This Chapter discusses several bases for suing to enforce rights created by federal law. To sue in federal court, plaintiffs must have a “cause of action.” The term has a special, particularized meaning in federal litigation. Most lawyers use the term “cause of action” synonymously with the term “legal claim” to indicate a client’s legal right that the defendant has violated. In federal litigation, however, a party has a cause of action only if his or her legal rights have been violated and he or she has a recognized constitutional and/or statutory right to redress the violation by bringing an affirmative action in federal court. The Supreme Court has explained the cause of action concept and compared it to the related, but distinct, concepts of jurisdiction, standing, and relief in the following terms:
[I]t may be said that [j]urisdiction is a question of whether a federal court has the power, under the Constitution or laws of the United States, to hear a case ...; standing is a question of whether a plaintiff is sufficiently adversary to a defendant to create an Art. III case or controversy, or at least to overcome prudential limitations on federal-court jurisdiction ...; cause of action is a question of whether a particular plaintiff is a member of the class of litigants that may, as a matter of law, appropriately invoke the power of the court; and relief is a question of the various remedies a federal court may make available. A plaintiff may have a cause of action even though he be entitled to no relief at all, as, for example, when a plaintiff sues for declaratory or injunctive relief although his case does not fulfill the “preconditions” for such equitable remedies.1
The substantive rights at issue may arise from the federal Constitution, statutes, or regulations. An individual plaintiff’s basis to enforce an asserted statutory right through litigation – a “private right of action” may be derived from express language in a statute creating the right, from other federal statutes that provide a vehicle for the enforcement of rights created by the Constitution and laws of the United States, or by implication from the source of the right.
This Chapter will not address statutes that both create rights and express remedies for violations of those rights.2 Instead, it will first analyze umbrella statutes that provide a general right to sue for violations of rights arising under other sources of federal law that do not themselves specifically provide the right to sue. This chapter will then analyze causes of action claimed to arise by implication from other sources of federal law. Finally, third party beneficiary claims are discussed.
- 1. Davis v. Passman, 442 U.S. 228, 239-40 n.18 (1979) (citations omitted). For a helpful overview of potential claims, see Rochelle Bobroff, You Have a Federal Right, but Do You Have a Remedy?, 44 Clearinghouse Review 428 (Jan.-Feb. 2011).
- 2. The authors presume that legal aid advocates have familiarity with the specific statutes relevant to their particular practice. Examples of statutes creating express rights and remedies include: (1) anti-discrimination statutes, such as 42 U.S.C. §§ 1981 (contracts), 1982 (property), 1985 (conspiracy), 2000d-2 (federally assisted programs), 2000e-5 et seq. (employment), and 45 U.S.C. § 3612 (housing); the Rehabilitation Act of 1973, 29 U.S.C. § 794; the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq.; the minimum wage and maximum hours provisions of the Fair Labor Standards Act, 29 U.S.C. § 216(b); and the Consumer Credit Protection Act provisions, such as 15 U.S.C. §§ 1640 (truth in lending), 1691e (equal credit opportunity), and 1692k (debt collection practices).