Section 10 of the Rivers and Harbors Appropriation Act of 1899
(Act) prohibits
"[t]he creation of any obstruction not affirmatively authorized
by Congress, to the navigable capacity of any of the waters of the
Unit.ed States."
An environmental organization and two private citizens
(hereafter respondents) brought an action in Federal District Court
seeking to enjoin, as a violation of § 10, the construction
and operation of water diversion facilities which are part of the
California Water Project, a series of water storage and
transportation facilities designed to transport water from northern
to central and southern California. The District Court held,
inter alia, that respondents could avail themselves of a
"private cause of action" to enforce § 10, and the Court of
Appeals agreed, concluding that the Act was designed for the
especial benefit of private parties who may suffer "special injury"
caused by unauthorized obstruction to a navigable waterway.
Held:
1. No private action can be implied on behalf of those allegedly
injured by a claimed violation of § 10. Pp.
451 U. S.
292-298.
(a) Section 10's language, which states no more than a general
proscription of certain activities, does not indicate any intent by
Congress to provide for private rights of action. Section 10 is the
kind of general ban which carries with it no implication of an
intent to confer rights on a particular class of persons. P.
451 U. S.
294.
(b) Nor is there anything in the legislative history suggesting
that § 10 was created for the especial benefit of a particular
class. On the contrary, the history suggests the view that the Act
was designed to benefit the public at large by empowering the
Federal Government to exercise its authority over interstate
commerce with respect to obstructions on navigable rivers caused by
bridges and similar structures. Pp.
451 U. S.
294-296.
2. The question on the merits, raised by petitioner State of
California, as to whether the Act requires permits for the state
water allocation projects involved in these cases, will not be
reached, as the above ruling
Page 451 U. S. 288
that there is no private cause of action disposes of the cases.
This Court cannot consider the merits of a claim that Congress has
not authorized respondents to raise. P.
451 U. S.
298.
610 F.2d 581, reversed and remanded.
WHITE, J., delivered the opinion of the Court, in which BRENNAN,
MARSHALL, BLACKMUN, and STEVENS, JJ., joined. STEVENS, J., filed a
concurring opinion,
post, p.
451 U. S. 298.
REHNQUIST, J., filed an opinion concurring in the judgment, in
which BURGER, C.J., and STEWART and POWELL, JJ., joined,
post, p.
451 U. S.
301.
Page 451 U. S. 289
JUSTICE WHITE delivered the opinion of the Court.
Under review here is a decision of the Court of Appeals for the
Ninth Circuit holding that private parties may sue under the Rivers
and Harbors Appropriation Act of 1899 to enforce § 10 of that
Act. An environmental organization and two private citizens
(hereafter respondents) [
Footnote
1] seek to enjoin the construction and operation of water
diversion facilities which are part of the California Water Project
(CWP). They rely upon § 10 of the Act, which prohibits
"[t]he creation of any obstruction not affirmatively authorized
by Congress; to the navigable capacity of any of the waters of the
United States. . . . [
Footnote
2]"
Since the Act does not explicitly create a private
Page 451 U. S. 290
enforcement mechanism, the initial question presented by these
consolidated cases is whether such a private right of action can be
implied on behalf of those allegedly injured by a claimed violation
of § 10. Petitioner State of California also asks us to decide
whether the Act requires permits for the state water allocation
projects involved in these cases.
I
The California Water Project consists of a series of water
storage and transportation facilities designed primarily to
transport water from the relatively moist climate of northern
California to the more arid central and southern portions of the
State. The water which will be used by the CWP is initially stored
behind dams on the Sacramento River and, as needed, released into
the Sacramento-San Joaquin Delta. The CWP then diverts a quantity
of this water from the Delta and directs it into canals and
aqueducts which will carry it south. The project has both federal
and state components. The federal component, the Central Valley
Project, is designed in part to provide a constant source of water
for irrigation to the Central Valley of California. Water for this
project is diverted from the Delta by the Tracy Pumping Plant into
the 115-mile Delta-Mendota Canal, which transports the water to the
Mendota Pool in California's Central Valley. The State Water
Project supplies water to both central and southern California by
way of the California Aqueduct. Water for this project is drawn
from the Delta by the Delta Pumping Plant and deposited in the
Page 451 U. S. 291
northern terminus of the California Aqueduct, through which it
flows to its destinations in central and southern California.
Under the present system, the quality of water captured in the
north and released into the Delta may be degraded by intruding salt
waters from the Pacific Ocean. As a consequence, the water which is
diverted from the Delta to the Delta-Mendota Canal or the
California Aqueduct is potentially of a lesser quality than is the
water which is transported to the Delta from storage facilities in
the north and from there deposited in the Delta. The State of
California has proposed the construction of a 42-mile Peripheral
Canal along the eastern edge of the Delta area, which would avoid
any mixing of the water from the north with the saline water of the
Delta. Instead of depositing water in the Delta, the canal would
carry high quality water directly to the Tracy and Delta Pumping
Plants.
Respondents commenced the present action in 1971 in the United
States District Court for the Northern District of California.
Sierra Club v. Morton, 400 F.
Supp. 610 (1975). Named as defendants were the various federal
and state officials who administer the agencies responsible for
overseeing the operation, construction, and regulation of the CWP
facilities in question. [
Footnote
3] Petitioner water agencies, which had contracted with the
State for water from the Delta and which had incurred extensive
financial obligations in reliance thereon, were permitted to
intervene. [
Footnote 4] The
respondents alleged that present
Page 451 U. S. 292
and proposed diversions of water from the Delta degraded the
quality of Delta water, and that such diversion violated § 10
of the Rivers and Harbors Appropriation Act of 1899. They sought to
enjoin further operation or construction of water diversion
facilities until the consent of the Army Corps of Engineers was
obtained, as required by the Act.
The District Court concluded that respondents could avail
themselves of a "private cause of action" to enforce § 10 of
the Act, and ruled on the merits that approval of the Corps of
Engineers was required by § 10 for the Tracy and Delta Pumping
Plants and the Peripheral Canal.
Sierra Club v. Morton,
supra. The Court of Appeals for the Ninth Circuit agreed that
a private cause of action to enforce the Act existed.
Sierra
Club v. Andrus, 610 F.2d 581 (1979). It reversed the District
Court as to the Tracy Pumping Plant, however, ruling that Congress
has consented to its construction and operation. [
Footnote 5] We granted petitions for
certiorari filed by the water agencies and the State of California.
449 U.S. 818 (1980).
II
Cort v. Ash, 422 U. S. 66
(1975), outlined a "preferred approach for determining whether a
private right of action should be implied from a federal statute. .
. ."
Transamerica Mortgage Advisors, Inc. v. Lewis,
444 U. S. 11,
444 U. S. 26
(1979) (WHITE, J., dissenting);
See
Cannon v. University
of Chicago,
Page 451 U. S. 293
441 U. S. 677
(1979). This approach listed four factors thought to be relevant to
the inquiry:
"First, is the plaintiff 'one of the class for whose especial
benefit the statute was enacted,' . . . -- that is, does the
statute create a federal right in favor of the plaintiff? Second,
is there any indication of legislative intent, explicit or
implicit, either to create such a remedy or to deny one? . . .
Third, is it consistent with the underlying purposes of the
legislative scheme to imply such a remedy for the plaintiff? . . .
And finally, is the cause of action one traditionally relegated to
state law, in an area basically the concern of the States, so that
it would be inappropriate to infer a cause of action based solely
on federal law?"
422 U.S. at
422 U. S. 78.
Combined, these four factors present the relevant inquiries to
pursue in answering the recurring question of implied causes of
action. Cases subsequent to
Cort have explained that the
ultimate issue is whether Congress intended to create a private
right of action,
see Universities Research Assn., Inc. v.
Coutu, 450 U. S. 754,
450 U. S.
771-772 (1981);
Transamerica Mortgage Advisors, Inc.
v. Lewis, supra, at
444 U. S. 23-24;
Touche Ross & Co. v. Redington, 442 U.
S. 560,
442 U. S. 568,
442 U. S.
575-576 (1979); but the four factors specified in
Cort remain the "criteria through which this intent could
be discerned."
Davis v. Passman, 442 U.
S. 228,
442 U. S. 241
(1979);
Transamerica Mortgage Advisors, Inc. v. Lewis,
supra, at
444 U. S. 27
(WHITE, J., dissenting).
Under
Cort, the initial consideration is whether the
plaintiff is a member of a class for "
whose especial benefit
the statute was enacted.'" Cort v. Ash, supra, at
422 U. S. 78,
422 U. S. 80-82;
see Touche Ross & Co. v. Redington, supra, at
442 U. S.
569-570; Cannon v. University of Chicago,
supra, at 441 U. S.
689-694. Without analyzing either the language or
legislative history of the Act, the Court of Appeals here concluded
that the Act was designed for the especial benefit of private
parties who may suffer "special injury" caused by an unauthorized
obstruction
Page 451 U. S. 294
to a navigable waterway. It was apparently reasoned that, since
Congress enacted a statute that forbids such obstructions in
navigable waters, any person who would be "especially harmed" by an
unauthorized obstruction was an especial beneficiary of the Act.
But such a definition of "especial" beneficiary makes this factor
meaningless. Under this view, a victim of any crime would be deemed
an especial beneficiary of the criminal statute's proscription.
Cort did not adopt such a broad-gauge approach.
Cort
v. Ash, supra, at
422 U. S. 80-82.
The question is not simply who would benefit from the Act, but
whether Congress intended to confer federal rights upon those
beneficiaries.
See Cannon, supra, at
441 U. S.
690-693, n. 13.
In ascertaining this intent, the first consideration is the
language of the Act. Here, the statute states no more than a
general proscription of certain activities; it does not
unmistakably focus on any particular class of beneficiaries whose
welfare Congress intended to further. Such language does not
indicate an intent to provide for private rights of action.
"There would be far less reason to infer a private remedy in
favor of individual persons if Congress, instead of drafting Title
IX [of the Education Amendments of 1972] with an unmistakable focus
on the benefited class, had written it simply as a ban on
discriminatory conduct by recipients of federal funds or as a
prohibition against the disbursement of public funds to educational
institutions engaged in discriminatory practices."
Cannon v. University of Chicago, supra, at
441 U. S.
690-693;
see also Touche Ross Co. v. Redington,
supra, at
442 U. S. 569;
Cort v. Ash, supra, at
422 U. S. 80-82.
Section 10 of the Rivers and Harbors Appropriation Act is the kind
of general ban which carries with it no implication of an intent to
confer rights on a particular class of persons.
Neither the Court of Appeals nor respondents have identified
anything in the legislative history suggesting that § 10 was
created for the especial benefit of a particular class. On the
contrary, the legislative history supports the view that
Page 451 U. S. 295
the Act was designed to benefit the public at large by
empowering the Federal Government to exercise its authority over
interstate commerce with respect to obstructions on navigable
rivers caused by bridges and similar structures. In part, the Act
was passed in response to this Court's decision in
Willamette
Iron Bridge Co. v. Hatch, 125 U. S. 1 (1888).
There the Court held that there was no federal common law "which
prohibits obstructions and nuisances in navigable rivers."
Id. at
125 U. S. 8.
Although
Willamette involved private parties, the clear
implication of the Court's opinion was that, in the absence of
specific legislation, no party, including the Federal Government,
would be empowered to take any action under federal law with
respect to such obstructions. The Act was intended to enable the
Secretary of War to take such action. [
Footnote 6]
See 21 Cong.Rec. 8603, 8605, and 8607
(1890);
see also United States v. Pennsylvania Industrial
Chemical Corp., 411 U. S. 655,
411 U. S.
663-664 (1973);
United States v. Standard Oil
Co., 384 U. S. 224,
384 U. S.
227-229 (1966);
United States v. Republic Steel
Corp., 362 U. S. 482,
362 U. S.
485-488,
362 U. S.
499-500 (1960). Congress was not concerned with the
rights of individuals.
It is not surprising, therefore, that there is no "indication of
legislative intent, explicit or implicit, either to create such a
remedy or to deny one."
Cort v. Ash, 422 U.S. at
422 U. S. 78,
422 U. S.
82-84;
Page 451 U. S. 296
Touche Ross & Co. v. Redington, 442 U.S. at
442 U. S. 571;
Cannon v. University of Chicago, 441 U.S. at
441 U. S.
694-703. The Court of Appeals recognized as much:
"The legislative history of the Rivers and Harbors Act of 1899
does not reflect a congressional intent either to afford a private
remedy or to deny one."
610 F.2d at 588. This silence on the remedy question serves to
confirm that, in enacting the Act, Congress was concerned not with
private rights, but with the Federal Government's ability to
respond to obstructions on navigable waterways. [
Footnote 7]
Page 451 U. S. 297
As recently emphasized, the focus of the inquiry is on whether
Congress intended to create a remedy.
Universities Research
Assn., Inc. v. Coutu, 450 U.S. at
450 U. S.
771-772;
Transamerica Mortgage Advisors, Inc. v.
Lewis, 444 U.S. at
444 U. S. 23-24;
Touche Ross & Co. v. Redington, supra, at
442 U. S.
575-576. The federal judiciary will not engraft a remedy
on a statute, no matter how salutary, that Congress did not intend
to provide. Here consideration of the first two
Cort
factors is dispositive. The language of the statute and its
legislative history do not suggest that the Act was intended to
create federal rights for the
Page 451 U. S. 298
especial benefit of a class of persons, but rather that it was
intended to benefit the public at large through a general
regulatory scheme to be administered by the then Secretary of War.
Nor is there any evidence that Congress anticipated that there
would be a private remedy. This being the case, it is unnecessary
to inquire further to determine whether the purpose of the statute
would be advanced by the judicial implication of a private action
or whether such a remedy is within the federal domain of interest.
These factors are only of relevance if the first two factors give
indication of congressional intent to create the remedy.
Touche
Ross & Co. v. Redington, supra, at
442 U. S.
574-576. There being no such indication, the judgment of
the Court of Appeals must be reversed.
III
Petitioner, the State of California, urges that we reach the
merits of these cases whether permits are required for the state
water allocation projects -- regardless of our disposition of the
"private cause of action" issue. This we decline to do. Our ruling
that there is no private cause of action permitting respondents to
commence this action disposes of the cases: we cannot consider the
merits of a claim which Congress has not authorized respondents to
raise.
The judgment of the Court of Appeals is accordingly reversed,
and the cases are remanded for proceedings consistent with this
opinion.
It is so ordered.
* Together with No. 79-1502,
Kern County Water Agency et al.
v. Sierra Club et al., also on certiorari to the same
court.
[
Footnote 1]
The Sierra Club is a nonprofit California corporation; Hank
Schramm is a commercial fisherman active in the San Francisco Bay
and Pacific Ocean; and William Dixon is a Sacramento-San Joaquin
Delta landowner.
See 400 F.
Supp. 610, 619 (ND Cal.1975).
[
Footnote 2]
Section 10 of the Rivers and Harbors Appropriation Act of 1899
provides:
"The creation of any obstruction not affirmatively authorized by
Congress, to the navigable capacity of any of the waters of the
United States is prohibited; and it shall not be lawful to build or
commence the building of any wharf, pier, dolphin, boom, weir,
breakwater, bulkhead, jetty, or other structures in any port,
roadstead, haven, harbor, canal, navigable river, or other water of
the United States, outside established harbor lines, or where no
harbor lines have been established, except on plans recommended by
the Chief of Engineers and authorized by the Secretary of the Army;
and it shall not be lawful to excavate or fill, or in any manner to
alter or modify the course, location, condition, or capacity of,
any port, roadstead, haven, harbor, canal, lake, harbor or refuge,
or inclosure within the limits of any breakwater, or of the channel
of any navigable water of the United States, unless the work has
been recommended by the Chief of Engineers and authorized by the
Secretary of the Army prior to beginning the same."
30 Stat. 1151, 33 U.S.C. § 403.
[
Footnote 3]
The federal defendants were the Secretary of the Interior, the
Commissioner of the Bureau of Reclamation, the Secretary of the
Army, the Chief of Engineers of the Army Corps of Engineers, and
the Division Engineer of the Corps' South Pacific Division. The
state defendants were the Secretary for Resources and the Director
of the Department of Water Resources. 400 F. Supp. at 620.
[
Footnote 4]
According to affidavits filed in 1974 in support of motions to
intervene, Kern County Water Agency has contracted to purchase up
to 1,153,000 acre-feet annually, which is resold primarily to
agricultural users. The Metropolitan Water District of Southern
California has contracted to purchase up to 2,011,500 acre-feet
annually to serve the water needs of an area of some 4,900 square
miles with 10 million inhabitants. The Tulare Lake Basin Water
Storage District and the Santa Clara Valley Water District have
contracted to purchase lesser amounts.
See App.
99a-112a.
[
Footnote 5]
Judge Tang wrote separately to explain why the conclusion that
the Tracy Pumping Plant had been authorized by Congress did not
conflict with the Ninth Circuit's recent decision in
Libby Rod
& Gun Club v Poteat, 594 F.2d 742 (1979). 610 F.2d at
607.
[
Footnote 6]
In addition, § 12 of the Act, 33 U.S.C. § 406,
provides criminal penalties for violations of the provisions of
various sections of the Act, including the provisions of § 10;
and § 17 of the Act, 33 U.S.C. § 413, provides that
"[t]he Department of Justice shall conduct the legal proceedings
necessary to enforce the provisions of [§ 10]." The creation
of one explicit mode of enforcement is not dispositive of
congressional intent with respect to other complementary remedies.
See Cort v. Ash, 422 U. S. 66,
422 U. S. 82-83
n. 14 (1975);
Transamerica Mortgage Advisors, Inc. v.
Lewis, 444 U. S. 11,
444 U. S. 29, n.
6 (1979) (WHITE, J., dissenting). However, here, considering the
clear focus of the legislative history on the need to enable the
Government to respond to obstructions in navigable waterways, the
creation of this enforcement mechanism and the absence of the
remedy sought by respondents certainly reinforces the view that
Congress was not concerned with private rights or remedies in
designing this legislation.
[
Footnote 7]
Respondents suggest that the legislative history of the Act must
be read in light of the historical context during which the measure
was being considered.
See Cannon v. University of Chicago,
441 U. S. 677,
441 U. S.
698-699 (1979). That context, they argue, included a
general awareness that the obstruction of any navigable stream
could have been addressed through the common law of nuisance, and
that this private remedy had been recognized at one time as federal
in nature. Furthermore, they argue that the contemporary legal
climate recognized that the abrogation of this federal remedy in
cases such as
Willamette Iron Bridge Co. v. Hatch,
125 U. S. 1 (1888),
did not undermine the accepted view that the enactment of any
federal prohibition of obstructions on navigable streams would
resurrect the federal private right of action. Congressional
silence as to private remedies should be interpreted, therefore, as
acquiescing in the accepted view.
For both of these positions, respondents rely heavily upon
Pennsylvania v. Wheeling &
Belmont Bridge Co., 13 How. 518 (1852). There, the
State of Pennsylvania sought equitable relief from the construction
of a bridge across the Ohio River. The Court took the case under
its original jurisdiction, a State being the plaintiff, and, having
done so, held that it was empowered to consider all issues
presented by the parties, state as well as federal. Respondents
suggest that the
Wheeling Court held that federal courts
were regularly available to entertain actions for nuisance brought
by private parties with respect to obstructions on navigable
rivers. But nothing in the opinion supports that view. The
discussion in that case of the common law of nuisance is based on
the Court's position that it was entitled to consider state, as
well as federal, issues in the cause before it. Indeed, that the
opinion did not establish a general federal law of nuisance with
respect to navigable waterways was a point reiterated in
Willamette, supra, at
125 U. S. 15-17.
In short, although there may have been a common law nuisance cause
of action for obstructions of navigable waterways,
Wheeling
Bridge did not federalize that law. Respondents have cited no
decision by this Court that did.
Equally unavailing is respondents' assertion that
Wheeling
Bridge stands for the broad proposition that, if Congress
legislated in this area, any prohibition of obstructions would
automatically support a private right of action. This position is
extrapolated from discussions of the law of nuisance in both
Wheeling Bridge, supra, at
54 U. S.
604-607 and the subsequent
Gilman v.
Philadelphia, 3 Wall. 713,
70 U. S.
722-724 (1866). In both cases, the Court merely
expressed agreement with the proposition that a court of equity
could enjoin a public nuisance in a case brought by a private
person who had sustained specific injury. Whether a congressional
enactment prohibiting obstructions would automatically give rise to
a private right of action was not an issue raised or discussed in
either case.
The most that may be legitimately concluded as to legislative
understanding of the law preceding the enactment of this statute is
that Congress was aware that the Supreme Court had held that there
was no federal law which empowered anyone to contest obstructions
to navigable rivers.
See 21 Cong.Rec. 8604-8607 (1890). We
cannot assume from legislative silence on private rights of action
that Congress anticipated that a general regulatory prohibition of
obstructions to navigable streams would provide an automatic basis
for a private remedy in the nature of common law nuisance. The
Rivers and Harbors Appropriation Act of 1899 was, no doubt, in part
a legislative response to the
Willamette decision. But
there is nothing to suggest that that response was intended to do
anything more than empower the Federal Government to respond to
obstructions on navigable rivers. The broad view supported by
respondents is without support.
JUSTICE STEVENS, concurring.
In 1888, this Court reversed a decree enjoining the construction
of a bridge over a navigable river.
Willamette Iron Bridge Co.
v. Hatch, 125 U. S. 1. The
Court's opinion in that case did not question the right of the
private parties to seek relief in a federal court; rather, the
Court held that no federal rule of law prohibited the obstruction
of the navigable waterway. [
Footnote
2/1]
Page 451 U. S. 299
Congress responded to the
Willamette case in the Rivers
and Harbors Act of 1890 by creating a federal prohibition of such
obstructions absent a permit from the Secretary of War. 26 Stat.
426, 454. At the time the statute was enacted, I believe the
lawyers in Congress simply assumed that private parties in a
position comparable to that of the litigants in the
Willamette case would have a remedy for any injury
suffered by reason of a violation of the new federal statute.
[
Footnote 2/2] For at that time,
the implication of private causes
Page 451 U. S. 300
of action was a well known practice at common law and in
American courts. [
Footnote 2/3]
Therefore, in my view, the Members of Congress merely assumed that
the federal courts would follow the ancient maxim "
ubi jus, ibi
remedium," and imply a private right of action.
See Texas
& Pacific R. Co. v. Rigsby, 241 U. S.
33. 39-40. [
Footnote
2/4] Accordingly, if I were writing on a clean slate, I would
hold that an implied remedy is available to respondents under this
statute.
Page 451 U. S. 301
The slate, however, is not clean. Because the problem of
ascertaining legislative intent that is not expressed in
legislation is often so difficult, the Court has wisely developed
rules to guide judges in deciding whether a federal remedy is
implicitly a part of a federal statute. In
Cort v. Ash,
422 U. S. 66, all
of my present colleagues subscribed to a unanimous formulation of
those rules, and in
Cannon v. University of Chicago,
441 U. S. 677, a
majority of the Court joined my attempt to explain the application
of those rules in that case. The
Cort v. Ash analysis is
therefore a part of our law. [
Footnote
2/5]
In these cases, I believe the Court correctly concludes that
application of the
Cort v. Ash analysis indicates that no
private cause of action is available. I think it is more important
to adhere to the analytical approach the Court has adopted than to
base my vote on my own opinion about what Congress probably assumed
in 1890.
Cf. Florida Dept. of Health & Rehabilitation
Services v. Florida Nursing Home Assn., 450 U.
S. 147,
450 U. S. 151
(STEVENS, J., concurring). I therefore join JUSTICE WHITE's opinion
for the Court.
[
Footnote 2/1]
The
Willamette Court explained the issue presented as
follows:
"The gravamen of the bill was the obstruction of the navigation
of the Willamette River by the defendants by the erection of the
bridge which they were engaged in building. The defendants pleaded
the authority of the state legislature for the erection of the
bridge. The court held that the work was not done in conformity
with the requirements of the state law, but whether it were or not,
it lacked the assent of Congress, which assent the court held was
necessary in view of that provision in the act of Congress
admitting Oregon as a State which has been referred to. The court
held that this provision of the act was tantamount to a declaration
that the navigation of the Willamette River should not be
obstructed or interfered with, and that any such obstruction or
interference, without the consent of Congress, whether by state
sanction or not, was a violation of the act of Congress, and that
the obstruction complained of was in violation of said act. And
this is the principal and important question in this case, namely,
whether the erection of a bridge over the Willamette River at
Portland was a violation of said act of Congress. If it was not, if
it could not be, if the act did not apply to obstructions of this
kind, then the case did not arise under the constitution or laws of
the United States, unless under some other law referred to in the
bill."
125 U.S. at
125 U. S. 7-8.
[
Footnote 2/2]
The then-current edition of Cooley's treatise on the Law of
Torts 790 (2d ed. 1888) described the common law remedy for breach
of a statutory duty in this way:
"[W]hen the duty imposed by statute is manifestly intended for
the protection and benefit of individuals, the common law, when an
individual is injured by a breach of the duty, will supply a
remedy, if the statute gives none."
A few years earlier, this Court quoted with approval an opinion
by Judge Cooley in support of its holding that a railroad's breach
of a statutory duty to fence its right-of-way gave an injured party
an implied damages remedy.
See Hayes v. Michigan Central R.
Co., 111 U. S. 228,
111 U. S.
240.
[
Footnote 2/3]
See Anonymous, 6 Mod. 27, 87 Eng.Rep. 791 (1703) (per
Holt, C.J.,); 2 E. Coke, Institutes on the Law of England 55 (6th
ed. 1681); 3 W. Blackstone, Commentaries *23, *51, *109, *123; 1
Comyns' Digest 433-445 (1822);
Couch v. Steel, 3 El. &
Bl. 402, 118 Eng.Rep. 1193 (1854). In Comyns' Digest at 442, the
rule was broadly stated:
"So in every case where a statute enacts or prohibits a thing
for the benefit of a person, he shall have a remedy upon the same
statute for the thing enacted for his advantage or for the
recompence of a wrong done to him contrary to the said law."
[
Footnote 2/4]
As Justice Frankfurter stated in dissent in
Montana-Dakota
Utilities Co. v. Northwestern Public Service Co., 341 U.
S. 246,
341 U. S.
261-262:
"Courts, unlike administrative agencies, are organs with
historic antecedents which bring with them well defined powers.
They do not require explicit statutory authorization for familiar
remedies to enforce statutory obligations.
Texas & N. O. R.
Co. v. Brotherhood of Clerks, 281 U. S.
548;
Virginia R. Co. v. System Federation,
300 U. S.
515;
Deckert v. Independence Shares Corp.,
311 U. S.
282. A duty declared by Congress does not evaporate for
want of a formulated sanction. Then Congress has 'left the matter
at large for judicial determination,' our function is to decide
what remedies are appropriate in the light of the statutory
language and purpose and of the traditional modes by which courts
compel performance of legal obligations.
See Board of Comm'rs
of United States, 308 U. S. 343,
308 U. S.
351. If civil liability is appropriate to effectuate the
purposes of a statute, courts are not denied this traditional
remedy because it is not specifically authorized.
Texas &
Pac. R. Co. v. Rigsby, 241 U. S. 33;
Steele v.
Louisville & N. R. Co., 323 U. S. 192;
Tunstall v.
Brotherhood of Locomotive Firemen & Enginemen,
323 U. S.
210;
cf. De Lima v. Bidwell, 192 U. S.
1."
[
Footnote 2/5]
In a separate concurrence in this case, four Members of the
Court have undertaken to explain the legal effect of certain
"implied right of action" opinions decided more recently than
Cort v. Ash. As THE CHIEF JUSTICE, JUSTICE STEWART,
JUSTICE REHNQUIST, and I noted in our separate opinion in
University of California Regents v. Bakke, 438 U.
S. 265,
438 U. S. 408,
n. 1, "it is hardly necessary to state that only a majority can
speak for the Court" or give an authoritative explanation of the
meaning of its judgments.
JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE, JUSTICE STEWART,
and JUSTICE POWELL join, concurring in the judgment.
I agree completely with the conclusion of the Court that, in
these cases, "Congress was not concerned with the rights of
individuals," and that
"[i]t is not surprising, therefore, that there is no 'indication
of legislative intent, explicit or implicit, either to create . . .
a [private] remedy or to deny one.'"
Ante at
451 U. S.
295.
Page 451 U. S. 302
I also agree with the Court's analysis,
ante at
451 U. S. 297,
where it says:
"As recently emphasized, the focus of the inquiry is on whether
Congress intended to create a remedy.
Universities Research
Assn., Inc. v. Coutu, 450 U.S. at
450 U. S.
771-772;
Transamerica Mortgage Advisors, Inc. v.
Lewis, 444 U.S. at
444 U. S. 23-24;
Touche
Ross & Co. v. Redington, [442 U.S.] at
442 U. S.
575-576. The federal judiciary will not engraft a remedy
on a statute, no matter how salutary, that Congress did not intend
to provide."
My only difference, and the difference which leads me to write
this separate concurrence in the judgment, is that I think the
Court's opinion places somewhat more emphasis on
Cort v.
Ash, 422 U. S. 66
(1975), than is warranted in light of several more recent "implied
right of action" decisions which limit it. These decisions make
clear that the so-called
Cort factors are merely guides in
the central task of ascertaining legislative intent,
see
Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U. S.
11,
444 U. S. 15
(1979);
Touche Ross & Co. v. Redington, 442 U.
S. 560,
442 U. S.
575-576 (1979);
Cannon v. University of
Chicago, 441 U. S. 677,
441 U. S.
739-740 (1979) (POWELL, J., dissenting), that they are
not of equal weight,
Transamerica, supra, at
444 U. S. 15,
444 U. S. 23-24;
Touche Ross, supra, at
442 U. S.
575-576; and that, in deciding an implied right of
action case, courts need not mechanically trudge through all four
of the factors when the dispositive question of legislative intent
has been resolved,
Transamerica, supra, at
444 U. S. 24;
Touche Ross, supra, at
442 U. S.
575-576;
Kissinger v. Reporters Committee for
Freedom of the Press, 445 U. S. 136,
445 U. S.
148-149 (1980). Surely it cannot be seriously argued
that a mechanical application of the
Cort analysis lends
"predictability" to implied right of action jurisprudence:
including today's decision, five of the last six statutory implied
right of action cases in which we have reviewed analysis by the
Courts of Appeals after
Cort have resulted in reversal of
erroneous Court of Appeals decisions.
Page 451 U. S. 303
See Universities Research Assn., Inc. v. Coutu,
450 U. S. 754
(1981);
Transamerica, supra; Touche Ross, supra; Cannon,
supra. Cf. Northwest Airlines Inc. v. Transport Workers,
ante p.
451 U. S. 77. While
this may be predictability of a sort, it is not the sort which the
Court, in
Cort v. Ash, supra, or in any other case seeking
to afford guidance to statutory construction, intended.
But in these cases, I am happy to agree with the Court that
there is no implied right of action, because
"[t]he language of the statute and its legislative history do
not suggest that the Act was intended to create federal rights for
the especial benefit of a class of persons,"
ante at
451 U. S.
297-298, and because there is no "evidence that Congress
anticipated that there would be a private remedy."
Ante at
451 U. S.
298.