply effectuates the express mandates of the controlling statute, then the regulation may be enforced via the private cause of action available under that statute”); Chaffin v. Kan. State Fair Bd., 348 F.3d 850, 858 (10th Cir., 2003) (distinguishing Sandoval on this basis and permitting enforcement of Americans with Disabilities Act regulations and guidelines through a private action).
359. But see Hodgens v. Gen. Dynamics, 144 F.3d 151, 166-69 (1st Cir. 1999), for a discussion of various ways one can prove discriminatory intent.
360. “Having sworn off the habit of venturing beyond Congress’s intent, we will not accept respondents’ invitation to have one last drink.” Sandoval, 532 U.S. at 287. The majority of the Court appears to have adopted Justice Scalia’s view of statutory construction: that the four corners of the statute are the beginning and the end of the analysis. Id. at 288 (“In determining whether statutes create private rights of action, as in interpreting statutes generally, legal context matters only to the extent it clarifies text. We therefore begin (and find that we can end) our search for Congress’s intent with the text and structure of Title VI.”) (citation omitted).
361. See Edelson v. Ch’ien, 405 F.3d 620, 631 (7th Cir. 2005); Miller v. G.E. Capital Mortgage Servs., Inc., 124 Fed. Appx. 152 (4th Cir. 2005); Love v. Delta Air Lines, 310 F.3d 1347, 1351-52 (11th Cir. 2002); see also Hallwood Realty Partners L.P. v. Gotham Partners L.P., 286 F.3d 613, 619 n.7 (2d Cir. 2002); Sw. Air Ambulance Inc. v. City of Las Cruces, 268 F.3d 1162, 1171 (10th Cir. 2001).
362. Sandoval, 532 U.S. at 288.
363. See, e.g., McDonald v. S. Farm Bureau Life Ins. Co., 291 F.3d 718, 723-26 (11th Cir. 2002); Walls v. Wells Fargo Bank N.A., 276 F.3d 502, 508 (9th Cir. 2002) (“While neither the Supreme Court nor our court has abandoned consideration of all the Cort factors, including whether the plaintiff is a member of the class for whose benefit the statute was enacted, it is clear that the critical inquiry is whether Congress intended to create a private right of action.”); Dewakuku v. Martinez, 271 F.3d 1031, 1038 (Fed. Cir. 2001) (“As guides to discerning Congress’ intent as to an implied private right of action [as required by Sandoval], courts generally look to the four factors enunciated by the Supreme Court in Cort.”).
364. See, e.g., Greene v. Sprint Commc’ns Co., 340 F.3d 1047, 1052-53 (9th Cir. 2003) (applying Cort, as limited by Sandoval to a congressional intent test; and “declin[ing] to imply a private right of action primarily because Congress has manifested no intent to allow one, and other considerations pertinent to that inquiry do not counsel in favor of doing so”); Howard v. Coventry Health of Iowa Inc., 293 F.3d 442, 444-45 (8th Cir. 2002) (finding no congressional intent to create an implied right of action).
365. See, e.g., Save Our Valley v. Sound Transit, 335 F.3d 932, 939 (9th Cir. 2003) (Clearinghouse No. 53,757)(interpreting the combination of Sandoval and Gonzaga to hold that no agency regulation can independently create rights enforceable through § 1983).
366. “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding. “ U.S. Const. art. VI.
367. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 31 (1824).
368. See, e.g., Hines v. Davidowitz, 312 U.S. 52 (1941).
369. See Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 541 (2001); Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 373 (2000).
370. Crosby, 530 U.S. at 373 (quoting Hines, 312 U.S. at 67).
371. See, e.g., Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 103 (1992); Nw. Cent. Pipeline Corp. v. State Corp. Comm’n, 489 U.S. 493, 515 n.12 (1989).
372. Shaw v. Delta Air Lines, 463 U.S. 85, 96 n.14 (1983) (citations omitted). See also Verizon Md. Inc. v. Pub. Serv. Comm’n, 535 U.S. 635 (2002).
373. Verizon Md. Inc., 535 U.S. at 642 (quoting Shaw, 463 U.S. at 96 n.14).
374. David Sloss, Constitutional Remedies for Statutory Violations, 89 Iowa L. Rev. 355, 366 (2004) (citing Pharm. Research & Mfrs. of America v. Walsh, 538 U.S. 644 (2003) (Clearinghouse No. 53,789) [hereinafter PhRMA]; Ky. Ass’n of Health Plans v. Miller, 538 U.S. 329 (2003) (Clearinghouse No. 53,267); City of Columbus v. Ours Garage & Wrecker Serv., 536 U.S. 424 (2002); Lorillard, 533 U.S. at 525; Crosby, 530 U.S. at 363; United States v. Locke, 529 U.S. 89 (2000); Foster v. Love, 522 U.S. 67 (1997); De Buono v. NYSA-ILA Med. & Clinical Servs. Fund, 520 U.S. 806 (1997); and Cal. Div. of Labor Standards Enforcement v. Dillingham Constr., 519 U.S. 316 (1997).
375. See Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246 (2004).
376. Richard H. Fallon, Jr., et al., Hart and Wechsler's the Federal Courts and the Federal System 903 (5th ed. 2003); see 13B Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Jurs. 2d § 3566 (2d. ed. 1983 and Supp. 2004) (concluding that “the Supremacy Clause creates an implied right of action for injunctive relief against state officers who are threatening to violate the federal Constitution or laws”).
377. See, e.g., Aroostook Band of Micmacs v. Ryan, 404 F.3d 48, 56-57 (1st Cir. 2005); Planned Parenthood v. Sanchez, 403 F.3d 324, 331-35 (5th Cir. 2005); Local Union No. 12004 v. Massachusetts, 377 F.3d 64, 75 & n.8 (1st Cir. 2004) (quoting , Fallon et al., supra, n. 298 at 903); Guar. Nat’l Ins. Co. v. Gates, 916 F.2d 508, 512 (9th Cir. 1990) (quoting 13B WRIGHT & MILLER, supra, n. 298 § 3566 at 102); Pharm. Research & Mfrs. of America v. Concannon, 249 F.3d 66, 73 (1st Cir. 2001) [hereinafter, “PhRMA”]), aff’d sub nom Pharm. Research & Mfrs. of America v. Walsh, 538 U.S. 644 (2003) (Clearinghouse No. 53,789); Burgio & Compofelice, Inc. v. N.Y. State Dep’t of Labor, 107 F.3d 1000, 1006 (2d Cir. 1997); Joseph A. v. Ingram, 275 F.3d 1253, 1265 (10th Cir. 2002) (Clearinghouse No. 54,011); League of Women Voters v. Blackwell, 340 F. Supp. 2d 823, 827-28 (N.D. Ohio 2004) (Clearinghouse No. 55,781); Sprint Corp. v. Evans, 818 F. Supp. 1447, 1453 (M.D. Ala. 1993); but cf. Legal Envtl. Assistance Found., Inc. v. Pegues, 904 F.2d 640 (11th Cir. 1990). The Pegues court made two mistakes. First, it relied on irrelevant cases holding that the Supremacy Clause cannot be the source of the "right" needed under § 1983 or its related jurisdictional statute. Second, it concluded incorrectly that Shaw and other Supreme Court cases support only jurisdiction, not a cause of action, under the Supremacy Clause. See Sprint Corp., 818 F. Supp. at 1453 n.6.
378. See, e.g., Dodge v. Woolsey, 59 U.S. (18 How.) 331, 350 (1855).
379. See, e.g., Gonzaga Univ. v. Doe, 536 U.S. 273, 279-80 (2002).
380. King v. Smith, 392 U.S. at 333 n.34; accord Ivanhoe Irrigation Dist. v. McCracken, 357 U.S. 275, 295 (1958).
381. Townsend v. Swank, 404 U.S. 282, 286 (1971) (characterizing King v. Smith, 392 U.S. 309 (1968)); Carleson v. Remillard, 406 U.S. 598, 601 (1972). Although these cases were brought under § 1983, there is overlap between § 1983 and the Supremacy Clause causes of action. See Golden State Transit Corp. v. City of Los Angeles (“Golden State II”), 493 U.S. 103, 107-08 (1989). The Court’s analysis, however, is in Supremacy Clause language, and the cases are useful to show that the Supremacy Clause prevents conflicts with federal law Spending Clause statutes, beyond the traditional preemption context of business regulation.
382. See Hagans v. Lavine, 415 U.S. 528, 550 (1974); N.Y. State Dep’t of Soc. Servs. v. Dublino, 413 U.S. 405, 407 (1973); see also Planned Parenthood Ass’n v. Dandoy, 810 F.2d 984, 988 (10th Cir. 1987).
383. See, e.g., Comacho v. Tex. Workforce Comm’n, 408 F.3d 229 (5th Cir. 2005) (Clearinghouse No. 55,886); Elizabeth Blackwell Health Ctr. for Women v. Knoll, 61 F.3d 170 (3rd Cir. 1995); Jackson v. Rapps, 947 F.2d 332 (8th Cir. 1991), cert. denied, 503 U.S. 960 (1992); Planned Parenthood Fed’n v. Heckler, 712 F.2d 650, 663-64 (D.C. Cir. 1983).
384. Arkansas Dep’t. of Health Servs. v. Ahlborn, 126 S. Ct. 1752 (2006). The Court’s holding that Arkansas law is unenforceable because it conflicts with the federal Medicaid Act is a preemption holding, although the Court did not use that term. The Court affirmed the Eighth Circuit, which did frame its discussion in terms of preemption – again, without discussing or questioning the cause of action. See Ahlborn v. Ark. Dept. of Human Servs., 397 F.3d 620 (8th Cir. 2005), aff’d 126 S. Ct. 1752.
385. See PhRMA, 538 U.S. at 644; Dalton v. Little Rock Family Planning Servs., 516 U.S. 474 (1996).
386. See PhRMA, 538 U.S. at 675 (Scalia, J., concurring in the judgment); id. at 683 (Thomas, J., concurring in the judgment).
387. See, e.g., Planned Parenthood, 403 F.3d at 331-32; Westside Mothers v. Haveman, 289 F.3d 852 (6th Cir.), cert. denied 537 U.S. 1045 (2002) (Clearinghouse No. 52,678); Mo. Child Care Ass'n v. Cross, 294 F.3d 1034 (8th Cir. 2002); Antrican v. Odom, 290 F.3d 178, 188-89 (4th Cir. 2002) (Clearinghouse No. 53,431). The Supreme Court has not shown any interest in following the now-discredited conclusion of the district court in Westside Mothers that Spending Clause statutes are merely contracts between states and the federal government and are not “laws” within the meaning of the Supremacy Clause. See Barnes v. Gorman, 536 U.S. 181, 193 n.2 (2002) (Stevens, J., concurring in the judgment) (noting the Westside Mothers theory and pointing out the majority’s comment that "[w]e do not imply, for example, that suits under Spending Clause legislation are suits in contract, or that contract-law principles apply to all issues that they raise") (quoting id. at 188 n.2).
388. La. Pub. Serv. Comm’n v. Fed. Commc’ns Comm’n, 476 U.S. 355, 370 (1986).
389. Fidelity Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 153-54 (1982); accord Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 699 (1984).
390. See, e.g., Entergy La., Inc. v. La. Public Serv. Comm’n, 539 U.S. 39, 47 (2003); Verizon, 535 U.S. at 642; Blackwell, 61 F.3d 170 (federal Medicaid Bureau Director’s letter interpreting Medicaid Act).
391. See, e.g., Wachovia Bank, N.A. v. Burke, 414 F.3d 305 (2d Cir. 2005). For example, the Title VI regulation in Alexander v. Sandoval, 532 U.S. 275 (2001)(Clearinghouse No. 51,706), that could not be enforced through an implied right of action should have been enforceable through preemption.
392. See City of New York v. Fed. Commc’ns Comm’n, 486 U.S. 57, 63 (1988).
393. Fidelity Fed., 458 U.S. at 154; accord City of New York, 486 U.S. at 63.
394. New York v. Fed. Energy Regulatory Comm’n, 535 U.S. 1, 16, 18 (2002) (citing Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-843 (1984)); City of New York, 486 U.S. at 63; PhRMA v. Thompson, 362 F.3d 817, 819 n.3 (D.C. Cir. 2004) (Medicaid Act). Although, as discussed below, there is a presumption against preemption, the presumption only applies to determining whether the state law conflicts with the federal regulation, not to determining whether the federal agency had authority to preempt. See New York v. FERC, 535 U.S. at 17-18.
395. See Sandoval, 532 U.S. 275; Gonzaga, 536 U.S. at 283, 284 n.3.
396. See, e.g., Entergy La., 539 U.S. 39; Verizon, 535 U.S. 635; Nash, 389 U.S. 235.
397. Livadas v. Bradshaw, 512 U.S. 107 (1994) (state policy not to enforce state labor law); see also id. at 119 (characterizing Nash v. Fla. Indus. Comm’n, 389 U.S. 235 (1967), as “holding pre-empted [a state] administrative policy interpreting presumably valid state unemployment insurance law”); League of Women Voters, 340 F. Supp. 2d at 827-28 (state directive); Equal Access Educ., 305 F. Supp. 2d 585, 601 n.14 (noting that a state attorney general policy memorandum “is subject to the same analysis as a statute”) (citing Gonzales v. City of Peoria, 722 F.2d 468 (9th Cir 1983), overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir.1999)).
398. See, e.g., Nash, 389 U.S. 235.
399. In Livadas v. Bradshaw, 512 U.S. 107 (1994), the plaintiff challenged the state’s inaction: its refusal to act on the employee’s unfair labor practice complaint. However, the state’s policy of refusing to enforce state labor law when the employee was covered by a union arbitration agreement was undisputed and was reflected in writing in a letter that the state sent to the plaintiff. Moreover, the plaintiff sought typical preemption relief: an order invalidating the policy.
400. See Golden State, 493 U.S. at 113-14 (Kennedy, J., dissenting) (noting that a litigant has standing to contend that federal supremacy “requires a particular outcome in a dispute, and this is so whether the dispute is between individual parties … or the dispute involves a State or its subdivisions”) (citing cases); compare Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982) (finding state action in § 1983 suit between private parties).
401. See 42 U.S.C. § 1983 (providing liability “in an action at law”).
402. See Golden State Transit Corp. v. City of Los Angeles, 857 F.2d 631, 636 (9th Cir. 1988), rev’d on other grounds, 493 U.S. 103 (1989). The Supreme Court’s decision on the § 1983 claim in Golden State implicitly assumes that fees could only be obtained through § 1983, not through the preemption claim that the Court had earlier upheld.
403. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971); see, e.g., Corr. Servs. Corp. v. Malesko, 534 U.S. 61 (2001) (Clearinghouse No. 54,279).
404. See Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240 (1975).
405. See, e.g., Gonzaga Univ., 536 U.S. at 286 n.5; id. at 292 (Breyer, J., concurring); compare Golden State Transit Corp. v. Los Angeles (“Golden State I”), 475 U.S. 608 (1986), (unanimous decision finding city's condition on renewal of taxicab franchise preempted) with Golden State II, 493 U.S. 103 (split 6-3 decision finding plaintiff entitled to attorneys fees because the preemption claim also stated a § 1983 claim).
406. Malesko, 534 U.S. at 74; compare also id. at 75 (Scalia, J., concurring ) (decrying Bivens as a “relic of the heady days in which this Court assumed common-law powers to create causes of action—decreeing them to be ‘implied’ by the mere existence of a statutory or constitutional prohibition”) with Verizon, 535 U.S. at 642-43 (unanimous opinion by Scalia, J., upholding jurisdiction over claim for injunctive relief under Supremacy Clause against state regulation pre-empted by federal law, despite argument that the federal statute does not create a cause of action).
407. See, e.g., Verizon, 535 U.S. at 642; Crosby, 530 U.S. at 371; Shaw, 463 U.S. at 96, n.14.
408. See, e.g., Dalton, 516 U.S. at 478 (remanding case “for entry of an order enjoining the enforcement of Amendment 68 [of the Arkansas Constitution] only to the extent that the amendment imposes obligations inconsistent with federal law”); Engelman v. Amos, 404 U.S. 23 (1971).
409. Compare Nantahala Power & Light Co. v. Thornburg, 476 U.S. 953 (1986) (invalidating state commission rate-making order that misallocated costs and remanding case) with In re Nantahala Power & Light Co., 87 P.U.R.4th 217, 1987 WL 257989 (N.C. Util. Comm’n Nov. 13, 1987) (recalculating utility rates in light of Supreme Court decision).
410. Golden State II, 493 U.S. at 107; Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 613 (1979).
411. Golden State II, 493 U.S. at 107 n.4.
412. See Chapman, 441 U.S. 600; Golden State II, 493 U.S. at 107 (characterizing Chapman).
413. See Chapman, 441 U.S. at 606, 612-13.
414. See Gonzaga, 536 U.S. at 283, 284 n.3 (holding that, to be enforceable under § 1983, a statute must create “an unambiguously conferred right” as shown by “‘right- or duty- creating language’”) (quoting Cannon v. Univ. of Chicago, 441 U.S. 677, 690 n.13 (1979)).
416. Golden State II, 493 U.S. at 117 (Kennedy, J., dissenting); see Western Air Lines, 817 F.2d at 225 (noting the “potential anomaly of rejecting a private right of action to enforce a statute while allowing a claim under the Supremacy Clause,” but observing the different function of a Supremacy Clause claim).
417. Golden State II, 493 U.S. at 107.
418. Golden State II, 493 U.S. at 119 (Kennedy, J., dissenting) (citations omitted) (emphasis added).
419. PhRMA, 538 U.S. 644; see also Cal. Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272 (1987) (considering on the merits employer’s claim that Pregnancy Discrimination Act preempted state law requiring pregnancy leave).
420. PhRMA, 249 F.3d at 73. Similarly, in Crosby v. National Foreign Trade Council, 530 U.S. 363, 373 (2000), the Court allowed private companies to enforce the Burma sanctions provisions of the Foreign Appropriations Act. The Burma sanctions were certainly not passed for the purpose of giving companies an enforceable right to do business in Burma.
421. Planned Parenthood, 403 F.3d at 331-35; Qwest Corp. v. City of Santa Fe, 380 F.3d 1258 (10th Cir. 2004); Local Union No. 12004, 377 F.3d 64, 75 (1st Cir. 2004); Ill. Ass'n of Mortgage Brokers v. Office of Banks, 308 F.3d 762, 765 (7th Cir. 2002) (Clearinghouse No. 54,339); PhRMA, 249 F.3d at 73 (in the context of rejecting the defendant’s challenge to the plaintiff’s prudential standing); St. Thomas-St. John Hotel & Tourism Ass’n. v. U.S. Virgin Islands, 218 F.3d 232, 241 (3d Cir. 2000); Self-Ins. Inst. v. Korioth, 993 F.2d 479, 481-83 (5th Cir. 1993); Western Air Lines, Inc. v. Port Auth., 817 F.2d 222, 225-26 (2d Cir. 1987) (upholding claim of preemption by Airline Deregulation Act despite prior finding that the Act could not be enforced through an implied right of action or § 1983), cert. denied, 485 U.S. 1006 (1988); see also Indian Oasis-Baboquivari Unified Sch. Dist. v. Kirk, 91 F.3d 1240, 1256 (9th Cir. 1996) (Reinhardt, J., dissenting on other grounds) (“[A] plaintiff may sue directly under the Supremacy Clause even if the assertedly preemptive federal statute does not provide a cause of action or give rise to enforceable rights that could serve as the basis for a § 1983 suit on preemption grounds.”); Wright Elec., Inc. v. Minn. State Bd. of Elec., 322 F.3d 1025, 1028-29 (8th Cir. 2003); Wachovia Bank, 414 F.3d 305; Sprint Corp., 818 F. Supp. at 1453.
422. St. Thomas, 218 F.3d at 241; see also Qwest Corp., 380 F.3d at 1266 (“A federal statutory right or right of action is not required where a party seeks to enjoin the enforcement of a regulation on the grounds that the local ordinance is preempted by federal law. A party may bring a claim under the Supremacy Cause that a local enactment is preempted even if the federal law at issue does not create a right of action.”).
423. See St. Thomas, 218 F.3d at 242-46; Ill. Ass’n of Mortgage Brokers, 308