Under the Parental Kidnaping Prevention Act of 1980 (PKPA or
Act), States are required to afford full faith and credit to valid
child custody determinations entered by a sister State's courts.
When a California state court's award of joint custody to
respondent and petitioner over their son became infeasible because
of respondent's decision to move to Louisiana, the court granted
respondent sole custody pending an investigator's report, whereupon
the court intended to make a more studied custody determination.
After respondent obtained a Louisiana court order enforcing the
California decree and awarding her sole custody, the California
court, having received and reviewed the investigator's report,
entered an order granting sole custody to petitioner. Without first
attempting to enforce the California decree in Louisiana,
petitioner filed suit in Federal District Court seeking an order
declaring the Louisiana decree invalid and the California decree
valid, and enjoining the enforcement of the Louisiana decree. The
court dismissed the complaint and the Court of Appeals affirmed on
the ground that petitioner had failed to state a claim upon which
relief could be granted.
Held: The PKPA does not provide an implied cause of
action in federal court to determine which of two conflicting state
custody decisions is valid. The context in which the PKPA was
enacted -- the existence of jurisdictional deadlocks among the
States in custody cases and a nationwide problem of interstate
parental kidnaping -- suggests that Congress' principal aim was to
extend the requirements of the Full Faith and Credit Clause to
custody determinations, and not to create an entirely new cause of
action. The language and placement of the Act reinforce this
conclusion, in that the Act is an addendum to, and is therefore
clearly intended to have the same operative effect as, the federal
full faith and credit statute, the Act's heading is "Full faith and
credit given to child custody determinations," and, unlike statutes
that explicitly confer a right on a specified class of persons, the
Act is addressed to States and to state courts. Moreover, in
discussing the congressional rejection of a competing legislative
proposal that would have extended the district courts' diversity
jurisdiction to custody decree enforcement actions, the PKPA's
legislative history provides an unusually clear indication that
Congress did not intend the federal courts to play the enforcement
role.
Page 484 U. S. 175
The fact that the cause of action petitioner seeks to infer is
narrower than the congressionally rejected alternative is not
controlling, since the federal courts would still be entangled in
traditional state law questions that they have little expertise to
resolve. The argument that failure to infer a cause of action would
render the PKPA nugatory is also not persuasive, since it is based
on the unacceptable presumption that the States are either unable
or unwilling to enforce the Act's provisions, and since ultimate
review remains available in this Court for truly intractable
deadlocks. Pp.
484 U. S.
179-187.
798 F.2d 1547, affirmed.
MARSHALL, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and BRENNAN WHITE, BLACKMUN, and STEVENS, JJ.,
joined, and in all but the first full paragraph of Part II of which
O'CONNOR, J., joined. O'CONNOR, J., filed an opinion concurring in
part and concurring in the judgment,
post, p.
484 U. S. 188.
SCALIA, J., filed an opinion concurring in the judgment,
post, p.
484 U. S.
.
JUSTICE MARSHALL delivered the opinion of the Court.
We granted certiorari in this case to determine whether the
Parental Kidnaping Prevention Act of 1980, 28 U.S.C. § 1738A,
furnishes an implied cause of action in federal court to determine
which of two conflicting state custody decisions is valid.
I
The Parental Kidnaping Prevention Act (PKPA or Act) imposes a
duty on the States to enforce a child custody determination entered
by a court of a sister State if the determination
Page 484 U. S. 176
is consistent with the provisions of the Act. [
Footnote 1] In order for a state court's
custody decree to be consistent with the provisions of the Act, the
State must have jurisdiction under its own local law and one of
five conditions set out in
Page 484 U. S. 177
§ 1738A(c)(2) must be met. Briefly put, these conditions
authorize the state court to enter a custody decree if the child's
home is or recently has been in the State, if the child has no home
State and it would be in the child's best interest for the State to
assume jurisdiction, or if the child is present in the State and
has been abandoned or abused. Once a State exercises jurisdiction
consistently with the provisions of the Act, no other State may
exercise concurrent jurisdiction over the custody dispute, §
1738A(g), even if it would have been empowered to take jurisdiction
in the first instance, [
Footnote
2] and all States must accord full faith and credit to the
first State's ensuing custody decree.
As the legislative scheme suggests, and as Congress explicitly
specified, one of the chief purposes of the PKPA is to "avoid
jurisdictional competition and conflict between State courts."
Pub.L. 96-611, 94 Stat. 3569, § 7(c)(5), note following 28 U.S.C. §
1738A. This case arises out of a jurisdictional stalemate that came
to pass notwithstanding the strictures of the Act. In July, 1978,
respondent Susan Clay (then Susan Thompson) filed a petition in Los
Angeles Superior Court asking the court to dissolve her marriage to
petitioner David Thompson and seeking custody of the couple's
infant
Page 484 U. S. 178
son, Matthew. The court initially awarded the parents joint
custody of Matthew, but that arrangement became infeasible when
respondent decided to move from California to Louisiana to take a
job. The court then entered an order providing that respondent
would have sole custody of Matthew once she left for Louisiana.
This state of affairs was to remain in effect until the court
investigator submitted a report on custody, after which the court
intended to make a more studied custody determination.
See
App. 6.
Respondent and Matthew moved to Louisiana in December, 1980.
Three months later, respondent filed a petition in Louisiana state
court for enforcement of the California custody decree, judgment of
custody, and modification of petitioner's visitation privileges. By
order dated April 7, 1981, the Louisiana court granted the petition
and awarded sole custody of Matthew to respondent. Two months
later, however, the California court, having received and reviewed
its investigator's report, entered an order awarding sole custody
of Matthew to petitioner. Thus arose the current impasse.
In August, 1983, petitioner brought this action in the District
Court for the Central District of California. Petitioner requested
an order declaring the Louisiana decree invalid and the California
decree valid, and enjoining the enforcement of the Louisiana
decree. Petitioner did not attempt to enforce the California decree
in a Louisiana state court before he filed suit in federal court.
The District Court granted respondent's motion to dismiss the
complaint for lack of subject matter and personal jurisdiction.
Civ.Action No. 83-5221 (Apr. 10, 1984). The Court of Appeals for
the Ninth Circuit affirmed. Although it disagreed with the District
Court's jurisdictional analyses, the Court of Appeals affirmed the
dismissal of the complaint on the ground that petitioner had failed
to state a claim upon which relief could be granted. 798 F.2d 1547
(1986). Canvassing the background, language, and legislative
history of the PKPA, the Court of Appeals held that the Act does
not create
Page 484 U. S. 179
a private right of action in federal court to determine the
validity of two conflicting custody decrees.
Id. at
1552-1559. We granted certiorari, 479 U.S. 1063 (1987), and we now
affirm.
II
In determining whether to infer a private cause of action from a
federal statute, our focal point is Congress' intent in enacting
the statute. As guides to discerning that intent, we have relied on
the four factors set out in
Cort v. Ash, 422 U. S.
66,
422 U. S. 78
(1975), along with other tools of statutory construction.
See
Daily Income Fund, Inc. v. Fox, 464 U.
S. 523,
464 U. S.
535-536 (1984);
California v. Sierra Club,
451 U. S. 287,
451 U. S. 293
(1981);
Touche Ross & Co. v. Redington, 442 U.
S. 560,
442 U. S.
575-676 (1979). Our focus on congressional intent does
not mean that we require evidence that Members of Congress, in
enacting the statute, actually had in mind the creation of a
private cause of action. The implied cause of action doctrine would
be a virtual dead letter were it limited to correcting drafting
errors when Congress simply forgot to codify its evident intention
to provide a cause of action. Rather, as an implied cause of action
doctrine suggests,
"the legislative history of a statute that does not expressly
create or deny a private remedy will typically be equally silent or
ambiguous on the question."
Cannon v. University of Chicago, 441 U.
S. 677,
441 U. S. 694
(1979). We therefore have recognized that Congress"'intent may
appear implicitly in the language or structure of the statute, or
in the circumstances of its enactment."
Transamerica Mortgage
Advisors, Inc. v. Lewis, 444 U. S. 11,
444 U. S. 18
(1979). The intent of Congress remains the ultimate issue, however,
and,
"unless this congressional intent can be inferred from the
language of the statute, the statutory structure, or some other
source, the essential predicate for implication of a private remedy
simply does not exist."
Northwest Airlines, Inc. v. Transport Workers,
451 U. S. 77,
451 U. S. 94
(1981). In this case, the essential predicate for implication of a
private remedy plainly does not exist. None of the factors
Page 484 U. S. 180
that have guided our inquiry in this difficult area points in
favor of inferring a private cause of action. Indeed, the context,
language, and legislative history of the PKPA all point sharply
away from the remedy petitioner urges us to infer.
We examine initially the context of the PKPA with an eye toward
determining Congress' perception of the law that it was shaping or
reshaping.
See Merrill Lynch, Pierce, Fenner & Smith, Inc.
v. Curran, 456 U. S. 353,
456 U. S. 378
(1982);
Cort v. Ash, supra, at
422 U. S. 69. At
the time Congress passed the PKPA, custody orders held a peculiar
status under the full faith and credit doctrine, which requires
each State to give effect to the judicial proceedings of other
States,
see U.S.Const., Art. IV, § 1; 28 U.S.C. § 1738.
The anomaly traces to the fact that custody orders
characteristically are subject to modification as required by the
best interests of the child. As a consequence, some courts doubted
whether custody orders were sufficiently "final" to trigger full
faith and credit requirements,
see, e.g., Hooks v. Hooks,
771 F.2d 935, 948 (CA6 1985);
McDougald v.
Jenson, 596 F.
Supp. 680, 684-685 (ND Fla.1984),
aff'd, 786 F.2d 1465
(CA11),
cert. denied, 479 U.S. 860 (1986), and this Court
had declined expressly to settle the question.
See Ford v.
Ford, 371 U. S. 187,
371 U. S. 192
(1962). Even if custody orders were subject to full faith and
credit requirements, the Full Faith and Credit Clause obliges
States only to accord the same force to judgments as would be
accorded by the courts of the State in which the judgment was
entered. Because courts entering custody orders generally retain
the power to modify them, courts in other States were no less
entitled to change the terms of custody according to their own
views of the child's best interest.
See New York ex rel. Halvey
v. Halvey, 330 U. S. 610,
330 U. S.
614-615 (1947). For these reasons, a parent who lost a
custody battle in one State had an incentive to kidnap the child
and move to another State to relitigate the issue. This
circumstance contributed to widespread jurisdictional deadlocks
like this one, and more importantly, to a national epidemic of
parental kidnaping.
Page 484 U. S. 181
At the time the PKPA was enacted, sponsors of the Act estimated
that between 25,000 and 100,000 children were kidnaped by parents
who had been unable to obtain custody in a legal forum.
See Parental Kidnaping Prevention Act of 1979: Joint
Hearing on S. 105 before the Subcommittee on Criminal Justice of
the Judiciary Committee and the Subcommittee on Child and Human
Development of the Committee on Labor and Human Resources, 96th
Cong., 2d Sess., 10 (1980) (hereinafter PKPA Joint Hearing)
(statement of Sen. Malcolm Wallop).
A number of States joined in an effort to avoid these
jurisdictional conflicts by adopting the Uniform Child Custody
Jurisdiction Act (UCCJA), 9 U.L.A. §§ 1-28 (1979). The UCCJA
prescribed uniform standards for deciding which State could make a
custody determination and obligated enacting States to enforce the
determination made by the State with proper jurisdiction. The
project foundered, however, because a number of States refused to
enact the UCCJA, while others enacted it with modifications. In the
absence of uniform national standards for allocating and enforcing
custody determinations, noncustodial parents still had reason to
snatch their children and petition the courts of any of a number of
haven States for sole custody.
The context of the PKPA therefore suggests that the principal
problem Congress was seeking to remedy was the inapplicability of
full faith and credit requirements to custody determinations.
Statements made when the Act was introduced in Congress forcefully
confirm that suggestion. The sponsors and supporters of the Act
continually indicated that the purpose of the PKPA was to provide
for nationwide enforcement of custody orders made in accordance
with the terms of the UCCJA. As Acting Deputy Attorney General
Michel testified:
"[C]urrent law in many States encourages a parent who does not
have custody to snatch the child from the parent who does and take
the child to another State to relitigate
Page 484 U. S. 182
the custody issue in a new forum. This kind of 'forum shopping'
is possible because child custody orders are subject to
modification to conform with changes in circumstances.
Consequently, a court deciding a custody case is not, as a Federal
constitutional requirement of the full faith and credit clause,
bound by a decree by a court of another State, even where the
action involves the same parties."
"
* * * *"
"In essence, [the PKPA] would impose on States a Federal duty,
under enumerated standards derived from the UCCJA, to give full
faith and credit to the custody decrees of other States. Such
legislation would, in effect, amount to Federal adoption of key
provisions of the UCCJA for all States, and would eliminate the
incentive for one parent to remove a minor child to another
jurisdiction. PKPA Joint Hearing 48. [
Footnote 3]"
The significance of Congress' full faith and credit approach to
the problem of child snatching is that the Full Faith and Credit
Clause, in either its constitutional or statutory incarnations,
does not give rise to an implied federal cause of action.
Minnesota v. Northern Securities Co., 194 U. S.
48,
194 U. S. 72
(1904);
see 13B C. Wright, A. Miller, & E. Cooper,
Federal Practice and Procedure § 3563, p. 50 (1984). Rather, the
Clause
"only prescribes a rule by which courts, Federal and state, are
to be guided when a question arises in the
Page 484 U. S. 183
progress of a pending suit as to the faith and credit to be
given by the court to the public acts, records, and judicial
proceedings of a State other than that in which the court is
sitting."
Northern Securities, supra, at
194 U. S. 72.
Because Congress' chief aim in enacting the PKPA was to extend the
requirements of the Full Faith and Credit Clause to custody
determinations, the Act is most naturally construed to furnish a
rule of decision for courts to use in adjudicating custody
disputes, and not to create an entirely new cause of action. It
thus is not compatible with the purpose and context of the
legislative scheme to infer a private cause of action.
See Cort
v. Ash, 422 U.S. at
422 U. S.
78.
The language and placement of the statute reinforce this
conclusion. The PKPA, 28 U.S.C. § 1738A, is an addendum to the full
faith and credit statute, 28 U.S.C. § 1738. This fact alone is
strong proof that the Act is intended to have the same operative
effect as the full faith and credit statute. Similarly instructive
is the heading to the PKPA: "Full faith and credit given to child
custody determinations." As for the language of the Act, it is
addressed entirely to States and state courts. Unlike statutes that
explicitly confer a right on a specified class of persons, the PKPA
is a mandate directed to state courts to respect the custody
decrees of sister States.
See Cannon v. University of
Chicago, 441 U.S. at
441 U. S. 690,
n. 13;
Cort v. Ash, supra, at
422 U. S. 81-82.
We agree with the Court of Appeals that
"[i]t seems highly unlikely Congress would follow the pattern of
the Full Faith and Credit Clause and section 1738 by structuring
section 1738A as a command to state courts to give full faith and
credit to the child custody decrees of other states, and yet,
without comment, depart from the enforcement practice followed
under the Clause and section 1738."
798 F.2d at 1556.
Finally, the legislative history of the PKPA provides unusually
clear indication that Congress did not intend the federal
Page 484 U. S. 184
courts to play the enforcement role that petitioner urges. Two
passages are particularly revealing. The first of these is a
colloquy between Congressmen Conyers and Fish. Congressman Fish had
been the sponsor of a competing legislative proposal -- ultimately
rejected by Congress -- that would have extended the district
courts' diversity jurisdiction to encompass actions for enforcement
of state custody orders. In the following exchange, Congressman
Conyers questioned Congressman Fish about the differences between
his proposal and "the Bennett proposal," which was a precursor to
the PKPA.
"Mr. Conyers: Could I just interject, the difference between the
Bennett proposal and yours: you would have, enforcing the full
faith and credit provision, the parties removed to a Federal court.
Under the Bennett provision, his bill would impose the full faith
and credit enforcement on the State court."
"It seems to me that that is a very important difference. The
Federal jurisdiction, could it not, Mr. Fish, result in the Federal
court litigating between two State court decrees; whereas, in an
alternate method previously suggested, we would be imposing the
responsibility of the enforcement upon the State court, and thereby
reducing, it seems to me, the amount of litigation."
"Do you see any possible merit in leaving the enforcement at the
State level, rather than introducing the Federal judiciary?"
"Mr. Fish: Well, I really think that it is easier on the parent
that has custody of the child to go to the nearest Federal district
court. . . . "
"Mr. Conyers: Of course you know that the Federal courts have no
experience in these kinds of matters, and they would be moving into
this other area. I am just thinking of the fact that they have
[many areas of federal concern and] on the average of a 21-month
docket, you
Page 484 U. S. 185
would now be imposing custody matters which it seems might be
handled in the courts that normally handle that. . . ."
Parental Kidnaping: Hearing on H.R. 1290 before the Subcommittee
on Crime of the House Committee on the Judiciary, 96th Cong., 2d
Sess., 14 (1980).
This exchange suggests that Congress considered and rejected an
approach to the problem that would have resulted in a "Federal
court litigating between two State court decrees."
Ibid.
The second noteworthy entry in the legislative history is a
letter from then Assistant Attorney General Patricia Wald to the
Chairman of the House Judiciary Committee, which was referred to
extensively during the debate on the PKPA. The letter outlined a
variety of solutions to the child-snatching problem. It
specifically compared proposals that would "grant jurisdiction to
the federal courts to enforce state custody decrees" with an
approach, such as was proposed in the PKPA, that would
"impose on states a federal duty, under enumerated standards
derived generally from the UCCJA, to give full faith and credit to
the custody decrees of other states."
Addendum to Joint Hearing 103. The letter endorsed the full
faith and credit approach that eventually was codified in the PKPA.
More importantly, it "strongly oppose[d] . . . the creation of a
federal forum for resolving custody disputes."
Id. at 108.
Like Congressman Conyers, the Justice Department reasoned that
federal enforcement of state custody decrees would increase the
workload of the federal courts and entangle the federal judiciary
in domestic relations disputes with which they have little
experience and which traditionally have been the province of the
States. That the views of the Justice Department and Congressman
Conyers prevailed, and that Congress explicitly opted for a full
faith and credit approach over reliance on enforcement by the
federal courts, provide strong evidence against inferring a federal
cause of action.
Cf. Cort v. Ash,
Page 484 U. S. 186
422 U. S. 422
U.S. at 82 (congressional determination not to create a private
cause of action is dispositive).
Petitioner discounts these portions of the legislative history.
He argues that the cause of action that he asks us to infer arises
only in cases of an actual conflict between two state custody
decrees, and thus is substantially narrower than the cause of
action proposed by Congressman Fish and rejected by Congress. The
Fish bill would have extended federal diversity jurisdiction to
permit federal courts to enforce custody orders in the first
instance, before a second State had created a conflict by refusing
to do so. This cause of action admittedly is farther reaching than
that which we reject today. But the considerations that prompted
Congress to reject the Fish bill also militate against the more
circumscribed role for the federal courts that petitioner proposes.
See Rogers v. Platt, 259 U.S.App.D.C. 154, 164, 814 F.2d
683, 693 (1987). Instructing the federal courts to play Solomon
where two state courts have issued conflicting custody orders would
entangle them in traditional state law questions that they have
little expertise to resolve. [
Footnote 4] This is
Page 484 U. S. 187
a cost that Congress made clear it did not want the PKPA to
carry. [
Footnote 5]
In sum, the context, language, and history of the PKPA together
make out a conclusive case against inferring a cause of action in
federal court to determine which of two conflicting state custody
decrees is valid. Against this impressive evidence, petitioner
relies primarily on the argument that failure to infer a cause of
action would render the PKPA nugatory. We note, as a preliminary
response, that ultimate review remains available in this Court for
truly intractable jurisdictional deadlocks. In addition, the
unspoken presumption in petitioner's argument is that the States
are either unable or unwilling to enforce the provisions of the
Act. This is a presumption we are not prepared, and more
importantly, Congress was not prepared, to indulge. State courts
faithfully administer the Full Faith and Credit Clause every day;
now that Congress has extended full faith and credit requirements
to child custody orders, we can think of no reason why the courts'
administration of federal law in custody disputes will be any less
vigilant. Should state courts prove as obstinate as petitioner
predicts, Congress may choose to revisit the issue. But any more
radical approach to the problem will have to await further
legislative action; we "will not engraft a remedy on a statute, no
matter how salutary, that Congress did not intend to provide."
California v. Sierra Club, 451 U.
S. 287,
451 U. S. 297
(1981). The judgment of the Court of Appeals is affirmed.
It is so ordered.
Page 484 U. S. 188
[
Footnote 1]
Section 1738A reads in relevant part:
"(a) The appropriate authorities of every State shall enforce
according to its terms, and shall not modify except as provided in
subsection (f) of this section, any child custody determination
made consistently with the provisions of this section by a court of
another State."
"
* * * *"
"(c) A child custody determination made by a court of a State is
consistent with the provisions of this section only if -- "
"(1) such court has jurisdiction under the law of such state;
and"
"(2) one of the following conditions is met:"
"(A) such State (i) is the home State of the child on the date
of the commencement of the proceeding, or (ii) had been the child's
home State within six months before the date of the commencement of
the proceeding and the child is absent from such State because of
his removal or retention by a contestant or for other reasons, and
a contestant continues to live in such State;"
"(B)(i) it appears that no other State would have jurisdiction
under subparagraph (A), and (ii) it is in the best interest of the
child that a court of such State assume jurisdiction because (1)
the child and his parents, or the child and at least one
contestant, have a significant connection with such State other
than mere physical presence in such State, and (II) there is
available in such State substantial evidence concerning the child's
present or future care, protection, training, and personal
relationships;"
"(C) the child is physically present in such State and (i) the
child has been abandoned, or (ii) it is necessary in an emergency
to protect the child because he has been subjected to or threatened
with mistreatment or abuse;"
"(D)(i) it appears that no other State would have jurisdiction
under subparagraph (A), (B), (C), or (E), or another State has
declined to exercise jurisdiction on the ground that the State
whose jurisdiction is in issue is the more appropriate forum to
determine the custody of the child, and (ii) it is in the best
interest of the child that such court assume jurisdiction; or"
"(E) the court has continuing jurisdiction pursuant to
subsection (d) of this section."
"(d) The jurisdiction of a court of a State which has made a
child custody determination consistently with the provisions of
this section continues as long as the requirement of subsection
(c)(1) of this section continues to be met and such State remains
the residence of the child or of any contestant."
"
* * * *"
"(f) A court of a State may modify a determination of the
custody of the same child made by a court of another State, if --
"
"(1) it has jurisdiction to make such a child custody
determination; and"
"(2) the court of the other State no longer has jurisdiction, or
it has declined to exercise such jurisdiction to modify such
determination."
"(g) A court of a State shall not exercise jurisdiction in any
proceeding for a custody determination commenced during the
pendency of a proceeding in a court of another State where such
court of that other State is exercising jurisdiction consistently
with the provisions of this section to make a custody
determination."
[
Footnote 2]
The sole exception to this constraint occurs where the first
State either has lost jurisdiction or has declined to exercise
continuing jurisdiction.
See § 1738A(f).
[
Footnote 3]
Mr. Michel's remarks are echoed in numerous other portions of
the legislative history.
See, e.g., PKPA Joint Hearing
40-41 (statement of Sen. Durenberger);
id. at 12
(statement of Sen. Wallop); PKPA: Addendum to Joint Hearing on S.
105 before the Subcommittee on Criminal Justice of the Committee on
the Judiciary and the Subcommittee on Child and Human Development
of the Committee on Labor and Human Resources, 96th Cong., 2d
Sess., 104-105 (1980) (hereinafter Addendum to Joint Hearing)
(letter from Assistant Attorney General Patricia Wald to Rep. Peter
Rodino).
[
Footnote 4]
Petitioner argues that determining which of two conflicting
custody decrees should be given effect under the PKPA would not
require the federal courts to resolve the merits of custody
disputes, and thus would not offend the longstanding tradition of
reserving domestic relations matters to the States. Petitioner
contends that the cause of action he champions would require
federal courts only to analyze which of two States is given
exclusive jurisdiction under a federal statute, a task for which
the federal courts are well qualified. We cannot agree with
petitioner that making a jurisdictional determination under the
PKPA would not involve the federal courts in substantive domestic
relations determinations. Under the Act, jurisdiction can turn on
the child's "best interest" or on proof that the child has been
abandoned or abused.
See §§ 1738A (c)(2)(B), (C), and (D).
In fact, it would seem that the jurisdictional disputes that are
sufficiently complicated as to have provoked conflicting state
court holdings are the most likely to require resolution of these
traditional domestic relations inquiries.
See Rogers v.
Platt, 259 U.S.App.D.C. 154, 162, 814 F.2d 683, 691 (1987).
Cf. Cort v. Ash, 422 U. S. 66,
422 U. S. 84
(1975) (possibility that implied federal cause of action may in
certain instances turn on state law issues counsels against
inferring such an action.)
[
Footnote 5]
Moreover, petitioner's argument serves to underscore the
extraordinary nature of the cause of action he urges us to infer.
Petitioner essentially asks that federal district courts exercise
appellate review of state court judgments. This is an unusual cause
of action for Congress to grant, either expressly or by
implication. Petitioner's proposal is all the more remarkable in
the present case, in which he seeks to have a Federal District
Court in California enjoin enforcement of a Louisiana state court
judgment before the intermediate and highest appellate courts of
Louisiana even have had an opportunity to review that judgment.
JUSTICE O'CONNOR, concurring in part and concurring in the
judgment.
For the reasons expressed by JUSTICE SCALIA in Part I of his
opinion in this case, I join all but the first full paragraph of
Part II of the Court's opinion and judgment.
JUSTICE SCALIA, concurring in the judgment.
I write separately because, in my view, the Court is not being
faithful to current doctrine in its dicta denying the necessity of
an actual congressional intent to create a private right of action,
and in referring to
Cort v. Ash, 422 U. S.
66 (1975), as though its analysis had not been
effectively overruled by our later opinions. I take the opportunity
to suggest, at the same time, why, in my view, the law revision
that the Court's dicta would undertake moves in precisely the wrong
direction.
I
I agree that the Parental Kidnaping Prevention Act, 28 U.S.C. §
1738A, does not create a private right of action in federal court
to determine which of two conflicting child custody decrees is
valid. I disagree, however, with the portion of the Court's
analysis that flows from the following statement:
"Our focus on congressional intent does not mean that we require
evidence that Members of Congress, in enacting the statute,
actually had in mind the creation of a private cause of
action."
Ante at
484 U. S. 179.
I am at a loss to imagine what congressional intent to create a
private right of action might mean, if it does not mean that
Congress had in mind the creation of a private right of action. Our
precedents, moreover, give no indication of a secret meaning, but
to the contrary seem to use "intent" to mean "intent." For
example:
Page 484 U. S. 189
"[T]he focus of the inquiry is on whether Congress intended to
create a remedy.
Universities Research Assn., Inc. v.
Coutu, 450 U.S. at
450 U. S. 771-772;
Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. at
444 U. S. 23-24;
Touche
Ross & Co. v. Redington, [442 U.S.] at
442 U. S.
575-576. The federal judiciary will not engraft a remedy
on a statute, no matter how salutary, that Congress did not intend
to provide."
California v. Sierra Club, 451 U.
S. 287,
451 U. S. 297
(1981) (WHITE, J.). We have said, to be sure, that the existence of
intent may be inferred from various indicia; but that is worlds
apart from today's Delphic pronouncement that intent is required,
but need not really exist.
I also find misleading the Court's statement that, in
determining the existence of a private right of action, "we have
relied on the four factors set out in
Cort v. Ash, . . .
along with other tools of statutory construction."
Ante at
484 U. S. 179.
That is not an accurate description of what we have done. It could
not be plainer that we effectively overruled the
Cort v.
Ash analysis in
Touche Ross & Co. v. Redington,
442 U. S. 560,
442 U. S.
575-576 (1979), and
Transamerica Mortgage Advisors,
Inc. v. Lewis, 444 U. S. 11,
444 U. S. 18
(1979), converting one of its four factors (congressional intent)
into
the determinative factor, with the other three merely
indicative of its presence or absence.
Compare Cort v. Ash,
supra, at
422 U. S. 78,
with Transamerica, supra, at
444 U. S.
23-24.
Finally, the Court's opinion conveys a misleading impression of
current law when it proceeds to examine the "context" of the
legislation for indication of intent to create a private right of
action, after having found no such indication in either text or
legislative history. In my view, that examination is entirely
superfluous, since context alone cannot suffice. We have held
context to be relevant to our determination in only two cases --
both of which involved statutory language that, in the judicial
interpretation of related legislation prior to the subject
statute's enactment, or of the same legislation prior
Page 484 U. S. 190
to its reenactment, had been held to create private rights of
action.
See Cannon v. University of Chicago, 441 U.
S. 677 (1979);
Merrill Lynch, Pierce, Fenner &
Smith, Inc. v. Curran, 456 U. S. 353
(1982). Since this is not a case where such textual support exists,
or even where there is any support in legislative history, the
"context" of the enactment is immaterial.
Contrary to what the language of today's opinion suggests, this
Court has long since abandoned its hospitable attitude towards
implied rights of action. In the 23 years since Justice Clark's
opinion for the court in
J. I. Case Co. v. Borak,
377 U. S. 426
(1964), we have
twice narrowed the test for implying a
private right, first in
Cort v. Ash, supra, itself, and
then again in
Touche Ross & Co. v. Redington, supra,
and
Transamerica Mortgage Advisers, Inc. v. Lewis, supra.
See also Cannon v. University of Chicago, supra, at
441 U. S. 730
(Powell, J., dissenting), and
California v. Sierra Club,
supra, at
451 U. S. 301
(REHNQUIST, J., joined by Burger, C.J., and Stewart and Powell,
JJ., concurring). The recent history of our holdings is one of
repeated rejection of claims of an implied right. This has been
true in 9 of 11 recent private right of action cases heard by this
Court, including the instant case.
See Touche Ross, supra;
Transamerica, supra; Universities Research Assn., Inc. v.
Coutu, 450 U. S. 754
(1981);
Northwest Airlines, Inc. v. Transport Workers,
451 U. S. 77,
451 U. S. 91-94
(1981);
California v. Sierra Club, supra; Texas Industries,
Inc. v. Radcliff Materials, Inc., 451 U.
S. 630,
451 U. S.
639-640 (1981);
Middlesex County Sewerage Authority
v. National Sea Clammers Assn., 453 U. S.
1,
453 U. S. 13-18
(1981);
Daily Income Fund, Inc. v. Fox, 464 U.
S. 523,
464 U. S.
535-536 (1984); and
Massachusetts Mut. Life Ins. Co.
v. Russell, 473 U. S. 134,
473 U. S.
145-148 (1985).
But see Merrill Lynch, supra,
and
Cannon, supra. The Court's opinion exaggerates the
difficulty of establishing an implied right when it surmises
that
"[t]he implied cause of action doctrine would be a virtual dead
letter were it limited to correcting drafting errors when Congress
simply forgot to codify its evident intention to provide a
Page 484 U. S. 191
cause of action."
Ante at
484 U. S. 179.
That statement rests upon the erroneous premise that one never
implies anything except when he forgets to say it expressly. It is
true, however, that the congressional intent test for implying
private rights of action as it has evolved since the repudiation of
Cort v. Ash is much more stringent than the Court's dicta
in the present case suggest.
II
I have found the Court's dicta in the present case particularly
provocative of response because it is my view that, if the current
state of the law were to be changed, it should be moved in
precisely the opposite direction -- away from our current
congressional intent test to the categorical position that federal
private rights of action will not be implied.
As Justice Powell observed in his dissent in
Cannon,
supra, at
441 U. S.
730-731:
"Under Art. III, Congress alone has the responsibility for
determining the jurisdiction of the lower federal courts. As the
Legislative Branch, Congress also should determine when private
parties are to be given causes of action under legislation it
adopts. As countless statutes demonstrate, including Titles of the
Civil Rights Act of 1964, Congress recognizes that the creation of
private actions is a legislative function, and frequently exercises
it. When Congress chooses not to provide a private civil remedy,
federal courts should not assume the legislative role of creating
such a remedy and thereby enlarge their jurisdiction."
(Footnote omitted.) It is, to be sure, not beyond imagination
that, in a particular case, Congress may intend to create a private
right of action, but chooses to do so by implication. One must
wonder, however, whether the good produced by a judicial rule that
accommodates this remote possibility is outweighed by its adverse
effects. An enactment by implication cannot realistically be
regarded as the product of the difficult lawmaking process our
Constitution has prescribed. Committee reports,
Page 484 U. S. 192
floor speeches, and even colloquies between Congressmen,
ante at
484 U. S.
184-185, are frail substitutes for bicameral vote upon
the text of a law and its presentment to the President.
See
generally INS v. Chadha, 462 U. S. 919
(1983). It is at best dangerous to assume that all the necessary
participants in the law-enactment process are acting upon the same
unexpressed assumptions. And likewise dangerous to assume that,
even with the utmost self-discipline, judges can prevent the
implications they see from mirroring the policies they favor.
I suppose all this could be said, to a greater or lesser degree,
of all implications that courts derive from statutory language,
which are assuredly numerous as the stars. But as the likelihood
that Congress would leave the matter to implication decreases, so
does the justification for bearing the risk of distorting the
constitutional process. A legislative act so significant, and so
separable from the remainder of the statute, as the creation of a
private right of action seems to me so implausibly left to
implication that the risk should not be endured.
If we were to announce a flat rule that private rights of action
will not be implied in statutes hereafter enacted, the risk that
that course would occasionally frustrate genuine legislative intent
would decrease from its current level of minimal to virtually zero.
It would then be true that the opportunity for frustration of
intent
"would be a virtual dead letter[,] . . . limited to . . .
drafting errors when Congress simply forgot to codify its . . .
intention to provide a cause of action."
Ante at
484 U. S. 179.
I believe, moreover, that Congress would welcome the certainty that
such a rule would produce. Surely conscientious legislators cannot
relish the current situation, in which the existence or
nonexistence of a private right of action depends upon which of the
opposing legislative forces may have guessed right as to the
implications the statute will be found to contain.
If a change is to be made, we should get out of the business of
implied private rights of action altogether.