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Chapter 13
PRIVATE RIGHTS OF ACTION
FOR VIOLATIONS OF AGENCY
ADMINISTERED STATUTES
Agency resources available to enforce agency-administered
statutes are always scarce. An agency-administered statute can have
more powerful effects on behavior if it can also be enforced directly
by beneficiaries who are injured by violations of the statute or of rules
adopted to imp lement the statute. Deciding whether to authorize
private rights of action to enforce an agency-administered statute
raises difficult public policy questions, however, because private
rights of action also can h ave serious adverse effects. There are two
well-known disadvantages of a private right o f action for violation of
an agency-administered statu te. First, authorizing courts to enforce
provisions of agency-administered statutes can create inconsistency
and/or incoherence with respect to the meaning of the s tatute.
Indeed, conflicting interpretations are virtually inevitable any time
that more than one institution has the au thority and responsibility
to interpret the same statute. Second, private enforcement can have
more co mplicated and subtle adverse effects in forms such as
interference with the agency’s enforcement strategy or over-
deterrence of conduct that arguably constitutes a technical violation
of a statute but that actually has net beneficial effects on society and
on pursuit of the policies of the President. Congress frequently enacts
statutes that are inconsistent in their policy implications and effects.
The Supreme Court has recognized that only the President or
institutions within his control have the practical ability to act in ways
that make sense of conflicting statutes. Thus, for instance, in a 2007
opinion the Supreme Court concluded that two agency-administered
statutes conflicted with each other and deferred to the agency’s
method of attempting to reconcile the conflict.
1
A private right of action to enforce an agency-administered
statute can have one of three sources—explicit creation of a private
right of action by Congress in the statute at issue, judicial implication
of a private right of action, or judicial interpretation of the statute to
create a federal statutory right that is enforceable against states,
localities, and their employees in a civil rights actio n filed pursuant
1
National Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644
(2007).
