Implied cause of action is a term used in
United States statutory and constitutional law for circumstances when a
court will determine that a law that creates rights also allows private parties to bring a lawsuit, even though no such remedy is explicitly provided for in the law. Implied causes of action arising under the
Constitution of the United States are treated differently from those based on
statutes.
Constitutional causes of action Perhaps the best-known case creating an implied cause of action for
constitutional rights is
Bivens v. Six Unknown Named Agents,
403 U.S. 388 (1971). In that case, the
United States Supreme Court ruled that an individual whose
Fourth Amendment freedom from unreasonable search and seizures had been violated by federal agents could sue for the violation of the Amendment itself, despite the lack of any federal statute authorizing such a suit. The existence of a remedy for the violation was implied from the importance of the right violated. In a later case,
Schweiker v. Chilicky,
487 U.S. 412 (1988), the Supreme Court determined that a cause of action would not be implied for the violation of rights where the
U.S. Congress had already provided a remedy for the violation of rights at issue, even if the remedy was inadequate.
Statutory causes of action Federal law An implied private right of action is not a cause of action expressly created by a statute. Rather, a court interprets the statute to silently include such a cause of action. Since the 1950s, the United States Supreme Court "has taken three different approaches, each more restrictive than the prior, in deciding when to create private rights of action." In
J.I. Case Co. v. Borak (1964), a case under the
Securities Exchange Act of 1934, the Court, examining the statute's legislative history and looking at what it believed were the purposes of the statute, held that a private right of action should be implied under § 14(a) of the Act. Under the circumstances, the Court said, it was "the duty of the courts to be alert to provide such remedies as are necessary to make effective the congressional purpose." In
Cort v. Ash (1975), the issue was whether a civil cause of action existed under a criminal statute prohibiting corporations from making contributions to a presidential campaign. The Court said that no such action should be implied, and laid down four factors to be considered in determining whether a statute implicitly included a private right of action: • Whether the plaintiff is part of the class of persons "for whose especial benefit" the statute was enacted, • Whether the legislative history suggests that Congress intended to create a cause of action, • Whether granting an implied cause of action would support the underlying remedial scheme set down in the statute, and • Whether the issue would be one that is traditionally left to state law. The Supreme Court used the four-part
Cort v. Ash test for several years, and in applying the test, "[f]or the most part, the Court refused to create causes of action." An important application of the test, however, came in
Cannon v. University of Chicago (1979), which recognized an implied private right of action. There, a plaintiff sued under
Title IX of the Education Amendments of 1972, which prohibited sex discrimination in any federally funded program. The Court, stating that the female plaintiff was within the class protected by the statute, that Congress had intended to create a private right of action to enforce the law, that such a right of action was consistent with the remedial purpose Congress had in mind, and that discrimination was a matter of traditionally federal and not state concern. Justice
Powell, however, dissented and criticized the Court's approach to implied rights of action, which he said was incompatible with the doctrine of
separation of powers. It was the job of Congress, not the federal courts, Justice Powell said, to create causes of action. Therefore, the only appropriate analysis was whether Congress intended to create a private right of action. "Absent the most compelling evidence of affirmative congressional intent, a federal court should not infer a private cause of action." This became a priority for Justice Powell and a battleground for the Court.
Borak, which was also applied under the fourth factor in
Cort v. Ash, was singled out by Powell in his
Canon dissent: At issue was an implied right under another section of the Securities Exchange Act of 1934, and the Court said that the first three factors mentioned in
Cort v. Ash were simply meant to be "relied upon in determining legislative intent." "The ultimate question," the Court concluded, "is one of legislative intent, not one of whether this Court thinks that it can improve upon the statutory scheme that Congress enacted into law." Despite Justice Powell's admonishment of judicial overreach in his
Canon dissent, the Court applied the
Cort factor test again in
Thompson v. Thompson (1988). In
Karahalios v. National Federation of Federal Employees (1989) a unanimous court recognized
Cort v. Ash as a test for the implication of private remedies. The
Cort v. Ash test has continued to be cited in federal courts, and Justice
Neil Gorsuch cited the fourth factor in
Rodriguez v. FDIC (2020) to vacate a court of appeals judgment that applied a
federal common law test instead of state law.
State law Many states still use the first three
Cort factors for their general test for determining whether an implied private cause of action exists under a state statute, including Colorado, Connecticut, Hawaii, Iowa, New York, Pennsylvania, Tennessee, West Virginia, and Washington. Historically, Texas courts had wandered around in a chaotic fashion between the
Cort test and a liberal construction test roughly similar to the old
Borak test, but in 2004, the
Texas Supreme Court overruled both and adopted the textualist
Sandoval test. Some states have developed their own tests independently of the
Borak,
Cort, and
Sandoval line of federal cases. For example, before 1988, California courts used a vague liberal construction test, under which
any statute "embodying a public policy" was privately enforceable by any injured member of the public for whose benefit the statute was enacted. This was most unsatisfactory to conservatives on the
Supreme Court of California, such as Associate Justice
Frank K. Richardson, who articulated a strict constructionist view in a 1979
dissenting opinion. As Richardson saw it, the Legislature's
silence on the issue of whether a cause of action existed to enforce a statute should be interpreted as the Legislature's intent
not create such a cause of action. In November 1986, Chief Justice
Rose Bird and two fellow liberal colleagues were ejected from the court by the state's electorate for opposing
the death penalty. Bird's replacement, Chief Justice
Malcolm M. Lucas, authored an opinion in 1988 that adopted Richardson's strict constructionist view with regard to the interpretation of the California Insurance Code. A 2008 decision by the Court of Appeal and a 2010 decision by the Supreme Court itself finally established that Justice Richardson's strict constructionism as adopted by the Lucas court would
retroactively apply to all California statutes. In the 2010 decision in
Lu v. Hawaiian Gardens Casino, Justice Ming Chin wrote for a unanimous court that "we begin with the premise that a violation of a state statute does not necessarily give rise to a private cause of action." ==Case law==