Chapter 5: Causes of Action

Updated 2013

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). For further information on these statutes and many others of potential interest, please consult the list of specialized national support centers listed in the inside back cover of the Clearinghouse Review.

Updated 2013


5.1.A Express Causes of Action, Section 1983, Elements of the Claim

Updated 2013 by Robert P. Capistrano

The two principal statutes creating general causes of action for the enforcement of rights created by federal law are the Reconstruction Civil Rights Acts,/1/ particularly Section 1983, and the Administrative Procedure Act./2/ Section 1983 authorizes a wide variety of suits against state and local governments and officials for deprivations of federal rights under color of state law, while other Reconstruction statutes authorize more limited claims against private parties who violate federal rights. The Administrative Procedure Act authorizes a narrower variety of suits against federal officials and agencies. Section 1983 litigation has vindicated constitutional and statutory rights in the context of health, welfare, education, housing, employment, and prison law in litigation against state, county, or municipal officials. The Administrative Procedure Act has vindicated similar rights by correcting federal agency action or by forcing specific federal agency action.

5.1.A. Section 1983

The Reconstruction Civil Rights Acts, enacted during the 1860s and 1870s, provide the right to bring an action in federal court for violations of federal civil rights by state or local officials, by private parties acting in concert with the state, or, in more limited situations, by private parties acting alone./3/ The most important of these statutes is Section 1983./4/ Section 1983 creates no substantive rights. Rather, it creates a vehicle for enforcing existing federal rights. The statute provides in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

The elements of a Section 1983 case are “the deprivation of any rights, privileges, or immunities secured by the Constitution and laws” by a “person”/5/ acting “under color” of state law. The “laws” referred to include those statutes that confer individual rights on a class of persons that include the plaintiff./6/ Because the purpose of Section 1983 is to vindicate federal rights, a plaintiff suing under the statute is in most circumstances not required to exhaust state procedures or remedies which would be otherwise required prior to filing suit./7/

A Section 1983 complaint filed in federal court must name a defendant who is not immune under the Eleventh Amendment and who is acting under color of state law, and must seek relief not barred by the Eleventh Amendment./8/ If the plaintiff establishes a violation of a federal right,/9/ defendants may in certain circumstances avoid liability for damages by proving a qualified immunity./10/

5.1.A.1. Finding a Federal Right

By its terms, Section 1983 can be used to remedy the deprivation of “rights” granted to the plaintiff under the Constitution, federal statutes, and regulations implementing these statutes. Constitutional provisions that are enforceable by a private party under Section 1983 consist of those which create personal rights and either explicitly apply to the states, or have been held to apply to the states by operation of the Fourteenth Amendment./11/ In contrast to the relatively straightforward expression of individual “rights” protected by the Constitution, whether a statutorily created “right” exists has posed something of a challenge to plaintiffs.

Under the separation of powers doctrine, only the legislative branch has the power to create statutory causes of action./12/ Hence, the ability of a private party to successfully sue to enforce a statute depends on whether Congress, in enacting the statute, has given the plaintiff a “private right of action.” As noted, these rights are sometimes expressly granted by statute. All other rights are “implied,” and a court’s task is to discern the intent of Congress./13/ The two avenues for enforcing implied rights of action are either to sue directly under the statute or to litigate using the vehicle provided by 42 U.S.C. § 1983.

In Cort v. Ash,/14/ the Supreme Court enunciated a four-part test to determine whether Congress intended to imply a right to sue directly under a federal statute. In general, a plaintiff asserting the right is required to show that (1) membership in the class for whose benefit the statute was enacted, (2) evidence of Congress’ intent to confer a private remedy, (3) that a right to sue would be consistent with the statutory purpose, and (4) that the cause of action is not one traditionally relegated to the states to a degree that implying a right to sue would be inappropriate. In short, under this doctrine, the plaintiff must show that Congress intended to grant both a private right and a private remedy./15/

In the years following Cort, the judiciary became less willing to find rights of action implied directly under a statute, and plaintiffs began turning to Section 1983–the alternative path for enforcing rights created by federal statute. In Maine v. Thiboutot,/16/ decided five years after Cort, the Supreme Court held for the first time that Section 1983 could be used to remedy the deprivation of rights created by a federal statute. Seven years later, in Wright v. Roanoke Redevelopment and Housing Authority,/17/ it suggested that a regulation promulgated to interpret a federal statute could also be a “law” which could be enforced under Section 1983./18/

Section 1983 generally provides a remedy so long as a right is shown to exist. The Supreme Court stated: “Once a plaintiff demonstrates that a statute confers an individual right, the right is presumptively enforceable by Section 1983.”/19/ However, not every federal law creates a “right” enforceable by a private plaintiff. As the Supreme Court became increasingly hostile to the use of Section 1983 to enforce federal statutes, it has continued to narrow its conception of the term. For this reason, one should understand the Court’s principal objections to the use of Section 1983 to enforce federal statutes.

The initial three-pronged test for finding a right enforceable under Section 1983 was set forth in Wilder v. Virginia Hospital Association./20/ It asks whether (1) Congress intended the particular statutory provision to benefit the plaintiff, (2) the provision is so vague or amorphous as to make judicial enforcement difficult or impractical, and (3) the statute imposes a binding obligation on the government./21/ After these inquiries, a fourth arises: (4) did Congress create a comprehensive mechanism for enforcing the statute which implies that it intended to deny a private right of action?/22/ Each of these prongs emerged from a series of Supreme Court decisions, with the first element undergoing something of a metamorphosis as it rose in importance in comparison to the other prongs of the test. Indeed, resolution of this first inquirythe extent to which the plaintiff is “benefited” by the statutewill usually be the key to whether Section 1983 can be invoked to enforce a federal statute./23/

5.1.A.1.a. Did Congress intend the law to so directly benefit the plaintiff, such that those in his or her place are the “unmistakable focus” of the statute?

The seesaw battle between shifting Supreme Court majorities over what constitutes an enforceable right led to a greater focus on the relationship between the aim of the statute and its effect on the plaintiff. As formulated by Wilder, even if a statute imposes binding obligations on the state which are capable of judicial enforcement, Section 1983 cannot be invoked unless Congress intended the law to directly benefit the plaintiff. However, this only begins the inquiry. The plaintiff must also point to evidence that Congress intended that he or sheand not just the federal governmentcould sue to enforce the statute.

In years past, some courts understood the Wilder test to allow private enforcement when the plaintiff was generally a beneficiary of the statute sought to be enforced. This made Section 1983 a friendlier avenue for enforcing a federal right than the implied right of action doctrine announced in Cort v. Ash. The erosion of this interpretation was first suggested in Blessing v. Freestone. Blessing involved a mandate requiring states receiving federal child-welfare funds to “substantially comply” with federal requirements aimed at ensuring timely payment of child support. The Court held that the mandate was not “an individual entitlement to services, … [but] simply a yardstick for the [federal government] to measure the systemwide performance of the State’s Title IV-D program.”/24/ Hence, parents who obviously benefited from the collection of child support were nevertheless unable to enforce the child support statute as a whole./25/ This is because, the Court held, the syntax used by Congress in enacting certain state compliance and reporting provisions evidenced a focus on the government’s interest in recouping public assistance benefits, rather than ensuring a continued income stream to specific families.

Blessing placed a cloud over the first prong, raising the prospect of denying enforcement rights to some people who had, at first glance, “benefited” under the statute. Indeed, a non- Section 1983 case, Alexander v. Sandoval, presaged the Court’s subsequent decision in Gonzaga University v. Doe by placing great emphasis on the language used by Congress./26/ “[S]tatutes that focus on the person regulated rather than the individuals protected create ‘no implication of an intention to confer rights on a particular class of persons.’”/27/ This view was imported into Section 1983 jurisprudence when elements of the implied right of action test were fused with Wilder’s “benefits the plaintiffs” test in Gonzaga./28/

In Gonzaga, the transformation of the “benefits” prong became manifest when the Court clarified that Section 1983 cannot be invoked simply because “the plaintiff falls within the general zone of interest that the statute is intended to protect.”/29/ Instead, the Court now requires a showing that “an unambiguously conferred right” exists that is “phrased in terms of the persons benefited.”/30/ “[I]t is rights, not the broader or vaguer ‘benefits’ or ‘interests,’ that may be enforced” under Section 1983./31/ In Gonzaga, the Court considered whether the Family Educational Rights and Privacy Act conferred a right to sue on a student whose privacy had been violated by the unauthorized release of educational records./32/ There, the Court dismissed statutory language that seemingly granted individual students protection from institutional invasions of privacy. It held instead that the statute was addressed more to the entity regulated than to the students benefited.

The Court cited several factors suggesting that the Family Educational Rights and Privacy Act did not confer an enforceable right upon students. First, the Court stated, “FERPA’s provisions speak only to the Secretary of Education, directing that ‘no funds shall be made available’ to any ‘educational agency or institution which has a prohibited ‘policy or practice’.”/33/ The Court approvingly quoted Cannon v. University of Chicago, a non-Section 1983 decision which applied the Cort v. Ash test to find a right of action implied under Title IX of the Civil Rights Act:

There would be far less reason to infer a private remedy in favor of individual persons if Congress, instead of drafting [the statute] with an unmistakable focus on the benefited class, had written it simply as a ban on [certain] conduct by recipients of federal funds or as a prohibition against the disbursement of public funds to ... institutions engaged in [prohibited] practices./34/

Second, because the statute barred the funding of institutions “which have a policy or practice of permitting the release of education records”, the Family Educational Rights and Privacy Act was said to “speak only in terms of institutional policy and practice, not individual instances of disclosure.”/35/ Citing Blessing v. Freestone, the Court found the Family Educational Rights and Privacy Act provisions to have an “‘aggregate’ focus ... not concerned with ‘whether the needs of any particular person have been satisfied,’ ... and ... cannot ‘give rise to individual rights.’”/36/ Conflating the previously separate inquiries under Section 1983 jurisprudence and the Cort v. Ash “implied rights” analysis, the Court concluded that “the initial inquiry [in a Section 1983 case] – 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.’”/37/

An “unambiguously conferred right” that is “phrased in terms of the persons benefited” (rather than in terms of the person or agency regulated) is now a central factor determining a plaintiff’s ability to enforce a federal statute using Section 1983./38/ Reviewing its past cases to illustrate the new standard, the Gonzaga Court noted that the rent ceiling provisions of the United States Housing Act of 1937 construed in Wright, as well as the reimbursement provisions of the Medicaid Act interpreted in Wilder, “explicitly conferred specific monetary entitlements upon the plaintiffs.”/39/ After Gonzaga, a plaintiff must now find a similar or analogous individual “entitlement” expressed in the language of a statute sought to be enforced through Section 1983. Therefore, the first question a prospective plaintiff must answer is whether he or she is the “unmistakable focus” of the statute in question./40/

With respect to a number of federal programs for low-income people, a strong argument can be made that Congress’ mandates are, in Gonzaga’s terms, “phrased in terms of the persons protected.”/41/ However, since many of these statutes were enacted under the Constitution’s Spending Clause, specific provisions of the statutes are written in a form which directs a federal agency to spend money so long as the state or other recipient complies with Congress’ rules (e.g., “the state’s plan shall provide ...”). Not surprisingly, government attorneys have argued with some success/42/ that such statutory provisions are “focus[ed] on the person regulated rather than the individuals protected” and hence, “create ‘no implication of an intention to confer rights on a particular class of persons.’”/43/ This sort of argument underscores the fact that advocates need to find language in the statutory provision sought to be enforced indicating that Congress “intended to confer individual rights upon a class of beneficiaries.”/44/ In addition, the advocate must research carefully how that provision has been interpreted both before and after Gonzaga./45/ Given the Supreme Court’s tendency to restrict further the ability of private litigants to enforce federal laws, one should be very leery of the consequences of exploring new ground on this issue.

5.1.A.1.b. Is the alleged “right” so vague or amorphous as to make it unenforceable?

Assuming the statute unambiguously confers a right on plaintiffs, the second issue a prospective plaintiff must ask is whether the statute contains a standard by which to measure the state or local agency’s compliance with the law.  In Suter v. Artist M., the Court found that the plaintiff could not enforce the requirement, found in the Adoption Assistance and Child Welfare Act, that a state make “reasonable efforts” to avoid the removal of children from their parents’ homes./46/ The Court held that the statute failed to set forth standards to judge the “reasonableness” of the state’s compliance with the law and was, therefore, too vague and amorphous to allow judicial enforcement./47/

By comparison, in Wright v. Roanoke Redevelopment and Housing Authority, plaintiffs prevailed in a Section 1983 claim that an inadequate public housing utility allowance violated rent ceilings imposed by the Brooke Amendment, even though the statute nowhere defined the components of “rent.” In response to arguments that the provision was vague and amorphous, the Court turned to United States Department of Housing and Urban Development (HUD) regulations to fill the gap, noting that the agency had defined “rent” to include a reasonable utility allowance./48/ Similarly, in Wilder,/49/ plaintiffs overcame a “vague and amorphous” argument in their challenge to a state’s failure to provide “reasonable” Medicaid reimbursement rates to providers. The Court found that definitions found elsewhere in the statute provided a standard for judicial enforcement./50/

5.1.A.1.c. Does the statute create a binding obligation?

In Pennhurst State School and Hospital v. Halderman, the first decision to limit the use of Section 1983 to enforce a federal statute, the Supreme Court considered the ostensibly “rights producing” language found in the Developmentally Disabled Assistance and Bill of Rights Act./51/ The Court ruled that congressional rhetoric about a disabled “bill of rights” found in the statute’s declaration of policy could not create enforceable rights since the law did not tie a state’s receipt of federal funding to the state’s compliance with the purported bill of rights. The statutory language was held to be “hortatory” rather than mandatory. Therefore, the third question a prospective plaintiff must consider is whether the statute sought to be enforced actually requires the state or local agency to do something.

5.1.A.1.d. Does the statute contain a comprehensive enforcement mechanism?

If the statute at issue passes muster under the prongs above, Section 1983 is presumed to provide a remedy unless the defendant shows that the enactment contains a “comprehensive enforcement mechanism” whose breadth or scope suggests that Congress viewed that mechanism as the sole means for statutory enforcement. In Middlesex County Sewerage Authority v. National Sea Clammers Association,/52/ environmentalists sought to use Section 1983 to enforce both the Federal Water Pollution Control Act and the Marine Protection, Research and Sanctuaries Act, by enjoining the dumping of waste in the Atlantic Ocean. In addition to providing a limited right to sue to private parties, these statutes provided an elaborate alternative mechanism to address the pollution problem. The Supreme Court pointed to those measures as indicating Congress’ intent to preclude enforcement of the legislation outside of the procedures set forth in these laws.

Following National Sea Clammers, the Court ruled that the existence of a comprehensive statutory remedy for aggrieved parties could also indicate Congress’ intent to preclude any other private remedies, including the invocation of Section 1983, which were based on the same “common nucleus of operative facts” giving rise to the statutory violation. Thus, in Smith v. Robinson,/53/ a disabled child who had claimed that he was not receiving an appropriate free education in violation of the Education for All Handicapped Children Act, the Rehabilitation Act, and the Equal Protection Clause, won his Education for All Handicapped Children Act claim. He thereafter pointed to his alternative Section 1983 claim to seek attorneys fees under 42 U.S.C. § 1988. Holding that EAHCA’s “comprehensive scheme” suggested Congress’ intent that the Education for All Handicapped Children Act be the exclusive vehicle for addressing an equal protection constitutional violation which was “virtually identical” to the Education for All Handicapped Children Act claim, the Court reasoned that Sections 1983 and 1988 were statutory remedies that Congress could implicitly repeal or replace with an alternate remedy./54/

In City of Rancho Palos Verdes v. Abrams, the Court found that, absent an explicit or implied indication that the statutory remedy was meant to complement other available remedies, the Telecommunications Act of 1996’s provision of a limited private remedy implied that a Section 1983 action was precluded./55/ In Sea Clammers, Smith and Rancho Palos Verdes, the statutes required the plaintiffs to exhaust administrative remedies or to comply with other procedures before bringing suit. As the Supreme Court subsequently explained in Fitzgerald v. Barnstable School Committee,/56/ to permit a plaintiff to bypass these procedures and to sue directly under § 1983 would have been incompatible with Congress' interest in creating these procedures. In contrast, Title IX, at issue in Fitzgerald, had no similar enforcement scheme and a private right of action directly under the statute has been implied./57/ Thus, in the absence of exhaustion or alternative remedial measures, the Court held that concurrent Title IX and § 1983 claims was permissible./58/

The existence of developed enforcement mechanisms, moreover, is not enough to make them “comprehensive.” Thus, in Wright, discussed earlier, the Court found that stringent federal oversight of public housing authorities, and the federal government’s power to cut off funding to non-complying agencies, did not preclude a Section 1983 remedy. On the one hand, the Court noted that the “[statutory provision] and its legislative history [are] devoid of any express indication that exclusive enforcement authority was vested in HUD”; on the other, “both congressional and agency actions indicat[e] that enforcement authority is not centralized and that private actions were anticipated.”/59/ Moreover, the Court observed, the statutory mandate that housing authorities provide a grievance procedure to tenants and the implementing regulation’s provision that the existence of a grievance procedure would not preclude judicial review suggested Congress’ intent to allow tenants to sue./60/

5.1.A.1.e. Does the enactment of a statute by Congress under its Spending Power undermine the enforceability of the statute under Section 1983?

Defendants have argued that legislation enacted under Congress’ spending power, Article I, Section 8 of the Constitution, generally creates only voluntary programs which the states are free to reject. Consequently, a state’s decision to participate in such a program results only in contractual obligations that cannot rise to the level of being “the supreme law of the land.”/61/ Although the issue has not come before the Supreme Court, two circuit courts of appeal have rejected this contention: Antrican v. Odom and Westside Mothers v. Haveman./62/

In Westside Mothers v. Haveman, the later of the two decisions, the Sixth Circuit ruled that the obligations of the state under the Medicaid Act were more than a mere contract. It quoted Bennett v. Kentucky Department of Education, which stated that, “[u]nlike normal contractual undertakings, federal grant programs originate in and remain governed by statutory provisions expressing desirable public policy.”/63/ Applying the three-prong Wilder/Blessing test--before the Gonzaga decision--the appellate court found the Medicaid Act provision enforceable under Section 1983./64/

5.1.A.1.f. To what degree can a federal regulation create rights enforceable under Section 1983?

In Wright, the Supreme Court implied that a regulation implementing a rights-creating statute (defining “rent” as including a reasonable amount to cover housing authorities’ tenants utility costs) was a “law” that could be enforced under Section 1983./65/ Shortly thereafter, in Wilder v. Virginia Hospital Association,/66/ it relied on the definition of “reasonable” contained in Medicaid regulations, to flesh out the statutory requirement that the “reasonable cost” of services be paid to providers. This blunted the argument that the statute was too vague or ambiguous to be enforced. Drawing on these decisions and the somewhat analogous case of Golden State Transit Corporation v. City of Los Angeles (Golden State II), it was generally believed that binding regulations could themselves create enforceable rights./67/ Recent appellate court rulings, however, question this view, suggesting that the private enforceability of a particular regulation depends on (1) the extent to which the regulation directly implements congressional intent, and (2) whether Congress also intended the governing statute to create a “right” enforceable under Section 1983.

In Chevron U.S.A. Incorporated v. Natural Resources Defense Council, the Supreme Court ruled that “[i]f Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to statute.”/68/ Under this view, “a reviewing court has no business rejecting an agency’s exercise of its generally conferred authority to resolve a particular statutory ambiguity simply because the agency’s chosen resolution seems unwise, ... but is obliged to accept the agency’s position if Congress has not previously spoken to the point at issue and the agency’s interpretation is reasonable.”/69/

Nevertheless, Justice O’Connor posed the issue in her dissent in Wright: “it is necessary to ask whether administrative regulations alone could create such a right.”/70/ Under the separation of powers doctrine, the creation of causes of action is within the purview of Congress,/71/ and the debate in the Supreme Court has involved the extent to which the enactment of Section 1983 evidenced the legislature’s intent to generally make actionable any deprivation resulting from the violation of “the constitution and laws.” The Supreme Court’s recent decision concerning the Title VI “disparate impact” regulations strongly suggests that private enforceability of federal regulations is directly dependent on Congressional intent.

In Alexander v. Sandoval, the Court considered whether, outside of the Section 1983 context, “disparate impact” regulations issued by the federal government to enforce Title VI of the Civil Rights Act could create an implied right of action./72/ The Court held that they could not, reasoning that: (1) one section of the statute had been interpreted as banning only intentional discrimination; (2) a second section of the statuteallowing HUD to issue regulations to carry out the intent of Congresswent beyond the first section and banned “disparate impact” discrimination; hence (3) one could not infer an implied right of action to enforce the regulations, even though the court had earlier upheld the validity of the disparate impact regulations./73/ The Court reasoned that “language in a regulation may invoke a[n implied] private right of action that Congress through statutory text created, but it may not create a right that Congress has not.”/74/

Although Sandoval was an implied private right of action decision that essentially explored the contours of the first prong of the Cort v. Ash test,/75/ the Supreme Court’s decision in Gonzaga equated that prong with the first element of the Wilder/Blessing test for determining whether a statute creates rights enforceable under Section 1983: “[T]he initial inquiry [in a Section 1983 case] – 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.’”/76/

Not surprisingly, several appellate decisions have anticipated the evolution of the Supreme Court majority’s thinking on the enforceability of federal regulations, creating a split in circuits. On the one hand, the pre-Sandoval/Gonzaga decision in Loschiavo v. City of Dearborn,/77/ and the even earlier case of Samuels v. District of Columbia,/78/ interpreted Section 1983 in an expansive manner, holding that valid regulations were “laws” that could be enforced independent of whether the governing statute had actually addressed the subject of the regulation. Citing Wright, the court in Loschiavo reasoned that because “federal regulations have the force of law, they likewise may create enforceable rights” if the regulations otherwise pass muster under the three-prong Wilder/Blessing test./79/

On the other hand, every recent appellate decision to address the issue has embraced the Sandoval analysis, essentially holding that regulations cannot independently create rights, and are enforceable under Section 1983 only to the extent that the regulations merely “flesh out” a statutory provision which itself creates the right. Thus, in Harris v. James, the Eleventh Circuit found that Medicaid regulations could not create a right to non-emergency transportation absent an explicit provision in the governing statute./80/ Similarly, in South Camden Citizens v. New Jersey Department of Environmental Protection, the Third Circuit relied on Sandoval to reject the private enforceability of Title VI disparate impact regulations under Section 1983./81/ The First Circuit adopted this view in Rolland v. Romney, although went on to find that plaintiffs had an enforceable right to certain specialized services under the Medicaid Act./82/ Most recently, the Ninth Circuit cited Gonzaga to buttress its holding in Save Our Valley v. Sound Transit that disparate impact regulations could not be enforced under Section 1983./83/ The court found that the Wilder/Blessing test need not be invoked in the regulatory context until after the plaintiff had first established that the governing statute had created an enforceable right./84/Indeed, in Caswell v. City of Detroit, the 6th Circuit rejected its earlier ruling in Loshiavo to hold unenforceable HUD regulations interpreting statutory provisions unenforceable under the Gonzaga test./85/

In light of Sandoval, Gonzaga, and the recent trend of appellate court decisions, an advocate seeking to enforce a regulation should argue, when possible, that the governing statute, in Gonzaga’s terms, grants an “unambiguously conferred right,” which is “phrased in terms of the persons benefited,” and is merely “fleshed out” by the regulation./86/

In sum, after Gonzaga, a plaintiff seeking to enforce a federal statute using Section 1983 must be able to point to an “unambiguously conferred right” that is “phrased in terms of the persons benefited.” However, once this hurdle is overcome, Section 1983 is presumed to provide a remedy, absent a “comprehensive enforcement mechanism” or other evidence to suggest that Congress withdrew this avenue.

5.1.A.2. “Persons” Acting “Under Color of State Law” Under Section 1983

A Section 1983 action can be brought only against a person acting “under color of [state] law.”/87/ Liability lies against those “who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it."/88/ Although the term “person” was originally thought to refer only to human beings, the concept was broadened in Monell v. New York City Department of Social Services/89/ to include cities and local governments whose custom, policy or practice caused the deprivation./90/ In any event, when the defendant is a government employee doing his or her job and acting under apparent government authority, she or he is very likely a “state actor./91/ When a private actor is involved, as is increasingly the case with the trend towards “privatization” of government services, the waters are somewhat murkier.

5.1.A.2.a. Under Color of State Law

State and local officials can interfere with federal rights in two distinct ways. By enforcing state laws or policies that conflict with federal law, state and local officials deprive their victims of federal rights. In such a case, the public officials obviously act under “color of state law.”/92/ State and local officials can also interfere with federally-protected rights by misusing power entrusted to them under state law. In such a case, the official acts under color of state law only at those times he or she is “clothed with the authority of state law.”/93/ Thus, a sheriff who assaulted his wife did not act under color of state law even though he was a public official; his status as a public official was not the source of his power to act./94/ In a closer case, the Eleventh Circuit held that a city manager, who investigated a citizen by traveling to another state with a city police officer to ask questions of various people, did not act as a state actor because his conduct did not require state authority; a private citizen could have undertaken the same activity./95/

Although misuse of power cases occasionally present difficult questions, the vast majority involve defendants who were able to inflict injury only because they were clothed with state authority. In such cases, defendants act under color of state law and can be sued under Section 1983. Moreover, defendants who enforce invalid state laws and regulations always act under color of state law./96/ Thus, the color of state law requirement ordinarily poses no problem in litigation against state and local officials, or against local governmental entities.

A more difficult question is presented when a private party is considered to be acting under color of state law so as to be suable under Section 1983./97/ Although closely related to the Fourteenth Amendment’s state action requirement, Section 1983’s color of state law requirement is conceptually distinct. Conduct that is state action under the Fourteenth Amendment is always action under color of state law for purposes of Section 1983./98/ However, conduct under color of state law may not constitute state action under the Fourteenth Amendment./99/ Because Section 1983 claims against private actors ordinarily involve a claimed deprivation of a constitutional right flowing from the Fourteenth Amendment, it is almost always necessary to establish state action under the amendment to prevail under Section 1983. Therefore, the focus of this section will be Fourteenth Amendment state action cases.

5.1.A.2.b. Private Parties as State Actors

Since the early 1970s, the Supreme Court has substantially narrowed the range of private conduct that constitutes state action. In determining whether a private party has engaged in “state action,” a court must weigh “whether the claimed ... deprivation resulted from the exercise of a right or privilege having its source in state authority ” and “whether the private party charged with the deprivation could be described in all fairness as a state actor.”/100/ In doing so, a court looks at (1) the extent to which the actor relies on governmental assistance and benefits, (2) whether the actor is performing a traditional governmental function, and (3) whether the injury caused was aggravated in a unique way by the incidents of governmental authority./101/ Because none of these factors is definitive, one can generalize that a deprivation of federal rights by a private party can constitute “state action” if the government has: (1) delegated its authority to the private actor, (2) participated in joint activity to a degree that the actions of one party can be attributed to the other, (3) created the legal framework necessary to carry out the private action, (4) compelled the private party to act in a certain way, (5) knowingly accepted the benefits of an unconstitutional practice, or (6) the private entity is carrying out a traditional “state function,” or (7) the government has created a “special relationship” with the plaintiff.

5.1.A.2.b.i. Delegation of a Traditional State Function

Delegation of a state responsibility to a private party can make the party a state actor, particularly if the function delegated is one traditionally performed by the state. This principle is illustrated by West v. Atkins, which rejected an agency’s claim that no state action was involved when the negligence of a private doctor, under contract to provide care for inmates, injured the plaintiff in violation of the state prison’s constitutional duty to avoid “deliberate indifference” to the medical needs of those in its custody./102/

5.1.A.2.b.ii. Joint Activity and “Pervasive Entwinement”

Joint activity by a private party and a government agent can also transform the private party into a state actor, where the purpose of the collusion is to violate the federal rights of the plaintiff./103/ Similarly, in Dennis v. Sparks, the Court held that private parties who conspired with a judge to fix a case acted under color of law./104/ A nominally private entity controlled by the state is also a state actor./105/

However, in the absence of a conspiracy or governmental control, the applicability of the joint activity test to find state action is problematic, as illustrated by National Collegiate Athletic Association v. Tarkanian./106/ The case involved a private membership body of public and private colleges that regulated intercollegiate athletics. The National Collegiate Athletic Association (NCAA) determined that a member state university had violated NCAA rules and required that the school suspend coach Tarkanian. When the school complied, the coach sued under Section 1983, claiming that his firing violated due process. The Court held that the school, a state actor, and the NCAA, a private party, were not joint participants in the suspension of the coach. The Court reasoned that the school was free to cancel its agreement with the NCAA, the disciplinary function had not been delegated to the NCAA by the state, and the NCAA was actually acting on behalf of all other NCAA members against the efforts of the state to forestall the suspension of its most successful coach.

Nevertheless, in Brentwood Academy v. Tennessee Secondary School Athletic Association, a case whose facts seem very much to parallel Tarkanian, the Court did find state action./107/ In Brentwood Academy, a private association which regulated high school sports throughout the state was held to be a state actor because the overwhelming majority of its members were public schools, the association received some public funds from dues and game proceeds, its officers were drawn from public schools, association employees participated in the state retirement fund, and the association was seen to regulate sports activity instead of the state board of education. The Court stated that the “nominally private character of the Association is overborne by the pervasive entwinement of public institutions and public officials in its composition and workings.”/108/

5.1.A.2.b.iii. Governmental Creation of a Legal or Procedural Framework

A private party may be engaged in “state action” if the act which deprived federal rights could not have occurred but for the existence of a governmental framework requiring government approval or action. In North Georgia Finishing, Incorporated v. Di-Chem, Incorporated/109/ the Court found state action in a private party’s invocation of a court-ordered attachment that failed to afford due process to the debtor. Similarly, in Lugar v. Edmondson Oil Company, the Court held that a creditor who invokes prejudgment attachment remedies requiring the participation of a court clerk and a sheriff, acts under color of state law./110/ In contrast, in Flagg Brothers v. Brooks, involving a prejudgment attachment authorized by state law but not requiring the intervention of a court, no state action was found./111/ Finally, in Edmondson v. Leesville Concrete Company, the Court found that a private attorney using peremptory challenges in a jury trial in a racially biased manner was a “state actor” because his act—use of peremptory challengescould exist only in the judicial context and with the approval of a state judge./112/ The rule of these cases is that a private party becomes a state actor if he or she uses a state procedure requiring some state intervention.

However, in American Manufacturers Mutual Insurance Company v. Sullivan, the Supreme Court found that a private workers’ compensation insurer was not a state actor when it withheld payments without prior notice to a worker as part of a state “utilization review” of certain medical costs./113/ The purpose of a utilization review is to assess the necessity for a particular procedure to determine whether the costs should be borne by the workers’ compensation carrier. In Sullivan, even if it could be assumed that the state, by providing a utilization review procedure, had “subtly encouraged” insurers to withhold payments pending the review, invocation of the procedure was not seen as required or coerced by the state.

Given the move towards privatization of formerly state programs, a close look at Sullivan’s analysis is warranted. The Court began by identifying the specific conduct complained of: the insurance company’s withholding of payments. It then analyzed the state’s role to determine whether “there is a sufficiently close nexus between the State and the challenged action ... so that the action of the [private party] may be fairly treated as that of the State itself.”/114/ Having understood that the state’s role was simply to accept the insurer’s request for a utilization review, checking the form for accuracy, and forwarding it to a private panel of health care providers for a decision, the Court found no state action. The Court described the “State’s decision to allow insurers to withhold payments” as “state inaction, or more accurately, a legislative decision not to intervene in a dispute between an insurer and an employee over whether a particular treatment is reasonable and necessary.”/115/

The Court, nevertheless, recognized that the utilization review panel’s subsequent affirmative decision to uphold or reverse the insurance company would be state action because the panel possessed authority delegated to it by state statute: “While the decision of a [Utilization Review Organization], like any judicial official, may properly be considered state action, a private party’s mere use of the State’s dispute resolution machinery, without the ‘overt, significant assistance of state officials,’ ... cannot.”/116/

In the context of state-mandated procedures or programs carried out by private parties, the distinction between state and private actions depends on (1) whether the state plays an active role in furthering the act which allegedly caused the deprivation of federal rights, and (2) the degree to which the procedure invoked is a core governmental function or institution. In short, the inquiry turns on whether the state affirmatively furthers the action or merely authorizes it, and, if the latter, how important the procedure is to the functioning of the state.

5.1.A.2.b.iv. Governmental Compulsion or Significant Encouragement to Act in a Particular Way

One of the most important Section 1983 issues for legal aid advocates is the degree to which one can imply “state action” from the fact that the defendant has received government funding or is extensively regulated by the state. Generally, government funding or regulation does not make a state actor of the recipient or the regulated party unless one can show such a close connection between the government and the act complained of that the action taken “may be fairly treated as that of the State itself.”/117/ A private landlord participating in the Section 8 program is a “state actor” while taking actions required by federal regulations, but is only a private actor if she unilaterally locks out her tenant in violation of those regulations. The act of forcible eviction is analytically an expression of her private will and not compelled by government fiat.

Several Supreme Court decisions have accordingly confirmed that, absent delegation, joint activity, or a state created framework, state action is rarely found absent compulsion or significant encouragement from the government to the private entity to act in a particular way. For instance, in Jackson v. Metropolitan Edison Company, a highly regulated utility was not a state actor when, without prior notice to its customer, it terminated her power for nonpayment of a utility bill. The Court saw no “nexus” between government regulation and the company’s action that would be sufficient to implicate due process. The decision to cut off power was prompted by economic concerns and was made by the company with little relation to the fact that its business was highly regulated./118/

A similar conclusion was reached in Blum v. Yaretsky, where a nursing home receiving Medicaid funding decided to discharge particular patients without giving them a hearing./119/ Given that Medicaid regulations did not specifically require any particular level of care, the nursing home’s decision could not be imputed to the state. Indirect government involvement resulting from the regulatory requirement that the state be notified of any change did not alter this conclusion. The Court wrote: “A State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.”/120/

Similarly, in San Francisco Arts and Athletics, Incorporated v. United States Olympic Committee, the Court held that the United States Olympic Committee’s refusal to license the use of the word “Olympic” was not state action even though Congress granted it the exclusive right to license the use of the word./121/ Once again, the Court distinguished authorization from compulsion, finding the former insufficient to establish state action./122/

Most recently, as discussed above, the Court held in American Manufacturers Mutual Insurance Company v. Sullivan, that a private workers’ compensation insurer who used a state “utilization review” of certain medical costs resulting in the withholding of payments without prior notice to the worker, did not thereby become a state actor./123/ The Court concluded that because its actions were not imposed or sanctioned by the state, it could not be a state actor.

Nor does governmental funding give rise to “state action” absent state coercion or significant encouragement of the act causing the deprivation. Thus, in Blum v. Yaretsky, the Court rejected the contention that extensive public funding converted the nursing home’s decision to lower the level of care into state action in violation of the Medicaid Act./124/ In essence, there was no cause and effect relationship between the fact of public funding and the nursing home’s allegedly unlawful act.

Finally, the Court addressed this issue in Rendell-Baker v. Kohn./125/ This case involved the termination of teachers and counselors critical of management by a private school that was primarily dependent on federal funding for the education of “troubled” children. In order to ensure that school staff met certain minimum requirements, state regulations required the government to be notified whenever the school hired or dismissed its counseling staff. Nevertheless, the Court found no state action. The Court reasoned, first, that “the decisions to discharge the petitioners were not compelled or even influenced by any state regulation.” Second, the Court held that “[a]cts of such private contractors do not become acts of the government by reason of their significant or even total engagement in performing public contracts.”/126/

5.1.A.2.b.v. The “Symbiotic Relationship” Test

The Supreme Court has applied several other tests to find state action, although their application now appears limited to the facts presented in the original cases. The first of these is the “symbiotic relationship” test first broached in Burton v. Wilmington Parking Authority./127/ In Burton, a city agency leased facilities to a restaurant that engaged in racial discrimination. Because the city gained parking revenue from the restaurant’s operation, and the restaurant gained a good location and tax benefits from the city, the Court held that the restaurant acted under color of state law, and, therefore, violated the Fourteenth Amendment when it refused to serve black patrons./128/

The Supreme Court began narrowing Burton in Moose Lodge No. 107 v. Irvis, holding that the grant of a state liquor license did not convert the discriminatory conduct of the licensee into state action./129/ The Court specifically rejected the plaintiff’s claim of a Burton symbiotic relationship, even though the license was of great value to the licensee and generated revenue for the state./130/ According to the Court, the benefit to the state of liquor license revenues was only remotely attributable, if at all, to the private party’s discriminatory conduct.

The Court further constricted Burton in Rendell-Baker v. Kohn./131/ Rendell-Baker, as noted above, held that a private school that depended almost exclusively on government funding, was extensively regulated, and contracted with governmental agencies to provide educational services, did not act under color of state law when it fired an employee./132/ The Court rejected the claim of a symbiotic relationship between the state and the school on the grounds that the state neither owned the school property nor benefited from the firing./133/

A plaintiff claiming state action on the basis of a “symbiotic relationship” between a private party and state or local government must show that the government derives a financial benefit that can be specifically attributed to the challenged conduct. In Burton, the benefit to the government was the additional revenue resulting from the increased patronage given to a whites-only restaurant. In contrast, the government received no specific benefit from the club’s discriminatory conduct in Moose Lodge or the school’s decision to fire a schoolteacher in Rendell-Baker. Only the combination of a symbiotic relationship and a specific financial benefit to the government from the conduct at issue will create state action out of private conduct. For these reasons, Burton is rarely applicable. The “Public Function” Test

The public function doctrine is another moribund test for state action, originating with Marsh v. Alabama/134/ and the White Primary Cases./135/ Read broadly, they suggested that certain responsibilities are so quintessentially governmental that private parties who perform them necessarily act under color of state law. Thus, the private landowner who established the company town in Marsh performed many of the public functions traditionally associated with local government; like a local government, it could not bar handbilling on its streets./136/ In the White Primary Cases, private organizations that barred black voters from participating in primary elections performed a traditionally public function in holding an election, thereby acting under color of law./137/

It is doubtful that the public function doctrine survives in the broad form suggested forty years ago. In Hudgens v. NLRB, the Court held that a shopping center was not a first amendment forum, reasoning that it was not the functional equivalent of a company town./138/ In so ruling, the Court may have confined Marsh to its facts; the only contemporary analogue to a company town may be a migrant labor camp. Similarly, the White Primary Cases rationale probably retains force only because it involved the constitutionally protected right to vote and the guarantee of a “republican form of government.”/139/

Jackson v. Metropolitan Edison Company provided the doctrinal foundation for further narrowing the public function doctrine. Rejecting the claim that the provision of electricity was a public function, the Court held that a public function must be one that traditionally was “the exclusive prerogative of the state.”/140/ Thus, the Court has since found that the following are not public functions: enforcement of a warehouseman’s lien,/141/ education of children with special needs,/142/ the operation of a nursing home,/143/ control of the word “Olympic,”/144/ and establishment of disciplinary standards for intercollegiate athletics./145/ The atrophied “public function” doctrine now can probably be collapsed within the “delegation of traditional state function” test discussed above.

5.1.A.2.b.vii. The “Special Relationship” Test

Unlike the above tests, which seek to use Section 1983 to sue private parties as state actors, the special relationship test seeks to hold the government liable for the acts of a private party. Section 1983 can be used to sue a government agency for injuries caused by a non-governmental third-party if, as the result of the government’s “special relationship” with the victim, the latter has been put in a position that severely hampers his or her ability to protect themselves. Such a relationship most clearly exists when the victim has been incarcerated in jail or prison or committed in a state institution./146/ However, it has on occasion also been found where government action has placed the plaintiff in such obviously dangerous circumstances as to make the government responsible for plaintiff’s well-being./147/

A non-custodial “special relationship” is found only in rare circumstances. Thus, in the case creating this standard, DeShaney v. Winnebago County Department of Social Services, the victim was a child who had been reported to the county as having been repeatedly abused by his father, the custodial parent./148/ Despite these reports and a subsequent investigation, the county did not remove the child from his home. After a severe beating that left the child permanently injured, the county was sued by the non-custodial parent, who contended that the failure to take action deprived the child of substantive due process rights. The Court found that even though the county knew of the potential harm to the victim and continued to monitor his situation, this did not create a “special relationship” with the county sufficient to make the government liable:

[W]hen the State by the affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs – e.g., food, clothing, shelter, medical care, and reasonable safety – it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause. [Citations omitted.] The affirmative duty to protect arises not from the State’s knowledge of the individual’s predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf./149/

An arrest, incarceration, involuntary commitment, or a foster care placement resulting from a dependency proceeding would create a “special relationship” necessary to establish liability.

5.1.A.2.c. When Government Can Be a “Person” if the Deprivation of Federal Rights Stems from a Government “Policy”

Legal aid advocates regularly face the problem of individually vindictive or incompetent government workers whose actions deprive clients of the level of public assistance or other benefit to which they are entitled. These actions are often taken by agency employees in violation of that agency’s own stated policies. In such cases, as more fully discussed in Chapter 8 of this MANUAL, only the employee is liable in a Section 1983 claim. Even if the employee’s acts result in a violation of federal constitutional, statutory, or regulatory rights, they cannot give rise to agency liability under Section 1983. Agency liability must be founded on a deprivation caused by the institution’s “custom, policy or practice,” and not as the result of aberrant behavior by a rogue employee.

This rule was established by Monell v. New York City Department of Social Services, which held that a municipality could be a “person” for purposes of Section 1983, but limited the scope of the agency’s liability to only those instances where the deprivation resulted from that agency’s custom, policy or practice./150/ Monell establishes the principle that the government should be liable only for actions for which it is directly responsible. This holding gives a plaintiff several options. She can sue the defendant employee in her personal or official capacity, or both. Assuming the defendant is not a State and immune under the Eleventh Amendment from suit in federal court, the plaintiff can name as an additional defendant – or even the sole defendant – either the agency itself, or its titular head, who is sued in his or her official capacity./151/ Naming the entity or its head is particularly important when injunctive relief binding the entire agency is sought. An order entered against the agency head in her or his official capacity will bind any successor officer.


1. Reconstruction Civil Rights Acts, 42 U.S.C. §§ 1981-1988.

2. Administrative Procedure Act, 5 U.S.C. §§ 551 et seq. and 701 et seq.

3. 42 U.S.C. §§ 1981-88.

4. Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 617 (1979). Although this MANUAL is directed at cases filed in federal court, Section 1983 suits can also be heard in state court. Indeed, the Supreme Court recently struck down, on Supremacy Clause grounds, a New York state statute which divested its state courts of entertaining Section 1983 actions against state correctional employees, holding that there is strong presumption of concurrent jurisdiction that can be overcome only when the state adopts a neutral rule needed for judicial administration of its court system. Haywood v. Drown, 556 U.S. 28 (2009); Howlett v. Rose, 496 U.S. 356, 375 (1990); Martinez v. California, 444 U.S. 277, 283 n.7 (1980).

5. The Supreme Court has ruled that in passing § 1983, Congress did not intend to strip states of sovereign immunity. Hence, while a state is not a “person” for purposes of § 1983 (Quern v. Jordan, 440 U.S. 332, 345 (1979),) local governments – which cannot claim immunity – are. Monell v. New York City Department of Social Services, 436 U.S. 658 (1978). In Inyo County v. Paiute-Shoshone Indians, 538 U.S. 701 (2003), the Court held that a sovereign Indian Tribe is not a “person within the jurisdiction” of the United States, and cannot sue under § 1983.

6. Gonzaga University v. Doe, 536 U.S. 273, 285-85 (2002) (citing Cannon v. University of Chicago, 441 U.S. 677, 609, n.13 (1979)). The ability to use § 1983 to enforce a statute was first established in Maine v. Thiboutot, 448 U.S. 1 (1980). See also King v. Smith, 392 U.S. 309 (1968) (in which the Court, by basing its decision on statutory rather than equal protection grounds, implied that § 1983 was a proper vehicle for raising a state’s violation of a federal statute enacted under the Constitution’s Spending Clause).

7. Felder v. Casey, 487 U.S. 131 (1988) (state claims statute); Patsy v. Florida Board of Regents, 457 U.S. 496 (1982) (state administrative proceeding); McNeese v. Board of Education, 373 U.S. 668 (1963) (state procedure for challenging school segregation); Monroe v. Pape, 365 U.S. 167 (1971) (no need to resort to state causes of action). A recent example of a court rejecting an abstention argument raised in a federal trial court action seeking review of a Medicaid administrative hearing decision (invoking Section 1983 to address an erroneous interpretation of federal law) is Romano v. Greenstein, 721 F.3d 373 (5th Cir. 2013). Although the law seems fairly clear in this area, one consequence of the federal judiciary’s heightened concern for state’s rights has been greater reliance on abstention doctrines to keep from hearing these cases. See, e.g., 31 Foster Children v. Bush, 329 F.3d 1255, 1274-81 (11th Cir. 2003). See Chapter 2.7 of this MANUAL for a detailed discussion of abstention.

8. Chapter 8.2 of this MANUAL discusses the limitations imposed by the Eleventh Amendment on suits against a state.

9. See, e.g., Paul v. Davis, 424 U.S. 693 (1976) (allegation that police wrongfully circulated damaging information about plaintiff did not state Fourteenth Amendment violation and hence did not state § 1983 cause of action; plaintiff limited to state law remedies).

10. Chapter 8.3 of this MANUAL explores defendants and defenses in § 1983 litigation.

11. Constitutional provisions explicitly creating state obligations include the Reconstruction Amendments (Thirteenth, Fourteenth and Fifteenth Amendments as well as those expanding the franchise to women and eliminating the poll tax. Portions of the Bill of Rights, which originally applied only to the federal government, now apply to the states by operation of the Fourteenth Amendment’s Due Process Clause. For a list of these amendments, see generally, Duncan v. Louisiana, 391 U.S. 145, 148-49 (1968).

12. See Cannon v. University of Chicago, 441 U.S. 677, 730 (1979) (Powell, J., dissenting).

13. In alleging a “right,” plaintiffs’ attorneys should be very specific, taking to heart the Supreme Court’s dictum that “[o]nly when the complaint is broken down into manageable analytic bites can a court ascertain whether each separate claim satisfies the various criteria we have set forth for determining whether a federal statute creates rights.” Blessing v. Freestone, 520 U.S. 329, 342 (1997). For examples of how courts have applied this guideline, see infra note 25.

14. Cort v. Ash, 422 U.S. 66, 78-79 (1975). Since Cort, the Supreme Court has become more restrictive in finding rights of action implied directly under a statute. See, e.g., Touche Ross v. Redington, 442 U.S. 560 (1979) and Alexander v. Sandoval, 532 U.S. 275 (2001).

15. Sandoval, 532 U.S. at 286. Sandoval and the implied statutory causes of action will be discussed further at Section 5.2 of this MANUAL.

16. Maine v. Thiboutot, 448 U.S. 1 (1980).

17. Wright v. Roanoke Redevelopment and Housing Authority, 479 U.S. 418, 420, n.3 (1987) (“[T]o us it is clear that the regulations gave low-income tenants an enforceable right to a reasonable utility allowance and that the regulations were fully authorized by the statute.”)

18. In hindsight, however, the Wright decision seems to have turned more on the absence of a “comprehensive enforcement mechanism” which would have precluded the applicability of § 1983 than the ability of a regulation to create “rights.” While earlier decisions held that regulations can create rights enforceable under § 1983, see, e.g., Loschiavo v. City of Dearborn, 33 F.3d 548 (6th Cir. 1994), and Samuels v. District of Columbia, 770 F.2d 184 (D.C. Cir. 1985), the more recent trend is to reject this view. See Caswell v. City of Detroit, 418 F.3d 615, 618-20 (6th Cir. 2005); Save Our Valley v. Sound Transit, 335 F.3d 932, 935-36 (9th Cir. 2003); South Camden Citizens v. New Jersey Department of Environmental Protection, 274 F.3d 771, 778 (3rd Cir. 2001); Harris v. James, 127 F.3d 993, 1007-08, 1009 (11th Cir. 1997).

19. Gonzaga University v. Doe, 536 U.S. 273, 284 (2002). Prior to Gonzaga, a plaintiff invoking § 1983 to enforce a statute could presume that a private right of action existed, with defendants having the burden to disprove the existence of the right. After Gonzaga, the burden appears to have shifted to the plaintiff. However, once a right is shown to exist, § 1983 is presumed to provide a remedy, while defendants have the burden to prove otherwise. Id. at 284 n.4.

20. Wilder v. Virginia Hospital Association, 496 U.S. 498 (1990).

21. Id. at 509-512 (1990). Wilder actually lists these factors in reverse order. However, since Blessing v. Freestone, 520 U.S. 329, 340-41 (1997), the factor which asks whether the statute benefits the plaintiff has generally been listed first. This is appropriate because it has become the main battleground for the use of § 1983 to enforce federal statutes. While some courts seem to think that Gonzaga has entirely displaced the Wilder/Blessing inquiry, Gonzaga cites the latter decisions without reservation.

22. Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1 (1981).

23. Much of the debate over private enforceability involves federal statutes enacted under the Constitution's Spending Clause, where the issue is whether the right to sue can be inferred from a mandate to spend money in a particular way. See Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 28 (1981);  Houston v. Williams, 547 F.3d 1357, 1361 (11th Cir. 2008) (Spending Clause legislation rarely confers a private right of action on funding beneficiaries); but see Grammer v. John J. Kane Regional Centers, 570 F.3d 520 (3rd Cir. 2009); cert. denied, 130 S. Ct. 1524 (2010).  In contrast, civil rights statutes, targeting individual discrimination against individuals, are more likely to be interpreted as privately enforceable under § 1983. See, e.g., Wallace v. Chicago Housing Authority, 298 F. Supp. 2d. 710, 718 (N.D. Ill. 2003) (allowing use of § 1983 to sue for breach of Fair Housing Act, (citing Cannon v. University of Chicago, 441 U.S. 677 (1979)).

24. Blessing, 520 U.S. at 343.

25. “[T]he lower court’s holding that the [statute as a whole] ‘creates enforceable rights’ paints with too broad a brush. It was incumbent upon respondents to identify with particularity the rights they claimed, since it is impossible to determine whether [the statute], as an undifferentiated whole, gives rise to undefined ‘rights.’ Only when the complaint is broken down into manageable analytic bites can a court ascertain whether each separate claim satisfies the various criteria we have set forth for determining whether a federal statute creates rights.” Id. at 342. Courts have found enforceable and unenforceable certain provisions in the same statute through a careful examination of statutory language. For instance, ASW v. Oregon, 424 F.3d 970, 976-77 (9th Cir. 2005) cited Blessing to find an enforceable right under one provision of the Adoption Assistance Act even though a separate provision had earlier been interpreted in 31 Foster Children v. Bush, 329 F.3d 1255 (11th Cir. 2003) as not creating a right to sue under § 1983. Similarly, in Price v. City of Stockton, 390 F.3d 1105 (9th Cir. 2004), the court held that while the relocation assistance provisions of the Housing and Community Development Act created enforceable rights, the “one for one” replacement housing mandate had an aggregate and not an individual focus and hence, could not create rights enforceable under § 1983. As explained in Sanchez v. Johnson, 416 F.3d 1051, 1062 (9th Cir. 2005), “[a]lthough [the Medicaid Act] sets out a comprehensive list of requirements that a state plan must meet, it does not describe every requirement in the same language. Some requirements ... focus on individual recipients, while others are concerned with the procedural administration of the ... Act by the States and only refer to recipients, if at all, in the aggregate.”

26. Alexander v. Sandoval, 532 U.S. 275 (2001).

27. Id. at 289.

28. Gonzaga University v. Doe, 536 U.S. 273 (2002).

29. Id. at 283.

30Id. at 283, 284 (the latter quoting in part Cannon v. University of Chicago, 441 U.S. 677, 692 (1979)).

31. Id. at 283 (emphasis in original).

32. Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g.

33. Gonzaga, 536 U.S. at 287 (quoting 20 U.S.C. § 1232g(b)(1)).

34. Id. at 289 (quoting Cannon, 441 U.S. at 691 (emphasis added)).

35. Id. at 288.

36. Id. at 288 (quoting Blessing v. Freestone, 520 U.S. 329, 343 (1997)).

37. Id. at 285 (citation omitted).

38. Enforceable rights may also be created by statutes that mandate governmental duties owed to a class of beneficiaries. “Where a statute does not include this sort of explicit ‘right-or duty-creating language’ we rarely impute to Congress an intent to create a private right of action.” Gonzaga, 536 U.S. at 284, n.3. (emphasis added, citing Cannon, 441 U.S. at 690, n.13.) Cannon, in that footnote, stated that “the right- or duty-creating language of the statute has generally been the most accurate indicator of the propriety of implication of a cause of action. With the exception of one case, in which the relevant statute reflected a special policy against judicial interference, this Court has never refused to imply a cause of action where the language of the statute explicitly conferred a right directly on a class of persons that included the plaintiff in the case. ” Because Spending Clause legislation is often written in a form that requires state recipients to do something for members of a class, such “duty-creating” language suggests a right enforceable under § 1983.

39. Gonzaga, 536 U.S. at 280.

40. Cannon, 441 U.S. at 691. The tendency of some courts to highlight the first Blessing prong at the expense of the second and third prongs is illustrated by the Eleventh Circuit’s adoption – with no mention of the other Blessing criteria – of its own three-part test for determining if Congress intended to benefit plaintiffs: (1) Does the statute contain individually focused, rights creating language? (2) Does it address the needs of individual persons instead of having a systemwide or aggregate focus? (3) Does it lack an enforcement mechanism available to the aggrieved individual? Arrington v. Helms, 438 F.3d 1336 (11th Cir. 2006) (citing 31 Foster Children v. Bush, 329 F.3d 1255, 1272-73 (11th Cir. 2003)).

41. The Food Stamp Act, for example, provides that “... households [receiving] benefits under a ... program that complies with standards established by the Secretary ... shall be eligible to participate in the food stamp program. Assistance ... shall be furnished to all eligible households ...” 7 U.S.C. § 2014(a). Hence, specific statutory provisions spelling out eligibility standards presumably create enforceable rights for those who apply and meet the standards. An example of similar language in the Medicaid Act, but one focusing on a state plan, is the requirement that “[a] State plan for medical assistance must ...(10) provide ... for making medical assistance available ... to ... all individuals [meeting the following five pages of eligibility criteria].” 42 U.S.C. § 1396a(a). The latter language was cited in Sabree v. Richman, 367 F. 3d 180, 189 (3rd Cir. 2004) to find an enforceable right to certain services. Judge Alito concurred, cryptically noting that the lower court’s reversed decision “may reflect the direction that future Supreme Court cases in this area will take.” Id. at 194. See also Watson v. Weeks, 436 F.3d 1152, 1159 n.8 (9th Cir.), ("section 1396a(a)(10) creates an individual right enforceable under section 1983")., cert denied sub nom, Goldberg v. Watson, 549 U.S. 1032 (2006). See Indiana Protection and Advocacy Services v. Indiana Family and Social Services Administration, 603 F.3d 365, 374-82 (7th Cir. 2010) (en banc) (Protection and Advocacy for Individuals with Mental Illness program reflects Congress' intent to give state protection and advocacy programs right to sue for records).

42. See, e.g., Johnson v. City of Detroit, 446 F.3d 614, 624, 627 (6th Cir. 2006) (Lead Based Paint Protection Act is aimed at entities and does not confer right to sue); Banks v. Dallas Housing Authority, 271 F. 3d 605, 609-10 (5th Cir. 2001) (requirement that privately owned Section 8 units be kept in “decent, safe and sanitary” condition is principally aimed at property owners); Hill v. San Francisco Housing Authority, 207 F. Supp. 2d 1021, 1028-29 (N.D. Cal. 2002) (requirement that units be maintained in accord with Department of Housing and Urban Development housing quality standards was directed to public housing authorities and did not create enforceable rights); Almendares v. Palmer, No. 3:00-CV-7524, 2002 U.S. Dist. LEXIS 23258, 2002 WL 31730963 (N.D. Ohio Dec. 3, 2002) (requirement that state Food Stamp agencies provide access for limited English proficient (LEP) applicants and recipients was directed to state, and did not create right to LEP services).

43. Gonzaga, 536 U.S. at 287 (quoting Alexander v. Sandoval, 532 U.S. 275, 289 (2001).

44. For example, in Bryson v. Shumway, 308 F.3d 79, 88 (1st Cir. 2002), Sabree v. Richman, 367 F.3d 180, 189 (3rd Cir. 2004), South Dakota ex rel. Dickson v. Hood, 391 F.3d 581, 603-05 (5th Cir. 2004), and Watson v. Weeks, 436 F.3d 1152 (9th Cir. 2006), the courts focused on a Medicaid provision’s reference to “all eligible individuals.” Dickson and Watson also cited the “Suter fix,” 42 U.S.C. § 1320a-2, in which Congress indicated that certain statutory provisions could not be held to be privately unenforceable simply because they were requirements of a state plan. Similarly, in Johnson v. Housing Authority of Jefferson Parish, 442 F.3d 356 (5th Cir. 2006), finding that Section 8 voucher holders had an enforceable right to an adequate utility allowance, the court focused on the reference in 42 U.S.C. § 1437f(o)(2)(A) to “the monthly assistance payment for the family....” The Johnson court also buttressed its holding by “tak[ing] the entirety of the legislative enactment into account,” 442 F.3d at 362, something not often seen when parsing statutes into “manageable analytic bites” is the order of the day.

45. An excellent reference is Jane Perkins, Using Section 1983 to Enforce Federal Laws, 38 Clearinghouse Review 720 (March-April 2005), containing an extensive table of court decisions addressing the enforceability of particular statutory provisions intended to benefit low-income clients. See also Rochelle Bobroff & Jane Perkins, Recent Developments in Court Access for Medicaid and Medicare Cases, 42 Clearinghouse Review 246 (Sept.-Oct. 2008).

46. Suter v. Artist M., 503 U.S. 347, 359-64 (1992).

47. Wary of Suter’s potential for undermining private enforcement of similar statutes requiring “state plans” to carry out the various subchapters of the Social Security Act, Congress has legislatively affirmed that a private right of action can exist to enforce such statutes to the extent that the right to sue existed before Suter, limiting the latter’s effect to only the specific provision of the Adoption Assistance Act addressed by the court. 42 U.S.C. § 1320a-2 (1994). See Suter, supra note 46 .

48. Wright v. Roanoke Redevelopment and Housing Authority, 479 U.S. 418, 431 (1987).

49. Wilder v. Virginia Hospital Association, 496 U.S. 498, 499 (1990). 

50. See  Rolland v. Romney, 318 F.3d 42, 53 (1st Cir. 2003) (relying on Department of Health and Human Services regulations to find enforceable mandate to provide certain “specialized services" under Medicaid Act). In contrast, in Banks v. Dallas Housing Authority, 271 F.3d 605, 610 (5th Cir. 2001), the court found too vague to be judicially enforceable the “decent, safe, and sanitary” public housing ostensible entitlement set forth in 42 U.S.C. § 1437f. See also Watson v. Weeks, 436 F.3d 1152, 1162, (9th Cir. 2006); Lankford v. Sherman, 451 F.3d 496 (4th Cir. 2006) (both cases holding that Medicaid Act’s requirement that state plans include “reasonable standards ... which shall be comparable for all groups” and “consistent with the objectives of this subchapter” was vague and amorphous because it did not provide more definite guidance linking “reasonable standards” to medical need).

51. Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981).

52. Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1 (1981).

53. Smith v. Robinson, 468 U.S. 992 (1984).

54. Id. at 1009-13.

55. City of Rancho Palos Verdes v. Abrams, 544 U.S. 113 (2005). Among the statutes cited in Rancho Palos Verdes as lacking a comprehensive enforcement mechanism are Title IV-D of the Social Security Act, the Medicaid statute, the National Labor Relations Act, the United States Housing Act and the Education of the Handicapped Act. Id. (citing Blessing v. Freestone, 520 U.S. 329 (1997) , Wilder v. Virginia Hospital Association, 496 U.S. 498 (1990), Golden Gate Transit Corporation v. City of Los Angeles (Golden State II), 493 U.S. 103 (1989), Wright v. Roanoke Redevelopment and Housing Authority, 479 U.S. 418 (1987), and Smith v. Robinson, 468 U.S. 992 (1984))

56 Fitzgerald v. Barnstable School Committee, 555 U.S. 246, 254(2009).

57Id. at 255. The Court noted that the statutory remedies of withdrawing federal funding and an implied right of action under Title IX "stand in stark contrast to the 'unusually elaborate,' 'carefully tailored,' and 'restrictive' enforcement schemes of the statutes at issue in Sea Clammers, Smith, and Rancho Palos Verdos . . ." Id.

58. Id. 129 S. Ct. at 797 (noting that Title IX was modeled after Title VI, which has been interpreted as permitting concurrent claims as well).

59. Wright, 479 U.S. at 424-25.

60. Id. at 426. See also Wilder, 496 U.S. at 521-23 (existence of administrative appeal procedures did not foreclose private enforcement) and Golden Gate Transit Corporation v. City of Los Angeles (Golden State II), 493 U.S. 103, 109 (1989) (existence of NLRB procedures). Although the National Sea Clammers test was not an articulated basis for its decision, the Gonzaga Court also pointed to Congress’ mandate to the Secretary of Education to “deal with violations” of Family Educational Rights and Privacy Act through the establishment of a review board, and the Secretary’s subsequent adoption of complaint and investigation procedures, as evidence of a “federal review mechanism” which distinguished Gonzaga from Wright. Gonzaga University v. Doe, 536 U.S. 273, 289-90 (2002). 

61. This contention is based on Justice Scalia’s concurring opinion in Blessing v. Freestone, 520 U.S. 329, 349 (1997), analogizing the class of persons benefited by such federal-state cooperative programs to a third-party beneficiary under a contract. The preclusion of a § 1983 remedy is said to flow from Justice Rehnquist’s opinion in Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 28 (1981), that “[i]n legislation enacted pursuant to the spending power, the typical remedy for state noncompliance with federally imposed conditions is not a private cause of action for noncompliance but rather action by the Federal Government to terminate funds to the State.” See also Pharmaceutical Research Manufacturers of America v. Walsh, 538 U.S. 644, 683 (2003) (Thomas, J., concurring).

62. Antrican v. Odom, 290 F.3d 178 (4th Cir. 2002) and Westside Mothers v. Haveman, 289 F.3d 852 (6th Cir. 2002) (construing enforceability, by private parties, of dental care and early and periodic screening, diagnosis and treatment provisions of Medicaid Act, respectively).

63. Westside Mothers, 289 F.3d at 858 (quoting Bennett v. Kentucky Department of Education, 470 U.S. 656, 669 (1985)).

64. Westside Mothers, 289 F.3d at 863. In Barnes v. Gorman, 536 U.S. 181 (2002), addressing whether the violation of two Spending Clause statutes – the Americans with Disabilities Act and the Rehabilitation Act – could give rise to punitive damages, Justice Scalia’s majority opinion denied such relief on the ground the Spending Clause statutes were analogous to contracts between the federal government and the state, and that punitive damages were not traditionally available in contract actions. Nevertheless, responding to the critique of the minority, Justice Scalia wrote that the Court “d[id] no[t] imply ... that suits under Spending Clause legislation are suits in contract, or that contract-law principles apply to all issues that they raise.” 536 U.S. at 188, n.2.

65. Wright, 479 U.S. at 420, n.3 (“[T]o us it is clear that the regulations gave low-income tenants an enforceable right to a reasonable utility allowance and that the regulations were fully authorized by the statute.”)

66. Wilder v. Virginia Hospital Association, 496 U.S. 498 (1990). For a recent example of a court relying on regulations to find that a statute confers an enforceable right, see Rolland v. Romney, 318 F.3d 42, 50-51 (1st Cir. 2003) (Medicaid specialized services to mentally disabled nursing home residents).

67. Golden State Transit Corporation v. City of Los Angeles (Golden State II), 493 U.S. 103 (1989) (“[a] rule of law that is the product of judicial interpretation of a vague, ambiguous, or incomplete statutory provision” could give rise to “right” enforceable under § 1983).

68. Chevron U.S.A. Incorporated v. Natural Resources Defense Council, Incorporated, 467 U.S. 837, 843-44 (1984).

69. United States v. Mead, 533 U.S. 218, 229 (2002).

70. Wright, 479 U.S. at 437.

71. See Alexander v. Sandoval, 532 U.S. 275, 286 (2001).

72. Id.

73. Guardians Association v. Civil Service Commission, 463 U.S. 582, 590 (1983). Id. at 623-24 (Marshall, J., dissenting). Id. at 645 (Stevens, J., joined by Brennan, J. and Blackmun, J., dissenting).

74. Sandoval, 532 U.S. at 291. Hence, while 42 U.S.C. § 2000d (“No person in the United States shall ... be subjected to discrimination under any program or activity receiving Federal financial assistance [on the basis of race, color, or national origin]” clearly confers a personal right to sue for intentional discrimination, 42 U.S.C. § 2000d-1 (federal agencies authorized “to effectuate [2000d] ... by issuing rules, regulations, or orders ...”) speaks only of the powers of agencies. According to Sandoval, “[i]t is clear now that the disparate- impact regulations do not simply apply § 601 – since they indeed forbid conduct that § 601 permits – and therefore clear that the private right of action to enforce § 601 does not include a private right to enforce these regulations.” Id. at 285. This is because “[l]ike substantive federal law itself, private rights of action to enforce federal law must be created by Congress. The judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy. Statutory intent on this latter point is determinative. Without it, a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute.” Id. at 286-87 (citations omitted).

75. E.g., is plaintiff a member of the class benefited by the statute? See Cort v. Ash, 422 U.S. 66, 78 (1975).

76. Gonzaga University v. Doe, 536 U.S. 273, 285 (2002) (citation omitted).

77. Loschiavo v. City of Dearborn, 33 F.3d 548 (6th Cir. 1994). See also Robinson v. Kansas, 295 F.3d 1183 (10th Cir. 2002), cert. denied, 539 U.S. 926 (2003), upholding the invocation of § 1983 to enforce the disparate impact regulations against an Eleventh Amendment objection, but without addressing the issue of the enforceability of federal regulations under § 1983.

78. Samuels v. District of Columbia, 770 F.2d 184, 188 (D.C. Cir. 1985).

79. Loschiavo, 33 F.3d at 551.

80. Harris v. James, 127 F.3d 993, 1007-1009 (11th Cir. 1997). See also American Association of People with Disabilities v. Harris, 605 F.3d 1124, 1131-37 (11th Cir. 2010) (American with Disabilities Act regulations are not enforceable).

81. South Camden Citizens v. New Jersey Department of Environmental Protection, 274 F.3d 771, 778 (3rd Cir. 2001).

82. Rolland v. Romney, 318 F.3d 42, 52 (1st Cir. 2003).

83. Save Our Valley v. Sound Transit, 335 F.3d 932, 939 (9th Cir. 2003).

84. The partial dissent in Save Our Valley contains an extensive analysis of how regulations can create “rights,” opining that such rights are enforceable under § 1983 if the regulation meets the Gonzaga standard of being written in “‘individually-focused,’ ‘rights-creating language[.]’” 335 F.3d at 963. However, because the Title VI regulations at issue were focused on the person or agency regulated rather than the class benefited, Judge Berzon believed that no enforceable right had been created.

85. Caswell v. City of Detroit, 418 F.3d 615, 618-20 (6th Cir. 2005).

86. See Three Rivers Center for Independent Living v. Housing Authority, 382 F.3d 412, 430 (3rd Cir. 2004). The case holds that Department of Housing and Urban Development regulations implementing the Rehabilitation Act to require the creation of accessible housing could not create an enforceable right to compel compliance. Although the statute conferred an enforceable right on plaintiffs to a “reasonable accommodation,” the accessible housing regulation mandate was said to have only an aggregate focus and “not concerned with ‘whether the needs of any particular person have been satisfied.’” Id. at 430 (quoting Gonzaga University v. Doe, 536 U.S. 273, 288 (2002). 

87. “Like the state-action requirement of the Fourteenth Amendment, the under-color-of-state-law element of § 1983 excludes from its reach ‘merely private conduct, no matter how discriminatory or wrongful.’” American Manufacturers Mutual Insurance Company v. Sullivan, 526 U.S. 40, 50 (1999).

88. Monroe v. Pape, 365 U.S. 167, 172 (1971) (police misconduct). Federal officials acting under color of federal law are not subject to § 1983. Wheeldin v. Wheeler, 373 U.S. 647 (1963).

89. Monell v. New York City Department of Social Services, 436 U.S. 658 (1978)See Los Angeles County v. Humphries, 131 S. Ct. 447 (2010) (Monell's requirement that municipality's policy or custom cause deprivation in order to impose liability on municipality applies in cases seeking prospective injunctive relief as well as damages).

90. The issue of what constitutes a “custom, policy or practice” actionable under § 1983 is discussed later in this chapter.

91. However, a government employee or subcontractor such as a public defender, whose fundamental loyalties are owed to the criminal defendant and accordingly are adverse to the government, is not a “state actor” whose alleged malpractice is actionable under § 1983. Polk County v. Dodson, 454 U.S. 312 (1981); cf. Vermont v. Brillon, 556 U.S. 81, 129 S. Ct. 1283, 1291 (2009) (court assigned counsel are not state actors for purposes of speedy trial claim). Compare Miranda v. Clark County, 319 F.3d 465 (9th Cir.) (chief public defender is state actor in devising administrative procedures governing allocation of lawyer resources to defendants based on results of lie detector tests), cert. denied, 540 U.S. 814 (2003)  This exception is very narrowly construed. See West v. Atkins, 487 U.S. 42 (1988), in which a private doctor under contract to a prison, who owed a professional obligation to his patient, did not as a result have interests which were necessarily so adverse to the government as to preclude a § 1983 claim.

92. Where state officials act in violation of federal law, the official is said to have been stripped of official authority for purposes of the Eleventh Amendment by acting illegally, but, nevertheless, considered to be engaged in “state action” for purposes of the Fourteenth Amendment if the action was taken “under color” of the apparent authority conferred by official position. Home Telephone and Telegraph v. Los Angeles, 227 U.S. 278 (1913).

93. Delcambre v. Delcambre, 635 F.2d 407, 408 (5th Cir. 1981) (per curiam).

94. Id.

95. Morgan v. Tice, 862 F.2d 1495, 1499 (11th Cir. 1989).

96. Lugar v. Edmondson Oil Company, 457 U.S. 922, 940 (1982). Both an official who misuses power in violation of federal law, and an official who enforces a state law which violates federal law, act under color of state law. However, as discussed in Chapter 8.3 of this MANUAL, in the first scenario, only the official who misused power, and not the agency that employs her, is liable, because state or local governments are liable only if the deprivation is the result of the agency’s custom, policy, or practice. Monell v. New York City Department of Social Services, 436 U.S. 658 (1978). In the second situation, state law constitutes the “policy.”

97. In Brentwood Academy v. Tennessee Secondary School Athletic Association, 531 U.S. 288, 295-96 (2001), the Court acknowledged the elusiveness of a comprehensive rule governing “state action”: “From the range of circumstances that could point toward the State behind an individual face, no one fact can function as a necessary condition across the board for finding state action; nor is any set of circumstances absolutely sufficient, for there may be some countervailing reason against attributing activity to the government.”

98. Lugar, 457 U.S. at 930-32, 935.

99. Id. at 935, n.8.

100. Id. at 937. In Lugar, the fact that a court had issued a warrant authorizing a private party to attach plaintiff’s property converted the subsequent seizure – alleged to have been without due process – into “state action.”

101. Edmondson v. Leesville Concrete Company, 500 U.S. 614, 624-25 (1991) (holding that private attorney exercising peremptory challenges in civil jury trial to excuse African Americans from panel was “state actor” given that peremptory challenge could only exist in judicial context.)

102. West v. Atkins, 487 U.S. 42 (1988). Another example of delegation is the privatization of the prison system. In Richardson v. McKnight, 521 U.S. 399 (1997), the Court assumed state action in ruling that private prison guards were not entitled to qualified immunity from liability for their unconstitutional practices.

103. Addickes v. S. H. Kress Co., 398 U.S. 144 (1970) (involving conspiracy between “dime store” and local deputy sheriffs to prevent integration of southern lunch counter during Civil Rights Movement).

104. Dennis v. Sparks, 449 U.S. 24, 28-29 (1980).

105. Pennsylvania v. Board of Directors, 353 U.S. 230, 231 (1957) (Private college administered by city board “state actor” in refusing to admit African Americans).

106. National Collegiate Athletic Association v. Tarkanian, 488 U.S. 179 (1988).

107. Brentwood Academy v. Tennessee Secondary School Athletic Association, 531 U.S. 288 (2001).

108. Id. at 298.

109. North Georgia Finishing, Incorporated v. Di-Chem, Incorporated, 419 U.S. 601 (1975).

110. Lugar v. Edmondson Oil Company, 467 U.S. 922, 934, 940-42 (1980). The creditor's action is not state action if it is contrary to state law. Id. at 940.

111. Flagg Brothers v. Brooks, 436 U.S. 149 (1978).

112. Edmondson v. Leesville Concrete Company, 500 U.S. 614 (1991).

113. American Manufacturers Mutual Insurance Company v. Sullivan, 526 U.S. 40 (1999).

114. Id. at 51-52 (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)).

115. Id. at 53.

116. Id. at 54 (quoting Tulsa Professional Collection Services v. Pope, 485 U.S. 478, 486 (1988)).

117. Jackson v. Metropolitan Edison Company, 419 U.S. 345, 351 (1974).

118. Id. at 351; compare Memphis Light, Gas and Water Division v. Craft, 436 U.S. 1 (1978) (a municipally owned utility was required to afford customers due process before terminating utilities under a statute requiring utility shut-offs to be only for “cause”).

119. Blum v. Yaretsky, 457 U.S. 991 (1982).

120. Id. at 1004.

121. San Francisco Arts and Athletics, Incorporated v. U.S. Olympic Committee, 483 U.S. 522, 542-47 (1987).

122. Id. at 546-47. See also Carlin Communications v. Mountain States Telephone and Telegraph Company, 827 F.2d 1291, 1295, 1297 (9th Cir. 1987), cert. denied, 485 U.S. 1029 (1988) (finding that a telephone company’s decision to terminate an adults-only message service was state action because it was the product of state coercion; holding, however, that the company’s later decision to bar all adult entertainment services was not state action, since it was not coerced).

123. American Manufacturers Mutual Insurance Co. v. Sullivan, 526 U.S. 40, 53-54 (1999).

124. Blum, 457 U.S. at 1003.

125. Rendell-Baker v. Kohn, 457 U.S. 830 (1982).

126. Id. at 840-41. To be sure of finding state action in these types of circumstances, advocates should ask whether the private actor is standing in for the government, or involved in what amounts to “joint action,” either because it could not take place without government involvement, or is compelled by government policy.

127. Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961).

128. Id. at 722-26.

129. Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 171-78 (1972).

130. Id. at 175-77.

131. Rendell-Baker v. Kohn, 457 U.S. 830 (1982).

132. Id. at 837-43.

133. Id. at 842-43.

134. Marsh v. Alabama, 326 U.S. 501 (1946) (state could not enforce trespass laws to bar Jehovah’s Witness from distributing literature in company town).

135. Terry v. Adams, 345 U.S. 461 (1953); Smith v. Allwright, 321 U.S. 649 (1944); Nixon v. Condon, 286 U.S. 73 (1932) (collectively, the White Primary Cases).

136. Marsh, 326 U.S. at 505-10.

137. The White Primary Cases may be better understood as finding circumstantial evidence of state-sponsored intentional racial discrimination from state regulation of every aspect of primary elections but voter eligibility.

138. Hudgens v. National Labor Relations Board, 424 U.S. 507, 512-21 (1976) (overruling Amalgamated Food Employees Local 590 v. Logan Valley Plaza, 391 U.S. 308 (1968)).

139. U.S. CONST. amends. XV, XIX, XXIV and XXVI; and art. IV, § 4. See also Bush v. Gore, 531 U.S. 98, 104-105 (2000).

140. Jackson v. Metropolitan Edison Company, 419 U.S. 345, 353 (1974).

141. Flagg Brothers v. Brooks, 436 U.S. 149 (1978), 155-66 (1978).

142. Rendell-Baker v. Kohn, 457 U.S. 830 , 837-43 (982).

143Blum v. Yaretsky, 457 U.S. 991, 1002-12 (1982).

144San Francisco Arts and Athletics, Incorporated v. U.S. Olympic Committee, 483 U.S. 522, 542-47 (1987).

145. National Collegiate Athletic Association v. Tarkanian, 488 U.S. 179, 194(1988). 

146. See, e.g., Farmer v. Brennan, 511 U.S. 825 (1994), alluding to government’s affirmative duty to protect those in custody from injury caused by a third party.

147. An example of a decision finding such a “special relationship” or "state created danger" outside of the typical custodial situation is Wood v. Ostrander, 879 F.2d 583, 589-90 (9th Cir. 1989), cert. denied, 498 U.S. 938 (1990). In this case, a woman formerly held in custody by a highway patrolman was raped after being released in a high crime area without a car at 2:30 a.m. On the other hand, city liability was not found for the murder of a domestic violence victim despite a state law requiring police to enforce restraining orders, Gonzales v. City of Castle Rock, 307 F.3d 1258 (10th Cir. 2002), rev'd on other grounds sub nom. Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005), or where police officers allowed a drag race to go forward, resulting in the death of a spectator. Jones v. Reynolds, 438 F.3d 685 (6th Cir. 2005). The key distinction is whether the government took affirmative action that created the danger.

148. DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989).

149. Id. at 200.

150. Monell v. New York City Department of Social Services, 436 U.S. 658, 690-91, 692 (1978). See Connick v. Thompson131 S. Ct. 1350, 1359 (2011) (policies, acts, and practices of government must be so widespread as to "practically have the force of law"); Los Angeles County v. Humphries, 131 S. Ct. 447 (2010).  Chapter 8.3 of this MANUAL discusses municipal or agency liability and the parameters of a “custom, policy or practice” for purposes of § 1983.

151. Will v. Michigan Department of State Police, 491 U.S. 58, 71 (1989): “[A] suit against a state official in his or her official capacity is not a suit against an official but rather is a suit against the official’s office.”

Updated 2013 by Robert P. Capistrano

5.1.B Express Causes of Action, Section 1983, Due Process Claims and Procedural Issues

Updated 2013 by Robert P. Capistrano

5.1.B. Due Process Claims and Procedural Issues and Section 1983

5.1.B.1. Due Process Claims and Section 1983

In relevant part, the Fourteenth Amendment prohibits any state from depriving “any person of life, liberty, or property, without due process of law.” Claims under this provision have been a staple of Section 1983 legal services practice for many years. Procedural due process addresses the right to notice and hearing before (or after) particular deprivations can take place. Substantive due process concerns governmental deprivations of life, liberty, or property stemming from particularly outrageous governmental actions. The Supreme Court has developed a number of guidelines on the use of Section 1983 to raise claims founded on alleged deprivations of due process, beginning with an analysis of interests protected by due process.

5.1.B.1.a. Establishing a “Property” Interest

In Board of Regents v. Roth, the Supreme Court defined the property interest protected by the Fourteenth Amendment as a “legitimate claim of entitlement” to the item or benefit in question./1/ Such “entitlements” are “created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state lawrules or understandings that secure certain benefits and that support claims of entitlement to those benefits.”/2/

Plaintiff Roth, a teacher who had lost his job, was held not to have been terminated without due process because, lacking tenure, he “surely had an abstract concern in being rehired, but he did not have a property interest sufficient to require ... giv[ing] him a hearing.”/3/ In Perry v. Sinderman, the companion case to Roth, the Court stated that an untenured teacher might, nevertheless, have a property interest if he could show the existence of “such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at the hearing.”/4/ Although “a mere ‘expectancy’” is not protected by due process, the Court held that the aggrieved party “must be given an opportunity to prove the legitimacy of his claim of such entitlement in light of the ‘policies and practices of the institution.’”/5/

Congress’ reluctance to grant federal entitlements is evidenced by the increasing use of “block grant” distributions of federal largess. Therefore, advocates seeking to establish a property interest in certain federally funded benefits, such as Temporary Assistance for Needy Families, must look for “rules or mutual understandings” under state or local statutes or ordinances under which the client can claim an entitlement protected from deprivation by the federal Due Process Clause. For example, many state aid to families with dependent children statutes were amended to conform to the Personal Responsibility and Work Opportunity Reconciliation Act of 1996. Yet, despite the addition of time limits or “welfare to work” requirements, the state statute may still mandate that an applicant receive a given amount of benefits so long as basic eligibility is met, thereby creating a “legitimate claim of entitlement” protected by the Due Process Clause./6/

5.1.B.1.b. Establishing a “Liberty” Interest

Outside of a custodial setting, deprivation of liberty interests usually presents substantive, rather than procedural, due process issues. Such liberty interests were described in Board of Regents v. Roth as follows:

Without doubt it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized ... as essential to the orderly pursuit of happiness by free men./7/

Fundamental liberty interests, however, are limited to those that are “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if [they] were sacrificed,” or that are “deeply rooted in this Nation’s history and tradition."/8/ Advocates should not neglect assertions of the liberty interest. For example, restrictive housing authority roommate policies that hamper the right to live with relatives can present a deprivation of a liberty interest./9/

5.1.B.1.c. Assessing the Adequacy of the Procedures Used

Procedural due process generally requires that governmental deprivations of life, liberty or property be accompanied by notice and hearing. Pre-termination hearings are required where the threatened property right consists of need-based benefits. This is because the recipient or applicant “may be deprive[d] of the very means by which to live....”/10/ The test for determining the extent of the procedures required in a given case, including the right to a pre-deprivation hearing, balances three factors:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail./11/

Procedural due process continues to play a key role in legal services practice, as clients fail to receive notice of adverse government action or receive notices that fail to explain adequately the basis for a benefit denial, termination, suspension, or the imposition of sanctions. Clients are often faced with hearing officers who fail to take evidence or gather evidence outside of a hearing through ex parte phone calls, or who do not adequately explain their reasoning when rendering a decision. In the world of devolution, health maintenance organizations with Medicaid enrollees may not offer the opportunity for a fair hearing, for example, to contest the denial of a request for a particular procedure or treatment whose only rationale is the financial bottom line.

5.1.B.1.d. Section 1983 Cannot Be Used to Redress a Non-systemic, Random, and Unintentional Deprivation of a Life, Liberty, or Property Interest

Given the breadth of the Due Process Clause, any government action that deprives a party of life, liberty or property is conceivably actionable under Section 1983. The Supreme Court, however, has narrowed the ability of plaintiffs to package a tort claim in the trappings of due process. Parratt v. Taylor held that a Section 1983 remedy was not available to an inmate who sued a prison for its negligent loss of a hobby kit mailed to the plaintiff./12/ The Supreme Court ruled that the prisoner could not sue for the deprivation of procedural due process if an alternative post-deprivation state damages remedy sounding in tort was available. Due process was not implicated because the state could not be expected to anticipate a random and unpredictable loss of property./13/

By contrast, in Zinermon v. Burch,/14/ a voluntary commitment case, the Court ruled that the government’s failure to provide a pre-commitment hearing required by state law was actionable under Section 1983. There, plaintiff, who had voluntarily committed himself to a state mental institution, later sued arguing that he lacked the capacity to have consented to his voluntary commitment. Unlike the unpredictable and random loss in Parratt, the Court found that depriving the liberty of a person facing commitment was “predictable and systemic” in the sense that the danger of an unwarranted loss of liberty is evident in all cases that pose the potential for commitment. Hence, the possibility of post-commitment relief – a tort suit for damages or habeas corpus – was not an adequate post-deprivation remedy that could substitute for the failure to hold a pre-commitment hearing.

These principles can be applied to a legal aid practice. Assume that a tenant has sought your help after having been evicted from her apartment following a nuisance abatement proceeding, notice of which was given only to the building owner and not to the tenants. In response to your due process claim, the city relies on Parratt to argue that your client’s only remedy is damages, and that because no administrative claim was made to the city, the suit should be dismissed. Zinermon would support your client’s claim, because the deprivation of a tenancy without due process is the inevitable and systemic result of a nuisance abatement proceeding in which notice is never given affected tenants. Because exhaustion of state remedies is not required for Section 1983 claims, this suit should survive despite the failure to file an administrative claim, even if the action were brought in state court.

5.1.B.1.e. Substantive Due Process Claims

The typical substantive due process claim brought under Section 1983 seeks redress for government acts that violate “personal immunities” that are “fundamental,” that is, “implicit in the concept of ordered liberty.”/15/ Rights protected at least in part by the Due Process Clause include liberty interests not explicitly set forth in the Constitution, such as the right to privacy./16/

A substantive due process claim can also be based on deprivations caused by the government’s failure to train, supervise or adequately hire its employees. Such claims are very difficult to prove. They require a showing that the government’s inaction was a custom, policy, or practice, and that the government’s deliberate inaction caused the injuries. Since City of Canton v. Harris, involving failure to identify and adequately treat a prisoner’s medical condition, the court has basically required a plaintiff to show that the type of incident which resulted in injury is so recurring as to tend to show that the government’s inaction was conscious or deliberate, amounting to “deliberate indifference” to the consequences of its inaction./17/

Substantive due process claims involving incarcerated prisoners are often hybrid claims based on both the Fourteenth Amendment and another substantive constitutional right. While City of Canton v. Harris was based solely on due process, other cases, particularly those involving injuries to prisoners caused by other prisoners, have been couched as a deprivation of the Eighth Amendment bar on cruel and unusual punishment./18/ In both cases, the Supreme Court has applied the “deliberate indifference” standard, although the requisite showing of government knowledge of the danger appears somewhat higher when third-party-caused injuries are involved. Moreover, the Supreme Court has more recently applied the “deliberate indifference” standard to cases outside of the prison context, involving a public school’s failure to do anything to control student sexual harassment./19/ It is hardly far-fetched to apply the same standard where social service or housing benefits are denied as a result of government’s “deliberate indifference” to the consequences of its failure to adequately train or supervise its staff.

5.1.B.2. Procedural Issues and Section 1983

Procedural hurdles can arise in Section 1983 cases. Among the most important involve exhaustion of state administrative remedies and when a federal court should “borrow” state law.

5.1.B.2.a. Exhaustion of State Remedies Is Usually Not Required

Under Monroe v. Pape, a plaintiff is not required to exhaust any available state court remedies before invoking Section 1983, because the purpose of this statute is to open federal courts to claims that federal rights were violated./20/ In Patsy v. Board of Regents, the leading case on this issue, the Court excused plaintiff’s failure to raise an employment discrimination claim in a state administrative proceeding./21/ Pointing to Section 1983's purpose of opening the federal courts to plaintiffs seeking the vindication of federal rights, the Court ruled that Congress had not intended that plaintiffs first exhaust any available state administrative remedies. For the same reason, a Section 1983 plaintiff is not required to first file an administrative claim for government reimbursement even when state law requires such a submission prior to filing suit./22/

Because of the non-exhaustion rule, a Section 1983 plaintiff who sues directly in federal court can avoid the pitfall of an adverse state judicial or administrative ruling that would preclude subsequent litigation of the federal issue under the doctrines of issue or claim preclusion./23/ Moreover, under general administrative law principles, failure to exhaust would be excused if the administrative tribunal lacked the authority to decide the federal constitutional or preemption claim./24/

Some exceptions to the non-exhaustion rule exist; some of them having only passing relevance to a civil legal services practice. Under Parratt, a Section 1983 remedy is not available to address random tort claims based on the deprivation of due process if adequate state post-deprivation remedies are available. Although the Parratt rule generally does not apply to suits based on the deprivation of substantive constitutional rights not involving due process, the Supreme Court has, nevertheless, ruled that Fifth and Fourteenth Amendment “taking” claims are not ripe in federal court until the local government agency has refused just compensation./25/

Moreover, for reasons of comity, federal statutes require that challenges to state and local tax schemes be first brought in state courts./26/ Federal courts rely on the same basic principle to abstain from ruling on a claim that raises issues that can more appropriately be addressed by a state court./27/

5.1.B.2.b. Exhaustion of Administrative Remedies and the Ripeness Doctrine

To circumvent the general non-exhaustion rule, defendants have argued for the dismissal of Section 1983 actions on ripeness grounds. They argue that the claim is not ripe for review because the issue could have been raised and resolved at the administrative level. While a plaintiff can respond that such a ripeness argument is actually only a disguised exhaustion claim, which should be rejected, resolution of the issue will turn on whether the challenged action is “final” in its effect on the plaintiff.

The rule requiring exhaustion of administrative remedies stems from the common-sense proposition that only “final” administrative actions should be ripe for court review./28/ Thus, in an administrative proceeding where plaintiff’s claims may be resolved with or without regard to any federal issues, the agency may argue, with some justification, that the claims are not fit for judicial review until the agency has had a chance to review its initial decision./29/ Absent a final hearing decision, the agency might argue that it has not conclusively taken an adverse position to the plaintiff./30/ In the Section 1983 context, however, an agency action is nevertheless “final” for ripeness purposes when the agency’s action is so definitive as to have resulted in a deprivation of federal rights, even if administrative remedies have not been exhausted.

Williamson County Regional Planning Commission v. Hamilton Bank addressed the interplay between the “finality” principle and the Section 1983 non-exhaustion rule./31/ In that case, the court dismissed a challenge to a zoning rule on the ground that the lawsuit was not ripe because the plaintiff bank, when faced with a rule that could have stripped its property of economic value, sued the zoning agency instead of asking for a variance. Had the variance been granted, the property loss would have been avoided or curtailed. If the variance had been denied, resulting in a deprivation of economic value in violation of the Fourteenth Amendment, the case would then have become ripe for review. In response to the argument that Section 1983 does not require exhaustion, the Court wrote:

The question whether administrative remedies must be exhausted is conceptually distinct, however, from the question whether an administrative action must be final before it is judicially reviewable While the policies underlying the two concepts often overlap, the finality requirement is concerned with whether the initial decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury; the exhaustion requirement generally refers to administrative and judicial procedures by which an injured party may seek review of an adverse decision and obtain a remedy if the decision is found to be unlawful or otherwise inappropriate. Patsy [v. Board of Regents] concerned the latter, not the former./32/

These principles apply in the legal aid context. For instance, if a food stamp agency or public housing authority issues a notice of action which affects an individual and, on its face, violates federal law, an aggrieved plaintiff may sue without first invoking any available administrative agency appeals. The agency’s action has “inflict[ed] an actual concrete injury.” While an administrative proceeding could remedy the injury, so could a lawsuit. Because Section 1983 does not require exhaustion, a plaintiff can go directly to court.

5.1.B.2.c. Borrowing State Law in a Section 1983 Action Brought in Federal Court

42 U.S.C. § 1988(a) requires that a federal court hearing a Section 1983 claim apply state law where federal law is silent on the issue and state law is not inconsistent with federal law. The court must first decide whether federal law is deficient or silent on the issue. If so, it must then determine whether (1) a controlling statute applies or (2) state common law applies to the claim./33/

Using this analysis, the Supreme Court has applied state tort law to determine the survivability of Section 1983 claims. For example, the Court has held that state tort laws prescribing the length of the statute of limitations govern Section 1983 actions./34/ However, federal law "conforming in general to common-law tort principles" determines when a Section 1983 action accrues./35/ Ordinarily, accrual occurs when the plaintiff has "a complete and present cause of action."/36/


1. Board of Regents v. Roth, 408 U.S. 564, 577 (1972).

2. Id.

3. Id. at 578.

4Perry v. Sinderman, 408 U.S. 593, 602 (1972).

5. Id. at 602, 603 (citation omitted). Some cases have held that the expectation of receiving a benefit can be a property interest which supports a due process claim when the state deprives the potential plaintiff of a procedure to vindicate that expectation. In Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982), a property interest was found in the expectation that the state would provide a procedure for determining a plaintiff’s disability discrimination claim. However, procedures alone and not tied to tangible benefits, are not property rights. Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005). In that case, the Court held that no property right inheres in something that the government provides or takes away at its discretion. Moreover, even if the arrest of violators of domestic violence restraining orders were mandatory, the Court held that the entitlement to enforcement was not a property right. Enforcement of an order against a third party would, according to the Court, only incidentally or indirectly create a benefit.

6. Entitlement to that benefit must be demonstrated. In American Manufacturers Mutual Insurance Company v. Sullivan, 526 U.S. 40, 60-61 (1999), the Court found that workers’ compensation recipients do not have a property interest in medical expense payments until the reasonableness and necessity of the expense have been established.

7. Board of Regents v. Roth, 408 U.S. 564, 572 (1972) (quoting Meyer v. Nebraska, 262 U.S. 390, 399 (1923)).  See Zinermon v. Burch, 494 U.S. 113, 117 (1990) (liberty interest in avoiding confinement in mental hospital).

8. Bowers v. Hardwick, 478 U.S. 186, 191-92 (1986) (overruled by Lawrence v. Texas, 539 U.S. 558 (2003), and quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937) and Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977)).  See District Attorney's Office v. Osborne, 557 U.S. 52, 129 S. Ct. 2308, 2319 (2009) (liberty interest in demonstrating innocence with new evidence).

9. See Moore, 431 U.S. at 503; see also Wilkinson v. Austin, 545 U.S. 209, 221-24 (2005) (inmates have a liberty interest in avoiding assignment to a “Supermax” facility).

10. Goldberg v. Kelly, 397 U.S. 254, 264 (1970) (Aid to Families with Dependent Children benefits); Wheeler v. Montgomery, 397 U.S. 280 (1970) (benefits under Aid to the Totally Disabled Program, the California precursor to the Supplemental Security Income program).

11. Mathews v. Eldridge, 424 U.S. 319, 335 (1976). See Wilkinson, 545 U.S. at 226-29 (emphasizing role of notice and “fair opportunity for rebuttal” in reducing risk of erroneous deprivation). For a comprehensive examination of Due Process principles in administrative hearings, see Robert P. Capistrano, Making the Fair Hearing More Fair, 44 Clearinghouse Review 96 (July-Aug. 2010).

12. Parratt v. Taylor, 451 U.S. 527 (1981).

13. The Court later ruled that § 1983 was unavailable to redress an intentional property loss framed as a deprivation of due process. Hudson v. Palmer, 468 U.S. 517 (1984) (intentional but random destruction of property during prison cell search). Still later, it held that there could never be a negligent random deprivation of due process, even if state law provided no post-deprivation remedy. Daniels v. Williams, 474 U.S. 327 (1986); Davidson v. Cannon, 474 U.S. 344 (1986). In these cases, reflecting the court’s antipathy to prisoner suits, injured prisoners were denied a federal remedy even though they could not sue the prison for negligence under state law.

14. Zinermon v. Burch, 494 U.S. 113 (1990). Zinermon also held that the Parratt v. Taylor rule (that § 1983 is unavailable to redress random unauthorized deprivations of due process) applies to deprivations of liberty as well as property interests, but cannot be used to bar claims based on the deprivation of other substantive constitutional rights.

15. See Rochin v. California, 342 U.S. 165, 169, 175 (1952), the prototypical “police brutality” case in which the violations were said to have “shock[ed] the conscience.”

16. See, e.g., Eisenstadt v. Baird, 405 U.S. 438 (1972) (access to contraception); Roe v. Wade, 410 U.S. 113 (1973) (right to choose to have or not have an abortion); Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977) (right to live with family members); and Cruzan v. Director of Missouri Department of Health, 497 U.S. 261 (1990) (right to refuse medical treatment). This survey by no means exhausts the scope of the interests protected by substantive due process.

17.  Connick v. Thompson, 131 S. Ct. 1350, 1359-60 (2011); City of Canton v. Harris, 489 U.S. 378, 388 (1989) (failure to train police officers to identify medical emergencies). In Connick, which involved a prosecutor who had withheld exculpatory evidence from an innocent plaintiff who subsequently spent 14 years on death row, the Court reversed a plaintiff's judgment because the prosecutor—employed by an office that had four prior convictions reversed because of withheld evidencehad presumably learned legal reasoning and legal ethics in law school, a factor absent in the case of most government employees. See also Board of the County Commissioners v. Brown, 520 U.S. 397 (1997) (liability for failure to hire competent personnel requires a showing of “deliberate indifference” to the consequences in light of the newly hired deputy sheriff’s propensity for violence).

18. See, e.g., Estelle v. Gamble, 429 U.S. 97, 104 (1976). The government’s duty extends to preventing custodial mental patients from harming themselves or others. Youngberg v. Romero, 457 U.S. 307, 315-16, 319 (1982); City of Revere v. Massachusetts General Hospital, 463 U.S. 239 (1983).

19Davis v. Monroe County Board of Education, 526 U.S. 629 (1999).

20. Monroe v. Pape, 365 U.S. 167 (1971); see also McNeese v. Board of Education, 373 U.S. 668 (1963).

21. Patsy v. Board of  Regents, 457 U.S. 496 (1982).

22. Felder v. Casey, 487 U.S. 131 (1988) (a plaintiff who files a § 1983 action in state court is not required to comply with state pre-litigation “notice of claim” requirements.) Felder, however, does not bar a state court from requiring that a § 1983 plaintiff comply with neutral state court procedural rules. It does excuse compliance with those that would “frequently and predictably produce different outcomes in federal civil rights litigation based solely on whether that litigation takes place in state or federal court.” Id. at 141. Thus, in Johnson v. Fankell, 520 U.S. 911 (1997), the Supreme Court validated a state court’s application of a procedural rule that prohibited interlocutory appeals, even though, contrary to the practice in federal court, application of the rule forbade a government employee from immediately appealing the denial of summary judgment based on qualified immunity. The Supreme Court reasoned that the state rule was not “outcome determinative” in that “postponement of the appeal until after final judgment will not affect the final outcome of the case.” Id. at 921.

23. As discussed in Chapter 3.4 of this MANUAL, the advocate should, nevertheless, consider pursuing state judicial or administrative remedies as those may be faster and less expensive. As noted, doing so may raise preclusion issues.

24. Administrative tribunals rarely have such broad power. See McKart v. United States, 395 U.S. 185 (1969) for a discussion of why exhaustion is preferred, and when failure to do so – as where exhaustion would be futile – is excusable.

25. Zinermon, 494 U.S. at 113; Williamson County Planning Commission v. Hamilton Bank, 473 U.S. 172 (1985); San Remo Hotel v. San Francisco, 545 U.S. 323 (2005). San Remo Hotel reiterated the rule even though the exhaustion requirement could mean that a plaintiff might be collaterally estopped from litigating the federal claim.

26. 28 U.S.C. §§ 1341-1342.

27. See Chapter 2.8 of this MANUAL, for a discussion of the abstention doctrine.

28. See Chapters 3.2 and 3.4 of this MANUAL for discussions of the ripeness and exhaustion doctrines. The exhaustion doctrine under the Administrative Procedure Act is discussed in Section 1.B.3.b. of this Chapter.

29. In the Ninth Circuit, for example, a case can be dismissed for failure to exhaust even in the absence of a statutory administrative appeal when “(1) agency expertise makes agency consideration necessary to generate a proper record and reach a proper decision; (2) relaxation of the requirement would encourage the deliberate bypass of the administrative scheme; and (3) administrative review is likely to allow the agency to correct its own mistakes and to preclude the need for judicial review.” United States v. California Care Corporation, 709 F.2d 1241, 1248 (9th Cir. 1983) (in a suit by the Department of Health and Human Services for recoupment of Medicare payments received by providers, the providers’ objections to the suit were rejected out of hand because they had not been first raised with Blue Cross). Similarly, in Affiliated Professional Home Health Care Agency v. Shalala, 164 F. 3d 282, 286 (5th Cir. 1999), a suit for Medicare payments, couched as a claim for violation of constitutional rights, was dismissed for failure to exhaust administrative remedies.

30. See Thunder Basin Coal Company v. Reich, 510 U.S. 200 (1994) (applying the Abbott Laboratories. v. Gardner, 387 U.S. 136 (1967) test to deny pre-enforcement judicial review of a labor regulation because of the availability of administrative review).

31Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 192-93 (1985).

32. Id. at 192.

33. Robertson v. Wegmann, 436 U.S. 584 (1978).

34. Wilson v. Garcia, 471 U.S. 261, 276 (1985). However, while state law determines the limitations period, federal law determines when a § 1983 action accrues. Chardon v. Fernandez, 454 U.S. 6 (1981) (holding that the claim accrued when plaintiff learned he was to be fired, not when plaintiff was actually terminated).

35. Wallace v. Kato, 549 U.S. 384, 388 (2007).

36. Id. (quoting Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corporation of California, 522 U.S. 192, 201 (1997)), In Wallace, the Supreme Court held that the statute of limitations of a § 1983 claim for unlawful arrest runs from when the plaintiff appeared before a magistrate and was bound over for trial, not when charges were dropped against him.

Updated 2013 by Robert P. Capistrano

5.1.C Express Causes of Action, Administrative Procedure Act

Updated 2013 by Gill Deford, 2015 by Jeffrey S. Gutman

5.1.C. Administrative Procedure Act

Although some federal statutes that create rights include their own mechanisms for judicial review of agency action affecting those rights, most are silent with respect to judicial review. In the Administrative Procedure Act (APA), Congress expressly granted a private right of action to enforce federal rights against federal agencies./1/ Because 5 U.S.C.§ 702 creates this right of action expressly, there is no need to look for an implied right of action against the federal government. The APA, then, waives the federal government's sovereign immunity over suits "seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority,"/2/ unless another statute "that grants consent to suit expressly or impliedly forbids the relief which is sought."/3/

5.1.C.1. Suit for Judicial Review

With many exceptions, the APA generally requires federal agencies to act through adjudication or rule making or both. Typical challenges to agency action contend that the agency misinterpreted its governing statute or made erroneous conclusions of law; that the agency’s rules or findings of fact were arbitrary or capricious; or that the agency used improper procedures in its decision making. As discussed below, due to the courts’ substantial deference to an agency’s interpretation of its governing statute and to its findings of fact, procedural challenges to an agency’s decision-making process may offer greater prospects for securing relief for your clients./4/ State administrative procedure statutes similarly should not be overlooked as a potentially powerful tool against state actions that adversely affect your clients. However, at least two significant hurdles to judicial review must first be overcome: assertions that agency action is unreviewable and that the challenge was not filed at the appropriate time.

5.1.C.2. Unreviewable Agency Discretion

Although the APA may provide a right to sue, agency action may escape judicial review either under 5 U.S.C. § 701(a)(1), if it is exempted by statute from judicial review, or under § 701(a)(2), if it is committed to agency discretion. Section 701(a)(1) applies when a statute is sufficiently explicit and unequivocal to overcome the general presumption of reviewability first articulated in Abbott Laboratories v. Gardner./5/ The First Circuit, for example, held that a hospital’s challenge to the U.S. Department of Health and Human Services’ refusal to reclassify it geographically was unreviewable in light of a provision of the Medicare Act that stated, “[T]he decision of the [Administrator] shall be final and shall not be subject to judicial review."/6/ When the extent of preclusion of review is less clear, the Supreme Court tends to interpret the asserted limitation narrowly./7/ This approach is also commonly taken to avoid the very thorny constitutional question presented where a statute is interpreted to preclude review of a colorable constitutional claim./8/

Section 701(a)(2), which precludes judicial review “to the extent that ... agency action is committed to agency discretion by law,” poses a more significant issue in APA litigation. Federal agencies routinely assert the Section 701(a)(2) exception, arguing that its seemingly limitless sweep precludes judicial review in all sorts of cases. As summarized below, early Supreme Court decisions limited the breadth of Section 701(a)(2), but more recently the trend has moved against the presumption of reviewability.

In Citizens to Preserve Overton Park Inc. v. Volpe, plaintiffs challenged a U.S. Department of Transportation decision to assist the construction of a highway through a public park as a violation of a federal statute requiring parks to be avoided when “feasible and prudent.”/9/ The Secretary argued that his decision was not subject to judicial review because the governing statute vested him with broad discretion relating to highway routes, did not expressly provide for judicial review and did not require the creation of a record for review. The Supreme Court, rejecting that assertion, held that Section 701(a)(2) was applicable only when there was “clear and convincing evidence” of legislative intent to bar review. Such is the case only in those rare instances where “statutes are drawn in such broad terms that in a given case there is no law to apply.”/10/ The “feasible and prudent” standard, in the Court’s view, supplied such a law.

By contrast, in Webster v. Doe, an agent who admitted that he was gay sought review of his discharge and asserted that his discharge was contrary to agency regulations, that it was arbitrary and capricious, and that it was unconstitutional./11/ Relying on the language of the National Security Act, which authorizes the director of the Central Intelligence Agency to fire an employee whenever he “shall deem such termination necessary or advisable in the interests of the United States,” the Court held that the agency action was non-reviewable under the APA. The Court reasoned that the statute, empowering the director to make personnel decisions, not only provided no judicially manageable standards, but also seemed to vest the matter entirely in his discretion./12/

Heckler v. Chaney elaborated on the “no law to apply” standard in the context of a challenge to an agency’s refusal act./13/ The suit challenged the Food and Drug Administration’s refusal to begin enforcement proceedings against the use of unapproved drugs in “lethal injection” executions as a violation of the Food, Drug, and Cosmetic Act. The Court stated:

[E]ven where Congress has not affirmatively precluded review, review is not to be had if the statute is drawn so that a court would have “no meaningful standard against which to judge the agency’s exercise of discretion.” In such a case, the statute (“law”) can be taken to have “committed” the decisionmaking to the agency’s judgment absolutely. This construction avoids conflict with the “abuse of discretion” standard of review in § 706—if no judicially manageable standards are available for judging how and when an agency should exercise its discretion, then it is impossible to evaluate agency action for “abuse of discretion.”/14/

In applying the “meaningful standards” test to a claim challenging agency inaction, Chaney reversed the Overton Park presumption of reviewability. Chaney established a strong presumption against judicial review of an agency decision not to take enforcement action and suggested that the presumption could be overcome by a showing that the statute to be enforced specifically directed agency enforcement action and provided guidelines for doing so./15/

Subsequent cases continued to chip away at the presumption of reviewability./16/ Yet, the cases are very fact-specific, turning on a careful reading of the statute and its purpose./17/ Two cases are illustrative, the first employing the logic of Overton Park, and the second following Chaney./18/ They generally suggest a greater likelihood of reviewability when the case is framed as a challenge to agency action or decision-making than as a challenge to inaction or failure to enforce certain requirements.

In Beno v. Shalala, a group of Aid to Families with Dependent Children recipients challenged as arbitrary and capricious an Department of Health and Human Services grant of a waiver of maintenance-of-effort requirements; the waiver permitted California to embark on an experiment that reduced Aid to Families with Dependent Children benefits./19/ The applicable statute authorized the Department of Health and Human Services secretary to grant waivers “to the extent and for the period [the Secretary] find[s] necessary” and for projects that “in the judgment of Secretary [are] likely to assist in promoting the objectives” of the Act./20/ The Ninth Circuit held that the secretary’s decision was reviewable and noted that the granting of waivers was not traditionally unreviewable. The statute “does not reveal a congressional commitment to the unfettered discretion of the Secretary;”/21/ and judicial review did not interfere with the statutory scheme.

Despite the language of the statute, the court further held that it contained a meaningful standard for review because the Aid to Families with Dependent Children program’s objectives were specified in the statute./22/ Although not the case in Beno, where the Ninth Circuit vacated the waiver and remanded the matter to the Department of Health and Human Services for development of the administrative record, reviewability victories are frequently short-lived as the deferential arbitrary and capricious standard makes reversal on the merits difficult.

In American Disabled for Attendant Programs Today v. U.S. Department of Housing and Urban Development, organizations advocating on behalf of the disabled sued the Department of Housing and Urban Development (HUD) under the APA for failing to ensure that multifamily housing was accessible to the disabled in alleged violations of the Fair Housing Act Amendment and Section 504 regulations./23/ Plaintiffs alleged that HUD received many complaints of noncompliance but failed to investigate or take enforcement action against violators. Although HUD regulations state that HUD “shall” conduct a prompt investigation upon receipt of a complaint, the Third Circuit held that HUD’s failure to do so was unreviewable and that Congress established no guidelines limiting HUD’s discretion to investigate alleged violations./24/ Despite the mandatory direction in the regulation, the court found this case to be controlled by Chaney. Again, even if the court had found HUD’s failure to be reviewable, the general absence of controlling limitations on enforcement actions would have made it very difficult to show that the agency behaved arbitrarily or capriciously. Reviewability is but the first battle in an Administrative Procedure Act war.

5.1.C.3. Timing

Should an agency decision be reviewable under Section 701, a court may still decline to review it on the ground that agency action is not final, that the plaintiff failed to exhaust administrative remedies, or that the case is not ripe for review. There is considerable overlap among these doctrines./25/ But each is discussed briefly, and separately, below.

5.1.C.3.a. Final Agency Action

In the absence of a substantive statute specifying the prerequisites for judicial review, or deeming certain agency action to be final, the Administrative Procedure Act governs the timing of judicial review./26/ Section 704 limits judicial review to final agency action.

The Supreme Court most recently articulated a test for final agency action in Bennett v. Spear./27/ There, the Court held that finality required satisfaction of two elements: (1) “the action must mark the ‘consummation’ of the agency’s decision-making process—it must not be of a merely tentative or interlocutory nature,” and (2) “the action must be one by which ‘rights or obligations have been determined,’ or from which ‘legal consequences will flow.’”/28/ The first element is satisfied when the agency offers its “last word” on the subject, even if that word is expressed less formally than a rule making or adjudication, and is subject to continuing agency review./29/ The second element is met when the agency action “imposes an obligation, denies a right or fixes some legal relationship.”/30/ It is not satisfied when the agency action is no more than a nonbinding recommendation./31/

The Supreme Court recently applied this test in Sackett v. Environmental Protection Agency./32/ In Sackett, the plaintiffs challenged an Environmental Protection Agency compliance order issued under Section 309 of the Clean Water Act. That order found that the plaintiffs had discharged pollutants into a wetland and ordered them to restore the land. The Court held that the order determined the plaintiffs' rights and obligations and had consummated agency decision-making. Although plaintiffs were invited to inform the Environmental Protection Agency of errors in the order and to engage in informal discussions, no administrative hearings were permitted, making the order final./33/

Final agency action can include, as 5 U.S.C. § 551(13) provides, agency inaction which is the failure to make an agency rule, order, license, sanction or relief. 5 U.S.C. § 706(1) requires a reviewing court to compel agency action that is “unlawfully withheld or unreasonably delayed.” In Norton v. Southern Utah Wilderness Alliance,/34/ the Court held that an Administrative Procedure Act inaction claim must challenge an agency’s fa ilure to take a legally required and discrete action. Legally required acts are those that would have been remediable by mandamus prior to the enactment of the Administrative Procedure Act./35/ The requirement that a court can only compel discrete acts forecloses broad challenges to general agency inaction of the sort rejected in Lujan v. National Wildlife Federation./36/

5.1.C.3.b. Exhaustion of Administrative Remedies

Common law or statutes may require the exhaustion of administrative remedies./37/ Perhaps the leading case discussing the rationale for the common-law exhaustion requirement and its exceptions is McKart v. United States./38/ According to the Supreme Court in McKart, a Vietnam War draft case, exhaustion serves to permit the agency that is delegated authority by Congress to make findings and conclusions based on its expertise to develop a full record for future judicial review, to avoid disruption of administrative process, and to reduce judicial appeals./39/ At the same time, the Court recognized that the rationale for exhaustion may be outweighed by other considerations./40/ Exhaustion may not be required where it would cause irreparable injury, the agency appears to lack jurisdiction over the matter, agency expertise is not implicated, an administrative record would not assist the reviewing court, or exhaustion would be futile./41/

The degree to which exhaustion is required by statute, of course, depends on the terms of the statute. If required by statute, however, exhaustion may not be excused by a court or agency./42/ Nevertheless, the Court frequently—but not consistently—excuses the exhaustion requirement when the plaintiff challenges aspects of the agency’s decision making on constitutional grounds./43/ Nor is exhaustion generally required in Section 1983 cases./44/ A court may not impose exhaustion requirements beyond that set forth in the statute or agency rule./45/

5.1.C.3.c. Ripeness

While ripeness often overlaps with the doctrine of final agency action and exhaustion of administrative remedies, ripeness does have independent significance. Ripeness issues frequently arise when a challenge is made to agency rules before they are enforced and to agency action announced informally./46/ In Abbott Laboratories v. Gardner, a pre-enforcement review case, the Supreme Court held that ripeness for review was presumed unless Congress specifically provided otherwise./47/ The Court established a two-part ripeness test: “the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.”/48/ Abbott Laboratories, therefore, suggests that, if declining pre-enforcement review would visit harm upon the plaintiff and if the issue presented is principally a legal one, or one that can be decided without factual development by the agency, the matter is regarded as ripe for review./49/

This relatively forgiving standard was narrowed in a category of cases commonly encountered by legal aid attorneys—cases involving challenges to rules governing government benefits. In Reno v. Catholic Social Services, classes of undocumented aliens challenged Immigration and Naturalization Service regulations which made it more difficult for them to realize the benefits of an alien legalization statute on the ground that the regulations were inconsistent with the statute./50/ The Court found the challenge distinguishable from Abbott Laboratories, in which the plaintiffs were placed in the “immediate dilemma to choose between complying with newly imposed, disadvantageous restrictions and risking serious penalties for violation.”/51/ The Court reasoned that, by contrast, the regulations challenged in Catholic Social Services limited access to a benefit rather than imposed penalties and required the applicant to satisfy requirements other than those challenged./52/ As a result, challenges to the regulations would be ripe only if the application for the benefit were formally or informally rejected on grounds contained in the rules at issue. Ripeness was not satisfied even if the invalid regulation deterred applications for benefits./53/

The Court also barred pre-enforcement challenges to rules in cases in which Congress is believed to have supplied sufficient and alternative administrative methods of review. In Thunder Basin Coal Company v. Reich, a coal company filed a pre-enforcement challenge to a mine safety rule that permitted non-employee union officials to serve as the employees’ representatives in statutorily required mine inspections./54/ Although silent on pre-enforcement claims, the Court held that the detailed and comprehensive administrative review provisions of the Federal Mine Safety and Health Amendments Act suggested that Congress intended to preclude pre-enforcement challenges. Moreover, the fact that the nature of the claims presented was not “collateral to the administrative review provisions and within the agency’s expertise” supported that conclusion. Noting that the ultimate administrative entity was independent, had exclusive jurisdiction, had decided constitutional claims, and was subject to judicial review in the court of appeals, the Court rejected the company’s assertion that the constitutional nature of its claim required immediate judicial, rather than administrative, review./55/

Courts generally find that challenges to informal agency action, such as the issuance of opinion letters, interpretive rules, policy statements and the like, are not ripe for review or are not reviewable agency action. As discussed below, such agency action is not subject to Chevron deference and ordinarily lacks the binding force or effect of law. Nevertheless, if such action is regarded as final and binding and the issue for review involves solely a question of law, or if failure to review would result in hardship to the plaintiff, then the case may suggest ripeness.

5.1.C.4. Rulemaking

The Administrative Procedure Act prescribes three principal means for the adoption of agency regulations:

  • formal rulemaking,/56/
  • informal rulemaking, and
  • the issuance of interpretative rules, procedural rules, general statements of policy, and other rules exempted from normal rulemaking requirements.

We focus on the second and third means here./57/

Informal rulemaking is the three-step process governing the adoption of legislative rules. Legislative rules are as binding as statutes as they must be followed by the public and the agency issuing them. Agencies may issue legislative rules only if Congress has permitted them to do so.  Informal rulemaking begins with the publication of a notice of proposed rulemaking in the Federal Register. The notice must describe the proposed rule or the subject and issues to be considered and must be sufficient to alert interested parties of the subject matter of the regulations and their probable impact./58/ To assure public participation in the process, the notice of proposed rulemaking must solicit comments. In the second step, the agency receives and considers public comments. The process concludes with publication of final regulations and a basis and purpose statement reviewing the reasons for rulemaking, the agency’s consideration of comments received, and the rationale for the rule adopted./59/ The basis and purpose statement must reflect that comments were considered in light of all factors that Congress directed the agency to consider even if ultimately rejected. The result of informal rulemaking is a set of legislative rules having the force and effect of law.

Each stage of the rulemaking process is subject to potential legal challenge.  The rulemaking notice must explain what the agency proposes to do and why./60/ The notice of proposed rulemaking must be sufficiently detailed to offer the public a reasonable opportunity to comment. When the final rule is sufficiently divergent from the proposed rule, it may be challenged on the ground that the initial notice was inadequate to put the public on notice that the resulting rule was contemplated by the agency and thus one that could have been commented upon. In this regard, the notice of proposed rulemaking may be found insufficient if the final regulations were not a "logical outgrowth" or not "sufficiently foreshadowed" in the notice of proposed rulemaking./61/ In addition, the agency must disclose the technical data, if any, relied upon in developing the proposed rule so that it may be subject to comment./62/ As explained further below, the agency is required to consider the comments and explain why it rejected plausible alternative approaches to the final rule as part of the general statement of "basis and purpose" required by 5 U.S.C. § 553(c).

Whether an agency engages in the three-step process for informal rulemaking is significant in two respects. First, if the agency issues a legislative rule without engaging in notice and comment rulemaking, the resulting rule is procedurally invalid. Second, whether the agency adopts a legislative rule through informal rulemaking, or an interpretative or other rule without informal rulemaking, has implications for the extent of deference given to the agency interpretation of its governing statute. The dividing line between rules requiring public participation in notice and comment rulemaking and those not, therefore, is an important but elusive one.

5.1.C.4.a. Exemptions from Rulemaking

The Administrative Procedure Act exempts certain rules from notice and comment rulemaking requirements./63/ The most significant of these exemptions are for interpretative rules and general statements of policy./64/ For years, the courts have struggled with distinguishing between legislative rules, which are required to be promulgated pursuant to notice and comment rulemaking, and interpretative rules, which are not. In American Mining Congress v. Mine Safety and Health Administration, the D.C. Circuit crafted a new test./65/ It was subsequently adopted by at least seven other circuits:/66/

Accordingly, insofar as our cases can be reconciled at all, we think it almost exclusively on the basis of whether the purported interpretive rule has “legal effect,” which in turn is best ascertained by asking (1) whether in the absence of the rule there would not be an adequate legislative basis for enforcement action or other agency action to confer benefits or ensure the performance of duties, (2) whether the agency published the rule in the Code of Federal Regulations, (3) whether the agency explicitly invoked its general legislative authority, or (4) whether the rule effectively amends a prior legislative rule. If the answer to any of these questions is affirmative, we have a legislative, not an interpretive, rule./67/

Interpretive rules, in contrast, generally alert the public to the agency’s interpretation of the laws and rules that it administers./68/ An agency could circumvent the public participation requirements of the Administrative Procedure Act by issuing general and non-controversial legislative rules and, then, issuing more substantive and potentially controversial interpretations of its vague legislative rules. Courts of appeal have not taken kindly to this approach./69/ American Mining Congress would regard such efforts as, in effect, amendments to legislative rules and, therefore, legislative themselves. A subsequent D.C. Circuit case, Paralyzed Veterans of America v. D.C. Arena, took this point one step further./70/ The D.C. Court suggested in dicta that, when an agency significantly changes its interpretation of an interpretive rule that interprets a legislative rule, the agency must do so after engaging in notice and comment rule making./71/

In an important 2015 case, the Supreme Court rejected the D.C. Circuit's approach in Paralyzed Veterans./72/ The case involved the administrative exemption to the Fair Labor Standards Act. A 2004 Department of Labor regulation, promulgated pursuant to notice and comment procedures, provided examples of such exempt employees. In 2006, the Department issued an interpretive opinion letter concluding that mortgage-loan officers were exempt. In 2010, the Department reversed that interpretation without using notice and comment rulemaking. The Court held that the APA did not require government agencies to use notice and comment rulemaking in amending or repealing interpretive rules which themselves are issued without it.

Policy statements are exempted from notice and comment rule making by 5 U.S.C.§ 553(b). The D.C. Circuit has recently offered two tests for determining whether agency action is an unreviewable statement of policy or a reviewable agency action./73/ The first deals with the effects of agency action: (1) whether it imposes rights or obligations and (2) whether the agency remains free to exercise discretion. The second focuses on the agency’s intentions: (1) its characterization, (2) whether it was published in the Federal Register or Code of Federal Regulations (CFR) or (3) whether the action is binding on the agencies or outsiders. At bottom, the central issue is whether the agency statement has a legally or “practically” binding effect on members of the public./74/ If it has such an effect, particularly when the statement announces a departure from prior practice, it is likely a rule subject to notice and comment rule making, more likely to be regarded as ripe for judicial review and given a more deferential standard of substantive review./75/ When, however, the agency issues a statement that either restates existing interpretations or retains discretion to act beyond it, the statement is likely not a rule./76/

5.1.C.4.b. Deference to Agency Interpretation of Statutes

Even if the agency’s rule or statement is promulgated lawfully, it may be challenged on the ground that it exceeds the limits of the agency’s statutory authority or proceeds from a misinterpretation of the statute. In Chevron U.S.A. Inc. v. Natural Resources Defense Council, Incorporated, the Supreme Court articulated a two-step standard by which such claims should be reviewed:

When a court reviews an agency’s construction of the statute it administers, it is confronted with two questions. First, always, is the question of whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute./77/

In step 1, “the court’s job is to determine whether the scope of ambiguity of the relevant language is sufficiently broad to invalidate the agency’s construction.”/78/ If the language of the statute cannot bear the construction selected by the agency, the interpretation must be overturned./79/ The Court typically consults dictionaries and prior judicial opinions for guidance on the meaning of statutory language. If the agency interpretation of the statute is supported by the statutory language in step 2, the court must uphold the interpretation if a reasonable one./80/ If it is unreasonable, the policy decision implicit in the agency interpretation is arbitrary and capricious and should be struck down./81/ Thus, as Professor Richard Pierce explains:

[A] court’s task in applying Chevron step two is to determine (1) whether the agency adequately discussed plausible alternatives, (2) whether the agency adequately discussed the relationship between the interpretation and pursuit of the goals of the statute, (3) whether the agency adequately discussed the relationship between the interpretation and the structure of the statute, including the context in which the language appears in the statute, and (4) whether the agency adequately discussed the relationship between the interpretation and any data available with respect to the factual predicates for the interpretation./82/

Recent Court decisions concern the forms of agency interpretation to which the deferential Chevron doctrine applies. Chevron plainly applies to legislative rules and formal adjudications./83/ The Court has also recently ruled that Chevron deference is due to agency interpretations of its jurisdictional statute./84/ Informal announcements (such as opinion letters, policy statements, and interpretive rules) that lack the force and effect of law, however, are not subject to Chevron deference./85/ Instead, such interpretations are treated with “respect” only to the extent that they have the “power to persuade.”/86/

The scope of Chevron was potentially broadened recently in United States v. Mead./87/ In Mead, the Court considered an issue left unanswered in Christensen v. Harris County—whether to give Chevron deference to informal adjudications. The Court noted that Chevron deference was owed to formal adjudications and notice and comment rule making, but further noted that such deference might also be afforded to less formal modes of interpretation. The Court held that tariff classification ruling letters (at issue in Mead), which were not subject to notice and comment rule making, were not entitled to Chevron deference. The Court held that “the terms of the Congressional delegation give no indication that Congress meant to delegate authority to Customs to issue classification rulings with the force of law.”/88/ However, Chevron deference is owed when “it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.”/89/ The difficulty in the aftermath of Mead is in determining when informal adjudications meet this standard./90/

Nonetheless, Chevron and Mead suggest an avenue for challenging agency policies or interpretations that are not published through notice and comment rulemaking procedures or informal adjudications. If the plaintiff contends that the policy or interpretation is contrary to the statute or arbitrary and capricious, the government may argue that the interpretation should be subject to Mead or Chevron deference. If the court disagrees, plaintiff may reap the benefit of a less deferential standard of review./91/ If the court agrees, then the agency interpretation must necessarily be a substantive or legislative rule that should have been promulgated through notice and comment rulemaking and can be challenged on the ground that it was not./92/

When Chevron deference applies remains an important and controversial issue before the Supreme Court. In National Cable & Telecommunications Association v. Brand X Internet Services, the Court reviewed a Ninth Circuit decision striking down the Federal Communications Commission’s interpretation of the Communications Act of 1934, which was that cable companies that sell broadband internet services do not provide telecommunications services and are not, therefore, subject to common carrier regulation./93/ This interpretation was asserted to be inconsistent with prior Federal Communications Commission rulings and foreclosed by a prior Ninth Circuit decision, in which the Federal Communications Commission was not a party, holding that cable companies were subject to the Act.

The majority held that unexplained inconsistency with prior agency interpretations may be a ground for finding a new interpretation arbitrary and capricious, but is not a reason to withhold Chevron deference./94/ More interesting, the majority held that the Federal Communications Commission was not bound to follow Ninth Circuit precedent so long as the court did not hold that the statute was unambiguous. Over Justice Scalia’s dissent, the Court put it this way:

… allowing a judicial precedent to foreclose an agency from interpreting an ambiguous statute ... would allow a court’s interpretation to override an agency’s. Chevron’s premise is that it is for agencies, not courts, to fill statutory gaps. The better rule is to hold judicial interpretations contained in precedents to the same demanding Chevron step one standard that applies if the court is reviewing the agency’s construction on a blank slate: Only a judicial precedent holding that the statute unambiguously forecloses the agency’s interpretation, and therefore contains no gap for the agency to fill, displaces a conflicting agency construction./95/

Applying Chevron deference, the Court went on to uphold the Federal Communications Commission’s interpretation./96/


5.1.C.5. Adjudication

The Administrative Procedure Act requires federal agencies to employ trial-like formal adjudication procedures set forth in 5 U.S.C.§§ 554–557 only when the “adjudication [is] required by statute to be determined on the record after opportunity for agency hearing.”/97/ In the relatively rare circumstances in which formal adjudications, or formal rule making, are required, agency finding of fact may be overturned only if unsupported by substantial evidence./98/ The traditional and very deferential formulation of substantial evidence is “such evidence as a reasonable mind might accept as adequate to support a conclusion.”/99/ In Allentown Mack Sales and Service v. National Labor Relations Board, however, the Supreme Court appeared to impose a significantly more rigorous and less deferential sort of review on findings from a National Labor Relations Board formal adjudication./100/ Such logic might be applied to other formal adjudications, such as social security appeals, although language in Allentown suggests that the Court’s approach in Allentown is confined to National Labor Relations Board hearings.

For informal adjudications and rule making, agency findings of fact are subject to an arbitrary and capricious standard of review./101/ The Supreme Court recently described that standard of review as “extremely narrow.”/102/ But the extent to which it is different, if at all, from the substantial evidence test is unclear./103/ The standard formulation is that the court upholds an agency’s findings, unless they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.”/104/ Under this standard, “the [agency] must be able to demonstrate that it has made a reasoned decision based upon substantial evidence in the record,”/105/ or “reasonable [and] based upon factors within the [agency’s] expertise.”/106/ Yet, even if this demonstration is offered with “less than ideal clarity,” the Court will uphold it “if the agency’s path may reasonably be discerned.”/107/ Rescissions of regulations and decisions not to initiate rulemakings/108/ are also subject to the arbitrary and capricious standard of review.

In addition, the Supreme Court recently held, in Federal Communications Commission v. Fox Television, that a more searching review is not required in case in which an agency reverses policy. According to the Court, the agency must supply the usual "reasoned explanation" for agency action and that explanation must "display awareness that it is changing position."/109/ However, the court explained: "it need not demonstrate to a court's satisfaction that the reasons for the new policy are better than the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better."/110/ The Court further held that arbitrary and capricious review is not applied more rigorously to agency actions that may implicate the Constitution."/111/ As a result of Fox Television, arguments premised on the need for more rigorous review of agency policy reversals or policies that have constitutional overtones will not be successful.


1. 5 U.S.C. § 702 (“A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial relief thereof.”). The Administrative Procedure Act (APA) and review under the Administrative Procedure Act apply only to federal agencies. See, e.g., Franklin v. Massachusetts, 505 U.S. 788, 801 (1992)  (President is not an agency under the Administrative Procedure Act); Regional Management Corporation v. Legal Services Corporation, 186 F.3d 457, 462 (4th Cir. 1999) (Legal Services Corporation is not an agency).

2. 5 U.S.C. § 702.

3. Id. For a recent case considering whether a particular federal statute bars a suit that would otherwise fall within the Administrative Procedure Act's general waiver of sovereign immunity, see Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2204-10 (2012).

4. For an excellent discussion of this issue, see Gary F. Smith, The Quid Pro Quo for Chevron Deference: Enforcing the Public Participation Requirements of the Administrative Procedure Act, 30 Clearinghouse Review 1132 (March-April 1997).

5. Abbott Laboratories v. Gardner, 387 U.S. 136 (1967). For the factors employed to determine whether a statute precludes judicial review, see Block v. Community Nutrition Institute, 467 U.S. 340, 349 (1984).

6. See  Jordan Hospital v. Shalala, 276 F.3d 72, 75 (1st Cir. 2002) (interpreting 42 U.S.C. § 1395ww(d)(10)(C)(iii)(II)); see also Briscoe v. Bell, 432 U.S. 404 (1977); National Coalition to Save Our Mall v. Norton, 269 F.3d 1092 (D.C. Cir. 2001) (finding statute bars judicial review), cert. denied, 537 U.S. 813 (2002).

7. See Sackett v. Environmental Protection Agency, 132 S. Ct. 1367, 1373-74 (2012) (Clean Water Act does not impliedly preclude review of compliance orders, distinguishing United States v. Fausto, 484 U.S. 439 (1988) and United States v. Erika, Incorporated, 456 U.S. 201 (1982)); Gutierrez de Martinez v. Lamagno, 515 US. 417 (1995); Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667 (1986); Adamo Wrecking Company v. United States, 434 U.S. 275 (1978). See also Mejia Rodriguez v. U.S. Department of Homeland Security, 562 F.3d 1137, 1142-45 (11th Cir. 2009) (decision that immigrant is not eligible for temporary protected status is reviewable); Alto Dairy v. Veneman, 336 F.3d 560 (7th Cir. 2003) (deciding not to infer from Congressional silence intent to preclude judicial review).

8. McNary v. Haitian Refugee Center, 498 U.S. 479 (1991); Webster v. Doe, 486 U.S. 592, 603 (1988); Johnson v. Robison, 415 U.S. 361, 366-67 (1974); Lepre v. Department of Labor, 275 F.3d 59 (D.C. Cir. 2001); cf. Dalton v. Specter, 511 U.S. 462 (1994) (ultra vires action is not alone unconstitutional). See also cases collected in Richard Pierce, Administrative Law Treatise § 17.9 at 1663 (5th ed. 2010).

9. Citizens to Preserve Overton Park Incorporated v. Volpe, 401 U.S. 402 (1971).

10. Id. at 410.

11. Webster v. Doe, 486 U.S. 592 (1988).

12. Id. at 600.

13Heckler v. Chaney, 470 U.S. 821 (1985).

14. Id. at 830. Agency rules subject to notice and comment rule making and having the force and effect of law are generally held to serve as “law to apply,” while policy statements and interpretative rules are not. See Pierce, supra note 8, 1011-12.

15. Chaney, 470 U.S. at 832-35. Compare Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007) (distinguishing between refusals to take enforcement action and refusals to initiate rulemakings). The Court also suggested that the presumption could be overcome if it were shown that the agency “has ‘consciously and expressly adopted a general policy’ that is so extreme as to amount to an abdication of its statutory responsibilities.” Id. at 833 n.4 (citation omitted). In Riverkeeper, Incorporated v. Collins, 359 F.3d 156 (2d Cir. 2004), the Second Circuit held the exception not to apply in a case challenging the Nuclear Regulatory Commission’s refusal to impose certain conditions on a license to operate two nuclear power plants.

16. Shalala v. Illinois Council on Long Term Care, 529 U.S. 1 (2000); Your Home Visiting Nurses Services v. Shalala, 525 U.S. 449 (1999); see also Lincoln v. Vigil, 508 U.S. 182, 192 (1993) (decision to reallocate funds from lump-sum appropriation is committed to agency discretion). An exception is Kucana v. Holder, 130 S. Ct. 827 (2010), which held that 8 U.S.C. § 1252(a)(2)(B)(iii) does not preclude judicial review of decisions to reopen removal proceedings that a regulation, rather than a statute, places within the Board of Immigration Appeals' (BIA) discretion.

17. See, e.g., Center for Policy Analysis on Trade and Health v. Office of the U.S. Trade Representative, 540 F.3d 940 (9th Cir. 2009) (Federal Advisory Committee Act's "fairly balanced" requirement is not reviewable); Tamenut v. Mukasey, 521 F.3d 1000 (8th Cir. 2008) (en banc) (Board of Immigration Appeal's decision not to reopen removal proceedings sua sponte is unreviewable); Port of Seattle v. Federal Energy Regulatory Commission, 499 F.3d 1016 (9th Cir. 2007) (Federal Energy Regulatory Commission's decision to deny refunds for energy transactions after adjudication that such refunds were warranted is reviewable), cert. denied, sub nom. Puget Sound Energy Incorporated v. California, 558 U.S. 1136 (2010); Ohio Public Interest Research Group v. Whitman, 386 F.3d 792 (6th Cir. 2004) (Environmental Protection Agency (EPA) decision not to issue notice of deficiency under Clean Air Act is not reviewable); Colorado Environmental Coalition v. Wenker, 353 F.3d 1221 (10th Cir. 2004) (finding Federal Advisory Committee Act challenges to advisory committees based on alleged violation of “inappropriate influence” provision non-reviewable but violation of “fair balance” requirement reviewable).

18. Citing neither Chaney nor Overton Park, the Supreme Court recently held that Title VII’s statutory requirement that the U.S. Equal Employment Opportunity Commission (EEOC) attempt conciliation prior to filing suit against an employer contains a judicially manageable standard for “relatively barebones” review. Mach Mining v. EEOC, 135 S. Ct. 1645, 1656 (2015). Such review can ordinarily be based on an affidavit supplied by the EEOC setting forth the notice and steps taken to comply with the statutory conciliation requirement.

19. Beno v. Shalala, 30 F.3d 1057 (9th Cir. 1994).

20. 42 U.S.C. § 1315(a).

21. Beno, 30 F.3d at 1067.

22. Id.

23. American Disabled for Attendant Programs Today v. U.S. Department of Housing and Urban Development, 170 F.3d 381 (3d Cir. 1999).

24. Id. at 386.

25. Pierce, supra note 8, § 15.1 at 1217-19; John Doe, Incorporated v. Drug Enforcement Agency, 484 F.3d 561, 567 (D.C. Cir. 2007).

26See U.S. Department of Commerce v. U.S. House of Representatives, 525 U.S. 316 (1999).

27. Bennett v. Spear, 520 U.S. 154 (1997).

28. Id. at 178 (citations omitted).

29. Fox Television Stations v. Federal Communications Commission, 280 F.3d 1027, 1038 (D.C. Cir. 2002), modified on reh’g by 293 F.3d 537 (D.C. Cir. 2002). See Potash Association of New Mexico v. U.S. Department of the Interior, 367 F. App'x 960 (10th Cir. 2010) (agency opinion remanding matter is not final agency action); Fairbanks North Star Borough v. U.S. Army Corps of Engineers, 543 F.3d 586, 594 (9th Cir. 2008).

30Reliable Automatic Sprinkler Company v. Consumer Products Safety Commission, 324 F.3d 726, 731 (D.C. Cir. 2003).

31. See Dalton v. Specter, 511 U.S. 462, 469-71 (1994); Franklin v. Massachusetts, 505 U.S. 788, 797-800 (1992). See National Association of Home Builders v. Norton, 415 F.3d 8, 16-17 (D.C. Cir. 2005) (no final agency action in issuing protocols which are recommended and non-coercive); Independent Equipment Dealers Association v. Environmental Protection Agency, 372 F.3d 420, 426-27 (D.C. Cir. 2004) (letter which imposed no new requirements is not agency action); Air Brake Systems, Incorporated v. Mineta, 357 F.3d 632 (6th Cir. 2004) (agency letters not entitled to Chevron deference which do not have effect of law do not satisfy this element).

32. Sackett v. Environmental Protection Agency, 132 S. Ct. 1367 (2012).

33Id. at 1372.

34. Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004).

35. Id. at 64.

36. Lujan v. National Wildlife Federation, 497 U.S. 871 (1990).

37. Examples of such statutes include the Social Security Act and 42 U.S.C. § 1997e(a), of the Prison Litigation Reform Act. See Porter v. Nussle, 534 U.S. 516 (2002); Booth v. Churner, 532 U.S. 731 (2001).

38McKart v. United States, 395 U.S. 185 (1969).

39. Id. at 194-95.

40See also McCarthy v. Madigan, 503 U.S. 140 (1992); Christopher S. v. Stanislaus County Office of Education, 384 F.3d 1205, 1212 (9th Cir. 2004).

41. See, e.g., United States v. Williams, 514 U.S. 527 (1995) (futility established); In Home Health, Incorporated v. Shalala, 272 F.3d 554 (8th Cir. 2001) (futility not established); Shawnee Trail Conservancy v. U.S. Department of Agriculture, 222 F.3d 383 (7th Cir. 2000) (futility requires certainty that agency action will be adverse). A form of futility may occur when agency administrative processes cannot provide the relief sought by the petitioner. Honig v. Doe, 484 U.S. 305, 327 (1988). This issue has, for example, divided the circuits in Individuals with Disabilities Education Act litigation seeking money damages. See Frazier v. Fairhaven School Committee, 276 F.3d 52 (1st Cir. 2002), and citations therein; M.Y. v. Special School District No. 1, 519 F. Supp. 2d 995, 1002 (D. Minn. 2007).  In addition, courts frequently hold that exhaustion is excused in class actions seeking systemic relief because such relief is not available before administrative judges. See, e.g., J.S. v. Attica Central School, 386 F.3d 107, 114-15 (2d Cir. 2004), cert. denied, 544 U.S. 968 (2005); W.B. v. Matula, 67 F.3d 484, 495-96 (3rd Cir. 1995); M.O. v. Indiana Department of Education, 2008 U.S. Dist. LEXIS 66632 (D. Ind. Aug. 29, 2008); D.L. v. District of Columbia, 450 F. Supp. 2d 11, 18-21 (D.D.C. 2006).

42. The extent to which 42 U.S.C. § 405(g) requires exhaustion of remedies and to which the agency can waive the requirement is the subject of several arguably inconsistent decisions by the Supreme Court, most recently Shalala v. Illinois Council on Long Term Care, 529 U.S. 1 (2000); see Weinberger v. Salfi, 422 U.S. 749 (1975); Mathews v. Diaz, 426 U.S. 67 (1976); Mathews v. Eldridge, 424 U.S. 319 (1976); Heckler v. Ringer, 466 U.S. 602 (1984); Michigan Academy of Family Physicians, 476 U.S. 667; Bowen v. City of New York, 476 U.S. 467 (1986). The issue is a significant one for legal aid attorneys because it governs when a challenge to rules and actions of the Social Security Administration and the U.S. Department of Health and Human Services may be filed.

43. Barry v. Barchi, 443 U.S. 55, 63 n.10 (1979).

44. See Chapter 3.4 of this Manual.

45. Darby v. Cisneros, 509 U.S. 137 (1993).

46. These issues are discussed further in Chapter 3.2 of this Manual.

47. Abbott Laboratories v. Gardner, 387 U.S. 136 (1967).

48. Id. at 149. See National Association of Home Builders v. U.S. Army Corp. of Engineers, 417 F.3d 1272, 1281-84 (D.C. Cir. 2005).

49. See National Park Hospitality Association v. U.S. Department of the Interior, 538 U.S. 803 (2003) (applying Abbott to find challenge to interpretive rule unripe for review); Lujan v. National Wildlife Federation , 497 U.S. 871, 891 (1990) (challenge to regulation is ripe when there has been some “concrete action applying the regulation to the claimant’s situation in a fashion that harms or threatens to harm him”).

50. Reno v. Catholic Social Services, 509 U.S. 43 (1993).

51. Id. at 57.

52. Id. at 59.

53. For two post-Reno v. Catholic Social Services cases finding ripe challenges to restrictions on government benefits prior to application, see Freedom to Travel Campaign v. Newcomb, 82 F.3d 1431 (9th Cir. 1996), and Riva v. Massachusetts, 61 F.3d 1003 (1st Cir. 1995).

54. Thunder Basin Coal Company v. Reich, 510 U.S. 200 (1994).

55 . Courts entertained constitutional challenges when the claim was collateral to the administrative review process, that process was not suitable for such claims, and preclusion of review would cause irreparable injury. See, e.g., Kreschollek v. Southern Stevedoring Company, 78 F.3d 868 (3d Cir. 1996).

56. Formal rulemaking is a procedure that resembles an adjudicatory hearing at which testimony is taken subject to cross-examination. 5 U.S.C. §§ 553(c)556-557. Formal rulemaking rarely takes place and never occurs in the context of poverty law issues. For a discussion of formal rulemaking, see Pierce, supra note 8, § 7.2.

57.  A fourth, negotiated rulemaking, is set forth in 5 U.S.C. §§ 561-583.

58. 5 U.S.C. § 553(b).

59. Courts do not have the authority to require agencies to follow procedures beyond those required under the APA, even when rulemaking requires resolution of contested issues of fact, absent extremely compelling and so far undefined circumstances. Vermont Yankee Nuclear Power Corporation v. Natural Resources Defense Council, Incorporated, 435 U.S. 519 (1978).

60. 5 U.S.C. § 553(b).

61. CSX Transportation v. Surface Transportation Board, 584 F.3d 1076 (D.C. Cir. 2009); National Mining Association v. Mine Safety and Health Administration, 116 F.3d 520 (D.C. Cir. 1997).

62. American Radio Relay League v. Federal Communications Commission, 524 F.3d 227, 236 (D.C. Cir. 2008).

63. Among these are exemptions for rules relating to “military or foreign affairs” and to matters relating to “agency management or personnel or to public property, loans, grants, benefits, or contracts.” 5 U.S.C. § 553(a). The good-cause exception is generally invoked when there is an urgent need to issue a rule, see, e.g., Jifry v. Federal Aviation Administration, 370 F.3d 1174 (D.C. Cir. 2004) (suspension of pilots' certificates in wake of 9/11); Hawaii Helicopter Operators Association v. Federal Aviation Administration, 51 F.3d 212 (9th Cir. 1995) (air safety rule), and when public notice of a proposed rule may result in economic or other harm. See, e.g., Reeves v. Simon, 507 F.2d 455, 458-59 (Temp. Emer. Ct. App. 1975) (finding good cause for regulation prohibiting preferential gasoline sales in light of nationwide shortage).

645 U.S.C. § 553.

65. American Mining Congress v. Mine Safety and Health Administration, 995 F.2d 1106 (D.C. Cir. 1993). 

66. Hemp Industries Association v. Drug Enforcement Administration, 333 F.3d 1082, 1087 (9th Cir. 2003); Warder v. Shalala, 149 F.3d 73, 80 (1st Cir. 1998); Mission Group Kansas v. Riley, 146 F.3d 775 (10th Cir. 1998); Appalachian States Low-Level Radioactive Waste Commission v. O’Leary, 93 F.3d 103, 113 (3d Cir. 1996); Hoctor v. U.S. Department of Agriculture, 82 F.3d 165, 170 (7th Cir. 1996); Chen Zhou Chai v. Carroll, 48 F.3d 1331 (4th Cir. 1995); New York City Employees’ Retirement System v. Securities Exchange Commission, 45 F.3d 7, 13 (2d Cir. 1995). See Richard J. Pierce, Jr., Distinguishing Legislative Rules from Interpretive Rules, 52 Administrative Law Review 547 (2000).

67. American Mining Congress, 995 F.2d at 1112. The third criterion was abandoned in Health Insurance Association of America v. Shalala, 23 F.3d 412 (D.C. Cir. 1994).

68. Shalala v. Guernsey Memorial Hospital, 514 U.S. 87, 99 (1995).

69. See Mission Group Kansas, 146 F.3d at 775; United States v. Picciotto, 875 F.2d 345 (D.C. Cir. 1989). The Supreme Court narrowly upheld interpretive rules in two such challenges. See  Guernsey Memorial Hospital, 514 U.S. 87; Thomas Jefferson University v. Shalala, 512 U.S. 504 (1994).

70. Paralyzed Veterans of America v. D.C. Arena, 117 F.3d 579 (D.C. Cir. 1997), cert. denied, 523 U.S. 1003 (1998).

71. Id. at 586; Alaska Professional Hunters Association v. Federal Aviation Administration, 177 F.3d 1030, 1034 (D.C. Cir. 1999). The court observed in Paralyzed Veterans that the distinction between substantive and interpretive rules turns on how “distinctive” or “additive” the rule is to the statute. That is, if the interpretation defines vague statutory terms, like “fair,” it is more likely to be substantive. Paralyzed Veterans, 117 F.3d at 588.

72. Perez v. Mortgage Bankers Association, 135 S. Ct. 1199 (2015).

73. Croplife America v. Environmental Protection Agency, 329 F.3d 876, 883 (D.C. Cir. 2003).

74. National Mining Association v. Secretary of Labor, 589 F.3d 1368, 1371 (11th Cir. 2009); Appalachian Power Co. v. EPA, 208 F.3d 1015, 1021 (D.C. Cir. 2000). Compare Independent Equipment Dealers Association v. Environmental Protection Agency, 372 F.3d 420 (D.C. Cir. 2004) and General Motors Corporation v. Environmental Protection Agency, 363 F.3d 442, 450-51 (D.C. Cir. 2004) (letters which restated interpretation and imposed no new regulatory requirements were not reviewable) with Croplife, 329 F.3d at 883 (directive contained in press release stating, in departure with prior policy, that agency would not consider certain studies in its decision-making, was reviewable rule).

75. See Pacific Gas and Electric v. Federal Power Commission, 506 F.2d 33, 38-39 (D.C. Cir. 1974).

76. Center for Auto Safety v. National Highway Traffic Safety Administration, 452 F.3d 798, 806 (D.C. Cir. 2006); Professional and Patients for Customized Care v. Shalala, 56 F.3d 592, 600-601 (5th Cir. 1995); Rapp v. Office of Thrift Supervision, 52 F.3d 1510 (10th Cir. 1995).

77. Chevron U.S.A. Incorporated v. Natural Resources Defense Council, Incorporated, 467 U.S. 837, 842-43 (1984). Chevron deference is not owed to agencies without rulemaking power. Atchison, Topeka and Santa Fe Railway Company v. Peña, 44 F.3d 437, 441 (7th Cir. 1994) (en banc).

78. Pierce, supra note 8, § 3.6 at 215.

79. Cases rejecting an agency interpretation on step 1 grounds are Carcieri v. Salazar, 555 U.S. 379, 129 (2009); Barnhart v. Sigmon Coal Company, 534 U.S. 438 (2002). See also Immigration and Naturalization Service v. Cardoza-Fonseca, 480 U.S. 421 (1987); cf. Environmental Defense v. Duke Energy Corporation, 549 U.S. 561, 574 (2007) (rebuttable presumption that same term in two different sections of same statute must be interpreted same). Recent cases upholding agency interpretations of unambiguous statues are Zuni Public School District No. 89 v. Department of Education, 550 U.S. 81 (2007); National Cable Telecommunications Association v. Gulf Power Company, 534 U.S. 327 (2002); and U.S. Department of Housing and Urban Development v. Rucker, 535 U.S. 125 (2002).

80. See, e.g., Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191, 2203 (2014) (deference to BIA interpretation of immigration statutes is particularly appropriate); EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584, 1609 (2014) (possibility that uncommon applications of rule could exceed agency authority does not justify invalidating otherwise reasonable rule in its entirety); Mayo Foundation for Medical Education and Research v. United States, 131 S.Ct 704, 714-15 (2011); Entergy Corporation v. Riverkeeper, 556 U.S. 208, 129 (2009); United States v. Eurodif, 555 U.S. 305 (2009) (upholding agency's new interpretation of ambiguous statue when courts upheld agency's prior interpretation as reasonable); Global Crossing Telecommunications v. Metrophones Telecommunications, 550 U.S. 45 (2007); Household Credit Services v. Pfennig, 541 U.S. 232 (2004); Barnhart v. Walton, 535 US. 212 (2002); Securities Exchange Commission v. Zandford, 535 U.S. 813 (2002); Verizon Communications, Incorporated v. Federal Communications Commission, 535 U.S. 467 (2002); Chevron U.S.A.,  Incorporated v. Echazabal, 536 U.S. 73 (2002); see also National Association of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007) (deferring to reasonable agency regulation when agency was unable to comply with two conflicting statutory commands simultaneously). Similarly, when the statutory language leaves a "gap" for the agency to fill and it does so both reasonably and in compliance with procedural requirements, the result is binding. Long Island Care at Home v. Coke, 551 U.S. 158, 164 (2007).

81. Motor Vehicles Manufacturers Association v. State Farm Mutual Automobile Insurance Company, 463 U.S. 29 (1983); see Michigan v. Environmental Protection Agency, 135 S. Ct. 2699 (2015) (holding that EPA's interpretation of "appropriate and necessary" in Clean Water Act to exclude considerations of cost imposed by regulating power plant was unreasonable); Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427, 2442-44 (2014); Negusie v. Holder, 555 U.S. 511, 129 (2009); Cuomo v. The Clearing House Association, 557 U.S. 519, 129 (2009); Ragsdale v. Wolverine World Wide, Incorporated, 535 U.S. 81 (2002); Animal Legal Defense Fund v. Glickman, 204 F.3d 229, 234 (D.C. Cir. 2000); cf. Strickland v. Commissioner, 48 F.3d 12 (1st Cir. 1995) (upholding secretary of agriculture’s decision to exclude depreciation from cost of producing self-employment income because it is not unreasonable interpretation of Food Stamp Act).

82. Pierce, supra note 8, § 3.6 at 219. The Court in United States v. Mead Corporation, 533 U.S. 218 (2001) explained that the carefulness of the agency’s consideration of the interpretive question; its consistency, formality, and persuasiveness; and the expertise of the agency are factors in determining the measure of deference owed to an agency interpretation. Id. at 228. The duration of an agency's interpretation, reflecting the carefulness of its consideration, is also a factor. Kasten v. Saint-Gobain Performance Plastics Corporation, 131 S. Ct. 1325, 1335 (2011).

83. See Christensen v. Harris County, 529 U.S. 576 (2000); Auciello Iron Works v. National Labor Relations Board, 517 U.S. 781 (1996). The Court has recently held that Chevron applies to the interpretation of tax regulations. Mayo Foundation, 131 S.Ct at 714.  Generally agency positions adopted for purposes of litigation are not accorded deference. Bowen v. Georgetown University Hospital, 488 U.S. 204, 212 (1988); Natural Resources Defense Council, Incorporated v. Abraham, 355 F.3d 179, 201 (2d Cir. 2004).

84. City of Arlington v. FCC, 133 S. Ct. 1863 (2013).

85. See Federal Express Corporation v. Holowecki, 552 U.S. 389, 399 (2008) (compliance manuals and internal directives); Kentucky Retirement Systems v. Equal Employment Opportunity Commission, 554 U.S. 135, 128 (2008) (same); Alaska Department of Environmental Conservation v. Environmental Protection Agency, 540 U.S. 461, 487-88 (2004) (internal guidance memos do not qualify for Chevron deference); Christensen, 529 U.S. at 587.

86. Skidmore v. Swift and Company , 323 U.S. 134 (1944).

87.  Mead Corporation, 533 U.S. at 231-32 (2001).

88. Id.

89. Id. at 226-27. For a recent example of a case in which the Executive Branch office, here, the Attorney General, lacked the authority to issue an interpretive rule, which therefore was not entitled to Chevron deference, see Gonzales v. Oregon, 546 U.S. 243 (2006) (rejecting interpretive rule stating that Oregon Death With Dignity Act, which permitted use of controlled substances for physician-assisted suicides, was not legitimate medical purpose under Controlled Substances Act).

90. The Supreme Court’s opinion in Mead offers some insight into the nature of the relevant analysis. The Court examined the statute authorizing the tariff rulings (and noted that they were subject to judicial review in the Court of International Trade) and agency practice (rulings were not binding on third parties, generally lacked reasoning, and were issued in vast numbers and by many offices). In contrast, the Court in Walton , 535 U.S. at 222, suggested that agency interpretations of its governing statuteinterpretations which are not the product of formal adjudication or notice and comment rulemakingmay be subject to Chevron deference, depending on the “interpretive method and nature of the question at issue.” Where, as in Walton, the agency has expertise, the issue is interstitial and important to the administration of the program, the program is complex, and the agency studied the issue carefully and consistently, Chevron deference is owed. Mead and Walton cast doubt on the lower deference previously accorded to social security rulings. See Bunnell v. Sullivan, 947 F.2d 341, 346 n.3 (9th Cir. 1991) (en banc). At the same time, Mead has caused considerable confusion. See Adrian Vermuele, Mead in the Trenches, 71 George Washington Law Review 347 (2003).

91. See, e.g., The Wilderness Society v. U.S. Fish and Wildlife Service, 353 F.3d 1051, 1067-69 (9th Cir. 2003) (en banc).

92. Smith, supra note 4, at 1151 & n.191, citing Cerventez v. Sullivan, No. CIVS-89-529 LKK, slip op. at 19 (E.D. Cal. Apr. 26, 1993); cf. Nebraska v. Department of Health and Human Services, 340 F. Supp. 2d 1 (D.D.C. 2004).

93. National Cable and Telecommunications Association v. Brand X Internet Services, 545 U.S. 967 (2005).

94. Id. at 981-82. See Mayo Foundation, 131 S. Ct. at 713.

95. Id. at 982-83 (citations omitted).

96. Administrative rules or interpretations of an agency’s ambiguous regulation are entitled to deference. Auer v. Robbins, 519 U.S. 452, 461-63 (1997). However, such deference is not due if the regulation interpreted merely parrots the governing statute. Gonzales , 546 U.S. at 256-57. In a recent Supreme Court decision on Auer deference, the Court upheld an agency's interpretation of an ambiguous banking regulation because it was not a post hoc rationalization, plainly erroneous, or inconsistent with the language of the regulation. Chase Bank USA v. McCoy, 131 S. Ct. 871, 881 (2011). See also Talk America Incorporated v. Michigan Bell Telephone Company, 131 S.Ct. 2254 (2011) (deferring to FCC's novel interpretation of regulation expressed in amicus brief). In 2013, several members of the Court indicated that, when presented with the proper case, they were poised to reconsider Auer deference and perhaps terminate the concept. See Decker v. Northwest Environmental Defense Center, 133 S.Ct. 1326, 1339 (2013) (Roberts, C.J., concurring); id. at 1340-42 (Scalia, J., concurring in part and dissenting in part).

97. 5 U.S.C. § 554(a).

98. Id. § 706(2)(E).

99. Interstate Commerce Commission v. Louisville and Nashville Railroad Company , 227 U.S. 88, 91 (1913).

100. Allentown Mack Sales and Service, Incorporated v. National Labor Relations Board, 522 U.S. 359 (1998).

101. 5 U.S.C. § 706(2)(A).

102. U.S. Postal Service v. Gregory, 534 U.S. 1, 7 (2001).

103. Bangor Hydro-Electric Company v. Federal Energy Regulatory Commission, 78 F.3d 659, 663 n.3 (D.C. Cir. 1996); Aman v. Federal Aviation Administration, 856 F.2d 946, 950 n.3 (7th Cir. 1983).

104. 5 U.S.C. § 706(2)(A).

105. Northern States Power Company v. Federal Energy Regulatory Commission, 30 F.3d 177, 180 (D.C. Cir. 1994).

106. AT&T Corporation v. Federal Communications Commission, 394 F.3d 933, 936 (D.C. Cir. 2005) (Roberts, J.).

107 Alaska Department of Environmental Conservation v. Environmental Protection Agency, 540 U.S. 461, 497 (2004) (citations omitted). See also National Association of Home Builders , 551 U.S. 644 (decision by higher office within agency to change decision of lower level decisionmaker is not, in and of itself, arbitrary and capricious).

108. Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007) (Environmental Protection Agency's decision not to initiate rulemaking to address greenhouse gas emissions from new cars was arbitrary and capricious).

109. Federal Communications Commission v. Fox Television, 556 U.S. 552, 129 (2009). 

110. Id. 

111. Id.

Updated 2013 by Gill Deford, 2105 by Jeffrey S. Gutman

5.2 Implied Causes of Action

Updated 2013 by Rochelle Bobroff

The concept of a cause of action originated in the common law's forms of proceedings and was not based upon the federal Constitution or statutes. In 1938, the Federal Rules of Civil Procedure were adopted and the forms of proceeding were abolished. The term "cause of action" was intentionally not utilized. Instead, the rules substituted the concept of a "claim." This change was sought, in part, due to the perception that the forms of proceedings were inadequate to provide remedies for violations of substantive rights./1/ Nevertheless, courts continue to require plaintiffs to demonstrate that they are entitled to sue to enforce a specific duty owed by the defendant./2/ Thus, "the plaintiff must demonstrate both that the defendant's conduct was wrongful (inconsistent with a duty resting on the defendant) and that the plaintiff is within the category of persons entitled to judicial relief because of the wrongful conduct.”/3/

In the 1960s and early 1970s, the Supreme Court was receptive to implying a cause of action in the federal Constitution as well as federal statutes that lacked a private right of action./4/ While these decisions have not been formally overruled, the Court is now highly reluctant to imply a cause of action for damages in the Constitution. Recently, in a case involving a constitutional claim for damages, the Court stated that "implied causes of action are disfavored."/5/ The Court has similarly imposed a nearly impossible standard for implying a cause of action in a federal statute, requiring a plaintiff to supply evidence of congressional intent to confer a right of action from the text and structure of a statute that does not expressly specify access to enforcement in the federal courts./6/ However, if your client's claim is covered by one of the earlier Supreme Court cases holding that a statute contains an implied cause of action, the statute remains enforceable under the previously recognized implied cause of action. The Court is, however, much more willing to permit claims for injunctive and declaratory relief to determine whether state law conflicts with federal law under the Supremacy Clause of the Constitution./7/ 

5.2.A. Implied Constitutional Causes of Action for Damages

In 1971, in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Supreme Court created a federal cause of action against federal officers for damages due to a violation of the Fourth Amendment’s prohibition on unreasonable searches and seizures./8/ This cause of action is not based on an express or implied statutory authorization to sue, but rather is grounded in the Constitution. Such an action is often referred to as a “Bivens action,” a “cause of action arising directly under the Constitution,” or a “constitutional tort.” This section discusses the circumstances in which a Bivens action may be brought.

Bivens actions are not needed when a statute authorizes the relief sought. For example, Bivens actions are not necessary to sue for claims under the Tucker Act and the Federal Tort Claims Act, because those statutes authorize damages./9/ In contrast, the Administrative Procedure Act does not authorize damages against persons acting under color of federal law, and therefore, Bivens actions are necessary to support a damage claim against individual federal actors for constitutional violations.

Although the Court has not overruled Bivens, recently the Court has disparaged Bivens and refused to extend it. In Correctional Services Corporation v. Malesko, the Court expressly limited Bivens actions to the narrow range of claims previously recognized, those arising under the Fourth, Fifth, and Eighth Amendments to the U.S. Constitution./10/

5.2.A.1. Constitutional Torts

A Bivens action is a suit for damages against a federal actor who, acting in his or her individual capacity under color of federal law, is alleged to have violated the plaintiff’s constitutional rights. The claim is a judicially created mechanism to afford redress to plaintiffs who lack a statutory cause of action or an adequate statutory remedy, or both./11/ The action may be removed to federal court at the discretion of the defendant and administrative remedies need not be exhausted before the claim is brought./12/ Generally, the basic elements of a Bivens action are the following:

  1. the plaintiff has a constitutionally protected right under the Fourth, Fifth, or Eighth Amendments;
  2. the defendant, a federal official, violated that right;
  3. the plaintiff lacks a statutory cause of action, or an available statutory cause of action does not provide monetary compensation against the defendant;
  4. no “special factors” suggest that the court should decline to provide the judicial cause of action and remedy, and
  5. no appropriate immunity can be raised by the defendant./13/

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./14/ 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./15/

The Court extended the implied cause of action principle to Fifth Amendment claims in Davis v. Passman./16/ The female plaintiff alleged that then-Congressman Passman violated her Fifth Amendment right to equal protection by replacing her with a man./17/ Because Congress had excluded congressional employees from the reach of Title VII, the Court held that Davis had no other viable remedy, that a damage remedy was judicially manageable, and that Davis could, therefore, sue directly under the Fifth Amendment./18/

In both Bivens and Davis, the plaintiffs had no other available remedy; it was, therefore, a question of “damages or nothing.”/19/ In each case, this factor weighed heavily in the Court’s decision to imply a cause of action. However, the Court subsequently created a Bivens action in a case in which the plaintiff clearly had a statutory cause of action and limited remedy under the Federal Tort Claims Act. In Carlson v. Green, the Court allowed a Bivens action under the Eighth Amendment by an asthmatic prisoner who died against individual federal prison officials who allegedly failed to give him needed medical attention./20/ The Court decided that a Bivens action was available because Congress had explicitly stated its intent to allow both the Federal Tort Claims Act and Bivens actions to coexist as complements./21/ Carlson marks the high-water mark for the Bivens cause of action; the Supreme Court has declined further invitations to extend Bivens.

5.2.A.2. The Limitations on Bivens

Although Bivens, Davis, and Carlson initially seemed to suggest that Bivens actions for constitutional violations would be broadly available to fill gaps in federal damage remedies, the Court subsequently refused to extend Bivens actions beyond the scope of those earlier cases. Presently, when Congress provides a statutory cause of action without expressly indicating its intent to allow Bivens actions as well (as was the case in the legislative history examined 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./22/ 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./23/ 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./24/ Because Congress did not provide for individual liability within the existing “elaborate” and “comprehensive” remedial civil service scheme, or elsewhere, 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./25/

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, a case seeking damages from superior military officers for violating a constitutional right to be free from racial discrimination./26/ 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” weighing against an implied right of action./27/ In United States v. Stanley, this unwillingness to create a Bivens action based on “special factors” was broadened to include any claims that “arise out of or are in the course of activity incident to service.”/28/

In 1988, the Court confirmed that it would not create a Bivens remedy when Congress provided other meaningful remedies unless Congress explicitly preserved a Bivens remedy. In Schweiker v. Chilicky, the Court refused to imply a cause of action under the Due Process Clause of the Fifth Amendment in favor of social security disability recipients whose benefits had been terminated in a continuing disability review./29/ The plaintiffs sued federal and state officials responsible for the review. The plaintiffs alleged that the officials terminated the recipients in clear violation of the procedural requirements of the Fifth Amendment, a determination of impropriety that Congress apparently agreed with in its enactment of legislation to stop the terminations./30/ However, in language that reinforced the presumption against Bivens actions unless Congress clearly provides for them, 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./31/

As one district 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.”/32/

In 2001, the Supreme Court decided Correctional Services Corporation v. Malesko, which, again, demonstrated the Court’s refusal to extend Bivens and, indeed, a potential willingness to confine it./33/ In Malesko, the Court used strong language to reject a Bivens suit by a federal inmate against a private corporation that operated a 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 Company v. Borak,/34/ a case it had since “abandoned.”/35/ 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.”/36/

This language could be considered dicta because Malesko went on to emphasize that the defendant was a private corporation, for which Bivens actions were inapplicable. The Court compared the Malesko case to Federal Deposit Insurance Corporation v. Meyer, where it had refused to extend Bivens to permit suits against a federal agency whose sovereign immunity Congress had waived./37/ In Meyer, the Court reasoned that a damages suit against a federal entity would not advance the core purpose of the Bivens remedy, which was to deter individual federal officers from committing constitutional violations./38/ Similarly, the Malesko Court held that a Bivens action against a private entity would also lack deterrent effect for individual violations of the Constitution. Moreover, federal prisoners housed in private facilities enjoyed possible alternative remedies (such as state 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.”/39/

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 signaled a refusal to extend Bivens to new constitutional claims. Indeed, the Court recently reaffirmed Malesko in a case seeking to imply and Eighth Amendment Bivens claim against a private correctional facility in Minneci v. Pollard./40/ In Minneci, the Court found that the state tort law supplied a remedy for a prisoner alleging inadequate medical care and treatment and rejected the argument that the Court should look only to federal law, rather than the "vagaries" of state law to determine whether an adequate alternative remedy exists./41/

In the 2009 case of Ashcroft v. Iqbal, the Court again expressed open hostility to extending Bivens. The case held that the allegations pled in the complaint were insufficient to support a claim of religious discrimination under the First Amendment. While Bivens was not central to the Court’s holding or reasoning, the Court downplayed Bivens, stating: “[b]ecause implied causes of action are disfavored, the Court has been reluctant to extend Bivens liability ‘to any new context or new category of defendants.’”/42/

Indeed, relying on the “special factor” language in Chilicky, courts no longer afford plaintiffs a Bivens remedy for violations of the Fourth, Fifth, and Eighth Amendments, even in the absence of an adequate statutory remedy, if such absence is deemed to reflect a Congressional intent to preclude Bivens actions./43/ The Court itself has signaled the constriction of Bivens actions under these amendments unless the case closely resembles Bivens, Davis, or Carlson./44/ In one of its most recent Bivens cases, the Court held in Wilkie v. Robbins that allegations by a ranch owner of organized efforts by federal officers to coerce an easement across his property did not constitute Fourth and Fifth Amendment violations for the purposes of a Bivens action./45/ For the Wilkie Court, the existence of “alternative, existing process[es]” for protecting the infringed-upon interests of the ranch owner, counseled against inferring constitutional causes of action under either amendment./46/ Furthermore, the Court held that “special factors” weighed against authorizing a Bivens action, specifically the complexity of the allegations./47/ As a result, a Bivens claim in this case was not a “workable cause of action.”/48/

In essence, Bivens, Davis, and Carlson have been limited to their facts, and are unlikely to be extended, at least for the foreseeable future./49/ While those cases remain good law, their applicability has been severely restricted. For fact patterns closely resembling those cases, therefore, courts may imply a cause of action under the Fourth Amendment right to be free from unreasonable searches and seizures, the Fifth Amendment Due Process Clause’s equal protection component, and the Eighth Amendment right to be free from cruel and unusual punishment./50/

The Court has also clearly assumed, without so holding, the viability of Bivens claims under the First Amendment./51/ The Court applied this assumption in Hartman v. Moore, where it held that a Bivens plaintiff who claimed 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./52/ More recently, the Court repeated this assumption in Ashcroft v. Iqbal, stating that it was “assum[ing], without deciding, that [a] First Amendment claim is actionable under Bivens.”/53/ Thus, it remains possible to seek relief under Bivens for violations of the First Amendment as well./54/

5.2.B. Implied Private Statutory Causes of Action

As discussed earlier in this Chapter, many federal statutes expressly provide a right for injured individuals to sue to enforce the law. 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 Administrative Procedure Act or 42 U.S.C. § 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, beginning in the mid-1970s, the Supreme Court sharply constricted the availability of implied private rights of action for federal statutes and further restricted the enforceability of federal regulations in the 2001 case of Alexander v. Sandoval./55/

5.2.B.1. Limitation of an Implied Private Right of Action to Enforce Federal Statutes

In the late 1960s, the Supreme Court held that private individuals could enforce federal anti-discrimination statutes to remedy explicit racial discrimination, based on an implied statutory cause of action./56/ These decisions focused on the need to provide a remedy to correct racial injustice when a federal statute establishes the right to be free from racial discrimination.

In 1975, in Cort v. Ash, the Court, however, unanimously limited the use of implied statutory causes of action./57/ In an opinion by Justice Brennan, the Court set forth a four-prong test for finding an implied cause of action. The test asks whether 1) the plaintiff is in the class for whose especial benefit the statute was enacted; 2) there is any indication of legislative intent, explicit or implicit, either to deny or to create a private right to enforce; 3) a private right to enforce would be consistent with the underlying purpose of the statute; and 4) the cause of action is traditionally in the purview of state law, such that a federal right to enforce would be inappropriate./58/ The holding of the case was that there was no implied cause of action in the Federal Election Campaign Act for stockholders to obtain damages from corporate directors, because none of the four factors were met.

In Cannon v. University of Chicago, decided in 1979, the plaintiff alleged that she was denied admission to medical school based on her gender, in violation of Title IX of the Education Amendments of 1972. The Court found that Title IX met all four of the Cort v. Ash prongs./59/ With regard to legislative intent, the Court reasoned that in drafting Title IX, Congress relied upon the Court's cases from the late 1960s which had implied a cause of action in statutes designed to remedy racial discrimination, such as the Voting Rights Act. Title IX was also modeled on Title VI of the Civil Rights Act of 1964, which prohibits racial discrimination by recipients of federal funds, and had been found enforceable under an implied private right of action by numerous courts of appeals./60/ Therefore, the Court concluded that Congress had intended Title IX to be privately enforceable. The Court also stated that it was "decidedly receptive" to an implied cause of action that was helpful to the statutory purpose./61/ However, the Court cautioned Congress against future reliance on the implied cause of action cases from the 1960s. Justice Stevens, writing the majority opinion, stated, "When Congress intends private litigants to have a cause of action to support their statutory rights, the far better course is for it to specify as much when it creates those rights."/62/

The availability of an implied private right of action was sharply narrowed in two cases decided just a few months later.  Without rejecting the four-part test, the Court interpreted the test as being most heavily focused on the second prong: evidence of congressional intent to create a private right./63/ The Court looked for specific statutory language establishing a right to sue and to obtain damages./64/ Since the statutes examined did not contain an express private right of action, there was no such language, leading the Court to conclude that the statutes did not contain an implied right of action. While citing Cannon with favor, the Court explicitly rejected the emphasis in Cannon and other prior cases on implying a private right in order to effectuate the purpose of the statute./65/

In 1982, Justice Stevens authored an opinion finding an implied statutory right of action to enforce the Commodity Exchange Act./66/ Stevens asserted that in earlier times, the common law supplied a remedy for an individual injured by the breach of a duty. Yet, he explained, the Court unanimously modified its approach in Cort v. Ash, due to the "increased complexity of federal legislation and the increased volume of federal litigation." Presently, the Court requires "more careful scrutiny of legislative intent" to imply a private right of action./67/ Because the Commodity Exchange Act was amended in 1974, before the change in the Court's approach in the 1975 Cort v. Ash case, the majority found that "Congress intended to preserve the preexisting remedy" of an implied right of action. The Court concluded that the provision of new remedies in 1974 was "intended to supplement rather than supplant the implied judicial remedy."/68/ The Court specifically rejected the argument that the implication of a right of action violates separation of powers, noting that judicial implication of a right turns on congressional intent./69/

A year later, the Court was asked to decide upon the standard of proof needed to prevail in a Title VI case, specifically whether proof of discriminatory intent was required to obtain compensatory relief./70/ The Court splintered, producing six separate opinions.  Nevertheless, seven Justices accepted that, under the reasoning of Cannon, there was an implied private right of action to enforce Title VI./71/ 

The Court has never overruled Cannon or cases based on it. As a result, claims under Title VI and Title IX remain enforceable under an implied private right of action. The Rehabilitation Act adopts the remedies of Title VI, and thereby also utilizes an implied private right of action./72/ 

Nevertheless, for statutes enacted after Congress was notified that the Court expected it to "specify" a cause of action, the Court has refused to permit enforcement of rights through an implied statutory cause of action./73/ Lower court cases finding an implied private right of action in such statutes are therefore extremely vulnerable to challenge.  For instance, the Fifth Circuit held in 1981 that language in the Housing and Community Development Act similar to the language of Title IX is enforceable under a private right of action./74/ That holding was explicitly rejected by several other courts, including the First Circuit./75/

Thus, by 2000, numerous cases held there was no implied private right of action to enforce federal statutes, other than Title IX, Title VI, and the Rehabilitation Act, for which an exception had been carved out by the Supreme Court. Even before Alexander v. Sandoval greatly limited private enforcement of regulations, scholars proclaimed that obtaining relief for violations of rights in federal statutes under an implied private right of action was "foreclosed."/76/

5.2.B.2. The Conflation of the Implied Private Right of Action with the Express Right of Action in Section 1983

In Wright v. City of Roanoke Redevelopment and Housing Authority,/77/ Justice O'Connor wrote a dissent on behalf of four Justices which introduced the idea that the Cort v. Ash test for an implied right of action should be utilized in determining whether a plaintiff may access the express right of action in 42 U.S.C. § 1983. She suggested that each specific provision of the statute, not the statute as a whole, be carefully scrutinized to "determine congressional intent to create enforceable rights."/78/ This analysis imports into the § 1983 analysis the second prong of the Cort v. Ash testa search for legislative intent to create a private right of action in a statute devoid of any express right to sue in federal court.

To the contrary, Justice Brennan subsequently argued in another 5-to-4 decision regarding § 1983 that an implied private right of action is completely different from the utilization of the express right of action in § 1983./79/ Rather, he asserted that the Section 1983 remedy is available unless there is clear evidence of legislative intent to take away this express right of action. However, after Justice Brennan left the Court, Justice O'Connor's vision became law. In Gonzaga University v. Doe, the Court held that evidence of congressional intent to create enforceable rights is a prerequisite to utilization of § 1983./80/ Gonzaga explicitly blurs the distinction between an implied right of action and the express right of action in § 1983./81/

5.2.B.3. Sandoval Limits Enforceability of Federal Regulations

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./82/ The plaintiff was a Mexican immigrant who 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. Section 601 of Title VI forbids discrimination based on race or national origin in any program or activity receiving federal funds. Section 602 of the statute authorizes the federal government to promulgate regulations to implement Section 601. 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 [Section] 601” of Title VI utilizing an implied private right of action./83/ However, the Court interpreted Section 601 as applying only to intentional discrimination.  The Court limited Cannon to its facts, in which intentional discrimination was alleged to violate Section 601. The "disparate impact" regulations were found to be beyond the scope of Section 601's prohibition on intentional discrimination, and therefore not enforceable under Section 601. The Court stated, “[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.”/84/

The Court further rejected the plaintiffs' claim that Section 602, which authorizes regulations to implement Section 601, was enforceable utilizing an implied private right of action./85/ 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./86/ Sandoval suggests that congressional intent to create private remedies is the determinative issue; that is, does the statute “display[] an intent to create not just a private right but also a private remedy?”/87/ Congressional intent is to be determined almost exclusively based on the text and structure of the statute. The Court expressed disdain for inferring remedies necessary to effectuate congressional purpose./88/ The Court made clear that the statute's text and structure must evince a “congressional intent to create new rights.”/89/

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./90/ The Court held that Sandoval was irrelevant because such retaliation is prohibited by the statute’s text./91/

Courts of appeal interpreting Sandoval, in conjunction with Gonzaga, have reversed their prior caselaw and have held that "regulations alone cannot create rights enforceable through either an implied right of action or [Section] 1983.”/92/  Nevertheless, if a right is conferred through the statute, then the regulations are relevant to the scope of the right conferred by Congress./93/

Even for statutes with a private right of action, however, Sandoval places limits on the enforceability of accompanying regulations.  Refusing to enforce a regulation under the Americans with Disabilities Act, the Ninth Circuit stated that pursuant to Sandoval: "those regulations effectuating the statute's clear prohibitions or requirements are enforceable through the statute's private right of action; regulations that do not encapsulate the statutory right and corresponding remedy are not privately enforceable."/94/  Therefore, only regulations within the clear mandate of a statute with an express right of action remain enforceable and are not impacted by Sandoval./95/

5.2.C. The Preemption Claim

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, such as state consumer protection statutes./96/ 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 attorney's fees./97/ 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./98/

5.2.C.1. Types of Preemption

The preemption doctrine arises from the Supremacy Clause of the Constitution./99/ If the provisions of a state law are “inconsistent with an act of Congress, they are void, so far as that inconsistency extends.”/100/ Although preemption is most often used defensively, the Supreme Court has long entertained offensive preemption claims./101/

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)./102/ 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, such as 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.”/103/ 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./104/

5.2.C.2. Jurisdiction and the Cause of Action

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.”/105/  The applicable cause of action to bring preemption claims is implied in the Supremacy Clause, just as causes of action are implied to enforce other constitutional provisions./106/

The courts of appeals have uniformly held that when proceeding under the Supremacy Clause to enforce a safety net statute, plaintiffs need not meet the requirements for a cause of action set forth in Gonzaga./107/  Indeed, for a preemption claim, there is no need for a statutory cause of action./108/ A claim that a federal law has preemptive force under the Supremacy Clause is distinct from a statutory claim to enforce the federal law, and therefore, the absence of a cause of action in the statute does not defeat the preemption claim./109/

Some courts of appeals have explicitly stated that there is an implied cause of action in the Supremacy Clause for a preemption claim./110/ Other courts of appeals have simply reached the merits of preemption claims, finding that there is federal question jurisdiction under 28 U.S.C. § 1331 without identifying the cause of action./111/

The Supreme Court has repeatedly upheld federal question jurisdiction over preemption claims without identifying the cause of action for such claims./112/ Indeed, the Court has rejected the suggestion that jurisdiction over a preemption claim is defeated if the statute does not contain an express private right of action.  In Shaw v. Delta Air Lines, the Court stated in a footnote:

It is beyond dispute that federal courts have jurisdiction over suits to enjoin state officials from interfering with federal rights.  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./113/

After finding jurisdiction in Shaw, the Court proceeded to rule on the merits.

In Verizon Maryland Incorporated v. Public Service Commission, a preemption case, the defendant argued that the plaintiffs did not have a cause of action under the Telecommunications Act and therefore there was no federal jurisdiction over the complaint. The Supreme Court unanimously reached the merits of the preemption claim, “express[ing] no opinion” whether there was a private cause of action to enforce the law./114/  Quoting an earlier case, the Court stated: “It is firmly established in our cases that the absence of a valid (as opposed to arguable) cause of action does not implicate subject-matter jurisdiction, i.e., the courts’ statutory or constitutional power to adjudicate the case.”/115/  The Court explained that if the statute does not strip federal question jurisdiction and plaintiff’s preemption claim is not frivolous, then the district court has federal question jurisdiction to determine whether a state regulation is preempted by federal law, pursuant to the Supremacy Clause./116/

The Supreme Court subsequently reached the merits of two cases alleging that state laws were preempted by the federal Medicaid statute, without addressing the cause of action.  In Pharmaceutical Research and Manufacturers of America v. Walsh (PhRMA)/117/ Justice Thomas's concurrence suggested, although he did not explicitly conclude, that plaintiffs might have to meet the Gonzaga requirements for a cause of action in order to bring a claim under the Supremacy Clause for Spending Clause statutes./118/ Justice Scalia, writing separately, did not address the cause of action but similarly inferred that in his view, neither Section 1983 nor the Supremacy Clause may be invoked to challenge alleged state violations of federal law in Spending Clause cases./119/ The other seven Justices reached the merits of the preemption claim, split 4-to -3 on whether the state law was preempted, and completely ignored the concurrences of Justices Scalia and Thomas. By reaching the merits, seven Justices “assum[ed] sub silentio that the plaintiff had a right of action for its claim that the Medicaid statute preempted state law.”/120/

In Arkansas Department of Health and Human Services v. Ahlborn, the Court unanimously held that state law conflicted with Medicaid law and was therefore unenforceable./121/ Ahlborn contains no discussion whatsoever of a cause of action or jurisdiction; it reaches the merits of the preemption claim without even mentioning the Supremacy Clause./122/

Then in 2012, in Douglas v. Independent Living Center, the Court granted certiorari to answer the question of whether the Supremacy Clause provides a cause of action for providers and beneficiaries to enforce the Medicaid statute./123/ In four consolidated cases, California had been enjoined from reducing reimbursement rates to providers on the grounds that the state laws reducing the rates conflicted with the federal Medicaid statute. California urged the Supreme Court to hold that there was no cause of action for the preemption claims. However, a majority of five Justices declined to answer the question presented. Following oral argument at the Supreme Court, the federal government approved the rate cuts, and the Court held that this change in the facts warranted a remand to the lower courts./124/ While the majority explicitly declined to address the availability of a cause of action under the Supremacy Clause, four dissenting Justices expressed the opinion that the Supremacy Clause does not offer a cause of action to enforce the Medicaid statute./125/

Following Independent Living Center, many lower courts have continued to follow earlier Supreme Court precedent reaching the merits of preemption claims./126/ However, some lower courts have questioned the viability of Medicaid preemption claims in light of the dissent in Independent Living Center./127/ The highest state court of Massachusetts found the reasoning of the dissent persuasive and dismissed a Medicaid preemption claim accordingly./128/

The recent case of Wos v. E.M.A. did not explicitly address the question of whether there is a cause of action under the Supremacy Clause, since in that case the claim was brought under Section 1983./129/ Nevertheless, in reaching the merits of the Medicaid preemption claim, the Court emphasized the availability of preemption claims to displace conflicting state law. The Court stated that a state law "operat[ing]" in direct conflict with the federal Medicaid law "must give way."/130/ The Court's analysis rebuts the reasoning of the dissent in Independent Living Center./131/

5.2.C.3. Preemption Claims Under Spending Clause Statutes

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 generally indicated reluctance about private enforcement of spending legislation./132/ That reluctance, however, does not extend to preemption cases. The Supreme Court has long held that Spending Clause legislation is specifically 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./133/

The Supreme Court reiterated this principle recently in a Spending Clause case, noting that once a state chooses to take federal monies and participate in a federal program, the state “must comply with [the federal statute’s] mandates.”/134/ 

The courts of appeal have also resoundingly rejected the argument that Spending Clause statutes have less force under the Supremacy Clause than other statutes./135/ Two circuits specifically noted that the concurrences of Justices Thomas and Scalia in Pharmaceutical Research and Manufacturers Association v. Walsh (PhRMA), which allude to the Spending Clause, have no precedential importance, since they did not command a majority of the Court./136/ Indeed, the concurrences of Justices Thomas and Scalia not only conflict with considerable Supreme Court precedent but also have no basis in the text of the Constitution./137/

The Independent Living Center dissent noted that Medicaid is a Spending Clause statute in its explanation for rejecting a cause of action./138/ However, the majority in Wos v. E.M.A. noted that a Medicaid preemption claim is "similar" to preemption claims brought by businesses under statutes that are not enacted under the Spending Clause./139/ Thus, Wos v. E.M.A. rebuts the reasoning of the Independent Living Center dissent, establishing that Spending Clause statutes are enforceable through preemtion claims./140/

5.2.C.4. Elements of a Preemption Claim

Certain federal laws can preempt various types of state action. Generally applicable only to state governmental officials or entities, preemption provides limited relief.

5.2.C.4.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.”/141/ Indeed, “[f]ederal regulations have no less pre-emptive effect than federal statutes.”/142/ Federal agency orders, and possibly other forms of agency action, can also preempt state or local action./143/ Therefore, preemption can be used to enforce regulations that are unenforceable under Section 1983 or an implied right of action./144/

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.”/145/ Rather, the courts have applied traditional, deferential Chevron analysis to determine whether the agency has acted within the scope of its authority in issuing preemptive regulations./146/ 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./147/

5.2.C.4.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./148/ 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./149/ Policies may also be challenged by seeking to invalidate a law or regulation to the extent that it is interpreted to permit or authorize the challenged state action or policy./150/

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./151/ The Fifth Circuit rejected a Supremacy Clause claim alleging that the failure to set adequate reimbursement rates violated the reasonable promptness provision of the Medicaid statute./152/ The court stated that the plaintiff "has no viable claim under the Supremacy Clause because it failed to identify any state law or regulation with which the Reasonable Promptness Provision conflicts and therefore preempts."/153/ 

One alternative way of challenging an unwritten policy is to challenge an agency determination or 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 administratively appeal the determination directly on the same grounds.

In the telecommunications context, businesses have successfully utilized preemption to challenge state agency determinations.  The Tenth Circuit held that there was federal question jurisdiction to decide whether a state agency determination was preempted by federal telecommunications law./154/ Similarly, the Eighth Circuit held that "district courts have jurisdiction to determine whether a state administrative agency correctly interprets federal law, in this case the Telecommunications Act and the FCC regulations interpreting the Act."/155/ These decisions are fully applicable to cases brought under safety net and civil rights statutes. 

5.2.C.4.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. Private cases could arise in which the defendant justifies its conduct based on a state law or regulation that the plaintiff asserts conflicts with federal law./156/

5.2.C.4.d. Relief Available

A drawback of preemption is that it only provides injunctive and declaratory relief and not damages or attorney’s fees. 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./157/ Moreover, the general “American rule” is that parties bear their own litigation costs./158/ For Section 1983 actions, 42 U.S.C. § 1988 specifically permits attorney’s fees. There is no analogous authority to award fees in preemption claims under the Supremacy Clause./159/

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 attorney’s fees./160/ In a 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.”/161/ Recently, the Court reiterated the availability of "equitable relief" in suits against government actors./162/ Thus, the preemption claim’s weaknesslack of damagesmay also be its strength.

With respect to injunctive relief, the typical relief in a preemption case is an order invalidating the state law or regulation and enjoining its enforcement./163/ If plaintiffs do not wish to completely eliminate the state law, it can be invalidated “insofar as it violates the federal statute.”/164/ Accordingly, 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./165/ Advocates should be careful to phrase their pleadings in classic preemption terms so that courts will be comfortable using this line of precedent in public interest cases.

5.2.C.5. The Relationship Between 42 U.S.C. 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.”/166/ 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.”/167/

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./168/ 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./169/ In Golden State II, the plaintiffs argued that their preemption claim was also a Section 1983 claim that entitled them to attorney’s fees. The holdings in those cases say nothing about the scope of the Supremacy Clause itself or of an independent preemption claim. The preemption claim is entirely 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./170/

A federal statute may be enforced through preemption even if the statute does not create individual “rights” within the meaning of Section 1983./171/ 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” for that remedy. 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.”/172/ Preemption under the Supremacy Clause “concerns the federal structure of the Nation rather than the securing of rights, privileges, and immunities to individuals.”/173/

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 Section 1983 exists every time a federal rule of law pre-empts state regulatory authority.”/174/

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 [Section] 1983./175/

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 and Manufacturers Association v. Walsh (PhRMA) seven justices considered the plaintiffs’ preemption claim on the meritsand three of the conservative justices would have ruled in their favoreven though the Medicaid Act almost certainly does not give drug companies a right enforceable under Section 1983 to sell their drugs to Medicaid recipients./176/ Indeed, the First Circuit’s opinion in Walsh, 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.”/177/

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./178/ 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./179/

The Fifth and Seventh Circuits have expressly held that the requirements for "rights-creating language" in Gonzaga are inapplicable to a preemption claim./180/  Several circuits have similarly held, subsequent to Gonzaga, that statutory provisions which do not meet the requirements for a Section 1983 cause of action may be enforced via preemption./181/    

Policy reasons also underlie courts’ willingness to recognize preemption claims while rejecting claims under § 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. These policy concerns are related to those that led the Supreme Court to adopt the Ex Parte Young exception to sovereign immunity,/182/ allowing injunctive relief against state officers even when damages directly against the state are not available: “the 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.”/183/

5.2.C.6. Congressional Intent and the Presumption Against Preemption

Although the inquiry is different, Congressional intent is relevant to preemption claims, as it is to Section 1983 claims.  Specifically, for a preemption claim, the question is what does the federal statute mean and does state law interfere with it, not whether Congress intended to create an enforceable right. Preemption claims thus have advantages over Section 1983 in an analysis of congressional intent, 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.”/184/ Claims based on Congress’ overall purpose, as expressed in the statute’s introductory provisions, generally fail./185/ In the preemption context, however, the Court examines the broader question of whether a state law presents an obstacle to federal objectives.  The Court explained:

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.”/186/

That is, congressional intent is determined from the entire “undifferentiated” statute, and preemption may be inferred from overall purposes and not simply from specific statutory language./187/  Thus, 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.”/188/

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./189/ 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.”/190/ 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.”/191/ Allegedly preemptive provisions must be "fairly but narrowly construed."/192/ 

However, the Supreme Court has not consistently applied this presumption against preemption. In some recent cases, the presumption against preemption has been ignored by the majority of the Court and cited only by dissenters./193/ For example, preemption has been embraced by a majority of the Roberts Court in some cases to insulate businesses from suits under state tort actions and consumer protection statutes./194/ The Court's reliance on preemption in the business context has accordingly rendered court access under the Supremacy Clause less vulnerable to challenge for public interest litigants as well.

5.2.C.7. Practice Tips

The key to a successful preemption claim is to phrase it in classic preemption terms with which courts are familiar. Advocates should strenuously 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 actiondoctrines that have met with significantly 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.

Ultimately, the core principle of a preemption claim pursuant to the Supremacy Clause 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.


1. Anthony J. Belia, Jr., Article III and the Cause of Action, 89 Iowa L. Rev. 777, 784, 793, 797 (2004).

2. Rochelle Bobroff, Section 1983 and Preemption: Alternative Means of Court Access for Safety Net Statutes, 10 Loy. J. Pub. Int. L. 27, 32 (2009).

3. John Harrison, Jurisdiction, Congressional Power, and Constitutional Remedies, 86 Geo. L. J. 2513, 2520-21 (1998).

4. See, e.g., J.I. Case Company v. Borak, 377 U.S. 426 (1964).

5. Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1948 (2009).

6. Bobroff, Section 1983 and Preemption, supra note 2.

7. Verizon Maryland, Incorporated v. Public Service Commission, 535 U.S. 635 (2002).

8. 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 Federal Bureau of Narcotics, 403 U.S. 388 (1971).

9. These statutes are discussed in Chapters 2.5.C. and 2.5.D. of this MANUAL.

10. Correctional Services Corporation v. Malesko, 534 U.S. 61 (2001).

11. Procedurally, reasoning by analogy from § 1983 actions, all courts considering the issue have held that state personal injury statutes of limitation should govern Bivens. 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 Federal Corrections 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). Additionally, there is currently no express or implied statutory authorization for an award of attorney's fees to prevailing plaintiffs in Bivens actions and the Supreme Court has expressly declined to rule on the question. Bush v. Lucas, 462 U.S. 367, 372 n.9 (1983).

12. 28 U.S.C. § 1442(a)(1); McCarthy v. Madigan, 503 U.S. 140, 150 (1992).

13. 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 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 Chapters 8.2.A. and 8.2.B. of this MANUAL.

14. 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).

15. Bivens, 403 U.S. at 391-92, 394-95.

16. Davis v. Passman, 442 U.S. 228 (1979).

17. Id. at 230-31 n.3.

18. Id. at 245, 247.

19. Id. at 245 (quoting Bivens, 403 U.S. at 410 (Harlan, J., concurring)).

20. Carlson v. Green, 446 U.S. 14 (1980). In Hui v. Castaneda, 130 S. Ct. 1845 (2010), the Supreme Court distinguished Carlson and held that 42 U.S.C. § 233(a), a provision in the Public Health Service Act, precludes Bivens claims against individual Public Health Service employees and instead requires that the United States be substituted and a case brought under the Federal Tort Claims Act.

21. Id. at 19-20. 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 Federal Tort Claim Act’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.

22. Bush v. Lucas, 462 U.S. 367 (1983).

23. Id. at 388.

24. The Court deferred to 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 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.

25. Id.

26Chappell v. Wallace, 462 U.S. 296 (1983).

27. Id. at 302, 304.

28. United States v. Stanley, 483 U.S. 669, 684 (1987) (quoting Feres v. United States, 340 U.S. 135, 146 (1950)). 

29. Schweiker v. Chilicky, 487 U.S. 412, 423-29 (1988).

30. Id. at 415-16 (“Finding that benefits were too often being improperly terminated by state agencies, only to be reinstated by a federal administrative law judge (ALJ), Congress enacted temporary emergency legislation in 1983.”).

31. Id. at 423.

32. Simpson v. McCarthy, 741 F. Supp. 95, 97 (W.D. Pa. 1990) (referring to Carlson v. Green, 446 U.S. 14, 18 (1980).

33. Correctional Services Corporation v. Malesko, 534 U.S. 61, 75 (2001) (Scalia, J., concurring). 

34. J.I. Case Co. v. Borak, 377 U.S. 426 (1964).

35. Malesko, 534 U.S. at 67 n.3 (quoting Alexander v. Sandoval, 532 U.S. 275, 287 (2001)).

36. Id. at 68, 70.

37Federal Deposit Insurance Corporation v. Meyer, 510 U.S. 471 (1994).

38. Id. at 484-85.

39. Id. at 474.

40. Minneci v. Pollard, 132 S. Ct. 617 (2012).

41. Id. at 624.

42. Ashcroft v. Iqbal , 556 U.S. 662, 129 S. Ct. 1937, 1947 (2009) (quoting Correctional Services Corporation v. Malesko, 534 U.S. 61, 68 (2001)).

43. 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);

44. See, e.g., Christopher v. Harbury, 536 U.S. 403 (2002) (Bivens claim under the Fifth Amendment for alleged denial of access to the courts rejected).    

45. Wilkie v. Robbins, 551 U.S. 537, 541, 548 (2007).

46. Id. at 551-54.

47. Id. at 550 (quoting Bush v. Lucas, 462 U.S. 367 , 378 (1983).

48. Id. at 562.

49. See Wilkie, 551 U.S. 537 (1983) (declining to extend Bivens remedy to a series of complex complaints against actions of federal actors, including pressure to dispose of property interests). See also Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009) (no Bivens claim in extraordinary rendition case), cert. denied, 130 S. Ct. 3409 (2010); Hudson Valley Black Press v. Internal Revenue Service, 409 F.3d 106 (2nd Cir. 2005) (refusing a Bivens remedy for a Fourth Amendment violation by Internal Revenue Service employees in light of comprehensiveness of Internal Revenue Service taxpayer remedies, even though no remedy existed for plaintiff).

50. See, e.g., Wilson v. Layne, 526 U.S. 603, 609 (1999) (both Bivens and § 1983 allow a plaintiff to seek 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 damages).

51. The Court first assumed a Bivens claim under the First Amendment in Bush, 462 U.S. at 372-73.

52. Hartman v. Moore, 547 U.S. 250 (2006).

53. Ashcroft v. Iqbal , 556 U.S. 662, 129 S. Ct. 1937, 1948 (2009).

54. 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 impermissibly curbed plaintiff’s protected speech claim, properly cognizable as a 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 on grounds that remedial scheme is less comprehensive than that of the Civil Service Reform Act, and remedies are less meaningful).

55. Alexander v. Sandoval, 532 U.S. 275 (2001).

56. Sullivan v. Little Hunting Park, 396 U.S. 229, 238 (1969); Allen v. State Board of Elections, 393 U.S. 544, 556-57 (1969); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 414-415, and 414 n.13 (1969).

57. Cort v. Ash, 422 U.S. 66 (1975).

58. Id. at 78. 

59Cannon v. University of Chicago, 441 U.S. 677, 709 (1979).

60. Id. at 696-68.

61. Id. at 703. 

62. Id. at 717.

63. Transamerica Mortgage Advisors, Incorporated v. Lewis, 444 U.S. 11, 24 (1979); Touche Ross and Company v. Redington, 442 U.S. 560, 575-76 (1979).

64. Transamerica, 444 U.S. at 24.

65. Id. at 15-16. The dissent argued on behalf of four Justices that "courts may provide private litigants exercising implied rights of action whatever relief is consistent with the congressional purpose." Id. at 30 (White, J. dissenting). But the majority clearly rejected the dissent's approach of focusing on overall congressional purpose.

66. Merrill Lynch, Pierce, Fenner and Smith v. Curran, 456 U.S. 353 (1982).

67Id. at 377.

68Id. at 384-85. See also Herman and MacLean v. Huddleston, 459 U.S. 375, 386-87 (1983) (express remedy does not preclude enforcement of another statute which had previously been held enforceable under an implied private right of action).

69. Id. at 375-76.  

70. Guardians Association v. Civil Service Commission, 463 U.S. 582 (1983).

71. Id. at 607, n.27.

72. Rehabilitation Act, 29 U.S.C. § 794a(a)(2). See Lane v. Peña, 518 U.S. 187, 191-92 (1996).

73. See Virginia Bankshares, Incorporated v. Sandberg, 501 U.S. 1083, 1102 (1991); Merrell Dow Pharmaceuticals Incorporated v. Thompson, 478 U.S. 804, 812, n. 9 (1986) (collecting cases).

74. Montgomery Improvement Association v. U.S. Department of Housing and Urban Development, 645 F.2d 291, 295 (5th Cir. 1981).

75. Latinos Unidos de Chelsea En Accion (Lucha) v. Secretary of Housing and Urban Development, 799 F.2d 774, 795 (1st Cir. 1986).

76. Lisa E. Key, Private Enforcement of Federal Funding Conditions under 1983: the Supreme Court’s Failure to Adhere to the Doctrine of Separation of Powers, 29 U.C. Davis L. Rev. 283, 286 (1996). See also Donald H. Zeigler, Rights, Rights of Action, and Remedies: An Integrated Approach, 76 Wash. L. Rev. 67, 91 (2001).

77. Wright v. City of Roanoke Redevelopment and Housing Authority, 479 U.S. 418 (1987).

78. Id. at 433 (O'Connor, J. dissenting). Prior to Justice O'Connor's Wright dissent, Justices Powell and Rehnquist had objected to enforcement of civil rights and safety net statutes under § 1983 on policy grounds, arguing that these cases were an undue burden on the state. Bobroff, Section 1983 and Preemption, supra note 2, at 39-42.

79. Wilder v. Virginia Hospital Association, 496 U.S. 498, 508 n.9 (1990).

80. Gonzaga University 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, the federal statute protecting the privacy of educational records).

81. Id. at 284-85. 

82. Alexander v. Sandoval, 532 U.S. 275 (2001).

83. Id. at 280.

84. Id. at 291. 

85. Id. at 290-91.

86. Id. at 288.

87. Id. at 286.

88. Id. at 287-88.

89. Id. at 289.

90. Jackson v. Birmingham Board of Education, 544 U.S. 167 (2004).

91. Id. at 178. Cf. Rolland v. Romney, 318 F.3d 42, 52-53 (1st Cir. 2003) (relying on same Alexander v. Sandoval, 532 U.S. 275 (2001) 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).

92. Price v. City of Stockton, 390 F.3d 1105, 1112 n.6 (9th Cir. 2004); see Johnson v. City of Detroit, 446 F.3d 614, 629 (6th Cir. 2006); Save Our Valley v. Sound Transit, 335 F.3d 932, 943 (9th Cir. 2003). See also South Camden Citizens in Action v. New Jersey Department of Environmental Protection, 274 F.3d 771, 784 (3d Cir. 2001) (finding disparate impact regulation unenforceable under § 1983 based on Sandoval; decided before Gonzaga). Two circuits had held that regulations alone could not be enforced under § 1983 prior to Sandoval. Harris v. James, 127 F.3d 993, 1008 (11th Cir. 1997); Smith v. Kirk, 821 F.2d 980, 984 (4th Cir. 1987).

93. Shakhnes v. Proud, 689 F.3d 244, 251 (2d Cir. 2012), cert. denied, 133 S. Ct. 1808 (2013);  Price, 390 F.3d at 1112 n.6. 

94Lonberg v. City of Riverside, 571 F.3d 846, 851 (9th Cir. 2009).

95. Ability Center 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. Kansas State Fair Board, 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).

96. See, e.g., Riegel v. Medtronic, Incorporated, 552 U.S. 312 (2008).  In two recent cases, Justice Stevens authored decisions for a 5-to-4 majority that included Justice Kennedy, limiting federal preemption of state consumer protection laws and reestablishing the presumption against preemption. Wyeth v. Levine, 555 U.S. 555, 129 S. Ct. 1187 (2009); Altria Group, Incorporated v. Good, 555 U.S. 70, 129 S. Ct. 538 (2008).

97. See Loyal Tire and Auto Center, Incorporated v. Town of Woodbury, 445 F.3d 136, 149 (2d Cir. 2006) (noting that plaintiff’s “right to bring an action seeking declaratory and injunctive relief from municipal regulation on the ground that federal law preempts that regulation is undisputed,” but holding that there is no statutory right of action under § 1983 and therefore no fee award); Qwest Corporation v. City of Santa Fe, 380 F.3d 1258, 1275 (10th Cir. 2004) (the plaintiff lost under the § 1983 claim, but partly prevailed under preemption, and claims for attorneys fees under 42 U.S.C. § 1988 were summarily dismissed); Segundo v. City of Rancho Mirage, 813 F.2d 1387, 1394 (9th Cir. 1987) (“preemption of state law under the Supremacy Clause-being grounded not on individual rights but instead on considerations of power-will not support an action under § 1983, and will not, therefore, support a claim for attorneys' fees under § 1988”).

98. See generally, Bobroff, Section 1983 and Preemptionsupra note 2.

99. “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.

100. Gibbons v. Ogden, 22 U.S. 1, 31 (1824).

101. See, e.g., Hines v. Davidowitz, 312 U.S. 52 (1941).

102. See Lorillard Tobacco Company v. Reilly, 533 U.S. 525, 541 (2001); Crosby v. National Foreign Trade Council, 530 U.S. 363, 372 (2000).

103. Crosby, 530 U.S. at 373 (quoting Hines, 312 U.S. at 67).

104. See, e.g., Gade v. National Solid Wastes Management Association, 505 U.S. 88, 103 (1992); New Center Pipeline Corporation v. State Corp. Commission, 489 U.S. 493, 515 n.12 (1989).

105. Richard H. Fallon, Jr., et al., Hart and Wechsler's The Federal Courts and the Federal System, 903 (5th ed. 2003); 13D Charles Alan Wright, et al., Federal Practice & Procedure § 3566 (3d ed. 2009) (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”).

106. David Sloss, Constitutional Remedies for Statutory Violations, 89 Iowa L. Rev. 355, 363 n.36 (2004); Michael G. Collins, “Economic Rights,” Implied Constitutional Actions, and the Scope of Section 1983, 77 Geo. L. J. 1493, 1510 (1989).

107See Bobroff, Section 1983 and Preemption, supra note 2, at 69-70.

108. Qwest Corporation v. City of Santa Fe, 380 F.3d 1258, 1266 (10th Cir. 2004). Accord Puerto Rico Telephone Company v. Municipality of Guayanilla, 450 F.3d 9, 14-15 (1st Cir. 2006); Local Union No. 12004, United Steelworkers of America v. Massachusetts, 377 F.3d 64, 75 (1st Cir. 2004); Bud Antle, Incorporated v. Barbosa, 45 F.3d 1261, 1269 (9th Cir. 1994).

109. Burgio and Campofelice, Incorporated v. New York State Department of Labor, 107 F.3d 1000, 1006-07 (2d Cir. 1997); Wright Electric, Incorporated v. Minnesota State Board of Electricity, 322 F.3d 1025, 1028 (8th Cir. 2003).

110. See, e.g., Aroostook Band of Micmacs v. Ryan, 404 F.3d 48, 56-57 (1st Cir. 2005); Planned Parenthood of Houston and Southeast Texas v. Sanchez, 403 F.3d 324, 331-35 (5th Cir. 2005); Local Union No. 12004, United Steelworkers of America v. Massachusetts, 377 F.3d 64, 75 & n.8 (1st Cir. 2004). See also, pre-Verizon cases, Joseph A. v. Ingram, 275 F.3d 1253, 1265 (10th Cir. 2002); Pharmaceutical Research and Manufacturers of America v. Concannon, 249 F.3d 66, 73 (1st Cir. 2001), aff’d sub nom Pharmaceutical Research and Manufacturers of America v. Walsh, 538 U.S. 644 (2003); Burgio and Compofelice, Incorporated v. New York State Department of Labor, 107 F.3d 1000, 1006 (2d Cir. 1997); Guaranty National Insurance Company v. Gates, 916 F.2d 508, 512 (9th Cir. 1990).

111. See, e.g., Independent Living Center of Southern California v. Shewry, 543 F.3d 1050, 1055-56 (9th Cir. 2008), cert denied, 129 S. Ct. 2828 (2009) (stating that the Supreme Court “has consistently assumedwithout commentthat the Supremacy Clause provides a cause of action to enjoin implementation of allegedly unlawful state legislation”); Lankford v. Sherman, 451 F.3d 496 (8th Cir. 2006) (reaching merits of preemption claim without addressing cause of action); Qwest Corporation v. City of Santa Fe, 380 F.3d 1258 (10th Cir. 2004) (since preemption claim not frivolous, court had federal question jurisdiction); Verizon Maryland, Incorporated v. Global Naps, Incorporated, 377 F.3d 355, 369 (4th Cir. 2004) ("Because ... there is federal question jurisdiction over this claim under 28 U.S.C. § 1331, we need not inquire into whether [the federal statute] provides a cause of action"); BellSouth Telecommunications, Incorporated v. Mcimetro Access Transmission Services, Incorporated, 317 F.3d 1270, 1278 (11th Cir. 2003) (en banc) (“[f]ederal courts must resolve the question of whether a public service commission’s order violates federal law and any other federal question").

112. See Sloss, supra note 106, at 366 (Supreme Court repeatedly "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).

113. Shaw v. Delta Air Lines, 463 U.S. 85, 96 n.14 (1983) (citations omitted). See also Verizon Maryland, Incorporated v. Public Service Commission, 535 U.S. 635 (2002).

114. Verizon, 535 U.S. at 642.

115. Id. at 642-43.

116Id. at 643-4.

117. Pharmaceutical Research and Manufacturers of America v. Walsh, 538 U.S. 644 (2003).

118. Id. at 683 (Thomas, J., concurring).  For a detailed discussion of Justice Thomas's concurrence, see Bobroff, Section 1983 and Preemption, supra note 2, at 76-78.

119. Id. at 675 (Scalia, J., concurring).  For a detailed discussion of Justice Scalia's concurrence, see Bobroff, Section 1983 and Preemption, supra note 2, at 78-79.

120. Sloss, supra note 106, at 374. 

121. Arkansas Department of Health and Human Services v. Ahlborn, 547 U.S. 268 (2006).

122. 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 preemptionagain, without discussing or questioning the cause of action. See Ahlborn v. Arkansas Department of Health and Human Services, 397 F.3d 620 (8th Cir. 2005), aff’d, 547 U.S. 268.

123. Douglas v. Independent Living Center of Southern California, Incorporated, 132 S. Ct. 1204 (2012).

124. Id. at 1211. The majority opinion was written by Justice Breyer and joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan. See Rochelle Bobroff, Medicaid Preemption Remedy Survives Supreme Court Challenge, 46 Clearinghouse Review 35 (May-June 2012).

125. Id. at 1215 (Roberts, C.J., dissenting).

126. See, e.g., Lewis v. Alexander, 685 F.3d 325, 346 (3d Cir. 2012); Koenning v. Suehs, 897 F. Supp. 2d 528, 543 (S.D. Tex. 2012).

127. See, e.g., Planned Parenthood of Indiana, Incorporated v. Commissioner, 699 F.3d 962, 983 (7th Cir. 2012).

128. Boston Medical Center Corporation v. Secretary of the Executive Office of Health and Human Services, 974 N.E.2d 1114, 1128 (Mass. 2012).

129. Wos v. E.M.A., 133 S. Ct. 1391 (2013).

130. Id. at 1398.

131. See Rochelle Bobroff, Supreme Court's Decision in Wos v. E.M.A. Rebuts Reasoning of Douglas v. Independent Living Center of Southern California, Inc. Dissent, 47 Clearinghouse Review 109 (July-Aug. 2013).

132. See, e.g., Gonzaga University v. Doe, 536 U.S. 273, 279-80 (2002).

133. King v. Smith, 392 U.S. 309, 333 n.34; accord Ivanhoe Irrigation District v. McCracken, 357 U.S. 275, 295 (1958).

134. Winkelman v. Parma City School District, 550 U.S. 516, 519 (2007).

135. Planned Parenthood of Houston and Southeast Texas v. Sanchez, 403 F.3d 324, 331-32 (5th Cir. 2005); Westside Mothers v. Haveman, 289 F.3d 852, 858-60 (6th Cir. 2002), cert. denied 537 U.S. 1045 (2002); Missouri Child Care Association v. Cross, 294 F.3d 1034, 1040-41 (8th Cir. 2002); Antrican v. Odom, 290 F.3d 178, 188-89 (4th Cir. 2002). See also Rochelle Bobroff, Ex Parte Young as a Tool to Enforce Safety Net and Civil Rights Statutes, 40 Univ. of Toledo L. Rev. 819, 838 (2009).

136. Planned Parenthood, 403 F.3d at 332 n.34; Pharmaceutical Research and Manufacturers of America v. Thompson, 362 F.3d 817, 819 n.3 (D.C. Cir. 2004).

137. Samuel R. Bagenstos, Spending Clause Litigation in the Roberts Court, 58 Duke L.J. 345, 392-93 (2008).  See also, Bobroff, Section 1983 and Preemption, supra note 2, at 77.

138. 132 S. Ct. at 1215 (Roberts, C.J., dissenting).

139. 133 S. Ct. at 1398 (citing National Meat Association v. Harris, 132 S. Ct. 965 (2012)); PLIVA, Incorporated v. Mensing, 131 S. Ct. 2567 (2011). See Rochelle Bobroff, Medicaid Preemption Claims in Douglas Avoid the Astra Abyss, 122 Yale L.J. Online 19, 21 (2012).

140. See Bobroff, Supreme Court's Decision in Wos, supra note 131.

141. Louisiana Public Service Commission v. Federal Communications Commission, 476 U.S. 355, 369 (1986).

142. Fidelity Federal Savings and Loan Association v. de la Cuesta, 458 U.S. 141, 153-54 (1982); accord Capital Cities Cable, Incorporated v. Crisp, 467 U.S. 691, 699-700 (1984).

143. See, e.g., Entergy Louisiana, Incorporated v. Louisiana Public Services Commission, 539 U.S. 39, 47-50 (2003); Verizon Maryland, Incorporated v. Public Service Commission, 535 U.S. 635, 648 (2002);  Elizabeth Blackwell Health for Women v. Knoll, 61 F.3d 170, 181-82 (3d Cir. 1995) (federal Medicaid Bureau Director’s letter interpreting Medicaid Act).

144. See, e.g., Wachovia Bank, N.A. v. Burke, 414 F.3d 305 (2d Cir. 2005). Indeed, the Title VI regulation in Alexander v. Sandoval, 532 U.S. 275 (2001), that could not be enforced through an implied right of action should have been enforceable through preemption.

145. Fidelity Federation Savings and Loan Corporation, 458 U.S. at 154; accord City of New York v. Federal Communications Commission, 486 U.S. 57, 63-64 (1988).

146. New York v. Federal Energy Regulatory Commission, 535 U.S. 1, 15-16, 18 (2002) (citing Chevron U.S.A. Incorporated v. Natural Resources Defense Council, Incorporated, 467 U.S. 837, 842-843 (1984)); City of New York, 486 U.S. at 63; Pharmaceutical Research and Manufacturers of America v. Thompson, 362 F.3d 817, 822 (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. Federal Energy Regulatory Commission, 535 U.S. at 17-18.

147. See Sandoval, 532 U.S. 275; Gonzaga, 536 U.S. 273, 283, 284 n.3 (2002).

148. See, e.g., Entergy Louisiana, 539 U.S. 39; Verizon Maryland, Incorporated v. Public Service Commission, 535 U.S. 635 (2002); Nash v. Florida Industrial Commission, 389 U.S. 235 (1967).

149. Livadas v. Bradshaw, 512 U.S. 107 (1994) (state policy not to enforce state labor law); see also id. at 119 (characterizing Nash v. Florida Industrial Commission, 389 U.S. 235 (1967), as “holding pre-empted [a state] administrative policy interpreting presumably valid state unemployment insurance law”); League of Women Voters v. Blackwell, 340 F. Supp. 2d 823, 827-28 (N.D. Ohio) (state directive); Equal Access Education v. Merten, 305 F. Supp. 2d 585, 601 n.14 (E.D. Va. 2004) (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)).

150. See, e.g., Nash, 389 U.S. 235.

151. In Livadas, 512 U.S. 107, 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.

152. Equal Access for El Paso v. Hawkins, 562 F.3d 724 (5th Cir. 2009).

153. Id. at 730.

154. Qwest Corp. v. Public Utilities Communication of Colorado, 479 F.3d 1184, 1191 (10th Cir. 2007).

155. Rural Iowa Independent Telephone Association v. Iowa Utilities Board, 362 F.3d 1027, 1030 (8th Cir. 2004).

156. See Golden State Transit Corporation v. City of Los Angeles (Golden State II), 493 U.S. 103, 113-14 (1989) (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).

157. Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971); see, e.g., Correctional Services Corporation v. Malesko, 534 U.S. 61 (2001).

158. See Alyeska Pipeline Service Company v. Wilderness Society, 421 U.S. 240 (1975).

159. See Loyal Tire and Auto Center, Incorporated v. Town of Woodbury, 445 F.3d 136, 149 (2d Cir. 2006) (noting that plaintiff’s “right to bring an action seeking declaratory and injunctive relief from municipal regulation on the ground that federal law preempts that regulation is undisputed,” but holding that there is no statutory right of action under § 1983 and therefore no fee award); Segundo v. City of Rancho Mirage, 813 F.2d 1387, 1394 (9th Cir. 1987) (“preemption of state law under the Supremacy Clause-being grounded not on individual rights but instead on considerations of power-will not support an action under § 1983, and will not, therefore, support a claim for attorneys' fees under § 1988”); Qwest Communications Corporation v. City of Greensboro, 440 F. Supp. 2d 480, 485 (M.D.N.C. 2006) (“the practical effect of a finding … that Plaintiff has a private right of action under [a federal statute] that is in turn enforceable through section 1983, is that Plaintiff may be able to recover attorneys fees, whereas a finding of preemption alone will not allow for recovery of attorneys fees”).

160. See, e.g., Gonzaga University v. Doe, 536 U.S. 273, 286 n.5 (2002); id. at 292 (Breyer, J., concurring); Maine v. Thiboutot, 448 U.S. 1, 24 (1980) (Powell, J., dissenting).

161. 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 Maryland, Incorporated v. Public Service Commission, 535 U.S. 635, 642-43 (2002) (unanimous opinion by Justice Scalia 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).

162. Free Enterprise Fund v. Public Company Accounting Oversight Board, 130 S. Ct. 3138, 3151 n.2 (2010) (citing Malesko, 534 U.S. at 74).

163. See, e.g., Verizon, 535 U.S. at 642; Crosby v. National Foreign Trade Council, 530 U.S. 363, 371 (2000)Shaw v. Delta Air Lines, 463 U.S. 85, 96, n.14 (1983).

164. See, e.g., Dalton v. Little Rock Family Planning Services, 516 U.S. 474, 478 (1996) (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).

165. Compare Nantahala Power and Light Company v. Thornburg, 476 U.S. 953 (1986) (invalidating state commission rate-making order that misallocated costs and remanding case) with In re Nantahala Power and Light Company, 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).

166Golden State Transit Corporation v. City of Los Angeles (Golden State II), 493 U.S. 103, 107 (1989); Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 613 (1979)See also  Equal Access for El Paso v. Hawkins, 562 F.3d 724, 730 (5th Cir. 2009).

167. Golden State II, 493 U.S. at 107 n.4.

168. See Chapman, 441 U.S. at 613; Golden State II, 493 U.S. at 107 (characterizing Chapman).

169. See Chapman, 441 U.S. at 606, 612-13. In December 1980, Congress removed the $10,000 amount-in-controversy requirement for federal question jurisdiction under 28 U.S.C. § 1331.  Pub. L. No. 96-486, 94 Stat. 2369 (1980).

170. See Bobroff, Section 1983 and Preemption, supra note 2, at 69.

171. See Gonzaga University v. Doe, 536 U.S. 273, 283, 284 n.3 (2002) (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. University of Chicago, 441 U.S. 677, 690 n.13 (1979)).

172Pharmaceutical Research and Manufacturers of America v. Concannon, 249 F.3d 66, 73 (1st Cir. 2001), aff’d sub nom Pharmaceutical Research and Manufacturers of America v. Walsh, 538 U.S. 644 (2003). 

173.  Golden State Transit Corporation v. City of Los Angeles (Golden State II), 493 U.S. 103, 117 (1989) (Kennedy, J., dissenting); see Western Air Lines v. Port Authority, 817 F.2d 222, 225 (2d Cir. 1987) (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).

174. Golden State II, 493 U.S. at 107-08.

175. Golden State II, 493 U.S. at 119 (Kennedy, J., dissenting) (citations omitted).

176  Pharmaceutical Research and Manufacturers of America v. Walsh, 538 U.S. 644 (2003); see also California Federal Savings and Loan Association v. Guerra, 479 U.S. 272 (1987) (considering on the merits employer’s claim that Pregnancy Discrimination Act preempted state law requiring pregnancy leave).

177. Pharmaceutical Research and Manufacturers of America v. Concannon, 249 F.3d 66, 73 (1st Cir. 2001). Similarly, in Crosby v. National Foreign Trade Council, 530 U.S. 363, 373-74 (2000), the Court allowed private companies to enforce the Burma sanctions provisions of the Foreign Appropriations Act, which were not passed for the purpose of giving companies an enforceable right to do business in Burma.

178. Planned Parenthood of Houston and Southeast Texas v. Sanchez, 403 F.3d 324, 331-35 (5th Cir. 2005); Qwest Corp. v. City of Santa Fe, 380 F.3d 1258, 1266 (10th Cir. 2004); Local Union No. 12004, United Steelworkers of America v. Massachusetts, 377 F.3d 64, 75 (1st Cir. 2004); Illinois Association of Mortgage Brokers v. Office of Banks and Real Estate, 308 F.3d 762, 765 (7th Cir. 2002); Pharmaceutical Research and Manufacturers of America v. Concannon, 249 F.3d 66, 249 F.3d 66, 73 (1st Cir. 2001) (in the context of rejecting the defendant’s challenge to the plaintiff’s prudential standing); St. Thomas-St. John Hotel and Tourism Association. v. U.S. Virgin Islands, 218 F.3d 232, 241 (3d Cir. 2000); Self-Insurance Institute v. Korioth, 993 F.2d 479, 482-83 (5th Cir. 1993); Western Air Lines v. Port Authority, 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 School District v. Kirk, 91 F.3d 1240, 1256-57 (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 Electric, Incorporated v. Minnesota State Board of Electricity, 322 F.3d 1025, 1028-29 (8th Cir. 2003); Wachovia Bank, 414 F.3d 305; Sprint Corporation v. Evans, 818 F. Supp. 1447, 1453 (M.D. Ala. 1993).

179. St. Thomas, 218 F.3d at 241; see also Qwest Corporation, 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.”).

180. Planned Parenthood of Houston and Southeast Texas, 403 F.3d at 335; Illinois Association of Mortgage Brokers, 308 F.3d at 765.

181. Independent Living Center of Southern California v. Shewry, 543 F.3d 1050, 1062 (9th Cir. 2008); Lankford v. Sherman, 451 F.3d 496, 509-10 (8th Cir. 2006); Qwest Corporation, 380 F.3d at 1266.

182. Ex Parte Young, 209 U.S. 123 (1908).

183. Green v. Mansour, 474 U.S. 64, 68 (1985); see also Board of Trustees v. Garrett, 531 U.S. 356, 374 n.9 (2001) (noting that injunctive relief is available against states under Title I of the Americans with Disabilities Act even though damages are not); Nevada Department of Human Resources v. Hibbs, 538 U.S. 721, 759 (2003) (Kennedy, J., dissenting) (making the same argument for the Family and Medical Leave Act).

184. Blessing v. Freestone, 520 U.S. 329, 342 (1997) (quoting   Golden State Transit Corporation v. City of Los Angeles (Golden State II), 493 U.S. 103, 106 (1989).

185. See, e.g., Blessing, 520 U.S. 329, 344; M.A.C. v. Betit, 284 F. Supp. 2d 1298, 1306 (D. Utah 2003).

186. Crosby, 530 U.S. at 373 (quoting Savage v. Jones, 225 U.S. 501, 533 (1912)); accord Gade v. National Solid Wastes Management Association, 505 U.S. 88, 98 (1992); Pharmaceutical Research and Manufacturers of America v. Walsh, 538 U.S. 644, 684-85 (2003) (O’Connor, J., joined by Rehnquist, C.J., and Kennedy, J., concurring in part and dissenting in part).

187. In Nash v. Florida Industrial Commission, 389 U.S. 235 (1967), for example, the Court held that a Florida statute denying unemployment insurance to individuals who filed unfair labor practice charges conflicted with the general objectives of the National Labor Relations Act (NLRA), even though the NLRA is directed at employers, not states, and the Florida law did not conflict with any specific provision of the NLRA.  

188. Crosby, 530 U.S. at 373 (citation omitted).  See also Independent Living Center of Southern California v. Maxwell-Jolly, 572 F.3d 644, 653 (9th Cir. 2009) ("the first step in any conflict preemption analysis is to determine the purpose of the federal law at issue").

189. See Wyeth v. Levine, 555 U.S. 555, 565 n.3 (2009); Altria Group, Incorporated v. Good, 555 U.S. 70, 77 (2008). 

190. Bates v. Dow Agrosciences Limited Liability Corporation, 544 U.S. 431, 449 (2005).

191. Id. (quoting Medtronic, Incorporated v. Lohr, 518 U.S. 470, 485 (1996)).

192Altria Group, 129 S. Ct. at 549.

193. See Riegel v. Medtronic, Incorporated, 552 U.S. 312, 128 S. Ct. 999, 1013-14 (2008) (Ginsburg, J., dissenting). See also Engine Manufacturers Association v. South Coast Air Quality Management District, 541 U.S. 246, 256 (2004) (acknowledging that the Court did not invoke any “‘presumption against pre-emption’ … [a] method[] on which not all Members of this Court agree”).

194. See Riegel, 128 S. Ct. at 1007-08; Rowe v. New Hampshire Motor Transport Association, 552 U.S. 364, 128 S. Ct. 989, 995-96 (2008).

Updated 2013 by Rochelle Bobroff

5.3 Third-Party Beneficiary Contract Claims

Updated 2013 by Kent Qian

Many government benefits are administered by private parties and local agencies. Health care under Medicaid and Medicare is provided by hospitals, nursing homes, doctors, and managed care organizations. Local housing agencies administer federal housing benefits, which are often delivered by private landlords. Private contractors frequently provide services to prisoners.  Authorization for private parties and local agencies to manage public benefits is conferred through detailed contracts with the federal or state government, and these contracts commonly contain many protections for beneficiaries. When private parties or local agencies that are not state actors/1/ fail to provide the benefits mandated by the government contracts, contract law may provide an avenue for relief. Injured individuals may be able to sue the private party or local agency to enforce the contract as a third-party beneficiary of that agreement./2/

The core of this claim is that the government and the private party have entered into a contract for the benefit of the individuals for whom the government program was designed, and as a result, those individuals may seek to enforce the contract if it is breached. In light of recent Supreme Court cases emphasizing the need for detailed allegations in the complaint,/3/ it is important to plead the specific contract provisions that benefit your client and that are not being observed. If at all possible, before filing suit, acquire a copy of the specific contract at issue, or at least a copy of any model contract upon which it may be based. An undifferentiated reference in the complaint to the entire contract is unlikely to be sufficient./4/

Contract claims based on third-party beneficiary status have been successful in Medicaid and Medicare, housing, and prisoner cases./5/ Nevertheless, such claims generally fail when either the contract contains and express provision disavowing an intention to confer third-party rights or when applicable state law utilizes a presumption on behalf of housing residents with well established rights to reside at the property and those brought by applicants for housing benefits.

Most recently, the Supreme Court rejected a third-party beneficiary claim brought by a county to enforce drug price limits set forth in contracts between pharmaceutical companies and the federal government, suggesting that the federal courts are unlikely to be receptive to such claims when the federal government asserts exclusive authority to enforce the contract./6/ Astra USA, Incorporated v. Santa Clara County concerned Section 350B of the Public Health Services Act, which imposes limits on the prices drug manufacturers may charge certain health facilities, generally those serving low-income patients. To participate in sales to such entities, the Health Resources and Services Administration, an entity within the federal Department of Health and Human Services, requires the drug makers to enter into standard Pharmaceutical Pricing Agreements which set forth the statutorily-prescribed pricing limits. Santa Clara County conceded that there was no private right of action to enforce the statutes containing price ceilings, but argued that it was a third-party beneficiary to these Agreements. The Supreme Court rejected the claim, holding that the Agreements were not subject to negotiation, contained only terms required by the statute, and that, as a result, a third-party beneficiary claim was no different than a private right of action. The Court acknowledged that the Health Resources and Services Administration had lacked the oversight and authority to enforce these Agreements, but that Congress responded by affording the Health Resources and Services Administration alternative mechanisms for enforcement, including audits, dispute resolution procedures and refund and civil penalty systems.

5.3.A. Standing

 The federal courts and most state courts follow the Restatement (Second) of Contracts in determining the viability of any third-party beneficiary claim./7/ Section 302 of the Restatement provides that:


(1)  Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either

(a)  the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or

(b)  the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance./8/

The Restatement defines beneficiaries of a contract as being either intended or incidental. Only an intended beneficiary has standing to enforce a contract between two other parties./9/ Whether a person is an intended beneficiary with the resulting right to sue depends upon the intent of the parties to the contract. That intent may be articulated in the contract itself, or discerned or imputed from the statutory context that prompted the contract to be executed./10/

Generally, courts do not require that plaintiffs who contend they are third party beneficiaries be expressly identified in the contract as third party beneficiaries, or that an express provision grant them the right to sue to enforce the contract./11/ The Federal Circuit recently explained that:

Exceptional” though it may be, third-party beneficiary status is not reserved for those parties who benefit expressly under a given contract. We note, too, that the intended  beneficiary need not be specifically or individually identified in the contract, but must fall within a class clearly intended to be benefited thereby.” Evidence of intent can be adduced. In short, it is sufficient to ask in the typical case "whether the beneficiary would be reasonable in relying on the promise as manifesting an intention to confer a right on him.”/12/

In two recent cases permitting third-party claims, the Alaska Supreme Court focused on the intent of the state government to provide a benefit to third parties, minimizing the importance of the intent of the private parties: a hospital and a private prison operator./13/ In another recent case, the Virginia Supreme Court rejected the argument that a prisoner was only an incidental beneficiary due to his transient presence in the prison. The Virginia court stated that a third-party contract right “does not depend upon permanent membership in the class of persons entitled to receive the benefit of the contract” but instead exists so long as the person is a part of that class./14/

Courts have also found intent to benefit a third party when one of the contracting parties owes the third party a pre-existing duty. This “duty owed” interpretation is drawn from the language of § 302(1)(a) of the Restatement (Second). Consequently, in an action under a contract that has been executed in conjunction with a government benefit program, the complaint should allege, when appropriate, that the recipient is the intended beneficiary of the contract between the state and the private entity because the state had a pre-existing duty to provide coverage to the recipient. A Tennessee appellate court, for example, upheld a third party claim based on its finding that "a nursing facility which has entered into a provider agreement with the state has a duty to assist a resident or applicant in applying for Medicaid eligibility."/15/  

When examining the issue of intent, it is important to distinguish between the implied intent of Congress when enacting federal law to create a cause of action and the implied intent of the parties to a contract to benefit a third party under state law. Thus, courts have held that even though there is no implied private right of action in the Medicaid or Medicare statutes, state law permitting third party claims can be utilized to enforce them./16/ Nevertheless, courts have relied upon the purpose of federal statutes, such as the purpose of the Medicaid statute to provide medical care to needy people, in determining whether Congress intended to benefit eligible third parties./17/

Despite the apparent breadth of § 302, several courts have denied third-party rights based on Restatement (Second) § 313, which deals specifically with government contracts./18/ The Rule provides:

(1)  The rules stated in this Chapter apply to contracts with a government or governmental agency except to the extent that application would contravene the policy of the law authorizing the contract or prescribing remedies for its breach.

(2)  In particular, a promisor who contracts with a government or governmental agency to do an act for or render a service to the public is not subject to contractual liability to a member of the public for consequential damages resulting from performance or failure to perform unless

(a)  the terms of the promise provide for such liability; or

(b)  the promisee is subject to liability to the member of the public for the damages and a direct action against the promisor is consistent with the terms of the contract and with the policy of the law authorizing the contract and prescribing remedies for its breach./19/

Section 313(2)(b) has been commonly interpreted to establish a presumption against third-party enforceability “unless the contract contains specific language providing [plaintiffs] with the right” to enforce its terms./20/ Numerous commentators contend, however, that third-party claims for injunctive relief under government contracts should be analyzed solely under Restatement (Second) § 302./21/ Indeed, Section 313 speaks only to claims for consequential damages./22/

A line of decisions from the Federal Circuit holds that Section 313(2) applies only to suits “against promisors who had contracted with the government to render services to the general public and, therefore, [is] not relevant to third-party beneficiary analysis.”/23/ Commentators explain that Section 313(2) is intended to apply to commercial contracts with the government, not to public-benefits programs such as subsidized housing, Medicaid, and Medicare./24/ This view is supported both by Section 313(1), which focuses on “the policy of the law authorizing the contract,” and by the illustrations in Section 313, which include contracts with mail carriers, utility companies, railway companies, and construction firms./25/ Yet, while the prospect of money judgments against commercial contractors might become an impediment to public works projects, injunctive enforcement of public benefits contracts by individual beneficiaries may further the goals of those programs./26/ In addition, it may be possible to argue that the contract at issue is not intended to benefit the public generally, but a defined group of person, thus rendering Section 313 inapplicable./27/

Some contracts between the government and a private entity specifically state that the contract is not intended to create rights in third parties.  In recent cases, courts have overwhelmingly held that such provisions defeat third-party beneficiary claims./28/

5.3.B. Applicable Law

In general, state law governs third-party contract claims against private parties and local agencies./29/ This is true even where the contract is with a federal agency under a federal-state program so long as no federal agency is a party to the suit. However, in the less common situation where "substantial rights or duties of the United States hinge on [the case’s] outcome,” federal common law applies./30/

State courts vary in their receptivity to third-party claims, with some applying a “strong presumption” against finding third-party rights, and at the other extreme, others utilizing a presumption in favor of third-party rights./31/ For example, in rejecting the third-party claims of housing residents seeking to enforce relocation rights when their homes were demolished, the court noted that Illinois law is “much more stringent” than federal law, and concluded that the agreement did not show that the parties “unequivocally intended to confer a benefit enforceable by Plaintiffs.”/32/

The Restatement (Second) of Contracts Section 212(2) provides that the interpretation of contracts is a question of law except where “it depends on the credibility of extrinsic evidence or on a choice among reasonable inferences to be drawn from extrinsic evidence.” State courts, however, vary widely as to whether third-party beneficiary status is a question of fact, law, or a mixed question of law and fact./33/

5.3.C. Available Relief

Injunctive relief is available to remedy contract violations harming intended third-party beneficiaries. Sections 357, 365 and 366 of the Restatement (Second) make clear that both negative and mandatory injunctions (in the form of “forbearance”) are authorized as relief in third party beneficiary actions.

However, courts have split on the question of whether the Restatement (Second) Section  313 bars damages awards to third-party beneficiaries in suits involving government contracts. Section 313(2) provides that for damages claims involving government contracts, the plaintiff must demonstrate that the contract evinces a specific intent to benefit the third party. Indeed, in a recent case permitting third-party claims for injunctive and declaratory relief to proceed, the Alaska Supreme Court stated that the Restatement (Second) Section 313 does not subject government contractors to "liability for consequential damages resulting from their performance or failure to perform."/34/ Yet, several other recent cases, including one from the Alaska Supreme Court, have permitted third-party damages claims to proceed, without analyzing § 313./35/


1. For a discussion of suits against state actors under 42 U.S.C. § 1983, see Chapters 5.1.A and 5.1.B.

2. Such contract actions should not be confused with the analogous, but separate, claim that one’s client is the third-party beneficiary of various provisions of a federal statute, such as the Medicaid Act, enacted pursuant to Congress’ spending power under the Commerce Clause. Some courts have suggested that such statutes create a relationship between the federal and state governments that is akin to a contract. See e.g., Pharmaceutical Research and Manufacturers of America v. Walsh, 538 U.S. 644, 683 (2003) (Thomas, J., concurring).

3. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937 (2009); Bell Atlantic Corporation v. Twombly, 550 U.S. 554 (2007).

4. See Zaborowski v. Hospitality Care Center of Hermitage, Incorporated, 60 Pa. D. & C.4th 474, 499 n. 19 (Pa. Comm. Pl. 2002). The plaintiff did not submit a copy of the provider agreement, and this may have contributed to the court’s conclusion that the complaint did not adequately allege that the state intended the resident to be a beneficiary of the provider agreement.

5. See Rochelle Bobroff and Harper Jean Tobin, Third-Party Beneficiary Claims: Recent Cases Against Private Parties and Local Agencies, 42 Clearinghouse Review 99 (Jul.-Aug. 2008); Steve Hitov and Gill Deford,   The Impact of Privatization on Litigation, 35 Clearinghouse Review 590 (Jan.-Feb. 2002); see also Nordbye v. BRCP/GM Ellington, 266 P.3d 92, 95-97 (Or. Ct. App. 2011) (holding former tenants could enforce rent and use restrictions in extended low-income housing commitment).

6. Astra USA, Incorporated v. Santa Clara County, 131 S. Ct. 1342 (2001).

7. Restatement (Second) of Contracts § 302, Reporter’s Note (1981) (cases from forty states citing or adopting Section 302). The advocate will have to determine whether applicable state law adopts the Restatement. If not, further research is necessary to determine the applicable legal standard.

8. Restatement (Second) of Contracts § 302.

9. Nelson Construction v. United States, 79 Fed. Cl. 81, 95 (Ct. Cl. 2007); Fort Lincoln Civic Association. v. Fort Lincoln New Town Corporation, 944 A.2d 1055, 1064 (D.C. 2008).

10. One court has suggested that if Section 8 tenants are not the intended beneficiaries of a contract between HUD and a private landlord, then “the legitimacy of the multi-billion dollar Section 8 program is placed in grave doubt.” Holbrook v. Pitt, 643 F.2d 1261, 1271 (7th Cir. 1981). A similar conclusion was reached in the Medicaid context. Smith v. Chattanooga Medical Investors, Incorporated, 62 S.W.3d 178 (Tenn. Ct. App. 2001). Thus, the fact that one of the parties to the contract, although not the one being sued, is a government entity, certainly does not foreclose an enforcement action against the private entity, and may in some circumstances even facilitate it.

11. Bowhead Information Technology Services v. Catapult Technology, Limited, 377 F. Supp. 166, 171 (D.D.C. 2005) (citing Nortel Networks, Incorporated v. Gold and Appel Transfer, S. A., 298 F. Supp. 2d 81, 90 (D.D.C. 2004) (citing R. A. Weaver and Associates v. Haas and Haynie Corporation, 663 F.2d 168, 175 (D.C. Cir. 1980)); see also Restatement 2d of Contracts § 308 (“It is not essential to the creation of a right in an intended beneficiary that he be identified when a contract containing the promise is made.”); County of Santa Clara v. Astra USA, Incorporated, 540 F.3d 1094, 1101 (9th Cir. 2008) (third parties need not point to “a provision expressly granting the third party the right to sue”). The expression of intent to benefit the third-party beneficiary may be implied in the contract so long as the intent is unequivocally to benefit the third parties directly. Heroth v. Kingdom of Saudi Arabia, 565 F. Supp.2d 59, 65 (D.D.C. 2008), aff’d, 2009 U.S. App. LEXIS 9631 (D.C. Cir. Apr. 24, 2009); Fort Lincoln, 944 A.2d at 1064.

12. Flexfab v. United States, 424 F.3d 1254, 1260 (Fed. Cir. 2005) (internal citations omitted).

13.   Rathke v. Corrections Corporation of America, 153 P.3d 303 (Alaska 2007); Smallwood v. Central Peninsula General Hospital, 151 P.3d 319 (Alaska 2006).

14. Ogunde v. Prison Health Services, Incorporated, 645 S.E.2d 520, 526 (Va. 2007).

15. Smith v. Chattanooga Medical Investors, Incorporated, 62 S.W.3d 178, 186 (Tenn. Ct. App. 2001).

16. Brown v. Sun Healthcare Group, Incorporated, 476 F. Supp. 2d 848, 853 (E.D. Tenn. 2007); Brogdon v. National Healthcare Corporation, 103 F. Supp. 2d 1322, 1334 (N.D. Ga. 2000).

17. Smallwood, 151 P.3d at 325. See also Holbrook v. Pitt, 643 F.2d 1261, 1271 (7th Cir. 1981).

18 See, e.g., Deborah Zalesne, Enforcing the Contract at All (Social) Costs: The Boundary Between Private Contract Law and the Public Interest, 11 Tex.Wesleyan L. Rev. 579, 603-04 (2005) (criticizing contrary cases); Michele Estrin Gilman, Legal Accountability in an Era of Privatized Welfare, 89 Cal. L. Rev. 569, 636 (2001); Robert S. Adelson, Third Party Beneficiary and Implied Rights of Action Analysis: The Fiction of One Governmental Intent, 94 Yale L. J.875, 879 nn. 21, 24 (1985); see also Restatement (Second) of Contracts § 313 cmt. A (1981) (noting “excessive financial burden” as a chief reason for limiting claims under third-party contracts).

19. See Beckett v. Air Line Pilots Association, 995 F.2d 280, 289 (D.C. Cir. 1993); Schuerman v. United States, 30 Fed. Cl. 420, 429 (1994) (“The scope of section 313 is limited and applies only to suits for consequential damages”).

20. See, e.g., Kremen v. Cohen, 337 F.3d 1024 (9th Cir. 2003) (interpreting § 313 to apply to all claims under government contracts and holding that no third-party claim lies under a government contract unless the contract shows an intention to grant the third-party enforceable rights);  Briggs v. Oklahoma ex rel. Department of Human Services, 472 F. Supp. 2d 1288, 1293 (W.D. Okla. 2007) (invoking § 313 to reject a parent’s claim against a non-profit that contracted to provide court advocates in family court cases); Fort Lincoln Civic Association, Incorporated. v. Fort Lincoln New Town Corporation.944 A.2d 1055, 1065 (D.C. 2008) (invoking § 313 to reject residents’ claims under urban redevelopment contract).

21. Jama v. U.S. Immigration and Naturalization Service, 334 F. Supp.2d 662, 687 (D.N.J. 2004) ((following Nguyen v. U.S. Catholic Conference, 719 F.2d 52 (3d Cir. 1983)).

22. Flexfab, LLC v. United States, 62 Fed. Cl. 139, 147 (2004), aff’d, 424 F.3d 1254 (Fed. Cir. 2005) (following Schuerman v. United States, 30 Fed. Cl. 420 (1994), and Montana v. United States, 124 F.3d 1269, 1273 (Fed. Cir. 1997)).  But see Fort Lincoln, 944 A.2d at 1068 (acknowledging Montana’s repudiation of “intent to give a right” test, but nevertheless construing it to require “reasonable reliance” on an “intention to confer a right”).

23. See, e.g., Zalesne, supra note 493, at 603-4; Justin Massey, Applying the Third Party Beneficiary Theory of Contracts to Enforce Clean Water Act § 404 Permits: A California Case Study, 18 J. Envtl. L. And Litig. 129, 142-43 (2003); Adelson, supra note 493, at 879 n. 21.

24. Restatement (Second) of Contracts § 313.

25. Restatement (Second) of Contracts § 313 illus. 1-6.

26. See, e.g., County of Santa Clara v. Astra USA, Incorporated, 540 F.3d 1094, 1103 (9th Cir. 2008).

27. See Womhoener Pressen v. Ceres Marine Terminals, Incorporated, 5 F.3d 734, 743 (4th Cir. 1993) (“It is sufficient [for third-party beneficiary analysis] that the terms express a clear intent to extend benefits to a well-defined class of readily identifiable persons”) (emphasis in original) (citations omitted); King v. Employers National Insurance Company, 928 F.2d 1438, 1442 (5th Cir. 1991) (third-party beneficiary status arises where contract “confer[s] specific benefits” on third party); Beverly v. Macy, 702 F.2d 931, 942 (11th Cir. 1983) (holding that policyholders were intended beneficiaries of government contract with insurance company “because the obligation referred to a specific class of individuals clearly contemplated by the contract and identifiable at the time the obligation arose”); Kawa v. United States, 86 Fed. Cl. 575, 588 (Fed. Cl. 2009) (“The intended beneficiary need not be specifically or individually identified in the contract, but must fall within a class clearly identified to be benefited thereby.”) (quoting Montana, 124 F.3d at 1273).

28. See e.g., Anderson v. D.C. Housing Authority, 923 A.2d 853, 863 (D.C. 2007); Kirby v. Richmond Redevelopment and Hous. Auth., No. 3:04-791, 2005 WL 5864797, at *6 (E.D. Va. 2005); Dewakuku v. Martinez, 271 F.3d 1031 (Fed. Cir. 2001); Moore v. Gaither, 767 A.2d 278 (D.C. 2001); Garreaux v. United States, 544 F.Supp.2d 885, 895 (D.S.D. 2008).

29 See, e.g., Richards v. City of New York, 433 F. Supp. 2d 404, 430 (S.D.N.Y. 2006); Johnson v. City of Detroit, 319 F. Supp. 2d 756 (E.D. Mich. 2004); Wallace v. Chicago Housing Authority, 298 F. Supp. 2d 710, 723–24 (N.D. Ill. 2003); 5th Bedford Pines Apartments Limited. v. Brandon, 262 F. Supp. 2d 1369, 1377–78 (N.D. Ga. 2003).

30Miree v. Dekalb County, 433 U.S. 25, 31 (1977); see also Audio Odyssey, Limited v. United States, 255 F.3d 512, 520-521 (8th Cir. 2001). Compare, e.g., Owens v. Haas, 601 F.2d 1242, 1249–50 (2d Cir. 1979) (third-party claim by federal prisoner against county officers, for injuries he suffered after a transfer to county custody under federal contract, implicates federal duty to protect prisoners), with Smith v. Correctional Corporation of America, 19 Fed. App. 318, 320 (6th Cir. 2001) (no federal jurisdiction over contract claim by District of Columbia prisoner against private operator based on contract with District).

31See Bobroff and Tobin, supra note 485, at 101-102. 

32. Wallace v. Chicago Housing Authority, 298 F. Supp. 2d 710, 723–24 (N.D. Ill. 2003).

33. Compare, e.g., In re Telluride Global Development Limited Liability Company, 380 B.R. 585, 594 (10th Cir. 2007) (question of fact under Colorado law), with Basic Capital Management v. Dynex Commercial, Incorporated, 254 S.W.3d 508, 516 (Tex. Ct. App. 2008) (question of law), and AgGrow Oils, Limited Liability Corporation v. National Union Fire Insurance Company, 420 F.3d 751, 755 (8th Cir. 2005) (question of law in North Dakota), and Flexfab, 424 F.3d at 1259 (mixed question).  See also Restatement (Second) of Contracts § 212(2) (interpretation of contracts is a question of law except where “it depends on the credibility of extrinsic evidence or on a choice among reasonable inferences to be drawn from extrinsic evidence”).

34. Smallwood v. Central Peninsula General Hospital, 151 P.3d 319, 325 (Alaska 2006)

35. See Rathke v. Corrections Corporation of America, 153 P.3d 303 (Alaska 2007); Ogunde v. Prison Health Services, Incorporated, 645 S.E.2d 520 (Va. 2007); Brown v. Sun Healthcare Group, Incorporated, 476 F. Supp. 2d 848, 853 (E.D. Tenn. 2007).

Updated 2013 by Kent Qian