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Page 174
484 U.S. 174 
108 S.Ct. 513 98 L.Ed.2d 512 David A. THOMPSON, Petitioner
v.
Susan A. THOMPSON, aka Susan A. Clay.
No. 86-964.
Argued Oct. 6, 1987.
Decided Jan. 12, 1988.
Syllabus
Under the Parental Kidnaping
Prevention Act of 1980 (PKPA or Act), States
are required to afford full faith and credit
to valid child custody determinations
entered by a sister State's courts. When a
California state court's award of joint
custody to respondent and petitioner over
their son became infeasible because of
respondent's decision to move to Louisiana,
the court granted respondent sole custody
pending an investigator's report, whereupon
the court intended to make a more studied
custody determination. After respondent
obtained a Louisiana court order enforcing
the California decree and awarding her sole
custody, the California court, having
received and reviewed the investigator's
report, entered an order granting sole
custody to petitioner. Without first
attempting to enforce the California decree
in Louisiana, petitioner filed suit in
Federal District Court seeking an order
declaring the Louisiana decree invalid and
the California decree valid, and enjoining
the enforcement of the Louisiana decree. The
court dismissed the complaint and the Court
of Appeals affirmed on the ground that
petitioner had failed to state a claim upon
which relief could be granted.
Held: The PKPA does not
provide an implied cause of action in
federal court to determine which of two
conflicting state custody decisions is
valid. The context in which the PKPA was
enactedthe existence of jurisdictional
deadlocks among the States in custody cases
and a nationwide problem of interstate
parental kidnapingsuggests that Congress'
principal aim was to extend the requirements
of the Full Faith and Credit Clause to
custody determinations, and not to create an
entirely new cause of action. The language
and placement of the Act reinforce this
conclusion, in that the Act is an addendum
to, and is therefore clearly intended to
have the same operative effect as, the
federal full faith and credit statute, the
Act's heading is "Full faith and credit
given to child custody determinations," and,
unlike statutes that explicitly confer a
right on a specified class of persons, the
Act is addressed to States and to state
courts. Moreover, in discussing the
congressional rejection of a competing
legislative proposal that would have
extended the district courts' diversity
jurisdiction to custody decree enforcement
actions, the PKPA's legislative history
provides an unusually clear indication that
Congress did not intend the federal courts
to play the enforcement role.
Page 175
The fact that the cause of action
petitioner seeks to infer is narrower than
the congressionally rejected alternative is
not controlling, since the federal courts
would still be entangled in traditional
state-law questions that they have little
expertise to resolve. The argument that
failure to infer a cause of action would
render the PKPA nugatory is also not
persuasive, since it is based on the
unacceptable presumption that the States are
either unable or unwilling to enforce the
Act's provisions, and since ultimate review
remains available in this Court for truly
intractable deadlocks. Pp. 179-187.
798 F.2d 1547 (CA9 1986),
affirmed.
MARSHALL, J., delivered the
opinion of the Court, in which REHNQUIST,
C.J., and BRENNAN, WHITE, BLACKMUN, and
STEVENS, JJ., joined. O'CONNOR, J., filed an
opinion concurring in part and concurring in
the judgment, post, p. ----. SCALIA,
J., filed an opinion concurring in the
judgment, post, p. ----.
Ronald W. Weiss, Peoria, Ill.,
for petitioner.
Kenneth Rigby, Shreveport, La.,
for respondent.
Justice MARSHALL delivered the
Opinion of the Court.
We granted certiorari in this
case to determine whether the Parental
Kidnaping Prevention Act of 1980, 28 U.S.C.
§ 1738A, furnishes an implied cause of
action in federal court to determine which
of two conflicting state custody decisions
is valid.
I
The Parental Kidnaping
Prevention Act (PKPA or Act) imposes a duty
on the States to enforce a child custody
determination entered by a court of a sister
State if the determina-
Page 176
tion is consistent with the provisions of
the Act.1 In order for a state
court's custody decree to be consistent with
the provisions of the Act, the State must
have jurisdiction under its own local law
and one of five conditions set out in
Page 177
§ 1738A(c)(2) must be met. Briefly put,
these conditions authorize the state court
to enter a custody decree if the child's
home is or recently has been in the State,
if the child has no home State and it would
be in the child's best interest for the
State to assume jurisdiction, or if the
child is present in the State and has been
abandoned or abused. Once a State exercises
jurisdiction consistently with the
provisions of the Act, no other State may
exercise concurrent jurisdiction over the
custody dispute, § 1738A(g), even if it
would have been empowered to take
jurisdiction in the first instance,2
and all States must accord full faith and
credit to the first State's ensuing custody
decree.
As the legislative scheme
suggests, and as Congress explicitly
specified, one of the chief purposes of the
PKPA is to "avoid jurisdictional competition
and conflict between State courts." Pub.L.
96-611, 94 Stat. 3569, § 7(c)(5), note
following 28 U.S.C. § 1738A. This case
arises out of a jurisdictional stalemate
that came to pass notwithstanding the
strictures of the Act. In July 1978,
respondent Susan Clay (then Susan Thompson)
filed a petition in Los Angeles Superior
Court asking the court to dissolve her
marriage to petitioner David Thompson and
seeking custody of the couple's infant
Page 178
son, Matthew. The court initially awarded
the parents joint custody of Matthew, but
that arrangement became infeasible when
respondent decided to move from California
to Louisiana to take a job. The court then
entered an order providing that respondent
would have sole custody of Matthew once she
left for Louisiana. This state of affairs
was to remain in effect until the court
investigator submitted a report on custody,
after which the court intended to make a
more studied custody determination. See App.
6.
Respondent and Matthew moved to
Louisiana in December 1980. Three months
later, respondent filed a petition in
Louisiana state court for enforcement of the
California custody decree, judgment of
custody, and modification of petitioner's
visitation privileges. By order dated April
7, 1981, the Louisiana court granted the
petition and awarded sole custody of Matthew
to respondent. Two months later, however,
the California court, having received and
reviewed its investigator's report, entered
an order awarding sole custody of Matthew to
petitioner. Thus arose the current impasse.
In August 1983, petitioner
brought this action in the District Court
for the Central District of California.
Petitioner requested an order declaring the
Louisiana decree invalid and the California
decree valid, and enjoining the enforcement
of the Louisiana decree. Petitioner did not
attempt to enforce the California decree in
a Louisiana state court before he filed suit
in federal court. The District Court granted
respondent's motion to dismiss the complaint
for lack of subject-matter and personal
jurisdiction. Civ. Action No. 83-5221 (Apr.
10, 1984). The Court of Appeals for the
Ninth Circuit affirmed. Although it
disagreed with the District Court's
jurisdictional analyses, the Court of
Appeals affirmed the dismissal of the
complaint on the ground that petitioner had
failed to state a claim upon which relief
could be granted. 798 F.2d 1547 (1986).
Canvassing the background, language, and
legislative history of the PKPA, the Court
of Appeals held that the Act does not cre-
Page 179
ate a private right of action in federal
court to determine the validity of two
conflicting custody decrees. Id., at
1552-1559. We granted certiorari, 479 U.S.
1063, 107 S.Ct. 946, 93 L.Ed.2d 996 (1987),
and we now affirm.
II
In determining whether to infer
a private cause of action from a federal
statute, our focal point is Congress' intent
in enacting the statute. As guides to
discerning that intent, we have relied on
the four factors set out
Cort v. Ash, 422 U.S. 66, 78, 95
S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975),
along with other tools of statutory
construction.
Daily Income Fund, Inc. v. Fox, 464
U.S. 523, 535-536, 104 S.Ct. 831, 838, 78
L.Ed.2d 645 (1984);
California v. Sierra Club, 451 U.S.
287, 293, 101 S.Ct. 1775, 1779, 68 L.Ed.2d
101 (1981);
Touche Ross & Co. v. Redington, 442
U.S. 560, 575-576, 99 S.Ct. 2479, 2488-2489,
61 L.Ed.2d 82 (1979). Our focus on
congressional intent does not mean that we
require evidence that Members of Congress,
in enacting the statute, actually had in
mind the creation of a private cause of
action. The implied cause of action doctrine
would be a virtual dead letter were it
limited to correcting drafting errors when
Congress simply forgot to codify its evident
intention to provide a cause of action.
Rather, as an implied cause of action
doctrine suggests, "the legislative history
of a statute that does not expressly create
or deny a private remedy will typically be
equally silent or ambiguous on the
question."
Cannon v. University of Chicago,
441 U.S. 677, 694, 99 S.Ct. 1946, 1956, 60
L.Ed.2d 560 (1979). We therefore have
recognized that Congress' "intent may appear
implicitly in the language or structure of
the statute, or in the circumstances of its
enactment."
Transamerica Mortgage Advisors, Inc. v.
Lewis, 444 U.S. 11, 18, 100 S.Ct. 242,
246, 62 L.Ed.2d 146 (1979). The intent
of Congress remains the ultimate issue,
however, and "unless this congressional
intent can be inferred from the language of
the statute, the statutory structure, or
some other source, the essential predicate
for implication of a private remedy simply
does not exist."
Northwest Airlines, Inc. v. Transport
Workers, 451 U.S. 77, 94, 101 S.Ct.
1571, 1582, 67 L.Ed.2d 750 (1981). In
this case, the essential predicate for
implication of a private remedy plainly does
not exist. None of the factors
Page 180
that have guided our inquiry in this
difficult area points in favor of inferring
a private cause of action. Indeed, the
context, language, and legislative history
of the PKPA all point sharply away from the
remedy petitioner urges us to infer.
We examine initially the
context of the PKPA with an eye toward
determining Congress' perception of the law
that it was shaping or reshaping.
Merrill Lynch, Pierce, Fenner & Smith,
Inc. v. Curran,
456 U.S. 353, 378, 102
S.Ct. 1825, 1839, 72 L.Ed.2d 182 (1982);
Cort v. Ash, supra,
422 U.S., at 69,
95 S.Ct., at 2084. At the time Congress
passed the PKPA, custody orders held a
peculiar status under the full faith and
credit doctrine, which requires each State
to give effect to the judicial proceedings
of other States, see U.S. Const., Art. IV, §
1; 28 U.S.C. § 1738. The anomaly traces to
the fact that custody orders
characteristically are subject to
modification as required by the best
interests of the child. As a consequence,
some courts doubted whether custody orders
were sufficiently "final" to trigger full
faith and credit requirements, see, e.g.,
Hooks v. Hooks,
771 F.2d 935, 948 (CA6 1985);
McDougald v. Jenson, 596 F.Supp. 680,
684-685 (ND Fla.1984), aff'd, 786 F.2d
1465 (CA11), cert. denied, 479 U.S. 860, 107
S.Ct. 207, 93 L.Ed.2d 137 (1986), and this
Court had declined expressly to settle the
question.
Ford v. Ford, 371 U.S. 187, 192, 83
S.Ct. 273, 276, 9 L.Ed.2d 240 (1962).
Even if custody orders were subject to full
faith and credit requirements, the Full
Faith and Credit Clause obliges States only
to accord the same force to judgments as
would be accorded by the courts of the State
in which the judgment was entered. Because
courts entering custody orders generally
retain the power to modify them, courts in
other States were no less entitled to change
the terms of custody according to their own
views of the child's best interest. See
New York ex rel.
Halvey v. Halvey,
330 U.S. 610, 614-615, 67 S.Ct. 903, 906, 91
L.Ed. 1133 (1947). For these reasons, a
parent who lost a custody battle in one
State had an incentive to kidnap the child
and move to another State to relitigate the
issue. This circumstance contributed to
widespread jurisdictional deadlocks like
this one, and more importantly, to a
national epidemic of parental kid-
Page 181
naping. At the time the PKPA was enacted,
sponsors of the Act estimated that between
25,000 and 100,000 children were kidnaped by
parents who had been unable to obtain
custody in a legal forum. See Parental
Kidnaping Prevention Act of 1979: Joint
Hearing on S. 105 before the Subcommittee on
Criminal Justice of the Judiciary Committee
and the Subcommittee on Child and Human
Development of the Committee on Labor and
Human Resources, 96th Cong., 2d Sess., 10
(1980) (hereinafter PKPA Joint Hearing)
(statement of Sen. Malcolm Wallop).
A number of States joined in an
effort to avoid these jurisdictional
conflicts by adopting the Uniform Child
Custody Jurisdiction Act (UCCJA), 9 U.L.A.
§§ 1-28 (1979). The UCCJA prescribed uniform
standards for deciding which State could
make a custody determination and obligated
enacting States to enforce the determination
made by the State with proper jurisdiction.
The project foundered, however, because a
number of States refused to enact the UCCJA
while others enacted it with modifications.
In the absence of uniform national standards
for allocating and enforcing custody
determinations, noncustodial parents still
had reason to snatch their children and
petition the courts of any of a number of
haven States for sole custody.
The context of the PKPA
therefore suggests that the principal
problem Congress was seeking to remedy was
the inapplicability of full faith and credit
requirements to custody determinations.
Statements made when the Act was introduced
in Congress forcefully confirm that
suggestion. The sponsors and supporters of
the Act continually indicated that the
purpose of the PKPA was to provide for
nationwide enforcement of custody orders
made in accordance with the terms of the
UCCJA. As Acting Deputy Attorney General
Michel testified:
"[C]urrent law in many States
encourages a parent who does not have
custody to snatch the child from the parent
who does and take the child to another State
to relitigate
Page 182
the custody issue in a new
forum. This kind of 'forum shopping' is
possible because child custody orders are
subject to modification to conform with
changes in circumstances. Consequently, a
court deciding a custody case is not, as a
Federal constitutional requirement of the
full faith and credit clause, bound by a
decree by a court of another State even
where the action involves the same parties.
* * * * *
"In essence [the
PKPA] would impose on States a Federal duty,
under enumerated standards derived from the
UCCJA, to give full faith and credit to the
custody decrees of other States. Such
legislation would, in effect, amount to
Federal adoption of key provisions of the
UCCJA for all States and would eliminate the
incentive for one parent to remove a minor
child to another jurisdiction." PKPA Joint
Hearing 48.3
The significance of Congress'
full faith and credit approach to the
problem of child snatching is that the Full
Faith and Credit Clause, in either its
constitutional or statutory incarnations,
does not give rise to an implied federal
cause of action.
Minnesota v. Northern Securities Co.,
194 U.S. 48, 72, 24 S.Ct. 598, 605, 48 L.Ed.
870 (1904); see 13B C. Wright, A.
Miller, & E. Cooper, Federal Practice and
Procedure § 3563, p. 50 (1984). Rather, the
Clause "only prescribes a rule by which
courts, Federal and state, are to be guided
when a question arises in the
Page 183
progress of a pending suit as to the
faith and credit to be given by the court to
the public acts, records, and judicial
proceedings of a State other than that in
which the court is sitting." Northern
Securities, supra, at 72, 24 S.Ct., at
605. Because Congress' chief aim in enacting
the PKPA was to extend the requirements of
the Full Faith and Credit Clause to custody
determinations, the Act is most naturally
construed to furnish a rule of decision for
courts to use in adjudicating custody
disputes and not to create an entirely new
cause of action. It thus is not compatible
with the purpose and context of the
legislative scheme to infer a private cause
of action. See Cort v. Ash,
422 U.S., at 78, 95 S.Ct., at 2088.
The language and placement of
the statute reinforce this conclusion. The
PKPA, 28 U.S.C. § 1738A, is an addendum to
the full faith and credit statute, 28 U.S.C.
§ 1738. This fact alone is strong proof that
the Act is intended to have the same
operative effect as the full faith and
credit statute. Similarly instructive is the
heading to the PKPA: "Full faith and credit
given to child custody determinations." As
for the language of the Act, it is addressed
entirely to States and state courts. Unlike
statutes that explicitly confer a right on a
specified class of persons, the PKPA is a
mandate directed to state courts to respect
the custody decrees of sister States. See
Cannon v. University of Chicago, 441
U.S., at 690, n. 13, 99 S.Ct., at 1954, n.
13; Cort v. Ash, supra,
422 U.S., at 81-82, 95 S.Ct., at 2089-2090. We agree with
the Court of Appeals that "[i]t seems highly
unlikely Congress would follow the pattern
of the Full Faith and Credit Clause and
section 1738 by structuring section 1738A as
a command to state courts to give full faith
and credit to the child custody decrees of
other states, and yet, without comment,
depart from the enforcement practice
followed under the Clause and section 1738."
798 F.2d, at 1556.
Finally, the legislative
history of the PKPA provides unusually clear
indication that Congress did not intend the
fed-
Page 184
eral courts to play the enforcement role
that petitioner urges. Two passages are
particularly revealing. The first of these
is a colloquy between Congressmen Conyers
and Fish. Congressman Fish had been the
sponsor of a competing legislative proposal
ultimately rejected by Congressthat would
have extended the district courts' diversity
jurisdiction to encompass actions for
enforcement of state custody orders. In the
following exchange, Congressman Conyers
questioned Congressman Fish about the
differences between his proposal and "the
Bennett proposal," which was a precursor to
the PKPA.
"Mr. Conyers: Could I just
interject, the difference between the
Bennett proposal and yours: You would have,
enforcing the full faith and credit
provision, the parties removed to a Federal
court. Under the Bennett provision, his bill
would impose the full faith and credit
enforcement on the State court.
"It seems to me that
that is a very important difference. The
Federal jurisdiction, could it not, Mr.
Fish, result in the Federal court litigating
between two State court decrees; whereas, in
an alternate method previously suggested, we
would be imposing the responsibility of the
enforcement upon the State court, and
thereby reducing, it seems to me, the amount
of litigation.
"Do you see any
possible merit in leaving the enforcement at
the State level, rather than introducing the
Federal judiciary?
"Mr. Fish: Well, I
really think that it is easier on the parent
that has custody of the child to go to the
nearest Federal district court. . . .
"Mr. Conyers: Of
course you know that the Federal courts have
no experience in these kinds of matters, and
they would be moving into this other area. I
am just thinking of the fact that they have
[many areas of federal concern and] on the
average of a 21-month docket, you
Page 185
would now be imposing custody
matters which it seems might be handled in
the courts that normally handle that. . . ."
Parental Kidnaping: Hearing on H.R. 1290
before the Subcommittee on Crime of the
House Committee on the Judiciary, 96th
Cong., 2d Sess., 14 (1980).
This exchange suggests that
Congress considered and rejected an approach
to the problem that would have resulted in a
"Federal court litigating between two State
court decrees." Ibid.
The second noteworthy entry in
the legislative history is a letter from
then Assistant Attorney General Patricia
Wald to the Chairman of the House Judiciary
Committee, which was referred to extensively
during the debate on the PKPA. The letter
outlined a variety of solutions to the
child-snatching problem. It specifically
compared proposals that would "grant
jurisdiction to the federal courts to
enforce state custody decrees" with an
approach, such as was proposed in the PKPA,
that would "impose on states a federal duty,
under enumerated standards derived generally
from the UCCJA, to give full faith and
credit to the custody decrees of other
states." Addendum to Joint Hearing 103. The
letter endorsed the full faith and credit
approach that eventually was codified in the
PKPA. More importantly, it "strongly
oppose[d] . . . the creation of a federal
forum for resolving custody disputes."
Id., at 108. Like Congressman Conyers,
the Justice Department reasoned that federal
enforcement of state custody decrees would
increase the workload of the federal courts
and entangle the federal judiciary in
domestic relations disputes with which they
have little experience and which
traditionally have been the province of the
States. That the views of the Justice
Department and Congressman Conyers
prevailed, and that Congress explicitly
opted for a full faith and credit approach
over reliance on enforcement by the federal
courts, provide strong evidence against
inferring a federal cause of action. Cf.
Cort v. Ash,
Page 186
422 U.S., at 82, 95 S.Ct., at 2090
(congressional determination not to create a
private cause of action is dispositive).
Petitioner discounts these
portions of the legislative history. He
argues that the cause of action that he asks
us to infer arises only in cases of an
actual conflict between two state custody
decrees, and thus is substantially narrower
than the cause of action proposed by
Congressman Fish and rejected by Congress.
The Fish bill would have extended federal
diversity jurisdiction to permit federal
courts to enforce custody orders in the
first instance, before a second State had
created a conflict by refusing to do so.
This cause of action admittedly is farther
reaching than that which we reject today.
But the considerations that prompted
Congress to reject the Fish bill also
militate against the more circumscribed role
for the federal courts that petitioner
proposes.
Rogers v. Platt, 259 U.S.App.D.C.
154, 164, 814 F.2d 683, 693 (1987).
Instructing the federal courts to play
Solomon where two state courts have issued
conflicting custody orders would entangle
them in traditional state-law questions that
they have little expertise to resolve.4
This is
Page 187
a cost that Congress made clear it did
not want the PKPA to carry.5
In sum, the context, language,
and history of the PKPA together make out a
conclusive case against inferring a cause of
action in federal court to determine which
of two conflicting state custody decrees is
valid. Against this impressive evidence,
petitioner relies primarily on the argument
that failure to infer a cause of action
would render the PKPA nugatory. We note, as
a preliminary response, that ultimate review
remains available in this Court for truly
intractable jurisdictional deadlocks. In
addition, the unspoken presumption in
petitioner's argument is that the States are
either unable or unwilling to enforce the
provisions of the Act. This is a presumption
we are not prepared, and more importantly,
Congress was not prepared, to indulge. State
courts faithfully administer the Full Faith
and Credit Clause every day; now that
Congress has extended full faith and credit
requirements to child custody orders, we can
think of no reason why the courts'
administration of federal law in custody
disputes will be any less vigilant. Should
state courts prove as obstinate as
petitioner predicts, Congress may choose to
revisit the issue. But any more radical
approach to the problem will have to await
further legislative action; we "will not
engraft a remedy on a statute, no matter how
salutary, that Congress did not intend to
provide."
California v. Sierra Club, 451 U.S.
287, 297, 101 S.Ct. 1775, 1781, 68 L.Ed.2d
101 (1981). The judgment of the Court of
Appeals is affirmed.
It is so ordered.
Page 188
Justice O'CONNOR, concurring in
part and concurring in the judgment.
For the reasons expressed by
Justice SCALIA in Part I of his opinion in
this case, I join all but the first full
paragraph of Part II of the Court's opinion
and judgment.
Justice SCALIA, concurring in
the judgment.
I write separately because in
my view the Court is not being faithful to
current doctrine in its dicta denying the
necessity of an actual congressional intent
to create a private right of action, and in
referring to
Cort v. Ash,
422 U.S. 66, 95 S.Ct.
2080, 45 L.Ed.2d 26 (1975), as though
its analysis had not been effectively
overruled by our later opinions. I take the
opportunity to suggest, at the same time,
why in my view the law revision that the
Court's dicta would undertake moves in
precisely the wrong direction.
I
I agree that the Parental
Kidnaping Prevention Act, 28 U.S.C. § 1738A,
does not create a private right of action in
federal court to determine which of two
conflicting child custody decrees is valid.
I disagree, however, with the portion of the
Court's analysis that flows from the
following statement:
"Our focus on congressional
intent does not mean that we require
evidence that Members of Congress, in
enacting the statute, actually had in mind
the creation of a private cause of action."
Ante, at ----.
I am at a loss to imagine what
congressional intent to create a private
right of action might mean, if it does not
mean that Congress had in mind the creation
of a private right of action. Our
precedents, moreover, give no indication of
a secret meaning, but to the contrary seem
to use "intent" to mean "intent." For
example:
Page 189
"[T]he focus of the inquiry is
on whether Congress intended to create a
remedy. Universities Research Assn., Inc.
v. Coutu, 450 U.S. [754], at 771-772
[101 S.Ct. 1451, at 1462, 67 L.Ed.2d 662
(1981) ]; Transamerica Mortgage Advisors,
Inc. v. Lewis, 444 U.S., at 23-24 [100
S.Ct., at 249]; Touche Ross & Co. v.
Redington [442 U.S.], at 575-576 [99
S.Ct., at 2488-2489]. The federal judiciary
will not engraft a remedy on a statute, no
matter how salutary, that Congress did not
intend to provide."
California v. Sierra Club, 451 U.S.
287, 297, 101 S.Ct. 1775, 1781, 68 L.Ed.2d
101 (1981) (WHITE, J.).
We have said, to be sure, that
the existence of intent may be inferred from
various indicia; but that is worlds apart
from today's Delphic pronouncement that
intent is required but need not really
exist.
I also find misleading the
Court's statement that, in determining the
existence of a private right of action, "we
have relied on the four factors set out in
Cort v. Ash, . . . along with other
tools of statutory construction." Ante,
at 179. That is not an accurate description
of what we have done. It could not be
plainer that we effectively overruled the
Cort v. Ash analysis
Touche Ross & Co. v. Redington, 442
U.S. 560, 575-576, 99 S.Ct. 2479, 2488-2489,
61 L.Ed.2d 82 (1979), and
Transamerica Mortgage Advisors, Inc. v.
Lewis, 444 U.S. 11, 18, 100 S.Ct. 242,
246, 62 L.Ed.2d 146 (1979), converting
one of its four factors (congressional
intent) into the determinative factor,
with the other three merely indicative of
its presence or absence. Compare Cort v.
Ash, supra,
422 U.S., at 78, 95 S.Ct.,
at 2088, with Transamerica, supra,
444 U.S., at 23-24, 100 S.Ct., at 249.
Finally, the Court's opinion
conveys a misleading impression of current
law when it proceeds to examine the
"context" of the legislation for indication
of intent to create a private right of
action, after having found no such
indication in either text or legislative
history. In my view that examination is
entirely superfluous, since context alone
cannot suffice. We have held context to be
relevant to our determination in only two
casesboth of which involved statutory
language that, in the judicial
interpretation of related legislation prior
to the subject statute's enactment, or of
the same legislation prior
Page 190
to its reenactment, had been held to
create private rights of action.
Cannon v. University of Chicago, 441
U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560
(1979);
Merrill Lynch, Pierce, Fenner & Smith,
Inc. v. Curran, 456 U.S. 353, 102 S.Ct.
1825, 72 L.Ed.2d 182 (1982). Since this
is not a case where such textual support
exists, or even where there is any support
in legislative history, the "context" of the
enactment is immaterial.
Contrary to what the language
of today's opinion suggests, this Court has
long since abandoned its hospitable attitude
towards implied rights of action. In the 23
years since Justice Clark's opinion for the
court
J.I. Case Co. v. Borak, 377 U.S. 426,
84 S.Ct. 1555, 12 L.Ed.2d 423 (1964), we
have twice narrowed the test for
implying a private right, first in Cort
v. Ash, supra, itself, and then again in
Touche Ross & Co. v. Redington, supra,
and Transamerica Mortgage Advisors, Inc.
v. Lewis, supra. See also Cannon v.
University of Chicago, supra, 441 U.S.,
at 730, 99 S.Ct., at 1974-1975 (Powell, J.,
dissenting), and California v. Sierra
Club, supra, 451 U.S., at 301, 101
S.Ct., at 1783 (REHNQUIST, J., joined by
Burger, C.J., and Stewart and Powell, JJ.,
concurring). The recent history of our
holdings is one of repeated rejection of
claims of an implied right. This has been
true in 9 of 11 recent private right of
action cases heard by this Court, including
the instant case. See Touche Ross, supra;
Transamerica, supra;
Universities Research Assn., Inc. v. Coutu,
450 U.S. 754, 101 S.Ct. 1451, 67 L.Ed.2d 662
(1981);
Northwest Airlines, Inc. v. Transport
Workers, 451 U.S. 77, 91-94, 101 S.Ct.
1571, 1580-1582, 67 L.Ed.2d 750 (1981);
California v. Sierra Club, supra;
Texas Industries, Inc. v. Radcliff
Materials, Inc.,
451 U.S. 630, 639-640, 101 S.Ct. 2061,
2066-2067, 68 L.Ed.2d 500 (1981);
Middlesex County Sewerage Authority v.
National Sea Clammers Assn., 453 U.S. 1,
13-18, 101 S.Ct. 2615, 2622-2625, 69 L.Ed.2d
435 (1981);
Daily Income Fund, Inc. v. Fox, 464
U.S. 523, 535-536, 104 S.Ct. 831, 838, 78
L.Ed.2d 645 (1984); and
Massachusetts Mut. Life Ins. Co. v.
Russell,
473 U.S. 134, 145-148, 105
S.Ct. 3085, 3092-3094, 87 L.Ed.2d 96 (1985).
But see Merrill Lynch, supra, and
Cannon, supra. The Court's opinion
exaggerates the difficulty of establishing
an implied right when it surmises that
"[t]he implied cause of action doctrine
would be a virtual dead letter were it
limited to correcting drafting errors when
Congress simply forgot to codify its evident
intention to provide a
Page 191
cause of action." Ante, at 179.
That statement rests upon the erroneous
premise that one never implies anything
except when he forgets to say it expressly.
It is true, however, that the congressional
intent test for implying private rights of
action as it has evolved since the
repudiation of Cort v. Ash is much
more stringent than the Court's dicta in the
present case suggest.
II
I have found the Court's dicta
in the present case particularly provocative
of response because it is my view that, if
the current state of the law were to be
changed, it should be moved in precisely the
opposite directionaway from our current
congressional intent test to the categorical
position that federal private rights of
action will not be implied.
As Justice POWELL observed in
his dissent in Cannon, supra 441
U.S., at 730-731, 99 S.Ct., at 1975;
"Under Art. III, Congress alone
has the responsibility for determining the
jurisdiction of the lower federal courts. As
the Legislative Branch, Congress also should
determine when private parties are to be
given causes of action under legislation it
adopts. As countless statutes demonstrate,
including Titles of the Civil Rights Act of
1964, Congress recognizes that the creation
of private actions is a legislative function
and frequently exercises it. When Congress
chooses not to provide a private civil
remedy, federal courts should not assume the
legislative role of creating such a remedy
and thereby enlarge their jurisdiction."
(Footnote omitted.)
It is, to be sure, not beyond
imagination that in a particular case
Congress may intend to create a private
right of action, but chooses to do so by
implication. One must wonder, however,
whether the good produced by a judicial rule
that accommodates this remote possibility is
outweighed by its adverse effects. An
enactment by implication cannot
realistically be regarded as the product of
the difficult lawmaking process our
Constitution has prescribed. Committee
reports,
Page 192
floor speeches, and even colloquies
between Congressmen, ante, at
184185, are frail substitutes for bicameral
vote upon the text of a law and its
presentment to the President.
INS v. Chadha, 462 U.S. 919, 103
S.Ct. 2764, 77 L.Ed.2d 317 (1983). It is
at best dangerous to assume that all the
necessary participants in the law-enactment
process are acting upon the same unexpressed
assumptions. And likewise dangerous to
assume that, even with the utmost
self-discipline, judges can prevent the
implications they see from mirroring the
policies they favor.
I suppose all this could be
said, to a greater or lesser degree, of
all implications that courts derive from
statutory language, which are assuredly
numerous as the stars. But as the likelihood
that Congress would leave the matter to
implication decreases, so does the
justification for bearing the risk of
distorting the constitutional process. A
legislative act so significant, and so
separable from the remainder of the statute,
as the creation of a private right of action
seems to me so implausibly left to
implication that the risk should not be
endured.
If we were to announce a flat
rule that private rights of action will not
be implied in statutes hereafter enacted,
the risk that that course would occasionally
frustrate genuine legislative intent would
decrease from its current level of minimal
to virtually zero. It would then be true
that the opportunity for frustration of
intent "would be a virtual dead letter[,] .
. . limited to . . . drafting errors when
Congress simply forgot to codify its . . .
intention to provide a cause of action."
Ante, at 179. I believe, moreover, that
Congress would welcome the certainty that
such a rule would produce. Surely
conscientious legislators cannot relish the
current situation, in which the existence or
nonexistence of a private right of action
depends upon which of the opposing
legislative forces may have guessed right as
to the implications the statute will be
found to contain.
If a change is to be made, we
should get out of the business of implied
private rights of action altogether.
1. Section 1738A reads in
relevant part:
"(a) The appropriate authorities of every
State shall enforce according to its terms,
and shall not modify except as provided in
subsection (f) of this section, any child
custody determination made consistently with
the provisions of this section by a court of
another State.
* * * * *
"(c) A child custody determination made
by a court of a State is consistent with the
provisions of this section only if
"(1) such court has jurisdiction under
the law of such state; and
"(2) one of the following conditions is
met:
"(A) such State (i) is the home State of
the child on the date of the commencement of
the proceeding, or (ii) had been the child's
home State within six months before the date
of the commencement of the proceeding and
the child is absent from such State because
of his removal or retention by a contestant
or for other reasons, and a contestant
continues to live in such State;
"(B)(i) it appears that no other State
would have jurisdiction under subparagraph
(A), and (ii) it is in the best interest of
the child that a court of such State assume
jurisdiction because (I) the child and his
parents, or the child and at least one
contestant, have a significant connection
with such State other than mere physical
presence in such State, and (II) there is
available in such State substantial evidence
concerning the child's present or future
care, protection, training, and personal
relationships;
"(C) the child is physically present in
such State and (i) the child has been
abandoned, or (ii) it is necessary in an
emergency to protect the child because he
has been subjected to or threatened with
mistreatment or abuse;
"(D)(i) it appears that no other State
would have jurisdiction under subparagraph
(A), (B), (C), or (E), or another State has
declined to exercise jurisdiction on the
ground that the State whose jurisdiction is
in issue is the more appropriate forum to
determine the custody of the child, and (ii)
it is in the best interest of the child that
such court assume jurisdiction; or
"(E) the court has continuing
jurisdiction pursuant to subsection (d) of
this section.
"(d) The jurisdiction of a court of a
State which has made a child custody
determination consistently with the
provisions of this section continues as long
as the requirement of subsection (c)(1) of
this section continues to be met and such
State remains the residence of the child or
of any contestant.
* * * * *
"(f) A court of a State may modify a
determination of the custody of the same
child made by a court of another State, if
"(1) it has jurisdiction to make such a
child custody determination; and
"(2) the court of the other State no
longer has jurisdiction, or it has declined
to exercise such jurisdiction to modify such
determination.
"(g) A court of a State shall not
exercise jurisdiction in any proceeding for
a custody determination commenced during the
pendency of a proceeding in a court of
another State where such court of that other
State is exercising jurisdiction
consistently with the provisions of this
section to make a custody determination."
2 The sole exception to this
constraint occurs where the first State
either has lost jurisdiction or has declined
to exercise continuing jurisdiction. See §
1738A(f).
3 Mr. Michel's remarks are
echoed in numerous other portions of the
legislative history. See, e.g., PKPA
Joint Hearing 40-41 (statement of Sen.
Durenberger); id., at 12 (statement
of Sen. Wallop); PKPA: Addendum to Joint
Hearing on S. 105 before the Subcommittee on
Criminal Justice of the Committee on the
Judiciary and the Subcommittee on Child and
Human Development of the Committee on Labor
and Human Resources, 96th Cong., 2d Sess.,
104-105 (1980) (hereinafter Addendum to
Joint Hearing) (letter from Assistant
Attorney General Patricia Wald to Rep. Peter
Rodino).
4 Petitioner argues that
determining which of two conflicting custody
decrees should be given effect under the
PKPA would not require the federal courts to
resolve the merits of custody disputes and
thus would not offend the longstanding
tradition of reserving domestic relations
matters to the States. Petitioner contends
that the cause of action he champions would
require federal courts only to analyze which
of two States is given exclusive
jurisdiction under a federal statute, a task
for which the federal courts are well
qualified. We cannot agree with petitioner
that making a jurisdictional determination
under the PKPA would not involve the federal
courts in substantive domestic relations
determinations. Under the Act, jurisdiction
can turn on the child's "best interest" or
on proof that the child has been abandoned
or abused. See §§ 1738A(c)(2)(B), (C), and
(D). In fact, it would seem that the
jurisdictional disputes that are
sufficiently complicated as to have provoked
conflicting state-court holdings are the
most likely to require resolution of these
traditional domestic relations inquiries.
Rogers v. Platt, 259 U.S.App.D.C.
154, 162, 814 F.2d 683, 691 (1987).
Cort v. Ash, 422 U.S. 66, 84, 95
S.Ct. 2080, 2090-2091, 45 L.Ed.2d 26 (1975)
(possibility that implied federal cause of
action may in certain instances turn
on state-law issues counsels against
inferring such an action.)
5 Moreover, petitioner's
argument serves to underscore the
extraordinary nature of the cause of action
he urges us to infer. Petitioner essentially
asks that federal district courts exercise
appellate review of state-court judgments.
This is an unusual cause of action for
Congress to grant, either expressly or by
implication. Petitioner's proposal is all
the more remarkable in the present case, in
which he seeks to have a Federal District
Court in California enjoin enforcement of a
Louisiana state-court judgment before the
intermediate and highest appellate courts of
Louisiana even have had an opportunity to
review that judgment. |
