CAUSES OF ACTION

Question 1

CAUSES OF ACTION

Generally

Answer 1

A cause of action determines whether plaintiff can bring their case. If someone has the mechanism to bring their case, normally a federal question will be found to exist; but if law provides a legal duty without an express right to proceed, sometimes federal courts will read law to imply plaintiff’s right to proceed, thereby finding a federal question exists. This is called an implied cause of action. Implied causes of action are federal common law.

Question 2

EXPRESS CAUSES OF ACTION

Answer 2

There is a clear way/avenue for plaintiff to bring claim:

• §1983 civil cases
  i. Establishes federal COA against state actors if…
  a. Acted under color of state law
  b. Violated Constitutional right
  ii. Thus, if you get a §1983 claim, then that means a federal question exists and there is no need to go through a fully-fledged federal question statutory analysis…BUT YOU STILL NEEDTO PROVE VIOLATION OF CONSTITUTIONAL RIGHT meeting the elements of whatever claim that is (cannot just say, “My Due Process rights were violated,” plaintiff has to actually make out that claim).
• APA suits
• Federal Tort claims
• Other statutes with express COA (FHA, FLSA, etc.)

Question 3

IMPLIED CAUSES OF ACTION

Generally

Answer 3

When there is no express federal COA, plaintiff must ask the court to IMPLY a federal COA.

• Defendant must raise the DEFENSE that plaintiff does not have a federal COA. If not, it is waived.
• If defendant raises defense, plaintiff has the BURDEN of proving that a federal COA exists.
  i. It’s a lot harder to argue implied COA—but always try to argue both express and implied if possible.

Question 4

Two Types of Implied Causes of Action:

Answer 4

1. Constitutional (Bivens) THE FEDERAL VERSION OF §1983

2. Statutory (Cort v. Ash)

Question 5

IMPLIED CAUSES OF ACTION

Type #1: Constitutional (Bivens)

Answer 5

1. Constitutional (Bivens) THE FEDERAL VERSION OF §1983
   Must look at if there are SPECIAL FACTORS COUNSELING HESITATION.a. Bivens claim is when court IMPLIES constitutional COA for money damages.
   i. Under Bivens, a private party can be sued if they are found to have acted “under color of law” (NOT same as state action 14A requirement).
   1. See Adickes v. Kress (Court has held that certain government-created corporations act under color of law. If the defendant’s conduct is attributable to the government, then you can be said to be acting under color of law).
   ii. If person acted in personal capacity, can still be sued under “color of law.”b. Expansion of Bivens
   i. Davis v. Passman (no exemption to members of Congress from Title VII, Bivens DPC/EPC claim proper).
   ii. Carlson v. Green (no preemption by FTCA for Bivens claim by family of inmate who died in prison as a result of 8A violation).c. Retreat from Bivens
   i. Bush v. Lucas (Bivens claim barred where civil remedies available).
   ii. Schweiker v. Chilicky (retreat from Bivens, existence of Congressional remedial scheme is a “special factor counseling hesitation”).
   iii. Chappel v. Wallace (no Bivens claim for minority military personnel complaining Navy gave discriminatory assignments).
   iv. California v. Sierra Club (narrowing Bivens, in absence of strong indicia of federal COA, the court will not create one).
   v. Ziglar v. Abbasi (court cut back on Bivens and applied qualified immunity to §1985).

Question 6

IMPLIED CAUSES OF ACTION

Type #2: Statutory (Cort v. Ash)

Answer 6

• Must look at FIRST TWO CORT FACTORS to see if there is a STRONG INDICIA of CONGRESSIONAL INTENT to create COA.*
  a. Cort claim is when court IMPLIES statutory COA for money damages based on a 4 factor test: *basically ZOI for implied COA
  i. Is plaintiff one of a class for whose especial benefit the statute was enacted?
  1. Look at language of statute itself.
  ii. Is there an indication of legislative intent (explicit or implicit) either to create or deny a remedy?
  iii. Would remedy be consistent with underlying purpose of the legislation?
  iv. Is this area traditionally relegated to state law?

Question 7

Implied Constitutional Causes of Action:

Answer 7

1. Judiciary has special role to ensure there is a forum for constitutional rights
   a. In general, federal courts CAN IMPLY a constitutional COA…where there is a RIGHT, courts can provide a REMEDY.
   1. Bivens v. Six Unknown Officers (where there is right, federal courts can provide a remedy, no special factors counseling hesitation, so yes implied COA).
   i. 4A provides a right, so Court can provide a remedy in the form of money damages.
   2. Davis v. Passman (no exemption to members of Congress from Title VII, Bivens DPC/EPC claim proper).
   3. Carlson v. Green (no preemption by FTCA for Bivens claim by family of inmate who died in prison as a result of 8A violation).
2. Court CAN IMPLY a constitutional cause of action for money damages UNLESS…
   a. There are special factors that counsel hesitation (Bivens):
   1. Question of federal fiscal policy
   2. Defendant has not violated specific constitutional right, but federal employee who acts outside the scope of his/her constitutional authority
   i. No vicarious liability
   3. Design of government program suggests Congress has provided “adequate” remedial mechanisms
   i. Exclusive/adequate/effective statutory alternative remedy
   ii. Statutory remedies are adequate even they don’t allow a full range of relief (such as damages for emotional distress and attorneys’ fees)
   1. Bush v. Lucas (Bivens claim barred where civil remedies available).
   iii. If partial relief is available, it may be interpreted that Congress intended it to be the full remedy-a comprehensive scheme.
   1. Schweiker v. Chilicky (retreat from Bivens, existence of Congressional remedial scheme is a “special factor counseling hesitation”).
3. Co nstitutional violation associated with military service
   i. Chappel v. Wallace (no Bivens claim for minority military personnel complaining Navy gave discriminatory assignments).

Question 8

Implied Statutory Causes of Action:

Answer 8

1. Court may imply statutory COA for money damages if meets 4 factor test (Cort v. Ash):
   a. Is plaintiff one of a class for whose especial benefit the statute was enacted? Look at language of statute itself
   b. Is there an indication of legislative intent (explicit or implicit) either to create or deny a remedy?
   c. Would remedy be consistent with underlying purpose of the legislation?
   d. Is this area traditionally relegated to state law?
2. Upshot: in absence of strong indicia of Congressional intent to create COA, the Court will not create one.
   a. Karahalios (even if that remedy is found in another statute, the court should be reluctant to imply another).
   1. This is putting Congress on notice that they should be unambiguous in that they wanted to create a private COA.
3. Note: first two factors in Cort are DISPOSITIVE: i.e. IF THE FIRST TWO CRITERIS OF THE TEST ARE NOT MET, THE LAST TWO ARE IRRELEVANT
   a. California v. Sierra Club (no Congressional intent to provide remedy, so no private COA).
4. Burden is on the plaintiff to affirmatively demonstrate Congress’ intent to create a COA,
   a. BUT in a §1983 action, which also comes down to Congressional intent, the defendant must show that Congress intended to foreclose a §1983 action.